RIshilegalsacnotes - Unit 2 AOS2 PDF

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Unit 2 AOS2...

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Culpable Driving Dpp V Callick •facts of the case – date; what happened The victim Matthew Bloom was killed when the Accused Daniel Callick, under the influence of methamphetamine was driving at a speed calculated to be about 164 km/h in an 80km/h zone. The Accused lost control of the car and in which Matthew Bloom was his passenger. The car spun and hit a tree with such force that it broke into two pieces, flinging the front half of the car with the two of you in it into a second tree.

•plea The plea the Accused was Guilty.

•who is the victim/accused The Victim is Matthew Bloom. The Accused is Daniel Callick

•how this case met all the elements of Culpable Driving Mens Rea Recklessly-Excessive speeding at 164kmh in 80kmh zone while the influence of methamphetamine. Negligently-He was driving a car that didn’t have a roadworthy certificate and he decided to speed when he had a passenger in his car Under the influence of drugs- he was so influenced by drugs he was not capable of having proper control of the car. Actus Reus the culpable driving caused the death of another person

•defences used/possible defences used The Accused purchased the car without a current roadworthy certificate. Insane Automatism as he had this schizophrenia you for some months that people had been following you and that they were after money that you had from a superannuation payout. Also had sought psychiatric treatment because of paranoid and delusional beliefs.

•which sanction was given He was sentenced a term of imprisonment of 11 years and have a fixed a period of nine years before being eligible for parole. He had arealy spent 506 days in pre-sentence detention which will count towards the 11 years. Under the compliance of section 11A of the sentencing act and section 6AAA of the sentencing Act.

•what impact this case had on individuals and society The shock of his death has been even harder for his family to bear. His friend who was driving a car that was following the accused described his driving as at a speed which le him for dead. Other road users were frightening them because of the rapidity with which he approached or overtook them changing lanes, moving lanes.

Murder The Queen V Gannon •facts of the case – date; what happened In November 2016 the accused Shane Gannon was living at home with his parents at 66 Langstaffe Drive, Wendouree, where the family had lived for about the last 12 years. He was 38years of age and not married and for most of his life you have lived at home. His relationship with his father was difficult and she often argued with him. His relationship was worse when he did not take your medication for his schizophrenia and consumed alcohol more heavily and became withdrawn. By November 2016 the arguments happened to be mostly about playing loud music. His mother said that he was paranoid and carried a knife for protection. At about 1 am on 2nd November he armed himself with a knife and attacked his father in his father’s bedroom stabbing him a 13 on the head and various body parts. He continued to stab him into the hallway. When his mother heard the noise she woke up and heard his father say “get away from me”. His father had collapsed and his mother called 000. Shane told his mother “he’s dead” When the paramedics arrived the father was confirmed to be dead. When the police came to talk to Shane told Constable Duckworth that he was giving him grief for years and he stabbed him. he was then arrested.

•plea The plea the Accused was found to be not guilty due to her mental impairment.

•who is the victim/accused The Accused is Shane Gannon. The Victim is John Gannon

•how this case met all the elements of Murder •defences used/possible defences used Mental impairment defence Gannon was diagnosed with schizophrenia in 1999 was non-compliant with his medication for antipsychotic medication Olanzapine. The Mental state of the Accused meant that he didn’t have control over what he was doing. Self Defence for Family Violence- His father had been away from the family for between 8-10 years as there was an intervention order In place in support largely for his mother. Gannon has also told that his father was very violent towards him. Gannon previously had thought of suicide due to his father being violent towards him. Self Defence- The violence the Gannon had to deal with from his father had continued into his adulthood as result he might had attacked him in self defence for all the grief. Gannon had been quoted that his father was the instigator for the violence

•which sanction was given Justice Coghlan ordered Shane Gannon to be remanded in custody at Port Phillip Prison because she was satisfied that there is no practicable alternative in the circumstance and she will have to wait for six months at the St Pauls psychiatric unit until there is place available for Shane at the Thomas Embling hospital or earlier if the condition gets worse under act 47 under the crimes (Mental impairment and unfitness to be tired) Act 1977.

