Criminal-LAW- Notes-2 PDF

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TABLE&OF&CONTENTS&& & Sexual&assault&…&p.g.&1& & Fraud&…&p.g.&4& & Homicide:&Actus&Reus…&p.g.&9&& & Murder…p.g.&15& & Voluntary&Manslaughter:&Extreme&Provocation…&p.g.&15& !

Voluntary&Manslaughter:&Substantial&Impairment&by&Abnormality&of&the&Mind&…p.g.&20& & Involuntary&Manslaughter:&Unlawful&and&Dangerous&Act;&Assault&Causing&Death&…&p.g.&22& & Involuntary&Manslaughter:&Negligent&Manslaughter&…&p.g.&25& !

Attempt&…&p.g.&28& & Complicity:&Joint&Criminal&Enterprise&and&Extended&Joint&Criminal&Enterprise&…p.g.&30& & Complicity:&Accessorial&Liability&Defences&…p.g.&34& & Mental&Illness…&p.g.&40& & Automatism…&p.g.&43& & Intoxication….&P.g.&46& & Self-defence…&p.g&48& & Duress….&P.g&50& & Necessity….p.g.&52& & Bail….&P.g&55& & Policing&Powers&p.g.&59& ! ! ! ! ! ! !

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Sexual Assault Introduction The prosecution may charge the defendant with sexual assault pursuant to s 61 of the Crimes Act 1900 (NSW) (‘THE ACT’). The burden on proof lies on the prosecution, who is required to prove each element of the criminal offence and disprove any defences to a standard beyond reasonable doubt (BRD) see, Woolmington v DPP (1935). However, if the offenders choose to raise a defence then the evidential burden of proof extends to them and they must give proof to a standard of the balance of reasonable possibility see,!Jayasena v R (1970).

ELEMENTS S 61 I of The Act - ‘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 (voluntariness can be presumed by the prosecution so long as there is nothing in the facts to suggest that the conduct was not conscious R v Falconer [1990] or willed Ryan v. The Queen [1967], if the issue of voluntariness arises is it up to the prosecution to prove voluntariness BRD)

1. Sexual intercourse or sexual penetration S61H(1) defining

▪

not exclusively conceptualized the penetration of vagina by penis

sexual intercourse

▪

penile penetration of the vagina, anus and mouth (including reconstructed or external vaginas)

▪

penetration of the vagina or anus by another part of the body or by and object

▪

cunnilingus

Criminal legislation (Amendment) Act 1992 – any penetration regardless of the extent is sufficient Continuing Act

Sexual intercourse is a continuing act so if the victim withdraws consent at any time and the defendant

s61H(1)(d)

does not stop he commits an offence

Touching need not

the prosecution does not need to prove that ‘sexual intercourse’ or ‘sexual penetration’ involves activity

be sexual

of a sexual nature R v Abraham (1998) - held that sexual penetration falls in the definition of sexual intercourse; did not matter that the defendant digitally searched victim’s vagina for drugs and had no sexual intent associated with it

Defendant and

Sexual assault can be committed by a person of either sex including transgender

victim of any

s61h(1)(a)- extends the definition of vagina to include ‘surgically reconstructed vaginas’ i.e. for

gender

transsexuals

2. Absence of consent Defining consent

‘person freely and voluntarily agrees to the sexual intercourse’

s61HA (2) Vitiating consent

There are instances in which consent will be vitiated; allowing the prosecution to successfully establish that it is invalid, or has no effect S61HA (4) A person does not consent to sexual intercourse if: a.

Lack the capacity to consent (age or cognitive incapacity) or

b.

Lacks opportunity to because unconscious or asleep, or

c.

Consents because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or

d.

the person is unlawfully detained.

S61 HA (5) consent is also vitiated if the person consents due to mistake as to the identity of the defendant, belief in marriage to the defendant, mistaken belief that it is for health or hygienic purposes (induced by fraudulent means) AND the person knows that the person is consenting under mistaken belief In r v Mobilio (1991), the Victorian Court of Criminal Appeal followed Papadimitropoulos and held that a radiographer who had inserted an ultrasound transducer into the vaginas of numerous patients, not for medical purposes but for sexual gratification, was not guilty of rape, as the patients’ mistake did not go to the nature and character of the act. The Victorian legislature reversed the effect of the decision and NSW followed. Papadimitropoulos (1957) Mistake as to qualification or aspect of the character of the other party e.g. status of the person. This is not illegal, though it is certainly morally wrong. Such a misrepresentation occurred where a bureaucratic exchange at a registry office was portrayed as a form of marriage. There was no fraud as to identity because there was no misapprehension as to the physical nature of what occurred between the supposed newlyweds. S61 HA (6) a person doesn’t consent if has intercourse while substantially intoxicated by alcohol or any drug OR because of intimidatory or coercive conduct or threat or threat of force OR sexual intercourse because of abuse of authority or trust S61HA (7) just because there is not physical resistance to sexual intercourse does not mean that they are regarded as consenting S66C consent is no defence to sexual intercourse offences committed upon person under the age of 16

Mens rea 1.

