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Tutorial 1: Start assignment after Wednesday What is crime? Or what makes behaviour more than simply socially unacceptable? - When it causes harm to another individual or yourself - Not morally acceptable - Biblical origins? What is right and wrong - Shaped over time with changing societal beliefs in hand Summary offences act (NT): - Section 76: Playing musical instruments so as to annoy Every householder personally, or by his servant, or by any member, may require any street musician to depart from the neighbourhood of his house, on account of the illness of any inmate of the house or for any reasonable cause. Every person who sounds or plays upon any musical instrument in any thoroughfare near to and so as to be heard at the house, after being so required to depart, shall be guilty of an offence. Penalty: 200 dollars. i.e. this law does not cause any harm, what is it’s use? Definitions of Crime: Crime. A wrong punishable by the state.’ (Butterworths Australian Criminal Law Dictionary, 1997) ‘A crime (or offence) is a legal wrong that can be followed by criminal proceedings which may result in punishment.’ (G. Williams, Textbook of Criminal Law, 1983, 27) “A human rights-based approach says that crime occurs whenever there is a human right that has been violated, regardless of the legality or otherwise of the action.” (R White and F Haines, Crime and Criminology: An Introduction, 2004, 5) Who is ought to be a criminal? • Personal drug taking • Prostitution • Offensive language • Public urination • Association with an Outlawed Bikie Gang • Intoxicated and disorderly conduct • Procuring an abortion • Euthanasia / Assisted suicide • Smoking in public places • Smoking in private places Actual tutorial: - DO THE Readings!!! - Criminal law elements book for readings. (Penny Croft) - Australian Criminal Justice; text. - Footnotes do not count generally to the word count. - Tutors mark off the rubric

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Common law; Courts decided Statute law; decided by legislation Individual autonomy approach: Criminal law should just prevent harm to others. Community welfare approach: behaviour and its cost to the community

Chains of causation e.g. Drug dealers can’t be done for manslaughter; as the taker breaks the chain of causation by choosing to take the drug. - Private-public dichotomy: Nudity in private is not illegal vs in public, Swearing in public, public intoxication, domestic violence  Past; reluctance of the state to interfere. - Adultery, fornication etc. would be immoral but not illegal - Protection of people from themselves e.g. drunk driving, drug consumption. - Morality changes time to time and place to place - Moral panics: Thomas Kelly, Daniel Christie  One punch laws.  Already existed legislation towards manslaughter by dangerous behaviour such as king hitting someone.  Government quickly passed the one punch law, then similarly the lock out laws.  perception that crime rates were soaring, and policing and laws needed to become more prominent. - Bail reform laws: Law reform commission report (after the three cases in the media) reverted the legislation within 3 weeks.  Government is conscious of the media and public opinion. - Harm principle and morality: Offensive language (offensive depending on the context) - Public urination: Conviction overturned by the excuse that he was ‘busting’. - Criminal organisation controls act [2012]: Bikie gangs.  controversial, predictive law. - Abortion: cases R v Wald; Defence to the statute on necessity; it would cause mental and physical harm to the mother if the pregnancy would be carried to term. - Mather Case: wife/girlfriend accused of murder while she assisted in the suicide. - Paternalistic and moral laws. - Do not refer to commonwealth or state legislation unless directly relevant to the assignment. - Use note up function to see all relevant cases under a certain legislation subsection. -

