Criminal Law: Elements of Crimes and Defenses, Exams of Criminal Law

Download Criminal Law: Elements of Crimes and Defenses and more Exams Criminal Law in PDF only on Docsity! LAWS1022 Criminal Laws Summary Sheet Murder S 18 of the Crimes Act makes murder an offence. To make out this offence, the P must prove BRD the following elements (Woolmington v DPP [1935]): Actus Reus 1.   Voluntary act/omission 2.   Caused the death (Ryan) Mens Rea 1.   D had the intention to cause death or GBH Reckless Indifference – s 18(1)(a) Actus Reus 1.   D’s voluntary act caused the death (Ryan) −   Voluntariness is presumed, and if any defences are raised, onus of proof is on the defence −   Doesn’t matter if the precise method of death does not eventuate (Royall) Mens Rea 1.   D was recklessly indifferent to human life – D foresaw the probability of death (Royall) but proceeded nonetheless indifference to the consequences is guilty of murder where death results (Crabbe) −   Foreseeability of risk of death is subjective (Pemble) – indifference to known probable consequences −   The risk must be ‘substantial’, a ‘real and not remote’ chance regardless of whether it is less or more than 50% (Fuare) – not a mere possibility −   Actual knowledge or foresight that actions would probably cause death: −   Imputed knowledge not enough, but possible scope for wilful blindness (Crabbe) −   Murder by reckless indifference to human life is a specific intent and thus, evidence regarding intoxication will be taken into account −   Reckless indifference to GBH = manslaughter (Solomon) Constructive Murder S 18(a) of the Crimes Act makes murder occurring during or immediately after the commission or attempted commission of a felony punishable by imprisonment of 25 years. To make out this offence, the P must prove BRD the following elements (Woolmington): Actus Reus 1.   Voluntary act (doesn’t matter if accidental) 2.   Caused the death, during or immediately after the commission of a felony punishable by imprisonment of 25 years (Ryan) −   The felonious conduct must have involved violence or danger to some person (Ryan) −   No need for a casual link between the felony relied upon and the danger itself, or proof of malice beyond the death itself (Munro) Mens Rea 1.   Intent to commit the base offence only needs to be proved by the P (Munro) −   S 33 – wounding with intent cause GBH −   s 110 – breaking + entering a dwelling-house + assaulting with intent to murder −   s 98: robbery with arms and wounding (Ryan – actual wounding). If the show of force was after the offence of armed robbery, then it couldn’t satisfy the requirements for robbery with arms and wounding Manslaughter by an Unlawful and Dangerous Act S 18 of the Crimes Act makes manslaughter an offence. Manslaughter is undefined in statute; thus the common law provides two categories for manslaughter: manslaughter by an unlawful and dangerous act and manslaughter by criminal negligence. To make out this offence, the P must prove BRD the following elements (Woolmington): Actus Reus 1.   Was the act a voluntary and intentional act? (Martin) 2.   Was the act unlawful? (Wilson) −   Act must be criminal, as opposed to merely tortious −   Act must be ‘unlawful itself – unlawful otherwise than by reason of the fact that it amounts to a breach’ (Pullman), act must cause an appreciable risk of injury on part of the reasonable person in the accused’s position −   Omissions cannot constitute as unlawful acts, even if deliberate. Will be manslaughter by criminal negligence (Love) −   Administering drugs as unlawful acts = narrow approach adopted by Australian authorities, not enough to prove accused administered the drug to the deceased and encouraged her to take it – she needed to have her ‘will overborne’, and he had to be in a position of authority and control (Wilhelm) 3.   Was the act dangerous? −   Did the act, from the the standpoint of a reasonable person in the accused’s position, carry with it an appreciable risk of serious injury? (Wilson, Holzer) −   Reasonable person = + same age as the accused (DPP v Ty), same position as accused (Cornelissen). o   Jury considers the physical features of situation + actions of accused, don’t extend to mental/emotional state (Willis). 4.   Did any circumstances exist to justify the act? −   Acts performed in self-defence is not unlawful (Cornelissen) −   “Defence of rescue” (Downs) Mens Rea 1.   Intent to commit the act which is unlawful and dangerous, not accidental (Newbury) Manslaughter by Criminal Negligence S 18 of the Crimes Act makes manslaughter an offence. Manslaughter is undefined in statute; thus the common law provides two categories for manslaughter: manslaughter by an unlawful and dangerous act and manslaughter by criminal negligence. To make out this offence, the P must prove BRD the following elements (Woolmington): Actus Reus 1.   Act must be voluntary (Nydam) 2.   Act caused death Mens Rea 1.   Whether the reasonable person would have appreciated a probability of death/GBH, and 2.   