The
Burden of Proof
Prosecution
bears the onus of proving the D’s guilt “beyond
reasonable doubt” – Woolmington principle
Beyond
reasonable doubt = practical/virtual certainty, not absolute
(Goncalves)
Juries
should not be instructed on meaning of reasonable doubt
Leads
to confusion with feeling sure, there being a possibility or chance
(R v Green)
Unlawful
Killing – Murder & Manslaughter (Code s300)
Code
s291 – killing any person is unlawful unless
authorised, justified or excused by law
Code
s384 – consent does not affect criminal
responsibility
Murder
An
unlawful killing becomes murder when:
There
is an intent to kill or cause grievous bodily harm on
the person killed or some other person – s302(1)(a)
Intent
to hurt the person killed is immaterial – Code s302(2)
GBH
– Code s1
loss of a distinct part or organ of body; serious disfigurement; any
bodily injury of such a nature that, if left unattended, would
endanger or be likely to endanger, or cause, or be likely to cause
permanent injury to health, whether or not treatment is or could
have been available.
Standard
Murder
s302(1)(a)
– Arises where there is an intent to kill or cause grievous
bodily harm on the person killed or someone else
Element
Purpose
intent (direct intent) – to intend a result when the
prospect of achieving it provides the reason for acting (i.e.
shooting at someone in order to kill is intending their death)
Not
the same as motive/desire (Willmot) – can
intend to kill without desiring death
Knowledge
intent (indirect intent) – where it is known that
death or injury will be an inevitable consequence of some action,
even though the action may have a different purpose (Woolin)
Death
must be foreseen as a practical certainty – possibility or
probable risk is insufficient (Willmot)
Judges
Instructing on Intent
Elaboration
or paraphrasing the meaning of intent should be avoided so as to not
confuse the jury and dilute its meaning (Willmot) –
i.e. dilute practical certainty into possibility, chance etc.
Proof
of Intent
Direct
evidence of the accused state of mind
confession
Circumstantial
evidence
inference drawing
A
persons actions provide convincing evidence of intention (Winner)
Subjective
test but objective method of proof:
Objective
element – what would be in the mind of a reasonable person
who did what the accused did? (Winner – car
swerving, no brakes etc)
Subjective
element – is there any reason why the accused’s state
of mind might have been different? i.e. intoxication, extreme anger
(Cutter)
No
presumption of intention (Stapleton)
Constructive
Murder
s302(1)(b)
– Arises where death is caused by means of an act done in the
prosecution of an unlawful purpose
there is no intention to kill or cause GBH
Elements:
Unlawful
killing with no intent to kill or cause GBH
A
dangerous act committed in the prosecution of an unlawful purpose
(Gould v Barnes)
Unlawful
purpose must lie beyond the dangerous act (Hughes) – i.e.
acts that are just themselves dangerous do not constitute
constructive murder
reduced to manslaughter
Conduct
must be ‘likely’ to endanger life (Hind)
Likely
= a substantial and a real and not remote chance regardless of
whether it is less or more than 50% (Boughey) – not a mere
possible chance (Gould)
Manslaughter
s303
– any unlawful killing that is not murder is manslaughter
i.e. unlawful killing without the culpable intention
2
forms of manslaughter:
Voluntary
– where there is an intent to kill but there are
mitigating circumstances – i.e. provocation (s304) and/or
diminished responsibility (s304A)
Involuntary
Manslaughter – unlawful killing without the fault elements
of murder
Manslaughter
by Intentional Violence
Elements
Death
Intentional
violence
applying force without the intent to kill or cause GBH
Death
must have been foreseen or foreseeable as a possible outcome
(Kaporonovski)
Defence
– an accident under s23(1)(b) constitutes an excuse for the
purpose of 291
Death
must be subjectively unforeseen by the offender and objectively
unforeseeable by the reasonable person (Taiters) – i.e.
‘fluky’ accident
Egg
shell skull does not apply to accidental victim as you must choose
your victim (Timbu Kolian)
No
defence – egg shell skull – you take your victim as you
find them, despite idiosyncrasies – s23 (1A) –
death/GBH is not an accident where it was unforeseen/ unforeseeable
because of ‘defect, weakness or abnormality’
Manslaughter
by Criminal Negligence
Elements:
Breach
of Duty
CL
– crimes cannot be committed negligently
Code
Provisions s285-290 are exceptions to CL doctrine
i.e. negl. acts and omissions
s285
– duty to provide necessaries of life
s286
– duty of the carer of a child under 16 to provide
necessaries of life and reasonably protect against danger
s288
– duty of person performing medical procedures to have
reasonable skill and provide reasonable care
s289
– duty of persons in charge of dangerous things to exercise
reasonable care and take reasonable precautions to avoid such
danger
eg car, guns etc
s290
– duty of persons who undertake to do certain acts to act in
circumstances where omitting to do so would endanger life.
