LLB130 NOTES !!!!!!!!

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1 ! LLB130 NOTES!!!!!!!!

2 Contents Defining Crime 4 Components of Criminal Offences I 9 General Principles 9 Actus Reus and Mens Rea 10 Actus Reus 11 Mens Rea 14 Criminal Responsibility and the Burden of Proof 16 Assault 18 Common Assault 19 Actus Reus 20 Mens Rea 23 Aggravated Assault 24 Domestic Violence 27 Apprehended Domestic Violence Orders 28 Apprehended Personal Violence Orders 32 Sexual Offences 34 Common Law 34 Statutory Reform 36 The Current Legislative Framework 37 Actus Reus 41 Mens Rea 42 The Trial and Proving Lack of Consent 43 Indecent Assault and Act of Indecency 48 Components of Criminal Offences II 52 Interpreting Statutory Criminal Offences 52 Strict and Absolute Liability 54 Strict Liability 54 Absolute Liability 56 Public Order Offences 57 Offensive Behaviour 57 Actus Reus of Offensive Behaviour 58 Relevant Proximity 59 Mens Rea 60 Possible Outcomes 62 Public Drunkenness and Drinking 64 Move On Powers 64 Criminal Process I 66 The Exercise of Police Discretion 66 Powers of Arrest 66 Police Search Powers 70 Arrest and the Exercise of Reasonable Force 76 2

3 Criminal Process II 82 The Process as Punishment 82 Bail 83 Bail Act 2013 Amendments 86 Show Cause Offence 86 Unacceptable Risk 90 Criminal Process III 92 Two Tiers of Justice 92 Technocratic Justice 93 3

4 Defining Crime A crime is a legal wrong that can be followed by criminal proceedings that may result in punishment. Criminalisation Criminalization is the process of identifying an act deemed dangerous to the dominant social order and designating it criminally punishable (S Cohen, Against Criminology). The term criminalisation constitutes a conceptual framework within which to gather together social practices which form the subject matter of criminal law/justice and incorporates the relevant institutions in which these practices take shape. (N Lacey, Legal constructions of crime ). the constellation of social practices which form the subject matter of criminal law criminal justice and criminological studies Escaping the notion of crime as given, the idea of criminalisation captures the dynamic nature of the field as a set of interlocking practices in which the moments of defining and responding to crime can rarely be completely distinguished and in which legal and social constructions of crime constantly interact (N Lacey). Criminal offences can take a multiplicity of forms and can be enforced by a diverse range of agencies using different methods and transgression which can produce a broad range of sanctions. How criminal law operates must also be addressed as any assessment of alleged over or under criminalisation. Criminalisation is not only about enforcement of offences, but the operation of allied criminal procedures and the deployment of coercive police powers. Overcriminalisation The more acts that we define as a crime; the result cannot be less crime but more crime. And if we succeed in raising consciousness about those acts, then more of them will be reported. Similarly, one would expect public confidence in our criminal justice system to wane when individuals are punished for violating laws that a large amount of society deems unfair. The main concern is that overcriminalisation results in unjust punishment. Injustice is most glaring when defendants are sentenced for conduct that should not have given rise to criminal liability at all. Crime as a Social Construct What is considered to be a crime changes over time it should constantly be rethought. Examples of changes over time: o! Changes to law of provocation!! 1980s better response to context of domestic violence!! Domestic violence victim killed her husband reduced murder to manslaughter.!! Developments in the education of domestic violence. o! Rape in marriage!! Partners originally had immunity marriage means you consent.!! Changed in o! Homosexuality 4

5 !! Changes in social perception!! Partial decriminalization in 1984 and amendments in 2003 & o! Alcohol!! Decriminalization of public drunkenness in 1979 o! Drugs!! E.g. recent cannabis trials o! Regulatory crime Normative Theory of Criminal Law a theory or set of criteria which ought to determine the appropriate limits to the criminal law, enabling the specification of what sorts of behaviour are appropriately criminalized. Criminal law should: o! Only be used for substantial wrongdoing o! Be enforced with respect for equal treatment and proportionality o! People accused of substantial wrongdoing should be afforded the protections appropriate to those charged with criminal offences o! Principle of maximum sentences and effective sentences should be proportionate to the magnitude of the wrongdoing. o! Serious offences should require mens rea. When considering whether new offences should be created, factors taken into account include whether: o! The behaviour in question is sufficiently serious to warrant intervention by criminal law o! The mischief could be dealt with under existing legislation or other remedies o! The proposed offence is enforceable in practice o! The proposed offence is tightly drawn and legally sound o! The proposed penalty is commensurate with the seriousness of the offence Harm Risk Whether or not criminal acts have the potential to cause harm to other individuals or the social order. An important collar of this view is that only harmful acts should be criminal. Harm has immediate plausibility as a justification for criminalizing a given form of behaviour. Notions of risk linked to potential harm clearly underlie much of the criminalization of certain acts e.g. terrorism. Risk management in aspects of life has led to the emergence of a new form of preventative justice (preventative justice may be distinguished by a focus on risk and perhaps more precisely on the risk of harm). Such measures include the criminalization of ordinarily harmless and seemingly innocent behaviour in order to allow authorities to intervene at an early stage; the incapacitation of suspected future wrongdoers; and extended sentences for past wrongdoers on the basis of their predicted future conduct. Morality One of the most famous debates on the role of criminal law centres on immoral conduct. Should the criminal law prohibit certain forms of conduct simply because they are immoral? Considerations about the moral wrongfulness of potentially criminalisable types of conduct should figure into deliberations into what is defined as a crime 5

6 o! There are two main arguments about whether immoral conduct should be criminal!! The first is the immorality or sinfulness of the conduct supplies sufficient reason for criminalization although this is not always the case e.g. adultery!! The second is the immorality is a necessary condition for criminalization o! It can be argued that private immorality (immortality which is not offensive or injurious to the public) should not be a concern of the criminal law except in special circumstances e.g. why homosexuality and adultery is not longer criminalized. Offensiveness Offensive behaviour in law involves an element of publicness acts that positive morality allows in private might be regarded as offensive if done in public Secondly, it is possible for society to view behaviour that is legally permissible through immoral when carried out in private, but legally impermissible if carried out in public as it is offensive Generally, this relates to harm as the interests of third parties have been adversely affected The criterion of offensiveness forms the basis of a range of existing criminal prohibitions which are referred to as public order offences Social Reaction We can say that an act is criminal when it offenders strong and defined states of the collective conscience. French Sociologist Emile Durkheim focused on the reaction of the audience rather than the qualities of the act itself or the characteristics of the actor Moral Panic Moral panic implies fairly widespread public concern and could have been triggered by a variety of sources e.g. One Punch Laws found themselves drafted extremely quickly due to public demand " I argue with that the haste with which the legislation was drafted, passed and commenced is directly related to the intense media and public campaign that was triggered by the sentencing of Kieran Loveridge Commonsense View of Crime A commonsense response to the question of what is a crime is that everyone knows a crime if we see one. However it is not this simple e.g. murder such as accidental killings and executions do not fall into the category of unlawful killings. Commonsense is what we all know already. It embodies tacit judgments and assumptions about the world-harbored prior to the evidence being gathered. This is what makes it so resistant to debate or dialogue which questions Law and Order Commonsense A major obstacle faces those who wish to see more effective policies to reduce level of significant crime. This obstacle is law and order commonsense views. These are assumptions and views which form the series of debates within crime 6

7 Relationship Between Offence and Punishment Aims of Punishment Crime and punishment constitute a seemingly inseparable duo. The consequence of committing a crime will usually be a form of punishment. To criminalize a certain kind of conduct is to declare it is a public wrong that should not be done, to institute and treat of punishment in order to supply a pragmatic reason for not doing it and to condemn those who nevertheless do it Crimes (Sentencing Procedures) Act 1999 The purposes for which the court may impose a sentence on an offender are: To ensure the offender is adequately punished for the offence To prevent crime by deterring the offender and other persons from committing similar offences To protect the community from the offender To promote the rehabilitation of the offender To make the offender accountable for his or her actions To denounce the conduct of the offender To recognize the harm the offender has done to the victim of the crime and the community Sentencing of Federal Offenders Discussion Paper Retribution Based on the belief that those who engage in criminal activity deserve to suffer an eye for an eye Deterrence The mere existence of the criminal justice system that punishes offenders has a deterrent effect on would be criminals. This is known as absolute deterrence. General Deterrence Assumes that offenders are rational beings who will detest from criminal activity if the consequences of their actions are perceived to be sufficiently severe Specific Deterrence Specific deterrence aims to prevent offenders from committing further offences by demonstrating the adverse consequences of criminal activity given more way to past offenders as it is assumed the previous sentence was not sufficiently severe to deter him Rehabilitation Proponents of rehabilitation argue that the criminal tendencies of any offender can be addressed by first identifying and eliminating the underlying causes of the offender s criminal behaviour Rehabilitation alters personality, attitudes, outlooks, beliefs of offender to restore him or her to a law abiding member of society Incapacitation Imposes some form of restraint on an offender in order to render him or her incapable of reoffending. The most heavily used for is imprisonment 7

8 Denunciation Restorative Justice Collective incapacitation is the strategy of attempting to reduce crime by incapacitating more offenders, or incapacitating offenders for longer Selective incapacitation is the strategy of attempting to identify, and the incapacitate particular offenders who are likely to re-offend Based on the theory that a sentence can be used to communicate to the offender and community the message the law should not be flouted (broken). By denouncing the conduct of an offender, courts seek to educate both the offender and the public about the correct moral values and the express society s disapproval of the criminal behaviour Described as an approach to crime that focuses on repairing the harm caused by criminal activity and addressing the underlying causes of criminal behaviour Restorative initiations include decision making processes that involve bringing the offender, the victim and sometimes members of wider community together to determine collectible the approach to be taken to a crime Restorative initiatives have the potential to increase satisfaction of participants, encourages offender to accept responsibility, reduce recidivism by addressing the causes of criminal behaviour and provide insight into the causes of crime 8

9 Components of Criminal Offences I Criminal liability depends upon proving four things: 1. Defendant has legal capacity to commit an offence 2. D commits the relevant actus reus 3. D has the relevant mens rea at the time of committing the AR 4. D has no defence or excuse available to him or her General Principles Actus on facit reum, nisi mens sit rea means to perform a forbidden act (actus reus) by itself does not make a person guilty of a crime; it has to be shown that the person who performed that act had necessary guilty mind (mens reus) Golden thread according to which the burden of proof is on the prosecution to prove the guilt of the accused beyond a reasonable doubt The Significance of Fault Legislatures and courts are regularly confronted with the argument that a person who has engaged in prohibited conduct should not be convicted unless they were at fault in that they realized exactly what they were doing and appreciated the risk of any prohibited consequences. The argument suggested that it is unjust to convict and punish someone for a criminal offence unless they have chosen to act in the way that they did. This concept of fault should be extended to embrace those who ought to have been aware of what was going on because a reasonable person in their situation would have been aware. The Irrelevance of Motive The general position is that the criminal law does not allow a persons good or bad motives to be taken into account when determining guilt. FOR MOTIVE: as an emotion or force which prompts us to act motive is a vital part of a person s state of mind and a crucial factor in moral evaluations AGAINST MOTIVE: Norrie argues that motives are frequently generated by social conditions, e.g. unemployment, poverty and that all people form intentions to act regardless of who they are, whence they come, experiences etc. Constituting Legal Personhood Although there is a presumption all adults have the necessary mental capacity, those who can show they were insane at the time of prohibited behaviour are exempt from criminal responsibility Doli Incapax Similarly, all children under seven were treated as incapable of committing criminal offences. This has now been raised to 10 in NSW. Where a child has reached 10 but is not yet 14, it is presumed they are incapable of wrongdoing (doli incapax). This presumption may be rebutted by the prosecution proving the child knew that the act was seriously wrong as distinct from an act of mere naughtiness of childish mischief Rebutting the presumption requires application of a subjective test: not what the child ought to know but what they actually know (lecture) 9