Tutorial Week 2: Principle of Criminal responsibility  Do not make assertions for assignment without evidence! Burden of Proof: • What is the legal burden of proof in the criminal law? Which case is authority for this? Unreasonable doubt, Woolmington  The presumption of innocence is the most important thing in criminal law and cannot be ignored. The burden of proof in criminal matters is that the prosecution must prove the Defendant's guilt beyond a reasonable doubt. • Does an accused have to prove her innocence? No, it is the prosecution that does this. • What is the evidential burden and why does it shift? - reasonable possibility - evidential burden subsumed in unreasonable doubt - When defendant is raising defence, they must raise evidential burden  support what they are saying. - Bare minimum evidence the judge will allow before a jury. - Prosecution has to negate the defence beyond reasonable doubt. - Must be sufficient evidence for every issue raised. Criminal responsibility: • Who can be criminally responsible?  Presumption in criminal law that individuals do not suffer from mental impairment • What is doli incapax? • Should the principle be maintained? What are the arguments for and against? Voluntariness: Voluntariness: Define it: Willed action; i.e. not accidental or unconscious, reflex. Is it an element of Actus Reus or Mens Rea? ACTUS REUS - mens rea: the intention - Actus reus: More closely related to Voluntariness. Ryan v R (1967) 121 CLR 205; - Service station gun case - Reflex made him shoot the loaded gun - Ryan admitted manslaughter but denied guilt; claimed he did not intend on murder - Court restated that the person is not guilty of a crime requiring mens rea if it was done without the exercise of free will - Pointing the gun with a loaded gun is still voluntary. Murray v The Queen (2002) 211 CLR 193; and - Loaded shot gun - Deceased died from gun-shot wounds to the chest. - Onus of proof: Whether the trial judge erred in directions to jury about onus of proof - Act causing death. Jiminez v The Queen (1992) 173 CLR 572 - Driver asleep; were the actions voluntary - Negligent driving; falling asleep at the wheel

- Actions and options, he had before falling asleep. Can you think of some examples of involuntary conduct? - unwilled bodily movement - spasm - sneezing - being pushed by another person. What is the most relevant consideration in these cases? (related to assignment) - Ability of judges to discern the intent; act as a composite set of movement, not just one isolated act of pulling the trigger - chain of events and chain of voluntary actions. Criminal code Cth: 4.1 Physical elements (1) A physical element of an offence may be: (a) conduct; or (b) a result of conduct; or (c) a circumstance in which conduct, or a result of conduct, occurs. (2) In this Code: conduct means an act, an omission to perform an act or a state of affairs. engage in conduct means: (a) do an act; or (b) omit to perform an act. Omissions: • Is an omission the same as a commission? Morally/Legally? - Omission: Common law is less inclined to convict in event of omission e.g. someone drowning (stranger). • When can someone be held responsible for a failure to act? - Assuming responsibility when they hold a duty of care; (assume duty of care) Stone v Dobinson [1977] - Creating danger: If you cause a dangerous situation; smoking in bed, causing fire and continue to sleep through it doesn’t put the fire out - Relationship: mother/father and child, Case: R v Russell [1933], Doctor and patient. - Statute can create legal duty; e.g. s 43 Crimes act; failure to provide environment suitable for a child. Good Samaritan Laws: Do you think we should have Good Samaritan laws? See eg: Criminal Code Act 1983 (NT) Sch 1, s 155 155 Failure to rescue, provide help, &c. Any person who, being able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously fails to do so is guilty of a crime and is liable to imprisonment for 7 years. - If you do step in and do something and something goes wrong, you can’t be sued for that. - Preventing lesser of two evils What is the difference between intention, recklessness and negligence?

Main elements of Actus reus: - conduct - voluntary - act or omission Mens rea: Mental element Intention Which mens rea states are subjective/ objective? Subjective= intention, recklessness. Objective = negligence Mens rea elements:

Objective/Subjective? Definition:

Intention

Recklessness

Negligence

Subjective

Subjective

Objective

The defendant knows and foresees the risks involved in a particular act. They consciously decide to disregard the risks associated with the action and do the action anyway.

Failure to take proper care over something. Conduct below what a reasonable person would observe.

Subjective state of mind that must accompany the acts of certain crimes to constitute a violation.

