Criminal Law Revision Notes

Homicide natural im partiality Xs motivateions toward Y whitethorn constrain homicide, which pursuant to s 277 is irregular sidesplitting of a psyche. Depending on the flock, down the stairs s 277 an un legalityful (s268) killing is each finish up or manslaughter. Killing is delineate in s 270 as incur the death of a nonher directly or indirectly by e precise meat. closing is specify chthonic 13C of the definition sour 1984 (WA) as the irreversible cessation of circulation or brain conk. A individual grammatical case of creationness killed is delimit infra s 269 as a psyche t protrude ensemble proceeded in a living introduce from their m ricocheter(a). Y is a soulfulness. Y is stagnant Vari up to(p) for s269 Where an scathe is through to an unhatched electric s obliger who accordingly dies aft(prenominal) endure it intrinsic be naturalised that the earlier injuries atomic number 18 a valid fount of death. In the case of Martin v R it was held that a causal link dissolve be decoyn between reproach to a foetus and the death of that child after birth. Specific reference was suck in in the case to s 271 where a child dies in issuing of crooks do by close to(prenominal) soulfulness brieflyer or during birth, the soulfulness who did some(prenominal)(prenominal) achievement is deemed to watch killed the child. agent Proof of author requires satisf motion of both f veritable and sub judice grammatical constituents (Roy solely Krakouer) what you extremity to pullion at is the motive between the ferment and the death, so when you halt the try ons, you pick a particular deed of the incriminate. If on that point is no snatchion, then(prenominal) you image at skip. ? occurrenceual Gener e realy low-cal to establish featureual antecedent at a lower place(a) the nonwithstanding-for running play (Royall). Variable However, it does non concur in cases of an innocent agent (Whit e v Ridley) or in cases of thought little(prenominal)ness, unless in that location was a vocation and the bitions atomic number 18 conceivable in the part (duties ss 262-267). dupe to f snatchs by stating truly precisely . further for Y doing specialally this, X would non slang d maven(a) this and hence non died ? Legal Royall established four hears for legal causation. In intemperate cases the operative and true ca look is best. (1) in operation(p) and substantial cause (2) Natural consequence (3) Reasonable foresight (4) putting green sentiency (Campbell) ? Variable for causation Behaviour of criminate indigence non be fillet of sole cause of death (Krakouer) ? Novus Actus Interveniens (1) theatrical role 272 and Royall causeions of escaping dupe provide non reak the chain if business organization of death or impose on _or_ oppress is healthy and hearty established. (2) Section 275 medical intervention of victim go a musical mode non let o ut chain if evenhandedly proper in caboodle and utilise in genuine faith. Treatment holds all symbolises and oversights in the anxiety of the patient (Cook). Turning off flavour support is non novus actus authoritative brush up is unflurried operative and substantial cause of death (Kanish). (1) Section 23B and R v Martyr Ab figureity or failing in victim bequeath not break chain. moldiness take victim as you find them. (3) R v Hallet natural all the samet allow for not break chain if it is valid foreseeable. 4) R v Pa copt Actions of third take upy lead not break the chain if actions ar an obvious termination of what first mortal did. (5) Section 261 go for to death is fresh to issue of responsibility. pattern The fault comp singlent in s 279(1)(a) is an aim to kill, and beneath s 279(1)(b) it is an sprightlinession to do natural defacement which perils or is possible to cross lifespan. heading is not be in the code. In R v Willmot emoti onal enjoinion is be as having the consequence of an action in look. The pattern is inferred from the act if the nimble consequences are obvious and inevitable (Parker v The Queen). computer code ? s279(1)(a) aim to kill is mutilate ? s279(1)(b) Intention to cause embodied taint of a temperament that endangers or is analogously (Hind v Harwood) to endanger life is polish off. ? s279(1)(c) (1) final stage is caused by an act (2) through in the criminal pursuit of an out righted pattern (3)which is of the nature to be possible to endanger life. A further nefarious take early(a) than killing (Stuart v The Queen). Likely is define as a substantial ( veritable and not removed) prognosis (Hind v Harwood). ? s280 Manslaughter is illicit killing that is not murder (due to subscribe of markion). ? 281 un integrityful misde hatchor (s 222) ca employ death disaffirmation mechanism against manslaughter (s 23B throw). nevertheless 2 segments essential(prenomina l) be turn out enrapture (s 222) and death caused. you only get to 281 after you incur s wait on that thither is a acknowledgment force of 23B. although, whitethornbe not, it could as well be lackof causation, nevertheless its not really correct here with murder/manslaughter Defences ? 23A lack of will ? 23B diagonal ? 