Criminal Law
Criminal Law Voluntariness General Principle: Voluntariness must be performed voluntarily (in that it must be willed): Ryan v R; Woolmington v DPP 3 ways an act may be considered involuntary:
Where it was accidental: where the act was caused without intention, recklessness or criminal negligence: Ryan v The Queen o o
Definition in Ryan: “the clear absence of will to act” – looking at the circumstances” But, maybe look at concurrence: Thabo Meli -
Impossible to divide up what was really one series of acts Sufficient that the requisite mental state is apparent at the beginning of the series of acts
Where act was caused by a reflex action Where act was performed whilst accused was in a state of impaired consciousness Common Assault: s61
Physical Elements The actual use of force The threat of future use of force
Must cause V to apprehend immediate and unlawful violence: Knight Mere words enough where V apprehends immediate violence: Knight; Zanker Subjective test re: whether V does apprehend immediate violence o Actual knowledge of the threat is required: R v Lamb o Apprehension must be reasonable: Zanker – but reasonableness is determined from the point of view of the particular V, taking into account if they were particularly susceptible in any way: Zanker o May not be assault where V is not actually in fear: R v Kuhl
Immanency
o Did A’s conduct induce in V’s mind a reasonable apprehension of injury later one: Zanker o Important re: whether V had the capacity to avoid the threat – was A at all times in a position to execute it: Zanker Fault Elements Statute declaratory of common law so FE’s are intention or recklessness: Fagan Intention test (ordinary usage): intending to perform the actual conduct causing harm (i.e. intending to punch A) or intending to cause an apprehension of imminent harm in V’s mind: Zanker
No intention when A’s were just mucking around: Lamb
Recklessness test:
Did A foresee that their unlawful force or act would cause immediate harm (or the apprehension of harm? Degree of foresight required: possibility that harm might be inflicted: Coleman Actual Bodily Harm: s59 (1)
Threshold of Injury: [any injury] “need not be permanent, but must be more than merely transient or trifling Grievous Bodily Harm: s33 s 4 (1) provides an inclusive definition:
(b) [GBH] includes any permanent or serious disfiguring of the person Supplemented by common law definition: “bodily harm of a serious character”: DPP v Smith Malicious Wounding: ss33 and 35
Common Law definition: wounding constitutes an injury involving a breaking through both the inner and outer skin: Vallance v The Queen (1961) 108 CLR 56 at 77 Fault Elements Actual Bodily Harm: intention and recklessness
Basic intent: R v O’Connor; not mention in s428B – doesn’t matter what specific injury results, have to only intend cause ABH: Coulter v R
Recklessness test: must be some foresight on behalf of A of the possibility that if they continue what they are doing, they are going to cause injury
Grievous Bodily Harm and Wounding
s33: intentional infliction of GBH or intentional wounding Maliciousness: s5 o
Maliciousness includes intention and recklessness: Coleman Intoxication
s428H: abolishes the Common Law in relation to self-induced intoxication s428C: Self-induced intoxication can now only be taken into account if A’s crime was one of specific intent (“where necessary to show that A held the intention to cause the specific result)
Evidence of intoxication can be used to show that, in crimes of specific intent, A did not act with the “purpose of bringing about the results or consequences of the conduct” Evidence of intoxication may also be relevant in showing whether A could have foreseen the likelihood of a consequence or circumstance occurring Exceptions: o o
s428C (2) (a) Can’t take intoxication into account if A had resolved before becoming intoxicated to do the relevant conduct or (b) A had already resolved to commit the crime before getting drunk. He became intoxicated for the specific purpose of strengthening his courage
s428G: Self-induced intoxication cannot be taken into account in determining whether A’s conduct was voluntary s428D (b) Intoxication that was not self-induced can be taken into account for offences other than specific intent s428G (2) Intoxication that was not self-induced can be taken into account in assessing whether conduct was voluntary
Where it was accidental: where the act was caused without intention, recklessness or criminal negligence: Ryan v The Queen o o
Definition in Ryan: “the clear absence of will to act” – looking at the circumstances” But, maybe look at concurrence: Thabo Meli -
Impossible to divide up what was really one series of acts Sufficient that the requisite mental state is apparent at the beginning of the series of acts
Where act was caused by a reflex action Where act was performed whilst accused was in a state of impaired consciousness Common Assault: s61
Physical Elements The actual use of force The threat of future use of force
Must cause V to apprehend immediate and unlawful violence: Knight Mere words enough where V apprehends immediate violence: Knight; Zanker Subjective test re: whether V does apprehend immediate violence o Actual knowledge of the threat is required: R v Lamb o Apprehension must be reasonable: Zanker – but reasonableness is determined from the point of view of the particular V, taking into account if they were particularly susceptible in any way: Zanker o May not be assault where V is not actually in fear: R v Kuhl
Immanency
o Did A’s conduct induce in V’s mind a reasonable apprehension of injury later one: Zanker o Important re: whether V had the capacity to avoid the threat – was A at all times in a position to execute it: Zanker Fault Elements Statute declaratory of common law so FE’s are intention or recklessness: Fagan Intention test (ordinary usage): intending to perform the actual conduct causing harm (i.e. intending to punch A) or intending to cause an apprehension of imminent harm in V’s mind: Zanker
No intention when A’s were just mucking around: Lamb
Recklessness test:
Did A foresee that their unlawful force or act would cause immediate harm (or the apprehension of harm? Degree of foresight required: possibility that harm might be inflicted: Coleman Actual Bodily Harm: s59 (1)
Threshold of Injury: [any injury] “need not be permanent, but must be more than merely transient or trifling Grievous Bodily Harm: s33 s 4 (1) provides an inclusive definition:
(b) [GBH] includes any permanent or serious disfiguring of the person Supplemented by common law definition: “bodily harm of a serious character”: DPP v Smith Malicious Wounding: ss33 and 35
Common Law definition: wounding constitutes an injury involving a breaking through both the inner and outer skin: Vallance v The Queen (1961) 108 CLR 56 at 77 Fault Elements Actual Bodily Harm: intention and recklessness
Basic intent: R v O’Connor; not mention in s428B – doesn’t matter what specific injury results, have to only intend cause ABH: Coulter v R
Recklessness test: must be some foresight on behalf of A of the possibility that if they continue what they are doing, they are going to cause injury
Grievous Bodily Harm and Wounding
s33: intentional infliction of GBH or intentional wounding Maliciousness: s5 o
Maliciousness includes intention and recklessness: Coleman Intoxication
s428H: abolishes the Common Law in relation to self-induced intoxication s428C: Self-induced intoxication can now only be taken into account if A’s crime was one of specific intent (“where necessary to show that A held the intention to cause the specific result)
Evidence of intoxication can be used to show that, in crimes of specific intent, A did not act with the “purpose of bringing about the results or consequences of the conduct” Evidence of intoxication may also be relevant in showing whether A could have foreseen the likelihood of a consequence or circumstance occurring Exceptions: o o
s428C (2) (a) Can’t take intoxication into account if A had resolved before becoming intoxicated to do the relevant conduct or (b) A had already resolved to commit the crime before getting drunk. He became intoxicated for the specific purpose of strengthening his courage
s428G: Self-induced intoxication cannot be taken into account in determining whether A’s conduct was voluntary s428D (b) Intoxication that was not self-induced can be taken into account for offences other than specific intent s428G (2) Intoxication that was not self-induced can be taken into account in assessing whether conduct was voluntary
