Criminal Law Legend PDF

🔑 CRIMINAL LAW legend key knowledge unlawful homicide and murder Intentional murder (CL) Reckless murder (CL) Statutory constructive murder (s 3A) Manslaughter by unlawful and dangerous act (CL)...

🔑 CRIMINAL LAW legend key knowledge unlawful homicide and murder Intentional murder (CL) Reckless murder (CL) Statutory constructive murder (s 3A) Manslaughter by unlawful and dangerous act (CL) elements 1. act 2. causation 3. death 4. unlawfulness - (Pemble v The Queen (1971) 124 CLR 107) 5. dangerousness- wilson test or s4A of the crimes act 1958(vic) (Wilson v R (1992) 174 CLR 313) Negligent manslaughter (CL) elements 1. act 2. causation 3. death 4. a duty of care 5. the duty of care was breached CRIMINAL LAW legend 1  6. the breach of the duty amounted to a great falling short of the standard of care which a reasonable person in the circumstances would have excersied 7. a reasonable person in the situation of the accused would have appreciated that their actions would involve a high risk of death or serious injury/ grievous bodily harm Nydam v The Queen VR 430. Parent/child relationships (R v Russell VLR 59), but not necessarily when child becomes an adult (cf. R v Shepherd (1862) 169 ER 1340). Spouse/de-facto partners (R v Reid (2010) 29 VR 446). Voluntary assumption of a care for helpless persons (R v Taktak (1988) 14 NSWLR 226). Situations where the accused has created a situation of danger by dealing with dangerous things or doing dangerous acts (R v Styman NSWCCA 245). Employer/employee relationships (see, R v Moore NSWCCA 316). Culpable driving causing death (s 318) elements 1. driving voluntary 2. a motor vehicle 3. culpable 4. causation 5. death of another human being Dangerous driving causing death or serious injury (s 319) 1. driving voluntary 2. a motor vehicle 3. dangerously 4. speed or manner must have resulted in serious loss of management or control of the car 5. causation 6. death or serious injury of another human being - serious injury defined in s 15 CRIMINAL LAW legend 2  manslaughter : unlawful and danergous act manslaughter, single punch s4A of the Crimes act 1958 (vic) causation established whether legal or factual test but for 1.Substantial and operating cause test (most popular) R v Hallett SASR 141 2.Natural consequence test Royall v The Queen (1991) 172 CLR 378, 389 (Mason CJ) 3.Reasonable foreseeability test Royall v The Queen (1991) 172 CLR 378, 449 & 451 (McHugh J) 4.Common sense test Royall v The Queen (1991) 172 CLR 378, 387 (Mason CJ), 423 (Toohey J & Gaudron J) citing Burt CJ (with whom Jones & Smith JJ agreeing) Campbell v The Queen (1980) 1 A Crim R 157, 161 (Burt CJ). novus actus interveniens : R v Evans & Gardiner (No 2) VR 523 (manslaughter) Eggshell skull rule R v Blaue 1 WLR 1411 Medical treatment / negligence of third parties 1. R v Jordan (1956) 2. R v Smith (1959) 3. R v Evans & Gardiner (1976) Acts of nature R v Hallett SASR 141 acts of victims Royall v The Queen (1991) 172 CLR 378 assault CRIMINAL LAW legend 3  common law contact assault ‘An assault is any act which … causes another person to apprehend immediate and unlawful personal violence… and the actual intended use of unlawful force to another person without … [their] consent’ Fagan v Commissioner of Metropolitan Police 1 QB 439 elements 1. the accused applied force (contact) to another's body 2. the application of the force was intentional or reckless The prosecution must prove that the act of making contact was committed consciously and deliberately. (Ryan v R (1967) 121 CLR 205.) 1. the application of force was without lawful justification or excuse common law apprehension assault 1. voluntary act 2. apprehension but the victim of imminent application of force to the victims body third party (Macpherson v Beath (1975) 12 SASR 174). the victim does not know what the accused is going to do next, but believes that whatever it is, it is likely to be physically violent (R v Ireland AC 147). 