Criminal Law Exam Notes PDF

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Lecture Wk 1 – Introduction to Crime & Criminal Justice System

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Lecture Wk 2 – Principles of Criminal Responsibility

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Lecture Wk 3 – Non-Fatal Offences Against the Person

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Lecture Wk 4 – Sexual Offences

Page: 9

Lecture Wk 5 – Property and Dishonesty Offences

Page: 14

Lecture Wk 6 – Drug Offences

Page: 18

Lecture Wk 7 – Murder

Page: 21

Lecture Wk 8 – Manslaughter and Other Offences Involving Death

Page: 24

Lecture Wk 9- Defences: Mental State, Intoxication, Self-Defence, Extreme Provocation Page: 25

Lecture Wk 10 – Extending Criminal Liability (Attempt, Conspiracy, Complicity) Page: 31

Lecture Wk 11 – Criminal Procedure I (Investigation, Arrest, Bail)

Page: 37

Lecture Wk 1 – Introduction to Crime & Criminal Justice System Crime:  Contested concept with no undisputed definition;  Acknowledging history of the criminal law useful and one should be mindful of laws that have come and gone;  Socially and culturally crimes may differ;  Some crimes are immoral and some immoralities are not criminal i.e. drug possession/use;

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Recent human rights purport that a crime occurs when ones’ human rights are infringed by another, which produces the concept that the state can commit a crime;  Different perspectives like this are balanced when developing the law. Substantive:  Crimes Act 1900 (NSW) and others i.e. Public Health Act 2010 (NSW) Procedural:  Criminal Procedure Act 1986 (NSW) & LEPRA 2002 (NSW) Sentencing:  Crimes (Sentencing Procedure) Act 1999 (NSW), a third branch? Sources:  State legislation and common law;  Commonwealth does not have general power to make criminal laws and can only make laws sufficiently connected to a s51 head of power;  Efforts for a national criminal law/code have failed;  Focus on Criminal Code (Cth) not acute but necessary in practice of criminal law in NSW. Seminar 1 – Orientation to Crime and Criminal Law Criminal Law:  Primarily state based residual power;  Some offences ceded to Commonwealth;  NSW, SA, VIC – Common law jurisdictions;  Other jurisdictions codified, ACT both; Criminal Code:  Covers entire field, nullifies common law; Crime v Tort:  Public v Private Law Crime:  Any prescribed criminal offence; Principal Core of Criminal Law – Per Ashworth:  Only laws used for substantial wrongdoing;  Enforced equally;  Accused should be afforded appropriate protections;  Emphasis on requirement for fault element and proper procedural protections. No Fault Element = Strict liability offence Role:  To order society, define its type and to prevent anarchy. Dietric Principal – Right to representation and properly informed counsel. Gordon Wood – Prosecutors Conduct – DPP Handbook. Lecture Wk 2 – Principles of Criminal Responsibility

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Elements of Criminal Offences:  Physical Elements – Actus Reus  Fault Elements - Mens Rea  Determined by process of statutory interpretation with reference to common law principles re criminal responsibility;  Burden of proof on prosecution beyond reasonable doubt per Evidence Act 1995 (NSW) s141(1);  “Jury people themselves set the standard of what is reasonable in the circumstances” per Green v The Queen (1971) 126 CLR 28;  Burden of proof on accused in some circumstances but on balance of probabilities per s141(2) Evidence Act 1995 (NSW). Physical Elements: Actus Reus  Conduct: Acts/omissions/states of being prohibited by law;  Circumstance – Context in which accused’s conduct takes place;  Consequence – Particular result caused by accused’s conduct  Offense may include any number of physical elements;  Causation – link between conduct & consequence; Conduct:  Voluntariness/ exercise of free will;  Not to be confused with general intent;  Ryan v R (1967) 121 CLR 205 – Squeezing of Trigger a reflex action – “Reflex action a consequence of foreseeable danger and therefore conscious thought”;  Accused bears evidentiary burden to prove that their conduct was not voluntary per Ryan v R (1967) 121 CLR 205;  Gillet v R (2006) 166 A Crim R 419 – seizure whilst driving caused harm, whilst seizure was involuntary, Accused’s proneness to seizures and knowledge of such evidenced his willingness to cause harm; Fault Element: Mens Rea  Intent – When person sets out to do act (basic intent) or bring about particular consequence (specific intent);  Accused meant to do the thing i.e. contact during assault (basic);  Accused intended to kill/ cause GBH (specific);  Motive may form part of intent but does not form intent in and of itself;  Knowledge (subjective) – aware that circumstances exist or that particular act will lead to a particular consequence, i.e. what accused ought to have known given the particular circumstances;  Evidence of wilful blindness might support an inference of knowledge;  Recklessness (subjective) – where prosecution can prove accused foresaw possibility that particular consequences could result from that conduct;  General principle of recklessness often tailored to particular offences. Some offences create further risk threshold i.e. murder in that prosecutor must prove accused foresaw PROBABILITY that circumstances existed or that particular consequence may be caused;  Requirements again determined by process of statutory interpretation;  Inadvertent Recklessness – When accused did not or could not consider possibility circumstances could result in consequences; o Authoritative sources i.e. judicial commission benchbook tend to avoid providing general definition of recklessness and prefer to maintain subjective approach;

