CRIMINAL LAW & PROCEDURE: SEMINARS & FINAL EXAM NOTES

Transcription

1 CRIMINAL LAW & PROCEDURE: SEMINARS & FINAL EXAM NOTES TABLE OF CONTENTS 3A: General Principles Proof, Capacity, and Elements of Criminal Offences 2 Introduction 2 Elements of Criminal Liability 4 3B: External Elements of Homicide 13 4A: Murder 21 4B: Voluntary manslaughter 29 Partial Defence Excessive Force 30 Partial Defence Extreme Provocation 30 Partial Defence Substantial Impairment of the Mind 34 5A&B: Involuntary Manslaughter 39 Unlawful & Dangerous Act Manslaughter 40 Negligent Manslaughter 41 Assault Causing Death 44 6A: Property Offences Larceny 49 Illich - Fundamental Mistake 54 TC - Riley Principe 56 6B: Property Offences Fraud 60 Obtaining Property 62 Obtaining Financial Advantage 62 Causing Financial Disadvantage 63 7A&B: Assault 65 Common Assault 66 Assault Occasioning ABH 72 Intentional GBH 72 Reckless GBH 72 8A: Sexual Assault 76 8B: Extending Criminal Liability - Attempt 81 Defence of Impossibility 83 8B: Complicity JCE and Extended JCE 85 Joint Criminal Enterprise 86 Doctrine of Common Purpose 86 Withdrawal 88 9A: Complicity Accessorial Liability 89 The Principal offence P1 91 Doctrine of Innocent Agency 91 Abettors/Accessories before the Fact and P2 92 9B: Defences Mental Illness 96 10A: Defences Automatism, Intoxication 102 Automatism 103 Intoxication B: Defences Self- Defence, Duress, Necessity 108 Self- defence 109 Duress 110 Necessity 111 1

2 CLASS 3A: GENERAL PRINCIPLES PROOF, CAPACITY AND ELEMENTS OF CRIMINAL OFFENCES Objectives: Burdens and standards of proof in the criminal context. Elements of criminal liability. The concept of capacity to commit crime. Characteristics of the concept of actus reus or the conduct element of a crime. The actus reus requirement that conduct must be voluntary. The concept of mens rea or the fault element of a crime. The concept of temporal coincidence. The meaning of strict liability and how such offences are interpreted by the courts. Introduction Burden & Standard of Proof Mere accusation does not prove a crime facts of case must be established and appropriate rule of law applied for conviction. Facts decided by jury in serious cases; decided by court in less serious cases. Rules in deciding different for criminal and civil cases moral stigma and sanctions attached to finding criminality. Rules of proof protect citizens from arbitrary exercise of power by the State. Standard of Proof In criminal proceedings, prosecution must prove guilt of accused beyond reasonable doubt - (BRD). This standard is NOT explained to the jury - (R v Reeves (1992) 29 NSWLR 109) preferable for judge to add that D presumed innocent until Crown has established guilt. Higher standard of proof than civil trials - balance of probabilities (BOP). Difference reflects the stigma and potential loss of liberty associated with criminal liability. The adversarial trial does not attempt to find the truth the issue is whether P has proved the precise components of the offence charged BRD. Legal burden of Proof who has to prove it. The legal burden rests on the prosecution P must prove BRD all components of offence AND disprove any defences raised (subject to limited exceptions). Woolmington v Director of Public Prosecutions [1935] AC 462 held Woolmington principle: - House of Lords binding precedent on AU at the time. Anything pre-dating 1960 is law in AU (prior Australia Acts). That it is the duty of the prosecution to prove the prisoner s guilt If at the end of, and on the whole of the case, there is a reasonable doubt, created by the evidence as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. Rhetoric of criminal law - Woolmington principle person is presumed innocent until guilt is established BRD by P; there is a right of silence in the face of criminal accusation P bears burden of proving D s guilt BRD. Two major exceptions plea of insanity raised by D and statutory provisions expressly or implicitly placing burden of proof of certain matters on D both need to be proven on BOP. Legal burden/persuasive burden duty of party to persuade the trier of fact by end of case of the truth of certain propositions; propositions depend on substantive rules of law and pleading Woolmington principle and exceptions apply. Evidential burden refers to obligation to show there is sufficient evidence to raise issue as to exist or non-existence of fact or issue introducing of evidence duty of judge to decide whether any evidence on which jury can reasonably find that fact is proved judge will withdraw evidence if not considered sufficiently arguable. Evidence provided must be enough to suggest a reasonable possibility Jayasena v R [1970] AC 618. Exceptions to the burden of proof resting on prosecution both common law and statute. Common Law D raising defence of insanity must prove, on BOP, that D was insane at the time charged R v Porter (1933) 10 SASR 299. Statute Certain statutory provisions expressly impose burden on proof on D eg. It is a defence if it proved that; unless [the accused] satisfies the court that. Generally, require P to prove some facts BRD against D, which results in conviction of D, unless D can prove on BOP some further facts. Examples 1) Crimes Act 1900 s 23A (NSW) imposes burden of proof on D wishing to plead substantial impairment of mind in cases of murder. The jury must consider where: P has proven burden BRD. D has proven defence of substantial impairment of BOB. 2) Drugs legislation statutory reversal of burden of proof. If accused has more than a specified amount of a given drug, such a heroin or cannabis, then the accused is apresumed to intent to supply the trust, and punished for this unless this presumption is rebutted. 2

