CRIMINAL LAW SUMMARY (I) GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY. Woolmington v DPP

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1 CRIMINAL LAW SUMMARY (I) GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY BURDEN OF PROOF Glden Thread = the prsecutin bears the nus f prf fr every ffences t be prven beynd reasnable dubt Wlmingtn v DPP Wlmingtn v DPP Facts: Accused killed estranged wife by accidental shting. Judge at the first instance directed jury that the accused was presumed guilty unless it culd be shwn that his actins were accidental, thus directing the jury that the nus was n the defendant. Accused appealed death sentence and case went t HL. Rati: Glden Thread Speech Viscunt Sankey LC = thrughut the web f the English Criminal Law ne glden thread is always t be seen, that is the duty f the prsecutin t prve the prisner s guilt subject t what I have already said as t the defence f insanity and the subject als t any statutry exceptin. If, at the end f the whle case, there is reasnable dubt, created by the evidence, given by either the prsecutin r the prisner, the prsecutin has nt made ut its case and the prisner is entitled t an acquittal. N matter what charge r where the trial, the principle that the prsecutin must prve the guilt f the prisner is part f the cmmn law and n attempt t whittle it dwn can be entertained. Legal v Evidential burden f prf Prsecutin Legal burden Must prve every element f the crime BRD: Wlmingtn v DPP must rebut/disprve (almst) all defences raised by the D r the Curt BRD! Exceptins: where defence f mental impairment r diminished respnsibility where prvided by statute is raised " shifts t the D Standard f prf is BRD: s 141(1) Evidence Act 1995 (NSW) Evidential burden Raise matters pertaining t the facts re the elements f crime Standard f prf is Balance Of Prbabilities (BOP) Defence Legal burden Prf the elements f defences raised Standard f prf is BOP: s141(2) Evidence Act 1995 NSW Evidential burden Raise matters pertaining t the facts re elements f defences Standard f prf is BOP 1

2 (II) PHYSICAL ELEMENT/ACTUS REAS TYPES OF PHYSICAL ELEMENTS Cnduct assault, aggravated assault, theft, btaining by deceptin Act Omissin! N general duty t prevent a crime R v Instan! Duty t act may arise as a result f a family relatinship R v Russell 1933 r undertaking t care fr anther unable t self care R v Instan! Can be criminally liable fr failure t take measure within ne s pwer t cunteract self-created danger R v Miller! There may be a statutry impsitin f duty t act?! Where a duty t prvide fr in CL r statute, missin t act can amunt t criminal cnduct R v Miller Once the accused becmes aware f the danger he has created, a duty arises t take reasnable steps t cunteract the danger R v Miller State f affairs (i.e., being drunk and disrderly, being in pssessin f a prhibited substance, being an illegal alien) Cnduct in specified circumstances i.e., sexual assault, theft Smething additinal t the cnduct Intentinal sexual penetratin (cnduct) is nly criminal withut cnsent (specified) Results/cnsequences f cnduct Murder, manslaughter, arsn Must prve causatin (i.e, that cnduct caused the requisite cnsequences VOLITION the physical element must be acted vluntarily (pursuant t the accused s will). A willed act is ne exerted with cnscius cntrl ver the muscular cntractin. Ryan An unwilled reflex r spasm is nt vluntary and will nt cnstitute an AR Vlitin is presumed in the absence f cntrary evidence (evidential burden n the defence, which then shifts t the prsecutin BRD) R v Falcner Whether the act was vluntary is a matter t be left t the jury Murray v The Queen Invluntary acts (I) accident (II) reflex actin (III) sane autmatism Accident Acts caused withut intentin, recklessness r criminal negligence are deemed accidental R v Falcner As it was an accident, there is n intentin and thus, n requisite MR. Reflex actin 2