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Negligence – What a reasonable person would have done given the circumstances i.e. foreseen consequences and avoided them (objective). Coincidence of Physical & Fault Elements:  Not enough to prove both physical and fault elements, but also that they coincided in time per Meyers v The Queen (1997) 71 ALJR 1488;  Act and intent must coincide;  Instances exist where act can come before or after intention. Mens Rea: Strict and Absolute Liability  Presumption that all offences fall under prosecutorial onus to prove to relevant standars;  Strict liability offences assume mens rea unless material is advanced by defence of existence of honest and reasonable belief conduct was not criminal on balance. Prosecutor must then negate such belief beyond reasonable doubt;  Absolute liability offences are those that require only prima facie inference of guilt and no requirement for evidence of mens rea, only defence is in testing & rebutting prima facie elements;  Sometimes a single element of an offence is strict liability, but does not mean whole offence is such;  Strict Liability – Accused entitled to displace presumption of mens rea by showing honest and reasonable mistake of fact on balance per He Kaw Teh (1985) 157 CLR 523;  Absolute liability – Common among regulatory offences e.g. failure to display P plate per DPP v Stanojlovic (2017) 53 VR 90. Application of Elements – Crimes Act 1900 (NSW) s86: 86 Kidnapping (1) Basic offence. A person who takes or detains a person without the persons consent – (a) with the intention of holding the person to ransom, or (a1) with the intention of committing a serious indictable offense, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years.

Actus Reus Mens Rea

Conduct Circumstance Taking/detaining person Without consent Intention to take/detain Knowledge/recklessnes s re lack of consent Basic Intent

Knowledge/recklessnes s

Intent to hold for ransom or commit SI or obtain any other advantage. Specific Intent

Seminar 2 Local Court Election:

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Magistrate can determine if offense that was originally to be dealt with by penalty notice is to be recorded on criminal record. Covid 19 Regs:  Not regulations of parent legislation but other form of subordinate legislation. [Intention – Knowledge – Recklessness] – Subjective Mens Rea [Negligence] – Objective Mens Rea: What reasonable person ought to

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Lecture Wk 3 – Non-Fatal Offences Against the Person Common Assault:  S61 Crimes Act, substantive content at common law per Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439, Venna [1967] QB 421, McIntyre [2009] NSWCCA 305;  Act which intentionally/ recklessly causes a person to apprehend immediate and unlawful personal violence. Actus Reus: Fear of violence  Causing another to fear violence OR Making unlawful physical contact;  Act of accused causes fear of infliction of immediate unlawful force per Fagan;  Words alone are sufficient per Barton v Armstrong [1969] 2 NSW R 451;  Words not required per Smith v Superintendent of Working Police Station (1983) 76 Cr App R 234;  Fear of imminent harm per Zanker v Vartzokas (1988) 34 A Crim R 11;  Phone calls where accused remained silent an assault per Ireland and Burstow [1998] AC 147;  Fear of future violence may not be sufficient. Actus Reus: Unlawful Physical Contact  Application of force to victim per Fagan;  Slightest contact sufficient per Thomas (1985) 81 CR App R 33;  Contact through implement per Fagan;  Spitting per DPP v JWH (NSWSC, 1997) – Unreported; Mens Rea:  Intentionally – “Intended… to make unlawful contact per Fagan;  Recklessly where accused foresees possibility that contact may be made and ignores risk per Vallance (1961) 108 CLR 56;  Inadvertence not sufficient per Macpherson v Brown (1975) 12 SASR 184; Aggravated Assault  Per ss 32-49A, 54-60E Crimes Act;  Involves a specific intent to cause harm, a specific method, status of victim or setting;  Builds upon Common Assault offence; E.g – ABH  S 59 Crimes Act does not require proof of specific intent to cause ABH per Coulter v The Queen (1988) 164 CLR 350; E.g – Reckless GBH  Actus Reus – Causes GBH;  Mens Rea – Is reckless to cause GBH. ABH at Common Law:  “More than merely transient or trifling” per R v Donovan [1934] 2 KB 498;  Bruising per Cameron [1983] 2 NSWLR 66;  Scratching/Cuts/Grazing per Kybayli [2017] NSWDC 197;  (Some) psychological injuries per Lardner (NSWCCA, 1998) – Unreported;  Must be built on foundation per Donovan;  Expert evidence important per some psychological injuries e.g might be no more than a strong emotion as opposed to psychological condition or injury caused: PTSD, Depression, Anxiety etc. GBH at Common Law:

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Really serious bodily harm per DPP V Smith [1961] AC 290, Haoui [2008] NSWCCA 209, Swan [2016] NSWCCA 79;  Defined per s4 Crimes Act; Examples:  Complex skull fractures per Remilton [2001] NSWCCA 546;  Significant facial fractures per Sumeo [2002] NSWCCA 271;  Rib fractures in a child per BJR [2008] NSWCCA 43;  NOT a fracture of l3 vertebra per Swan [2016] NSWCCA 79; Wounding:  Not defined in Crimes Act but an injury that breaks the interior layer of skin per Shepherd [2003] NSWCCA 351;  Can be created with a fist, no cutting or piercing implement required per Bullock (1886) LR1 CCR 115 (Cited in Shepherd);  Varies in severity per Chen [2013] NSWCCA 116; Wounding or GBH with intent – s33 Crimes Act: Section 33(1):  Actus Reus – Wounds/Causes GBH;  Mens Rea – With intent to cause GBH; Section 33(2):  Actus Reus – Wounds/Causes GBH;  Mens Rea – With intent to resist or prevent others arrest;  Alternate verdict per s35(5) Crimes Act. Key Case:  Aubrey v R (2017) 260 CLR 305 – deals with s35(1)(b) Crimes Act;  4:1 verdict HCA found “inflicts” is not limited to immediate consequence and extends to transmission of grievous bodily disease Aggravated Assaults in Circumstances:  s 4(1) Crimes Act – With offensive/dangerous weapon, definition of per Pittman v DiFrancesco (1985) 4 NSWLR 133;  ss38 – 41A Crimes Act – With intoxicating substances (e.g. spiking of drink);  ss60AA – 60C Crimes Act – Assault LEO. Consent & Assault:  With consent = no assault per R v Schloss and Maguire [1897] QLJR21;  Onus on prosecution to disprove consent beyond reasonable doubt per Donovan;  Brown [1994] 1 AC 212 – Bondage/Sadomasochistic Sex – Consensual harm and public interest – Key case and starting point re consent;  Then Wilson (1996) 2 Cr App R 241 – Harm threshold uncertain;  Once an aggravated offence consent becomes irrelevant per Emmet [1999] EWCA Crim 170;  Exceptions exist on policy grounds including:  Medical treatment per Reeves (2013) 304 ALR 251;  Tattooing/body modification per Brown [1994] 1 AC 212 (key case re consent);  Boxing per Attourney-General’s Reference No6 of 1980 [1981] QB 715, Pallante v Stadiums Pty Ltd (no1) [1976] 3 VR 331;  Contact Sports per Brown. Defences to Assault:  Self-defence, mental illness, intoxication re specific intent element, lawful correction (Parents disciplining child) per DPP v FD [2017] NSWSC 679 (on balance);

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Crimes (Personal and Domestic Violence) Act 2007 (NSW):  Section 13 creates offence of stalking/intimidation with intent to cause fear of physical harm;  Does not require prosecution to prove victim feared physical harm;  Act creates framework for ADVO/Preventative orders, with aim to control perpetrators behaviours etc. via offences that apply to breaching og said orders. ADVO/APVO:  Made on balance of probabilities that victim would fear objectively and does fear subjectively that perpetrator may commit relevant offences;  Courts have discretion to impose a wide range of restrictions and conditions other than standard conditions. Seminar Wk 3 –  Prosecutor will use inferences from evidence when admissions are not made, i.e. demeanour of accused, words spoken or actions around time of offence etc.;  DPP must note alternate charges (assuming they exist) otherwise jury not able to find alternate guild, however jury free to find alternate guilt of offence at common law;  Browne v Dunn rule – if defence intends to present evidence that contradicts a witness as part of defences argument, that version of events or argument must be put to the witness during cross-examination per Browne v Dunn 6 R.67 H.L.

