Criminal Notes Australia

- MURDER

* Murder is under the “Fatal offences against a person- causing homicide” in the Crimes Act (s188, punishment (s19A)

Physical Element- Before a person may be convicted of murder the Crown must establish the following elements: 1. An Act or Omission 2. Caused by (causation) HAVE TO ESTABLISH ALL 3. Death charged

Fault Element- 1. Reckless indifference to human life 2. Intent to kill ONLY HAVE TO ESTABLISH ONE 3. Intent to conflict grievous bodily harm 4. While committing a crime that carries life or 25 years (constructive murder)

Murder v Manslaughter- MCCOC –Fatal offences against the person – TB pg 73
“Murder is reserved for what are, morally, the most serious cases of homicide, manslaughter has always been a residual category, and as a consequence remains a notoriously ill-defined offence…. Uncertainty on the question where to draw the line between murder and manslaughter has prompted proposals to abolish the distinction so as to merge murder and manslaughter into a single offence of unlawful homicide…. The proposal has won few adherents.”

CRIMES ACT 1900 - SECT 18
Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.

CRIMES ACT 1900 - SECT 19A
Punishment for murder (1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person’s natural life. (3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life). (4) This section applies to murder committed before or after the commencement of this section. (5) However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply. (6) Nothing in this section affects the prerogative of mercy. PHYSICAL ELEMENT-
THE PHYSICAL ELEMENT ACT- * The act must be voluntary * s18 (2) (b) - “No punishment or forfeiture shall be incurred by any person who kills another by misfortune only” * R v Ryan- Prosecution must show a clearly identifiable “act” that they claim cause the death charged – e.g. the accused shot, stabbed, smothered or in some way killed the deceased. * R v Katarzynski– see in particular points 26 – 30 at TB page 82-83 – if “there exists a reasonable possibility that the act which caused the death of the deceased was not deliberate but was unintended and involuntary… then the accused is not guilty of murder.” * Act has to be voluntary and intended

PHYSICAL ELEMENT OMISSION- * When can an omission be AR for homicide? * Airedale NHS Trust v Bland “where the accused was under a duty to the deceased to do the act which he omitted to do, such an omission can constitute the actus reus of homicide…” * R v Taktak
The following three requirements must be satisfied for manslaughter by omission: 1. That the defendant undertook the care of a person who by reason of age or infirimity was unable to care for himself 2. That the defendant had been grossly negligent in fulfilling that duty of care. 3. That the deceased died by reason of this negligence.

Stone and dobinson ( 1977)

Ted Stone was 67, totally blind, partially deaf had no appreciable sense of smell and was of low intelligence. He lived with his housekeeper and mistress of 8 years, Gwendolyn Dobinson aged 43 who was described as ineffectual and inadequate. Ted's sister Fanny came to live with them. She had previously lived with another sister but had fallen out with her. She had mental problems and was suffering from anorexia nervosa. Ted and Gwendolyn took her in and agreed to look after her. However, Fanny's condition deteriorated and she was found dead in her bed in appalling conditions.

Stone and Dobinson were found liable for her death as they had assumed a responsibility to her by taking her in. They failed to look after her and ensure she got the medical help she needed.

Defendants argued that, fanny was at fault and because of her own eccentricity , and failure to look after herself, because she was of age and sound mind..

However the court rejected the proposition, whether or not fanny was a lodger, she is of blood relation to tone, she was occupying the room in his house, and dobinson had undertaken the duty of looking after her – and a duty had been assumed – thus as she became infirm, the appellants were in the circumstances obliged to summon help or look after her themselves.

Taktak (1988)
Facts : a herion addict was rung up by his dealer who requested that he come and pick up a prostitute from the party , who had become incoherent after administering
- T arrived and found V in the foyer moaning, and unable to speak. He took her back to his dealer’s house and tried to revive her.
- The next morning , dealer returned home and being unable to revive V, went to a doctor.
- T arrived at the surgery shortly after him.
- By the time the Doctor went to see V, she was already dead of a heroin overdose. T was charged with manslaughter.

REASONING :

- The Court of Appeal applied the test :
(1) Was the defendant under a legally recognised duty to act ? It was held that he assumed a legal duty of care when he removed her from any potential medical assistance that she may have obtained from others.
(By taking her away, he also took away the chance that others may come to her aid and obtain speedy medical assistance fore her – this chance denied to her was held to be significant.
(2) Was this breach of duty criminally negligent? The Court stated that ‘mere negligence and mere inadvertence is not enough’.
[ That is does it involve such a falling short of the duty of a reasonable person in those circumstances as to warrant criminal punishment ? ]
It was noted that Taktak had no medical knowledge, and was a heroin addict himself. There was no evidence that the appellant knew she was about to die. He was negligent, but not criminally negligent.
(3) Did his breach result in her death ? It was held that there was unsatisfactory medical evidence as to what hour she died at, and whether her death could have been prevented by the administration of narcan.
HELD : TakTak’s conviction was quashed. *

PHYSICAL ELEMENTS- “THAT CAUSED”- CAUSATION- * Royall v R – “if the accused’s conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder”; Arulthilakan v R * R v Moffatt – “Accused must take their victim as they find them.”
Causation :
The key element in the chain of causation, as completed by the direction , is that an accused’s conduct creates in the mind of the vicim a well founded and reasonable apprehension of danger as a result of which the victim takes steps to escape leading to his/her death. According to this view it is enough that the victims apprehension of danger is well founded and reasonable : there is no requirement that the steps taken to escape should be reasonable

Royall (1991)

The appellant was charged with the murder of Healey, who was an ex girlfriend. She had lived with the appellant for some months prior to her moving out after a quarrel. One evening she returned to the appellants place, in which he assaulted her, as a result she locked herself in the bathroom. In accordance to the appeallants story, he forced the door open because he was scared for her health and safety: however evidence suggests that a struggle had taken place, and that the appeallant has murdered H in one of three ways 1) pushed or forced her out of the window 2) she fell out of the window after retreating from a physical attack 3) she had a well rounded and reasonable apprehension, that if she remained in the bathroom, she would be subjected to life threatening violence from the appellant

* Royall v R – “if the accused’s conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder

* : “at common law there are 4 tests to determine causation - operating and substantial cause test, the natural consequence test; the reasonable foresight of the consequence test; and the novus actus intervenes test. An unbroken chain of causation from T’s acts to L’s death must be established. The preferred test is the, operating and substantial cause test where the victim acts to avoid what they perceive to be immediate peril, the accused with be liable (according to Mason CJ in Royall)”
Four tests:

1. Substantial cause test: whether the accused’s conduct was a substantial cause

* R v Pagett (1983).

2. Natural consequence test: A natural consequence that the victim would seek to escape and the victim is injured in the course of the escaping, the injury is caused by the accused’s conduct

* Royall v The Queen

3. Reasonable foresight of the consequence test: Examining whether the consequences of the accused’s conduct were reasonably foreseeable, cast as an objective test what a reasonable person would have foreseen

* R v Hallett [1969].

4. Novus actus interveniens test: Even if the defendant can be shown to have acted negligently, there will be no liability if some new intervening act breaks the chain of causation between that negligence and the loss or damage sustained. The acts of the victim can include : a. seeking to escape violence -Royall v The Queen ; b. failing to take medical advice - R v Bingapore (1975); and c. suicide - People v Lewis (1899).

