Exam notes - Criminal law - JD PDF

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Criminal law - JD...

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2. Non-fatal offences against the person: AR (Actus Reus – usually guilty act or occasionally omission) + MR (Mens Rea – guilty mindset – intentional, reckless or negligent) – Defence (if raised on the facts) = Guilty if the jury is satisfied Beyond Reasonable Doubt

ACTUS REUS: Voluntariness:  “On X’s own will, X [the act] – voluntarily completing the physical element to complete the ‘act’”.  Can be an act of omission  Ugle v The Queen: Sequence of acts leading up can go to determining ‘voluntariness’ of the ‘act’. Injury or serious injury:  S.15: Injury can be a – o Physical injury; OR  Unconsciousness; disfigurement; substantial pain; infection with a disease; impairment to bodily function. o Harm to mental health.  Psychological harm; excludes emotional reactions (distress, grief, fear, anger)  s15: Serous injury is an injury that – o Endangers life; OR o Substantial and protracted; OR o Destruction of the foetus of a pregnant woman, whether the woman suffers any harm. Causation:  Causation tests: o ‘But for’  When to use: act  consequence is main factor  Royall v R multiple causes/intervening acts = too broad  “But for D’s [act], V would not have [result]” (R v Hallet) o ‘Substantial and operating cause’

When to use: There are contributing factors BUT without D’s [act], the [result] would not have happened (R v Hallett).  D’s actions need not be the sole cause of [result/injury]. Substantial & operating cause is sufficient, where {act} was so connected to and subsists up to the […result…] (R v Hallett). o Natural consequences  D’s conduct induced in V a well-founded apprehension of […fear…], where [result] could have been seen to be a natural consequence of a reasonable person in V’s position (Royall v R) o Reasonably foreseeable  Outside/within the realm of what is natural & predictable consequences of [circumstances] (Royall v R) Novus actus intervenuens (act broken by act of --) o God: Tsunami, earthquake  Something ‘natural and predictable’ does not constitute (R v Hallet – tide) o Victim:  The fact that V did not stop ‘end’ from coming does not mean that there was a break in the causation chain (R v Blaue)  Q: what caused the injury?; A: D’s actions o 3rd party:  As long as 3rd party’s conduct is lawful, then D not wholly but still substantially responsible (R v Pagett) o Medical treatment:  Subsitquent injury still contributed to the wound, which would have not happened if it were not or D’s act (R v Evans & Gardiner) 



MENS REA: Intention OR  ‘Subjective’ intention of D at the time the act was committed ( Fagen: one continuous act (AR & MR)  Not simply enough to intend the act as they did, D must also have intended to cause the injury (R v Westaway) Recklessness OR  D was reckless in that they knew [injury] would be a probable result for their actions o Crabbe: knowledge of consequences being ‘probable’ or ‘likely’, yet still going ahead regardless of the risks.  D was reckless in that they possessed the foresight that [injury] would be probable o Campbell: possession of ‘foresight’ it would be a probable result Negligence: only relevant to s. 24 AR: 1. D’s act or omission 2. Breach of duty a. Firstly establish duty  D owed V a duty of care because: o Parent child relationships: R v Russel

o Voluntary employment in an occupation that bears upon public safety: R v Lowe o Voluntary assumed care of V: R v Taktak, R v Instan, R v Stone & Dobinson o D created a situation of danger: R v Instan/Miller b. Did the act or omission breach or fulfil the duty?  Breach: omitting to help (R v Sone & Dobinson)  Fulfil: calling for help (R v Taktak) 3. That caused serious injury MR: 1. Test of ‘gross’ falling short (Nydam) a. A great falling short of the standard of care that a reasonable person would have exercised and involved a high risk of serious injury (mixed objective standard). Contemporaneity:  AR & MR need to be one continuous act (Fagan)  Sufficient when the AR does not occur at the same time as MR (Fagan)

NON FATAL OFFENCES – CRIMES ACT 1958 (VIC) OFFENCE

Prove AR  Prove MR  Defence? No lawful excuse AR (BRD) MR (BRD)

S. 15a – Causing serious injury intentionally in circumstances of gross violence

S. 15b – Causing serious injury recklessly in circumstances of gross violence S. 16 – intentionally causing serious injury

1. Act caused serious injury to another 2. Act was of gross violence: (a) offender planned in advance (b) offender was in the company of 2 or more (c) offender agreed/planned with 2 or more (d) planned/used offensive weapon (e) continued to cause after incapacitated (f) caused SI while incapacitated 1. Act caused serious injury