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Lecture Wk 4 – Sexual Offences Overview:  Significant reform since 1981;  Most recent in Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 NSW;  Elements of major sexual offences addressed in Crimes Act;  Crimes Act a starting point in identification and characterisation of elements of these offences;  Crimes Act abolished immunities for boys under 14 (s80AC(1)) and husbands (s61KA); Sexual Assault Elements: S61I Sexual Assault Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years. Actus Reus Mens Rea

Sexual Intercourse (Crimes Act s61HA)

Without Consent (Crimes Act s61HE(2),(5) – (6), (8) – (10)

Intentional (Common Law General Principles)

Knowledge re Lack of Consent (Crimes Act s61HE(3) – (4), (7) and per Common Law

Sexual Assault Actus Reus:  1) An act of sexual intercourse, defined by Crimes Act s61HA;  2) Lack of consent – Absence of consent a circumstance;  (Must be free consent, given voluntarily per s61HE(2), Clark (NSWCCA, 1998), Mueller (2008) 62 NSWLR 476;  Person does not consent by way of lack of physical resistance per s61HE(9);  Consent negated by law in some instances (ss61HE(5),(6): o Age/mental capacity per s80AE, McGrath (2010) 199 A Crim R 527;  Mental capacity not specifically defined;  Similar definition in s80AE – Consent no defence in certain cases; o Unconscious/asleep per Dean (2006) 166 A Crim R 341; o Threats/terror per Clark (NSWCCA, 1998); o Mistaken belief induced by fraudulent means i.e. victim believed would be paid for sexual activity etc. (Plethora of instances applicable);  Absence of consent may be shown in circumstances per s61HE(8); o Substantially intoxicated per Chant and Madden (NSWCCA, 1998), Blaney (2003) 87 SASR 354, Francis [1993] 2 Qd R 300; o Intimidating/coercive conduct per Aiken (2005) 63 NSWLR 719;  (Intimidation alone not sufficient enough)  s61HE not exhaustive per s61HE(10). Sexual Assault Mens Rea:  Intent: o Prosecution must prove intent beyond reasonable doubt per Evans (1987) 48 SASR 35, AJS (2005) 12 VR 56; o Must be intentional and jury must be directed as above per Evans.

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Knowledge re Consent: o Knowledge about consent defined per s61HE(3),(4) and beyond ordinary meaning of term; o Expansion of consent one of most significant reforms of criminal law in NSW;  Knowledge means knowledge per s61HE(3)(a)/s61HE(2);  Knowledge includes recklessness per s61HE(3)(b);  Advertent recklessness per Banditt (2004) 151 A Crim R 215, Hemsley (1988) 36 A Crim R334, Mueler (2005) 62 NSWLR 476 – Possibility complainant did not consent. i.e. Actually realising and having that realisation proceeding anyway;  Banditt – Accused entered victims house while victim sleeping and initiated sexual intercourse, victim consistently rejected romantic advances though accused alleged sex before w/consent. CCA James J – “even if probable, not certain, still reckless i.e slight possibility”.  Inadvertent recklessness per Henning (NSWCCA, 1990), Kitchner (1993) 29 NSWLR 696, Tolmie (1995) 37 NSWCCA 660;  Muller (2005) 62 NSWLR 476 – Appeal – Conviction erroneous as did not require proof of subjective mens rea. Held/observed that parliament had authorised punishment of inadvertent behaviour and standard applied without obvious difficulty.  Non-advertent recklessness per Lazarus [2016] NSWCCA 52 – not addressing consent i.e. not treating consent as relevant factor will result in inadvertent/non-advertent recklessness;  Kirby J – “excusing inadvertent recklessness is unacceptable and contradicts societal expectations of the law and vital to preserve the right to human dignity. Would otherwise reaffirm view that criminal law does nothing when needed” (sic);  Prosecution can establish recklessness beyond reasonable doubt by establishing accused has no reasonable grounds for believing victims consent to sexual activity per s61HE(3)(c) and Lazarus, Fullerton J “Jury must consider all the circumstances of the case including any steps taken to ascertain consent, but not including any self-induced intoxication”. Mens Rea Summary:  Knowledge of absence of consent defined per s61HE;  Definition contemplates proof of mens rea element either by: o Proof of knowledge itself; o Proof of recklessness; o Proof of accused’s belief in consent not based on any reasonable grounds;  Prosecution not limited to putting its case on just one of these and can use more than one or all, but does create significant complexities for trial judges and in providing for directions to juries. Aggravated Sexual Assault Offences:  s61J(1) Aggravated Sexual Assault;  s61J(2) lists alternative circumstances of aggravation;  Prosecution need only prove one circumstance BRD; 10

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s61JA Aggravated Sexual Assault in Company; Compound offence: elements of sexual assault and “in company” and inflict ABH/threaten ABH with weapon or instrument or deprive liberty. “In company”:  Aggravating feature in many offences but regarded as especially serious in context of sexual offences;  Leading authority: R v Button and Griffen (2002) 54 NSWLR 455;  Kirby J at [466] – “The test is coercive…effect of the group. There must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission”;  On appeal – Group of offenders must share a common purpose. Physical presence required, participation in common purpose without presence insufficient. Victim also need not know other persons present, Others in group 50m away but in remote area for purpose of assaulting victim. Sexual Touching Actus Reus: ...