DIPLOMA IN LAW
LEGAL PROFESSION
ADMISSION BOARD
LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
02 CRIMINAL LAW AND PROCEDURE
WINTER SESSION 2016
This Guide includes the Law Extension Committee’s course information and teaching program and the
Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading
“Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the
NSW Admission Board Rules 2015.
Course Description and Objectives
Lecturers
Assessment
September 2016 Examination
Texts and Materials
Lecture Program
Weekend Schools 1 and 2
Prescribed Topics and Course Outline
Compulsory Assignment
Assignment Questions
Sample Examination Question
1
1
1-2
2
3
4
5
6-21
21
21
22
1
LAW EXTENSION COMMITTEE
WINTER 2016
02 CRIMINAL LAW AND PROCEDURE
COURSE DESCRIPTION AND OBJECTIVES
This course provides the student with an understanding of the general principles of criminal law,
together with a detailed knowledge of the application of these principles in respect of major crimes.
The student is also introduced to aspects of pre-trial criminal procedure, including police powers of
arrest, search, seizure and interrogation.
The objectives of the course are:
(a)
(b)
(c)
(d)
to introduce students to aspects of pre-trial criminal procedure with a view to appreciating
the competing public policy considerations of crime control and individual liberty;
to provide students with a basic understanding of the general principles of criminal
responsibility through an appreciation of criminal law theory, and the study of major crimes
and defences;
to develop the students’ skills of critical appraisal of social institutions and community
values and expectations in relation to criminal behaviour; and
to encourage students to think about the ways in which power structures in society are
reproduced by the criminal law and criminal justice system.
LECTURERS
Mr Greg Sarginson, BA, LLB, LLM (Syd)
Mr Sarginson is a barrister practising in Sydney. Prior to coming to the Bar in 2003, he was a solicitor
for 10 years. Greg was a casual lecturer at the University of Western Sydney and has previously
taught at the University of Technology, Sydney. Greg is also a casual lecturer at the College of Law
and a reporter for the New South Wales Law Reports. Greg has been a contributor for the criminal
chapters of Halsbury’s Laws of Australia (Lexis Nexis). He is a contributor for NSW Civil Procedure
Practice (Thomson Reuters). He has a varied practice at the Bar, including appearing for NSW
government entities in tort matters; appearing for the NSW Commissioner for Fair Trading in Supreme
Court matters where injunctive relief is sought under the Australian Consumer Law; and appearing in
criminal matters, including conducting prosecutions for the NSW Department of Fair Trading.
ASSESSMENT
To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and
learning program, the first step of which is to ensure that you have registered online with the LEC in
each subject for which you have enrolled with the Board. This gives you access to the full range of
learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow
the instructions. Detailed guides to the Webcampus are contained in the material distributed by the
LEC, in the Course Information Handbook, and on the Webcampus.
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s
performance in a subject in order for the student to be eligible to sit for the examination, conducted by
the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
2
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for
examinations. However, a category of “deemed eligible” has been introduced to offer students whose
assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances
students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the
examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC
engages the LPAB’s Examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted.
Extensions must be requested by email prior to the due date. Specific supporting evidence must be
provided. Assignments that are more than ten days late will not be accepted. Late assignments attract
a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined
in the Guide to the Presentation and Submission of Assignments. Prior to the examination,
assignments will be returned to students and results posted on students’ individual results pages of
the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their
eligibility to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in
that subject will be included in the Revising Examiner’s review. The final examination mark is
determined in accordance with this review. Assignment marks will not otherwise be reviewed.
SEPTEMBER 2016 EXAMINATION
Candidates will be expected to have a detailed knowledge of the prescribed topics:
General principles of criminal responsibility; A case study of criminal jurisdiction; Property offences;
Assault; Sexual offences; Conduct of homicide; The minds of murder; The minds of involuntary
manslaughter; Provocation; Self-defence; Duress; Necessity; Insanity and diminished responsibility;
Intoxication; Automatism; Strict liability and mistake of fact; Complicity; Attempt and Pre-trial criminal
procedure.
Candidates will be expected to have made a study of the prescribed materials in relation to those
topics, and to have analysed cases and statutory provisions referred to in the Law Extension
Committee's course outline.
Information regarding permitted materials is listed in the Course Information Handbook. All enquiries
regarding examinations should be directed to the Legal Profession Admission Board.
3
TEXTS AND MATERIALS
For the period from 21 April to 30 May 2016, LexisNexis is offering our students a special discount and free
shipping on purchases made through the LexisNexis e-store at www.store.lexisnexis.com.au. Students quoting
the promo code LECW2016 will receive a 15% discount on all text titles (except for those authored by John
Carter). This discount is not limited to the prescribed or recommended texts for our courses. Students should,
however, still compare LexisNexis’s discounted price with that of other outlets. The Co-op Bookshop, for example,
offers a discount on texts sold to its members.
Course Materials


Criminal Law and Procedure Course Materials (available via the Law Library link in the Course
Materials section on the LEC Webcampus)
Guide to the Presentation and Submission of Assignments (on the LEC Webcampus)
Prescribed Materials


Hayes & Eburn, Criminal Law and Procedure in NSW, 4th ed. LexisNexis, 2014
Howie & Johnson, Annotated Criminal Legislation New South Wales, 2015-2016 ed. LexisNexis,
2015
Reference Materials