1. intended to cause serious injury

1. D (subjectively) foresaw that his act would probably cause serious injury

2. Act was of gross violence (see above) 1. Act caused serious injury

1. intended to cause serious injury (R v Westaway)

S. 17 – Recklessly causing serious injury

1. Act caused serious injury

1. D foresaw that his act would probably cause serious injury (R v Campbell)

S. 18 – Intentionally or recklessly causing injury

1. D caused the injury

S. 20 - Threat to kill

1. D threatens to kill V

S. 21 - Threat to cause

1. D threatens to inflict serious injury

1. D intended to cause injury Or 2. D (subjectively) foresaw that his act would probably cause injury (R v Campbell) 1. D intends V would fear the threat will be carried out Or 2. Was reckless as to whether that person would probably fear that the threat would be carried out 1. D intends V would fear the threat will

serious injury

on V

be carried out Or 2. Foresight that V would probably fear the threat to inflict SI would be carried out. 1. Negligently

See: s. 15

S. 24 – Negligently causing serious injury

1. D’s act or omission 2. Was in breach of a duty* 3. That caused serious injury

Then consider…. COMMON LAW ASSAULT ‘An assault is any act which intentionally – or possibly recklessly – causes another person to apprehend immediate and unlawful personal violence (confirmed in Ireland) D’s act causes V and unlawful personal violence OR D actually uses unlawful force on V without his/her consent Intentionally OR recklessly Non-physical inferences (‘assault in the strict sense’) Intro: D may be liable for CL assault if he/she is found BRD to have performed a voluntary/ willed act, which caused V to reasonably apprehend imminent physical interference. Note: No apprehension of fear – no assault Penalty: maximum of 5 years imprisonment 1. AR (BRD) 2. MR (BRD) 1. Voluntariness 1. Intention: R v Westaway – The prosecution must prove beyond reasonable doubt (‘BRD’) that D voluntarily committed the act that allegedly caused V’s death. Ugle v R acts as authority for the proposition whereby the act must be voluntary, willed and deliberate.

intention to cause serious injury (rather than intention to cause mere injury or just intention to do the act) or use Fagan: P must that A intended their actions to cause V to apprehend the immediate application of force to their body.

2. Caused an apprehension of unlawful violence

Or

R v Ireland: confirms Fagen – repeated telephone calls of a menacing nature – held: D caused V to apprehend the possibility of imminent violence, this is an assault. This case confirms that non-physical inferences may be considered actions causing injury.

2. Foresight of probability: of creating an apprehension of immediate unlawful physical contact - R v Campbell – mental element of acting recklessly is the possession of foresight that injury probably will result

3. Absence of defence: AR + MR – Defence = Criminal Liability Methods of avoiding criminal liability: consent and self-defence 4. Conclude:

Thus, as AR and MR are contemporaneous (Fagan; Thabo Meli), and A has no legitimate defence, A is likely to be guilty of CL assault. Physical inferences (‘assault in the strict sense’) Intro: D may be liable for CL assault if he/she is found BRD to have performed an act which caused direct physical interference with P, without consent, and D did so either intentionally (Westaway) or recklessly (R v Campbell). 1. AR (BRD) 2. MR (BRD) 1. With intention Physical interference = Actual Deliberately made unlawful contact application of force to V’s body. (Fagan) AR # 1 – Voluntariness (Ugle). AR # 2 - Application of force (Fagan) AR # 3 – Without consent

Or

No injury needs to be caused - just needs to be a non-consensual application of touch

unlawful contact (R v Campbell) i.e. the A must have subjectively realised that their actions would cause harm.

2. Foresight of the probability of making

3. Absence of defence: AR + MR – Defence = Criminal Liability Methods of avoiding criminal liability: consent and self-defence 4. Conclude: Thus, as AR and MR are contemporaneous (Fagan; Thabo Meli), and A has no legitimate defence, A is likely to be guilty of CL assault.

