CRIMINAL LAW. Problem Question Notes. PRINCIPLES... 1 Capacity Actus Reus Mens Rea... 4 Coincidence... 6!

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1 CRIMINAL LAW Problem Question Notes PRINCIPLES... 1 Capacity... 2 Actus Reus... 3 Mens Rea... 4 Coincidence... 6 OFFENCES... 7 Common Assault... 8 Actus Reus... 8 Mens Rea... 9 Consent to Harm Aggravated Assault Assaults Causing Particular Injuries Assaults Causing Disease Assaults with Further Specific Intent Assaults Using Offensive Weapons or Dangerous Substances Assaults on Victims with Special Status Domestic and Personal Violence Assaults Offences Relating to Public Order Sexual Assault Actus Reus Mens Rea Related Offences Reform Homicide I: Murder Actus Reus: Causation Mens Rea Constructive/Felony Murder Additional Notes Homicide II: Manslaughter Unlawful and Dangerous Act Manslaughter by Criminal Negligence Property Offences Actus Reus Mens Rea Coincidence Statutory Expansion of Larceny DEFENCES Self-Defence Genuine Belief Reasonable Response Excessive Self-Defence i

2 Necessity Nature of Emergency Accused s Belief Objective Standard Necessity and Abortion Duress Threat of Death or GBH Reasonable Apprehension Ordinary Person Test Limitations to the Defence Mental Illness Disease of the Mind Defect of Reason Nature and Quality of the Act Wrongness of the Act Special Verdict Disease of the Mind Tests Automatism Loss of Control External Cause No Prior Fault Provocation Provocative Circumstances Ordinary Person Test Subjective Loss of Control Substantial Impairment by Abnormality of Mind Abnormality of Mind Underlying Condition Substantial Impairment Intoxication Specific/Basic Distinction Relationship with Other Defences Intoxication and Murder Involuntary Intoxication Case Summaries 67 ii

3 [Principles]. Capacity + Actus Reus + Mens Rea Defences = Criminal Liability Criminal Liability 1. A person must have legal capacity to commit a criminal offence 2. That person must have committed the conduct elements of the offence, that is, the actus reus 3. The fault elements, or the mens rea, which form part of the offence, must have been present at the time of the actus reus; and 4. The absence of any defences of excuse or justification which would negate liability Burdens of Proof Legal Burden: o The prosecution must prove all the elements of a particular offence Beyond Reasonable Doubt the golden thread rule [Woolmington (1935)] o Exceptions are mental illness and substantial impairment of mind, burden rests with the defendant to prove on the balance of probabilities Evidentiary Burden: o Refers to one party s duty of producing sufficient evidence for a tribunal to call upon the other party to answer. o It is essentially involving the need to suggest a reasonable possibility 3

4 CAPACITY Presumption: people are sane, responsible for their own actions and know the difference between right and wrong. Three major exceptions: o Mental Illness: denies the D an ability to reason, and so the D is excused from criminal responsibility. The D exculpated because he did not know the nature and quality of the conduct, or that the conduct is wrong. Burden of proof on the defence to prove on the balance of probabilities that D is insane. Otherwise, if the D wants to raise other defence(s) there is an evidential burden on the D and P must rebut beyond reasonable doubt o Children: Inability to appreciate consequences of acts and lacking full appreciation of right and wrong. Children under 10 cannot commit a crime. The doctrine of doli incapax applies to children between the ages of ten and fourteen years. Doli incapax is a Latin term which means incapable of wrong. There is a rebuttable presumption: the prosecution needs to prove not only all the elements of an offence, but also that the child had the mental capacity to understand that what he of she was doing was wrong. o Involuntariness: where the act is not done in consciousness of the nature of the act and in exercise of a choice to do an act of that nature When the criminal act was accidental (provided there was no recklessness or criminal negligence this is really a lack of MR) When the criminal act was a reflex action [Ryan (1967); Murray (2002]. This is an act founded on an external cause rather than intention. As opposed to automatism, where a mental state is at issue, when volition is questioned, the barest levels of control are denied by the accused. o If the unwilled action occurs in the context of a dangerous situation that has been established by the defendant then voluntariness will be imputed by the voluntary creation of that situation e.g. pointing a loaded gun with the safety catch off When the conduct was performed whilst the accused was in a state of impaired consciousness [Jiminez (1992)] (see automatism) 4

5 ACTUS REUS Act Positive act, most common form of actus reus Sometimes offence definitions specify forbidden consequences (such as the death of a person, for homicide). For these offences, the prosecution must prove a link between the defendant s act and the prohibited consequences (causation) Omission Under common law tradition, a person could not be liable for failure to prevent harm, even where a person had the power to prevent that harm. In order for criminal liability for an omission to be established, a legal duty, and not just a moral duty, must be proven. Common Law Duties: General care and protection based on relationships: e.g. a duty owed by parents towards their young children [Russell (1933)] General care and protection which are voluntarily assumed towards a helpless person [Stone and Dobinson (1977); Taktak (1988)] Duties to carry out specific undertakings where failure to perform may be dangerous, with situations of employment featuring prominently o Employee s breach of duty to operate machinery of a mine resulted in a manslaughter conviction [Lowe (1850)] Duty to do something when you have created the danger or peril [Miller (1983)] Statutory Duties: Under statute, a provision may create liability for omissions e.g. criminalise the failure of polluters to notify the regulatory agency of pollution incidents) Status The prosecution does not have to prove any action on the part of the accused. Instead, criminal liability results from the fact that someone is found in a particular position [Larsonneur (1933)] For instance in NSW, status offences have included offences in the context of legislation responding to terrorism. It is an offence in NSW if a person is intentionally a member of an organisation which they know to be a terrorist organisation. 5

6 MENS REA General Intent: Irrelevant whether the intention was pre-meditated or formed a split-second before the act The D had a desire to do such a prohibited act or to bring about a result, of which he had knowledge of the probability of the occurrence of the consequences of that act [Stones (1456)] Intent, in one form, connotes a decision to bring about a situation so far as it is possible to do so, to bring about an act of a particular kind or a particular result. Such a decision implies a desire or wish to do such an act or to bring about such a result (Brennan J) [He Kaw Teh (1985)] Transferred Intent: o Where the accused has the intention to commit one criminal act but, due to the intervention of an additional factor such as lack of skill, commits the prohibited conduct against another unintended victim, then the intent (or malice) is transferred. o Does not operate where the actus reus and mens rea do not match e.g. throwing rock at person and smashing window [Pembleton (1874)] Ulterior intent: the intent must apply to its original act and the consequences. I.e. intention to wound and intention to cause grievous bodily harm. Basic intent: the prosecution has to prove that the accused acted voluntary, and that he or she intended to act. Recklessness: Recklessness occurs where D is aware of a risk that a prohibited outcome may occur and continues to act, regardless. The D has foresight of the possibility of the occurrence of consequences [Coleman (1990)] o For murder it is a foresight of probable consequences [Royall (1990)] Recklessness differs from intention, in that intention can be established where D wants a particular outcome or recognises that it is virtually certain. Recklessness differs from negligence, in that negligence is the failure to recognise an obvious risk, while recklessness is recognition of a risk but the decision to continue regardless. Wilful blindness is an evidentiary issue that may prove the defendant realised the possibility of prohibited outcome [Crabbe (1985)] it is not the offender s indifference to the consequences, but his knowledge that those consequences will probably occur [Crabbe (1985)] o Except sexual assault: not only where the accused adverts to the possibility of consent but ignores it, but also where the accused is so bent on gratification and indifferent to the rights of the victim as to ignore completely the requirements of consent. [Kitchener (1993)] Knowledge: May include knowledge of circumstances, e.g. lack of consent, age of victim or knowledge of consequences 6

