criminal law notes cases

8/12/2019 Criminal Law Notes Cases

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ASSAULT

S61 simple/common assault S59 assault occasioning ABH S35 malicious wounding or inflicting GBH S33 - ntentional wounding or GBH

Assault: non fatal offence !otion of assault foundational to offences against t"e person#aw de$eloped in pat"wor% fas"ion needs reform and possi&le codification

Appears as t"oug" man' cases of $iolence are condoned(oot&all pla'ers ) not lia&le for GBH if %noc%s anot"er pla'er and causes in*ur' notassault+omestic $iolence used to &e lawful wife used to &e propert'

NON SEXUAL ASSAULT

TYPES OF ASSAULT ,ertain amount of "uman contact is allowed e g sports &o.ing and foot&all Historicall' t"ere are t'pes of assault0

Battery: p"'sical assault/ unlawful contactPsychic: $ictim fears assault i e no real unlawful contact &ut fear created !ow t"ese com&ined under s61 in Assault

'pes of assaults01 ,ommon Assault

Aggra$ated AssaultAssault wit" intent to %ill 2s 9(urt"er specific intent 2ss 4- 9 33-33B 34-3 57ictims wit" special status0 police 2s5 disa&led mentall' disa&led etc 2ss8 -88 56-5

articular in*uries0Actual &odil' "arm0 :more t"an merel' transient or trifling;- Donovan (1934)

Grie$ous Bodil' Harm0 alicious0 an' woundings can &e grie$ous

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ro&lematic &ecause it can &e minimal &ut "as t"e potential to &e life t"reateningerm alicious means t"e accused reali ed t"e possi&ilit' t"at in*ur' mig"t occur &ut wenta"ead and too% t"e ris% an'wa' 2Enew t"e ris% &ut too% it an'wa'

Cec%lessness "as no rele$ance outside murder t"us its not rele$ant to assault ntentional application of force need not &e "ostile

Bo!"#eyasmanian +octor

+uring se. placed "and on nec% and strangled $ictim allegedl' to "eig"ten se.ualorgasmGot out of control and t"e and 7 died &/c of strangulation+ealt wit" under asmanian ,riminal ,odeS1541B of t"e code states0

Guilt' of murder if %new li%el' to cause deat" ntention to cause GBH #i%el'- trail court *udge said t"is means pro&a&le

Basis of appeal was + said t"at *udge got t"e definition wrongH, up"eld t"e definition of C BAB#DAspect of "ostilit' relates to intention to cause BH+ argued t"at can=t satisf' intention &/c t"ere was consent &' t"e $ictim and no "ostilit'

&etween + and 7


3/49

+ argued "ostilit' is an integral part of assaultH, ma*orit' said t"at "ostilit' is not an essential ingredient

Brennan I dissentedpinion 2 +

ossi&le to sa' t"at in all cases of assault w"ere p"'sical contact t"ere is somenotion of "ostilit' &ecause of t"e application of p"'sical force

Psyc#$c ssa!lt intention to create or recognition of t"e possi&ilit' 2rec%lessness of t"e creation of t"e

appre"ension of imminent unlawful contact + must S?BID, 7D recogni e t"e ris%iness of +=s &e"a$iour

+ s"ould not &e *udged &' an o&*ecti$e standard of w"at a reasona&le person would "a$eforeseen 2i e ! o&*ecti$e

%acP#erson v Bro&n 21945Students 23J including + surrounded lecturer &/c angr' w/ "im@ouldn=t let "im pass,onfrontation lasted appro.imatel' 15 minutes7 later stated "e was in fear of p"'sical danger from t"e group7 as%ed to &e allowed t"roug"

ouc"ed a student to get t"roug"rial ,ourt *udge0

+ou&ted + aware t"at "e created fear in 7+ "ad &een rec%less and ?GH to "a$e %nown "is conduct would gi$e reasona&legrounds for creating fear

*udge used o&*ecti$e test(ound + guilt'

Appeal ,ourt0est s"ould &e su&*ecti$e

Bra' I0 + s"ould &e *udged &' w"at "e did %now ! w"at SH ?#+ "a$e %nown Since student didn=t recogni e SS B # F !ot Guilt'

C BAB # F is onl' for murder 2t"is is actuall' t"e e.ception K SS B # F is for allot"ers li%e assault

Assaults cannot &e committed negligentl' 2Hig"l' unli%el' to find negligent

ACTUS REUS All offences 2under t"is topic e g 61 59 etc can onl' occur &/c of a positi$e act e.cept

s580negligent causing of GBH

Psyc#$c ssa!lt ntentional or rec%less creation of t"e appre"ension of imminent unlawful contact ,ausing of a $ictim to appre"end/fear imminent or immediate p"'sical $iolence

1. Requirement of imminence"one ,alls 0 'n$"#t (1988)

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+ found guilt' of assault on a &us >ade t"reatening p"one calls to magistrate *udge and cops in$ol$ed in case

>ade statements to t"e effect of : =m not gonna do it tonig"t &ut 'ou don=t %noww"en am gonna get 'ou;>ade past and future t"reats &ut no present t"reats

ssue0 t"e e.tent to w"ic" t"e t"reats related to imminent p"'sical $iolence,ourt of Appeal0

"reats didn=t amount to imminent p"'sical $iolence(actuall' no imminence &/c didn=t t"reaten an't"ingAfter tapping t"e p"ones t"e' disco$ered "e was call from $er' far awa' i e note$en p"'sical pro.imit'

(ound not guilt' &/c no imminence or immediac' 2"ad t"e circumstances &een

t"at "e called from outside t"e "ouse ma'&e on a mo&ile t"en imminence ma'"a$e &een pro$en#oo% at t"e case in terms of t"e circumstances of0

@"o is recei$ing t"e t"reats"e content of t"e t"reats"e person ma%ing t"e t"reats

Barton and rmstron" (1969)Business transaction+ t"reatened 7 wit" serious $iolence if didn=t sign legal document7 made complaint7 stated in inter$iew wit" t"e police t"at + was a person in aut"orit' and t"at and 7was trul' scared,ourt0

D$en t"oug" t"e t"reat was made on t"e p"one it was made &' a person inaut"orit'+ capa&le of carr'ing out t"e t"reat &ased on t"ese circumstancesSufficient for amounting to assault

mminence recognised &/c of wor%ing relations"ip and aut"orit' of + made "imstronger part'+istinction &etween mere words and words needs to &e made

,ontinuing t"reats0 anker and Vart okas (1988)

7 missed lift from sister7 called + and as%ed for lift and as%ed "im to follow sister + dri$ing slowl' and made se.ual ad$ances7 re*ected+ sped up and 7 pulled t"e door s"ut+ made more ad$ances+ t"en stated : am going to ta%e 'ou to m' mate=s "ouse He will reall' fi. 'ou up;

7 leaped out of t"e car in fear of +=s argument was t"at t"e potential p"'sical $iolence w"ic" t"e friend would

possi&l' "a$e committed was not imminent

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,ourt0: "e 'oung woman was in immediate and continuing fear so long as s"e was

imprisoned &' t"e defendant; 2 per @"ite I: "ere was no escape no reasona&le possi&ilit' of novus actus internveniens to

&rea% t"e causal lin% &etween t"e t"reat and t"e e.pected infliction of "arm; 2 per@"ite I,ontinuing num&er of t"reats

ut 7 in state of fear Ceal fear of imminent p"'sical $iolenceBased on t"e esta&lis"ed causation + was found lia&le

n some cases imminence is an issue consider0"e time gap &etween t"e t"reat and t"e actual carr'ing out of t"e t"reat

Some form of p"'sical or temporar' difference i e geograp"ical separationf dealing wit" assault and imminence is not an issue *ust note its re uirement and

satisfaction and mo$e on Sals*!ry

!otion of inflict doesn=t mean assault muc" &roader notion t"an assault

2. Victims state of mind (apprehension/fear)>ust cause t"e $ictim to appre"end/fear 7 :must &elie$e t"at $iolence is to &e feared; 2 Barton v rmstron" + S-./ 451

n &atter' assault doesn=t matter if 7 is aware of t"e assault(ear of 7 must &e esta&lis"ed and &e reasona&le@"at "appens if 7 is not afraid(ear not present0 /yan and '!#l (1909)

Ce0 Actual fear of 7+ and 7 were in ad*oining toilet cu&icles7 was ma%ing se.ual suggestions to +Hole &etween cu&icles+ t"rust large %nife t"roug" "ole allegedl' to stop 7 from anno'ing "im@"en 7 testified to police "e stated t"at "e was not scared,ourt0

(ound 7=s statement re0 lac% of fear was &asis for uas"ing t"e con$ictionBecause t"e re uirement for assault is t"at t"e 7 must fear imminent p"'sical$iolenceAnd 7 said "e was not

Brady (1911)7) police officers@ent to +=s "ouse in response to complaint made>et at t"e door &' + wit" rifle+ swore at t"em and said to clear out or : =ll put somet"ing in 'our &lood' arses;,"arged wit" common assault,ourt of Appeal0

?p"eld con$iction

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D$en t"oug" t"e police said t"e' were not scaredAppears as t"oug" if someone uses a weapon and points it at someone

t is assumed t"at it gi$es rise to fear 2e$en if 7 is not scaredA&ilit' of t"e accused to e.ecute t"e t"reat0 ver$n"#am (1949) !o re uirement t"at + actuall' &e a&le to e.ecute t"reat+ pointed a to' pistol at 7#oo%ed li%e real one7 t"oug"t it was real and feared for life,ourt found + guilt' of assault>a'&e argua&le t"at if to' didn=t loo% real fear ) unreasona&le

Ceasona&le (ear0 Barton and rmstron" ssue0 s t"e 7s fear reasona&le

,ourt0Fes &ecause comparati$e position of + and 7 2+ stronger part'+ said to &e in aut"orit'

Doyle (1991)+ was "eroin addict@ent to c"emist and t"reatened p"armacist t"at "e=d %ill "er if s"e didn=t "and o$ercertain medicationsAppeared to &e serious t"reat,onstitutes ps'c"ic assault+ was in a serious state of wit"drawal at t"e time+ was so p"'sicall' wea%ened t"at "e could &arel' stand

(ederal ,ourt0Luas"ed con$iction

rosecution didn=t ade uatel' deal wit" t"e issue(acts to suggest t"at 7=s fear was unreasona&leD$idence t"at s"ould "a$e &een considered at trial t"at wasn=t

appeal was alloweda%e t"e $ictim as 'ou find t"em

D g f scare someone w"o o$erreacts 'ou ma' &e lia&le f 'ou sa' &oo and 7 passes out and goes to "ospital 'ou are not lia&leD g f o$erreaction was reasona&le still lia&le if aware of condition f %now t"at

t"e 7 "as ner$ous condition and still sa' &oo t"en lia&le,onditional "reats0 2!*erv$lle (1669)"reats wit" attac"ed condition

Still good law+ and 7 "ad confrontation and argument+ put "and on sword and slig"tl' drew it from sca&&ard+0 : f it were not assi e time would not accept 'our insults; 2i e would "a$eused t"e sword,"arged wit" assault,ourt0

Culed in fa$our of +

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7/49

n effect no t"reat in t"e circumstances !ot a uestion of imminence

Luestion of w"et"er t"reat/not,ondition implies t"at t"e condition can undo t"e t"reat

!ot true &/c in t"ere was no t"reat"ese can cause pro&lem for t"e law as t"ere is no imminence if 7 ad"eres to t"e

t"reatCig"t to impose t"reat0 Luestion of w"o "as t"is rig"t

Pol$ce v reeves (1964 )f 'ou come an' closer =ll sta& 'ou

,ourt0"reat for t"e purpose of assault

+ "ad no rig"t to impose t"e condition"reat was unlawful

(ound assault

/os a v Sam!els (1969)+ispute &etween ta.i dri$ers7 at "ead of ta.i ran% ue+ *umped t"e ue to front and 7 went to remonstrate "im+ pulled out %nife+ : f 'ou tr' t"is =ll cut 'ou into &its;7 stopped + from getting out &' pus"ing "im,ourt0

oo% approac" similar to Gree$esf put condition wit" no rig"t to do so ) unlawful t"reatf sa' 'ou will stri%e and don=t satisf' condition ) assault

!o rig"t to impose t"e t"reat of e.cessi$e force and t"us not rel' on self-defence

Battery ssa!lt An omission cannot amount to an assault 2 per Iames ,I

a"an+ re$ersing car w"en consta&le directed "im to cur& side

+ didn=t approac" it properl' and officer directed "im to w"ere "e was+ re$ersed onto consta&le=s footfficer screamed for "im to remo$e it se$eral times

(inall' + remo$ed car ,ourt0

,an=t consider in form of failure to remo$e car from footHa$e to consider as positi$e act 2&/c assault

ositi$e act0 conduct at time w"en + dro$e car onto foot+ argued t"at w"en dro$e car on foot it was accident 2no dispute a&out t"at

!o criminal lia&ilit'

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,ourt0Still could &e lia&ilit' if consider dri$ing car on foot as continuing act w"ic" started

w"en "e dro$e on consta&le=s foot and ended w"en "e remo$ed it An'w"ere along t"e continuum of time it could &e said t"at + formed a guilt'

mind ,ould &e said t"at t"ere is coincidence &etween t"e Actus Ceus and t"e >ens Cea

>ere touc"ing can amount to an assaulto Collins v Wilcock (1 !")o + ma' &e relie$ed of lia&ilit' on ot"er grounds suc" as

mplied consent#ac% of >C?se of lawful force e g w"ere + &umps into 7 on a &us

,onsent

o #nla$ful Contact 0 f t"ere is consent to t"e contact t"en it is not unlawful "e iron' ist"at 'ou cannot consent to an unlawful contact

o Without Consent 0


9/49

o As was found in %onovan consent is null M $oid w"ere ABH issustained

-$lsono @ &randed girlfriend=s &uttoc%s w/ red "ot %nife w/ initials

$tkeno + poured flamma&le li uid o$er girlfriend w"ilst s"e wore a fire

suitSport

General principle re0 sport as discussed in &ro$n D$er' participant in lawful sporting e$ent is said to consent to t"e le$el of

$iolence w"ic" is contemplated &' t"e sport as long as t"at infliction of$iolence is w/ t"e rules of t"e game

"is will depend on t"e game &eing pla'edo D g ,"ess $- &o.ing+ifferent e.pectations of le$el of $iolence from none tointense

!ot muc" e.ists in t"e wa' of case law in t"is field !ot man' successful actions are &roug"t M carried out Ceason &eing t"e notion of


10/49

o 7 cannot consent to ABH or more unless +=s actions were w/lawfull' recognised e.ceptions suc" as surger' &o.ing


11/49

>a*orit' emp"asised t"at consensual acti$it' &etween"us&and M wife in pri$ac' of matrimonial "ome s"ould

not &e su&*ect to criminal in$estigation or prosecution D.ceptions to t"e rule against consent to ABH

o D.ceptions to rule t"at consent isn=t a defence w"ere ABH inflictedo D.ceptions &ased on notions of pu&lic interest or w"ere t"ere is general social appro$al

Surger' performed w/ informed consent of patient e$en w"ere GBH inflictedSports in$ol$ing &od' contact e g &o.ing foot&all net&all M "oc%e'

Pallante v Stad$!ms Pty .td (1906) + relie$ed from criminal lia&ilit' for in*ur' inflicted upon sporting

opponents pro$ided t"ato + %eeps w/ recognised M reasona&le rules of t"e gameo Application of force &' + against 7 must &e in a sporting spirit M

not due to "ostilit' or angero Application of force &' + must &e no more t"at ordinaril' M

reasona&l' contemplated as incidental to t"e game 2 per >c nerne'I

,ourts ac%nowledged t"at in man' games t"ere=ll &e numerous &reac"es of t"erules

/e 7e&ell cr$mes com ensat$on (1980) "eld t"at e$en t"oug" 7 was "armed during Aussie rules matc" w"en

pla'er &ro%e t"e rules of t"e game did not amount to &reac" of criminallaw

#egoe I0o :A pla'er cannot e.pect nor is "e entitled to e.pect t"at e$er'

pla'er will pla' strictl' according to t"e rules; 2 &*ecti$e

>ust &e coincidence &etween AC M >C for assault to occur Hostilit' is not a component of assault for >ens Cea ro$ocation is a$aila&le as a defence for assaults wit" intention to %ill onl' ! GBH

2 'elmhout 219 J 89 (#C #awful

o D g !C# soccer

o Also e.tends to local game of touc" foot' if assault occurred "ere its unclear w"owould &e responsi&leo #ocal clu& comp refereeo #e$el of licensing re uired

Ce0 &o.ing martial arts t"us alwa's needs to &e lawful in t"at senseConey

,onsidered %onovan and &ro$ne Had licensed price fig"t ,onditions

o ?nlimited N of rounds

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o (ig"t o$er onl' w"en one participant was nearl' deado "us &/came unlawfulo "us consent was lost

f fig"t occurs &etween indi$iduals at t"e time place etc to settle personal dispute unlawful

n !S@ women are not allowed to &o. t"us its alwa's unlawful 2&utallowed in t"e ?SCase

Super 1 s pla'ers sent off 1 temporaril' M 1 permanentl' ermanent 1 s"owered M c"anged into ci$ilian clot"es emporar' 1 still in uniform/foot' gear

ermanent 1 t"rew at temporar' 1 e$en t"oug" t"e game was o$er !o suggestions of criminal lia&ilit' @"'

o Suggestion t"at no&od' would pla' if criminal lia&ilit' was a possi&ilit'

o M sport more important t"an t"e law ""ravated ssa!lt +istinction &etween common M aggra$ated assault Assaults considered aggra$ated due to presence of additional or aggra$ating circumstances Assault wit" furt"er specific intent

o

+ intended some greater le$el of "arm to 7 e g assault w/ intent to inflict ABH orassault w/ intent to %ill s 4o Assault &e part of anot"er crime e g assault w/ intent to resist lawful arrest s5

Assault on $ictims wit" special statuso Assault on 7s w/ speciall' protected status regarded as more serious M deser$ing of

"ig"er penalties D g wi$es c"ildren wards apprentices ser$ants M insane people s88

o D g police officers and ot"er similar officials s5

o olice *fficers+ doesn=t "a$e to &e aware t"at 7 was a cop

/eyn#o!dt (196+) !o re uirement t"at + &e aware t"at 7 was a cop or t"at "e was acting in

t"e course of dut' Dsta&lis"ing status of 7 as a cop ) matter for t"e AC f 7 not acting in t"e course of dut' w"en assaulted + not commit

aggra$ated offence rosecution must est 7 was acting in t"e course of dut' w"en assaulted Scope of cop=s dut' &roadl' construed as including an't"ing t"at can

fairl' M reasona&l' &e regarded as a carr'ing out of a cop=s dut'

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Assaults wit" particular in*urieso !o re uirement of "arm in common assaulto @"ere "arm is caused i e actual in*ur' to 7 ma'&e aggra$ated assault w/ "ig"er

penalt'o +ssault occasionin, +&'

S59>ens Cea + to common assault

anker (1988) and Co!lter (1988)As no re uirement of permanence of in*ur' an assault t"at results in 7 sufferings"oc% or an' ps'c"iatric in*ur' ma' amount to assault occasioning ABH

o %$ller (1954)o +ssault occasionin, -&'

ACTUS REUS ffence to inflict or cause GBH s35 GBH

o alicious imports >C re uirement Ce uires + to act w/ intent to cause "arm or rec%lessl' in relation to its

occurrence + doesn=t need to act w/ intent to cause wounding or GBH enoug" for+ to act w/ intention to in*ure some person Stokes (199 )

ncludes minor "arm t"us imposes lia&ilit' on + w"o "as >C forcommon assault M wounds or inflicts GBH

S33 re uires prosecution to pro$e intent to inflict GBH malicere uirement ) redundant

S35 unlawful M malicious wounding Woundin,

o ntentionall' wound s 1

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o >aliciousl' wound ss33 M 35o n*ur' t"at &rea%s t"roug" t"e w"ole s%in i e &ot" inner M outer

s%inVallance (1 1) >inor cut to serious deep %nife wound

o Ce uirements same as for GBH Assaults in com&ination wit" ot"er offences

o Co&&er' assault w/ larcen' ss98-9o A&ducting assaulting plus false imprisonment ss 9-9JA

De:ences to ssa!lts + not lia&le for w"at=d ot"erwise constitute assault if +=s resort to force is lawful e g self-

defence

(orce lawful w"ereo #aw recognises situation as 1 w"ere force can lawfull' &e resorted too +ecision to use force ) reasona&le 2o&*ecti$eo Luantum of force ) reasona&le

+efence of pro$ocation a$aila&le as defence to assault re uiring proof of >C for murder

SEXUAL ASSAULTHistor'

o 19 1 law underwent complete o$er"aul re0 se.ual assaulto prior to 19 1

onl' real consideration was re0 raperestricted conduct to penis $agina penetration

nl' >ale + M female 7?p"eld man' arc"aic e.ceptionsD g Cape in marriage not possi&le

o 19 1 ,rimes Amendment Act passedo s61-4Jo (ocus on s61 M 66o t"er reforms re0 aspects of procedureo ncluding

D$idence allowed into court>anner in w"ic" *ur' directed

D g ,orro&orationo @"ere onl' "ad 7=s word against accusedo Iudge re uired at ,# to tread carefull' w"en considering

con$iction if no supporting e$idenceo Ceforms said t"e warning was no longer re uiredo D$en as far as sa'ing man' reasons for w"' lac% of e$idenceo Attac%ing credi&ilit' of 7 of prior se.ual "istor'o !ow $irtuall' all se.ual e.perience "istor' is e.cluded

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15/49

o N of c"anges introduced to protect 7o Also amendment to punis"ment ?sed to ma. penalt' of life in

*ailo Sometimes felt t"at + ac uitted w"en felt penalt' to "ars"o "us penalt' was ad*usted according to gradient/ le$el of

assault,urrent #egislation

o @idened &e'ond t"e traditional act of rape as penetration of a $agina &' a penis tocomprise of


16/49

o "is is a source of criticism as it suggests t"at t"e law finds somet"ing wrong wit""omose.ualit'

o S && C0 f one &elie$es t"at t"e person is a&o$e 16 and t"e person is 18P and it is an"onest and reasona&le &elief t"en t"ere is a defence a$aila&le Alternati$el' t"e'>AF loo% at t"e age gap also e g intercourse &etween 13 and 18 'ear olds seems o%

o a!lkner v 2al*ot (1981)+ 2woman "ad se. w/ &o' &elow 16,"arged w/ indecent assault

&/c under statute "e couldn=t consent to t"e acto + can argue + "ad reasona&le cause to &elie$e M in fact did &elie$e t"at c"ild was

16P &ut onl' if c"ild is actuall' 18PBut circumstances ma' go &e'ond se.ual intercourse to ABH 2 Coleman

f $ictim is asleep or semi conscious no consent s61,onsent o&tained &' force or fraud consent is $itiated 2i e said not to e.ist

5raudo n"l$s# Case

Singing teac"er told pupil t"at se. would impro$e singing,ourt

(raud Cape 6ature of +ct

o +ealt w/ under s61Co Rsing incidence of se. under t"e guise of medical treatmento %o*ol$o

ssue0 7 mista%en as to nature of act distinction drawn &etweenunderstanding w"at is &eing done M understanding of w"' it=s &eing done

n$ol$ed insertion of ultrasound de$ice in female patient=s $agina forultrasound#egitimate practice &ut "ere onl' carried out for radiograp"er=s se.ualgratification7 didn=t %now

ro&lematic &/c 7 consented,ourt

Held0 7 consented on &asis 7 was aware of nature M ualit' of act +

was performing !ature M ualit' of act didn=t c"ange &/c + "ad secret se.ual moti$es

"is scenario "as &een o$erturned &' statute s61C2 2a1 f 7 consents to se.ual intercourse under mista%en &elief it=s for

medical/"'gienic purposes 7=s consent ) $itiated 7istaken dentit3

o Pa ad$m$tro olo!s (1950)+eception in relation to identit'7 'oung migrant woman+uped &' + into &elie$ing t"e' were married

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17/49

B/c mista%en &elief 7 "ad se. w/ +H,

!ot a fundamental mista%e >ista%e re0 social identit' +=s status as "us&and Held0 7 consented to p"'sical act w/ + + !ot guilt'

"is scenario o$erturned &' statute s61C2 2a 2ii !ow consent would &e deemed as $itiated

o all$enne (1963)7 in &edBelie$ed t"at person clim&ing into &ed was "us&and

consented to se.

,ourt Held consent to &e $itiated &/c mista%e re0 + &asic t'pe

8hreats 9 Violenceo ,onsent o&tained t"roug" t"reats of p"'sical M non-p"'sical %ind $itiated

Pa ad$m$tro o!los (1950) S61C2 2d2o!t '1 (0* 0 t"reatened girls unless t"e' "ad se.ual intercourse

o +on=t need to p"'sicall' resist to demo lac% of consent e g $ictim free es w/ terror s612 2d

Psyc#$c ssa!ltV must 4e a$are of the threat of force

o f + engages in indecent conduct t"at 7 is unaware of alt"oug" in 7=s presence Oindecent assault

%s conduct must amount to assaulto + ma' offer indecenc' &ut if no assault O indecent assault

B!rro&s (1951) + in$ited 7 to mastur&ate !ot indecent assault &/c lac% of assault

/ol:e (195+)

+ e.posed "imself mo$ed towards "er in$ited "er to "a$e


18/49

o !o pain causedo + fondles or touc"es 7=s &od'

B (1954) 1 male mastur&ated anot"er

'ostilit3 is not necessar3o P#$ll$ s (1901)

nvitation to indecenc3o f + in$ites 7 to touc" no assault

a$rclo!"# v -#$ (1951) + in$ited 7 2aged 9 touc" "is penis !o assault

+$areness of Vo f offence committed M assault accompanied &' act of indecenc' w"ic" occurs

:on or in t"e presence of; t"e ot"er person 2s61#

MENS REA1. -uilt3 if intend se0 $/o victims consent

Enowledgeo Ce uires %nowing 7 was not consenting to se.ual intercourse

Cec%lessness0o rosecution doesn=t "a$e to pro$e it intention O minimum re uirement can &e

guilt' of rec%lessnesso '$tc#ener

,ourt approac"es to ta%e to determine if + is guilt' of rec%lessness

1 Cecognition of t"e possi&ilit' of non-consent f + %nowst"ere=s a ris% w/ 7 not consenting &ut goes a"ead M ta%es itan'wa'o SS B # F NOT C BAB # F(ailure to consider t"e issue of consent at all State of mind re0

conduct ma' indicate + didn=t careHonest &ut unreasona&le mista%e0

o B/c of >C=s su&*ecti$e nature its led to consideration t"at in some circumstancest"e indi$idual ma' rel' on "onest &ut mista%en &elief t"at consent was t"ere

o DPP v %or"an ( n"l$s# 1906)>r > didn=t li%e wifeAt local pu& met indi$iduals+uring con$ersation effecti$el' incited t"em to go M rape >rs >Said s"e li%ed se. w/ strangers M &eing roug"ed up

"e' went M raped M &eat "erD$en t"oug" tec"nical misdirection at trial

1


19/49

!o *ur' would "a$e deemed t"at t"e indi$iduals "onestl' &elie$ed t"ere wasconsent from >rs >

@"en *ur' was &eing directed t"e' must onl' consider w"et"er t"e &elief wasan "onest one 2Su&*ecti$e uestionrior to >organ position "ad to loo% at su&*ecti$e "onest' #?S o&*ecti$e

reasona&leness,ourt

Said its state of mind contrar' to loo% at o&*ecti$eness !ot e.cluding total reasona&leness

AGGCA7A D+ !+D,D! ASSA?# ,ircumstances of aggra$ation s61>

o + is in t"e compan' of anot"er person or personso 7 Q 16 'ears oldo 7 is under +=s aut"orit'o 7 "as a serious intellectual disa&ilit'

@"en 7 Q 4 additional o$erall circumstance of aggra$ation ) in*ected s61>2

19


20/49

COMPL C TY,omplicit'

o Celates to circumstances w"ere we "a$e 1 indi$idual or more t"an one descri&e as principle/s most in relation to t"e commission of t"e offence directl' responsi&lefor t"e commission of t"e crime t"e'=re t"e ones w"o actuall' did it i e actuall'%illed

,# applies in !S@ s385 386 M 3517ariations in lia&ilit'

o rinciple in t"e 1 st degree 2 1erson or persons w"o are said to &e directl' responsi&le for t"e commission

of t"e offence*sland Casess385 M 386

o rinciple in t"e nd degree 2Ioint $enture 2 !ot directl' responsi&le

"'sicall' present at t"e offenceAiding 2gi$ing assistance and/or a&etting 2encouragement/incitement

o C Accessor' BD( CD t"e fact 2AB ,ounselling or procuring !ot present at t"e actual scene of t"e crime &ut in$ol$ed

o Accessor' A( DC t"e fact Assists t"e felon 2"iding getting rid of e$idence

o f aid a&et or counsel+on=t "a$e to "a$e caused t"e offence

o But if procure

+o "a$e to cause t"e offence+istinctions a&o$e are ar&itrar' largel' a&olis"ed

PART ES TO A CR ME

1; Pr$nc$ al


21/49

o +irectl' responsi&le for commission of t"e offenceo @"at if more t"an oneo @"at is notion of *oint criminal enterprise/acting in concerto ,lose connection to law on conspirac'o #oo%ing for e$idence of agreement &etween t"e parties to carr' out t"e particular

offenceo !eed acts &eing committed &' parties to &ring a&out t"e commission of t"e offence

2/// to conspirac'o Appears 2alt"oug" not certain all t"e parties "a$e to present at t"e scene of t"e crimeo "us in relation to t"e offence can &e s"own all t"e parties can &e s"own to "a$e t"e

>C for t"e offenceo D g if tal%ing a&out murder All t"e principles "a$e to &e s"own to eit"er intend

deat" GBH or rec%lessl' indifferentIoint criminal enterprise / acting in concert

o Agreement to commit criminal offence &' A and +o AC committed &' 1 2or 1P parties to agreemento A and + present w"en AC committedo + "as necessar' >C

+ can &e guilt' of offence as principal in first degree>sland

o n$ol$ed a mot"er M son w"o planned M t"ereafter murdered fat"er/"us&ando lan

>um gets drugs M puts in food+ad gets drows' or falls asleep t"en son &eat "im to deat"

"en &ur' "imo All went according to plano Bot" c"arged M con$icted of murdero mportant for &attered woman=s s'ndrome M pro$ocation M self-defence

H, recognised e$idence regarding >um=s "istor' of domestic $iolence (act t"at s"e "ad &een &attered &' dad Cele$ant to "er case

!one of t"is sa$ed eit"er of t"em re0 con$iction of murder o Bot" appealed against con$ictionso mportance of case ultimatel' son 2+a$id onl' found guilt' of manslaug"ter &/c

Caised N of defences re0 pro$ocation M self-defenceIur' undecided &ased on "is circumstances

"us c"arge of manslaug"ter su&stituted on appealo >rs sland

n appeal s"e said "ow can &e guilt' of murder if t"e ot"er person in t"e *oint enterprise is onl' guilt' of manslaug"ter

f "e=s onl' guilt' of manslaug"ter t"en s"ould onl' &e guilt' ofmanslaug"ter

1


22/49

>atter went to H,H,

,onfirmed t"at s"e was part' to enterprise to murder of "us&and !ot"ing wrong w/ t"e law w"ere&' t"ere could &e a finding of one

part' onl' guilt' of murder M ot"er of manslaug"ter ,onfirmed con$iction for murder

mportant parts of t"e *udgement as it relates to *oint enterpriseo Agreemento Steps ta%en to &ring t"e agreement a&out clearl' pro$en "ereo resence at t"e scene of t"e crime of *udges in H, in t"is

case were not con$inced t"at p"'sical presence was are uirement

o Anot"er legal principle related to t"is w"ic" is important common purpose

,onfirms t"at an indi$idual in relation to ID can &e guilt' of t"e offence e$en w"ere t"e ot"er part'/s are not@"at needs to &e considered

o @as t"ere a IDo #oo% at t"e lia&ilit' of t"is indi$idual ma' not necessaril' &e affected &' t"e

lia&ilit' of t"e ot"er persono So can get murder for one M manslaug"ter or e$en ac uittal for ot"er person

2pro&a&l' get not guilt' &' insanit'

Doctr$ne o: ?nnocent "ency+istinct M not related to a&o$e stuff ,ircumstances w"ere one of indi$iduals in$ol$ed in commission of t"e offence is not guilt' fort"e offence in circumstances w"ere it could &e argued t"at t"e' in fact did not commit t"eoffence at all

ccurs w"ere + encourages instigates or assists to perpetrate AC of t"e crime B? )innocent agent>a' occur w"en una&le to commit offence &/c

o Ageo nsanit'

+ escapes lia&ilit' &/co #ac%s >C M "asn=t committed crime as 1o + "asn=t committed crime &/c + "asn=t performed AC

+octrine re uireso + caused t"e innocent agent to perform t"e AC of t"e offence


23/49

Br$""s (1980)rosecution not re uired to est t"at + specificall' instructed t"e innocent

agent to commit AC + ma' "a$e used deception to cause A to acto rosecution to est t"at conduct of t"e A was suc" t"at if committed &' + would

"a$e constituted an offence,lassic e.ample

o Adult/c"ild situation-#$te v /$dley (1908)

!ot restricted to c"ild situations0Co"an and .eak (1906)

o >r # didn=t li%e >rs #o # incited ,ogan to go M rape wife 2as in 7or,ans caseo

Ce0 ,ogan &ased on ruling in >=s case ,=s con$iction for rape was o$erturned@as said re0 "is trial *ur' "ad &een instructed in relation to "is lia&ilit'regarding "is mista%en &elief t"at "is mista%e "ad to &e "onest and reasona&le

>isdirection 2&ased on >=s case cause &elief onl' "as to &e "onest"us con$iction o$erturned

!B t"ere is a re uirement t"at t"ere actuall' &e a su&stanti$e offence offence must &e committed

# w"o was c"arged M con$icted w/ aiding M a&etting in t"e rape ofwife said "e can=t &e lia&le &/c no crime "as &een committed

t was found "e was not lia&le for t"e commission of t"e offence &/cdidn=t "a$e t"e re uired >C no offence

#=s argument no crime not lia&le for aiding M a&etting a crimet"at didn=t ta%e place

,ould "a$e &een lia&le for incitement for w"en "e was 1 st tal%ing to , But not lia&le for part' to actual offence ,ourt

o Ce0 #=s lia&ilit'o # , rapeo oo% , out of t"e e uation 2&ased on doctrine of innocent

agenc'o Culed n effect # raped "is wifeo Caised anot"er issue re0 rape &/c # was "us&and of 7 law in

Dngland at t"e time t"at "us&and could not rape "is wifenl' in 199J in H of #s decision in R v R a&olis"ed

immunit' of "us&andso Said re0 "us&and=s immunit' in rape does not e.tend to

t"ese circumstanceso #=s con$iction for rape up"eld

"is doctrine important &ut rarel' occurs nl' consider if "a$e adult/c"ild situation or Co,an and :eak

situation

3


24/49

+; Pr$nc$ le


25/49

Said encouraged &' t"e p"'sical presence of ot"ers M fact t"e'=d donenot"ing to inter$ene

rosecution "ad no ot"er e$idence ot"er t"an p"'sical presence n appeal con$ictions for ot"ers w"o=d stood t"ere for aiding M

a&etting rape con$iction uas"ed ndi$iduals in t"is case ne$er retried ac uitted &/c ,ourt ruled

o >ore t"an mere presence re uired in t"ose circumstanceso Somet"ing else re uires in form of communication re uired

from t"e indi$iduals to t"e rapists of some form ofencouragement for w"at t"e' were doing

MENS REA(rom $or"$ann$ '1 (%* two re uirements0o Enowledge of t"e essential facts w"ic" made t"e principle offence a crimeo @it" t"at %nowledge + intentionall' aided a&etted counselled or procured

2 ntention onl' not rec%lessness rec%lessness ) insufficientEnowledge

o Actual %nowledge crime is &eing or going to &e committedo Actual %nowledge can &e general doesn=t "a$e to &e specifico >ere rec%lessness insufficiento Ba$n*r$d"e A196

@ell %nown t"eif approac"ed B M as%ed to &orrow o.' acetelene e uipment2cuts metal

"eif used in ro&&er'Bro%e into &uilding M stole safe?sed e uipment to cut open safeHe said "e t"oug"t indi$iduals were going to steal scrap metals from factories

rosecution "ad to pro$e t"at0 + %new t"at felon' of t"e same %ind was intended @it" %nowledge + did somet"ing to assist t"e felons

,ourt of Appeal B "ad sufficient %nowledge of a propert' crime @asn=t specific &ut doesn=t need to &e

o Enew propert' was &eing stolen actual %nowledge sufficient doesn=t "a$e to &e specific

,on$iction up"eldo $or"$ann$ '1 (%* +C

Somew"at different to B casen$ol$ed semi trailer accident at Bulli pass

+efecti$e semi trailer ran out of controlCan into car w/ famil' M %illed 5 passengers

5


26/49

Ceason for noteriet' &rea%s for $e"icle were so defecti$e t"e' were &eing"eld toget"er &' coat "angers

urns on issues &/c principle offence was culpa&le dri$ing causing deat" 2statutor' strict

lia&ilit' offencessues

e.tent to w"ic" %nowledge was re uired of principle offence w"ic"re uires no >C "ow did it impact on >C re uirement of G