Negligence
of a serious kind
gross negligence (Callaghan)
Defence
= accident
see above
Dangerous
Driving Causing Death
s328A(4)
– requires dangerous driving falling well short of conduct of
reasonable person – diff to careless driving (s83 Transport
Operations Act).
Penalty
– 7yrs imprisonment or if intoxicated 10yrs or if very
intoxicated 14yrs
Similar
to criminal negligence but termed DDCD as juries are more willing to
convict someone under this title than manslaughter – no
substantive difference to criminal negl. (Callaghan)
Common
Assault – s335
Elements:
Method
of Assault
Assault
with Application of Force – s245(1)
Strikes,
touches or otherwise applies force
Direct
(eg hit) or indirect (eg throw)
Incorporeal
force – s245(2) – heat, light, electrical force, gas,
odour or anything if applied in such a degree as to cause injury or
personal discomfort.
Assault
is technical term
go to CL which says that assaults are intentional or reckless, i.e.
awareness of risk – (Hall v Fonceca)
Assault
without Application of Force (attempts to apply force or threats)
Assaulter
must have the present ability to effect the purpose – either
actual, apparent (realistic threat) or sometime in the future esp
where assault is continuing (Secretary)
Requires
a bodily act or gesture – mere words alone are not a gesture
Combated
by: s308 written threats to kill; Crimes Act Cth s85ZE(1) –
threats made knowingly or recklessly via a carriage service
Assault
by attempt or threat must be intentional (s245(1); (Hall v Fonceca)
Absence
of Consent
Consent
can be express or implied (Ferguson)
Unavoidable
physical contact of everyday life is not assault (Ferguson)
Contact
sports – implied consent to contact within conventions of the
game
Consent
is invalid if obtained by fraud (ie lies) – the deceit must
fundamentally misrepresent the nature of the interaction
Defence
– s24(1) – mistake of fact – reasonably thought
to have obtained consent (Lergenser v Carrol)
Fault
Element
Assault
by application of force
Assault is technical term so go to CL which says
that assaults are intentional or reckless, i.e. awareness of risk –
(Hall v Fonceca)
Assault
by attempt or threat
‘purpose’ in s245(1) – attempts and threats to
assault presuppose an intention (i.e. cant threaten by accident)
Compound
Offences – Assault Occasioning Bodily Harm – s339
Assault
must cause bodily harm
Fault
– do not have to foresee the risk of causing bodily harm
intent irrelevant – s23(2)
Consent
to bodily harm is irrelevant as a matter of social policy (Brown)
Contra:
Lergesner v Carrol – terms of s245(1) take priority over CL
Accident
is a defence (i.e. fluke) – s23(1)(b)
Harm
based Offences
Overlap
with assault based offences
Consent
not a defence where assault is not an element of the offence charged
CL
– no one can consent to infliction of bodily harm
Prosecutorial
discretion – can charge either assault based offence for
which consent is a defence or harm based offence for which consent
is not a defence
Examples
of Harm Based Offences:
s339
– Assaults Occasioning Bodily Harm – s1 – bodily
harm is injury which interferes with health or comfort; need more
than temporary pain (eg injury) – 2yrs imprisonment
ss317,
320 – GBH – see definition in murder; includes maiming,
serious disease (with intent – life; no intent – 14yrs)
s323
– Wounding – breaking the skin (Jervis) – 7yrs
s320A(2)
– torture – intentional infliction of severe pain or
suffering, including physical, mental, psychological or emotional
pain or suffering (14yrs)
Sexual
Offences
Rape
s349(2)
definition:
Carnal
knowledge without consent – penetration of vulva, vagina or
anus by the penis without consent – refers to with or of
another person (i.e. with = coerce someone into penetrating you; to
= penetrate someone else)
Penetration
of vulva, vagina or anus by other bodily parts or by objects without
consent
Penetration
of mouth by penis without consent
s347
exception – where penetration is for medical, hygienic or law
enforcement purposes
s350
– attempted rape
Sexual
Assault
Indecent
Assault – s352(1)(a)
Uses
common assault s245 definition – (a) assault by
application of force (inc. touching) and (b) assault by attempt or
threat
Indecent
= requires an element of moral turpitude or acting in a lewd and
prurient manner (Bryant); ≠‘unbecoming or offensive
to common propriety’ (Drago)
When
is contact sexual? Where the contact violates sexual integrity of
the victim – no requirement for any particular part of the
body to be involved (Chase)
Procuring
Commission or Witnessing Acts of Gross Indecency –
s352(1)(b)
Procuring
= knowingly entice or recruit for the purposes of engaging in or
witnessing acts of sexual exploitation (procurer need not be the
person engaged in the acts of gross indecency).
