Ricochet wrote:Trekkin,
I'm not a lawyer and as far as the law goes maybe the hallway or stair case within the building is as good as being inside his flat so that may change how the law sees the fact that he went outside, I don't know.
One of the other things that has been discussed in this thread is the use of equal force, and the fact he had knives while Mr Carr was unarmed does not translate to equal force, regardless of any perceived threat.
Cuskelly put himself in a silly situation.
He verbally threatened to cut the guys throat, then armed himself with a knife. Then he went outside.
That puts his whole argument of defence in doubt.
At the end of the day the fact he went outside saying he feared the door wasn't going to hold changes the situation, from a defensive one that could easily be viewed as aggressive depending on belief of his intent.
Both guys threatened each other, they both signalled intent to harm the other guy. The whole idea of castle doctrine is to defend yourself within your home, (most likely) against unknown intruders, which is a principal I totally agree with. However these guys are known to each other and have beef, and Cuskelly left his flat to confront Carr which changes everything, In my humble opinion which is often wrong but I don't mind being corrected.
OK, let's start from the beginning. Setting aside the retrial, on the charge of manslaughter, and its outcome based on evidence NOT presented at the first trial (and therefore NOT a factor at the court of appeals) on the charge of murder, and focus soley on the outcome of the appeal case. The findings of the appeal court are based on the principles of law, and if they were applied correctly in the first case.
"The "Castle Doctrine" is a long-standing American legal concept arising from English Common Law that provides that one's abode is a special area in which one enjoys certain protections and immunities, that one is not obligated to retreat before defending oneself against attack, and that one may do so without fear of prosecution."
The two important areas of the QLD Criminal Code are these;
Section 267 which states simply that,
Defence of dwelling
It is lawful for a person who is in peaceable possession of a dwelling, and any person lawfully assisting him or her or acting by his or her
authority, to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds—
(a) the other person is attempting to enter or to remain in the dwelling with intent to commit an indictable offence in the dwelling; and
(b) it is necessary to use that force.
And Section 6 (1) that states.
Civil remedies
(1) When by the Code any act is declared to be lawful, no action can be brought in respect thereof.
So to answer your first concern: "...as far as the law goes maybe the hallway or stair case within the building is as good as being inside his flat so that may change how the law sees the fact that he went outside, I don't know."
To "prevent or repel", in the liberal sense, would require you to meet the threat outside of your home. This is the finding of the appeal judges (plural) in paragraphs [23], [24], [25].
To your second concern: "One of the other things that has been discussed in this thread is the use of equal force, and the fact he had knives while Mr Carr was unarmed does not translate to equal force, regardless of any perceived threat."
Section 267 does not qualify (what force eg lethal/non lethal), nor quantify (how much force eg such/equal force). This is the finding of the appeal judges (plural) in paragraphs [26] [27] "
[27]The respondent's submission fails to recognise that s 267 does not require that the force used by an accused be no more than is reasonably necessary to make an effectual defence of his or her person against a would-be intruder. Further, if lethal force is used, the accused need not reasonably apprehend death or grievous bodily harm from the accused's assault in order to raise a defence under s 267. "
Section 267 is,by definition a Castle Doctrine, and irrespective of the finding of the retrial, that was based on evidence NOT presented at the first trial, the Supeme Court of QLD, Appeals Court upheld the princples of laws of that Doctrine when it set aside the conviction of murder and ordered a retrial.