Predictable events do not break the chain

PHYSICAL ELEMENT- “THE DEATH CHARGED”: DEATH OF A LIVING PERSON-
When is someone alive?
Murder - * Section 20 Child murder--when child deemed born alive * On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not. * R v Hutty- adopted the Crimes Act section 20 child murder- when child deemed born alive

Manslaughter -
R v Iby – “born alive” p 97- “Any sign of life after delivery is sufficient…” FAULT ELEMENT-

MURDER- FAULT ELEMENT: RECKLESS INDIFFERENCE TO HUMAN LIFE-

* S18 “was done or omitted with reckless indifference to human life” * R v Solomon – reckless indifference to human life – not foresight of probable grievous bodily harm. * * Crabbe (1985)

* After a drunken night out and being ejected out of the bar, drove his work equipment into a bar, which resulted in the death of 5 persons * * Murder is unlawful hoomocide with malice aforethought. Malice aforethought means a) an intention to cause the death of , or grievious bodily harm to, any person, whther such person is the person actually killed or not; b) knowledge that the act which causes death will probably cause the death or grevious bidily hard to, some person, whether such person is the person actually killed or not, although such knowledge is accompanies by indifference whether death or grievious bodily harm is cause or not, or by a wish that it may not be caused… * * a reckless indifference to human life, meaning that the accused foresaw the probability that death would result from his or her act or failure to act. (in Royall v The Queen (1991) 172 CLR 378, following the decision of R v Crabbe (1985) 156 CLR 464 in relation to the requisite mental element for “reckless indifference”, with the qualification that under the NSW legislation, unlike the position at common law, the accused must be shown to have foreseen the probability of death, rather than simply the probability of grievous bodily harm or the possibility of death.) * * the test is whther the accused person knew that his actions would probably cause death or grievous bodily harm. * * In NSW, the defendant who is recklessly indifferent to serious bodily harm and not to death itself will be guilty of manslaughter, rather than murder. *

FAULT ELEMENT- “INTENT TO KILL” OR “INTENT TO CAUSE GREVIOUS BODILY HARM” S18- * “intent to kill” – acc had the aim or purpose to cause death * “intent to cause grievous bodily harm” – at the time of performing the act/ om that caused death, acc had the aim or purpose to cause GBH * s 4 Crimes Act * R v Stokes and Difford

FAULT ELEMENT- CONSTRUCTIVE MURDER- * Acc’s act/ om causing death is done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (s 18) * R v Jacobs and Mehajer – who committed the act causing death? The accused or his accomplice? Does this matter? p 107
Constructive murder refers to death caused during an attempt to commit another crime. Constructive murder is incorporated within the normal murder provisions in s 18 (1) of the Crimes Act 1900 (NSW) (it is not explicitly labelled as constructive murder). The part concerning constructive murder is summarised below: * The mens rea requirement for murder will be automatically satisfied if the accused (or an accomplice) caused death during: 1. an attempt to commit; or 2. during the commission; or 3. immediately after the commission, * of a crime punishable by imprisonment for life or for 25 years.
This means that, in the relevant circumstance, the prosecution does not need to prove intent or mens rea for murder - merely a proof of voluntariness is required. * Does not matter if the consequence was accidental: Ryan.[1] * No need for full-blown causation between the act and the death, only substantial contribution: Munro.[2] * No need for a risk of death to have been foreseeable to the accused: Munro.[3]

Ryan (1967)
Facts
• Def was in process of committing an armed robbery - had gun ready, he claims it went off involuntarily - he pulled the trigger but accidentally.
Issues:
• No mens rea requirement with respect to injury/death
• No defences available could only claim it was involuntary, to negative actus reus
Crown faced problem that s97 (armed rob) didn’t carry penalty of 25 years/life, so had to use s98: armed robbery with wounding. Only needed to show mens rea for robbery, not wounding.

Held
• Constructive murder does not require intent to commit murder, as long as it is voluntary. (voluntariness was proved because of the chain of events leading up to the discharging (ie, loading, cocking, pointing the gun))

• Majority held that both elements of s98 satisfied: there was armed assault with intent to rob, and wounding, (didn’t need to show intent to wound: just that it was voluntary)
• DECISION: There was constructive murder.

It is disturbing that in constructive murder only need to show mens rea of other crime (not murder): in Ryan, only needed to satisfy mens rea for robbery in order to convict for murder

Munro (1981)

S95 of the crimes act 1900

Whosoever robs, or assaults with intent to rob, any person or steals any chattel, money, or valuable security from the person of another, and immediately before, or at the time of, or immediately after such robbery, assault, or larcency from the person, strikes, or uses any other corporal ciolence to any person, shall be liable to penal servitude for twenty years

S96

Whoever commit any offence under section 95, and thereby wounds any person, shall be libale to penal servitude for life

Facts : a man broke into the apartment of a 92 year old man. He asked the old man where is money was, to which the old man told him he had none. He punched the old man in the face and chest, and proceeded to steal valuables and asthma puffers. Two days later the old man died in hospital, from pneumonia. Pg (453)

Held: direct causal connection is not required between wounding and death, only that the injuries sustained were an operative and substantial contributing cause of death. Furthermore, there is no requirement to prove that the accused or a reasonable person would have realised that there was a risk of death.

In short, these cases entail that even an accidental killing during the commission of an offence can qualify as constructive murder, regardless of intent, foreseeability, or direct causation.

WEEK 6- INVOLUNTARY MANSLAUGHTER CHAPTER 4
Voluntary manslaughter- Where a mental element sufficient for murder is present, but where there is a partial defense (provocation, substantial impairment due to abnormality of mind excessive self defenses, or the mental state sufficient for infanticide reduces what would otherwise be murder to manslaughter.
Involuntary manslaughter- when unlawful killing, however the mental element for murder is not present, but where the accused act or omission that caused the death is sufficiently culpable to warrant punishment.

Two Forms of Involuntary Manslaughter: 1. Manslaughter by an unlawful and dangerous act 2. manslaughter by criminal negligence

Wilson v R- page 156
Facts-
Appellant and girlfriends were walking down street to by alcohol. Drunken man stopped them. Girlfriend went to get other guy to buy alcohol. Both gf and other guy came the appellant claimed that the deceased had tries to push him etc. The appellant then hit the deceased once, he died. The other guy then went and bashed his head twice on the ground.
Quotes:
* The killing of a man in the course of committing a crime is manslaughter * In DPP v Newbury it claimed that- an accused was guilty of manslaughter if he intentionally did an act that was unlawful and dangerous and the act inadvertently caused death; that it was unnecessary to prove that the test was still the objective test, namely whether all sober and reasonable people would recognize that the act was dangerous in the sense of carrying with it the risk of some harm, not whether the accused recognized its danger * Gray v Barr- the judge who lead the leading judgment appears to imply that harm is likely, although that is not necessary if the act is objectively dangerous * Windeyer JJ- death resulting from the intention infliction of pain by an unlawful blow would constitute manslaughter at common law * Owen JJ- There is however no doubt that at common law a man is guilt of manslaughter if he kills another by an unlawful blow, intended to hurt, although not intended to be fatal or to cause grievous bodily harm * R v Holzer- “Holzer” test- the circumstance must be such that a reasonable man in the accused’s position, performing the very act which the accused performed, would have realised that he was exposing another or others to an appreciable risk of really serious injury… it is not sufficient as it was held to be in R v Church.. to show there was a risk of some harm resulting, albeit not serious harm * Battery Manslaughter? * Stephen J- If death results from an act which is malum in se (inherently wrong, or wrong in itself), it may be murder or manslaughter, as circumstances may vary the nature of it. If death results from an act which is merely malum prohibitum (wrong under the law), it will be manslaughter.

Elements of Unlawful and Dangerous Act Manslaughter- * The unlawful and dangerous act must carry with it an appreciable risk, or likelihood, of serious injury. It is not necessary that the accused was aware that the act was dangerous provided that a reasonable person would have appreciated that the act was one which in the circumstances exposed others to the risk of serious injury- Wilson v R * For an act to be unlawful it must be a breach of the criminal law. It is not sufficient that it amount to a tort- R v Pemble * The test of whether an act is dangerous is objective, that is, whether a reasonable person would recognize the act as dangerous in the sense of carrying with it the risk of harm- DPP v Newbury * The unlawful act must be a direct act, in the sense of an unlawful act which immediately and inevitable causes physical injury- R v Dalby * Appeal allowed, new trial ordered

DANGEROUS ACT-
R v Cornelissen- Page 165
Facts-
Appellant overheard sisters talking, one saying that she had been secually abused as a child by the deceased. The appellant went to the deceased’s house. They got into a fight, appellant punched deceased and he died.

