In 1992, the Jonathan Lynn directed movie My Cousin Vinny, made a perfect blend of courtroom drama with commercial comedy. Though the elements of criminal law and courtroom procedures distinctly….
Criminal Law Revision Notes
Homicide • ·Law: X’s actions toward Y may constitute homicide, which pursuant to s 277 is unlawful killing of a person. Depending on the circumstances, under s 277 an unlawful (s268) killing is either murder or manslaughter. Killing is defined in s 270 as causing the death of another directly or indirectly by any means. Death is defined under 13C of the Interpretation Act 1984 (WA) as the irreversible cessation of circulation or brain function. A person capable of being killed is defined under s 269 as a person completely proceeded in a living state from their mother. Y is a person. Y is dead’ • Variable for s269: Where an injury is done to an unborn child who then dies after birth it must be established that the prior injuries are a valid cause of death. In the case of Martin v R it was held that a causal link can be drawn between injury to a foetus and the death of that child after birth. Specific reference was made in the case to s 271 where “a child dies in consequence of acts done … by any person before or during birth, the person who did … such act is deemed to have killed the child. • Causation – Proof of causation requires satisfaction of both factual and legal elements (Royall; Krakouer) [what you need to look at is the causation between the act and the death, so when you apply the tests, you pick a specific action of the accused. If there is no action, then you look at omission. ] ? Factual – Generally easy to establish factual causation under the ‘but-for’ test (Royall). Variable: However, it does not apply in cases of an innocent agent (White v Ridley) or in cases of omission, unless there was a duty and the actions are reasonable in the circumstances (duties ss 262-267). Apply to facts by stating very precisely . ’but for Y doing specifically this, X would not have done this and hence not died] ? Legal – Royall established four tests for legal causation. In difficult cases the operative and substantial cause is best. (1) Operating and substantial cause (2) Natural consequence (3) Reasonable foresight (4) Common sense (Campbell) ? Variable for causation: Behaviour of accused need not be sole cause of death (Krakouer) ? Novus Actus Interveniens: (1) Section 272 and Royall: actions of escaping victim will not reak the chain if fear of death or harm is reasonable and well founded. (2) Section 275: medical treatment of victim will not break chain if reasonably proper in circumstances and applied in good faith. Treatment includes all acts and omissions in the management of the patient (Cook). Turning off life support is not novus actus; original assault is still operative and substantial cause of death (Kanish). (1) Section 23B and R v Martyr: Abnormality or weakness in victim will not break chain. Must take victim as you find them. (3) R v Hallet: natural event will not break chain if it is reasonable foreseeable. 4) R v Pagett: Actions of third party will not break the chain if actions are an obvious result of what first person did. (5) Section 261: Consent to death is immaterial to issue of responsibility. • Intention: The fault element in s 279(1)(a) is an intention to kill, and under s 279(1)(b) it is an intention to do bodily injury which endangers or is likely to endanger life. Intention is not defined in the code. In R v Willmot intention is defined as having the consequence of an action in mind. The intention is inferred from the act if the immediate consequences are obvious and inevitable (Parker v The Queen). Code: ? s279(1)(a): intention to kill is murder ? s279(1)(b): Intention to cause bodily injury of a nature that endangers or is likely (Hind v Harwood) to endanger life is murder. ? s279(1)(c): (1) Death is caused by an act; (2) done in the prosecution of an unlawful purpose; (3)which is of the nature to be likely to endanger life. A ‘further’ unlawful purpose other than killing (Stuart v The Queen). Likely is define as a substantial (real and not remote) chance (Hind v Harwood). ? s280: Manslaughter is unlawful killing that is not murder (due to lack of intention). ? 281: unlawful assault (s 222) causing death: Defence against manslaughter (s 23B accident). Only 2 elements must be proved: assault (s 222) and death caused. [you only get to 281 after you have said that there is a defence of 23B. although, maybe not, it could also be lackof causation, but it’s not really correct here with murder/manslaughter] · Defences: ? 23A: lack of will ? 23B: accident ? 24: mistake of fact ? Mistake of law should be here too, if only to state that it is not relevant ? 27: insanity ? 28: intoxication ? 29: immaturity ? 248: self-defence Stealing, s378, 371 Law: It is an offence to steal under s 378. The elements (s371) to be satisfied are that (1) taking or converting; (2) a thing capable of being stolen; (3) with fraudulent intent. ? A thing capable of being stolen is defined in s 370. Anything which is the property of a person that is moveable (para 1), able to be made moveable (para 2), wild (para 4)and tame animals (para 3), electricity (s390), use of a computer (s440A), or any thing capable of ownership. Doesn’t matter if belongs to person who’s taking for this element ? Taking is not defined in the Code.