Whether the conduct of the accused was ‘wickedly negligent’ - fell well below that of the reasonable person to such a degree that it merited criminal punishment (Lavender) −   Reasonable person = test not entirely subjective as the person is ‘clothed’ with the characteristics of the accused and his knowledge of the surrounding circumstances (Lavender) but does not extend to the accused’s opinion −   No defence of HRMF (Nydam) Homicide by Omission S 18 of the Crimes Act makes homicide by an omission an offence. It is read down in law as the common law position is that although murder/manslaughter can be committed by omission, there must first be a duty to act. To make out this offence, the P must BRD make out the following elements (Woolmington v DPP [1935]): The accepted test is that stipulated in Taktak (approved in Taber). The following three requirements must be satisfied for an omission to constitute sufficient actus reus for manslaughter by criminal negligence: Actus Reus 1.   There was a duty of care owed by the D to the deceased (Stone and Robinson). A duty of care is owed pursuant to the DoC test stipulated in Jones v USA: −   Where statute imposes a duty −   Where one stands in a certain status relationship to another (element of control: Burns) −   Where one assumed a contractual duty of care for another −   Where one voluntarily assumed the care of another, and so secluded the helpless person as to prevent others from rendering aid 2.   The omission alleged was the proximate cause of the deceased's death. c.   any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). −   GBH doesn’t require injuries to be permanent but does require injury is a really serious one (Haoui) −   Bodily disease → offence doesn’t require force (Aubrey) −   → defence under s 79(3) if the court is satisfied that the D ‘took reasonable precautions to prevent the transmission of the sexually transmitted infection’ −   → Public Health Act 2010 s 52 makes it an offence for a person suffering from a scheduled medical condition who is in a “public place” and fails “to take reasonable precautions against spreading the condition” + s 79 makes it offence applying to sexual intercourse by person who know that they suffer from a sexually transmitted infection and has sexual intercourse with another unless they inform of risk of contracting an infection and person voluntarily agreed to accept risk Mens Rea 1.   Intention to occasion GBH Reckless GBH or wounding S 35 of the Crimes Act makes reckless GBH/wounding an offence. The P must prove BRD the following elements (Woolmington): S 35(1) Reckless GBH – in company Actus Reus 1.   A person in the company of another person(s) 2.   Unlawful forceful conduct 3.   Conduct causes GBH −   Defined in s 4(1): d.   the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and e.   any permanent or serious disfiguring of the person, and f.   any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). −   GBH doesn’t require injuries to be permanent but does require injury is a really serious one (Haoui) Mens Rea 1.   Reckless as to causing ABH −   Definition of ‘recklessness’ → Blackwell (2011) has more recently established a higher test for determining what constitutes ‘recklessness’ than Coleman (2009) whereby ‘foresight’ was the requirement → ‘accused must have realized that the harm may possibly have been inflicted upon victim from his actions’ −   Subjective test - where the consequences are considered even if not desired (MacPherson) S 35(2) - Reckless GBH Actus Reus 1.   Unlawful forceful conduct 2.   Conduct causes GBH Mens Rea −   Refer to above recklessness S 35(3) Reckless wounding – in company Actus Reus 1.   A person in the company of another person(s) 2.   Unlawful forceful conduct 3.   Conduct causes wounding −   ‘wounding’ is defined as “the infliction of an injury which breaks the continuity of the skin” (Shepard), breaking/cutting of the interior layer of the skin and the breaking of the outer layer is not sufficient (Howie & Johnson) −   seriousness of wounding considered in sentencing Mens Rea −   Refer to above recklessness S 35(4) - Reckless wounding Actus Reus 1.   Unlawful forceful conduct 2.   Conduct causes wounding −   ‘wounding’ is defined as “the infliction of an injury which breaks the continuity of the skin” (Shepard), breaking/cutting of the interior layer of the skin and the breaking of the outer layer is not sufficient (Howie & Johnson) −   seriousness of wounding considered in sentencing Mens Rea −   Refer to above recklessness S 35(5) – If the jury is satisfied that the accused lacked the necessary actus reus/mens rea but is satisfied that the the accused committed another offence within Division 6 of the Crimes Act, the jury may acquit the accused of the offence charged and find him/her guilty of another offence. Causing GBH [causes injury without further specific intent of GBH] S 54 of the Crimes Act makes assault occasioning GBH an offence. To make out this offence, the P must prove BRD the following elements (Woolmington): Actus Reus 1.   Unlawful or negligent act/omission 2.   Act/omission causes GBH −   Defined in s 4(1): a.   the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and b.   any permanent or serious disfiguring of the person, and c.   any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). −   GBH doesn’t require injuries to be permanent but does require injury is a really serious one (Haoui) Mens Rea 1.   