Criminal Law and ProcedureRevision Seminar

Felicity Fox

LSS Tutorial Program:

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 Reus

Voluntary & Positive Act Apprehension of Imminent Force

Mens 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 as to kill/to cause GBH

R v Crabb

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 state defenses are relevant to

MR? 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. Is there a duty of care owed by the

accused to the victim?2. If so, what is the standard of care

required?3. 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 self-defence beyond reasonable doubt

Zecevic: Did the accused believe, on reasonable

grounds that it was necessary in self-defence 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 & positive act

• Threats to inflict serious injury (as per s15 – combination of injuries)

• Intention that V will fear threat will be carried out (s20(1))

• Recklessness as to V threat will be carried out

Statutory AssaultOffence Section Actus Reus Mens Rea

Intentionally causing serious injury

S16 • Voluntary and positive act

• Causation/directness

• Serious injury

• Intention

Recklessly causing serious injury

S17 • Voluntary & positive act

• Causation/directness

• Serious injury

• Recklessness

Causing Injury Intentionally/recklessly

S18 • Voluntary & positive Act

• Causation/directness

• Injury

* Intention/recklessness