Unlawful Striking Causing Death - Queensland

Unlawful Striking Causing Death

Sections 314A Criminal Code (Qld)

Get informed about the law, defences, and penalties in Queensland

Unlawful striking causing death is a serious criminal offence. In Queensland, punishment for unlawful striking causing death carries a maximum penalty of life imprisonment. Introduced to target the prevalence of ‘coward punch’ deaths, it removes what were common defences in cases where it is alleged the person killed was struck to the head or neck.

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Striking Causing Death

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Striking Causing Death

Anderson Legal defends individuals facing criminal allegations relating to violent offences and misconduct.

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Unlawful Striking Causing Death Charges

Before you can properly defend yourself against an allegation of any kind, you need to understand it.
This section deals with the following:
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Unlawful Striking Causing Death Charges

Before you can properly defend yourself against an allegation of any kind, you need to understand it.
This section deals with the following:
Criminal Defence Image

Queensland Law

Section 314A Criminal Code (Qld)

Section 314A of the Criminal Code (Qld) makes unlawful striking causing death an offence in Queensland. The law states:

314A Unlawful striking causing death

(1) A person who unlawfully strikes another person to the head or neck and causes the death of the other person is guilty of a crime.

Maximum penalty—life imprisonment.

(1A) The Penalties and Sentences Act 1992, section 161Q states a circumstance of aggravation for an offence against this section.

(2A) An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer.

(2) Sections 23(1)(b) and 270 do not apply to an offence against subsection (1).

(3) An assault is not an element of an offence against subsection (1).

(3A) For subsection (1), the striking of another person is unlawful unless it is authorised or justified or excused by law.

(4) A person is not criminally responsible for an offence against subsection (1) if the act of striking the other person is—

(a) done as part of a socially acceptable function or activity; and

(b) reasonable in the circumstances.

(5) If a court sentences a person to a term of imprisonment for an offence mentioned in subsection (1), the court must make an order that the person must not be released from imprisonment until the person has served the lesser of—

(a) 80% of the person’s term of imprisonment for the offence; or

(b) 15 years.

(6) Subsection (5) does not apply if the court sentences the person to—

(a) a term of imprisonment for life; or Note— See the Corrective Services Act 2006, section 181 for the parole eligibility date for a prisoner serving a term of imprisonment for life for an offence mentioned in subsection (1).

(b) an indefinite sentence under the Penalties and Sentences Act 1992; or Note— See the Penalties and Sentences Act 1992, section 171 for the time of the earliest review of an indefinite sentence being served by a prisoner serving an indefinite sentence for an offence mentioned in subsection (1).

(c) a term of imprisonment and makes either of the following orders under the Penalties and Sentences Act 1992 for the person—

(i) an intensive correction order;

(ii) an order that the whole or a part of the term of imprisonment be suspended.

(7) In this section—

causing means causing directly or indirectly.

function or activity includes a sporting event.

strike, a person, means directly apply force to the person by punching or kicking, or by otherwise hitting using any part of the body, with or without the use of a dangerous or offensive weapon or instrument.

Section 161Q of the Penalties and Sentences Act 1992 refers to the ‘serious organised crime circumstance of aggravation’, which mandates a significant mandatory minimum imprisonment in addition to any other penalty. It targets people who commit an offence of manslaughter in association with being a criminal organisation participant.

Main Purpose: ‘Coward-Punch’ Homicides

Section 314A was introduced into the Criminal Code (Qld) by the Safe Night Out Legislation Amendment Act 2014 (Qld). The Explanatory Notes for the law explained its purpose:

The creation of the new offence of unlawful striking causing death is to principally address the ‘coward-punch’ homicide cases.

The new offence will fill a legislative gap and ensure that the community is protected from such cowardly acts of violence. The new offence of unlawful striking causing death precludes an accused from attempting to argue that although the strike was deliberate and wilful, the death of the victim was an ‘accident’.

Proof of Unlawful Striking Causing Death

For every criminal charge in Queensland, there are ‘elements’ that the prosecution must prove beyond a reasonable doubt. Failure to prove just one element means the person charged must be found not guilty. Sometimes there will be an alternative offence that a person may then be found guilty of instead if proof of the primary charge fails.

There are different ways elements may be expressed, depending on the issues in a given case. However, in all cases, for a person to be convicted of unlawful striking causing death, it is necessary for the prosecution to prove:

  1. The person charged struck the deceased to the head or neck;
  2. The striking was unlawful;
  3. The striking caused the death of the deceased; and
  4. The striking was not done as part of a socially acceptable function or activity that was reasonable in the circumstances.

The word ‘unlawfully’ means that the act or omission of the defendant causing the death is contrary to law and is not otherwise authorised, justified or excused.