Quotes- * point 78 * In directing the jury about whether an act was dangerous.. the trail judge said that an act was dangerous, if a reasonable person would have appreciated that the act exposed others to an appreciable risk of serious injury. * Nowhere in the summing-up did the trial judge tell the jury in terms that they had to determine whether, applying the directions of law he had given them, they were satisfied beyond reasonable doubt that the appellants act of punching the deceased, quite apart from whether it was done in self defense was a dangerous act. * Appeal allowed

UNLAWFUL OTHERIWSE THAN AS BREACH OF STATUROY OR REGULATORY PROVISION-
R v Pullman- Page 167
Facts-
Pullman was driving a car that crossed an unbroken centre line which forced the driver of an oncoming vehicle to swerve. The driver of that vehicle lost control and struck and killed a motorcyclist

Quotes- * Hunt CJ- The first is that of criminal negligence in which it is necessary for the crown to establish such a high degree of negligence or disregard for the life and safety of others as to be regarded as a crime against the community generally and as a conduct deserving punishment… The second category is that of an unlawful and dangerous act, in which it is necessary for the Crown to establish that the act of the accused was one done deliberately and that it, was both unlawful and dangerous… * Hunt CJ- My conclusions, stated very shortly are therefore:

1. An act which constitutes a breach of some statutory or regulatory prohibition does not, for that reason alone, constitute an unlawful act sufficient to found a charge of manslaughter with the category of an unlawful and dangerous act 2. Such an act may, however constitute such an unlawful act is it is unlawful in itself- that is, unlawful otherwise than by reason of the fact that it amounts to such a breach * Appeal allowed

BURDEN ON CROWN TO PROVE DEATH CAUSED BY UNLAWFUL ACT-
R v Jones- Page 170
Facts-
Appellant was charged with murder for stabbing the deceased 3 times in the chest after going to buy drugs of deceased and a fight happened. The deceased went back into his apartment after the appellant left and shortly after died.

Quotes- * Hunt CJ- If a person kills another in circumstances where the law does not recognize that he acted in such self defense, then he is guilty of a crime, and the crime will be, according to the circumstances, murder or manslaughter * Hunt CJ- What makes the difference between two possibilities of murder and manslaughter is the intent to which eh did the killing. If he did the killing with the intent of inflicting really serious bodily injury, then, because he did not kill in self- defense as recognized by the law, he will be guilty of the crime of manslaughter * The third possibility is that…you are not prepared to find beyond reasonable doubt an intent inflict really serious bodily injury. In that event your verdict will not be guilty of murder but guilty of manslaughter * The crown must establish that the act was an unlawful and dangerous one * It is an objective test; the Crown does not have to establish that the accused knew that the act was unlawful or dangerous, and thus whether it was exposing the deceased to any particular risk

SCHEDULE DIRECTIONS PAGE 171

MANSLAUGHTER BY CRIMINAL NEGLIGENCE
MANSLAUGHTER BY NEGLIGENT ACTION-
Where the accused causes the death of a person by an act or omission, which to a very high degree falls short of the standard of care that a reasonable person would have exercised, then it goes beyond a civil wrong and amounts to a crime.

Do v R- Page 173
Facts-
The accused spent the night with the deceased, after getting drunk and doing drugs they started playing with a gun. The gun accidentally went off killing the deceased. The appellant was charged with manslaughter on the basis of criminal negligence

Quotes- * Nydam v R- In order to establish manslaughter by criminal negligence it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily without any intention of causing death or grievous bodily harm but in circumstances which involved such a great failing short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment. * Appeal dismissed
MALICE-
* No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section * This argument was rejected by the High Court which held that malice was not an element of the offence of manslaughter, so that an act done without malice may not be murder but could still be manslaughter

R v Lavender- Page 174

MANSLAUGHTER BY NEGLIGENT OMISSION-
The Crimes Act makes it clear that murder can arise whenever there is an act or omission that causes the death charged. The same is true for manslaughter

R v Taktak- Page 180
Facts- Prostitute overdosed the appellant tried to resuscitate her and failed he claimed that he did not realize her life was at risk
Quotes-
* Yeldham J- A duty in certain cases to provide the necessaries of life; a duty to do dangerous acts in a careful manner, and to employ reasonable knowledge, skill, care and caution therein; a duty to take proper precautions in dealing with dangerous things; and a duty to do any act undertaken to be done, by contract or otherwise, the omission of which would be dangerous to life * The neglect has been described as being such to satisfy a jury that the defendant was reckless whether such person died or not…. * It is said at common law a person does not in general incur criminal liability for a failure to intervene and prevent, or attempt to prevent, the occurrence of harm * At common law there is no liability for inactivity * The first concerning situation where a person is under a common law or statutory duty to act, and the second concerning offences which are, expressly ones of omission * What must be established is that D was under a legally recognized duty, arising from common law or from statute, to act in a certain way but omitted to do so that as a result of this omission to act death resulted. * In short D’s behavior will be exactly the same as manslaughter by commission, except that D’s conduct will consist of an omission * If a person who sustains to another legal relation of protector, as husband to wife; parent to child, master to seaman etc, knowing proper efforts to rescue him as he might have done, without jeopardizing his own life, or the life’s of others, he is guilty of manslaughter at least, if by reason of his omission of duty the respondent person dies. * We do not find that such legal duty as is contended for existed in fact or by implication of part of the respondent towards the deceased, the omission o f which involved criminal liability * Duties dictated merely by good morals, or by human considerations, are not generally within the domain of the law, and therefore one who did not become a good Samaritan by providing medical care when a witness to the distress of a sick or injured person does not become criminally responsible should death come to such person because of lack of medical attention. Legal rights and duties, however may arise out of those complex relations to human society which create correlative rights and duties the performance of which is so necessary to the good order and well being of society that the state makes their observance obligatory * Although it was found that the appellant had assumed a duty of care for the deceased his conviction was set aside on the basis that the degree of negligence displayed was not sufficient to warrant a finding of manslaughter by criminal negligence * More on case in txt book

WHERE THERE IS AN UNEXPECTED INCIDENT IN CARRYING OUT A COMMON DESIGN * Another category of manslaughter which may arise where the accused has agreed, including tactic understanding, to commit a crime with the principle offender. If the principal offender, kills another in the course of committing the foundational offence, in circumstances that amount to murder or manslaughter, the accused, depending on the circumstances, may be found guilty of murder or manslaughter * In order for the appellant to be convicted of murder as a possible incident of carrying out the common design, it is essential that the prosecution prove that he foresaw that one of the other offenders might shoot at the police officer with the intention of killing him or causing him grievous bodily harm. If, on the other hand, the jury considered it reasonable possible that the appellant only foresaw, as a possible incident, that one of the other offenders might shoot the… (Victim) but without foreseeing such an intent, then he would only be guilty of manslaughter…

CULPABLE KILLING-
The law of involuntary manslaughter, that is, manslaughter by unlawful and dangerous act and manslaughter by criminal negligence. Together with the concepts of voluntary manslaughter and murder these offences represent the major offences of culpable killing

VOLUNTARY MANSLAUGHTER CHAPTER 3
For voluntary manslaughter, the prosecution is required to prove the same mental state as is generally required for murder. That is, the accused must be shown to have intended to kill or to cause grievous bodily harm, or to have been recklessly indifferent to human life. However, the accused will be convicted of voluntary manslaughter instead of murder where his or her mental state was affected in a way which is recognised by law to reduce his or her culpability for the killing. The factors so affecting the accused’s mental state must be shown to constitute either provocation, diminished responsibility, or infanticide (Crimes Act ss.22A, 23, and 23A. These are known as the partial defences to murder and require proof of some form of mental impairment or loss of self control which significantly affected the accused’s culpability at the time of the killing.

Voluntary manslaughter applies where a fault element sufficient for murder is present, but the accused is entitled to a conviction for the lesser offence of manslaughter due to the circumstances of the killing. There are three circumstances where killing, although intended or foreseen, is treated as voluntary manslaughter not murder: 1. where the killing was provoked 2. where the accused acted under substantial impairment due to an abnormality of mind and 3. where the killing was because of excessive self defense

Four forms of unlawful homicide: 1. murder 2. voluntary manslaughter (where murder is, reduced to manslaughter because of the operation on the accused mind of provocation, or substantial impairment, or where the accused used excessive force in self defense) 3. involuntary manslaughter

The jury must be instructed that an ‘ordinary person’ is one who has the minimum powers of self-control expected of an ordinary person who is: 1. not intoxicated; and 2. the same age and consequent level of maturity as the accused

Defences
Partial defence: provocation

The physical and mental elements of murder are present but circumstances of the killing entitle acc to conviction of lesser offence of manslaughter.

TESTS FOR PROVACATION
Subjective Test: 1. Identify the provocative conduct 2. Did the accused lose self control and did they kill as a result of provocation conducted by the deceased.

