By: Andrew Anderson
Published: 27 January 2021
Published: 27 January 2021
By: Andrew Anderson
Unlawful Striking Causing Death – 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.
Each legal issue is unique. This information cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about the offence of unlawful striking causing death.
If you face an unlawful striking causing death charge or are a friend or family member of somebody who does, contact Anderson Legal. This firm provides expert advice and representation. Andrew Anderson is a former Principal Crown Prosecutor and is recognised as a leading criminal defence lawyer in Queensland. He has substantial experience in assisting individuals with homicide offences. In 2019, Andrew Anderson represented Steven Fennell in his high-profile acquittal for murder in the High Court of Australia.
- Unlawful Striking Causing Death – Queensland
- Queensland Law
- Possible Defences
- Penalties & Sentences
- Significant Cases
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:
- The person charged struck the deceased to the head or neck;
- The striking was unlawful;
- The striking caused the death of the deceased; and
- 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.
The ‘presumption of innocence’
When people think about a ‘defence’ to a charge, such as unlawful striking causing death, they 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 have 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 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
- 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’.
Penalties & Sentences
Under section 314A of the Criminal Code (Qld), the maximum penalty for unlawful striking causing death is life imprisonment.
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.
In R v Heke  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 :
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  QCA 93 concluded at paragraph  that “a s 314A offence ought to be considered as serious as a manslaughter offence.”
The law relating to unlawful striking death is influenced by a number of significant legal decisions, including from the High Court of Australia. These decisions, among others, shape the advice of lawyers who are called to represent individuals charged with unlawful striking causing death.
High Court of Australia
Although decided well before the introduction of section 314A of the Criminal Code (Qld), the High Court decision of Kaporonovski v The Queen  HCA 35, is significant and explains why “assault” not being an element of the offence is so important. In that case, it was decided that the defence of provocation did not apply to a charge of in which “assault” is not an element. The reason for the decision is that sections 268 and 269 of the Criminal Code, which relates to the defence of provocation in Queensland, applies only to offences of which ‘assault’ is an element.
Queensland Court of Appeal
In R v Renata; ex-parte Attorney-General  QCA 356, the Queensland Court of Appeal considered an appeal by the Attorney-General (Qld) against the inadquacy of a sentence imposed for unlawful striking causing death. The appeal was allowed and the sentence was increased to 9 and a half years imprisonment with parole eligibility after serving 80% of the sentence following a plea of guilty in the Supreme Court. In doing so, Justice Gotterson, with whom Justices Philippedes and Henry agreed, explained the comparability between penalties for manslaughter and unlawful striking causing death between paragraphs  and :
 Putting aside the Explanatory Notes, I turn to enquire whether from the language of s 314A and the circumstances in which it was enacted, there is a basis for drawing conclusions as to the degree of relevance sentences for manslaughter are intended by the legislature to have for sentencing for an offence against that provision.
 First, I would observe that the exclusion of the availability to a person charged under s 314A of certain defences that are open when manslaughter is charged, does not, to my mind, signal an intention that manslaughter sentences are to have no, or a diminished, relevance to sentencing under s 314A. There is no logical reason for supposing that the exclusion was intended to have that consequence.
 Next, on the face of it, it might have been thought that the provision in s 314A(5) requiring that the lesser of 80 per cent of the sentence imposed and 15 years be served, indicates that a different sentencing regime, independent of that for manslaughter, is to be established by courts for a s 314A offence. I do not think that that is so for several reasons.
 In the first place, the provisions of s 314A(6), particularly those relating to an intensive correction order and suspension of a term of imprisonment, suggests that a wide sentencing regime similar to that for manslaughter is to prevail. Secondly, the same maximum penalty applies for a s 314A offence as for manslaughter. Thirdly, no minimum penalty has been enacted for a s 314A offence. Lastly, the requirement in s 314A(5), by its own operation, imposes an indispensable measure of severity that does not apply to sentences for manslaughter. It is unlikely, in the absence of an express indication to that effect, that a new and different penalties regime was envisaged for an offence against s 314A that would compound the severity.
 It follows, in my view, that sentences for manslaughter have, and are intended to have, a relevance for sentencing under s 314A. At the risk of stating the obvious, it is only manslaughter cases that are factually similar to the s 314A offence at hand that could have a potential relevance in this regard.
 A second significant qualification arises from the enactment of the separate s 314A offence. That legislative step reflects an increasing public consciousness of, and concern about, deaths caused by blows to the head or neck. Such consciousness and concern ought themselves be reflected in sentencing for s 314A offences. That consideration necessarily limits the assistance that may be derived from manslaughter sentences which were imposed at a time before the increased public consciousness and concern became manifest.
 For these reasons, I consider that, as a matter of principle, subject to these two qualifications, a sentencing judge may have regard to sentences imposed for manslaughter and may seek to derive from them a starting point for sentencing for a s 314A offence.
The following homicide offences are possible charges that may be substituted for, or charged as an alternative to, a charge of unlawful striking causing death: