10: Dishonest Acquisition

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1 WEEK (week beginning Monday) 1 (28 July) 1 2 (4 August) 3 CLASS CHAPTER TOPIC PAGE NOS. 2 5: Homicide 4 3 (11 August) 5 4 (18 August) 7 6 6: Defences 8 Introduction, (some classes may view a video and/or discuss some of the issues to be covered in class 2). 5.1-Patterns of Homicide; 5.2-An Atypical or Stereotypical Offence 5.3- The Legal Framework; 5.4-Intent and Reckless Indifference 5.5-Constructive Murder; 5.6- Manslaughter by Unlawful Act; 5.7- Manslaughter by Criminal Negligence; 5.8-Corporate Homicide; 5.9- Homicide by Omission Actus Reus: Causation; Medical Treatment; 5.12 Euthanasia. 6.1-Thinking about Defences; 6.2-The Insanity Defence. 6.3-Automatism; 6.4-The Defence of Substantial Impairment; 6.5- Infanticide 6.6-Intoxication; 6.7-Provocation. No reading & additional readings 5 (25 August) Provocation (contd.) & additional readings 10 6 (1 September) 11 7 (8 September) Assault 14 8 (15 September) 15 10: Dishonest Acquisition ESSAY DUE 4 PM TUESDAY 16 SEPTEMBER Self-defence; Necessity (in the context of abortion only) Revision of defences or problem question; 6.11 Conclusions 7.1-Assault; 7.2-The Elements of Assault; 7.3-Consent to Harm; 7.4- Acceptable Violence 7.5-Aggravated Assault; 7.6-Patterns of Victimisation; 7.7-Domestic Violence and Legal Change. 7.8-Sexual Assault; 7.9-Sexual Assault: Actus Reus; 7.10-Sexual Assault: The Mental Element; 7.11-Indecent Assault and Act of Indecency; 10 1-Introduction; 10.2 General Concepts and Issues; 10.3 Larceny up to Claim of right 10.5 Aggravated offences; Receiving and Goods in Custody; ; ; (22 September) READING WEEK NO CLASSES

2 MID-SEMESTER BREAK NO CLASSES WEEK BEGINNING 29 SEPTEMBER 10 (6 October) PUBLIC HOLIDAY MONDAY 6 OCTOBER NO CLASSES MONDAY 6 AND TUESDAY 7 OCTOBER (13 October) 18 11: Extending Criminal Liability 10.8 General Fraud Offences; revision or problem question Introduction; 11.2 Complicity Accessorial Liability (20 October) Conspiracy Terrorism-related offences Sentencing ALRC up to and including Purposes of Sentencing; Victim impact statements;12.3- Confining Judicial Discretion up to and including Guideline judgments; Standard non-parole periods ; ; ; (& Muldrock) 13 (27 October) Sentencing Methodologies and Principles; The limits of punishment; The overrepresentation of Aboriginal people; Sentencing Aboriginal offenders Revision Class ; ;

3 CRIMINAL LAW CLASS ONE - HOMICIDE 2 5: Homicide 5.1-Patterns of Homicide; 5.2-An Atypical or Stereotypical Offence 5.3- The Legal Framework; 5.4-Intent and Reckless Indifference CAUSES OF DEATH AND HOMICIDE RATES STUDY BY A.WALLACE Relationship of victim to offender. Does the law adequately deal with the relationship between the victim and the offender perhaps with the partial defence of provocation which reduces murder to manslaughter. Homicide is a crime that is socially, historically and culturally determined. Rather than the random action of deranged or pathological individuals Homicide comprises a variety of offenders and victims in different social settings. These are often socially directed does this mean that social problems will resolve homicide problems. Homicide in NSW is largely interpersonal in nature, rather than instrumental or ideological. Majority of interpersonal killings involved intimates. The family was clearly the most common context for violence. 10% of males were killed by an intimate partner, compared with over half of female victims. 38% of victims were killed by a family member. Homicide patterns reflect cultural norms. For example, the socialising patterns of males Physical violence on children Relationships between men and women Homicide is spontaneous rather than premeditated crime. Majority of homicides involved people responding or reacting to situations in a relatively unpremeditated manner. Homicide offenders exhibit a wide range of moral culpability. Considerations force us to re-examine stereotyped views of murderers in which variations in culpability pass unexamined. Only 2% used firearms

