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In R v Parker (1963) 111 CLR 610, Sir Owen Dixon, Chief Justice of the High Court of Australia, said of the House of Lords’ decision in Director of Public Prosecutions v Smith  AC 290:
‘There are propositions laid down in the judgment [in Smith’s case] which I believe to be misconceived and wrong. They are fundamental and they are propositions which I could never bring myself to accept... I think Smith's case should not be used as authority in Australia at all. I am authorised by all the other members of the High Court to say that they share [these] views’.
What ‘fundamental propositions’ did the House of Lords lay down in Smith’s case? Was Sir Owen Dixon CJ right to describe them as ‘misconceived and wrong’? Are the propositions in question still valid in England today? If not, how were they abrogated?
In R v Patel (2012) 247 CLR 531, a case of manslaughter by gross negligence, the High Court of Australia declared:
‘The test applied to conduct which is alleged to amount to gross or criminal negligence in the context of the crime of manslaughter ... is an objective one.... The objective standard of conduct set by the law in a case such as the present is that of a reasonably competent surgeon’.
Explain what the High Court meant by ‘objective test’ and ‘objective standard’. In which areas of Western Australian criminal law, other than gross negligence manslaughter, does an objective test or standard apply today? In applying that test or standard in those other areas, must the court necessarily ignore the personal characteristics of the accused (eg, age, ethnicity and mental capacity)?
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In order to find a person guilty, the prosecution should prove that a person has both the actus reas and the mens rea as well for the crime beyond all the reasonable doubt. In case of some crimes, the recklessness and negligence have to be proved in order to satisfy the requirements of mens rea in an offence. In case of some serious crimes such as the theft or murder as per the s18 offences against the Person Act 1861, it can be stated that the mens rea can be established if the jury is satisfied that the defendant intended to commit the crime. The intention can be categorized in two segments. They are direct intent and indirect intent. The direct intent is generally straightforward. For example, if a person pulls out a gun and say another person that he will shoot him before shooting another person in the chest then it will be obvious that the person intended to kill that person. On the other hand, oblique intent is generally more difficult because in this case, the defendant claims that he did not foresee the consequence the action. Despite the fact, the law has decided that in such cases, the defendant should have foreseen the actions should lead to the death and some serious injuries. In some cases, the intent can be derived from the actions of the defendants and the consequences had a high probability in terms of occurrence. There are some arguments present as well regarding the likelihood of the consequences from the actions of the defendants in order to derive the intention. The first case which developed the particular area of law is Director of Public Prosecutions vs Smith  AC290. The facts in the case were that Smith had stolen some goods back in the car and a policeman ordered Smith to stop the car for investigation. Instead of that, Smith drove off and the policeman jumped on the bonnet of the car and ordered to stop. As a result, the policeman was thrown from the car and he was ran-over by an oncoming car and he was killed on the spot. Smith was charged with murder, convicted and then he was sentenced to death. The appeal reached the house of Lords and it was heard by the strongest team there as a criminal offence, including Lord Kilmuir, then the Lord Chancellor, The Lord Chief Justice, Lord Parker of Waddington who also became the Master of the Rolls. The House of Lords upheld the conviction and Lord Chancellor summarized that if in doing the thing which he did, he must be a reasonable man who has contemplated that serious harm is likely to occur then he can be considered guilty of murder. But, the judgment of the Director of Public Prosecutions vs Smith  AC290 case was criticized by various academicians who disliked the use of an objective test for the establishment of the intention of murder cases which was mainly established by the reasonable man phrase in the judgment. The academics stated that instead of doing the objective test, conducting a subjective test can help in the area. On the other hand, Lord Denning also defended the judgment by focusing on the point that although the facts of the case state that the policeman was thrown off the car into another vehicle, Smith crashed the body of the policeman into the oncoming vehicles three times before he fell off finally and killed. Lord Denning then stated that there is no doubt that Smith had an intention to kill the policeman and it was not his purpose to kill the policeman and it was also true that he was not aware of the fact that there was a very high probability that the policeman would suffer from the bodily harm and the House of Lords stated that the direction the case is right. Though, the law was highly criticized by various academicians the judgment from the DPP v Smith (1961) showed that the foresight of the consequence is equivalent to the intent and it also applies if there is a high probability of the occurrence, as opposed to the virtual certainty. However, the criticism from the academics did not stop and due to the fact that the House of Lords Practice statement was not implemented yet, the Law Commission had to intervene in the procedure and they also had to propose a new law in form of the statute for developing a link between the intent and foresight of consequence. As a result, the section 8 of the Criminal Justice Act (1967) was taken into practice for the criticisms of the academics.
