Criminal Law and Procedure

LAWS1206

Semester 1 2013
Overall result: 82.6

Question 2:

The events took place in NSW, as such the relevant legislation is the Crimes Act 1900 (NSW) and all further references will be to this act.

The P bears the legal burden of proof to prove all elements of the offence BRDN (Woolmington) [✔]

Lydia (L’s) liability for sexual assault

The P must prove that L had sexual intercourse with V, without V’s consent, and knew that V did not consent. (BRD)(s61I)[ ✔]

Sexual Intercourse

Sexual Intercourse is defined in s 6IH(1)(a) [✔] penetration to any extent of the genitalia of a female person. Here, L has penetrated V’s vagina. It must be done by (i) any part of the body of another person or (ii) any object manipulated by another person. Here it is unclear which of these definitions the penetration falls under, but it will be proved whether the penetration occurred by L’s body or an object manipulated by her.

L is unlikely to be able to rely on s 61(i)(a) that sexual intercourse does not mean penetration carried out for proper medical purposes, as there is no evidence to suggest she is a medical practitioner or that there was any ‘proper’ purpose to the penetration.

As such the P can show sexual intercourse occurred BRD. [✔ good]

Without consent

The intercourse must have occurred with the consent of V, where consent is defined as ‘freely and voluntarily agrees’ (s 61IHA(2))[✔]

However, consent will be automatically negated where the V was under a mistaken belief that the sexual intercourse is for medical or hygienic purposes or any other mistaken belief about the nature of the act induced by fraudulent means. (s 61IHA(5)(c)) [✔]

Here, L has fraudulently led V to believe that she is being penetrated by an ‘angel’ [✔] or that the angel is casing the ‘feeling’ of penetration. While the mistake can’t be only as to an inducing cause of the penetration or the social status identity (Papadamitriopolous) [✔✔v.good] this mistake is as to the very nature of the penetration and as such consent will be negated. [✔✔]

However, if the P could not rely on s 16IHA(5)(C), the P could rely on s 61IHA(4) that consent is negated where the person consents because of threats of force or terror. (61HA(4)(c)). [✔]

In R v BM, Kirby defined ‘terror’ as a sharp, overpowering fear. Here, the Red Witch has convinced V that she is being attacked by spirits, and V is ‘shaking with fear’ indicating she has been put in terror. It is irrelevant that her fear comes from the spirits, as the inducing cause of the fear does not need to emanate directly from the D (R v Clarke).

As such, the P can show BRD on either of these grounds that there was no consent. [✔Great work]

Mens rea: Did L know that V did not consent?

If the P were successful on the first ground of negated consent (the mistaken belief) the P would rely on s 61IHA(5) which indicates that for the purposes of knowledge, a person knows that the V does not consent if the person knows that the V consents under a mistaken belief. (s 61IHA(5)). [✔✔]

Here, L has induced V to believe that the angel is going to penetrate her, and as such it can be inferred that she knows V is consenting under a mistaken belief. [✔✔]

If the P was successful on the second ground of negated consent, due to the sharp overpowering fear (s 61IHA(4)) the P would have to show that L had knowledge of the lack of consent under the relevant considerations in s 61IHA(3). [✔]

Knowledge (s 61IHA(3)(a))

[(3)(d) obligatory]

As L knows that V believes an angel will penetrate her, and knows that she is consenting because of her terror that spirits are following her, the P can show knowledge that V was consenting only due to her fear and as such has knowledge that there was no consent. [✔✔]

If the P could not show knowledge, the P could argue that L was reckless.

Recklessness as to consent

Here, the relevant test is either foresight of the possibility that there was no consent (Hemsley, advertent recklessness) or reckless inadvertence (Tolmie) [✔✔]

As L has knowledge that V believes she will be penetrated by an angel and knows that she has put V in fear of spirits, the P could establish foresight of the possibility that there was no consent. [✔]

However, the P could also rely on reckless inadvertence and show that even if L did not turn her mind to the fact that L did not consent, she should still be liable as a risk that V was not consenting would have been onvious to a person of L’s mental capacity, had she turned her mind to it’ (Tolmie) [possible but unlikely, no advertence on these facts]

Here, someone of L’s evident skills could have turned her mind to the possibility that V was only consenting to the SI due to her terror, and was not good consent. [✔✔Yep, I agree]

As such, based on the ability to prove all elements of s 61I beyond reasonable doubt the P are able to secure a conviction.