Knows that the person does not consent

Knowing the victim does not consent to sexual intercourse s 61I Where knowledge includes s61 HA(3) 1.

Aware of

the mens rea for sexual assault will be established if the defendant intends to have sexual intercourse with the

lack of

victim, with actual knowledge that the victim was not consenting

consent

▪

subjective test – requires the defendant’s subjective intention 

▪

where the victim’s consent has been vitiated due to a relevant mistake, it is sufficient that the defendant knows that the victim consents due to a mistake s61ha(5) 

NOTE: if the prosecution cant establish intention they may be able to establish recklessness 2.

Reckless

Recklessness as to consent (when the accused considered that the victim might not consent yet continued

as to

anyway) This is a recognition of previous common law principles in DPP v Morgan (1976)

whether

In Kitchener (1993), the court held that failure to advert at all to the possibility that the complainant is not

there is

consenting, necessarily means that the accused is reckless as to whether the other person consents. This type

consent

of behaviour (not even considering the possibility at all, despite it being obvious) is usually termed inadvertent recklessness. In Tolmie (1995) FACTS: The complainant repeatedly told the appellant to stop after he propositioned her and they ended up on the ground where he sexually assaulted her. HELD: recklessness can be shown where the accused is so bent on gratification and indifferent to the rights of the victim as to completely ignore consent. In Banditt (2005) the accused broke into the victim’s house and commenced intercourse with her while she was asleep, the court held that “he was reckless in the sense that he did not even consider whether she was going to consent or not, or at least he recognised that there was a possibility that she may not consent but he went ahead anyway.”

3.

Having no

When considering whether the defendant had reason to believe there was consent the jury will have regard to

reasonable

the

grounds to

a. Steps taken to ascertain consent

believe

b. Do NOT consider any self-induced intoxication.

there is

Lazarus v R (2016)

consent

-

the appellant’s appeal against his conviction for sexual intercourse without consent was allowed.

-

The trial judge erred in directing the jury to “consider whether such a belief [that the complainant was not consenting] was a reasonable one”.

-

Issue: whether the Crown has proved the accused “has no reasonable grounds for believing” that there was consent.

-

HELD The correct test is what the accused himself might have believed in all the circumstances; and then to test that belief by asking whether there might have been reasonable grounds for it

-

The test is not completely objective. Rather, the subjective element - that is, the claim to having an honest belief in consent - is to be tested against whether there are reasonable grounds to hold it. Whether that belief amounts to a guilty state of mind depends on whether the accused honestly held it, and if so, whether he had reasonable grounds for that belief

-

AQUITTED

Day v R [2017] appeal against conviction and sentence for sexual intercourse without consent - applicant claimed he was intoxicated and mistook the sleeping complainant for his partner -

it would have been necessary for the jury to consider any steps which the (must be considered sober) applicant had taken to ascertain whether the complainant had consented

-

the applicant was not entitled to proceed upon the basis that a person must be taken to consent to intercourse with him merely because she was his partner (assumed consent

-

if after taking into account the primary responsibility of the jury in determining the guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict- the verdict should be set aside

-

taking into account all of the evidence, it was well open to the jury to be satisfied that the offence had been committed - it had not been demonstrated that the sentence was unreasonable or plainly unjust appeal against conviction dismissed - leave to

Temporal Coincidence MR and AR are simultaneously present Fagan v Metropolitan Police Commissioner (1969). The material time for consent is when sexual intercourse occurs, and consent previously given may be withdrawn r v Mueller (2005)

Aggravated Sexual Assault 1.

Actus Reus (same as above PLUS circumstances of aggravation)

2.

Mens rea is the same as sexual assault except when offences where specific intent is required are involved

S61 J

Any person who has sexual intercourse with another person without the consent of the other person and in

Aggravated

circumstances of aggravation and who knows that the other person does not consent to the sexual

sexual assault

intercourse is liable to imprisonment for 20 years In this section, circumstances of aggravation means circumstances in which: -

At the time or immediately before or after the commission of the offence - Intentional or reckless infliction of actual bodily harm to the victim or a person nearby.

-

Threat to inflict actual bodily harm on the victim or a person nearby with a weapon or instrument.

-

the offender is in company.

-

Victim is under 16 years old.

-

The victim is (generally or at the time of the offence) under the authority of the alleged offender.

-

The victim is seriously physically or mentally disabled.

-

The offence is a part of a break and enter with intention to commit this offence or any serious indictable offence (note: specific intent).

-

The offender deprives the victim of liberty before or after the offence.

