Constitutional Law
Stephanie Fiteni 17150229 Criminal Law Exam Book Crimes Act 1958 shall be labeled ‘CA’ hereinafter. INDEX OFFENCE
PAGE NUMBER
Assault – battery Assault – apprehension Stalking Conduct endangering life Conduct endangering persons
Rape Sexual Assault
Theft
Obtaining property by deception Criminal damage
Strict liability, absolute liability and mistake
Attempt
1
*if an element is easily met, move on. ABBREVIATIONS HCA = HIGH COURT OF AUSTRALIA NSWCA = NEW SOUTH WALES COURT OF APPEAL QCA = QUEENSLAND COURT OF APPEAL VSC = VICTORIAN SUPREME COURT VSCA = VICTORIAN SUPREME COURT, COURT OF APPEAL AC = APPEAL CASES (UK) A CRIM R = AUSTRALIAN CRIMINAL REPORTS CLR = COMMONWEALTH LAW REPORTS (HIGH COURT JUDGMENTS) NSWLR = NEW SOUTH WALES LAW REPORTS QB = QUEEN’S BENCH DIVISION SASR = SOUTH AUSTRALIAN STATE REPORTS VR = VICTORIAN REPORTS VLR = VICTORIAN LAW REPORTS RECAP
Two basic parts: o
physical or external elements (or actus reus) -
-
-
conduct a.
positive act
b.
omission
result a.
what the conduct caused or brought into existence
b.
ie property damage
circumstance a.
certain features of the surrounding element
b.
conduct sometimes occurs in particular circumstances which are essential to the definition of the offence ie complainant does not consent to being sexually touched ie the stolen property belonged to someone else
o
fault elements (or mens rea) -
subjective a.
actual mental or subjective states
b.
intention
c.
recklessness i.
-
knowledge that death will probably result from [x] conduct
objective a.
culpability of offender determined by reference to something outside their mind ie negligence:
b.
what the reasonable person in the position of the defendant would have done and known ie. Failing to have a reasonable belief in consent (rape and sexual assault)
2
ASSAULT
COMMON ASSAULT ‘Any person who unlawfully assaults or beats another person shall be guilty of an offence’ (SOA s 23) Definition: The definition of the elements for s 23 assault is the same as for the common law offence (R v Patton 1998, Victorian Supreme Court) Assault means the direct or indirect application of force by a person to the body of, or to clothing or equipment worn by, another person where the application is a. without lawful excuse; and b. with intent to inflict or being reckless as to the infliction of bodily injury, pain, discomfort, damage ... and results to the infliction of any such consequence CA s 31(2) ASSAULT INVOLVING THE APPLICATION OF FORCE (BATTERY) Definition: A person who, without lawful excuse, intentionally or recklessly causes injury to another is guilty of an indictable offence’ CA s 18 The prosecutor must prove 3 ELEMENTS BYD: 1. The accused applied force to the complainant’s body 2. The accused: a. intended to apply force to the complainant’s body or b. knew that force would probably be applied to the complainant’s body 3. The application of force was without lawful justification or excuse ELEMENT 1: Application of force to the complainant’s body -
Prosecution must prove that the accused applied force to the complainants body Fagan v Commissioner of Police 1969, Queen’s Bench Division (UK)
-
Force applied need not be violent. A mere touch is sufficient. Collins v Wilcock 1984, WLR
-
Force can be direct or indirect Fagan v Commissioner of Police 1969, Queen’s Bench Division (UK) (ie a car)
3
ELEMENT 2A: -
Intention
The prosecution must prove that the application of force was intentional Fagan v Commissioner of Metropolitan Police 1969, Queen’s Bench Division
-
Whether or not the consequence inflicted is the consequence intended or foreseen is irrelevant CA s31(2) Consider: Did the accused mean to apply force?
