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Criminal Law
Cram Notes
2010
Edition 1
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TOPICS
1.
INTRODUCTION
How to use Cram Notes
Abbreviations
2.
BACKGROUND – DO ALL THE COMPONENTS OF THE CRIMINAL OFFENCE
EXIST?
A.
B.
3.
Actus reus
i.
Is there an Act?
ii.
Is there an Omission?
iii.
Was there Voluntariness?
iv.
Consider the Circumstances & Consequences
v.
Is there Causation?
Mens rea
i.
As to Acts and Consequences?
ii.
As to Circumstances?
iii.
Was there Wilful Blindness?
iv.
Was there Inadvertent Recklessness?
v.
Presumption of mens rea in statute
C.
Is there coincidence of actus reus and mens rea?
D.
What is the burden of proof? Is it made out?
E.
Consider strict, absolute & corporate liability
WHAT CRIMINAL OFFENCE DID THE ACCUSED ALLEGEDLY COMMIT?
A.
Homicide
i.
ii.
Murder
1.
Intent to kill or inflict grievous bodily harm
2.
Reckless indifference
3.
Constructive murder
Manslaughter
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B.
1.
By unlawful act
2.
By Criminal Negligence
iii.
Homicide by Omission
iv.
Causation
Assault
i.
C.
Elements of assault
1.
Actual Bodily Harm
2.
Grievous Bodily Harm
3.
Wounding
4.
Consent to Harm
ii.
Apprehension of Violence
iii.
Application of Force
iv.
Aggravated Assault
Sexual Assault
i.
Aggravated Sexual Assault
D.
Indecent Assault
E.
Act of Indecency
F.
Dishonest Acquisition
G.
i.
Larceny
ii.
Robbery
iii.
Obtaining money etc by deception
iv.
False pretence
Drugs
i.
ii.
H.
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Summary offences
1.
Possession
2.
Awareness
3.
Minute quantities
Indictable offences
1.
Prohibited drugs and plants
2.
Supply
Public Order offences
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4.
i.
Offensive behaviour and language
ii.
Public places
iii.
Consorting
iv.
Public Drunkenness
v.
Loitering
vi.
Riot, affray
vii.
Public assembly
WAS THE ACCUSED PART OF A CRIMINAL GROUP?
A.
B.
Did the accused assist before the crime was committed?
i.
Attempt
ii.
Conspiracy
Did the accused assist after the crime was committed?
i.
Complicity
ii.
Joint Criminal Enterprise
iii.
1.
Principals in the first degree
2.
Doctrine of Common Purpose
Accessorial Liability
1.
C.
5.
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Principals in the second degree
Incitement of the criminal act
WHAT DEFENCES ARE AVAILABLE TO THE ACCUSED?
A.
Mental Illness (Insanity / Insane Automatism)
B.
Automatism (Sane Automatism)
C.
Provocation
i.
Provoking circumstance
ii.
Ordinary person test
iii.
Loss of self control
D.
Substantial Impairment
E.
Infanticide
F.
Intoxication
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6.
G.
Self-defence
H.
Necessity
I.
Duress
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DEFECTS IN THE CRIMINAL PROCESS
A.
B.
Was there a Miscarriage of Justice?
i.
Ziggy Pohl (1973)
ii.
Chamberlain (1984)
Was there a Fair Trial? Was the accused’s conviction
Constitutional?
i.
ii.
7.
Trial by Jury
1.
Kingswell (1985)
2.
Cheatle (1993)
Preventative detention
1.
Kable v DPP (NSW) (1996)
2.
Dietrich (1992)
THEMES TO BE EXPLORED IN ESSAY QUESTIONS
A.
Discretion in criminal processes and the judicial system
B.
The two tiered justice system
C.
D.
i.
Summary proceedings
ii.
Indictable offences
Pre-trial process
i.
The role of the police
ii.
The role of the prosecutor
iii.
Guilty pleas and plea bargaining
iv.
Charge bargaining
v.
Sentence indication bargaining
Technocratic & Therapeutic Justice
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i.