3. Homicide Discuss the AR of homicide (murder and manslaughter): • Voluntary act • Causing death Then consider whether there was the MR for Murder: • intention to kill or cause GBH (or transferred malice); • recklessness as to death or GBH; OR If the MR for Murder cannot be proven, consider the alternatives: • Unlawful and dangerous act manslaughter; and/or • Negligent manslaughter

Murder Did D’s voluntary act cause V’s death with the requisite MR? 1. AR (BRD) 2. MR (BRD) 1. Intent to kill/cause GBH 1. Voluntary act 

2. Causation 3. Intervening acts? 4. Age of criminal responsibility? Older than 10  criminally responsible

Murder: D subjstivelly had the intention to kill V

OR  Cause GHB: If D had subjectively intended to cause GHB  that resulted in death (DPP v Smith). Transfer of Malice: intent to murder transferred from A (intended victim) to B (actual victim) See: Saunders v Archer

2. Recklessness as to kill/cause GHB Recklessness as to death   

D was ‘reckless’ in that s/he knew than [injury] would be probable result of his/her actions. Crabbe: knowledge of consequences being ‘probable’ or ‘likely’, yet still going ahead regardless of the risks. Campbell: possession of ‘foresight’ it would be a probable result

Recklessness as to GHB  

D was ‘reckless’ in that s/he knew than [injury] would be probable result of his/her actions. Crabbe and Campbell same as above.

3. Absence of defence: AR + MR – Defence = Criminal Liability Methods of avoiding criminal liability: consent and self-defence 4. Conclude: Thus, as AR and MR are contemporaneous (Fagan; Thabo Meli), and A has no legitimate defence, A is likely to be guilty of CL assault. OR: since the MR for murder cannot be satisfied, then manslaughter must be

considered. EITHER UaD or negligent (not both)

Unlawful and dangerous act (‘UaD’) Manslaughter: 1. AR (BRD) 1. Voluntary 2. Causation (caused the death)

2. MR (BRD) 1. Actual UaD was intended Intended the act, but not the death (Pemble?).

3. Unlawful act Common law assault is defined in Fagan as an act that causes the victim to apprehend immediate and unlawful personal violence. Either non-physical or physical inferences.   

Fagan: assault + force = unlawful R v Lamb: no intention of doing unlawful act  no assault Pemble: intention for doing an unlawful act  assault.

4. Dangerous act (Wilson) To determine whether something is ‘dangerous’, an objective standard must be taken as to whether –  

A reasonable person would have realised that they were exposing V to an appreciable risk of serious injury s.4A: punch to the head/neck = dangerous

3. Absence of defence: AR + MR – Defence = Criminal Liability Methods of avoiding criminal liability: consent and self-defence 4. Conclude: Thus, as AR and MR are contemporaneous (Fagan; Thabo Meli), and A has no legitimate defence, A is likely to be guilty of CL assault.

Negligent manslaughter An act or omission…… where there was a duty of care: See: Taktak (1988) applying Nydam). Where there was a ‘gross’ or great falling short of the standard of care a reasonable person would have exercised And which involved a high risk of death or GHB could result 1. AR (BRD) 1. Duty to act Firstly must establish duty (see page 2), then must establish if the act or omission breached or fulfilled the duty

2. MR (BRD) 1. Gross or great falling short of the standard of care: Per the Test of ‘gross; falling short in Nydam:

(see page 2) 2. Negligent act or omission As a result of D’s act or omission, V has died. Act: Nydam states that an act must be:   

A ‘gross’ falling short of the standard of care that a reasonable person in that position would have exercised AND  Involves a high risk of serious injury 

D's acts were voluntary D's acts caused V's death There was a gross departure from the standard of care of a reasonable person amounting to criminal negligence

Omission: R v Lavender tests for manslaughter:  



D must be under a legally recognised duty to act; D must have omitted to fulfil this duty, or 'breached' the duty in a way that exhibited a great degree of negligence, as required by the doctrine of manslaughter; As a result of this omission, V died

3. Absence of defence: AR + MR – Defence = Criminal Liability Methods of avoiding criminal liability: consent and self-defence 4. Conclude: Thus, as AR and MR are contemporaneous (Fagan; Thabo Meli), and A has no legitimate defence, A is likely to be guilty of CL assault.

