LAWS1206 Final: CRIM exam notes legit
Authority NSW – Common Law: The prosecution bears the burden of proving each and every element of the offence beyond a reasonable doubt: Woolmington.
ACT – Criminal Code Sections Apply: The prosecution bears the burden of proving each and every element of the offence beyond a reasonable doubt: s 56
& 57 Criminal Code (ACT)
Presumption
of
voluntariness
Ryan v The Queen – AR is presumed to be voluntary if there is no evidence to rebut the presumption.
-apparently willed and conscious action is presumed to be voluntary
To rebut:
1. Prosecution needs to prove nothing
2. Unless the D rebuts the presumption by showing reasonable possibility or BoP of involuntariness
3. If so, then the prosecution has the evidentiary/legal burden to prove BRD that act was voluntary
Consent The prosecution carries the burden of proving that the victim did not consent to the assault: R v Clarence (1888) 22 QBD 23,36; Woolmington v DPP
Assault: May not be able to consent to:
some forms of ABH/GBH if beyond scope of consent:
Lergesner v Carroll (1989) 49 A Crim R 51 (Qld)
some forms of homosexual sadomasochism:
R v Brown [1992] 2 WLR 441 (even if exp group using code words etc)
some forms of heterosexual sadomasochism:
R v Emmett [1999] EWCA Crim 1710 (asphyxiation causing lack of consciousness; burning lighter fluid on breasts during panicked movements)
R v Stein (2007) 18 VR 376 (eg. when can’t communicate moment when initial consent may be withdrawn b/c gagged etc)
Causation “the conduct of the accused and his state of mind at the time of the conduct.” R v Miller [1983] 2 AC 161, 174 (Lord Diplock)
Simple case = Campbell v The Queen
More complex cases? operating and substantial cause test
Where there is an NAI? the three Royall tests
Causation tests: Royall
The starting point is whether the conduct was a substantial cause of the victim’s death (it does not need to be the sole cause) + where an act by the victim is
argued to be an NAI, an additional test may come into play:
Operating and substantial cause test (Toohey and Gaudron JJ; R v Hallett)
When the victim died, was the relevant act a still-operating and substantial cause of death? Royall; Arulthilakan; McAuliffe
The relevant need not be the sole cause so long as it contributed significantly to the death Pagett
When NAI acts are argued, the reasonable foreseeability and natural consequence tests must be considered Hallet; Royall
Did a’s conduct act a substantial and significant cause of v’s response (amounting to v’s death)?
‘there may be no single cause of death ... but if a’s conduct is a substantial or significant cause ... that will be sufficient given relevant intent to
sustain a conviction of murder’
Reasonable foreseeability test (citing Hallett)
Would a reasonable person (objective) have foreseen the consequence of the accused’s conduct?
Death, but not the precise manner of its occurrence must have been reasonably foreseeable = within the normal range of expected outcomes
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Brennan J: ‘taking of the final step [must be] objectively reasonable (or proportionate) & forseen or reasonably foreseeable by accused’
Natural Consequence Test (Mason CJ, Deane and Dawson JJ)
oMason CJ, Deane and Dawson JJ; Was death a natural consequence of D’s conduct? (ie was the victim’s action (the intervening act) a natural
consequence of the accused’s behaviour?)
o'...where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or
reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused's conduct'
Did a induce in v a ‘well founded apprehension of physical harm’?
Was v’s response a ‘natural consequence’ of this conduct?
Novus Actus Interveniens
The chain of causation will be broken if a subsequent event renders the prohibited consequence (death) no longer reasonably foreseeable, substantial
cause or natural consequence of the accused’s act
An act independent of the accused, of an objectively unpredictable, unnatural or unexpected character, may break the chain of causation
Conduct accelerating the death of the victim may be sufficiently significant to break the chain of causation R v Evans
Act of third party
The act of a third party will break the chain of causation where it is ‘free, deliberate and informed’ Pagett
Unconscious actions by the victim are not free, deliberate and informed and will not break the causal chain – R v Hallet
Negligent medical treatment / refusing medical treatment
Medical treatment will only sever the causal connection in extraordinary cases of gross negligence Evans & Gardiner
Original wound must be rendered merely part of history
Even inept failures in diagnosis are unlikely to sever the causal connection Evans & Gardiner
We must take the victim as we find them Blaue
Acts of victims
Courts are unwilling to view a victim’s actions as breaking the chain of causation Blaue
Escaping violence – where a victim is killed seeking to escape violence of the accused, their own actions may break the chain of causation if: the fear
was well founded and reasonable and their response was proportionate to the accused’s conduct Royall
Refusing medical treatment – see above
Natural forces – expected/reasonably foreseeable natural force like sea tides but not earth quakes or tsuanmis Hallet
Intention “Intent, in one form, connotes a decision to bring about a situation as far as it is possible to do so – to bring about an act of a particular kind or a
particular result. Such a decision implies a desire or wish to do such an act or to bring about such a result.” He Kaw Teh v The Queen (1985) 157 CLR
523, 569 (Brennan J)
Knowledge Knowledge entails a person being aware:
that a particular consequence will result from his/her conduct OR
of the existence of a particular circumstance.
