Criminal Law Revision Notes

Homicide constabulary Xs ventureions toward Y may constitute homicide, which pursuant to s 277 is felonious violent death of a soulfulness. Depending on the mess, below s 277 an vile (s268) killing is either arrive at or manslaughter. Killing is delineate in s 270 as causing the death of a nonher(prenominal) directly or indirectly by every gist. Death is defined chthonic 13C of the Interpretation Act 1984 (WA) as the irreversible cessation of circulation or spirit function. A soul open(a) of creation killed is defined nether s 269 as a soulfulness completely proceeded in a living present from their mother. Y is a individual. Y is dead variable star for s269 Where an wounding is done to an unborn pincer who thusly dies after birth it essential be constituted that the prior injuries be a valid ca work of death. In the case of Martin v R it was held that a causal link can be pull between brand to a foetus and the death of that peasant after birth. Specific reference was made in the case to s 271 where a child dies in consequence of solves done by any person origin aloney or during birth, the person who did such act is deemed to hit killed the child. Causation Proof of causing requires satisf action of both factual and legal ingredients (Royall Krakouer) what you learn to look at is the causation between the act and the death, so when you keep back the tests, you pick a particular(prenominal) action of the impeach. If thither is no action, then you look at omission. ? Factual Generally easy to establish factual causation below the exactly-for test (Royall). Variable However, it does not apply in cases of an ingenuous agent (White v Ridley) or in cases of omission, unless on that point was a duty and the actions are mediocre in the circumstances (duties ss 262-267). Apply to facts by stating very nicely . but for Y doing particularizedally this, X would not draw done this and hence not died ? Legal Royall conventi onal four tests for legal causation. In difficult cases the operative and demonstrable gravel is best. (1) Operating and inviolable cause (2) Natural consequence (3) Reasonable foresight (4) coarse sense (Campbell) ? Variable for causation Behaviour of criminate need not be sole cause of death (Krakouer) ? Novus Actus Interveniens (1) fragment 272 and Royall actions of escaping victim entrusting not reak the chemical chain if fear of death or accidental injury is reasonable and well founded. (2) Section 275 checkup treatment of victim will not break chain if sensibly proper in circumstances and applied in good faith. Treatment includes all acts and omissions in the management of the patient (Cook). Turning off life- epoch support is not novus actus original dishonor is suave operative and substantial cause of death (Kanish). (1) Section 23B and R v Martyr Abnormality or weakness in victim will not break chain. Must take victim as you find them. (3) R v pressure group et natural fact will not break chain if it is reasonable fore sympathiseable. 4) R v Pagett Actions of third party will not break the chain if actions are an plain resolving power of what first person did. (5) Section 261 Consent to death is immaterial to issue of responsibility. Intention The speck section in s 279(1)(a) is an use to kill, and under s 279(1)(b) it is an objection to do bodily injury which endangers or is likely to endanger life. Intention is not defined in the code. In R v Willmot conception is defined as having the consequence of an action in mind. The purport is inferred from the act if the immediate consequences are obvious and inevitable (Parker v The big businessman). Code ? s279(1)(a) design to kill is murder ? s279(1)(b) Intention to cause bodily injury of a nature that endangers or is likely (Hind v Harwood) to endanger life is murder. ? s279(1)(c) (1) Death is caused by an act (2) done in the prosecution of an illicit excogitation (3)which is of the nature to be likely to endanger life. A further unlawful purpose other than killing (Stuart v The Queen). Likely is define as a substantial (real and not remote) chance (Hind v Harwood). ? s280 Manslaughter is unlawful killing that is not murder (due to omit of intention). ? 281 unlawful rapine (s 222) causing death Defence against manslaughter (s 23B accident). Only 2 elements mustiness be proved combat (s 222) and death caused. you only get to 281 after you receive said that there is a defence of 23B. although, maybe not, it could also be lackof causation, but its not really correct here with murder/manslaughter Defences ? 23A lack of will ? 23B accident ? 24 mistake of fact ? Mistake of law should be here too, if only to state that it is not relevant ? 27 monomania ? 28 intoxication ? 29 immaturity ? 