Week 2 Principles of Criminal Responsibility PDF

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Notes on Criminal Responsibility...

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Week 2 Principles of Criminal Responsibility Elements of Criminal Offences The elements of a criminal offence must be proved beyond reasonable doubt: The prosecution must prove all elements of an offence beyond reasonable doubt: Woolmington v DPP [1935] AC 462; Evidence Act 1995 (NSW) s 141; Green v The Queen (1971) 126 CLR 28; The Queen v Dookheea (2017) 262 CLR 402 High Court has resisted invitations to further elaborate on the meaning of reasonable doubt: A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances (Green)

Two types of elements -

Physical elements/actus reus Fault elements/mens rea

Further particulars relating to the elements of a crime -

Voluntariness of conduct Coincidence of physical and fault element

Other elements that would displace the typical requirement that the Prosecution prove the above elements beyond reasonable doubt -

Strict liability offences (elements) Absolute liability offences (elements)

Who might (might not) potentially be convicted of a criminal offence? -

Special defendants (children and corporations) Example of application of principles of criminal responsibility (criminal liabilities of companies)

Elements of Criminal Offences •

Elements = the components of a criminal offence;

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Crimes are composed of two types of elements: •

Physical elements or actus reus; (this element encompasses the behaviour of the accused that is prohibited)

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Fault elements or mens rea; (this element requires the P to show that the A has a guilty mind)

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P may also be required to disprove relevant Defences to the criminal standard. These may also be considered elements by some but is covered much later in this course.

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The elements of any particular offence are determined by a process of statutory interpretation, with reference to the general principles of criminal responsibility found at common law;

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In some circumstances in criminal proceedings, A might bear the burden of prove: (including some Defences and imposed by some statutes). The standard of prove for A is typically the balance of probability (Evidence Act 1995 (NSW) s 141).

Physical Elements/Actus Reus •

Physical elements/actus reus fall into three main categories: •

Conduct = acts (most criminal conduct), omissions (eg manslaughter by criminal negligence) or states of being that are prohibited by the law (rare).

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Circumstance = the context in which the accused’s conduct takes place (eg: whether the V has consented to the particular conduct)

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Consequence = a particular result that is caused by the conduct of the accused (often distinguishes aggravated offences – eg Assault occasioning actual bodily harm)

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Causation = The connection between the Conduct and the Consequences (eg P must prove that A’s conduct caused the death of the V to secure a conviction of homicide (either murder or manslaughter))

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A criminal offence may include any number of physical elements (which all fall into the above categories);

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We will consider causation in the criminal law in greater detail in Week 7 (as part of our study of murder).

Voluntariness (of conduct) •

Conduct must be voluntary (ie willed) and not accidental; Ryan v The Queen (1967) 121 CLR 205; Koani v The Queen (2017) 263 CLR 427. (eg of A was asleep while the conduct was carried out, it was no voluntary because it did not involve the exercise of free will)

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Voluntariness is an aspect of actus reus; not to be confused with (general) intent.

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Accused’s conduct is presumed to be voluntary: Falconer v The Queen (1990) 171 CLR 30.

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If evidence suggests conduct may not have been voluntary, then the prosecution must prove voluntariness beyond reasonable doubt: Ryan v The Queen (1967) 121 CLR 205.

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Ryan – Decided to rob the service station armed with a firearm for the purposes of committing that robbery, in the course of robbery he decided to try to tie up his victims. The victims try to escape, startled Ryan to jump, and his firearm discharged in the process killing the servo attendant. Ryan argued that his conduct, specifically the squeezing of the trigger – the final act that caused the discharge - was not voluntary because it was a reflex. Ryan was found guilty for murder. Voluntariness is fundamentally an aspect of the actus reus of an offence and is concerned with whether the act is one that would be attributed to A’s conduct.

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Examples: Murray v The Queen (2002) 211 CLR 193; Gillet (2006) 166 A Crim R 419.