3 3) Crimes Act s 527 statutory reversal of burden of proof; and MR standard is objective. Makes it an offence to be in custody of goods that a reasonably suspected of being stolen. Evidential burden Refers to rules of evidence that a party to a case must satisfy for an issue to have been legally raised sufficient foundation of evidence for every issue alleged. If judge determines insufficient evidence, will not allow jury to consider issue judge to dismiss irrelevant evidence. Evidential burden and the prosecution Evidential burden of constituent elements of the particular crime charged, excluding statutory exceptions, rests on P. Generally subsumed with P s legal burden of proving criminal responsibility BRD. Evidential burden and the defence Evidential burden for general defences is placed on D ie. Self-defence, duress, necessity, provocation. Justification Time-consuming for P to negate all general defences in every case. There must be enough evidence, if believed and uncontradicted, to suggest a reasonable doubt in the minds of a reasonable jury that D s version might be true suggest a reasonable possibility Jayasena v R [1970] AC 618. Additional Notes In sexual assault trials, where victim and accused give frequently conflicting versions of the event one of sexual intercourse without consent, and the other with consent and cooperation, effect of golden thread that jury must be instructed that if doubt as to which version to believe, must give D the benefit of doubt and acquit. Verdict of not guilty in sexual assault indication other person had consented. 3

4 Elements of Criminal Liability INTRODUCTION VITAL TO ASSIGNMENT STRUCTURE 2-4. There are FOUR requirements for criminal liability. 1. D must have legal capacity to commit a criminal offence. considered part of AR. 2. D must have committed conduct elements of the offence actus reus (AR). 3. The fault elements which form part of the offence must have been present at time of AR mens rea (MR). 4. Absence of any defences of excuse or justification which would negativity liability D to prove standard of burden as a reasonable possibility. exception mental illness/insanity (is a full defence) special verdict (NOT IN ASSIGNMENT); express statutory exception s23a substantial impairment of the mind legal burden on D on balance of probabilities) LEGAL CAPACITY considered part of AR Generally, people are assumed to be responsible for their actions, thus capable of bearing criminal responsibility exceptions children and insane. Children ONLY AN ISSUE WHERE AGE OF OFFENDER IS SPECIFIED AND THAT AGE IS BELOW 14 NOT in assignment age and capacity.*** - can assume person is an adult no need to mention! Common law Where a child has reached the age of 10 but not yet 14, presumed they re incapable of wrong doing doctrine of doli incapax. To presumption of doli incapax P must prove BRD that child committed both the act (AR) and MR mental capacity to understand wrongfulness as distinct from an act of mere naughtiness or childish mischief C (A Minor) v DPP [1995] 2 WLR 383. mischievous discretion principle consider circumstances of the offence, THEIR AGE. P must prove child knew act was seriously wrong as matter of morality, or according to the ordinary principles of reasonable persons, not that is unlawful older the child, easier to rebut presumption. Test is subjective issue is not what child ought to have known, but what they actually knew, and evidence presented about their state of mind (RH v DPP [2014] NSWCCA 305). 0 to 9 years is IRREBUTTABLE ABSOLUTE ; 10 years 14 is rebuttable. Statute Common law position does not apply NSW, SA, VIC minimum age of criminal responsibility is 10 years Children (Criminal Proceedings) Act 1987 (NSW) s 5. Corporations Corporations are a legal person and can be criminally convicted for acts of officiers/employees if proven such acts were acts of the corporation. Punishment options limited fined or license revoked. ACTUS REUS AND MENS REA Traditional assumption in criminal law person shall not be held liable for an act unless done with a guilty mind (actus non facit reum nisi mens sit rea) Foweler v Padget (1798) 101 ER Division of criminal responsibility two broad categories AR and MR. Eg. Difference between murder and manslaughter is not D s actions or result of death, but state of mind of D at time of killing. Generally, P required to prove BRD that D fulfilled AR requirements and had necessary MR at time of offence. ACTUS REUS - three types positive acts, omissions (failure to act), situational à no situational offences in our syllabus!! The AR of the offence is everything MR is not conduct element. AR of an offence identifies the conduct that the criminal law prohibits external events or physical element of the crime. Different offences have different AR requirements. Positive acts à eg larceny/shop-lift, sexual assault, fraud, - only committed by actually doing. Omission acts à ONLY murder and manslaughter s 18 Crimes Act 1900 (also positive acts murder and manslaughter). The elements of an offence: May either be in specified provisions; or Legislation may enumerate the offence and prescribe its punishments. Elements of offence are then determined by reference to common law. Eg. Offence of assault s 61 Positive Acts and Omissions AR may consider of conduct that is NOT a positive act Generally criminal liability will be attached to positive acts, not omissions - offence not committed if consequence does not eventuate. Certain offences cannot be committed by an omission POSITIVE ACTS eg. rape, theft, assault, larceny For criminal liability for omission to be established a legal duty/relationship must be proven different from moral duty to act ONLY APPLIES TO MURDER/MANSLAUGHTER (omission acts). Common law tradition person not liable for failure to prevent harm, even where person had power to prevent that harm R v Coney (1882) 8 QBD 534; Hawkins J: It is no criminal offence to standby, a mere passive spectator of a crime, even of murder. AR may involve neither a positive act nor an omission --> situational Situational offences criminal liability results from fact D is found in a particular position. These offences tend to be a minor type, and not dependent on D s state of mind at time of offence. Eg. D is licensee of a pub, and underaged person found drinking alcohol, D is guilty of an offence AR may include mental elements States of mind can be part of AR rather than MR in relation to state of mind of victim. 4

