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Summary - book "Australian Criminal Laws in the Common Law Jurisdiction: Cases and Materials", lecture Al, complete...

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CRIMINAL LAW EXAM NOTES MLL214 CONTENTS 3- Mens rea (types) - Accomplice liability 5- Temporal coincidence - Homicide and Actus Reus - Categories of unlawful homicide 8- Causation 10- Murder and Mens Rea - Transferred malice - Intention to kill 11- Intention to cause grievous bodily harm - Recklessness as to causing death or grievous bodily harm 13- Constructive murder 15- Involuntary Manslaughter - Unlawful and dangerous act 16- Holzer test 17- Criminal negligence 18- Elements (Crim. Neg.) re: R v Edwards 19- Distinguishing between involuntary manslaughter by u/d act & crim. neg. - Self-defence -Statutory provision 20- Zecevic (common law) 22- Assault 23- Words alone - Apprehension - Fear 25- Aggravated assault 27- Situation where there is consent to assault 30- Sexual assaults - Rape - Sexual penetration 31- Consent - Reasonable belief - Rape by compelling sexual penetration 32- Sexual assault - Touching 33- Mens rea of sexual assault offences - Theft and Larceny - Elements 37- Mistake 38- Appropriated 39-Intention to permanently deprive 42- Deception and fraud offences 43- Property - Belonging to another - Obtain - Deception 44 - Representation - Dishonesty - Intention to permanently deprive 45- Financial deception

46- Burglary and Robbery - Burglary 47- Entry - As a trespasser 49- Into a building or any part of a building 50-Part of a building 51- Intent to commit a prescribed offence 52- Robbery - Elements 53- Armed Robbery 54- Duress - Sudden or extraordinary emergency 55- Intoxication 56- R v O’Connor (CL influence re: intoxication) - Insanity 60- Attempt - Statutory provision 61- Common law 65- Tutorial questions

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What is crime? o No perfect definition o Legal wrong that can be followed by criminal prosecution and may result in punishment o Distinguished from civil wrong  HOWEVER Any time there is a crime there is almost always an act which can be sued o Always contain moral wrong  HOWEVER do not have to prove fault  Acts that are of possible moral wrong are not criminal- smoking o Determined by the decisions of parliament and court, not what is moral wrongdoing and crime against community Common law and statutory law are the only two types of law o Most crimes are in statutory law o Three common law jurisdictions  Vic, SA, NSW  (Others are co-jurisdiction (all laws are statutory))  Common law is always in effect unless statue says otherwise  Small number of common law crimes that are not codified  E.g. Murder, involuntary manslaughter  Some crimes that are crimes in statute were not crimes in common law  E.g. Smoking in a public place Criminal responsibility age is 10 years old (Vic) o Common law rule in addition: under 14 year, prosecution must have to prove that the defendant knew at the time of the act was wrong according to the standards that governs ordinary people o All crimes committed between 10-18 years Children’s Court will have exclusive jurisdiction  Four exceptions:  homicide and attempted murder o magistrates’ court o infanticide (s 6 crimes act) mother/father kills child within 2 years of its birth  indictable offences o child can elect to be tried by jury  child has committed a crime but has turned 18 before proceedings commence  child is under 18 in Children’s court when proceedings begin but turns 18 during proceedings in Children’s court o Magistrate can elect to move them to the adult court o All crimes committed against the Commonwealth by a person of the age 10-18 years will be treated as if it was a crime against the State (e.g. state rules of evidence and procedure) Corporations have the legal status of person to the extent that they can claim criminal liability when the actions of its president officers or board of directors o Cannot imprison a business Elements of a crime/ offence