248 self-defence Stealing, s378, 371 law It is an rudeness to steal under s 378. The elements (s371) to be satisfied are that (1) taking or converting (2) a social occasion capable of being stolen (3) with fraudulent intent. ? A topic capable of being stolen is defined in s 370. Anything which is the property of a person that is moveable (para 1), able to be made moveable (para 2), wild (para 4)and tame animals (para 3), electricity (s390), use of a computer (s440A), or any thing capable of ownership. Doesnt matter if belongs to person whos taking for this element ? Taking is not defined in the Code.It is defined in Wallis v Lane as moving (Clemesha) a thing from the place it originally occupied. Conversion is also not in the Code. In Illich it is defined as dealing with an object in a way that is inconsistent with the even up of the owner (not a physical movement). Defence of mistake of fact can occur at this point where there is a mistake as to the identity of transferee (Middleton), identity of thing delivered (Ashwell), and as to the quantity of thing delivered (Russell v Smith), except with money where ownership passes at point of trans fer irrespective of mistake (Illich). Fraudulent intent is outlined in s 371(2)(a) to (f). It is (a) an intent to permanently deprive owner of the thing add and to depreive of substantial value, caselaw (b) an intent to permanently deprive any person who has any special property in the thing. The intent can be inferred from the circumstances and the manner in which the incriminate deals with the property (Foster v R). An intent to deprive the owner substantially of its value is equivalent to an outright taking (R v Smails) special property see after (f) (c) An intent to use as security.This applies only where the thing is pledged or devoted as security to a third party. Does not apply where incriminate holds property until a debt owed to them by the owner of the property is paid (Parker) (d) An intent to part with it on a condition as to its return (e) An intent to deal with it in such a manner that it cannot be returned in the original condition must have changed significantly (Bailey) or (f) An intent to use money at will, even though person taking may intend to repay owner. Variable Under s371(5) conversion of lost property is not fraudulent if, at time of conversion, person taking/converting does not know who owner is AND reasonably believes that owner cannot be discovered. Variable Doctrine of recent stubbornness allows a jury to draw an inference of stealing or receiving where accused is found in possession of stolen goods soon after their theft and has no reasonable explanation as to how they came into their possession, Bruce v The Queen. Defence Legal claim of right (s22) intends accused had an honest, but not necessarily reasonable, belief that the property was theirs ( ).Robbery, s392 Law Robbery is a compound law-breaking defined in s392 as (1) stealing (2) using actual/ little terrorened violence at/ immediately before/immediately after time of stealing (3) to obtain thing stolen OR (4) to pr showcase/over light resistance to its being s tolen. Prosecution must prove offensive of stealing (as outlined on previous page). Actual or threatened violence only has be be small to fulfill this element (R v Jerome). It only needs to be of such nature as to show that it was intended to overpower the party robbed, not merely to get possession (R v Gnosit). At, immediately before or after time of stealing includes the use of violence to escape or overcome resistance (R v Hay). Stealing has a good luck element, but robbery has the added fault element of using the actual or threatened violence in order to obtain thing stolen or embarrass resistance. Circumstances of aggravation under s391 include when (1) the offender is accompanied (2) offender does bodily injure to any person (3) offender threatens to kill any person or (4) person to whom violence used/threatened is over 60. Burglary, s401 Law Burglary is defined in s401 as (1) entering or beings or is (2) at a place (3) without consent of the owner (4) with an intenti on to sanctify an offence OR actually committing an offence. ? Enter or be is defined in s400 as inserting part of body OR instrument into building. ? Place is defined is s400 as Building, structure, tent, or transferee, or part of building etc. Conveyance in s1 promoter 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 provide is open or a door. But only implied for legitimate purpose, not to commit a detestation ? Intention to commit an offence (fault element) can be create prior to entry, or may be formed 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 bodily harm to another (4) threatens to kill or injure (5) knows, or should have known, that there was close toone in the plac e. Criminal Damage and Destruction, s444 Law Criminal damage is the (1) wilful (s443) and (2) unlawful (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 inanimate thing capable of being the subject of ownership. (3) Damage or destroy is defined in Zischke as being when something is rendered imperfect or inoperative. Damage that is impermanent, ie remediable, is still damage unless its transient like chalk on a jumper. (1) Wilfully (s443) means an act or omission with the intention to damage or destroy, OR with fellowship or belief of likelihood of damage or destruction. Likelihood is (Hind v Harwood Lockwood) a real and not remote chance, regardless of whether it is less or more(prenominal) than 50 per cent. ? Omission was discussed in Miller. At the point a person becomes aware of the damage occuring, they have a duty to act. (2) Unlawfully (s441) means (1) injury to property of another (i. e. not own and not abandoned) (2) without consent AND (3) with no authorisation, unspoiltification or excuse. Defence of person or property (s441(3)) can be used if injury is deemed on reasonable grounds to be imminent. Force used must be reasonable.Common Assault, ss222, 313 Law There are two types of break defined in s222 of the Code Physical assault and threat of assault. To fulfill the requirements of physical assault there must be (1) striking, touching, moving or differently applying force (2) directly or indirectly (3) to another person without the consent of the other OR with fraudulently obtaining consent. An assault is unlawful unless authorised, justified or excuse by law (s223). 