REVISION Flashcards
What is a Principal in the first degree?
1) Where the person who is the ‘ACTUAL PERPETRATOR’ or the most IMMEDIATE CAUSE of the offence, or
2) ‘INNOCENT AGENTS’ (Innocent agent performs actus reds with no mens rea): principle is constructively present through agent, or
3) ‘JOINT CRIMINAL ENTERPRISE’ - Joint principals: 2 or more persons carry out a joint criminal enterprise.
What is a Joint Criminal Enterprise ?
2 or more persons reach an agreement or understanding that results in an agreement between them to commit a crime.
They will be both joint principals in the first degree if each of the participants commits at lease one element of the foundational crime.
Note: It may also occur when the co-accused simply encourages the accused. Principle in second degree. -Applies when the charge laid differs to the offence agreed upon.
What is a principal in the second degree?
Offenders will be principals in the second degree either:
1) By offering encouragement/assistance, or
2) Are involved via a common purpose
S 345 of the Crimes Act 1900 - Both are liable to the same punishment as principals in first degree.
Encouragement/assistance: it must be established that the accused intended to give encouragement - mere presence is NOT enough.
What is common purpose?
1) Joint criminal enterprise to commit a foundational crime
2) Participation in the foundational crime
3) An incidental crime is committed outside of the foundational crime that is within contemplation of the accused.
We apply the contemplation test regarding point 3) to identify if a co-accused is liable for the incidental crime committed by another.
The contemplation test asks whether the accused could have foreseen the incidental crime committed arising out of the planned enterprise.
What is BAINBRIDGE TEST.
The BAINBRIDGE TEST forms the basis for the CONTEMPLATION TEST;
A test on the balance of probabilities that the accused could have foreseen the co-accused incidental actions whilst committing the crime in a Joint Criminal Enterprise. It should be applied to determine the accused person’s criminal liability to those incidental actions of the co-accused.
What is an Accessory before the fact?
They are absent at the time of the actual crime is committed but are the masterminds behind it. They arrange and command it. The people that execute the crime on behalf of the accessory before the fact do so with full knowledge of the crime, they are principals.
S 346 of the Crimes Act 1900 - Accessories before the fact are treated the same was as principals in terms of punishment.
What is an accessory after the fact?
They are aware of the TYPE of offence that has been committed and they offer the principals comfort or assistance after it has been committed.
E.g. Getaway driver
S 347 of the Crimes Act 1900
What is ‘in company’ and what are some examples of ‘in company offences’?
1) Similar test to principle in second degree;
- By offering encouragement/assistance, or
- Are involved via a common purpose
‘Could the offender readily come to the aid of his co-offender if required?’
In company offences examples include:
61J - Sexual assault in company.
97 - Robbery in company.
112 (2) Aggravated break, enter and commit serious indictable offence, in company of other persons.
Provide three case law references and their short summary with regards to what is ‘In Company?’
1) Queen -v- JOYCE: Mere presence of a person IS NOT SUFFICIENT. Being ‘physically present’ is not enough.
2) R -v- BROUGHAM: Where the victim is aware and is confronted by the combined strength of two or more persons - this maybe enough even if not all intended to participate.
- ‘Could the offender readily come to the aid of his co-offender if required?’
3) R v BUTTON and R v GRIFFEN: ‘There must be such proximity as would enable the inference that those individuals in the group were doing something either to embolden or reassure the offender in committing the crime.
What is an attempt?
- An attempt to commit a crime is an ACT DONE (Actus Reus),
- With the INTENT TO COMMIT THAT CRIME (Mens Rea),
- Which forms part of a SERIES OF ACTS which would constitute its actual commission if it were not interrupted.
What is the mens rea for an attempt?
The accused must have the mens rea to commit the SUBSTANTIVE OFFENCE.
For prosecution regarding an attempt offence to succeed, the offence with which the defendant is charge must be a CRIME OF SPECIFIC INTENT.
Note: Lesser intent such as recklessness or negligence will not suffice. There must be evidence converting the fact the accused had intention to complete the substantive offence.
With reference to R -V- EAGLETON, what is the actus reus required for an attempt?
“R -V- EAGLETON: “Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are.”
Summarise the EAGLTON case?