Intention to effect unlawful contact/omission causing GBH 2.   Negligently effects unlawful contact/omission causing GBH −   Degree of negligence required is ‘gross negligence’ akin to that require for manslaughter by criminal negligence (D [1984]) −   Conduct fell well below that of the reasonable person to such a degree that it merited criminal punishment (Lavender) Sexual Assault S 61J(1) of the Crimes Act makes sexual assault an offence. To make out this offence, the P must prove BRD the following elements (Woolmington): Actus Reus 1.   Have sexual intercourse −   Definition of ‘sexual intercourse’ contained in s 61H: a.   sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or b.   sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or c.   cunnilingus, or d.   the continuation of sexual intercourse as defined in paragraph (a), (b) or (c). 2.   Without consent −   Definition of ‘consent’ contained in s 61HA(2): "consents" to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (Clark) S 61HA(4) Negation of consent A person does not consent to sexual intercourse: (a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or (b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or (c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or (d) if the person consents to the sexual intercourse because the person is unlawfully detained. (5) A person who consents to sexual intercourse with another person: (a) under a mistaken belief as to the identity of the other person, or (b) under a mistaken belief that the other person is married to the person, or (c) under a mistaken belief that the sexual intercourse is for health or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief. Types of ‘mistake’ (GD Woods): 1)   Mistake as to the nature of the sexual act: if person doesn’t understand nature, cannot consent to it (Flattery) + s 61H5(c) 2)   Mistake as to identity of person 3)   Mistake as to qualification or aspect of the character of other party (Papadimitropoulos) (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or (b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (Gillard) (c) if the person has sexual intercourse because of the abuse of a position of authority or trust. (7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. (8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse. – non-exhaustive Mens Rea 1.   Intent to engage in conduct 2.   Have knowledge of the circumstances of non-consent −   Concept ‘knowledge’ expanded on in s 61HA(3) to include recklessness: Person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. −   Inadvertant recklessness → failure to advert at all to the possibility that the complainant is not consenting, means that the accused is reckless as to whether the other person consents (Kitchener) −   Does not even consider whether other person is going to consent (Banditt) −   Advertant recklessness → accused adverts to the possibility of consent but ignores it + where accused is so bent on gratification and indifferent to the rights of the victim as to completely ignore consent (Tolmie) −   Assault must have a sexual connotation → part of the body touched or doing touching relevant (Harkin) −   Conduct must be directed/towards the victim such that they are aware or apprehends the indecent assault (Johnson) BUT ‘towards’ can extend to where the act incited is not done in the physical/audible presence of accused or in physical presence of each other (DPP v Eades) 3.   Committed in the circumstances of ‘indecency’ – refer to above 4.   Committed in the “circumstances of aggravation” OR in the presence of other persons −   S 61M(3) Circumstances of aggravation: (a) the alleged offender is in the company of another person or persons, or (c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (d) the alleged victim has a serious physical disability, or (e) the alleged victim has a cognitive impairment. 5.   Without consent Mens Rea 1.   Intend to effect conduct/act 2.   Knowledge of non-consent OR reckless as to whether complainant consented (Bonora) → failure to give any consideration as to whether they were consenting (Fitzgerald v Kennard) Defence – HMRF defence as to question of age available •   Offence divided according to the age of complainant → s 61M(1)liable for imprisonment for 7 years + s 61M(2) under 16 years imprisonment for 10 years Act of indecency S 61N of the Crimes Act makes an act of indecency an offence. To make out this offence, the P must prove BRD the following elements (Woolmington): Actus Reus 1.   Intentional and voluntary indecent act 2.   Act ‘with or towards’ a person under (s 61N(1)/over (s 61N(2) age of 16 OR 3.   Incites a person under/over 16 to an act of indecency with or towards a person (Fairclough v Whipp) −   ‘with’ another person requires 2 participants in indecent act while ‘towards’ another is committed by a person who act indecently towards a non-participant (Chonka) Mens Rea 1.   Intend to effect conduct/act 2.   Knowledge of non-consent OR reckless as to whether complainant consented (Bonora) → failure to give any consideration as to whether they were consenting (Fitzgerald v Kennard) Aggravated act of indecency S 61O of the Crimes Act makes an act of indecency an offence. To make out this offence, the P must BRD the following elements (Woolmington): Actus Reus 1.   