3. causation 4. the accused intended their actions to cause such apprehension or was reckless to that outcome 5. the accused had no lawful justification or excuse for causing the complainant to apprehend the application of immediate force hypothetical threats The accused makes a statement to another, and the true meaning of the words stated indicate that the accused does not intend to carry out the conduct. à DOES NOT GIVE RISE TO CRIMINAL LIABILITY (not actual threats). (See Tuberville v Savage.) conditional threats CRIMINAL LAW legend 4  The accused threatens to use force if the other person fails to comply with a stated condition. à You need to consider further factors (see next slide). (See Rozsa v Samuels.) Intentionally causing serious injury (s 16) Recklessly causing serious injury (s 17) Intentionally or reckless causing injury (s 18) elements 1. voluntary act 2. the complainant -victim suffered an ijury or serious injury defined in s15 3. causation 4. Intentional or reckless (depending on section) à not merely intention / recklessness about the doing of the act (as in common assault) but more specifically: intention / recklessness about causing injury / serious injury (see R v Westaway (1991) 52 A Crim R 336). 5. without lawful excuse or justification Negligently causing serious injury (s 24) a person who by negligently doing or omitting to do an act causes serious injury to another person is guilty of an indictable offence 1. Act (remember voluntariness requirement). 2. Serious injury (as defined in s 15 CA). 3. Causation (remember the tests). 4. Identify required standard of care (general duty to take care so as not to harm others). 5. The act departed from the required standard of care. 6. The departure amounted to criminal negligence. 7. No defences/excuses available. Conduct endangering life (s 22) A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence. CRIMINAL LAW legend 5  Conduct endangering persons (s 23) A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of serious injury is guilty of an indictable offence. elements 1. The accused engaged in voluntary conduct (a voluntary act); and 2. Accused’s conduct (act) put (or may have put) another person’s life in danger (section 22) or put (or may have put) another person in danger of serious injury (section 23) 3. The accused acted recklessly. R v Holzer VR 481. Intentionally causing serious injury in circumstances of grossviolence (s 15A) Recklessly causing serious injury in circumstances of gross violence(s 15B) 1. Voluntary act. 2. The victim suffered an injury or serious injury (depending on section). 3. Causation. 4. The injury was caused in circumstances of gross violence. 5. Intentional or reckless (depending on section). 6. Without lawful excuse or justification. Stalking (s 21A)Assaults (s 31) a person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes, for example: Following them; Contacting them; Publishing statements relating to them; Tracing their communications; Entering or loitering outside their residence, business, etc.; Making threats elements CRIMINAL LAW legend 6  1. The accused engaged (voluntarily) in a course of conduct that included particular actions (i.e., the ones described in ss 21A(2)(a)-(g); not a closed list). 2. The accused either: Committed that course of conduct with the intention [subjective test] of causing physical or mental harm to the victim, including self-harm or of arousing apprehension or fear in the victim for his or her own safety or that of any other person; or Knew [subjective test] that engaging in a course of conduct of that kind would be likely to cause such harm, or arouse such apprehension or fear; or Ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm, or arouse such apprehension or fear, and it actually did have that result. [Objective test.] Common assault (s 23 Summary Offences Act 1966 (Vic)) Aggravated assault (s 24 Summary Offences Act 1966 (Vic)) sexual offences s 38 CA: Rape. Elements: 1. Act of sexual penetration of another person;s 38(1)(a)) 2. Intention to sexually penetrate;(s 38(1)(b)). 3. Lack of consent on the part of the victim; and s 36 CA 4. No reasonable belief as to consent. s 36AA CA 1958 (s 38(1)(c) CA). intoxication on reasonable belief, s 36B CA self induce or not Papadimitropoulos v The Queen (1957) 98 CLR 249, 260-261 (Dixon CJ, McTiernan, Webb, Kitto & Taylor JJ). Facts: accused made woman believe that they were legally married and had sexual intercourse with her, to which she would not have consented if she had known they were not married. Withdrawal means that person is NO longer consenting, see s 36AA(1)(p). ‘Sexual intercourse is a continuing act which only ends with withdrawal’; Kaitamaki v The Queen ) – not completed upon penetration, see section 35A(1)(d)-(f). S 36(1) CA: Consent means free and voluntary agreement. CRIMINAL LAW legend 7  S 36AA(2) CA: statutory prescribed fraud vitiating consent s 39 CA: Rape by compelling sexual penetration. 