The acts comprising an attempt must be PROXIMATE with the offence. If the accused was not interrupted they would have committed the offence. On the THRESHOLD OF COMMITTING THE OFFENCE.
What are the two aspects you need to consider whether you have established proximity?
-Is there act of PREPARATION? Acts of preparation by themselves are NOT ENOUGH
(PRE-PAR-ATION)
-Is there an act of PERPETRATION? - Only acts of prepetration will amount to proximity required for an attempt, these acts cannot reasonably be regarded as having any other purpose than the commission of that specific crime.
(PER-PET-RATION)
Can you charge if something is impossible to attempt?
Yes.
- But, it must amount to an offence at law.
- You can charge for something that is factual impossible but the mens rea was still to commit an offence at law.
What are the 6 stages in the Timeline for a Crime?
1) Plan
2) Incitement
3) Conspiracy
4) Attempt
5) Commit offence
6) Conceal offence
What are the 6 explanations for each stage of the Timeline for a Crime? (The explanations for each stage)
1) An individual who merely thinks about committing an offence has not commit a crime as no actus reus has occured. (PLAN)
2) An individual who approaches another and suggests committing an offence may be guilty of common law or statutory incitement. (INCITEMENT)
3) If both parties (2 or more) then agree to commit an unlawful act, in which all intended to participate then they maybe guilty of a conspiracy. (CONSPIRACY)
4) If the individual or other participants in the conspiracy then carry out unlawful acts which are close to committing the crime in its entirety then they or the individual maybe guilty of an attempt. (ATTEMPT)
5) When all elements of the actual offence are committed by the parties (Or an individual) it will move from being an attempt to the commission of the complete crime. (COMMIT OFFENCE)
6) Post even acts may also constitute a crime. (CONCEAL OFFENCE)
What is a conspiracy?
CONSPIRACY: The existence of an agreement between two or more persons to commit an unlawful act with the intention of carrying it out.
- EXISTENCE : Proof that there was an agreement by 2 or more people.
- NATURE: Proof is required that the agreement was to commit a particular unlawful act.
- INTENTION TO PARTICIPATE: Proof that at the time the defendant agreed to participant in the act, the defendant intended to so participate.
With regards to a conspiracy, what are;
1) EXISTENCE + NATURE
2) INTENTION TO PARTICIPATE
1) EXISTENCE and NATURE = The actus reus of a conspiracy.
2) INTENTION TO PARTICIPATE = The mens rea of a conspiracy.
How do you prove a conspiracy?
We need to prove the 3 elements (EXISTENCE, NATURE and INTENTION) of a conspiracy based on;
A) Direct evidence - Of the AGREEMENT in the PLANNING STAGE.
(Examples include admissions, informants, covertly recorded conversations and plans.)
B) Circumstantial evidence - Evidence of any act or
conversation during a later stage that infers the earlier AGREEMENT took place - OVERT ACTS.
What are overt acts?
1) Things said and done in preparation for the object of the agreement.
2) The actual commission of the object of the agreement.
What is the co-conspirators rule?
It can be used circumstantially to prove the PARTICIPATION of an accused in the conspiracy.
S87 (1)(c) Evidence Act
The co-conspirators’ rule is an evidentiary rule. Conduct or words used by other members of a conspiracy that implicate the accused as a member of the conspiracy, to be used as evidence that the defendant was a participant in the conspiracy, even if he or she wasn’t present when they were said.
What is Crabbs case?
Crabbs case is the common law precedent test for recklessness in regards to murder.
The High Court of Australia ruled that to be guilty of murder, the defendant can be reckless in that they did the act knowing it was probable (meaning a substantial or real chance) that death or grievous bodily harm would occur as a result of their actions. Not just possible; must be probable or higher.
What’s required to satisfy the co-conspirators rule?
87 (1)(c) Evidence Act
1) A PRIMA FACIE case; independent of the acts and declarations of the other co-conspirators, that the defendant was a participant.
2) Any OVERT ACTS done by the other co-conspirators in furtherance of the conspiracy are to be regarded as acts done by the accused. (common purpose) even if he wasn’t present when these overt acts occurred
A conspiracy is appropriate when?
- The SUBSTANTIVE offence is not committed, or
- The offence agreed upon as part of the conspiracy was far more SERIOUS than the offence that was committed,
- Only the conspiracy charge reflect the true CRIMINALITY involved .
