LAW 161 EXAM Notes - Summary Criminal Law PDF

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All topics and cases for Law161 at UNE. These are the notes I took into the exam. Everything is there....

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Law161 Summary Murder Elements: s 18 Crimes Act (1900) (1)(a) Murder shall be taken to have been committed where   

Voluntary act or culpable omission caused death of living person

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. Voluntary Act R v Ryan (1967)  No liability unless act is voluntary  Important to carefully define act, especially when dealing with compound actions  Not proper to isolate end movements of finger on trigger from earlier (clearly voluntary) actions R v Murray (2002)    

Don’t define act too narrowly Firing weapon made up of many movements Don’t break up actions into unreal subdivisions Distinguish involuntary acts from: a. Spontaneous acts b. Acts that require barely any conscious thought c. Reactive acts taken with little time from reflection  Conscious actions done by choice are not involuntary  Conscious choice, even without thought, is not involuntary  Shooting case act is not confined to pulling the trigger, compound act of discharging loaded weapon. Culpable Omission Murder by omission only when A is under legal duty to act

Law does not (generally) require us to save others Airedale NHS Trust v Bland [1993] AC 789  Drs have a duty re patients in their care  Failure to provide necessary care might be culpable omission  Eg, withdrawing or refusing to provide food, fluids, medication R v Taber; R v Styman [2002] NSWSC 1329 When does law recognise a duty to act?    

Status-based duty – eg, parent, guardianship Some contractual relationships Duty imposed by statute Voluntary assumptions of duty Causation

Royall v R (1991) 172 CLR 378 V fell from 6th floor – how could A have caused her death? A’s acts are causative when: 1. A created V’s fear of harm 2. V feels need to escape for self-preservation 3. V’s fear is well-founded, reasonable, - desire to escape is a natural consequence of A’s actions  No need for V’s escape actions to be reasonable But A did not intend V to fall. How is the mental element discharged? For fault element (intention or reckless indifference):  Mental element need not embrace specific mode of death  If person created situation intended to kill, doesn’t matter if manner of death was unintended. What if there is more than one causative factor? Possible tests: 1. 2. 3. 4.

Common sense – but for Natural consequences Reasonable foresight of consequences Substantial cause

Novus actus interveniens – negates causation. Operating and substantial cause test  Causation established when the accused’s actions were an operating and substantial cause of death. Burns v R (2012) ALR 713

      

A ‘supplied’ illegal drugs to V; V self-administered drugs; died Did A’s act ‘cause’ V’s death? or Was V’s act a novus actus interveniens? Drugs inert unless taken. Act of supply not inherently dangerous V is adult, took drugs voluntarily Autonomy – adults are responsible for own actions Royall distinguished because V’s decision in that case was voided by A’s intimidation. V’s act not voluntary. Pre-existing susceptibility

R v Moffatt (2000) 112 A Crim R 201  Egg-shell skill rule: A must take V as is  Cause of death uncertain – multiple adverse health & injury factors  NSWCCA: A cannot avoid liability because of V’s poor health or increased susceptibility to death  Cannot claim death was accident because of V’s weakness, frailty, vulnerability etc  Test is whether A’s act was a substantial cause (not reasonable foreseeability) Death of a living person R v Hutty [1953] VR 338 A ‘living person’ for purposes of homicide:  Child is fully delivered of its mother &  Born alive – has taken breath.  Doesn’t matter if umbilical cord severed or not Crimes Act s 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 1983 (NSW) s 33 For the purposes of the law of NSW, 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. R v Iby [2005] NSW 178  Child is alive for purposes of common law of homicide if fully delivered (ie, born) alive  Heartbeat suffices for life  Breathing suffices for life - doesn’t matter if baby needs respirator  Any sign of life suffices  Irrelevant if umbilical chord is cut