It is defined in Wallis v Lane as moving (Clemesha) a thing from the place it originally occupied. Conversion is also not in the Code. In Illich it is defined as dealing with an object in a way that is inconsistent with the right of the owner (not a physical movement). Defence of mistake of fact can occur at this point where there is a mistake as to the identity of transferee (Middleton), identity of thing delivered (Ashwell), and as to the quantity of thing delivered (Russell v Smith), except with money where ownership passes at point of transfer irrespective of mistake (Illich). Fraudulent intent is outlined in s 371(2)(a) to (f). It is: (a) an intent to permanently deprive owner of the thing; [add: and to depreive of substantial value, caselaw] (b) an intent to permanently deprive any person who has any special property in the thing. The intent can be inferred from the circumstances and the manner in which the accused deals with the property (Foster v R). An intent to deprive the owner substantially of its value is equivalent to an outright taking (R v Smails); special property see after (f) (c) An intent to use as security.
This applies only where the thing is pledged or given as security to a third party. Does not apply where accused holds property until a debt owed to them by the owner of the property is paid (Parker); (d) An intent to part with it on a condition as to its return; (e) An intent to deal with it in such a manner that it cannot be returned in the original condition – must have changed significantly (Bailey); or (f) An intent to use money at will, even though person taking may intend to repay owner. Variable: Under s371(5) conversion of lost property is not fraudulent if, at time of conversion, person taking/converting does not know who owner is AND reasonably believes that owner cannot be discovered. • Variable: Doctrine of recent possession allows a jury to draw an inference of stealing or receiving where accused is found in possession of stolen goods soon after their theft and has no reasonable explanation as to how they came into their possession, Bruce v The Queen. · Defence: Legal claim of right (s22) means accused had an honest, but not necessarily reasonable, belief that the property was theirs ( ).
Robbery, s392 • Law: Robbery is a compound offence defined in s392 as (1) stealing; (2) using actual/ threatened violence at/ immediately before/immediately after time of stealing; (3) to obtain thing stolen; OR (4) to prevent/overcome resistance to its being stolen. • Prosecution must prove offence of stealing (as outlined on previous page). • Actual or threatened violence only has be be small to fulfill this element (R v Jerome). It only needs to be of such nature as to show that it was intended to overpower the party robbed, not merely to get possession (R v Gnosit). At, immediately before or after time of stealing includes the use of violence to escape or overcome resistance (R v Hay). • Stealing has a fault element, but robbery has the added fault element of using the actual or threatened violence in order to obtain thing stolen or prevent resistance. • Circumstances of aggravation under s391 include when (1) the offender is accompanied; (2) offender does bodily harm to any person; (3) offender threatens to kill any person; or (4) person to whom violence used/threatened is over 60. Burglary, s401 Law: Burglary is defined in s401 as (1) entering or beings or is; (2) at a place; (3) without consent of the owner; (4) with an intention to commit an offence OR actually committing an offence. ? Enter or be is defined in s400 as inserting part of body OR instrument into building. ? Place is defined is s400 as Building, structure, tent, or conveyance, or part of building etc. Conveyance in s1 means vehicle, vessel, or aircraft. [if none of these, you mustlook at statutory interpretation, eg with a garden] ? Without the consent of the owner includes beyond consent of owner (Barker v The Queen). can be implied eg where a gate is open or a door. But only implied for legitimate purpose, not to commit a crime] ? Intention to commit an offence (fault element) can be formed prior to entry, or may be formed after entering building (Barker v The Queen). • Circumstances of aggravation under s400 include when a person (1) has, or pretends to have, a weapon; (2) is accompanied; (3) does bodily harm to another; (4) threatens to kill or injure; (5) knows, or should have known, that there was someone in the place. Criminal Damage and Destruction, s444 Law: Criminal damage is the (1) wilful (s443) and (2) unlawful (s441); (3) damage or destruction (s1); (4) of any property (s1). Start with 4 then 3 then 1 and 2 (4) Property is define in s1 as any animate or inanimate thing capable of being the subject of ownership. (3) Damage or destroy is defined in Zischke as being when something is rendered imperfect or inoperative. Damage that is impermanent, ie remediable, is still damage unless it’s transient like chalk on a jumper. (1) Wilfully (s443) means an act or omission with the intention to damage or destroy, OR with knowledge or belief of likelihood of damage or destruction. Likelihood is (Hind v Harwood; Lockwood) a real and not remote chance, regardless of whether it is less or more than 50 per cent. ? Omission was discussed in Miller. At the point a person becomes aware of the damage occuring, they have a duty to act. (2) Unlawfully (s441) means (1) injury to property of another (i. e. Not own and not abandoned); (2) without consent; AND (3) with no authorisation, justification or excuse. • Defence of person or property (s441(3)) can be used if injury is deemed on reasonable grounds to be imminent. Force used must be reasonable.