In cases where multiple defendants are charged, Queensland law makes it possible for more than one person to be found guilty of the same offence. For instance, a person may be found guilty if they aided or encouraged another person to do the act that causes death.

In reviewing an individual case, a criminal lawyer’s work often begins with a careful analysis of the evidence to determine the strengths and weaknesses of the prosecution case and, in particular, its ability to prove each element of the offence.


Possible Defences

The ‘presumption of innocence’

When people think about a ‘defence’ to a charge, such as unlawful striking causing death, they are generally thinking about what makes them ‘not guilty’ of the offence. However, it is for the prosecution to prove they are guilty – and to do so beyond a reasonable doubt. The presumption of innocence means that the defendant carries no onus of proof. What that means in practical terms is that it is for the prosecution to disprove any defences raised on the evidence.

For a charge of unlawful striking causing death, the prosecution must prove the elements of the offence beyond reasonable doubt. However, it must also exclude all defences that may apply beyond reasonable doubt. Of course, a defendant may give or call evidence that points to their innocence. The decision to give or call evidence does not shift the onus of proof away from the prosecution.

How are defences raised on the evidence?

A defence may be raised on the evidence of both the prosecution and the defence. That is, people who give witness statements to police may indicate that an event occurred accidentally, or a person appeared to act in self-defence. Generally speaking, the prosecution has an obligation to call all material witnesses at a trial – even those unfavourable to its case. Alternatively, a person charged with an offence may also call their own witnesses at a trial, which may provide the basis for a defence to be raised.

One of the important roles of a criminal lawyer is to identify, as early as possible, the relevant defences that may apply in a given case. The reason it is important to do it as early as possible is to ensure relevant witnesses are found while matters are freshest in their mind, or to prevent other evidence from being lost or destroyed.

Common defences for ‘unlawful striking casuing death’

The law requires the prosecution to prove that the unlawful striking causing death was done ‘unlawfully’. That means if the prosecution cannot disprove the act or omission is not excused by law, the person charged must be found not guilty. While Queensland law contains man defences to criminal charges, many are excluded for a charge of unlawful striking causing death. Common defences that may apply to the charge include:

  • Defence of another
  • Insanity
  • Mistake of fact
  • Self defence
  • Unwilled act

Amongst the most important advice a lawyer can provide is whether or not a defence applies to an individual case. In some cases, multiple defences may apply. In others, no defence may be considered viable. Certain defences cannot operate together. For this reason, anybody facing a charge of manslaughter should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.

Excluded defences for ‘unlawful striking causing death’

In Queensland, the same defences do not apply to every offence. Certain defences are qualified or excluded based on the elements that may apply. For the charge of unlawful striking causing death, two critical of defences are excluded. The defences of accident under section 23(1)(b) of the Criminal Code (Qld) and prevention of the repetition of an insult under section 270 of the Criminal Code (Qld) do not apply. Also, given the law also specifies that ‘assault’ is not an element of the offence, then the defence of provocation under sections 268 and 269 of the Criminal Code cannot apply.

The defences excluded for unlawful striking causing death charges is deliberately designed to make it harder for people to escape criminal liability, particularly in those cases that fit within the description of a ‘coward punch’.


Possible Penalties

Maximum Penalty

Under section 314A of the Criminal Code (Qld), the maximum penalty for unlawful striking causing death is life imprisonment.

Minimum Penalty

Generally, there is no minimum penalty that applies to a charge of unlawful striking causing death. However, if a person is convicted of the offence and the circumstance of aggravation that the offence was committed as a criminal organisation participant, then the following minimum penalty applies:

  • When a person is convicted of committing the offence and the serious organised crime circumstance of aggravation applies, 7 years imprisonment is automatically imposed cumulatively on the sentence the court decides. The 7 years imprisonment must be served wholly in prison, on top of whatever other penalty is otherwise required to be served.

Sentencing in Queensland

For a charge of unlawful striking causing death, the Penalties and Sentences Act 1992 (Qld) sets out a range of relevant sentencing considerations, including that the principle that imprisonment should be imposed as a last resort does not apply. For a homicide offence like manslaughter, the law states that the court must have primary regard to the following considerations:

  • the risk of physical harm to any members of the community if a custodial sentence were not imposed;
  • the need to protect any members of the community from that risk;
  • the personal circumstances of any victim of the offence;
  • the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;
  • the nature or extent of the violence used, or intended to be used, in the commission of the offence;
  • any disregard by the offender for the interests of public safety;
  • the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;
  • the antecedents, age and character of the offender;
  • any remorse or lack of remorse of the offender;
  • any medical, psychiatric, prison or other relevant report in relation to the offender;
  • anything else about the safety of members of the community that the sentencing court considers relevant.

