Criminal Law and Procedure Assignment roadmap PDF

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This is a sample essay provided for the Criminal Law and Procedure mid-term assignment. It outlines the structure of answer problem questions, shows how to use cases and statutes to support your argument. ...

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David Larceny or larceny by mistake Larceny is not defined in Crimes Act 1900 (NSW)1 . Per Illich v R (1987) 162 CLR 110 (‘Illich (1987)’), common law elements for larceny are: physical elements/actus reus - property capable of being stolen, property belonged to someone else, asportation or appropriation without the owner’s consent; and mental elements/mens rea - intention to deprive permanently, a dishonesty or fraudulent act, and without honest belief of claim of right over the property.

In addition, mens rea must be present at the time physical action took place, unless the doctrine of continuing trespassing established in R v Riley [1853] EngR 23 (‘Riley [1853]’) applies. Physical elements

1) property capable of being stolen Section 4 Crimes Act defines property to include money and it is capable of being stolen. The element was proven.

2) Property belonged to someone else Jack transferred his own money. As for David, per Illich (1987), the title of money, passes once it is in someone’s possession due to its fungible nature. Therefore, David became the lawful owner of the overpayment once it was in his account. This element was not proven.

3) asportation or appropriation without consent of the owner David did not move the money. Jack transferred it at his will (consent), although he made a mistake to the amount. Therefore, consent was present.

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abbreviated ‘Crimes Act’.

2 Consent is present unless negated by a fundamental mistake.2 Per Illich (1987), to use larceny by mistake, the mistake must be a fundamental one; also per Illich (1987), an overpayment of money is not a sufficient fundamental mistake. Therefore, Jack’s mistake was not fundamental to negate consent. This element was not proven. Mental elements

1) intention to deprive permanently David noticed the overpayment, suspected a mistake but kept and spent it. Facts suggested that David intended to deprive the $4500 from Jack permanently. This element was proven. 2) dishonesty or fraudulent act

Under section 4B(1) Crimes Act, dishonesty has the meaning of dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people. This is supported by common law principles3 . Fraudulent acts require deception or use of deceptive means.4

David obtained the overpayment innocently and did not use dishonest or deceptive means. This element was not proven. David’s subsequence dishonesty to keep and spend the overpayment will be discussed in the paragraphs below.

3) Without honest belief of a claim of right over the property

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R v Potisk (1973) 6 SASR 389; Illich (1987). See, e.g., R v Ghosh [1982] 3 WLR 110. 4 Part 4AA of Crimes Act. 3

3 Per R v Fuge (2001) 123 A Crim R 310 (‘Fuge (2001)’), a claim of right must be a legal right to a property. David did not believe that he had a legal right to the overpayment. This element was proven. For larceny to occur, actus reus and mens rea must be contemporaneous: As discussed, David did not have the required mens rea (dishonesty or fraudulency) when the overpayment was transferred to him (actus reus). This time dimension requirement was not satisfied unless the doctrine of continuing trespassing applies. Per Riley [1853], this doctrine allows larceny to be found based on the subsequent formation of a dishonest or fraudulent intention5 . However, this doctrine requires the initial possession of the property to be somewhat unlawful (Riley [1853]). As discussed earlier, Illich [1987] made an exception for money, according to which David become the legal owner of the overpayment once it was in his account. Therefore, his initial possession of the overpayment was not unlawful, and the doctrine of continuing trespassing does not apply. Mens rea and actus reus was not contemporaneous. Conclusion: David did not commit larceny or larceny by mistake.

Jack 1. Assault (physical) Jack threw a hammer, struck and knocked David unconscious. Per Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 (‘Fagan [1969]’), assault is any act which intentionally or recklessly causes another to apprehend immediate and unlawful physical violence or causes unlawful force to another.

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See also Mingall v McCammon [1970] SASR 82.

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1) intentionally or recklessly

Per R v Venna (1976) QB 421 (‘Venna (1976)’), either intention or recklessness is a sufficient mens rea, and a subjective test (mind of the defendant) is used to assess recklessness. The defendant’s advertence to or foresight of the possibility of the harmful consequence is sufficient for recklessness, and the desire for or intention to cause the consequence is not required 6 .

Jack may not have desired or intended to injure David, but by throwing a hammer, he was acting advertent to the consequence and foresaw the possibility of hitting and injuring David. This element was proven. 2) causes another to apprehend immediate and unlawful physical violence

This element focuses on victim’s mindset and whether victim apprehended any immediate and unlawful physical violence. Per MacPherson v Brown (1975) 12 SASR 184, it is sufficient if the unlawful act or the defendant’s intention produces an expectation or apprehension in mind of the victim of unlawful physical contact. Fear is not required7. Whether David apprehended immediate physical violence is a question of fact for the jury. Jack and David were in a high conflict situation which could easily escalate. Jack was armed and David was worried about his kids. We can safely say that David apprehended immediate physical violence, although he was not scared. This element was proven. 3) or, causes unlawful force to another An unlawful force lacks victim’s valid consent8. David did not consent for Jack to throw the hammer. The severity of David’s injury is irrelevant because the degree

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MacPherson v Brown (1975) 12 SASR 184; Williams (1990) 50 A Crim R 213. Brady v Schatzel; Ex Parte Brady (1911) St R Qd 206. 8 See, e.g., R v Brown [1994] 1 AC 212. 7

5 of the physical impact is irrelevant when the force is unlawful 9. This element was proven.

Interim conclusion: all elements for assault were proven and there was no selfdefense. Jack committed assault.

Assault by consequence Section 59 Crimes Act and common law principles provide three types of assault by consequence: 1) intention or recklessness causing actual bodily harm; 2) intention or recklessness causing grievous bodily harm or wounding; and 3) unlawful or negligence causing grievous bodily harm. Recklessness was proven in prior discussion.

Actual bodily harm is any hurt or injury calculated to interfere with the health or comfort of the victim, but it must be more than merely transient or trifling 10. David’s unconsciousness and concussion fell within this definition. Further, whether Jack intended to cause only slight impact on David was irrelevant11. Therefore, Jack caused David actual bodily harm.

Grievous bodily harm or wounding is a very or really serious injury (DPP v Smith [1961] AC 290; Blackwell v the Queen (2011) 81 NSWLR 119). Section 4 Crimes Act also defines grievous bodily harm to include permanent or serious disfiguring of a person and causing grievous disease, etc. However, we couldn’t prove that David’s unconsciousness and concussion was very or really serious or fit it under the definition in Crimes Act.

Conclusion: Jack committed assault and caused David actual bodily harm. Jack is liable for up to 5 years imprisonment under section 59(1) Crimes Act.

Collins v Wilcock [1984] 3 All ER 374. R v Donovan [1934] 2 KB 498. 11 R v Williams (1990) 50 A Crim R 213; Percali (1986) 42 SASR 46. 9

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2. Assault (psychic) Jack threatened David over text messages. Per Fagan [1969], the required elements for psychic assault are intention or recklessness (mens rea) and causing another to apprehend immediate and unlawful physical violence (actus reus).

1) Intention or recklessness Per Venna (1976), either intention or recklessness is sufficient. Jack intended to use the threatening messages to press David to return the money. This element was proven. 2) Causing another to apprehend immediate and unlawful physical violence As discussed, this is a subjective test on victim’s mind 12. Words can create an apprehension of immediate physical violence13. However, per R v Knight (1988) 35 A Crim R 314, a vague threat of future violence is not sufficient. A vague threat or not depends on facts and circumstances. Jack’s text of “you will regret it” without a description of what, when and how, was more likely a vague threat of future violence. This element was not proven.

Conclusion: Jack did not commit assault for sending the threatening text messages.

3. Larceny Jack took David’s wallet and phone. The required elements in Illich [1987] are: 1) property capable of being stolen David’s wallet and phone fell within the definition of property in section 4 Crimes Act. This element was proven. 2) property belonged to another person

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MacPherson v Brown (1975) 12 SASR 184. Zanker v Vatzokas (1988) 34 A Crim R 11.

7 The wallet and phone belonged to David when Jack took them. This element was proven.

3) asportation/appropriation without consent of the owner Asportation is the physical movement of property. A slight movement of property is sufficient (Wallis v Lane [1964] VR 293). Jack picked up David’s wallet and phone and put them in his pocket; there was asportation. He did so without David’s consent. This element was proven.

4) intention to deprive permanently Based on the facts, Jack intended to take David’s belongings so to deprive his ownership permanently. This element was proven. 5) dishonesty or fraudulent act Per prior discussion, dishonesty is a person’s knowingly acting dishonestly measured by an ordinary person’s standard.14 Looking at the facts using an ordinary person’ standard, Jack acted dishonestly when taking David’s belongings and he knew it was dishonest. This element was proven.

6) Without honest belief of a claim of right over the property Honest belief is a defence for larceny that negates mens rea (consent)15. The relevant principles were summarised in Fuge (2001): (a) the claim must be genuinely and honestly held (whether it was well founded in fact or law is irrelevant); (b) the belief must be one’s legal entitlement to a property, not merely a moral one; (c) the claim of right is not confined to the specific property once held by the defendant, but can also extend to property equivalent in value; however (d) such claim of right must extend to the entirety of the property or money taken, and the defence cannot cover property or money intentionally taken exceeding the equivalent value.

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Crimes Act s 4B(1); Ghosh [1982]. R v Lopatta (1983) 35 SASR 101.

8 Facts indicated that (a) Jack held an honest and genuine belief over his entitlement to the overpayment, (b) his belief was for his legal entitlement, (c) he extended this right to the wallet and phone; (c) the wallet contained no money, and the phone was unlikely to worth more than $4500 (assuming it is a regular one given David’s adverse financial circumstance). This element was proven. Jack’s intention to deprive permanently occurred at the time he took David’s belongings. Actus reus and mens rea were contemporaneous.

Conclusion: no larceny due to Jack’s honest belief of his claim of right.