What are the 9 Criminal defences?
P.A.N.I.C. D.I.S.S.
P - Provocation A - Automatism N - Necessity I- Insanity C - Claim of right
D - Duress
I - Intoxication
S - Substantial impairment
S - Self Defence
How are defences raised?
- All defences need to be raised by the defence during investigation or trial.
- The defence are obliged to disclose the defence, but not specifics under 139 of the Criminal Procedures act.
- This burden is lower than on the balance of probabilities, but higher than reasonable suspicion. - Once they are in issue we need to negate them beyond reasonable doubt.
Can the defence of intoxication be considered as complete and/or partial?
- May provide a COMPLETE defence to all mens rea offences by eliminating mens rea.
- Or intoxication may be a PARTIAL defence, having the effect of reducing culpability/criminal responsibility.
We need to identify offences of ‘Specific Intent’ and ‘Basic Intent’ to detemine the apllicability of intoxication.
In accordance with the Intoxication defence, Section 428C; allows evidence of intoxication to be taken into account in SPECIFIC INTENT OFFENCES. Such evidence CANNOT be taken into account on what occasions?
a) If the person had resolved before becoming intoxicated to do the particular act, or
b) Became intoxicated to stregthen his or her resolve to do the relevant conduct.
Regarding ‘Basic Intent’ offences when can evidence of intoxication be taken into account?
In accordance with section 428D - evidence of intoxication is allowed to be taken into account for offences of ‘Basic Intent’ only if the intoxication was NOT self induced.
What is the defence of self defence in accordance with Section 418 of the Crimes Act 1900.
Section 418 Crimes Act;
‘A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence’ Self defence is a COMPLETE defence.
What two elements form thetest for self defence?
1) - Subjective (In the mind of the accused): Is there a reasonable possibility that the accused believed that their conduct was necessary in order to defend themselves?
(Typically dependant on admissions,evidence of preperation or circumstantial evidence, includingexcessive acts;to negate)
- Objective (Would a reasonable 3rd person thought similarly): Is there a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she percieved them?
(Inquiries and evidencecan be used to refute whether their acts could be considered reasonable in those circumstances)
What is automatism?
Automatism provides aCOMPLETEdefence to all mens rea offences, in is concerned with;
- Involuntary behaviour.
- It is a COMPLETE common law defence to murder and other criminal offences.
- Automatism means an act which is done by the muscles without any control by the mind.
- It can include a spasm, a reflex action or a convulsion.
How can we negate the defence of Automatism?
If we can show the conduct of the accused immediately prior to the involuntarty act was voluntary and that this conduct then caused the involuntary act which caused the consequent criminal act, the defence of automatism may fail.
Section 428G of the Crimes act explains; ‘In determining whether a person has committed an offence evidence of self-induced inoxication CANNOT be taken into account in detemining whether the relevant conduct was voluntary.
What is defence of insanity?
Instanity is;
- A partial defence to murder.
- Institutionalising a person indefinitely for medical treatment.
- Ordinarily a defendant will be presumed sane; unless they raise the issue of ‘insanity’.
- Insanity is concerned with a lack of mens rea via a’disease of the mind’.
- The court must be satisfied on the balance of probabilities that the defendant is legally INSANE AT THE TIME OF THE OFFENCE. Which will return a special verdict of ‘not guilty; on the grounds of mental illness or insanity.
- Insanitly is concerned with intellect and not emotion. It is not available where emotion causes an uncontrollable impulse.
How do you establish the defence of insanity?
McNaughten Rules (common law test for insanity); The accused must clearly prove that at the time of committing the act, he was labouring under such a defect of reason, from the disease of the mind: 1) as to not know the nature and quality of the act he was doing, or 2) as not to know that what he was doing was wrong.
What is the defence of Substantial impairment by an abnormality of the mind?
Section 23A Crimes Act - and- Previously known as Diminishing responsibility.
It is aPARTIAL DEFENCE to MURDER ONLY. And reduces murder to manslaughter.
The accused must show at the TIME OF DEATH;
a)The persons capacity to understand events, or
b) To judge whether the persons actions were right or wrong, or
c) To control themselves,
Was substantiallyimpaired by an abnormality of the mind arising from an underlying condition.
The impairment must be substantial to justify reducing murder to manslaughter.
