LAW103 Criminal law Exam prep PDF

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Concept of Crime etcLecture 1, Semester 1 2017

Concept of Crime etc: Lecture 1 Topics Concept of ‘crime’ Role of the criminal law Principles underpinning criminalisation Other factors taken into account when deciding whether to criminalise conduct Over-use of the criminal law Sources of criminal law Classification of offences Criminal liability Overview of the Queensland criminal justice system Jury trials and summary trials Discussion Criminal law is dynamic and its boundaries change over time, from society to society Criminal law needs to keep up with advances in technology What criminal offences do you know about? Concept of ‘Crime’ No single concept of ‘crime’ Glanville Williams, Textbook of Criminal Law (Steven and Sons, 2nd ed, 1983) 27. “A crime (of offence) is a legal wrong that can be followed by criminal proceedings which may result in punishment” “The definition of crime cannot tell us what sort of conduct is a crime” “[A] crime is an act that is condemned sufficiently strongly to have induced the authorities (legislature or judges) to declare it to be punishable before the ordinary courts” Role of the Criminal Law Based on the concept of ‘crime’ is to punish the offender or discourage that behavior. Based on the principles underpinning criminalisation Protection from harm:  Protecting people from harm underpins criminalization  Common sense appeal  Nebulous, hard to define harm  Gaurging the level of harm caused; assault / assault occasioning bodily harm / serious assault  The penalty increases according to the severity of the harm

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caused. Only pertains to harm caused to others not self harm or self inflicted Includes direct physical harm (should physiological and emotional harm be criminalized?) Has the victim consented? Is the victim vulnerable? What is the relationship between the offender and the victim? What is he nature and the purpose of the accused conduct? Location where the conduct occurred Harm can also be Torts – is not always criminal

Preservation of morality:  Judged by the norms of society  Imprecise term  Can be different based o the region an overtime (generational)  Moral compass changes generationally  Fluctuates with time and place  Fundamental rights  Associated with feelings of disgust  Some acts are morally blameworthy  Right to liberty and property Promotion of social welfare:  Criminal law needs to operate in social context  Collective interests determined by democracy  Argues that; its not in the publics interest that the conduct occur  Criminal law steps in to prohibit conduct  Eg: law to promote social welfare; The Abortion law, right to life – social welfare -bill stopped going through -parent/gaurdians – protect the rights of the children -rape – safety of violation  Masons Law  Vandalism/graffiti , environmental laws  Protects society making it a better placeto live in with collective interests :  Life, liability, health, property rights, freedom of expression and privacy  Punishing individual protection Respect for individual autonomy:  Overlaps with harm / morality / social  Criminal law steps in  The more that criminal law steps in the less individual autonomy we have  May conflict with other individuals and their limits Other Factors

Other factors taken into account when deciding whether to criminalise 1 conduct: Seriousness of the conduct Victim’s interests Blameworthiness of the accused Whether the conduct can be controlled in another manner Criminal law as a last resort (minimalist approach) Whether the conduct can be articulated in an offence Whether the offence is enforceable by police Whether an appropriate penalty for the conduct can be determined Historical, political, social and cultural perspectives Over-use of the Criminal Law State prohibits numerous activities and imposes a penalty for breach but not generally seen as crimes – known as ‘regulatory offences’, e.g. ‘Minor’ traffic matters Littering Business regulation matters (e.g. trading without a licence) Planning matters Taxation and corporate matters Building matters Sources of the Criminal Law Numerous Queensland laws to consider Criminal Code Act 1899 (Qld); the Criminal Code (the Griffith Code) is part of the Act (Schedule 1) Decisions of the courts interpreting the Criminal Code Other Queensland statutes that create criminal offences, e.g. Drugs Misuse Act 1986 (Qld) Summary Offences Act 2005 (Qld) Vicious Lawless Association Disestablishment Act 2013 (Qld) [VLAD Act] Various Queensland statutes dealing with criminal procedure Justices Act 1886 (Qld) Bail Act 1980 (Qld) Police Powers and Responsibilities Act 2000 (Qld)

Classification of Offences Criminal Code (Qld) s 3 contains four categories of offences Crimes Misdemeanours Simple offences Regulatory offences Crimes and misdemeanours are ‘indictable offences’, which means that they must be prosecuted or convicted on indictment (document setting out the charge against the accused that must tried before a judge and jury in the 1 Citation

