LSS Tutorial
Program:
Criminal Law
and Procedure
Revision
Seminar
Felicity Fox
General Exam Advice
 Worth
60 marks
 Part A: 40 Marks


1 x 30 mark question
1 x 10 mark question
 Part
B: 20 marks (second reading speech)
 2 minutes = 1 mark
General Exam Advice
 Use
headings
 Refer to cases
 Apply the facts
 Speak to the alternative
 Guide the examiner through your train of
thought
How to answer a problem
question generally
 Issue
 Relevant
Law
 Application to facts
 Conclusion
How to study for exams
 Past

exams
http://exams.lib.monash.edu.au/
 Make
your notes, and then your exam
notes … and then your short exam notes
… and the your exam script …
 Go through problems with friends
 Go through tutorial booklet problems
Basic outline for Homicide
Question
 Introduction
 Actus


Reus
Voluntariness
Causation
 Mens
Rea
 Defences
 Conclusion
Basic outline for Manslaughter
 Introuction
 UDA
MS; or
 Negligent Manslaughter; or
 Manslaughter by Omission
 Defences
Basic outline: Common Law
Assault
 Introduction
 Actus


Voluntary & Positive Act
Apprehension of Imminent Force
 Mens

Reus
Rea
Intention/Recklessness
Basic Outline: Statutory Assault
 Introduction
(what is the section?)
 AR


Will be defined by the particular words of
section
Mens rea

Will be defined by the particular words of
section
 Defences
Murder: Introduction
 Introduction


Murder is a common law offence punished
at s3 of the CA
Sir Edward Coke
Murder: Actus Reus
 Voluntariness


Presumption of
voluntariness (R v
Falconer)
Intoxication? (R v
O’Connor)

Causation


Operating and
Substantial Cause? (R v
Hallet)
Was there an NAI?
Contributory acts by a
third party? (R v
Pagett)
 Medical treatment? (R
v Evans & Gardiner (no
2)
 Flight and self
preservation? (Royall v
R)

Murder: Mens Rea
 Intention
to kill?
 Intention to cause GBH?

DPP v Smith
 Recklessness

R v Crabb
as to kill/to cause GBH
Murder: Mens Rea
 Transferred
malice (Saunders and Archer)
 Constructive murder?




‘in the course of furtherance of a crime the
necessary elements of which include
violence (s3A Crimes Act)
R v Butcher
R v Ryan & Walker
R v Galas
Murder: Mens Rea
 Mental
MR?

state defenses are relevant to
Intoxication? (R v O’Connor)
Manslaughter: Introduction
 Manslaughter
is a common law offence
and is charged under s5 of the Crimes Act
Manslaughter: UDA MS
 Prosecution
need to prove 3 things:
1. The act causing death must be unlawful
(R v Franklin)
2. Causation: act must have caused death
(refer to discussion of causation above)
3. The Act must be objectively dangerous
(Wilson v R)
 Fault element: accused intended to
commit the relevant act (R v Williamson)
Manslaughter: Negligent
Manslaughter
 Test

in Nydam:
“was there such a great falling short of the
standard of care which a reasonable man
would have exercised and which involved
such a high risk that death or serious bodily
harm would follow?”
Manslaughter: Negligent
Manslaughter
1.
2.
3.
Is there a duty of care owed by the
accused to the victim?
If so, what is the standard of care
required?
Has there been a gross departure from
the standard of care that constitutes
criminal negligence?
Manslaughter: Manslaughter
by Omission
1.
Was there a legal duty?




