Criminal law notes PDF

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Criminal law notes.

WEEK 1LECTURE Rule of law- All laws should be clear, publicised and prospective - ‘’ should be stable - ‘’ should be guided by open, stable, clear and general rules - independence of the jury must be guaranteed - principles of natural justice must be observed - courts must be easily accessible - discretion of the crime prevention agencies should not be allowed to pervert the laws Sources of law- Common law (judge made law) eg; murder and manslaughter - Statue law; commonwealth and state Statutory interpretation “ distinct body of law” How to approach statutory interpretation? - Read legislation closely  Provision  Act  Legislation history  Wider context - Use interpretive tools such as extrinsic materials - Interpretation acts - Use imagination- what did parliament intend? Precedent - Basic rules of this is stare decisis  Each court is bound by the decision of a higher court in the same hierarchy. EG; county is bound by supreme  Ratio decidendi is binding - Ratio decidendi- The legal principle upon which the decision in a specific case is founded. The ratio decidendi is also known as the rationale for a decision. (can be more than one in a case)

- Obiter dictum- ([Latin, By the way.] Words of an opinion entirely unnecessary for the decision of the case. A remark made or opinion expressed by a judge in a decision upon a cause, "by the way", that is, incidentally or collaterally. YET, if not ratio decidendi, then it can be the obiter dictum Criminal law? - Rules of statue and common law, which outline that certain acts are punishable by the state in accordance to separation of powers. Criminal law in practise - Why is it serious? - Criminal law and rule of law - Notion of fairness in criminal trial What makes criminal law effective? - Fear of sanction (punishment) - Education and knowledge of the law - Punishment, rehabilitation of offenders - Endorses a feeling of safety for community - Holds individuals accountable for their actions (LINKED TO AIMS OF CL)

Aims of CL? - Punish offender - Protection of offender & community Punishment of offender- Rehabilitate, deter and the proportion of sentencing. Eye for eye does not apply no longer. Do community opinions match the judiciary? Protection of the community - rule of law - access to justice - protected by the processes - independent judiciary - retributive sentences - deterrence; specific - therapeutic jurisprudence - restorative justice

Crime- Common ones and what piece of legislation these crimes are contained in? - Fatal offences - Non-fatal ‘’ - Sex ‘’ - Property ’’ - Cyber ’’ - Inchoate ‘’ - Federal ‘’ Criminal liability - Causation - Voluntariness - Actus reus - Mens rea Strict liability - No mens rea requirement - Actus reus (physical element) of the offence is sufficient enough to prove guilt - Defence of honest and reasonable mistake of fact applies - Definition is embedded in this legislation - 559 of dictionary Absolute liability - No mens rea requirement - No defence of honest and reasonable mistake of fact - Pg 5 of dictionary

Burden of proof - In criminal, the prosecution usually bears both the legal and evidential burden of proof in relation to all the facts that relate to the guilt of the accused - CIVIL: burden lies with the person bringing the action to court Standard of proof - Criminal: Beyond reasonable doubt - Civil: On the balance of probabilities

Parties in criminal case - Defence; Accused person - Prosecution; crown, police, prosecution

WEEK 1 WORKSHOP Case briefing1. read through case 2. identify jurisdiction 3. Identify the stage that the proceedings are up to e.g. original jurisdiction or on appeal 4. Salient points -- CASE NAME - JURISDICTION (COURT NAME) - DATE OF PROCEEDINGS - JUDGES .- PARTIES- IDENTIFY WHO IS DEFENDANT AND PROSECUTION. .Be sure to also include more descriptive generic terms to identify the

relationship/status at issue, e.g., buyer/seller, employer/employee, landlord/tenant, etc.) .Identify legally relevant facts, that is, those facts that tend to prove

or disprove an issue before the court. The relevant facts tell what happened before the parties entered the judicial system. .Set out- the cause of action, the defences and relief the party

requested.

Procedural history of a case- Disposition of the case in the lower court(s) that explains how the case got to the court whose opinion you are reading - INCLUDE; decision of lower court, damages awarded, who appealed and why.

Issues Substantive issue; includes two parts 1. The point of law in dispute 2. The key facts of the case relating to the point of law in dispute - must include keys facts from the case Procedural issue; What is the appealing party claiming lower court did wrong ( ruling on evidence, jury instructions etc)?

