Theft and Deception. The theft offence was consistently done well. The general charge to start with was s134 theft and it could be said that Jo dealt with the ...
Markers’ Notes on Criminal Law and Procedure
Primary Exam 2012
Has Jo committed any offences?
Theft and Deception
The theft offence was consistently done well. The general charge to start with was s134 theft and it could be said that Jo dealt with the property without consent and with the intent to deprive them of it. There was also a question of proving whether it was the property of another. But more importantly was he also dishonest, which is also required, and this is essentially what this incident was about.
If Jo believed the note to have been lost, he might rely on a s 131(5)/(6) defence that he had a right to act as he did, remembering that the belief in that right must be honest not necessarily correct. However, it seems quite clear that Jo believed the money had fallen from the register (that is, the likely owner was easily identifiable - which is the point that thwarts Jo's reliance on s 131(4) on the finding of property believing that the owner cannot be found). In that case the issue is simply 131(1) dishonesty - ordinary people would consider taking the note dishonest; perhaps Jo could argue that he doesn't know that because he thinks ordinary persons would consider it acceptable for him to use $10 to save himself from another rough night (but that is really a plea in mitigation rather than a bar to conviction). Jo's rough circumstances do not suggest that he has other than normal values regarding honesty.
S 139 Deception, on that analysis, was a good fit - in paying with the note he dishonestly obtained an advantage. (Vic is guilty via joint enterprise to the extent that he acts in concert with Jo, but this is not clear and the problem is fairly completed on the basis that Jo acted without awareness or input from Vic). A number of students did not discuss this offence.
Homicide: Murder or Manslaughter or Neither?
This problem required a careful consideration of each act and omission of the accused which might have caused death and the thoughts of the accused at each of these times to see whether they amounted to the fault element of murder, or of a lesser homicide charge (because of the principle of contemporaneity). A number of students failed to do this with care and skill.
On the facts, causation was not a major problem (it is reasonably clear that one or more of his acts and/or omissions substantially contributed to the death: Hallett) but it required discussion. He caused the burning and the smoke inhalation. He caused bleeding as did also the firebrigade. And because he placed him in peril, he had a duty to act to save him from this peril. So here an omission could also count as causation.
Determining which act/omission may have substantially contributed to the death was important to the determination of whether it was murder or manslaughter or neither (if the firebrigade did it) because Vic had different mental elements at different times.
There were a number of possibilities. At the point that he sets the place alight (and this is the act which causes the smoke and burn trauma) it may be that only manslaughter is possible - either negligent manslaughter or unlawful and dangerous act manslaughter. He is an idiot but there is insufficient evidence that he appreciates the risk of causing very serious harm though he has received plenty of warning from the notices. There was room for discussion here.
At the point that he causes the gash to the head he is positively trying to help Jo and so here it can only be negligent manslaughter if the gash is the cause of death – at this point.
When he leaves Vic burned and bleeding, and still has a positive duty to assist as he has placed him in peril, he arguably appreciates the substantial risk of serious injury to Vic, even causing death, and so it might be murder. If he doesn’t, we are back to negligent manslaughter or UDAct Manslaughter for the lighting of the fire.
Arguably, the only time Jo might have had the fault element for murder was when he left Vic in close proximity to the fire (and has a duty to save him having placed him in peril). Is he thinking clearly enough in light of the circumstances and the type of person that he is to appreciate the risk of causing serious harm? Perhaps so, in view of his statement to the police. Otherwise manslaughter, as above.
Overall this question was done well. Students mostly understood the elements of rape, the difficulties with prosecuting the offence, the interaction between the common law and the statute and the philosophical complexity around mistaken and unreasonable belief in consent. Well done.
A recurring problem was students arguing that rape is a strict liability offence and therefore that the defence of honest and reasonable mistake of fact arises. Rape is a mens rea offence. Perhaps the confusion occurs because the Morgan proposition regarding ‘honest and unreasonable belief in consent’ sounds like ‘honest and reasonable mistake of fact’. However, it is important to note that these are completely different concepts, and an ‘honest and unreasonable belief in consent’ prevents the fault element for rape being made out. It is not an affirmative defence.
