Criminal Law (106) Notes PDF

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2016 semester 2 notes...

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LLB106 Notes The Code  ‘Code’ is actually schedule 1 of the Criminal Code Act 1899 (Qld) Section 7 (Offender may be prosecuted under Code or other Statute)  When an offender is punishable under provisions of the Code, and also under provisions under some other statute, the offender may be prosecuted and convicted under the provisions of either of the code or of such other statute so that the offender is not twice punished for the same offence. Classification of Offences (Section 2 – Definition of offence)  An act or omission which renders person doing the act or making omission liable to punishment is called an offence. Section 3 – Division of offences 1) Offences are of 2 kinds, criminal offences and regulatory offences 2) Criminal offences comprise crimes, misdemeanours and simple offences 3) Crimes and misdemeanours are indictable offences; that is to say, offenders can not, unless otherwise expressly stated, be prosecuted or convicted except upon indictment 4) A person guilty of a regulatory offence or simple offence may be summarily convicted by Magistrates Court 5) An offence not otherwise designated is a simple offence Nolle Prosequi: (s563)  Indication by Crown Prosecutor that he/she no longer proceed on that indictment  Crown can still proceed later on another indictment – not acquittal Pre-trial directions and rulings S 590 AA Criminal Code  If court has presented an indictment before court against person, party may apply for direction or ruling, or judge of court may on his or her initiative direct parties to attend before court for directions or ruling, as to conduct of trial or any pre-trial hearing  Ruling may be as to question of law, admissibly of evidence, joinder of accused, or joiner of charges Elements to an offence  Actus Reus – “Guilty Acts”: physical acts or omissions constituting offence  Mens Rea – “Guilty Mind”: mental element or state of mind necessary to constitute and offend  Actus non facit reum non nest mens sit rea – “Act itself does not constitute guilt unless done with guilty intent”: is NOT a feature of criminal law of QLD. Intention, motive etc. are irrelevant expressly provides.

Criminal Responsibility (s22 Ignorance of Law)  Ignorance of law does not afford any excuse of an act or omission which would otherwise constitute an offence, unless knowledge of law by offender is expressly declared to be element of offence S23 (2)  Unless intention to cause a particular result is expressly declared to be an element of offence constituted, in whole or part, by act or omission, result intended to be cause by act or omission is immaterial. S303 

A person who unlawfully kills another under such circumstances as not to constitute murder is guilty at manslaughter (no mental element)

354 (2)  A person kidnaps another person if that person unlawfully and forcibly takes or detains another person with intent to gain anything from any person (contains mental element)

Criminal Responsibility Burden and Onus of Proof  Criminal trial – legal burden on crown to prove main facts in issue by discharging evidential burden. Defence can simply put crown to proof  Standard – beyond reasonable doubt – no reasonable explanation of events consistent with accused being innocent. Trial judge must try to explain to jury meaning of “BRD” other than to contrast with civil standard and that accused is entitled to benefit of any reasonable doubt (THOMAS) o Exception: where statue expressly places legal burden on accused s26 o Presumption of sanity: every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until contrary is proved Capacity Doli Incapax Doctrine – s29 Immature age (1) A person under the age of 10 y.o. is not criminally responsible for any act/omission (2) A person under the age of 14 years is not criminally responsible for act/omission, unless it is proved that at the time of doing the act or making the omission the person had capacity to know that the person ought not to do the act or make the omission S27 (1) – Person not criminally responsible  For act/omission if at the time were in a state of mental disease or natural infirimity depriving them of a capacity

S23 (1) – Person not criminally responsible for: (a) An act/omission that occurs independently of exercise of person’s will State of Mind 

R v Reid (Chesterman J) – “In ordinary, everyday, usage ‘intention’ means the act of ‘determining mentally upon some result.’ Intention is a ‘purpose or design’. If an accused intends to kill, or transmit disease. His actions are designed to bring about the result. -

So: fact that accuse knew death or GBH would probably occur is only of value to jury if they use that piece of evidence to infer that the accused must have meant to kill or cause GBH to victim since they knew that would be result.