5 AR element of offence of (psychic) assault is that victim feared imminent unlawful conduct state of mind of victim is central to offence of assault. Barton v Armstrong [1976] AC 104 if victim did not feel fear, charge of assault not made out. Voluntariness there is a defence of automatism at common law, positive act/omission must be voluntary. All criminal offences require D s conduct to be voluntary if D not acted voluntarily, then AR requirements of offence will not be satisfied, and D not guilty. The act must be a conscious decision of the accused R v Falconer (1990) 171 CLR 30 psyciological concept part of AR. No requirement that D understand the consequence of what they were doing. Bratty v Attorney-General (Northern Ireland) [1963] AC 386, Lord Denning defined voluntariness as follows: An involuntary act means an act which is done by the muscles without any control of the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleepwalking. Everything assumed as voluntary unless evidence of contrary reasonable possibility burden. Falcon case (WA) Types of Involuntary or Unwilled Conduct defences of voluntariness NOT for assignment NO autonomism. A spasm, convulsion or unwilled bodily movement Causing a movement that is not willed by the person, even though the person is conscious of what is happening. Ryan v R (1967) 121 CLR 205 Facts D held a loaded gun against victim s head. V moved suddenly and D pulled trigger reflexively, thus involuntarily killing V. Held HCA focused not upon killing of the trigger, but upon the pointing of the loaded, cocked rifle at V. This act was substantial and operating cause of death ie. Clearly voluntary. Circumstances may remove the physical opportunity for a person to choose to behave in a different way. Eg. Where D pushes against C against V, D s actions are voluntary, but C s actions are involuntary as far as V is concerned. An act performed during sleep/unconsciousness May be regarded involuntary D said be in state of automatism if performing acts while concussed or asleep. Automatism is defined as an act done by muscles without any control of mind Bratty v Attorney-General (Northern Ireland). Jiminez v R (1992) 173 CLR 572 Facts D fell asleep while driving, collided with a tree and killed one of his passengers. Held Charged with culpable driving, contrary to Crimes Act 1900 (NSW) s52a. HCA held that his actions while asleep was involuntary and therefore he could not be criminally responsible for driving the car in a manner dangerous to the public (per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaurdro JJ). Applied principles from Ryan to Jiminez actions and considered period immediately preceding D falling asleep: for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition, that condition must be such that as a matter of OBJECTIVE fact, his driving in that condition is a danger to the public If there was a warning as to the onset of sleep, that may be some evidence of the degree of tiredness. The HCA looked whether at the time prior to falling asleep, D s driving was objectively dangerous. An act performed during impair consciousness depriving the person of the will to act The condition of automatism may occur where the unconscious/semi-conscious person may act without being aware of doing anything at all. State of automatism defined as a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements. R v Cottle [1958] NZLR 999. Where automatism occurs, D can claim that an action was unwilled or involuntary. Acts under duress of threats or extreme circumstances are still regarded by the law as voluntary D has made a conscious decision to act, albeit in circumstances where D s choices were limited. Automatism may occur due to: An external cause, such as a blow to the head, or an intoxicating substance also governed by special rules. An internal pathology or weakness governed by special rules of insanity. Burden of Proof Where involuntariness is claimed, evidence must support the claim D must satisfy the evidentiary burden. Principle P entitled to presume acts of D are voluntary see Falconer. Excluding exception of insane automatism, once D has satisfied the evidentiary burden; P must prove BRD that acts of D were voluntary if not proved BRD, D is not guilty. R v Falconer (1900) 171 CLR 30 Facts D was victim of domestic violence during marriage to deceased husband. D knew deceased husband had sexually interfered with her daughters. Deceased had entered her home unexpectedly, sexually assaulted her and reached out to gab her by the hair. D then has no recollection of what happened next until she found herself on the ground with the gun beside her and the deceased dead on the floor. Trial judge - rejected evidence of two psychiatrists by which D sought to support defence under s 23 Criminal Code (WA). Held - HCA stated: The requirement of a willed act imports no intention or desire to effect the result by doing of the act, but merely a choice, consciously made, to do an act of the kind done. In this case, a choice to discharge a gun. (Mason CJ, Brennan, McHugh JJ). Involuntariness excuse or defence? 5