4 Murder and manslaughter are not only atypical causes of death, but also as criminal offences. In 2008, 34 people were convicted and sentenced for murder in NSW and 85 for manslaughter. NATIONAL HOMICIDE MONITORING PROGRAM (NHMP)-AUSTRALIAN INSTITUTE OF CRIMINOLOGY (AIC) SECTION 18 CRIMES ACT NSW S 18. (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. S 18 (2)(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only. INTENTION TO KILL Conscious purpose, decision, not desire Subjective test ATTEMPTED MURDER Requires proof of an actual intent to kill. RECKLESS INDIFFERENCE TO HUMAN LIFE Probability or possibility Wilson (1992) King (2003)

5 Where the foetus does not survive an attack, this still constitutes grievous bodily harm to the pregnant woman even where no other harm is caused to her. Thus someone who kills a pregnant woman attempting to kill the foetus will be guilty of murder. Iby (2005) Born alive any sign of life after delivery satisfies born alive rule. Solomon (1980) To prove murder it is not adequate in NSW to prove any lesser sort of reckless indifference, such as indifference as to whether the deceased or some other person may have been injured. Crabbe (1985) Facts: Drunk respondent drove the vehicle through the wall of a pub and into the bar; as a result five persons died and many were injured. The respondent did nothing to assist the injured but left the motel. Issue: Whether the foresight of death or grievous bodily harm needs to be knowledge of probability or possibility. Held: If a person who without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results. Even if offender wishes harm not be caused if knowledge of act is probable then guilty. Boughey 1986 Likely chance of death means a probable chance of death. Likely not a misdirection. Annakin (1988) Might well cause death or death might well result was a misdirection it only means it could happen.

6 Royall ) Foresight of grievous bodily harm is not sufficient mens rea for murder. A defendant who is recklessly indifferent to serious bodily harm and not to death itself will be guilty of manslaughter rather than murder. Prosecution has to prove that the accused foresaw the possibility of death also applies to reckless indifference to human life under s 18. 2) Provided one of the mental states required for murder was present, and the test for causation was satisfied it does not matter that the accused did not intend the precise way in which the death actually occurred. E.g. if the accused intended to kill or inflict grievous bodily harm upon the deceased by striking her with an ashtray, he was still guilty of her murder if, as a result of a well-founded apprehension of physical harm, she jumped to her death from a window in attempting to escape.

7 CRIMINAL LAWS CLASS TWO: CONSTRUCTIVE MURDER: 2 (4 August) Constructive Murder; 5.6- Manslaughter by Unlawful Act; 5.7- Manslaughter by Criminal Negligence; S 18 (1) (A) Given the literal words of the act many situations can be taken to be murder. The case law clarifies this. When does the guilty mind have to occur? Ryan v R (1967) No actus reus really the only legal argument available because with constructive murder strict liability don t have to prove mens rea. Barwick the act of wounding did not occur upon pulling the trigger, it was the act of walking through the service station with loaded gun. Relevant conduct causing death had occurred at an earlier point in time. The guilty mind does not need to coincide with the final act, but with the act substantially causing death. Mraz v R (1955): If the acts were done in furtherance or associated with the act -> can be constructive. The death that occurs must be in furtherance or associated with the act for it to be constructive. Munro (1981): Do you need to prove this causation between the felony and the death all you need to show is that it was an attempt, during or immediately after. The normal test of causation is greatly watered down. Taking Mraz and Munro constructive murder has a wider ambit because there is no causation test, but it is qualified because after Mraz it has to at least be in furtherance or associated. There needs to be some connection, but not strictly causation. TIME DIMENSION:WHAT DOES IMMEDIATELY AFTER MEAN? R v Elliot & Hitchins [1983] Lengthy period of time will be satisfied by s 18 (1) (a) if the act is integral that is, part of one act or plan, even if that plan has different stages. If, however there are two separate events then 45 minutes probably too long.

