PART 1: THE FUNDAMENTALS...

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1 Contents PART 1: THE FUNDAMENTALS... 6 The Fundamentals of Criminal Law (CHAPTER 1)... 6 Sources of criminal law:... 6 Criminal capacity:... 7 Children:... 7 Corporations:... 7 Classifications of crimes:... 8 A doctrinal framework: General principles of criminal responsibility:... 8 Elements of an offence:... 9 Mens rea:... 9 Actus reus:... 9 The doctrine of temporal coincidence: Defences: Strict liability crimes: Inchoate crimes: Participation: Transferred malice: Burdens of proof: The legal burden of proof: The evidential burden of proof: PART 2: HOMICIDE... Error! Bookmark not defined. Homicide and Actus Reus (CHAPTER 2)... Error! Bookmark not defined. The legal reality of homicide:... Error! Bookmark not defined. Categories of unlawful homicide:... Error! Bookmark not defined. Murder:... Error! Bookmark not defined. Manslaughter:... Error! Bookmark not defined. Defining homicide:... Error! Bookmark not defined. The meaning of life and death :... Error! Bookmark not defined. Foetus and child:... Error! Bookmark not defined. Death:... Error! Bookmark not defined. Actus reus:... Error! Bookmark not defined. To prosecute for murder:... Error! Bookmark not defined. Voluntariness:... Error! Bookmark not defined.

2 Causation:... Error! Bookmark not defined. First causal test: The operating and substantial cause test:... Error! Bookmark not defined. Second causual test: The novus actus interveniens test:... Error! Bookmark not defined. Third and fourth causal tests: The natural consequence and reasonable foresight tests:... Error! Bookmark not defined. Murder and Mens Rea (CHAPTER 3)... Error! Bookmark not defined. The means rea element of murder:... Error! Bookmark not defined. Motive:... Error! Bookmark not defined. Transferred malice/intent:... Error! Bookmark not defined. Intention must be subjective:... Error! Bookmark not defined. Intention to kill:... Error! Bookmark not defined. Actual intention:... Error! Bookmark not defined. Intention and foresight of probability of death:... Error! Bookmark not defined. Intention to cause grievous bodily harm:... Error! Bookmark not defined. Grievous bodily harm:... Error! Bookmark not defined. An objective standard:... Error! Bookmark not defined. Recklessness as to causing death or grievous bodily harm:... Error! Bookmark not defined. The test for recklessness:... Error! Bookmark not defined. Distinguishing recklessness from intention:... Error! Bookmark not defined. Justification for the doctrine of reckless murder:... Error! Bookmark not defined. Probability or likelihood:... Error! Bookmark not defined. Measuring probability and likelihood:... Error! Bookmark not defined. Constructive murder:... Error! Bookmark not defined. Origins and criticisms of the common law rule:... Error! Bookmark not defined. Causation:... Error! Bookmark not defined. Temporal connection between act and killing- in the course or furtherance of an offence:. Error! Bookmark not defined. Specified offences:... Error! Bookmark not defined. The common law position:... Error! Bookmark not defined. Resisting lawful arrest constructive murder:... Error! Bookmark not defined. Temporal coincidence:... Error! Bookmark not defined. Murder: The Doctrines of Provocation and Self-defence (CHAPTER 4).. Error! Bookmark not defined. Provocation: (NOT EXAMINABLE)... Error! Bookmark not defined. Procedures and tactics:... Error! Bookmark not defined. Defining the defence:... Error! Bookmark not defined.

