JURD7122/LAWS1022 Criminal Laws

JURD7122/LAWS1022 Criminal Laws

MURDER... 5 ELEMENTS... 5 ACTUS REUS... 5 Voluntariness... 5 Ommission... 5 Causation... 5 MENS REA... 5 Heads of mens rea:... 5 Intention to kill... 5 Intention to inflict GBH... 6 Reckless indifference to human life... 6 Constructive Murder... 6 CASES... 6 Mens Rea... 6 Crabbe (1985) HCA... 6 Royall (1991)... 6 Boughey (1986) HC... 6 Ryan (1967)... 7 Munro (1981)... 7 MANSLAUGHTER BY UNLAWFUL ACT... 8 ELEMENTS... 8 Actus Reus... 8 Mens Rea... 8 UNLAWFUL ACT... 8 CASES... 8 Wilson (1992)... 8 MANSLAUGHTER BY CRIMINAL NEGLIGENCE... 10 ELEMENTS... 10 Actus Reus... 10 Degree of negligence... 10 CASES... 10 Nydam [1977]... 10 Lavender [2005]... 10 Stone and Dobinson (1977)... 11 Taktak (1988)... 11 Taber (2002)... 11 DEFENCES... 12 MENTAL ILLNESS... 12 ELEMENTS... 12 Disease of the mind... 12 Did not know the nature and quality of their act... 12 Did not know that what they were doing was wrong... 12 SANE AUTOMATISM... 13 ELEMENTS... 13 Process... 13 SUBSTANTIAL IMPAIRMENT... 14 ELEMENTS... 14 Abnormality of the mind... 14 Underlying condition... 14 INTOXICATION... 15 PROVOCATION... 17 ELEMENTS... 17 Provocative conduct... 17 Subjective test... 17 Objective test... 17 CASES... 17 2

Davis (1998)... 17 Lees (1991)... 18 Chhay (1994)... 18 Stingel (1990)... 18 SELF-DEFENCE... 20 ELEMENTS... 20 Subjective test... 20 Objective/subjective test... 20 Burgess; Saunders... 20 ASSAULT... 22 ELEMENTS... 22 Actus Reus... 22 Knight (1988)... 22 Zanker v Vartzokas (1988)... 22 Mens Rea... 22 AGGRAVATED OFFENCES... 22 SEXUAL ASSAULT... 23 LEGISLATION... 23 ELEMENTS... 23 ACTUS REUS... 23 Act of sexual intercourse... 23 Consent... 23 MENS REA... 24 Recklessness as to consent... 24 Tolmie (1995)... 24 AGGRAVATED SEXUAL ASSAULT... 25 OFFENCES... 25 S 61J(2)(b) Weapon or instrument... 25 In company... 25 S 61JA Aggravated sexual assault in company... 25 INDECENT ASSAULT... 26 LEGISLATION... 26 ELEMENTS... 26 Fitzgerald v Kennard (1995)... 26 Harkin (1989)... 26 ACT OF INDECENCY... 27 LEGISLATION... 27 ELEMENTS... 27 LARCENY... 28 ELEMENTS... 28 Actus Reus... 28 Mens Rea... 28 DEFENCE-CLAIM OF RIGHT... 28 EXPANSION OF COMMON LAW... 29 Expansion of Property in the Possession of Another... 29 Expansion of 'Taking Without Consent' Fraud Offences... 29 Expansion of 'Intent to Permanently Deprive'... 29 AGGRAVATED OFFENCES... 30 ROBBERY... 31 ELEMENTS... 31 Actus Reus... 31 FURTHER OFFENCES OUTLINED IN THE LEGISLATION... 31 AGGRAVATED ROBBERY OFFENCES... 31 RECEIVING STOLEN PROPERTY... 33 3

LEGISLATION... 33 ELEMENTS... 33 GOODS IN CUSTODY... 34 LEGISLATION... 34 May reasonably be suspected of being stolen... 34 Haken v Johnson (1993)... 34 Anderson v Judges of District Court of NSW(1992)... 34 No reasonable grounds for suspecting... 34 Grant (1981)... 34 OTHER CASES... 35 FRAUD... 36 ELEMENTS... 36 A. The person used deception... 37 B(ii). The deception caused the person to obtain financial advantage... 37 B(ii). The deception caused financial disadvantage... 37 B. Causation of (i) Obtaining property or (ii) obtaining financial advantage/causing financial disadvantage... 38 JOINT CRIMINAL ENTERPRISE: COMPLICITY... 39 ELEMENTS... 39 DEFENCES... 39 WITHDRAWAL... 39 EXTENDED JOINT CRIMINAL ENTERPRISE... 40 ELEMENTS... 40 ACCESSORY BEFORE THE FACT... 41 ELEMENTS... 41 Actus Reus... 41 Mens Rea... 41 ACCESSORY AFTER THE FACT... 42 ELEMENTS... 42 CONSPIRACY... 43 ELEMENTS... 43 Impossibility... 43 CASES... 43 Gerakiteys... 43 Lee... 43 Barbouttis... 43 4