6 Claim of involuntariness (with exception of insane automatism) is a failure by P to prove its case. MENS REA The MR (fault element) of an offence specifies the mental state required for a person to be criminally responsible for an offence. Some conflict whether MR includes on D s state of mind, or whether it can also incorporate comparison with mind of a reasonable person. Expansive definition of MR includes intention, recklessness and negligence. MR for offences differs, and different states of mind can result in greater culpability eg. MR for murder and involuntary manslaughter. MR can be determined under: Statute words prescribing fault elements for specific offences. Common law relying on general principles to assign MR to common law offences or to imply MR for statutory offences. Eg. He Kaw The v R (1985) 157 CLR 523, HCA implied that an offence of importing narcotics should be committed knowingly or intentionally. The statute provision was read in the light of general principles of common law which govern criminal responsibility. (Gibbs CJ) for statute offences, legislation must be carefully interpreted to precisely discover what parliament intended. For common law offences, MR is ascertained by analysis of relevant precedent DPP v Morgan [1976] AC 182. Subjective or Objective? initially was subjective (ie. Intention) now also includes negligence and recklessness. MR fault elements of an offence can either be subjective or objective. Some fault elements and many defences involve combination of subjective and objective components eg. defences of provocation and self-defence. Subjective Refers to state of mind of D; require proof of intent. Criminalise the person for what they actually thought at the time of a criminal act. At common law, majority of offences have subjective MR requirements. HCA restated common law presumption that every offence requires a guilty mind or subjective fault component He Kaw Teh; Gibbs CJ, Brennan J. Objective Refers to state of mind of the hypothetical reasonable or ordinary person; require proof of D s failure to meet the ordinary level of awareness or behaviour of a reasonable person (objective). Punishes person for their failure to act or think as a reasonable or ordinary person would in particular circumstances. Reference to ordinary or reasonable person, or what D should have known implies objective test. Objective MR requirements for some statutory and common law offences eg. Negligence, strict and absolute liability offences. Subjective Standards Intention Central to common law doctrine on fault elements of offences and perceived as most culpable fault component. P must prove that D had the intention, NOT that the ordinary person would ie. Subjective standard. Given its meaning in ordinary language R v Moloney [1985] AC 905. Irrelevant whether intent was premediated or formed spontaneously only necessary that D have MR at time of offence. Criminal law determines intent separately from outcome. Eg. Attempt offences, the accused is criminalised for intending to commit a crime and going beyond mere preparation. Eg. Some crimes can only occur with intention eg. larceny requires intention to permanently deprive. He Kaw Teh v R (1985) 157 CLR 523 Brennan J at 569. 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 particular result. Such a decision implies a desire or wish to do such an act, or to bring about such a result. Difficulty may arise in cases where D does not confess a particular state of mind. In these circumstances, the jury may be compelled to infer from objective circumstances what D s state of mind may have been at the time of criminal act. Eg. D has shot machine gun at a person in a point black range jury could infer intention to kill person despite absence of commission. Recklessness eg. assault and sexual assault this is enough to constitute MR. Is implied as MR requirement for many offences in absence of explicit statutory statement. P must prove D must have actually recognised a risk and carried on regardless level of knowledge required by D various for different offences. Recklessness differs from intention intention can be established D wants a particular outcome or recognises that it is practically certain; recklessness occurs where D is aware of a risk that a prohibited outcome will occur and continues to act regardless. Recklessness differs from negligence negligence is a failure to recognise an obvious risk; recklessness is recognition of a risk, but decision to continue regardless. Indifference to risk R v Crabbe (1985) 156 CLR 464 It is not the offender s indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element. Indifference to risk is NOT an element of recklessness if D does not want a perceived risk to result, but recognises that the risk may result, D would have still behaved recklessly. Eg. Blackwell [2011] NSWCCA 93 Regarding offence of recklessly causing grievous bodily harm (GBH) under s 35(2) Crimes Act following amendments in 2012, P does not have to prove D foresaw possibility of GBH (consequence specified in AR); but only actual bodily harm - Chen [2013] NSWCCA

7 MR for murder in NSW includes reckless indifference to human life clear P must prove that D foresaw probability of death. Social utility or purpose R v Crabbe (1985) 156 CLR 464: Not every fatal act is done with the knowledge that death or grievous bodily harm will probably result is murder. The act may be lawful. A surgeon who competently performs a hazardous but necessary operation is not criminally liable if his patient dies, even if the surgeon foresaw that his death was probable. The social utility of an act has consequences for whether or not D s actions are labelled reckless. Questions regarding social utility tend to be resolved outside the courtroom police and prosecuting authorities. Eg. Surgery, dangerous exhibitions. Willful Blindness Occurs where: There are suspicious circumstances and a failure to make inquiry Pereria v DPP (1988) 63 ALJR 1. D deliberately refrains from making inquiry to avoid discovering an unwanted truth - R v Crabbe (1985) 156 CLR 464. HCA - Wilful blindness may have an evidentiary role for the jury, but NOT a substitute for intention or recklessness as MR for an offence. - See Giorgianni v R (1985) 156 CLR 473; R v Crabbe (1985) 156 CLR 464; Pereria v DPP (1988) 63 ALJR 1. Wilful blindness may provide evidence that D may have had the necessary MR in the form of intention or knowledge. Pereria v DPP (1988) 63 ALJR 1: a combination of suspicious circumstances and failure to make an enquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. Transferred malice Doctrine of transferred malice applies to hold D responsible where D has the MR for a particular offence but brings about AR for same offence in relation to a difference person or thing. R v King [2003] NSWCCA 339 Facts D shoots at A with the intention to kill, but misses and kills V. Held D is guilty of murder of V, and the attempted