Criminal Law A Flowchart

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Stewart Rodgers
6 years ago
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1 Part 1: Has A Crime Been Committed Actus Reas (Physical Element of Crime): Criminal Law A Flowchart 1. Automatism and Voluntariness a. Was the act done by a sane mind and was voluntary? i. Accidents count as involuntary ii. Acts done by unsound mind can still be voluntary 2. Causation (Intervening Acts) a. Ordinary operation of natural forces not an IA only freak accidents or acts of God (R v Hallet) b. No IA if original wound is still operating and substantial cause (R v Smith) c. Police (and possibly civilians) acting in self defence do not count as IA (R v Pagett) d. Poor medical treatment/third party acts not IA unless palpably wrong or of such gross negligence (R v Evans and Gardiner, R v Jordan) e. Medical removal of life support not IA if victim declared clinically dead (R v Malcharek, R v Steel) f. Acts done by the victim for self preservation (including extreme lengths to escape) is not an IA (Royall v R) g. Victim s own suicide is not an IA (Stephenson v State) h. Refusal/failure of victim to take medical advice; victim has condition unknown to Defendant is not an IA; thin skull rule (R v Blaue) 3. Omission a. No liability for failure to act, unless Defendant was under legal duty to take positive action b. Duty can arise out of certain situations such as statute or relationship with victim Mens Rea (Mental Element of Crime): 1. Intention a. The Defendant s aim or purpose b. Only requires intention; does not require expectation c. If intention is to cause specific injury, and a different injury is acquired, still treated as satisfying intention criteria d. If an outcome arises as a virtual certainty, but is not direct aim, still counts as intention

2 2. Recklessness a. Foresight of an unjustified risk/foresight of probability of harm 3. Negligence a. Failure to comply with the standard of care of an ordinary reasonable person. 4. Contemporaneousness/Concurrence a. No criminal liability unless AR and MR coincide b. AR and MR need not both begin at the same time, as long as they were both present at a point in time continuing act theory (Fagan v Metropolitan Police Commissioner) c. Individual AR acts can be analysed as a single transaction with MR present at the beginning or during (Thabo Meli v R) Part 1: Assault and Battery Battery Assault Definition Unlawful application of force to the body of the victim Causing the victim to apprehend immediate and unlawful personal violence Mens Rea Intention or Recklessness Intention or Recklessness 1. Actus Reas a. Non Physical Interference i. Omission is not sufficient; silent caller may still be guilty of assault (R v Ireland) ii. The fear of apprehension of violence is necessary for it to be assault (Ryan v Kuhl) iii. Conditional threats can still constitute assault, but depends on the nature of the conditional threat (e.g. killing as opposed to scratching car) (Rozsa v Samuels) iv. Intention to strike or not can be inferred from words and actions (Tuberville v Savage) b. Physical Interference i. Mere touching is enough to constitute assault or battery (Collins v Wilcock)

3 ii. Can be done through indirect interference (e.g. with a car or other object) (Fagan v Metropolitan Police Commissioner) 2. Mens Rea a. Intention/Recklessness i. Foresight of probability of harm (R v Campbell) ii. Foresight of POSSIBILITY of harm this test is now more preferred for common law assault (R v Coleman) Part 2: Offences Against Person Under Crimes Act Physical Elements: Injury: S.15 of Crimes Act : An injury is a) Physical Injury i. Includes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function (s15 CA) b) Harm to Mental Health i. Includes psychological harm BUT DOES NOT INCLUDE an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm. whether temporary or permanent S.18 of the CA: A person who, without lawful excuse, intentionally or recklessly causes injury to another person is guilty of an indictable offence. a) If the injury was caused intentionally level 5 imprisonment (10 years maximum) b) If the injury was caused recklessly Level 6 imprisonment (5 years maximum) Serious Injury: S.15 of the CA: Means a) An injury (including the cumulative effects of more than one injury) that i. Endangers life; or ii. Is substantial and protracted; or

4 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. Woman means a female person of any age. Can be caused in three different ways: a) S.16: Intentional Level 3 Imprisonment (20 years maximum) b) S.17: Reckless Level 4 Imprisonment (15 years maximum) c) S.24: Negligence Level 5 Imprisonment (10 years maximum) Threat to Kill/Inflict Serious Injury: S.20: A person who, without lawful excuse, makes to another person a threat to kill that other person or any other person is guilty of an indictable offence Level 5 Imprisonment (10 years maximum) S.21: A person who, without lawful excuse makes to another person a threat to inflict serious injury on that person or any other persons is guilty of an indictable offence Level 6 Imprisonment (5 years maximum) *Both of these, stated in s20 and s21, are subject to the fact that the offender must be: 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 Threats to kill can be by word or conduct or both objective Does not need to be made to the victim there is no requirement for apprehension Fault Elements: Intention: Simple objective test based on the facts to determine whether the offender intended the offence or not. a) Intention must be to cause serious injury/injury NOT merely to do the act that causes serious injury/injury e.g. intend to break nose as opposed to just intending to punch in face (R v Westaway)

5 Recklessness: Adopts the test in Campbell such that: a) S.17 foresight that serious injury will probably occur b) S.18 foresight that injury will probably occur c) S.20(b) and S.21(b) foresight that the victim would probably fear the threat to kill/threat to inflict serious injury would be carried out Negligence: Adopts the stance in Nydam case: Such a great falling short of the standard of care which a reasonable person would have exercised, and which involved such a high risk that [serious injury] would follow that the doing of the act merits criminal punishment Other Offences Against Person: Gross Violence Offences: s.15a and s.15b: A person must not, without lawful excuse, intentionally/recklessly cause serious injury to another person in circumstances of gross violence Level 3 Imprisonment (20 years maximum) / Level 4 Imprisonment (15 years maximum) Intentionally Causing a Very Serious Disease: s.19a: A person who, without lawful excuse, intentionally causes another person to be infected with a very serious disease is guilty of an indictable offence Level 2 Imprisonment (25 years maximum) Very serious disease means HIV. Endangerment: s.22: 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 Imprisonment (10 years maximum) * Anticipated future conduct is not sufficient the danger must be real at the time the conduct was engaged in (R v Abdul Rasool)

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