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Murray: The HC is focusing on the set of movements of the conduct (discharge of firearm) as a whole, not just the very isolated step towards the end of the conduct (squeezing of the trigger) when considering voluntariness.

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Gillet: A experienced an episode of epilepsy (seizure) when driving a motor vehicle and was involved in collisions that caused 3 deaths. (1) HC observed that when a person is experiencing a state of epilepsy (or stung by a group of bees) his conduct may be involuntary. (2) HC nonetheless found that A’s appeal was unsuccessful because his driving, before the seizure, while knowing the risk of his epilepsy condition, was a voluntary act of dangerous driving in that instance.

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Conduct is only attributed to the accused for the purposes of the criminal law where it is voluntary. Whether the conduct is voluntary is a question going to the prove of the actus reus of the events involved in conduct.

Fault Elements/Mens Rea Fault elements/mens rea fall into four general categories: -

Intention = meaning to do a particular act (basic intent) or to bring about a particular consequence (specific intent), and does so o Two types of intent in criminal law based on characterization of the specific offence):  Basic intent to do an act engaged in a particular conduct – P must show that A meant to do the particular act (eg, the basic intent to make contact with another person which may be sufficient mens rea for assault)

Specific intent to cause a particular outcome or consequence: eg an intention to kill or cause grievous bodily harm – alternate forms of mens rea that are sufficient for murder (By proving on of the two, among other mens rea elements, P can make out the case of murder) o On the difference between motive and intent: A motive may be evidence that aids P’s case in improving intention, but is not the same as intent in criminal law: it is not necessary for P to prove that A has a particular motive, however a motive may form part of P’s case to prove the intention. Knowledge = awareness that a particular circumstance exist, or a particular consequences follow o A form of subjective mens rea, the question here is not what a reasonable person would do or would have known, but what A in question can be proven to have known o Txtbook: Wilful Blindness is not a separate type of mens rea, but a mean of proving knowledge, or more accurately the circumstances where A actively avoids acquiring knowledge. (Eg purposefully not look into an item to avoid learning that it contains prohibited drugs) Recklessness = where (can be proved beyond reasonable doubt) an accused foresees the possibility that circumstances exist OR that consequences might follow and nevertheless engages in conduct (the degree of risk and bounds of recklessness are increasingly offence specific; major issue in statutory interpretation of criminal offences in NSW!) o A form of subjective mens rea. Considered on a offence by offence basis. Negligence = a reasonable person in the position of the accused would have foreseen the consequences of their actions and taken reasonable steps to avoid them o Objective mens rea. Concerned about what a reasonable person would do in the particular circumstances. The standard of negligence which gives rise to criminal liability is higher than that in torts. In criminal law, a great falling short of the standard of care that would be exercised by the average person with a high likelihood of the relevant consequences would follow is necessary. 

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One or more of the above may combine to form the essential elements of a criminal offence. Coincidence of Physical and Fault Elements To establish criminal liability, it is not enough for P to prove that all of the essential elements of the crime existed at some point in time. P has to prove that the actus reus and mens rea, and also prove that they coincide in time. In other words, P must prove that A held all of the relevant mens rea while completing all of the actus reus of the offence. •

General principle is that the physical and fault elements of an offence must coincide in time: Meyers v The Queen (1997) 147 ALR 440; Koani v The Queen (2017) 263 CLR 427.

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Meyers: The particular act and the intent with which it is done must be proved by the prosecution beyond reasonable doubt. Act and intent must coincide. If the circumstances of a fatal altercation are such that the prosecution can prove that some acts were done with the necessary intent but cannot prove that other acts were done with that intent, no conviction for murder can be returned unless there is evidence on which the jury can reasonably find that the act which caused death was one of those done with the necessary intent.

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The actus reus and mens rea of an offence can coincide even where the relevant intent has ceased to exist when the physical elements of the offence are completed.

