Summary - lecture 10 - summary of non fatal offences legislation + problem solving. exam revision. PDF

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Summary of non fatal offences legislation + problem solving. Exam revision....

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LAW1CRL Non fatal offences Causing injury offences: Sections 16-18 and 24 (with definitions in s 15). All crimes have the same anatomy: ‘causing’ ‘injury’ or ‘serious injury’ Mens rea: intention or recklessness or negligence. Section 15A and 15B require circumstances of ‘gross violence’ and apply to JCE situations. Section 16 – Causing serious injury intentionally: A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence. Level 3 imprisonment (20 years max). Section 17 – causing serious injury recklessly: A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence. Level 4 imprisonment (15 years max). Section 18 – causing injury intentionally or recklessly: A person who, without lawful excuse, intentionally or recklessly causes injury to another person is guilty of an indictable offence. If the injury was caused intentionally – level 5 (10 years max); if the injury was caused recklessly – level 6 (5 years max). Note that a person must be charged under s 18 with either intentionally or recklessly causing injury, since the section creates two offences – His Honour Judge Hassett and another 1994 76 A Crim R 19, which overrules DPP v Williams 1993 1 VR 238. Section 24 – negligently causing serious injury: A person who by negligently doing or omitting to do an act causes serious injury to another person is guilty of an indictable offence. Level 5 (10 years max). Elements for causing injury offences: 1. Burden of proof 2. Criminal responsibility 3. Actus reus: 1. Voluntary conduct, 2. Causation, 3. Injury or serious injury 4. Circumstances of gross violence (section 15A and 15B only). 5. Mens rea: 1. Intention or 2. Recklessness or 3. Negligence. 6. Temporal coincidence 7. Defences: 1. Consent; 2. Common-law self defence.

‘causing’ is exactly the same as we did for homicide. Won’t have to go through causation completely in the exam. If it is clear that D caused the injury: ‘But for D’s conduct, V would not have suffered the broken arm. As D’s conduct is the substantial and operating cause of the harm, and there is no intervening cause, causation is established BRD on the facts’. If causation is not a problematic issue on the facts, don’t do a detailed analysis or application. Check out seminar question 5, Donald is clearly the only cause of the harm and there is no NAI, so causation would not be problematic. Section 15 – definition of injury/serious injury: ‘injury’ means – (a) physical injury; or (b) harm to mental health – whether temporary or permanent; ‘serious injury’ means – (a) an injury (including the cumulative effect of more than one injury) that – (i) endangers life; or (ii) is substantial and protracted; or(b) the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm. R v Chan Fook 1994 1 WLR 689 – mental harm must be serious, not just panic or fear. R v Ferrari – man dragged out of car and punched, this was a serious injury, but this is no longer the case because of statute definition of serious injury. Sections 15A/B – circumstances of gross violence: Causing serious injury intentionally or recklessly in circumstances of gross violence. Gross violence exists where: 1. the serious injury was premeditated OR where a reasonable person would foresee the conduct would likely result in a serious injury; or 2. the offender was part of a JCE with at least 2 others or while ‘in company with’ at least 2 others caused the serious injury; or 3. the premeditated plan was to use a weapon and the weapon was in fact used; or 4. the offender caused or continued to cause injury after the victim was incapacitated. Section 15C: the other offenders do not have to be tried in order to find a person guilty under 15A and 15B. Mens rea: Sections 16 and 18 – intention means foresight of a virtual or moral certainty. Sections 17 and 18 – recklessly means foresight of probably consequences, NOT possible consequences – R v Campbell 1997 2 VR 585.

