Reasserting the place of objective tests in criminal responsibility: ending the supremacy of subjective tests

Article

Hemming, Andrew. 2011. "Reasserting the place of objective tests in criminal responsibility: ending the supremacy of subjective tests." University of Notre Dame Australia Law Review. 13 (1), pp. 69-112.
Article Title

Reasserting the place of objective tests in criminal responsibility: ending the supremacy of subjective tests

ERA Journal ID36726
Article CategoryArticle
Authors
AuthorHemming, Andrew
EditorsPower, Jane and Sidhu, Ava
Journal TitleUniversity of Notre Dame Australia Law Review
Journal Citation13 (1), pp. 69-112
Number of Pages44
Year2011
Place of PublicationFremantle, Australia
ISSN1441-9769
Abstract

This paper contends for a greater role for objective tests
on public safety grounds, and building on the measure of
objectivity contained in reckless murder at common law
and constructive murder in all Australian States, seeks
to redress the balance in favour of objective tests. The
argument is made for an objective test for recklessness
as the underlying fault element, based on the natural and
probable consequences test adopted in Director of Public
Prosecutions v Smith [1961] AC 290, which is similar to
objective ‘Caldwell’ recklessness where the defendant
does not foresee the relevant risk but a reasonable person
would have, following Caldwell [1982] AC 341. The paper
also advances the case for the adoption of purely objective
tests for provocation and self-defence, because the current
tests in Australia for both defences are confusing as they
combine subjective and objective elements.

Keywordscriminal responsibility; objective and subjective tests; Caldwell recklessness
ANZSRC Field of Research 2020489999. Other law and legal studies not elsewhere classified
480410. Legal theory, jurisprudence and legal interpretation
440205. Criminological theories
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Byline AffiliationsSchool of Law
Institution of OriginUniversity of Southern Queensland
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