Crim Tutorial 3 PDF

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Third criminal law tutorial...

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* Common law defences used in this analysis are saved by CCA s 8. 1. Problem #1

1.1

Mandy (‘D’) is charged with common assault under s 35(1) of the Police Offences Act (‘POA’).

2. Body of law: Summary Offence with Code Parallel 2.1

POA offences are all summary offences with s 35(1)—assault—being a parallel offence found in s 184 of the Criminal Code (Tas) (‘Code’). Hence, the general principles of criminal responsibilities from the Code applies to this summary offence: s 4(3) Code; s 36 AIA; Gow v Davis. The definition of assault can be taken from the Code: s 3(3) Code.

3. External elements: 3.1

Application of force to a person of another — s 182(1) Code The Prosecution (‘P’) will argue that D made an application of force to Holly (‘V’) when she gave V a tattoo. The word ‘force’ has a technical legal meaning whereby even the “slightest degree of force” is sufficient: Day. Such recourse to the common law is possible through the Vagliano Bros rule. Therefore, P will find this element uncontentious as tattooing someone amounts to an application of force.

3.2

Unlawfully — s 184 Code This element deals with the lawful justification or excuse of an act: Phillips. D will attempt to argue the defence of consent (s 182(4) Code), claiming that she had V’s free agreement when V expressly agreed to being tattooed by V.

P will however classify V’s consent in this case as unlawful as the consent was arguably obtained when V was overborne by the position of D, her employer: s 2A(2)(e) Code. V’s consent was only obtained after she expressly resisted by saying “no, absolutely no way,” and she was coaxed into it by the others. Further, she had been intoxicated, hence if P can prove that V was so affected by alcohol that she was unable to form a rational opinion, her express consent is unlawful: s 2A(2)(h) Code.

4. Mental elements: 4.1

Voluntariness — s 13(1) Code P will argue that D had full control of her body’s actions when she had wilfully tattooed V: Vallance. In fact, D was the one who had suggested they play truth or dare and dared V to be tattooed with a glint in her eye after being upset with V. Hence, her actions show voluntariness.

4.2

Intentionally — s 182(1) Code Intent for assault is interpreted to mean subjective recklessness: Wilkinson. P would argue that D should have foreseen the likelihood of her act of tattooing V would amount to a direct application of force on V: Wilkinson. D’s intentional act of preparing the tattooing equipment and her intentional application of force by actually tattooing V shows that they both coincide and D’s actions were indeed intentional: Vallance.

Conclusion On the available evidence, P has a stronger case as all the elements of common assault can be proved beyond a reasonable doubt and D is likely to be found criminally responsible for assaulting V. !

5. Problem #2 5.1

Susie (‘D’) is charged with wounding Mandy (‘V’) under s 172 of the Code.

6. Body of law: Indictable Offence 6.1

General principles for criminal responsibilities from Code Chapter 4 applies to Code indictable offences: s 4(3) CCA.

7. External elements: 7.1

Application of force which resulted in a wound — s 172 Code The word ‘wound’ has acquired a technical legal meaning whereby a wound refers to the laceration of the skin and free bleeding: Devine. Such recourse to the common law is possible through the Vagliano Bros rule. P will argue that D’s application of force when she fell on V with the bread knife in hand resulted in the laceration and free bleeding of V from the cut such that it soaked V’s shirt. Thus, this element is uncontentious.

7.2

Unlawfully — s 172 Code; Vallance This element deals with the lawful justification or excuse of an act: Phillips; Vallance D will attempt to argue the defence of consent (s 182(4) Code), claiming that she had V’s free agreement when V consented to becoming an umpire to D's amateur fencing match. As the general rule for sporting contexts, implied consent covers the reasonably foreseeable risk of harm: Barnes. Hence, D will argue that when V consented to be an umpire, V impliedly consented to being wounded.

P will however classify V’s consent in this case as unlawful as the general rule only applies to recognised sports and not all sports. For instance, fist fighting is not a recognised sport and hence consent is unlawful (Coney & others) whereas boxing is recognised and P has to instead prove that the extent of force exceeded consent given to prove unlawfulness (Pallante v Stadiums). Similarly, amateur fencing is not likely to be found a recognised sport. Hence, consent is arguably unlawful.

8. Mental elements: 8.1

Voluntariness — s 13(1) Code

D will argue that D did not have full control over her application of force which resulted in a wound in V. D had slipped and was falling as she tried to regain her balance when she accidentally wounded V. Hence, D’s act can be arguably seen as a spasm that was not willed by D: Bratty v AG.

