Criminal law assignment PDF

Preview

Summary

major...

Description

CRIMINAL LAW ASSIGNMENT Various Issues, Elements, Offenses , Citations and Criminal liabilities against MARK, REGGIE and MARY By DAIZI RANI Student id : 10500212 Course Code : Y11 Date : 27.4.2019

This work of mine include number of cases concluded from the criminal law assignment work related to Reggie , Mark and Mary where Reggie and Mark are very good friends and Mary is Reggie’s girlfriend. Here I will explain various issues of fatal offenses, non fatal offenses, Grievous Bodily harm(GBH), sexual offenses with consent , sexual offenses without consent ,consent withdrawn , unlawful activities related to BASE jumping, trespassing, offering liquor to a person less than 18 years ,drinking of a person in a private property ,physical assault with consent etc. have been considered .

1

CRIMINAL LAW ASSIGNMENT CASE 1 ISSUE : Did Reggie caused Grievous Bodily harm (GBH) to Mark ? ELEMENTS : (a) Unlawfully done . (b) Grievous body harm was done . (c) Permanent injuries and endangering life occurred. RULE : Section S1 of The Criminal Code Act compilation act (Western Australia) 1 defines “Grievous Body Harm (GBH ) as any bodily injury of such nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health “. According to the Section s297 of The criminal code Act compilation act 1913 2 , if a person unlawfully does grievous bodily harm to another with an intend to do harm and it causes a permanent injury and endanger the life of a person then it is considered to be a serious offense and the person is liable to get imprisonment for 10 years in Western Australia or 14 years in Queensland. APPLICATION : Pursuant to section 1 and section 297 , it can be argued that Reggie was very upset with Mark for sleeping with his girlfriend Mary so he knowingly packed Reggie’s parachute in a manner which caused grievous bodily harm to Mark causing permanent body injuries and also endangering his life. Mark and Reggie were expert in packing parachute from last number of years . They always entrusted each other’s parachute and they never had any mishap. Since Reggie was very upset with Mark for having sexually assaulting his girlfriend Mary , which Mark confided him to tell himself . Reggie deliberately packed Mark’s Parachute with an intention to harm Mark and it didn’t open on time, because of which Mark was seriously injured, his bones of both legs were broken and he had a permanent limp. In Ashley Edward Tranby v R (1991) 52 A CRIM R 228, court found that Grievous Bodily Harm (GBH ) didn’t occur as victim’s loss of earlobe bitten by the appellant was a cosmetic issue. It did not effect the victim’s hearing capability and didn’t cause a permanent injury to the health unlike Mark’s case where he had broken every bone of his both the legs and he had a permanent limp . CONCLUSION : Since Reggie caused Grievous bodily harm to Mark unlawfully and also endangered Mark’s life so all the three elements were met . Reggie is liable to get imprisonment for ten years.

1. Section 1 of The Criminal code Compilation act. 1913 for Western Australia 2. Section 297 of The Criminal code Compilation act. 1913 for Western Australia

2

CRIMINAL LAW ASSIGNMENT

3.

3

CRIMINAL LAW ASSIGNMENT CASE 2 ISSUE : Was Reggie And Mark doing illegal activity by doing B.A.S.E jumping from QBE which is a private building ? ELEMENTS : (a) BASE jumping is illegal activity . (b) Trespassing the private building . RULE : Considering number of deaths in Australia due to BASE jumping, BASE jumping in Western Australia is banned in national parks and from private buildings , due to danger of life associated with it. For BASE jumping in private buildings and national parks , one needs to take proper permission which is almost impossible to get. According to the Australian Base Association, BASE jumping requires increased level of safety and permission. As per Section70 (A) of Western Australia, “Trespassing means to enter into a place without the consent of owner or occupier having control or management of that property” . A trespasser if found guilty, is liable to get imprisonment for 12 months. It is mentioned in section 70(A)2 that a person trespassing on a place without lawful excuse is guilty of an offense . APPLICATION: Reggie and Mark used to do BASE jumping from private buildings. On that particular day of incident , they decided to do BASE jump from the top of the QBE building . Since it has been mentioned that they sneaked so it is quite possible that they must not be having the permission to jump from the QBE building. They trespassed the QBE building unlawfully which is an offense against public order and breaching of the peace . CONCLUSION : Since Reggie and Mark trespassed the QBE Building unlawfully, they are found guilty and liable to get imprisonment for twelve months.