•what impact this case had on individuals and society The impact the mother of Shane Gannon is that she has lost her husband and she has to live with a psycho person who believe that the devil is around. The members of the neighbourhood of Wendouree and the surrounding areas as his schizophrenia could get worst and he could believe that other people could be devils and could attack them.

•are there any other principal offenders/accessories – provide details There was no other principle offenders or accessories for this crime

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the purposes of criminal law Criminal laws made by judges (common law) and made by parliament (statute law/legislation) that aim to protect society from harm, and to punish those who offend against our basic values, usually by harming or threatening to harm another.

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the presumption of innocence The presumption of innocence refers to a guarantee made to all accused persons that they are to be treated as innocent until it is proven, beyond a reasonable doubt, that they are guilty of a criminal offence. This guarantee is afforded to all accused persons, regardless of their personal situation or the circumstances of the case in which they are implicated - a demonstration of the principle of equality before the law. • An accused person does not need to/cannot be pressured to give evidence to prove their guilt; and • Accused persons can (in general) remain silent when asked questions during a police investigation or trial.

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key concepts of criminal law, including: –

the elements of a crime: actus reus and mens rea ‘Actus reus ‘guilty act’. In criminal law, actus reus refers to the element of the crime where the accused person acted, or failed to act, resulting in criminal consequences. ‘Mens rea’ is a Latin term that translates to ‘guilty mind’. In criminal law, mens rea refers to the mental element of the crime: the state of mind which must be proven before the judge/jury can find the accused guilty of the crime.

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strict liability Strict liability offences are offences where there is no need to prove any mental element of the crime (mens rea) for a person to be found guilty. It is enough for the person to have committed an act that is against the law (actus reus) for them to be found guilty and punished.

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the age of criminal responsibility Under 10 years • In Victoria, a child less than 10 years cannot be charged with committing a crime. 10-14 years • There is a presumption (in other words, the law’s ‘starting point’ is) that a child between the ages of 10 and 14 is incapable of forming the mens rea to commit a crime because they do not know the difference between right and wrong (in the same way an adult does). Over 14 years • Offenders over the age of 14 are able to be found to be criminally liable.

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the burden of proof The burden of proof refers to the responsibility of proving the facts of a case (or the party who is responsible for meeting the standard of proof). The burden of proof in criminal trials • In a criminal trial, the prosecution has the burden of proving that the accused is guilty beyond reasonable doubt. • The prosecution must gather evidence to support all the elements of the crime, which usually include the actus reus elements and the mens rea element.

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the standard of proof The standard of proof refers to the strength of evidence required for the decision maker to reach a verdict in a case In criminal trials the prosecution must prove that the alleged offender is guilty of a crime ‘beyond reasonable doubt’. This is the highest standard of proof possible: it means a very strong case must be presented to obtain a conviction.

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types of crime such as crimes against the person and crimes against property Crimes against the person are criminal offences where a person is harmed. • Murder • Attempted murder • Manslaughter • Culpable driving • Assault • Kidnapping Crimes against property are criminal offences that involve using force or deception to obtain, damage or destroy property. Burglary • Theft • Fraud • Identify theft • Arson • Shoplifting

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the distinction between summary offences and indictable offences Summary offences are less serious or ‘minor’ criminal offences where the impact on society is relatively small and the matter is resolved by a single magistrate in the Magistrates’ Court. • Disorderly conduct (s. 17A) • Common assault (s. 23) • Tattooing of juveniles (s. 42) • Food or drink spiking (s. 41H Indictable offences are more serious criminal offences where the impact on society is significant and the matter is resolved by a judge and jury in higher courts. • Murder (s. 3) • Manslaughter (s. 5) • Kidnapping (s. 63A) • Stalking (s. 21A) • Destruction of evidence (s. 254) • Culpable driving causing death (s. 318)

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possible participants in a crime such as principal offenders and accessories A principal offender is an offender that is considered to be immediately linked to the crime. There may be more than one principal offender when a crime is committed, including those who perform the actus reus elements of the crime and those who assist or encourage a person to commit a crime. A principal offender can be subject to the maximum penalty for the offence. This is regardless o whether they committed the actus reus elements of the offence. An accessory is any person who knows or believes that a person is guilty of a serious indictable offence who acts to prevent the arrest, prosecution, conviction or punishment of that person. Examples of ways an individual can be an accessory to a crime include: • A person who hides a principal offender. • A person who hides, destroys or tampers with evidence the maximum penalty for murder is life imprisonment. An accessory to a murder case could be liable to a maximum of 20 years imprisonment. In all other cases, the penalty cannot exceed 5 years imprisonment or be more than half of the maximum penalty that could be imposed on the principal offender.

