LAWS1021 Crime and the Criminal Process Intent and Reckless Indifference... Constructive Murder... Unlawful act causing manslaughter (reckless

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1 LAWS1021 Crime and the Criminal Process Intent and Reckless Indifference... Constructive Murder... Unlawful act causing manslaughter (reckless indifference to human life) - involves reasonable man test... 4 Manslaughter by Criminal negligence... 4 Dangerous Driving... 5 Corporate Homicide... Assuming duties of care not ordinarily specified (criminal negligence)... Causation... Substantial and operating cause test... Medical negligence... Defences... Insanity... Substantial impairment - insanity... Defences and automatism... Automatism... Standard of the mind... The distinction between sane automatism and insane automatism.. Substantial Impairment... Infanticide... Intoxication and provocation... Provocation... The ordinary person test gravity and maturity...

2 Self-defence... The battered woman... Abortion... Assault... 5 Actus Reus immediacy.... Mens Rea... Aggravated Assaults... Assaults on victims of special status... Patterns of Victimisation... 6 Domestic Violence and Legal Change... Current domestic violence law... Research examining the effectiveness of AVOs... 6 Sexual Assault... Dishonest Acquisition... Larceny... Asportation: taking and carrying away... Intention to return property... Claim of right... Aggravated offences/ receiving and goods in custody... Goods in Custody (alternative prosecution)... Fraud offences... Causation... Complicity, Conspiracy and Association... Joint criminal enterprise... The presence requirement...

3 Withdrawing from a criminal enterprise... Extended joint criminal enterprise... Accessorial Liability... Conspiracy and Terrorism... The definition of conspiracy... Sentencing... Sentencing in NSW... Victim Impact Statements (s28)... Sentencing Methodologies and Principles... ALRC, Sentencing of Federal Offenders (2005)... Sentencing options... Fines... Intensive correction orders... Imprisonment... Life imprisonment... Sentencing Aboriginals...

4 Unlawful act causing manslaughter (reckless indifference to human life) - involves reasonable man test Wilson (1992) 174 CLR 313 W hit the deceased in the face causing to fall to the ground and hit his head. W s companion then went through his pockets and smashed his head on the ground. The deceased died from brain damage and the Crown case suggested that the death was most likely caused by the fall. W s companion was acquitted but W was convicted of manslaughter. W appealed. Judgment Australian jurisdictions are to adopt the Holzer test: for there to be unlawful manslaughter, the Crown must show that a reasonable man in the accused s position, performing the very act which the accused performed, would have realised that he was exposing another or others to an appreciable risk of serious injury. It is not sufficient to show there was a risk of some harm resulting, albeit not serious harm. Manslaughter by Criminal negligence Nydam [1977] VR 430 N had a friendship with the deceased woman for 5 years. The friendship deteriorated and N became depressed as the woman may be returning to England. On 3 occasions, he entered a hairdressing salon where the deceased was a customer to try to talk to her. On the 3 rd occasion he threw petrol on the woman saying you will pay for this. He lit his lighter and his hand caught alight and an explosion occurred. The deceased died instantly and an employee died some days later. N said that he only intended to threaten to kill himself to make her feel sorry for him. Judgment In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment. This test has a very high threshold before it can be met. Lavender [2005] HCA 37 The accused was as front end loader at a sand mine. The victim, aged 13, and 3 of his friends went to play in the sand one day. The accused decided to chase them away but as his vision was obscured by the bucket on the loader and there being lots of vegetation obscuring his view, ran over the victim causing fatal injuries. He was convicted of manslaughter. Judgment The test is an objective test not a subjective test because of the value this branch of this law places on human life. The reasonable person in this event is the person who possesses the same personal attributes as the accused, that is to say a person of the same, having the same experience and knowledge as the accused and the circumstances in which he found himself.