Gross
Indecency = indecency which is plain, evident and obvious (eg oral
sex) – Whitehouse
Intent
Rape
– no authority as sexual penetration never arises without
intent
Sexual
Assault
Involves
an element of intention or recklessness (subjective awareness) –
Hall v Fonceca
Procuring
involves an element of knowledge – i.e. knowingly entice or
recruit
Indecency
of the assault is characterised objectively – i.e. what is
reasonable
Purpose/motive
is immaterial (Drago)
But,
purpose/motive can affect characterisation (Drago) –
i.e. community standards can influence what is decent – look
to whether something is inherently indecent
Consent
Rape
requires absence of consent – s349(2)
Indecent
assault
requires absence of consent – s245 (common assault
requirement)
Assault
by procuring
requires absence of consent – s352(1)(b)
Consent
must be ‘free and voluntary’ from a person with the
cognitive capacity to give consent – s348(1)
Induced
Consent s348(2) – consent is not ‘free and
voluntary’ if it is obtained by:
Force,
threat/intimidation, fear of bodily harm, exercise of authority,
misreps as to nature & purpose of the act, impersonations of a
sexual partner
These
are examples only -
other examples of misreps exist
Cuerrier: like commercial fraud, misreps must have elements
of dishonesty and deprivation. But so as to not trivialise sexual
assault, additional requirement for the risk of serious bodily harm
s348(2)
applies only to rape and assault by procuring – s245
regarding indecent assault is silent – unsure whether court
would follow s348(2) and find that there has been no consent
Consent
can be withdrawn – this will vitiate prior consent (but
initial denial of consent may be vitiated by a subsequent change of
mind)
Consent
need not be willing and may be reluctant/unenthusiastic – so
long as there is not a psychological act of rejection or an
inducement by fraud, coercion etc. (Holman)
Physical
submission is not enough by itself
Implied
Consent – consent may be implied (Ferguson)
No
implied consent where persuasion was used influence another decision
(even between regular sexual partners) – Case stated by DPP
Mistaken
Belief in Consent
Mistake
= defence
must be honest + reasonable to be a defence (s24; A-G Ref
No 1 of 1977)
negligent belief in consent is not reasonable
Ignorance
= no defence
Property
Offences
Regulatory
Offences Act:
Shoplifting
and not paying for food/drink/accommodation to the value of $150 or
less
Damage
to the value of $250 or less
Express
mental element of property offences
offence must be committed intentionally or some other advertent
state of mind.
s581
on a charge of an offence of dishonesty (eg stealing; fraud;
receiving), there can be a conviction of a different offence of
dishonesty if that is what the evidence proves (White)
Stealing
(s398)
s398
Stealing = the fraudulent taking or conversion of a thing capable
of being stolen
Things
capable of being stolen = things that are moveable or capable of
being made moveable
Cannot
steal real or intangible property
Can
fraudulently misappropriate power (s408) or dishonestly appropriate
property, including real and intangible property (s408C(1)(a))
Owner
of property need not be known – lost property may be stolen
(s391(5))
Who
may be stolen from
The
owner (s391(2)(a)) or any person who has any special property in it
(s391(2)(b)) including any person having possession or control of it
(s391(7)).