Objective Test: 3. Assess the gravity of the provocative conduct 4. Would provocation of that degree have caused an ordinary person in the position of the accused to have lost self control to the extent of forming an intent to kill or intent to inflict GBH on deceased

Provocative conduct might include: * ‘grossly insulting words or gestures’ s 23(2)(a) * threatened violence, blackmail, extortion Lees 137 * physical acts

The provoking circumstances * Within the sight or hearing of the accused.

Davis (1998) davis had learnt that the deceased has been sexually assaulting a 3 year old girl he had considered a daughter. He threatened the deceased, and had an AVO put against him. Days in a drunken haze, he went over to the place of the deceased, bashed him over the head and chest with a tree branch, disposed of the branch in a near by pond, and went back to the party.

* R v Davis: presence of the accused-The court held that Davis could NOT rely on provocation when he was told that the deceased had sexually assaulted his step-daughter and niece. The court held that, in the absences of any incident where the deceased, in the presence of Davis, had done anything which could be said to have provoked him, the defence was not available.

Words alone:
R v lees : words alone: (Appeal dismissed" means that the appeal was not granted.)
Lees had moved in with Grant who’s health was deteriorating . after grant had consumed valium and codeine, he complained to lees about unpaid rent and insulted his deceased father. Due to Lees being sensitive, he lost all control and used extreme force and a piece of wood to hit grant, which ended up in grant dying. The court held that “words” can indeed constitute provocation, regardless of whether they are an insult or not. There is no such confinement. – they need to be sufficient violent, offensive or otherwise aggravating character to fulfill the third element of provocation. Proviso was applied, and the appeal was not granted

2. Did acc lose self control and kill as a result of prov conduct by deceased? S 23 (2)(a) pg 567

The subject test: time and the loss of self control :
R v Chhay (1992)
Chhay was convicted with the murder of her husband after migrating to Australia. The accused states that before they migrated to Australia that their child died as her husband refused medical treatment. The night of her husbands death, Chhay stated that her husband attacked her with a large knife attempting to stab her, but she somehow managed to get the knife off him, lost all self control and stab him to death, however the crown case was that chhay killed her husband while he was sleeping.

The loss of self control may be due to fear, anger or resentment, but must be present at the time of the killing. Conduct giving rise to a sense of grievance or revenge, such as that when the opportunity presents it is taken, will not suffice: Van Den Hoek v The Queen (1986). However, there is no requirement that the killing immediately follow upon the provocative act or conduct of the deceased. The loss of self control can develop after a lengthy period of abuse, and without the necessity for a specific triggering incident: R v Chhay (1994)
3) Assess the gravity of the provocative conduct ( s23(2)(b ) –would it have caused an ordinary person to lose self control?-- if this is proven, there is no need to do the second step

* Green v R p 123: ‘the words ‘in the position of the accused’ require that the hypothetical person be an ordinary person who has been provoked to the same degree of severity and for the same reasons as the accused.’ sensitivity to sexual abuse- an ordinary person in the position of the accused means an ordinary person who suffered the provocation which the accused suffered as the result of the conduct of the accused. In the present case, this translates to a person with minimum powers of self control of an ordinary person who is subjected to a sexual advance that is aggravated because of the accused’s special sensitivity to a history of violence and sexual assault within his family. * Stingle p127- Mental instability/ weakness- ‘ordinary person’ does not refer to a person having precisely the appellant’s powers of self control but refers ‘to a person with powers of self-control within the range or limits of what is ‘ordinary’ for a person of the relevant age.

4. Could provocation of that degree have caused an ordinary person in position of acc to have lost self control to the extent of forming an intent to kill or intent to inflict GBH on deceased?

* Masciantonio v R p 128- ‘having assessed the gravity of the provocation … it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self control and [form an intent to kill or inflict GBH.’ * R v Mankotia p 132- relevance of personal characteristics- the justices held that the ordinary person is not to be invested with any characteristics of the accused other than age * Green v R p 132- any one or more of the accused’s age, sex, race, physical features etc may be relevant to an objective assessment of the gravity of a particular wrongful act or insult.

As to continuance of provocation covering two incidents, see: Masciantonio v The Queen (1995) 183 CLR 58. Where the deceased’s death is the result of the infliction of injury by the accused upon the deceased on two occasions, the question of whether, in the sequence of events, the accused having lost his or her self control had regained it so that the continued infliction of injury was in fact no longer provoked, is not a question to be answered by reference to the ordinary person. It is to be answered by reference to the conduct of the accused and to common experience of human affairs.

Defences of substantial impairment :
23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

(2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead.
(8) In this section:
"underlying condition" means a pre-existing mental or physiological condition, other than a condition of a transitory kind.

Elements of substantial impairment
Section 23A currently provides that the defence of substantial impairment may operate to reduce a defendant’s liability for murder to manslaughter in circumstances where: * the defendant was suffering from an abnormality of mind; and * that abnormality arose from an underlying mental or physiological condition; and * that abnormality substantially impaired the defendant’s capacity to control his or her actions, or to know that they were wrong; and * that “the impairment was so substantial as to warrant liability for murder being reduced to manslaughter”.

* R v Cheatham p 346: one- Such …capacity vary widely in normal people. An abnormality of mind exists where there is a deviation from the range over which they may vary in normal people. Cheatham (No 2) * R v Christov p 354: two – * Trotter p 350- three- expert medical evidence is not really of great assistance in determining this crucial question of whether the impairment is substantial. The doctors are obviously qualified to say whether the extent of the particular impairment to the accused’s perceptions, judgment and self-control is slight, moderate or extensive, or somewhere in between, but whether that impairment to the accused’s mental responsibility for his actions may properly be called substantial is not a matter within the expertise of the medical profession. This is a task for the tribunal of fact, which must approach that task in a broad common sense way…. It involves a value judgment by the jury representing the community, not a finding of medical fact. In the present case, therefore it is my decision as to whether the impairment may properly be called substantial in that sense.

Abnormality of the mind: * the new defence of abonormality of the mind requires proof of abnormality of the mind * psychopathy or sociopath - the person is cable of understanding the wrongness of his or her actions, but I incapable of controlling them * NSW has a provision for diminished responsibility : partial defence to murder

Examples of conditions held to amount to diminished responsibility * Perverted sexual desires that created irresistible impulses R v Byrne (1960) * Depression R v Gittens (1984) and R v Seers (1985) * Battered Woman Syndrome R v Hobson (1997) and R v Ahluwalia [1992] * Paranoid psychosis, arising from his upbringing. R v Sanderson (1994) * Alcoholism or drug addiction R v Tandy (1989) * Post-natal depression and premenstrual tension can constitute a disease R v Reynolds (1988) * Extreme jealousy (so called "Othello syndrome" - a state of morbid jealousy for which there is no cause) R v Vinagre (1979) * 'Mercy killing' where the dilemma which has caused the accused to kill can be said to have given rise to depression or some other medically recognised disorder which can be said to be the cause of an abnormality of mind R v Price (1971) * Paranoid Personality disorder, thinking he was in greater danger than he was R v Martin [2003]

Byrne (1960)
Byrne was a sexual psychopath who found it difficult, if not impossible, to control his perverted sexual desires he strangled a young woman and horrifyingly mutilated the body. -So, irresistible impulses are capable of amounting to diminished responsibility.

"a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise willpower to control physical acts in accordance with that rational judgment."
Byrne was a sexual psychopath who found it difficult, if not impossible, to control his perverted sexual desires he strangled a young woman and horrifyingly mutilated the body. An “underlying condition”
4.29 Section 23A provides that an underlying mental or physiological condition means “a pre-existing mental or physiological condition, other than of a transitory kind”.62 Consequently, the exact cause of the abnormality of mind need not be substantiated, unlike the requirement in the old defence of diminished responsibility. In Report 82, this Commission noted that the term was intended to “link the defence to a notion of a pre-existing impairment requiring proof by way of expert evidence”.63 The condition may be a treatable one and need not be permanent (provided it was present at the time of the killing), but must be more than “disabling passions of an ephemeral kind”.64 So, for example, a severe depressive illness that may be treated by medication could fall within the meaning of an underlying condition,65 but rage resulting from self-induced steroid abuse would not.66

Fitness to be tried
The New South Wales statutory regime does not define fitness to be tried, so the courts must rely on the common (or judge-made) law. The usual test can be summarised as the ability of the accused: * or she is charged with; * to plead to the charge; * to exercise his or her right of challenge to jurors; * to understand generally the nature of the proceedings; * to follow what is going on in court in a general sense (though not necessarily the purpose of court formalities); * to understand the substantial effect of any evidence given against him/her; and * to decide what defence he or she will rely upon, and make this and his or her version of facts known to the court and his or her counsel. (The accused need not, however, understand court procedure and need not have the mental capacity to make an able defence.)