Intentional and voluntary indecent act 2.   Act ‘with or towards’ a person under (s 61O(1)/over (s 61O(2) age of 16 OR 3.   Incites a person under/over 16 to an act of indecency with or towards a person (Fairclough v Whipp) −   ‘with’ another person requires 2 participants in indecent act while ‘towards’ another is committed by a person who act indecently towards a non-participant (Chonka) 4.   Knows act of indecency is being filmed for the purpose of the production of child abuse material (s 61N(2A)(b) (no circumstance of aggravation) (turn to section for definitions) 5.   Committed in the “circumstances of aggravation” −   S 61O(3) Circumstances of aggravation: (a) the alleged offender is in the company of another person or persons, or (c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (d) the alleged victim has a serious physical disability, or (e) the alleged victim has a cognitive impairment. Mens Rea 1.   Intend to effect conduct/act 2.   Knowledge of non-consent OR reckless as to whether complainant consented (Bonora) → failure to give any consideration as to whether they were consenting (Fitzgerald v Kennard) Defence – HMRF defence as to question of age available •   Offence is divided according to age of complainant → under 16 liable for imprisonment for 5 years, of/above 16 for 3 years, under 10 liable for 7 years. Dishonest Acquisition Larceny The offence of larceny is a common law offence as s 117 of the Crimes Act merely stipulates the maximum penalty of 5 years’ imprisonment. To make out this offence, the P must prove BRD the following elements (Woolmington): Actus Reus (as established in Ilich) 1.   The property is capable of being stolen −   Restricted to chattels −   Property must have a physical form that can be “taken and carried away”, even if physical nature of property is slight (e.g. gas from pipe) (White) −   Choses in action (intangible forms of property e.g. removing money from bank) cannot be stolen (Croton) 2.   The property is in the possession of a person other than the D −   ‘Possession’ comprises a degree of physical control of property + intention to maintain that physical control −   Mere control of property without intention to control or mere intention to control without actual/prior control of property not forms of property right −   Possible to ‘steal’ property from person who it unlawfully in their possession (Anic, Stylianou and Suleyman) −   Constructive possession → property found on person’s enclosed land considered theirs even if had no knowledge of it (Williams v Phillips) −   Less than actual possession → sufficient e.g. possession of an employee/servant (Hibbert v McKiernan) 3.   The property is taken and carried away by the D (asportation) −   Very minimal actions sufficient to prove → ‘any movement of goods…removal of property from spot where originally placed’ (Wallis v Lane) −   Mere intention without asportation insufficient (retaining money obtained by mistake) (Potisk) 4.   Without the consent of the possessor −   ‘without consent’ does not mean contrary to or against their will, but without consent (Middleton) −   Lack of positive intent (whether person had capacity to provide consent) (Kennison v Daire) •   Exceptions: Implied license – if possessor only permits temporary custody of property through a license, but property deal with in breach of license, an asportation without consent occurred −   License revoked/breached where there is intention to damage goods/not pay for them (Kolosque v Miyaski) −   When lost property found, prior possessor deemed to consent to finder taking possession in order to return them (Thurborn) Mens Rea 1.   Taken with an intention to permanently deprive −   Permanent deprivation and to take over complete control of property, not for a limited time (Holloway) −   If no intention, alternate charge of trespass available (Phillips and Strong) −   No defence of intention to return property (Foster) or conditional return (Sharp v McCormick) −   Changing the nature of property constitutes intention to effect permanent deprivation (Weatherstone) 2.   Taken without any claim of right to the property −   Evidentiary burden to raise claim placed on the defence (Fuge) −   Must be a legal entitlement, not a moral one −   Subjective test (Langham) −   Definition of a claim of right: (Fuge) 1)   A belief as to the right to property/money in the hands of another 2)   A genuinely held belief 3)   Must be a legal entitlement, not just a moral entitlement 4)   Claim must relate to the right to possess the property, not solely to the right to use certain means to recover it 5)   Claim must extent to all of the property taken and not just to some of it 6)   Case for persons charged as accessories, must be a genuine belief claim by the principle offender in order to exculpate accessory 7)   Crown had burden of negativiting claim of right when it’s sufficiently raised on evidence o   But claim of right ‘doesn’t extent to the manner in which the disturbance of the existing possessory situation is affected’ (Mazzzara) 3.   