murder of A. A-G s Reference (No 3 of 1994) [1997] 3 WLR Facts D stabbed a pregnant woman, knew woman was pregnant but did not intend any harm to fetus. As result of stabbing, woman gave birth to a grossly premature child. The child died, not directly as a consequence of the stab wound, but rather pre-mature birth. D was charged with murder of child. Held House of Lords accepted under the doctrine of transferred malice, would be murder if D stabbed the mother, intending to cause GBH, and stabbing accidentally killed a child she was nursing. So too, if the stabbing inteneded to cause GBH to the mother; but accidentaly injured detus in the womb, and it died from the found after being born alive. Court refused to accept doctrine of transferred malice to cover the facts in the case before it. Argued this would require a double transfer of intent first from the bother to the fetus, and then from the fetus to the child as yet unborn. It was willing to follow old laws under they are overturned, but not make a new law for the basis there is no principle. Concluded that facts supported a manslaughter conviction. Objective Standards Despite the primacy that criminal law gives to the state of mind of the accused at the time of committing an offence; there are some offences that depart from this principle: 1. Offences where negligence is the fault component. 2. Strict liability offences. 3. Absolute liability offences. Negligence offences Negligence can suffice as MR (fault element) for some offences. Eg. strict liability and negligent manslaughter. Negligent conduct conduct below the standard of a reasonable person would observe when engaging in that activity; D may or may have not advert to a risk of harm that the reasonable person would have appreciated. P must prove objective or inadvertent negligence may be completely objective offences. Two relevant areas of negligence: 1. Express statutory provisions, generally areas involving injury to another person s Criminal negligence as the fault component for manslaughter Nydam v R [1977] VR 430. Negligence in criminal law requires a high degree of negligence criminal negligence or gross negligence. Nydam v R [1977] VR 430 fault component for negligence manslaughter was stated as follows: The requiste MR is an intent to do the act, in fact, caused the death of the victim, but to do that act in circumstances where 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 the 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. Critique of negligence Current lack of flexibility in the standard of the reasonable person may mean that a person below average intelligence or capabilities may be held culpable for failing to meet an unattainable standard. R v Stone and Dobinson [1977] QB

8 Facts Stone was totally blind, lacking in a sense of smell and low average intelligence. Dobinson was described as ineffectual and quite inadequate. Stone s sister, F was ill and came to their house and her condition began to deteoriate. She was unwilling and unable to leave her bed. A neighbour offered to clean her and advised Dobinson to contact a social worker. A social worker visited Stone s son at the house, but no attempt was made to advise her of F s condition. Dobinson and Stone were unable to use the phone in order to contact doctors. Dobinson supplied F with any food as she requested, but F refused to eat. Held Stone and Dobinson were guilty of manslaughter by criminal negligence. This was despite their inability to recognise any risks, and their inability to meet the objective standard. Significance - Demonstrates a strict application of an objective standard to determine criminal liability. In Homocide (1991), the Victorian Law Reform Commission recommended that where D presents evidence that he or she is incapable of meeting objective standards due to physical or mental deficiency, P should have to prove BRD that D is capable of meeting these standards. Strict liability offences - ie. Regulatory offences, liable where failed to comply also negligent manslaughter. Strict and absolute liability offences statutory offences with no MR requirement; determination of whether offences are strict or absolute liability involve statutory interpretation to ascertain parliament s intention. Strict liability offences require nothing more than AR but defence of honest and reasonable mistake of fact available. Until He Kaw The v R (1985) 157 CLR 523 the common law presumption offences have subjective fault element (MR) courts had an increasing tendency to interpret statutory offences as strict or absolute liability. He Kaw Teh v R (1985) 157 CLR 523 Facts D was convicted at first instance of importation and possession of heroin, contrary to Customs Act 1901 (Cth) s 233B(1)(b) and (c). D had flown to Melbourne with 2.7 kg heroin in the false bottom of his suitcase. Held 1) Trial judge stated as there was no specific mention of knowledge requirements in the relevant legislation; P only had to prove heroin was there. 2) Conviction reversed - HCA considered general guiding principles when interpreting legislation and stated that all legislation must be read in the light of common law presumption that offences require a subjective fault element (MR). This presumption of MR will be sustained unless and until it is displaced. Onus on P to prove prohibited goods were in D s possession, thus involves proving D knew goods in his custody. Brennan J at 569: 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 of a particular result. Such a decision implies a desire or a wish to do such an act or to bring about such result. Mason, Wilson and Dawson JJ concurred in the result but their reasoning differs in significant respects. Mason J agreed with Gibbs CJ; Dawson J agreed that the intent in importation related to both the importing and the the nature and quality of goods imported. However in relation to possession, he thought only a minimum intent was necessary P only had t prove knowledge of the physical presence of goods, not nature and quality. Ignorance of their natureand quality would arise as a defence of reasonable excuse. On the importation charge, Wilson J held that P did not have to prove any knowledge of the nature and quality of goods unless D led evidence to the contrary. If D led such evidence, then P had to establish BRD that D did know the nature and quality of goods. On possession charge, Wilson J followed Bush. As a consequence of He Kaw Teh, statutory criminal offences fall into three categories for the purposes of MR: 1. Obligation for P to prove MR ie. Intent, knowledge or recklessness must be proved by P as either an inference from nature of act committed or by additional evidence. 