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Thabo Meli [1954] 1 All ER 373: A struck V in the head, and thinking he was dead, threw him off the cliff to fake an accident. But V was still alive when pushed off the cliff, and later died where he’d fallen. Privy Council found that the acts extended beyond the relevant intention, the intent to kill V overlapped, at least in part, with the series of acts that caused the death. So there was coincidence between the actus reus and mens rea.

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Le Brun [1992] 1 QB 61

The series of acts can also come before the intent, and still considered to coincide. As long as there is an overlapping between the acts and the intent, there is coincidence. • Fagan [1969] 1 QB 439: A accidentally drove his car onto the foot of a police officer. Once he knew that, he chose, at least temporarily, to keep the motor vehicle in place. In that scenario, it was found

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that the intent was formed during the course of that ongoing act . I.e., the act started then the intention came into existence. Thus the crime could be proven. There are also instances that the Court found that P cannot prove that the elements of the offence coincide. • Potisk [1973] SASR 389: Majority found that an A who had accidentally acquired more money than entitled to had completed the actus reus of larceny (stealing) before they formed an intent to keep the money (to permanently deprived the owner of their property), and hso there was no coincidence.

Mens Rea, Strict and Absolute Liability There are types of offences (or types of elements in various offences) that do not require prove of mens rea. According to R v Wampfler (1987) 11 NSWLR 541, 546 (Street CJ), statutory offences (elements) fall into three categories: -

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Offences/elements where there is an original obligation on the prosecution to prove mens rea element(s) beyond reasonable doubt Offences/elements where mens rea is presumed until material is advanced by the defence of the existence of honest and reasonable belief that the conduct in question is not criminal; then the prosecution must negative such belief beyond reasonable doubt (aka ‘strict liability’); Offences/elements in which mens rea plays no part and guilt is established by proof of the relevant physical element(s)/actus reus elements (‘absolute liability’). (also no opportunity for A to raise the excuse of honest and reasonable mistake)

Sometimes it might be the case that one element of an offence is a strict liability element, but that does not make the whole offence a strict liability offence. Strict Liability: (1) mens rea is presumed, (2) A can choose to disprove, (3) if A does so, P then has to disprove (2) •

Strict liability = mens rea is presumed unless an accused can show an excuse of honest and reasonable mistake of fact;

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Evidentiary burden on accused to show honest and reasonable mistake of fact; prosecution must then disprove honest and reasonable mistake of fact BRD: He Kaw Teh v The Queen (1985) 157 CLR 523; CTM v The Queen (2008) 236 CLR 440.

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He Kaw Teh v The Queen: A was charged with importing heroin. Heroin hidden in his bag’s false bottom in Melb airport. Factual question is whether A knew abt the existence and nature of said drugs. Trial Judge’s decided that P was not required to prove mens reas, and the offence involves strict liability was wrong. (1) There is a presumption that mens reas must be proven by P to achieve a conviction. (2) There are a number of considerations relevant to the interpretation of the provisions to see whether that presumption has been displaced – words of the statues, the subject matter of the statue, and whether strict liability might aid the enforcement of the effects. Things that might indicate whether an offence is of strict liability: 1. “without reasonable excuse” – although in some statutes this has been interpreted as providing a defence for A to prove on baln of probi. 2. “fail to comply” – this reads differently than something like “a person must not breach sth” or “fail to comply with intention”. 3. Long title might give some indication of the subject matter (the intention of the legislation).

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Mistakes of law (typically) not a defence: Ostrowski v Palmer (2004) 218 CLR 493.

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Leichardt Municipal Council v Hunter (2013) 83 NSWLR 637; accused able to raise defence of honest and reasonable mistake of fact re compliance with a control order under Companion Animals Act 1998 (NSW) s 49. Court found that the words of s 49 of the Act did not require prove of intention, because the subject matter of the offence was “the protection of or enhancement of public safety thru the controlling of potentially dangerous animals”, and that the need of prove that A intended to breach the control order wud frustrate the operation of the statue. And as such the presumption that mens reas must be proven is displaced.