Common Assault, ss222, 313 • Law: There are two types of assault defined in s222 of the Code: Physical assault and threat of assault. To fulfill the requirements of physical assault there must be (1) striking, touching, moving or otherwise applying force; (2) directly or indirectly; (3) to another person; without the consent of the other OR with fraudulently obtaining consent. An assault is unlawful unless authorised, justified or excused by law (s223). Fault element • According to s 23 no intention is required for an offence unless stated in the offence.
However, in Hall v Fonceca it was found that an intention on the part of the assailant either to use force or to create an apprehension in the victim is an element in an assault. • Unlawful: an assault is always unlawful unless authorised, justified or excused by law (s223). It may also be unlawful if the person consents to the assault. • Indirect force: Includes heat, light, gas or any other substance IF applied to a degree to cause injury or physical discomfort. (1) Queen v Jacob – electrical trap (2) Martin – bar across exit (3)
DPP v K – acid in hand dryer (4) Gibbon v Pepper – causing horse to run someone over • Without consent: Consent can be express or implied, and it must be freely given (not obtained by fraud). (1) Boughey v R: consent to accidental physical contact of ordinary life is impliedly consented to; (2) Collins v Wilcock: ‘commonplace intentional but non-hostile acts’ are impliedly consented to. (3) Pallante v Stadiums: Sporting context: contact within rules and intention of sports game. (4) Ferguson: Teaching context: touching student to ‘encourage. • Law: To fulfill he requirements of threat of assault there must be (1) a bodily act or gesture (words not enough in WA, but sometimes needs to be discussed anyway where there is maybe just a twitch); (2) which represents actual or apparent present ability to apply force; (3) without consent OR with fraudulently obtaining consent.. • Threatening words are insufficient. • A conditional threat is also not a true threat of assault because the victim can avoid the threatened act (Rosza v Samuals; Cf Turberville v Savage). · The victim need not actually fear the bodily act or gesture (Brady v Schatzel).
Fault element • According to s 23 no intention is required for an offence unless stated in the offence. However, in Hall v Fonceca it was found that an intention on the part of the assailant either to use force or to create an apprehension in the victim is an element in an assault. • Unlawful: an assault is always unlawful unless authorised, justified or excused by law (s223). It may also be unlawful if the person consents to the assault. Offences · s313: common assault · s317: assault occasioning bodily harm (unlawful assault + harm).
Section 1 defines bodily harm as any bodily injury which interferes with health or comfort. No extra fault element required. ? Lergesner v Carroll: broad interpretation. Extends to, for example, black eye from fight. ? Scatchard: pain does not necessarily equate to bodily harm. ? Chan-Fook : psychological harm. · s317A: assault with intent to: ? commit crime ? do GBH ? resist lawful arrest/detention. · s318: Serious assault is on a public officer (while they are on duty), a person performing a public function conferred on them by law, or person helping someone in the previous two categories. s304: acts/omissions causing bodily harm require establishing an existing duty (ss262-267), a breach of that duty and resulting bodily harm. If there is no harm, the must be endangerment of another’s life/health/safety. Endangering life and health Definitions · Grievous bodily harm ? s1 – any bodily injury that endangers/ is likely to endanger life, or causes/ is likely to cause permanent injury to health. ? R v Tranby: permanent disfigurement that is only cosmetic does not = GBH. ? Consent is not an element of GBH, therefore unlike assault, GBH cannot be consented to (Raabe) · Wounding ?