2. Strict liability offences where Proudman v Dayman (1941) 67 CLR 536 defence is available. No necessity for P to prove MR the doing of prohibited act prima facie imports offence up to D to avoid liability by proving he took all reasonable care; involves considering what reasonable man would do in circumstances. Defence available if D reasonably believed a mistaken set of facts, which, if true, render the act or omission innocent, or if he took all reasonable steps to avoid the offence. 3. Absolute liability offences. MR had no part and guilt established by proof of objective ingredients of the offence. Principles of interpretation Gibs CJ He Kaw Teh v R (1985) 157 CLR 523 principles in determining if MR presumption displaced resulting strict liability offence: First of course, one must have regard to the words of the statute creating the offence The second matter to be considered is the subject the matter the statute deals A third consideration is [justice in enforcement] it is pertinent also to inquire whether putting the defendant under a strict liability will assist the enforcement of regulations it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim. 1) Words of statute Primary matter considered is wording of statute to determine if MR displaced. If clear intention expressed by parliament to create strict liability offence no further analysis required. If ambiguity in language of statute, look at specific language of statute, judiciary may need to go beyond wording of the statute. Eg. In He Kaw Teh Gibs CJ stated the word possession implicitly imported a requirement of knowledge: Where a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence ( in his possession ) themselves necessarily import a mental element. 8

9 2) Subject matter with which the statute deals Notion that the more serious an offence, the greater protection D will need ideal of protecting citizens from arbitrary exercise of power by the state. The greater the potential threat to the liberty of the accused, the greater the need for safeguards requirement that P prove MR is a form of protection for the accused. Most modern cases take view that greater the social stigma and penalty, the greater likelihood parliament intended requirement of subjective fault element (MR). Thus, generally, strict liability offences are limited to less serious offences ie. Traffic and health regulations He Kaw The v R. Some serious offences have been interpreted as strict liability offences ie. Culpable driving in NSW (Crimes Act 1900 (NSW) s 52A; Jiminez v R). Eg, In He Kaw Teh v R HCA considered: 1) The gravity of social problems associated with consumption of narcotics but stated this was insufficient to rebut the common law presumption of subjective blameworthiness. 2) The more serious sanctions applied to a convicted person, the greater the requirements for fault elements (MR). In this case it was considered that, as the maximum penalty was life imprisonment, the offence would have to be committed knowingly or intentionally: [A] convicted offender is exposed to obloquy and disgrace and becomes liable to the highest penalty that may be imposed under the law. It is unlikely that Parliament intended that the consequences of committing an offence so serious should be visited on a person who had no intention to do anything wrong, and no intention that he was doing so. At ) Utility of imposing strict liability In He Kaw Teh, HCA stated court would consider whether imposing strict liability will assist in enforcement of regulations. Courts may refer to second-reading speeches and explanation memorandums to determine intention of parliament purpose of legislation must be to compel persons to take preventative measures to avoid committing an offence. Courts consider whether persons can do anything to avoid committing an offence, or if legislation creates a class of luckless victims Lim Chin Aik v R [1963] AC 160. Eg. In He Kaw Teh HCA held A person bringing baggage into a country can exercise some care to ensure no drugs are contained into it public interest requires such care however, this supports view parliament intended to penalise importation that was careless. However, no purpose would be served by criminalising a person who had taken reasonable care, but had unknowingly been an innocent agent to import narcotics. Strict liability offences Defence of honest and reasonable mistake of fact Proudman v Dayman (1941) 67 CLR 536 defence Defence of honest and reasonable mistake of fact Proudman v Dayman Defence available for strict liability offences: As a general rule an honest and reasonable belief in the state of facts which, if they existed would make D s act innocent, affords an excuse for doing what would otherwise be an offence. at 540. Burden of proof As with general defences, D carries the evidentiary burden. Once D put the defence in issue, P must disprove the defence BRD see He Kaw The; CTM v R (2008) 247 ALR 1. Defence of honest and reasonable mistake of fact requires an honest belief ignorance and inadvertence are not enough Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721. Mistake must be such that if facts were as they were believed to be, the conduct would have been innocent Proudman v Dayman; Chard v Wallis (1988) 12 NSWLR 453; and CTM v R. This has been interpreted as innocent according to law DPP (NSW) v Bone (2005) 64 NSWLR 735. Ostrowski v Palmer (2004) 218 CLR 493 HCA considered defence of honest