MLL214 Exam Notes Criminal Law (All Topics and Cases)

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MLL214 – Exam Notes Criminal Law

(All Topics and Cases)

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Contents Page Page 6: The Fundamentals of Criminal Law Criminal Capacity Exceptions to Criminal Capacity Mens Rea Exceptions to Mens Rea Page 7: Actus Reus Definition Forms of Actus Reus Strict Liability Defenses Under Strict Liability Page 8: Actus Reus Absolute Liability Transferred Malice Page 9: Homicide Murder Intentional Murder Reckless Murder Statutory Constructive Murder Felony Murder Rule Essential Elements Page 10: Manslaughter Constructive Murder (Common Law) Voluntary Manslaughter Why Murder is Reduced to Manslaughter Involuntary Manslaughter Types of Involuntary Manslaughter Page 11: Manslaughter Other Forms of Manslaughter Fetus and Child Murder and Manslaughter (Actus Reus Elements) Pre-Conditions Voluntariness Page 12: Causation Elements of Legal Causation Questions to Consider Special Relationships

The ‘But-For’ Test Legal Causation Tests Page 13: Legal Causation Tests The Operating and Substantial Test Take Your Victim As You Find Them Medical Treatment Novus Actus Interveniens The Nature Consequence and Reasonable Foresight Test Page 14: Murder Elements of Murder Intention to Kill Grievous Bodily Harm Intention to Cause Grievous Bodily Harm Recklessness Causing Grievous Bodily Harm Page 15: Murder Distinguishing Recklessness from Intention Justification for the Doctrine of Reckless Murder Measuring the Probability and Likelihood Page 16: Constructive Murder Section 3A Essential Elements of Constructive Murder Temporal Connection Between Act and Killing Constructive Murder 2 Page 17: Constructive Murder Specified Offences Temporal Coincidence Acts and Omissions Regarded as Continuous Transferred Malice

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Page 18: Self-Defense Summary of Self-Defense Crimes Act 1958 (2014 Amendments) Self-Defense (Section 322K) Self-Defense Does Not Apply If (Section 322L) Page 19: Self-Defense Family Violence and Self-Defense (Section 322M) Intoxication and Self-Defense (Section 322T) Page 20: Self-Defense Subjective and Objective Test Zecivic Test Relates Defenses

Page 21: Involuntary Manslaughter Elements of Involuntary Manslaughter (Common Law) Unlawful and Dangerous Act Voluntariness and Intention The Reasonable Person Page 22: Involuntary Manslaughter by Criminal Negligence Elements of Negligence Manslaughter Breach of Duty of Care The Standard of Negligence Definition Conduct Amounting to Criminal Negligence Page 23: Involuntary Manslaughter Criminal Negligence (Mens Rea) R v Edwards Involuntary Manslaughter by Omission Medical Negligence

Page 24: Assaults Laws of Assaults Section 31 Summary of Assault Page 25: Assaults Mens Rea of Assault Actus Reus of Assault Threats Limb Apprehension Page 26: Assaults Fear Conditional Threats Question of Foreseeability Page 27: Aggravated Assaults Mens Rea Other Forms of Aggravated Assault Consent Exceptions to Consent Page 28: Aggravated Assaults Lawful Sporting Events Sexual Activity Surgery

Lawful Chastisement Fraud and the Issue of Consent Page 29: Aggravated Assaults Administration of Certain Substances Page 30: Other Offences Against the Person False Imprisonment Kidnapping Stalking Endangerment Offences Page 31: Sexual Offences Consent Section 34 Page 32: Sexual Offences Definitions of Sexual Offences Sexual Penetration Section 37 Page 33: Sexual Offences Reasonable Belief

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Effect of Intoxication on Reasonable Belief Does Fraud Vitiate Consent? Page 34: Rape Section 38 Mens Rea of Rape Rape by Compelling Sexual Penetration Section 39 Page 35: Sexual Assault Section 40 Assault with Intent to Commit a Sexual Offence Section 42 Page 36: Sexual Assault Threats to Commit a Sexual Offence Section 43 Guiding Principles Section 37B Page 37: Theft Elements of Theft Actus Reus of Theft Page 38: Theft Further Explanation of Theft Section 73 Definitions Relevant to Theft Section 71 Page 39: Theft Proprietary Rights or Interest Third Party’s Intention Property Obtained by Mistake Belonging to Another Property Other Than Money Page 40: Appropriation Section 73(4) Summary of the Meanings of Appropriation Page 41: Appropriation Mens Rea Further Notes at Common Law Ransom Principle