ELEMENT 2B: -
Recklessness
The accused knew (or realised) that his conduct would probably result in force being applied to the complainant’s body Consider: What did the accused know? R v Crabble 1985, High Court of Australia
-
Accused will not have acted recklessly simply because s/he ‘ought to have known’ that their conduct would result in such contact Fisher v police 2004, South Australian Supreme Court
ELEMENT 3: LAWFUL JUSTIFICATION OR EXCUSES Lawful excuse: The absence of hostility does not, on its own, provide an excuse or justification for an assault Boughey v R 1986, High Court of Australia
Justifications: 1. Consent -
Whether consent is available as a lawful excuse will depend on: a. The extent of any harm caused or risked and b. The purpose for which the act was committed Neal v R 2011 Victorian Supreme Court of Appeal
2. Touching in the course of an ordinary social activity -
An act which is conducted as part of ordinary social activity will not constitute an assault. This includes jostling on public transport or in a busy street Collins v Wilcock 1984, WLR
3. Exercising a lawful power of arrest -
A person exercising a lawful power of arrest is entitled to use reasonable force where necessary to effect the arrest R v Turner 1962, Victorian Supreme Court
4
4. Lawfully correctly a child -
Lawful correction of children will generally not be an assault.
-
However, the punishment must be: a. Moderate and reasonable b. Have a proper relation to the age, physique and mentality of the child, and c. Be carried out in a reasonable manner R v Terry 1955, Victorian Supreme Court
5. Self-defence -
A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.
-
A person carries out conduct in self defence if: a. The person believes that the conduct is necessary in self-defence, and b. The conduct is reasonable response in the circumstances as the person perceives them CA s 322K(1)-(2) Note: it is not for the accused to establish that s/he held the relevant belief and that his/her conduct was a reasonable response in the perceived circumstances. The onus is on the prosecution to disprove this defence. CA s 322I
6. Ejecting a trespasser -
A householder is entitled to use reasonable force to eject a trespasser.
-
However, where the person who enters is a licensee, s/he must be given reasonable time to leave before force can be used against him or her Kay v Hibbert 1977 Crim LR (UK)
Consider: Is there evidence that the accused acted with a lawful excuse? AND... Will the prosecutor be able to disprove that the accused acted without lawful excuse BYD? Zecevic v DPP 1987, High Court of Australia Penalties If the injury was caused intentionally, [x] is subject to 10 years maximum If the injury was caused recklessly, [x] is subject to 5 years maximum CA s18 Otherwise, if found jury, [x] is subject to 3 months penalty summary offences act s 23 Conclude = [x] is guilty BYD for assault of application of force.
5
ASSAULT: APPREHENSION (threat) STEP 1. ‘Any person who unlawfully assaults or beats another person shall be guilty of an offence’ SOA s 23
Other definitions: A person must not, without lawful excuse, treat to kill that another person, intending that the other person would fear the threat would be carried is guilty of an indictable offence. CA s20(a) A person must not, without lawful excuse, threat to inflict serious injury on another person, intending that the other person would feat the threat would be carried out CA s 21(a) STEP 2. The prosecutor must prove THREE ELEMENTS BYD: 1. The accused engaged in conduct that caused the complainant to apprehend the immediate application of force to his or her body; and 2. The accused: c. intended to cause such apprehension or d. knew that his or her conduct would probably cause such apprehension ; and 3. The accused had no lawful justification or excuse for causing the complainant to apprehend the application of immediate force.
ELEMENT 1:
Causing apprehension of immediate application of force
The first element that the prosecution must prove is that accused committed an act that caused the complainant to apprehend the immediate application of force to his/her body Knight v R 1988, NSWCA ‘Engage in conduct’ -
What did the accused do?