Double Jeopardy  Rule 1 – where defendant has previously been tried and convicted upon an indictment on which he might have been convicted of the current offence – then defence of autrefois convict applies  Rule 2 – where defendant was previously tried and acquitted upon an indictment on which he might have been convicted of current offence – then defence of autrefois acquit applies

Double Punishment (s16)  Person cannot be twice punished for the same act/omission – you may be convicted for 2 offences arising out of the same act or omission but cannot be punished for both – eg. EL HUSSEINI (convicted of both trafficking and supplying dangerous drugs – but could only be sentenced for one of them) Criminal Negligence Chapter 27 – imposes certain duties on persons in relation to preservation of human life including:  Provision of necessities (s 285,286)  Duty of persons doing dangerous acts (s288)  Duty of persons in charge of dangerous things (s289)  Duty to do certain acts (s290) 

If any of these duties are breached then the accused is deemed or “held to have caused any consequence to the life or health of any person” – so breach can amount to causation for purpose of unlawful killing

Complicity Section 7 Parties to offences

(1) When offence is committed, each of following persons is deemed to have taken part in committing the offence and to be guilty of offence, and may be charged with actually committing it: i. Person who executes offence (s7 (1) (a)) ii. Enable (s 7 (1) (b)) iii. Aider (s 7 (1) (d)) iv. Counsellor or procurer (s 7 (1) (d))  R v BECK – appeal rejected – voluntary and deliberate presence during commission of crime without opposition or real dissent may be evidence of wilful encouragement or aiding – but “it is not possible to be an aider through an act which unwittingly provides some assistance to offender.” Principal offender (s7 (1) (a))  Actually does acts/omissions constitute the offence – can be any of a series of acts which constitute the offence o Eg. one breaks, other enters – both convicted of breaking and entering if common unlawful purpose (R v WYLES) Principal offender (s7 (1) (a))  Not present at scene (R v JOHNSON) keeping lookout, driving getaway car, disabling burglar alarm  (BORG v R) – must be common unlawful purpose, didn’t know other had pistol – not guilty of manslaughter Aider – Counsellor – Procurer (s7 (1) (c))  Aiding – presence at scene. (R v CLARKSON) – mere presence with active steps by words or actions, intentional or wilful encouragement, but can be encouragement if agreed to previous offences  (R v BECK) – also voluntary and wilful presence during offence can encourage even if you strongly disagree with what’s happening.  Also catches (s285) – person with duty of care for other to provide necessaries, avoid danger, remove from danger eg. (R v RUSSELL) – mother drowned kids, same with person with care for child (s286 (1))

Non – Fatal Offences Against the Person Part 1: Offences of endangering life or health 1. OFFENCES OF WHICH ASSAULT IS AN ELEMENT (CHAPTER 30)  Common assault  Assaults occasioning bodily harm  Serious assaults 2. OFFENCES ENDANGERING LIFE OR HEALTH (CHAPTER 29)  GBH  Unlawful wounding  Torture  Offences with specific intent

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Negligent acts causing harm

Assault offences  Common assault: (s335- misdemeanour- 2 years)  Assaults occasioning BH: (s339- crime- 7 years)  Serious assaults: (s340 – crime – 7 years)  Assault is an element of (s339 and s340)  Common assault is an alternative verdict on charges of (s339 and s340): s575 Assault  Definition: (s245) - assault unlawful (s246)  Limb 1 of (s245 (1))= BATTERY AT COMMON LAW o A person who strikes, touches, or moves or otherwise applies force of any kind to, the person of another, either directly or indirectly, without person’s consent, or with other person’s consent if consent is obtained by fraud  Limb 2 of (s245 (1))= ASSAULT AT COMMON LAW o Who by any bodily act or gesture attempts or threatens to apply force of any king to the person of another without the other person’s consent, under such circumstances that person making attempt or threat has actual or apparently a present ability to effect person’s purpose is said to assault that person, and act is called an assault. Assault: Limb 1 Elements 1. Application of force (s245 (2)) 2. Directly or indirectly (CROFT v BLAIR) 3. Without CONSENT  Implied consent to some degree to non-violent contact in some circumstances (KIMMORELY v ATHERTON)  What level of force can be consented to? (RAABE)  Consent in sporting context (MCNAMARA v DUNCAN)

Assault: Limb 2 Elements 1. Attempts/threatens to apply force 2. By bodily act or gesture 3. With actual or apparent present ability to effect purpose 4. Without consent Element 1 – attempts/threatens to apply force  Intent required - (s4 attempt requires intention) – this is transferred to limb 2 assault (HALL v FONCELA) Element 2 – bodily act/gesture  Mere words are sufficient: (FOGDEN v WADE)  Words plus bodily act: (DALE)  Bodily act or gesture = act by which force is threatened: (R v AGUIS)