Mens Rea: Which mens rea state would be most appropriate for the prosecution to argue in the following examples? • Borris drove his truck into a restaurant at 9pm. He was not sure if people would be dining in the restaurant at the time. - Subjective recklessness • Bianca pushed her sister into a lake knowing that she could not swim. - Intent • Brendan did not feed his four-year-old child for a week. - Negligence • Beatrice pointed a gun and fired a shot at her husband. She did not know whether it was loaded at the time. - Recklessness • Becky stabbed her work colleague in the stomach three times. - intent • Bob failed to check whether his patient had any allergies before injecting him with a medicine to which the patient was allergic. - Negligence

Temporal coincidence: RELATES TO PROBLEM QUESTION - Concept that the actus reus and mens rea occur at the same time. - Fault element (mens rea), occurs at same time as physical element (actus reus) 1. Completed act: R v Potisk- money received as mistake and he kept it. Mens read did not occur at the time of the conduct. Should be acquitted of larceny. 2. Continuing Act: Fagan- Police officer and foot. 3. Series of acts: Thabo Meli- Thrown of cliff but was struck before to be killed. Only died after he fell off cliff. 4. Withdrawal of mens rea: R v Jakeman. Drug importation Abandons suitcases of drugs in Paris, only to end up at the final destination. The mens rea occurred the minute she stepped into the airport.

Chapter 3 reading: Criminal responsibility - Principles in criminal law dependent of the idea that a rational person, is capable of making choice between right and wrong and is able to contract conscious actions - Children and those with mental impairment lack the ability to reason and therefore should be excused from criminal responsibility. - E.g. 18th Century, Sir Matthew Hale considered that infants under 14 were incapable of discerning right and wrong. - Doli incapax: Rebuttable presumption children are incapable of wrongdoing between 10-14. - Must prove the child had mens rea, and sufficient understanding that what they did was wrong. - Criminal responsibility of corporations - General principle that ‘Actus non facit reum, nisi mens sit rea’; i.e. an act does not make a person guilty of a crime unless that person’s mind be also guilty. Tutorial 3: Summary offences MENS rea state is uncertain Offensive behaviour Acts: - Most frequently prosecuted offences - Conduct element clear; mens rea not. - High rate of guilty pleas rarely challenged in court. - Alcohol and intoxication - aimed at police officers - Summary offences act s 4 and 4a.  Required a reasonable excuse e.g. dropping a hammer on the foot, being hurt. Scenario: - Carl Fredricksen: could rely on his age. - Mr Carl Fredricksen, a 90 year old man, is notorious in his neighbourhood as the grumpy old man on the street that can be expected to yell ‘Get off my fucking lawn’ when birds, cats or local children wander into his yard. On the 10th March he drives his motorised scooter to his local shops, but he was having a difficult morning and didn’t bother putting any pants or underwear on. Annoyed with the news he receives at Centrelink that his pension is being cut, he waits until the Centrelink manager leaves the building and proceeds to follow on the heels of the manager honking the

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horn on the scooter and hurling racial abuse. Eventually he tires of following the manager and starts driving closely behind other shoppers until they jump out of his way. Suddenly, Carl is filled with the urgent need topee. Parking his scooter he rushes to a nearby green space and urinates on the back of a grey obelisk. Once he finishes he walks to the front of the park and sees it is part of the local RSL. The obelisk has a sign reading that it is a memorial put in place to commemorate fallen diggers. At this point the police arrive. Offensive conduct: s 4 Offensive language 4a Obscene exposure s 5 Obstructing traffic s 6 Damaging or desecrating protected places s8

Actus Reus:  Element of actus reus= voluntary conduct  Conduct is offensive (broadly defined)  Conduct is on or near or within view or hearing from a public place or school. (proximity element) ((Words which used to be found offensive are not so by judges and magistrates anymore)) Case example R v Pregelj intention that their behaviour would be offensive (having sex with the blinds open) Mens Rea: - Is there strict liability? - Does the accused need an intention to act? - does the accused need an intention that behaviour is offensive or is reckless as to whether the behaviour is offensive? Idea of temporal coincidence: intent at the time of action. - Danny Lim; Overly sensitive – reasonable person would not find the placard offensive. - Case of He Kaw Teh (1985): Criminal offense where mens rea was not specified.  ‘reading’ a mens rea  too severe to be a strict liability  Examine words of stature, and the intent of parliament, and interpret what mens rea state is required.  Can’t assume that if no mens rea that it is strict liability.      

Strict liability: Liability which does not depend on actual negligence or intent to harm police not impartial not divided from scrutiny Police powers over everyday actions of the public can at times be excessive and unreasonable at the mercy of what an officer finds offensive.

