Criminal Law Exam Notes PDF

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IX81 – Bachelor of Business/ Bachelor of Laws (Honours) LLB106 – Criminal Law

Start – 8:30 Question 1 – 8:30- 10 Question 2 – 10-11 Finish - 11am

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Criminal Responsibility and Complicity Circumstantial Evidence: 

Indirect evidence

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Shepherd v R – juries must be directed that they cannot use a fact as a basis for inferring guilt unless that fact is proved beyond reasonable doubt.

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Can be convicted on circumstantial evidence alone: Mckinnery v R

Criminal Code 1899 (Qld) ss 16 Person not to be twice punished for same offence A person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission. 

Except in the case where the act or omission is such that by means thereof the person causes the death of another person, in which case the person may be convicted of the offence of which the person is guilty by reason of causing such death, notwithstanding that the person has already been convicted of some other offence constituted by the act or omission.

ss 17 Former conviction or acquittal It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged. Note— This section does not apply to the charge mentioned in section 678B (Court may order retrial for murder—fresh and compelling evidence) or 678C (Court may order retrial for 25 year offence— tainted acquittal). ss 23 Intention—motive (1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for— (a) An act or omission that occurs independently of the exercise of the person's will; or (b) An event that— (i) The person does not intend or foresee as a possible consequence; and (ii) An ordinary person would not reasonably foresee as a possible consequence. Note— Parliament, in amending subsection (1)(b) by the Criminal Code and Other Legislation Amendment

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Act 2011, did not intend to change the circumstances in which a person is criminally responsible. (1A) However, under subsection (1)(b), the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality. (2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial. (3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility. ss 29 Immature age (1) A person under the age of 10 years is not criminally responsible for any act or omission. (2) A person under the age of 14 years is not criminally responsible for an act or 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. ss289 Duty of persons in charge of dangerous things It is the duty of every person who has in the person's charge or under the person's control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty. Elements to Offences: 1. Actus reus (guilty acts) – physical acts or omissions constituting an offence 2. Mens rea (guilty mind) – the mental elements or state of mind necessary to constiture offence (not assumed in Qld)

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Actus non facit reum, non est mens sit rea (the act itself does not constitute guilt unless done with a guilty intent) – is not a feature of the criminal law of Qld. Intention, motive etc are irrelevant unless the relevant provision otherwise expressly provides

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Code S 23(2) unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial

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Grievous bodily harm does not req mens rea (provision does not expressly provide)

Criminal Responsibility: (may not just be convicted based on elements of the offence) Code S 22 Ignorance of the law 3

(1) Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence The only knowledge of law that many people possess is the knowledge that ignorance of the law is no excuse when a person is charged with an offence. This does not mean that people are presumed to know the law. Such a presumption would be absurd. Rather, it means that, if a person is alleged to have committed an offence, it is both necessary and sufficient for the prosecution to prove the elements of the offence, and it is irrelevant to the q of guilt that the accused person was not aware that those elements constituted an offence (e.g. Ostrowski v Palmer) Ostrowski v Palmer - mistake of fact (given out of date information) – ignorant of law – not guilty at court of appeal Burden and Onus of Proof: (Is the onus always on the Crown to prove matters at trial?) 

Criminal trial – legal burden of proof on Crown to prove the main facts in issue by discharging the evidential burden. Defence can simply put Crown to proof

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Standard = beyond reasonable doubt – i.e. there is virtually no reasonable explanation of events consistent with the accused being innocent. No numerical statement – just higher than civil. The trial judge must not try to explain to jury the meaning of “beyond reasonable doubt” other than to contrast with civil standard and that accused is entitled to benefit of any reasonable doubt – Thomas

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Exception o Where a statute expressly places the legal burden on the accused s 26

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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 q, until the contrary is proved

Capacity: (How do issues such as age and mental health impact on whether a person can be held criminally responsible?) 

Doll incapax doctrine – s29 immature age o (1) A person under the age of 1 yrs is not criminally responsible for any act or omission o (2) Person under 14 yes is not criminally responsible for an act or 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

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s 27 (1) person not criminally responsible – for act or omission if at time were in state or mental disease or natural infirmity depriving them of a capacity

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s 23 (1) person not criminally responsible for –

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(a) An act or omission that occurs independently of the exercise of the person’s will State of Mind: (When will a person’s intention, motive, negligence or recklessness be relevant to their criminal responsibility?) 