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All elements need to be proved on a level of beyond reasonable doubt All elements of an offence =corpus delicti Beyond reasonable doubt is not defined for the jury; left to the common sense of the jury members (this is the case in Australia, other jurisdictions do define it) o Accused must act with a particular state/s of mind  Mens rea- bad or guilty mind; four types (must prove which the crime states. May not have to prove any, may have to prove on or several):  Intention-accused act with a conscious subjective desire o Direct evidence or circumstantial evidence to prove  Knowledge- awareness and foresight o Prosecution must prove that the accused knew of their act  Belief- act with a belief (but with some doubt) that some act or circumstance, which is an element of the crime, is true.  Recklessness- acting with the knowledge that there is a probability or possibility that one or more of the consequences forbidden will ensue at the result of your conduct o Contemplated the risk o Is a form of negligence as it falls below the standard that must be adhered to in regards to the duty of care we owe our neighbour o Not all crimes require mens rea AKA crime of non-mens rea  Common law almost all crimes do have a mens rea element (excludes nuisance and voluntary manslaughter)  Definition of crime will determines if mens rea is required (intention, knowledge, belief, recklessness)  HOWEVER mens rea may be presumed (but this presumption can be rebutted) o Speeding  There are measures that can be taken to stay under the limit; eliminate distractions, drive 5km under, check speedometer etc.  If mens rea has to be proved, mens rea must have shown to exist at the time of every voluntary act or omission to act. Without this there is no temporal coincidence  no crime without this.  If a person does not intend to commit a crime, but then does have intent after the act occurs (due to new knowledge, change in circumstances, etc.), there is no temporal coincidence. o (Providing there has also been an act) A person can be punished for their thoughts/mens rea, e.g. conspiracy, encouragement etc. If there was no act/actus reus and only thoughts/mens rea, there can be no punishment. Accomplice liability: make you just as guilty as the principal who commits the crime. *Do not say they are guilty of (e.g.) principal of the second degree* *Say they are ___ & guilty of the crime committed* o Principal in the first degree- person who commits part or all of the actus reus  Joint principals in the first degree both must have mens rea & the act of one becomes the act of all o o o

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being constructively present/assisting those committing the actus reus  Principal in the second degree (common law)- person is at the scene of the crime (eye/ear shot or constructively present) who aids or/and encourages principal in the first degree. Responsible and guilty for any crimes that occurred and most likely contemplated the commit.  Accessory before the fact- person is not at the scene of the crime but assist or/and encourage any other person at the scene of the crime and committing the crime. o All crime require Actus reus- bad act  Must show that actus reus elements were brought about by a voluntary act or omission to act where the law posed a legal obligation to do so  Casual nexus  Only two where this does not have to be shown o Person encouraging the principal (be a principal in the second degree) o Accessory  Voluntary omission to act  Every person has a legal duty to act in four situations (if not putting yourself in danger): o Contractual obligation o Statutory; e.g. medical professionals choosing not to act in a situation that requires medical assistant o Cannot stop helping someone in a fatal situation once you have started o Special relationship with someone in danger  May be some cases where you must rely on more than one act or omission  Knowledge, belief, recklessness and intention (mens rea) all require something mentally more than just the minimal mental component you need to move a part of your body or decide not to do something Defences o Primary defences  Denial defence; prosecution has failed to prove one or more elements of the crime o Secondary defence  AKA a plea of confession and avoidance; even if the prosecution is able to prove all elements, and that the accused did commit the act, a person can use this defence.  Self-defence, duress, o Strict liability- allows you to be convicted without the prosecution having to prove any guilt or fault (including negligence) (case of non-mens rea)  Known as the problem defence  He Kaw Teh v The Queen (1985) 157 CLR 523  Trial judge erred in advising the jury that no particular state of mens rea needed to be proved (assumed the offence to be a crime of strict liability) 