R v Instan
R v stone & Dobson
R v Miller
R v Tak Tak
Defences: Self Defence Non
fatal offences
 In
Victoria, the defence of self-defence is
found at common law
 The accused bears only an evidential
burden; the Crown must disprove selfdefence beyond reasonable doubt
 Zecevic:

Did the accused believe, on reasonable
grounds that it was necessary in selfdefence to do what he or she in fact did?
Defences: Self Defence Non
Fatal Offences

Subjective Test:



In applying the subjective test, all of the
personal circumstances of the accused are
potentially relevant
It is how the DEFENDANT saw the situation
Objective test:

‘It is the belief of the accused, based upon the
circumstances as the accused perceived them
to be, which has no be reasonable, and not
that of the hypothetical reasonable person in
the position of the accused’
Defences: Self Defence
Accused’s mental state
Verdict
Honest belief on reasonable
grounds
Acquittal
Honest belief, not based on
reasonable grounds
Defensive Homicide
No honest belief
Murder
Defences: Self Defence Murder
 Accused
bears evidential burden, Crown
must disprove self defence: BRD
 Subjective Test – s9AC
 Reasonable Grounds – s9AD
Self Defence: Defensive
Homicide

s9AD

A person who, by his or her conduct, kills
another person in circumstances that, but for
section 9AC, would constitute murder, is guilty
of an indictable offence (defensive
homicide) nad liable to level 3 imprisonment if
he or she did not have reasonable grounds
for the belief referred to in that section
Defences: Family Violence




s9AH
Family Violence in relation to a person, means
violence against that person by a family
member (s9AH(4))
Violence includes physical, sexual and/or
psychological abuse (s9AH(4)
Violence may include a single act, or a series
of acts even though some or all of those acts,
when viewed in isolation, may appear to be
minor or trivial (s9AH(5))
Defences: Self Defence
Manslaughter
 s9AE
 Subjective
test
 Objective Tes
Defences: Necessity & Duress
R
v Dudley and Stephens
Defences: Intoxication (SD)
 Relevant
to MR & AR as discussed above
 s9AJ
 Reasonable
belief
 Reasonable grounds for a belief
 Reasonable response

Must be taken as a sober person, unless
that intoxication was not self-induced
Defences: Consent
R
v Brown
 Exceptions:
 Tattooing & branding: R v wilson
 Surgery
 Boxing
 Female genital mutilation
 Male circumcision
Statutory homicide
 Defensive
Homicide: s 9AD
 Culpable driving causing death: s.318
 Dangerous driving causing death s319
 Suicide pact: ss.6A, 6B, 463B (prevention
of suicide)
 Abortion: s.65&66;
 Infanticide: s.6
Common Law Assault
 “An
assault is any act which intentionally –
or possibly recklessly causes another
person to apprehend immediate and
unlawful person violence” (Fagan)
Common Law Assault

AR

Voluntary & positive act
Omissions not sufficient Fagan
 Mere words may be enough R v Ireland, R v
Knight


Apprehension of imminent Force
Must have actual knowledge Pemble v R
 Future violence Zanker v Vartzokas
 Condition threat will be an assault unless D has
right to impose that condition Rosza v Samuels
 Apprehension Barton v Armstrong
 Fear Ryan v Kuhl

Statutory Assault
Offence
Section
Actus Reus
Mens Rea
Threats to kill
S20
• Voluntary &
positive Act
• Threats o kill
• Intention that V
will fear threat
will be carried
out (20(a))
• Recklessness as
to V threat will
be carried out
Threats to inflict
serious injury
S21
• Voluntary &
• Intention that V
positive act
will fear threat
• Threats to inflict
will be carried
serious injury
out (s20(1))
(as per s15 –
• Recklessness as
combination of
to V threat will
injuries)
be carried out
Offence
Section
Actus Reus
S16
• Voluntary and
Statutory
Assault
positive act
Intentionally
causing serious
injury
Mens Rea
• Intention
• Causation/dir
ectness
• Serious injury
Recklessly
causing serious
injury
S17
• Voluntary &
positive act
• Causation/dir
ectness
• Serious injury
• Recklessness
Causing Injury
Intentionally/rec
klessly
S18
• Voluntary &
positive Act
• Causation/dir
ectness
• Injury
*
Intention/reckles
sness