Devine v R: occurs when injury breaks skin & penetrates below epidermis. ? Consent and wounding: Common law rule says that a person may not consent to bodily harm unless there’s a public policy justification- R v Brown. Offences with no specific intention · Unlawfully doing GBH, s297 ? Can be direct/indirect act – R v Clark. All that must be proved is that a person negligently breached his/her duty. Proof of intention to harm is not necessary. ? ‘unlawful’ – to be given ordinary meaning of ‘prohibited by law’: Houghton v The Queen • Relevance of s23A, s23B/ negligence · Unlawfully wounding – s301(1)
Offences requiring a specific intention • s294, Acts intended to cause GBH or prevent arrest. • GBH + certain intention: ? an intention to maim, disfigure or disable any person; or ? an intention to do grievous bodily harm; or ? an intention to resist or prevent lawful arrest or detention; or • Administering noxious thing – s301(2) ? Cause poison or noxious thing to be administered or taken + ? Intention to injure or annoy Threats, s338 [not in exam] The definition of threat in s338 is very wide and includes any statement or behaviour that might reasonably constitute a threat to: (a) ill, injure, endanger or harm any person; (b) destroy, damage, endanger or harm any property; (c) take or exercise control over any building, structure, or conveyance by force or violence; OR (d) cause a detriment of any kind to any person. The threat must be to do one of the things in s338A:. a) Gain a benefit b) Cause a detriment c) Prevent someone doing something d) Make someone do something What does detrimental mean? ? R v Zaphir: ? “a threat is some sort of indication of intention to cause harm or damage or to punish. ” ? Detriment means “loss or disadvantage, or damage as opposed to benefit. ? To satisfy the offence “a threat must be of such nature and extent that the mind of an ordinary person of normal ability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand” Offences ? ? s338A Threats with intent to influence s338B Threats Stalking, s338D [not in exam] s338D defines: intimidate, pursue, circumstances of aggravation. Offences: s338E(1) • Pursuing with • intention to intimidate s338E(2) • Pursuing that • Can be reasonably expected to intimidate AND • Does intimidate Legal Capacity (defences) Children Law: A Child is deemed to be incapable of committing a crime, irrespective of what they have done. Under s29 a child under 10 years is presumed incapable (not rebuttable). Between 10 and 14 the presumption of incapacity is rebuttable if it is proved by prosecution that at the time of the offence that child knew that the conduct was wrong according to the standards of ordinary people – M (1977). It is not clear if this test means legally or morally wrong. Child does not need to know act was against the law. They need to know that what they did was seriously wrong as opposed to just naughty. • Following facts should be taken into account: Age: “the lower the child is on the scale between ten and fourteen, the stronger the evidence necessary to rebut that presumption”: B v R (1958) 44 Cr App R 1 at 3 ? Type of offence: Heinousness, Ferocity, Nature. Was there a victim? L v DPP = the more heinous the crime the easier it is to rebut the presumption. ? Statements by child: Does it really show an understanding ? Expert evidence ? Presumption of normality (what is normal? ) ? Conduct surrounding the act: Luring victim, trying to cover tracks, running away (= not conclusive, as children will run away if have done something merely naughty). Mode of committing the act: Positive act versus omission, degree of participation, peer influence ? Home background: Abuse at home; physical environment; upbringing. (White (1964) – behaviour the result of socialisation. ? Appearance & demeanour in court ? Past criminal record: can be used if similar fact evidence ? Different culture ? The child has to know that it was wrong at time of act, not when picked up/ questioned. Corporations (look in exam question for “Pty Ltd” which should indicate whether person or corporation is being charged) • Law: Corporations can commit offences.
