Criminal_law_Casus PDF

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Criminal_law_Casus...

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Voluntary manslaughter DEFENCES do not negate fault element of crime of murder – reduces murder charge to manslaughter Partial Defence If successfulreduces blameworthiness/culpabilityreduces potential sentence; typically confined to application to charges of murder (controversy: B&S 324-331) 1. Provocation s23 Crimes Act (NSW) – objective test - Useful scenarios: domestic violence, history of abuse (Green case) - Legal burden on prosecution to prove there’s no provocation, evidential burden on defence to prove death caused by provocation Parker v R (1963) 111 CLR 610 – man drove car onto bike, wife dies, he stabs other guy. Had time to calm down and preplan – sudden enough? – Still under old law (changed after 1982) Chhay v R (1994) 72 A Crim R – woman attacked husband while he was sleeping b/c he didn’t get medicine for child – defence of self-defence failed – heat of passion provocation arg scrapped (s23: can be provoked at any time) 1.1 Provocative conduct (B&Ms298) Existence of a clearly identifiable triggering incident or series of incidents, cumulative effect allowed. Eg: R v R (1981) 28 SASR 321 - incident or words, Hart v The Queen (2003) 27 WAR 441 – wife committing adultery, Green v The Queen (1997) CLR 334, 337 Brennan CJ – homosexual advances 1.1.1 Insulting words Moffa v The Queen (1977) 138 CLR 601, 620-621 Mason J requires “close scrutiny of claims of provocation founded in words, rather than in conduct.” b/c words easier to fake claim. Against – Buttigieg (1993) 69 A Crim R 21: words alone cannot amount to sufficient provocation to murder. Moffa v The Queen Gibbs J: words of victim may have been calculated to disturb or enrage but not of a “violently provocative” character to amount to provocation. 1.1.2 Provocative conduct and lawfulness Lawful vs unlawful restraint  unlawful arrest may amount to provocation if illegality was known to accused (B&Ms301) 1.1.3 Provocation in presence of accused Increasing move towards accepting history of provocative incidents  may/may not be in presence of accused. (B&Ms302) Provocation may be aimed at a person with whom accused has a familiar or close relationship – R v Terry [1964] VR 1,19 Pape J

1.2 Lost self-control as a result of provocation (onus on defence) - s23(2)(a) “any conduct of the deceased” → time not a factor - s 23(3)(b) no need for act or omission to be done or omitted suddenly - must be evidence of an actual loss of self-control Wood J in Peisley (1990) 54 A Crim R 42 at 48 “to the point where reason has been temporarily suspended” Subjective test for impact on defendant wrt defendant’s traits, then objective test wrt reasonableness of defendant’s reaction. “Could [not 100% probability vs ‘would’] the ordinary person in the position of the accused have so far lost self-control to have homicidal intent.” Possibility of it occurring. Heron (2003) – could vs would Regina v Khalouf (2005) NSWCCA – wife cheats on husband, fought over moving house, multiple stab wounds 1.3 Capable of causing ordinary person to lose self-control and act in the way accused did (proportionality) 1.3.1 Ordinary person test - s23(2)(b) (a) Provocation capable of causing ordinary person to lose self-control? Assessment of content and extent of provocation. (b) Provocation capable of causing ordinary person to act in the way in which the accused did? (i.e. homicidal intent) Assessment of whether provocation could have caused an ordinary person to kill another or whether an ordinary person could have maintained self-control. Masciantonio v The Queen “cause ordinary person to form an intention to inflict gbh or death”. (B&ms304) Stingel v The Queen (1990) 171 CLR 312 – (Tas) 19 year old under a restraining order stalks “ex-girlfriend” and sees her engaging in sexual activity with a man (Taylor) in a car, stabs Taylor. – Accessing gravity of provocation describing ordinary person’s test - appeal dismissed. “In a case where it is necessary to take some such characteristic or attribute [obsessive jealousy or extraordinary pugnaciousness] into account for the purpose of identifying the content or gravity of the wrongful act or insult (eg a case of a grave insult centred upon that characteristic or attribute), the objective test will, nonetheless, require that the provocative effect of the wrongful act or insult, with its content and gravity so identified, be assessed by reference to the powers of selfcontrol of a hypothetical “ordinary person” who is unaffected by that extraordinary attribute or characteristic. In other words, the fact that the particular accused lacks the power of self-control of an ordinary person by reason of some attribute or characteristic which must be taken into account in identifying the content or gravity of the particular wrongful act or insult will not affect that reference point of the objective test, namely, the power of self-control of a hypothetical “ordinary person”.” – AGE AND MATURITY

(Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron, and McHugh JJ) [28]) → Stingel at 327 cites Moffa (Gibbs J) and Parker (Windeyer J) – can “be affected by contemporary conditions and attitudes” Masciantonio v The Queen (1995) 183 CLR 58 – history of depression and dissociation, bad son in law, confronted him and stabbed him. Jury directed not to consider accused background. Confirmed “ordinary person” test in Stingel. 1.3.2 Gravity of provocation Provocative conduct must be “gravely provocative to the individual because they relate to a personal characteristic”. (B&S 306) 1.4 Onus and Standard s23(4) - P bears legal burden and must prove BRD no provocation defence (i.e.: provocative conduct did not exist/intention to kill or cause gbh independent of provocative conduct/provocation was not such to deprive the ordinary person of self-control in the way in which accused did) - Evidential burden on D; evidence of provocation left to jury: “If there is some reasonable evidence of provocation before the court then the defence must be left to the jury” (Parker v The Queen (1964) 111 CLR 665) “Should decide that provocation be left to the jury by interpreting the facts as favourably as they can be for the D” (Holmes v DPP [1946] AC 588) 1.5 Modern cases R v Singh [2012] NSWSC 37 – wife cheats on husband, money arguments, he stabs her. NSW Legislative Council Select Committee on the Partial Defence of Provocation, Final Report recommendations. 2. Diminished responsibility s23A 3. Infanticide s22A

Complete Defence If successfulcomplete acquittal; can be applied to any offence (Zecevic v DPP (Vic) (1987) 162 CLR 645 B & McS, pp 335-6) 1. Self-defence s418-423 Crimes Act (NSW) - Limitations: 420-421 - Reaction to threat - Objective test to determine whether force used was reasonably necessary (B&Ms337) - Attack is of such a nature as to cause reasonable apprehension of death or GBH (B&Ms337) - Katarzynski [2002] NSWSC 613 “[23] The first issue is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second issue is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he or she faced. The Crown will negate self-defence if it proves beyond reasonable doubt either (i) that the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence or (ii) that what the accused did was not a reasonable response to the danger, as he or she perceived it to be.” 1.1 Necessity – Imminence of threat: Burgess; Saunders [2005] NSWCCA 52, Blackmore DCJ “a significant correlation between the act that constitutes the offence and the threat that the accused is defending against.” - Mistaken belief must be sane and not the result of delusions: R v Walsh (1991) 60 A Crim R 419. (a) Did accused apprehend death/GBH – believe that self-defence is necessary (subjective) Thought, felt, perceived. *Accused believed, prosecution proved not reasonable  defensive homicide, lower sentence *Both not proved beyond reasonable doubt  full acquittal (a.1) What the accused believed (B&Ms342) (a.2) Was that belief based on reasonable grounds - not wrt ordinary person but to what accused might reasonably have believed in all circumstances R v Cioban [2002] NSWSC 972 – shooting after being chased by unarmed persons - no necessity Giddings v DPP [2008] NSWSC 169 - Necessary to prevent trespass (pouring 1 L water over woman to eject her from the pub)? - Excessive force even taking into account the subjective perception

R v Hevesi-Nagy [2009] NSWSC 755 - Allegations of father/husband abusive; both mother and son wanted access visits by father to cease; no self-defence but substantial impairment by abnormality of mind “[23] The accused did not assert to police that she feared harm to her son and that was the reason for killing, rather when asked, she said she wanted JH to have "a choice in life, what he wanted to do without someone always threatening to take us back to court" (Q699). [24] I am not satisfied that the accused believed that killing the deceased was necessary to protect JH and I reject Dr Furst's opinion in that regard.” (b) Was apprehension reasonable? – Was response proportional Taking subjectivity (s418 2a-d) into account, is it objectively reasonable to take the response that was taken [test of objectivity not clarified, ordinary person vs reasonable person?] - Nature of conduct – Conduct on the part of the accused which caused the conduct to which the accuse then responded – Surrounding circumstances – Conduct of accused in response and availability of other possible responses to deal with the conduct *Must go through ALL s418 2a-d to prove whether self-defence was necessary R v Vuni [2005] NSWSC 184, [36]; Deliberately shooting an unarmed man without warning was unreasonable response – taking into all subjectivity in s418 tests but not passing all. R v Muddle [2004] NSWSC 403, [17]; [36]. Knife attack of an unarmed man, deceased made threats to kill – “degree of force” (s421), there are other ways to protect your house (s420) – doesn’t pass s418 tests. (b.1) Self-defence to lawful conduct allowed (s422): Crawford v R [2008] NSWCCA 166  slim chance of self-defence arg but might work (b.2) Intoxication: R v Katarynski [28] “jury […] must take into account the accused’s intoxication when considering whether he might have believed that it was necessary to act as he did in defence of himself and when considering the circumstances as he perceived them, but not when assessing whether his response to those circumstances was reasonable.” Conlon (1993) 69 A Crim R 92, 101 Hunt J “necessary to take into account all the relevant characteristics of the accused and surrounding circumstances, including intoxication, in assessing the accused’s belief.” (b.3) Pre-emptive strikes: Conlon (1993) 69 A Crim R 92, 98 “The accused was not obliged to wait until the attack upon him was repeated. If he honestly believed that the attack would be repeated, he was entitled to take steps to forestall that threatened attack before it began”

