Casesss - case summaries of all cases used in criminal law PDF

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Final Exam – Case Notes Voluntariness Ryan (1967) 121 CLR 205 Barwick CJ, Menzies J, Windeyer J • The consciousness of the accused whilst carrying out the act must be considered. Murray [2002] HCA 26; 211 CLR 193 Gummow and Hayne JJ • Physical acts/movements should be looked at as a whole series of events when considering voluntariness. Whitfield [2002] NSWCCA 501 • The whole set of movements need to be considered (in the context of felony murder). Ugle [2002] HCA 25 211 CLR 171 • Appellant was holding knife while defending themselves from victim and knife entered victim’s body; must consider if one’s act occurred “independently of the exercise of his will.” Jiminez (1992) 173 CLR 572 ! • A person cannot be liable for an act they committed while asleep, but the time preceding the act is considered e.g. falling asleep at the wheel and killing a passenger. Gillett [2006] NSWCCA 370 • Accused had epileptic fit which resulted in fatal collision; he was aware of his medical condition and knew he was at risk of having a seizure which would cause him to lose control of the car, and therefore his driving was the cause of the accident. Co-incidence between AR and MR Meyers (1997) 147 ALR 440 • The act and intent must coincide – accused was charged with manslaughter as he had no intent to kill victim when he pushed her out of the way to get phone. Thabo Meli [1954] 1 All ER 373 • Defendants can still be found guilty even if they don’t have the MR. Le Brun [1992] 1 QB 61 • Where the unlawful application of force and the eventual act causing death are a part of the same sequence of events and same transaction of events does not serve to exonerate the defendant from liability. Fagan [1969] 1 QB 439 • The MR can be formed during the continuing act (AR). Potisk [1973] SASR 389 • The defendant was not aware of taking a large sum of money, therefore there was no coincidence between dishonesty and the act of taking money. Offences Against the Person: Common law assault Darby v DPP (NSW) (2004) 61 NSWLR 558 (NSWCCA) Giles JA • Common law assault is the act by which a person intentionally or perhaps recklessly causes another person to apprehend the immediate infliction of unlawful force. • An assault is an act causing another person to apprehend the immediate infliction of unlawful force. Edwards v Police (1998) 71 SASR 493 Debelle J • In cases where there is no actual physical contact the AR is an act of the defendant raising in the mind of the victim, the fear of immediate violence to him/her, which is the fear of any unlawful physical contact, the MR is the defendant’s intention to product that expectation in the victim’s mind. • Alternative possibility of a reckless assault – defendant may not desire to cause such fear but realises that it does and persists with it. Knight (1988) 35 A Crim R 314 (NSWCCA) Lee J

Knight (1988) 35 A Crim R 314 (NSWCCA) Lee J • “Mere words” e.g. a telephone call, cannot constitute an assault. Barton v Armstrong [1969] 2 NSWR 451 • A fear of “immediate violence” is not always necessary and the meaning of “immediate” can be stretched out to perhaps cover events in the future. Zanker v Vartzokis (1988) 34 A Crim R 11 (SASC) White J • Conditional threats can be an assault. • Imminent and continuing fear of assault is considered as a victim can apprehend later physical violence. Ireland v Burstow [1998] AC 147 House of Lords • A silent phone call can constitute assault if silent caller intends to cause fear with their silence – victim can feel fear and may fear possibility of imminent violence. Pemble v R (1971) 124 CLR 107 • An assault is a threat to inflict unlawful force (heavy or light) upon another and constitutes a crime when the threatener by some physical act has intentionally caused another to believe that such force is to be inflicted upon him. MacPherson v Brown (1975) 12 SASR 184 Bray CJ • There is a distinction between assault and battery; current speech of lawyers makes battery come under assault, however “false imprisonment” is not under assault. • An assault only occurs if the victim is put in fear of imminent unlawful contact. Common law battery Darby v DPP (NSW) (2004) 61 NSWLR 558 (NSWCCA) • Common law battery requires the actual infliction of unlawful force. Knight (1988) 35 A Crim R 314 (NSWCCA) Lee J • Every battery includes an assault. • The MR can be formed during the continuing act (AR). DPP v JWH (unreported, NSWSC, 17 October 1997) • Spitting on or touching clothes of another constitutes an assault, even if the victim does not apprehend it. Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 James J • A battery can be achieved through the medium of something which is in the control of the accused e.g. the car. Assault occasioning actual bodily harm Donovan [1934] 2 KB 498 • Bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. • Injury/hurt doesn’t need to be permanent but must be more than merely transient and trifling. Chan-Fook [1994] 2 All ER 552 English Court of Appeal • Actual bodily harm can include psychiatric injury e.g. a reduced mental state, but not mere emotions e.g. fear, distress, panic. Ireland v Burstow [1998] AC 147 House of Lords • Severe depressive illness and anxiety disorder are considered psychiatric illnesses. Lardner (unreported, NSWCCA, 10 September 1998) • Emotions which are effects of an assault do not amount to assault occasioning actual bodily harm. McIntyre [2009] NSWCCA 305 Johnson J • Summary: o Bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim (R v Overall). o Doesn’t need to be permanent but more than merely transient/trifling, which is less than grievous bodily harm – a serious injury, and wounding – requires the breaking of the skin (R v Lardener). o Distinction between GBH and ABH involves assessment of the degree