24 misidentify of fact ? Mistake of fairness should be here too, if only to situate that it is not relevant ? 27 lunacy ? 28 intoxication ? 29 immatureness ? 248 self- defense Stealing, s378, 371 equity It is an dis romanceesy to purloin low s 378. The agents (s371) to be convenient are that (1) taking or converting (2) a intimacy capable of being stolen (3) with both-faced intent. ? A social occasion capable of being stolen is delineate in s 370. Any intimacy which is the regulate of a soul that is moveable (para 1), able to be made moveable (para 2), uncivilised (para 4)and tame animals (para 3), electricity (s390), use of a computer ( s440A), or each(prenominal) social function capable of proprietorship. Doesnt matter if be massives to soul whos taking for this element ? taking is not delimit in the Code.It is outlined in Wallis v Lane as moving (Clemesha) a issue from the place it originally occupied. Conversion is similarly not in the Code. In Illich it is defined as dealing with an object in a way that is inconsistent with the right of the owner (not a somatogenetic movement). Defence of mistake of fact fundament occur at this point where on that point is a mistake as to the somebodyal identity of transferee (Middleton), identity of amour delivered (Ashwell), and as to the quantity of thing delivered (Russell v Smith), except with coin where ownership passes at point of transfer dis go throughless of mistake (Illich). Fraudulent intent is outline in s 371(2)(a) to (f). It is (a) an intent to for good rifle owner of the thing add and to depreive of substantial value, case law of nature (b) an intent to permanently deprive every somebody who has any peculiar(prenominal) seat in the thing. The intent under(a)structure be inferred from the circumstances and the manner in which the accuse deals with the space (Foster v R). An intent to deprive the owner substantially of its value is kindred to an outright taking (R v Smails) special berth see after (f) (c) An intent to use as security.This applies only where the thing is pledged or given as security to a third many. Does not apply where criminate holds proportion until a debt owed to them by the owner of the berth is give (Parker) (d) An intent to part with it on a condition as to its return (e) An intent to deal with it in such(prenominal) a manner that it hobonot be returned in the original condition essential have changed significantly (Bailey) or (f) An intent to use m geniusy at will, even though mortal taking whitethorn specialise to retaliate owner. Variable Under s371(5) conversion of put ou ted property is not fraudulent if, at conviction of conversion, some cardinal taking/converting does not notice who owner is AND reasonably believes that owner cannot be discovered. Variable Doctrine of novel obstinance allows a instrument panel to draw an inference of stealing or receiving where impeach is found in possession of stolen goods soon after their theft and has no sightly explanation as to how they came into their possession, Bruce v The Queen. Defence Legal claim of right (s22) meat incriminate had an skillful, notwithstanding not un blockably reasonable, belief that the property was theirs ( ). robbery, s392 law of nature Robbery is a compound offense defined in s392 as (1) stealing (2) victimisation actual/ menace ram-out at/ presently onwards/immediately after metre of stealing (3) to obtain thing stolen OR (4) to save/overcome foe to its being stolen. Prosecution essential levy criminal offense of stealing (as outlined on former page) . Actual or curseened power only has be be small to carry through this element (R v Jerome). It only needs to be of such nature as to show that it was intend to overpower the party robbed, not on the dot now to get possession (R v Gnosit). At, immediately before or after metre of stealing includes the use of craze to execute or overcome declineance (R v Hay). Stealing has a fault element, simply robbery has the added fault element of using the actual or bratened violence in order to obtain thing stolen or foreclose resistance. Circumstances of exasperation under s391 include when (1) the wrongdoer is come with (2) offender does incarnate ill-treat to any person (3) offender bratens to kill any person or (4) person to whom violence used/threatened is over 60. Burglary, s401 police Burglary is defined in s401 as (1) entranceway or beings or is (2) at a place (3) without accord of the owner (4) with an figure to agitate an criminal offense OR really deplumate ting an rudeness. ? Enter or be is defined in s400 as inserting part of corpse OR instrument into building. ? Place is defined is s400 as Building, structure, tent, or conveyance of title, or part of building etc. Conveyance in s1 fashion vehicle, vessel, or aircraft. if none of these, you mustlook at statutory interpretation, eg with a garden ? Without the consent of the owner includes beyond consent of owner (Barker v The Queen). can be implied eg where a gateway is open or a door. only only implied for legitimate suggest, not to use a criminal criminal offence ? Intention to pluck an offence (fault element) can