Judgement - This is the courts final decision - The appellate court will affirm, reverse or reverse with instructions. Judgement found at end of opinion Holdings - Statement of law that is the courts answer to the issue - Holding is often the positive of negative statement of the issue statement Rule of law/Legal principal applied - This is the rule of law that the court applies to determine the substantiative rights of the parties. Rule of law can derive from a statute, case rule or regulation - They may be expressed in the opinion or may be implied Reasoning - Courts analysis of the issues and the heart of the case brief. R is the way in which courts applied the rule/ legal principal to the facts in the case to reach its decision - Including syllogistic applications of rules ( why the reasoning was socially desirable) Concurring/ dissenting opinions - A judge who hears the case may not agree with the majorities decisions, then will write a separate dissenting opinion - Judge may agree with the decision but not with the majorities reasoning, then will write a concurring opinion - Should note them down

Problem solving methodology I – Issue ( state the issue) R- Rule ( legal meaning that attributes to the facts) A- Application ( facts of light in law) B- conclusion

WEEK 2- LECTURE Criminal responsibility - Who can commit a crime?  18+  rational being  understanding between right and wrong  able to control conscious actions Age of criminal liability - Over 18 years of age, criminally liable UNLESS was suffering from a mental impairment that had the effect that the accused did not know what he was doing or did not know the nature of the consequences. s20 (1)–(2) of the Crimes (Mental Unfitness to be tried Act) 1997 (Vic) 18-10. Could be held liable if the jury believes the accused understood the consequence of their actions and know the difference between right and wrong. Under 10 years; Doli incapax – Children,Youth and Families Act 2005 (Vic) – s344.(Children under 20 years of age) Presumed a child under 10 cannot commit a crime. Categories of crime - against the person - against property - drug offences

Crimes act section 2b- offences under this act are indictable (serious) Difference between summary and indictable offence? - A summary offence is an offence that can be heard by a magistrate sitting alone, rather than a judge and jury. A summary offence can also be heard in the absence of the defendant. EG’S; road traffic offences (for example, careless driving, drink driving

and unlicensed driving),minor assaults,property damage and offensive behaviour. - Indictable offences are more serious offences that cannot be heard in the absence of the defendant (the person accused of the crime). These offences are usually heard in the Magistrates' court for a committal hearing. The offence may then be committed for trial before a judge in a higher court such as the County court or Supreme court.

EG’S: aggravated burglary, indecent assault, drug trafficking offences, murder and manslaughter. Elements of crime - Physical- actus reus - Voluntariness - Causation or contemporaneity (existence of a novus actus interveniens) - Fault elements- mens rea (intention, recklessness and knowledge) Physical elements of crime - conduct; an act or serious of acts. This includes a state of being eg; drunk - an omission- common law duty to act Voluntariness - Presumption of voluntariness (act has to be voluntary, and willed to occur) - R V FALCONER. Causation - Prosecution must prove that the criminal conduct was caused by the accused - Chain of causation (must be directly from offender)

The chain of causation - Tests- Factual ( are the actions of the accused linked to the victims death?) - Legal causation. R v Hallet - Must not be interrupted by another act Tests- Reasonable foreseeability, substantial cause, natural consequences. TypologyEgg-shell-skull principle= the accused must take their victim as they find them V’s lack of medical treatment Medical negligence Act of nature or god- would break chain of causation

WEEK 3- LECTURE The crimes act 1958 (Vic) - Offences against the person - s3 Punishment for murder- Notwithstanding any rule of law to the contrary, a person convicted of murder is liable to A) level 1 imprisonment (life); or B) Imprisonment for such other term as is fixed by the court- as court determines Note: Mandatory life sentences ceased operation in June 1986 Definition of murder; Edward Coke When a man of sound memory and age of discretion voluntarily and unlawfully kills any reasonable creature in being, under the Queens peace, with malice aforethought either express or implied by law. Actus Reus of fatal offences - Applies to murder and manslaughter - Voluntary act - Definitional requirements- if relevant - Factual link - Hallett test - Novus actus interveniens - Complications the novus actus interveniens rule: Take your victim as you find them, medical treatment and self preservation cases. Elements of Murder - Causation( Actus Reus) plus on of the following (mens rea) – intention to kill, intention to do GBH, recklessness, section 3a crimes act and resisting arrest murder. Mens Rea - Sometimes called Malice aforethought - But there is not substantive requirement of malice of aforethought! - Mens rea is separate from causation - Subjective- DIXON J in PARKER v R (1963) 11 CLR 610