In the Code corporations come under the definition of a person. And under s69(1) of the Interpretation Act 1984 (WA) all indictable and summary offences apply to bodies corporate as well as individuals. • Identification Liability: (= preferred test) : “A corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation. ” Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd. Vicarious Liability: attributing to employer what an employee does in the course of employment. Torts test, too wide. Defences: Mental Capacity Intention and motive, s23 The result intended to be caused by an act/omission is immaterial, unless intention is expressly declared to be an element of the offence. The motive for an act/omission/intention is immaterial, unless otherwise expressly declared. Voluntariness of will s23A, 23B 23A: Lack of will • Law: A person is not criminally responsible for an act/omission that is independent of his/her will (not available as a defence where there is a duty of care owed under Ch 27). Act: At common law an act can be defined both narrowly and broadly (both should be considered: If narrow view taken, charge under s 266 still possible. ) which ones do the court tend to follow nowadays? ? Narrow definition: any bodily action, e. g pulling trigger of gun: Kaporonovski. ? Broad definition: includes all physical conduct that caused death, e. g. from getting loaded firearm to pulling trigger: Falconer. • Will: Examples of unwilled acts are:An involuntary response to external stimulus (e. g. bee sting) is unwilled. An act done whilst sleepwalking is unwilled (R v Holmes).
An act done whilst asleep is unwilled (Michael Jiminez) – although D may be liable for act/omission immediately before falling asleep, eg driving while tired. • Sane Automatism describes a mental state where the D lacks awareness of their actions during the commission of a serious offence. Any act occurring independent of the will of the D whilst in a state of sane automatism is unwilled. In contrast to insanity, sane automatism is the result of an external stimulus (eg sudden physical/ psychological trauma, hypoglycaemia). Insanity results from an internal mental disorder (Falconer). Test to distinguish SA from insanity (Falconer): ? Too complicated! ? In an exam, this would not help you, I am sure. It’s ot about who needs to prove what, as when you arguing something in the exam, hardly ever will YOU be able to meet the standard of proof as it’s always ambiguous. You need to set out some of the limbs of the focloner test, eg (and most importantly) the test of the reasonable person. What characteristics does that person have? It’s the reasonable person in the same situation as the accused, but not with their specific weaknesses (eg an additional depression). If they wold have done the same = sane automatism.
Another thing you look at is whether one off event (unlikely to reoccur) or they’ve got a screw loose (= will likely do it again cos they lack some control over their actions generally] ? 1st step: Has Crown disproved sane automatism? (Standard of proof: beyond reasonable doubt. Onus of proof: on Crown). If not, unqualified acquittal. ? 2nd step: If so, has D proved insanity under s 27? (first question is: is there a mental impairment as opposed to an external blow, before you even get to the capacities) Was one of the 3 capacities in s27 absent? Standard of proof: on balance of probabilities.
Onus of Proof: on D, since s 26 presumes every person to be of sound mind). If so, acquittal with provision that accused was of unsound mind at the time of the offence. ? If sane automatism is disproved and the D does not prove insanity under s 27, jury must consider whether the other elements of the offence have been proved beyond reasonable doubt. If so, proper verdict is guilty (Falconer). 23B: accident • A person is not criminally responsible for an event which occurs by accident (not available as a defence where there is a duty of care owed under Ch 27: R v Hodgetts and Jackson). ‘event’ means the ‘result or consequence of an action’ (Van Den Bemd). • ‘accident’: Kaporonovski, Taiters: an event is only an accident if it 1. was not intended 2. was not foreseen by the defendant (subjective element) AND 3. was not reasonably foreseeable by an ordinary person (objective element) Evidentiary burden: on accused. Onus of proof: on prosection to disprove 1, 2 OR 3 beyond reasonable doubt. [they only need to disprove one for the defence to fall] Causation: P must prove that D caused a particular outcome if the outcome is an element of the offence. Causation established by tests in Royall). Can be difficult to distinguish between proof of causation and obligation of P to negative accident (Jemielita). • If death/GBH by a deliberate use of force, the fact that it would not have occurred but for an abnormality/defect/weakness in the victim is not a defense, even if the accused did not intend/foresee the death/GBH and even if it was not reasonably foreseeable. Insanity ss26, 27 • Law: Pursuant to s26, the accused is presumed to understand the consequences of their actions and is capable of acting rationally.