Just a note on terminology for information. Many students found that a jury would ‘charge’ a person if the elements of the offence were made out against them. That is not correct. No one was penalised for this as it was not strictly covered in the course but ‘charging’ is what happens at the beginning of a prosecution. The police receive a complaint or attend an incident and, if appropriate, ‘charge’ the person, to start the process of getting them to court. If the matter goes all the way through court and a magistrate/judge/jury finds the person guilty, then they are ‘convicted’ of the offence.
Rape of Andrea
The physical element was clearly made it. Thorough answers made reference to the fact that sexual intercourse, as defined in s 5, was made out. It was not necessary to have recourse to any of the 46(3) provisions. Andrea was simply not freely and voluntarily consenting under s 46(2) on account of her surprise and fear.
The question was framed to require an application of the fault provisions of the SA statute law (which largely endorse the English case of Morgan), and to provide facts from which it could be found that B had an unreasonable but honest belief that A consented and would be entitled to a full acquittal. Good answers canvassed the possibility that he was recklessly indifferent to consent but none of the s 47 criteria are readily made out on the facts.
While indecent assault is an alternative verdict for rape it is not always a suitable alternative. In a case such as this, where rape fails on the basis of consent, the same issue is going to arise in the assault and so indecent assault was not a suitable charge here.
Attempt Unlawful Sexual Intercourse of Veronica
This was quite tricky and many students missed this possibility. B thought he was having sexual intercourse with Veronica, whom he knew was 15. This seemed to raise USI under s 49.
However, he could not be guilty of the completed offence of USI as he did not have intercourse with V (who was 15), but rather with A, who is 18, and so a legal adult.
But, he could be charged with attempted USI. Then the problem of factual impossibility is raised – is it a bar to conviction? His victim was not under age, and so did not satisfy a basic ingredient of the offence: he only thought she was. This is why it can only be an attempt. By application of Irwin this problem is resolved. Factual impossibility is not a bar to conviction and he could therefore still be guilty of attempt. On the facts, he satisfied the fault requirement of attempt in that he intended to have USI (with V). The only reason he did not succeed is that he had the wrong person. Given his admission to the security guard about V, a conviction would be likely.
Attempted rape was not a viable charge as he thought that V (his supposed victim) was consenting.
Cause Serious Harm (23(1))
Assault causing harm was a possible charge here, but where there is actual harm it makes sense to go with s 23 or 24 as the penalties are higher and the offence is more descriptive of the conduct.
There was room for discussion of whether it should have been serious harm or just harm according to s 21. It was sensible to suggest the charge of serious harm as according to s 25 the lesser offence is an alternative verdict.
The offence is aggravated according to s 5AA because the bottle constitutes a weapon when used in this manner. Some students said that a bottle is not a weapon. However, harmless items will be considered weapons if they are used as such – bottles, sporting equipment, branches etc can be so classified.
For ss 20, 23 or 24 the PE and FE are readily made out.
A few students raised the issue of defence of others, since V said she wanted to stop B raping anyone else. This was a valid and interesting point to make but it is unlikely that the defence would succeed as the risk to others was abstract and it is more likely that the bottle was thrown in anger than with a genuine desire to protect others.
Mental impairment was a possibility on the facts but not the best defence given that V did not have any pre-existing mental health issue.
Non-insane automatism was a better fit and this called for an application of the case of Singh.
Advise as to the criminal liability of Tom, Milo and Otis.
Assault (Div 7) arises in the initial encounter between Tom and Milo. Words are generally not enough but a shove is. Does it occur in the context of sport (parkour)? If yes, is shoving out of the ordinary: yes. Is it simply socially acceptable banter between young men? Probably not.
There was no offending in relation to the lunge and dodge – it is no offence to move. Very clever papers might argue attempt assault. There is no provocation defence. Self defence is arguable, but the threat was probably over and this was a “revenge lunge”, not conduct for a defensive purpose. In general, these facts supplied the background to what followed.
Theft of keys? Probably yes, by Otis at the site, but joint enterprise by all 3 (Jerry dead). Most elements are clear. The main issue with theft is whether Otis and the others acted dishonestly. From the exchange above, these athletes may think ordinary people consider it acceptable for them to take keys to permit them to practice their sport. Excellent answers considered dishonesty from the different subjective points of view of Otis, Milo and Tom. O & M seem to think that the conduct is acceptable, in light of the previous exchange; T has different views and is also, arguably, intoxicated. O'Connor may completely exculpate theft. It could also be argued by the defence that the keys are neither damaged nor devalued.