Pawning Principle Enhancing the Scope of Intention to Permanently Deprive Conditional Intention to Permanently Deprive Page 42: Appropriation Motorcars and Aircraft Dishonesty Mens Rea Page 43: Obtaining Property by Deception Elements of Obtaining by Deception Section 81 Differences between Theft and Obtaining Property by Deception Page 44: Obtaining Property by Deception Actus Reus Elements of Property Belonging to Another Obtain Page 45: Obtaining Property by Deception Actus Reus Mens Rea Dishonesty Intention to Permanently Deprive Page 46: Obtaining Property by Deception Obtaining Financial Advantage by Deception Section 82 Page 47: Burglary Section 76 Elements of Burglary Entry Page 48: Burglary As a Trespasser Mens Rea Actus Reus Temporal Coincidence

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General and Specific Intention to Enter Any Building or Part of a Building Page 49: Burglary Entry with Intent to Commit Prescribed Offence Intent to Steal Anything in the Building Intent to Commit Assault or Damage Page 50: Aggravated Burglary Section 77 Page 51: Robbery Section 75 Elements of Robbery Elements 1,2 and 4 Page 52: Robbery Element 3: In Order to Steal Armed Robbery Section 75A

Page 53: Nature of Threats Definitions Intoxication Page 54: Duress Definition Section 9AG Page 55: Sudden or Extraordinary Emergency Section 9AI Considerations Necessity Page 56: Defence of Intoxication Laws of Intoxication Section 9AJ Breakdown of the Section

Page 57: Defence of Intoxication Clarification of Intoxication Cannot Apply Where Reasonable Test Insanity Test for Insanity Page 58: Insanity Crimes (Mental Impairment And Unfitness To Be Tried) Act 1997 (Vic) Section 20 Nature and Quality of the Act Wrong Act Page 59: Attempt Section 321M Section 321N What Offences Cannot Be Attempted? The Issue of Voluntary Desistence Impossibility of a Defence to Attempt Page 60: Incitement Section 321G Elements of Incitement Page 61: Conspiracy Elements of Conspiracy Mens Rea of Conspiracy Page 62: Conspiracy to Commit an Offence Section 321 Agreements to Commit Offences Outside Victoria Section 321A Consequences of Acquittal of Co-Conspirators Section 321B

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The Fundamentals of Criminal Law Criminal Capacity Criminal Capacity: Assumption that everyone is capable of committing a criminal offence. Exceptions of Criminal Capacity Children

- A person under 10 years of age is incapable of committing a criminal offence - “It is conclusively presumed that a child under the age of 10 cannot commit an offence”

(Children, Youth and Families Act 2005 – Section 344) - Doli incapatis (applies to ages 10, 11, 12, 13)

Case: R v ALH [2003] VSCA 129 Corporations

- Responsible for a significant amount of harm - Corporations have the legal status of a person and can incur criminal liability under certain

circumstances Mens Rea Definition: ‘Bad or guilty mind”.

- In essence, the intention to commit a crime - Many crimes require as an essential element that the defendant must have acted with a

particular state of mind Exceptions to Mens Rea Negligence

- If the defendants conduct amounts only to ordinary negligence – that is whether the defendant should have been aware of the risk but did not actually advert to it – the prevailing view is that this does not constitute mens rea or state of mind

- This is because ordinary negligence is not a state of mind, but it is merely a conduct, which falls below an objective standard of care required by law to protect others from unreasonable harm

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Actus Reus Definition: The persons actions of guilt or wrong. Note: There must be a causal connection between the act or omission and the non-mens rea elements of the crime

Actus Reus Can Consist Of:

- The non mens rea elements of the offence as by its definition and; - The voluntary act or omission to act which brings about those non mens rea elements

Forms of Actus Reus

1. Strict Liability 2. Absolute Liability

Note: Both forms do not consider mens rea, however, strict liability does have defenses, absolute liability does not. Strict Liability Note: Strict liability does not require mens rea to be proved.

