MLL114 – Criminal Law
Table of Contents
Terminology ... 1
Subjective v Objective... 1
Evidentiary and Legal Burden ... 1
Problem Solving Schema ... 2
Determining the charges ... 2
Requirements for the Extension of Criminal Liability ... 3
Sources of Criminal Law ... 4
Common Law States ... 4
Code States... 4
Capacity and Criminal Law ... 4
Children ... 4
Corporations ... 4
Homicide ... 6
Actus Reus Elements of Homicide ... 6
Voluntary act or omission ... 6
Death... 6
Meaning of Life and Death ... 6
Foetus and Child ... 6
Death ... 6
Causation... 7
Factual Causation ... 7
Legal Causation ... 7
Tests for Causation ... 7
Other Considerations for Causation... 7
Clear cause of Death ... 8
Eggshell Skull Rule ... 8
Medical Treatment Cases ... 8
Self-Preservation ... 8
Types of Homicide ... 8
Is it Murder or Manslaughter? ... 8
Murder ... 9
Doctrine of Temporal Coincidence ... 9
Intentional murder (with or without transferred malice) ... 9
Reckless murder ... 9
Statutory constructive murder ... 10
Common law constructive murder ... 10
Culpable Driving Causing Death ... 10
Manslaughter ... 10
Voluntary manslaughter ... 11
Involuntary manslaughter ... 11
Involuntary manslaughter by criminal negligence ... 11
Involuntary manslaughter by unlawful and dangerous act ... 12
Assault ... 15
Common Law Assault ... 15
Contact Assault ... 15
Actus Reus Element ... 15
Mens Rea Element ... 15
Temporal Coincidence ... 15
Pragmatic Limitations on the Law of Assault ... 15
Consent ... 15
Apprehension Assault ... 17
Consent ... 17
Statutory Assault ... 17
Level of Harm ... 17
s 23 Summary Offences Act (Vic): Assault ... 18
s 16 Crimes Act (Vic): Causing Serious Injury Intentionally ... 18
s 17 Crimes Act (Vic): Causing Serious Injury Recklessly ... 19
s 18 Crimes Act (Vic): Causing Injury Intentionally or Recklessly ... 19
s 24 Crimes Act (Vic): Negligently Causing Serious Injury ... 19
s 31 Crimes Act (Vic): Assaults on Emergency Responders ... 20
Definition of ‘Emergency worker on Duty ... 20
Endangerment Offences ... 21
s 22 Crimes Act (Vic): Conduct Endangering Life ... 21
s 23 Crimes Act (Vic): Conduct Endangering Person ... 21
Sexual Assault ... 22
s 38 Crimes Act: Rape ... 22
s 39 Crimes Act: Compelled Rape ... 22
s 40 Crimes Act: Sexual Assault ... 22
s 41 Crimes Act: Compelled Sexual Assault ... 22
s 42 Crimes Act (Vic): Intent to commit sexual act: ... 23
Various Elements of Sexual Assault ... 23
Sexual Penetration ... 23
Exceptions ... 24
Sexual Touching ... 24
Consent ... 24
What is Consent ... 24
Common law elements ... 25
Jury Directions Act on Consent ... 25
Reasonable belief of Consent ... 25
Knowledge v Belief ... 26
Intoxication and Reasonable Belief ... 26
Jury Directions Act on Reasonable Belief ... 26
Exceptions ... 27
Theft and Deception ... 28
s 74 Crimes Act Theft ... 28
s 81 Crimes Act Obtaining Property by Deception ... 28
s 82 Crimes Act Obtaining Financial Advantage by Deception ... 29
Elements ... 29
Definition of ‘Property’ ... 29
Definition of ‘Belonging to Another’ ... 30
Definition of ‘Appropriation’ ... 32
Consent to Appropriation... 32
Mistaken Consent in Appropriation ... 32
Definition of ‘Obtained’ ... 32
Definition of ‘Dishonesty’ ... 33
Definition of ‘Deception’ ... 33
Definition of ‘Intent to permanently deprive’ ... 34
Burglary... 35
s 76 Crimes Act Burglary ... 35
Elements of Burglary ... 35
s 77 Crimes Act Aggravated Burglary ... 37
Robbery ... 39
s 75 Crimes Act Robbery ... 39
s 75A Crimes Act Armed Robbery ... 40
Strict and absolute Liability Offences ... 41
Defence of Honest and Reasonable Mistake ... 41
Inchoate (Incomplete) Offences ... 42
Attempt ... 42
Incitement ... 44
Definition of ‘Inciting’ ... 44
Conspiracy ... 44
Elements of Conspiracy ... 45
Doctrine of Complicity ... 47
Who can be held liable?... 47
Statutory Complicity ... 47
s 324 Crimes Act Persons involved in commission of offence ... 48
Elements to Show Complicity ... 49
s 325 Crimes Act Accessories ... 49
s 326 Crimes Act Concealing an offence ... 49
Innocent Agents ... 50
Withdrawal... 51
Elements of effective Withdrawal ... 51
Defences ... 52
Affirmative Defences ... 52
s 322K Crimes Act Self Defence ... 52
Elements derived from statute ... 52
Mental Impairment ... 53
Elements to show Mental Impairment ... 53
Duress ... 55
Elements to preclude Duress ... 55
Marital Coercion ... 56
Sudden and Extraordinary Emergency ... 57
Elements of Sudden and Extreme Emergency ... 57
Non-affirmative Defences ... 58
Intoxication ... 58
Burdens ... 59
Statutory Elements ... 59
Automatism ... 60
Burdens ... 61
Terminology
Subjective v Objective
Subjective tests are when the facts are considered from the perspective of the accused while objective tests are when the facts are considered purely on the facts with no bias person such as an ‘ordinary reasonable person’.