If the offence is classified as a ‘domestic violence offence’, then the court will treat that as an aggravating factor unless exceptional circumstances are shown. Due to the number of issues that can aggravate or mitigate the punishment imposed by a court, experience shows that the earlier a person facing a charge obtains sound advice from an experienced lawyer, the better their chance of securing the best outcome possible for their situation.

Possible Outcomes

In R v Heke [2019] QCA 93, a sentence of 6 and a half years imprisonment with parole eligibility after serving 80% of the sentence was imposed following a trial where the defendant was acquitted of manslaughter but convicted of unlawful striking causing death. The defendant applied to appeal his sentence, arguing that the penalty was manifestly excessive, essentially arguing that the penalty for unlawful striking causing death ought to have been noticeably reduced as compared to what may have been imposed had he been convicted of manslaughter. The Queensland Court of Appeal rejected the argument, stating at paragraph [40]:

The applicant’s argument proceeds on the assumption that the offence of manslaughter under s 300 is a more serious offence than a conviction for unlawful striking causing death pursuant to s 314A. That assumption must, however, on the proper construction of the Criminal Code be rejected. Both sections 300 and 314A carry a maximum sentence of life imprisonment. Indeed, the inclusion by s 314A(5) of a necessity to serve 80 per cent of the term of actual imprisonment evinces the statutory intention that unlawful striking causing death pursuant to s 314A may be a more serious offence than manslaughter as the “80 per cent rule” is akin to an automatic declaration of the offence as a “serious violence offence”. However, that is balanced by s 314A(6) which expressly preserves a non-custodial sentence as a sentencing option.

Ultimately, for the purposes of sentencing, the Queensland Court of Appeal in R v Heke [2019] QCA 93 concluded at paragraph [41] that “a s 314A offence ought to be considered as serious as a manslaughter offence.”

In some cases, a charge relating to unlawful striking causing death may be substituted for, or charged in addition to, other homicide offences. The prosecution may determine that a more or less serious charge may be appropriate, based on the evidence. Related crimes include:


Expert Criminal Defence

Although based in Brisbane, Anderson Legal is frequently engaged to defend people facing criminal allegations across Queensland. If you are dealing with an allegation relating to unlawful striking causing death and need advice and representation, Anderson Legal offers comprehensive criminal defence services for its clients. This includes:

  • providing advice relating to allegations made or documents served on our clients;
  • identifying the strengths and weaknesses of the case alleged against our clients;
  • advising clients on options relating to obtaining evidence, including expert evidence;
  • communicating on behalf of its clients with police, courts, and others;
  • resolving, where appropriate, criminal charges through negotiation;
  • representing clients in trials and setnences before all courts; and,
  • filing and litigating appeals against wrongful convictions and unjust sentences.

This firm places an emphasis on providing clear guidance so that our clients are placed in a real position to make informed decisions about their options and their preferred path forward. Anderson Legal provides clear, transparent disclosure of its legal costs at every stage.

  • Andrew Anderson, Legal Director, is an award-winning lawyer who has been independently described by the Courier Mail as “one of the best legal minds” and a “leading corporate and white-collar crime lawyer” (16 December 2021).
  • Having successfully represented litigants in the High Court of Australia, Queensland Court of Appeal, Royal Commissions, and multiple other courts dealing with trials and other hearings, Andrew Anderson has a demonstrated record of success in complex and difficult cases.
  • Prior to operating a law firm, Andrew Anderson worked as a Principal Crown Prosecutor in Queensland and barrister in private practice at 8 Petrie Terrace Chambers in Brisbane. His depth of courtroom advocacy experience ranges from straightforward cases right through to complex homicide trials and appeals.
  • Anderson Legal is a law firm that is dedicated to the best ideals of the legal profession. Seeking to exceed client expectations and fighting for justice is an everyday pursuit.

Limitations on general information

Each legal issue is unique. The information on this page and website cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature if you want to learn more about unlawful striking causing death charges, particularly as it relates to anybody facing an issue of this kind in Queensland. Anybody dealing with an unlawful striking causing deathcharge ought to obtain expert legal advice and guidance as soon as possible.

No content accessible on the website is created to provide specific legal answers or advice. It is designed to provide general information about legal matters and related concepts. It should not be used as, or in substitute of, your own legal advice or other advice as appropriate.

To the extent allowed by law, no warranty, condition, or guarantee is provided in relation to the accuracy or reliability of any information contained on this site. Content may be changed from time to time without notice.

If you face a charge relating to unlawful striking causing death, contact Anderson Legal. This firm provides expert advice and representation for people needing assistance to defend themselves against unjust accusations.

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