Intention to kill - Object, purpose, desire - Intention= goal: aim to bring about a result - Intention to kill or do GBH- Subjective, not objective Elements of murder - Knowledge that D’s actions would probably result in death or GBH. Egs; R v TY (2006) VSCA 113 - Intention to do GBH; harm of a really serious kind (R v Smith (1961) AC 290 - Intention to cause less than GBH but actually causing GBH is not intention to do GBH. Temporal Coincidence - Coincidence of actus reus and mens rea - Both act (actus reus) causing death and the intention ( mens rea) must occur at same time - See Fagan V Police (1969) 1 QB 439 - Meyers V R (1997) 147 ALR 440 - If an act substantially contributed to V’s death and at the time D had the mens rea for murder, it is murder. Recklessness - eg; doctor gives pain killing drugs to relieve pain, knowing that the quantity of drugs is likely to cause death - probable does not mean possible. - ‘ Wilful blindness’ - See R v Faure (1992) 2 VR 537 esp at 551 - When is recklessness to be used? 1. The court says that recklessness should only be used when facts of case make it a practical reality. EG; when d is doing one thing and realises that something else is likely to happen. 2. There is a risk that recklessness and the intention to kill or do GBH will confuse Juries. R v Lowe (1997) 2 VR 465. Transferred Malice - Transferred malice - (i) D aims at man at dusk – thinks it is O – shoots, kills; it is not O but Q. - (ii) D aims at O, misses and hits and kills Q.

In both cases, D intended to kill O, but killed Q. Case (i) : mistaken identity Case (ii): mistaken aim. Both cases are murder. The mens rea for murder is transferred from O to Q.But there must be the mens rea of the crime committed. Antenatal assaults - D stabbed girlfriend (G) when G five months pregnant. D’s intention to kill or do GBH to G and /or foetus. G survived. Stab wound caused F to be born prematurely. V died some 121 days after birth because of prematurity (not directly because of stab wound), but strains from operation re wound could have compounded problems arising from prematurity. Appeals- Court of appeal; a fetus is treated as part of the mother until it is separate in existence. . Intention to kill or do GBH to foetus is intention to kill or do GBH to mother. . Act causing death of V need not occur when V is person in being (i.e. can be done when V is a foetus) . Since D intended to kill or do GBH to mother, this malice can be transferred to baby (if and when baby is born).Transferred malice – malice can be transferred to V even if V not a person at the time of the fatal act. The house of lord (1998) Ac 245- disagreed with court of appeal. They believe they’re 2 distinct organisms. S3A Crimes Act 1958 (vic) 3A Unintentional killing in the course or furtherance of a crime of violence • (1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the

necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally. Elements of s3A 1. Causes death 2. Unintentionally 3. By act of violence 4. In course or in furtherance of 5. Crime (i) Necessary element of crime is violence; and (ii) Maximum penalty on first conviction is life or imprisonment for 10 years or more. If all elements established = ‘intentionally causing death’ S3A: act of violence R V Butcher (1986) VR 43. Was there an act of violence? Holding out knife towards V when V is 3 or 4 feet away and at the same time demanding money from him is capable of being an act of violence. S3A: A crime A crime (i) (ii)

A necessary element includes violence; (ii) 10 years imprisonment or life on first conviction. – Robbery – Maximum: Level 4 = 15 years jail – Armed robbery – Maximum: Level 2 = 25 years jail. – • In Butcher’s case, it was held that robbery in the Crimes Act is a crime a necessary element of which includes violence (at p.51; B&A 122).