Taken fraudulently (dishonestly) −   Courts held that ‘fraudulently’ and ‘dishonesty’ are interchangeable terms −   ‘Dishonesty’ has an everyday meaning and a moral basis (Feely) −   Objective test ‘current standards of ordinary decent people’ and subjective test ‘known by the accused to be dishonest according to standards of ordinary people’ (Gosh) •   Basic intent offence → self-intoxication not taken into account (s 428D(a)) but if self-induced MAY be taken into account (s 428D(b) Robbery S 94 of the Crimes Act makes robbery an offence. To make out this offence, the P must prove BRD the following elements (Woolmington): Actus Reus 1.   Must be from an actual person −   Extended to situations where ‘victim has sufficient care or possession of goods to allow Court to say that constructively the goods were taken in his presence’ (Smith v Desmond) −   Doesn’t have to take property literally from person’s hand → constructive possession sufficient (Delk) −   Pick-pocketing and bag snatching are stealing from the person (s 94 – Delk) 2.   Accused uses or threatens the use of force to obtain the foods before or at the time of taking −   Force must of such a nature as to show that it was intended to overpower the party robbed, and prevent his resisting, not merely to get possession of property (Gnosil) −   extended to situations where ‘victim has sufficient care or possession of goods to allow Court to say that constructively the goods were taken in his presence’ (Smith v Desmond) 3.   Violence used/threatened must be directed at the person, not merely the property −   If victim accidentally hurt when D taking property, not robbery (Gnosil) Mens Rea 1.   Same as larceny 2.   Intention to use violence Defence – Claim of Right •   Basic intent offence → self-intoxication not taken into account (s 428D(a)) but if not self-induced MAY be taken into account (s 428D(b) Breaking and entering offences included in notes Receiving stolen property S 188-189 of the Crimes Act creates offences of receiving, disposing of or attempting to dispose of stolen goods, knowing them to be stolen. To make out this offence, the P must prove BRD the following elements (Woolmington): Actus Reus 1.   Property is stolen 2.   Received/disposing of the property Complicity Joint Criminal Enterprise The law of complicity can be invoked to extend criminal liability to persons other than the primary actor in the situation of JCE. JCE occurs where 2 or more persons agree to commit an offence, but the actual acts which constitute the actus reus were only carried out by one or some of the people. All persons are held liable for the crime. McEwan, Robb and Dambitis established the elements the P must prove BRD (Woolmington): Actus Reus 1.   Accused reached an agreement/understanding with one or more persons to pursue a JCE that remained in existence at time offence committed −   Definition for agreement: ‘an unspoken understanding or arrangement amount to an agreement’ (Tangye) −   Agreement doesn’t have to be reduced to writing/formality, JE simple means that people are ‘acting together of a common mind and with a common aim’ (Kanaan) −   Too spontaneous events that unfolded so quickly insufficient to constitute an agreement (Wellgreen) 2.   Accused participated in that joint enterprise some way −   Mere presence insufficient −   Presence must ‘amount to encouragement or assistance’ (Chishimba, Makasa, Muleng) −   Proof that accused was a party to the agreement did not depend upon proof that he had engaged in any particular conduct at scene (Huynh, Duong and Sem) −   If co-accused not present at time of party commits crime, P need to provide ‘evidence of events, other than those pertaining to the offence itself, for proof of existence and scope of agreement’ (Sever) 3.   In accordance with agreement, one or more parties performed all of acts necessary to commit offence Mens Rea 1.   At time of entering into agreement, accused had state of mind required for commission of offence −   Only actions of group attributed to all members who are party to the agreement, not the state of mind of persons who carries out the actions (McEwan, Robb and Dambiti) Defence – D was an ‘innocent agent’ or a non-responsible party e.g. child, mentally ill person or persons under duress (Bourne) + partial/complete defences can still apply depending on specific/basic intent offence Withdrawal from a JCE •   To withdraw effectively from JCE (Tietie): 1.   Withdrawal must be complete 2.   Withdrawal must be timely 3.   Must communicate withdrawal to others 4.   Must do what reasonably he can to try to dissuade others from committing the crime •   If crime already begun, must countermand their actions or take action ‘to undo the effect of his previous encouragement/participation’ → if not withdrawal is not timely •   After communicating their withdrawal, accused honestly believed that others wouldn’t go ahead and commit crime, no preventive steps required (Truong) •   What a person must do by way of withdrawal might depend on what role it was anticipated they would play in crime → more D has done by way of planning, more likely required by way of withdrawal (Sully; Truong) Extended joint criminal enterprise There are some circumstances it will be appropriate for the prosecution to simultaneously run arguments based on joint criminal enterprise and extended joint criminal enterprise to secure an adequate conviction (Jacobs and Mehajer) The law of complicity can be invoked to extend criminal liability to persons other than the primary actor in the situation of extended JCE. Extended JCE occurs where during the course of a JCE, one or more members commit an additional crime that was not in the original agreement, therefore, other members may be held liable for all foreseeable additional offences. Mens Rea 1.   