7 Negligence: Negligent conduct is conduct that is far below the standard that reasonable persons would observe to avoid the commission of harm. Negligence in criminal law requires a high degree of negligence, sometimes denoted as criminal negligence or gross negligence. Fault component of negligent manslaughter is: an intent to do the act which, in fact, caused the death of the victim, but to do that act in circumstances where the doing of it involves a great falling short of the standard of care required of a reasonable man in the circumstances and a high degree of risk or likelihood of the occurrence of death or serious bodily harm if that standard of care was not observed, that is to say, such a falling short and such a risk as to warrant punishment under the criminal law [Nydam (1977)] Strict Mens rea is presumed unless the defendant can raise evidentiary burden that there was an honest and reasonable belief in an alternate set of facts that would take the behaviour beyond the realm of crime [He Kaw Teh (1985)] The availability of honest and reasonable mistake as an excuse distinguishes strict liability from absolute liability [Proudman v Dayman (1941)] The defence of honest and reasonable mistake of fact: o Reasonable grounds for belief o Honest/genuine belief Must have an affirmative belief in a mistaken set of facts rather than mere inadvertence to facts [State Rail Authority v Hunter District Water Board (1992)] Ignorance of the law does not afford any excuse for an act which would otherwise constitute an offence [Ostrowski v Palmer (2004)] o Alternative set o facts must take the actions of the accused beyond criminal liability Absolute Absolute liability offences require only the perpetration of the actus reus and exclude the defence of honest and reasonable mistake of fact. General defences such as necessity and duress are still available unless expressly excluded 7

8 COINCIDENCE For an offence to be committed, the prohibited act and the fault element must coincide. o 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 the death was one of those done with the necessary intent. [Meyers (1997)] Continuing Mens Rea In some contexts, the coincidence of actus reus and mens rea may not be subject of narrow or strict interpretation. There may be coincidence even if the intention preceded the act, for example where the accused thought that they were disposing of a body or concealing commission of an offence. [Thabo Meli (1954)] If mens rea existed at the time they commenced a series of acts, and there was no intervening act breaking the casual chain then the mens rea applies to the series of acts. Where the unlawful application of force and the eventual act causing death are parts of the same sequence of events, the same transaction, the fact that there is an appreciable interval of time between the two does not serve to exonerate the defendant from liability. That is certainly so where the appellant s subsequent actions which caused death, after the initial unlawful blow, are designed to conceal his commission of the original unlawful assault [Le Brun (1992)] Underlying the decisions is an assessment that we do not fully reflect the accused s level of culpability by looking at a snapshot taken at a particular point in time, rather than a video which presents the sequence of events leading up to this point. o PROBLEM: we need to be aware of the risks of over criminalisation in other contexts from too ready a rejection of the need for coincidence between actus reas and mens rea. Continuing Actus Reus Mens rea does not have to be present at the commencement of the act, but can be superimposed on a continuing actus reus. It cannot however change an actus reus which is complete, and in which mens rea was absent [Fagan (1962)] o In that case the court held that whether the driving onto the foot was accidental or intentional, the accused still knowingly, unnecessarily, and provocatively allowed his car to remain there after the battery had been identified. o The crucial question was whether the actus reus could be considered spent after the car came to rest on the foot, or whether it was a continuing act operating until the wheel was removed. 8

9 [Offences]. 1. Common Assault 2. Aggravated Assault 3. Sexual Assault 4. Homicide Murder 5. Homicide Manslaughter 6. Property Offences Larceny Approach: - Define elements - Establish burden of proof - Identify issues of fact for the jury and issues of law for the judge 9

10 COMMON ASSAULT Definition: provided in common law. Only the penalty is prescribed in statute s 61 Crimes Act 1900 (NSW): Whoever assaults a person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years Burden/Standard of Proof: Beyond Reasonable doubt burden on the prosecution to prove elements (also must prove that there was no consent if raised by defence) Types of Assault: a) Intentional or reckless infliction of unlawful force (battery) [Fagan v Metropolitan Police Cmr (1969); Venna (1976)] b) An intentional or reckless act causing the victim to apprehend the immediate infliction of unlawful force (psychic) [Darby v DPP (2004); Collins v Wilcock (1984)] Actus Reus Battery Assault: (1) Direct Must be direct and aimed at the victim or on object on which the victim is supported [Salisbury (1976); Haystead (2000)] Can be a continuous act so that an unintentional battery can become a crime where the accused intentionally maintains the physical force to the person [Fagan v Metropolitan Police Cmr (1969)] Clothing is so intimately connected with the person that to touch clothes is regarded as touching the person [Day (1845); Thomas (1985)] Spitting on another person is a battery [DPP v JWH (unreported 1997)] (2) Unlawful Not a battery if contact occurs within the ordinary daily contingencies of life [Collins v Wilcock (1984)] There is no requirement for it to be violent or that actual harm is caused. Mere touching is sufficient [Collins v Wilcock (1984)] Psychic Assault: (1) Positive Act Can be committed without touching [Rolfe (1952)] Cannot be an omission [Fagan v Metropolitan Police Cmr (1969)] The use of words may be sufficient [Knight (1988)] (2) State of Mind of Victim Victim must actually have an apprehension of imminent unlawful contact [Barton v Armstrong (1969); Macpherson v Beath (1975)] Must be aware of the accused s act [Pemble (1971); Lamb v Cotogno (1987)] 10