“Wilful Blindness”: When a person deliberately refrain from making inquiries once suspicions aroused – accused I deemed to possess requisite knowledge of
a reasonable person in their position, even though they have deliberately refrained from making enquiries or wilfully shut eyes for fear of learning the truth
Knowledge means Actual Knowledge, “wilful blindness” has purely evidential role Kural (1987) 162 CLR 502 and Pereira (1988) 82 ALR 217).
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Recklessness Subjective Awareness of Risk
Acting with foresight of possible consequences (general application)
offences other than murder: R v Coleman (1990) 19 NSWLR 467
risks that are ‘substantial’ or ‘real and not remote’: Boughey v The Queen (1986) 161 CLR 10.
Acting with foresight of probable consequences (murder only)
La Fontaine v The Queen (1976) 136 CLR 62;
R v Crabbe (1985) 156 CLR 464.
RULE BREAKER: Failing to even turn mind to question of consent (sexual assault)
R v Kitchener (1993)
Indifference
‘It is not the offender’s indifference to the consequences of his [or her] act but his [or her] knowledge that those consequences will probably occur that
is the relevant element’ R v Crabbe (1985) 156 CLR 464
RECKLESS INDIFFERENCE TO HUMAN LIFE [MURDER] FORESIGHT OF PROBABILITY (CRABBE) – foresight must be of DEATH
RECKLESSNESS FOR ALL OTHER CRIMS FORESIGHT OF POSSIBILITY (COLEMAN)
Coleman recklessness requires a realisation on the part of the accused that the particular kind of harm done… might be inflicted (that is, may possibly be
inflicted) yet the accused went ahead and acted’: (1990) 19 NSWLR 467, 475 (Hunt J).
Royall “the prosecution was required to prove that the applicant adverted to the fact that the probable consequence of his actions was death and that he
nevertheless took the risk of death occurring.” (Deane & Dawson)
Criminal
negligence
A person has acted with criminal negligence if his or her conduct falls short of how a reasonable person in that position would have acted to a criminal or
gross degree.
See Nydam [1977] 430 at 445 for the test of negligence in the context of manslaughter: ‘such a great falling short of the standard of care which a reasonable
[person] would have exercised and which involved such a high degree of risk that death or grievous bodily harm would follow that the doing of the act
merited criminal punishment.’
Strict v
Absolute
liability
STRICT LIABILITY
Strict liability offences require proof of AR only
But they allow the defence of honest and reasonable mistake of fact if Proudman v Dayman test fulfilled:
i. It was mistake and not mere ignorance
ii. Mistake is one of fact
iii. Mistake must be honest and reasonable
iv. Mistake must render the accused’s act innocent
Honest and reasonable mistake defence can be expressly or implicitly excluded by the statute He Kaw Teh
Once raised, P must prove BRD that accused did not have an honest and reasonable mistaken belief in
facts which, if true, would have rendered the accused’s act innocent Proudman v Dayman
D bears evidential burden provides evidence of the mistake of fact or pointing to evidence in the Ps case
from which such a mistake may be inferred He Kaw Teh
ABSOLUTE LIABILITY
Absolute liability offences require proof of AR
only
No defence of honest and reasonable mistake of
fact is available
Determining if the presumption of MR is displaced, must consider: (He Kaw Teh)
i. Language of the section creating the offence
ii. Subject matter of statute
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Document Summary
Nsw common law: the prosecution bears the burden of proving each and every element of the offence beyond a reasonable doubt: woolmington. Act criminal code sections apply: the prosecution bears the burden of proving each and every element of the offence beyond a reasonable doubt: s 56. Ryan v the queen ar is presumed to be voluntary if there is no evidence to rebut the presumption. apparently willed and conscious action is presumed to be voluntary. To rebut: prosecution needs to prove nothing, unless the d rebuts the presumption by showing reasonable possibility or bop of involuntariness. If so, then the prosecution has the evidentiary/legal burden to prove brd that act was voluntary. The prosecution carries the burden of proving that the victim did not consent to the assault: r v clarence (1888) 22 qbd 23,36; woolmington v dpp. Assault: may not be able to consent to: some forms of abh/gbh if beyond scope of consent:
