Notes on the Exam
Part A
Question 1
Adam
The answer should discuss OAP arising out of incident with Victor at the Hotel.
Attempted Murder should be mentioned but fairly quickly dismissed (however, good answers may
well make a strong case for AM on the basis of Adam’s background: such answers should be heavily
rewarded if they then discuss reduction of Attempted Murder to Attempted Manslaughter on the basis
of provocation and the application of s270AB). Aggravated (by use of knife)
Div 7A, causing serious harm (it is serious harm not just harm) with intent (this is not a case of
recklessness: there is no ulterior purpose on Adam’s part – he means to plunge in the knife) is the
more likely charge against Adam. The physical elements and causation are clear. The issue is the fault
element of intent and, particularly whether the doctrine of intoxication applies. Answers should
concentrate on whether Adam is intoxicated or merely drunk (this will be by reference to the amount
he’s drunk as well as his conduct prior to and following the attack on Victor). If drunk, intoxication
has no work to do (the analysis will simply be the effect of alcohol on intent in the usual way); if
intoxicated as understood by O’Connor and s 268(6). Section 268(3) excludes Div 7A offences from
the operation of s 268(2), such that O’Connor applies for a complete acquittal; however, on such an
analysis, Adam will be convicted on the alternative charge against s 268(5).
Answers should not raise provocation as a defence to a Div 7A charge. Self-defence is inappropriate
on the facts.
Clyde
The charge is theft of the motor vehicle. The issue is dishonesty (there may be some pertinent
discussion about the fault element with which Clyde acted in taking the car, re permanent deprivation
or substantial impairment). Clyde’s “rough background” may have warped his sense of what ordinary
people consider dishonest, however, there is nothing specific to suggest that and the mere fact that he
is in HH does not prevent him from knowing that ordinary people would consider taking a car that
does not belong to you to be dishonest. Clyde’s relief, if any, will resonate in a defence. Self defence
does not apply on the authority of Police v M as there was no force used in taking the car. Necessity is
the defence they should discuss. It may have legs given there is no suggestion that Clyde drove away
in a dangerous manner (contra, Bayley v Police), however, the objective test for necessity is very high
(especially following Bayley) and Clyde could have always returned to the police station for refuge –
good answers will, on this point, acknowledge that Clyde knew police to be in the immediate area
from what is stated in the problem.
Papers that discussed Clyde’s accessorial liability to the stabbing of Victor were rewarded if that point
was addressed quickly; generally dismissed and theft the focus.
Mario
Well structured answers will proceed with the joint enterprise (with Luigi) charge of aggravated
assault before moving to the murder charge.
The interview with Mario and Luigi makes it clear that they formed a JE to assault (aggravated by
weapons) Clyde and Brett. The charge involving Brett will be murder so the JE charge will likely be
restricted to Clyde. The question does not reveal the injury (if any) sustained by Clyde: students
should note that in explaining that the injuries will determine whether the charge will be against ss 23,
24 or 20. Given Clyde seems to have fled on foot and we are not told he is suffering ongoing injury,
the charge will likely be s24 or 23 (good papers will note the intent may have been to cause serious
harm however actual serious harm needs to be caused to make good a s 23 charge). Whilst Mario did
not directly beat Clyde, Luigi’s actions are imputed to him by virtue of the JE.
Self defence Mario’s only hope of acquittal on the assault charge. The interview suggests s15(1)(a)
may well be satisfied given the history. Beating unarmed men with bats may be excessive (but,
equally, it may not be, there is no need for equivalency of force/weapons under s 15B), if it is
excessive, s 15C is the obvious provision to remove the requirement for proportionality. The
availability of s 15C will consider the drug production and drug use by Mario and Luigi. Good
answers will note that there production of heroin (assuming they are – they may deny this) does not
seem to have invited the intrusion, nor do they seem to have been suffering the effects of heroin use at
the time, hence s 15C is likely open to them. There is a reasonable case to acquit on the assault charge
on the basis of self defence.
Mario murdered Brett. He may not have intended to when he first went downstairs (he may have,
and is imply lying to police now) but when he saw it was Brett he killed him and intended to do so.
Self defence is again the appropriate defence. It will fail at the first hurdle of s 15(1)(a) – Mario does
not consider it reasonable or necessary to kill: he does so out of anger and revenge. Provocation is the
more likely defence in response to the murder charge. The fundamental questions are whether there
was indeed a loss of self control (it seems well arguable that Mario knew what he was doing in killing
Brett) and whether the ordinary person would respond in this way: good discussion of whether such
killings should somewhat be condoned by the law (via reduction from murder to manslaughter) will
separate papers. Defences of automatism and mental impairment are folly on these facts.
Luigi
Luigi does not aid and abet Mario – it is a JE as they formed an agreement to hurtle down the stairs
and beat Clyde and Brett. The analysis of the JE assault charge will then be much the same for Luigi
as Mario and students that simply say this should be rewarded for recognising the congruence of
issues.
The salient issue for analysis regarding Luigi’s culpability is his guilt for murder via common
purpose. Clearly, Luigi and Mario had a JE (agreement) to assault, but did Luigi contemplate the
possibility that Mario would use lethal force with intent to kill in the course of that assault, as is
required for his guilt in murder. He knows about the gun: that is critical. The two are about to launch
an attack where Luigi suspects Mario might have a gun, however, it was the middle of the night, there
is nothing to suggest Luigi saw or believed Mario had a gun at that time – they were simply to use
bats. Luigi also knows Mario blames the men (at least through their HH connection) for injury to his
son, again, that suggests a contemplation that Mario may be very violent in the course of their attack.
Analogy with Gibbins will be a mark of good papers. Good arguments may make a strong case for
common purpose guilt in murder, however, it is more likely that Luigi, at most, may have
contemplated that death would arise from Mario’s actions divorced of an intent to kill, such that Luigi
will be guilty of manslaughter via common purpose – the strength of the analysis in the paper will win
the day on this.
Question 2
Charges against Donald.
The different ways he might be responsible for the rape of Vera
By encouraging Daniel to have intercourse with his wife and telling him that she will want it
(though he knows this is not true), Donald is procuring the commission of a rape. At the
point that he is issuing encouragement to Daniel, there is no joint enterprise, because he is
giving Daniel false information. There is no joint plan to rape Vera.
Responsibility is complicated by the fact that Donald’s words to Daniel might be sufficient
to negate Daniel’s mental element which would mean that Daniel goes on to have intercourse
without consent but does not realise this (if he never considers the possibility of non-consent).
This would mean that Donald is procuring a rape by means of an innocent agent.
Donald can also be charged with rape directly under s48(2) if he is compelling a person (that
is his wife) to engage in sexual intercourse with someone who is other than the offender (that
is Daniel) and there is no bar to conviction for a husband.
There might also be a rape by joint enterprise which forms later in the action: see discussion
of Daniel’s liability below.
Assault/ Causing Harm
The threats issued directly to Vera in the past should be sufficient for assault. Once could
also consider a charge a charge of causing mental harm.
Donald and Murder/ Manslaughter – see below
Donald and the Statutory Offence
This was a standard He Kaw Teh analysis which called for a consideration of the first
presumption, that fault is to be read into a statute which fails to mention it, and then a
discussion of the different bases for its rebuttal. Having considered whether this was a crime
of fault or strict liability, it was then necessary to determine, on the facts, whether Donald had
committed the offence. Many students omitted to discuss this offence and if they did, failed
to consider whether Donald satisfied the elements.
Charges Against Daniel
Rape
For the purposes of a rape charge against Daniel, the physical element is satisfied: we know
that Vera is not consenting to sex - rather she is succumbing because of the threats issued by
Donald in the past and he continues to be present at ‘the rape’ (and this mode of vitiating
consent (by threat etc) is covered in the consent provision).