Why do we have summary offences? Introduced 1988, after public motivation.  public order legislation to limit the offensive actions of society

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not a deterred in society but is it enhancing police powers? allows police powers These laws disproportionately impact indigenous, homeless, poor, mentally ill.  Punishing vulnerable people Harm: young kids? Elderly? Would can be innocuous Commonplace in songs, films. Revenue raising? Consequence of appeal worse than the $500 fine.

Tutorial 4: Homicide Chpt 9 textbook - Judges bench books: murder, manslaughter (use for assignment) In Week Four, we examine the statutory offence of murder. We use this offence to further examine general principles and apply your problem solving skills in the criminal law, building on your knowledge from previous weeks. Background: Homicide is the overarching category comprising of a number of offences in which a person was killed. Although murder and manslaughter are the two primary types of homicides, there are others. These include infanticide (see s 22A of the Crimes Act 1900 (NSW)) and dangerous driving causing death (see s 52A). There are also the recently introduced offences of assault causing death, defined in ss 25A and 25B of the Crimes Act 1900 (NSW), and supply of drugs causing death (s25C). 18 MURDER AND MANSLAUGHTER 1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only. Homicide:  MURDER s 18 Crimes Act - Actus reus (conduct)  Voluntary act or omission  Causation of death of a human being - Mens rea (guilty mind)  Intent to kill

 Intent to inflict GBH upon some person  Reckless indifference to human life (death) Goes with temporal coincidence with actus reus  MANSLAUGHTER - Same actus reus as murder - Same conduct elements as murder - Two types: Voluntary manslaughter, involuntary manslaughter. - Involuntary manslaughter: Manslaughter by criminal negligence, and unlawful and dangerous acts manslaughter. - Voluntary manslaughter: same actus reus and mens rea as murder, however, due to certain mitigating factors, the liability reduced due to partial defence e.g. substantial impairment of the mind, extreme provocation, excessive self-defence.  same actus reus but lacks the mens rea for murder; same elements and criteria. Crimes act; s 20 Child murder--when child deemed born alive 20 Child murder--when child deemed born alive On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not. Human tissue act: s 33 33 When death occurs For the purposes of the law of New South Wales, a person has died when there has occurred: (a) irreversible cessation of all function of the person's brain, or (b) irreversible cessation of circulation of blood in the person's body. Problem question Scaffold: (intro and conclusion)  Understood what is asked: who is victim? who is accused? 1. Actus Reus Elements: Define and assess the following actus reus elements for murder as they pertain to Kathryn’s case. Cite any relevant authorities (e.g. Wollmigton) 

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Voluntariness If you make an assertion, include a case, fact etc. Footnote: Ryan or Falconer She is not challenging voluntariness

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Causation Apply the substantial and operating cause test Royale case e.g. Kathryn’s act must have been the act that caused the death of Bill. But for test: but for K’s actions, Bill would not have died. Hospital mistake in giving artificial respiration broke the chain of causation???? Medical negligence not breaking chain of causation: standard of medical care must be palpably wrong. Might also be the actions of the person itself? No, you take the victim as you find them. Novus actus interveniens Did a person die? (see s 20 crimes act and human tissue act) You need a body for there to be a murder, or a Manslaughter.

2. Mens Rea elements: Define and examine each element of the mens rea for murder in turn, as it pertains to Kathryn’s case. Which mens rea element will the prosecution be most successful in arguing? why? cite any relevant cases. - Malice is transferred - Although she aims, and throws at Rohan, she through it forcefully - ‘Rohan an experienced knife catcher’; is that why she threw it forcefully?? - Did she intend on causing GBH? Question of fact for the duty. - NT case of Crabb, or Royale cases they knew GBH would result, but do it anyways (Common law test) - Reckless indifference to death definition in Crabb - in NSW, the defendant must recognise reckless indifference to human life, probability of death (Royale)  Royale as jumping out of window in fear of husband. He claimed she broke the chain by her own actions.  Probability; not mathematical.  If she only had reckless indifference to throwing the knife, it is only manslaughter in NSW.  Intoxication: Actus reus, and mens rea ability to form intent and willingness and conscience to the act. - Reckless indiffe...