R v McKay [1957] VR 560, 562-563; Lowe J “Reasonable self-defence […]also available where there is a reasonable apprehension of such danger or grave injury.” (b.4) Self-defence and intimate partners who kill Osland ; Nicole Hogan, ANU hons thesis (b.5) Accused person initiates the provocation: B&Ms341 – provoked attacked na where accused began assault with intent to kill or cause gbh before necessity for self-defence arose. Not acting in self-defence: Zecevic v DPP (Vic) (1987) 162 CLR 645, 663 Wilson, Dawson and Toohey JJ where person created the situation, person is “acting, not in self-defence but as an aggressor in pursuit of his original design. A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack.” (b.6) Excessive self-defence excessive force unlawful and accused’s belief as to the appropriateness of the degree of force used is irrelevant (B&Ms346). S421 Crimes Act. Viro v The Queen (1978) 141 CLR 88, 139 “ (b.7) Battered woman defence allowed but problems wrt “reasonable person” defn may arise (B&Ms348). R v Kontinnen (1992) 16 Crim LJ 360 – evidence admitted without objective by trial judge, set precedence of battered woman defence. 1.2 Duress 1.3 Defence of lawful correction s61AA

Criminal responsibility (Week 2/B&S Chapter 3 and 4)

PHYSICAL ELEMENTS

Act

Conduct

Conduct in Specified Circumstances

Results of Conduct

Omission (R v Miller, Lord Diplock. B&S186)

State of Affairs (state of being rather than conduct) usually summary offences

Causation (prosecution prove conduct caused consequences)

Reasonable Forseeability (Royall v The Queen. B&S190)

Substantial Cause (R v Hallett. B&S190)

Voluntariness (willed) Involuntary if:

Accidental

Reflex Action

(without intention, recklessness or criminal negligence)

(external cause rather than intention. Ryan v The Queen. B&S187)

Impaired Consciousness (Automatism)

Natural Consequence

PYSICAL ELEMENTS ACTUS REUS 1. Conduct 1.1 Act 1.2 Omission No legal obligation for persons to act so as to prevent harm or wrongdoing. R v Miller, Lord Diplock “no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created.” 1.3 State of Affairs State of being rather than conduct. Usually summary offences. 2. Conduct in Specified Circumstances 3. Results of Conduct Voluntariness “conduct can only be a physical element if it is voluntary” S15 Criminal Code (ACT) A “deed which was not the result of the accused's will to act cannot, in my opinion, be made the source of criminal responsibility in him.” (Ryan v The Queen (1967) 121 CLR 205 [20], Barwick CJ) 1. Accidental: Caused without intention, recklessness or criminal negligence 2. Reflex action: External cause rather than intention 3. State of impaired consciousness: Involuntary conduct e.g. automatism (NOT A DEFENCE) 3.1 Sane automatism: Complete acquittal – accused deprived of will to act, involuntary Jiminez v The Queen (1992) 173 CLR 5 – involuntary based on unconscious state 3.2 Insane automatism: Disease of the mind (defence of insanity/mental impairment), determined by 3 tests 3.2.1 Recurrence or continuing danger 3.2.2 Internal/External (Mental state internal to the accused) 3.2.3 Sound/Unsound (Dissociative states; R v Radford, King CJ “reaction of unsound mind to its own delusions or external stimuli”) Falconer (1990) 171 CLR 30 – Automatism (vs. Impaired Consciousness) Causation (after a consequence) KEY CASE: Royall v The Queen 3 objective tests: where there was an alleged novus actus interveniens 1. Reasonable foreseeablility (prospective test)