 NB: Doesn’t matter that baby not ‘alive’ at time of A’s action/s Reckless Indifference R v Crabbe (1985) 156 CLR 464 What level of knowledge / foresight is required for reckless indifference?  HC HELD: Reckless indifference requires knowledge / foresight of probable death / GBH  Knowledge / foresight of possibility of result not enough for murder  Equivalent culpability to other intentional fault elements  Reckless indifference – no desire to cause result How probably (in A’s mind) does death/GBH have to be?  ‘likely’, ‘real chance’, ‘more than mere possibility’  No numeric probability required  ‘knowledge’ = foresight  Focus is on A’s knowledge / foresight (subjective to A)  Doesn’t matter if a reasonable person would have known / foreseen that death / GBH would probably result (objective) S 18 Crimes Act  Like Crabbe, requires knowledge / foresight that result was probable, but  GBH not enough – must be death that is foreseen: R v Solomon [1980] 1 NSWLR 321 Intention  Foresight of result  Desire to achieve result  Subjective – A’s own intention: R v Stokes & Difford Constructive Murder  During or immediately after  Serious offence, punishable by 25 yrs or life prison. EG, agg armed robbery, agg rape in company: ss 61JA, 97 Crimes Act  Guilty of murder even without intending or foreseeing death or GBH  Even for accomplice’s actions: R v Jacobs & Mehajer Voluntary Manslaughter Elements Same as murder but with a partial defence:

 Extreme provocation  Substantial impairment of mind  Excessive self-defence Provocation: prior to June 2014 Elements 1. Provocative act by victim 2. A lost self-control as a result of V’s provocation 3. The provocation could have caused an ordinary person to form murderous intent First Element: Provocative words or conduct  Conduct or ‘grossly insulting words’: s 23(2)(a)  Reflects common law: Moffa v R (1977) 138 CLR 601 - mere words can amount to a provocative act if of an extreme & exceptional character  R v R (1981) 4 A Crim R 127 – ‘we’re all going to be one big happy family…’ – consider words in context. Loving words can be violently provocative when seen in context.  R v Kumar (2002) 5 VR 193 – words declaring end of relationship cannot constitute provocation  s 23(2)(a): provocative act ‘towards or affecting the accused’ Second Element: Loss of control  R v Duffy [1949] 1 All ER 932 – loss of control must follow immediately after provocative act  Parker v R (1962) 111 CLR 610 – act causing death must be done suddenly, in heat of passion (temporary loss of control) caused by provocative act  R v Chhay (1994) 72 A Crim R 1 – no need for immediacy or suddenness. Loss of control can occur as slow simmer over time, to ultimate boil.  But killing must be result of loss of control caused by provocative act & not from hatred, fear or desire for revenge (although acknowledged emotions are rarely pure)  Test is subjective – ‘was A acting from loss of control?’ Not ‘would someone else have lost control under those circumstances?’ Third Element: The ordinary person test Two step ordinary person test  How is the ordinary person test applied?  What attributes of A can be taken into account in applying the ordinary person test? Stingel v R (1990) 171 CLR 312 1. Assess gravity of provocation to A taking A’s all relevant attributes into account

2. Would ordinary person faced with provocation of same gravity lose control to extent that the person could form an intent to kill? The only attribute of A that can be considered in the 2nd step is age. R v Heron [2003] HCA 17; R v Sievers [2004] NSWCCA 463  Not necessary that ordinary person could have lost control to do exactly what A did  Test is one of possibility, ie whether an ordinary person ‘could’ have formed the requisite intent Provocation: from 13 June 2014 s 23 Crimes Act (1900) Element 1 Retains: provocation must be ‘towards or affecting A’ Major change/s:  Provocative act now must be conduct constituting ‘serious indictable offence’ (max penalty 5+ years)  Probably excludes conduct consisting only a non-violent sexual advance Substantial Impairment 23A Crimes Act Substantial impairment to capacity to:  Understand events  Know right from wrong or  Control own actions Arising from abnormality of mind caused by underlying condition. Excessive self-defence S 421 Crimes Act (1900)  Defence force that kills  A thought degree of force was necessary but  Was objectively unreasonable. Infanticide S 22A Crimes Act (1900)  Mother’s intentional killing of baby up to 12 months  Post-natal depression  Guilty of infanticide or manslaughter (jury’s choice)

 Punishable in either case as manslaughter Involuntary Manslaughter Elements 1. Voluntary act or culpable omission of A 2. Causation 3. Death of a living person The mental element for murder will not be present Manslaughter by unlawful and dangerous act Elements 4. Act was unlawful 5. Act was dangerous Unlawfulness R v Pullman (1991) 25 NSWLR 89  An act contrary to criminal law  More than mere regulatory breach, eg, traffic regs  Breach of traffic regs insufficient. Act must be ‘unlawful in itself’, ie, other than pursuant to traffic regs. Borkowski [2009] NSWCCA 102 Usually can distinguish by:  Nature / scale of penalty; or  Nature of legislation – regulatory vs criminality Wilson v R (1992) 174 CLR 313 Element 1: Unlawful act •