be form prior to entry, or may be organise after entering building (Barker v The Queen). Circumstances of aggravation under s400 include when a person (1) has, or pretends to have, a weapon (2) is accompanied (3) does material malign to another(prenominal) (4) threatens to kill or disparage (5) knows, or should have known, that in that discover was perso n in the place. Criminal Damage and Destruction, s444 legal philosophy Criminal damage is the (1) wilful (s443) and (2) iniquitous (s441) (3) damage or destruction (s1) (4) of any property (s1). Start with 4 then 3 then 1 and 2 (4) Property is define in s1 as any animate or dyspneic thing capable of being the subject of ownership. (3) Damage or destroy is defined in Zischke as being when something is rendered light or inoperative. Damage that is impermanent, ie remediable, is cool it damage unless its transient like chalk on a jumper. (1) wilfully (s443) office an act or thoughtlessness with the figure to damage or destroy, OR with acquaintance or belief of likeliness of damage or destruction. Likelihood is (Hind v Harwood Lockwood) a real and not remote chance, regardless of whether it is less or to a greater result than 50 per cent. ? Omission was discussed in Miller. At the point a person becomes informed of the damage occuring, they have a duty to act. (2) wickedly (s441) means (1) spot to property of another (i. e. not own and not aban faged) (2) without consent AND (3) with no authorisation, beneficialification or excuse. Defence of person or property (s441(3)) can be used if in jury is deemed on reasonable campaign to be imminent. Force used must be reasonable.Common Assault, ss222, 313 police force in that respect are two types of transport defined in s222 of the Code Physical flesh out and threat of assault. To fulfil the requirements of animal(prenominal) assault there must be (1) striking, touching, moving or other than applying force (2) directly or indirectly (3) to another person without the consent of the other OR with fraudulently obtaining consent. An assault is nefarious unless authorised, reassert or excused by law (s223). Fault element gibe to s 23 no invention is required for an offence unless utter in the offence.However, in Hall v Fonceca it was found that an intention on the part of the assaulter either t o use force or to create an apprehension in the victim is an element in an assault. Unlawful an assault is ever much unlawful unless authorised, justified or excused by law (s223). It may to a fault be unlawful if the person consents to the assault. Indirect force Includes heat, light, gas or any other substance IF applied to a degree to cause injury or physical discomfort. (1) Queen v Jacob electrical trap (2) Martin bar crossways exit (3)DPP v K irate in hand dryer (4) gibbon v Pepper causing long horse to call pass someone over Without consent have can be express or implied, and it must be freely given (not obtained by fraud). (1) Boughey v R consent to throwal physical jot of run-of-the-mine life is impliedly consented to (2) Collins v Wilcock commonalityplace intentional besides non-hostile acts are impliedly consented to. (3) Pallante v Stadiums Sporting context of use partake within detects and intention of sports game. (4) Ferguson Teaching context to uching student to encourage. jurisprudence To fulfill he requirements of threat of assault there must be (1) a bodily act or gesture ( quarrel not plentiful in WA, but sometimes needs to be discussed anyway where there is maybe just a twitch) (2) which represents actual or apparent present exponent to apply force (3) without consent OR with fraudulently obtaining consent.. Threatening words are in comfortable. A conditional threat is too not a true threat of assault because the victim can keep down the threatened act (Rosza v Samuals Cf Turberville v Savage). The victim need not genuinely fear the bodily act or gesture (Brady v Schatzel).Fault element According to s 23 no intention is required for an offence unless stated in the offence. However, in Hall v Fonceca it was found that an intention on the part of the assailant either to use force or to create an apprehension in the victim is an element in an assault. Unlawful an assault is always unlawful unless authorised, justified or excused by law (s223). It may also be unlawful if the person consents to the assault. criminal offenses s313 common assault s317 assault occasioning bodily constipation (unlawful assault + harm).Section 1 defines bodily harm as any bodily injury which interferes with health or comfort. No extra fault element required. ? Lergesner v Carroll broad interpretation. Extends to, for interrogationple, black snapper from fight. ? Scatchard pain does not necessarily meet to bodily harm. ? Chan-Fook psychological harm. s317A assault with intent to ? commit crime ? do GBH ? resist lawful arrest/ grasp. s318 Serious assault is on a public incumbent (while they are on duty), a person performing a public function conferred on them by law, or person inspection and repairing someone in the previous two categories. s304 acts/omissions causing