This presumption must be disproved by the accused (Falconer) on the balance of probabilities (R v Porter). Accused also carries the evidentiary burden of establishing that their mental impairment deprived them of ONE of the THREE capacities in s27 (McNaghten’s Case, approved by R v Porter): (1) understand what they were doing (refers to physical consequences of action, not moral qualities); OR (2) control their actions (e. g irresistible impulses: Moore, Soderman v the King); OR (3) know that they ought not do the act or make the omission (similar to test used to assess children). Mental impairment [comes before the capacities]is defined in s1 as an intellectual disability, mental illness, brain damage or senility. The Common law helps distinguish sane and insane automatism. (1) The state of mind must be one of disease, disorder or disturbance arising from some infirmity, whether temporary or long standing (R v Porter); (2) NO need for physical deterioration of brain; (3) A defect of reasoning caused by physical disease unrelated to mind could be insanity (R v Kemp). (4) Insanity is internal, with no external physical cause (Cooper v McKenna); (5)
Insanity caused by medical treatment of physical disease (eg. Insulin) will not be insanity if self induced (R v Quick). Some result are contentious. Hyperglycemia was held to be a desease of the mind (R v Hennessy). Hypoglycemia was not held to be internal (R v Quick). (6) Sane automatism is a reaction to a once-off psychological trauma, test is: Would ordinary person react the same way in the circumstances? (Falconer). Yes = sane automatism, not insanity. [see comments above] • Persuasive burden on prosecution (Falconer). • Variable: Distinguish from situation where accused unfit to stand trial. Consequence: no full acquittal, but rather ‘not guilty by reason of insanity’. May mean indefinite detention in appropriate institution. Intoxication s28 • Law: Intoxication (by drugs/alcohol/any other means) may be used as a basis for a defence of insanity under s 27 as long as it was not self-induced. Where intention to cause a specific result is an element of an offence, intoxication may be considered when deciding whether intention existed. Onus on prosecution to prove beyond reasonable doubt: 1. That such intention existed AND 2.
That accused was capable of forming the intention, and did in fact form the intention. (R v Crump). Defences: Mistake Mistake of Fact s22 • A person who does/omits to do something under an honest and reasonable, but mistaken, belief in the existence of any state of things is only criminally responsible for the act/omission as if the real state of things had been such as he believed to exist (their delusion were true). ? Mistake must be honest: (Subjective test). ? Mistake must be reasonable: Pearce v Stanton (Objective test). ? There must be a positive belief in the existence of any state of things. Ignorance/inadvertence not enough (GJ Coles v Goldsworthy). Must be present state, not future or consequences (R v Gould and Barnes). ? Evidentiary burden: on accused. ? Onus of proof: on prosecution, beyond reasonable doubt. ? Only a partial defense. • Can be excluded by express or implied provisions of offences. (e. g. s 331, mistake of age cannot be a defence for sexual penetration of minor under 13) Mistake of Law s24 · Law: Ignorance of the law is not a defense to any act/omission, unless knowledge of the law is expressly declared to be an element of the offence. ·
A person is not criminally responsible for an act/omission with respect to any property in the exercise of an honest claim of right and without intention to defraud. ? They must actually believe they have the right at the time of the offence, not that they may get the right in future (R v Pollard). ? Only applies when being claimed as a defence to a property offence (Pearce v Paskov ) under the Crim Code. Defences Duress s 32 • Law: Occurs when a person believes that a threat made against them will be carried out unless they do an act or make an omission. The action dictated is taken by the threatener. The act/omission must be a reasonable response to the circumstances as the person reasonably believes them to be (i. e. the accused must cause less harm than the harm avoided). Emergency s 25 • Occurs when the threat of sudden harm arises from the circumstances in which a person is placed. The accused decides what action to take to avoid the harm. • The act /omission must be a necessary response in circumstances of ‘sudden or extraordinary emergency’ (s 25(3)(a)(i)), and it must be a reasonable response to the circumstances as the person reasonably believes them to be. Self defence s248
An act of self-defence is lawful if: • the person reasonably [3: say if that’s reasonable] [objective] believes [2: state that they believed] [subjective] that the harmful act [1: define and then state what they did] is necessary [4: look at what else they could have done and if that would have been equally suitable] to defend themselves or another person AND • the response is reasonable [objective] in the circumstances as the person defending themselves reasonably [objective] believes [subjective] them to be. • Self-defence is a complete defence to homicide. • Technically, self-defence is an excuse.
Evidential burden: on accused. Onus of proof: on Crown to negative self-defence beyond a reasonable doubt (not on accused to prove on balance of probs). • Does the initial act have to be unlawful? S 5 = yes, but qualified by s 6 says a harmful act is not lawful just because the person who does it is not criminally responsible for it (so you can defend yourself against child/insane person etc. ) (s 6 also supported by case law: Zecevic). • Excessive self-defence = a partial defence. Applies when accused has killed to defend self or another but either the use of force was not necessary, or more force than necessary was used.