D$en t"oug" %nowledge not an element of principle offence certainl'element of t"e lia&ilit' of G in considering "im as &eing AB

G was owner of semi trailer facts disclosed "e was in$ol$ed inrepairs M maintenance of truc% &ut unclear as to w"at e.tent i e some%nowledge of defecti$e &rea%s

G said a AB M must "a$e %nowledge of t"e essential factsDasier in terms of &/c person is t"ere easier &/c t"ere seeing w"at wasgoing on strong e$idence onl' &/comes issue if AB if not t"ere

wner 2G didn=t need,onsidered meaning of intention

rial ,ourt *udge ndicated G not re uired to intend to procure commission of e$ents #esser form of >C sufficient

H, rosecution "ad to est t"at G "ad directed dri$er to dri$e truc%

%nowing &rea%s were defecti$e ,ases of strict lia&ilit' ma%e +=s guilt' mind re uirement esp clear

o + must "a$e actual or constructi$e %nowledge -$- meresuspicion t"at all t"e facts constituting t"e offence are to &e orare &eing

>ere rec%lessness insufficient @ilful &lindness could pro$ide &asis for finding of actual %nowledge ntention re uired &ut rec%lessness su&*ecti$e test insufficient for

&eing AB or Specific intention re uired to &e lia&le in circumstances

o ,riticism of - case for inconsistenc'f dri$es truc% suspecting defecti$e mac"iner' M accident "appens can

&e c"arged w/ culpa&le dri$ing causing deat" or GBHBut if =s Der also suspects &ra%es ) defecti$e &ut lets dri$e M accident"appens t"en incurs no lia&ilit'

o @"at "appens if 1 commits anot"er crime s or AB lia&lendr' part' can &e lia&le for additional crimes w"ere it can &e said t"at 'ou

foresaw t"e possi&ilit' of t"e additional crimescan &e lia&le for crimes t"at 'ou "a$e no intention of at start of *ointenterprise &ut %now are a possi&ilit' in t"e e$ent t"e' occur

6


27/49

o Stokes D$::ord (199 )n$ol$ed S) 1 con$icted of s33

+ onl' guilt' of s35rinciple *udgement 2Hunt I

+ needed to %now or was aware of S=s intention to not onl' stri%e $ictim &utalso of S=s intention inflict real "arm in t"e sens of it &eing GBHBased in t"is +=s con$iction was uas"edAll "e %new was t"at Ss ma' "a$e &een going to stri%e t"e 7 in t"osecircumstances

Doctr$ne o: Common P!r oseAn accessor' &ears0

+ criminal lia4ilit3 for an act $hich $as $ithin the contemplation of 4oth himself and the principal in the 1 st de,ree as an act $hich mi,ht 4e done in the course of carr3in, out the primar3 criminal intention< an act contemplated as a possi4le incident of the ori,inall3 planned particular venture 7o#ns '1 (4* T,ommon purpose w"ere t"e +s "a$e &een in agreement to commit a crime

7o#ns '1 (4*o I dro$e car to scene of ro&&er'o (ig"t occurred &etween @atson 2 1 M 7 2w"o "ad no Uo 1 s"ot M %illed 7o I as%ed w"at "ad "appenedo 1 said it "ad gone &ado I=s con$iction up"eld on &asis t"at I "ad certain %nowledgeo I aware @ was $iolent M &ad tempered person M aware @ carried a guno I said %new @ "ad gun &ut didn=t %now it was loadedo ,ourt

Based on doctrine of common purpose guilt' of AB murder &/c %new $iolence was possi&leIo"ns was "eld lia&leB/c onl' >C re uirement was "e foresaw t"e possi&ilit' of deat" i e "erecognised t"e possi&ilit' of 1 using t"e gun

f 'ou want to wit"draw from a common enterprise 'ou must neutralise t"e situation i e mustundo w"at 'ou=$e done to &e found wit"out >C e g if 'ou c"ange 'our mind "alf wa' t"roug"and get out it=s not enoug"K 'ou must tell t"e cops or ta%e steps similar to t"at

%c !l$::e (1995)o &ros M +a$is were drin%ing M smo%ing dopeo @ent out armed e$idence of "ammer M pieces of woodo +ecided to go &as"o (ound 7s "ai M @esternero @esterner sa$agel' &eaten M left unconsciouso "ai &as"ed &' +a$is M 1 >cAulliffe &roo At some point appears > stopped M caused final &lowso 7 fell to ledge

4


28/49

o 7 fell o$er cliff M drowned w"en tide came ino +) 1o Brot"ers ) so rial ,ourt

,onsidered lia&ilit' w"et"er/not s lia&le re0 murder(ound guilt'

o Appealed to ,ourt of ,riminal Appeal M H,o n statement to cops indicated agreement Ioint Dnterpriseo +efence argument

#ia&le for manslaug"ter not murder &/c couldn=t &e said t"at "ad an' intentionre0 %illing

nl' intention to "arm w"ic" falls s"ort of t"e re uirement for murdero

H, Brot"ers must "a$e %nown t"at deat" was possi&le ,on$ictions up"eld

o All Accessor' "as to recognise is t"e possi&ilit' of GBH to &e responsi&le for t"emurder under ,ommon urpose 2>C for murder is easier in t"is case

Argument/criticismo olic' &asedo &/c courts want to deter certain t'pes of &e"a$iour e g gang attac%ing

Approac" of courtso f get in$ol$ed in a gang li%e t"is e g triado M Go M stuff w/ intention to murder 'ou could &e lia&le for murder &/c %new it

was possi&le

#ow >C re uirements under ,ommon urpose o pro$e >C of or accessor' &efore t"efact0

o ,ommon ntentiono Celations"ip wit" 1 and t"e ,ommon ,riminal +esigno Cecognition of possi&ilit' of circumstances occurring

$llard (+ 3) C

o +ifferent outcome to ; M 7 &ut confirm t"eir decisionso G was effecti$el' t"e lac%e' for a "itman 2professional %illero D$idence t"at G was of low mental a&ilit' M alco"olico H used G for minor *o&so n t"is occasion H got G to dri$e "im to location w"ere "e %illed people M

attempted to %ill a 3 rd o G c"arged as o G dro$e to location M rung up to find out if 1 of 7s was t"ere &ut didn=t %now "it

would "appen


29/49

o Argua&le t"at B/c of mental capacit' didn=t %now w"at was going on 2!insane

o H,D$en if some1 "as %nowledge uestion of manslaug"ter s"ould &e left tot"e *ur'

rial court *udge erred &' doing soAlso confirmed ; M 7

s it possi&le for or AB to w/draw from enterprise w"en offence occurs can rel' onw/drawal in relation to crime

o Fes &ut restrictions#aw not li%el' to escape lia&ilit' &/c $oluntaril' got in$ol$ed in crime in 1 st

place,onditions

>ust communicate w/drawalo D g Sa' somet"ing/oral communicationo Simpl' running awa' wouldn=t &e enoug"

"'sical ,ommunicationo w/drawal must su&stanti$el' pre$ent offence ta%ing placeo D g Ceporting offence to police

n relation to 1 communication must &e une ui$ocal ttem t (s 344 )

Separate offence on its ownACTUS REUS

@Connor v '$ll$an '1 ()*+eposited someone else=s c"e ues into "er own account &ut didn=t wit"drawt"e mone' "is was &e'ond mere prep

(ocuses on t"e accused=s criminal intentionroposed tests for


30/49

MENS REArosecution "as to pro$e a


31/49

+o not often see defencesf successful outcome could &e worse t"an con$iction

f successfulo +ealt w/ under mental "ealt" legislationo ,an &e classified as insaneo ndeterminate fas"ion go to mental "ealt" institutiono ndeterminate institutionalisation period-$- determinateo Su&*ect to e.amination

Caseo 19 Jso + "ad &een at ,a$ean ar% mental institutiono #oc%ed up M forgotten a&out for almost 35 'ears

utside of murder almost ne$er see defencelder cases often used &/c alternati$e ) life in prison/deat" 2w"en capital punis"ment still inforce,an &e found insane &' court e$en if 'ou don=t raise it

+efenceo !ot lia&le for offence &/c incapa&le of forming >C at t"e timeo +efence of >C

rosecutiono resumption of &asic sanit'o ,an raise &' wa' of information w"ere no1 else does

yo!* (1984) ,"arged w/ murder of fat"er Caised diminis"ed responsi&ilit' defence rosecution now allowed to raise insanit' !#F if defence raises

issues related to insanit' rosecution raised insanit' defence + found not guilt' on grounds of mental illness ,ourt

o @"et"er rosecution/defence raises defence B ) same %@ a"#ten (1843)

o ,"arged wit" murder- &elie$ed t"at "e was &eing persecuted &ut s"ot t"e wrong person- found ! guilt'- pu&lic outcr'

o House of #ordso Sentenced to 'ears imprisonment and diedo :>=!ag"ten Cules;- "a$en=t c"anged

1 +efect of Ceasono #e$el of awareness totall' confused

+isease of t"e >indo #egal uestion &ut not medical e$idenceo &$iousl' medical e$idence important

31


32/49

o @as t"is a disease of t"e mind3

a ?naware of t"e nature M ualit' of t"e act & f aware of nature M ualit' did not %now it was wrong>ost successful ones rel' on 2a?naware ma' suggest $oluntariness w"ic" ma' suggest automatism

f e.ternal trigger/cause good argument to dispro$e insanit'nsanit' needs ! DC!A# trigger

