LAW 2599 Lecture Notes - Lecture 12: Defense Of Infancy, Young Offenders Act, Absolute Liability
23 May 2018
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PQ PROCESS
STEP 1: issue spot. List all potential offenders/ accused that prosecution may bring an action against. Consider each
offender separately.
STEP 2: ASK: can the accused actually be charged?
• Not if under 10 s 5 Young Offenders Act
• If between 10 and 14, presumed doli incapax- child is incapable of forming criminal intent (can be rebutted by
prosecution)
STEP 3: Charge selection
• If multiple- s 330 CLCA authorises prosecution to bring more than one charge. consider most relevant first
• Identify most appropriate charge/ charges for the accused
o MURDER
▪ attempted murder s 270A - go to attempts notes
o ABORTION
▪ separate offence- not murder because beginning of life principle not satisfied.
▪ Attempted abortion s 81 – go to attempts notes
o MANSLAUGHTER
▪ Attempted manslaughter
o NON-FATAL, NON-SEXUAL OFFENCE AGAINST THE PERSON
▪ AGGRIVATED offence? s 5AA
▪ attempted offence? s 270A – go to attempts notes
▪ DIV 7A
• CAUSING HARM INTENTING TO CAUSE SRS HARM S 23(1)
• CAUSING HARM AND BEING RECKLESS AS TO CAUSING HARM S 23(3)
• CAUSING HARM INTENFING TO CAUSE HARM S 24(1)
• CAUSING HARM BEING RECKLESS AS TO CAUSING HARM S 24(2)
▪ DUV 7
• ASSAULT S 20(1)
• ASSAULT CAUSING HARM S 20(4)
o SEXUAL OFFENCE- RAPE S 48
▪ attempted rape? S 270A – go to attempts notes
o THEFT/ ROBBERY
▪ attempted theft/ robbery? S 270A – go to attempts notes
▪ AGGRIVATED offence? s 5AA
o ATTEMPTS- see attempts notes
STEP 4: ELEMENT ANALYSIS- go to relevant notes to identify the relevant elements
1. Physical elements
2. Fault elements
3. any inherent statutory defences?
4. State if a full fault/ strict liability/ absolute liability offence
a. Full fault: PE + FE- principle of contemporality needs to be satisfied
b. Strict liability: Need only prove PE. No requirement of FE to accompany PE (eg drive under
disqualification)
c. Absolute liability: Need only prove PE. No requirement of FE to accompany PE. Regardless of
mental state (eg produce child pornography – R v Clarke)
d. If uncertain if SL or AL- He Kaw Teh analysis (below)
i. If interpretation favours both SL and AL, SL is favoured as defence of RMOF is available to
D, and criminal offences are construed in favour of D when there is ambiguity
STEP 5: For the prosecution to succeed, they must prove these elements beyond reasonable doubt
STEP 6: assess the client’s liability
1. IF RELEVANT- Clarify statutory definitions
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
List all potential offenders/ accused that prosecution may bring an action against. Step 2: ask: can the accused actually be charged: not if under 10 s 5 young offenders act. If between 10 and 14, presumed doli incapax- child is incapable of forming criminal intent (can be rebutted by prosecution) If multiple- s 330 clca authorises prosecution to bring more than one charge. consider most relevant first. S 270a go to attempts notes: aggrivated offence? s 5aa, attempts- see attempts notes. No requirement of fe to accompany pe (eg drive under disqualification: absolute liability: need only prove pe. D, and criminal offences are construed in favour of d when there is ambiguity. Step 5: for the prosecution to succeed, they must prove these elements beyond reasonable doubt. Step 6: assess the client"s liability: if relevant- clarify statutory definitions, voluntariness, see defence notes but raise here. Step 8: burden of proof of the statutory defence.