1. Act of sexual penetration of/by another person/themselves/an animal;(s 35A CA) 2. Compulsion (i.e., act is compelled). 3. Intention to cause sexual penetration. 4. Lack of consent on the part of the victim; and 5. No reasonable belief as to consent. s 40 CA: Sexual assault. 1. Touching of another; s 35B CA 1958 2. Intent to touch; 3. Touching is sexual; 4. Lack of consent; 5. No reasonable belief as to consent. s 41 CA: Sexual assault by compelling sexual touching 1. Touching of/by another person/ themselves/an animal; 2. Touching is sexual; 3. Compulsion (i.e., act is compelled); 4. Intent to cause touching; 5. Lack of consent; and 6. No reasonable belief as to consent. theft and deception s74 CA: theft elements 1. Property S 71(1) CA: ‘property includes money and all other property real or personal including things in action and other intangible property’. CRIMINAL LAW legend 8  Property must actually exist before it can be appropriated; a future obligation or contingent intangible cannot be appropriated (Akbulut v Grimshaw 3 VR 756 2. Belonging to another S 71(2) CA: ‘property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest’. 3. Appropriation s 73(4): Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner Adversely interfered with or usurped the owner’s rights in some way (Roffel v R VR 511 A person ‘assumes the rights’ of an owner by taking on the right to do something which the owner has the right to do by virtue of their ownership (Stein v Henshall VR 612). 4. With the intention of permanently depriving the other person of the property Subjective standard that must be present in the accused’s mind at the time of the appropriation. à The accused must have already formed intention to permanently deprive the owner of property at time of appropriation (R v Lloyd 1 QB 829; R v Dardovska (2003) 6 VR 628). [See next slide.] S 73 (10) CA: Where a person gets property by another's mistake, and is under an obligation to make restoration ( 5. Dishonest state of mind Negative definition in s 73(2) s 81 CA: obtaining property by deception A person obtains property by obtaining ownership, possession, or control of it. 1. Property (s 71(1) CA) 2. Belonging to another (s 71(2) CA) 3. Obtains 4. By deception (also has MR component/dimension – see element 5). 5. Deception was deliberate or reckless R v Smith (1982) 7 A Crim R 437. CRIMINAL LAW legend 9  6. Intention to permanently deprive (same as for theft) 7. Dishonestly (NOT the same definition as for theft) R v Salvo VR 401 (affirmed in R v Brow VR 783 and R v Bonollo VR 533): the accused acts dishonestly under s 81 if they act ‘without an honest belief that s/he has a legal right to permanently deprive the other person of the subject property’. R v Salvo VR 401 Obtaining a financial advantage by deception: s 82 CA elements 1. Financial advantage ‘a financial advantage occurs where a person is put in a favourable or superior economic, monetary or commercial position—a situation where the financial aspect is more beneficial than another—and would include a situation where a person is given the opportunity to earn remuneration in employment’; Taylor v The Queen VSCA 235 at (Priest & Beach JJA). 2. Obtains 3. By deception 4. Deception was deliberate or reckless 5. Dishonestly robbery, burglary and strict and absolute liability offences Robbery – section 75 CA Actus Reus: 1. Accused steals (= theft: AR + MR elements of theft) TALK ABOUT THEFT FIRST 2. Accused uses force on any person puts any person in fear of force seeks to put any person in fear (i.e., threat of force) Force is determined as a question of fact by a jury (R v Clouden Crim LR 56). The threat must place the victim in fear – i.e., the threat must be sufficient to cause personal intimidation (R v Butcher VR 43). 3. Force used by accused immediately before or at time of stealing CRIMINAL LAW legend 10  Element will not be met if force applied (or fear of force induced / sought to be induced) after the property was appropriated (R v Foster (1995)78 A Crim R 517) Mens Rea: 4. Accused intends to use (or threaten with) force in order to steal. (In addition to MR elements of theft – see above.) Armed robbery – section 75A 1. Accused steals (= theft: AR + MR elements of theft) 2. Accused uses force on any person puts any person in fear of force seeks to put any person in fear (i.e., threat of force) 3. Force used by accused immediately before or at time of stealing 4. Accused intends to use (or threaten with) force in order to steal. 