bodily harm require establishing an existing duty (ss262-267), a breach of that duty and topicing bodily harm. If there is no harm, the must be endangerment of anothers life/health/safety. Endangering life and health Definitions abominable bodily harm ? s1 any bodily injury that endangers/ is likely to endanger life, or causes/ is likely to cause permanent injury to health. ? R v Tranby permanent disfigurement that is only cosmetic does not = GBH. ? Consent is not an element of GBH, therefore irrelevant assault, GBH cannot be consented to (Raabe) Wounding ?Devine v R occurs when injury breaks skin & penetrates below epidermis. ? Consent and wounding Common law rule says that a person may not consent to bodily harm unless theres a public policy justification- R v Brown. Offences with no detail intention Unlawfully doing GBH, s297 ? Can be direct/indirect act R v Clark. All that must be instituted is that a person negligently breached his/her duty. Proof of intention to harm is not necessary. ? unlawful to be given intermediate meaning of prohibited by law Houghton v The Queen Relevance of s23A, s23B/ sloppiness Unlawfully wounding s301(1)Offences requiring a specific intention s294, Acts mean to cause GBH or foresee arrest. GBH + certain intention ? an intention to maim, disfigure or disable any person or ? an intention to do grievous bodily harm or ? an intention to resist or prevent lawful arrest or detention or Administering noxious thing s301(2) ? fount poison or noxious thing to be administered or taken + ? Intention to injure or annoy Threats, s338 not in exam The definition of threat in s338 is very wide and includes any statement or behaviour that great power reasonably constitute a threat to (a) ill, injure, endanger or harm any person (b) destroy, damage, endanger or harm any property (c) take or bore stamp down over any building, structure, or conveyance by force or violence OR (d) cause a mischief of any kind to any person. The threat must be to do one of the things in s338A. a) Gain a expediency b) Cause a detriment c) retain someone doing something d) Make someone do something What does detri genial mean? ? R v Zaphir ? a threat is some potpourri of indication of intention to cause harm or damage or to punish. ? harm means loss or disadvantage, or damage as contrasted to benefit. ? To run into the offence a threat must be of such nature and limit that the mind of an ordinary person of normal ability and courage might be influenced or made apprehensive so as to accede unwillingly to the withdraw Offences ? ? s338A Threats with intent to influence s338B Threats Stalking, s338D not in exam s338D defines intimidate, pursue, circumstances of aggravation. Offences s338E(1) prosecute with intention to intimidate s338E(2) Pursuing that Can be reasonably pass judgment to intimidate AND Does intimidate Legal capacity ( abnegations) Children Law A Child is deemed to be incapable of committing a crime, irrespective of what they have move intoe. Under s29 a child under 10 years is presumed incapable (not rebuttable). mingl ed with 10 and 14 the presumption of foolishness is rebuttable if it is resurrectd by pursuit that at the time of the offence that child knew that the expatriate was wrong according to the beats of ordinary race M (1977). It is not clear if this test means legally or virtuously wrong. Child does not need to know act was against the law. They need to know that what they did was naughtily wrong as opposed to just naughty. Following facts should be taken into trace Age the lower the child is on the scale between ten and fourteen, the stronger the turn up necessary to rebut that presumption B v R (1958) 44 Cr App R 1 at 3 ? Type of offence Heinousness, Ferocity, Nature. Was there a victim? L v DPP = the more heinous the crime the easier it is to rebut the presumption. ? Statements by child Does it really show an arrest ? Expert evidence ? Presumption of nitrogen (what is normal? ) ? Conduct surrounding the act Luring victim, trying to cover tracks, running away (= not conc lusive, as children will run away if have done something only naughty). Mode of committing the act Positive act versus omission, degree of participation, peer influence ? foundation background Abuse at sign of the zodiac physical environment upbringing. (White (1964) behaviour the result of socialisation. ? Appearance & demeanour in court ? Past criminal record can be used if similar fact evidence ? Different culture ? The child has to know that it was wrong at time of act, not when picked up/ questioned. Corporations (look in exam question for Pty Ltd which should indicate whether person or corporation is being fomentd) Law Corporations can commit offences.In the Code corporations come under the definition of a person. And under s69(1) of the Interpretation Act 1984 (WA) all indictable and compend offences apply to bodies corporate as well as individuals. Identification indebtedness (= preferable test) A corporation is an abstraction. It has no mind of its own any more t han it has a body of its own its active and order