3 acts based n an external cause rather than intentin are deemed reflexive Ryan Ryan v The Queen (1967) 121 CLR 205 " REFLEX ACTION Facts: The accused entered a petrl statin t cmmit a rbbery pinted a laded gun at attendant and demanded mney. When getting a chrd t tie the attendants hands with ne hand, the attendant swung arund causing him t falter, and the gun discharged reflexively. Law applied: P must prve BRD that the deed charged as a crime was the vluntary r willed act f the accused. Held: The act must be intended, althugh nt the cnsequences. The accused s invluntary act as a freseeable cnsequence f vluntarily placing himself in a particular psitin is enugh t prve criminal liability here with the act causing the death was pinting a laded gun at the victim s head with the safety ff. Invluntary discharge was a likelihd which ught t have been in the cntemplatin f the accused when he pinted the gun In hlding a laded weapn at the head f the victim, the accused was acting as a fully cnscius man Impaired Cnsciusness a state f impaired cnsciusness asleep r uncnscius: [an] act cmmitted while uncnscius is necessarily invluntary Jiminez Autmatism: nt asleep, but nt cnscius f actins. Dissciative state, ften withut memry f the actins It is nt a defence the accused (D) has an evidential burden which the prsecutin must prve BRD Yuseff 1990 A Crim R Autmatism is the absence f the will t act r f its exercise Ryan Sme degree f cntrl ver bdy mvements des nt preclude autmatism, nr des sme awareness/cgnitive functin R v Radfrd Intxicatin is irrelevant t vlitin r a state f autmatism unless there is a cntinuing, underlying cnditin caused r exacerbated by the intxicatin R v Falcner 3

4 R v Falcner Facts: Accused s husband had cme ver t where she was staying and he assaulted her she sht him dead. Mrs Falcner claimed she remembered nthing after her husband grabbed her hair, and she fund herself slumped with a gun with n recllectin f firing, picking up the weapn, r lading it. There was a lng histry f spusal abuse, and the accused had btained a nn-mlestatin rder against the husband and criminal prceedings were undertaken regarding mlestatin f their daughters. Defence argument was that the accused s cnduct was cnsistent with a state f autmatism which rendered her cnduct invluntary. Judgement: the accused was nt criminally respnsible fr an act r missin which ccurs independently f the exercise f his/her will. there was a dissciative state, where persnality segmented such that she was nt aware f her actins. Such a state raises n questin f insanity, but des f whether the act was vluntary. " dissciatin caused frm a severe psychlgical blw is sufficient t cause sane autmatism external psychlgical stimuli are relevant t insane autmatism. Amnesia is nt f itself, a defence, thugh it is ften linked t a state f autmatism. Jiminez v The Queen (1992) 173 CLR 572 Facts: The accused fell asleep at the wheel and crashed int a tree. The passenger in the vehicle died. The accused was charged fr Culpable Driving Causing Death (s52a Crimes Act). He appealed arguing that he fell asleep with n warning and hence the driving element f the ffence was nt vluntary. Issue: Appellant mmentarily awke befre the crash tried t regain cntrl f the vehicle whilst he was driving during this time, he was nt driving dangerusly. Law applied: Act cmmitted whilst asleep (i.e., uncnscius) is nt vluntary Held: Where the driver has fallen asleep, the relevant perid f time fr assessing whether driving was in a manner dangerus t the public is immediately prir t the perid f sleep an act cmmitted while uncnscius (asleep) is necessarily invluntary the curt held that he was nt driving dangerusly at the pint f impact r prir t the crash, since he culd nt be said t be vluntarily driving. Whilst he wke up immediately prir t crashing, his attempts t avid cllisin were nt dangerus. Nnetheless, he was fund guilty f the ffence see cincidence f MR and AR sectin fr the curt s fcus n dangerusness prir t falling asleep Sane v Insane autmatism Once raised as issue with a prper fundatin (nrmally medical evidence), nus is n P t prve BRD that the accused s act was vluntary: Hill v Baxter. There are tw types: Sane = a cnsequence f external stimuli " relates t invluntariness Prvides cmplete acquittal since act was invluntary Insane results frm a disease f the mind internal, cntinuing disrder Cnsequence: defence f insanity/mental impairment raised Disease f the mind tests: There are three tests fr what shuld be cnsidered a disease f the mind : NB, this is meant nly as an analytical tl nt an all encmpassing methdlgy R v Falcner 4