Crime control model
ii.
Due process model
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A snippet from our Criminal Law Cram Notes –
Murder (Intent to kill or inflict Grievous Bodily Harm) Crimes Act s 18(1)(a)
Penalty - life imprisonment (s 19A)
Burden - Prosecution must prove beyond reasonable doubt (Woolmington)
Actus Reus
- B’s voluntary act or omission lead to A’s death (Ryan)
Mens Rea
- B either intended to cause death or inflict grievous bodily harm onto the deceased.
Murder (Reckless indifference to Human Life) Crimes Act s18(1)(a)
Penalty - life imprisonment (s 19A)
Burden - Prosecution must prove beyond reasonable doubt (Woolmington) that B’s voluntary
act or omission lead to A’s death (Ryan) and that B foresaw the probability of death
(Royall).
Actus Reus
−
B’s voluntary act caused the death of the deceased (Ryan)
o
Voluntariness is presumed and if any defences are raised, the onus of proof is
on the defence.
−
Does not matter if the precise method of death does not eventuate (Royall).
−
Check causation (see below)
Mens Rea
−
−
A person who commits an act knowing or foreseeing that it is probable (as distinct
from possible - Royall) that death will result from that act and proceeds nonetheless
is guilty of murder where death results. (Crabbe)
Subjective test (Pemble).
−
Probability means the event is going to happen, or will happen, as a matter of
probability but not certainty - very likely to happen (Annakin as confirmed in Royall).
−
The risk must be ‘substantial’, a ‘real and not remote’ chance regardless of whether
−
Actual knowledge or foresight that actions would probably cause death
it is less or more than 50% (Fuare) Not mere possibility.
o
imputed knowledge is not enough; but possible scope for wilful blindness
o
Wilful blindness - the law imputes that you were trying to block out the
probability. (Royall)
Deliberate abstention from inquiry or intentionally shutting your eyes
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Murder by reckless indifference to human life is an offence of specific intent and thus,
evidence regarding intoxication will be taken into account.
−
Reckless indifference to GBH in NSW manslaughter (Solomon)
Murder (Constructive Murder)
Note: Check the base offence and the Actus Reus & Mens Rea requirements and whether it is
punishable by 25 years of imprisonment.
Actus Reus
The prosecution must prove beyond reasonable doubt (Woolmington) that B’s
-
voluntary act caused the death of the deceased, during or immediately after the
commission of a felony punishable by imprisonment of 25 years under the
Crimes Act 1900 (Ryan).
-
The felonious conduct must have involved violence or danger to some person
-
The act must be voluntary, doesn’t matter if accidental or unintentional (Ryan)
-
No need for a causal link between the felony relied upon and the death itself
(Ryan)
(Mraz), or proof of malice beyond the death itself (Munro)
Mens Rea
-
Intent to commit the base offence and not necessarily the murder (Munro).
-
Mens Rea requirement is only relevant to the base offence, must check the relevant
statute. E.g.:
o
Section 33 – wounding with intent to cause grievous bodily harm.
o
Section 47 – using an explosive device or corrosive fluid with intent to cause
GBH
o
Section 110 – Breaking & Entering a dwelling-house and assaulting with
intent to murder.
o
Section 198 – maliciously damaging property with intent to endanger life.
o
Section 98 - Robbery with Arms and wounding (Ryan – actual wounding),
‘immediately after’? (Elliot and Hitchins). If the show of force was after the
offence of armed robbery, then it could not satisfy the requirements for
robbery with arms and wounding under this section. (Foster).
Defence (Provocation)
Burden – In order to raise the defence of provocation, the defence has at first instance an
evidentiary burden, to satisfy the judge at trial that the issue is of relevance (R v Johnson).
Once this has been completed, the prosecution then has to negative the defence beyond
reasonable doubt (s 23 (4)).
Consequence – A successful raising of the provocation defence will result in B being convicted
of manslaughter instead of murder (s 23 (1)).
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Elements – There are three main elements of the defence which are at contention here:
1.