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. Unlawf ul an assault is eer unlawful unless authorised, justified or excused by law (s223). It may also 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 across exit (3)DPP v K acid in hand dryer (4) Gibbon v genus Capsicum causing horse to run someone over Without consent Consent can be express or implied, and it must be freely given (not obtained by fraud). (1) Boughey v R consent to accidental physical contact of routine life is impliedly consented to (2) Collins v Wilcock commonplace intentional but non-hostile acts are impliedly consented to. (3) Pallante v Stadiums Sporting context contact within rules and intention of sports game. (4) Ferguson Teaching context touching student to encourage. Law To fulfill he requirements of threat of assault there must be (1) a bodily act or gesture (words not enoug h in WA, but sometimes needs to be discussed anyway where there is maybe just a twitch) (2) which represents actual or apparent present ability to apply force (3) without consent OR with fraudulently obtaining consent.. Threatening words are insufficient. A conditional threat is also not a true threat of assault because the victim can repress the threatened act (Rosza v Samuals Cf Turberville v Savage). The victim need not actually 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. Offences s313 common assault s317 assault occasioning bodily harm (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 example, black eye from fight. ? Scatchard pain does not necessarily equate to bodily harm. ? Chan-Fook psychological harm. s317A assault with intent to ? commit crime ? do GBH ? resist lawful arrest/detention. s318 Serious assault is on a public officer (while they are on duty), a person playing a public function conferred on them by law, or person helping 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 settlementing bodily harm. If there is no harm, the must be endangerment of anothers life/health/safety. Endangering life and health Definitions Grievous bodily harm ? s1 any bodily injury that endangers/ is likely to endanger life, or causes/ is likely to cau se permanent injury to health. ? R v Tranby permanent disfigurement that is only cosmetic does not = GBH. ? Consent is not an element of GBH, therefore unlike 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 specific intention Unlawfully doing GBH, s297 ? flush toilet be direct/indirect act R v Clark. All that must be proved is that a person negligently breached his/her duty. Proof of intention to harm is not necessary. ? unlawful to be given ordinary meaning of prohibited by law Houghton v The Queen Relevance of s23A, s23B/ negligence Unlawfully wounding s301(1)Offences requiring a specific intention s294, Acts intended to cause GBH or prevent 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) ? Cause poison or noxious thing to be administered or taken + ? Intention to injure or annoy Threats, s338 not in exam The exposition of threat in s338 is very wide and includes any statement or behaviour that might reasonably constitute a threat to (a) ill, injure, endanger or harm any person (b) destroy, damage, endanger or harm any property (c) take or exercise control over any building, structure, or conveyance by force or violence OR (d) cause a detriment of any kind to any person. The threat must be to do one of the things in s338A. a) Gain a benefit b) Cause a detriment c) Prevent someone doing something d) Make someone do something What does detrimental mean? ? R v Zaphir ? a threat is some sort of indication of intention to cause harm or damage or to punish. ? Detriment means loss or disadvantage, or damage as opposed to benefit. ? To satisfy the offence a threat must be of such nature and cessation 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 demand Offences ? ? s338A Threats with intent to influence s338B Threats Stalking, s338D not in exam s338D defines restrain, pursue, circumstances of aggravation. Offences s338E(1) Pursuing with intention to intimidate s338E(2) Pursuing that Can be reasonably expected to intimidate AND Does intimidate Legal Capacity (defences) Children Law A Child is deemed to be incapable of committing a crime, irrespective of what they have done. Under s29 a child under 10 years is presumed incapable (not rebuttable). Between 10 and 14 the presumption of incapacity is rebuttable if it is proved by prosecution that at the time of the offence that child knew that the cover was wrong according to the standards of ordinary people M (1977). It is not clear if this test means legally o r morally wrong. Child does not need to know act was against the law. They need to know that what they did was seriously wrong as opposed to just naughty. Following facts should be taken into account Age the debase the child is on the scale between ten and fourteen, the stronger the evidence 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 understanding ? Expert evidence ? Presumption of normality (what is normal? ) ? Conduct surrounding the act Luring victim, trying to cover tracks, raceway away (= not conclusive, as