11 Victim does not have to necessarily be fearful [Brady v Schatzel (1911); Ryan v Khul (1979)] o Whether the victim is uncommonly strong willed, and as such not fearful, should have nothing to do with establishing assault Can be when A puts B in fear of C [Macpherson v Beath (1975)] It is not necessary that the threat is real or possible [Everingham (1949)] Victim s apprehension must be reasonable applying the objective reasonable person test [Barton v Armstrong (1969)] o Unless the accused knew of unusual timidity [MacPherson v Beath (1975)] (3) Imminence Not sufficient that the threat raises likelihood that violence may be inflicted at some future time. While it was not found in this case, a threat over the phone is capable of instilling fear of immediate violence [Knight (1988); Ireland; Burstow (1997)] Can be an assault where fear is of relatively immediate violence of a continuing nature during an unlawful imprisonment [Zanker v Vartzokas (1988)] Can be an assault where the threat is made upon non-compliance with a condition which the accused had no right to impose [Police v Greaves (1964)] o Where cab driver was threatened he would be stabbed if he came any closer. Also relevant where threat is in excess of self-defence [Rosza v Samuels (1969)] o Courts will consider the words of the threat to interpret whether there is any imminence [Tuberville v Savage (1669)] if it were not assize time I would not take such language Mens Rea Intention Relates to use of force (or creation of apprehension) rather than the resulting bodily harm Hostility is not required, however, hostile intent could convert what would not otherwise be a battery into a battery [Boughey (1986)] Recklessness Foresees likelihood of inflicting injury or fear and ignores risk [Vallance (1961)] Accused must subjectively foresee the unlawful contact/apprehension; mere inadvertence to the risk is insufficient [Macpherson v Beath (1975)] Standard for recklessness is possibility rather than probability o Where the crime is murder, the standard is probability [Coleman (1990)] In a fight between men reckless can be given its normal meaning in not caring whether harm occurred or not [Williams (1990)] 11

12 Consent to Harm As soon as the defence raises consent to harm, it must be proven beyond reasonably doubt that the victim did not, expressly or impliedly, consent to the assault [Clarence (1888)] An assault with consent is no assault at all [Bonora (1994)] Consent procured by fraud is not consent [Wooley v Fitzgerald (1969)] o Under criminal law, only fraud as to the nature of the act or the physical identity of the person could vitiate consent [Richerdson (1998)] Those who enter into a consensual fight are guilty of assault if they intend to inflict bodily harm [Coney (1882)] Prevailing test for whether consent is valid is social benefit [Brown (1994)] Exceptions: o Sport: A person does not consent to being injured in the course of a game by any act which is not done in legitimate pursuit of the objects of the game [Carr (unreported 1990); Stanley (1995)] Consent is valid in a professional boxing match [Pallante v Stadiums Pty Ltd (No 1) (1976)] o Medical examinations and operation are only valid where consent is expressly given or where emergency conditions make the procurement of consent impractical [Marion s Case (1991)] o Parents are entitled to use reasonable and moderate force to chastise their children ss 61AA Crimes Act 1900: Parents, or persons acting on behalf of parents, are able to use reasonable and moderate force (trivial and negligible force) to chastise their children. However, the level of force is confined to exclude force applies to the head or neck, or to any part of the body if the harm lasts more than a short period. 12