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Murder: – the elements of the offence

The specific mens rea that must be proven to find someone guilty of murder is known as malice aforethought. Intentional murder is where the accused causes the death of another with the specific intention to kill or cause grievous bodily harm (serious physical injury), while having no lawful excuse to do so. Reckless murder is where the accused causes the death of another while acting with recklessness as to causing death or grievous bodily harm, while having no lawful excuse to do so. Actus reus is a Latin term that refers to the physical element of the crime: where the accused person did an act, or failed to do an act, that had criminal consequences.

Voluntary act The conduct must have been directed by the accused’s conscious and voluntary decision. Causation requires a causal connection between the accused’s voluntary act (or omission) and the consequences that result. The voluntary act must cause the death of another person, not an object or animal. A foetus (an unborn child) is not accepted to be a ‘person’ in Victoria.

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possible defences

Self-defence is the legal recognition that a person may lawfully use force or the threat of force in order to prevent unlawful harm against themselves or another. The defence of self-defence is slightly different in situations where the accused murders someone due to previous family violence. The defence of duress is the legal recognition that a person has committed a crime while acting under compulsion due to a threat should they fail to comply.

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the role of statute law and common law in developing the elements of the offence and the defences

Common law self-defence Previously, the courts used a common law test which had multiple stages including subjective and objective considerations. Requirements of this test included: • The accused’s response must be proportionate to the attack. • The victim’s attack must be unlawful. • The accused retreated before using force.

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trends and statistics in relation to the offence in Victoria and in one other jurisdiction

Between 2013-14 to 2017-18, a total of 132 people were sentenced for murder in the Supreme Court of Victoria This includes the outcomes of appeals in the Court of Appeal and constitutes only 1.5% of principal offences sentenced across this period. According to the NSW Government’s Bureau of Crime Statistics and Research, the number of murders that occurred across the state increased by 39.6% over the last 2 financial years (March 2017 – March 2019). This spike is shown in Figure 4

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the possible impact of the offence on individuals and society.

Impact on mental and physical health The murder of a close relative has been shown to have a number of detrimental effects on the mental health of family members of the deceased. Impact on family relationships Research has shown significant detrimental effects of murder on the maintenance of stable family relationships. Re-victimisation Another major impact of murder on the families involved is re-victimsation – secondary difficulties and hardships that arise during the grieving process following the murder of a loved one. Psychological impact Higher rates of murder and other violent crimes can have a significant psychological impact on members of a community

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Culpable driving : – the elements of the offence

recklessly as a situation in which the accused ‘consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from [their] driving’. Negligently Any person can make a mistake or lose concentration momentarily when driving. For a person to be negligent in the offence of culpable driving requires more than proving such an error. Under the influence of alcohol Under the influence of a drug Driving a motor vehicle a person will be driving where they have the ability to accelerate, brake and control the movement of the motor vehicle. Death This requires the culpable driving to have caused the victim’s death.

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possible defences

Automatism occurs when an offence is committed by an accused suffering from an involuntary state of mind. Sane automatism is where a person’s mental capacity is severely influenced by external factors. Insane automatism is where the accused is reacting to their own internal illusions.

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the role of statute law and common law in developing the elements of the offence and the defences trends and statistics in relation to the offence in Victoria and in one other jurisdiction

In the five years between 2013 and 2018, a total of 59 people were sentenced in the higher courts for a principal offence of culpable driving causing death Figure 4 summarises the total number of people sentenced for one of the driving causing death offences (excluding manslaughter) in NSW in the ten years between 2009-2019. Figures have clearly fluctuated in this period, having ranged from a low of 56 in 2016-17 to a high of 85 in 2010-11.

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the possible impact of the offence on individuals and society.

Culpable driving causing death has a large impact on the offender and their family. Impact on society as they may feel unsafe on the road...