LAW2394 – Criminal Law Notes
Contents
1. Introduction & classification of offences
• What is a crime?
• Justification for criminalisation
• The aims of the criminal law o Retribution
o Deterrence o Reformation
• Sources of Criminal Law o Common Law o Legislation
• The elements of an offence
• Who can commit crimes
• Classification of Offences
• Court Hierarchy
• Deciders of Facts
2. Process to compel appearance, preliminary examination & trial of indictable offences
• All 3. Bail
• N/A 4. Murder
• Coke’s definition, elements:
§ Sound memory
§ Age of discretion
§ Unlawfully
§ Kills
§ Reasonable creature
§ Malice aforethought
§ Death, year and a day
• Elements – deeper explanation
• Actus Reus
§ Voluntariness
§ Causation
• Tests for causation ,incl. ‘but for’
• White case (poison apple)
• Hallet (beach)
• Royall (exiting window) (seminal case in Vic)
• Novus Actus Intervenus o Act of God
o Act of third party o Act of victim
§ Blaue (Jehovah’s Witness, eggshell skull) case o Examples
• Mens Rea
§ 4 possible mental states
§ Transferred Malice
§ Recklessness: Probable v Possible
• Crabbe (road train) case
§ Express Malice
• Statutory Murder
§ Constructive Malice
• In the furtherance of a crime of violence o Armed robbery
o Aggravated burglary
§ Example
5. Manslaughter
• Common elements of murder + manslaughter
• Murder v Manslaughter
• Voluntary manslaughter o Survivor of suicide pact o Infanticide
o Provocation (abolished)
o Defensive Homicide (abolished)
§ Heather Osland case (killed husband with son)
• Involuntary manslaughter o Murder v manslaughter
o Wilson (punched drunk walking) case
• Unlawful and Dangerous Act Manslaughter
• Determining unlawful and dangerous act manslaughter o Unlawful
o Michelle Nguyen case
• Dangerousness
o Reasonable person
• Coward’s punch laws
• Mandatory minimum for manslaughter types o Burns case
o Stynes (prostitute) case
• Criminal Negligence manslaughter o Elements
o Act v Omission o Standard of care
§ Nydam (fire at hairdressers) case o Stone & Dobson (anorexic housemate) case o Taktak case (took girl to apartment) case o Reasonable person
o Kerry Whacker (Chinese people smuggling in cargo) case o Culpable driving
o Examples
6. Assault
• Addressing assault in an exam
• Common Law (yes) and Statute (yes)
• Definition
• Fagan (driving over policeman’s foot) case
• Assault v Battery
• Common Law and Statute
• Assault charges
• Force / threat of force
• Actus reus
• Elements – force applied assault
• Elements – apprehension of force
• Lawful excuse
• Threat of violence / overt act o Threat
o Conditional threats
o Apprehension of physical force
7. Sexual Offences
• Strategies for Exam
• Offences o Rape
o Sexual Penetration of a child o Sexual Assault
o Indecent Act with a child o Incest
o Procuring/Grooming o Child Pornography offences o Prostitution
o Human Trafficking/ Sexual Servitude
• Common Law
• Rape in Marriage
• Requirements for rape at common law
• Crimes Act
o Actus Reus under Crimes Act o Mens Rea under Crimes Act
• Reasonable Belief
• What is sexual penetration?
• Consent
o Jury Directions Act o Capacity to Consent o Consent by Conduct o Consent by Threats o Consent by Fraud o Consent / Fraud
8. Defences
• Self-‐Defence
o Zecevic case o Subjective test o Objective test
• Pre-‐emptive strike
• Imminence of harm
• Defensive homicide
• Crimes Act – Family Violence o Example
• Duress
o Subjective test o Objective test o Threat:
§ Present or future threat
§ Nature of the threat
§ Reasonable opportunity of avoiding the threat o Limits to the defence
o Accomplices
o Criminal enterprises
• Necessity
o Duress v necessity
§ Subjective test
§ Objective test o Necessary response o Irreparable Evil
o Situation of imminent peril o Common Law v Statute o Statutory Defence o Limits
o Example
9. Theft
• Common Law? No.
• Statute? Yes, s. 74 Crimes Act.
• Elements
• In brief:
o Actus Reus:
§ Appropriates
§ Property
§ Belonging to another o Mens Rea
§ Intention to permanently deprive
§ Dishonest state of mind
• Actus Reus
o Choses in Action o Belonging to Another o Possession or control
• Fiduciary Ownership/Obligations
• ‘On account of’
• Ownership transferred by mistake – s. 73(10) o Transfer as the result of deception o Mistake (D realises at the time) o Mistake (D realises after)
• Appropriation
o Consent to appropriation
• When is theft complete?
• Mens Rea
o Conditional Intention o Dishonesty
10. Other property offences
• Robbery
o Elements o Armed Robbery
• Burglary
• Aggravated Burglary
• Blackmail
11. Attempts
• Common Law? No
• Statute? Yes
• Crimes Act Provisions
• Mens Rea
• Actus Reus
• When conduct is sufficient for an attempt
• Tests:
o The “last act test” Eagleton o The “proximity rule”
o “Part of a series of acts”
• Withdrawal
• Impossibility
• Two-‐stage inquiry
• Standalone offences
12. Complicity
• Common law? No, only historically.
• Statute? Yes. (s. 323, 324 Crimes Act)
• Elements
• Legislation:
o S. 323 o S. 324
§ S. 324A
§ S. 324B
§ S. 324C
• Innocent Agent
• Withdrawal
• Intentionally Assisting, Encouraging, or Directing o Mens Rea
o Actus Reus
• Mere Presence?
• S. 323(B) and (D)
• Important Cases on Complicity
o White and Ridley (innocent agent and withdrawing from an offence)
o Osland – principal offenders and ‘inconsistant verdicts’
o Lam – mere presense is rarely enough
o Georgianni – must be aware of the essential circs that make up the case.
13. IRAC Examples
1. Introduction & classification of offences What is a crime?
The criminal law is not concerned with private rights – although any infringement of those rights may be taken into account in sentencing.
A crime is regarded as a wrong committed against the community or the state: it is a public wrong.
Infringement of individual or private rights may be rectified under the appropriate private laws, e.g. the law of contract or the law of torts.
So in the situation of an assault, the offender will be dealt with under the criminal law but his or her victim may be able to recover compensation or damages in a civil action.
Definition of a crime:
…[A] legal wrong that can be followed by criminal proceedings which may result in punishment
-‐ Professor Glanville Williams in Textbook of Criminal Law, 2nd ed, Steven and Sons, 1983, p. 27
Essentially, a crime is an illegal act that may be punished
Some acts are crimes because the individual has chosen to act in a particular way, either intending or being aware of the likely consequences. For example, if you deliberately drop a heavy object from the second story of an office building, arguably you would be aware that the object could potentially strike another person. In these cases, the prosecution would have to prove your act was intentional, reckless or negligent.
Other crimes simply require you to commit the act. These are crimes of strict or absolute liability. E.g. speeding while driving > police do not have to prove intent or state of mind.
Justification for criminalisation
-‐ Prevention of harm (e.g. seatbelts, mobile phones while driving) -‐ Morality (e.g. historically: homosexuality)