- Crimes that do not require proof of fault - All that needs to be proved is that the individual committed an illegal act - No interest in intention

Note: Fault in this context denotes, that the accused acted negligently in bringing about the consequences proscribed by the statutory or common law definition of the crime(s) alleged. Defenses Under Strict Liability Honest and Reasonable Mistake of Fact

- ‘The proudman defense’ External Interventions

- An act of God: - Something that could not be prevented due to external interferences (i.e. a tornado that

makes you speed) Case: He Kaw Teh v The Queen (1985) 157 CLR 523

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Absolute Liability Note: Exact same as strict liability except no defenses. What to consider when either mens rea or strict liability is unknown:

1. Default position 2. If mens rea excluded 3. Penalty 4. History/policy considerations/what would happen if made or not with mens rea

Participation: If two or more parties each perform part of the actus reus, then each is considered to be a joint principle in the first degree Transferred Malice: When an accused acts with the requisite mens rea to commit an offense against a particular person or property and instead succeeds in causing the same type of harm to another person or property, the law treats the accused in the same way as if they had committed the crime they had intended Note: This doctrine does not apply unless the accused ultimately achieves the same offense that they intended to.

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Homicide Types of Homicide

1. Murder 2. Manslaughter

Murder Intentional Murder: Causes the death of another with the intention to kill or cause grievous bodily harm. Reckless Murder: Causes of death of another while acting with recklessness as to killing or causing grievous bodily harm. Types of Murder

1. Lawful 2. Unlawful

Statutory Constructive Murder Distinction: The accused does not subjectively possess the requisite mens rea for murder but rather it is imputed to the accused. The accused is deemed to possess the requisite mens rea of the circumstances under which the killing occurred. Felony Murder Rule Definition: Causing death of another human being by an act of violence which occurs in the course of the commission of a felony involving violence. The Essential Elements

1. The accused caused the death of another person. 2. In this cause of furtherance of committing. 3. A serious offence (normally involving some element of violence).

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Constructive Murder (Common Law) Definition: Where the person causes the death of another by an act of violence committed during the course of preventing, resisting or escaping from lawful custody. It is the combination of means rea and the circumstance of having caused the death of another without lawful excuse or mitigating factors that provides the malice aforethought.

- Because of the specific mens rea element, these categories are said to involve express malice

- With the latter two categories, there are no specific mens rea requirements - It is the particular circumstances under which the accused has caused the death of another

that supply the malice aforethought - Categories are said to involve ‘implied’ or ‘constructive’ malice

Manslaughter Voluntary Manslaughter Note: Involves the same elements as murder. Reduced to Manslaughter for the Following Reasons

- Defendant was provoked into killing - Defendant was laboring under a diminished responsibility - Defendant is the survivor of a suicide pact - Defendant used excessive force despite the genuine belief that such force was reasonably

necessary to defend themselves or another person from a threat - Defendant used excessive force despite their genuine belief that such force was reasonably

necessary to defend their property from trespass or to exercise a power of lawful arrest Involuntary Manslaughter Definition: Causing the death of another without lawful excuse and under circumstances that do not amount to any form of murder or voluntary manslaughter. The accused acts with a lesser mens rea or none at all. Types of Involuntary Murder at Common Law

1. By Criminal negligence (high negligence involved) 2. By Unlawful and Dangerous Acts (an act that is both unlawful and dangerous in the relevant

senses.

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Other Forms of Manslaughter (Examples)

1. Infanticide 2. Culpable driving causing death 3. Dangerous driving causing death or serious injury 4. Arson causing death

Fetus and Child

- The fetus in a mother’s womb is not ‘in being’ - Therefore cannot be killed for the purposes of homicide - A child must be “fully and completely born” and must have a “separate and independent

existence” from the mother Case: R v Hutty [1953} VLR 338 Murder and Manslaughter: Actus Reus Elements Definition: Crimes of murder and manslaughter require D’s voluntary act or omission must have legally caused the death of another human being. Pre-Conditions

1. Voluntariness 2. Legal Causation 3. With the exceptions of the non-means rea offences of involuntary manslaughter by unlawful

and dangerous act and criminal negligence, means rea. Voluntariness Must be proved in all criminal prosecutions:

- In many cases the issue of voluntariness is not disputed - In the absence of evidence to the contrary there is a rebuttable presumption that D’s act or

omission was voluntary in the relevant sense - In the event that evidence arises that raises a question as to the voluntariness of D’s act or

omission, it is then incumbent on the prosecution to prove beyond reasonable doubt that voluntary nature of the act or omission.