However, P will argue that the act of wounding cannot be looked at in isolation but rather the sequence of events should be looked at as a whole: Ryan. D wilfully chose to wield around a knife and fell on V on own volition. As such, P may successfully proof that although it was a spasm, D’s actions as a whole show wilfulness: Murray.

8.2

Subjective recklessness — Vallance, Bennett This element is implied from the word ‘wound’: Vallance, Kitto J. Hence, P has to prove D foresaw the likelihood of a wound resulting from her action of falling over V while carrying a large bread knife. This is fairly uncontentious to prove as D claimed to have been in famous fencing matches in her university days, hence she ought to be familiar with the risks involved when handling such sharp objects. As such, D should have foreseen the likelihood of wounding V when she tried to steady herself against V while holding a sharp object.

Further, even if subjective recklessness could not be proven, P may argue that as the person in charge of a dangerous thing (knife), D should have taken reasonable precaution, such as ensuring the spectators were a safe distance away, to avoid the endangerment of human lives: s 150 Code. By failing to do so, D is criminally responsible for omission of a duty to take reasonable precaution as she endangered V’s life and was criminally negligent: s 13(2), 152 Code; Nelligan.

Therefore, even if P cannot prove D’s subjective recklessness beyond a reasonable doubt, D’s criminal negligence is sufficient for establishing D’s criminal responsibility in wounding V.

Conclusion On the available evidence, P has a stronger case as all the elements of wounding can be proved beyond a reasonable doubt. D is likely to be found criminally responsible for wounding V.!

9. Problem #3 9.1

Mandy (‘D’) is charged with causing grievous bodily harm to Susie (‘V’) under s 172 of the Code.

10. Body of law: Indictable Offence 10.1

General principles for criminal responsibilities from Code Chapter 4 applies to Code indictable offences: s 4(3) CCA.

11. External elements: 11.1

Application of force which caused grievous bodily harm to V— s 172 Code. The term ‘grievous bodily harm’ is defined as an injury that endangers life or causes serious injury to health (s 1 Code) and it is further clarified in Tranby whereby a serious injury to health is classified as affecting the functioning of the body and/or a disease or ailment.

P will successfully argue that D’s application of force of pushing V such that V fell backwards, causing V to hit her head and suffer injuries amounts to grievous bodily harm. D will attempt to argue that the injuries caused was not grievous bodily harm as the symptoms of concussion are temporary. However, P will argue that the brain is a delicate and unpredictable organ. Therefore, as V suffered a serious concussion as well as a brain bleed that requires surgery, any injury to the brain is likely to affect the functioning of the body and will thus amount to grievous bodily harm.

11.2

Unlawfully — s 172 Code There is no legal justification or excuse available for D’s actions: Phillips; Vallance. D might attempt to argue self-defence for pushing V. However, V was no longer in a position to wound D when D pushed V. Hence, P will disprove D’s defence as D pushed V out of anger.

12. Mental elements: 12.1

Voluntariness — s 13(1) Code P will argue that it was D’s wilful application of force that led to grievous bodily harm to V. D was enraged at getting hurt by V and she had complete control over her

body as she wilfully lunged at and pushed V against the brick fireplace as V was attempting to regain her balance: Williams. D will however argue that due to the distressful situation she was in, with her getting wounded, her actions became temporarily involuntary, inducing an automatistic state: Falconer. Nonetheless, Falconer is distinguished as it was a case of persistent stress and fear which induced such a state whereas in this situation it is merely at that moment. Hence, the distressful situation is likely to be disproved by P.

12.2

Subjective Recklessness — Vallance, Bennett The same mental element of subjective recklessness applies for wounding and grievous bodily harm: Bennett. Hence, P must prove that D foresaw the likelihood of her actions leading to grievous bodily harm to V.

D will argue that to she pushed V out of anger and likely did not intend to cause an injury so serious to V. P will however argue that it is sufficient for D to foresee V falling over and hitting her head but being heedless of such a consequence: Vallance. Further, if it is found on the evidence that the V was in close proximity to the fireplace, the likelihood of D causing grievous bodily harm to V dramatically increases.

Conclusion On the available evidence, P has a stronger case as all the elements of grievous bodily harm can be proved beyond a reasonable doubt. D is likely to be found criminally responsible for causing grievous bodily harm to V....