5 Recurrence/cntinuing danger test - R v Carter; Bratt v AG(Nrthern Ireland) Is the mental cnditin, which has manifested in vilence, prne t reccur?! Unfair cnditins such as epilepsy, sleepwalking etc which CAN reccur, but can als be treated with medicatin Internal/External test - R v Falcner If the mental state is internal, rather than arising fr external stimuli, this pints t insane autmatism/disase f the mind! This f limited use fr cases which are internal but stimulated by external causes, eg sleepwalking Sund/unsund mind test - R v Radfrd, R v Falcner Mre sphisticated versin f internal/external test aimed specifically at dissciative states! Distinctin between reactin f an unsund mind t its wn delusins r t external stimuli, and the reactin f a sund mind t external stimuli, including stress-prducing factrs. Difficulty in distinguishing between reactin f unsund mind and that f sund mind may largely depend upn accused s susceptibility t emtinal shck and stress.! The significant distinctin is between the reactin f an unsund mind t its wn delusins r t external stimuli n the ne hand, and the reactin f a sund mind t external stimuli, including stress prducing factrs, n the ther hand. - King CJ at 276, Radfrd States which may cnstitute sane autmatism Sleepwalking Ryan Cncussin fllwing a blw t the head Sullivan Hypglycemia Quick [1973] QB 910 Epilepsy Sullivan Disassciatin arising frm extrardinary external stress Falcner Sleep Krn Exceptin: culpable cnduct in the cntext f driving Jiminez R v Radfrd Facts: Sht and killed wman he believed t be lver f his ex-wife. Radfrd served in Vietnam and thught he was in army at time, and claimed he had gne int a srt f ccn. R v Yilmaz Facts: Saudi diplmat sht in back f head with air gun pellet, stabbed multiple times and thrat slashed. Accused had been member f Turkish army, had fired n civilians, been trtured and claimed dissciative state due t flashback frm traumas whilst diplmat mistreated accused s gf. Accused had already been excluded frm military service fr a similar episde. He was acquitted fr murder. 5

6 (III) FAULT ELEMENT/MENS REA SUBJECTIVE FAULT ELEMENTS INTENTION The accused must have intended t perfrm the relevant cnduct; r (fr result crimes) t bring abut the results r cnsequences f that cnduct La Fntaine; R v Crabbe Intentin cnnte a decisin t bring abut a situatin as far as it is pssible t d s t bring abut an act f particular kind r a particular result. Such a decisin implies a desire r wish t d such an act r bring abut such a result. Brennan J in He Kaw Teh at 569. The actual victim need nt have been the intended victim R v Saunders A belief that there is nly a small chance f causing the result is irrelevant Lenard v Mrris The crime can take effect in an unfreseen r unintended manner R v Michael Mtive is nt intentin, but can frm part f circumstantial evidence establishing the requisite state f mind KNOWLEDGE Knwledge entails being cnscius that a particular circumstance exists, r awareness that aparticular cnsequence will result frm the perfrmance f the cnduct. This is relevant t physical element f cnduct in specified cricusmstances Wilful Blindness accused is deemed t pssess requisite knwledge f a reasnable persn in their psitin, even thugh they have deliveraly refrained frm making enquires r wilfully shut eyes fr fear f learning the truth this nt an alternative t knwledge, but can have an evidential rle t refer t intentin Kural; Periera! a belief falling shrt f actual knwledge, r awareness f sme amunt f illicit drug, culd sustain an inference f intentin Kural Pssessin f a prhibited imprt des require actual knwledge, and nt merely imputed knwledge Pereira v DPP! Suspicin cupled with failure t inquire may be inference frm which jury can infer knwledge. Pereira v DPP RECKLESSNESS 6