Murder Elements In order to determine whether or not D is liable for murder, it is necessary to establish: o That there was an act or omission causing death (actus reus) o With intent to kill or cause gbh or reckless indifference to human life (mens rea): s 18 Crimes Act 1900 Maximum sentence: life imprisonment: s 19A(1) Crimes Act 1900 Actus reus Voluntariness The act that caused the death must be voluntary, a willed action : Ryan (1967) o The court looks at the acts as a whole and the probable consequences of those acts: Ryan (1967) Ommission For the accused to be guilty of homicide by omission: o they must have owed a duty of care to the victim; o their failure to act must have caused the victims death; and o the omission must have been conscious and voluntary, without any intention of causing death but in circumstances that involved such a great falling short of the standard of care that the reasonable man would have exercised as merits criminal punishment: Stone and Dobinson (1977); Taktak (1988) There are at least four situations where a relevant duty of care arises: o Where statute imposes a duty; o Where one is in a certain status relationship with another (eg parent/child Russel); o Where one has assumed a contractual duty of care for another; or o Where one has voluntarily assumed the car of another and so secluded the helpless person as to prevent others from rendering aid: Taktak (1988) Causation Operating and substantial cause The conduct of the accused must have been a substantial and operating cause of the victim s death: Munro (!981); Hallet (1969); Royall (1991) Intervening act The act of the accused will not be considered to have caused death if another event is so overwhelming as to make the accused s conduct irrelevant: Smith (1959) Natural consequences If the victim, in seeking to escape from the accused, suffers death, the accused will still be held to have caused death where the accused s conduct induced in V a well-founded, reasonable and proportionate apprehension of physical harm such as to make it a natural consequence that they would choose their means of escape: Royall (1991) Egg-shell skull The accused must take their victim as they find them: Blaue (1975) (refusing blood transfusion because of religious beliefs) Mens Rea Heads of mens rea: Intention to kill Intention to inflict GBH Reckless indifference to human life Constructive murder Intention to kill Subjective test of the accused s intention 5

Intention to inflict GBH GHB includes (s4 CA): (a) the destruction of foetus, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (causing a person to contract a grievous bodily disease) Reckless indifference to human life The accused has the relevant mental state for murder where they know that their acts will probably cause death but proceed regardless: Crabbe (1985) o Knowledge of a possibility that death will occur is not enough: Crabbe (1985); Royall (1991) Constructive Murder Where the acts of the accused have caused death in an attempt to commit, or during or immediately after the commission, of a crime punishable by imprisonment for life or 25 years, it is not necessary for the prosecution to prove a fault element to secure a murder charge: s18 Crimes Act 1900 Cases Mens Rea Crabbe (1985) HCA Road train driver in the NT. Finished deliveries, went to the pubs for some beers. Got drunk and aggressive kicked out of bar. A few hours later he drove the prime mover with one trailer attached through the wall of the pub, killing 5 and injuring several other people. Showed no remorse and walked out. Question in trial as to the intent of Crabbe, or his knowledge and understanding about the consequences of his actions A person is guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm Royall (1991) HCA held that the decision in Crabbe on the mens rea for murder at common law should apply equally to the interpretation of reckless indifference to human life in s 18 Crimes Act 1900 Prosecution has to prove that the accused foresaw the probability of death Foresight of GBH not sufficient mens rea for murder In NSW a defendant who is recklessly indifferent to serious bodily harm and not to death itself will be guilty of manslaughter not murder o NSW not in line with other Australian jurisdictions where the same mens rea would be for murder Murder- standard non- parole period of 20 years, sometimes raised to 25 (eg victim is a police officer, under 18) This period must be set unless the court decides that there are reasons for settling on a different period and records its reasons for doing so. High level of discretion- Way (2004). Boughey (1986) HC Doctor convicted of murder in a case where he killed the deceased by applying manual pressure to her neck. Explained that he often did this with the consent of women for sexual arousal. Question- did Boughey act with an intention to cause to any person bodily harm which he knew to be likely to cause death in the circumstances? (according to s157(1) Tasmanian Criminal Code) HC- Likely means probable not possible. Line drawn between foresight of probability and likelihood on the one hand, and foresight of possibility on the other. 6

Ryan (1967) Ryan doing armed hold up, got scared by staff member ducking down, reacted and pulled the trigger, killing the staff member At trial- did Ryan have the mens rea for murder? Was it a voluntary act? Convicted. Constructive murder covered in s 18 (1) of the Crimes Act S 98 Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person so armed, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to penal servitude for life. o Wounding must be the voluntary act of the accused o Voluntary use of an offensive weapon which wounds the victim of the robbery satisfies s 98, without any need for proof of an intent to wound by that use Munro (1981) Appeal against a conviction of murder. Also convicted on an associated charge of assault and robbery with striking and wounding Crown case o 5 th January 1980 in the evening, the appellant entered a flat where a 92 year old man was sitting on a bed. Front door open. Appellant entered with the intention of taking money from the old man. Grabbed old man, picked him up off the bed, was told there was no money, let the man fall to the floor and punched him in the face. Took some valuables worth very little. Injuries inflicted on the victim were such that he died 2 days later of resulting pneumonia. o Argued that he did not intend to kill his victim, no wounding in relation to the robbery The test, therefore, is not whether the injuries were the sole cause or the major cause, the test is whether the injuries were an operative and substantially contributing cause of death. Assault old man injured and contracted pneumonia Munro guilty of his death. 7