3 The doctrine of self-defence:... Error! Bookmark not defined. Subjective and objective test: common law:... Error! Bookmark not defined. Conflicting case law and the rule in Zecevic:... Error! Bookmark not defined. Statutory changes in the law of self-defence:... Error! Bookmark not defined. Summary of self-defence:... Error! Bookmark not defined. Related defences: Defence of property, others, preventing crimes, and escape: Error! Bookmark not defined. Involuntary manslaughter (CHAPTER 5)... Error! Bookmark not defined. Relationship between categories of manslaughter:... Error! Bookmark not defined. Involuntary manslaughter by unlawful and dangerous act (constructive manslaughter):... Error! Bookmark not defined. Unlawful and dangerous act:... Error! Bookmark not defined. Causation:... Error! Bookmark not defined. Voluntariness and intention:... Error! Bookmark not defined. The reasonable person:... Error! Bookmark not defined. Involuntary manslaughter by criminal negligence (negligent manslaughter):... Error! Bookmark not defined. Breach of a duty of care:... Error! Bookmark not defined. The standard of negligence:... Error! Bookmark not defined. Conduct amounting to criminal negligence:... Error! Bookmark not defined. Elements that must be proven to convict for negligent manslaughter:... Error! Bookmark not defined. Involuntary manslaughter by omission:... Error! Bookmark not defined. Motorists:... Error! Bookmark not defined. Medical negligence:... Error! Bookmark not defined. PART 3: ASSAULT... Error! Bookmark not defined. Laws of Assault (CHAPTER 6)... Error! Bookmark not defined. Mens reas of common assault:... Error! Bookmark not defined. 1. Intention:... Error! Bookmark not defined. 2. Recklessness:... Error! Bookmark not defined. Actus reus of common assault:... Error! Bookmark not defined. 1. Force (or battery) limb:... Error! Bookmark not defined. 2. Threats limb:... Error! Bookmark not defined. Temporal coincidence:... Error! Bookmark not defined. Aggravated assaults:... Error! Bookmark not defined. Assaults resulting in a particular level of harm:... Error! Bookmark not defined.

4 The actus reus of aggravated assaults:... Error! Bookmark not defined. Mens reas for aggravated assaults:... Error! Bookmark not defined. Other forms of aggravated assaults:... Error! Bookmark not defined. Consent:... Error! Bookmark not defined. Lawful sporting events:... Error! Bookmark not defined. Sexual activity:... Error! Bookmark not defined. Surgery:... Error! Bookmark not defined. Lawful chastisement:... Error! Bookmark not defined. Fraud and the issue of consent:... Error! Bookmark not defined. Self-defence and provocation:... Error! Bookmark not defined. Other offences against the person:... Error! Bookmark not defined. Sexual Assault (CHAPTER 7)... Error! Bookmark not defined. The elements of rape at common law:... Error! Bookmark not defined. Consent:... Error! Bookmark not defined. The meaning of consent:... Error! Bookmark not defined. Withdrawal of consent:... Error! Bookmark not defined. Does fraud vitiate consent?... Error! Bookmark not defined. Mens rea:... Error! Bookmark not defined. The statutory crime of rape:... Error! Bookmark not defined. Indecent assault:... Error! Bookmark not defined. The assault element:... Error! Bookmark not defined. The circumstances of indecency element:... Error! Bookmark not defined. The offered towards the victim element:... Error! Bookmark not defined. Statutory crimes of indecent assault:... Error! Bookmark not defined. PART 4: PROPERTY OFFENCES... Error! Bookmark not defined. Theft and Larceny (CHAPTER 8)... Error! Bookmark not defined. Definition of offence:... Error! Bookmark not defined. The elements of theft:... Error! Bookmark not defined. The actus reus:... Error! Bookmark not defined. Property:... Error! Bookmark not defined. Belonging to another:... Error! Bookmark not defined. Appropriation:... Error! Bookmark not defined. Mens rea elements:... Error! Bookmark not defined. Intention of permanently depriving the other of their property:... Error! Bookmark not defined. Conditional intention to permanently deprive:... Error! Bookmark not defined.

5 Dishonesty:... Error! Bookmark not defined. Deception and Fraud Offences (CHAPTER 9)... Error! Bookmark not defined. Obtaining property by deception:... Error! Bookmark not defined. The elements of the offence:... Error! Bookmark not defined. The actus reus elements:... Error! Bookmark not defined. Property:... Error! Bookmark not defined. Belonging to another:... Error! Bookmark not defined. Obtain:... Error! Bookmark not defined. Deception has both an actus reus and a mens rea component:.. Error! Bookmark not defined. The obtaining must be by way of deception:... Error! Bookmark not defined. The mens rea elements:... Error! Bookmark not defined. Dishonesty:... Error! Bookmark not defined. Intention to permanently deprive:... Error! Bookmark not defined. The mens rea component of a deception:... Error! Bookmark not defined. Obtaining financial advantage by deception:... Error! Bookmark not defined. Statement of offence:... Error! Bookmark not defined. Financial advantage:... Error! Bookmark not defined. Cases involving cheque cards, and credit cards:... Error! Bookmark not defined. Must the person who is deceived also be the person from whom the pecuniary or financial advantage is obtained?... Error! Bookmark not defined. Burglary, Robbery and Extortion (CHAPTER 10)... Error! Bookmark not defined. Burglary:... Error! Bookmark not defined. The statutory offences of burglary in Victoria:... Error! Bookmark not defined. Aggravated burglary:... Error! Bookmark not defined. Robbery:... Error! Bookmark not defined. Elements (1), (2), and (4):... Error! Bookmark not defined. Element (3) above in order to steal :... Error! Bookmark not defined. Armed robbery:... Error! Bookmark not defined. PART 6: THE INHOATE OFFENCES... Error! Bookmark not defined. Attempt, Incitement and Conspiracy (CHAPTER 12)... Error! Bookmark not defined. Attempts:... Error! Bookmark not defined. The mens rea for attempt at common law:... Error! Bookmark not defined. Can recklessness constitute a sufficient mens rea for an attempt at common law?... Error! Bookmark not defined.