7 Where the accused acts with fresight r is aware that a particular circumstance r utcme is pssible (NB: prbable fr murder Crabbe), yet carries n in spite f this risk. Pemble; Cleman Subjective test accused must have been aware that the risks are substantial, with a real and nt remte chance f ccurring Bughey Reckless is abut cnscius risk-taking It is a subjective inquiry, hwever, ften a jury will have t bjectively impart a subjective awareness frm the circumstances, since the accused will nt admit t any fresight. OBJECTIVE FAULT ELEMENTS NEGLIGENCE The mre serius the ffence, the greater required degree f departure frm the standard f reasnableness NSW Sugar Milling C-Op v EPA). Objective standard f reasnableness a persn has acted with criminal negligence if his r her cnduct falls shrt f that f a reasnable persn in the circumstances, t a criminal r grss degree. - Nydam; Andrews v DPP - Criminal extent r Grss degree in manslaughter such a great falling shrt f the standard f care which a reasnable [persn] wuld have exercised and which invlved such a high degree f risk that death r grievus bdily harm wuld fllw that the ding f the act merit[s] criminal punishment. Nydam at 445 The mre serius an ffence, the greater the degree f departure frm the standard f reasnableness will be required - NSW Sugar Milling C-Op v EPA Inferential reasning in Cntext f MR MR is difficult t prve in the absence f cmprehensive and reliable cnfessin Hence, intentin must rdinarily be inferred frm all f the evidence admitted at the trial Peters v The Queen Search fr the requisite MR is by a prcess f inference frm the evidence with the aim f discvering the intentin which the accused subjectively had Peters v The Queen Mtive is nt intentin Hyam v DPP Nevertheless, P might be able t use mtive as a grunds fr inferring the requisite intentin. FULL MR, STRICT LIABILITY OR ABSOLUTE LIABILITY There is a presumptin that all crimes invlve a fault element Sherras v De Rutzen. Hwever, t determine if the presumptin is displaced, must cnsider He Kaw The Language f the sectin creating the ffence Wrds like knwingly, dishnestly, r wilfully suggest a fault element exists and means it will be hard t displace the presumptin Subject matter f statute Acts that are nt criminal in any real sense, but are acts which in the public interest are prhibited under a penalty (Sherra v De Rutzen) will suggest the presumptin is displaced. The presumptin is displaced if yu are dealing with adulterated fd (Parker v Alder) and serving alchl (Cundy v Le Ccq 1884) Cnsequences fr cmmunity f ffence Generally weighed directly against the ptential cnsequences fr accused if cnvicted. 7

8 Cmmunity benefits have utweighed latter in envirnmental damage (Allen v United Carpet Mills 1989 VR) and speeding ffences (Kearn v Grant) displacing the presumptin. Pential cnsequences fr the accused, if cnvicted Mre serius cnvictin cnsequences means displacement less likely Severe penal prvisins relating t imprtatin and pssessin f herin meant presumptin nt displaced (He Kaw Teh) STRICT LIABILITY Strict liability ffences require prf f the AR nly " need nt prve a fault element There will be a defence f hnest and reasnable mistake if: - Prudman v Dayman PROUDMAN TEST: It was mistake and nt mere ignrance There is a distinctin between a psitive act f making a mistake, and nt thinking abut a matter at all/ignring it. SRA (NSW) v Hunter Water Bard Mayer v Merchant regarding tanker lads, specific cnsideratin (f weights) was nt required. Rather, a general belief abut lad weights was sufficient. Mistake is ne f fact nt law a fact is smething perceptible by the senses a state f mind is als f fact textbk qute. If the mistake is a mixture f fact and law, it will be taken t be a mistake f fact. Griffin v Marsh (Mistaken belief f law is flawed by earlier mistake abut an imprtant fact) Cannt be mistaken as t legal effect r legal significance f knwn facts Vn Lieven v Stewart Mistake must be hnest and reasnable Mistakes made carelessly are nt reasnable. CJ Cles v Gldswrthy Mistake must render the accused s act inncent Belief must be such that if true, then n ffence wuld have been cmmitted. DEFENCE OF HONEST AND REASONABLE MISTAKE Once raised, P must prve BRD that accused did nt have an hnest and reasnable mistaken belief in facts which, if true, wuld have rendered the accused s acts inncent Prudman v Dayman D bears evidential burden " prvides evidence f the mistake f fact r pinting t evidence in the P s case frm which such a mistake may be inferred He Kaw Teh v The Queen HRM defence can be expressly r impliedly excluded by the statute He Kaw The v The Queen ABSOLUTE LIABILITY Only the AR must be prven " Excludes mistake f fact defence. Curts are reluctant t categrise ffences as thse f abslute liability in the absence f clear legislative intentin R v Wampfter Places individuals engaged in ptentially hazardus r harmful activity, a legal bligatin f extreme (nt merely reasnable) care. Determining whether ffence is Full MR, SL r AL (I) (II) (III) Is there a MR element expressly stated? N " ffence is full MR Has presumptin f MR been rebutted? N " ffence is full MR If yes, is ffence hnest r strict liability? a. Has defence f Hnest and Reasnable Mistake (HRM) been expressly r impliedly excluded? i. N? " ffence is SL b. Presumptin f SL ver AL unless there is a clear legislative statement/intentin fr the ffence t be AL R v Wampfler c. Des legislatin prvide certain statutry defences? 8