8 FOUR ELEMENTS OF MURDER 1. Intention to kill a. conscious object, purpose or decision b. foresight of certainty (very difficult to prove) 2. Intent to inflict grievous bodily harm a. The accused must foresee as a certainty that the person would suffer grievous bodily harm. b. s 4 Crimes Act 1900 (NSW) defines GBH very serious harm 3. Reckless Indifference to human life a. Probability (Crab) accused must foresee probability that the person will die (Soloman) Must be death. b. Subjective test what did the accused, him or herself see. c. Willful blindness -> Superfluous concept here. Probability test is sufficient. d. Reckless indifference to gbh or life? Must be to life. e. Indifference? Superfluous. f. Distinction b/w this head and manslaughter fuzzy? 4. Constructive (felony) murder a. Foundational crime + Incidental crime. Must be a certain type of crime. (What types?) b. How close a connection? c. Causation? Don t need to prove. d. Time dimension. Must be immediately after, but given right conditions quite fluid. Elliot. MANSLAUGHTER BY UNLAWFUL ACT Wilson (1992) 174 CLR 313 Unlawful act must be such that a reasonable person in D s position would have realised that the act carried with it an appreciable risk of serious injury to the deceased (Wilson). (Lower level of injury) Objective test. Reasonable person test. The only purely subjective import you can have is the age (Ty) -> only relevant if the accused is very young. Why change from the test in R v Holzer [1968] now complex directions to jury. In removing really serious harm Cato [1976] 1 WLR 110 Administration of a drug is an unlawful act -> if you help someone administer drugs in concert, with consent this is sufficient to be an unlawful act for Manslaughter. Quoc Cao Gave clean needle -> complicity in self-administration of the heroin. Fulfills the definition that the reasonable person would have realised that the act carried with it an appreciable risk of serious injury to the deceased (Wilson test). Seems out of step.

9 Wilhelm The word causing her to take would mean that he stood in a position of authority or control over her so that he overbore her will. CRIMINAL NEGLIGENCE MANSLAUGHTER: Act done in circumstances which involve 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 GBH would follow that the doing of the act merited criminal punishment. (Nydam) Reasonable person -> slight mental incapacity is not taken into account. Lavender defence of honest and reasonable mistake of fact is not available. BUT it is the reasonable person that has the characteristics of D with knowledge of the surrounding circumstances + ordinary fortitude of strength of mind which a reas person would have Lavender. To be guilty of criminal negligence must be a very high wicked level of negligence. Criticism objective test what if people cannot reach the standard of the reasonable man -> the person that does not have the capacity to reach the standard of the reasonable man. Problem question two -> the difference is that his will was overborne due to his lack of capacity.

10 CRIMINAL LAWS - CLASS 4 - CORPORATE HOMICIDE Corporate Homicide; 5.9- Homicide by Omission POLICY: Recent offence 20 th century o More attention in the Ford Pinto case onto the injuries and deaths and burn victims and less attention to the consumer issue of product defect. Slapper: Companies gain many benefits from the principle of aggregation. The very notion of a separate legal personality being accorded to a group of people qua a company is founded upon the principle of aggregation. With benefit comes responsibility. It is peverse to dispense with the principle of aggregation just at the point where its application would implicate the company in a serious crime. Herald of Free Enterprise Disaster DPP v P & O European Ferries (Dover) Ltd (1991) Turner J hed that as a matter of law, the company, on the basis of the identification doctrine, could be indicted for manslaughter. Social perceptions accident v crime C Wells The Decline and Rise of English Murder: Corporate Crime and Individual Responsibility There is a tendency to view homicide as an act of interpersonal violence corporate crime seen as accidents. Difficult to convict. Why?

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

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...