6 The mens rea for attempt under the various statutory provisions in the Australian common law jurisdictions:... Error! Bookmark not defined. The actus reus for attempt at common law:... Error! Bookmark not defined. The issue of voluntary desistance:... Error! Bookmark not defined. Impossibility as a defence to attempts:... Error! Bookmark not defined. Incitement:... Error! Bookmark not defined. Conspiracy:... Error! Bookmark not defined. Mens rea for conspiracy:... Error! Bookmark not defined. PART 8: THE GENERAL DEFENCES... Error! Bookmark not defined. The Defences of Compulsion: Duress and Necessity (CHAPTER 14)... Error! Bookmark not defined. Duress:... Error! Bookmark not defined. Definition of the defence of duress:... Error! Bookmark not defined. The nature of the threats:... Error! Bookmark not defined. Criminal enterprises:... Error! Bookmark not defined. The person of ordinary firmness test: an objective standard:... Error! Bookmark not defined. There were no means, with safety to the accused, of preventing the execution of the threat.... Error! Bookmark not defined. The defence of duress and murder:... Error! Bookmark not defined. Battered women s syndrome:... Error! Bookmark not defined. Necessity:... Error! Bookmark not defined. Elements of necessity:... Error! Bookmark not defined. The defence of necessity and murder:... Error! Bookmark not defined. Other considerations:... Error! Bookmark not defined. Mental State Defences: Intoxication, Insanity and Diminished Responsibility (CHAPTER 15)... Error! Bookmark not defined. Intoxication:... Error! Bookmark not defined. Defence and the process of proof:... Error! Bookmark not defined. Voluntariness and intoxication:... Error! Bookmark not defined. Basic and specific intent:... Error! Bookmark not defined. Insanity:... Error! Bookmark not defined. Test for insanity:... Error! Bookmark not defined.

7 PART 1: THE FUNDAMENTALS The Fundamentals of Criminal Law (CHAPTER 1) Sources of criminal law: The law of Australia s is derived from the law of England. Parliaments in England and Australia have taken an increasingly interventionist role in the creation of law. This created an extensive body of statutory law. The primary source of criminal law is the common law. The main criminal law statutory provision is Crimes Act 1958 (Vic). The members of the High Court have displayed a tendency to: 1. Sever the connection between the common law of England and the common law in Australia. 2. Develop a national criminal law. Criminal capacity: Children: Everyone is capable of committing crimes and being held criminally liable for those crimes. The minimum age at which a person is deemed capable of committing a crime is 10 under the Children, Youth and Families Act 2005 (Vic) s 344. Children who are age 10 and under the age of 14 are incapable of committing a crime. The prosecutor must not only prove the elements of the crimes in question and the child s complicity therein beyond a reasonable doubt, but also prove by the same standard of proof that at the time of the alleged criminal act or omission, the child knew that his or her conduct was wrong in the sense that it was in contravention of the standards which govern the behaviour of ordinary persons. o The prosecutor does thus by adducing testimony from the police that the child admitted t knowing that what he or she did was wrong in the relevant sense. In Victoria, under the Children, Youth and Families Act 2005 (Vic) s 516, the Children s Court has exclusive jurisdiction over most crimes committed by persons who are over the age of 10 and under the age of 18 at the time of the commission of an offence. o Exception 1: the Children s Court lacks jurisdiction to adjudicate all homicide offences as well as the offence of attempted murder. o Exception 2: in exceptional circumstances, the court may exercise discretion to decline jurisdiction and order that the matter be transferred to the Magistrates Court. Exceptional circumstances = instances where the defendant was under 18 at the time the offence was allegedly committed, but has reached 19 or above by the time the proceedings were actually commenced in the Children s Court. Other instances: due to the seriousness of the alleged crime/s and/or the advanced ages of the accused, the court is of the view that it would be more appropriate to try the defendant as an adult in the Magistrates Court.