Balance o: ro*a*$l$t$es+efence of insanit' ) e.ception to t"e Woolmin,ton principle+efence "as &urden on B s greater &/c its an e$identiar' &urden

d defence can=t disc"arge t"e e$identiar' &urden *udge doesn=t "a$e to lea$e it as uestionfor t"e *ur'

on B s it=s more li%el' t"an notf defence does disc"arge &urden s"ifts to t"e prosecution to dispro$e &e'ond all reasona&le

dou&t

D$sease o: t#e m$nd +efence if pro$en &/c + of > if + didn=t understand t"e nature M ualit' of t"e act &' + t"atattracted t"e c"arge

defence onl' a$aila&le if defect of reason is due to disease of mind>ust pro$e + of > on B

#egal not medical term 'em '1 %0*

o ssue0 w"et"er or not sufficient e$idence of e.istence of disease of mind for issue togo to *ur' uestion of law for *udge to determine

o rrele$ant w"et"er temporar' permanent cura&le/incura&leo But temporar' insanit' enoug" to ground defence

Porter '1 !!*o Administered str'c"nine poison to 11 mont" old sono ried to ta%e it "imself &ut cops inter$enedo @ife called cops M reported t"at "us&and "ad ta%en sono B/c wife "ad left "im and was $er' emotional M "ad t"reatened to do t"e a&o$eo rior to attac% + "ad e.treme ner$ous &rea%downo ,lassis >urder esta&lis"edo "en defence of nsanit' 2 emporar' nsanit' e g drugs etc - sufficient to point to

+isease of t"e >indo + disease of t"e mind can &e descri&ed as0

+=s


33/49

arising from some infirmit' temporar' or of long standing = orter (1 ==) >>C:R 1!2? %i0on ;

o +=s case turned on lim&s rule ! of %@s rulesD$idence t"at + was aware of nature M ualit' of w"at "e was doing

Ga$e son poison M wanted to ta%e it "imselfH,

Luas"ed murder con$iction &/c e$idence suggested t"at "e wasunaware of w"at "e was doing

Someone could &e %illing someone M %now t"e' were doingsomet"ing &ut not %now t"at it was wrong

D g &rea%ing some1=s nec% to t"em could &e no different to snappinga twig off a tree

!otion of nature M ualit' &est demonstrated &' semi-consciousness(actor in determining disease of mind li%eli"ood of recurrence

o BAS ,A##F if + "as possi&ilit' of repeating same t"ing againK "ig"er t"e c"ancesof arguing insanit'

o Based on polic' considerations re0 communit' safet' -$- medical conceptions @0amples

o +rteriosclerosisArteriosclerosis0 Hardening of arteries affecting &od'

'em '1 %0*o '3per,l3caemia

>a' lead to &lac% out ennessy '1 ( *!$ck '1 0!*

>alfunctioning of t"e mind due to insulino leep$alkin,A

B!r"ess '1 1* GBH M wounding c"argeK insanit' &roug"t as defence

o @pileps3A S!ll$van '1 ()*

Eic%ed someone w"o tried to "elp said sei ure &ut medicall' not adisease of t"e mind &ut according to law it is

o ,ertain personalit' diseases ma'&e e$idence of + of > &ut not necessaril' so"ere "as to &e an offence"en t"e +efence of nsanit'

@"at disease"en t"e arms of insanit' 21 M a&o$e

1; at!re and E!al$ty o: t#e act "'sical nature and conse uences of an act rat"er t"an moral aspects

o Sodeman '1 !&*

33


34/49

D.tremel' difficult to argue Porter

o t was said t"at "e %new &/c "e=d alread' t"reatened to %ill son M "imself M t"ereforeunderstood t"e nature of life M deat"

o Where % is prevented 43 mental disorder from kno$in, the ph3sical nature of theact he is doin,B n a case $here a man intentionall3 destro3s life? he ma3 have solittle capacit3 for understandin, the nature of life and the destruction of life? that tohim it is no more t#an t#e *reak$n" o: a t&$", or destroy$n" an $nan$mate o*Fect .

Porter (1933) 'em '1 %0*

o +isease "it wife wit" "ammer o "erefore argued nsane Automatism &/c at t"e time didn=t understand w"at "e was

doing

+; 'no&led"e o: &ron":!lnessD$en w"ere + %new nature M guilt' of act + ma' secure ac uittal if pro$es on B didn=t%now t"at t"e act was wrong &/c + of >@rong according to t"e principles of reasona&le people

o Porter '1 !!*o B/c of disease of mind incapa&le of reasoning i e no %nowledge of wrongfulness

i e nd &ranc" of >=!ag"ten Culeso "erefore successful M found ! guilt' due to insanit'

+oes not mean wrong in t"e sense of &eing contrar' to t"e lawo Sta leton '1 %#*

,"arged wit" murder of policeman+ pleaded insanit'H,

Standard w"et"er


35/49

>urder ried to argue gross ps'c"o due to lac% of self-control M gross

diminution of emotional feeling in$ol$ed gross diminution ofconscience

But ps'c"opat"s don=t fit into t"e defence of insanit' M t"usresponsi&le under t"e law

o "at=s w"' S > "as &een esta&lis"ed rresisti4le impulse

o ccurs w"en + is una&le to control +=s actions v Bro&n (196 )

o doesn=t e.clude operation of insanit' defence as long as &ased in + of >o +efence doesn=t appl' w"ere + ) aware t"at action=s wrong &ut incapa&le &/c of

disease of mind to pre$ent +=s actions Sodeman '1 !&* murder of girl ,onfessed to murders of 3 ot"er girls also in t"e same wa' Said "e too% girls to t"e same spot and %illed later +efence argued uncontrolla&le impulse a&out t"e fact t"at "e couldn=t

"elp %illing t"em w"en "e too% t"em to t"e spot rosecution said "e was in control w"en "e too% t"em to t"e spot "erefore "e was found guilt' M couldn=t argue insanit' &'

uncontrolla&le impulseelf< nduced nsanit3

o + cannot rel' on insanit' if defect of reason is self-induced to pro$ide impetus to %illo D g f + forms intent to %ill M drin%s to get guts to do it can=t rel' on insanit'

v alla"#er (1943)o nto.ication itself doesn=t permit insanit' &/c doesn=t ) + of >o nl' if into.ication triggers underl'ing + of > can use insanit' defence

v alla"#er (1943)

AUTOMAT SMD.onerates person from lia&ilit' from person w"o didn=t control or direct t"eir actions

?nder doctrine person isn=t responsi&le for in$oluntar' actssue relating to AC

+efence pro"i&ited in case of $oluntar' nto.ication s8 G Pres!m t$on o: %ental Ca ac$ty

rosecution entitled to presume t"at + "ad sufficient mental capacit' to act according to ane.ercise of t"e will

o alconer (199 )o raise A + must raise t"e possi&ilit' t"at +=s actions were not $oluntar'rosecution must pro$e &e'ond a reasona&le dou&t t"at +=s actions were $oluntar'

,ertain p"'sical conditions gi$e rise to it

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@0ampleso ,onsumption of alco"ol M drugs

>@Connor o Sleepwal%ing

7$m$ne (199+)o ,oncussion from &low to t"e "eado Blac% out

alconer (199 )o H'pergl'caemia

!$cke (1903)o Dpileps'

S!ll$van

mpecca&le c"aracter epileptic +uring ar$o tea "ad epileptic fit M in*ured 7=s leg rial ,ourt *udge

o +irected as in Luic% &/c + of >o ,"anged plea to guilt'

n appeal con$iction up"eldo +issociation due to e.ternal stress

alconer 9 /ad:ord /ad:ord '1 (%*

He s"ot e.-wife=s friend 4 times

He &elie$ed e.-wife and friend were in a les&ian affair toget"er He was o&sessed wit" e.-wife and later decided to %idnap "is wife ,ourt said t"at +=s actions were due to an e.ternal and not internal

state of mind A re-trial was ordered co t"e *udge commented on unli%eness and

s"ould "a$e left it up to t"e *ur'As soon as raise argument

o ,ourt ma' agree A &ut not sane A &ut insane Ao +isastrous outcome esp if e g offence ) assault non fatal offence

!$ck (1903)o atient in "ospital e$idence of dia&eteso Assaulted anot"er patiento Hadn=t ta%en food after insulino +efence said going to raise Ao Iudge said "e=d find + guilt' of insanit' M would direct *ur' w/ insanit'o + w/drew defenceo Ce0 Ao @"ere A self-induced not t"roug" n still can=t raise A

?nsan$ty !tomat$sm

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+efence of A confined to sane A+efence of ma' include A if t"e $oluntar' act was caused &' a + of >

2#e B!rden o: Proo:+ifferent B depending on if sane or insane automatism

o Sane results in complete ac uittal+ "as e$identiar' &urden

rosecution must negate A &e'ond reasona&le dou&to nsane results in $erdict not guilt' &' reason of

+ "as B on &alance of pro&a&ilities D$st$n"!$s#$n" Sane ?nsane !tomat$sm

+istinction &etween t"e often rests on w"et"er dangerous &e"a$iour li%el' to recur

+istinguis"ing tests onl' guidelineso Recurrence 8estf mental condition prone to recur s"ould &e considered + of >

Bratty v (1963)o nternal/@0ternal 8est

f mental state is ! DC!A# to + -$- e.ternal s"ould &e classified + of > alconer (199 )

o + con$icted of wilful murder of "us&and w/ s"otgun s"e firedo D$idence of $iolent marriage M se.ual a&use of daug"terso n da' of deat" + "ad se.uall' assaulted 7o + remem&ered not"ing from t"en til found "erself on floor w/

gun ne.t to "er M + dead &eside "ero H,

?p"eld +=s ac uittal+etermined t"at o&*ecti$e facts cited as proof wererele$ant circumstances upon w"ic" *ur' could rel' w"en determining if rs ( suffering from depression @ouldn=t "a$e &een ta%en into account in

determining ordinar' person=s reaction &/cordinar' person not suffering from depression