5. At the time of committing the robbery, the accused has with him/her: a)A firearm or imitation firearm; or b)An offensive weapon; or def of offensive c)An explosive or imitation explosive. As per section 77 (1A) Burglary – section 76 1. Entry The level of entry must be sufficient to complete the offence. Entry of part of accused’s body into a building will be sufficient if it puts accused in a position to commit the ulterior offence (see R v Brown). 2. Into any building / part of a building Relevant characteristics include: size, weight, permanence of position, presence of doors and locks, and availability of electricity (B&S v Leatherley Crim LR 314). The element will be met if accused enters an unauthorised ‘part of a building’ (see subsection 76(1)). See R v Walkington 2 ALL ER 716 3. Trespass (AR and MR element) Unlimited authority CRIMINAL LAW legend 11  Unlimited authority to enter can exist. The state of the law in Victoria is unclear on whether a person with unlimited authority could be ever regarded as a trespasser (see Barker v R (1983) 153 CLR 338; R v Taylor (2004) 10 VR 199). Limited authority Authority to enter may be limited in any way or subject to express or implied limitations regarding time, place, or purpose of entry (e.g., license to enter a shop/restaurant Withdrawn authority Sometimes a person will remain in a property after their authority to be there has been withdrawn. For civil law purposes, this converts person into a trespasser (tort of trespass). However, for criminal law purposes the person does become a trespasser. not 4. Intention to commit ulterior offence (i.e., theft, assault or property damage). The theft of anything in the building or unauthorised part of the building (subparagraph 76(1)(a)); or Any offence punishable with imprisonment for a term of five years or more that: Involves an assault to a person in the building or unauthorised part of the building (subparagraph 76(1)(b)(i)); or Involves any damage to the building or property in the building or unauthorised part of the building (subparagraph76(1)(b)(ii)). they only need to provide that the accused had that intention when entering the room. (See R v Chimirri VSCA 57.) Aggravated burglary – section 77 Strict and absolute liability offences Mistake of law and fact inchoate offences CRIMINAL LAW legend 12  complicity and attempt attempt s321M CA A person who attempts to commit an indictable offence is guilty of the indictable offence of attempting to commit that offence. Elements of attempt 1.The accused intended to commit an indictable offence; and The first element requires the accused to have intended to commit an indictable offence, referred to as the ‘principal offence’ (section 321N; Britten v Alpogut VR 929; DPP v Stonehouse AC 55). The accused needs to have intended to commit the principal offence and not some other offence (Knight v R (1992) 175 CLR 495; McGhee v R (1995) 183 CLR 82). 2.The accused attempted to commit that offence. The accused’s conduct must have been: a)More than merely preparatory to the commission of the offence; and b)Immediately and not remotely connected to the commission of the offence. (S 321N(1).) The ‘substantial step test’: This requires the accused to have progressed far enough down the path of offence commission to be considered ‘substantial’. See: DPP v Stonehouse AC 55 CRIMINAL LAW legend 13  The ‘last act test’: This requires the accused to have performed all of the acts that s/he needed to do in order to complete the offence See: R v De Silva QCA 301; R v Eagleton (1855) Dears CC 515; 169 ER 826 The ‘unequivocal act test’: This requires the accused’s conduct, in all the circumstances, to be unequivocally referable to an intention to complete the principal offence See: R v Nicholson (1994) 14 Tas R 351; R v Barker (1924) NZGLR 393. conduct constituting attempt s321N CA attempt and impossibility S321N(3) CA Legal Impossibility A legal impossibility arises in two circumstances: 1. Where the accused mistakenly believes that her/his objective is criminal where in fact what s/he has done is not a criminal offence at all; and/or 2. Where a person is not within the class of persons who by law are capable of committing the subject offence (e.g. underage persons). Factual Impossibility A factual impossibility occurs where the accused’s intended objective would have amounted to an offence on the facts as s/he believed them to be, but the accused failed to complete the crime due to facts unknown to him/her which may have made the completion of the offence