4. Self-defence D can raise self-defence but has evidential onus, that D’s [act] was in [self-defence / protection]. At the close of the Prosecution Case the Defence has 3 options: 1. Make ‘no case to answer’ submission 2. Deny or undermine one or more of the necessary AR or MR elements of the offence by leading their own evidence… (how?) 3. Raise a formal defence – D then has the evidentiary burden to bring it up (but P still has overriding legal burden at end of the case to negate that defence BRD) a. In other words, P needs to disprove the defence BRD These options can be argued in the alternative. If family violence is not relevant  s322K Test. How to answer problem questions: Step 1: Prove the AR elements of your crime(s) BRD Step 2: Prove the MR of your crime(s) BRD and raise any applicable jury directions Step 3: Consider any issues that may potentially negate an AR or MR element Step 4: Consider how the burden of proof works if self-defence is raised: As per s.322I of the Crimes Act, ‘the accused has the evidential onus of raising self-defence… [and]…the prosecution has the legal onus of proving beyond reasonable doubt (BRD) that the accused did not carry out the conduct’ amounting to that defence‘. E.g. If D uses the evidential burden to raise self-defence, P must prove D did not believe what s/he was doing was necessary or D’s conduct was not a reasonable response in the circumstances as s/he perceived them…  If the Prosecution cannot disprove D’s defence BRD, then D will be acquitted. Common law:  Self-defense used to be defined in common law, however this has been abolished  no longer binding  But in 2014, s322N abolished the common law of self-defence, and replaced it with the current tests found in sections 322G to 322M Crimes Act. Defences regime under Crimes Act 322H. Definitions 322I. Onus of proof 322J. Evidence of family violence 322K. Self-defence 322L. Self-defence does not apply to a response to lawful conduct 322M. Family violence and self-defence 322N. Abolition of self-defence at common law Self-defence in legislation:

 

322K(2)(a) the person believes that the conduct is necessary in self defence; and (subjective) 322K(2)(b) the conduct is a reasonable response in the circumstances as the person perceives them (objective, however, ‘perceives them’ is subjective)

Note: s.322K(3) limitation – On a murder charge, D must be responding to the threat of death or really serious injury (incl. serious sexual assault defined in s.322H)  On all other charges, the circumstances where self-defence arises may include defence of themselves/ of another/ false imprisonment or protection of property. When juries assess self-defence under s. 322K:  s. 322k(2)(a) and 322K(2)(b) – two part test  322K(2)(a) the person believes that the conduct is necessary in self defence; and  322K(2)(b) the conduct is a reasonable response in the circumstances as the person perceives them  When determining whether self-defence was necessary and a reasonable response, a jury has to apply the s322K test and may consider: o Necessary? = All the surrounding circumstances* as the person believed them to be, o All the facts within D’s knowledge o The personal characteristics of the D, such as any deluded beliefs he or she held; or any excitement, affront or distress he or she was experiencing, intoxicated? o Response = prior conduct of V, opportunities to escape & the proportionality of the response Note s.322J (Evidence of family violence) & s.322M (Family violence and selfdefence) if applicable) ss.58-60 jury directions if family violence is alleged or sexual offences S. 322M: Family violence and sel-defence: (1) … where self-defence in the context of family violence is in issue, a person may believe that the person's conduct is necessary in self-defence, and the conduct may be a reasonable response in the circumstances as the person perceives them, even if— (a) the person is responding to a harm that is not immediate; or (b) the response involves the use of force in excess of the force involved in the harm or threatened harm. (2) … where self-defence in the context of family violence is in issue, evidence of family violence may be relevant in determining whether— (a) a person has carried out conduct while believing it to be necessary in self-defence; or (b) the conduct is a reasonable response in the circumstances as a person perceives them.

S. 322J: evidence of family violence 1. Evidence of family violence, in relation to a person, includes evidence of any of the following— a. history of the relationship and violence b. cumulative effect of the violence c. social, cultural or economic factors d. general nature & dynamics of relationship / consequences if separated e. psychological effect of violence 2. In relation to a ‘family member’ (wide definition) a. married b. intimate relationship e.g. Partner/boyfriend/girlfriend c. parent/step-relative d. child e. guardian f. person who is a ‘ordinary member of the household’ In relation to ‘violence’  physical, sexual, psychological, intimidation, harassment, damage to property, threats of abuse, exposing a child to abuse etc. 3. Can include a single act or a pattern etc. Jury Directions on family violence: s. 58 Jury Directions Act 2015 - “while there is an arguable claim for self defence, there is no claim for it being in a family violence context. Therefore, focus will be on the crimes act”. 1. Defence counsel (or, if the accused is unrepresented, the accused) may request at any time that the trial judge direct the jury on family violence in accordance with section 59 and all or specified parts of section 60.

2. The trial judge must give the jury a requested direction on family violence, including all or specified parts of section 60 if so requested, unless there are good reasons for not doing so. 3. If the accused is unrepresented and does not request a direction on family violence, the trial judge may give the direction in accordance with this Part if the trial judge considers that it is in the interests of justice to do so. 4. The trial judge— a. must give the direction as soon as practicable after the reque...