‘Apprehension’ -
is a matter of belief The complainant does not need to have been frightened. S/he only needs to have apprehended that physical contact would be made without his or her consent Slaveski v State of Victoria 2010, Victorian Supreme Court
-
The contact apprehended need not be grave. Apprehension of any application of force is sufficient. Slaveski v State of Victoria,2010
6
7
PAGE NUMBER
Assault – battery Assault – apprehension Stalking Conduct endangering life Conduct endangering persons
Rape Sexual Assault
Theft
Obtaining property by deception Criminal damage
Strict liability, absolute liability and mistake
Attempt
1
*if an element is easily met, move on. ABBREVIATIONS HCA = HIGH COURT OF AUSTRALIA NSWCA = NEW SOUTH WALES COURT OF APPEAL QCA = QUEENSLAND COURT OF APPEAL VSC = VICTORIAN SUPREME COURT VSCA = VICTORIAN SUPREME COURT, COURT OF APPEAL AC = APPEAL CASES (UK) A CRIM R = AUSTRALIAN CRIMINAL REPORTS CLR = COMMONWEALTH LAW REPORTS (HIGH COURT JUDGMENTS) NSWLR = NEW SOUTH WALES LAW REPORTS QB = QUEEN’S BENCH DIVISION SASR = SOUTH AUSTRALIAN STATE REPORTS VR = VICTORIAN REPORTS VLR = VICTORIAN LAW REPORTS RECAP
Two basic parts: o
physical or external elements (or actus reus) -
-
-
conduct a.
positive act
b.
omission
result a.
what the conduct caused or brought into existence
b.
ie property damage
circumstance a.
certain features of the surrounding element
b.
conduct sometimes occurs in particular circumstances which are essential to the definition of the offence ie complainant does not consent to being sexually touched ie the stolen property belonged to someone else
o
fault elements (or mens rea) -
subjective a.
actual mental or subjective states
b.
intention
c.
recklessness i.
-
knowledge that death will probably result from [x] conduct
objective a.
culpability of offender determined by reference to something outside their mind ie negligence:
b.
what the reasonable person in the position of the defendant would have done and known ie. Failing to have a reasonable belief in consent (rape and sexual assault)
2
ASSAULT
COMMON ASSAULT ‘Any person who unlawfully assaults or beats another person shall be guilty of an offence’ (SOA s 23) Definition: The definition of the elements for s 23 assault is the same as for the common law offence (R v Patton 1998, Victorian Supreme Court) Assault means the direct or indirect application of force by a person to the body of, or to clothing or equipment worn by, another person where the application is a. without lawful excuse; and b. with intent to inflict or being reckless as to the infliction of bodily injury, pain, discomfort, damage ... and results to the infliction of any such consequence CA s 31(2) ASSAULT INVOLVING THE APPLICATION OF FORCE (BATTERY) Definition: A person who, without lawful excuse, intentionally or recklessly causes injury to another is guilty of an indictable offence’ CA s 18 The prosecutor must prove 3 ELEMENTS BYD: 1. The accused applied force to the complainant’s body 2. The accused: a. intended to apply force to the complainant’s body or b. knew that force would probably be applied to the complainant’s body 3. The application of force was without lawful justification or excuse ELEMENT 1: Application of force to the complainant’s body -
Prosecution must prove that the accused applied force to the complainants body Fagan v Commissioner of Police 1969, Queen’s Bench Division (UK)
-
Force applied need not be violent. A mere touch is sufficient. Collins v Wilcock 1984, WLR
-
Force can be direct or indirect Fagan v Commissioner of Police 1969, Queen’s Bench Division (UK) (ie a car)
3
ELEMENT 2A: -
Intention
The prosecution must prove that the application of force was intentional Fagan v Commissioner of Metropolitan Police 1969, Queen’s Bench Division
-
Whether or not the consequence inflicted is the consequence intended or foreseen is irrelevant CA s31(2) Consider: Did the accused mean to apply force?