Recklessness as to foreseeability of crime – accused must have contemplated the possibility of a different crime occurring (subjective test) (McAuliffe and McAuliffe) −   Accused must have foresight of actus reus and mens rea of additional crime −   If did not foresee elements, D will be convicted of a lesser crime (McAuliffe and McAuliffe) → secondary offender does not have to be convictd of the same crime as primary offender (Nguyen) −   Accused need not have foreseen the method of the crime, as long as he saw the possibility of harm of that magnitude (Keenan) Policy issues •   Kirby J points out the inconsistency in the law when the test for the secondary offender (foresight of possibility) is lesser than the test for the primary offender (elements of the crime). •   In Clayton, Kirby J noted the conceptual and practical difficulties with the overlap and inconsistency between the doctrines. “The unreasonable expectation placed upon Australian trial judges... to explain the idiosyncrasies of differential notions secondary liability to a jury is something that should concern this court... The law should not be as unjust, obscure, disparate and asymmetrical as it is.” Accessorial liability The law of complicity can be invoked to extend criminal liability to persons who is not involved in the JCE through the doctrine of accessorial liability. To be held liable for a crime under accessorial liability, the P must prove BRD the following elements (Woolmington) Actus Reus Principal in the second degree (Osland) 1.   The accused was present in the commission of the crime 2.   The accused aided, abetted, counselled or procured the crime (Phan; Clarkson) −   ‘aiding or abetting’ = assistance/encouragement to main offender at scene of crime −   Mere acquiescence/assent to crime insufficient, must be proof that principle in 2nd degree was linked in purpose with primary offender committing crime (Phan) −   In limited situations, silent amounts to acquiescence and consent if it is linked in purpose with primary offender and amounts to a degree of encouragement (Russell) −   Acts e.g. expressions/gestures intended to signify approval (Beck) −   Conduct must merely be communicated/offered to primary perpetrator (Lam) −   Offender does not have to be influenced by assistance or aware it it (Lam) −   P does not have to prove specific acts of assistance (Annakin) −   Distinction between a neutral and guilty presence at scene is for jury to assess (Beck) Accessory before the fact 1.   Accused took part in preliminary stages of crime 2.   Aided, abetted, counselled or procured but not present when crime committed −   Assistance must have ben in presence of offender, but need not have influenced him (Lam) −   ‘counselling or procuring’ = participating in preparation or planning stages but not execution of crime Mens Rea 1.   Intention to ‘aid, abet, counsel, or procure’ the crime (Giorgianni) −   Not necessary for P to prove D intended to assist crime in precisely way it was carried out by principal, “of the type” sufficient (Bainbridge) 2.   Knowledge of essential facts which constitute the offence (Stokes and Difford) −   Desire for crime to actually be committed is irrelevant (National Coal Board v Gamble) −   For murder - enough that he knew/believed that the principal must commit assault with an intention of causing victim serious injury (Liakiardopoulos) •   Withdrawal same as for JCE Assistance after the commission of a crime It is an offence to render assistance, after the event, to a person who has a committed a crime. Actus Reus 1.   Acts of comfort or assistance to offender (Barlow) −   Mere enjoyment of proceeds of crime insufficient but if accused benefited AND intended to help avoid detection sufficient (Barlow) Mens Rea 1.   Knowledge of all relevant facts of committed offence −   Vague knowledge insufficient (Stone) 2.   Intended to assist perpetrator of original crime to escape arrest or conviction −   Even if accused motivated by desire to benefit personally (Young and Phipps) Conspiracy It is an offence for two or more people form an agreement to commit a crime or a lawful act by unlawful means (Mulcahy). To be held liable for a crime of conspiracy, the P must prove BRD the following elements (Woolmington): Actus Reus 1.   Existence of the agreement to commit crime −   P must establish nature and scope of agreement (LK and RK) −   Not necessary for there be an agreement as to the precise manner in which act performed (Bolton) −   Not necessary that anything be done to put plan into action (Rodgerson) −   In absence of clear actions, established by conversations, documents, actions in pursuance of agreement, testimony of witnesses or co-conspirators Mens Rea 1.   Intent to perform unlawful act (Siracusa) 2.   