 Conditional threats: (ROZSA v SAMUELS) Element 3  Actual: real knife capable of doing some damage or real loaded gun. Victims knowledge is irrelevant here  Apparent present ability: (eg. toy gun) (EVERINGHAM)  Victims state of mind: o Must victim be aware of threat/attempt? YES (DALE) o Must victim be in fear? NO (BRADY v SCHATZEL) Assaults occasioning bodily harm – s339  “Bodily harm” defined in (s1): “any bodily injury which interferes with health or comfort”  Must be some identifiable bodily injury. Eg. black eye, blood nose (LERGESNER v CARROLL)  Consent TO AOBH is possible – question of fact what degree of violence was consented to (LERGESNER v CARROLL) Serious assaults – s334  Range of circumstances including: o Assaulting police officer: (s340 (1) (b)) o Assaulting a person over 60 years: (s340 (1) (g)) o Assaulting a person who relies on a guide, hearing or assistance dog, wheelchair etc: (s340 (1) (h)) Offences endangering life/health  (Chapter 29): offences by defined seriousness/consequences  How are the different from assault offences?  Assault is NOT a defined element of offence  Focus on consequences  2 important points to note: 1. victim CANNOT consent to these offences 2. (s268/9) provocation defence does NOT apply (KAPRONOVSKI) Grievous Bodily Harm (GBH) - (s230 – crime – 14 years) Elements 1. unlawfully 2. does 3. GBH  Definition (s1): “GBH MEANS a. Loss of a distinct part of an organ to body; or b. Serious disfigurement; or c. Any bodily injury of such nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health, whether or not treatment is or could have been available.” Unlawful wounding - (s323 – misdemeanour – 7 years) Elements

1. Wounds another 2. Unlawfully  What does “wound” mean? o No CC definition o Requires breaking of true skin ie. Bleeding (DEVINE)

Torture - (s302A – crime – 14 years)  Crim. Offence introduced inn 1997  Definition in (s302A (2)): o Intentional infliction of severe pain or suffering o One act or series of acts o One or more than one occasion  Elements: 1. Inflict severe pain or suffering on another person 2. Intentionally 3. By act or series of acts on one occasion or more than one occasion  Pain and suffering includes: o Physical, mental, physiological or emotional pain or suffering o Whether temporary or permanent: (s302A (2)) (GEDDES) Offences with specific intent  (s315) – disabling in order to commit indictable offences  (s316) – stupefying in order to commit indictable offences  (s316A) – unlawful drink spiking  (s317) - act intended to cause GBH and other malicious acts – requires: 1. One of the relevant intents (ZABURONI v THE QUEEN) 2. One of the relevant actions:  “maim”= deprive person of a use of some member, to mutilate or cripple: (WOODWARD)  (R v BRANNIGAN AND GREEN)- baseball bat (s317 (f)) – “striking” with “projectile”  (s317 (b)) – “transmit a serious disease” - (def. s1) (R v REID) Negligence causing bodily harm - (s328 – misdemeanour – 2 years) Elements 1. Does an act or omitted to act where duty to act 2. caused bodily harm (s1 def.) 3. Unlawfully  Duties in (s285-290): o (s285) – Duty to provide necessities o (s286) – Duty of person who has care of child o (s288) – duty or person doing dangerous act o (s289) – duty of persons in charge of dangerous things o (s290) – duty to do certain acts Domestic Violence

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Domestic violence and relationship violence (s8 Domestic and Family Violence Protection Act 2012 (QLD) (DFVPA)) Behaviour by person towards another person in a relevant relationship that is: o Physically or sexually abusive o Emotionally or psychologically abusive o Commercially abusive o Threatening o Coercive (ss (2)) includes: a. causing or threatening personal violence b. coercing or attempting to coerce to engage in sexual activity o Coerce: compel or force c. Damaging or threatening to damage property d. Depriving or threatening to deprive liberty e. Threatening death/injury to anyone f. Threatening self harm as so to torment, intimidate or frighten g. Causing or threatening death to an animal so as to control, dominate or coerce h. Unauthorised surveillance i. Unlawfully stalking a person (s359 B) Associate DV (s9) o Behaviour to child, relative or associate of aggrieved Relevant relationships (s13) o Inimate personal o Family o Informal care relationship What DV orders are available? (s23 (2) DFVPA) o Protection order o Temporary order:  Made for short period until court determines whether to make protection order When can court make or order? o (s37): If court is satisfied:  relevant relationship exists AND  respondent has committed DV AND  order is necessary OR desirable to protect aggrieved from DV Who may apply for a DV order? o (s25); s(32) DFVPA  Aggrieved (person whose benefit DV order is in force, and only one person may be aggrieved)  Authorised person:  Adult whom court believes in authorised by aggrieved even though not in writing eg. persons unable to sign authroities due to a disability  Police officer who has investigated and has reasonable beliefs in (s100 (2) DFVPA

