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7 Pages Essays / Projects Year: Pre-2021 Previously uploaded under: LLB130 - Criminal Law and Process A

Essay Question and Facts: Peter and Meg Rose lived in country NSW with their three children. One of their sons, Tom, aged 12, had severe autism – a lifelong neurodevelopmental disorder. Over the years, the family found Tom’s behavior increasingly difficult to deal with. Tom was often found rocking backwards and forwards sometimes for hours; he played repetitively with one toy car that he had since he was very young. He was inflexible in his adherence to a particularly lengthy morning routine to get ready for school – any divergence from the routine sent him to his room where he would rock backwards and forwards and couldn’t be stopped. Tom had problems being toilet trained and regularly soiled himself. He had a particular sensitivity to loud noises (eg a hairdryer or vacuum) which again could set him off and lead him to throw himself around until the noise stopped. He also had an aversion to leaving the house which made daily life and routines very difficult. He had begun to bite his fingernails until they bled; to rub his feet on the floor until they blistered and bled; and at night he would get up and walk around the house and not sleep. Tom was a thin child, weighing only 25 kilograms. Mrs Rose had progressively left the responsibility for Tom to her husband Mr Rose. One of Mr Rose’s ‘techniques’ for dealing with Tom when he was ‘unsettled’ was to take him out to the shed. Mr Rose would strap his arms and legs with tape to a chair and use a belt to restrain his waist. Sometimes, if Tom did not calm down, Mr Rose would put him under a cold shower. On one occasion, Mr Rose used the cold-water ‘technique’ and Tom became unconscious. After ‘slapping’ him and pouring more cold water on him in an attempt to wake him, Mrs Rose took him to the hospital. Tom recovered after a two day stay. The doctors had serious concerns over Tom’s condition including what had happened that night. They indicated to his parents that he was very underweight and, therefore, any future exposure to very cold conditions risked permanent and serious health risks. On Friday, 26 June 2015, Mr Rose arrived home at 9pm after working late. When he arrived home, Mrs Rose told him that Tom was very unsettled. Mr Rose became angry saying, ‘that child has got to go’. He then picked Tom up roughly and Tom began to scream. Mr Rose took Tom out to the shed and strapped him to the chair with tape and a belt. When Tom wouldn’t stop struggling, Mr Rose punched him to the side of the face. The force of the blow led Tom and the chair to tip sideways and fall to the floor. Mr Rose then picked Tom up, still strapped to the chair, and took him to the shower and left him with cold water running for 5 minutes. Tom became quiet and so Mr Rose removed him from the shower and left him in the shed still strapped to the chair. Mr Rose returned to the house, ate his dinner, and went to bed. In the early hours of the morning, on 27 June 2015, Tom’s younger sister came running into the house screaming about Tom. Mrs Rose ran to the shed and tried to shake Tom awake. He would not wake up. Mrs Rose called to her eldest child to dial 000. Paramedics arrived in approximately 20 minutes and attempted to resuscitate Tom but after a short period he was pronounced dead. Police arrived a short time later. Police observed that Tom was dressed in damp tracksuit pants, a T- shirt and a jumper. These had been cut open to perform resuscitation. Mr Rose was arrested and later charged with murder under s 18 of the Crimes Act 1900 (NSW). Bail was refused. Instructions You are a solicitor working for the NSW Office of the Director of Public Prosecutions and are reviewing the police brief in relation to Peter Rose. You are asked to advise the DPP whether, on the available facts, you believe the Crown can make out a homicide charge against Mr Rose. In your answer you should: - explain the elements of each relevant head of homicide, providing relevant authority; - explain whether, on the available facts, the Crown can prove each head of homicide against Mr Rose; and - conclude by recommending the course of action the DPP should take (ie which charge should be prosecuted). NB: Do not consider any possible criminal liability of Mrs Rose. A post mortem examination found that the primary cause of death was hypothermia. The autopsy also revealed that Tom had suffered a subdural haematoma to the brain. In putting together the brief of evidence in Mr Rose’s matter, Police obtained evidence from the nearest weather station that the maximum temperature on 26 June 2015 was 15 degrees which fell to a low of 2 degrees by 10pm. This was consistent with average temperatures for the area in which the Rose family lived at this time of the year.


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