S118 LWZ114 – Criminal Law PDF

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Criminal law first assignment....

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LWZ114 – Criminal Law Assignment 1 Wordcount 2570 words Submitted 13 April 2018 Part A Offence A - Manslaughter, Frances 1) Introduction The offence of manslaughter is contained in s160, a Part IIAA offence within the NT Criminal Code (NTCC). Frances, while only 17, is considered to have capacity to be held criminally liable under s38. 2) Identifying the elements of the offence 2.1) Physical elements s160 expressly articulates 2 physical elements for the offence of manslaughter under subsections (a) and (b). These are (a) engaging in conduct, which should be classified as a ‘conduct’ physical element (see s43AD and s43AE(a)) and (b) causing death, which should be classified as a ‘result’ physical element (s43AE(b)). 2.2) Fault elements s160(c) expressly states that the fault element for the physical element of ‘causing death’ is that the person is ‘reckless’ or ‘negligent’ as to causing the death of that or any other person by the conduct. As s160 does not state what the required fault element for 160(a) ‘engages in conduct’ is, the default fault element provisions in s43AM apply, namely ‘intention’. 3) Application to the facts 3.1) Physical element – engages in conduct The relevant conduct of Frances is that of her actions in pushing Jane with both hands, using enough force to push her into the water where she is subsequently eaten by a crocodile. In the absence of any other evidence, these actions will likely be viewed as occurring voluntarily. The physical element of engaging in conduct is clearly made out for Frances; according to the facts she suggested the exercise, and she pushed Jane. 3.2) Fault element – intention to engage in conduct Based on the available facts, there is no other reasonable explanation than that Frances intended to push Jane with as much force as to physically send her falling backwards. The fact that Frances verbally suggested the trust exercise and then subsequently carried out the conduct of pushing Jane sufficiently demonstrates intention to make out this fault element. 3.3) Physical element – causes death The test for causation in relation to this offence is whether Frances’ conduct ‘substantially contributed’ to Jane’s death in accordance with s149(c). It is likely that this element will be established, given that it was Frances’ physical conduct in pushing Jane that caused (or at least substantially contributed) to her falling in the water and being killed. The presence of a crocodile cannot be considered an ‘intervening act’ given that it was part of the same string of events and the push caused, or at the very least ‘accelerated’ the victim’s death.1 3.4) Fault element – Recklessness or negligence as to causing the death A person is reckless in relation to a result under s43AK(a)and s43AK(b) if the person is both aware of a 1 Krakouer v Western Australia (2006) 161 A Crim R 347 (WA CA)

substantial risk that the result will happen, and having regard to the circumstances known to the person, it is unjustifiable to take the risk. This element should also be established, given that Frances states that there are a large number of crocodiles present in the harbour and that the trust exercise was therefore ‘more dangerous’ than when they had played it previously. 4) Defences 5) Conclusion It is likely that the offence of manslaughter can be established for Frances in this case, because each of the four elements can be established. However, it is ultimately up to the jury to determine whether the facts can be established for each element beyond reasonable doubt, which is the required standard of proof for this offence. Offence B - Manslaughter, Mary 1) Introduction See above, Offence A section 1. Mary is aged 18 and is considered to have capacity to be held criminally liable under s38. 2) Identifying the elements of the offence 2.1) Physical elements See above, Offence A section 2.1. 2.2) Fault elements See above, Offence A section 2.2. 3) Application to the facts 3.1) Physical element – engages in conduct The relevant conduct of Mary is that of her actions in verbally undertaking to catch Jane but failing to do so, leading to Jane’s fall to her death. Examining the available facts, and reading s43AG(2) it was an ‘omission to perform an act’ that establishes this element; namely Mary’s omission to perform the act of catching Jane. This is because failure to do so is in breach of Mary’s duty under s152: when a person undertakes to do any act, the omission of which is dangerous to human life or health, it is their duty to do that act. 3.2) Fault element – intention to engage in conduct Based on the available facts, Mary intended to engage in the trust exercise. Her undertaking to catch Jane was given freely and voluntarily and it is here argued that this satisfies the requisite degree of intention for this fault element, namely to engage in the conduct that led to Jane’s death. 3.3) Physical element – causes death The test for causation in relation to this offence is whether Mary’s conduct ‘substantially contributed’ to Jane’s death in accordance with s149(c). It is likely that this element will be established, given that it was Mary’s physical conduct in pushing Jane that caused (or at least substantially contributed) to her falling in the water and being killed. The presence of a crocodile cannot be considered an ‘intervening act’ given that it was part of the same string of events and the failure to perform the act of catching substantially caused Jane’s death.2 3.4) Fault element – Recklessness or negligence as to causing the death While the defence may argue that Mary’s being intoxicated is relevant, it is here argued that her level of intoxication was not sufficient to negate her being reckless to the extent that it satisfies this element. She was 2 Krakouer v Western Australia (2006) 161 A Crim R 347 (WA CA)