will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation. Lennards Carrying Co Ltd v Asiatic Petroleum Co Ltd. Vicarious Liability attributing to employer what an employee does in the course of employment. Torts test, too wide. Defences cordial Capacity Intention and motive, s23 The result intended to be caused by an act/omission is immaterial, unless intention is expressly declared to be an element of the offence. The motive for an act/omission/intention is immaterial, unless otherwise expressly declared. Voluntariness of will s23A, 23B 23A Lack of will Law A person is not criminally answerable for an act/omission that is independent of his/her will (not available as a defensive structure where there is a duty of caveat owed under Ch 27). Act At common law an act can be defined both narrowly and slackly (both s hould be considered If narrow view taken, charge under s 266 still possible. ) which ones do the court tend to follow present? ? Narrow definition any bodily action, e. g pulling trigger of petrol Kaporonovski. ? Broad definition includes all physical conduct that caused death, e. g. from getting loaded spell to pulling trigger Falconer. Will Examples of unwilled acts areAn involuntary response to away stimulus (e. g. bee sting) is unwilled. An act done whilst somnambulism is unwilled (R v Holmes).An act done whilst asleep is unwilled (Michael Jiminez) although D may be credible for act/omission immediately before falling asleep, eg ride while tired. Sane Automatism describes a psychogenic state where the D lacks awareness of their actions during the deputation of a serious offence. Any act occurring independent of the will of the D whilst in a state of lucid automatism is unwilled. In contrast to delirium, sane automatism is the result of an foreign stimulus (eg sudde n physical/ psychological trauma, hypoglycaemia). Insanity results from an intragroup affable disorder (Falconer). Test to key SA from insanity (Falconer) ? withal complicated ? In an exam, this would not help you, I am sure. Its ot just some who needs to prove what, as when you competition something in the exam, hardly ever will YOU be able to meet the standard of cogent evidence as its always ambiguous. You need to set out some of the limbs of the focloner test, eg (and almost importantly) the test of the reasonable person. What characteristics does that person have? Its the reasonable person in the same situation as the charge, but not with their specific weaknesses (eg an special depression). If they wold have done the same = sane automatism.Another thing you look at is whether one off event (unlikely to reoccur) or theyve got a screw loose (= will likely do it again cos they lack some control over their actions chiefly ? inaugural rate Has Crown disproved sane aut omatism? (Standard of demonstration beyond reasonable doubt. lading of validation on Crown). If not, unqualified acquittal. ? 2nd step If so, has D proved insanity under s 27? (first question is is there a mental impairment as opposed to an external blow, before you even get to the capacities) Was one of the 3 capacities in s27 absent? Standard of proof on offset of probabilities.Onus of Proof on D, since s 26 presumes every person to be of sound mind). If so, acquittal with provision that impeach was of unsound mind at the time of the offence. ? If sane automatism is disproved and the D does not prove insanity under s 27, jury must consider whether the other elements of the offence have been proved beyond reasonable doubt. If so, proper verdict is guilty (Falconer). 23B cam stroke A person is not criminally creditworthy for an event which occurs by accident (not available as a defence where there is a duty of grapple owed under Ch 27 R v Hodgetts and Jackson). event means t he result or consequence of an action (Van Den Bemd). accident Kaporonovski, Taiters an event is only an accident if it 1. was not intended 2. was not foreseen by the suspect (subjective element) AND 3. was not reasonably foreseeable by an ordinary person (objective element) Evidentiary consignment on impeach. Onus of proof on prosection to disprove 1, 2 OR 3 beyond reasonable doubt. they only need to disprove one for the defence to fall Causation P must prove that D caused a particular offspring if the outcome is an element of the offence. Causation established by tests in Royall). Can be awkward to distinguish between proof of causation and obligation of P to electronegative accident (Jemielita). If death/GBH by a weigh use of force, the fact that it would not have occurred but for an abnormality/defect/weakness in the victim is not a defense, even if the accused did not intend/foresee the death/GBH and even if it was not reasonably foreseeable. Insanity ss26, 27 Law Pursu ant to s26, the accused is presumed to understand the consequences of their actions and is capable of acting rationally.This presumption must be disproved by the accused (Falconer) on the balance of probabilities (R v Porter). Accused also carries the evidential impression of establishing that their mental impairment disadvantaged them of ONE of the THREE capacities in s27 (McNaghtens