10 Actus Reus and Mens Rea Actus reus refers to the prohibited event spelt out in the definition of the offence Mens rea refers to the accompanying fault elements The first issue in a criminal trial is whether the defendant performed the actus reus. o! The accused may argue that this did not occur or that they did not do it. o! Alternatively, they may accept that they performed the act, but deny they had the mens rea specific in the offence definition. Defences Even when the accused has brought about the actus reus, and the required mens rea is proved, he or she may raise a defence. In relation to defenses, the burden lies on the prosecution to negative their existence beyond a reasonable doubt Coincidence of Actus Reus and Mens Rea Where a fault element is specified in an offence definition, there is a 'general principle' that of an offence to be committed, the prohibited act and the fault element must coincide. If a forbidden act is performed by the accused but at the time of doing the act her or she lacks the necessary criminal intent, the accused is not guilty of the offence. Expanding the Rule of Coincidence Courts can expand the rule of coincidence to include a longer time frame (Thabo Meli) or a continuing act (Fagan). Meyers (1997) 147 ALR 440 The deceased died from head injuries inflicted by the accused during an altercation. Although the accused had assaulted the deceased in other ways, she had died after striking her head on a low table on the floor, when he pushed her out of the way to get to the phone. The High Court concluded that if the jury accepted this version of events, the accused would only be guilty of manslaughter, even if he had the necessary mens rea for murder during the earlier assault. Ratio: The High Court stated that the act and intent must coincide and that unless you can prove that the act that caused death was done with necessary intent, even if others were, no conviction for murder can be made. However, the High Court did not cite a number of cases in which courts have effectively diluted the principle in some contexts by looking at a longer time frame. This is based on the perception that too rigid an interpretation of the principle results in a misleading assessment of the defendant s culpability. 10

11 Thabo Meli [1954] 1 All ER 373 The accused, in accordance with a preconceived plan, took a man to a hut to kill him, gave him beer so that he was partially intoxicated, and struck him over the head. Thinking he was dead, they rolled him off the cliff to make it look like an accident. In fact he was not dead at the time they threw him off the cliff, but he died from exposure at the bottom of the cliff. The Privy Council stated that while there could be no intention to kill when the accused thought the man was already dead, there is no doubt that the accused set out to do all these acts in order to achieve their plan that they were convicted of murder. Le Brun [1992] 1 QB 61 The defendant struck his wife during a heated argument. He then dropped her while attempting to cover up the assault or to get her home against her wishes. She struck her head on the pavement and died. The English Court of appeal stated that where the unlawful application of force and the eventual act causing death are parts of the same sequence of events, the fact that there is an interval of time between the two does not acquit the defendant from liability. Fagan [1969] 1 QB 439 The accused accidently rolled his car onto a policeman s foot. When the policeman informed him of this, the accused initially refused to remove it. It was found that he was guilty of assault because the accused s act was a continuing one. It was found that the intent occurred when he refused to get off the foot of the policeman, and this combined with the act of the driving onto the foot as a continuing one made the accused guilty. Actus Reus There are three components of actus reus: 1.! Conduct (act, series of acts or omissions or a combination, or state of affairs) 2.! Circumstance context in which the act is done (or omission made) 3.! Consequence or result of the conduct Offence Conduct Circumstance Consequence Sexual Assault Sexual intercourse Without consent - Murder Act or omission - Death Reckless wounding Bodily contact Without consent Wound Most offences are committed by a positive act or acts of the accused, however some may be committed by omission (offence can only be committed by omission where law imposes a legal duty to act). The context in which the act was committed the circumstance will frequently be a crucial part of the offence definition. 11

12 Consequences and Causation Murder is only committed where the accused causes death, and there is a number of unusual cases which explore causation in this context. Cannot say that a factor is a cause of a consequence unless that consequence would have not occurred at that time but for the presence of that factor. Courts are not concerned to discover the causes of particular consequence, but only whether the accused's act or omission was a cause. The issue then becomes whether the accused's act or omission was a legal cause of, for example, death. Omissions Some offences can not be committed by an omission as distinct from an act. Many statutory offences specifically impose duties to act on people carrying out certain activities, on pain of criminal penalty. We have to look at the definition of each and every criminal offence to discover if it can be committed by omitting to do something, rather than relying on general principle. Status Offences The prosecution does not have to prove any action on the part of the accused. Rather criminal liability is results from the fact that someone is found in a particular position. An offence for a convicted child sex offender to loiter without reasonable excuse in or near a public place regularly frequented by children. Voluntariness The assertion that the prosecution must prove that the accused's acts were voluntary. There is also increasing discussion of a 'defence' of automatism. There must be some connection between the conscious mind and the bodily movement. Voluntariness is required for every offence and is dealt with as a part of AR, in particular the conduct component. 12

13 There is an evidentiary presumption that a conscious person acts voluntarily and hence the defendant must raise the issue that the act was involuntary. Ryan (1967) 121 CLR 205 Ryan entered a service station intended to commit robbery. He pointed a rifle at the attendant and demanded money. The rifle was loaded, cocked and the safety catch was off. Ryan told the man to turn around and he started to tie his hands. While he did this, the attendant swung around and surprised Ryan and therefore the gun was discharged. Ryan argued the killing was an accident however he was convicted of murder and appealed. Ryan s intent does not come into question as he would be accused of constructive murder (that the accused was guilty of murder on the basis that he caused death in the course of a crime punishable by life imprisonment). Therefore, the accused s only chance of avoiding a murder conviction is to raise a doubt about the voluntariness of his or her act. The judge came to the conclusion that if the applicant, being conscious of the situation in which he had out himself, pressed the trigger as a result, however spontaneous, of the man whom he was threatening making some sudden movement, it could not be said that his action was involuntary, so as to make the homicide guiltless. They came to the conclusion that the death was caused by a combination of voluntary acts, culminating in the presentation of the cocked rifle with the accused s finger on the trigger. What is the relevant act? Murray (2002) 211 CLR 193 Murray was charged with murder under s 302(1) of the Queensland Criminal Code. Section 23(1)(a) provides that a person is not criminally responsible for an act or omission that occurs independently of the exercise of a persons will. The accused was holding a shotgun that discharged, killing the victim, but claimed he did not pull the trigger deliberately. The accused pointed the gun to scare the victim but the gun either discharged without him applying pressure to the trigger or he applied pressure by a reflex action when the deceased s arm shot out or when something thrown hit him on the head. The High Court stated that it is important to avoid narrowly defining an act as the narrower the interpretation, the more likely it is that the accused s will will be questioned. They held that the act is the act of discharging the loaded shotgun which can be seen to comprise a number of movements in which some of these, the defendant would have had to turn his mind to. Therefore, pulling the trigger did not occur independently of his will. 13

14 Jiminez (1992) 173 CLR 572 The accused was driving a car which collided with a tree, killing a passenger. It was said that the accused became tired and drowsy and had fallen asleep at the wheel. The driver was charged with driving in a dangerous manner causing death. The High Court stated that if the accused had fallen asleep, it is clear that while he is asleep his actions were not conscious or voluntary. It appears that there was a short period of time after the applicant fell asleep and before the impact in which the driver awoke and tried to regain control of the car (which was not considered dangerous). The High Court cited R v Kroon which stated that if a driver who knows or ought to know that there is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he is driving without due care and may be driving in a manner dangerous to the public. Causation When the actus reus of a crime has a consequence component, it must be proved that the accused s conduct caused the consequence. The common law has developed for objective tests to prove causation: o! The substantial or significant cause test!! Not the only cause but has a substantial or significant part in the consequence!! R v Smith o! Natural consequences test!! Where the conduct of the accused induces a well founded fear or apprehension of physical harm such as to make it a natural consequence that he or she should take such steps to flee or escape and is injured, the injury is caused by the defendant s conduct!! Royall v R o! Reasonable foreseeability test!! Would a reasonable person have foreseen the consequence arising from the conduct in which the accused engaged in!! Royall v R o! But for Test (no longer used)!! But for the defendant s conduct, the consequence to the victim would not have occurred. Novus actus interveniens - an extraordinary occurrence which breaks the chain of causation. This means the defendant s conduct can no longer be said to be a substantial cause or the natural consequence of the outcome. Mens Rea Asking Mens Rea Questions About the Actus Reus The terms mens rea (guilty mind) is not a general condition of mind required in all crimes. It refers to a variety of states of mind, including: o! Intent o! Knowledge o! Recklessness 14