Excessive self-defence means murder will be downgraded to manslaughter. Provocation ss245, 246 Complete defence only to offences in the definition of which assault is an element (Kaporonovski). No longer a defence to homicide. Not a defence to attempted murder (Roche), or to GBH or wounding. The following elements must be proved: • The offence was against a person who offered provocation that amounted to an unlawful or wrongful act or insult. (Does the ‘insult’ also have to be ‘wrongful’? Stevens v Doglione (Qld): ‘wrongful’ applies to act and insult. Stingel (in obiter): ‘wrongful’ applies only to act, not insult.
Therefore, not settled). Attempts s4 An attempt is an offence that is somehow incomplete. (If an offence is complete, don’t consider attempts unless, for example, an offence is attempted on one person but succeeds on another, e. g. A tries to shoot B but instead shoots C). not always section 4, some offence, eg assault and murder, have attempted offence in the specific section in which case you don’t look at s4 3 elements: 1. Intention to commit an offence; 2. Putting that intention into action to some extent (must go beyond ‘mere preparatory acts’) AND; 3. Failure to fulfill the intention of committing the offence. . Intention – requires • An intention of bringing about all the elements of the offence OR • The knowledge (to the extent of virtual certainty) that these elements will occur 2. Beyond ‘mere preparatory acts’: whether this is the case is a question of fact for the jury. Don’t just look at what the accused did, take into account other factors in the situation (Cutter v R) to decide whether the act that was done is convincing of the intention to commit the ultimate offence. Tests: • Proximity test: (R v Eagleton): How close is the accused to committing the final act that constitutes the offence? Substantial step test: Has the accused made substantial progress towards completion of the offence? Consider how much progress has been made and what is left to do. • Unequivocality test: (R v Williams): requires that there be ‘no possible innocent explanation for the accused’s conduct’. (Any conduct which might have an innocent explanation cannot be brought by the prosecution as evidence). A precise test, but considered too restrictive. • Last step test: (R v Chellingworth): Has the accused taken the last step towards the completed offence? Voluntary desistance (s4, par. ): If the accused does most of the acts required to constitute the offence but then stops, it is generally no defence (although may be considered in sentencing). Impossibility (s4, par. 3): • Legal: It is impossible for the accused to commit an offence only where there is no offence at law to capture the defendant’s conduct (e. g. if the defendant mistakenly believes that it is an offence to acquire a certain weapon, but attempts to do so anyway = no offence). BUT, • Factual: if the offender tries to commit an offence but the offence cannot be committed for factual reasons, this is still an attempt: English. eg, the offender tries to import drugs, but the ‘drug’ is talcum powder)’ Conspiracy: [not in exam] • takes place before any preparatory action. (An offender is usually not charged with conspiracy and a completed offence. , so conspiracy is not relevant if an offence is actually committed). • No definition in Code, defined in common law as ‘an agreement between 2 or more persons to achieve a common objective’ (R v Campbell). (note: agreement must be reached. Not sufficient that parties were in communication). • There must be an intention to do all the elements of the offence. There must be a positive intention – recklessness will not suffice. • If there is no agreement, there is no conspiracy – BUT, it is not necessary that all conspirators know one another. • When 2 or more conspirators are charged, the fact that A is acquitted does not necessarily mean B will be as well (R v Darby). • You can’t conspire to do something that is legally impossible. • You can conspire to do something that is factually impossible. Aiding s 7(b) and (c) • What is the principal offence and who is principal offender?
Deal with them first • Then distinguish from counselling; presence, constructive presence · Law: Aiding is providing support, help or assistance (R v Beck) to the PO. Aid is generally given to the PO during the commission of the offence, but can be before the offence (Ancuta). If a person aids another in the commission of an offence they will be liable for the primary offence under s 7(b) or (c). · First, there must be proof of a Principal Offence actually committed, although conviction of a Principal Offender not necessary (R v Lopuszynski). There can be joint Principal Offenders (Mohan v R). define · (b): requires proof of assistance being given for the purpose of aiding the commission of the offence. Therefore, an accused can act with the purpose of aiding but not actually aid, and still be liable (R v Arnold). · 7(c): does not specify mental element, but has been held that ‘aids’ means ‘knowingly aids’( Jervis v R: ‘aids’ held to be a word that carries an inherent mental element). · In both 7(c) and (d), the accessory must have actual knowledge of the future offence they are aiding, as opposed to merely a suspicion (although this knowledge can be inferred from proof of exposure to the obvious).
