Fallah - sample structure for notes - 3B scaffold PDF

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70114 Criminal Law and Procedure Sample structure for notes, prepared by Dr Katherine Fallah

HOW SHOULD I STRUCTURE MY NOTES? Several students have asked me this question, so I have put together this very rough document to provide an example of how you might like to start building your notes. Please keep in mind that this is only one approach – you might already have a different approach that works for you. Another thing to keep in mind is that I really just threw this together on a five minute break in between Zoom sessions, so it’s only a quick suggestion of where you might like to start! If you find this useful, please do let me know and I might try to use this as a format for our Zoom sessions in the future. Dr Katherine Fallah

AR for murder Defendant (D) caused the death of the victim (V), a person. Breaking this AR element down into its components:   

A person (legally defined) died (at law) D caused the death (‘causation’) [D’s conduct was voluntary. Prosecution (P) can presume voluntariness (Falconer).]

Legal personhood and the ‘born alive’ rule    

When might I need to address this rule? o … Note different tests for murder and for manslaughter Murder: s 20 Crimes Act (breathed + wholly born into the world; don’t worry about independent circulation) Manslaughter: go to the common law (eg, Iby) (What is the test?) o o (What are the facts of some cases that I have read? What did the courts say was sufficient to prove that the infant was born alive?)

When is a person legally dead?   

When might I need to address this question? Authority: Human Tissue Act (NSW), s 33. (Set out the rule.) Case law?

Causation It will always be necessary to address causation, because I need to address whether the accused caused the death of the victim. These are the steps I will take.  

Factual causation: ‘but for’ the conduct of D, would V have died? Legal causation:

70114 Criminal Law and Procedure Sample structure for notes, prepared by Dr Katherine Fallah

o General rule (apply in all cases): D’s conduct was a substantial and operating cause of death (Royall). o Has there been a possible break in the chain of causation (a novus actus interveniens)? Specific scenarios to consider (go to your case law and see what applies), eg:  Medical negligence  V refuses medical treatment (eg Blaue)  V takes final fatal steps (eg Royall, Hallet) Voluntariness I won’t always need to discuss voluntariness in detail but I will always need to mention it and explain how the presumption of voluntariness works.    



Definition (‘willed and conscious’)(Pemble) NB this is different from MR!! What are some scenarios that might suggest involuntariness? When would I need to address it? Broad vs narrow conceptions of the AR might have an impact on the question of whether the accused’s conduct was voluntary. o What are some examples in the case law? Set them out here (full citations, facts, prosecution and defence arguments, what the courts held). Note on the legal consequences -> if involuntary, no AR, therefore no liability. Result will be an acquittal....