R v Reid per Chesterman J at [90] – 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 a disease, he means to kill or transmit the disease. His actions are designed to bring about the result”

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

Double Jeopardy (Can a person be charged with the same offence more than once?) (s17 CC) 

Rule 1 – where def has previously been tried and convicted upon an indictment on which he might have been convicted of the current offence – then the defence of autrefois convict applies

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Rule 2 – where def was previously tried and acquitted ipon an indictment on which might he have been convicted of the current offence – then the defence of autrefois acquit applies

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Double punishment – s16 CC – person cannot be twice punishment for the same act or omission – you may be convicted for two offences arising out of the same act or omission but cannot be punishment for both – e.g. El Husseini – convicted of both trafficking and supply of dangerous drug due to the same drugs caught with – but could only be sentenced on one of them. Exception – if death results – can be charged with 2 or more offences

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Exceptions – o Fresh & compelling evidence (s678B of Code) o When first acquitted of life or 25 year offence – evidence that was tainted (s678C of Code)

Criminal Negligence: (When might an accused be held to have caused any consequences, which result to the life or health of another, by reason of something the accused did or failed to do?) o Ch 27 Code – certain duties on persons in relation to preservation of human life, including: 

The provision of necessaries (s285, 286)

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Duty of persons doing dangerous acts (s288)

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Duty of persons in charge of dangerous things (s289) 

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Worksite

They duty to do certain acts (s290)

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o If any of these are breached then the accused is deemed or held to have caused any consequences to the life or health of any person – so a breach can amount to causation for the purposes of unlawful killing o R v Mcdonald & Mcdonald – slave on farm, starvation, sores, broke wrist (infected with syphilis) – (s 285 Code) – convicted of murder (was intentional) o R v Neilson – dsc into mothers care, step father wouldn’t give her schitz medication (charged under s324 of Code)

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Non-Fatal Offences Against the Person Offences of which assault is an element (Ch. 30 CC): 

Simple or common assault

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Assaults occasioning bodily harm

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Serious assaults

Simple or Common Assault: Since ______, we need to consider whether ______ may be criminally responsible for _______. Limb 1/ 2 applies as there was applied force/ intention to apply force. This offence is misdemeanour therefore ________ could be liable for 3 years imprisonment: s 335.

Limb 1: applies force S 245(1) = battery at common law 

A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtain by fraud

Limb 1: Elements: 1. Actual application of force o Definition in s 245 (2): “applies force” includes the case of applying heat, light, electrical force, gas odour, or any other substance or thing whatever if applied to such a degree as to cause injury or personal discomfort” o Must force be intentional? Intent not necessary. McIver 2. Directly or indirectly a. Indirect force example = using dog to attack: Croft v Blair 3. Without consent o Implied consent to some degree to non-violent contact in some circumstances – Kimmorley v Atherton; Boughey; Ferguson o What level of force can be consented to? – Raabe; Lergesner v Carroll o Consent in a sporting context – McNamara v Duncan; Re Lenfield

*was there harm caused? If yes, see assaults occasioning bodily harm below* *was this a serious assault? If yes, see serious assault below*

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Limb 2: attempts to apply force S 245(1) = assault at common law 

Who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt of threat has actually or apparently as present ability to effect the person’s purpose

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Applies force = applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort: s 245(2)

Limb 2: Elements: 1. Attempts or threatens to apply force o Intention is required as attempt requires intention: s 4; Hall v Fonceca 2. Bodily act/ gesture o Mere words without bodily act or gesture is insufficient: Fogden v Wade o Words plus bodily act is sufficient: Dale o Conditional threat – if it is clear that threat will be carried out and is not an empty threat then that is sufficient: Rozsa v Samuels 3. Actual or apparent present ability to effect purpose: o Actual: real knife capable of doing some damage or real loaded gun. Victim’s knowledge not relevant here o Apparent present ability (e.g. toy gun) – see Everingham o Victim’s state of mind: o Must the victim be aware of the threat/ attempt? Yes – Dale o Must the victim be in fear? No – Brady v Schatzel o An objective element as well as a subjective element? o Kenny example p. 278 Tasmanian CC s 182(1) – belief must be based on reasonable grounds o What does the word present mean in ‘present ability’? o Secretary – will he have present ability when he wakes up to kill her - yes 4. Without consent  Implied consent to some degree to non-violent contact in some circumstances – Kimmorley v Atherton; Boughey; Ferguson  What level of force can be consented to? – Raabe; Lergesner v Carroll  Consent in a sporting context – McNamara v Duncan; Re Lenfield *was this a serious assault? If yes, see serious assault below* 8

Assaults Occasioning Bodily Harm: Could be liable for 7 years imprisonment: s 339. 