15 The legal requirements as to precisely which state of mind, if any, need to be proved by the prosecution vary from offence to offence. This makes it impossible to make a general statement about mens rea requirements. Common law offence - mens rea is ascertained by analysis of the relevant precedent. Legislature - legislation must be carefully interpreted in order to discover precisely what the legislature intended Different mens rea for different components of actus reus Objective and Subjective Mens Rea Standards Subjective o! Intent, knowledge and recklessness o! The accused's actual state of mind at the time he or she engaged in certain activities constituting the actus reus of a criminal offence o! Determining their actual state of mind is difficult and it must be proved beyond a reasonable doubt We clearly intend to bring about consequences where this is our purpose or desire where we mean to bring them Intent out. It is irrelevant whether or not a person s intent to bring about a consequence was premeditated. A specific intent to cause a prescribed result can be established by knowledge that such a result will probably (or is likely to) occur He Kaw The What the person actually knew Knowledge In sexual assault context, did they know the complainant was not consenting Usually associated with the circumstance aspect of the actus reus. Recklessness covers situations where the accused perceives a risk that a consequence may occur but Recklessness nevertheless takes it Amount of risk that the defendant must foresee depends on the specific event: o! For murder, probability of death o! For all other offences, it is the possibility of the relevant consequence occurring Objective o! Negligence o! What the state of mind of a reasonable person would have been in the same situation o! Accused is only liable if their lack of awareness was unreasonable o! Asking what the accused ought to have foreseen and been award of, including the precautions they should have taken. Negligence o! May arise where defendants conduct involved such a great falling short of the standard of care which a reasonable person would have exercised and which 15

16 involved such a high risk that the doing of the act merited criminal punishment o! It is sufficient to prove that a reasonable person in their position would have foreseen the risk of it occurring and taken reasonable steps to avoid it Other Concepts: Intent and Motive - While the general position is that motive is irrelevant to criminal liability, there is some times where is should be taken into account e.g. killing of a loved one to end compassion Transferred malice - where a defendant attacks someone with mens rea for a particular offence, but nevertheless accidently brings about the actus reus for the same offence in relation to a different person, the defendant can be convicted of the offence as the mens rea and actus reus can be added together Willful blindness - When a person deliberately refrains from making inquiries because he prefers not to have the result, when he willfully shuts his eyes for fear he may learn the truth, he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring. Often in relation to assisting or instigating a crime, as well as receiving stolen property (the belief that property is stolen is sufficient mens rea) Inadvertent recklessness A person recklessly causes damage to property if he does an act which creates an obvious risk that property will be destroyed and when he does act he has either given no thought to the possibility of there being such a risk or has recognised some risk involved and nonetheless gone on to do it. It was inadvertent to the extent that it covered situations where the accused had not given any thought to an obvious risk. The question of whether there was a obvious risk was to be assessed according to the standards of the reasonable person. Actus Reus Correlating with Mens Rea Actus Reus Conduct Circumstance Consequence Mens Rea Intention Knowledge Recklessness Negligence Intention Recklessness Negligence Criminal Responsibility and the Burden of Proof The Golden Thread in Practice Golden thread according to which the burden of proof is on the prosecution to prove the guilt of the accused beyond a reasonable doubt The principle that the prosecution must prove the guilt of the prisoner is part of common law. Even when the prosecution must prove the subjective awareness on the part of the accused, the defence will frequently have to give evidence to raise a reasonable doubt about the prosecutions case. Statutory reversal o! If a person has a large amount of drugs in their possession, it appears they will sell it. They have to prove that they will not be selling it. 16