[Excellent!]

Question 2 Part B

Dale’s liability for common assault (s 61)

Dale may be found liable for common assault under s 61 for the threatening phone call made to L.[✔] The P must show that D caused L to apprehend immediate/unlawful personal violence in his phone call to her, either intentionally or recklessly. (Fagan, Majewski) [✔]

ACTUS REUS

Threat of Force

Telephone calls can constitute a threat of force (Barten) and it has been held that mere words can amount to an assault (Ireland, Barstow). The focus is however on the victim’s state of mind (R v McNamara) and whether it cause the V to apprehend immediate unlawful personal violence. [✔]

This is a subjective test [✔] and looks to the state of mind of the V. (MacPherson v Beath).

Here, there is little evidence of L’s reaction to the phone call however on the facts she was ‘highly agitated’ when she saw Dale. This could suggest that the words had put her in fear of unlawful violence. [✔] Additionally, the threat of D was serious, stating ‘I am going to blow up your house’. Here the apprehension can still exist even if D is not in a position to blow up the house (R v St George, R v Everingham)

On the facts V was in fear of unlawful personal violence, however the fear must also be of immediate unlawful personal violence. (Wilson v Pringle, Logdon v DPP)

Immediacy

Here the V must perceive an immediate threat [✔] and in Knight it was held that the threats over the telephone could not amount to an assault as there was an appreciable distance and the threats could not have been executed at any time if at all. Here, Dale lives in Queanbeyan whereas V is in Sydney, which is analogous to the Knight situation, and the threats do not specify a time/or any sense that there is an immediate threat. [✔✔]

However, the P could rely on Barten which suggest that if the threats produce an apprehension then the law is breached. This case involved however very serious threats and an abuse of a position of trust [relationship here?] and as such the threshold is not likely to be reached by D’s act. [✔✔]

While the courts have been willing to stretch the notion of immediacy (Zanker v Vartzakos) it is unlikely this case will fall under such a category, particularly due to its similarly to Knight.[✔✔Well argued]

However, if the P could prove the threat, it would them need to show mens rea.

Intention to cause L to apprehend?

Intention is defined in He Kaw Teh as a decision to bring about a particular result. Here, D’s act in calling/threatening V could be said to show an intent to cause her to apprehended unlawful violence, as he makes a serious threat and is evidently very angry. However, on the facts there is nothing to suggest he intended her to apprehend immediate unlawful violence and as such the P will not be able to prove this BRD. [✔]

Recklessness

The P must show that D foresaw the possibility of L apprehending the violence (Coleman, R v Mowatt)

Here it can be inferred from the evidence that in making the threat D foresaw the possibility that V would apprehend violence (immediate/unlawful) and as such the P can show recklessness as the fault element. [✔✔]

However, as the notion of immediacy has not been satisfied the P will not prove BRD the common assault.

[Well done, very detailed analysis]

D’s liability for ag-assault under s 59

The P must prove that D use force against L, with intent or recklessness (Fagan) [✔] that resulted in ABH to L (s 59).

Actus Reus

As D has used unlawful force [hit in head] without L’s consent (Fagan) it is evident that the AR of the assault will be made out.

Intention

As this is a conduct, not results crime (R v V__) It must only be shown that D intended to assault l and not that he intended ABH to result. Here intention will use the He Kaw Teh, a decision to do a particular act. D has made a decision to apply unlawful force to V and as such the MR can be made out BRD based on intent. [✔Yes, no problem with MR, AR]

ABH?