Note: The fact that D was conscious and acting in a typical/normal manner will invariably have the effect s/he will be regarded as having acted voluntary. Cases: R v Butcher [1986] VR 43 Ryan v The Queen (1967) 121 CLR 205

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Causation Elements of Legal Causation

1. The defendant’s voluntary act or omission was a ‘but-for’ cause of death of the victim. 2. The absence of an event that the law regards as superseding in the relevant sense.

Note: To break the chain of causation there must be a superseding act. Questions to Consider

1. Where or what is the chain? 2. Who has broken it? 3. Why was it broken? 4. If it was not broken, why?

Examples of ‘Superseding Events’

- Other human acts or omissions - Acts of God (i.e. lightening) - Action of animals

Special Relationships: Causation may be broken if a special relationship exists (i.e. husband and wife). The ‘But-For’ Test Definition: Had it not been for the defendant’s act or omission, the victim would still be alive. Legal Causation Tests

1. The Operating and Substantial Test 2. The Novus Actus Interveniens Test 3. The Natural Consequence and Reasonable Foresight Tests

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The Operating and Substantial Test General Principle: The defendant’s act or omission must significantly contribute to the death of the victim. Cases: R v Hallett [1969] SASR 141 R v PL (2009) 261 ALR 365 Take Your Victim As You Find Them Definition: Where the victim – as a result of latent physiological or psychological condition – dies on an injury inflicted by the defendant, but from which a normal person would not have died, the pre-existing condition will not be deemed to have broken the chain of causation.

- Referred to as the ‘egg-shell-skull’ rule of causation - Notion that the attribution of causal responsibility is inextricably tied to the

defendant’s moral culpability (or lack of) for his/her conduct Case: R v Blaue [1975] 1 WLR 1411 Medical Treatment

- The defendant may inflict injuries on the victim, following which the victim receives negligent medical treatment that is another ‘but-for’ cause of death

- The question then arises as to whether such treatment constitutes a superseding cause that severs the causal chain and absolves D of any criminal liability for consequences that occur subsequent to the treatment

Cases: R v Jordan (1956) 40 Cr App R 152 R v Evans & Gardiner (No 2) [1976] VR 523 The Novus Actus Interveniens Test Definition: Where there is a new intervening act this may break the chain of causation removing liability from the defendant. The legal test applicable will depend upon whether the new act was that of a third party or an act of the claimant. The Natural Consequence and Reasonable Foresight Test Flight and Self-Preservation: Where the victim is killed in an attempt to flee or avoid being violently attacked by the defendant, an issue arises as to whether the victim’s reaction in attempting to avoid the threatened harm will sever the causal connection between the violence or threats of violence and death. Case: Royall v The Queen (1991) 172 CLR 378

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Murder Elements of Murder

1. The accused committed the act that caused the victim’s death. 2. The accused committed those acts voluntarily. 3. A committed those acts while:

a. Intending to kill someone or cause them really serious injury; or b. If reckless murder has been left to the jury knowing that it was probable death or really

serious injury would result 4. The accused did not have a lawful justification or excuse for those acts (i.e. self-defense,

provocation, duress or sudden or extraordinary emergency). Intention to Kill Actual Intention: Where the defendant’s voluntary act or omission causes the death and at the time of the act or omission s/he intends to cause death, the defendant is prima facie liable for murder. An intention to do something exists where the defendant “meant to do it”.

General Rule of Intention A person is regarded by law as intending to murder or cause serious injury if:

1. Acted with the conscious purpose or desire to bring about such a result. 2. Acted with the knowledge that such a result was substantially certain to follow as a result of

his/her voluntary act or omission.