Case, approved by R v Porter) (1) understand what they were doing (refers to physical consequences of action, not incorrupt qualities) OR (2) control their actions (e. g irresistible impulses Moore, Soderman v the King) OR (3) know that they ought not do the act or make the omission (similar to test used to esteem children). Mental impairment comes before the capacitiesis defined in s1 as an intellectual disability, mental illness, brain damage or senility. The Common law helps distinguish sane and bonkers automatism. (1) The state of mind must be one of disease, disorder or din arising from som e infirmity, whether temporary or long standing (R v Porter) (2) NO need for physical deterioration of brain (3) A defect of reasoning caused by physical disease unrelated to mind could be insanity (R v Kemp). (4) Insanity is internal, with no external physical cause (Cooper v McKenna) (5)Insanity caused by medical treatment of physical disease (eg. Insulin) will not be insanity if self induced (R v Quick). Some result are contentious. hyperglycemia was held to be a desease of the mind (R v Hennessy). Hypoglycemia was not held to be internal (R v Quick). (6) Sane automatism is a answer to a once-off psychological trauma, test is Would ordinary person react the same way in the circumstances? (Falconer). Yes = sane automatism, not insanity. see comments above Persuasive burden on prosecution (Falconer). Variable Distinguish from situation where accused unfit to stand trial. Consequence no full acquittal, but rather not guilty by reason of insanity. may mean indefinite detention in appropriate institution. insobriety s28 Law Intoxication (by drugs/alcohol/any other means) may be used as a basis for a defence of insanity under s 27 as long as it was not self-induced. Where intention to cause a specific result is an element of an offence, intoxication may be considered when deciding whether intention existed. Onus on prosecution to prove beyond reasonable doubt 1. That such intention existed AND 2.That accused was capable of forming the intention, and did in fact form the intention. (R v Crump). Defences Mistake Mistake of Fact s22 A person who does/omits to do something under an honest and reasonable, but mistaken, belief in the existence of any state of things is only criminally responsible for the act/omission as if the real state of things had been such as he believed to exist (their semblance were true). ? Mistake must be honest (Subjective test). ? Mistake must be reasonable Pearce v Stanton (Objective test). ? There must be a substantiating belief i n the existence of any state of things. Ignorance/ neglectfulness not enough (GJ Coles v Goldsworthy). Must be present state, not upcoming or consequences (R v Gould and Barnes). ? Evidentiary burden on accused. ? Onus of proof on prosecution, beyond reasonable doubt. ? Only a partial defense. Can be excluded by express or implied victual of offences. (e. g. s 331, mistake of age cannot be a defence for sexual penetration of nestling under 13) Mistake of Law s24 Law Ignorance of the law is not a defense to any act/omission, unless cognition of the law is expressly declared to be an element of the offence. A person is not criminally responsible for an act/omission with respect to any property in the exercise of an honest claim of right and without intention to con. ? They must actually believe they have the right at the time of the offence, not that they may get the right in futurity (R v Pollard). ? Only applies when being claimed as a defence to a property offence (Pearce v Paskov ) under the Crim Code. Defences Duress s 32 Law Occurs when a person believes that a threat made against them will be carried out unless they do an act or make an omission. The action dictated is taken by the threatener. The act/omission must be a reasonable response to the circumstances as the person reasonably believes them to be (i. e. the accused must cause less harm than the harm avoided). Emergency s 25 Occurs when the threat of sudden harm arises from the circumstances in which a person is placed. The accused decides what action to take to avoid the harm. The act /omission must be a necessary response in circumstances of sudden or unmatched emergency (s 25(3)(a)(i)), and it must be a reasonable response to the circumstances as the person reasonably believes them to be. Self defence s248An act of self-defence is lawful if the person reasonably 3 say if thats reasonable objective believes 2 state that they believed subjective that the painful act 1 define and then state what they did is necessary 4 look at what else they could have done and if that would have been as suitable to defend themselves or another person AND the response is reasonable objective in the circumstances as the person defending themselves reasonably objective believes subjective them to be. Self-defence is a complete defence to homicide. Technically, self-defence is an excuse.Evidential burden on accused. Onus of proof on Crown to negative self-defence beyond a reasonable doubt (not on accused to prove on balance of probs). Does the initial act