He Kaw Teh - He Kaw Teh Anaylsis PDF

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He Kaw Teh Anaylsis...

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HE KAW TEH ELEMENT ANALYSIS STEP 1 – ELEMENT ANALYSIS 1. What does the statutory provision say? i. Identify the Physical Element(s) (must be specified for every offence) -

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ii.

Identify any express Fault Element(s) (may not be divided amongst individual PEs) -

iii.

If not in title, go to text of provision (1) Conduct a. Act b. Omission (2) Circumstance (outside of person – eg Rape: act = sex; circumstance = lack of consent) (3) Result (eg death; grievous bodily harm; passing on a disease) (4) State of Affairs (crime of being eg bikie; intoxicated; sexual offender) Separation of individual physical elements of an offence may be required;

Intent Recklessness Knowledge Belief

Identify any implied Fault Element(s) -

As listed above — may be implied from language of a provision May be implied from the nature of the PE e.g. possession, encouragement are concepts that contain FEs within them

STEP 2 – PRESUMPTION OF MENS REA (Pros must prove FE — most favourable to defendants) a) Consider the factors that displace or uphold this presumption: i. Is offence truly criminal? – If yes, UPHOLDS mens rea a.

ii.

a.

iii.

Condition may proliferate if needed to prove mens rea. Tend to be SL or AL to protect public safety

Would proof of knowledge effect enforcement? – If yes, REBUTS mens rea a.

v.

Want to stamp out social evils

Does offence concern public health; food; safety? – If yes, REBUTS mens rea a.

iv.

Consider high penalty, social stigma

Is offence protecting from grave social evil? – If yes, REBUTS mens rea

If had to prove intention etc, would never convict – plus puts positive obligation on community eg not to speed

Would Strict Liability or Absolute Liability be unjust because the Def could not safeguard self from liability? – If yes, UPHOLDS mens rea a.

eg importation of drugs – can’t be liable for someone else using you to commit a crime

IF PRESUMPTION UPHELD à FULL FAULT (MENS REA) OFFENCE à No further steps required à Prosecution must prove mens rea IF PRESUMPTION REBUTTED à NOT FULL FAULT, GO TO STEP 3

STEP 3 – PRESUMPTION OF STRICT LIABILITY (Next most favourable to defendants) a) Consider factors that displace or uphold this presumption: i. Purpose of statute ii. Subject matter of statute iii. Wording of similar legislation a. b.

iv. v.

eg If other child sex offences are SL, will likely be SL. NOTE: SA Case law indicates child sex offences are matters of AL (R v Clarke)

Is the offence safeguarding public health? – If yes, REBUTS SL Would Absolute Liability create ‘luckless victims’/punish accidental behaviour? – If yes, UPHOLDS SL a.

Lim Chin Aik v The Queen (1963)

IF PRESUMPTION UPHELD à STRICT LIABILITY OFFENCE à No further steps required à Defence of honest and reasonable mistake of fact available 1. Def must meet evidentiary burden (low burden) a. Did Def honestly believe this? b. Was belief reasonable by an objective standard? c. Was there a mistake of fact? (NOT of law) (aka would Def not be guilty of an offence if mistake was true? eg Punching plain clothes PO — still offence of assault if civilian)

d. Was the Def ignorant? 2. Pros must then disprove evidence beyond a reasonable doubt (legal burden) IF PRESUMPTION REBUTTED à ABSOLUTE LIABILITY OFFENCE à No further steps required à Defences of involuntariness, duress etc still available

If found that offence is: • Full Fault o Must consider whether PE + FE existed • Strict Liability o Must consider whether PE existed + whether Def can meet evidentiary burden to raise H&RMF defence • Absolute Liability o Must only consider whether PE existed...