Criminal Law Exam Notes PDF

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Sample written answers for offences under the Criminal Code (WA). ...

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EXAM NOTES

SET OUT ANSWERS AS FOLLOWS 1. STATE THE ISSUE TO BE EXPLORED 2. STATE THE RELEVANT LAW AND THEIR ELEMENTS 3. RELEVANT CASES 4. APPLY THE LAW 5. COME TO A CONCLUSION

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FOCUS ON MOST SERIOUS OFFENCES

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FIRST PART IS ON NON FATAL, NON SEXUAL, FATAL, SEXUAL OFFENCES

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SECOND PART IS ON PROPERTY OFFENCES

Written answers:

SEXUAL PENETRATION WITHOUT CONSENT – AGGRAVATED BECAUSE FAMILY The first offence present in the statement is whether Eliza’s actions towards John constitute aggravated sexual penetration without consent. The offence making provision of sexual penetration is found under s325 of the Criminal Code (CC) with s326 expanding with circumstances of aggravation. The relevant elements are that there must be sexual penetration without the consent of the other party. The definition of sexual penetration is found under s319 ss1(b) of the CC. Although the CC does not explicitly define consent, s319 provides guidelines to what can constitute consent as per S319 (ss)2(a), S3192(b) and s221(1)(a). COMMON ASSAULT The relevant issue with whether Eliza’s actions of slapping Shane across the face can be considered common assault. Common assault is made an offence under s313 CC. The relevant elements are: that the act must be unlawful, and assault must have occurred. Assault is defined under s222 CC with the elements required to be as follows: an application of force, and that this is done without the consent of the other party. S233 defines unlawful assault as unless the action is authorised or justified by law and furthermore confirmed by the case of Houghton v R1.

SEXUAL PENETRATION OF A CHILD

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[2004] WASCA 20; 28 WAR 399; 144 A Crim R 343

The next offence is whether Eliza is liable for sexual offences against a child under 13. The relevant elements are that child must be under the age of 13 at the time of the offence, and that the offender penetrated the child. The provision making it an offence is 320 (2) CC. Sexual penetration is defined under s319(d) as to engage in cunnilingus or fellatio. This was confirmed in R v Randall2.

ASSAULT OCCASSIONING BODILY HARM The next offence present in the facts is the incident between John and Eliza in paragraph 12. The issue here is whether John and Eliza can be found guilty of assault occasioning bodily harm (AOBH). The offence creating provision is s317 CC that highlights the elements as unlawfully assaulting another person causing bodily harm. S1 CC defines bodily harm as an injury, which interferes with health or comfort. R v Scatchard3 held that bodily injury must result in a reoccurring pain of discomfort following the application of force, such as bruises, abrasions, or scratches. Lergesner v Carroll4 further confirmed that bruises were considered to constitute bodily harm. The penalties of AOBH can be found under s221 CC. The elements to consider as being met are therefore causation, application of force, lack of consent and bodily injury. The actions of both Eliza and John will be considered. Question 1: Assault Occasioning Bodily Harm The issue to be explored is whether Johno can be found guilty of Assault Occasioning Bodily Harm (AOBH) on the women involved in the incident outside the wholesale florist warehouse. AOBH is found under s317 of the Criminal Code as actions of a person who unlawfully assaults another causing bodily harm. S1 of the Criminal Code further defines bodily harm as an injury which infers with health or comfort. Assault is defined under s222 of the Code with the elements of application of force without consent. It must first be determined whether Johno’s actions were unlawful. In Houghton it was found that for an act to be unlawful it must be positively proscribed by law. This element can be satisfied as assault is ruled to be unlawful under s223 of the Criminal Code. The next element is whether Johno’s actions constituted an application of force. It is stated that he pushed the women violently into the fender of a vehicle. This element is likely to have been met.

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(1991) (Unreported, Supreme Court of South Australia, 6 June 1991) 1987) 27 A Crim R 136 4 (1990) 49 A Crim R 51 3

It must also be considered whether bodily harm was caused to the women. It was held in R v Scatchard that there needing to be physical element of harm such as a bruise in order for this element of assault to be met. Whilst the information provided does not state any injuries, it is able to be assumed that due to her being described as a small women and Johno’s actions being violent that she would have sustained bodily harm through being pushed into the vehicle fender.