The
offence of stealing protects possession, not ownership
an owner can steal from someone entitled to possession – s396
Modes
of Stealing
Stealing
by Taking (s391)
When
possession of the property is unlawfully gained
everyday meaning of taking
Contra
– ‘Giving’
property cannot be stolen if possession or ownership is given away –
Mujunen – unauthorized withdrawal from ATM is taking
Giving
induced by simple mistake ≠stealing
C/f:
Giving induced by trickery = fraud under ss408C(1)(b) or (c)
see later
Stealing
by Conversion (s391)
Conversion
= dealing in any way which is inconsistent with the rights of the
owner (Ilich)
usually a bailee who is given property for a time period and sells
or disposes of it
Mere
failure/refusal to return is not conversion
requires a +ve act (Angus)
Conversion
of lost property
where finder of lost property immediately sells w/out efforts to
find true owner (s391(5))
mere failure to return ≠ conversion as it requires +ve dealing
(s391(6))
An
owner cannot convert as conversion involves acting inconsistently
with the owners rights (Ilich)
Contra
– ‘Giving’
mistake of a fundamental kind is a defence to intentionally
transferring ownership (Ilich)
fundamental mistake includes mistake as to
The
identity of the transferee
The
identity of the thing delivered
The
quantity of the thing delivered
Intent
must be Fraudulent
Stealing
may be done fraudulently (s391(1)) where there is:
An
intent to permanently deprive - s391(2)(a)-(b); or
cannot
steal negligently or by accident
borrowing
is not stealing as there is no permanent deprivation
An
intent to use the property in such a way that it cannot be returned
in its original condition – s391(2)(e); or
An
intent to use someone else’s money - s391(2)(f) - (irrelevant
that there’s intention to repay); or
An
intent to use someone’s property as security for a loan –
s391(2)(c)
Intent
is usually knowledge intent (Willmot) rather than purpose intern
it is not usually the purpose of the person stealing to deprive the
owner but to merely acquire the property
Lost
property
person converting lost property is not doing so fraudulently where
they do not know the owner and believe on reasonable grounds that
the owner cannot be located – s391(5)
Separate
offence (s408A)
unlawful use/possession of a motor car without consent of the person
in lawful possession
must have intent to deprive either temporarily or permanently
Defences
Mistake
of Fact
Mistaken
belief that something is your property is a valid defence even if it
is an unreasonable mistake
i.e. as intent to deprive is absent
Mistake
of Law
General
rule
ignorance of law is no excuse – s22(1)
Exception
Claim of right exists where a person honestly believes they are
entitled to the property – s22(2)
Belief
need not be reasonable but must be in relation to their legal
rights, not moral rights
Fraud
(s408C)
Dishonest
conduct mainly in relation to property
Fraud
can involve both real and intangible property – s1, s408C(3)
Types
of Fraud:
Dishonest
misappropriation of another’s property to one’s own use
or the use of another person – s408C(1)(a)
Dishonest
obtaining of property or inducing its delivery to any person -
ss408C(1)(b) & (c)
i.e. false pretences and promises with either possession or
ownership transferred
Dishonestly
gaining a benefit or advantage – s408A(1)(d)
Dishonest
non-payment for any property or services supplied –
s408C(1)(h)
Dishonestly
causes a detriment, pecuniary or otherwise – s408C(1)(e)
Dishonesty:
HCA
in Peters
dishonesty is determined by the objective standards of reasonable
and honest persons – the accused’s state of mind does
not influence dishonesty.
However,
the accused’s state of mind is useful in characterizing the
conduct
fraud requires that the accused has appreciated the nature and
potential consequences of the conduct
Qld
CA in White
dishonesty requires a subjective appreciation by the accused that
the conduct was dishonest by the standards of reasonable and honest
people
Robbery
(s409)
Stealing
by means of violence or threat of violence at/ before/after time of
stealing – s409
Offences
Respecting Premises
Entering
into/being in premises of another person with an intent to commit
an indictable offence
Dwelling
(burglary) (s419(1)) or other premises (s421(1))
Offence
of ulterior intent
the commission of the offence lies beyond what has to be proved and
need not have occurred
Breaking
is an aggravating but non-essential factor – it need not
involve damage and can include mere opening (s419(1) for dwellings
and s421(1) for premises) and entry by way of threat – s418(3)
Increased
penalty if offence conducted at night – s419(3)(a)
Committing
offences in premises
Dwelling
(burglary) (s419(4)) or other premises (s421(2))
No
ulterior intent
offence must actually occur
There
need not be an intent to commit the offence when entering
Breaking
is an aggravating factor where offence is committed in premises –
s421(3)
Receiving
Receiving
(s433(1)) = receiving property obtained by means of stealing or
other indictable offence
Requires
proof of fault elements:
Knowledge
that the property was obtained by means of an indictable offence
(subjective fault); or
Reason
to believe that it was obtained by means of indictable offence
eg incredible deals etc:
Encompasses
obsolete doctrine of wilful blindness – ie where a person is
suspicious of something and chooses not to make further inquiries in
order to avoid learning an uncomfortable truth, they are deemed to
have knowledge (Pereira)
Destruction
& Damage
Arson
– s461 ‘wilfully & unlawfully’ setting fire
to buildings, vessels, motor vehicles = max life
Wilful
damage – s469 – offence to wilfully and unlawfully
damage or destroy any property
‘Unlawful’
= means w/out consent of owner & w/out authorisation,
justification or excuse (s458) – immaterial that offender owns
the property – ie overs insurance fraud (s459(1)-(2))
‘Wilful’
includes intentional & deliberate acts likely to result in prop
damage, with a reckless disregard for such risks (Lockwood)
Drugs
Offences
Structure
of Drug Offences:
Commonwealth
Drug Offences
The
Commonwealth acts pursuant to its constitutional power over customs
to legislate with regard to the importation and possession of
imported drugs (narcotics).
