Criminal Law Exam Notes

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1 Criminal Law Exam Notes Contents LARCENY... Error! Bookmark not defined. Actus Reus... Error! Bookmark not defined. Taking & Carrying Away... Error! Bookmark not defined. Property Capable of Being Stolen... Error! Bookmark not defined. Property in Someone Else s Possession... Error! Bookmark not defined. Without Consent of the Person in Possession... Error! Bookmark not defined. Intent to Deprive Permanently... Error! Bookmark not defined. Without a Claim of Right Made in Good Faith... Error! Bookmark not defined. Fraudulently... Error! Bookmark not defined. Temporal Coincidence... Error! Bookmark not defined. Larceny by Finding... Error! Bookmark not defined. ASSAULT... Error! Bookmark not defined. Degree of Injury... Error! Bookmark not defined. Common Assault... Error! Bookmark not defined. Assault Occasioning Actual Bodily Harm... Error! Bookmark not defined. Reckless GBH or Wounding... Error! Bookmark not defined. Wounding/GBH with Intention to Inflict GBH... Error! Bookmark not defined. Actus Reus... Error! Bookmark not defined. Psychic Assault... Error! Bookmark not defined. Battery... Error! Bookmark not defined. Mens Rea... Error! Bookmark not defined. Intentional Assault... Error! Bookmark not defined. Reckless Assault... Error! Bookmark not defined. Negligence... Error! Bookmark not defined. SEXUAL ASSAULT... Error! Bookmark not defined. Acuts Reus... Error! Bookmark not defined. Sexual Assault... Error! Bookmark not defined. Absence of Consent... Error! Bookmark not defined. Intention... Error! Bookmark not defined. Recklessness... Error! Bookmark not defined. EXTENDING CRIMINAL LIABILTY PARTICIPATION & ATTEMPT... Error! Bookmark not defined.

2 Complicity... Error! Bookmark not defined. Doctrine of Innocent Agency... Error! Bookmark not defined. Accessories Before the Fact & Principals of the Second Degree... Error! Bookmark not defined. Actus Reus... Error! Bookmark not defined. Joint Criminal Enterprise... Error! Bookmark not defined. Doctrine of Common Purpose... Error! Bookmark not defined. Attempt... Error! Bookmark not defined. Actus Reus... Error! Bookmark not defined. DEFENCES... Error! Bookmark not defined. Insanity... Error! Bookmark not defined. Elements... Error! Bookmark not defined. Automatism... Error! Bookmark not defined. Sane and Insane Automatism... Error! Bookmark not defined. Intoxication... Error! Bookmark not defined. Burden of Proof... Error! Bookmark not defined. Self-induced v Involuntary Intoxication... Error! Bookmark not defined. Actus Reus... Error! Bookmark not defined. Mens Rea... Error! Bookmark not defined. Self-Defence... Error! Bookmark not defined. Duress... Error! Bookmark not defined. Elements... Error! Bookmark not defined. Necessity... Error! Bookmark not defined. Elements... Error! Bookmark not defined.

3 Homicide Homicide is the killing of a human being o Unlawful = killing not excused by law o Divided into manslaughter and murder Covered by NSW Crimes Act 1900 s 18 Manslaughter is divided into two further categories o Voluntary manslaughter = necessary mens rea is present but there are mitigating factors or partial defences (eg. provocation/sim) o Involuntary manslaughter = no necessary mens rea for murder but there is a lesser form of mens rea present Murder (s18(1)(a)) Actus Reus Voluntary act/omission and Causation Mens Rea Intent to kill or Intent to inflict GBH or Reckless indifference or Constructive murder Actus reus and mens rea at the same time Voluntary manslaughter A has M/R for murder Actus Reus Requisites Provocation (s23) Same as murder Provocative conduct. Objective test: (a) determine gravity of conduct, then (b) given gravity could it have caused an ordinary person with the minimum powers of self-control to have formed an intent to kill or inflict GBH on the deceased Actual loss of self-control (Stingel). Substantial Impairment (s23a) Same as murder Involuntary manslaughter A does not have M/R for murder At the time of the act or omission, A was suffering from an abnormality of mind. Abnormality of mind arose from an underlying condition that is a legally recognised cause. Impairment was so substantial as to warrant liability for murder being reduced to manslaughter. Unlawful & dangerous act (defined by common law) Negligent (defined by common law and can be committed by way of a positive act or omission) Actus Reus Voluntary act (not omission) and Causation Same as murder Requisites The act must be unlawful (breach of criminal law) Dangerous (reasonable person would realise they were exposing another to an appreciable risk of serious injury) (Wilson). A committed an act or A has duty of care to the V (omission). Standard of care A has not adverted to the risk of death or GBH in circumstances where a reasonable person would have. Breach of duty: there was a great falling short of the standard of care to warrant criminal punishment (Nydam)