8 Corporations: Exception 3: if the defendant is charged with one or more indictable offences, s/he may opt to have the charge adjudicated by a jury in the County or Supreme Court under the Children, Youth and Families Act 2005 (Vic) s 3(1), 356 and 516. Given the pervasive presence of corporations in a wide range of activities in our society and the impact of their actions on a much wider group of people than are affected by individual action, the potential for both economic and physical harm caused by a corporation is great NSW Law Reform Commission in Issue Paper 20 (2001). Corporations have the legal status of persons and can incur criminal liability under certain circumstances. At common law, a corporation may only act through its officers or employees. A corporation should only be liable for conduct on the part of its agents, which can fairly be regarded as the conduct of the corporation itself. o Approach 1: the doctrine of vicarious liability acts of the employee in the course of his/her employment are attributed to the corporate employer. o Approach 2: the doctrine of identification the law treats the acts and mentality of the superior officer of the company as the acts and mentality of the company itself. A corporation can be convicted of the same offences as a natural person eg fraud, theft. Corporations can attract criminal liability as accessories to a crime as well as principals and as parties to a conspiracy. Classifications of crimes: In Victoria, the traditional classifications was abolished by the Crimes (Classifications of Offences) Act 1981 (Vic) and are now: o A felony= a serious indictable offence. o A misdemeanour= a minor indictable offence. Currently in Victoria, crimes are now classified as being either summary offences or indictable offences. o Summary offences= offences that are dealt with by a magistrate sitting without a jury. The determination of summary offences is called a hearing. They are typically less serious than indictable offences or indictable offences which are triable summarily. o Indictable offences= triable only before a judge and jury. o Indictable offense that are triable summarily= offences that upon the consent of the parties designated by parliament are triable summarily before a magistrate sitting without a jury. NOTE: unless all of the designated parties consent to summary disposition, the matter will be treated as an indictable offence and disposed of accordingly in the County or Supreme Court. Parliament along decides whether a crime is designated as summary, indictable or indictable triable summarily. Crimes are sometimes classified as: o Offences against the person eg assaults and unlawful homicides. o Offences against property eg larceny, theft, blackmail, burglary and robbery.

9 A doctrinal framework: General principles of criminal responsibility: Criminal responsibility might not be attributed to a person unless the 3 principles embodied in the common law maxim: actus non facit reum nisi mens sit rea (the act itself does not constitute guilt unless done so with a guilty mind) are satisfied. 1. S/he has engaged in conduct that is forbidden by the criminal law (the actus reas of the crime). 2. Possesses a mental state prohibited by the criminal law (the mens rea of the crime). 3. The requirement of temporal coincidence: It is required that the prohibited mentally exist at the time of the volitional act/s or omission/s giving rise to the prohibited conduct. That is, it is only where there s a temporal coincidence between ones criminal acts or omissions and one s criminal mentality that liability attaches. Elements of an offence: Mens rea: Each and every element which comprises an offence must be present and proved by the Crown, and the defendant s complicity therein, beyond a reasonable doubt, in order for the crime to have been committed. The elements that comprise any particular crime are referred to as the corpus delicti (the body of the crime). The defendant must have acted with a particular state of mind. Mens rea= bad/guilty mind. The mens rea component can consist of the following mental states: 1. Intention: the defendant acted or omitted to act with the actual subjective intention of bringing about one or more of the results forbidden by the definition of the crime. 2. Knowledge: the defendant acted or omitted to act while holding certain facts to be true. 3. Belief: the defendant acted or omitted to act with the belied that certain facts were true, albeit with some doubt or doubts as to their existence. 4. Recklessness: the defendant acted or omitted to act with knowledge that there was a possibility or a probability that some or all of the results forbidden would result from his/her conduct. Negligence as a mens rea? If the defendants conduct amounts only to ordinary negligence where the defendant should have been aware of the risk but did not actually advert to it, this does not constitute mens rea. o This is because, negligence is not a mental state, but merely conduct which falls below an objective standard of care required by law to protect others from unreasonable risks of harm. Recklessness is a form of aggravated negligence in which the defendant actually adverts to a known risk and elects to proceed despite that awareness. o It is because of the express advertence that constitutes a mens rea.