&*ecti$e factors can &e ta%en into account e g"istor' of $iolence M a&use of c"ildren

o #nsound/sound mind test>ore sop"isticated $ersion of nd test,ategorises


38/49

+ of > considered on t"is test to &e e$idenced &' reaction of an unsoundmind to its own delusions or e.ternal stimuli

/ad:ord (1985) !tomat$sm ?ntoG$cat$on

>@Connor (198 )o H,

+efence of nto.ication could &e raised in relation to an' ot"er office"us it could &e raised to negate >C M AC elements t"at prosecution is

re uired to pro$e+efence could &e raised t"at + was so drun% t"us was incapa&le of acting$oluntaril'

NTOX CAT ON>a*or c"ange to law in !S@ in 1996 wit" t"e insertion of art 11A0 sections 8 A-,ommon law a&olis"ed &' s8 H#aw prior to 1996 in accordance wit" t"e H, decision in =,onnor

o >@Connor (198 )#andmar% decision on into.ication in AustraliaSignificantl' altered position on into.ication at t"e time

re *Connor #aw &ased on 7a e$ski 2Dnglis" case M position*Connor re*ected 7a e$ski

,ourt Ce*ected 7 >urp"' I

o it was surface le$el *udgement/artificial Ce*ected specific M &asic intent

(or 16 'ears law followed *Connor 1996 legislation amendment codification of 7a e$ski

"us 7a e$ski re*ected M resurrectednto.ication not defence to criminal c"arge &ut ma' negate elements of crime if causes condition

inconsistent w/ criminal responsi&ilit'n ma' form &asis of

o lea of A going to AC arguing in$oluntarinesso +efence of insanit' w"ere into.icant "as triggered underl'ing disease of t"e mindo +enial t"at + "ad necessar' >C

B!rden o: Proo:+ &ears e$identiar' &urden of raising issue of automatism+=s e$idence of n s"ould &e reasona&l' persuasi$e &efore determined issue can &e left to *ur'

o S#a& (1981)D$idence=ll &e related to fact of ingesting an into.icant M degree of into.ication

o @"ere + raises t"e n in relation to defence of A in$oluntariness or lac% of >C

3


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+ onl' &ears e$identiar' &urdenrosecution t"en needs to pro$e $oluntariness or >C &e'ond reasona&le

dou&to @"ere + raises n in relation to nsanit'

+ must pro$e on &alance of pro&a&ilities Pos$t$on $n S-

%aFe&sk$ (1900)o !ot $er' important case on t"e surface &ut allowed courts to deal wit" issues t"e'=d

&een wanting to do for a long timeo + got $ drun% consumed $ large amount of alco"olo @"ile drun% assaulted copso (actuall' could &e said not guilt' if into.icatedo n ) defence of capacit' sa's 'ou=re not capa&le of forming necessar' >Co 7a e$skis 7odel

1 +etermine t'pe of offence ntention desired result S2eci ic

2Cec%less ndifference Cec%less !egligence N./ S2eci ic 2Basic

+ecide if into.ication is 5.lu/tary C /;.lu/tary

o f crime is one of specific intent 'ou ma' raise n as a defence regardless ofw"et"er it=s $oluntar' or in$oluntar' minorit' of crimes

o f into.ication was $oluntar' 'ou are pro"i&ited from raising n as defencein court

o f crime is one of &asic intent 'ou are allowed to use n as defenceo 7 did t"is model &/c wanted to stop defendants using $oluntar' n as defence

t"e' wanted to close t"e pro$er&ial floodgates on t"e defenceo ,ourt

f some1 gets so drun% t"at t"e' can=t control t"emsel$es drun%enness was rec%lessHow could t"e' sa' rec%less re0 drin%ing M appl' to conduct

rue notions of criminal lia&ilit' were t"rown out t"e door in fa$ourof a polic' &ased approac"

o Cec%less indifference is an indirect form of intentionrant

ssue0 f $oluntar' n can argue so drun% incapa&le of forming intention to %ill GBHor rec%less indifference re uired for >C

f accepted can &e guilt' of manslaug"ter "us can operate as partial defence

>urder case+ealing wit" t"e 1996 pro$isionsIudge said

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nto.ication a$aila&le in circumstances of intention to %ill or GBH,ourt of Appeal said

Cec%less indifference is a specific crimeelfC

f n self-induced cannot &e ta%en into account s8 +2a f not self-induced can &e ta%en into account s8 +2&

Spec rules re0 n murder f +=s n self-induced murder can onl' &e reduced to manslaug"ter f not + can &e ac uitted s8 D

%utch Coura,eo S8 ,2 + cannot use n w"ere "as &ecome into.icated for


41/49

o ardyoo% $allium

nstead of &/coming calm &/came agitated M e.citedAssaulted some1,"arged/con$ictedAppeal court

$erturned con$iction ,onsumption $oluntar' &ut n was not

o art 11A doesn=t use 7s terminolog' of in$oluntar'o >C

6on


42/49

f 'ou said 'ou responded to duress &/c 'ou were drun% 'ou=ll %ill t"eduress defence &/c ordinar' person not drun%

o Ce0 ro$ocationrdinar' person re0 pro$ocation is not drun%

o Ce0 Self defenceSu&*ecti$e w/ n can &e considered

&*ecti$e $oluntar' n cannot &e consideredSELF 8EFENCE

,rimes 2Self-+efence Amendment Act JJ1 2 n force (e& JJ sections 81 -8 3S81 +efence a$aila&le in accordance wit" circumstances under 81 2 2a -2dS81 go$erning piece of statute

&urden of roofo S819 2/// to s 328 re0 pro$ocationo nce raise S+ prosecution "as &urden to dispro$e S+ &e'ond reasona&le dou&t

S81 2 F DS ( +D(D!,DSo 1 +efending 'ourself or anot"er persono erminate unlawful depri$ation of 'our li&ert' or some1 else=s

D g Eidnappingo 3 rotecting 'our propert' form unlawful ta%ing destruction damage or interferenceo 8 o pre$ent trespass M can ta%e actions to remo$e trespasser

D g Home in$asion@or%place in$asion

o Ce0 23 M 28Self defence not a$aila&le if 'ou "a$e intent to %ill or rec%less as to inflictionof deat"S"ould &e 'our propert' &ut still uestiona&le t"us if $isitor to friend=s"ouse ma' use t"is

'atar ynsk$ o Howie I sole *udge

@ent t"roug" "istor' of t"e new legislation points of law su&sumed

'ome nvasions +ct o Dna&les some1 in "ome in$asion to %ill M &e ac uitted of ito Cefers to 7unroe

#egislation /// to a&o$e act Work lace nvasions +cto ntroduced in JJ1o Bot" t"e acts incorporated t"e new amendment

Luotes in *udgement from nd reading speec" of t"e Act in parliament &' t"eminister

>inister sa's new pro$isions effecti$el' a&olis" t"e ,# !o specific pro$ision li%e s8 H w"ic" a&olis"es ,# re0 into.ication !o specific statutor' interpretation a&olis"ing ,# &ut its > # D+

8


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#aw prior to JJ on S+ go$erned &' Fekevich F no longer applies

F and C no longer appl'Approac" ta%en1 S?BID, 7D DS

s t"ere is a reasona&le possi&ilit' t"at t"e accused &elie$ed t"at "is or"er conduct was necessar' in order to defend "imself or "erself

Celates to &elief of t"e accused M state of mind ,onsider accused=s c"aracteristics +id accused &elie$e t"e' were under attac% ro&lem in case of D w"et"er c"aracteristics of into.ication

included 2 Conlan sa's 'es nto.ication is allowed in >C not AC ,ompletel' su&*ecti$e otentiall' remo$e


44/49

o "us not as muc" weig"t as appeal/H, *udgementmportant element of facts if accused is into.icated at time of offence

uts person in different circumstances to ot"er defencesD g insanit' goes to >C -$- S+ w"ic" goes to t"e actual lawfulness of t"e offence more of anacademic position practical application is uestiona&le

"us f sa' S+ effecti$el' sa'ing t"at t"e conduct was ! unlawfulAccused ma' rel' on "onest &ut into.icated mista%e

o osition re0 so&er reliance on mista%e well est 7or,an?sed in &eckford 2Iamaican

-ladstone Williamo + found people struggling on t"e groundo erson "ad stolen &ag

o A 2&ig man c"ased M &eat 2small man t"iefo + con$ictedo But on appeal

,ould rel' on mista%en &elief &/c accused &elie$edneed to inter$ene

&eckford B "olding people "ostage Celeased "ostages B t"oug"t 7 "ad weapon 7 mo$ed

B t"oug"t 7 was going to use weapon B s"ot 7 dead ,on$iction up"eld in Iamaican Supreme ,ourt Luas"ed at ri$' ,ouncil appeal relied on 7or,an

Conlan ( S-)o ,an rel' on S+ for "onest &ut unreasona&le circumstances e$en if into.icationo C sa's can rel' on into.ication for o&*ecti$e test

8URESSCare defence

8hreats of immediate death or serious personal violence? so ,reat as to over4ear the ordinar3 po$er of human resistance? should 4e accepted as a ustification for acts $hich other$ise $ould4e criminalB Where the e0ercise of duress is availa4le? it must 4e clearl3 sho$n that theoverpo$erin, of the $ill $as operative at the time the crime $as actuall3 committed? and? ifthere $ere reasona4le opportunit3 for the $ill to reassert itself? no ustification can 4e found inantecedent threats.