Offences
under Customs Act 1901 (Cth)
Importing
“prohibited products” (s233B(1)(b))
Possessing
“prohibited imports” (s233B(1)(c))
Queensland
Drug Offences
Queensland
acts pursuant to its constitutional power over criminal law to enact
laws governing a variety of offences via the Drugs Misuse Act 1986
(Qld)
concerned with dangerous drugs
Dangerous
drug (s4 DMA) = drug specified in Schedule 1 or 2 of DMA
Schedule
1 – heroin, cocaine = 25 yrs imprisonment max for possession
Schedule
2 – cannabis, LSD, amphetamine = 20 yrs imprisonment max for
possession
No
need to charge or prove the identity of particular drugs –
ss57(a)&(b) DMA
Offences
under the Drugs Misuse Act 1986 (Qld)
Trafficking
s5
Supplying
s6
Receiving
or possessing property obtained from trafficking or supplying
s7
Producing
s8
Possessing
s9
Possessing
things for use in connection with a drugs offence
ss10 and 10A
Permitting
a place to be used for a drugs offence
s11
Possession
of Drugs – s9 DMA
Conduct
Elements:
Possession
includes the exercising of control over the drug.
There
are two forms of possession:
Actual
physical custody
Constructive
custody
thing is physically separate from person but they still have control
of it (Buck)
Traces
quantities incapable of discernment by the naked eye are not
possessed (Williams)
Mental
Element
Control
requires actual knowledge of the existence of the substance (Clare)
anything less than knowledge (eg suspicion) is inadequate (Pereira)
see defences on MoF
s57(c)
DMA
Presumption of possession for occupiers
rebutted by showing that the person in possession of the premises
neither knew nor had reason to suspect that drugs were in that place
Supplying
Drugs – s6 DMA
Defined
in s4(a) – ‘give, distribute, sell, administer’
max = 5-25yrs imprisonment
Small
scale not involving the continuation of a business
Can
involve one off transactions
Trafficking
Drugs – s5 DMA
Trafficking
commercial dealing on a regular basis – ie continuation of a
business with a degree of repetition and continuity (Dent)
max = 5-25yrs
Quaile
1st of a planned series of acts can constitute a business
1
sale sufficient
Importing
Drugs – ss233B(1)(b),(d) Customs Act
Importing
= bringing things into Australia from abroad with or without
knowledge (He Kaw Teh)
He
Kaw Teh
mental element is not part of the definition so refer to rules of
Criminal responsibility – generally, however, there is the
requirement for intent or at least recklessness
Defence
of Mistake of Fact
Mistake
as to existence/presence
applies only to possession
Defence
= where there is no knowledge of the drugs existence
reasonableness irrelevant – eg if drunk/ stupid, still a good
defence if you have no knowledge (Clare)
Defence
= successful rebuttal of occupier presumption – s57(c) DMA
(see above)
Mistake
as to the character of the substance
Qld
Offences:
Reverse
Burden
accused must show mistake was honest + reasonable in the
circumstances (s57(d) DMA)
Cth
Offences:
Prosecution
must show either an intention or recklessness (Cth Code s5.6)
Mistake
of the Origin of the substance
Cth
Offence of Possession
Mistake
= defence
burden of proof on accused (Customs Act s233B(1A))
Mistake
or Ignorance of Law
Ignorance
of law is no excuse
i.e. immaterial that you don’t know that drugs are illegal:
Qld
Code s22
Cth
Code ss9.3-9.4
Defences:
Mistake
of Fact (s24)
s24(1)
where accused performs (or omits) an act in reasonable belief that a
certain fact is correct
judged as if those facts existed – (judged objectively)
s24(1)
Mistake must be ‘honest and reasonable’ – ie
unreasonable belief = negligent belief = no mistake (Geraldton
Fishermen’s Co-op)
s24(1)
Mistake must be a ‘positive belief’ – distinguish
ignorance/inadvertence/due diligence from mistake (Coles v
Goldsworthy)
s24(2)
MoF defence may be excluded expressly (eg s229 re mistaking childs
age in sex) or implied (McPherson v Cairn – to express a
defence for one person is to exclude the offence for another)
Evidentiary
burden on acc. to adduce evidence that makes MoF an issue (Geraldton
Fishermen’s)
Self
Defence
Defence
of Persons
s271
self-defence against an unprovoked assault
s272
self-defence against a provoked assault
s273
aiding another in self defence in ‘good faith’
Elements:
Must
be a response to an unlawful assault
s245
Assault includes threats (must have present ability to carry out
threat); pre-emptive strike (Hall v Fonceca); continuing assault
whereby person not in a position at that moment to carry out assault
(Secretary)
s245
Assault requires a bodily act/gesture
mere words ≠assault (Hall v Fonceca)
Self
Defence Against Unprovoked Assault (s271)
s271(1)
– Can use defensive force that is ‘reasonably
necessary’ to repel the assault
Reasonably
necessary = imprecise/ rough measure of necessity of force
Excessive
force ≠no defence (s283)
Reasonableness
of defence – if assault could only be avoided by using
disproportionate force, may not be reasonable
seek other ways of dealing with it
Excludes
defensive force intended/likely to kill or cause GBH
Unexpected
outcome of death/GBH
must show act was not intended and not likely to be fatal (Prow)