In case of R v Parker (1963) 111 CLR 610, Dixon CJ stated that the judgment for Director of Public Prosecutions v. Smith (1961) AC 290 was too unfortunate and based on it the observation cannot be confirmed. He also mentioned that based on the Smith’s case, the policy or view cannot be modified or changed. As per Dixon CJ, the matter of the case Director of Public Prosecutions v. Smith (1961) AC 290 has been misunderstood depending on the meaning of intended killing and accident. In that case, it can be stated that Dixon CJ was right to provide judgment of the of R v Parker (1963) 111 CLR 610 case because Smith did not kill the policeman intentionally but it was an accident.
On 29th June in the year 2010, after a period of 58 days of trial, the Supreme Court of Queensland found that the appellant guilty of the three counts of the manslaughter and one count of the grievous bodily harm unlawfully. The charges mainly arose out of the surgical operations done by the appellant while he was working as a surgeon in the Bundaberg hospital. The allegations came to court by the prosecution and it was stated that the appellant was incompetent and he did not follow proper surgical procedure. It was the manner which was carried by them and the post operative treatment supervised by him.
As per the section 303 of the criminal code, it can be stated that a person who has unlawfully killed another person in circumstances which do not constitute any murder can be considered guilty for manslaughter. The section 291 of the Criminal Code states that a person who kills another person unlawfully unless authorized killing, is excused by law. Rather than considering these laws, the prosecution of the case was done based on the standard of care provided to the appellant regarding the surgical procedures and it was also stated that the care for surgical procedure was very low and it was basically breach of duty of care as per the section 288 of the Criminal Code. The High Court rejected the contention of the appellant and held that the section 288 of the Criminal code can be applied to the surgical treatment case which mainly encompasses all that was provided in the treatment. The High Court also mentioned that there is no criminal responsibility present for the death without any physical act.
In the case, the appellant should focus on the fact that the surgeon did not have the skills required for the surgery. The High Court considered the person as a ‘reasonably competent surgeon’. The relevant question determined that whether the conduct of the appellant, in judging the surgery whether it was required or it was warranted. As this was mainly a case of criminal negligence, it should warrant the criminal punishment. In order to assess the decisions of the appellant, in order to operate by reference the matter should have been dealt by a competent surgeon and the facts and regards of the patient should have been heard by the surgeon properly before the surgery took place. The condition of the patient should also be known to the surgeon. The prosecution case was formulated based on the fact whether the appellant had the knowledge about the state of health of the patient. The High Court also held the fact that whether the appellant had any knowledge about the shortcomings of the surgeon.
There are different areas present in the Western Australian criminal law where the objective test and objective standards apply. This is a most common form of self defence. Under the Evidence Act 1906 (WA) when the case is based on the self defence, the section 249 of the Criminal Code brings the objective test. This is mainly the test which identifies whether the force that has been used is reasonable for the circumstances or not. Justice Miller stated that the test for the self defence is entirely objective because juries often cannot understand the subjective and objective requirements of the defence.
In order to apply the test or the standards, the court should not ignore the personal characteristics of the accused such as age, ethnicity and mental capacity. While assessing the gravity of provocation, it is important for the court to consider the background or the personal characteristics.
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