+- v Whelan (1 =") 7urna,han ; issue0 e.tent to w"ic" it s"ould &e defence #aw &ased on law=s compassion on + faced w/c"oice of e$ils "arm due to t"reat of commission of crime+uress communication of t"reat in words and/or actions

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Aspects of mitigationSupport for a&olis"ing t"ese as defences M esta&lis"ing as mitigating factors

,onsidered o&*ecti$el'o ,an consider c"aracteristics of accused 2not su&*ecti$eo >a' include as c"aracteristics of ordinar' person

B!rden or Proo: o f + succeeds in defence ac uitted of all c"argeso + must satisf' e$identiar' &urden M once satisfiedo rosecution must negati$e &e'ond reasona&le dou&t

Sco e o: De:enceo A$aila&le for most offences including manslaug"ter B? !

>urder &ro$n (1 ! )

7connell (1 GG) o4iter 2not &inding accessor' to murder can rel' onduress lements o: t#e De:ence

8hreatso +eat" and GBH to 'ourself someone connected to 'ou0 'urle3o #awful t"reats e g steal or =ll %ill 'ouo mprisonment0 :a$renceo orture0 -oddard v *s4orneo Harm to a t"ird part'0 +4usafiah

@ould person of ordinar' firmness 'ield to t"is t"reat 2 BID, 7D-#eelan

o "reat must &e imminent 2 BID, 7Do f t"ere=s an a$enue for escape M its possi&le to do so M 'ou don=t ta%e ad$antage of

it t"en unreasona&le appre"ension M +D(D!,D (A #So "reat must induce 'ou to carr' out crimeo ,rime can=t &e murder or an' aspect of it

+enied defence of duress if t"reat arises w"ere *oined group or gang to carr' out offenceo $t atr$ck

CAo S#e ard

o S#ar en$ol$ed in gang of ro&&ers

@anted out M leader said =ll &low 'our "ead off if 'ou lea$e,ourt

,an=t rel' on duress B/c %new possi&ilit' w"en got into gang

@ould ordinar' person "a$e 'ielded to t"reato +oes it mean possi&ilit' or pro&a&ilit'o Bro&n

Supports possi&ilit'

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o *!sa:$a#Supports pro&a&ilit'

o an pro&a&ilit' is li%el'rdinar' person @ ?#+ "a$e 'ielded li%e accused

!rleyo "e "elped escaped prisoners &/c t"e' "eld "is wife "ostageo leaded duresso ,ourt said

He "ad reasona&le opportunit' to e$ade t"e t"reat and didn=t"us c"arged as an accessor'

But dissenting *udge said He s"ould "a$e &een a&le to argue duress and discussed t"e following

tests to esta&lis" w"et"er its duress0o Serious t"reat if act not doneo A person of ordinar' firmness would "a$e 'ielded to t"reat

2 &*ecti$e testo "e t"reat was present and imminent 2w"et"er 'ou could "a$e

a$oided t"e t"reato Accused reasona&l' &elie$ed t"reat would &e carried outo Actuall' assisted a crimeo ,rime was not a murdero "e accused didn=t &' t"eir own fault e.pose t"emsel$es to t"e

t"reat 2e g &eing in a gang $oluntaril' and t"en tr'ing tolea$e

o Accused "ad no means to a$oid t"e t"reat"e prosecution can negate an' of t"e a&o$e t"reats"e o&*ecti$e test states t"at0

o An a$erage person of ordinar' fitness of mind of a li%e age and se. in li%ecircumstances would "a$e done t"e actsK and

o "ere was no reasona&le wa' of a$oiding t"e t"reats 2 .a&rence+uress is a ,omplete +efence

&attered Women 3ndromeo 'ont$nnen v /!nFanF$c '1 1* %! A Cri6 R ! 0 women were used as o&*ects t"at were su&*ect to $iolence and false

imprisonment7 t"reatened t"em and made t"em lure anot"er woman for se.ual fa$oursHe made t"em %eep "er D$en w"en 7 was not "ome t"e' %ept woman in"ouse and didn=t escape t"emsel$es,ourt first said no duress e.isted &ecause t"e' "ad t"e c"ance to escapeB@S i e continuing M imminent t"reat was later esta&lis"ed and a new trialordered

Customar3 :a$

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o -arren, Coom*es and 2!cker '1 &* (( A Cri6 R 0( 0A&originals groups w"o were "a$ing inter-tri&al pro&lems

Said customar' law compelled t"em to punis" $ictim co if t"e' didn=t t"ent"e' would &e punis"ed under customar' law and t"erefore argued duressAt first instance duress was esta&lis"ed B?

"en found t"at +=s wanted to do it and t"erefore guilt' 2actuall' assisted acrime

NECESS TY !ecessit' at time of offence it was necessar' for + to do so#i%e duress &ut relates to circumstancesCare defence

Aspects of mitigationSupport for a&olis"ing t"ese as defences M esta&lis"ing as mitigating factors,onsidered o&*ecti$el'

o ,an consider c"aracteristics of accused 2not su&*ecti$eo >a' include as c"aracteristics of ordinar' person

!eed a t"reato >ust &e of sufficient %ind

>ust ta%e steps to relie$e 'ourself if it is reasona&le to do soFour response to t"reat must &e according to Wheelan

o Accused must reasona&l' appre"end t"at t"e t"reat mig"t &e carried outf 'ou *oin a gang effecti$el' t"e t"reat is self-induced

o $t atr$cko S#e ardo S#ar e

&*ecti$e testo @ould ordinar' person of ordinar' resol$e 'ield to t"e t"reato @/ t"e e.ception of certain inclusions of personal c"aracteristics of accused

defence is o$erall considered o&*ecti$el' Bro&n '1 (&* suggests possi&ilit' w"ere *!sa:$a# suggests pro&a&ilit' !ot a lot of Australian law more Dnglis" &ut &ot" "a$e de$eloped differentl'Dnglis"

o +uress of circumstances-#$te (1980)

+istrict court case re0 speeding + was speeding D.cuse dri$ing son to "ospital &/c "ad massi$e ast"ma attac% He could rel' on it M court uas"ed con$iction Sort of necessit'

!ecessit' ma' &e c"oice &etween e$ilso D!dley Ste #ens (1884)

n$ol$ed in s"ipwrec%

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N people sur$i$edGot in life &oat

>iddle of ocean w/ little water or foodGot rain water M some fis" insufficient to sur$i$e+ecided to draw lots to decide w"o to %ill M eatSpo%e to Broo%s w"o was in c"argesaid "e didn=t want an' partCest of t"em decided on a wea% &o' called ar%erBroo%s and t"e ot"ers ate "im t"e ne.t da'But Broo%s ne$er %illed ar%er e$idence s"owed t"at t"e' would "a$e diedot"erwiseGot sa$ed M came &ac% to Dngland as "eroes

"en disco$ered t"e' sur$i$ed &' eating t"e ca&in &o'+MS argued necessit'Iudge

ffence at ,# But not a$aila&le to murder Sentenced to deat" &/c con$icted of murder

Cecei$ed ro'al clemenc' M onl' spent 6 mont"s in *ail &/c "ad lot of pu&lic support &efore people found out "ow sur$i$ed &ut

lot of it still carried on afterBroo%s was ne$er c"arged as "e was used as a witness against +MS

.o!"#mano inmates t"reatened "imo escaped- said "e t"oug"t "e HA+ to escape in order to sa$e "is lifeo ,ourt

Said t"at it wasn=t a good enoug" reason to escapeo Sets out 3 elements needed for defence of necessit'

Act must "a$e &een done to a$oid conse uences t"at would "a$e inflicted"arm or accused t"ose "e/s"e meant to protect

"reats incl deat" serious p"'sical "arm se.ual assault or suicide !o re uirement t"reats &e e."austi$e "reat must "a$e e.erted immense pressure on accused due to

o mminence of t"reat occurringo Gra$it' of t"reatened "arm w/o an' urgenc' in$ol$ed

Accused must &elie$e possi&ilit' of imminent t"reat/peril "reat can &e

o Ceal in t"at it was capa&le of &eing demonstratedo&*ecti$el' to "a$e e.isted

o maginar' i e "onestl' M reasona&l' B? mista%enl' &elie$ed &' + to e.ist

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"reat must &e suc" t"at ordinar' person must &e capa&le of 'ieldingin t"e wa' t"at + did

>ust &e lesser of e$ils i e peril must &e lesser BID, 7D DS

o rdinar' person would "a$e decided t"at commission of crimelesser e$il t"an peril

+uress M !ecessit' Care defences Alwa's difficult to get successful ac uittal B/c an' e$idence of unreasona&leness on t"e part of t"e accused is

negati$el' $iewed *ort$on

o

S o A&ortions are unlawful unless t"e' are necessar' ,ourt "as a rela.ed $iew on w"atis necessar' Dav$dson [1 & " 5R &&0- issue was w"et"er it was necessar' to

preser$e t"e life of a woman &' a&orting t"e &a&' w"o would "a$e died due to t"e pregnanc' roportionalit' was found to &e fair enoug" in t"at to sa$e "er life wasmore important

Str$ct .$a*$l$tyo rrepara&le "arm e g t"at a woman mig"t gi$e &irt" in t"e car unless 'ou speed to t"e

"ospitalo n strict lia&ilit' offences necessit' is a$aila&le -#$te '1 (0* NS$LR )#0 0 son

was an ast"matic and rus"ed to "ospital "erefore accepted as necessit'

criminal law notes cases

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