s271(2)
– Can use all necessary defensive force including force that
may cause death/GBH if:
There
was a reasonable apprehension of death/GBH + reasonable belief in no
alternatives
Reasonable
apprehension = what the accused thinks is reasonable in their
circumstances; not an observer – contextualising the objective
test (Julian)
misdirection to instruct on reas. person
Interaction
between s271(1) & s271(2)
Gray
independent interpretation
s271(1)
is an objective test of necessity and s271(2) relates to the
reasonableness of the defender’s state of mind
i.e. s271(2) does not depend on reasonable necessity of force
Misdirection
to instruct that use of force must be necessary
subject to change soon (Vidler)
Vidler
cumulative interpretation
s271(2)
requires fulfilment that force must be reasonable necessary per
s271(1)
Current
approach
follow Gray but subject to change soon
Self
Defence Against Provoked Assault (s272)
Apply
definition of provocation (ss269-270) & decide if would’ve
qualified for defence of provocation (Gray v Smith)
s272(1)
can use self defence where same conditions as s271(2) are satisfied
– ie must have reasonable apprehension of death/GBH +
reasonable belief in no alternatives
s271(2)
self defence ≠ defence where provoker inflicted/attempted to
inflict violence which was intended to kill/GBH
Defence
of Property
Defence
of a Dwelling (s267)
s267
Lawful to use any degree of force if there is a belief on reasonable
grounds that:
the
person is attempting to enter or remain in the dwelling with an
intent to commit an indictable offence; and
it
is necessary to use that force
s327(3)
Setting of a man trap at night to protect dwelling is okay
Defence
of Property
Can
defend property using as much force as is reasonably necessary but
not force amounting to GBH/death (if GBH occurs by accident
apply s23)
s274
Moveable property against trespassers
s277
Premises against trespassers – allows reasonable force to
remove disorderly people
ss275,
278
possessor with claim of right can defend even against person
entitled to it
Mistakes
& Self Defence
Can
make mistakes when defending about: (1) whether an attack is taking
place; (2) whether the use of force is necessary/reasonable; (3)
whether the degree of force was necessary
If
mistake was reasonable
s24 = defence
i.e. thought force was ‘reasonably necessary’ (s271(1))
or felt a ‘reasonable apprehension’ of death/GBH
(s271(2))
Margin
of Error Doctrine
person under attack is not expected to measure to any degree of
exactitude the degree of force needed
reasonableness means roughly (Cadwallader)
Mistake
of Fact vs Mistake of Judgment
eg defending against wrong attacker (White v Conway) – mistake
of judgment ≠ mistake of fact
Battered
Woman Syndrome (BWS)
Argued
that woman’s action are not a mistake as there could not have
been a reasonable apprehension of death/GBH (Lavallee)
But
a recognised psychiatric disorder of ‘learned helplessness’
in abusive relationship
no other way of resolving their predicament (Lavallee; Osland)
Contextualise
the test (Lavallee)
what the accused reasonably perceived given her circumstances (not
an outsider)
Individualise
the test (Stingel)
compare the woman with the reasonable battered woman
Provocation
As a
Partial Defence to Murder
reduced to manslaughter – s268(1)
Unlawfully
kills which ordinarily would constitute murder
i.e. intent to kill or cause GBH
In
the heat of passion loss of
self control subjective test
i.e. any relevant evidence eg intoxication
Caused
by sudden provocation
technical term import CL
meaning and objective characterisation: (Johnson)
Provocation
must be sufficient that the ordinary person could have lost self
control (not likely to lose self control)
Contextualise
the objective test by assessing the gravity of provocation
the ordinary person has the relevant characteristics and experiences
of the accused (Stingel)
consider past experiences and characteristics + cumulative
provocation (Stingel)
Individualise
the objective test by assessing the power of self control
the standard is the lowst power of self control within the range
which can be characterised as ordinary (Stingel)
relevant considerations =
age (Stingel), gender? (Stingel), mental state (Smith)
Delayed
responses unnecessary for
response to come of a sudden so long as its ‘before there is
time for the persons passion to cool
Emergency
– s25
Emergency
defence subject to compulsion, provocation and self defence
s25 unavailable to escape
restrictive conditions of these defences
Circumstances
of sudden or extraordinary emergency
Issue
of necessity or no alternative
emergency is more restrictive than emergency
Act
must not be out of proportion to the emergency (Loughnin)
Ordinary
person with ordinary power of self control could not be expected to
act otherwise
Common
situations:
Emergency
as a defence to Homicide
Dudley
v Stephens – survival killings ≠ emergency
Re A
– conjoined twins case – H: ok to kill weaker twin to
give life to stronger twin
Nolan
– conjoined twins case – it was necessary otherwise
death in 6 months but not an emergency at that point.