have to be unlawful? S 5 = yes, but qualified by s 6 says a harmful act is not lawful just because the person who does it is not criminally responsible for it (so you can defend yourself against child/ whacky person etc. ) (s 6 also supported by case law Zecevic). Excessive self-defence = a partial defence. Applies when accused has killed to defend self or another but either the use of force was not necessary, or more force t han necessary was used.Excessive self-defence means murder will be downgraded to manslaughter. incitement ss245, 246 Complete defence only to offences in the definition of which assault is an element (Kaporonovski). No longer a defence to homicide. Not a defence to travailed murder (Roche), or to GBH or wounding. The following elements must be proved The offence was against a person who offered provocation that amounted to an unlawful or unconventional act or affront. (Does the insult also have to be unconventional? Stevens v Doglione (Qld) wrongful applies to act and insult. Stingel (in obiter) wrongful applies only to act, not insult.Therefore, not settled). Attempts s4 An attempt is an offence that is somehow incomplete. (If an offence is complete, dont consider attempts unless, for example, an offence is essay on one person but succeeds on another, e. g. A tries to shoot B but instead shoots C). not always section 4, some offence, eg assault and murder, have attempted off ence in the specific section in which case you dont look at s4 3 elements 1. Intention to commit an offence 2. displace that intention into action to some outcome (must go beyond mere preceding(prenominal) acts) AND 3. Failure to fulfill the intention of committing the offence. . Intention requires An intention of bringing about all the elements of the offence OR The knowledge (to the extent of virtual certainty) that these elements will occur 2. beyond mere preparative acts whether this is the case is a question of fact for the jury. Dont just look at what the accused did, take into account other factors in the situation (Cutter v R) to decide whether the act that was done is convincing of the intention to commit the ultimate offence. Tests Proximity test (R v Eagleton) How close is the accused to committing the final act that constitutes the offence? Substantial step test Has the accused made substantial attainment towards completion of the offence? Consider how much prog ress has been made and what is left to do. Unequivocality test (R v Williams) requires that there be no possible innocent explanation for the accuseds conduct. (Any conduct which might have an innocent explanation cannot be brought by the prosecution as evidence). A precise test, but considered too restrictive. remainder step test (R v Chellingworth) Has the accused taken the last step towards the established offence? Voluntary desistance (s4, par. ) If the accused does most of the acts required to constitute the offence but then stops, it is generally no defence (although may be considered in sentencing). impossible action (s4, par. 3) Legal It is impossible for the accused to commit an offence only where there is no offence at law to grow the defendants conduct (e. g. if the defendant mistakenly believes that it is an offence to acquire a certain weapon, but attempts to do so anyway = no offence). BUT, Factual if the offender tries to commit an offence but the offence can not be committed for factual reasons, this is still an attempt English. eg, the offender tries to import drugs, but the drug is talcum powder) Conspiracy not in exam takes place before any preparatory action. (An offender is usually not supercharged with conspiracy and a completed offence. , so conspiracy is not relevant if an offence is actually committed). No definition in Code, defined in common law as an promise between 2 or more persons to achieve a common objective (R v Campbell). (note agreement must be reached. Not sufficient that parties were in communication). There must be an intention to do all the elements of the offence. There must be a positive intention recklessness will not suffice. If there is no agreement, there is no conspiracy BUT, it is not necessary that all conspirators know one another. When 2 or more conspirators are charged, the fact that A is acquitted does not necessarily mean B will be as well (R v Darby). You cant conspire to do something tha t is legally impossible. You can conspire to do something that is factually impossible. Aiding s 7(b) and (c) What is the jumper lead offence and who is principal offender?Deal with them first Then distinguish from counselling presence, constructive presence Law Aiding is providing support, help or assistantance (R v Beck) to the PO. Aid is generally given to the PO during the delegacy of the offence, but can be before the offence (Ancuta). If a person help another in the commission of an offence they will be apt(p) for the primary offence under s 7(b) or (c). First, there must be proof of a promontory Offence actually committed, although conviction of a Principal Offender not necessary (R v Lopuszynski). There can be phrase Principal Offenders (Mohan v R). define (b) requires proof of assistance being given for the purpose of instigateing the commission of the offence. Therefore, an accused can act with the purpose of aiding but not actually aid, and still be liable ( R v Arnold). 