10 Actus reus: It is only when an accused s reckless state of mind temporally coincides with a voluntary act or omission that poses an unreasonable risk of harm to another or others that it rises to the level of aggravated negligence. Actus rea= external or non-mens rea elements. Actus rea= bad act. This component requires that the non- mens rea elements must be the result of a voluntary act or omission to act where the law imposes a duty to act. o There must be a causal connection between the act r omission and the non-mens rea elements of the crime. Situational offences: o They are crimes of a minor nature and have been created by statute. o They do not require proof of conduct on the part of D whether it be activity or inactivity. o The actus reus does not extend to these acts and thus they will not need to be proven. For an act to be regarded as voluntary it must consist of some willed muscular movement. o A muscular movement is willed if it results from a conscious decision to move a portion of one s body. Movements whilst eg sleeping walking do not constitute voluntary acts or omissions. o An omission to act is regarded as voluntary if it results from a conscious decision to refrain from acting. Involuntary movements eg reflex actions do not constitute voluntary acts or omissions. An omission can form the actus reus of an offence only where a person is under a legal duty to act. A duty to act will arise in the following circumstances: 1. Where one is under a contractual duty to act eg a hired body guard. 2. Where one is under a statutory duty to act eg police officers. 3. Where one is deemed to have voluntarily assumed a duty to act by undertaking to rescue someone in peril eg R v Stone and Dobinson [1977] QB Where the defendant and victim have a special relationship. A relationship is found when a crime is in fact relying on the defendant to protect him/her, the reliance is reasonable under the circumstances and the defendant knows or has reason to know of the victim s reliance. It exists between parents and minor children, spouses, common carriers and passengers, innkeepers and guests, primary or secondary school teachers and pupils. Eg if a mother is a good swimmer and notices her 4 yo child drowning in the neighbours pool, the law requires her to make a reasonable effort to rescue the child. Her inaction will be considered a voluntary omission to act, which can give rise to criminal liability. An omission will not be considered voluntary unless the defendant is aware that the victim is in peril and circumstances are such that the defendant can avert the danger without a significant risk of suffering grievous bodily harm to himself/herself. The prosecution is required to prove this beyond reasonable doubt.

11 The doctrine of temporal coincidence: Defences: There can be no such crime unless the mens rea and the voluntary act or omission which brings about the non-mens rea elements concur in time. The particular act and the intent with which it is done must be proved by the prosecution beyond reasonable doubt. o Act and intent must coincide. A primary/ denial defence: It is one that asserts that based on the evidence adduced, that the prosecution has failed to prove one or more of the constituent elements of an offence with which an accused is charged and/or that the accused is the person who committed the alleged crime. Eg that the prosecution failed to prove mens rea or a component of actus reus. Secondary/affirmative defences: An accused is asserting that even if the prosecution has proven each of the constituent elements of the offence and the accused s complicity therein, s/he is nonetheless entitled to an acquittal because of a defence that is recognised in law and supported by the evidence adduced at trial. Eg self-defence. Strict liability crimes: They are those that by way or express statutory statement or judicial interpretation, do not require proof of fault. o Fault= the accused acted negligently in bringing about the consequences proscribed by the statutory or common law definition of the crime/s alleged. It includes any instance in which an accused is found to have committed a crime of mens rea. There are defences which are of specific application to strict liability crimes: o Proudman defence: an honest and reasonable belief in the existence of facts that, if true, would have made the accused s conduct perfectly lawful. o External intervention defence: requires the accused to show that: (i) His/her conduct occurred as a result of a stranger or non-human act. (ii) s/he had no control over that conduct. (iii) s/he could not have been reasonably expected to guard against such external intervention. Inchoate crimes: They include attempt, incitement and conspiracy. The criminal law come the closet to holding people criminally responsible for their thoughts alone. It is possible for the law to intercede pre-emptively. Incitement consists of encouraging or attempting to induce or persuade another person to commit a crime. Conspiracy consists of an agreement between or among 2 or more persons to commit an illegal act.