Satellites dishonesty offences are unlikely. It is probably theft or nothing.
Murder? It was murder on the part of Milo if he caused the death of Jerry with an intention to kill him. Issues on the facts were a) lack of intent to kill and b) whether Jerry losing his footing meant that causation could not be established (Jerry simply fell). The provocation defence was only appropriately raised if there was loss of control linked with an intention to kill. And of course the provocation had to be sufficiently grave. Very unlikely on this set of facts.
Manslaughter by UDA was clear, subject to proof of causation. There was nothing to suggest that Milo acted involuntarily (he lunged because incensed); there was nothing to support any defence.
Common purpose did not operate to make Otis or Tom liable for murder or manslaughter. At best, they might contemplate that the sport is dangerous and someone might die, but they would not contemplate that death would be the result of one of their number (of course, very good arguments against this were rewarded).
Attempted murder should have been rapidly dismissed with respect to the security guard. Section 23 is the charge (it's strongly arguable to be serious harm) and clearly made out subject to intoxication. Intoxication is quite clear but clever arguments might suggest he was engaging in parkour and hence had his wits about him and so he is lying when he suggests that he thought it was a snake etc - but the facts do not support that approach. Section 23 will not be successful as O'Connor applies. The lesser alternative of s268(5) will apply and will be made out.
Again, the use of common purpose to hold the other two liable is a stretch.
Section 72 required a HKT analysis at the outset to determine the fault elements that apply to the respective physical elements. Intention applied on an ordinary meaning approach to entering the site. At least strict liability should apply to the site being a site management area. The 2 year penalty supports SL; the OHS nature of the legislation's concern suggests it should extend to AL. Following this, each of the three is guilty via joint enterprise. Milo and Otis have a defence of duress which will fail because they chose to go. Tom has an intoxication defence( if it is an offence of fault), which might exculpate him - but there is an argument that it should not because he formed the intent to go onto the site before becoming intoxicated.
It was important to do what you were asked. Then thoughtful intelligent papers were rewarded. We accepted a variety of approaches. But it could not just be a general chat around the topic or a general survey of the relevant law.
Advise in relation to the procedural issues which arise. Note that you do not need to advise on the substantive offences with which Maria and Lizzy are charged.
At the outset, when should Burke issue a caution? His information and observations are consistent with Maria and Lizzy offering themselves for prostitution. Burke has asked questions and received unconvincing answers. His following remarks suggest an accusatory mind. A case could be made that a caution should have be given. Against that, it could be said that he is still investigating and his questions are investigatory in nature. Also, if a caution should have been given, to what extent was it effectively given by his remark – Maria clearly understood what Burke was implying but there was a vast different between an insulting remark and a caution concerning criminal activity. There was a good case for a caution to be given.
Does Burke have the power to search? The power is in s 68 of the SOA and depends on RCS. An argument could be made that Burke demanded that pockets be emptied because he was angered by the slap. However, despite that, an objective person would consider there to be enough material for a search to be conducted (to argue to the contrary contradicts a caution argument above if made). Burke is entitled to rely on his practices/profiling in forming a suspicion and it is reasonable for police to act from experience – but whether that is so in these circumstances depends very much on whether it is reasonable for a police officer with RCS a person offering themself for prostitution also to possess illicit substances (without more than their mere act of soliciting). The important point however was to recognise that his RCS may indeed relate to the indictable offence of possession; very few papers drew the distinction between suspicion relating to soliciting and suspicion relating to possession.
If the original s 68 search (above) was proper, Burke certainly has RCS justifying search of the handbag. However, if the original search were improper, this latter search of the handbag should be regarded as proceeding from an improper foundation and hence enliven a discretion to exclude what was found in the bag.
The admissibility of the incriminating statements following the search of the bag depends on the analysis above as to whether the search was proper.
Was Burke obliged to record when the women started speaking under s 74D? The main argument against a need for recording is that the statements were spontaneous, hence not an interview (conversation).
Analysis of whether proper procedure was followed under the Forensic Procedures Act should have been undertaken but this was relatively rudimentary. Similarly, Maria’s conduct (her threatening of a police officer) called for comparison with Robinett.
Consideration should have been given throughout to Burke’s failure to record in compliance with s 74D. Having identified improprieties, they should be considered in light of the Bunning discretion, except where statute provides the test (i.e. s 74E).