Medical
Necessity (surgical operations) – s282
s282 not criminally
responsible for performing a surgical operation without consent
provided
Surgical operation involves
incision - abortion by
pill ≠ adequate
It is conducted in good faith with reasonable care and skill, and
no defence for cases involving criminal negligence
It is conducted for the patient’s benefit
Does
this include alleviation of pain and suffering of dying or doomed
persons?
OR
Upon an unborn child for the preservation of the mother’s
life
Must be a serious danger to the mothers life exceeding the normal
dangers associated with childbirth (Davidson)
Preservation of mother’s life may include preservation of
mental health (Bourne)
AND
It is reasonable to perform operation in the circumstances
Operation must be reasonable and proportionate to the circumstances
Lack
of Will (Involuntariness) – s23(1)(a)
Orthodox
View of Willed Conduct:
Conduct
under conscious mental control (Falconer)
An
unwilled act may come after a series of willed actions (Falconer
majority)
Negligence
causing unwilled conduct ≠ unwilled conduct – eg driving
when tired and falling asleep (Jimenez)
Examples
of Unwilled Conduct:
External
force eg deceased impaled
himself on accused’s knife (Ugle)
Reflexive
conduct fired gun after
being hit on the head (Murray)
Automatism
the body acting separately
from the conscious mind – i.e. state of ‘dissociation’
(Falconer)
Automatism
caused by insanity see
insanity defence – ss27; 647
Automatism
caused by intoxication see
intoxication defence – s28
Automatism
caused by other factors eg
physical blow; extraordinary psychological blows; somnambulism –
defence of lack of will – s23(1)(a)
Burdens
of Proof
Presumption
of normal mental capacity (Bratty)
evidentiary burden on
defence to put the matter in issue
Persuasive
burden on prosecution (Falconer)
Insanity
Burdens
of Proof:
Presumption
of sanity (s26)
burden on accused on BoP
If
insanity raised by prosecution
must prove on BoP
Fitness
to Stand Trial versus Criminal Responsibility
Insanity
and Fitness to Stand Trial
Accused
must be mentally fit to understand proceedings
s613
separate trial if unsound
mind. Discharged from indictment & detained ; allows new
indictment if accused recovers sanity & becomes fit to plead
(within 12 months)
s645
where accused becomes
mentally ill after commencement of trial (decided by jury)
If fit to stand trial refer
to insanity and criminal responsibility
Insanity
and Criminal Responsibility (s27)
Defence
= special verdict of acquittal on account of unsoundness of mind
(s647) – results in indeterminate detention as ordered by the
Governor in Council
Elements:
Mental
disease or mental infirmity (Falconer)
Deprivation
of a specified capacity (≠ temporary impaired capacity) –
s27(1)
1st
Arm Incapacity to know what
is being done – i.e. lack of intent due to insanity
2nd
Arm Incapacity to control
conduct – i.e. automatism due to insanity; unaware of what
was being done (Falconer); ≠ irresistible impulse (Falconer)
Orthodox test for insane automatism
Internal
cause = abnormal mind = insanity
External
cause (eg physical blow) on normal mind = lack of will
External
cause/warranted internal reaction (severe psychological blow causing
normal mind to dissociate) = lack of will
External
cause/unwarranted internal reaction (minor psychological blow where
normal mind would not dissociate) = insanity
Evidentiary
burden presumption of
voluntary conduct must be discharged to put automatism in issue
(Stone)
3rd
Arm Incapacity to know that
one ought not do the act – i.e. incapacity to know the
conduct was morally wrong communal standards (Stapleton)
Effect
of Insanity Defence
Insanity
under 1st & 2nd Arm = acquittal and
special verdict – s647
Insanity
under 3rd limb = true defence
Diminished
Responsibility – s304A(1)
Partial
defence only – reduces murder to manslaughter – s304A(1)
Burden
of proof on accused – s304A(2)
Elements
Abnormality
of the Mind
Similar
notion as to mental disease under s27(1)
Substantially
impaired capacity
Not
total incapacity (insanity) but impaired (> 50%)
Capacity
to know what is being done
Redundant?