Defences : complete defences

Self defence : complete defence

Self defence

Under section 418 of the Crimes Act (NSW) 1900, self defence or defence of others – can be a complete defence to murder if a person’s conduct resulted in the death of another, but the conduct was necessary to defend him or herself or another person, and the conduct was a reasonable response in the circumstances as the accused perceived them.

Self defence extends to the defence of other people, the defence of property, the prevention of serious crime and effecting a lawful arrest.
Self defence is limited in the use of force to the situation where 1) the defendant is face with a threat which makes the use of force necessary, 2) the amount of force used is not excessive in the circumstance

418 Self-defence - when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.

419 Self-defence-onus of proof In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

420 Self-defence-not available if death inflicted to protect property or trespass to property This Division does not apply if the person uses force that involves the intentional or reckless infliction of death only: (a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass. 421 Self-defence-excessive force that inflicts death (1) This section applies if: (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary: (c) to defend himself or herself or another person, or (d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person. (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter

422 Self-defence-response to lawful conduct This Division is not excluded merely because: (a) the conduct to which the person responds is lawful, or (b) the other person carrying out the conduct to which the person responds is not criminally responsible for it.

ELEMENTS OF SELF DEFENCE: 1. Accused believes conduct was necessary AND 2. Conduct was a reasonable response in circumstances perceived by accused

* R v Trevenna p 424- Excessive force that inflicts death - s 421- the court of criminal appeal considered an appeal, brought by the DPP pursuant to section 5D of the Criminal Appeal Act, against a sentence as manifestly inadequate. The sentence was imposed by the trial judge. The crown ultimately accepted the respondent’s plea of guilty to manslaughter. This was in circumstance where the respondent accepted that her conduct, within s421 of the Crimes Act, was not a reasonable response in the way that she used force inflicting death on the deceased, though she believed her conduct necessary to defend herself again an imminent threat to her life from the deceased. * R v Katarzynski p 421- one- the first issues is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second issue is determined proportionality of the accused’s response to the situation the accused subjectively believed he or she faced. The crown will negate self-defence if it proves beyond reasonable doubt either i) that the accused did not genuinely believe that is necessary to act as he or she did in his or her own defence or ii) that what the accused did was not reasonable response to the danger, as he she perceived to be. * R v Katarzynski p 421-: the accused need not have reasonable grounds for his or her belief that it was necessary to act in the way he or she did in order to defend himself or herself. It is sufficient if the accused genuinely holds that belief. * Preosecution has to prove opposite these elements.

R v Conlon

In R v Conlon (1993) 69 A Crim R 92, the accused was charged with murdering two persons who attempted to steal his cannabis plants. The sole issue at trial was self-defence. The accused elected to be tried by judge alone. The facts were that the accused, on hearing a noise outside his home, observed the two deceased H and N in the process of removing plants. The two deceased followed the accused inside his house. N jumped on the accused and H hit the accused on the head with a “substantial and heavy” plate with considerable force causing the plate to shatter. N kicked the accused on the floor, causing a number of injuries. The accused managed to escape and obtained a .22 calibre rifle and placed the safety catch in the “off” position. He ran at N and H, firing the rifle as he did so. N was shot in the abdomen and the accused then continued to run after H. He shot H twice to the back of each leg as he ran to the front of the house, the third shot entered his upper chest and the last shot hit him in the head. The accused then shot H in the head at close range as he crouched on the ground. The accused then returned to N, tried to shoot him in the head but had run out of bullets. He then attacked N with an axe and knife.
As the tribunal of fact His Honour went on to consider a number of questions relevant to the issue of self-defence:

1. Were the acts of the accused committed upon the two deceased when they were attempting to escape? Refer to page 599
Prosecution must establish either that the accused did not believe that it was necessary in self-defence to do the act causing death or that there were no reasonable grounds for that belief.
They assaulted him, he said, for no reason and in his own house. They had started it: they had entered his property; they had stolen from him; they had, as he put it, “whipped the crap out of [him] in [his] own house”. He thought that he was going to die if he did not do something. He said that he had obtained the rifle in self-defence

with the rifle, he said in his evidence before me (which I accept) that this had merely been an assumption made by him at the time of the interview with the benefit of hindsight. The evidence does not satisfy me that I should make a finding against the accused that he knew at the time that the two men were attempting to escape.”

4. To what extent was the accused’s perception of events affected by alcohol/drugs? he thought that he might have been trying to jump him in the dark, that Hulands was going to try and kill him. Again, and for the same reasons, I am not satisfied that the Crown has eliminated the reasonable possibility that the accused’s perception was reduced by his intoxication when he fired the rifle for the last time, the act which in fact caused the death of Hulands.”

5. Was the accused motivated by anger and not fear? it was submitted by the Crown that all of the accused’s actions following the intrusion of these two men were governed not by fear for his own safety but by anger at that intrusion.
I am not satisfied beyond reasonable doubt that the accused did not believe that it was necessary in self-defence to fire the bullet which struck Neill in the abdomen, or to fire the bullet which in fact caused the death of Hulands, with the intention of at least inflicting grievous bodily harm upon each of them.”

6. The question of proportionality
The accused was not obliged to wait until the attack upon him was repeated. If he honestly believed that the attack would be repeated, he was entitled to take steps to forestall that threatened attack before it was begun: Morgan v Colman (1981). This was a situation in which a pre-emptive strike was justified: Beckford [1988] AC 130 at 144.”

7. Is the question whether there were reasonable grounds for any belief on the part of the accused that it was necessary in self defence to do what he did a completely objective test? the requirement of reasonableness” as having “remained part of the law of self-defence” since it was an ingredient of the law of excusable homicide suggests to me that they did not intend to depart from the nature of the analogous decisions posed in relation to self-defence in Viro, as to whether the accused reasonably believed that he was threatened with an attack and as to whether he believed that his response to that threat was reasonably proportionate to the danger which he believed that he faced. The first of those analogous decisions was a mixture of the objective and the subjective; it was not completely objective, in the sense of what a reasonable person would have believed, but rather it was what the accused himself might reasonably have believed in all the circumstances in which he found himself:

8. Application of the test to the facts: Consideration of the personal characteristics of the accused.
Although the mixed objective and subjective nature of the assessment as to whether the accused’s belief was based on reasonable grounds means that account must be taken of those personal characteristics of this particular accused which might affect his appreciation of the gravity of the threat which he faced and as to the reasonableness of his response to that danger, the Crown has argued (as an alternative to the argument which I have rejected) that voluntarily induced intoxication through the consumption of alcohol or drugs should not be taken into account as such a personal characteristic because (it is said) to do so would entitle those whose perceptions are mistaken by reason only of such intoxication to kill with impunity.”

For the reasons which I have already given, I am not satisfied beyond reasonable doubt that there were no such grounds. In my view, it is reasonably possible that the circumstances in which the accused found himself - as he in fact perceived those circumstances to be, affected though that perception may have been by intoxication - created such a fear in the accused that these two men (and perhaps others) were going to kill him if they could as to have justified the extreme action which the accused took when he killed Hulands.
Accordingly, I find the accused not guilty of the murder of Hulands. As Zecevic v DPP makes it clear (at 661-662; 173-174), if the Crown fails to discharge its onus in relation to self-defence, the accused has done nothing unlawful, and no question of manslaughter arises.”

Defences : insanity
Insanity – the defence exists not because the accused is excused from the criminal conduct – but because they are found not to have voluntarily performed the relevant physical act or have the mental state:
The M’Naghten rules: elements of finding a person not guilty are not defined in legislation: * we have to submit that the jurors out to be told in all cases that every man is to be presumed to be sane and poses a sufficient degree of reason to be responsible for his crimes until the contrary can be proved to their satisfaction, and that to establish a defence on the ground of insanity it must be clearly proved

* M’Naghten Rules: 1) “at the time of the committing of the act, the party accused was labouring under such a defect of reason 2) from disease of the mind 3) (a) as not to know the nature and quality of the act he was doing; OR (b) if he did know it, that he did not know he was doing what was wrong.”
3) the last rule must be proved by jury

Insanity Elements:
1. Defect of Reason
“… you are only concerned with the condition of the mind at the time the act complained of was done. That is the critical time when the law applies to the man. … He may have been sane before and he may have been sane after, but if his mind were disordered at the time to the required extent, then he should be acquitted on the ground of insanity at the time he committed the offence. It is helpful in finding out how he was at the time to find out how he was before and after. It is merely because it is helpful that we go into it in this case, not because it is decisive.”