Grievous Bodily Harm (GBH) Intention to Cause Grievous Bodily Harm

- The prosecution must prove that at the time of the relevant voluntary act/omission, the defendant intended only to cause grievous bodily harm

- May be caused with or without a weapon - It may also be caused by cutting off V’s air supply by placing a pillow over their face - “Really serious bodily harm”

Recklessness Causing Grievous Bodily Harm Test for Recklessness

- It is regarded as murder if the defendant kills the victim by engaging in conduct that s/he knows will probably cause death or grievous bodily harm to another human being even if s/he does not intend either result

- What establishes the mens rea of reckless murder is the defendant’s knowledge that death or grievous bodily harm will probably result from his/her voluntary act or omission

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Distinguishing Recklessness from Intention

- Rests on a degree of foresight (knowledge) of probability - If the likelihood that D’s conduct will cause death or grievous bodily harm is so high that it is

deemed a practical certainty, the defendant’s state of mind will be regarded in law as intention to kill or cause grievous bodily harm

- If the foresight (knowledge) of the likelihood of causing death or grievous bodily harm is even slightly lower, then the defendant’s state of mind will be no more than recklessness as to causing death or grievous bodily harm

- Only recklessness of the “probability” type (as opposed to the ‘possibility’ type) will suffice for murder

Justification for the Doctrine of Reckless Murder Three issues have been addressed in the cases relating to the doctrine of reckless murder:

1. The mentalities that are encompassed by the notion of recklessness. 2. The meaning of foresight (or knowledge/awareness) in recklessness; and 3. The degree of risk that the defendant must foresee.

Case: R v Pemble (1971) 124 CLR 107 R v Crabbe (1985) 156 CLR 464 Measuring the Probability and Likelihood

- Probable means “likely to occur” - In Boughey, the court construed the words ‘likely to cause death’ in the context of a

statutory crime of murder Cases: Boughey v The Queen (1986) 161 CLR 10 R v Morrison [2007] SASC 168

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Constructive Murder Note: Refers only to either arm robbery or robbery (not rape etc.). Section 3A: Needs to satisfy that:

1. A person who unintentionally causes death of another person by an act of violence done in the course or furtherance of a crime the necessary elements which include violence.

2. Sentenced to life imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed the person intentionally.

Essential Elements of Constructive Murder

1. A person 2. Causes the death 3. In an act (violent act) 4. Act causes death unintentionally 5. In the course of a crime

Construction

- Modifies the mens rea required for murder, but not the actus reus - As such, the prosecution must still prove that D’s volitional conduct was the legal cause of

the death of another human being Temporal Connection Between Act and Killing In the course or furtherance of an offence:

- The expression “in the course or furtherance of an offence” is used to demarcate the temporal connection between the killing and the act

- The expression makes it clear that the relevant time period extends beyond when the crime is technically completed

Note: Decided on the basis of the common law ‘felony-murder rule’. Constructive Murder 2 Definition: Killing in the course of resisting arrest. Case: R v Ryan & Walker [1966] VR 553

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Specified Offences

- In addition to the temporal requirement, the prosecution must establish that the act of violence was done in the course of committing or attempting to commit a specified offence

- In Vic, pursuant to s 3A of the Crimes Act 1958 (Vic), the act must be done in the course of furtherance of a crime which is incapable of being committed without violence

Case: R v Butcher [1986] VR 43 Temporal Coincidence

- Where an offence is one of mens rea, the common law requires a temporal coincidence between D’s relevant voluntary act/omission and the mens rea of the offence

- It is therefore a basic requirement of the law of murder that the requisite mens rea must be present at the same time as D’s relevant acts/omissions that legally causes the death of another human being

- Thus, to commit the relevant voluntary act/omission without the requisite mens rea will be insufficient to establish criminal liability

Case: Thabo Meli and Others v The Queen [1954] UKPC 1 Acts and Omissions Regarded as Continuous In R v Le Brun [1991] 4 All ER 673 the court spelled out the conditions under which two or more volitional acts/omissions may be regarded in law as one continuous act/omission:

1. There must be a sequence of events that can be regarded as the same transaction, even if there is an appreciable time difference between the mens rea and the fatal act/omission; and

2. A chain of causation must be established between the initial voluntary act/omission when the mens rea was present, and the fatal voluntary act/omission

Transferred Malice

- It is a long-accepted principle of the common law that if A intends to kill or cause GBH to X, then this malice will effectively be transferred by law to anyone else who by some mischance is killed by A’s act.

- "If he strike at one and missing him kills another, whom he did not intend, this is felony and homicide:" (Hale)

- Transferred malice also applies in relation to other crimes of intent such as ‘malicious wounding (R v Latimer) or intentionally causing serious injury.

Case: R v Saunders (1593) 75 ER 706