Consent is also an element as it must be determined whether there was a lack of consent. The women was not aware of Johno’s presence waiting for her as she left the building thus it is able to be concluded that there was no consent for the actions towards her. The final element is that of causation where it must be determined whether Johno was the cause of the small women’s injury. Johno waited for the woman to emerge from the building and then proceeded to run over and push her against the vehicle. It is clear that this element will be fulfilled. Overall it is likely as all elements have been met that Johno will be found guilty of assault occasioning bodily harm GHB The final offence to be considered is John’s actions in paragraph 13 of his statement. S297 CC is the offence creating provision for grievous bodily harm, it states that a person unlawfully does GBH to another is guilty of a crime liable to 10 years’ imprisonment and if in circumstances of aggravation in s221 (1) 14 years’ imprisonment. The CC further defines GBH in s1. The elements therefore are unlawfully, causation, permanent or life threatening injury. Houghton v R5 found “unlawful” to be something that is positively proscribed by law. To determine whether GBH unlawful the duty provision of s266 must be considered as s223 cannot be applied. The elements which within this are care and precaution in use of the dangerous item under their control, using reasonable care and skill as would be expected by a reasonable person in that position based on what would be such a foreseeable outcome should they not. R v Clark6 furthermore held the act must demonstrate a disregard for the life and safety of others serious enough to warrant a finding of criminal negligence and R v Bateman7 stated a very high degree of negligence required to be proven.

INDECENT ACT

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[2004] WASCA 20 (1927) 40 CLR 227 7 R v Bateman (1925) 19 Cr App R 8 6

s203(1)(a) provides for indecent acts in public. Specifically in a public place or in the sight of any person who is in a public place. In Drago v R the trial judge stated that indecent means conduct that is unbecoming or offensive to common proprietary. In R v Bryant it was stated that for an act to be indecent, it must involve the human body, bodily actions or bodily functions in a sexual way, and that there needs to be moral turpitude. Moral turpitude is an element that may explain blame worthiness, and it comes from carrying out of the act which by its nature is an offence against morality. Under s29 it states that a person under the age of 14 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 he had the capacity to know that he ought not do the act or make the omission. The issue within this situation is whether Tim and Shelley can be charged with a sexual offence under the Criminal Code. S 29 of the Criminal Code rules that a person under the age of 14 years is not criminally responsible for an act or omission unless it is proven that they had the relevant capacity to understand. Furthermore, s321(1) rules that when considering offences involving children, a child means a child of or over the age of 13 years and under the age of 16 years.

Indecent public acts are established under s203 of the Criminal Code and hold that a person commits an offence if they are involved in an indecent act in a public place or in the sight of any person who is in a public place. In this case both Tim and Shelley fall between the age bracket imposed with s321(1) as Tim is 13 and Shelley is 14. Thus it is unlikely that they will be able to be criminally charged. However, it is likely that their behaviour fulfills the requirements for an indecent act to take place as they were seen on a local beach. Their subsequent actions of stripping off and kissing are likely to also be determined to be indecent. Despite this as per s29 of the Criminal Code Tim is unable to held responsible. Overall, it is possible that Shelley will be liable for committing an indecent act in a public place.

BURGLARY Issue: can Sue be charged of burglary?

Rules: The offence of burglary is created under s.401 CCWA. Burglary is a compound offence which requires either according to subs.1 entering into the place of another without consent and

the intent to commit an offence or subsect.2 committing an offence while in the place of another without his consent. Place is a term defined in s.400(1) as a building, a structure, a tent or conveyance or part of it. In accordance with s.400(2), a person is considered to have entered the place when any part of their body or anything in their possession or control is in the place. As held in Barker, consent to enter the place for a specific purpose cannot be considered to be a valid consent to enter the place for any other purpose. S.400(1) CCWA also defines the circumstances of aggravation and notably refers in (a)(i) to situation where the offender is armed with an offensive weapon or instrument and in (a)(iv) where the offender does bodily harm to any person (bodily harm is defined in s.1 as interfering with health or comfort).