2. Disease of the Mind
“… his state of mind must have been one of disease, disorder or disturbance. Mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control, and impulsiveness, are quite different things from what I have attempted to describe as a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long standing.”

3 (a) as not to know the nature and quality of the act he was doing
“In a case where a man intentionally destroys life he may have so little capacity for understanding the nature of life and the destruction of life, that to him it is no more than breaking a twig or destroying an inanimate object. In such a case he would not know the physical nature of what he was doing. He would not know the implications and what it really amounted to.”

3 (b) or, if he did know it, that he did not know he was doing what was wrong * “…he knew he was killing, knew how he was killing and knew why he was killing but … he was quite incapable of appreciating the wrongness of the act.” * “We are dealing with one particular thing …the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract.” * “What is meant by wrong is wrong having regard to the everyday standards of reasonable people.” * “If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.” * “If you think that at the time when he administered the poison … he had such a mental disorder … that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged”

* R v Cheatham p 346- A mere ‘difficulty’ with reasoning process is far too low a standard.

Automatism:

Voluntariness: R v Milloy (1991) 54 A Crim. R. 340, Thomas J. says at 342-343, that for automatism to succeed: - failure to prove the voluntartiness of the actus reus beyond reasonable doubt results in acquittal impairment of relevant capacities as distinct from total deprivation of these capacities [will not suffice] … it is fundamental to a defence of automatism that the actor has no control over his actions.

* An action may be involuntary if the accused person acted as an machine, that is, if that person’s actions were done in a state of impaired consciousness. * Deprives the accused's actions of their voluntariness and prevents the prosecution from establishing the physical element. Pg 532

Types of Automatism:
1. Insane automatism - cause of automatism is a disease of the mind – M’Naghten Rules
2. Non-insane automatism – cause of automatism is not a disease of the mind. It is the reaction of a sound mind to external factors eg stress, blow to the head- Lainson; Radford; Youssef

* R v Falconer p 367- onus of proof- When, on the evidence, an accused’s acts can only have been involuntary if he was suffering from a mental disease … the prosecution is entitled to rely upon the presumption that every person is of sound mind … a defence of insane automatism can only succeed if it is established on the balance of probabilities [by the defence] …in a case of … sane automatism … an acc will be entitled to an acquittal if the prosecution fails to disprove sane automatism BRD.’

* when raising automatism the accused raises a defence of unsoundness of the mind or insanity unless the malfunction of his mind was 1) transient 2) caused by trauma, whether physical or psychological, which the mind of an ordinary person would be likely not to have withstood and 3) not prone to recur, a malfunction of the mind other than a malfunction which satisfies those exempting qualifications amounts to a disease of the mind, or a mental disease or natural mental infirmity * * the consequence of a verdict of not guilty by reason of insanity is detention during the governors pleasure, if a person was not morally responsible for the action which is the subject of the charge because that action was an a unwilled automatic act, he should not suffer conviction or punishment, if he is not mentally ill and there is therefore no reason to supposed the act will be repeated, detention of the protection of others is pointless and an embarrassment to the mental health authorities * * * in general terms, a recurring state which involves some abnormity will indicate a mind that is diseased or infirm, but the fundamental distinction is necessarily between those mental states which although resulting in abnormal behaviour, are or may be experienced by a normal persons ( as for example and relevant to the issue of invoulnartiness, a state of mind resulting from a blow to the head) and those which are never experienced by or encountered in normal persons
- cj distinguished between an underlying pathlogical infirmity of the mind – mental illness, and the reaction of a healthy mind to extra ordinary external stimuli

types of non-insane automatism = pg 542 * disassociation * hypoglycaemia – diabetes * epilepsy * sleepwalking * concussion

Property offences: larceny and fraud

Larceny:
CONCEPT OF PROPERTY- * Property is a series of rights that the owner has, the primary rights being the right to exclude others from the thing. * One of the rights that an owner has is the right of possession, that is, you have the right to keep your watch with you. You can give up possession but still own the watch, in that you can lend it to someone, or deposit it as security for a loan, or leave it with a watchmaker for repair. * The person in possession also has rights, and may enforce them against others. * ilich v R- JJ Dawson- Because larceny at common law requires a trespass- it is sometimes described as an offence against possession- a person lawfully in possession of something cannot be guilty of larceny of it. * This means that if someone obtains possession with consent, a subsequent decision to keep it cannot, at common law, be larceny.

Actus reus – physical elements * there is property capable of being stolen * that property is in the possession of a person other than the defendant * the property is taken and carried away by the defendant (asportation) * the taking is done without the consent of the possessor ( owner)

mens rea = * the property is taken with an intention to permanently deprive * the property is taken dishonestly * the property is taken fraudulently and without any claim

117 Punishments for Larceny: * Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years. *

Elements of larceny * at common law, larceny is committed by a person without the consent of the owner, fraudulently and without claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking to permanently deprive the owner thereof.

- in illich, their honours emphasise that larceny is a crime against possession of property. As we will see, it can be misleading to describe the victim as the owner, in some circimstances an owner can be a thief

Physical element 1: property that is capable of being stolen: * is tangible and moveable ( limitation * land cannot be stolen * can fixtures, cropes, houses, tree be capable of being stolen – NO, ( dependent on how its fixed) * larceny in terms of robbery constitutes taking something tangible, however it does not constitutes as a robbery * wild animals cannot be an object of larceny unless some else has previous assumed possession of them * * Croton v R- page 291: * ‘… Larceny can only be committed of property which is capable of physical possession and removal.’ * The receipt of the paper money or coins by the applicant from the bank could not have been larcenous for several reasons: 1. the transference of possession of that paper money or coin was voluntary on the part of the bank: it was not a taking of that paper money or coins out of the possession of the bank against the will of the bank 2. if it matters, that paper money or coins was not taken out of the possession of the joint; owner of the bank credit, Mrs. Webster; for she never did have possession of that paper money or coins; nor did the bank at any time hold possession of that money as in any sense her agent 3. the property in that paper money or coins was in the bank immediately before it was handed over to the applicant and not in Mrs. Webster, or Mrs. Webster and the applicant jointly 4. As I see the evidence of the suggested arrangement between the applicant and Mrs. Webster, the property in and possession of the money or coins, in my opinion, passed to the applicant solely, even if on receipt of them he came, under an obligation to account to Mrs. Webster for all or some part of the money they represented.

It would therefore seem to me that the radical elements of larceny were missing in this

2) In Someone’s Possession (whether or not the owner)- cases * Anic v R- page 293: * stealing of someone else’s illegal drugs * A person may be in possession of property even though he has himself stolen it. If a thief steals property, and it is taken from him by a second thief, the second thief is guilty of larceny from the first thief. The second thief is also guilty of larceny from the owner, since the offence of larceny now protects ownership as well as possession. * Control of property not amounting to possession may be sufficient to make the controller an owner for the purpose of the law of larceny * Larceny was always conceived as an offence against possession, and naturally so, since English law has never recognized in a subject of the realm any absolute right of ownership of chattels, our “owner’ being merely the person who has the best right to possess the thing. IT follows therefore that a man can be guilty of larceny by stealing a thing from another who had himself stolen that thing from someone else, for a thief holds possession of what he has stolen… * For these reasons I think that the appeals based on the suggestion that a person cannot be convicted of stealing prohibited drugs from another person must fail. * R v MacDonald- Larceny is a crime against possession not ownership. It does not matter if the goods have been misplaced.