The Provoking circumstance – s 23 (2)(a) the act or omission is the result of a loss
of self-control on the part of the accused that was induced by any conduct of the
deceased (including grossly insulting words or gestures) towards or affecting the
accused:
a.
there must be a ‘provocative incident’ between the accused and the
deceased, so that provocation will not arise from what the accused is told
about the deceased by others. (R v Quartly and R v Fisher)
i. Sufficient to show that there was provocation on the part of the
deceased and that it induced the accused to lose his or her selfcontrol. (Davis) Affecting has been interpreted by the High Court to
include instances where the incident or words are not directed at the
accused. Davis.
b. Husband and wife situation - May take into account all the circumstances
including the background and history leading up to the event that causes D
to lose self-control. The series of events that constitute the provocation need
not, individually, amount to provocation; what counts is the cumulative
effect of these incidents. Chhay v R, R v R.
c.
Words alone –
i. Words alone can constitute provocation in certain circumstances,
does not have to be grossly insulting, “an appropriate violent
character” will qualify (Lees)
ii. Words of a ‘violent character’ can be classified as provocative in
nature. (Dutton)
iii. Words of threatened violence, blackmail, extortion are equally
capable of provoking strong feelings. (Lees)
iv. But need to be sufficiently violent, offence, or aggravating – not
mere words of abuse or insult. (Lees)
v. The situation and the conduct must be taken within the sphere of
context when assessing whether the ‘conduct’ was provocative in
nature. R v R, Stingel.
d. Self-induced provocation – someone who is engaging in provocative conduct,
and kills as a result of this cannot rely on the defence of provocation. The
retaliatory conduct must be of an extreme nature for it to constitute
provocation. In these cases, it is for the jury to decide what the threshold for
this is. (Edwards).
e.
The provocative conduct does not have to be unlawful (R v R).
f.
Self-control? – strong need to distinguish the loss of self-control pursuant to
provocative acts from an act of deliberate vengeance for past ill-treatment.
g. What the law is essentially concerned with is whether the killing was done
whilst the accused was in an emotional state which the jury are prepared
to accept as a loss of self-control. R v R. Context is important in
determining whether innocuous words against a background could be
considered provocative.
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The Ordinary person test – s 23 (2)(b) that conduct of the deceased was such as
could have induced an ordinary person in the position of the accused to have so
far lost self-control as to have formed an intent to kill, or to inflict grievous
bodily harm upon, the deceased.
a. Subjective Test- an ordinary person in the position of the accused’ means
that the particular attributes of the accused will be relevant in a consideration
of the gravity and effect of the provocative conduct upon the accused, but
they must be ignored when determining whether the response of the accused
to that conduct of an ordinary person (but age of the accused, to reveal
immaturity, should be attributed to the ordinary person). Stingel (unaffected
by extraordinary attributes or characteristics)
i. Limb 1 (cool temperament?) - Whether the gravity of provocation
was such as to cause the ordinary person to lose self-control (all
characteristics of B may be explored).
ii. Limb 2 (gravity and reaction to provocation) - Whether the
ordinary person would have reacted as D did, to the provocation.
(truly objective apart from age & contemporary conditions and
attitudes). Provocation must have been such that an ordinary person,
faced with some degree of provocation, could (Anderson) have so far
lost self-control to have formed an intention to kill/inflict GBH.
1.
Ethnicity (Masciantonio)
2.
Aboriginality (Mungatopi)
3.
Intoxication
(Stingel)
–
standard
of
the
reaction
to
provocation of an ordinary man in the circumstances of the
appellant, it is the ordinary man unaffected by intoxicating
liquor who is contemplated (Croft).
3.
Loss of Self-control (subjective test – whether D lost control as a result of the
provocative conduct) – the accused must in fact have lost control as a result of the
provocation. The response does not need to be sudden. Chhay, Women are often
given more time. What the law is concerned with is whether the killing was done
whilst the accused was in an emotional state which the jury. Homosexual advance has
not been deemed to be a reasonable reason for raising provocation (Green).
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