o Distinction between GBH and ABH involves assessment of the degree of harm done, one is more serious than the other (R v Overall). o Bruises and scratches amount to ABH (R v Cameron). o Victims who are injured psychologically beyond mere emotions experience ABH (Li v R). Zanker v Vartzokis (1988) 34 A Crim R 11 (SASC) White J • The victim can act in a way that causes ABH if provoked by defendant’s assault. Grievous bodily harm Crimes Act 1900 (NSW) s4 • GBH includes the destruction of a foetus of a pregnant woman, whether the woman suffers harm or not, any permanent or serious disfigurement and any grievous bodily disease/causing a person to contract a grievous bodily disease. DPP v Smith [1961] AC 290 Viscount Kilmuir • GBH means what the words convey in their ordinary and natural meaning – “bodily harm” needs no explanation and “grievous” means no more and no less than “really serious”. Haoui [2008] NSWCCA 209 Beazley JA; Johnson J (McCallum J agreeing) • GBH does not mean injuries need to be permanent/life threatening, only really serious. • GBH includes injuries such as complex skull fractures, severe multiple fractures, nerve damage, facial neurological damage, severe injuries to knee – injury of a small fractured bone in this case was considered ABH. King [2003] NSWCCA • The death of a foetus amounts to the infliction of GBH to the mother. • Those who destroy a child in utero with an attack on a woman they do not realise is pregnant inflict GBH, provided they are reckless with regard to the serious harm resulting to the woman. • Anything done in the course of a medical procedure or with the consent of the mother is excluded from the Bills (Zoe’s Law). Wounding Shepherd [2003] NSWCCA 351 Kirby J • Wounding is generally assumed to break the continuity of the skin, whereas a wound includes the breaking or cutting of the interior layer of skin (dermis) and not the epidermis. Reckless Crimes Act 1900 (NSW) s4A • If an element of an offence is recklessness, that element may also be established by proof of intention or knowledge. MacPherson v Brown (1975) 12 SASR 184 Bray CJ • A defendant cannot be charge with reckless assault if it did not occur to them that their actions would/did cause the victim to be fearful. Edwards v Police (1998) 71 SASR 493 • A reckless assault is where the defendant may not desire to cause such fear but realises that it does and persists with it. MacPherson v Beath (1975) 12 SASR 174 • MR for common law assault is intent or perhaps recklessness (the accused foresaw the possibility that his actions would cause the victim to fear the infliction of unlawful force but persisted with it anyway. • A victim’s apprehension of fear does not need to be reasonable if defendant intentionally puts in fear of immediate violence an exceptionally timid person. Blackwell [2011] NSWCCA 93 • Blackwell test: Where an injury was caused recklessly the accused must have realised that the harm (ABH, GBH or wounding) may have possibly been inflicted upon the victim from his/her actions. • Prosecuting matters to the Blackwell test is difficult, Crimes Amendment (Reckless Infliction of Harm) Act 2012 passed, where there needs to be proof