An offensive instrument can be an ordinary instrument intented to be used as a weapon according to Western Australia v Majok. Stealing is an offence defined in 371(1) as fraudulently taking something capable of being stolen, and it is considered fraudulent where, according to s371(2)(a), there is an intent to deprive permanently the owner of the thing. A thing capable of being stolen is defined in s.370 as anything inanimate which the property of a person and which is movable. Application: Sue entered Rick's apartment, she was in the apartment when he found her and the apartment is defintely a building in the meaning of s.400(1). She entered without Rick's consent because even though it could be assumed that Rick authorised her to enter his place due to the fact they had an affair, it can be considered on the basis of Barker, that he gave consent for another purpose and not for this time. Sue's intent was to take the photos. This is an offence of stealing, since she wanted to deprive permanently from Rick the photos he possessed (things capable of being stolen). For the above reasons, Sue can be charged with the offence of burglary on the ground that she entered Rick's place without his consent with the intent to steal his photos. Considering that Sue injured Rick, an aggravated offence can be charged against her.

Indeed, Sue was armed with a kitchen knife and she did bodily harm to Rick. According to s.400(1), the fact of being armed with an offensive instrument and the fact of doing bodliy harm are both circumstances of aggravation. A kitchen knife can be considered as an offensive weapon according to Western Australia v Majok. Bodily harm is well established by the fact that she cut his arm and he bleeded.

Conclusion: Sue can be charged for aggravated burglary pursuant to s.401(2)(a). STEALING The issue is whether Rick can be found to have committed the offence of stealing. Stealing is covered under the section 371 of the Criminal Code with the relevant elements being that it must be capable of being stolen and that it then must be fraudulently converted to the use of any other person. S370 confirms that a thing is capable of being stolen if it is considered a tangible moveable object. Furthermore in order for it to be fraudulently converted there must be an intent for a person to deprive the owner of the item (R v Angus) and that the act is not complete until the person actually takes moves the thing or otherwise deals with it. Gibbs CJ confirms by stating that a person converts property if they deal with it in a way inconsistent with the rights of the owner ( Ilich).

It must first be determined whether the condoms Rick took are capable of being stolen. As they are tangible moveable objects this element will be fulfilled.

Subsequently, it must be determined whether Rick’s actions constituted as fraudulently converting the object to his own use. As Rick took the condoms from the shelf and concealed in his pocket and left the shop without paying, it is likely this will be considered dealing the object in a way inconsistent with the rights of the owner by depriving the owner of the object. This element is therefore fulfilled. In conclusion Rick is likely to be found to have committed the act of stealing.

LIABLE FOR DEATH Week 8

The main issue in this situation is who can be found to be liable for Anna’s death.

Under the Criminal Code s270 outlines that any person who causes the death of another, directly or indirectly by any means whatever, is deemed to have killed that other person. Causation is not defined within the Code and as such common law principles must be referred to. Krakouer created the initial ‘but for’ test which holds that would harm have occurred but for the actions of the accused. The case of Royall generated the substantial or significant test that next determines whether the accused actions are significant enough to be causal. A factor to consider in cases involving various actions is whether a novus actus interveniens has occurred. A novus actus interveniens is an act that can be considered sufficient enough to break the causal connection between the death or injury of a person and the actions of another.

In cases involving medical treatment, s275 of the Code provide that in cases although medical treatment is the immediate cause of death, the chain of causation is not broken if the treatment provided is in good faith and applied in good faith.

In order to determine who caused Anna’s death it is necessary to explore the relevant involved parties: Johno, Sgt Kelly, or the Doctor.