4 Causation Link between the act/omission and the prohibited death Usually not an issue straightforward proof Problems = multiple causes of death 1. Tests from Royall v R Basic test = substantial and operating cause test = focuses on whether the act of A was a operating/substantial cause of the death = vague/not definitive Other tests = natural consequence test (Hallett), reasonable foresight of the consequences test, novus actus interveniens test = all have problems Chain of Causation difficulties as to whether chain is broken 1. Where there is novus actus interveniens (new or intervening act/event) then causal chain between the accused and death of V is broken 2. R v Hallett = drowning after assault natural consequence test does not break 3. Royall v R = jumped out window after assault was no NAI no break s/o cause test 4. R v Smith = bad medical treatment only breaks if it is more substantial than first cause Types of causation 1. Factual Causation must be made out in every case But for test 2. Legal Causation Common sense Substantial and operating cause Both of these first two are approved of in Royall note that both require a great deal of discretion from the jury Note: HCA still has not settled on one single test (Royall best authority) Reasonable foreseeability Natural consequence Human Beings Unborn Babies 1. s 20 Crimes Act: child shall be held to have been born alive if it has breathed, and has been wholly born into the world, whether it has had independent circulation or not 2. R v West (1848)/R v Kwok Ming (1963) = if a child is injured in the womb or in birth, and is born alive but dies of injuries thereafter, homicide has been committed 3. R v Hutty (1953) = legally a person is not in being until he or she is fully born in a living state. It has a separate and independent existence in the sense that it does not derive its power of living from its mother 4. R v Iby (2005) applied Hutty = found that no single test for determining beginning of human life and no consensus on legal status of a foetus in the womb 5. Abortion differs between states debate (no successful prosecutions in NSW for 30yrs)

5 Murder Covered by s 18 (1)(a) of the Crimes Act 1900 (reflects common law murder) ELEMENTS Actus Reus A person was killed Voluntary act or omission Prosecution is entitled to presume accused acted voluntarily in the absence of contrary evidence (R v Falconer) and there is nothing on the facts to suggest that the acts were nothing but willed and conscious (R v Ryan) Act or omission must cause death (if omission a duty to act must be established as in Taber) ELEMENTS Mens Rea Act or omission must have been done with: 1. Reckless indifference to human life (subjective standard accused recognising that death was probable) OR 2. Intent to Kill OR 3. Intent to commit grievous bodily harm OR 4. While accused/accomplice was committing another crime = Constructive Murder o 25 year foundational offence o Voluntary act causing death (no link b/w offence and death as in Munro) o In attempting/during/immediately after the foundation offence Temporal Coincidence Some sort of temporal coincidence between actus reus and mens rea is needed (Thabo Meli) Complex question 1. Courts have created concept that actus reus continues through time 2. Issues as to whether series of acts were part of chain is question of fact for jury Related to chain of causation However, some cases have got around this requirement by perceiving a series of incidents as forming a continuing act (Fagan v Metropolitan Police Commissioner 1969) Omissions Possible to commit murder or manslaughter by omission (failure to act) Elements (R v Taktak): 1. Legally recognised duty to act found in CL/statute 2. Standard of care A did not avert risk of death/gbh to V reasonable person test 3. Breach great falling short of duty warranting criminal punishment (Nydam) or was indifferent to the risk (Taktak) 4. Omission caused the death of V Reckless Indifference A was indifferent to whether or not his act took that life and he committed the act with such an attitude of mind to its result that you should consider it to be reckless indifference (R v Royall) Differs from statute law 1. S 18 departs from the common law in that it requires foresight of the probability of death; foresight of the probability of grievous bodily harm is not enough

6 Cases Royall v R (1991) = applicant convicted of murder of woman who fell from 6 th floor R v Jordan (1956) = V stabbed, wound almost healed given antibiotics but allergic then given antibiotics again doctor guilty 1. Abnormal treatment can be seen as a supervening event to break chain 2. ONLY CASE WHERE DOCTOR HAS BROKEN CHAIN OF CAUSATION R v Smith (1959) = accused stabbed victim on way to medical station was dropped twice given oxygen instead of blood transfusion 1. wound is operating and substantial cause of death even if another cause is operating 2. Second cause must be so overwhelming to make the first cause part of the history R v Blaue (1975) = accused stabbed victim but she didn t receive blood transfusion because JW 1. Egg shell skull principle = take victim as you find them R v Evans/Gardiner (1976) = accused stabbed victim had successful bowel resection but died 11 months later from stricture not an uncommon complication in such an operation R v Dalby (1982) = accused supplied drugs to addict who overdosed R v Hallett (1969) = accused knocked victim unconscious on beach, drowned as tide came in More Cases R v Grimes and Lee = man jumped out train window after being robbed further threat involved key concept is A s conduct creates in mind of V a reasonable apprehension of danger as a result of which V takes steps to escape leading to death no requirement that steps taken to escape are reasonable R v Paggett = not necessary that an act/omission be the sole/main cause of a wrong R v Roberts (1971) = foresight principle (much like the natural consequence test) = was the result something the A could have reasonably foreseen as a result of their actions confirmed in Mackie R v Mackie (1973) = boy died after falling down stairs to avoid A who ill treated him in the past attempt to escape must be seen as natural consequence of an unlawful act Arulthilakan v The Queen (2003) = endorsed language of the substantial cause R v Malcherek (1981) = man stabbed wife she went to hospital heart complications led to surgery then brain damage then life support machine permanent brain damage and machine turned off found disconnection of life support did not break chain of causation between affliction of original injury and death Depression 1. Ritchie and Cavanough = depression may be the basis of an abnormality arising from an underlying condition but it does not necessarily follow that D was substantially impaired at the time they killed to warrant reducing murder to manslaughter 2. Troja (unreported, NSW, CCA, 16 July, 1991) = A was charged with murder of her estranged husband who she shot, was able to argue SIM in combination with provocation. TJ noted her depressive illness interfered with her clarity of thought and impaired her ability to cope with her feelings of rejection, anxiety and poor self-image.

LAW1114: CRIMINAL LAW EXAM NOTES

LAW1114: CRIMINAL LAW EXAM NOTES CONTENTS TOPIC COMMON OTHER 1 S OF A CRIME 2 NON- FATAL, NON- SEXUAL AGAINST THE PERSON 3 SEXUAL 4 HOMICIDE 5 DEFENCES AR (p3) - Positive, voluntary act (PVA) - Causation