Royall v The Queen, Deane and Dawson JJ “desirable to keep causation and intent separate and as far as possible to avoid the introduction of foreseeability in relation to causation.” 2. (Operating and) Substantial cause (retrospective test) – accused act led directly to victim’s death 2.1 R v Smith [1959] 2 QB 35 pg195 2.2 R v Evans pg 195 2.3 R v Miller, Lord Diplock: accused has responsibility to counteract a danger that he has oneself created 2.4 R v Hallett [case for beyond sub. Cause test. Would a reasonable person have foreseen what happened? Mens rea irrelevant pg190] Supreme Court of SA “whether an act of series of acts consciously performed by the accused is or are so connected with the event that it or they might be regarded as having a sufficiently substantial causal effect…” 3. Natural consequence Royall v The Queen, Mason CJ “where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused’s conduct.” If all above fail: novus actus interveniens 1. Acts of Victim: must be reasonable! 1.1 Seeking to escape violence Proportionate to that conduct Royall v The Queen: Jumping from a window doesn’t count 1.2 Failing to take medical advice (courts usually reluctant to take this stance) Assialants must take their victims as they find them R v Blaue: Jehovah’s Witness refusing a blood transfusion after being stabbed don’t count. Question of what caused the stab wound (included in judgement of Royall also) 1.3 Suicide (courts usually reluctant to take this stance) People v Lewis: Victim cutting own throat to hasten death doesn’t count Stephenson v State: Victim killing herself after being raped doesn’t count (verdict: victim had taken poison b/c of pain and shame) 2. Acts of Third Party R v Pagett (other test beyond causation. “free, deliberate and informed” pg194), acts of a third party will only be considered when it’s a voluntary act 2.1 Medical treatment Only in cases involving gross negligence that medical treatment can be considered. R v Jordan: medical treatment broke chain of causation b/c victim previously showed signs of intolerance R v Smith, Lord Parker CJ “Only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.”

FAULT ELEMENTS MENS REA Must be inferred 1. Subjective elements 1.1 Intention Brennan J in He Kaw Teh v The Queen (1985) 157 CLR 523, 569 “Intent, in one form, connotes a decision to bring about a situation as far as it is possible to do so – to bring about an act of a particular kind or a particular result. Such a decision implies a desire or wish to do such an act or to bring about such a result.” 1.1.1 Basic intent – intention confined to merely engaging in the specified conduct 1.1.2 Specific intent – intention to cause a specific result (ref. R v Heard [2008] QB 43: a specific intent offence requires “proof of a state of mind addressing something beyond the prohibited act itself, namely its consequences”) Examples in Crimes Act 1900 s428B 1.1.3 Oblique intention – outcome of accused’s conduct not directly linked to his intention, emerges from consequence of that conduct Hyam v DPP: accused had relevant intent to kill, “grievous bodily harm morally indistinguishable from intent to kill” 1.1.4 Transferred intention – intends a particular crime, commits requisite physical elements but with a different victim than intended Kwok Chak Ming v The Queen: attacked pregnant girlfriend, foetus died. “Intention to commit serious harm =/= murder”  too much inference for transfer. Therefore no transfer 1.1.5 Intention v Motive 1.2 Knowledge Entails a person being conscious of the existence of a particular circumstance or aware that a particular consequence will result from his/her conduct. Requires physical elements of: Conduct in specified circumstances Consequence of conduct 1.2.1 Wilful blindness (courts reluctant to equate it with actual knowledge) Kural v The Queen: possession of a prohibited import did require actual knowledge 1.3 Recklessness Where a person has foresight/is aware of the possibility (or, in the case of murder, the probability) of a particular circumstance or outcome and yet carries on in spite of that risk.

In the context of s 35 Crimes Act (1900 (NSW) Reckless infliction of GBH in Blackwell v R [2011] NSWCCA 93 (Beazley JA): “[They jury] had to be satisfied that he realised that by thrusting the glass into Mr Ward’s face, it was possible that grievous bodily harm, that is really serious injury, would be inflicted and yet went ahead and acted”. 1.3.1 Recklessness and indifference R v Crabbe: Knowledge that those consequences will probably occur that is the relevant element. Immaterial whether or not accused was indifferent to the risk. The sole question is whether or not the accused, at the relevant time, foresaw the probability of causing death. Foresight of probability wrt murder To protect doctors, law ...