latrobe.edu.au CRICOS Provider 00115M Introduction to IRAC and legal problem- solving Ms Pascale Chifflet, Lecturer LSA, 10 March 2015

One of the functions of the law is to solve problems Problem-solving requires specific skills and techniques. You need to be able to: identify the legal issues raised by the problem at hand; find and understand the applicable law; and apply it to the particular problem to reach an outcome. Today, we will focus on legal problem-solving as a technical skill; in practice, however, contextual considerations matter

Last week Fran had an epileptic seizure on a train. Fran has suffered such seizures since she underwent brain surgery in A fellow commuter, Chris, came to her aid but was struck a blow from her elbow whilst attempting to help her. He suffered a broken nose. The police are investigating the incident and Fran now wishes to know whether she could be charged with a common law assault. Can you identify potential legal issues?

Problem-solving methodology Issue – identify the legal issue you need to resolve Rule – explain the applicable legal rule (provide relevant authorities) Application/argument – analyse how the legal rule applies to the particular factual scenario; consider how each side would argue. Conclusion – state a tentative outcome: ‘it is likely that…’ Think of it as IR A C rather than I R AC Avoid using IRAC as headings Repeat the process for each issue

Identifying issues in light of the applicable law The first step is to identify the legal issue(s) that arise out of the facts (often can be expressed as questions). There may well be more than one legal issue to resolve  deal with each issue separately and structure your overall answer accordingly. In order to identify the legal issue(s), you need to know the relevant law  often the legal issues will be related to the elements that need to be established to prove the criminal offence/cause of action. However, not every element will necessarily give rise to an issue  some elements may not be contested or contestable.

Common assault involves a voluntary act of the defendant which causes direct contact with the victim without the consent of the victim. Contact is direct when it is applied to the victim’s body or an object on which the victim is supported by the defendant’s body or via an object controlled by the defendant ( Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439) For an act to be voluntary, it must be the product of the defendant’s conscious mind and not an automatism or a reflex. That means that the defendant must have been in control of his or her body movements. Acts are presumed to be voluntary unless it can be shown that they are not ( R v Falconer (1990) 171 CLR 30). Consent may be expressly given but often it can be implied from surrounding circumstances ( Neal v R [2011] VSCA 172). Can you identify further legal issues ? How does the law affect the issues you had previously thought of?

Issues (I) The general issue you are asked to address is: Can Fran be charged with common assault? Using the elements of the offence, break the issue down into components or sub-issues: (1) was Fran’s act voluntary? (2) did it result in direct contact? (3) did Chris consent to the contact? Argue and conclude for each of these sub-issues; tie it all together at the end by answering the general issue. If your analysis of one sub-issue answers the general issue, do still deal with the other sub-issues; you could be wrong!

Application of the law to the facts (A) Do not rush your argumentation. Always consider the material facts and how the law applies to them: Some facts may not be material – ignore them. Example? Sometimes, the facts you are given may not be complete. Note it but do not invent facts. Example? Always consider both sides of the argument – how would each party argue in relation to the issue? Use distinctions and analogies with previous cases

Consider these answers: 1. ‘The act must be the product of the defendant’s mind, so the element of voluntariness is not made out in this case’ 2. ‘Fran was having a seizure and did not act consciously so the element of voluntariness is not made out in this case’ Why are they unsatisfactory?

Example of a better answer: The law requires that the act be voluntary, namely that it be the product of the defendant’s conscious mind. Automatisms and reflex actions are not considered voluntary. Acts are presumed to be voluntary so the issue is whether there is evidence that Fran’s action of striking Chris was not voluntary. In the present case, Fran appears to have struck Chris with her elbow while she was suffering from an epileptic seizure. Chris had come to assist Fran and was clearly within her reach. Arguably, Fran’s body movements at the time were uncontrolled automatisms provoked by the seizure rather than the product of her conscious mind. On the facts, one could therefore reasonably conclude that Fran’s act of striking Chris was not voluntary and that the presumption of voluntariness is rebutted. What is missing?