District or Supreme Court) Simple offences and regulatory offences are tried summarily in the Magistrates Court Criminal Liability Criminal liability = [physical element + mental element (if required)] – [defence or excuse] Physical element Conduct or act done by the accused A result caused by the accused Circumstances eg. victim does not consent Mental element Intention Not always an element of an offence in Queensland Proving Criminal Liability Golden thread in the criminal law that an accused person is innocent until they are proven guilty: Woolmington v DPP [1935] AC 462 at 481-482 Offence - Prosecution must prove the elements of an offence beyond reasonable doubt Excuse – accused may raise some evidence of it and the prosecution must disprove it beyond reasonable doubt Defence – accused must prove it on the balance of probabilities and the prosecution must disprove it beyond reasonable doubt Jury Trials and Summary Trials In the District and Supreme Courts criminal trials are usually heard before a judge and jury The judge presides and decides questions of law The jury decides questions of fact and delivers a verdict Juries give no reasons for their verdict and their deliberations are secret Juries comprise 12 people chosen at random In some, but not all cases, a majority verdict of 11/12 will suffice If there is a ‘hung jury’ the accused can be tried again

Fatal Offences

Fatal

OffencesLecture 2,

Learning Outcomes: Unlawful homicide Unlawful killing Causation Homicide as a result of criminal negligence Unlawful Homicide Criminal Code (Qld) s 300 Any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case Murder is killing with intent and Manslaughter is killing without intention – the lessor charge of the two Why do you think homicide is generally regarded as the most serious breach of our criminal law? 

Breaches the basic principle of right to life

Unlawful to Kill Criminal Code (Qld) s 291 - It is unlawful to kill any person unless such killing is authorised or justified or excused by law Any person s 292 - A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel-string is severed or not Killing an unborn child is actually classified as a crime in QLD s 313 - makes it a crime to kill an unborn child, including via an assault on a pregnant woman s 282 - provides some defence to this crime involving operations to save the mother’s life But to constitute homicide - Note that death must occur after birth, but the acts or omissions causing death may occur before birth: Castles [1969] QWN 36 (per Lucas J); Martin (No. 2) (1996) 86 A Crim R 133 Unlawful to Kill Unlawful Without authority, justification or excuse

Authorised – subject to prior approval in the form of legislation or common law E.g. Police are able to use force that causes death: Police Powers and Responsibilities Act 2000 (Qld) s 616(4) Justification or excuse – Where the act or omission causing death is not expressly authorised, but circumstances excuse the killer from criminal responsibility. E.g. Self-defence, accident Note s 284 - consent of the deceased to their own death is immaterial Unlawful to Kill Kill s 293 - any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person Causation is indirect when pursuant to the criminal negligence provisions Death No definition of ‘death’ in the Criminal Code (Qld) Transplantation and Anatomy Act 1979 (Qld) s 45(1) - A person dies where there has been irreversible cessation of circulation of blood in the body of the person; or - irreversible cessation of all function of the brain of the person Death – the lack of brain function and circulation of blood Death may also be presumed on the basis of circumstantial evidence: - Killing can beproven with circumstantial evidence with out a body – an example of this if the Peter Fallconeo case R v Onufrejczyk (1955) 1 QB 388

Causation Krakouer v Western Australia [2006] WASCA 81 per Steytler P at [22]-[23] Legal Causation “Raises more difficult questions of criminal responsibility – whether the factual connection between the conduct in question and the event is sufficient to justify the attribution of moral culpability and, hence, legal responsibility” Factual Causation “Involves an enquiry whether there is in fact a connection between a person's conduct and the event alleged to constitute the offence” Apply the “but for” test: R v Smith [1959] 2 QB 35 Common sense principles Causation Is the link between what the accused has done or omitted to do and the death of another person.