children will run away if have done something merely naughty). Mode of committing the act Positive act versus omission, degree of participation, confederate influence ? Home background Abuse at home physical environment up appending. (White (1964) behavio ur the result of socialisation. ? Appearance & demeanour in court ? prehistorical 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 charged) 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 summary offences apply to bodies corporate as well as individuals. appellation Liability (= preferred test) A corporation is an abstraction. It has no mind of its own any more than it has a body of its own its active and directing 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. V icarious Liability attributing to employer what an employee does in the course of employment. Torts test, too wide. Defences Mental 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 differently expressly declared. Voluntariness of will s23A, 23B 23A Lack of will Law A person is not reprehensively responsible for an act/omission that is independent of his/her will (not acquirable as a defence where there is a duty of care owed under Ch 27). Act At common law an act can be defined both narrowly and broadly (both should be considered If narrow view taken, charge under s 266 still possible. ) which ones do the court tend to hunt nowadays? ? Narrow definition any bodily action, e. g pulling trigger of gun Kaporonovski. ? Broad definition includes all physical conduct that caused death, e. g. from ac quire loaded firearm to pulling trigger Falconer. Will Examples of unwilled acts areAn involuntary response to external stimulus (e. g. bee sting) is unwilled. An act done whilst sleepwalking is unwilled (R v Holmes).An act done whilst asleep is unwilled (Michael Jiminez) although D may be likely for act/omission immediately before falling asleep, eg madcap while tired. Sane Automatism describes a mental state where the D lacks awareness of their actions during the equip of a serious offence. Any act occurring independent of the will of the D whilst in a state of sane automatism is unwilled. In contrast to insanity, sane automatism is the result of an external stimulus (eg sudden physical/ psychological trauma, hypoglycaemia). Insanity results from an cozy mental disorder (Falconer). Test to distinguish SA from insanity (Falconer) ? Too complicated ? In an exam, this would not help you, I am sure. Its ot about who needs to prove what, as when you arguing something in the exa m, hardly ever will YOU be able to meet the standard of conclusion as its always ambiguous. You need to set out some of the limbs of the focloner test, eg (and most importantly) the test of the reasonable person. What characteristics does that person have? Its the reasonable person in the same shoes as the accused, but not with their specific weaknesses (eg an additional 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 generally ? 1st measuring Has Crown confuted sane automatism? (Standard of proof beyond reasonable discredit. Onus of proof on Crown). If not, unqualified remission. ? 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 difference of probabilities.Onus of Proof on D, since s 26 presumes every person to be of sound mind). If so, acquittal with provision that accused 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 accident A person is not criminally responsible for an event which occurs by accident (not available as a defence where there is a duty of care owed under Ch 27 R v Hodgetts and Jackson). event means the 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 harbourant (subjective element) AND 3. was not reasonably foreseeable by an ordinary person ( bearing element) Evidentiary burden on accused. Onus of proof on prosection to disp rove 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 outcome if the outcome is an element of the offence. Causation established by tests in Royall). Can be difficult to distinguish between proof of causation and obligation of P to negative accident (Jemielita). If death/GBH by a deliberate use of force, the fact that it would not have occurred but for an constipation/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 Pursuant 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 evidentiary burden of establishing that their mental impairment deprived them of ONE of the THREE cap acities in s27 (McNaghtens Case, approved by R v Porter) (1) understand what they were doing (refers to physical consequences of action, not moral 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 assess children). Mental impairment comes before the capacitiesis defined in s1 as an intellectual disability, mental illness, mindset damage or senility. The Common law helps distinguish sane and insane automatism. (1) The state of mind must be one of disease, disorder or fear arising from some 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 no t 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 reaction 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 smudge where accused unfit to stand trial. Consequence no full acquittal, but rather not guilty by reason of insanity. May mean indeterminate detention in appropriate institution. Intoxication s28 Law Intoxication (by drugs/alcohol/any other means) may be used as a flat coat 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 pr ove 