that that the accused foresaw the possibility of GBH rather than simply some injury, expressly require that the accused was reckless as to causing ABH. One is guilty of reckless wounding if they wound and are reckless as to causing ABH. Negligence D [1984] 3 NSWLR 29 • The degree of negligence required for conviction under s54 Crimes Act was similar to that required for manslaughter by criminal negligence/gross negligence. Assault on police officer Reynhoudt (1962) 107 CLR 381 Dixon CJ and Kitto J dissent; Menzies J (Taylor and Owen JJ agreeing) • Assault on a police officer is categorised as an aggravated assault. • It is not necessary for the prosecution to prove more than the facts that the person assaulted/resisted/wilfully obstructed by the accused was a police officer acting in the due execution of his duty. He Kaw Teh (1985) 157 CLR 523 Brennan J • The statutory purpose must guide the ascertainment of the mental state. Semaan v Poidevin [2013] NSWSC 226 Rothman J NSWSC; [2013] NSWCA 334 Leeming JA (Ward and Emmett JJA agreeing) • The issue of a defendant labouring under an honest and reasonable mistake as to whether a police officer was executing his duty needs to be considered in the lower courts at a committal hearing otherwise it is not a live issue and cannot be brought up in a higher court. Intimidates Meller v Low [2000] NSWSC 75 • There needs to be evidence of intimidation (plaintiff put in fear or experienced any apprehension of violence) otherwise there can be no charge under s 60. Manton [2002] NSWCCA 316 • The offence of intimidation of a police officer requires proof of no more than that the acts or words of the accused caused the officer to experience fear or apprehension; not necessary to prove such fear influenced them to or deterred them from some action in their duty. Co-incidence between AR and MR Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 James J • The MR does not need to be present during the AR but can be superimposing onto an existing and continuing act. Self-defence Katarzynski [2000] NSWSC 613 Howie J • Self defence exists where the accused a) believed that they were called upon to defend themselves, (subjective and considers all personal characteristics of accused at time of conduct), b) that their conduct was necessary in order to defend themselves (objective assessment of the proportionality of accused’s response to the situation they believed they faced) and c) that they had reasonable grounds for each of those beliefs. • Jury to consider subjective factors in determining degree of reasonableness regarding the accused’s conduct. • Reasonableness of accused’s response in their state of sobriety is irrelevant; logically incongruous to consider person’s exercise of judgement as unreasonable when sober but reasonable when drunk. Burgess; Saunders [2005] NSWCCA 52 Adams J, Newman J, Hislop J • There must be a connection between the offence and the threat that was perceived such as to provide evidence of self-defence. • The judge must not intrude into factual matters that are within the jury’s province to determine e.g. the elements of self-defence. R v PRFN (unreported, NSWCCA 21 June 2000) Giles JA • Appellant killed under the threat that he would be sexually assaulted by the deceased who had raped him in the past; appeal dismissed – the critical l t fi i f th t l ki

element of imminence of a threat was lacking. • Trial judge has power to remove self-defence from the jury’s consideration if judge believes that facts are not capable of giving rise to the objective requirement of self-defence. Colosimo v DDP (NSW) [2006] NSWCCA 293 Hodgson JA • All that is needed to raise self-defence is evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self-defence. • There doesn’t need to be evidence from the accused as to their beliefs and perceptions. • An accused who “wanted to fight” does not mean that self-defence is excluded – need to find if accused believed his/her conduct was necessary for defence or to prevent unlawful deprivation of liberty. Abbosh & Bene [2011] NSWCCA 265 • Trial judge can ask the jury to consider whether there was a reasonable possibility that the accused was acting in self-defence. Crawford [2008] NSWCCA 166 • Self-defence employed as a response to lawful conduct i.e. police force can be considered by a jury if directed by the trial judge to do so. Excessive self-defence Grant [2014] NSWCCA • Excessive self-defence (a partial defence to murder described as a “third species of voluntary manslaughter”) is defined as a person using force that involves the infliction of death, and the conduct is not a reasonable response in the circumstances as he/she perceives them, but believes the conduct is necessary to defend oneself from another person. Lane [2013] NSWCCA 317 • All the elements of murder must be proved by the Crown before voluntary manslaughter can be raised. • If self-defence is raised, the prosecution has the onus of proving that the act causing death was not done in self-defence. Ryan and Coulter [2013] NSWCCA 175 • Mother gave daughter money to assist daughter in paying a hitman to kill her husband; excessive-self defence does not need to be left to the jury if the defendant had a requisite belief that the killing was necessary for defensive purposes. Dishonest Acquisition Larceny Statement of Principle Illich (1987) 162 CLR 110 • Definition of larceny: ‘At common law, larceny is committed by a person who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof…. without consent of the owner… include[s] the person in possession of the thing.’ • AR: 1. Property capable of being stolen e.g. tangible personal property. 2. Property is in the possession of a person other than the defendant. 3. Property is taken and carried away by the defendant (asportation). 4. Taking is done without the consent of the possessor (sometimes referred to as owner). • MR: 1. Property is taken with an intention to permanently deprive. 2. Property taken without any claim of right to the property. 3. Property is taken fraudulently. Something capable of being stolen Croton (1967) 117 CLR 326 • The transference of paper money or coins between a bank and the applicant in