Legal causation is determined by applying one of the four tests outlined in Royall v R (1990) 172 CLR 378 per McHugh J in [25] 1. Operating and substantial cause test: Common sense Did the accused actually cause the death? Not scientific or philosophical questioning Attribte – legal criminal responsibility Actins need to be the sole cause of the death – and show that the accused persons actions were a substantial cause Case: R v Sherrington [2001] QCA 105 per McPherson JA at [4]     

2. Natural consequence test:  “cant blame mother nature”  unless exceptional circumstances – eg: in the case below - tidal wave  the tidal wave would break the chain of causation Case: R v Hallett (1969) SASR 141 (beach / tide/ bashing / drowning / death ) 3. Reasonable foresight of the consequences test  The victim is fearful or has well founded apprehension  Act is irrational or in the spur of the moment  To escape from the accused person what can the accused person force or intend.  If the accused had intent then they are criminally responsible  Would the accused have “seen” that happening - forsight Example : Gabel Tostee case 4. Novus actus interviens test: Third party intervention –breaking the chain of causation The accused person is no longer culpable Independent act from the third party and must be acting voluntarily If the third party is acting in an emergency situation – they are not seen as breakin ghte chain of causation and the accused is then criminally responsible Case: R v Padgett (1983) 76 Cr App Rep 279    

Causation The four tests in Royall v R (1990) 172 CLR 378 are particularly important in two situations: 1. Accused’s act would not have brought about the event without the intervention of a subsequent act from the victim or another person; and 2. Event could have been prevented if the victim or another person had taken action to avoid the consequences: [25]

Causation

Medical context Criminal Code (Qld) s 297 – When injury or death might be prevented by proper precaution Criminal Code (Qld) s 298 – Injuries causing death in consequence of subsequent treatment Medical professionals acting in good faith an applying the appropriate treatment the medical professionals are protected by the law Causation Blaue [1975] 1 WLR 1412 per Lawton LJ at 449 R v Kinash [1982] Qd R 648 per Connolly J at 650 Do you agree with the egg-shell skull principle? – applies to everybody – defence may try to prove a break in the causation chain – when the victim may have an underlying abnormality or defect “ the take your victim as you find them” Criminal Negligence R v Patel [2012] HCA 29 at [17] – [18] Criminal responsibility attaches to a higher degree of negligence than in civil law The standard of negligence must be ‘criminal’ or ‘gross’ The standard of conduct must “show such disregard for the life and safety of others as to amount to a crime and be conduct deserving punishment” Criminal Negligence Duties s 285 Duty to provide necessaries R v MacDonald (1904) St R Qd 151 s 286 Duty of person who has care of child (s 287 Repealed – duty of masters) s 288 Duty of persons doing dangerous acts R v Patel [2012] HCA 29; R v O'Halloran (1967) Qd R 1; R v Watson [2009] QCA 279 s 289 Duty of persons in charge of dangerous things R v Dabelstein [1966] Qd R 411; R v O’Halloran [1967] Qd R 1; R v Clark [2007] QCA 168; R v Hodgetts and Jackson [1990] 1 Qd R 456 s 290 Duty to do certain acts

Criminal Negligence A duty is not an offence in its own right If any of the duties are breached, the accused is deemed or held to have caused any consequences to the life or health of any person A breach of a duty can amount to causation for the purposes of unlawful killing Criminal Negligence Dreamworld http://www.theaustralian.com.au/national-affairs/health/dreamworldtragedy-safety-officials-ride-warning/newsstory/1ce434ccbf5e32bb750436ac4714fa1f http://www.abc.net.au/news/2016-10-27/dreamworld-documentsreleased-awu-safety-qwhs/7969940 http://www.news.com.au/national/queensland/news/dreamworld-mayhave-no-defence-over-tragedy-lawyer/newsstory/5166d0f6ed705575ba77377f8516066d http://www.couriermail.com.au/news/queensland/dreamworld-faces-abarrage-of-lawsuits-as-inquiries-into-tragedy-begin/newsstory/da3e9d88d53082b6ebe7acc620464f36 Problem Question Fin and Shelly work at Sharkworld on the Sunshine Coast. While feeding the sharks, Shelly cornered and threatened to hurt Fin with a meat mallet if he did not work over Easter. As a result, Fin jumped into the shark pool where his legs were savaged by a starving shark. A nearby work colleague, Marlin, saw Fin in trouble in the shark pool and quickly pulled him to the edge of the pool with gaff hook (long pole with a hook on the end of it), puncturing the middle of Fin’s body very deeply. Paramedics were called to the scene, but their response time was slow because they initially went to the wrong theme park. Fin was eventually taken to hospital in an ambulance, where he refused to have a blood transfusion on the basis of religious beliefs. At the hospital, Dr Taylor proceeded to operate on Fin to repair the damage done to Fin’s body, but Fin was too weak and died during the surgery from blood loss. Shelly has been charged with murder. Has the chain of causation been broken?