It is sufficient that the accused contemplates the type of crime to be committed by the PO – it is not necessary that its precise details be known (Ancuta). Recklessness, however, is an insufficient mental state for aiding. (Giorgianni). · Variable: Where the offence is one requiring fault elements, the accused must also have actual knowledge that the principal offender possessed the fault element for the principal offence (Stokes and Difford). ·
Variable: Non-interference to prevent a crime is not an offence BUT the fact that a person is ‘voluntarily and purposely present’ and offers no opposition may be grounds for a jury to find that he aided. Positive action NOT essential (Coney). Passive presence at the scene is aid, IF the accused knows his/her presence is encouraging/supporting the PO (e. g. , combination of prior aid and continued nondissociating presence may constitute implied offer of continuing aid = aid under s7) (Beck). · Apply to facts · Conclude Counselling or Procuring: s 7(d) ·
Law: If a person counsels or procures another to commit an offence they will be liable for the primary offence under s 7(d). · Procure means to provide information or material assistance to the PO, and that the provisions cause or bring about the crime (R v Beck). ‘Procuring’ involves intentionally causing the commission of the offence. Humphry v R: ‘procure’ means to produce by endeavour, and one procures a thing by setting out to see that it happens. The accused must also have an intention to assist (Georgianni v R) the PO and general knowledge of the planned crime (Ancuta). ·
Counselling means advice or encouragement (Stuart v R) before the commission of the offence. The counsel does not need to cause the crime (R v Coney). Section 9 extends liability beyond s7(d). [again, not really helpful here. You need to look at 7(d) direct, and only if that is not gven, you mention section 9] If it is established that the accused counselled the PO to commit the offence, then a jury must determine if the offence was a probable consequence of the counsel. Probable is defined (Darkan v R) as more probable than not, or of probability less than 50/50, but more than real chance. · Apply to facts · Conclude Common purpose, s8
Liability under s8 attaches when one of the parties goes beyond the common unlawful design/ plan. (If parties are within common plan, s7 enough for determining liability). · Law: When two or more persons together form a common intention to prosecute an unlawful purpose the court will regard them as joint principal offenders. The prosecution must establish that; (1) the accused formed an intention to prosecute an unlawful purpose (Brennan v R); (2) the PO committed the unlawful purpose (R v Phillips and Lawrence); and (3) the principle offence must have been a probable consequence of the prosecution of the unlawful purpose.
Test of whether ‘probable consequence’ is objective (Stuart v R). Probable is defined (Darkan v R) as more probable than not, or of probability less than 50/50, but more than just a ‘substantial or real chance’. There is no liability if PO unexpectedly departs from the common purpose and commits an offence that was not within the contemplation of the accessory and was not a probable consequence of the common purpose (R v Anderson and Morris) · Apply to facts · Conclude Withdrawal s 8(2) • Law: An accessory will not be liable until the PO is actually committed (s 8(2)).
The accused can terminate their involvement and escape their liability if they; (1) withdrew from the prosecution of the unlawful purpose; (2) by words or conduct communicate their withdrawal from the unlawful purpose to those invloved in the PO; and (3) take reasonable steps to prevent the commission of the offence (R v Menniti). · Apply to Facts · Conclude Fraud (not in exam) • Law: Fraud is when an owner parts with their property under false pretences. It is defined in s409 as (1) any person; (2) with intent to defraud; (3) by deceit or any other fraudulent means; (4) obtains property from another person. An intent to defraud is discussed in Balcombe v De Simoni. It requires an intention to induce, and does induce, another to act · · ? Deceit or other fraudulent means are generally statements of fact that the defendant knew to be untrue (R v Carpenter). But the definition is very broad. ? Obtains is defined in s1 as obtaining possession of property. Possession without ownership is enough (Seiler v R). ? Property in s1 includes everything, animate or inanimate, that is capable of ownership. Apply to facts Cobclusion