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Sunday, 7 June 2020

R.I.P. George Floyd - Black Lives Matter

Q:

Do you agree with the charges laid against the police officer who killed George Floyd in Minneapolis, Minnesota on 25th May 2020?

 

A:

I am in full agreement with both charges.


 Charge #1: 2nd Degree Manslaughter

Minnesota Statute 609.205 – there are five (5) categories of 2nd degree manslaughter, all of which carry a maximum prison sentence of ten (10) years or a $20,000 fine; however, this post will only focus on the offence applicable to the killing of George Floyd:

  • A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree…

(1)    by the person's culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another

 

Charge #2: 2nd Degree Murder (upgraded from 3rd degree murder)

Minnesota Statute 609.19 - there are two types of 2nd degree murder, both of which carry a maximum prison sentence of forty (40) years:

  •  Intentional Second degree murder by drive-by shooting is exactly as it sounds.
  •  Unintentional second degree murder has two subcategories:

(1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense** other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting; or

**[for this category to apply, first proving the felony offence of “manslaughter” is mandatory]

 (2) causes the death of a human being without intent to effect the death of any person, while intentionally inflicting or attempting to inflict bodily harm upon the victim, when the perpetrator is restrained under an order for protection and the victim is a person designated to receive protection under the order.

[This subcategory clearly doesn’t apply]


 Former charge – 3rd Degree Murder

Minnesota Statute 609.195 – there are two (2) categories of 3rd degree murder, both of which carry a maximum prison sentence of 25 years; however, this post will only focus on the offence applicable to the killing of George Floyd:

(a) Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life…

 The issue with the 3rd degree murder charge is proving that the defendant was, at the time of the incident, “evincing a depraved mind”. What exactly does this term mean? Well, in the Supreme Court of Minnesota case of Statev. Mytych 194 N.W.2d 276 (1972), the judges stated that “a mind which has become inflamed by emotions, disappointments, and hurt to such degree that it ceases to care for human life and safety is a depraved mind.”

 I don’t think it will be possible to prove this aspect of the charge for Chauvin, although there have been comparisons to the 2019 conviction of former Minneapolis police officer, Mohamed Noor, for 3rd degree murder and 2nd degree manslaughter in the 2017 shooting death of Australian-born, Justine Ruszczyk a month before her wedding. I maintain that the two circumstances are vastly different.

#JusticeForGeorgeFloyd

#BlackLivesMatter

 

Friday, 29 May 2020

The Illegality Defence


Q:
If I am right in a vehicular accident, but didn’t realise that my insurance policy had lapsed, can I sue the other driver for damages?


A:
Ex turpi causa non oritur actio ("from a dishonorable cause, an action does not arise") is a brocard (legal Latin terminology) that refers to the fact that no action may be founded on illegal or immoral conduct. 


Driving without insurance is illegal, contrary to the Motor Vehicles Insurance
3. (1) Subject to this Act, it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle or licensed trailer on a public road unless there is in force in relation to the user of the motor vehicle or licensed trailer by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Act.

(2) If a person acts in contravention of this section, he is liable to a fine of seven thousand, five hundred dollars and to imprisonment for two years, and a person convicted of an offence under this section shall (unless the Court for special reasons thinks fit to order otherwise and without prejudice to the power of the Court to order a longer period of disqualification) be disqualified for holding or obtaining a driving permit under the Motor Vehicles and Road Traffic Act for a period of three years from the date of the conviction.

As a result, if the defendant relies on this defence, your claim will be unsuccessful because had you not acted illegally by driving without insurance, the accident would not have occurred.  

Monday, 25 May 2020

Consumer rights: no return, no refund


Q:
Is a "No Refund" or "All Sales Final" store policy legal in Trinidad & Tobago?


A:
  • *Section 15(1) - Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description
  • *Section 16(2) Where the seller sells goods in the course of a business, there is an implied condition that the goods supplied under the contract are of merchantable quality, except:
    • (a) as regards defects specifically drawn to the buyer’s attention before the contract is made; or
    • (b) if the buyer examines the goods before the contract is made, as regards defects which that examination ought to reveal.
  • *Section 20(d)(ii) - A time frame should be given for returns, but if there is none, the customer has a right to return within a "reasonable time".

  • *Section 8(1)(a) - a seller cannot contractually exclude or restrict liability for defective goods, and/or
    • (b) negligence of a person concerned in the manufacture or distribution (e.g., delivery drivers) of the goods