Act is only unlawful if a defence isn’t applicable

•

Ensure that self-defence has been negatived

Dangerousness Wilson v R (1992) 174 CLR 313 Element 2: Dangerous act, as approved by majority  Objective test (reasonable person in A’s position: Cornelissen [2004] NSWCCA 449)  ‘Appreciable risk of serious injury’ – not ‘really serious injury’  Burns [2012] HCA 35 – supply of dangerous drugs is not a dangerous act Manslaughter by criminal negligence Elements

4. A owed V a legal duty (assumed for acts) 5. Breached by gross negligence, & 6. Caused a high risk of serious harm Legal Duty Care for children: Russell [1933] VR 59  Duty of father to take reasonable steps to prevent criminal acts against children  No duty re wife because not helpless, ie adult, physically, mentally able to care for self Assumption of duty: Stone & Dobinson [1977] 1 QB 354  Voluntary assumption of duty can arise by knowledge & conduct  S’s adult sister, lodger - D took food to her, washed her, (ineffective) attempts to get Dr = assumption of duty.  Duty assumed once F became helpless. Isolating victim: Taktak (1988) 14 NSWLR 226  Voluntary assumption of duty?  Duty assumed by removing V from possibility of help by others. Breach of duty Objective test: R v Lavender [2005] HCA 37  Objective test applies  Fault elements for murder are subjective; and for involuntary manslaughter, objective.  IE: The act or culpable omission must fall so far short of standard of care that reasonable person would have exercised Level of negligence: Nydam v R [1977] VR 430  Must be gross negligence. Mere negligence not enough. Risk of death Lavender; Nydam  Act / culpable omission must also carry high risk of death  Assessed objectively – reasonable person would have known act / omission exposed V to high risk of death / GBH

Assault causing death 4. Assault by intentional hitting

5. Assault was unlawful Assault Assault is a ‘base line’ offence from which other crimes can be built off (aggravated assault, sexual assault, etc.). If it is just an assault it is called ‘common assault’. Categories of assault  Common Assault  Aggravated Assault Common Assault  Defined in section 61 of the Crimes Act as follows ‘Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.  Darby v DPP [2004] 61 NSWLR 558 tells us that ‘An assault is any act which intentionally – or possibly recklessly – causes another person to apprehend immediate and unlawful violence’. Elements of Common Assault 1) The physical act (actus reus) is the voluntary conduct of the accused that has the effect of putting someone in immediate fear of their safety OR application of force without consent or lawful excuse. 2) The mental element (mens rea) is that they did so intentionally or recklessly. Aggravated assault  Assault occasioning actual bodily harm  Assault occasioning grievous bodily harm  Assault occasioning wounding Actual Bodily Harm  From Donovan [1934] 2 KB 498, 509 “bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health of or comfort of the prosecutor. Such hurt or injury need not be permanent but must, no doubt, be more than mere transient or trifling”.  Chan-Fook [1934] 2 All ER 552 shows that includes psychiatric injury but does not extend to emotions of fear, distress or panic. Condition needs to be an identifiable clinical one. Grievous Bodily Harm  Defined in the s 4 of the Crimes Act as “the destruction of the foetus of a pregnant woman… any permanent or serious disfiguring of the person… any grievous bodily disease”.  Harm does not need to be permanent or long lasting. Injury does need to be a really serious one. Wounding

 Wound is an injury which breaks the skin  Wounding requires the interior layer of the skin to be broken or cut, not just the outer layer of skin. Sexual Assault Same elements of assault but with a sexual element. There are five categories of sexual assault: 1. 2. 3. 4. 5.

