Law 161 Crim study notes PDF

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Criminal Law 161. Study Notes

Week 1. Normative Foundations of Law – (derived from) o o o

Harm Principles – JS Mills Moral wrongness – Lord Devlin – looks at society values and morals. Utilitarianism - Jeremy Bentham – Greater good to greater many.

Types of Criminal Law o o

Substantive – Regulates conduct of all laws applying Procedural Law – Regulates conduct of government, police, courts.

Role of Criminal Law      

Prevent crime Retributive punishment – proportionate to offence/circumstances Deterrence – General/specific Denunciation of offence – show the community disapprove Protection of community – locking up offenders.

Principles of Criminal law    

Prospectively – presumption against retrospective Clarity – clearly written and able to be understood. Promulgated – known/able to be known – ignorance of the law no excuse Equality – equally applied to all

Elements of offences  Physical elements - Actus Reus  Act done – circumstances – result – causation  Fault element – Mens Rea  Guilty Mind – mental element – state of mind  Intention (foreseeing and desiring consequences, can be spontaneously with the act – is not motive, but motive can help prove/infer intent) – Recklessness (did act with consideration of possible actions)– knowledge they were doing the act (physically aware, not sleepwalking/seizure/involuntary action) – negligence

Both Physical and Fault elements need to occur at the same time or as part of the same act – (concomitance) Thabo Meli [1954] All ER 373 (pushing over cliff)– Le Brun [1992] 1 QB 61(dropping on head) – both English cases – no Australian authority to confirm. Meyers v R – ‘Act and intent must coniside; pg65 Indictable offences/summary offences Strick Liability – No mental (fault) (Mens rea) element needed, however mistake of fact available as defense – He Kaw The v R (1985) CLR 523 Absolute liability – no mental (fault) (Mens Rea) element needed, mistake of fact not available (mistake of law) Ostrowski v Palmer pg72

Week 2 Murder Crimes Act 1900 s.18 Murder and manslaughter defined (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.

ELEMENTS OF MURDER (from s.18); 1. 2. 3. 4.

An act or omission fo the accused That caused The death charged Where the act was done or the omission was made; a. With reckless indifference to human life, or b. With intent to kill, or c. With intent to inflict grievous bodily harm, or d. During or immediately after the commission fo an offence that carries a punishment of imprisonment for 25 yrs or life.

Physical Elements Act – Must be a voluntary act or culpable omission and that act or omission is what caused the death. R v Katarzynski [2005] NSWCCA 72 pg94 NSW Court of criminal appeal FACTS – The appellant and victim were I an altercation at a hotel when the victim lunged at the appellant who then produced a gun and shot the victim 3 times. Found guilty at trial and appealed on grounds of voluntariness of the act of pulling the trigger and causation

SULLY J – delivered judgement, referring to Royall v the Queen for common law principles of causation and found that the act should be taken as the whole ‘pointing the loaded gun and pulling the trigger 3 times’ – not the individual muscle pulling the finger.

R v Ryan (1967) 121 CLR 205 FACTS – Finger on trigger but finger movement unwilled (involuntary) – Reflex response when startled; spasm. Held that there is no liability unless voluntary i.e., directed by conscious mind. Important to carefully define the act, especially when dealing with compound actions – cant be to broad or vague though. Not proper to isolate end movement of finger on trigger from preceding (clearly voluntary) actions. ‘I have come to the conclusion that if the applicant, being conscious of the situation in which he had put himself, pressed the trigger as a result, however spontaneous, of the man whom he was threatening madding some sudden movement, it could not be said that his action was involuntary ‘

R v Murray (2002) 211 CLR 192 FACT – - accused pointed a gun at the deceased to make him leave the house - V’s arm moved; something hit A in head and gun fired. Held that it was important not to define act too narrowly. The act of discharging weapon, itself comprised of subsdiary movements. Involuntary acts can be distinguished from; spontaneous acts, acts that require barely any conscious thought or reactive acts taken with little time for reflection. A conscious act done by choice is not involuntary. A conscious choice, even made without thought, is not involuntrary. Again in shooting the act is not confined to pulling the trigger, includes all compound act of discharging a loaded weapon. – Court applied Ryan In Murray v R, the accused pointed a gun at the deceased to make him leave the house. The gun discharged. The court (per Gaudron J) in applying Ryan indicated at [16] that ‘the pressing of a trigger in response to a sudden threat or apprehension of danger is a probable and forseable consequence of presenting a loaded gun and a jury might, on that account find it to be a voluntary act.