Actual bodily harm is defined as ‘more than mere transient/trifling’ (R v Donovan) [✔] and not ‘slight/insignificant’. As L has suffered a concussion and a broken nose, this will fall udner ABH. In McIntyre v R scratching/bruising were considered to fall under the definition of ABH and as such L’s injuries will be considered ABH, however this is a question of fact for the jury. [✔✔]

Self Defence s 418

Self defence is a complete defence, and a successful raising of it will result in an acquittal for D (s 418(1)) [✔] D bears the evidential burden in relation to the defence, but the legal burden rests with P to disprove the defence BRD (s 419). [✔]

1. Belief conduct was necessary

The D must have believed the conduct was necessary (subjectively) in order to protect ‘property from unlawful taking, destruction, damage or interference’ (s 418(2)(c)). [✔] Here, L was unlawfully interfering with D’s property, and as such D must show that he believed that hitting her on the head was necessary to protect his car. [✔]

This is a subjective test (Conlon) and all the relevant characteristics of the A are taken into account. As such it may be relevant that D knew that L had committed sexual assault against his mother and could therefore have believed she was capable of serious crimes, and to stop her, it was necessary to hit her. [perhaps]

While there is no proportionality test, the response of the A is relevant to assessing his subjective belief (Zecevic)

Here, the A has responded to scratching of his car [✔] with a hard hit on the head, which may not be proportionate when he could have grabbed the stick, or pushed her away from the car. [✔✔]

However, it is necessary to warn the trier of fact against being ‘wise’ after the fact as the action of the D has to be considered in the circumstances that he was in. [✔]

However, the P could rely on the fact that the D was also angry at L for the previous incident and as such acted beyond what was reasonable, and did not have a belief that it was necessary to hit her on the head. While this is a matter for the jury it is unlikely that it would be considered he had a belief that his conduct was necessary to protect his property. [✔]

However, if it were found that he did possess the subjective belief it was necessary, it would have to be shown that his conduct was a reasonable response in the circumstances as he perceived them (416(3)) [2], (Kartazyski). This is an objective test, and it is unlikely that in the circumstances that D perceived with his car getting scratched, a jury would find that punching L in the head was a reasonable response to those circumstances, as he had a number of other options available to him.

As such, it is unlikely that he will be able to raise self-defence successfully and the P can disprove BRN both elements of the defence, and therefore D is likely to be convicted under s 59 for aggravated assault. [✔✔]

[Well Done! Excellent knowledge of the law and present persuasive and intelligent legal arguments. I’m amazing you got so much depth to your answers in the time]

Mark for Question 2: 86

Question 3

PART A

Anthony’s liability for theft

The events occurred in the ACT, the relevant legislation is the Criminal Code 2002 (ACT) and all further references will be to this act.

The P must prove that A dishonesty appropriated property belonging to someone else with the intention to permanently deprive the other person of the property (s 308) [✔]

Physical Elements

Property: The necklace is clearly property under the definition in the CC and the Legislation Act[personal property? In] as it is a tangible thing (CC Dictionary)

Belonging to someone else

Under s 3d, property belongs to anyone having possession or control of it, or any property right or interest in it. As Vasko at the time had possession of the necklace it is clear the property was belonging to Vasko at the time that A found it. [but A possessed necklace at time discovered it? And via s 305(5)(a) belonging to another proved?]

Appropriation

By operation of s 305(5) and (6) the appropriate may be proved by way of a fundamental mistake.

Fundamental Mistake

Under s 305(6)(b)(a) a fundamental mistake can be a mistake as to the essential nature of the property (b) [✔]Here V believes he is just selling A the painting, and not anything else with it and as such there has been a fundamental mistake as to the nature of the property.

Legal Obligation to make restoration?

There must be a legal obligation to make restoration of the property. Under the principles of code interpretation in Barlow[✔]and Charlie [✔]resort many be had to the CL to determine the meaning of ‘restoration’

AG Ref (No 1 of 1983) indicated that restoration is like ‘restitution’, which involves a situation where a person is obliged to pay for a benefit where the benefit has been given under a mistake as to a material fact on the part of the giver, and is based on the doctrine of unjust enrichment.

Here, A has unjustly been enriched with the $5000 necklace by way of a mistake as to its existence on the painting by V, and as such is under an obligation to make restitution. [✔]

Intention not to make restoration?

