Should Criminals Have Civil Rights?A WebDilemma for Law Students
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Bill was the owner of the local store and had suffered from a number of break-ins during the night. Wanting to stop the crimes from occurring, Bill waited in the shop each night armed with a baseball bat to apprehend the intruders. One night a person smashed the window of a door in the shop and entered the building. Bill crept up and attacked the intruder with the bat inflicting numerous serious injuries. Police charged the intruder, later known as Joe, with a number of stealing offences.
On hearing that Joe had been charged, one of his friends made a statement of claim saying that on a previous night in company with Joe, he had tripped over a number of boxes in the shop and had injured his back. He could not accompany Joe on the night in question.
Joe went to his solicitor, Mendem Cheap & Co, and was advised that because he was a trespasser, he did not have a leg to stand on. Anyway, people who commit crimes have no rights. See Wyong Shire Council v Shirt concerning the likelihood of risk arising and breach of duty of care.
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USEFUL LINKS |
AGAINSTR v Howe (1958) 100 CLR 448 – self defence – instinctive behaviour |
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INSTRUCTIONS
THINKAdvise Joe in relation to the tortious aspects of the injuries suffered in the shop and the advice of the solicitors. Advise Joe's friend of his chance of success. Do you know of anything that would shortly prevent any claim under the circumstances set out in the problem?
The Parliament of NSW is to bring legislation that prohibits persons who suffer injury in criminal matters from receiving damages.
Students should discuss the tort of assault and battery. The rule in relation to protection of property requires only as much force as is necessary. Students may raise the question of duty of care (Hackshaw v. Shaw). In relation to trespassers, there is no distinction between them and the ordinary person who, as a result of another's negligence, suffers injury (Australian Safeway Stores v. Zaluzna). Joe's friend would have to prove on the balance of probabilities that the boxes were negligently left in the shop and that it caused the injury. (The solicitor may be sued for negligent advice.) The relatationship of client and solicitor gives rise to a duty of care. People who commit crimes also have rights. An assault is any direct threat by the defendant that places the plaintiff in reasonable apprehension of an imminent contact with the plaintiff’s person either by the defendant or some other person or thing within the defendant’s control. (Trindade, FA, Intentional Torts: Some thoughts on assault and battery (1982) 2 OJLS 211-37 Oxford Journal of Legal Studies This document may need to be accessed in print form). Battery is a direct act of the defendant that has the effect of causing contact with the body of the plaintiff without the latter’s consent. Careless acts are dealt with under ‘negligence’.
Start by studying the information you find at each of the websites listed above. Decide what advice you would give Joe and his friend. Write down the reasons why you think this is the best answer to the WebDilemma question, based on the evidence you have found at the websites above. PAIRWhen you have decided on the best answer, go to your allocated wiki, and, with a partner or group attempt to: Gain consensus; OR develop a creative solution to the WebDilemma problem; or Challenge the logic of both sides of the argument. SHAREShare what you have decided with the rest of the class by creating a statement on the wiki showing your findings. |
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A WebDilemma Developed by Deb Murdoch, Charles Sturt University, Created on March 8, 2008.WebDilemma concept developed by Robert Parkes. |
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