Law skool memories

Every one knows about the snail in the ginger beer bottle (though it was never actually proved to have been there) and probably a few people who dropped out of law courses can remember the Carbolic Smoke Ball case, but there are plenty of other cases that stick in one’s memory.

One came to mind today with a news story from the ABC.  A former deputy mayor is facing charges that he murdered his brother in Victoria and his mother in NSW.

In the body of the story was the following:

Cross-border crime presents ‘complex legal issues’

Mr Brand was a police prosecutor for 12 years in NSW and said he had not dealt with a serious cross-border criminal case like this before.

Excuse me!  That’s not a cross-border crime!  That’s two crimes, one on each side of a border.

To be fair, Mr Brand didn’t say it was – only the author of the sub-headline.

A cross border crime is one posed by the question, asked rhetorically of us in Criminal Law:

A man  fires a shot across the Murray River  and kills someone.  In which state has the homicide occurred?  Victoria or NSW?

The answer is: where the person was hit by the bullet.  (There are some other technicalities such as the year-and-a-day rule.  I don’t think it matters where the victim actually died.)

The more amazing thing is that there was  actually a High Court case about this.  That case is Ward v R [1980] HCA 11; (1980) 142 CLR 308.

Edward Donald Ward shot and killed Alexander Joseph Reed beside the Murray River near Echuca. He fired from the top of the steep bank of the river down at Reed, who was fishing by the river’s edge, some thirty feet below.

Ward fired from the Southern bank. He was tried and found guilty of murder in the Victorian Supreme Court. The High Court upheld his appeal because the river bed was in NSW. The border had been fixed in 1855 as being at the southern side of the “whole of the watercourse.”  The whole of the watercourse did not just mean where the water was at a particular time or even where water normally flowed, but the watercourse as defined by the banks.  Reed was killed in NSW.

This wasn’t merely academic, because if the homicide occurred in NSW Ward had available to him a defence of “diminished responsibility” which if accepted would reduce the offence from murder to manslaughter.  This defence did not exist if the case was to be tried as a crime which took place in Victoria.

So, to the ABC news site I say: come back to me when you have a real cross-border (alleged) crime to report!

I’ve found it surprisingly difficult to track down Ward’s ultimate legal fate.  The best outcome for him would have been that a plea of guilty to manslaughter was accepted.

Diminished responsibility  was abolished in NSW in 1998 and replaced with substantial impairment

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