Section 24 – need to establish gross negligence, a much higher standard than that of normal tortious negligence. – R v Shields 1981 VR 717. R v Wills 1983 2 VR 201. Must be so far below the standard of care that you harm the state. Threats to kill: Section 20 – A person who, without lawful excuse, makes to another person a threat to kill that person or any other person – (a) intending that that other person would fear the threat would be carried out; or (b) being reckless as to whether or not that person would fear the threat would be carried out – is guilty of an indictable offence. 10 years max. Section 21 – threat to inflict serious injury: A person who, without lawful excuse, makes to another person a threat to inflict serious injury on that other person or any other person – (a) intending that that other person would fear the threat would be carried out; or (b) being reckless as to whether or not that other person would fear the threat would be carried out – is guilty of an indictable offence. Level 6 (max 5 years). Elements of a threat offence: 1. Burden of proof 2. Criminal responsibility 3. Actus reus: 1. Voluntary conduct, 2. Causation, 3. Threat of death or serious injury to another person (conditional threats? Verbal/gestures? Context? Apprehension or fear?) 4. Mens rea: 1. Intention or 2. Recklessness 5. Temporal coincidence 6. Defences The focus is on whether or not the defendant intended that the victim feared or believed that the threat would be carried out. Conditional threat: if the condition rests on the victim, it’s a valid threat eg. Stop right there or I’ll shoot you. The victim has to stop or be shot, so it’s a threat. If the condition rests on the person making the threat eg. If it wasn’t Monday today I would shoot you, it’s not a valid threat. Sections 22/23 – endangerment offences: Section 22 – conduct endangering life: A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence. Level 5, 10 years max. Section 23 – conduct endangering persons: A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of serious injury is guilty of an indictable offence. Level 6, 5 years max.

R v Nuri 1990 VR 641 – 5 steps. Nuri and a friend stole electrical goods from a store. Got into a care to get away, got seen by cops who chased them. Got out and ran, Nuri got tackled by police and held at gunpoint. Officer decided Nuri wasn’t resisting so put gun in holster. Nuri started running again. Got tackled by police again. Nuri tried to grab the gun. Officer kept one hand on the gun and one over the trigger to stop it going off. Struggle ensues. Nuri charged with section 22. The 5 elements: 1. that the accused engaged in conduct; and 2. that the conduct palced a person in danger (ie conduct that carried with it an appreciable risk) or death; 3. the accused engaged in that conduct voluntarily; 4. a reasonable person in the position of the accused, engaging in the very conduct in which the accused engaged and in the same circumstances, would have realised that they had placed another in danger of death; and 5. the accused engaged in that conduct recklessly in that they foresaw that placing another in danger of death was a probable consequence of their conduct in the surrounding circumstances. Elements of an endangerment offence: 1. Burden of proof 2. Criminal responsibility 3. Actus reus: 1. Voluntarily, 2. Engages in conduct, 3. Which places another in danger of death or serious injury (appreciable risk of danger of death or serious injury). 4. Mens rea: recklessness, two stage test: 1. Objective test from R v Wills 1983 2 VR 201; AND 2. Subjective test from Filmer v Barclay 1994 2 VR 249. 5. Temporal coincidence 6. Defences Actus reus: 1. engages in conduct – requires physical action. Positive omissions might amount to some action, can be seen as conduct, think about context. Words on their own are not considered conduct, but some words go beyond and become conduct – Moffa 1977 138 CLR 601. Future conduct – R v AbdulRasool 2008 180 A Crim R 556 – had 5 children who went to the same school. One daughter didn’t return from school. Went to police/school and daughter still didn’t come home. Daughter had been placed in refuge because she was being abused and police couldn’t tell her this. Rasool went to the school and spoke with deputy principle with her son and said tell me where the daughter is. Deputy principle knew but couldn’t tell her. She poured petrol on herself and some hit the floor/wall/desk and deputy. She threatened to burn herself/the school/the deputy. She has clearly engaged in conduct. Defence argued that potential or future conduct should not be included. Prosecution