ELEMENT 2B: -
Recklessness
The accused knew (or realised) that his conduct would probably result in force being applied to the complainant’s body Consider: What did the accused know? R v Crabble 1985, High Court of Australia
-
Accused will not have acted recklessly simply because s/he ‘ought to have known’ that their conduct would result in such contact Fisher v police 2004, South Australian Supreme Court
ELEMENT 3: LAWFUL JUSTIFICATION OR EXCUSES Lawful excuse: The absence of hostility does not, on its own, provide an excuse or justification for an assault Boughey v R 1986, High Court of Australia
Justifications: 1. Consent -
Whether consent is available as a lawful excuse will depend on: a. The extent of any harm caused or risked and b. The purpose for which the act was committed Neal v R 2011 Victorian Supreme Court of Appeal
2. Touching in the course of an ordinary social activity -
An act which is conducted as part of ordinary social activity will not constitute an assault. This includes jostling on public transport or in a busy street Collins v Wilcock 1984, WLR
3. Exercising a lawful power of arrest -
A person exercising a lawful power of arrest is entitled to use reasonable force where necessary to effect the arrest R v Turner 1962, Victorian Supreme Court
4
4. Lawfully correctly a child -
Lawful correction of children will generally not be an assault.
-
However, the punishment must be: a. Moderate and reasonable b. Have a proper relation to the age, physique and mentality of the child, and c. Be carried out in a reasonable manner R v Terry 1955, Victorian Supreme Court
5. Self-defence -
A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.
-
A person carries out conduct in self defence if: a. The person believes that the conduct is necessary in self-defence, and b. The conduct is reasonable response in the circumstances as the person perceives them CA s 322K(1)-(2) Note: it is not for the accused to establish that s/he held the relevant belief and that his/her conduct was a reasonable response in the perceived circumstances. The onus is on the prosecution to disprove this defence. CA s 322I
6. Ejecting a trespasser -
A householder is entitled to use reasonable force to eject a trespasser.
-
However, where the person who enters is a licensee, s/he must be given reasonable time to leave before force can be used against him or her Kay v Hibbert 1977 Crim LR (UK)
Consider: Is there evidence that the accused acted with a lawful excuse? AND... Will the prosecutor be able to disprove that the accused acted without lawful excuse BYD? Zecevic v DPP 1987, High Court of Australia Penalties If the injury was caused intentionally, [x] is subject to 10 years maximum If the injury was caused recklessly, [x] is subject to 5 years maximum CA s18 Otherwise, if found jury, [x] is subject to 3 months penalty summary offences act s 23 Conclude = [x] is guilty BYD for assault of application of force.
5
ASSAULT: APPREHENSION (threat) STEP 1. ‘Any person who unlawfully assaults or beats another person shall be guilty of an offence’ SOA s 23
Other definitions: A person must not, without lawful excuse, treat to kill that another person, intending that the other person would fear the threat would be carried is guilty of an indictable offence. CA s20(a) A person must not, without lawful excuse, threat to inflict serious injury on another person, intending that the other person would feat the threat would be carried out CA s 21(a) STEP 2. The prosecutor must prove THREE ELEMENTS BYD: 1. The accused engaged in conduct that caused the complainant to apprehend the immediate application of force to his or her body; and 2. The accused: c. intended to cause such apprehension or d. knew that his or her conduct would probably cause such apprehension ; and 3. The accused had no lawful justification or excuse for causing the complainant to apprehend the application of immediate force.
ELEMENT 1:
Causing apprehension of immediate application of force
The first element that the prosecution must prove is that accused committed an act that caused the complainant to apprehend the immediate application of force to his/her body Knight v R 1988, NSWCA ‘Engage in conduct’ -
What did the accused do?
‘Apprehension’ -
is a matter of belief The complainant does not need to have been frightened. S/he only needs to have apprehended that physical contact would be made without his or her consent Slaveski v State of Victoria 2010, Victorian Supreme Court
-
The contact apprehended need not be grave. Apprehension of any application of force is sufficient. Slaveski v State of Victoria,2010
6
7
