Here’s a question for the proposed new qualifying exam: in law, can you attempt to kill a dead man?

The answer – in Victoria, Australia, at least – is yes (Queen v Darrington [2016] VSC 60 (29 February 2016)). Rocky Matskassy had people over to his landlord Steven Domotor’s house while Domotor was away. Domotor tried to evict him and a third man, Daniel Darrington, became involved. There was no doubt Darrington shot and killed Matskassy in a struggle for a gun he was holding, claiming it was an accident.

So far, so good. The jury acquitted Darrington of murder. Unfortunately, after the shooting, Darrington then went to Matskassy’s bedroom, found a small box of ammunition and reloaded the pistol. He went back to where Matskassy was slouched in the kitchen and shot him three times in the head.

He told the police this was to put him out of his misery. His defence to attempted murder was that, since the prosecution could not prove Matskassy was not already dead when Darrington shot him on the second occasion, he could not be convicted. The jury was not convinced. With a maximum of 25 years on offer, the judge sentenced Darrington to eight with a pre-parole minimum of five.

What other similar cases are there of convicting a person of an impossible crime? There’s an old American case People v Lee Kong where a man was convicted of firing through a hole in a ceiling, believing a policeman was standing there. He was not. Kong argued ineffectively he should not be convicted because it was impossible for him to commit the crime. (People v Lee Kong, 95 Cal. 666 (1892)).

In United States v Thomas (1962), a military court held that men who believed they were raping a drunken, unconscious woman were guilty of attempted rape, even though the woman was actually dead at the time

(13 U.S.C.M.A. 278 (1962)). The only case of any similarity I can think of here was the 1960 Pen Club murder trial when James Nash was tried for an assault on Selwyn Cooney in a fight in the club (pictured).

He had already been acquitted of Cooney’s murder and in a second trial was then convicted of assaulting him in the fight in which he was shot. Not quite the same thing but on the way. As for Darrington, there must be mileage all the way up to the High Court (and dozens of scholarly articles).

James Morton is a writer and former criminal defence solicitor

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