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He Kaw Teh imported heroin into Australia. He was charged with importing illicit substances and having in his possession without a reasonable excuse. Breach of Customs Act 101 Cth. The defendant argued that it had been planted there and he had no knowledge of it Should this be an offence of strict liability? 1) the presumption that mens rea is required before a person be held guilty of a grave criminal offence is not displaced in relation to the Act, and the prosecution bears the onus of proving that the accused knew that he was importing a prohibited substance. 2) That in the proceeding under the act the prosecution bears the onus of proving that the accused knew of the existence of the prohibited substance that was in his own physical control. -The court found that the prosecution needed to establish an intent in matters of significant criminality Gibbs CJ ‘it is unlikely that the Parliament intended the consequences of committing an offence so serious should be visited on a person who had no intention to do anything wrong and no knowledge that he or she was doing so’ Dawson J ‘mistaken belief in facts which are inconsistent with the required intent does not have to be based upon reasonable grounds. Either the accused has a guilty mind or he does not, and if an honest belief, whether reasonable or not, points to the absence of the required intent, then the prosecution fails to prove its case.

Temporal coincidence o The mens rea and the voluntary act or omission which brings about the non-mens rea elements concur in time o The particular act and the intent with which it is done must be proved by the prosecution beyond reasonable doubt. Act and intent must coincide. (Barker v The Queen [2010] VSCA 226; Meyers v The Queen (1997) 147 ALR 440)

Homicide and Actus Reus Legal reality   

Homicide offences are uncommon When it does occur, more often than not the victim knows the offender At trial, a judge has the duty to inform the jury the act or omission that grounds the legal elements of the offence

Categories of unlawful homicide  Murder 1. Intentional murder- without lawful excuse or mitigating factors to reduce the offence, causes the death of another human being while acting with the intention of killing or causing grievous bodily harm to another person 2. Reckless murder- without lawful excuse or mitigating factors to reduce the offence, causes the death of another person, while acting with recklessness, with the intent of killing or

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causing grievous bodily harm (GBH) to another person 3. Statutory constructive murder- (murder-felony rule) unintentional killing of another person by an act of violence (which was defined in the Ryans case) which was committed or done in the course of committing a felony which was considered to be dangerous. *accused does not act with any of the four mens rea, but treated as if the accused has done so s 3a Crimes Act: Arson causing death is all that remains of ‘felony-murder’ o 3A Unintentional killing in the course or furtherance of a crime of violence  (1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.  (2) The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated. 4. Common law constructive murder- where a person causes the death of another person by an act of violence committed during the course of preventing, resisting or escaping lawful custody *accused does not act with any of the four mens rea, but treated as if the accused has done so ** has not been used in Victoria; found guilty of this they are convicted under the other three categories  Manslaughter 1. Voluntary manslaughter A killing that would otherwise been found guilty of murder except mitigating circumstances existed o If the accused was induced into killing the deceased because of proactive conduct  Mitigating circumstances: provocation o The accused killed the deceased in self-defence or defence of another person * (These exist at common law but have been abolished in Victoria 2014) o

Survivor of a suicide pact (has NOT been recognised as voluntary manslaughter)

2. Involuntary manslaughter Lacks mens rea (completely) or to the extent required for murder or voluntary manslaughter *A person cannot be guilty of involuntary manslaughter if the crime falls under the category of murder or voluntary manslaughter (still exists at common law in Victoria)

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Infanticide o Mother kills their child within 24 months of the child’s birth and the mother is under some psychological disorder (the disorder does not have to be medically recognised)

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Child homicide o The murder of a child under the age of 6 years

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Defining homicide o Voluntary act or omission that causes the death of another person  Not all are unlawful; e.g. self-defence, court ordered executions o Unlawful homicide; is the voluntary act or omission which is the legal cause of the death of another human being

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Foetus and child o No homicide unless the victim is a human being o R v Hutty [1953] VLR 338 (Supreme Court, Victoria)  Person is a being when s/he is fully born in a living state; completely delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power of living from its mother. It is not material that the child may still be attached to its mother by the umbilical cord… o Fatal injuries causing death after birth but are inflicted prior to or during birth can (at common law) amount to the killing of another human being, and can amount to being charged with murder or manslaughter (R v West (1848) 2 Cox CC 500).  Due to the doctrine of transferred intent/malice o Serious injuries to purpose of assault- the death of a foetus while it is still in the mother. Cannot be convicted of homicide. Death o When a person is already dead, they cease to be a human being o Must legally cause the death of someone  Death is deemed to occur when there is an irreversible sensation of blood circulation or brain stem death