impossible. Factual Impossibility will not amount to a defence for an attempt; see s 321N(3) CA (see also R v Shivpuri). conspiracy to commit an offence Elements of conspiracy 1. The accused and at least one other person entered into an agreement to pursue a criminal offence (‘the principal offence’); For this element to be met, the prosecution must prove that: 1. The accused and at least one other person entered into an agreement; and 2. The parties agreed to pursue a course of conduct that involved at least one of them committing the principal offence. CRIMINAL LAW legend 14  The prosecution must establish that there was a common agreement between the parties to the conspiracy (Gerakiteys v R (1984) 153 CLR 317). Agreement is an essential element of conspiracy. People who pursue a common intention to commit a crime will not be guilty of conspiracy if there is no agreement between them (R v Moran & Mokbel 2 VR 87). The prosecution my prove that course of conduct agreed upon would involve the commission of the principal offence, rather than some different offence, or an unspecified or undecided offence (R v Moran & Mokbel 2 VR 87). 2. The parties intended to form that agreement; and Evidence that the accused had acted as if they made an agreement may provide evidence of an intention to form an agreement, but is not conclusive. It can be rebutted by other evidence (Peters v R (1998) 192 CLR 493). 3. The parties intended that the principal offence would be committed. Recklessness is not a sufficient state of mind for conspiracy (Giorgianni v R (1985) 156 CLR 473). conspiracy and impossibility s321(3) Factual impossibility will be no defence. Legal impossibility will amount to defence (i.e., there will be no conspiracy). incitement s321G CA Elements of Incitement 1. The accused incited a person to pursue a course of conduct that would, if acted upon, involve the commission of an offence (the principal offence); and Inciting includes command, request, propose, advise, encourage or authorise (section 2A CA) While the incitement needs to have come to the knowledge of the person incited, it does not need to have had any particular effect on them. They do not need to have formed an intention to commit the principal offence, nor have taken any steps to commit that offence for this element to be met (R v Zhong VSCA 56). 2. At the time of the inciting conduct, the accused intended that the principal offence would be committed. CRIMINAL LAW legend 15  Where the principal offence requires the principal offender to have cause a particular result (say death or serious injury), the prosecution must prove that the accused intended the principal offender to bring about that result. This is required even if the intention to bring about that result if not necessary to convict the principal offender of the principal offence. R v Wilson VSCA 120; R v Massive 1 VR 542 incitement and impossibility s321G(3) Factual impossibility will be no defence. Legal impossibility will amount to defence (i.e., there will be no conspiracy). Complicity in commission of offences (ss 323-324 CA); persons involved in commission of offence taken to have committed the offence s324CA Liability under section 324 only arises if an offence is committed by the principal offender. The prosecution must prove that one or more principal offenders committed the relevant criminal act(s) with the necessary criminal intention (see R v Jensen & Ward VR 194). A person who is involved in the commission of an offence may be found guilty of the offence whether or not any other person is prosecuted for or found guilty of the offence. s324A A person may be found guilty of an offence by virtue of section 324 if the trier of fact is satisfied that the person is guilty either as the person who committed the offence or as a person involved in the commission of the offence but is unable to determine which applies. A person who is involved in the commission of an offence s323 Person who is involved in the commission of the offence. The concept of a ‘person involved in the commission of an offence’ is defined in section 323. Section 323(1) provides involvement can be established in in following ways – where a person: a)Intentionally assists, encourages or directs the commission of the offence; or b)Intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charges would be committed in the course of carrying out the other offence; Five elements: s323(1)(a) 1. Another person committed principal offence (PO) CRIMINAL LAW legend 16  2. Accused assisted, encouraged or directed the commission of PO – by act or omission (omission only where accused has legal duty to act) Words ‘assists’ and ‘encourages’ reflect the common law complicity liability attaching to ‘aiding, abetting, counselling or procuring’ an offence as discussed in Giorgianni v R (1985) 156 CLR 473. 