~~~~~ Week 6. Element of a Crime

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2 ~~~~~ Week 6 Element of a Crime PHYSICAL ELEMENTS OF A CRIME (AR) Physical elements may refer to: o A specified form of conduct such as: An act; An omission; or There is a CL duty not to cause harm to others (Nydam). An omission may give rise to criminal liability where a duty arises at common law or imposed by statute. As per Lord Diplock in R v Miller [1983] AC, there is criminal liability where one fails to take measures that lie within one s power to counteract a danger that one has oneself produced. A state of affairs; Eg. must be in a state of drunkenness for some crimes. o Conduct which occurs in specified circumstances (rape/theft); or o The results or consequences of conduct (murder/assault). AR is different for each crime. It can involve a single or multiple components. The components may be defined in common law of by statute. There are two threshold requirements to establish AR: o The commission of a voluntary act; and o The causal link between act and the result. AR Requirement 1: Voluntariness

3 An act is voluntary if it is subject to control and direction of A Ryan ; Ugle. There is an evidentiary presumption that acts are done voluntarily. If presumption displaced, P must BRD prove it was voluntary (Falconer). No need to have appreciated the dangerousness of D s act for their conduct to be voluntary (Farquharson). A series of voluntary acts prior to a purportedly involuntary act may render an act voluntary (Ryan). I.e. even if gun is knocked and discharges, A still knew gun was loaded, conscious etc. For an act to be voluntary, A does not need to have intended to attain the result caused by doing that act it is sufficient that that person was conscious of the nature of the act committed and chose to do the act of that nature (Ugle). Level of A s awareness and understanding of their actions is a factor to be taken into account when determining whether that person acted voluntary Ryan. Courts will strive to find that an act is voluntary Jiminez v R [1992] HCA. Three ways an act considered involuntary: o When criminal act was accidental; o When criminal act was caused by a reflexive action; or o When the conduct was performed whilst A was in state of automatism Ugle v R. It is incorrect to treat duress as negativing voluntariness. Ugle v R (2002) CLR F: A tried for murder. Deceased died form knife wound. A claimed deceased attacked him and that he fended A off in self-defence. He said he did not realise V was stabbed and argued involuntary act/automatism. I: Was act involuntary? H (Gummow v Hayne JJ): To establish guilt, an act must be willed or voluntary.

4 Actions of A are presumed to be voluntary actions of a conscious mind. Whether or not an act is voluntary or not is a question for the jury (Gaudron J in Murray v R (2002) CLR). R v Falconer (1990) CLR F: D suffered 30 years of abuse at hands of husband. She killed him after another night of sexual abuse. According to D, there was a complete blank in her memory until she woke up with gun next to her. H (Toohey J): A person will not be criminally responsibly for an act or omission which occurred independently of the will. There is a distinction between actions of a sound mind and that of a diseased mind. Action of an unsound mind are still voluntary. They are just governed by rules of insanity defence. Actions of a sound mind affected by an external psychological blow are not voluntary acts. Ryan v R (1967) CLR F: D went to rob service station, had finger on trigger it was pulled and V died. H (Barwick CJ): If pressing trigger was identified as an act causing death, question was whether D willed that act and intended to kill or inflict serious injury or whether it was an unwilled reflex movement. If, however, presentation of gun was act causing death, question was whether D knew the involuntary discharge was probable. P must prove that A voluntarily pulled trigger, even though there was evidence he had presented the loaded gun in course of robbery. The fact that a person s thought processes were affected by a mental illness does not mean that he or she acted involuntarily. There is a distinction between an unwilled act and a willed act that is the product of a diseased mind. H (Windeyer J): An act is not to be treated as involuntary simply because the mind worked quickly and impulsively. It was a voluntary act. DPP v Farquharson [2009]

5 F: Father has coughing fit and drives kids into lake. H: Driving when very tired was the voluntary act, not actually falling asleep at then wheel and then killing someone. Thus it was voluntary. AR Requirement 2: Causation Result crime: o It is the result/outcome of A s actions that is punished. Conduct crime: o It is D s conduct that is punished, regardless of the consequences. Causation if a question of fact for jury, and while they are instructed as to legal requirements of causation, they are expected to apply common sense in determining whether A s conduct caused V s death. There are four tests for causation, but no one binding test: (Royall) o The reasonable foreseeability test; o The substantial cause test; (use for chain of events cases) o The natural consequence test; and o The but for test/common sense test. But for test was rejected by court in Arulthilakan v Queen because court found it brought with it the danger of indicating that a negligible causal relationship will suffice. o Start with a common sense causation test then go for legal one. All tests are determined objectively. However intention may be relevant sometimes: such as where someone uses another s phobia to cause harm. A person can be criminally liable for something that has multiple causes even if they were not responsible for all those causes. Policy behind causation All cultures and disciplines have their own idea of causation (eg. medical cause of death is different from legal meaning). Causation Test 1: The reasonable foreseeability test