Sexual assaults Assaults with intent to have sexual intercourse Indecent assault Act of indecency Sexual assault on vulnerable people Basic sexual assault: s 61(I)

Actus Reus 1. Accused must have had sexual intercourse with the victim. - Defined to include any penetration of the vagina or anus or any sexual connection between genitalia and mouth: s 61 H(1) 2. Without the victim’s consent (must be freely and voluntarily given: s 61HA (7)). There will be no consent where the victim:  Does not have the capacity to consent or doesn’t have the opportunity to consent (61HA (4)).  Consented under threats or because unlawfully detained (61HA (4)).  Is under the mistaken belief that they are married to the accused, that intercourse is for medical purposes or regarding the accused’s identity (61HA (5)). Court may also establish that there is no consent where (61HA (6)):  Victim substantially intoxicated  Victim intimidated or coerced (not necessarily threat or use of force: Aiken (2005) 63 NSWLR 719  Victim had intercourse because of an abuse of a position of authority or trust. Mens Rea 1. Intended to have sexual intercourse 2. Had knowledge of lack of consent (Not present if accused honestly and reasonably believed consent was given: DPP v Morgan). Lack of consent can any of the following (61HA (3)):  Knowledge that there is no consent.  Recklessness as to whether the victim consents (includes where accused didn’t consider whether there was consent, although reasonable person would realise nonconsent was possible: Kitchener, Banditt.  Lack of reasonable grounds for believing there was consent (objective test).

 Consent obtained because the victim under mistaken belief and accused aware of that mistake (steps taken by accused to ascertain consent are considered). Lack of resistance: S 61HA (7) Crimes Act (1900)  Lack of resistance foes not mean consent was present Aggravated sexual assault Aggravated sexual assault: s 61J Actus Reus: 1. Basic sexual assault. 2. Circumstance of aggravation: - Intentional or reckless infliction of actual bodily harm to the victim or a nearby person. - Threat to inflict actual bodily harm on the victim or a person nearby with a weapon or instrument. - The offender is in company. - Victim is under 16 years old. - The victim is under the authority of the alleged offender. - The victim is seriously physically or mentally disabled. - Offence is part of a break and enter with intention to commit this offence or any serious indictable offence. - Offender deprives the victim of liberty before or after the offence. Mens Rea: Same as sexual assault (except where specific intent). Aggravated sexual assault in company: s 61JA Actus Reus: 1. Basic sexual assault 2. Accused is in the company of others. - Presence is insufficient, must be encouragement or assistance: Crozier [2005]. - Physical presence means they are close enough for the coercive effect of the group to embolden or reassure the offender, or intimidate the victim: Button, Griffen. 3. And did any of the following: - Intentionally or recklessly inflicted actual bodily harm to anyone present, or - Threatened to inflict actual bodily harm with a weapon to anyone present, or - Deprived the liberty of the victim before or after the offence. Mens Rea: same as sexual assault requirement. Indecent Assault and Act of Indecency Indecent Assault: s 61L

Actus Rea: 1. Common assault. 2. Act of indecency. - Indecency - contrary to ordinary standards of morality: Harkin - Must have sexual connotation: Harkin Mens Rea 1. Intention or recklessness to commit the act/s. 2. Intention or recklessness as to whether there was consent. Aggravated indecent assault: s 61M Actus Reus: 1. Indecent assault. 2. Circumstance of aggravation: - Offender in company. - Victim under the authority of the alleged offender. - Victim is seriously physically or mentally disabled. Mens Rea: 1. Intention or recklessness to commit the act/s. 2. Intention or recklessness as to whether there was consent. Act of indecency: s 61N Actus Reus: 1. Committing an act of indecency with (two participants) or towards (one person to a non-participant) a person, or inciting another to do so. - Can be within view, in presence, or in some way towards. Sight not always necessary (phone may do): Barras, Chonka. Mens Rea: 1. Intention or recklessness to commit the act/s. 2. Intention or recklessness as to whether there was consent. Aggravated act of indecency: s 61O Actus Reus: 1. Basic act of indecency. 2. Circumstance of aggravation: - Intentional or reckless infliction of actual bodily harm to the victim or a nearby person. - Threat to inflict actual bodily harm on the victim or a person nearby with a weapon or instrument. - The offender is in company. - The victim is under the authority of the alleged offender. - The victim is seriously physically or mentally disabled.

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Offence is part of a break and enter with intention to commit this offence or any serious indictable offence. Offender deprives the victim of liberty before or after the offence. Vulnerable Victims

 CTM v R [2008] HCA 25 – honest and reasonable mistake available, child between 14 and 15. Different punishments for the following: (1) person is under 16, (1A) person is over 16, (2) person is under 10, and (2A) person under 16 and being filmed. Property Offences Larceny, property and ‘asportation’ Robbery Actus Rea: a) Some degree of threat or force placing the victim in fear; b) A taking from the person with the intent of permanently depriving the person of the...