9 i. Yes? " likely that the ffence is AL. He Kaw Teh v The Queen ( CLR 523 Facts: Accused was cnvicted f imprting and pssessing herin under s233b f the Custms Act 1901 (Cth). The trial judge had directed the jury that the P was nt required t prve that the accused had any knwledge f the drugs. Crux: Principles fr statutry interpretatin in cnstruing whether ffence is SL r Al creates tripartite divisin f crime. Examinatin f MR especially intentin and knwledge. Law applied: 4 Factr test (Prudman v Dayman) Held: Presumptin f MR had nt been displaced MR prtects the individual frm false accusatins and incursins by the state T be cnsidered criminal, AR must have been accmpanied by a knwledge, by the accused, that the suitcase cntained the prhibited substance Appeal allwed. CONCURRENCE OF AR AND MR As a general prpsitin, fr all crimes, that the physical and fault elements must cincide Meyers v R. There is a vital need t islate the relevant cnduct causing death Ryall Masn J at [15]. Curts are willing t cnstruct cncurrence by either impsing the fault element ver a series f acts, r upn a cntinuing act. Fault impsed upn a cntinuing act The mens rea may be superimpsed upn an existing act it needn t be present at the inceptin f the AR Fagan It is nt necessary fr the MR t be frmed at the inceptin f the AR. It an be frmed during the carrying ut f the cntinuing act. The authrity fr cncurrence f AR and MR in MURDER = Meyers v R 9

10 Fagan v Metrplitan Cmmissiner f Plice [1969] 1 QB 439 Facts: At the request f the accused (a plice fficer), the accused mved his car. In mving the car, D accidentally drve nt the plicemans ft. He refused t mve the car fr a few minutes when asked, turned ff the engine despite the requests f the pliceman. Eventually he mved the car ff the plicemans ft. Arguments: D argued that the AR (munting the fficers ft) was nt accmpanied with the requisite MR als, that the AR ended when the car was parked n tp f the fficers ft P argued that the act was a cntinuing act, the AR ended when the car was eventually mved and during this act the requisite MR was frmed. Held: The curt held that it was a cntinuing act which started when the wheel was driven nt the victims ft and ended when it was remved. Hence, thugh a fault element was nt present at the beginning, it was superimpsed upn the existing act. Obiter: the fault element cannt be superimpsed upn an act already cmpleted. R v Miller [1983] 2 AC 161 Facts: Hmeless persn fell asleep in a derelict huse while smking. While asleep, the bed caught fire. He awke t find the mattress smuldering but instead f extinguishing the fire, he merely mved t anther rm. The huse burnt dwn and he was charged with arsn. He appealed. Held: The Curt held that the acussed lacked the mens rea when the initial damaging act ccurred. Instead, the curt relied n the accused s recklessness after becming aware f the fire, thus taking a cntinuing act apprach which the curt justified n the basis f a duty arising frm creating a situatin f danger. Fault impsed ver a series f acts It is pssible fr AR t be viewed as a series f acts and fr the requisite MR t be impsed n such series f acts. Where the requisite mental state was present at the beginning f the acts, cncurrence will be fund. This is because the series f acts are treated as ne indivisible transactin. Thab Meli v The Queen Thab Meli v The Queen [1954] 1 WLR 228 Facts: Accused tk victim t a hut where they attacked him accrding t a precnceived plan. They threw him ff f a cliff, believing him t be dead and hped it wuld lk like an accident. The victim was nt dead at that pint, he died later frm expsure at the bttm f the cliff. Arguments: The D argued that there were 2 distinct acts, (1) = hut, (2) = dispsing f victim, neither f which pssessed the requisite cncurrence f bth elements. Held: it is artificial t divide what was essentially a series f acts int distinct separate acts the whle f the cnduct was regarded as ne indivisible transactin causing the death. MR and AR cincided because accused pssessed requisite MR at the same time they began a series f acts Cncurrence was hence fund thrughut Appeal dismissed. Acts nearly cntempraneus Physical element cncurrence The physical element may, in sme circumstances, be s nearly cntempraneus t the relevant event (where fault element r act actually ccurred) t fulfil cncurrence. Jiminez 10