12 Participation: The criminal law attributes responsibility to individuals on the basis of their association with others permits the process of criminal justice to target groups. The law of participatory liability: a principal in the first degree: o It is a party who personally performs part or all of e actus reus of the crime. o If 2 or more parties each perform a portion of the actus reus, then each is considered to be a joint principal in the first degree. Each party to the joint criminal enterprise s personally liable for the crime to the same extent as a principal in the first degree. The act of one is the act of all. o The term encompasses those who are both present (ie within eyesight and earshot or at least in close enough proximity to render assistance to the other joint principals) at the scene and acting in concert as part of a pre-conceived agreement, express or implied, to commit a crime. a principal in the second degree: o One who is present at the scene of the crime and though providing assistance and/or encouragement to the principals in the first degree, does not significantly contribute to or actually perform any portion of the actus reus of the ulterior crime. o Liability of a principal; in the second degree or an accessory before the fact is derived solely from the liability of the joint principals or principal in the first degree. An accessory before the fact: o A party who provides the same type of assistance or encouragement as a principal in the second degree, except that s/he is not present at the scene where the ulterior crime takes place. An accessory after the fact: o They don t provide assistance or encouragement in the actual commission of the ulterior crime, yet they take affirmative steps after its commission to secrete one or more of the aforementioned participants, or otherwise assist them in avoiding apprehension or prosecution while knowing or believing that they have committed the offences in question. o Under the common law doctrine, an accessory after the fact is liable to the same extent as a principal in the first degree. The common purpose doctrine: o Secondary parties are not only liable to the same extent as a principal in the first degree for the offence/s that were actually contemplated by the secondary parties and committed by principals in the first degree but also for any other crimes committed by them which the secondary parties contemplated might be committed as incidental to the offence/s actually contemplated. o It denoted the situation in which the parties to crime are acting in concert pursuant to an agreed upon or pre-conceived plan to commit one or more offences. Transferred malice: When an accused acts with the requisite mens rea to commit an offence against a particular person or property and instead succeeds in causing the same type of harm to another

13 person or property, the law treats the accused in the same manner as if s/he has carried out the crime as intended. o The law regards the mens rea as being transferred from the intended person or property to that which is actually harmed. The doctrine doesn t apply unless the accused ultimately achieves the same offence that s/he intended. o The doctrine is only applicable in instances where the actus reus of the intended offence is identical to that of the resulting offence. It also applies where the intended offence is one that requires that an accused act recklessly in bringing about a forbidden result. Burdens of proof: When the accused is asserting a secondary defence, it is the accused who bears the evidential burden with respect to each element of the defence. o The test for determining whether the accused has satisfied the burden is to ask whether the evidence, looked upon in the light most favourable to the accused, is such that a jury or judge could reasonably find that the Crown has failed to negate one or more of the elements of the defence beyond reasonable doubt. o If the accused meets the evidential burden the Crown then assumes an additional legal burden of negating the defence beyond reasonable doubt. When insanity and diminished responsibility defences are interposed, the accused bears both the evidential and legal burdens of proof. o The accused must persuade the court that the evidence, looked upon in the light most favourable to the accused, is such that a fact-finder could reasonably find, on the balances of probabilities, that the constituent elements of the defence have been proven. The legal burden of proof: The legal burden of proof denotes the burden of ultimately persuading the fact-finder of the existence or non-existence of a disputed fact by whatever standard of proof is required by law. In criminal prosecutions, it is the Crown that carries the legal burden with respect to each and every element of the offence/s charged and the identity of the accused as the perpetrator. The standard of proof by which the crown must satisfy the judge or jury of these facts is the most stringently recognised in law: beyond reasonable doubt. The evidential burden of proof: It denotes the burden of persuading the court that there is ample evidence in support of a claim or defence to warrant a determination by the fact-finder as to whether the legal burden has been discharged. In criminal cases, the Crown bears the evidential burden with respect of each and every element of the offence/s charged and the identity of the accused as the perpetrator. The test for determining whether there Crown has satisfied this burden is to ask whether the evidence, looked upon in the light most favourable to the Crown is such that a jury or judge could reasonable find these facts have been proved beyond all reasonable doubt.

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