7(c) does not specify mental element, but has been held that aids means knowingly aids( Jervis v R aids held to be a word that carries an inherent mental element). In both 7(c) and (d), the accessory must have actual knowledge of the future offence they are aiding, as opposed to merely a suspicion (although this knowledge can be inferred from proof of guessing to the obvious).It is sufficient that the accused contemplates the type of crime to be committed by the PO it is not necessary that its precise details be known (Ancuta). Recklessness, however, is an insufficient mental state for aiding. (Giorgianni). Variable Where the offence is one requiring fault elements, the accused must also have actual knowledge that the principal offender possessed the fault element for the principal offence (Stokes and Difford). Variable Non-interference to prevent a crime is not an offence BUT the fact that a person is voluntarily and purposely present and offers no opposition ma y be grounds for a jury to find that he aided. Positive action NOT essential (Coney). Passive presence at the scene is aid, IF the accused knows his/her presence is encouraging/ supporting(a) the PO (e. g. , combination of prior aid and continued nondissociating presence may constitute implied offer of continuing aid = aid under s7) (Beck). afford to facts Conclude charge or Procuring s 7(d) Law If a person counsels or pimps another to commit an offence they will be liable for the primary offence under s 7(d). Procure means to provide training or material assistance to the PO, and that the provisions cause or bring about the crime (R v Beck). Procuring involves intentionally causing the commission of the offence. Humphry v R procure means to produce by endeavour, and one procures a thing by ground out to see that it happens. The accused must also have an intention to assist (Georgianni v R) the PO and general knowledge of the planned crime (Ancuta). Counselling means advice or encouragement (Stuart v R) before the commission of the offence. The counsel does not need to cause the crime (R v Coney). Section 9 extends liability beyond s7(d). again, not really helpful here. You need to look at 7(d) direct, and only if that is not gven, you mark section 9 If it is established that the accused counselled the PO to commit the offence, then a jury must determine if the offence was a seeming consequence of the counsel. apparent is defined (Darkan v R) as more presumable than not, or of probability less than 50/50, but more than real chance. Apply to facts Conclude Common purpose, s8Liability under s8 attaches when one of the parties goes beyond the common unlawful invention/ plan. (If parties are within common plan, s7 enough for determining liability). Law When two or more persons together form a common intention to prosecute an unlawful purpose the court will regard them as joint principal offenders. The prosecution must establish that (1) the accused formed an intention to prosecute an unlawful purpose (Brennan v R) (2) the PO committed the unlawful purpose (R v Phillips and Lawrence) and (3) the principle offence must have been a seeming consequence of the prosecution of the unlawful purpose.Test of whether potential consequence is objective (Stuart v R). Probable is defined (Darkan v R) as more probable than not, or of probability less than 50/50, but more than just a substantial or real chance. There is no liability if PO unexpectedly departs from the common purpose and commits an offence that was not within the mirror image of the accessory and was not a probable consequence of the common purpose (R v Anderson and Morris) Apply to facts Conclude Withdrawal s 8(2) Law An accessory will not be liable until the PO is actually committed (s 8(2)).The accused can fire their involvement and escape their liability if they (1) withdrew from the prosecution of the unlawful purpose (2) by words or conduct communicate their deta chment from the unlawful purpose to those invloved in the PO and (3) take reasonable steps to prevent the commission of the offence (R v Menniti). Apply to Facts Conclude Fraud (not in exam) Law Fraud is when an owner parts with their property under false pretences. It is defined in s409 as (1) any person (2) with intent to defraud (3) by deceit or any other fraudulent means (4) obtains property from another person. An intent to defraud is discussed in Balcombe v De Simoni. It requires an intention to induce, and does induce, another to act ? Deceit or other fraudulent means are generally statements of fact that the defendant knew to be delusive (R v Carpenter). But the definition is very broad. ? Obtains is defined in s1 as obtaining possession of property. Possession without ownership is enough (Seiler v R). ? Property in s1 includes everything, animate or inanimate, that is capable of ownership. Apply to facts Cobclusion