3) Taking and carrying away: asportation
In He Kaw The : for thr act to constitutes the actus reus of larceny, it must occur in circumstances where the property taken away is larcenable, the property belongs to another and the taking is without the consent of the possessor
Wallis v Lane (1964) – the employee, a delivery man was making deliveries to one of his employers, one of the boxes which containted bicycle toe clips was damaged and opened, the defendant moved the two pairs of toe clips from the box and left them hidden, while he delivered the rest of the boxes – the defendant was convicted – it is sufficient asportation if there is a removal of the property from the spot where it was originally places with intent to steal * - The judges were satisfied that the removal of the book out of the pocket, however slight the distance might be, was a sufficient asportation to constitute larceny, provided that the removal of the book was effected with intent to steal…. 4) Taking without consent of the possessor * the idea of larceny is the removal of an item from the possession of the victim and against their will * if the person first in possession had originally handed the thing over – to the courier/borrower - the person is not guilty of larceny – however he/she was at the time – invite domino * Kennision v Daire (1986) * the appellant was a holder of an easy bank card which enabled him to use the ATM - it was a condition of the bank, that the user could withdraw money in correspondence to his bank account balance * however before the date of the alleged larceny, the appellant had closed down his account * however on the day of the offence he was able to withdraw $200, because the machine was offline and was programmed to allow any person who placed the card in the machine and gave a corresponding ID number

- It is no doubt that the appellant acted fraudulently with intent to permanently to deprive the bank of $200. The appellant’s submission is that the bank consented to the taking. It is submitted that the bank intended that the machine should operate within the terms of its programmed, and when it did so it gave effect to the intention of the bank * The proper inference to be drawn from the facts is that the bank consented to the withdrawal of up to $200 by a card holder who presented his card and supplied his person identification number, only if the cardholder had an account which was current.

* implied licence : * in the possession of property there can be no real larceny, however if the poseessor permits a person to take temporary custody of the property through licence, but the property is dealt with in breach of that licence, an asportation without consent may have occurred * a common example is in retail stores – the store by licence gives a customer the licence to pick up and inspect goods and to carry thos goods around until purchase is made at the cash register – however that licence is limited to bona-fide( bonda fide) * In Kolosque v Miyazaki * Tried to steal clothes in a store * The nature of the consent implied by the system of display, with the customer having the right to pick up the goods and taken them to a point of purchase, is not a consent to take the goods irrespective of the intention of the customer.

Mens Rea 4) intention to permanently deprive : in larceny the defendant must not only have taken the property without consent, but must also have the intention to permanently deprive. * the most important issue is not that the property was taken but that deprivation is intended to be permanent

Intention to return property = no defence ( crimes act 1900) S118 : intent to return property no defence
Where, on trial of a person for larceny, it appears that the accused appropriated the property in question to the accuseds own use, or for the accuseds own benefit, or that of another, but intended eventually to restore the same, or in the case of money return an equivalent amount, such person shall not by reason only therof be entitled to an acquittal

Foster (1967) * If the intention is to deprive the true owner of possession for a limited time, larceny is not made out. But if the intention of the taker is to deal with the goods as if they were his own, an intention to give the goods back later is no defense to larceny.

Conditional appropriation : property will have been taken with an intention to permanently deprive, despite an intention to return, if the intention to return is conditional = refund fraud, e.g.
Lowe v Hooker (1987)
.. the intention at the time of taking was to use the property as the accuseds own, the particular use in min was to present the property as if it had been lawfully purchased and obtain a refund. When no refund was approaching, the property was preserved. To put that another way, the property which the store keep had in the goods, whether as true owner or possessor of goods on consignment, was destroyed and could not be regained, although a new property in them could be obtained by payment of money.

Changing the nature of the property:
R v weatherstone : if the intention of the appeallant had been only to make some slight alteration ot the property taken and then return it such intention is not to permanently deprive the owner of his property. If however the intention of the appellant was to make a substaintial alteration ot the property and return it in its altered form the answer is otherwise

5) Fraudulently or dishonestly :
R v Weatherstone (1987) CCA
Ct. held that intention to permantly deprive must be accompanied by som dishonesty or moral obloquy attaching to the property.

R v Ghosh [1982] UK
D obtained money by deception, claimed fees for operations he did not perform.
- Test for ‘dishonesty’ is: ‘How would the ordinary member of the community assess the accused’s intentions with respect to the “dishonest” transaction?’
- In addition, court of appeal held; in determining whether someone acted dishonestly, the ct. should take into account whether that person realised subjectively that his actions were dishonest by community standards.
- If he didn’t, his conduct could not be regarded as ‘dishonest’

Objective test :
Feely test: whether according to the ordinary standards of reasonable and honest people, what was done was honest * what is the meaning of fraudulently, ( pg 923) = dishonest and an agenda of financial gain or disadvantage * subjective test : GHOSh ( peters and mcleods reject Ghost) – whether the defendant knows it was dishonest to ordinary standards.

Crimes act 1900
4b dishonesty
1)in this act: dishonest means dishonest according to the standards of ordinary people and known by the defendants to be dishonest according to the standards of ordinary people

6) claim of right : ALSO A DEFENCE r v fuge (2001) that sum of money from the restaurant, in crimcumstances which otherwise would have involved robbery would NOT have constituted an offence on their part. The reason for that lies in the absence of a MENS REA which is essential element for the offence

(i)
The claim of right must be one that involves a belief as to the right to the property or money in the hands of another.
(ii)
The claim must be genuinely, that is, honestly held — whether it was well founded in fact or law or not.
(iii)
While the belief does not have to be reasonable, a colourable pretence is insufficient.
(iv)
The belief must be one of a legal entitlement to the property and not simply a moral entitlement.
(v)
The existence of such a claim, when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms — the relevant issue being whether the accused had a genuine belief in a legal right to the property rather than a belief in a legal right to employ the means in question to recover it.
(vi)
The claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them.
(vii)
The claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches.
(viii)
In the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders. There can be no accessorial liability unless there has in fact been a foundational knowing of the essential facts which made what was done a crime, and unless the person who is charged as an accessory intentionally aided, abetted, counselled or procured those acts.
(ix)
It is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury.

Larceny by bailee s125 * the delivery of goods by a bailor to the bailee on condition that they shall be returned as soon as the purpose of delivery * e.g. a watch shop fixer selling your watch * the bailee gains full possession for a temporary period of time, and the bailor retains a possessory right that is suspended until the end of the bailment * larceny by bailee: s125: whosoever, being a bailee of any property, fraudently takes or converts, the same or any part thereof, although he or she does not break bulk, or otherwise determine the bailment, shall be deemed to be guilty of larceny and liable to be indicted for that offence. The accused shall be taken to be a bailee within the meaning of this section, although he or she may not have contracted to restore, or deliver, the specific property received by him or her, or may only have contracted to restore, or deliver the property specifically .

Embezzlement:
S157: whosoever, being a clerk or servant fraudulently embezzles either the whole or any part of any property delivered to, or received, or taken into possession by him or her, for , or in the name, or on the account of, his or her master, or employer, shall be deemed to have stolen, the same, although such property was not received into the possession of such master, or employer, otherwise than by the actual possession of such a clerk, or servant, and shall be liable to imprisonment for 10 years.

* bank tellers who put money depositied by customers into their own pocket instead of into the banks till * so after they received the money, and before they gave it to their masters ( the bank) – were safe

FRAUD:

FRAUD – 192 E * amendments in 20120 saw that the crimes act containing general fraud offences, under s192E. the key tersm are defined in 192B-D (940) * 192B = deception : words or conduct * 192 C obtaining property belonging to another * 192D – obtaining financial advantage or disadvantage or causing financial disadvantage

Fraud 192E 1) a person who, by any deception, dishonesty a) obtains property belonging to another, or b) obtains any financial advantage or cause any financial disadvantage 2) a persons obtaining of property belong to another may be dishonest even if the person is willing to pay for the property 3) a person may be convicted of the offence of fraud involving all or any part of a general deficiency in money or other property in money or other property even though the deficiency is made up of any number of particular sums of money or items of other property that were obtained over a period of time 4) a conviction for the offence of fraud is an alternative verdict for the offence of larceny, or any offence that includes larceny, is an alternative verdict to a charge for the offence of fraud.