6 This test involves examining whether consequences of A s conduct were reasonably foreseeable in an objective light. o In Royall, court said while causation and foreseeability are closely connected, juries should not be direct in terms of foreseeability because of risks of confusion in foreseeability as an objective standard and as a subjective state of mind. Causation Test 2: The substantial cause test Whether an act or series of acts consciously performed by A is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event R v Hallett. There may be several causes of death, but A s conduct must be substantial cause Royall. R v Hallett [1969] SASR F: A was convicted of murder. A beat V unconscious and left him on a beach. He then drowned when tide came in. A argued he did not drown V but it was nature that caused his death. He had hit V because B was making homosexual advances towards him. I: Was chain of causation broken? [NO] H: If at time of death the original violence was still an operating cause and a substantial cause, the death could be said to be the result of this even if some other cause, such as the action of the water, was still operating and that only if it could be said that the original violence was merely the setting in which the action of the sea operated, could it be said that the death did not result from that violence. It does not matter on the question of causation whether or not A, after the commission of his act fails to appreciate or takes unavailing steps to avoid its probable consequences or mistakenly thinks he has taken such steps. Only if V

7 consciously entered water would it be arguable there was an intervening act. Chain would be broken if V were left in safe position or an unexpected tidal wave hit. Action of sea is not intervening act. The death by drowning postulate that V was still unconscious from violence used by A when he was consumed by the sea. Therefore the violence which preceded the unconsciousness was still operational. Principle Chain of causation cannot be broken by A s omissions to take further measures for safety of V, even if such omissions were contrary to his original intention. Causation Test 3: The natural consequence test This test may apply to situations where V has contributed to his own death by seeking to escape A (Royall). Royall v R (1991) CLR F: V died when she fell from bathroom window. Crown contended A murdered V in one of three ways: (1) A pushed her out, (2) A physically attacked her and in retreating she fell or (3) that, immediately before fall, V killed herself thinking that if she remained she would be subjected to life-threatening violence. A argued she fell due to unconsciousness. I: Was there an intervening act? [NO] H (Mason CJ): Where conduct of A induces in V a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that V would seek to escape and V is injured in course of escaping, the injury is caused by A s conduct. Acts of self-preservation in face of violence which results in death of V, does not negative causal connection between violence and death. Court referred to natural consequence test as a test which poses the question whether V s act was something that could reasonably have been foreseen as the consequence of what A was saying or dong R v Roberts (1971).

8 EXAMPLES OF NOVUS ACTUS INTERVENIENS The acts of the victim There are a number of ways acts of V can break chain of causation: o Acts of god (R v Hallett); o Acts of a third party or medical intervention (R v Pagett ; R v Gardiner ; R v Malcharek & R v Steel); o Acts of escape by V (Royall v R ; Stephenson); o Acts of V generally (Blaue ; Bingapore). R v Blaue [1975] UK F: V was stabbed by D. V was a Jehovah s witness and refused a blood transfusion. H: V s refusal of a blood transfusion was not an independent cause of death and did not break chain. This is the egg-shell-skull principle. A cannot say that V s religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. R v Bingapore (1974) F: Deceased had head wound, went to hospital and doctor said he should stay the night. V disregarded this and went home, came back in ambulance that night and died next day. H: No break of causation chain. If a victim acts in a way that may have contributed to their own death, that action will not be found to break the chain, as the original injury will still be operating. Stephenson v State (1932) F: A raped V brutally and dumped her home. She took poison pill and died. V died partly from poisoning and partly from injuries sustained in rape. A argued V s death was caused by intervening act of a responsible person, V, taking the