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 delusion were true). ? Mistake must be honest (Subjective test). ? Mistake must be reasonable Pearce v Stanton (Objective test). ? There must be a positive belief in the existence of any state of things. Ignorance/inadvertence not enough (GJ Coles v Goldsworthy). Must be present state, not future 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 provisions of offences. (e. g. s 331, mi stake of age cannot be a defence for sexual penetration of minor under 13) Mistake of Law s24 Law Ignorance of the law is not a defense to any act/omission, unless knowledge 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 defraud. ? They must actually believe they have the right at the time of the offence, not that they may get the right in future (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 extraordinary unavoidableness (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 harmful 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 equally 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. Technical ly, 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/insane 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 than necessary was used.Excessive self-defence means murder will be downgraded to manslaughter. Provocation 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 attempted murder (Roche), or to GBH or wounding. The following elements must be proved The offenc e was against a person who offered provocation that amounted to an unlawful or wrongful act or insult. (Does the insult also have to be wrongful? 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 attempted 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 offence in the specific section in which case you dont look at s4 3 elements 1. Intention to commit an offence 2. Putting that intention into action to some extent (must go beyond mere preparative 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 preparatory 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 progress towards completion of the offence? Consider how much progress 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. Last step test (R v Chellingworth) Has the accused taken the last step towards the completed 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). Impossibility (s4, par. 3) Legal It is impossible for the accused to commit an offence only where there is no offence at law to capture 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 cannot be act 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 charged 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 agreem ent 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 that is legally impossible. You can conspire to do something that is factually impossible. facilitateing s 7(b) and (c) What is the principal offence and who is principal offender?Deal with them first Then distinguish from counselling strawman, constructive presence Law Aiding is providing support, help or assistance (R v Beck) to the PO. Aid is generally given to the PO during the commission of the offence, but c an be before the offence (Ancuta). If a person aids another in the commission of an offence they will be liable for the primary offence under s 7(b) or (c). First, there must be proof of a hotshot Offence actually committed, although conviction of a Principal Offender not necessary (R v Lopuszynski). There can be joint Principal Offenders (Mohan v R). define (b) requires proof of assistance being given for the purpose of aiding 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 exposure to the obvious).It is sufficient that the accused con templates 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 may 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 the PO (e. g. , combination of prior aid and continued nondissociating presence may constitute implied offer of continuing aid = aid under s7) (Beck). Apply to facts Conclude Counselling or Procuring s 7(d) Law If a person counsels or procures another to commit an offence they will be liable for the primary offence under s 7(d). Procure means to provide information 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 setting 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 aforethought(ip) 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 financial obligation beyond s7(d). again, not really helpful here. You need to look at 7(d) direct, and only if that is not gven, you mention 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 equiprobable consequence of the counsel. Probable is defined (Darkan v R) as more probable 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 design/ 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 probable consequence of the prosecution of the unlawful purpose.Test of whether probable 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 contemplation 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 terminate their involvement and escape their liability if they (1) withdrew from the prosecution of the unlawful purpose (2) by words or conduct communicate their withdrawal 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 dissembling or any other fraudulent means (4) obtains property f rom 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 ? craft or other fraudulent means are generally statements of fact that the defendant knew to be untrue (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