The problem for the prosecution may be in satisfying the mental element. Although Daniel
will argue, as did the mates in DPP v Morgan (unsuccessfully), that he had been led to
believe that Vera is happy to have sex with her husband’s friends, this is hardly ‘free and
voluntary agreement’ and he should realise that he does not have this. Plus once he has
realised the possibility of non-consent, he needs to see whether he has it. Otherwise it should
satisfy the mental element of reckless rape. Further still the provision now makes it clear that
failure to consider consent at all is equivalent to recklessness and this might be made out on
the facts.
If Daniel comes to realise that he does not have consent for one of these reasons (and so the
elements of rape are satisfied), then given that Donald is present and encouraging, there is
arguably now a joint enterprise between the two of them – if it can be said that they
immediately come to an agreement to rape Vera. There does not have to be a long-standing
agreement. (When they first discuss intercourse with Vera, there is no joint plan to rape her.
But the agreement can form quickly when Daniel does come to realise and Donald eggs him
on by his presence.)
If we say that there is insufficient communication here for a joint enterprise, at this point
Donald is certainly an accessory to rape, encouraging Daniel by his presence.
If Daniel never realises that Vera is not consenting and so fails on the mental element, and so
remains an innocent agent, we still have Donald procuring a rape by means of innocent
agent and we still have rape by compulsion.
A fair effort at the above, which was internally consistent and coherent, was rewarded. You
were not necessarily expected to go into all the permutations of responsibility.
Prosecution of Donald for Murder/ Manslaughter
It was important to identify and distinguish between the different possible causes of death,
applying the Hallett test, and what Donald was thinking at the relevant times, as his mental
element is critical to the determination of the appropriate charge – whether it is to be murder
or manslaughter. Many students considered the initial cause (the kicking of the heater) but
not the other (the failure to rescue now he was in peril) and did not necessarily reflect on his
particular thoughts at each time.
It was not difficult to establish that Donald caused the death of Voltan. You are told that
Voltan died from burns and smoke inhalation, both of which were caused by Donald. See
discussion below of why the acts of the fire brigade are unlikely to break the causal chain.
Causation
By positive act – and the associated mental element
Donald deliberately kicks over the heater thinking ‘it won’t hurt him to get a little heat under
him’. Here is both conduct (causation for homicide), and mental element for any homicide
charges – the question is whether it is sufficient for murder or only for a variety of
manslaughter. It is unlikely that he has an appreciation of a substantial risk of causing gbh
and so the mental element for murder is probably missing.
By omission – and the associated mental element
You are told that there is dark smoke coming from the bedroom and that the house is on fire.
Donald has placed Voltan in this position of peril and now has a duty to rescue.
When he realises this, Donald yells, ‘that lazy bastard is not worth saving anyway; he is
better off dead’, he dashes out quickly with his mate. In short he fails in his duty. He also
issues words which are consistent with a mental element of murder. Therefore arguably
murder by omission.
Novus actus interveniens
Applying the Hallett test, Donald has caused the death of Voltan – substantial and continuing
cause. He cannot count on timely effective assistance. So no novus with the incompetent and
late firebrigade. Their actions do not overwhelm his actions and inactions. It was
appropriate to refer to the poor medical assistance cases.
In sum: You needed to distinguish the two ways he caused death – by causing the fire which
caused the burns and smoke inhalation and then his failure to act to save him. You then
needed to consider his mental element at the two different times. Can it be said to be reckless
murder at either time? Probably not at the time of kicking over the heater; probably when he
fails to act and says ‘the lazy bastard…’. He only decided to help him a little later and for
unacceptable reasons.
You should then have considered unlawful and dangerous act manslaughter and negligent
manslaughter for both act and omission. Negligent manslaughter seemed a good fit.