3. Accused intended to assist, encourage or direct the commission of PO 4. Accused knew the essential facts of PO 5. No effective withdrawal The accused’s state of mind must be assessed at the time the gave the relevant assistance, encouragement or direction, rather than at the time of the offence (White v Ridley (1978) 140 CLR 342). c)Enters into an agreement, arrangement or understanding with another person to commit the offence; or d)Enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence. Four elements: 1.Two or more people reach an agreement to commit an offence that remained in existence at the time the offence was committed; 2.In accordance with the agreement, one or more parties to the agreement performed all of the facts necessary to commit the offence charges, in the circumstances necessary for the commission of that offence; 3.The accused had the state of mind required for the commission of the relevant offence at the time of entering into the agreement; 4.No effective withdrawal Intentionally assists, encourages or directs the commission of the offence Five elements: s323(1)(a) 1. Another person committed principal offence (PO) 2. Accused assisted, encouraged or directed the commission of PO – by act or omission (omission only where accused has legal duty to act) CRIMINAL LAW legend 17  Words ‘assists’ and ‘encourages’ reflect the common law complicity liability attaching to ‘aiding, abetting, counselling or procuring’ an offence as discussed in Giorgianni v R (1985) 156 CLR 473. 3. Accused intended to assist, encourage or direct the commission of PO 4. Accused knew the essential facts of PO 5. No effective withdrawal The accused’s state of mind must be assessed at the time the gave the relevant assistance, encouragement or direction, rather than at the time of the offence (White v Ridley (1978) 140 CLR 342). The prosecution must prove that at the time of entering into the agreement, the accused had the state of mind required for the commission of the offence (see Osland v R (1998) 197 CLR 316; Likardopoulos v R (2010) 30 VR 654). recklessness in complicity s323(1)(b)and (d) CA Intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charges would be committed in the course of carrying out the other offence; Enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence. withdrawal Attributes of an EFFECTIVE WITHDRAWAL- s324 1. Withdrawal must be timely (before the completion of the offence). 2. Accused must undertake reasonable steps to withdraw which involve undoing the contribution/preventing the commission of the offence. 3. Withdrawal must be expressly communicated to the other participants (White v Ridley (1978) 140 CLR 342). doctrine of innocent agency Elements: CRIMINAL LAW legend 18  1. The accused intentionally caused a person to perform the acts which constitute the offence charged, in the circumstances necessary for the commission of that offence; 2. At the time the person performed those acts, the accused had the state of mind necessary to commit the offence; and 3. The agent is innocent of the offence. assisting after the commission of the principle offence s325 CA elements 1. Another person committed a serious indictable offence (as defined in s 325(6) of the CA) 2. Accused did an act 3. Act was done with the purpose of impeding the apprehension, prosecution, conviction or punishment of the other person 4. Accused knew or believed that the other person was guilty of the serious indictable offence or another serious indictable offence 5. No lawful excuse concealing offences for benefit s326 CA elements 1. Another person committed a serious indictable offence (as defined in s 325(6) of the CA) 2. Accused knew or believed that that offence or another serious indictable offence had been committed 3. Accused had information which might have been of material assistance in securing the prosecution or conviction of principal offender 4. Accused did not disclose the information 5. Accused accepted a benefit for not disclosing the information Accessories after the fact (s 325 CA) concealers (s 326 CA) defences Self-defence: s 322K CA CRIMINAL LAW legend 19  1. First Element: The person believes that the conduct is necessary in self-defence Whether the accused believed it was necessary to defend themselves or someone else; and II. Whether the accused believed it was necessary to respond as they did, given the threat as they perceived it. See Zecevic v Director of Public Prosecutions (1987) 162 CLR 645. Considerations when evaluating the accused’s belief in necessity Proportionality of the response Immediacy of the threat Retreat as an option Evidence of intoxication Relationship of partie 2. Second Element: The conduct is a reasonable response in the circumstances as the person perceives them. Reasonable Response the prosecution must prove that the conduct of the accused was not a reasonable response in the circumstances as the accused perceived them to be (subparagraph 322K(2)(b)). Objective test Considerations when evaluating reasonableness of the accused’s response include: Personal attributes of the accused (age, sex, state of health etc.) Surrounding circumstances Proportionality of the response Availability of other responses S 322M Family violence modifications of self-defence Sudden or extraordinary emergency (s 322R) elements 1. Reasonable belief that circumstances of sudden/extraordinary emergency CRIMINAL LAW legend 20  exist; 2. Reasonable belief that the conduct is the only reasonable way to deal with the emergency; 3. The conduct is a reasonable response to the emergency. (1 & 2 = objective & subjective test; 3 = objective test Duress (s 322O CA) An act is said to be committed under duress if: it is committed due to a perceived threat of harm that the accused reasonably believes will be carried out if that act is not committed elements only one or more needs to be proved 1. The accused reasonably believed that a threat of harm had been made; 2. The accused reasonably believed that the threat would be carried out unless anoffence was committed 3. The accused reasonably believed that carrying out the conduct was the onlyreasonably way that the threatened harm could be avoided 4. The conduct was a reasonable response to that threat; and 5. The threat was not made by or on behalf of a person with whom the accused isvoluntarily associating for the purpose of carrying out violent conduct. (1, 2 & 3 = objective & subjective tests; 4 = objective test.) Marital coercion (s 336 CA) (independent defence) They must be lawfully married. Defence unavailable defence to de facto partners, polygamous marriages, or where woman mistakenly believes she was legally married. See Brennan v Bass (1984) 35 SASR 311. NOT DEFENCES BUT NEGATE AN OFFENCE Statutory intoxication (s 322T) negating defence negates an elements of the offence if it effects volunary ness CRIMINAL LAW legend 21  if it was self induced R v O’Connor: an involuntary act is one where there is a separation of the will from movements of the body. An accused may still be convicted for such offences – not because of any exception to voluntariness (AR) and intention (MR), but by virtue of those requirements being met (by the accused having voluntarily becoming intoxicated in order to commit the crime) (R v O’Connor). mental impairment Can be raised by either party (prosecution or defence), s 21(3) C(MIUT) Act. Establish: 1. Accused was suffering from a mental impairment at the time they did the acts said to constitute the offence. 2. And (either (a) or (b)): (a) Accused did not know the nature and quality of what they were doing, s 20(1)(a) C(MIUT) Act Refers to physical character and significance of actions; not to moral quality (Sodeman v R). Accused unable to appreciate physical nature of what s/he was doing and its consequences (R v Porter). Or (b) accused did not know their conduct was wrong, s 20(1)(b) C(MIUT) Act ‘He or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong’, s 20(1)(b) C(MIUT) Act. If mental impairment can be established, person not guilty because of mental impairment, s 20(2) C(MIUT) Act automatism In some cases, it may be alleged that the accused committed an offence involuntarily, in a state of automatism (R v Falconer (1990) 171 CLR 30). CRIMINAL LAW legend 22  Disease of the mind’ = the accused was suffering from some kind of mental disease, disorder or disturbance, rather than ‘mere excitability, passion, stupidity, obtuseness, lack of self-control and/or impulsiveness’ (R v Porter). A ‘disease of the mind’ exists where a person’s ability to understand is thrown in ‘derangement ordisorder’ (R v Porter). CRIMINAL LAW legend 23