Waller & Williams, Criminal Law Texts and Cases, 12th ed. LexisNexis, 2013
Rush and Yeo, Criminal Law Sourcebook, 2nd ed. LexisNexis, 2006
Gillies, Criminal Law, 4th ed. Thomson Reuters, 1997 (Available as a pdf from the publisher’s
website)
Brown, Farrier, McNamara, Egger, Steel, Criminal Laws: Materials and Commentary on Criminal
Law & Process, NSW, 5th ed. Federation Press, 2011
Blackmore & Hoskings, Criminal Law NSW, Thomson Reuters (available as online subscription)
LEC Webcampus
Once you have registered online with the LEC, you will have full access to all the facilities on the
Webcampus including links to relevant cases and legislation in Criminal Law and Procedure.
Regularly check the Course Materials section on the LEC Webcampus.
4
LECTURE PROGRAM
Lectures in Criminal Law and Procedure will be held on Tuesdays from 6.00pm until 9.00pm
commencing on Tuesday 10 May 2016. Lectures during the first half of the semester will be held in
Carslaw Lecture Theatre 159 (CLT 159). Lecture venues for the second half of the semester have yet
to be confirmed. For details as to the location of lecture venues, refer to p.52 of the Course
Information Handbook for a map of the University of Sydney main campus.
This program is a general guide and may be varied according to need. Readings are suggested to
introduce you to the material to be covered in the lecture, to enhance your understanding of the topic,
and to encourage further reading. You should not rely on them alone.
LECTURE
DATE
TOPIC
1
10 May
Introduction to course
General principles of criminal responsibility
2
17 May
Property offences
3
24 May
Property offences (cont'd)
Assault
4
31 May
5
7 Jun
Conduct of homicide
6
14 Jun
The minds of murder
The minds of involuntary manslaughter
Revision Exercises
KEY READING
Refer to the Synopsis,
Course Outline and
references preceded by an
asterisk (*)
Assault (cont'd)
Sexual offences
Study Break: Saturday 18 June – Sunday 3 July 2016
Please note: Criminal Law and Procedure compulsory assignment is
due on Wednesday 29 June 2016
7
5 Jul
Provocation
8
12 Jul
Self-defence
Duress
9
19 Jul
Necessity
Insanity and diminished responsibility
Revision exercises
10
26 Jul
Automatism and Intoxication
Strict liability and mistake of fact
11
2 Aug
Complicity
12
9 Aug
Attempt
Pre-trial criminal procedure
Revision for exam
Refer to the Synopsis,
Course Outline and
references preceded by an
asterisk (*)
5
WEEKEND SCHOOLS 1 AND 2
There are two weekend schools principally for external students. Lecture students may attend on the
understanding that weekend classes aim to cover the same material provided in weekly lectures and
are primarily for the assistance of external students.
Please note that it may not be possible to cover the entire course at the weekend schools. These
programs are a general guide, and may be varied according to need. Readings are suggested to
introduce you to the material to be covered in the lecture, to enhance your understanding of the topic,
and to encourage further reading. You should not rely on them alone.
Weekend School 1
TIME
MAJOR TOPICS
KEY READING
Saturday 28 May 2016: 8.00am – noon in New Law School Lecture Theatre 101 (New
LSLT 101)
8.00am-9.10am
General principles of criminal
responsibility
9.20am-11.00am
Property offences
11.00am-11.45am
Property offence (continued)
Assault
Revision exercises
11.45am-12.00noon
Refer to the Synopsis, Course
Outline and references preceded by
an asterisk (*)
Sunday 29 May 2016: noon – 4.00pm in New Law School Lecture Theatre 101 (New LSLT
101)
12.00noon-1.10pm
Assault (continued)
1.20pm-2.40pm
Sexual offences
2.50pm-3.45pm
Conduct of homicide
The minds of murder
3.45pm-4.00pm
Revision exercises
Refer to the Synopsis, Course
Outline and references preceded by
an asterisk (*)
Weekend School 2
TIME
MAJOR TOPICS
KEY READING
Saturday 23 July 2016: 8am – noon in Eastern Avenue Auditorium (EAA)
8.00am-9.20am
Provocation
9.30am-11.00am
Self-defence, duress and necessity
11.00am-11.45am
Insanity and diminished
responsibility
Revision exercises
11.45am-12.00noon
Refer to the Synopsis, Course
Outline and references preceded by
an asterisk (*)
Sunday 24 July 2016: noon – 4.00pm in Eastern Avenue Auditorium (EAA)
12.00noon-1.30pm
Automatism and Intoxication
Strict liability and mistake of fact
1.40pm-2.40pm
Complicity
2.50pm-3.45pm
Attempt
Pre-trial criminal procedure
3.45pm-4.00pm
Revision exercises
Refer to the Synopsis, Course
Outline and references preceded by
an asterisk (*)
6
PRESCRIBED TOPICS AND COURSE OUTLINE
Teaching will proceed on the assumption that you are making a detailed study of the prescribed
reading. At a very minimum, you must read all of the references in the course outline which are
preceded by an asterisk (*). Most of these references are in Rush and Yeo, Criminal Law
Sourcebook. Below each topic heading, there is usually a reference to relevant pages in the
prescribed text by Hayes & Eburn, Criminal Law and Procedure in NSW, 4th edition.
1.
General Principles of Criminal Responsibility
Synopsis:



Explanation of the physical and mental elements of a crime.
To evaluate the relationship between the fault (mental) element of a crime and voluntariness.
To consider the classes of criminal activity by reference to mental state of an accused.
Reading:
*Hayes & Eburn, pp 1-70
(1)
Generally
*He Kaw Teh (1985) 157 CLR 523; (1985) 60 ALR 449
(2)
Actus reus: the physical or external element
(2) (i) Voluntary Conduct
Ryan (1967) 121 CLR 205
Falconer (1990) 171 CLR 30
(2) (ii) Omission to Act
Taktak (1988) 14 NSWLR 226
Burns (2012) 290 ALR 713
(2) (iii) Causation
Hallett [1969] SASR 141
(3)
Mens rea: the fault or mental element
Crimes Act s4A
(3) (ii) Intention
Nedrick [1986] 3 All ER 1
Stanley [2013] NSWCCA 124
"Some Simple Thoughts on Intention" by Richard Buxton QC [1988] Crim LR 484 at 495
(3) (iii) Recklessness
Assault
Williams (1990) 50 A Crim R 213
Sexual Assault
Tolmie (1995) 37 NSWLR 660
7
Murder
Crabbe (1985) 156 CLR 464
Royall (1991) 172 CLR 378
Solomon [1979] 1 NSWLR 321
(3) (iv) Negligence
Nydam [1977] VR 430
Lavender (2005) 218 ALR 521
Statutory Offences
(4)
Strict and absolute liability
He Kaw Teh (1985) 157 CLR 523; (1985) 60 ALR 449
CTM v R (2008) 247 ALR 1
2.
Property Offences
Synopsis:









Historical development of the law of larceny.
Importance of possession over ownership.
Examination of the physical and mental elements of common law larceny.
To consider the relationship of temporal coincidence to the elements of larceny.
Exceptions to the general principles of larceny.
To examine the law of larceny in regard to mistake, finding and tricks.
To consider the concept of a false pretence.
To analyse the law of breaking and entering.
To understand the transition from the crime of stealing to the crime of robbery by use of force.
Reading:
(1)
Basic Larceny
Crimes Act, ss 4B, 94AA, 116-140; 150-154; 154A, 154F
*Hayes & Eburn, pp 307-346
(a)
(aa)
Actus reus
Property capable of being stolen
Crimes Act s4
R v Daley (1879) 12 SCR (NSW) 151
(ab)
Property belonging to another
*Kelly (1999) QB 621; [1998] 3 All ER 741
*Anic (1993) 61 SASR 223
*Croton (1967) 117 CLR 326
(ac)
Asportation / Appropriation Without Consent
*Kolosque v Miyazaki (1995) NSWSC (unreported, 17 February 1995, per Dowd J)
*Wallis v Lane [1964] VR 293
*Ellis v Lawson (1987) 33 A Crim R 69
*Kennision v Daire (1986) 160 CLR 129
Morris [1984] AC 320; [1983] 3 All ER 288
8
(b)
Mens rea
(ba)
Intent to deprive owner permanently
*Minigall v McCammon [1970] SASR 82
*Foster (1967) 118 CLR 117; [1967] ALR 458
*Cockburn [1968] 1 All ER 466
(bb) Dishonesty or fraudulence; including honest belief of claim of right
Crimes Act s4B
*Peters (1998) 192 CLR 493; (1998) 151 ALR 51
*McLeod v R (2003) 214 CLR 230
*Lopatta (1983) 35 SASR 101
*R v Fuge (2001) 123 A Crim R 310
(bc)
Contemporaneity of mens rea and actus reus
*Minigall v McCammon (1970) SASR 82
Buttle (1959) 60 SR (NSW) 320
Riley (1853) 169 ER 674
(2)
Larceny by mistake
*Hayes & Eburn, pp 336-344
*Potisk (1973) 6 SASR 389
*Ilich (1987) 162 CLR 110
Shields v New South Wales Crime Commission [2007] NSWCA 309
(3)
Larceny by finding
*Hayes & Eburn, pp 335-336
Crimes Act, s 124
*Minigall v McCammon [1970] SASR 82
*MacDonald [1983] 1 NSWLR 729
Thurborn (1849) 169 ER 293
(4)
Larceny by a trick
*Hayes & Eburn, p 344
*Justelius [1973] 1 NSWLR 471
Pear (1779) 168 ER 208
Ward (1938) 38 SR (NSW) 308
(5)
Fraud; Obtaining Property Belonging to Another, and related offences
Crimes Act, ss 192B-192H
*Hayes & Eburn, pp 346-352
A Steel; ‘New fraud and identity related crimes in New South Wales’; Judicial Officer’s Bulletin; Judicial
Commission of NSW; Vol 22 No 3; April 2010.
*Parsons (1999) 160 ALR 531
*Vasic (2005) 11 VR 380
*Elias v DPP (NSW) [2012] NSWCA 302
R v Ho (1989) 39 A Crim R 145
9
R v Clarkson [1987] VR 962; (1987) 25 A Crim R 277
Flack v R [2011] NSWCCA 167
DPP v Ray [1974] AC 370
Lawrence v Metropolitan Police Commissioner [1972] AC 626
Balcombe v De Simoni (1972) 126 CLR 576; [1972] ALR 513
(6)
Breaking and Entering
Crimes Act, ss 109-115; 148-149
*Stanford (2007) 70 NSWLR 474; [2007] NSWCCA 370
Barker (1983) 153 CLR 338; 1983] 47 ALR 1
Galea (1989) 46 A Crim R 158
Walker (1978) 19 SASR 532
(7)
Robbery
Crimes Act, ss 94-98
*Smith and Desmond [1965] AC 960
*Langham (1984) 36 SASR 48
Gnosil (1824) 171 ER 1206
(a)
Steal From Person
*Delk (1999) 46 NSWLR 340
Bieu Vinh Hua [2002] NSWCCA 384
Edwards [2009] NSWCCA 199
3.
Assault
Synopsis:







To evaluate the physical and mental elements of the crime of assault.
To analyse a conditional threat.
To consider the relevance of the victim’s state of mind by comparing psychic assault and physical
assault.
Application of the concept of recklessness to law of assault.
To resolve the issue of consent by reference to sports and other consensual activities.
The relevance of intention and/or fear/apprehension to law of assault.
Consideration of recognised defences.
Reading:
Crimes Act, ss 4A, 32-49A, 51A-61
Crimes (Domestic and Personal Violence) Act 2007, s 13
*Hayes & Eburn, pp 204-242
Hon PW Young “Is there any law of consent with respect to assault? (2011) 85 ALJ 23
(1)
Actus reus
(a)
Application of force or threatened application of force
*Fagan [1969] 1 QB 439
*Knight (1988) 35 A Crim R 314
*Zanker v Vartzokas (1988) 34 A Crim R 11
*Ireland [1997] 4 All ER 225
*Collins v Wilcock [1984] 3 All ER 374
*Mostyn (2004) 145 A Crim R 304
Barton v Armstrong [1969] 2 NSWLR 451
10
(b)
Conditional threats
*Rosa v Samuels [1969] SASR 205
Tuberville v Savage (1669) 86 ER 684
Police v Greaves [1964] NZLR 295
(c)
State of mind of victim
*Brady v Schatzel [1911] St R Qd 206
*Ryan v Kuhl [1979] VR 315
McPherson v Brown (1975) 12 SASR 174
(d)
Absence of consent
*Brown [1994] 1 AC 212; (1993) 2 WLR 556
Wilson [1996] 2 Cr App R 241
Emmet [1999] EWCA Crim 170
Stein [2007] VSCA 300
Attorney-General’s Reference (No 6 of 1980) [1981] 1 QB 715
Pallante v Stadiums (No 1) [1976] VR 331
(2)
Mens rea
*Blackwell [2011] NSWCCA 93; (2011) 208 A Crim R 392; (2011) 81 NSWLR 119
*Chen [2013] NSWCCA 116
*Percali [1986] 42 SASR 46
*Williams (1990) 50 A Crim R 213
*Smith [1961] AC 290
*D [1984] 3 NSWLR 29
Venna [1976] QB 421
(3)
Assault Causing Death
Crimes Act ss 25A, 25B
4.
Sexual Offences
Synopsis:






Consideration of the physical and mental elements of sexual offences.
Definition of sexual intercourse.
Importance of consent as part of the actus reus.
Developments in the law on consent.
Interplay between consent and recklessness; consent and mistaken belief.
Physical and mental elements of sexual offences not involving sexual intercourse.
Reading:
(1)
Sexual assault
Crimes Act, ss 61H-61Q, 61S-61U, 66A-66F, 73, 77, 80A
*Hayes & Eburn, pp 243-294
11
(a)
Actus reus
*Clark [1998] NSWSC 126
*Mueller (2005) 62 NSWLR 476
*Dean (2006) 66 A Crim R 341
*Chant and Madden (1998) Unreported, 12 June 1998, NSWCCA
*Aiken (2005) 63 NSWLR 719
CTM v R (2008) 247 ALR 1
Williams [1923] 1 KB 340
Gallienne (1963) 81 WN (Pt 1) (NSW) 94
Papadimitropoulos (1957) 98 CLR 249
Mobilio (1990) 50 A Crim R 170
Wilkes and Briant [1965] VR 475
Question of Law (No 1 of 1993) (1993) 59 SASR 214
(b)
Mens rea
*AJS (2005) 12 VR 563
*Morgan [1976] AC 182
*Tolmie (1995) 37 NSWLR 660
* Banditt (2005) 224 CLR 262; 223 ALR 633
*Bochkov [2009] NSWCCA 166
*Getachew [2012] HCA 10
*WO v DPP (NSW) [2009] NSWCCA 275
McEwan [1979] 2 NSWLR 926
AM v R [2011] NSWCCA 237
(2)
Indecent assault and act of indecency
Crimes Act, ss 61L-61O, 77
Hayes & Eburn pp 295-304
*Fitzgerald v Kennard (1995) 38 NSWLR 184; 84 A Crim R 333
*Harkin [1989] 38 A Crim R 296
* Gillard (1999) 105 A Crim R 479
*Barrass [2005] NSWCCA 131
*Bonora (1994) 35 NSWLR 74
*Eades v DPP [2010] NSWCA 241
5.
Conduct of Homicide
Synopsis:






Definition of homicide.
Meaning of ‘human being’ with reference to death.
The old ‘year and a day’ rule.
Analysis of conducts amounting to voluntary conduct.
Understand and apply the tests derived for causation.
Appreciate the place of omission in the structure of criminal responsibility for homicide.
Reading:
Crimes Act, s 18
*Hayes & Eburn, pp 71-121
(1)
Human being
Human Tissue Act 1983 (NSW), s 33
Crimes Act 1900, s 20
12
R v Iby [2005] NSWCCA 178
Hutty [1953] VLR 338
Malcherek [1981] 2 All ER 422
(2)
Year and a day rule
Crimes Act, s 17A
Dyson [1908] 2 KB 454
Evans & Gardiner (No2) [1976] VR 523
(3)
Voluntary Conduct
*Ryan (1967) 121 CLR 205
*Falconer (1990) 171 CLR 30
*Katarzynski [2005] NSWCCA 72
*Murray (2002) 211 CLR 193
Ugle (2002) 211 CLR 171
Jiminez (1992) 173 CLR 572
(4)
Causation
*Hallett [1969] SASR 141
*Evans and Gardiner (No 2) [1976] VR 523
*Royall (1991) 172 CLR 378
*Burns (2012) 290 ALR 713
*Moffat (2000) 112 A Crim R 201
*Arulthiilakan (2004) 203 ALR 259; (2003) 78 ALJR 257
Blaue [1975] 3 All ER 446
Smith [1961] AC 290
Jordan (1956) 40 Crim App R 152
Malcherek [1981] 2 All ER 422
(5)
Omission to perform a legal duty to preserve life
*Taktak (1988) 14 NSWLR 226
Taber and Styman [2002] NSWSC 1329
Russell [1933] VLR 59
Stone and Dobinson [1977] QB 354
Miller [1983] 2 AC 161
6.
The Minds of Murder
Synopsis:




To comprehend and evaluate the four mental states required for the crime of murder.
Brief outline of recognised ‘defences’ and their relationship to the onus and standard of proof.
Examination of the felony-murder rule and its application.
Relationship between contemporaneity and the actus reus and the mens rea of the offence of
murder.
Reading:
(1)
The fault (or mental) element
Crimes Act, s 18(1)A
*Hayes & Eburn, pp 100-112
(a)
Intent to kill
13
Hyam [1975] AC 55; [1974] 2 All ER 41
Nedrick 8 Cr App R 179; [1986] 3 All ER 1
Demirian [1989] VR 97
(b)
Intent to inflict grievous bodily harm
Perks (1986) 41 SASR 335
Smith [1961] AC 290
Rhodes (1984) 14 A Crim R 124
(c)
Reckless indifference to human life
*Pemble (1971) 124 CLR 107; [1971] ALR 762
*Crabbe (1985) 156 CLR 464
*Royall (1991) 172 CLR 378
*Solomon [1979] 1 NSWLR 321
Boughey (1986) 161 CLR 10
Pereira (1988) 82 ALR 217
Annakin (1988) 17 NSWLR 202
(d)
Constructive murder
*Ryan (1967) 121 CLR 205
*Jacobs and Mehajer [2004] NSWCCA 462
Mraz (1955) 93 CLR 493
Hitchins [1983] 3 NSWLR 318
(2)
Actus reus and mens rea: time dimension
*Meyers (1997) 147 ALR 440; 71 ALJR 1488
*Le Brun 94 Cr App R 101; [1991] 4 All ER 673
Thabo Meli [1954] 1 WLR 228
McConnell [1977] 1 NSWLR 714
Royall (1991) 172 CLR 378
7.
The Minds of Involuntary Manslaughter
Synopsis:






Definition of the crime of manslaughter.
Elements of voluntary and involuntary manslaughter.
Contrast between civil and criminal negligence.
Analysis of doctrine of unlawful and dangerous act manslaughter.
To distinguish between negligent manslaughter and unlawful and dangerous act manslaughter.
Reasons for the demise of battery manslaughter.
Reading:
*Hayes & Eburn, pp 163-203
(1)
Criminal negligence
*Lavender (2005) 218 ALR 521
*Nydam [1977] VR 430
*Do [2001] NSWCCA 19
*Taktak (1988) 14 NSWLR 226
Stone and Dobinson [1977] QB 354
(2)
Unlawful and dangerous act doctrine
14
*Wilson (1992) 174 CLR 313
*Burns 290 ALR 713
*Pullman (1991) 25 NSWLR 89; 58 A Crim R 222
Cornelissen [2004] NSWCCA 449
Newbury and Jones [1977] AC 500
Church [1966] 1 QB 59
Holzer [1968] VR 481
(3)
Intentional infliction of harm less than grievous bodily harm
Mamote-Kulang of Tamagot (1964) 111 CLR 62
Holzer [1968] VR 481
Wilson (1992) 174 CLR 313
8.
Provocation (Partial Defence of Extreme Provocation Reducing Murder to Manslaughter)
Synopsis:



To evaluate the nature, function, scope and underlying rationales of the defence of provocation.
To present the elements of the defence and to consider whether they accord with general notions
of justice and with community values and expectations.
Analysis of the ‘ordinary person test’.
Reading:
Crimes Act, s 23
*Hayes & Eburn, pp 124-158
Historical Development of Defence of Provocation prior to Crimes Amendment (Provocation) Act 2014
(NSW)
(1)
Scope and rationale of the defence
Parker (No1) (1963) 111 CLR 610
Burke [1983] 2 NSWLR 93
(2)
Conduct amounting to provocation
*Parker (No 1) (1963) 111 CLR 610
*Parker (No 2) (1963) 111 CLR 665
*Moffa (1977) 138 CLR 601
*Chhay (1994) 72 A Crim R 1
Holmes [1946] AC 588
(3)
The ordinary person test
*Stingel (1990) 171 CLR 312
*Masciantonio (1995) 183 CLR 58; (1995) 69 ALJR 598
*Green (1997) 191 CLR 334; (1997) 148 ALR 659
Mankotia (2001) 120 A Crim R 492
Sievers (2004) 151 A Crim R 426
(4)
Actual loss of self-control
*Pollock (2010) 242 CLR 233; (2010) 271 ALR 219
*Chhay (1994) 72 A Crim R 1
*Osland (1998) 197 CLR 316; (1999) 159 ALR 170
Van den Hoek (1986) 161 CLR 158
15
(5)
Mistake
*Dib (2002) 134 A Crim R 329
9.
Self-defence
Synopsis:




Consideration of self-defence, duress and necessity as ‘justifications’ or ‘excuses’.
Reiterate how onus rests on Crown to negate once ‘defence’ raised, not accused to prove.
To understand the need for and the roles played by the battered woman syndrome in the law of
self-defence.
To consider the doctrine of excessive force and its historical role in the law of self-defence.
Reading:
Crimes Act, ss 418-420, 422
*Hayes & Eburn, pp 451-463
(1)
The general defence
*Zecevic (1987) 162 CLR 645
*Kurtic (1996) 85 A Crim R 57
Osland (1998) 197 CLR 316; (1999) 159 ALR 170
Conlon (1993) 69 A Crim R 92
Viro (1978) 141 CLR 88
(2)
The partial defence
Crimes Act, s 421
*Katarzynski [2005] NSWSC 613
*Trevenna (2004) 149 A Crim R 505
Viro (1978) 141 CLR 88
Zecevic (1987) 162 CLR 645
10.
Duress
Synopsis:




To critically examine the nature, scope and underlying rationale for the law on duress.
Set out the elements for raising duress as a defence.
Consideration of the place of voluntary involvement with criminal organisations when raising
duress.
The position of an accused that commits murder under duress.
Reading:
*Hayes & Eburn, pp 422-439
(1)
Type of harm threatened
*Lawrence [1980] 1 NSWLR 122
Nguyen [2008] NSWCCA 22
Warren, Coombes & Tucker (1996) 88 A Crim R 78
Graham (1982) 74 Cr App Rep 235
Hurley and Murray [1967] VR 526
(2)
Present and continuing threat and opportunity to escape
16
Brown (1986) 43 SASR 33
Hudson and Taylor [1971] 2 QB 202
Williamson [1972] 2 NSWLR 281
(3)
Reasonable belief
*Runjanjic and Kontinnen (1991) 53 A Crim R 362
Graham (1982) 74 Cr App Rep 235
(4)
Ordinary firmness
*Abusafiah (1991) 24 NSWLR 531
*Lawrence [1980] 1 NSWLR 122
*Makrynikos [2006] NSWCCA 170
*Runjanjic and Kontinnen (1991) 53 A Crim R 362
Graham (1982) 74 Crim App R 235
(5)
Voluntary involvement with criminal group
Calderwood [1983] NI 361
Palazoff [1986] 43 SASR 99
Nguyen [2008] NSWCCA 22
(6)
Murder excluded
*Howe [1987] 1 AC 417
McConnell [1977] 1 NSWLR 714
11.
Necessity
Synopsis:



To critically examine the nature, scope and underlying rationale for the defence of necessity.
Set out the elements for raising necessity as a defence.
Consideration of the place of escape in the law on necessity.
Reading:
*Hayes & Eburn, pp 439-451
*Dudley and Stephens (1884) 14 QBD 273
*Loughnan [1981] VR 443
*Rogers (1996) 86 A Crim R 542
12.
Insanity and Diminished Responsibility
Synopsis:






To examine the nature, scope and underlying rationale of the defence of insanity.
To analyse the elements of the defence of insanity.
To note certain procedural features of the insanity defence.
To examine the nature, scope and underlying rationale of the defence of diminished responsibility.
To analyse the elements of the defence of diminished responsibility.
To consider historical statutory changes to the defence of diminished responsibility.
17
Reading:
(1)
Insanity
*Hayes & Eburn, pp 356-369
(a)
Generally
*M’Naghten’s Case (1843) 8 ER 718; [1843-60] All ER 229
*Porter (1933) 55 CLR 182
*Cheatham (No 1) [2000] NSWCCA 282
(b)
Defect of reason
Sodeman (1936) 55 CLR 192
Willgoss (1960) 105 CLR 295
(c)
Disease of the mind
*Porter (1933) 55 CLR 182
Sullivan [1984] 1 AC 156
Burgess 93 Cr App R 41; [1991] 2 WLR 1206
Kemp [1957] 1 QB 399
Quick [1973] QB 910
(d)
Knowledge of nature and quality of act or wrongness
*Porter (1933) 55 CLR 182
*Cheatham (No 1) [2000] NSWCCA 282
Stapleton (1952) 86 CLR 358
(2)
Diminished responsibility
Crimes Act, s 23A
*Hayes & Eburn pp 369-380
(a)
Generally
Veen (1979) 143 CLR 458
Thompson (1988) 36 A Crim R 223
(b)
Abnormality of mind
*Cheatham (No 2) [2002] NSWCCA 360
*Christov [2006] NSWSC 972
*Potts [2012] NSWCCA 229
Byrne [1960] 2 QB 396
Jones (1986) 22 A Crim R 42
Tumanako (1992) 64 A Crim R 149
(c)
Substantial impairment of mental responsibility
Lloyd [1967] 1 QB 175
Trotter (1993) 68 A Crim R 536
(d)
Proof
Tumanako (1992) 64 A Crim R 149
Walton [1978] AC 788
18
13.
Automatism
Synopsis:



To examine the nature, scope and underlying rationale of the plea of automatism.
To consider automatism as a sub-species of involuntariness.
To distinguish between sane and insane automatism.
Reading:
Hayes & Eburn, pp 390-400
*Falconer (1990) 171 CLR 30
*Woodbridge [2010] NSWCCA 185
Radford (1985) 42 SASR 266
Lainson (1995) Unreported, NSWSC 21 June 1995
Bratty v A-G (NI) [1963] AC 386
Quick [1973] QB 910
Sullivan [1984] 1 AC 156
Joyce [1970] SASR 184
Burgess [1991] 2 QB 92
14.
Intoxication
Synopsis:


To understand the historical development of the law on intoxication in the United Kingdom and
Australia.
To consider issues of intent and responsibility in the application of the law on intoxication.
Reading:
Crimes Act, ss 428A-428I
Hayes & Eburn, pp 403-420
*O’Connor (1980) 146 CLR 64
*Grant (2002) 55 NSWLR 80
*Derbin [2000] NSWCCA 361
*Maski [2004] NSWCCA 333
*Ward [2013] NSWCCA 46
Majewski [1977] AC 443
15.
Strict Liability and Mistake of Fact
Synopsis:


To comprehend the various categories of crime as those requiring mens rea, strict liability and
absolute liability.
Application of the Proudman v Dayman defence of honest and reasonable mistake of fact.
Reading:
Hayes & Eburn pp 56-67
(1)
Divining the fault element of statutory offences
*He Kaw Teh (1985) 157 CLR 523
*Jiminez (1992) 173 CLR 572
*Allen v United Carpet Mills Pty Ltd [1989] VR 323
19
Proudman v Dayman (1941) 67 CLR 536
(2)
Requisite elements of the defence of mistake of fact
*CTM (2008) 247 ALR 1
*Mayer v Marchant (1973) 5 SASR 567
*Ostrowski v Palmer (2003) 219 CLR 493
Iannella v French (1968) 119 CLR 84
Proudman v Dayman (1941) 67 CLR 536
16.
Complicity
Synopsis:




To appreciate the need for doctrines of complicity so as to widen the scope of criminal liability.
To comprehend the derivative nature of complicity.
To critically examine the physical and mental elements of complicity including the doctrine of
common purpose.
To understand the underlying rationale and requirements of the defence of withdrawal.
Reading:
*Hayes & Eburn, pp 501-538
NSW Law Reform Commission Report 129 ‘Complicity’ (2011)-Available from NSW Law Reform
Commission website: www.lawlink.nsw.gov.au/lawlink/lrc
(1)
Derivative liability
*Osland (1998) 197 CLR 316; (1999) 159 ALR 170
*Chishimba; Masaka; Mulenga [2010] NSWCCA 228
King (1986) 161 CLR 423
White v Ridley (1978) 140 CLR 342
Mohan [1967] 2 AC 187
Cogan and Leak [1975] 1 QB 217
Richards [1974] QB 776
Howe [1987] 1 AC 417
(2)
Actus reus
Clarkson and Carroll [1971] 3 All ER 344
Russell [1933] VLR 59
(3)
Mens rea
*Giorgianni (1985) 156 CLR 473
*Stokes and Difford (1990) 51 A Crim R 25
Bainbridge [1959] 3 All ER 200
(4)
Joint criminal enterprise and the common purpose doctrine
*McAuliffe (1995) 183 CLR 108; (1995) 130 ALR 26
*Johns (1980) 143 CLR 108; (1980) 28 ALR 155
*Osland (1998) 197 CLR 316; (1999) 159 ALR 170
*Gillard (2004) 219 CLR 1
*Clayton (2006) 231 ALR 500
*Chishimba; Masaka; Mulenga [2010] NSWCCA 228
Taufahema (2007) 234 ALR 1
Jacobs and Mehajer [2004] NSWCCA 462
Tangye (1997) 92 A Crim R 545
Prochilo [2003] NSWCCA 265
20
(5)
Withdrawal
*White v Ridley (1978) 140 CLR 342
*Rook (1993) 2 All ER 955
17.
Attempt
Synopsis:






To appreciate the need for doctrines of attempt to widen the scope of criminal liability.
To critically examine the physical and mental elements of attempt offences.
To comprehend the need for the law to limit the scope of criminal liability for attempt offences.
To evaluate the reasons why there is no defence of withdrawal for attempt offences.
To consider the law on attempting the impossible.
To note the relationship between attempt and complicity.
Reading:
*Hayes & Eburn, pp 466-479
(1) Actus reus
*DPP v Stonehouse [1978] AC 55; [1977] 2 All ER 909
*O’Connor v Killian (1984) 38 SASR 327
(2)
Mens rea
*Alister (1984) 154 CLR 404
*Evans (1987) 48 SASR 35
*W O v DPP (NSW) [2009] NSWCCA 275
Knight (1992) 175 CLR 495; (1992) 63 A Crim R 166
(3) Attempting the impossible
*Mai and Tran (1992) 26 NSWLR 371
*Britten v Alpogut [1987] VR 929
Haughton v Smith [1975] AC 476
18.
Pre-trial criminal procedure
Synopsis:




To understand the main principles underlying the law of arrest, search and seizure, and police
interrogation.
To learn the elements of the law of arrest distinguishing between requirements and lawfulness.
To recognise the reasons behind the codification of search warrant law.
To appreciate the changes in common law and statute law in regard to powers to interrogate
citizens.
Reading:
*Hayes & Eburn, pp 546-594; 664-706
(1)
Arrest
Law Enforcement (Powers and Responsibilities) Act 2002, ss 10, 99-108, 230-231
*Hussien v Chong Fook Kam [1970] AC 942
*Christie v Leachinsky [1947] AC 573
*State of NSW v Delly [2007] NSWCA 303
21
*DPP v AM (2006) NSWSC 348; 161 A Crim R 219
*Williams (1986) 161 CLR 278
*Nasr v State of NSW (2007) 170 A Crim R 78
(2)
Search and seizure
Law Enforcement (Powers and Responsibilities) Act 2002, ss 20-45 (search without warrant); ss 46-80
(search with warrant or authority); ss 81-87 (search, entry and seizure involving domestic violence
offences)
*Lippl v Haines (1989) 18 NSWLR 620
*George v Rockett (1990) 170 CLR 104; (1990) 64 ALJR 384
*State of NSW v Corbett [2007] HCA 32
Clarke v Bailey (1933) SR (NSW) 303
(3)
Police interrogation
Law Enforcement (Powers and Responsibilities) Act 2002, ss 109-132
Criminal Procedure Act 1986, s 281
Evidence Act 1995 (NSW), ss 84, 85, 86, 89, 89A, 90, 137-139
*Williams (1986) 161 CLR 278
*Dungay (2001) NSWCCA 443; 126 A Crim R 216
*McKinney (1991) 171 CLR 468
COMPULSORY ASSIGNMENT
In Criminal Law and Procedure, there is only ONE ASSIGNMENT. This assignment is
compulsory and must be submitted by all students. A pass mark is 50%. Refer to the Guide to
the Presentation and Submission of Assignments for the assignment grading and assessment
criteria. Students who fail to satisfy the compulsory requirement will be notified through the
Results screen on the Webcampus before the examination period of their ineligibility to sit the
examination in this subject. The maximum word limit for the assignment is 2,500 words
inclusive of footnotes but not bibliography. The assignment is worth 20% of the student’s total
marks in this subject.
The rules regarding the presentation of assignments and instructions on how to submit an assignment
are set out in the LEC Guide to the Presentation and Submission of Assignments which can be
accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting
an assignment.
The completed assignment should be lodged through the LEC Webcampus, arriving by 11:59pm on
the following date:
Compulsory Assignment
Wednesday 29 June 2016
(due in the study break)
ASSIGNMENT QUESTIONS
To obtain the Criminal Law and Procedure assignment questions for the Winter Session 2016,
please follow the instructions below:
1.
Register online with the LEC (see page 26 of the Course Information Handbook for detailed
instructions). Once you have registered, you will have access to all the facilities on the LEC
Webcampus.
2.
Then go into the Webcampus, select the Course Materials section and click on the link to the
assignment questions for this subject.
22
SAMPLE EXAMINATION QUESTION
Sam is a sole trader who operates a store that buys and sells antiques, located in Beaumont Street,
Hamilton, NSW. One morning, David enters Sam’s store with an antique clock. David informs Sam
that his elderly mother has recently died from cancer after a long illness and left him the clock in her
will. David asks for an appraisal of how much the clock is worth and tells Sam he is not interested in
selling it at this stage. David states he has “no idea” how much the clock is worth, and, because he
has been very depressed since his mother’s death, he has not done any research in respect of the
value of the clock. David breaks down in tears when he tells Sam how much the clock meant to his
late mother.
Sam examines the clock. He believes the clock is worth at least $5,000.00 and sees the opportunity
for a good deal. He tells David:
“The clock is probably worth $500.00 maximum. I’ve got a buyer who is interested in these types of
clocks, but he is moving overseas soon. He wants to buy a clock immediately and I think he will pay
more for the clock than it is worth. If you sell it to me now, I will pay $700.00”.
David is reluctant to sell, stating that the clock has great sentimental value and he has no intention of
selling it. Sam states:
“I’ll tell you what. I’ll pay you $700.00 cash now. On top of that, I’ll donate $100.00 out of my own
pocket to the Cancer Council charity. You can use the money and go on a holiday. I’m sure that your
late Mum would have wanted you to be happy.” Sam has no intention of donating any money to
charity.
David agrees to sell Sam the clock, stating, “You’re right, it’s probably for the best.” Sam pays David
$700.00.
Later, when closely examining the clock, Sam realises that it is a reproduction clock, and not an
antique. The real value of the clock is $300.00, rather than over $5,000.00. Sam is furious with himself
and sells the clock to another dealer for $300.00.
One week later, David performs research on the internet, which indicates that similar clocks are being
sold for prices in the range of $5,000.00 to $6,000.00. David is angry at the way he was treated by
Sam, and decides to take action.
David purchases a balaclava and a cricket bat. He waits outside Sam’s store until near closing time.
He enters the store through an open door, after putting on the balaclava. David says, “Remember me?
Don’t even think about calling the police. Give me the clock back now, or you will regret it!”
Sam replies, “I haven’t got the clock. It’s been sold. Get out! I’m not scared, you idiot.”
David states, “I’m not leaving after what you did to me. That clock meant everything to my mother. You
told me it was worth no more than $500.00. Well then, give me all the money in the shop now!” David
swings the cricket bat towards Sam, narrowly missing Sam’s head.
Sam removes the money from the cash register and gives it to David. David leaves the store. He
counts the money when he gets home and the total amount of money is $520.00. After thinking about
what has happened, David donates the $520.00 to the Cancer Council, in memory of his late mother.
Discuss the criminal liability, if any, of Sam and David.