Part B Essay Questions
The best essays responded to the question, did what was asked, showed a knowledge of law
and principle, and argued logically and clearly, a number in an interesting and original
manner.
The worst essays talked very generally about the law in the given area and did not respond to
the question or proposition.
Part C Procedure Question
Overall this question was done well. Students demonstrated a good knowledge of prosecutorial duties.
The section on issues arising for the prosecutor was generally answered, and better than the section on
issues arising for the defence to raise with the court.
Issues defence would raise with the court
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The facts do not indicate whether Porter had a GSW under s 67. If he didn’t have a
warrant he didn’t have the power to search and seize and defence would seek to have
the evidence of the cocaine excluded by exercise of the public policy discretion
Assuming Porter had a valid GSW, he had to have a RCS for the power of the warrant
to be enlivened. A tip to CrimeStoppers about hearing gunshots will constitute RCS.
Finding drugs while searching for firearm offences constitutes an
adventitious/opportunistic find: Applebee and the drugs will be admissible as evidence
assuming the search was lawful (ie had a warrant and RCS)
However, if Porter made the call to CrimeStoppers himself, there is no RCS as Abel’s
prior offences and conduct in the earlier interview would definitely not constitute
RCS.
Porter calling CrimeStoppers would also constitute serious misconduct on his part and
would be grounds for the defence seek to have the evidence of the cocaine excluded
by exercise of the public policy discretion
The answer needed a consideration of the Bunning v Cross criteria (seriousness of
offence, ease of avoidance, deliberate/accidental, nature of impropriety). No warrant,
no RCS or a false tipoff by Porter would all likely see the evidence of the cocaine
excluded. If the cocaine was excluded the charges would surely be dropped.
Many students considered the lack of caution and lack of recording under 74D, and found these to
enliven the PPD. These were not relevant and did not need discussing. Abel didn’t say anything to the
police so there was no confession/admission to consider excluding. There was no evidence of an
interview with him taking place. Sally was not a suspect at that point nor would it have been
reasonable to suspect her and so cautions and recording did not apply to her.
Issues for the prosecutor
Criminal prosecution is accusatorial rather than strictly adversarial system, and so the prosecutor has a
duty to act fairly. (And it was Ms not Mr Greig.)
Prosecutor has a duty to disclose relevant material to defence: PP Guideline No 9, SPA s 104, ASCR
No 29. Grieg needed to tell defence that Suzie took the drugs to Abel’s house.
Prosecutor must disclose evidence that may materially affect the credibility of a P witness: R v K
although not scurrilous rumours: Ulman-Naruniec. The letter from S’s friend’s mother is certainly in
the realm of rumour but given its compatibility with S’s own admission it might need to be disclosed.
The suspicion about Porter making the call to CrimeStoppers is very tricky. It was perfectly fine for
students to say it should be disclosed but in reality a prosecutor should raise the matter with a senior
person and have it raised with police integrity. If the suspicion proved to be wrong it would constitute
a defamation of the officer and should probably be treated as quite a different matter from simply
evidence that should be disclosed.
Strategy
Students generally had a bent toward prosecution and were mostly keen to see Abel prosecuted and
the evidence admitted. In this case it seems that Abel was not guilty of the supply charge and it should
be withdrawn. That would resolve a lot of the disclosure issues immediately.
Most students were keen to accept the plea to the possession charge but that should probably be
withdrawn too, considering the discussion on possession in HKT.
Abel’s liability really depends on what happened between the time that S brought the cocaine and the
police arrived. If she dropped it on his coffee table and he said ‘get that stuff out of here’ he could
hardly be considered to possess it at law. If he said ‘thanks, just what I need’ then yes he probably is
guilty of possession.
Remembering that S is in awe of Abel, the chances of her testifying against him are in doubt. If she
takes all the blame the chances of a conviction against him are not strong.
In any event the plea to the possession should certainly not be accepted until full disclosure was made
by the prosecution.
Good answers noted that charges against S should be considered but that was not essential.