How is substantial impairment (diminished responsibility) negated?
- Failure of the objective test.
- There need to be an underlying medical cause for the abnormaility. Impulsive behaviour is NOT enough by itself, you need to establish an underlying medical cause this will generally be established by the diagnosis of a medical condition.
- The medical condition must be of a ‘permanent quality’.
- It must be ‘substatial’.
What is the defence of provocation?
S23 Crimes Act 1900
- The killing of one person resulting from a temporary loss of self control brought about by the words or acts of the deceased.
- PARTIAL defence to Murder only.
- Reduces Murder to Manslaughter.
This requires a TRIGGER ACT and the ACT OF PROVOCATION.
What are the characteristics of a trigger act for provocation?
1) Words alone as a trigger must be sufficiently provocative in nature.
2) History/culmination of provocative conduct relevant (battered wife syndrome)
3) Acts of Adultery can justify provocation.
4) Trigger must take place in the presence of the accused.
5) The trigger must come the Deceased
6) The trigger generally must be Aimed at the defendant or the defendant must be present.
7) Trigger need not be unlawful.
How does the prosecution negate provocation?
- Subjective element: 23(2)(a): -and-Objective element: 23(2)(b)
How we can negate provocation when raised:
1) If the actions of the accused amount to premeditation (examine accused conduct between events).
2)The conduct of the deceased must be capable of provoking retaliation of a relevant degree (objective test).
What is the defence of claim of right?
- Honest claim (subjective test) the defendant honestly believes they were entitled to the property. (based on facts not law),AND
- The belief must be one as to legal entitlement (objective test) Complete defence to mens rea offences. Usually property/fraud type matters.
(COMPLETE defence to Mens Rea offences (typically with a dishonesty element)
What is the defence of duress?
The defence of duress may arise in circumstances where a person commits a crime out of extreme fear or threat of ‘immediate death’ or ‘immeidiate serious personal violence’.
- Duress is a COMPLETE defence.
- Duress has bot bee recieved in NSW as a defence to murder.
What is the defence of necessity?
- The criminal acts must be done to avoide ‘serious harmful consequences’ to the accused or others they were bound to protect.
- The accused must honestly believe on reasonable ground that he was placed in a situation of imminent peril.
(COMPLETE defence)
What does the case ofRvKatarzynski indicate regarding the legal defence of self defence?
It poses the question whether the self defence in question was a REASONABLE and PROPORTIONATE RESPONSE.
And uses the two elements of the test for self defence;
1) Is therea reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and,
2) If there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them.
What does the case ofRvFugeindicate regarding the legal defence of claim of right?
‘The existence of such a claim 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 the legal right to the property rather than a belief in a legal right to employ the means in question to recover it.’
What sections of the Crimes Act 1900 have been indicated as important for the DEP?
Crimes Act 1900; S18 - Murder / Manslaughter S33 - Wounding / Assault GBH S61 - Sexual intercourse without consent S86 - Kidnapping / take and detain S93 - b) Riot, and c) Affray S94 - Robbery S112 - Break enter and commit serious indictable offence S116 - Larceny S192 - Fraud S308 - Computer crimes S311 - Public justice offences S344 - Attempts, Accessories and other machinery offences S417 - Defences S431 - Sentences S502 - Miscellaneous offences
(Note there may be more, however these were on the white board at the start of the class)
What the elements for murder in accordance with section 18 of the Crimes Act?
1) - (DEATH OF A PERSON) - The death of the deceased, being a human being.
2) - (CAUSATION OF DEATH) - An unlawful act or omission of the accused which caused the death.
(Actus Reus)
3) - (INTENT TO MURDER) - Such act or omission was done or committed to be don with -
i) reckless indifference to human life
ii) intent to kill or inflict grievous bodily harm
iii) in an attempt to commit, or during, or immediately after the commission by the accused, or by some accomplice with him, of a crime punishable by penal servitude for life or 25 years.
(Mens Rea)
What is death defined as in accordance with S33 of the Human Tissues Act?
a) The irreversible cessation of the functions of a persons brain, or
b) The irreversible cessation of the circulation of a persons blood.
What is causation and the test for it?
This element relates to the Actus Reus or the physical doing of the criminal act.
It is assessed on the OBJECTIVE TEST without reference to the state of mind of the accused.