Absolute Liability •

Absolute liability = prosecution not required to prove mens rea NOR is the defence of honest and reasonable mistake of fact available to an accused; Even the defence of honest and reasonable mistake is not available for absolute liability offence (but is available for strict liability offence)

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For absolute liability offences, the prosecution need only prove the physical element(s)/actus reus in order to make out a prima facie case;

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Common feature in regulatory offences (which are an increasingly large proportion of “criminal” law);

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Example: DPP (Vic) v Stanojlovic (2017) 53 VR 90; failure to display “P” plate on front of motor vehicle was an absolute liability element.

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DPP (Vic) v Stanojlovic (2017) 53 VR 90: Judge found nothing in the words of the statute or its subject matter that suggested that it ought to be characterized as strict liability offence. Judge also found that making the offence absolute might further encourage compliance.

Example of Application Physical elements/actus reus 1. Conduct a. Acts (eg directly breaching), omissions (eg failure to comply) or states of being that are prohibited by the law 2. Circumstance a. The context in which the accused’s conduct takes place 3. Consequence a. A particular result that is caused by the conduct of the accused E.g.: 10 Offence not to comply with Ministerial direction A person who – (a) Is subject to a direction under section 7, 8 or 9, and (b) Has notice of the direction, (Circumstance) must not, without reasonable excuse, fail to comply with the direction. (Conduct) This is a strict liability offence, because there is no need to prove mens rea. (accused presumed to have mens Reas, unless they raise the defence of an honest and reasonable mistake OF FACT – then it is for the prosecution to disprove that belief beyond reasonable doubt)

Fault elements/mens rea When interpreting the mens rea of an offence, we start with the idea that any particular statutory provision will require at least one of the state of mind to be proven by P beyond reasonable doubt. It is difficult to prove intention without a confession. So P usually have to prove it by inference – from a whole range of sources including witnesses accounts (whether someone planned beforehand etc.), circumstances throughout the event, evident of intent. 1. Intention a. Meaning to do a particular act (basic intent) or to bring about a particular consequence (specific intent) 2. Knowledge a. Awareness that circumstances exist or consequences follow 3. Recklessness a. Where an accused foresees the possibility that circumstances exist OR the consequences might follow and nevertheless engages in conduct

b. recklessness is tailored specifically to different kinds of criminal offences 4. Negligence a. A reasonable person in the position of the accused would have foreseen the consequences of their actions and taken reasonable steps to avoid them E.g. 18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged (Consequence), was done or omitted with reckless indifference to human life (Recklessness), or (alternate ways of proving mens rea) with intent to kill or inflict grievous bodily harm upon some person (Specific Intent), 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. (if you committing a crime (which will hv its own mens rea needed to be proven) punishable by imprisonment for 25+ yrs and someone died in the process, you will be taken to hv mens rea for MURDER) (b) Every other punishable homicide shall be taken to be manslaughter.

Question 1: Which of the following statements best describes the elements of the offence of damaging a protected place under Summary Offences Act 1988 (NSW) s 8 as it relates to Bert’s conduct? A person must not wilfully damage or deface any protected place. (a) Deface (conduct), wilfully (intent), and protected place (circumstance). (b) Deface (conduct), wilfully (intent), and property (circumstance). (c) Deface (conduct), wilfully (recklessness), and protected place (circumstance). (d) Deface (conduct), wilfully (intent), protected place (circumstance), specific intent re protected place (intent).

Question 2: Is Bert capable of being convicted an offence under Summary Offences Act 1988 (NSW) s 8? (a) Yes, if the prosecution proves beyond reasonable doubt that he knew that it was morally wrong to engage in the conduct that constitutes the physical element or elements of the offence; (b) No, because the common law conclusively presumes that a child under the age of 10 cannot commit a criminal offence; (c) No, because the Children (Criminal Proceedings) Act 1987 (NSW) s 5 conclusively presumes that a child under th...