Max penalty: 20 years imprisonment. S61JA

1.

aggravated

A person is liable for imprisonment for life if they a.

sexual assault

have 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, AND

in company

b.

who is in the company of another person or persons, and

c.

who: i. at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or ii. at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or iii. deprives the alleged victim of his or her liberty for a period before or after the commission of the offence,

2.

A person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the person's natural life.

Fraud Offences Introduction The defendant will be charged with fraud (obtaining property by deception) under s 192E of the the Act. The prosecution must prove all elements of these offences BRD and disprove any defences Woolmington v DPP (1935). The defendant will raise the defence of claim of right R v Fuge (2001) and will bear the evidential burden to raise this defence to the standard of a reasonable possibility Jayasena v R (1970).

Elements S 192 E (Maximum sentence is 10 yrs.) (1) A person who, by any deception, dishonestly: (a) obtains property belonging to another, or (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud.

Elements of each offence is laid out in s 192B-D

Obtains property AR

MR 1.

Deception

1.

Intentional or reckless deception

2.

Obtains property

3.

Deception causes the obtaining

2.

Intention to permanently deprive

3.

Dishonestly

NOTE: intention to permanently deprive is only applicable to obtaining property s192 C(2) Obtains financial advantage AR

MR 1.

Deception

1.

Intentional or reckless deception

2.

Obtains financial advantage

2.

Intention to obtain advantage

3.

Deception causes obtaining

3.

Dishonestly

Causes financial disadvantage 1.

Deception

1.

Intentional or reckless deception

2.

Causes financial disadvantage

2.

Intention to cause financial disadvantage

3.

Dishonestly

Actus Reus 1.

Deception

s 192B (1) Deception refers to any deception, by words or other conduct, as to fact or as to law, including: (a) a deception as to the intentions of the person using the deception or any other person, or (b) conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make. False statements –

M (1980) case dealing with the publication of a false statement, the Court held that ‘It is now well

form of deception

established that the falsity of a statement may arise, not only because a fact therein alleged in falsely alleged, but because the statement, by omitting material facts, creates a false impression.’ At 204 (outright lies and partially true statements could amount to deception) Bryan (1957) It is important to distinguish between a deception and statements that amount to mere puffery (an exaggerated or enthusiastic claim intended to increase interest in the property). In this case a claim that a spoon was made “of the best material” and “had as much silver on them as Elkington’s” was held to be merely puffery. Patmoy (1944) telling a customer that a diamond was 7½ carats, when it was only 4 was held to a false statement.

Deception by

In Barnard (1837) the defendant, dressed in an academic cap and gown, created the impression that he

conduct and

was a student of Oxford University and thereby credit from a shopkeeper. Held that conduct without

silence

words could amount to deception. If a person makes a statement that at the time is true (or not recklessly false), there is no obligation on that person to alert the victim to a change in circumstances that make the representation false. Unlike English law, the Australian criminal law does not recognise a doctrine of continuing representation as outlined in Nelson (1986) R v Benli (1998) Provided driving lessons despite having a suspended licence – obtained property by deception because his licence was implied despite not being expressed Kennison v Daire (1986) used his bankcard without sufficient funds in his account – deception was found as he had the authority to use the card and was operating the account

2.

Causation

The offence is result based, s192E require the object of the fraud obtained by reason of deception. The prosecution must prove that the defendant obtained (or caused) by deception (Balcombe v De Simoni 1972) Ho and Szeto (1989) Facts: the defendants deceived their clients and employers into believing that contracts were being traded on the Futures Exchange, when they were actually being traded within the business. The issue was whether this was actually relevant to the amount of money the clients received. Held: there must be a causal connection between the deception and the obtaining of money. The deception was not the effective cause of the payment. Thus, if the representation is one to which the victim is indifferent (ie, it did not induce the result), there is no effective deception. Clemesha (1978) Facts: the accused had hired a plate compacter from the victim by using a false name and address. Held: the victim agreed to the transaction before the defendant had given the false details and was therefore not induced by them. The deception did not cause the obtaining of property. Such cases may amount to an attempt to obtain by deception instead. R v Kovacs (1974) must be a clausal link between the advantage obtained and the deception used

Ø

Causal link must be found between the deception and the following outcomes

PROPERTY

Property is defined in s4 of the act - This definition includes both tangible and intangible property (including land). Property belongs to someone s192C (3) when they have possession or control of the property, or has propriety right or interest in the property; NOT an equitable interest arising from agreement or a constructive trust Obtaining of property s192C (1) - require only that the accused or a third party gain control or possession of the property. There must be a causal link between the deception and obtaining The person deceived need not be the party suffering a loss, it is only necessary that through deception, the property was obtained Fraud covers situations where the victim is tricked into temporarily handing over possession or control, but does not intend to hand o...