and reasonable mistake of fact Facts D charged with fishing for rock lobsters in prohibited area while holding commercial fishing license. D had made inquiries at the relevant government department prior to fishing and believed he had been provided with a complete set of the relevant regulations. Consequently, D was unaware he was fishing in an area prohibited by the law. Issue Whether D s mistake could be characterised as a mistake of fact or law. Held HCA noted ignorance of the law does not afford any excuse for an act which would otherwise constitute an offence. The offence constituted of three elements all which D fulfilled: 1. Being holder of a fishing license; 2. Fishing for rock lobsters; 3. Fishing in a prohibited area. D made no mistake about any of these elements of his mistake only mistake he did not know about the regulation prohibiting fishing in that area. Held - D s mistake was a mistake of law he erroreously believed that no law prohibited him from fishing for rock lobster in that area. It is irrelevant that his belief was induced by the conduct of fisheries of a WA employee. (McHugh J, at 16). Therefore D could not rely on defence of honest and reasonable mistake of fact. D guilty and accordingly fined the mandatory penalty of $ Proudman v Dayman Policy refusal to accept a mistake of law Callinan and Heydon JJ at 85: A mockery would be made of the criminal law if accused persons could reply on, for example, erroneous legal advice, or their own selfserving understanding of the law as an excuse for breaking it, however relevant such matters might be to penalty when a discretion, unlike here, in relation to it might be exercised. Absolute liability offences Require only perpetration of AR and exclude the defence of honest and reasonable defence of fact liability is absolute. 9

10 Absolute liability offences are generally regulatory eg. - Exceeding the speed limit Kearon v Grant [1991] 1 VR Refusing to submit breath analysis R v Walker (1994) 35 NSWLR Selling liquor to under-aged persons Hickling v Laneyrie (1991) 21 NSWLR 730. Generally defences ie. Necessity and duress, are available, unless expressly excluded. When interpreting MR requirement for an offence: 1. Court applies principles stated in He Kaw Teh to determine if offence had subjective fault component or is strict liability. 2. If no subjective component, presumption that defence of honest and reasonable fact would apply. 3. Court reapplies principles from He Kaw Teh to determine whether this presumption was rebutted, and if so, is an absolute liability offence Allen v United Carpet Mills Pty Ltd [1989] VR 323. REQUIREMENT OF TEMPORAL COINCIDE Criminal liability requires AR and MR to be present at same time eg. forming intent to hit another, and then accidentally doing later, will not amount to assault. However, cases where AR and MR did not precisely co-exist courts have extended liability to perceive a serious of incidents forming a continuing act or series of acts. Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 Facts Fagan had parked car on a police officer s foot, possibly by accident, and then refused to move it. Fagan was charged with assaulting the police offier.. Facts- Appellant reversing a motor car, Constable morror directed him to drive forwars to kerbside, was not to offier s liking, indicated more precise spot. Stopped it with offside wheel on Morris foot. Engine of car stopped running. Morris slowly turned on ignition, reversed. Issue Whether P had proved facts which in law amount to assault. Held Whilst could not prove intention at time of parking car on the officer s foot, the intention to remain on the offier s foot was manifest, but this was due to omission rather than an act. The court restated that the principle that an assault can only be committed with an act, not an omission. However, Fagan was convicted on the grounds that the parking of the car, and maintaining of the car on the offier s foot should not be viewed in isolation, but rather as a continuing act. This meant the intention to apply force was superimposed at the time of the refusal to move the car. Held Fagan s driving over the foot was a continuing act, where although MR not present when he rolled the foot, it developed later. Precedence Continuing act. Relevance decision on the facts of this case series of acts has been correctly applied to other cases Thabo Meli v R [1954] 1 All ER 373. Questions raised 1. What was the question of act or omission significant to Fagan s argument? Defence contents that the initial mounting of wheel could not be an assault. There was no act on part of A which could constitute AR but only the omission or failure to remove the wheel as soon as he was asked. The dailure could not in law be an assault, nor could it provide MR to convert original act of mounting foot into assault. Argued he merely omitted the act of not immediately turning engine on. No MR as he did accidentally. Held MR came later, temporal coincidence. 2. What is significance of James J finding that Fagan s act is continuing? If the assault involves battery and that battery continues there is a continuing act of assault. Became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act. As long as MR is there as part of the act. 3. Bridge J s application of law different? Questions after the wheel had accidentally wheeled over the foot, what was the assault car was there with its own weight/inertia. Appellant s fault was that he omitted to manipulate that controls to set it in motion again. Language is wrong that he was holding or maintaining the car wheel on the constable s foot. It was stretching the agency of the accused was that he was continuing to act. Thabo Meli v R [1954] 1 All ER 373 Facts In accordance with a preconceived plan, D took a man to a hut, gave him a beer so that he was partially intoxicated, and then struck him over the head. Believing him to be dead, D took his body and rolled it over a low cliff, to make the scene look like it was an accident. The man was not dead. Medical record showed that the final cause of his deather was exposure when he was left unconscious at the foot of the cliff. Held Hitting a man over the head and placing him over the cliff was a series of acts with the same underlying intention. D was charged with murder. 10