• The transference of paper money or coins between a bank and the applicant in this case was not larcenous; it was voluntary on the part of the bank, it was not taken out of the possession of the joint owner of the bank credit (Mrs Webster, who shared the account with her husband) as they never had possession of the paper money/coins. Anic (1993) 61 SASR 223 • Property capable of being stolen is defined as tangible property of some value. In possession of another Anic (1993) 61 SASR 223 • A person can be convicted for stealing something from another person which that person had unlawfully possessed e.g. prohibited drugs. Williams v Phillips (1957) 41 Cr App R 5 • Possession that is held by the employee/servant within the terms of their employment or servitude is considered to be constructively in the possession of the employer/master – therefore, employees can steal from their employers. Hibbert v McKiernan [1948] 2 KB 142 • If property is found on a person’s enclosed land, it is held by the court for the purposes of larceny that the property is constructively in the possession of that person – even if they are unaware. Taken and carried away - asportation Wallis v Lane [1964] VR 293 Herring CJ • Any movement of goods with an intent to steal the is sufficient to constitute asportation. Without consent of possessor Middleton (1873) LR 2 CCR 38 • Larceny requires the taking of an item to be invito domino (without the possessor’s consent). Kennison v Daire (1986) 60 ALRJ 249 • Appellant withdrew money from bank machine with a card connected to a closed account and argued that bank gave consent to withdraw the money; machines are unable to give consent, under law only people can give consent. Kolosque v Miyazaki (unreported, NSWSC 17 February 1995) Dowd J • A licence between a store and a customer is established, and the customer has the right to pick up and inspect goods and carry them until purchased; the license is terminated if the customer has a dishonest intention at the time the goods were taken, either because there was no intention of paying for them or there was an intention of damaging the goods. Intent to permanently deprive Foster (1967) 118 CLR 117 • If there is an intention to exercise ownership of the goods, to deal with them as his own, then this can establish an intention to permanently deprive. Lowe v Hooker [1987] Tas R • If someone takes the property of another and advises them that they will give it back if they pay for it, this is considered as having “the intention of permanently depriving the other of it”. Sharp v McCormick [1986] VR 869 • Employee took home a motor part to see if it fit his car and if it didn’t fit they would have return it; this intention of returning described as “having regard to the rights of the employer” was described as “little short of an abuse of language.” Beecham (1851) 5 Cox CC 181 • A person can borrow something with the intention to return it, but if they take it, use it, and return it with diminished value, then the court will find an intention to permanently deprive. Lloyd [1985] 1 QB 829 • Movies were taken from a cinema in order to make illegal copies with the intention to return them: since there was no diminished value of the films on

intention to return them: since there was no diminished value of the films on return, the Court found that there was no intention to permanently deprive. Weatherstone (1987) 8 Petty Sessions Review 3729 (NSWCCA) Street CJ, Findlay J • The intention to permanently deprive occurs if one takes the property possessed by another, alters it and returns it in its altered form, as the possessor cannot use it for the original purpose they intended. Fraudulently or dishonestly Weatherstone (1987) 8 Petty Sessions Review 3729 (NSWCCA) Street CJ • Fraudulently in larceny is a morally based concept. Peters (1998) 192 CLR 493 Toohey and Gaudron JJ • In a case where the jury must decide is an act is dishonest, the trial judge must identify the knowledge, belief or intent which is said to render that act dishonest and then instruct the jury to decide whether the accused had that dishonest knowledge, belief or intent. • If the questions is whether the act is dishonest according to ordinary notions, the jury should be instructed to decide by the standards of ordinary, decent people. MacLeod [2003] HCA 24; 214 CLR 230 • The test for dishonesty at common law: 1. Trial judge to identify the knowledge, belief or intent which is said to render that act dishonest. 2. Trial judge to instruct jury to decide whether the accused had that knowledge, belief or intent. 3. Jury to determine whether it was dishonest by the standards of ordinary decent people. Baartman [1998] NSWSC 643 • The offence of larceny requires a felonious ...