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Person acting under another act  Eg. guardian under (GUARDIANSHIP AND ADMIN ACT 2000)  Eg. attorney under (POWERS OF ATTORNEY ACT 1998)

Police Protection Notice - (s101, 102)  If police present AND  Reasonably believes the respondent has committed DV AND  Reasonably believes no DV order has been made  Reasonably believes should not be taken into custody o “Suspicion” insufficient (GEORGE v ROCKETT)  But must 1st obtain approval of supervising officer  Can police take respondent into custody? o Yes, if they have arrest power: (s116 (1) DFVPA)  If they suspect on reasonable grounds that an act of DV has been committed AND  Another person is in danger of personal injury by person or property is in danger of being damaged o Must then apply, as soon as reasonably practicable, for a protection order naming person as respondent (s118) Unlawful Stalking (s359B (a))  Is criminal offence and must be proved BRD a. Conduct intentionally directed at a person b. Engaged in on 1 occasion or it protracted on more than 1 occasion c. Consisting of 1 or more of conduct, or similar conduct, listed in (i) or (vii) d. That i. Would cause apprehension of fear, reasonable in circs, or violence OR ii. Cause detriment, reasonably arising in circs  It is immaterial whether: o Stalker intends stalker person to be aware of conduct o Stalker has mistaken belief about identity of stalked person o Conduct carried out is in relation to another person or property of another person: (s35C (1) and (2))  Conduct is engaged in: o One more than 1 occasion OR o 1 protracted occasion  (s329 B (b)  It is immaterial whether protracted conduct consists of same or different acts: (s359C (3)) Examples of stalking - (s359B (c))  Following, loitering near, watching or approaching person  Loitering near, watching, approaching or entering place where person lives, works or visits  Contacting person in any way including – phone, mail, fax, email or use of any technology

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Leaving offensive material where it will be found by, given to or brought to attention of, a person Giving offensive material to a person, directly or indirectly An intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence AND An act of violence, or threat of violence, against, or against property of anyone, including defendant

(s329 (d) Code that:  Would cause stalked person apprehension or fear, reasonably arising in all circumstances of violence to, or againist property of, stalked person or another person OR  Cause detriment, reasonably arising in all circumstances, to stalked person or another person o IT IS IMMATERIAL WHETHER:  Stalker intended to cause apprehension, fear or detriment (s359 (5)  Apprehension, fear or violence is actually caused: (s246)  (R v HUBBUCK)  (R v CONDE) What does detriment include? (s359A)  Apprehension or fear of violence etc.  Serious mental or psychological or emotional harm  Compulsion to do an act lawfully entitled to abstain from doing o Eg. uses diff. form of transport to travel to work, sells house, no longer able to walk around front yard (R v VAUGHN) What does unlawful stalking exclude? (s359 (d))  Acts done in execution of law or administration of an act or for a purpose authorised by Act  Acts done for purposes of genuine industry dispute  Acts done for purposes of genuine political or other genuine public dispute or issue carried on in public  Reasonable conduct engaged in by person for person’s lawful trade, business or occupation  Reasonable conduct engaged in by person to obtain or give info that person has legitimate interest in obtaining or giving Max. penalty for unlawful stalking (s359E)  Crime  Max penalty = 5 years imprisonment  Aggravated stalking = 7 years imprisonment Can court issue restraining order?  (s359 (F) o based on application from Crown, an interested person or jury/magistrates own initative o Contravening restraining order = an offence  Max. penalty = 40 penalty units (1 year impris.)  (ALI)  (R v DAVIES)

(s227 A) Observations and recordings in breach of privacy  Observations  Private place and private act  Without consent of subject  Genital or anal region  Visual recording  Misdemeanour = max. penalty – 2 years - In circumstances where reasonable adult would expect to afford privacy Private Place: (s207 A)  Place where person might reasonably be expected to engage in private act o Eg. bathroom, bedroom, change room, toilet Private act: (s207 A)  Showering, bathing, using toilet, intimate sexual activity not ordinarily done in public, another activity undress Observe: (s207 A)  Observe by any means eg. naked eye or digital device Virtually record: (s207 A)  Record or transmit by any means  Moving or still images of person or part of person State of undress: (s207...