criminal law

2014/10/3

Criminal Law
Hanif Mughal
(麥 嘉 豪 )
Adjunct Associate Professor

(

兼任教授)

Barrister-at-law
(

大律師 )

DLS 2

BRIEF - Lecture 1
(A).General Introduction
(B). What is a crime?
(C). Principles of Criminal Liability
Chapters 1, 2 and 4 of the Workbook and some additional information
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(A) General Introduction
1.General Principles.
2. Law regulates conduct in society.
3. Division of Law into civil and criminal law.
4. Civil Law – disputes between individuals.

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5. Criminal Law
- disputes between the state and individuals.
- it is about proscriptive (prohibited) and prescriptive (preferred) rules of conduct.
6. Prosecution by the State of bad conduct.
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State is generic term.

(B) What is a Crime?
1. Morality and Illegality;
2. A crime is an injury against society.
Harmful conduct against societal interests.
3. Essence is PUNISHMENT

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4. Criminal Law acts as an instrument of and aims to

SOCIAL CONTROL protect interests.

5. By achieving the FUNCTIONS

of

criminal law

(detection, investigation, prosecution, due process, and sentencing)

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6. Crimes are called offences.
- created by statute or common law
- summary offences;
- indictable offences;
- offences triable either way;
- arrestable and non-arrestable offences.

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Basic elements of a crime

Actus Reus

-

guilty act

Mens Rea

-

guilty mind

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7. Ancient Principles of Criminal Law:
- Nullum Crimen Sine Poena;
- Nulla Poena Sine Lege;
- Actus Non Facit Reum Nisi Men Sit Rea;

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- Lex Prospicit Non Respicit.

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8. Examples of Crimes:

- Against state
- treason, sedition, etc.
- aims at protection of national security

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- Against persons
- e.g. murder, manslaughter, wounding, rape, assault, etc.
- aims at protection of persons against violence - Against property

- e.g. theft, robbery, fraud, forgery, etc.
- aims at protection of private property .

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- Against public order
- riot, drugs, motor vehicle offences, possession of offensive weapons, etc
- aims at protection of public order, peace and safety .

- Against habitation

- e.g. burglary, etc.
- aims at protection of safety & security in one’s home.

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- Against public morals
- prostitution, incest, obscenity, sodomy, gambling, etc
- aims at protection of traditional morality.

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- Against administration of justice
- e.g. bribery, resisting arrest, perjury etc.
- aims at protection of efficient / honest public administration

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9. Presumption of innocence
- Woolmington v DPP 1935
- Art. 11 BORO Cap. 383; Art. 39 Basic Law
- Accused – the person arrested is presumed innocent of the offence until proven guilty. - Adversarial system
- CX – Inquisitorial system – reverse burden.
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10. Burden of Proof on prosecution.
- on all elements of offence.
11. Standard of Proof
Proof by evidence of guilt by the prosecution

beyond a reasonable doubt.
Right of Silence by accused.
N.B. In some limited cases accused bears legal burden of proof: e.g. – insanity; diminished responsibility.
Accused discharges this on a balance of probabilities
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(c)

Principles of
Criminal Liability
Basic elements of criminal liability

(1) Actus Reus – result of accused’s act.
(2) Mens Rea – guilty mind/ frame of mind
(3) Absence of any defence.
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(1)

Actus Reus

conduct; consequences; circumstances; causation. 17

(i) refers to all external elements of a crime.
(ii) relates to the facts or all surrounding circumstances. (iii) involves a positive act;
(iv) can include an omission to act where accused is under a legal duty to act;

R v Pittwood 1902
Gate keeper at level crossing failed to close gate causing death of victim.

Stone v Dobinson 1977
Victim unable to look after herself. D’s undertook her care. Not call for medical help. Died.

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R v Gibbons & Proctor 1918
D’s child died of starvation and neglect.

R v Larsonneur 1933
French lady brought to U.K by force by Irish
Police.

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(v) duty to act may arise from creating a dangerous situation
R v Miller 1983
Trespasser set fire to mattress.
CX. Should a drug trafficker owe a duty of care to their clients?
R v Khan 1998
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(vi) Causation must be established
Unlawful act of Defendant

R v Cox 1992
Lethal injection by doctor

In law and on the facts
- factual causation

R v White 1910 the “but for” test
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R v Carey 2006
V 17 years old was punched by D in affray. V ran uphill to hospital. Died of a heart attack. No knowledge of condition by victim, D or hospital.

Can you say victim would not have died “ the punch?

but for”

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legal causation
R v Smith 1959
D stabbed V in a fight. V rushed to “medical station” in army barracks. V dropped twice on way.
Given “bad” medical treatment. No blood transfusion. V died.

Original wound still substantial threat
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Defendant must take his victim as he finds him
R v Blaue 1975
Jehovah’s witness stabbed by D. Refused blood transfusion. R v Dear 1996
Within range of responses

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Unforeseeable intervening acts?
R v Pagett 1983
Using girlfriend as a “shield”.

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Nota Bene
Actus Reus must be voluntary act not include:
- acts under hypnosis;
- acts done whilst sleepwalking;
- words (cx assault/conspiracy) .

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(2) Mens Rea refers to state of mind of accused.
- is the awareness of his actions.

Most crimes require this element. 27

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Mens Rea – refers to 3 states of mind:
(i)

Intention

(aim, purpose or desire)
- doing something purposively
- doing something knowingly
(subjectively aware of a substantive certainty or practical certainty of result)
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(ii)

Recklessness
(conscious disregard of a substantial and unjustified risk)

(iii)

Negligence
(failure to achieve the standard expected of a reasonable person)

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N.B.
-

Strict Liability Offences

No need to show mens rea.
These are regulatory offences.
Statutory in nature.
Include construction site safety, public health, pollution, public nuisance etc
Cundy v Le Cocq 1884
D sold liquor to a drunken person. D did not know
V was drunk. Convicted.

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What if offence is silent on mens rea?
For most offences, under the common law, there is a presumption of some mens rea being required. B (a minor) v DPP 2000

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B – a 15 year old boy.
Repeatedly asked a 13 year old girl on a bus for oral sex.
Girl refused.
B was convicted of inciting a child under 14 to commit an act of gross indecency.
B honestly thought V was over 14.

On appeal to House of Lords, it was held that: this is not strict liability offence; mens rea is the subjective honest belief by D that V was over 14.

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