4. Robbery Per Smith v Desmond [1965] AC 960, the required elements for robbery are intention to steal, using threat or force putting the person in fear, and the property was taken from a person without consent. 1) intention to steal Jack intended to take David’s phone and wallet. As discussed above, Jack held honest belief of a claim of right. Honest belief of a claim of right means that there was no stealing, so there was no robbery (R v Langham (1984) 36 SASR 48). This element was not proven beyond reasonable doubt.

2) a degree of threat or force that put the other person in fear To leave the scene with the taken property, Jack used force – he stuck David. This element was proven. 3) property taken from a person For robbery to occur, the violence or threat must cause the property to pass (R v Gnosil [1824] EngR 432). David’s wallet and mobile phone passed to Jack due to Jack’s violence. This element was proven.

Conclusion: Jack did not commit robbery because there was no larceny or stealing.

9 5. Stealing from person Section 94 Crimes Act deals with the offense and penalty of stealing from person. Under common law, stealing from person involves “personal confrontation, potential for personal conflict and force or fear, particularly if the victim endeavors to stop the theft”16. Jack’s action looked like stealing; however, there is no stealing due to his honest belief of his claim of right.

Conclusion: Jack did not commit stealing from person. 6. Section 112 offence

A section 112 offense is committed if a person breaks and enters any dwelling-house and commits any serious indicatable offence therein17.

1) “Breaking” is not defined in Crimes Act. Common law principles require the use of force; however, fully opening a partially opened and unrestricted window is not considered “breaking” (Stanford v R [2007] NSWCCA 370). Jack he pushed open a partially opened window. There was no “breaking”. 2) “Enter” is not defined in Crimes Act. Per Galea v The Queen (1989) 46 A Crim R 158, it is a physical entry into the premise. Jack climbed into David’s house. “Enter” was proven. 3) Dwelling-house is defined in section 4 Crimes Act as a place intended for occupation as a dwelling. David’s house fell within definition. This element was proven. 4) Serious indictable offence is defined in section 4 Crimes Act as an offense carrying a five year or more imprisonment. Jack’s assault, carrying a five year imprisonment term18, fell within the definition. This element was proven.

Conclusion: Jack did not commit a section 112 offense.

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R v Delk (1999) 46 NSWLR 340 (Smart AJ). Crimes Act s 112. 18 Crimes Act s59(1). 17

10 7. Section 111 offence A section 111 offense is committed if a person enters any dwelling-house with intent to commit a serious indicatable offence therein.19 1) Per prior discussion, “enter” was proven. 2) Per prior discussion, “dwelling-house” was proven. 3) Per prior discussion, assault, being a “serious indictable offence” 20, was proven. 4) Whether there is “intent” is a matter of facts and circumstances. Per prior discussion, Jack held honest belief of his claim of right so there was no intention to steal or commit larceny. Jack intended to use the screwdriver and likely the hammer to break into David house but he didn’t commit “breaking”; intention to break into a dwelling itself is not a serious indicatable offence under Crimes Act. Jack, after taking David’s belongs, was on his way out of the house before getting caught. This indicated that he intended to take David’s belongs and leave, and did not intent to commit assault. Therefore, we could not prove Jack’s intention to commit a serious indicatable offence when entering David’s house. Conclusion: Jack did not commit a section 111 offense.

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Crimes Act s 111. Crimes Act s 4, s 59(1).

11 Bibliography A

Articles/Books

Eburn, Michael, Roderick Howie and Paul Sattler, ‘Hays & Eburn Criminal Law and Procedure in NSW’ (5th ed, 2016) Howie, Roderick and Peter Johnson ‘Annotated Criminal Legislation New South Wales’ (2018-19 ed, 2018) B Cases Illich v R (1987) 162 CLR 110 R v Riley [1853] EngR 23 R v Potisk (1973) 6 SASR 389 R v Fuge (2001) 123 A Crim R 310 Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 Mingall v McCammon [1970] SASR 82 R v Ghosh [1982] 3 WLR 110 R v Venna (1976) QB 421 MacPherson v Brown (1975) 12 SASR 184 Williams (1990) 50 A Crim R 213 Brady v Schatzel; Ex Parte Brady (1911) St R Qd 206 R v Brown [1994] 1 AC 212 Collins v Wilcock [1984] 3 All ER 374 R v Donovan [1934] 2 KB 498. DPP v Smith [1961] AC 290; Blackwell v the Queen (2011) 81 NSWLR 119 R v Knight (1988) 35 A Crim R 314 R v Williams (1990) 50 A Crim R 213 Percali (1986) 42 SASR 46. MacPherson v Brown (1975) 12 SASR 184. Zanker v Vatzokas (1988) 34 A Crim R 11. Wallis v Lane [1964] VR 293 Smith v Desmond [1965] AC 960 R v Lopatta (1983) 35 SASR 101. R v Langham (1984) 36 SASR 48 R v Gnosil [1824] EngR 432

12 Stanford v R [2007] NSWCCA 370 Galea v The Queen (1989) 46 A Crim R 158 R v Delk (1999) 46 NSWLR 340 C Legislation Crimes Act 1900 (NSW) D Other The Judicial Commission of NSW, Criminal Trial Courts Bench Book...