Intention in relation to conduct is defined as ‘means to engage in the conduct (s 1891)). Here it is clear that A means not to make restoration as he has stated ‘no-one will be the wiser’. While it could be argued he stated ‘I’ll let him know where I got them’ [✔]which could indicate an intention to make restoration, it is unlikely this would hold up as he has not stated that he intends to give them back, just that he will ‘let him know’ where he go them. As such, an intention not to make restoration can be proved BRD.

By operation of s 305(5)(b)(i) & (ii), and (6), the intention not to make restoration becomes the intention to permanently deprive [✔]and the appropriation [✔]and as such the only remaining elements are dishonestly and recklessness as to whom the property belongs. The physical and fault elements must concur. [✔]

Dishonesty s 300

Here, the D’s conduct must first be (a) dishonest according to the standards of ordinary people (s 300) . Here keeping property that has a high value that does not belong to you can easily [✔]be seen to be dishonest according to the standards of ordinary people. Dishonesty is a matter for the trier of fact (s 302).

(b) Known by the D to be dishonest according to the standards of ordinary people (s 300)

Here, the D has stated to the framer ‘not a word of this’ and bribed him $100 not to say anything, [✔]indicating he knew it was dishonest to keep the necklace. As such, this element can be proved BRD.

Recklessness

By operation of s 22, the default fault element for the physical element of ‘belonging to someone else’ is recklessness under s 20(2). [✔]

However, under s 20(4) recklessness may be proved by proof of knowledge. [✔✔]

Her it is evident that A knew that the property belonged to someone else, as he has found it on a painting from D.

As such, A can be liable for theft under s 308 as all elements can be proved by the P BRD.

PART B: Draco’s liability for murder

Jurisdiction = NSW, legislation = Crimes Act 1900, P has legal burden of proof (BRD) (Woolmington) and D bears evidential burden re: defence but P must disprove defences BRD. (reasonable possibility)

Under s 18(a) the P must prove that D caused the death of V with intent to kill, inflict GBH or with reckless indiff. To human life (s 18a)

Act causing death [Cite Campbell?]

Here it is evident on the facts that the act of P’s hit to the head of V caused his death, and his intoxication is not relevant to the volutnariness of his conduct (s 428a) as it was self-induced. [Automation args?]

MR: Intent to kill

Here the relevant intention is defined in He Kaw Teh as a decision to bring about a particular result. [✔]

On the facts, it is not shown BRD that he had an intent to kill as he has stated ‘give me what is mine’ suggesting an intent to get his painting back. [✔]However P could rely on his statement ‘get out of my life’ which may suggest intent to kill. On the evidence however this cannot be proved BRD. [✔✔]

Intent to inflict GBH?

GBH is defined as ‘any permanent serious disfiguring’ (s 4) and ‘really serious injury’ (DPP v Smith) [✔]Here the D has grabbed a bottle of champagne and hit V with ‘considerable force’ suggesting he wanted to inflict ‘really serious bodily injury’. This element can be proved BRD however if the jury does not accept this, the P may rely on reckless indifference to human life (RITH) [same statements as above?]

RITH

In order to show RITH the P must prove that D foresaw the probability that his act would result in death. (Crabbe). Here, the D has rushed at V with a bottle and hit him, which suggests that he would have known such an act would probably result in death. [is this the best test of subjective foresight?]

Additionally the evidence of his earlier statement ‘by any means necessary’ strongly suggests foresight of the probability that he may cause death to V in the process. On the facts, the P has a stronger case in showing intent to inflict GBH, as there is no evidence of his foresight. [✔✔]

While the D’s statement suggests his intent, it is likely that the jury would find on the evidence and the force with which he hit V that at that point he possessed the intent to inflict GBH. [✔✔ Clear conc!]

Intoxication

As murder is a crime of specific intent, (s 428B), D’s intoxication is relevant to whether he could form the relevant mens rea. (428C)

As the D had consumed approx. 10 standard drinks prior to the incident and taken an E tablet, and on his evidence he states ‘I was a little charged up’ he could argue that his intox precluded him. However, as he states he was only ‘a little’ charged up and he has spent 30 minutes talking to E and explaining the situation it does not appear that his intox was of a sufficient degree to preclude him from forming the MR. [✔✔]