What other crimes are crimes the necessary elements of which involve violence? burglary, intentionally cause serious injury, rape? • For recent s 3A cases, see R v Galas; R v Mikhael [2007] VSCA 304; DPP v MM [2009] VSC 336 Resisting Arrest -

D Commits murder if : A) D causes death of V; B) by violently C) resisting, preventing or escaping

R v Ryan Walker (1966) VR 553

MANSLAUGHTER AND OTHER OFFENCES CAUSING DEATH Involuntary manslaughter - An act or omission that causes the death of another human being without lawful excuse and under circumstances that do not amount to murder/ voluntary manslaughter - Unlawful killing where accused caused death of victim without the fault element for murder (mens rea) Unlawful and dangerous acts - unnecessary to prove the accused knew the act unlawful or dangerous - unlawfulness must be a criminal not civil wrong Pemble v R (1971) 124 CLR 107 Dangerousness - ‘a dangerous act ... [is one that] a reasonable man in the accused’s position, performing the very act which the accused performed, would have realized that he was exposing another or others to an appreciable risk of really serious injury’ R v Holzer [1968] VR 481 at 482 per Smith J. Test for it:

- an intention to cause harm but not to kill - not to cause GBH A reasonable person would appreciate there was an appreciable risk of serious injury to deceased. Wilson V the queen (1992) 107 ALR 257 Negligent Manslaughter - A killing caused by gross negligence is manslaughter - The test is that the negligent behavior falls short of what a reasonable person would understand as involving ‘such a high risk that death or grievous bodily harm would follow’ - Nydam v The Queen [1977] VR 430 at 445 per Young CJ, McInerney and Crockett JJ Elements; 1. Duty of care owed by accused to victim 2. The negligence was the proximate cause of victims death 3. Breach of the standard of care owed was such that it fell far short of what a reasonable person would do and involved a risk of death Manslaughter by omission - Must prove disregard of danger to victim. R v Stone and Dobinson (1977) QB 354 - Accused did not assume a duty of case, was negligent, but mere negligence or mere inadvertence is not enough. R v Taktak (1988) 34 A Crime R 334 Elements; 1. duty of care owed by accused to victim 2. omission was the proximate cause of death 3. Breach of the standard of care owed was a great falling short of what a reasonable person would have exercised involving a high risk of death Culpable driving - Early English cases establishing degree of negligence required for manslaughter by negligence Andrews v Director of Public Prosecutions [1937] AC 576

• Strict liability offence: the defence of honest and reasonable mistake of fact is available Jiminez v R (1992) 173 CLR 572 CRIMES ACT (1958) Vic ss 318, 319 CRIMES ACT (1900) Nsw ss 52A, 174FA Industrial Manslaughter - Possible for a corporation to be convicted of manslaughter. S32 OHS act

WEEK 3- WORKSHOP

Powers of arrest  Section 457 provides that no person shall be arrested without warrant unless under crimes act Vic. Or some other act giving powers.  Powers of arrest are set out in sections 458,459 and 459A of crimes act 1958  If an arrest does not fit within any of the categories linked below, it is unlawful and can be released through reasonable force. s.458- arrest without a warrant by any person  section 457 (i)(a) any person found committing an offence (other than a breach of regulations) can be arrested without warrant by anyone (not only by the police) who reasonably believes the arrest is necessary for any of the following reasons: - (i) to ensure the appearance of the offender (person committing the offence) before court; - (ii) to preserve public order; -(iii) to prevent the continuation or repetition of the offence or the commission of a further offence; or - (iv) for the safety or welfare of the public or offender.

 Requires the person making the arrest finding the offender committing the act. Needs to consider whether one or more of the above criteria are present before making an arrest.

S. 459- Police and PSO powers of arrest  Section 459 provides that any police officer or protective services officer (but not a citizen) may at any time, without warrant, apprehend any person believed on reasonable grounds to have committed an indictable offence (including one that can be determined summarily) in Victoria or elsewhere, if that offence is an indictable offence against the law of victoria.  Under the arrest power, there is no need for the accused to be found committing the offence.  A protective services officer must hand the person arrested over to police officer as soon as practicable after the arrest. S. 459A- Entry without warrant to arrest  Section 459A gives a member of police the power to entre and search any police without warrant for the purpose of the arrest where it is believed, on reasonable grounds, that a person may be found, who: - (i) Has committed a serious indictable offence in Vic - (ii) has committed an offence elsewhere, if committed in vic, would be a serious indictable offence - (iii) has escaped from legal custody OR finds community a serious indictable offence - reasonable force may be used to gain entry to the premises or other place. (s.462A)

Family Violence  Section 157 of the family violence protection act 2008 (vic) gives the police the power to enter and search any premises for a person believed to have breached the act, provided the police have a reasonable belief that any one of the following requirements is satisfied: - (i) that the person has assaulted or threatened to assault a family member - (i...