Evidentiary and Legal Burden
Legal burden: Who must prove or disprove a defence
Evidentiary Burden: Who must raise the issue or defence for it to be considered. Does not need to be fully substantiated, only have enough elements to show it may be applicable
Problem Solving Schema
This schema should guide the reader into understanding which offences to discuss in an exam situation.
You must ask all six questions and respond to the potential charges, even if it is obvious that the charge would not be substantiated for a reason (state why).
It is suggested that this page be printed off separately for the exam for quick reference.
Determining the charges 1. Did anyone die?
Homicide 2. Did anyone get hurt?
Was it serious?
os 16 to 17
Was it not serious?
o Did it result in harm?
S 18, s 23 SDA, CL o Was it just a threat?
CL Apprehension
Was it sexual?
oPenetration?
S 38 Rape, s 40 Sexual Assault or s 40 compelled rape o Just touching?
S 40 Sexual assault 3. Was a building involved?
Burglary 4. Was anything taken?
From a person?
o Robbery, theft
Not from a person oTheft, deception 5. Were other people involved?
Did they work together?
o Complicity
Did they intend on committing an offence?
o Conspiracy
Did someone try to cause another to commit a crime o Incitement
6. Did someone try to commit a crime but failed?
Attempt
Requirements for the Extension of Criminal Liability
The elements required to extend criminal liability:
1. The person must have committed the conduct with all elements of that conduct fulfilled a. Known as the actus reus or general rule
i. Translated to ‘bad act’ and typically consists being voluntary or an omission to act where the law imposes a duty to act
ii. Can be the act itself (such as violence causing physical harm) or satisfied when the act or omission brings a certain result (such as the death of another person) 2. There must be a complete fault element/intent at the time of the offence
a. Known as mens rea
i. Translated to ‘bad or guilty mind’, a mental state prohibited by law which encompasses various states:
1. Intention – actual subjective intention of bringing about the prohibited result, including malice, or acts where the accused knows the prohibited result is highly likely to occur
2. Knowledge – Knowledge that the prohibited circumstances exist or that the particular consequences will occur
3. Belief – belief that certain facts are true
4. Recklessness – being aware of the risk and electing to proceed 5. Ordinary negligence – ‘should have known the risk’, does not usually
suffice, with the exception of involuntary manslaughter by criminal negligence
a. ‘Conduct falling greatly short of the standard of care expected of the reasonable person and carrying a high degree of risk of harm’ (Nydam v The Queen)
3. There must be an absence of any defences or excuse or justification which can negate the liability
4. The court hearing the matter must have jurisdiction over the offence being heard a. Must establish guilt prior to applying punishment
b. To establish guilt, there must be a trial
c. The court holding the trial must have jurisdiction for the crime being tried d. Jurisdiction can be established by the:
i. Essential element test (R v Ellis)
1. The crime has happened in the state that this court operates ii. Terminatory test
1. As per the Essential Element test, the conduct has happened in the state of the jurisdiction of that court
iii. Initiatory test
1. The preparation stage occurred in the jurisdiction of that court iv. Constitutional principle of ‘peace, welfare and good government’
1. Based around a ‘justice’ argument e. Jurisdiction can be modified with statute
5. The person committing the act must have legal capacity to commit a criminal offence (see Capacity and Criminal Law on page 4)
Sources of Criminal Law Common Law States
Where common law makes up some criminal law, or many pieces of legislation come from the common law. Defences can be from the common law too as well as elements of criminal responsibility.
States on this system include New South Wales, South Australia and Victoria.
Code States
Have enacted criminal codes which have replaced common law.
States/Territories include Australian Capital Territory, Northern Territory, Queensland, Tasmania and Western Australia.
Capacity and Criminal Law Children
Under 10
o Incapable of committing an offence (s 344 Children, Youth and Families Act (Vic)) o Common law doctrine doli incapax was 7 years old and was expanded by statutory law
Between 10 and 13
o Rebuttable presumption that the person is incapable
o Must be proven to beyond reasonable doubt that they knew their conduct was wrong to overturn presumption (R v ALH)
14 and older
o Treated with capacity
o However, different court jurisdiction of the Children’s court used until 17 (s 516 Children, Youth and Families Act (Vic))
Exception is homicide (except infanticide) and where ‘exceptional circumstances’ warrant the accused to be tried as an adult Corporations
Starting position is that a Corporation is a legal entity and theoretically can be liable to the same extent as a natural person.
Can be liable for financial or property crimes such as fraud or theft, but:
Unclear if can be convicted of a crime that inherently requires acts by a natural person such as sexual assault
Corporate manslaughter law still in development as essence of manslaughter is one human killing another
Corporations cannot be convicted of crimes that are only punishable by imprisonment Corporate criminal responsibility can be established in two ways:
1. Vicarious liability