Manslaughter by Unlawful Act Elements An accused will have convicted of manslaughter by unlawful act where they: o Committed an unlawful act; o Which caused the victim s death; and o The act was objectively dangerous: Wilson (1992) Maximum sentence: 25 years (s24 CA) Actus Reus The act must have been voluntary: Ryan (1967) The act must have caused the death of the victim: Hallet (1969); Royall (1991); Smith (1959); Blaue (1975) Mens Rea The accused must have had the relevant mens rea for the unlawful act Unlawful Act The unlawful act must amount to a breach of criminal law: Pemble (1971); Wilson (1992) The unlawful act will be objectively dangerous where it creates an appreciable risk of serious injury : Wilson (1992) o The objective test is applied in light of the circumstances and the nature of the conduct of the accused: Wills (1983) Driving offences not necessarily included: Pullman (1991), p459 Cases Wilson (1992) W hit deceased in the face fell to the ground and hit his head. W s companion went through deceased s pockets and smashed his head on the concrete. Deceased died from brain damage- Crown suggested this was from W s punch/ fall to the ground. Both charged with murder under the doctrine of constructive murder W convicted of manslaughter, companion acquitted W appealed Trial judge s directions to the jury o The killing of a man in the course of committing a crime is manslaughter. The crime must be an act in serious breach of the criminal law Questions o Was the act of punching the deceased dangerous? o Was it enough that the appellant (that is, a reasonable person in his position) appreciated the risk of some injury to the deceased from the act or did the jury have to be satisfied that he appreciated the risk of really serious injury? Direction to jury in Holzer by Smith J o the intended injury need not be a serious injury. Indeed, if it were a serious injury that was intended we would be in the field of murder, not manslaughter. The injury intended may be of a minor character but it must not be merely trivial or negligible. This is battery manslaughter. Subjective test of intention and low degree of harm No authority requiring the court to accept the idea of battery manslaughter Does not reflect the principle that there should be a close correlation between moral culpability and legal responsibility Conviction quashed, appeal allowed, new trial on manslaughter ordered Wilson significantly narrowed the definition of manslaughter 8

Manslaughter by Criminal negligence Elements For the accused to be convicted of manslaughter by criminal negligence, the prosecution must prove that: o A s conscious and voluntary act or ommision; o Caused the death of the victim; and o Warrants criminal punishment because it involves a great falling short of the standard of care which a reasonable person would have exercised, in circumstances where the reasonable person would have appreciated a high risk that death or serious bodily harm would occur: Nydam (1977) Maximum sentence: 25 years (s 24 CA) Actus Reus The act must have been voluntary: Ryan (1967) o In the case of omissions, there must have been a recognized legal duty to act to avoid causing death or injury to the V: Stone and Dobinson (1977); Taktak (1988) The act must have caused the death of the victim: Hallet (1969); Royall (1991); Smith (1959); Blaue (1975) Degree of negligence The court must consider whether the reasonable person in the position of the accused would have appreciated that a high risk of death or serious bodily harm would occur: Lavender (2005) The reasonable person is to: o Possess the same personal attributes of the accused; o Be of the same age; and o Have the same knowledge of surrounding facts and circumstances: Lavender (2005) Note: an opinion that it was safe to act as he did was not something that could be attributed to the reasonable person: Lavender (2005) Cases Nydam [1977] N had a friendship with the deceased women for 5 years which deteriorated. Deceased was getting hair done in hairdressers, N attempted to speak to her. On 3 rd occasion, N brought in a bucket of petrol. According to a witness, he through petrol over the deceased, saying you will pay for this lit cigarette lighter approached deceased his hand caught alight explosion deceased died instantly and hairdresser died a few days later N claimed that he approached with petrol saying he would kill himself, wanted deceased to feel sorry for him. May have stumbled, causing petrol to spill. No intention that a match would alight Young CJ, McInerney and Crockett JJ in order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment Lavender [2005] Accused employed as the operator of a front end loader at a sand mine. 25 tons, travelled at 4km/h. vision obscured by bucket at the front. Victim, aged 13, and 3 friends, went to mine site to play in the sand. Unfenced and lots of vegetation and sand dunes- should not have been there. Accused decided to chase them away- drove loader towards boys- they ran away- he pursued them into vegetation- ran over boy- injuries resulting in death charge of manslaughter. 10