Culpable Omission pg102 Only applies to a person who has a ‘Duty of Care to Act’ for a person, law does not generally require us to save others. – Must be a legal as opposed to moral duty to act such as; (Taktak)   

Relationship (parent child) Contractual duty (employed to look after) Where one has voluntarily assumed care of another and so secluded the helpless person as to prevent others from rendering aid.

Airedale NHS Trust v Bland [1993] AC 789; [1993] 1 All ER 821 FACTS - an English case of doctors concerned they would be liable if they withdrew treatment from a person with permanent brain damage. – held doctors do have a duty of care to patients ‘a person may be criminally liable for the consequences of an omission if he stands in such a relation to the victim that he is under a duty to act’ Will usually be manslaughter unless can have the sufficient intent. R V Taber; R v Styman [2002] NSWSC 1329 pg103 NSW Supreme Court FACTS – the accused robbed the victim and left her bound and gagged and unable to call for help. One of the accused rang 000 to report the victims predicament but the 000 call was not act upon and she died of dehydration. – Trial judge delivered reasons to leave open to a jury – referred to various cases including the leading case in NSW of R v Taktak (1988)an innocent bystander has no legal duty to rescue a drowning man, however a person may by voluntary conduct convert a moral obligation to a legal one. Found guilty of manslaughter R v Taktak (1988) 14 NSWLR 226 NSW Court of Criminal Appeal FACTS – The appallent was a drug dealer who hired two prostitutes and took them to a party, later collected one after a phone call that she was having a drug overdose. He took her by taxi to his premises, tried to wake her but did not get medical aid. She subsequently died. Was held that the appellant had voluntarily assumed the care of the deceased and so secluded the helpless person so as to prevent others from rendering aid.

Causation – pg 106 Royall v R (1991) 172 CLR 378; 100 ALR 669 pg110 High Court of Australia FACTS – Appellant was convicted of murder of his girlfriend. They had been arguing and she was intending to move out. On the day the appellant arrived home after drinking and an argument happened and he backhanded her and puncher her twice in the face, and grabbed her by the hair and shook her (admissions). The deceased went into the bathroom and locked the door and showered, the appellant then forced open the door, the deceased jumped out of the window, falling 6 floors to her death.. Fault element need not embrace specific mode of death. If person crated the situation with the intention to kill, doesn’t matter if manner of death was unintended. Outlined the four tests used at common law –

1. The operating and substantial cause test; 2. The natural consequence test; 3. The reasonable foresight of the consequences test and 4. The novus actus interveniens (breaking the chain). Causation is established when A’s actions were a substantial cause of V’s death Doesn’t matter if v’s actions are unreasonable – fear needs to be reasonable, but not response to fear. A must take the V as is. Medical intervention – will not brake the chain unless gross negligence r v Malcherek R v Blaue [1975] All ER 446– the refusal of a Jehovahs witness, who had been seriously stabbed, to have a blood transfusion did not affect the nature of the operating cause, which was the stab wound. Multi factor causation Burns v R (2010) 290 ALR 713 FACTS – Appellant sold methadone to a person who immediately ingested, became ill and left, dying from the effects of the methadone in the toilet in the premises. Charged on the basis that the supply of drugs was a dangerous act. Held that a supply is not inherently dangerous, V is an adult and took drugs voluntarily. R v Hallet [1969] SASR 141 pg107 FACTS – Appellant was charged with murder, the evidence was the victim was assaulted by the appellant and left unconscious on the edge of water and then fell asleep a short distance away, victim drown. – substantial cause of w’s death. Egg shell skull – Pre existing susceptibility pg121 R v Moffatt (2000) 112 A Crim R 201 NSW Court of criminal appeal FACTS – the appellant and deceased had consumed a great deal of alcohol and a fight occurred where the deceased was struck with a hammer and manually strangled. The autopsy suggested death may have occurred by a cardiac arrest due to being predisposed to this. Held that the appellant, having used violence on the deceased had to take him as he found him. The fact that a person has a susceptibility to death, unknown to the assailant, does not enable the assailant to claim the death is an accident. Test is whether A’s act was a substantial cause. Death of a living person – pg124 S.33 Tissue Act 1983 (NSW) s.33 (a) death occurs on cessation of all functions of brain or (b) irreversible cessation of circulation of blood inside body.

