Legal Problem Solving: Murder

Paper style/referencing: Please check Australian Guide to Legal Referencing.

Source: Unlimited/As Needed (must refer to legislation and cases)

Number of words: maximum 1500, can be less but not more, this is not including bibliography and footnotes.

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Instructions:
You are to consider the problem questions and provide a well written, logical structured response which identifies the legal issues and which responds to the questions posed.

Note that the incident occurred in the ACT and that you are only to consider the charge of murder, including any possible defences.

Assessment criteria:

1. Legal problem solving skills. That is the :

a.identification of the legal issues;

b.statement of the law in an accurate and concise manner;

c.application of the law to the facts; and

d.drawing of well-reasoned conclusions.

2. Communication skills including grammar, structure, clarity, etc. Your paper should be carefully proof-read.

3. Inclusion of a bibliography and appropriate referencing – in accordance with legal referencing standards.

Problem Question:

Kevin is nineteen. He has had a difficult childhood, having been raised in a house in which his mother was subjected to physical abuse by his father. He still lives at home, and the screaming, fighting and abuse continue. When he was much younger, Kevin was severely brutalised by his father on three occasions. Although his father often screams at him, Kevin is rarely subjected to physical violence anymore.

From early school days, Kevin has been quiet and withdrawn with his classmates and his teachers. Indeed, he quickly got a reputation for being a weirdo and became the subject of much teasing because of his shy disposition and his heavy build.

On one occasion, when Kevin was in grade 5 at primary school, he was made to eat rubbish out of a bin by a particularly nasty older student named Drago. The incident occurred in front of a large crowd of students, and the chants of garbage eater , garbage eater , garbage eater still ring in his ears.

Drago attended the same high school as Kevin, and thanks to him, the name stuck. Kevin spent much of his high school life trying to block out the taunts of Drago and his friends, who called him garbage eater at every opportunity. His hatred of Drago grew over the years but he was powerless to respond. He continued to withdraw and became extreme isolated. This fuelled his vulnerability to further taunts and abuse and increased his erratic and sometimes odd behaviours.

On one occasion in grade 11, in response to some particularly horrendous abuse from Drago, Kevin put a fish head into Drago s school bag. Drago found the fish and blamed Kevin. As a result, Drago started to hit Kevin as hard as he could every time he passed him. As a result, the mere sight of Drago would make Kevin flinch in preparation of the contact.

One Friday night, a year after they had both finished Year 12, Kevin headed out to Civic, in the centre of Canberra. Recently Kevin had made a habit of standing outside of nightclubs, wondering what it would be like to be inside, with friends.

Kevin is armed with a knife that he habitually carries around. This was a result of the abuse he had suffered at the hands of his father and Drago and he had promised himself he would never put up with being a victim to such abuse again.

Standing there in Civic on this night, Kevin spots Drago in line with his friends waiting to enter Hammered nightclub. Before he can turn to leave, Drago sees him and yells out: Oi garbage eater, you stink. Get lost. You are making me feel sick.

Kevin freezes and doesn t move. Drago leaves the line and walks towards Kevin repeating his demand: I said get lost garbage eater! Drago then raises his fist as if to hit Kevin and Kevin flinches awaiting the blow. But Drago doesn t punch Kevin but just drops his fist down, laughs and says: What a big girl. Go home garbage girl and play with your dollies.

With memories flooding through his head, Kevin reacts, screaming, he reaches for his knife, steps forward and stabs Drago with great force. After the first stab, Drago freezes, in shock. After being stabbed a second time Drago ran onto the street and was struck by a car travelling on the wrong side of the dual carriageway road in blatant disregard for the road rules. The driver of this vehicle was trying to impress the partying crowd.

Drago is rushed to hospital but dies a short time later. Despite documenting a nasty stab wound, the autopsy report indicates that the cause of death was the impact with the vehicle. Kevin declines to participate in a record of interview and is charged with murder.

Discuss and analyse the charge against Kevin, including any possible defences. Do you think a murder will be successful established on the facts?

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