able to coherently articulate a verbal undertaking that she would perform the act of catching Jane. The element of recklessness should therefore be established despite her being voluntarily intoxicated. 4) Conclusion It is possible that the offence of manslaughter will be established for Frances. While each of the four elements can be established, it may be difficult to prove beyond reasonable doubt that her intoxication did not make her unable to meet the fault elements for intention and recklessness. Offence C - Individually charge Frances with violent act causing death 1) Introduction This offence is contained in s161A within Part IIAA of the NTCC. 2) Identifying the elements of the offence 2.1) Physical elements s161A, read with s161A(5) articulates two physical elements for this offence under subsections (a) and (b), namely those of (a) engaging in conduct, which should be classified as a ‘conduct’ physical element (see s43AD and s43AE(a)) and (b) causing death, which should be classified as a ‘result’ physical element (s43AE(b)). Because this is a ‘result’ physical element, causation must be established in order to satisfy this element. 2.2) Fault elements s161A does not state what the required fault element for 161A(a) ‘engages in conduct’ is. As a result, it is necessary to turn to the default fault element provisions in s43AM. Under subsection (a) of that section, the default fault element for ‘conduct’ is ‘intention’. Thus the fault element for 160(a) is intention to engage in conduct. s161A(2) states that strict liability applies to 161A(b), and as such there is no required fault element for this result physical element. 3) Application to the facts 3.1) Physical element – engages in conduct A two handed push by Frances to Jane’s upper body with enough force to send her over the edge is the direct application of force to another person that is arguably sufficient to satisfy the definition of “conduct involving a violent act” under 161(A)(1)(a) and 161A(1)(A)(5). 3.2) Fault element – intention to engage in conduct See above Offence A section 3.2, this same argument applies here. 3.3) Physical element – causes death See above Offence A section 3.3, this same argument applies here. 3.4) Fault element attached to engaging in conduct According to s161(2) there is no need to prove the fault element. Frances has strict liability for having physically carried out conduct amounting to a violent act that physically resulted in a death. 5) Conclusion Frances is liable as criminal responsibility cannot be negated by Jane’s consent to the conduct amounting to a violent act under 161(1)(a). Further, exceptions to criminal liability under s161(4)(a)(i)&(ii) and 161(4)(b) require that the conduct involving the violent act was done for the other person’s benefit or as part of a socially acceptable function or activity – both of which must be objectively reasonable.

The exception to criminal liability in subsection 161(4)(a)(i) (read with 161(4)(b)) does not apply as the purpose of the activity was not to benefit Jane – trust is not a quantifiable benefit; even if trust was considered beneficial to Jane, playing this game is not a reasonable way to accrue that benefit to make the exception to liability permissible under s161(4)(b)). While the conduct as part of the trust exercise could be reasonable and socially acceptable in the school environment (as mentioned earlier in the facts) under 161(4)(a)(ii) (read with 161(4) (b)), Frances recognises this game by the wharf is inherently dangerous and is therefore neither reasonable nor socially acceptable, which means she cannot benefit from this exception. It is therefore possible that the offence under 161A can be established for Frances in this case, as long as the defence is able to prove beyond reasonable doubt that the conduct in question amounted to a violent act.

Part B 1. Aggravated assault against a police officer 1.1 Statutory basis 62 The statutory basis for the charge of assault against a police officer is found in s189A(1). Further, s189A(2) sets out that if the police officer in question suffers harm, the assault is considered aggravated and carries a higher sentence. According to s3(2)(b) this is an indictable offence. 1.2 Physical and fault elements The first physical element for this offence is that of conduct, namely of unlawfully assaulting a police officer in the execution of their duty. As this is a Part II offence, the general fault element provision in s31(1) applies: whether the person intended the act or foresaw the possible consequences of their