S.20 Crimes Act – Child murder – when child deemed born alive - child shall be held to have been born alive if it has breathed and been wholly born into the world, whether it has had an independent circulation or not. R v Hutty [1953] VR 338 – test that was adopted into the s.20. Born alive for manslaughter – R v Iby [2005] NSWCCA 178 pg125 FACTS – appellant driving a stone car at speed crashed into a car and driver was 38 weeks pregnant, an emergency caesarean was performed, baby borne at 11.48am and died 2 hours later. Held – child is alive for purposes of common law homicide if fully delivered -ie born alive, a hearbeat suffices for life, breathing suffices for life – doesn’t matter if baby needs respirator – any sigh of life suffices – irrelevant if umbilical chord is cut. Doesn’t matter that baby was not alive at time of A’s actions.

Fault Element - Mens rea Both Physical and Fault elements need to occur at the same time or as part of the same act – (concomitance) Thabo Meli [1954] All ER 373 (pushing over cliff)– Le Brun [1992] 1 QB 61(dropping on head) – both English cases – no Australian authority to confirm. Meyers v R – ‘Act and intent must coniside; pg65

Reckless indifference: pg129 R v Crabbe (1985) 156 CLR 464; 58 ALR 417 High Court of Australia FACTS - The accused drove his prime mover truck into a bar that he had been kicked out off, killing 5 people who were in the bar. Argued he did not intent to kill them or realize he would kill anyone. Common law case from the NT – considered the foresight required for reckless indifference – Does an act or omission knowing that the consequences of the act include the probability of death or GBH (Not NSW) *Subjective test – must prove defendant knew or for sore a ‘likely’ ‘real chance’ ‘more than mere possibility’. The Crabbe test for the mental element of murder as to foresight of probability by the accused is subjective; it is not sufficient that a reasonable person would have foreseen that the possible consequences of their action would result in death or GBH, the crown must establish

that the defendant would have foreseen the probability that death or gbh would follow from their actions. As the offence is in NSW s18 Crimes act affects this test in that it is not sufficient to have only foresight as to the probability of GBH, probability of death must be shown.

S.18 Crimes Act - GBH is not enough – Authority comes from R v Solomon [1979] 1 NSWLR 321.

Intent to Kill pg133 He Kaw The v The Queen (1985) 60 ALR 449, 481 per Brennan J -

It is what the accused intended not what a reasonable person in the accused position would have intended. The accused intention can be inferred from their actions but the prosecution must establish this inference

Requires foresight of the consequences – intend to kill or do GBH Can have intent at any time of a continuous act – Hallet If intent to kill A but accidently kills B – ther is intent proved Standish (1991) Subjective – A’s own intention R v Stokes & Difford Intention is not motive – but motive can support intention. Intent to cause GBH pg133 GBH defined in s.4 Crimes Act, not exhaustive - Term defined to juries as ‘very serious’ or ‘really serious’ injury. R v Sergi [1974] VR 1 Subjective test – must prove defendant knew, - just because a person should have realized or did realise, that the probable consequence of his or her actions would be death or GBH, it does not follow that the person intended to cause death or GBH. – R V Stokes and Difford (1990) 51 A Crim R 25. Constructive Murder. Pg134 Act or omission causing death occurs during commission of another serious offence punishable by 25 years or life. Can be during or immediately after the offence. Don not need to prove the intent to do death or GBh – only need to prove the fault element for the substantive offence. R v Il [2016] NSWCCA 51. Can be an accomplice actions – R v Jacobs V Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462 pg137

NSW Court of Criminal appeal. FACTS – 3 persons robbed a known drug dealer and at a point one of them punched the victim in the head. The victim died. Held that that it is not intended that the consequence of death must be done by the accused, rather than the act of a person acting in concert which causes death.

