昨日紐省紐卡素區發生了入屋爆竊案, 竊匪遇上屋主及他的朋友, 發生了扭打, 屋主制服了竊匪後報警, 警方到場時竊匪已昏迷, 醫院證實他腦幹死亡, 幾小時後關掉維生儀器便死亡了。以下摘自報章的報導。
Mr Slater-Dickson, 34, died on Sunday, a day after he was allegedly discovered breaking into a house in Cleary Street at Hamilton.
Mr Batterham is alleged to have discovered Mr Slater-Dickson inside the home before a fight broke out.
Police said Mr Slater-Dickson was "detained' by Mr Batterham and a friend, 32.
But a short time later Mr Slater-Dickson lost consciousness.
He had suffered serious injuries, which the family said included a broken neck, and his life support was switched off at 11.30am on Sunday.
Mr Slater-Dickson's mother, Beryl Dickson, said her son was a "big boy" and it must have taken "four or five people to hold him down".
418 Self-defence-when available
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,and the conduct is a reasonable response in the circumstances as he or she perceives them.
Mr Batterham is alleged to have discovered Mr Slater-Dickson inside the home before a fight broke out.
Police said Mr Slater-Dickson was "detained' by Mr Batterham and a friend, 32.
But a short time later Mr Slater-Dickson lost consciousness.
He had suffered serious injuries, which the family said included a broken neck, and his life support was switched off at 11.30am on Sunday.
Mr Slater-Dickson's mother, Beryl Dickson, said her son was a "big boy" and it must have taken "four or five people to hold him down".
(extracted from Sydney Morning Herald 28/3/2016)
死者有幾次前科, 為爆竊坐過幾次監, 剛在一件判監5年的案上訴得直而出獄(我在澳洲法律網站找不到他的上訴判辭)。死者家人否認他爆竊, 反指是應兇手所邀入屋, 實際發生甚麼事要日後才會知道。假如死者真的入屋爆竊遇到反抗而被打死, 殺人者會被控謀殺罪嗎? 那又未必。先看紐省的刑事條例1900第418條:
CRIMES ACT 1900 - SECT 418
Self-defence-when available
Self-defence-when available
418 Self-defence-when available
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,and the conduct is a reasonable response in the circumstances as he or she perceives them.
可適用於本案的會是S418(2)(d), 甚或包括2(a)。自衛殺人情有可愿, 只要在當時的環境下所使用的自衛武力相對於遇到的武力是相稱(proportional)及合理的。本案死者連頸也被打斷了, 而屋主似乎沒有受傷, 他要以自衛作抗辯就不容易了。表面判斷已屬使用了不合理及過份武力。本案當然要驗屍找出死因, 若果死者不是因傷致死, 而是死於其他疾病, 控罪就會減輕。
香港的法例中並沒有訂明這種自衛的抗辯條文, 自衛作為抗辯源自普通法, 即由以前的案例產生出來, 也沒有紐省的法例這樣詳盡, 主要是講 "the defensive response must be proportional to the attack or imminent threat of harm". 自衛的法律概念也沒有被動的要求, 先發制人也可屬自衛行為, 受到襲擊也不一定要先退卻閃避。當然, 受襲而反擊究竟屬自衛抑或還手, 要視乎所用武力的程度及環境因素。如果有人衝向你揮拳來打你, 你先發制人斬他兩刀, 當然就不能是自衛。還有, 「先撩者賤, 打死無怨」並不是正確的法律概念, 先撩者或先出手的人, 被打死了就變成謀殺案, 也有可能是誤殺。如果像去年導遊打大陸團員, 團員死了, 驗屍裁定死於心臟病, 導遊最終被控襲擊罪。
標少，紐約梁彼得案地區檢察官正式宣佈建議判處梁彼得緩刑。香港有這樣的向法官建議嗎？KKC
回覆刪除香港的檢控官無權在判形前作判刑的建議。
刪除Dear Bill,
回覆刪除I am curious about proportionality issue of self-defense. I understand it should be fact-specific; however I still wonder whether the use of violence against a threat from the assaulter, instead of real harm, would be regarded as proportional. Say, for example, a burglar broke into a flat with a knife, and threatened to rape the homeowner wife. The husband went to the kitchen, grabbed a knife and stabbed the burglar to death. The burglar lost his life, and the victim couple physically suffered nothing. It sounds very reasonable to me for the husband to use all means to protect his wife. But is it (i.e. a threat) proportional in law?
PLK
Dear PLK,
回覆刪除It is a jury question. If you are in the jury, would you find the defendant guilty? I would find him not guilty. There is no hard and fast rule. I think in the United States, if the house owner shoots the burglar dead, he would also be acquitted. He probably would not be charged at the outset.
如果對方是偷竊 不是也可以符合2(C)嗎? 劍
回覆刪除Oh yes. But this case was a burglary case that is why emphasis is on the trespassing aspect.
刪除