conduct. As you’re being charged with aggravated assault, the second physical element is that of causing harm. This is a result physical element for which the corresponding fault element is again that of intention or foresight. 1.3 Legal relevance of police actions around the time of the alleged offence The officer searched you in accordance with 119AA of the Police Administration Act (PAA). However we will argue in your defence that there were no reasonable grounds for this search, given that there is nothing on the available facts to indicate that you were in possession of an offensive weapon. 1.4 Will a guilty plea to this charge trigger mandatory sentencing provisions? s78CA of the NT Sentencing Act (NTSA) stipulates that this charge is a level 5 offence. Under s78DA, if you plea guilty to this charge, this will trigger mandatory sentencing provisions under the NTSA and given your prior conviction for aggravated assault, you will receive a minimum penalty of 12 months imprisonment. 1.5 Advice on the likelihood of defending this charge Under the definition of assault under 187(a), your act of pushing of SC Lawrence could constitute direct or indirect application of force to a person. However, we will argue in your defence that the officer was acting contrary to the PAA in searching you without reasonable grounds; your pushing him was in response to his unlawful behaviour and therefore justified. In the event that we are unsuccessful in having this charge dropped, it will be strongly argued that it should be downgraded from aggravated assault, as based on the available facts there is no proof that SC Lawrence in any way suffered ‘harm’ as a result of your conduct. 1A of the NTCC defines ‘harm’ as physical harm or harm to a person's mental health, whether temporary or permanent. That the push was conducted with one arm only, and the officer did not fall backwards, or verbally express any pain, fear or even surprise indicates that the push was not a serious enough form of assault to have caused harm to SC Lawrence. 2. Resisting arrest 1.1 Statutory basis s158 of the Police Administration Act (PAA). 2.2 Physical and fault elements The physical element for this charge is that of conduct, namely resisting a member in the execution of their duty. As this is a strict liability offence there is no applicable fault element. Applying this to the available facts, it can be argued that you did not in fact resist arrest. Rather, you resisted a search and based on the facts one that should be considered unlawful as there were no reasonable grounds to conduct it. 2.3 Legal relevance of police actions around the time of the alleged offences See above section 2.2 2.4 Will a guilty plea to this charge trigger mandatory sentencing provisions? No. The maximum penalty for this offence is 6 months' imprisonment. 2.5 Advice on the likelihood of defending this charge On the available facts, there is a good chance of defending this charge given that you did not resist arrest, you in fact only resisted a search and one that will be argued was unlawful. 3. Disorderly conduct 3.1 Statutory basis s47 of the Summary Offences Act (NTSOA). 3.2 Physical and fault elements The physical elements for the charge are of conducting one or more behaviours listed under subsections (a) through (f) of s47.

3.3 Legal relevance of police actions around the time of the alleged offences It is argued that the officer carried personal ill-feeling towards you, based on his tone in approaching you with the words “oh, look who we had here.” We will argue that “smart ass” does not constitute obscene language for the purposes of the act, as it is used in common parlance and your tone was merely reflecting that used by the officer towards you. 3.4 Will a guilty plea to this charge trigger mandatory sentencing provisions? No. The maximum penalty for this offence is 6 months' imprisonment and/or a $2000 fine. 3.5 Advise Trevor on the likelihood of defending this charge You have a good chance of defending this charge. On the facts available we will argue that your behaviour on the night in question was in no way disorderly or offensive, and the use of the words “smart ass” was not sufficiently obscene language to constitute an offence. 4. Giving a false name to police 262 3.1 Statutory basis s134(2)(b) of the NTPAA. 3.2 Physical and fault elements The first physical element is that of a member requesting the name or address of a person. This is established on the available facts, as SC Lawrence did ask you for both of those details. The second physical element is that of conduct, namely that you shall not furnish a false name. As this is a strict liability offence there are no applicable fault elements. 3.3 Legal relevance of police actions around the time of the alleged offences The officer approached you with the statement “oh, look who we have here.” Not only was this sarcastic in tone, it also indicates that SC Lawrence already knew your identity. We will therefore argue that your response in saying that you were Shane Warne was simply mimicking the sarcastic, even jocular nature of the officer and that it should not be found that you were providing a false name. 3.4 Will a guilty plea to this charge trigger mandatory sentencing provisions? No. The maximum sentence for this offence is four penalty units. 3.5 Advise Trevor on the likelihood of defending this charge We will argue in your defence that you answered sarcastically to the officer, something you and an objective reasonable person would deem socially acceptable considering that he had indicated mere seconds before that he already knew who you were, and had himself used sarcastic language towards you....