Week 3 – Manslaughter Voluntary Manslaughter – Partial Defence only to murder – all elements of murder must be present Crimes Act gives 3 types of voluntary manslaughter – 1. S23 Extreme Provocation 2. S23A substantial impairment of the mind due to abnormality of the mind. 3. S421 Self defense – excessive force that inflicts death. s.24 Crimes Act gives punishment for manslaughter as 25 years imp

Extreme Provocation pg 148 S23 (after June 2014) 2) An act is done in response to extreme provocation if and only if— (a) the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and (b) the conduct of the deceased was a serious indictable offence, and (defined in s4 – indictable offence punishable to more than 5 years) (c) the conduct of the deceased caused the accused to lose self-control, and (d) the conduct of the deceased could have caused an ordinary person to lose selfcontrol to the extent of intending to kill or inflict grievous bodily harm on the deceased. (3) Conduct of the deceased does not constitute extreme provocation if— (a) the conduct was only a non-violent sexual advance to the accused, or (b) the accused incited the conduct in order to provide an excuse to use violence against the deceased. (4) Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death.

Previous version had a two tier test – 1. Was result of a loss of self control laving been induced by ANY conduct of the victim – and include grossly insulting words or gestures AND the victims conduct was such that it could have induced an Ordinary person in the accused position to form an intent to kill or do GBH. Provocation can be at any time – S23 (4) doesn’t need to be immediately before –

Comes originally from common law before the amendment of sub (4) – R V Chhay (1994) 72 A Crim R 1 pg151 NSW Court of Criminal Appeal. FACTS – Appellant cut husbands throat and chopped him with a meat cleaver while he was asleep – DV related, found that the provocation can be over a period of time prior, not immediately.

Ordinary person testSubsequent to amendment it is now a purely objective test – ‘in the position of the accused’ has been removed. Overturned the common law principles from – R v Green (1997) 191 CLR 334; 148 ALR 659 pg155 High Court of Australia FACTS – Appellant killed victim after he made sexual advances – appellant was aware of his sisters being molested and used that to suggest a person in his position with his history meant this would have been sufficient provocation. Held that ‘in the position of the accused’ included someone of the same age/experience/history – not truly objective reasonable/ordinary person.

Self induced intox not relevant – s.23 (5) pg160 Provocation must be in presence of accused – within sight or hearing. Pg 161 Although the provocation act may not be intentionally directed at the accused, they must be a party – R v Davis (1998) 100 A Crim R 573. Third Party pg 161 Provocation could come from a third party, not the victim if they were closely related to the act. – R v Hall [2001] NSWCCA 202. Mistake of Fact for provocation – A mistake cannot be held to be sufficient provocation – pg163 R v Dib (2002) 134) A Crim R 329 Supreme Court of NSW – Held as a matter of construction of S23, mistakes by an accused can not be regarded as ‘conduct of the accused’ Withholding Provocation from Jury -p165 R v Kumar (2002) 5 VR 193: 133 A Crim R 245

Court of appeal, Supreme court of Victoria Facts – Accused killed his wife when she wouldn’t let him in the house and called him mean names, the judge refused to let the jury consider provocation – finding no reasonable jury, properly instructed, having regard to the evidence most favorable to the applicant could find provocation – Appeal dismissed.

S23A Substantial Impairment of the mind. – refer to insanity notes Partial defense only - only applies to murder – the regular defense of mental illness provides a full defense and finding of not guilty. However, if someone claims the mental illness defense they can be detained indefinitely due to mental illness, however the partial defense reduces the penalty to allow a release so may be preferred. Crown may raise full mental illness if the accused raises substantial impairment – and if accused raises full mental illness, crown can raise substantial impairment. Onus on defense to prove on balance of probabilities. Crown can raise the defence of mental illness if the accused raises substantial impairment and if the accused raises mental illness, the crown is entitled to raise substantial impairment of the mind r v Ayoub pg 170. S23A (1) a person who would otherwise be guilty of murder is not to be convicted of murder if; (a) At the time of the acts or omissions causing the death concerned, the persons capacity to understand eve...