Intent to agree with one or more parties to perform it as a group −   Intention to enter into an agreement in future/D knew about plan insufficient −   Overall intention of conspirators important (Kalajzich and Orrock) −   Merely talking about possibility insufficient unless they reach the stage when they have agreed to commit that act if it lies within their power (O’Brien) Convictions of individuals for conspiracy Circumstances available for convictions can be obtained against one person: 1.   If only one of the alleged co-conspirators can be located (O’Brien) 2.   An accused can be charged with ‘conspiring with a person(s) unknown’ (Harrison) 3.   Where co-conspirator was an undercover law enforcement officer to entrap accused (Yip Chiu-Cheng) 4.   Where other parties are given immunity from prosecution (Chidiac) 5.   Where only one person is convicted on the evidence (Darby; Osland) Substantial Impairment The defence is a partial defence, reduces murder to manslaughter, used by defendants suffering from a mental condition short of qualifying as a ‘disease of the mind’ under the insanity defence. Pursuant to s 23A of the Crimes Act, the defence has to satisfy on the balance of probabilities (s 23A(4)) the following elements: 1.   At the time of the action, the D was suffering from an abnormality of the mind −   ‘abnormality of the mind’ is a state of mind so different from the ordinary person that a reasonable person would term it abnormal (Bryne) 2.   The abnormality of the mind is a result of an underlying condition (s 23A(1)(a) −   ‘underlying condition’ is a pre-existing mental or psychological condition −   doesn’t have to permanent but more than ‘conditional or transitory nature’ (s 23A(8)) −   decided by the use of expert evidence (Bryne) −   requires proof of pre-existing nature by expert evidence −   self-induced intoxication disregarded if underlying condition not substantial unless intoxicated (Goodridge) 3.   The abnormality of the mind affected their capacity to (s23A(1)(a): 1)   Understand events, or 2)   Judge whether his actions were right or wrong, or 3)   Control himself (includes situations where D knew actions were wrong but couldn’t control himself: Bryne) 4.   The impairment was so substantial as to warrant liability for murder being reduced to manslaughter (s 23A(1)(b)) −   Requires accused to prove nexus between condition and offending behaviour −   Matter determined by jury (Bryne) but s 23A(2) provides expert evidence of a opinion on this issue is admissible −   Question of degree (Bryne) and culpability (Majdalawi) −   Emphasis placed on whether the abnormality operated in a way that accused could not (opposed to ‘did not’) stop himself from performing act •   If successfully proven, charge reduced from murder to voluntary manslaughter (s 23A(5)) •   When imposing sentence, court has to strike a balance between setting appropriate punishment, based on the offence and the offender, and the protection of the community (Veen) Extreme Provocation The defence is a partial defence, that reduces murder to manslaughter, if the accused is sufficiently provoked by his victim. Pursuant to s 23 of the Crimes Act, the defence has to prove on the balance of probabilities the following elements: 1.   The act causing the death was a result of a loss of self-control induced by the conduct of the deceased towards/affecting the defendant −   Subjective test −   Conduct must be within the sight or hearing of the accused (Davis) −   Loss of self-control can be due to fear, anger, resentment but has to be present at time of killing (Chhay) −   Words alone can constitute provocation (Lees) but limited to blackmail, threatening to destroy or damage property −   Where victim tells accused previously committed serious indictable offence may be relevant only if accused provoked by fact of offence, not retelling −   Hill accepted a ‘contextual’ approach to requirement of a ‘sudden’ act −   No need for intent to kill/inflict GBH −   No requirement of ‘sudden and immediate’ response to provocation (s 23(3)(b)) → ca abate over time (Pollock) BUT passage of time deceases possibility that accused acted while still under a ‘loss of self-control’ (Chhay) or ‘master of his mind’ (Smith) −   Conduct of deceased must be an indictable offence (penalty 5 years-life) (s 23(2)(b)) −   Women’s personal history/BWS relevant to subjective test r 2.   Was the provocation bad enough so that an ordinary person (not ‘reasonable’) in the position of the D could (not ‘would’: Heron) have lost his self-control to degree that he forms intent to kill or inflict GBH (s 23(2)(b)). −   Objective test −   Consideration of age no longer allowed (Stingel; Baraghith contra McHale v Watson) −   Non-violent homosexual advance doesn’t constitute provoking conduct (Green) −   Defence unavailable where accused incited provocation from victim (Edwards) −   Broken down into 2 limbs (Stingel): 1)   Assess the gravity/degree of provocation → consider attributes of accused (age, sex, race, past events): Stingel; Masciantonio 2)   Assess the response of the ordinary person to that degree of provocation −   Cannot include personal attributes except age (Stingel) −   Intoxication (Croft), gender (Camplin), ethnicity (Masciantonio) irrelevant −   NT allows for Aboriginality as a consideration (Jabarula v Poole) •   Must be negatived BRD by P (s 23(7)) •   When defence not raised by D but there is some reasonable evidence of provocation, judge is to direct jury to availability of defence to be considered (Parker; Pollock) → question of whether it should be left to the jury should be decided on a view of the facts most favourable to the accused (Holmes) Intoxication Intoxication is a circumstance which may alter the capacity of the accused to form the requisite mens rea, where a charge is one of specific intent, or may entirely negate mens rea where intoxication is involuntary. Pursuant to s 428 of the Crimes Act, intoxication is to be taken into consideration when determining criminal liability. Distinction between basic + specific intent in Majewski utilised to determine applicability of intoxication: •   Is offence of specific intent? (offence results in specific result e.g. GBH, murder, ABH, wounding −   YES → voluntary + involuntary intoxication taken into account to determine if accused had mens rea to cause the specific result → not about ‘capacity/ability’ to form specific intent, just whether specific intent was formed (Makisi) o   Necessary to compare state of mind of accused with that of a non-intoxicated reasonable man (s 428F) → mens rea standard is objective −   exceptions: a.   Where had already resolved to commit crime before becoming intoxicated, or b.   Became intoxicated to fortify their resolve (Northern Ireland v Gallagher) −   NO → involuntary intoxication only taken into account (s 428D) •   Definition of ‘intoxication’ in s 428A as ‘intoxication because of the influence of alcohol, a drug or any other substance’ provides no meaningful assistance to court → determined by jury → threshold higher than ‘out of it’ (Sullivan) •   Non self-induced intoxication limitations: accused cannot claim they were involuntarily intoxicated because they were misinformed/wrong about alcohol content (Allen) + accused must have been substantially intoxicated (Beard) → questions for jury + may mitigate sentencing •   If P fails to prove specific intent because of accused’s self-induced intoxication, able to convict of a lesser and basic intent offence (Brady) Self-Defence The defence of self-defence is both a partial and complete defence. It is up to the accused to raise as an evidentiary burden and for the P to negative claim BRD (s 419). Pursuant to s 418 of the Crimes Act, to successfully make out this defence, the accused must prove on the balance of probabilities the following: 1.   Is there a reasonable possibility that accused believed their conduct was necessary to defend himself? −   NO → defence unavailable −   Subjective test: considering all personal characteristics of accused at time of carrying out conduct (Kurtic) −   Only need to show a genuine belief −   Necessity of response – accused believed conduct necessary to: a.   defend oneself or another person, or b.   stop/escape unlawful deprivation of liberty, or c.   protect property from being taken/damaged/interfered with (unavailable if response resulted in death: s 420; McKay), or d.   prevent criminal trespass or to remove a trespasser (unavailable if response resulted in death: s 420) −   Self-defence not excluded if accused’s response was to lawful conduct (s 422) −   Finding that an accused ‘wanted to fight’ doesn’t itself exclude self-defence but it’s relevant to whether accused could’ve believed their conduct was necessary (Colosimo) 2.   Is there a reasonable possibility that what the accused did was a reasonable response to the circumstances as he perceived them? −   YES → complete defence −   Objective test of proportionality of accused’s response to situation accused subjectively believed they were faced −   Need for sufficient proximate nexus between imminent threat and committing offence (Burgess; Saunders) −   Self-induced intoxication cannot be into account (Katarzynski) −   NO because of excessive force → partial defence, reduction of charge (Howe + s 421): o   P’s ability to prove AR + MS of murder is a precondition for partial defence (Lane) o   If following conditions met, partial defence available (Ryan and Coulter): a.   Person used force that caused death b.   Use of force was not a reasonable response in the circumstances as accused perceived them c.   Person believed that use of force was necessary for 1 of purposes in (a)-(d) Self-defence and the battered woman Court allows for evidence of the ‘battered woman syndrome’ to be admissible (New Jersey v Kelly): 1.   Battered woman defined as ‘one who is repeatedly subjected to any forceful physical or psychological behaviour by a man in order to coerce her to do something he wants her to do without concern for her rights’ 2.   Couple must go through the battering cycle at least twice: o   ‘tension-building stage’ o   ‘acute battering incident’ o   extreme contrition and loving behaviour from the battering male −   Apply above test but for subjective test include BWS −   TJ must make a clear connection between evidence of BWS and self-defence (Osland) •   If P cannot disprove elements BRD, conduct of accused bears no criminal responsibility (s 418(1))