Johno The involvement of Johno was that he initially fired the gun at the police at the scene and as he was leaving pushed Anna into the path of subsequent bullet that resulted in her death. It can be suggested that it reasonably foreseeable that if you shoot at police officers during committing an offence that as they carry guns it is likely that they will return fire. It is clear that but for the actions of Johno pushing Anna that she would not have been shot and subsequently died. From this it is clear that Johno can be considered to have established a factual causation between his actions and Anna’s death. Sergeant Kelly Sergeant Kelly fired the shot towards Johno that hit Anna. It must be considered whether injury is reasonably foreseeable in the event of firing a gun in a store which people were present. Through applying the but for test, if Johno did not commit the offence and fire a gun towards the police, they would not have returned fire and as result Anna would not have been shot. Therefore it is likely that Sergeant Kelly will not be found liable as a factual causation of Anna’s death.

Doctor

The question with the doctor’s actions can be considered to be a novus actus. Although the doctor followed correct medial procedure it is noted that if the DDSIP was used it would have saved Anna’s life. S275 affirms this as although immediate medical care is the cause of death, the chain of causation is not broken if the treatment was proper and applied in good faith. This applies in this situation as although the machine was new and could have saved Anna’s life, the doctor was following correct procedure. The doctor furthermore did not introduce any new causative factors (Kinash). As such the doctor will not be found liable for the death. In conclusion it is likely to be found that Johno was the cause of Anna’s death.

MURDER The issue is whether Sergeant Kelly murdered Anna, assuming that causation has already been met.

S270 of the Criminal Code holds that any person who causes the death of something directly or indirectly by any means whatever, is deemed to have killed that other person. Subsequently, murder is explored under s279(1)(b) where murder is said to have been committed where there is an intention to create bodily harm which is likely to endanger life. It is also found that it is irrelevant that there is no intention to harm the person killed (s279(2)) Peters v R held that in the event that a person does an action which is certain to result in another act, which they are aware could occur, this means intent was present. In order to determine whether Sergeant Kelly can be found liable the circumstances of her actions must be considered. It is likely that it can be considered that through shooting a gun that there is a reasonably likely chance that this could cause injury to someone to the extent of death. Application of Peters confirms that as Sergeant Kelly would be aware that shooting a gun could result in death, there is intent for this is occur. Despite her intention was to harm Johno and not Anna, this is irrelevant as per s279(2). Overall it is likely that she could be charged for the murder of Anna under s279(1)(b) of the Criminal Code. MANSLAUGHTER Issue: Is Mary guilty of the Manslaughter of Ginny per s280 CCWA?

Rule: CCWA s280 is the offence creating provision for Manslaughter. It states a person unlawfully kills another under such circumstances to not constitute murder, with a maximum penalty of life imprisonment. The elements of manslaughter are therefore the same as those of murder but without the element of intent- causation, unlawfully, death, person capable of being killed. S268 CCWA makes killing unlawful, s269 CCWA details a person capable of being killed as anyone has proceeded in a living state from the body of its mother and s 270 CCWA details killing as a person who causes the death of another either directly or indirectly. Death is defined in s13C of Interpretation Act 1984 (WA) as irreversible cessation of all function of the brain or circulation of blood in the body. In cases where there has been no unlawful violence, a breach in a duty provision (s262-267) may demonstrate criminal negligence as the cause of the death. S262 deals with a person with a duty to provide necessities of life to another who is unable by reason of age, sickness, mental impairment or any other cause. Failing to do so, as the person in charge of the duty. To establish the legal causation, there must be a reckless disregard for the life and safety of another (R v Clark), severe enough to warrant a finding of culpable negligence which ought to be punished (R v Doherty in Callaghan). Jackson v Hodgetts also found that criminal negligence involves grave moral guilt. Must be considered what a reasonable person in that position would have done in respect to possible outcomes had they not. For factual causation to apply then there must be a significant and substantial contribution of the action which resulted in the death, Krakouer; R v Royall. The death may also be considered whether it was a reasonably foreseeable outcome of the act or omission or a natural consequence of it. Similarly, it may also need to be considered whether a novus actus interveniens has severed the causal connection (Royall). Krakouer it was held that generally an application of common sense of causation will be suffice to establish causal potency or responsibility.

OTHER A) Assault Ocassioning Bodily Harm (AOBH) can be found under section 317 of the Criminal Code (WA...