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All crimes have an actus reus (bad act) The relevant conduct must satisfy: voluntariness, legal causation, and mens rea (excluding non-mens rea offences of involuntary manslaughter by unlawful and dangerous act and criminal negligence) If it is a crime of mens rea there must be a temporal coincidence

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Must be proven in all criminal prosecutions More often than not, voluntariness is not disputed The accused acting in a conscious and normal manner will have the effect that the accused had acted voluntarily

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R v Butcher [1986] VR 43 (Full Court of the Supreme Court of Victoria) The accused had attempted to rob a milk bar while brandishing a knife which was intended to threaten or scare the victim. Claimed that the accused was three or four feet away from the victim with the knife out in front of him when the victim ran at him and the knife entered the victim’s body, apparently without thrusting the knife into the body, causing the victim’s death. Issue: was the victim’s death attributable to a voluntary act on the part of the defendant that could ground criminal liability Convicted of constructive murder and appealed. Appeal was dismissed, on the grounds that the ‘act of violence’ which caused the death of the victim was the defendant exhibiting the knife, pointing it at the victim while he was standing only a few feet away, and demanding money at the same time.

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Legal causation o Element one: the defendant’s act or omission must be a ‘but-for’ cause of the victim’s death  If the result would have not occurred without the conduct of the accused o Element two: absence of a superseding event  Superseding event came after the accused’s voluntary act or omissions  Was also another but-for  Even was such a dominant cause that it, and not the accused’s voluntary act or omission, should be considered the legal cause of the person to die  If a superseding event occurs, the liability of the accused will stop after the superseding event occurs

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The operating and substantial cause test o Requires the accused’s act or omission must substantially or significantly contribute to the death of the victim o Normal operation of forces will not break the causal chain o Been seen to be unsatisfactory  R v Hallett [1969] SASR 141 Hallett physically assaulted the deceased, and left him by the edge of the water at the beach alive. When Hallett returned the deceased was dead and found floating in the water. Held that Hallett was guilty of deceased’s death. Established that only a new intervening act can break the chain of causation. Verdict would have been different if the deceased had of been hit by a tidal wave.

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Normal or extraordinary operation of natural forces test o High court would use in an act of God

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Medical treatment/ negligence cases o R v Jordan (1956) 40 Cr App R 152 Victim was stabbed, and taken to hospital. Given treatment which the victim could not tolerate, and therefore was discontinued. By mistake the treatment was given to

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him again and caused the victim to die. At trial the accused was convicted. Conviction was overturned on appeal due to a palpably bad and superseding event, therefore breaking the chain.  Nothing going to recognise Jordan to other medical negligence cases unless there are very similar material facts  The only case where medical negligence will be a superseding event o

R v Evans & Gardiner (No 2) [1976] VR 523 (Full Court of SCV)  Deceased was stabbed by the applicants. After the stabbing, a bowel operation was performed, and resumed a healthy life. Deceased died 11 months after the stabbing due to fibrous ring causing a stricture in the small bowel at the site of the operation (which was not uncommon from the previous surgery)  The surgery was not held to break the chain of causation  Stabbing held as cause of death  Applicants held guilty of manslaughter

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Take your victim as you find them o Includes emotions and physicality  R v Blaue [1975] 1 WLR 1411Deceased was stabbed On his way to the hospital he wished not to take a blood transfusion that would have saved his life due to being a Jehovah’s Witness. Held that this decision did not break the causal chain

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The natural consequence and reasonable foresight tests o Foreseeability o Fright and self-preservation  Where the victim is killed in an attempt to flee or avoid being violen...