11 Problem Question 1. John is 11 years old. He took some petrol from his father s shed. He then went to the park where he splashed the petrol on the wooden pergola. He then threw a match onto the pergola which caught fire and was completely destroyed. He was caught by the police at the scene and said to them that he knew he would get into big trouble from his father when he got home. He has been charged under s 195 Crimes Act. Look this section up and consider how the court will deal with the fact he is only 11. Introduction John could be liable for criminal damage under s 195 of the crimes act. The P must prove all elements BRD. Prosecution must also prove since John is under 11 that he had mischievous discretion. MR Capacity The P may find difficult may find difficult to prove mischeous discretion in this situation. Cite: C (A Minor) circumstances very similar etc. This is all the P has, not likely enough to prove mischeious discretion BRD. Unable to prove BRD. has no capacity. AR Arson Case This is an ARSON case statute for this s 195 crimes act. For John to be liable he must destroy or damage property belonging to another by fire there are no issues with these elements. Intentionally and reckless. (NOTE in other scenarios facts may raise issues). Additional Notes For assignment only consider partial defences. Appeal from Local Court from sentence/conviction à District court à seek leave à Criminal court of appeal Not too many obstables in appealing to the next level of appeal; but going from lower level to another level up is harder. Supreme court à Criminal Court of Appeal à seek leave à HCA (significant question of law for NSW and/or AU in general as appellant). Difficult to get into high court very rare in criminal cases. HCA hears way more civil appeals than criminal appeals. Court of Criminal Appeal and HCA most important courts they do acquit D, but not regularly appeal courts CCA is majority of work in sentencing appeals not conviction appeals when they allow or dismiss appeals, they make judicial statements in relation to application and interpretation of legal principles are major sources of law outside of legislation. Circumstances they will acquit - when Their appellant judgements making law doctrine on precedent applying legal principle at appellant level. Sources of law statutory offences statute. Two primary sources legislation and cases for assignment! For assignment Offence of negligent manslaughter one of the leading NSW case CCA TakTak Tak tak convicted of negligent manslaughter heroin addict, and drug supplier (Rabi) asked for two women as his dates ultimate victim, one of the girls OD Taktak asked to get her, did not take her to hospital, took her to the drugdealer s apartment, she was barely alive tak tak chargd with negligent manslaughter for not taking her to hospital when he should of. One of his grounds for appeal he did not cause her death. Prosecution did not have sufficient evidence to say Tak Tak s failure to take her hospital at appropriate time. On appeal Acquitted, not guilty, did not cause her death beyond reasonable doubt. Dismissal of appeal on no significant miscarriage of justice. Appeal courts make determinations as to questions of law. Standards of Proof Highest to Lowest BRD; BOP; Reasonable possibility BRD- when Crown BOR s 23A Mental illness Reasonable possibility S 23 Substantial impairment of mind Prosecution s burden is always to disprove or prove BRD AR and MR. Problem solving start with introduction nice and neat starting point reflects general principles of criminal law ie. AR and MR requirements of the offence. Eg. A could be liable for murder under s of Act; if not murder then manslaughter under Prosecution, regardless of offence must prove AR and MR requirements BRD (Woolmington principle****). Other intro points facts may identify defences, ie. Partial defences, provocation, or substantial impairment of mind. IE structure for problem solving Zaburoni v The Queeen [2016] HCA 12 HCA upheld appeal QLD Criminal Code D intentionally infected someone with HIV to prove intention; D wanted to infect his partner with HIV, that was his purpose (MR) Perhaps best P could prove was recklessly indifferent Zabouroni wilfully blind in what he did Willful blindness is not the same as intention, but can assist in showing intention. Impact of this case on NSW criminal law s 33 Crimes Act 1900 wounding or grevious bodily harm with intent. Definitions GBH includes grievous bodily disease max penalty Section 35 Reckless grevious bodily harm max prisonment is 10 years. Distinction between different MR make huge distinction in punishment. Elements of the offence are AR + MR usually stated in legislation itself or stated in the common law. S 18(1)(A) Murder. Every element must be proven by prosecutor BRD. Discussion in problem solving Crisp, neat, sub headings and headings NOT IRAC. 11

12 INTRO ALL AR components heading Murder / AR Conduct sub heading Voluntariness sub heading Act or omission sub heading causation sub heading death of life in being heading Murder/ MR fault legal analysis under each heading involves recognition of important piece of case law to resolve the issue. In relation to my offender can I prove Case law to assist with analysis and resolving issues. Temporal coincidence - this may offend against, or align to the requirement of AR/MR. - Is there an issue of temporal coincidence associated with specific offence or offence categories. See p. 28 seminar materials Fagan is an important authority re temporal coincidence for assault (maybe for exam late in semester). Specific homicide cases dealing with temporal coincidence issues/authorities DO NOT USE FAGAN FOR MURDER AUTHORITY FOR MURDER SHOULD BE A HOMICIDE CASE use offence specific cases. Wrong to take assault case for authority for a murder case. 12