Lecture 3: Fatal Offences Elements of the offence of murder Elements of the offence of manslaughter

Attempted murder Double jeopardy re: murder and manslaughter Unlawful striking causing death Suicide Abortion Genocide Dangerous operation of vehicle causing death

Murder Unlawful killing of another under the 5 circumstances contained in Criminal Code (Qld) s 302(1) Criminal Code (Qld) s 302(1)(a) s 302(1)(a) Unlawful killing will be murder if the offender intends to cause the death or GBH to the victim or another person GBH: s 1 Criminal Code (Qld) any injury endangering life or likely to cause permanent injury to health includes permanent disfigurement loss of part of body or organ of body S 302(2) It is immaterial that the offender did not intend to hurt the particular person who was killed Criminal Code (Qld) s 302(1)(a) Intention is a state of mind  No definition of “intention” in the Criminal Code (Qld). Look at common law cases  Intention and desire are different things at law: Willmot (No. 2) [1985] 18 A Crim R 42  Intention is not the same as premeditation or motive  Intention may be formed at or before the time of killing  Intention is a question of fact  Intention may be proved by o Words or actions of the accused o Inferences drawn from circumstantial evidence o Admissions or confessions

 Direct or design intention is required o Willmot (No. 2) [1985] 18 A Crim R 42 per Connolly J o Where the intention is the whole reason for the accused’s actions e.g. “I shot him in the head because I intended to kill him”

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R v Reid [2006] QCA 202 per Chesterman J at [90] o Ordinary meaning o Intention means the act of determining mentally on some result o Intention is a purpose or design o Actions are designed to bring about the result

Criminal Code (Qld) s 302(1)(a)  Oblique or knowledge intention – something is virtually certain to result: Willmot (No.2) [1985] 18 A Crim R 42 per Campbell J and The Queen v Crabbe (1985) 156 CLR 464 

Reckless attitude is not enough: Willmot (No 2) [1985] 18 A Crim R 42 per Connolly J (with whom two other judges agreed)

** the interntion or purpose of doing an act ** admission of guilt - or admission of the act from the accused Criminal Code (Qld) s 302(1)(b) (type of murder) s 302(1)(b) An unlawful killing will be murder if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life 

Does not require an accused to have the intention to kill or do GBH

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Also known as felony murder

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s 302(3) It is immaterial that the offender did not intend to hurt the particular person who was killed

Criminal Code (Qld) s 302(1)(b) A dangerous act (one likely to endanger human life) o R v Gould and Barnes (1960) Qd R 283 

Determined objectively by the jury as reasonable people and informed by experts if necessary o Hind and Harwood (1995) 80 A Crim R 105 per Fitzgerald P

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“Likely” does not mean it is more probable that not that the act would endanger life

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It just means that there is a real and not remote chance Not a case of being more than a 50/50 chance

Criminal Code (Qld) s 302(1)(b) In the prosecution of Phillips and Lawrence (1967) Qd R 237     

Dangerous act = rape and assault Not done in furtherance of the robbery Furtherance of, pursuance of, for the purpose of Something done to achieve the unlawful purpose Act in the pursuance of the common desire

Criminal Code (Qld) s 302(1)(b) Unlawful Purpose

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R v Gould and Barnes (1960) Qd R 283 There must be a separation between the unlawful purpose and the dangerous act Unlawful purpose had been to procure an abortion Dangerous act was introducing the liquid into uterus o Stuart v R (1974) 134 CLR 426 In extortion attempt set fire to drum of petrol in Whisky-a-go-go Did not intend GBH or death, but 15 people died of asphyxiation High Court said that setting fire to something in prosecution of unlawful purpose of arson met the separation requirement The degree of separation between the unlawful purpose and the dangerous act is very minimal

Punishment of Murder Criminal Code (Qld) s 305 Punishment of murder (1) Any person who commits the crime of murder is liable to imprisonment for life, which can not be mitigated or varied under this Code or any other law or is liable to an indefinite sentence under part 10 of the Penalties and Sentences Act 1992 (Qld) Punishment for Murder Corrective Services Act 2006 (Qld) s 181 

Mandatory minimums o Eligible for parole the day after serving: 15, 20, 25 or 30 years

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More than one victim, previously convicted of murder, m...