Criminal Law and Procedure Revision Seminar Felicity Fox LSS Tutorial Program:

General Exam Advice  Worth 60 marks  Part A: 40 Marks  1 x 30 mark question  1 x 10 mark question  Part B: 20 marks (second reading speech)  2 minutes = 1 mark

General Exam Advice  Use headings  Refer to cases  Apply the facts  Speak to the alternative  Guide the examiner through your train of thought

How to answer a problem question generally  Issue  Relevant Law  Application to facts  Conclusion

How to study for exams  Past exams   Make your notes, and then your exam notes … and then your short exam notes … and the your exam script …  Go through problems with friends  Go through tutorial booklet problems

Basic outline for Homicide Question  Introduction  Actus Reus  Voluntariness  Causation  Mens Rea  Defences  Conclusion

Basic outline for Manslaughter  Introuction  UDA MS; or  Negligent Manslaughter; or  Manslaughter by Omission  Defences

Basic outline: Common Law Assault  Introduction  Actus Reus  Voluntary & Positive Act  Apprehension of Imminent Force  Mens Rea  Intention/Recklessness

Basic Outline: Statutory Assault  Introduction (what is the section?)  AR  Will be defined by the particular words of section  Mens rea  Will be defined by the particular words of section  Defences

Murder: Introduction  Introduction  Murder is a common law offence punished at s3 of the CA  Sir Edward Coke

Murder: Actus Reus  Voluntariness  Presumption of voluntariness ( R v Falconer)  Intoxication? ( R v O’Connor)  Causation  Operating and Substantial Cause? ( R v Hallet)  Was there an NAI?  Contributory acts by a third party? ( R v Pagett)  Medical treatment? ( R v Evans & Gardiner (no 2)  Flight and self preservation? (Royall v R)

Murder: Mens Rea  Intention to kill?  Intention to cause GBH?  DPP v Smith  Recklessness as to kill/to cause GBH  R v Crabb

Murder: Mens Rea  Transferred malice ( Saunders and Archer)  Constructive murder?  ‘in the course of furtherance of a crime the necessary elements of which include violence (s3A Crimes Act)  R v Butcher  R v Ryan & Walker  R v Galas

Murder: Mens Rea  Mental state defenses are relevant to MR?  Intoxication? ( R v O’Connor)

Manslaughter: Introduction  Manslaughter is a common law offence and is charged under s5 of the Crimes Act

Manslaughter: UDA MS  Prosecution need to prove 3 things: 1. The act causing death must be unlawful ( R v Franklin) 2. Causation: act must have caused death (refer to discussion of causation above) 3. The Act must be objectively dangerous (W ilson v R)  Fault element: accused intended to commit the relevant act ( R v Williamson)

Manslaughter: Negligent Manslaughter  Test in Nydam :  “was there such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or serious bodily harm would follow ?”

Manslaughter: Negligent Manslaughter 1. Is there a duty of care owed by the accused to the victim? 2. If so, what is the standard of care required? 3. Has there been a gross departure from the standard of care that constitutes criminal negligence?

Manslaughter: Manslaughter by Omission 1. Was there a legal duty?  R v Instan  R v stone & Dobson  R v Miller  R v Tak Tak

Defences: Self Defence Non fatal offences  In Victoria, the defence of self-defence is found at common law  The accused bears only an evidential burden; the Crown must disprove self- defence beyond reasonable doubt  Zecevic:  Did the accused believe, on reasonable grounds that it was necessary in self- defence to do what he or she in fact did?

Defences: Self Defence Non Fatal Offences  Subjective Test:  In applying the subjective test, all of the personal circumstances of the accused are potentially relevant  It is how the DEFENDANT saw the situation  Objective test:  ‘It is the belief of the accused, based upon the circumstances as the accused perceived them to be, which has no be reasonable, and not that of the hypothetical reasonable person in the position of the accused’

Defences: Self Defence Accused’s mental stateVerdict Honest belief on reasonable grounds Acquittal Honest belief, not based on reasonable grounds Defensive Homicide No honest beliefMurder

Defences: Self Defence - Murder  Accused bears evidential burden, Crown must disprove self defence: BRD  Subjective Test – s9AC  Reasonable Grounds – s9AD

Self Defence: Defensive Homicide  s9AD  A person who, by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) nad liable to level 3 imprisonment if he or she did not have reasonable grounds for the belief referred to in that section

Defences: Family Violence  s9AH  Family Violence in relation to a person, means violence against that person by a family member (s9AH(4))  Violence includes physical, sexual and/or psychological abuse (s9AH(4)  Violence may include a single act, or a series of acts even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial (s9AH(5))

Defences: Self Defence Manslaughter  s9AE  Subjective test  Objective Tes

Defences: Necessity & Duress  R v Dudley and Stephens

Defences: Intoxication (SD)  Relevant to MR & AR as discussed above  s9AJ  Reasonable belief  Reasonable grounds for a belief  Reasonable response  Must be taken as a sober person, unless that intoxication was not self-induced

Defences: Consent  R v Brown  Exceptions:  Tattooing & branding: R v wilson  Surgery  Boxing  Female genital mutilation  Male circumcision

Statutory homicide  Defensive Homicide: s 9AD  Culpable driving causing death: s.318  Dangerous driving causing death s319  Suicide pact: ss.6A, 6B, 463B (prevention of suicide)  Abortion: s.65&66;  Infanticide: s.6

Common Law Assault  “An assault is any act which intentionally – or possibly recklessly causes another person to apprehend immediate and unlawful person violence” ( Fagan)

Common Law Assault  AR  Voluntary & positive act  Omissions not sufficient Fagan  Mere words may be enough R v Ireland, R v Knight  Apprehension of imminent Force  Must have actual knowledge Pemble v R  Future violence Zanker v Vartzokas  Condition threat will be an assault unless D has right to impose that condition Rosza v Samuels  Apprehension Barton v Armstrong  Fear Ryan v Kuhl

Statutory Assault OffenceSectionActus ReusMens Rea Threats to killS20 Voluntary & positive Act Threats o kill Intention that V will fear threat will be carried out (20(a)) Recklessness as to V threat will be carried out Threats to inflict serious injury S21 Voluntary & positive act Threats to inflict serious injury (as per s15 – combination of injuries) Intention that V will fear threat will be carried out (s20(1)) Recklessness as to V threat will be carried out

Statutory Assault OffenceSectionActus ReusMens Rea Intentionally causing serious injury S16Voluntary and positive act Causation/dir ectness Serious injury Intention Recklessly causing serious injury S17Voluntary & positive act Causation/dir ectness Serious injury Recklessness Causing Injury Intentionally/rec klessly S18Voluntary & positive Act Causation/dir ectness Injury * Intention/reckles sness