Murder

  

 My uncle was charged with murder. We know that there are cases where the jury finds a person not guilty of murder but guilty of manslaughter. How can this be done?

The first thing to know is that the police have to convince the jury – in any police matter – ‘beyond reasonable doubt.’ Unless the accused pleads guilty, the police usually have to have witnesses to support the evidence that the accused had the intention and the awareness to kill. In all circumstances, defences would have to be either there was no intention and/or there was no awareness. If the jury accept the evidence that the accused did not have the intention to murder, they may find him guilty of manslaughter – and sometimes find him not guilty at all. A case in point is when I handled the murder of someone who was provoked. When there is intense provocation it is possible that the accused may lose control of his mind, even temporarily, and commit murder. I used the defence of ‘dissociative reaction to provocation’. My expert witness, a psychiatrist, defended under cross-examination that it is possible that under the extreme provocation the accused would not have the necessary awareness and intention to fully understand and know what he was doing. My client was found not guilty of murder but guilty of manslaughter. My client did three years instead of some twenty five years in jail.

Marriage rights

MARRIAGE RIGHTS: I’ve been married for nearly a year and a half now and my husband wants to be more adventurous in his sex with me – doing all kinds of things that I feel very uncomfortable with. He says now that we’re married he can do what he likes with me. Some things he wants to do are against my religious beliefs.  At least once he forced me to have sex when I didn’t want to.  Do I have any rights about this?

 

These ‘forced-sex’ activities in marriage have come before the courts a number of times. It is a crime in many of the States for a husband to force sex onto his wife – if the wife does not consent. This means that in certain circumstances a husband in marriage can be charged with raping his wife. There is a misunderstanding among some men who think that just because they are married they have absolute ‘conjugal’  (marriage) rights to have sex anytime, anywhere and any place and without consent. Sex without consent is a crime inside and outside of marriage. I suggest that you and your husband obtain the services of a professional marriage counselor who can help you to assert your rights in these matters. But be warned; if your husband is not responsive – not prepared to respect your rights and thinks he can abuse his position as a husband against the law, you will have to decide whether to stay in the marriage.  Be careful: if you do not complain it could be construed you are consenting to his demands – a creative defence lawyer for the husband could put up the defence of estoppel –  if you’re not complaining, you’re consenting.

Police radar

BOOKED FOR SPEEDING. I was booked by police radar for speeding – less than 15k over the limit, but I am one hundred per cent sure I was not going faster that the speed limit for the area where I was driving. There were two police officers manning the radar, how on earth can I prove that I was not exceeding the speed limit?

 

I’d say the cheapest way is to pay the fine even if you are right. However, if you are determined to take on the police what you have to do is this: get written confirmation by the experts that your speedometer is recording correctly. Ask your lawyer to pursue the matter, which means he will have to find out the make and model of the radar the police were using at the time. Your lawyer would have to study the technical tests of the radar for accuracy and to see if there is marginal error allowed. He’d also have to find the age of the radar equipment used and see if over time the radar deteriorates in accuracy.  Your lawyer would have to prove only on the balance of probabilities – more likely than not – that there is a basis to doubt the accuracy of the radar. Without any guarantees of winning the case, it will cost at least a couple of thousand dollars to pursue the matter.

NEGLIGENCE

NEGLIGENCE – THIRD PARTY: My sister was seven months pregnant when she had a car accident. She was injured, but not seriously. Later when the baby was born the baby had injuries. The specialists told her that injuries could have been a result of the accident. Can she claim anything from the insurance?  

There is a precedent similar to the circumstances you mentioned – the Turner case. In that case the child was born with serious cerebral problems when it was proved on balance of probabilities that the child’s injuries were caused while still in the womb. This case took many years to complete but the Court awarded the injured child one million dollars damages against the (the mother) – the insurance even though the mother was negligent and caused the accident. The critical thing is for the medical specialists to confirm that the injuries the child sustained were received directly or indirectly from the motor vehicle accident. In an almost similar case more recently the child was unable to get compensation because the evidence was not convincing enough to show that the injuries were caused by the accident but rather through its birth.