Murder would become manslaughter despite s304A(1) due to inability
to prove intent to kill or cause GBH
Capacity
to control conduct
Absence
of will or involuntary conduct (Falconer)
Would
be important if ‘irresistible impulse’ interpretation
applied (Whitworth)
Capacity
to know that one ought not to do the act
Intoxication
– s28
Insanity
(not intoxication) governs situations involving:
Unintentional
intoxication amounting to mental disease (brain damage) –
s28(1)
s28(2)
excludes intentional
intoxication regardless of whether mental disease resulted from
intoxication alone or other agents.
Intoxication
and Specific Intent – s28(3)
The
offence must have intention as an element – i.e. intoxication
defence only available where there is an intention to cause a
specific result (O’Regan)
Includes:
murder, intended GBH; stealing; attempted offences;
Doesn’t
include: manslaughter; GBH; wounding; negligently causing harm;
assault; rape
Intoxication,
whether complete or partial and whether intentional or
unintentional, may be regarded for the purpose of ascertaining
whether such an intention existed.
Effect
= partial defence – eg reduces murder to manslaughter
Attempts
– s4(1)
Elements:
Intention
to commit an offence (can be inferred)
mental element
Must
intend to bring about all the elements of the complete offence or
have knowledge that these will follow (Willmot)
Immaterial
that some other state of mind would suffice for the complete offence
(AG’s Ref No 1 of 1977)
Conditional
intent (eg rape) where a
person does not care whether there is consent, there is a
conditional intention to proceed in the event that consent is
withheld (c/f: Evans
recklessness state of mind is ok for circumstantial elements)
Commencement
of the commission of the offence by ‘means adapted to its
fulfilment’ plus an overt act
Preparatory
acts ≠ attempts need an
act in furtherance to preparation and intention
Multifactor
approach to get correct outcome (Deutsch) – problems with
vagueness and restrictive nature
(1) ‘last step’ test (rejected in Williams); (2) ‘on
the job’ test (Campbell; Henderson); (3) ‘proximity’
(close to completion – Deutsch); (4) ‘substantial step’
(substantial progress made – Deutsch); (5) ‘unequivocality’
(unequivocal intention to commit offence – Williams)
Intent
not fulfilled
Reason
for non-fulfilment is immaterial but may influence sentencing
(s4(2)) reduces max penalty
for the attempt by ½ (voluntary desistance) – s538
Factual
impossibility is irrelevant – eg insufficient dose of poison
in attempted murder –s4(3)
No
liability for legal impossibility (English)
Punishment
s536(1)
– 7 years for terms of life imprisonment or >14 yrs
s536(2)
- ½ max penalty for full offence for any other crime
Secondary
Liability
Principal
= accused; Joint principal = 2 people committing an offence equally
(Jackson & Hodgets); Secondary parties = accessories to crime
(no fault elements committed)
Aiding
– ss7(1)(b) & (c)
s7(1)(b)
– aiding by act or omission – covers situations where
aiding was frustrated but the offence was still committed
s7(1)(c)
– aiding another in committing an offence
Mental
Element
Accused
must knowingly aid
need proof of intention (Beck; Jervis)
Indeterminate
aiding:
Precise
details need not be known (Ancuta)
If
one person aids another, knowing that some offence will be committed
– they are liable for commission of any alternatives (Maxwell;
Kirby)
Conduct
Element
Aid =
give support, help, assist (Beck)
Mere
passive presence is not aiding (Coney)
must encourage or assist (includes psychological) or calculated
presence giving positive encouragement (Beck)
Counselling
and Procuring – s7(1)(d)
Counselling
– inducing the offence by word or deed
Procuring
– intentionally causing the offence to occur (tricks; threats;
material inducements)
Mental
Element counselling/procuring
must be done knowingly (Maroney)
Still liable even if offence committed in not the same as offence
counselled as long as what
occurs is a probable consequence – s9
Common
Purpose Rule – s8
Where
2 or more people form common intention to prosecute an unlawful
purpose
All participants are liable for any offence committed by one of them
Consequences must be probable
Probable
consequence = real or substantial possibility
Hind and Harwood
Objective test actual
foresight not required (Stuart)
Different
Charges for Principal & Secondary Party – s10A
Aider/counsellor/procurer
may commit offence by principal or lesser alternative – s10A
Secondary
party liable for any offence that is a probable consequence of the
common purpose – s10A(2)
Procurer
may commit greater offence than principal – s7(4)
eg principal may have diminished responsibility or 2nd
party forces principal to act
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