Criminal Justice - hypothetical scenario PDF

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Example ILAC for hypothetical scenario, includes key criminal law concepts (eg. actus reus, mens rea, etc.)...

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Criminal Justice – Hypothetical Scenario 1. Introduction In order to evaluate the criminal liability of Amber, in relation to Lucas, we must undergo extensive analysis. She can be found liable and charged with one of the following; murder, involuntary manslaughter or voluntary manslaughter. The various elements of a crime; actus reus, mens rea and causation must be analysed in order to reach a conclusion regarding the hypothetical issue. Additionally, an assessment of any partial Defences may lead to the charge being downgraded to manslaughter. If none of these are found to be applicable, then ultimately, Amber does not hold any criminal responsibility. 2. Actus Reus Actus reus refers to the physical and external element of a crime, which will often extend beyond the act of the accused. Firstly, regarding the issue of causation, the accused assaulted Tom (her brother) using a chair leg and proceeded to threaten hum, despite the warning he provided her, that the deceased child (Lucas) would be taken into the bay. Moreover, the case of R v Pagett1, highlights the issue of criminal responsibility. The court concluded, that Pagett used his girlfriend as a form of shield and self-preservation. These circumstances draw distinct similarities, to the actions of Tom, using Lucas as a shield, from Amber. 3. Causation According to section 33 of the Human Tissue Act 1983 (NSW)2, a person is pronounced dead, if; “irreversible cessation of all functions of a person’s brain has occurred”. hence Lucas was on life support and found to be brain dead, and there is no evidence of negligence during medical treatment, which would have broken the casual link. Thus, the actions of amber can be seen as an ‘operating and substantial cause’ of his death.3 An application of the ‘but for’ test, reveals a clear relationship between the actions of Amber and death of Lucas. Harm towards the child, would most likely not have occurred if it was not for her actions. Therefore, the concept of causation is definitely satisfied. Furthermore, the concept of ‘novus actus interveniens’ does not hold, as no intervening events, which broke the chain of causation occurred. 4. Mens Rea The three main elements of mens rea comprise of; intention to kill, intention to cause grievous bodily harm (GBH) and reckless indifference to human life. According to the section 18 of the Crimes Act 1900 (NSW)4, a person has committed murder, when; where the act of the accused (or omission) causes the death of the victim. It is clear that Amber only had the specific intent to kill her brother and not Lucas, verbal expressing this by saying, “I’ll kill you, your dead…”. The

1 R v Pagett (1983) 76 Cr App R 279 2 Human Tissue Act 1983 (NSW) s33(a). 3 R v Hallet [1969] SASR 141. 4 Crimes Act 1900 (NSW) s 18(1) (a).

case of Crabbe (1985)5 discusses the issues of murder, concluding that “a person is guilty of murder if he commits, a fatal knowing that it will probably cause death or grievous bodily harm…”6 Yet, she was unable to foresee the possibility that Lucas may not be able to swim, as most children in the area had competent swimming ability. Consequently, this makes it impossible to charge her with the murder of Lucas.

5. Involuntary Manslaughter The criminal act of involuntary manslaughter is stipulate in s 24 of the Crimes Act 1900 (NSW). 7 It is separated into two categories; voluntary or involuntary manslaughter (either due to an unlawful and Dangerous Act or negligence). In the case of Taktak (1988)8, the complexity of the duty of care concept in modern society was established. The duty of care cannot be confined to specific legal relationships (eg. Mother and daughter), and the duty can arise where the accused has inadvertently created a situation of danger…and failed to act within their power, to minimise the risk of harm. Amber held a duty of care, regarding the welfare of Lucas. She failed to make any attempt to try and rescue him, once he was taken into the bay. This omission could arguable have been critical to his survival, and minimising the brain damage that resulted. 6. Voluntary Manslaughter Although the circumstances of Amber’ case, in relation to Lucas, meet the Actus reus and mens rea for murder, there are partial Defences (extreme provocation) which warrant lessened liability. Partial Defences Amber may also be able to rely on the partial defense of provocation to reduce the offence from murder to manslaughter. Provocation requires a loss of self-control on the part of the accused, where the loss of self-control is induced by conduct of the deceased.9 Section 23 of the Crimes Act explains the procedures regarding an instance in which the defense is found to be valid, it states, “the jury is to acquit the accused of murder and find the accused of guilty of manslaughter….”.10 The only evidence that may suggest a loss of self-control is the way Amber. It must be considered, whether an ordinary person, being a person of a similar age to Amber would have reacted in a similar fashion. Hence, the minimum this would indicate the minimum standard of self-control to be expected in the community. 11 The experience of finding her other brother (Frank) on the floor and completely surrounding by blood infuriated Amber, and consequently sent her into a rage, causing her to lose all sense of self-control. Nevertheless, this would only be applicable to any harm she inflicted on Tom, as any harm caused towards Lucas,

5 R v Crabbe (1985) 156 CLR 464. 6 Ibid. 7 Crimes Act 1900 (NSW) s24. . 8 Taktak (1988) 14 NSWLR 226 9 Crimes Act 1900 (NSW) s 23(2)(a). 10 Ibid. 11 Stingel v The Queen (1990) 171 CLR 312

was made void of provocation and without a conscious train of thought and consideration of potential consequences, regarding his welfare.

The concept of transferred malice, communicates that when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held responsible

7. Conclusion Therefore, through extensive analysis of the elements of a crime, and partial defenses (extreme provocation) it is clear that Amber cannot be found liable in terms of murder, for the death of Lucas. Nevertheless, she failed to foresee the possibility that her intent to murder her brother, would result in the death of the child. Moreover, her omission to uphold a duty of care to Lucas, once he was taken into a bay, does not align with the actions of a reasonable person. A reasonable person would have recognised the imminent danger, that continuing to pursue Tom would create, and attempt to save Lucas from drowning (or try and get assistance of bystanders). Consequently, it can be seen that her actions were in fact the sole cause of the death of Lucas....