Method of fraud : deception (192B1) * all forms of fraud in 192E must be achieved by all accused engaging in deception define in 192B actus reus : * words or other conduct or omitting crucial information * false statements * deception by conduct and silence

mens rea (192b2) * intentional knowledge of the false statement or intent to defraud

the defendant does not need knowledge, but rather is reckless as to the truthfulness of the statement – inadvertent recklessness – you know but you go ahead with it anyway

once deception is established, one of the 3 consequences need to be established : 1) obtaining property belong to another (192c) 2) financial advantage 3) causing financial disadvantage

Dishonest 4b ghosh test :

Hence the test for dishonesty must be both subjective and objective. As a result, we have ‘the Ghosh test', which jury must consider before reaching a verdict on dishonesty : 1. Was the act one that an ordinary decent person (normally considered to be the ubiquitous would consider to be dishonest (the objective test)? If so : 2. Must the accused have realised that what he was doing was, by those standards, dishonest (the subjective test)?

SEXUAL ASSAULT * Physical Elements - an act of sexual intercourse – R v AJS - without consent- R v Clark – p 245; R v Mueller p 230

* Fault Elements - knew the complainant was not consenting OR - was reckless with regard to consent OR

NEGATION OF CONSENT:
Intoxication of complainant - R v Chant and Madden – p 268 - R v Francis – p 270 - R v Blayney – p 270 – 271
Complainant asleep - Dean v R p 262; R v Francis; R v Blayney
Threats of force - Question of Law (No 1of 1993) cited in R v Mueller p 233 - R v Clark p 244 – can emanate from third party
Intimidatory or coercive conduct - R v Aiken p 271 – non violent threats – s 61HA(6)(b)

PHYSICAL ELEMENTS
An Act of Sexual Intercourse:
61H Definition of "sexual intercourse" and other terms
(1) For the purposes of this Division, "sexual intercourse" means:
(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
(i) any part of the body of another person, or
(ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or
(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
(c) cunnilingus, or
(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

R v AJS* p 240: an act of sexual intercourse * Sexual intercourse must have been voluntary and willed * an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act * to prove the crime of incest, the prosecution must establish that the act of penetration was voluntary and intentional (or willed) act on the part of the accused * if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed

Without Consent:
2007 amendments - 61HA Consent in relation to sexual assault offences pgs 242 – 244 61HA Consent in relation to sexual assault offences
…
(2) Meaning of consent – A person consents to sexual intercourse if the person freely and voluntarily agrees to sexual intercourse.
…
(4) Negation of consent - A person does not consent to sexual intercourse:
(a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or
(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or
(c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
(d) if the person consents to the sexual intercourse because the person is unlawfully detained.

R v Clark p 244: without consent * the absence of consent does not mean that you have got to fight and scratch and kick and should and resist * consent is free choice, consent is not submission due to some pressure * consent must be freely and voluntarily given * the victim submitted to sexual intercourse with the appellant as the result of threats and terror, even if those threats or terror emanated from persons other than the appellant, then the complainant was to be regarded as NOT consenting to the sexual intercourse

R v Mueller p 230: without consent * the complainant did not consent because she lacked the capacity to do so * consent involves conscious and voluntary permission by the victim to engage in each of the 5 incidents of sexual nature referred to in the charges in the indictment * Consent which is obtained after persuasion is still consent. However the law specifically provides that a person who does not offer actual physical resistance to sexual conduct is not, by reason only of that fact, to be regarded as consenting to the sexual act. * Silence, or the absence of positive resistance, of itself does not necessarily mean that a woman is consenting nor does it necessarily mean that a women is not consenting * Consent previously given may be withdrawn thereby rendering the act non-consensual * The crown must prove that beyond reasonable doubt, that the accused knew the complainant was not consenting, or that he was reckless as to whether she was consenting * It must be proved beyond reasonable doubt, that he either realised the possibility that the complained was not consenting but went on regardless or he simply failed to consider the question of whether or not she was consenting.

FAULT ELEMENTS
Recklessness as to Consent:

2 types of recklessness: -
i) Advertent Recklessness – Banditt, Henning, Kitchener, Tolmie, Mueller - accused foresees the possibility that complainant not consenting, but has sex anyway. Must be a ‘real possibility’, more than a ‘bare possibility’ (Banditt) ii) Non-advertent recklessness – accused has not considered consent and is oblivious to possibility of non consent and a risk that the complainant was not consenting would have been obvious to someone of acc’s mental capacity Tolmie, Banditt, Henning, Kitchener, Mueller

- had no reasonable grounds for believing the other person consented

R v Tolmie p 248: non advertent recklessness * In this situation, the accused has implicitly adverted to and accepted the possibility that the complainant may not be consenting * R v Henning – failure to advert at all to the question of consent or the act of treating consent as an entirely irrelevant factor * the prosecution may prove either that the accused knew the victim was not consenting or that the accused simply failed to consider whether or not the complainant was consenting”: “is that recklessness has no operation where the accused has an honest belief that the complainant is consenting. In this sense if amounting to an inadvertent test, recklessness is limited to cases in which the accused did not consider the question of consent at all” – DPP v Morgan * DPP v Morgan p 260- without caring whether or not she was a consenting party. If accused honestly believed complainant consented, but the belief was unreasonable, accused is deemed to know there was no consent

R v Banditt p 252: advertent recklessness * That if he is aware that there is a possibility that she is not consenting but he goes ahead anyway, that is recklessness * Recklessness consists of an accused actually realising that there is a possibility that the complainant is not consenting to sexual intercourse and, having that realisation, deciding to proceed to have sexual intercourse * Tolmie- in order to establish that the accused was acting recklessly it must be proved beyond reasonable doubt that he either realised the possibility that the girl was not consenting, but went on regardless or he simply failed to consider the question of whether or not she as consenting and just went ahead with the act of sexual intercourse.

An Act of Indecency- * An act with sexual connotations – R v Harkin p 275 * Sexual intercourse directed to a child with encouragement to watch – R v Gillard p 275 * Masturbation directed to a child with encouragement to watch – R v Francis p 276 * An act which right minded persons would consider contrary to community standards of decency R v Manson p 276

‘Towards a Person’- * Must the act of indecency be committed in immediate presence of complainant? No – R v Barrass p 278

Indecent assault – elements:
AR and MR elements of common assault (usually battery but could be non physical assault)
PLUS
At the time there is an act of indecency
(but note that an assault that could itself constitute an act of indecency will suffice. There is no need for separate acts of indecency and assault –
R v Harkin p 275)

R v KITCHNER???

Assault:
Punishment for Assault -Crimes Act S61:
Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable for imprisonment for two years.

Physical Elements of Assault: 1. an assault in the restricted sense of a threat to bring about non-consensual contact or 2. a battery in the sense of actual non consensual contact with another person

Fault Element of Assault- 1. An act that is performed intentionally or recklessly

PHYSICAL ELEMENT:
Fagan p 195- * An assault is any act which intentionally- or possibly recklessly causes another person to apprehend immediate and unlawful personal violence * Assault is synonymous with the term battery and is a term used to mean the actual intended use of unlawful force to another person without his consent * To constitute this offence some intentional act must have been performed: a mere omission to act cannot amount to an assault * If the assault involves a batter and that battery continues there is a continuing act of assault. For an assault to be committed, both the elements of actus reus and mens rea must be present at the same time * There was an act constituting a battery which at its inception was not criminal because there was no element of intention, but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act

R v Mostyn p 197- * An offer to strike a person at such a distance as to make contact impossible is not an assault * Barton v Armstrong- a threat of violence made over the phone could be a threat of immediate violence in given circumstances, and thus an assault and accordingly I am not to be taken as saying that merely because a threat is made by phone it could thereby constitute an assault. * Barton v Armstrong- expectation of physical contact which the offender creates in the mind of the person whom he threatens * His honour also held that if the threat produced the fear or apprehension of physical violence then the law was breached even though the victim did not know when the physical violence may be effected * Barton v Armstrong- While he was taking no immediate steps to carry out his threats he continued to pursue he because he enjoyed the prolonging of fear * An assault can be a threat of striking, touching or application of force

FAULT ELEMENT-
Macpherson v Brown p 201: * It is generally accepted and in common use the courts sometime use recklessness to mean a high degree of negligence in this sense recklessness is synonymous with criminal negligence *

Zanker v Vartzokas- * An act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence * But does not necessarily have to be violent one, and the act can be through the use of words

BATTERY-
Physical element- means the actual intentional or reckless, bringing about of violent offensive, or otherwise non-consensual, contact with the person of another- Collins v Willock p 206
Fault element- a battery is established when the defendant intended to apply physical force to the victim without lawful authority or consent- R v Williams p 208

Limits of Consent:
R v Brown