5 Dangerous Driving See s52a of the Crimes Act. Some offences include: - Intoxication. - Dangerous speeds to other persons. - Dangerous manner to other persons. - Aggravated dangerous driving occasioning death. - Dangerous driving occasioning grievous bodily harm. - Assault Civil and assault, in criminal law, are merged into the single category of assault. Assaults are thus put into 2 categories: - Common assaults - Aggravated assaults All common assaults are dealt with under s61 of the Crimes Act but are ordinarily dealt with summarily by a Local Court. More assault offences are detailed in the Crimes Act at: - S For the purposes of aggravated assault, injuries short of death are divided into 3 categories: 1. Actual bodily harm: Includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor and need not be permanent and must be more than merely transient and trifling (Donovan [1934] 2 KB 498). Furthermore, psychiatric injury may also be included but not merely emotional distress (Chan-Fook [1994] 2 All ER 552). 2. Grievous bodily harm: defined in s4. In their ordinary and natural meaning, they need no explanation and grievous means no more and no less than really serious (DPP v Smith [1961] AC 290). GBH doesn t require injuries be permanent or that the consequences of the injury are long lasting or life threatening, but that they be serious (Haoui [2008] NSWCCA 209). 3. Wounding: this requires an incision or puncture in the skin. Wounding is an injury involving the breaking or cutting of the interior layer of the skin, the breaking of the outer layer is not sufficient (Shepherd [2003] NSWCCA 351). Note: while minor injuries such as scratches are technically GBH s, they are generally dealt with as common assaults. In practice, courts will tend to diminish the practical significance of injuries. For Common Assault: The general requirements are much like that of civil assault: - That the actions of the accused were intended to induce fear of imminent harm, or were recklessly indifferent so as to do so, to the victim.

6 Patterns of Victimisation Hogg and Brown, Rethinking Law and Order The majority of violent crimes in Australia can be broken down into two groups: - Confrontational violence between males typically of young and marginal socioeconomic status. - Violence between family members and intimates. Some common causes/consequences of male-male violence are: - Alcohol - Marginal socioeconomic background - A need to prove masculinity (Hogg and Brown 1992) The vast majority of non-fatal incidents are not reported to police unless they result in serious injury. Half of serious assaults in NSW were due between young males: - 75% of victims were males, 85% of perpetrators were males of this group. - 20% took place around licensed premises in NSW and Victoria. Rarely did staff or managers of premises call the police during incidents and it was concluded that police were only called if there was a breach of the peace. Conversely, for police trouble areas were areas where the peace was breached rather than places where people got into fights. Family and intimates violence This often involves: - Power inequality - Emotional and material dependencies People caught in these relationships also have much fewer options to defuse the violence in comparison with confrontational violence. People in these relationships tend to be: - Unskilled workers - Unemployed - Do not have paid work. People in these relationships tend to deal with the violence for many years at a time before contacting authorities or seeking help. Research examining the effectiveness of AVOs NSW BOCSAR undertook studies of AVOS (Trimboli, Bonney 1997). They found for their sample: - Physical assault ceased for 96.7% of victims after one month and 100% after 3-6 months % reported no threats after one month and 85.3% reported no threats after six months % reported no stalking after 6 months % reported no verbal abuse after 6 months. - 90% of candidates considered that the AVO had produced benefits.

7 The researchers found that the weakest link in AVOs was the police crackdown on breaches. In 30 of the 41 breaches, police took no action. In another BOCSAR study (Young, Byles, Dobson 1996), researchers found that obtaining both police and court protection was the most effective in reducing domestic violence. J People 2005 More domestic assaults occurred on weekends and in the month of January. Rates of domestic assault are higher amongst Indigenous Australians and in areas where there is a higher percentage of public housing.

JURD7122/LAWS1022 Criminal Laws

JURD7122/LAWS1022 Criminal Laws MURDER... 5 ELEMENTS... 5 ACTUS REUS... 5 Voluntariness... 5 Ommission... 5 Causation... 5 MENS REA... 5 Heads of mens rea:... 5 Intention to kill... 5 Intention to inflict