“Bodily harm” = “any bodily injury which interferes with health or comfort” s 1

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Must be some identifiable bodily injury eg. Black eye, bloodied nose – Lergesner v Carroll (mere sensation of pain is not sufficient: Scatchard) –

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However, continuing pain is a symptom of a continuing condition that could easily amount to an injury: Cambell

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Consent to AOBH is possible – question of fact what degree of violence was consented to: Lergesner v Carroll

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If cannot prove bodily harm can still plead common assault and ask for alternative verdict under s 575

Serious Assaults: Could be liable for 7 years imprisonment: s 340

 Range of circumstances: o Assaults another with intent to commit a crime, or with intent to resist or prevent the lawful arrest or detention of himself or herself or of any other person: s 340 (1)(a) o Assaulting a police officer: s 340(1)(b) o Unlawfully assaults any person while the person is performing a duty imposed on the person by law: S 340(1)(c) o Assaults any person because the person has performed a duty imposed on the person by law: S 340(1)(d) o Assaults any person in pursuance of any unlawful conspiracy respecting any manufacture, trade, business, or occupation, or respecting any person or persons concerned or employed in any manufacture, trade, business, or occupation, or the wages of any such person or persons: S 340(1)(f) o Assaulting a person > 60 years: s 340(1)(g) o Assaulting a person who relied on a guide, hearing or assistance dog, wheelchair etc: s 340(1)(h)

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Offences endangering life of health (assault is not an element, focus on seriousness/ consequences) (Ch 29 CC): 

Grievous bodily harm

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Unlawful wounding

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Torture

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Offences with specific intent

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Negligent acts causing harm

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Offences defined by seriousness/ consequences

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Victim cannot consent to these offences

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S 268/9 provocation defence does NOT apply Kaporonovski

Grievous Bodily Harm (s 320 CC) Could be liable to 14 years imprisonment: s 320 

Elements: (1) Unlawfully – not justified, authorised or excused by law (2) Does  By direct act OR  By failure to perform a duty:  S 285 – to provide necessaries: Clark  S 286 – of person who has care of child  S 288 – of persons doing dangerous acts  S 289 – of persons in charge of dangerous things  S 290 – to do certain acts (3) GBH 

Definition s 1: “GBH means (a) The loss of a distinct part of an organ of the body; or (b) Serious disfigurement; or (c) Any bodily injury of such a 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” – 

Likely = substantial or real change as distinct from what is a near possibility: Bowie

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Disease is not within definition of GBH for s 320 (Clarence). However, is part of s 317

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Intent to cause particular harm is not an element of s 320 (but causation must proved)

Unlawful wounding (s 323 CC) Could be liable to 7 years imprisonment: s 323 Elements: (1) Wounds another o Requires breaking of the true skin, has to be bleeding (internal bleeding does not count) Devine (2) Unlawfully - not justified, authorised or excused by law See Devine; Eisenhower; Jervis Torture (s 320A CC) Could be liable to 14 years imprisonment: s 320A(1) 

Torture means (s 320A(2)): o The intentional infliction of server pain or suffering – o One act or a series of acts o One or more than one occasion

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Elements: 1) Inflict severe pain of suffering on another person 

Pain of suffering includes: o Physical, metal, psychological or emotional pain or suffering: s 320A(2) o Whether temporary or permanent: s 320A(2) CC

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Geddes; Griffin; Ping – objectively probable – reasonable person would not have suffered in way that complainant that claimed to have suffered

2) Intentionally – see below 3) By an act or series of acts on one occasion or more than one occasion Offences with specific intent

 S 315 Disabling in order to commit indictable offence  S 316 stupefying in order to commit indictable offence  S 316A unlawful drink spiking  S 317 Acts intended to cause GBH and other malicious acts: o Requires: 1) One of the relevant intents Plus

2) One of the relevant actions:

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 “Maim” = deprive a person of a use of some member, to mutilate or cripple: Woodard per Douglas J

 R v Brannigan and Green – baseball bat – s 317(f) – “striking” with “projectile”

 s 317(b) – “transmit a serious disease” – def s 1 – see Reid Negligent acts causing harm (s 328 CC) Is a misdemeanour and could be liable to 2 years imprisonment: s 328 Elements: (1) Does an act or omitted to act where a duty to act (2) Caused bodily harm – s 1 definition (3) Unlawfully Duties in s 285-290: 

285 duty to provide necessaries

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286 duty of person who has care of child

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288 duty of person doing dangerous acts

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289 duty of person in charge of dangerous th...