4

CRIMINAL LAW ASSIGNMENT CASE 3 ISSUE: Is Mark guilty of sexual penetration into Mary without her consent ? ELEMENTS : (a) Sexual Penetration . (b) Without the consent of another person . (c) Consent was withdrawn . RULE : According to the section 325 of ,The criminal code Act compilation act 1913 , if a person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to get imprisonment for 14 years. The provision of section 325 (WA) does not define the term “Penetration” which is defined broadly in Section 319(1) which says that “To sexually penetrate means, penetrate the Vagina, anus or urethra of any person by means of any part of the body or with any object” . According to section 319(2)a consent should be freely and voluntary given and consent can be withdrawn any time . APPLICATION : Pursuant to section 325 , 319(1) and 319(2) , it can be argued that Mark , Reggie and Mary were all drunkard badly and then Mark went to Mary’s bedroom, while she was badly under the influence of alcohol and not in a condition to give consent .Reggie was also in such a bad condition in the bathroom that he Mary was unable to bring him to the bed. Mark tried to persuade Mary several times for having sex with him though Mary was reluctant to do this. But mark didn’t stop and wrapped his hands around Mary and kept perusing her and kissing her intensely. After several denials, Mary agreed to just do kissing and asked Mark to stop after that, but Mark didn’t stop there and caused penetration into Mary which was against Mary’s consent. According to the Model Criminal Code Officers Committee , new formulation of word “CONSENT” means “free and Voluntary Agreement” instead of “free and voluntary given” which means “it must be active agreement on both sides” . In Saibu V the Queen (1993) 10 WAR 297 , the accused had sex with the victim but after that complainant fall asleep , accused did not stop here and continued doing sex with her repeatedly . According to the accused she consented during first act of sexual penetration when she was awake but once she slept, consent was withdrawn and while sleeping is a situation where there can not be consent. In case of Michael v Western Australia(2008) 183 A CRIM R 348, level of threat and control were main reasons for getting the consent. Since , the appellant who posed himself as a police officer and both the survivors were drug addicted prostitutes ,who failed to resist as they were under the influence of offender being a police officer and they had previously been arrested for engaging in prostitution. In this case there was a lack of consent as it was obtained by a combination of deceit , threat and intimidation. It was a fearful submission, not the consent.

5

CRIMINAL LAW ASSIGNMENT

In case of Holman v the Queen(1970) war 2, the accused threatened to kill the victim if she screams and she under the influence of threat she submitted for penetration but according to the judge, consent obtained by any kind of force or threat is not considered a willing consent . In Kaitamaka v the Queen (1985) 1 AC 47 , it is considered to be a post penetration rape, if a women initially consents to have sexual intercourse with the defendant , but during any stage of intercourse , she withdraws her consent to have sex but the defendant continues to do it even woman wants to stop. In Ibbs v The Queen (1988) WAR 91, complainant said that appellant first requested complainant to have intercourse which she objected by saying that’s not correct but later she agreed when Mrs. Ibbs Persuaded her and both complainant and appellant had sequence of events but later again complainant became upset during intercourse and had withdrawn but appellant had ejaculation which he said that occurred “right at the last minute” butjury considered the verdict based on continuing act of intercourse. CONCLUSION : Mark is guilty of having sexual penetration without consent of Mary and is liable to get imprisonment for 14 years.

6

CRIMINAL LAW ASSIGNMENT CASE 4 ISSUE : Did Mark shooting Reggie was an unlawful assault which was acceptable as it occurred when Reggie consented EELEMENTS : (a) Grievous Bodily Harm (b) Assault was unlawful (b) Consent was there for assault RULE : In Section 317(WA) (1) Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime and if offense is committed in circumstances of aggravation , there is a penalty of 7 years else in any other case there is a penalty of 5 years. (2) Also assault is also an element for more serious offenses relating to severity of injury sustained by the victim. According to section 297(WA) , Grievous body harm defined as something causing a serious disease to a person. In Western Australia according to The Criminal Code Act Compilation s222, a person is deemed to have committed the offense of assault when they strike, move, and touch or otherwise uses force either directly or indirectly to another person without their consent. In cases of consent, the consent must not be obtained through fraudulent (the victim must have given the consent freely and without being manipulated into giving the consent) means or by threats. According to The Criminal Code Act Compilation Act, s223 , the application of force by one person to another may be unlawful, though it is done with the consent of that person. Criminal responsibilities doesn’t arise unless the assault is unlawful. In Lergesner v Carroll (1990) 49 A Crim r51 , Carroll was convicted of unlawfully assaulting Lergesner causing bodily harm. He claimed that Lergesner consented and asked him to settle everything here only. In this particular case consent was the central issue , where defendant was mistaken with the fact that the victim consented. A person can not consent to certain type of assaults for public policy reasons. In R v Billinghurst (1978) Crim LR 553 a rugby player punched the opponent and his upper jaw was fractured and he was found guilty of having Grievous body harm , though it is consented in a match but it was still unlawful APPLICATION: Reggie and Mark were really good friends and Reggie didn’t pack Mark’s parachute properly as he was upset with Mark for having sex with his Girlfriend Mary. Mark parachute didn’t open at right time and broke almost all the bones of his leg. Reggie felt guilty and responsible for the injuries suffered by Mark . ,

7

CRIMINAL LAW ASSIGNMENT He brought a gun so that Mark could shoot him in his leg and it will cause equal loss to both of them, and things will be settled. So Reggie has consented for this assault. This teared Reggie's knees. Both Reggie and Mark had a permanent limp The application of force as set out in s222 is also met as Mark uses a gun to cause injury and personal discomfort to Reggie which shows that assault causing Grievance Body Harm. Though Reggie consented to shoot himself but according to s223, it is still unlawful. Criminal responsibility arises when an assault is unlawful or not authorized CONCLUSION: Though Reggie consented to shoot himself , but application of force is unlawful assault even though Reggie consented for it and Mark is liable to be punished for causing GBH to Reggie with his consent but it was unlawful.

8

CRIMINAL LAW ASSIGNMENT

9

CRIMINAL LAW ASSIGNMENT CASE 5 ISSUE : Is it an offense by Mark and Reggie to offer liquor to Mary who is just 17 years old? EELEMENTS : (a) drinking liquor at age of 17 (b) offering liquor to someone below 18 RULE : According to Liquor control act 1988, section 115, it is not an offense to drink liquor in a private place if the person is below 18 but the person serving alcohol to another person whose age is less than 18 should be either parents of the person or should act in a responsible manner. APPLICATION: Mark and Reggie cannot be considered to take proper responsibilities , as they were already drunkard badly, Reggie being in a bad condition in the bathroom and Mark didn’t care of Reggie and Mary and came to Mary’s bed without her consent . They were also not parents of Mary whose presence would have allowed Mary to drink in a private property though she is less than 18 years. CONCLUSION: Mary is not found guilty , although she is less than 18 years but she was drinking in a private property but Mark and Reggie committed an offense by behaving in an irresponsible manner and offering liquor to a girl below 18.

10

CRIMINAL LAW ASSIGNMENT Overall Conclusion : The cases discussed above leads to several conclusions

11



Reggie satisfies all the essential elements of GBH and should be convicted of causing grievous bodily harm to Mark by not packing his parachute properly and causing serious injuries to Mark with a permanent limp and several bones broken .



Mark also satisfies all the elements of causing Grievous Body harm to Reggie in spite of the fact that Reggie asked to shoot him as he wants both of them to be at equal level . Mark committed two major crimes by causing Grievous bodily harm to Reggie by shooting in his leg for which Reggie consented but it was unlawful.



Another crime committed by Mark was an offense of Sexually assaulting Mary without her consent because it is considered in this case that Mary consented to kiss her but Mark caused sexual penetration which was not consented buy Mary.



Reggie and Mark both are guilty of trespassing a private building and do BASE jumping without permission .



Mary doesn’t seem to have committed a crime by drinking in a private property though she is less than 18 years.

CRIMINAL LAW ASSIGNMENT BIBILIOGROPHY 1. Articles , Publications , Books Books :  

THE CRIMINAL CODE (Commentary and Materials) by THOMAS CROFTS and KELLEY BURTON CRIMINAL LAW in QUEENSLAND and WESTERN AUSTRALIA by KELLEY BURTON and GETRAIDINE MACKENZIE



Articles :  



META SYLLOGISTIC ANALYSIS OF AN OFFENCE – ELEMENTAL AND ELEMENTARY by Toby Nisbet* and Kenneth Yin** Duff, R. A, Responsibility And Liability In Criminal Law (Oxford University Press, 2008) "Assault Laws, Assault Charges, Bodily Harm And Wounding, Lawyers, Brisbane, Criminal Charges", Awbrisbanelawyers.com.Au (Webpage, 2019)

2. Websites www.Australiaanbaseassociation.com www.legislation.wa.gov.au www.slp.wa.gov.au www.liqourcommission.wa.gov.au

3. Databases a. Lexis advance Pacific b. Westlaw

4. Case references

12



Tranby v R (1991) 52 A CRIM R 228



Saibu v The Queen(1993) 10 WAR 279



Holman v the Queen (1970) WAR 2



Michael v Western Australia(2008) 183 A CRIM R 348



Kiatamaki v The Queen(1985) 1 AC 147



Ibbs v The Queen (1988) WAR 91.



R v Coleman (1992) 13Cr App R (S) 508



R v Mitchell (1983) QB 741

CRIMINAL LAW ASSIGNMENT 

R v Maloney (1985) AC 905



R v Hallet (1969) SASR 141



Lergesner v Caroll (1990) 49 A Crim R 51.



R v Fairbrother; ex parte AG(Qld) (2005) QCA 105



R V Getachew (2012) HA 10.



R v Leeson (1968) 52 CrAppR 185



R v Turner(1900) 18 NZLR 874



R v Court (1987) QB 156



R v Billinghurst (1978) Crim LR 553

5. Legislation

13



The Criminal Code Act Compilation Act 1913 (WA)



The Liquor Control Act 1988 (WA)...