argued that it should be taken into account. So can non-physical or a mental state of affairs be enough to satisfy the actus reus? Court decided the mere intention to engage in future conduct does not supply the necessary body action required. Cannot assume the voluntariness of future conduct. R v Falconer 1990 171 CLR 30 – An act to involve criminal responsibility must be voluntary, as distinguished from involuntary – that is to say it must be accompanied by volition. In order that an action may be accompanied by volition there must be in the first place perception, more or less accurate, of the facts, then a determination or choice of the action to be taken upon those facts, and finally the action. Actus reus: Which places or may place another in danger of death or serious injury. Had Rasool placed others in a situation of death or serious injury? Argued that the chance was way too low. Went to appeal. Appreciable does not cover a very remote possibility of death. Mutemeri v Cheesman 1998 100 A Crim R 397: Danger has a meaning in this context of ‘liability or expose to harm or injury; the condition of being exposed to the chance of evil; risk, peril’ and is ordinarily construed with ‘the evil that threatens or impends’: the oxford English dictionary. Thus, to be placed ‘in danger of death’ is to be put in the position of liability or expose to death or in the condition of being exposed to the chance, risk or peril of death. The likelihood of harm occurring is separate from the question of whether any one is actually endangered. We have to prove that the conduct held an appreciable risk of being harmed. Mens rea: recklessness In Nuri, the court divided the test for recklessness into two distinct steps, both of which have to be satisfied for conviction: must prove both of: 4. a reasonable person in the position of the accused, engaging in the very conduct in which the accused engaged and in the same circumstances, would have realised that they had placed another in danger of death; and 5. the accused engaged in that conduct recklessly in that they foresaw that placing another in danger of death was a probable consequence of their conduct in the surrounding circumstances. R v Wills 1983 – it is sufficient to say that the circumstances relevant to the question whether a reasonable man would appreciate danger include the physical features of the situation and of the action of the accused man involved. I would not, for my part include the idiosyncrasies of the accused man or his ephemeral emotional or mental state. They are matters peculiar to him which would affect his judgment of danger but the relevant judgement must be, by definition, the judgement of a reasonable man.

R v Abdul-Rasool – the circumstances of the accused’s situation which may be taken into account, whether or not they include anything personal to him, cannot include anything personal to him which is sought to be included because it may affect his reasoning and his judgment on the question of whether the act is dangerous or not. The scenario to be considered cannot include matters which are calculated to influence the judgment of the actor himself as to whether the act was dangerous or not, because that would be to bring into the equation a judgment by a man whose reason and judgment are in a morbid and clouded condition, whereas the reasonable man for the purpose of this particular rule of law is a man who judges with the unclouded reasoning power of a healthy and reasonable mind. The subjective test: Filmer v Barclay 1994 2 VR 249: It is not sufficient to prove they foresaw that by mixing the chlorine and brake fluid together it would probably cause an explosion… Similarly, if the conduct was the firing of a gun, it would be insufficient to prove that the accused foresaw that by pulling the trigger of a loaded firearm it would probably result in the gun discharging… It is necessary for the prosecution to prove that the accused foresaw or realised that the probable consequences of performing those acts would be that some person other than himself would sustain serious injury. It’s not enough to see the consequence, you have to foresee that someone will be put in danger. Defences: ‘without lawful excuse’: common law self defence from Zecevic. If defence meets the BOP regarding self defence, then the prosecution must exclude it BRD. Consent: is a defence to non-fatal offences. If there may be consent, think about whether the activity falls within the realm of something court would think is good public policy to allow. If there’s consent, would the court think it is acceptable on policy grounds? Stalking is in the seminar notes.

Crime: Intentionally/recklessly/negligently causing serious injury (in circumstances of gross violence) Rule: The P must prove BRD that the complainant suffered a serious injury; the D caused that injury; the D intended/recklessly/negligently to cause the injury; and, the D’s actions were unlawful (CA s 16). Issue 1: serious injury Injury and serious injury are defined in s 15 of the CA. Injury is a physical injury; or, harm to mental health; whether temporary or permanent. Serious injury means: an injury that – endangers life; or, is substantial and protracted; the destruction of a foetus of a pregnant woman unless by medical procedure (s 15). Issue 2: causation The P must prove BRD that ‘but for’ D’s conduct, the injury would not have occurred (Royall v R 1991). P must prove BRD that D’s action was a substantial and operating cause of the injury (R v Smith 1959). Substantial means very likely (Hallet 1969). Egg shell skull (Blaue 1975). Novus Actus: a voluntary and deliberate action on the part of a third party that severs the causal link - The Oropesa 1943. Medical treatment is not NAI – Evans & Gardiner (No 2) 1976. Mens rea: Issure 1: intention P must prove BRD that D intended to cause serious injury, not just intended to do an act that resulted in serious injury (R v Westaway 1991). It doesn’t matter what the injury is as long as it is serious (Royall 1991). The nature of the act may provide evidence of intention (McKnoulty 1995). Issue 1: recklessness P must prove BRD that D was aware at the time he committed the relevant conduct, that it would probably cause serious injury, possible is not enough (R v Campbell 1997). Issue 1: Negligence Section 24 – need to establish gross negligence, a much higher standard than that of normal tortious negligence. – R v Shields 1981 VR 717. R v Wills 1983 2 VR 201. Must be so far below the standard of care that you harm the state. Circumstances of gross violence: The prosecution must prove that the accused caused serious injury to another in circumstances of gross violence. Section 15A(2) of the Crimes Act 1958 exhaustively defines circumstances of gross violence as one or more of the following:

a) The offender planned in advance to engage in conduct and at the time of the planningi) The offender intended that the conduct would cause a serious injury; or ii) The offender was reckless as to whether the conduct would cause a serious injury; or iii) A reasonable person would have foreseen that the conduct would be likely to result in a serious injury; b) The offender in company with 2 or more other persons caused the serious injury; c) The offender participated in a joint criminal enterprise with 2 or more other persons in causing the serious injury; d) The offender planned in advance to have with him or her and to use an offensive weapon, firearm or imitation firearm and in fact used the offensive weapon, firearm or imitation firearm to cause the serious injury; e) The offender continued to cause injury to the other person after the other person was incapacitated; f) The offender caused the serious injury to the other person while the other person was incapacitated.

Temporal coincidence: The P must prove BRD that D held the intention to cause serious injury at the time that the serious injury was suffered. Defences: Common law self-defence. Zecevic. Zecevic v DPP 1987:  The question to be asked is in the end quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Consent: is a defence to non-fatal offences. If there may be consent, think about whether the activity falls within the realm of something court would think is good public policy to allow. If there’s consent, would the court think it is acceptable on policy grounds?

Crime: Threat to kill/cause serious injury Rule The P must prove BRD that the D made a threat to kill/cause serious injury; the D either intended the complainant to fear that the threat would be carried out, or was reckless as to whether or not the complainant would fear that it would be carried out; the D acted unlawfully (CA s 20). Actus reus: Issue 1: threat to kill/cause serious injury The P must prove BRD that the D declared his intention to kill/seriously injure the complainant or another person; that the declaration must have been made to the complainant. The D need not threaten the complainant, may have threatened another person (s 20). Threat can be made by words or conduct or both (R v Rich 1997). Mens rea: Issue 1: intention Not necessary for the D to have intended to carry out the threat, only that D intended the complainant to believe the threat would be carried out (R v Alexander 2007; Barbaro v Quilty 1999). Issue 1: recklessness P must prove BRD that D was aware at the time he committed the relevant conduct, that it would probably cause the complainant to fear that the threat would be carried out, possible is not enough (R v Campbell 1997). Temporal coincidence: The P must prove BRD that the D had the intention or was reckless at the time of making the threat. Defences: Consent: is a defence to non-fatal offences. If there may be consent, think about whether the activity falls within the realm of something court would think is good public policy to allow. If there’s consent, would the court think it is acceptable on policy grounds?

Crime: conduct endangering life/person Rule P must prove BRD that D 1. Engaged in conduct; 2. That conduct was voluntary; 3. That conduct endangered another person/person’s life; 4. The D acted recklessly; and 5. The D acted unlawfully (R v Nuri 1990). Actus reus: Issue 1: conduct The D must have engaged in the conduct alleged (R v Abdul-Rasool 2008). The conduct must have been voluntary (Abdul-Rasool 2008). Issue 2: voluntariness The P must prove BRD that the conduct was voluntary (Marijancevic 2009). Issue 3: endangered person/person’s life P must prove BRD that a reasonable person taking the same actions as the D would have realised that the conduct 1. Placed another person in danger/danger of death; or, 2. May have placed another person in danger/danger of death (CA s22 for death, s23 for danger; R v Nuri 1990). Not necessary for the person to actually be put in danger, just that the conduct had potential to place a person in danger/danger of death (Abdul-Rasool 2008). The degree of danger must be an appreciable risk (Abdul-Rasool 2008). Appreciable risk is more than a remote or mere possibility of death/serious injury (R v Wilson 2005). Mens r...