Beruflich Dokumente
Kultur Dokumente
Summary
1. UNLAWFUL HOMICIDE..................................................................................................................4
1.1 PATTERNS OF HOMICIDE 5.1............................................................................................................4
1.2 AN ATYPICAL OFFENCE? 5.2...........................................................................................................4
1.3 THE LEGAL FRAMEWORK 5.4..........................................................................................................5
1.3.1 statutory provisions.................................................................................................................5
1.3.2 causation.................................................................................................................................6
1.3.3 constructive homicide..............................................................................................................7
1.3.4 voluntary manslaughter..........................................................................................................7
1.3.5 prosecution process.................................................................................................................7
1.3.6 sentence...................................................................................................................................7
1.3.7 debate about abolishing murder-manslaughter......................................................................8
1.4 MENS REA OF UNLAWFUL HOMICIDE.............................................................................................8
1.4.1 intent, reckless indifference 5.5...............................................................................................8
1.4.2 constructive murder 5.6..........................................................................................................9
1.4.3 manslaughter by unlawful act 5.7.........................................................................................10
1.4.4 manslaughter by criminal negligence 5.8.............................................................................11
1.4.5 corporate homicide 5.9.........................................................................................................12
1.5 ACTUS REUS OF UNLAWFUL HOMICIDE........................................................................................12
1.5.1 homicide by omission 5.10....................................................................................................12
1.5.2 causation 5.11.......................................................................................................................14
1.5.3 causation: medical treatment and euthanasia 5.12..............................................................18
1.5.4 definition of life.....................................................................................................................18
1.5.5 definition of death.................................................................................................................18
1.5.6 voluntariness.........................................................................................................................18
1.6 TEMPORAL CO-INCIDENCE OF MENS REA AND ACTUS REUS..........................................................19
2. DEFENCES........................................................................................................................................20
2.1 INTRODUCTION 6.1.........................................................................................................................20
2.2 MENTAL DEFENCES.......................................................................................................................21
2.2.1 Insanity 6.2............................................................................................................................21
2.2.1.1 procedure.....................................................................................................................................22
2.2.1.2 fitness to plead.............................................................................................................................23
2.2.1.3 forensic patients...........................................................................................................................23
2.2.1.4 summary proceedings..................................................................................................................23
2.2.1.5 involuntary committal..................................................................................................................23
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Summary
3.2.2 battery...................................................................................................................................50
3.2.2.1 actus reus.....................................................................................................................................50
3.2.2.2 mens rea.......................................................................................................................................51
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1. Unlawful Homicide
1. actus reus (act must cause the death of a human)
act or omission (omission: Stone & Dobinson, Taktak)
causation (Royall)
death (Human Tissues Act 1983 (NSW) s 33)
human being (beginning of life: murder s 20; manslaughter Hutty)
voluntariness
o evidentiary burden on D (if raising involuntariness) (Falconer)
o P must prove voluntariness BRD (Falconer) [C.373]
2. mens rea
murder: s 18(1)(a)
o intent to kill
o intent to cause GBH
o reckless indifference to human life (subj. foresight of probability of
death) (Crabbe; Solomon)
o constructive murder (Ryan)
manslaughter: s 18(1)(b) common law
o voluntary manslaughter (mens rea for murder, but partial defence)
provocation
substantial impairment (a.k.a. diminished responsibility)
excessive self-defence (while defending life or liberty) (s 420)
infanticide
o involuntary manslaughter (no mens rea for murder; objective test)
by unlawful and dangerous act (Wilson: appreciable risk of
serious injury)
by criminal negligence (Nydam: probability of harm)
o subjective manslaughter
reckless indifference to probability of GBH (Solomon)
reckless indifference to possibility of death (Crabbe)
3. coincidence of actus reus & mens rea (Meyers) [C.358]
also a continuing series of acts (Thabo Meli) [C.359]
[C.490-502; 506-520] [N.3-5]
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1.3.2 causation
D must have caused the death of V, otherwise they are not guilty of murder or
manslaughter. Possibly guilty of attempt to murder (if they have intent) or an
assault or aggravated assault.
even if D only intended GBH (or was recklessly indifferent to probability of
death), they commit murder if V dies.
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1.3.6 sentence
Crimes (Life Sentences) Amendment Act 1989 (NSW) amended Crimes Act:
o s 19A: murder attracts life (for the term of the persons natural life)
o s 24: manslaughter attracts 25yrs
Pemble v R (1971, HCA) [C.520] [N.14]
facts - pre-existing domestic relationship between D & V
- relationship terminated, D was unhappy about it
- D saw the deceased, and carried a loaded gun towards her, alleging that he
only intended to scare her
- the rifle was cocked, he tripped and killed her
- Crown alleged that D walked up to her, muzzled, and shot her
issue is actual foresight of the consequences of the acts necessary for murder?
ratio recklessness for murder=actual foresight or advertence to the probability of
consequences of his act.
note Barwick CJ: possibility (as followed in La Fontaine but overruled in
Crabbe)
held conviction of murder must be set aside, and replaced with manslaughter by
unlawful and dangerous act.
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issue
ratio
held
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efforts to care and the jury were entitled to find that the duty had been
assumed.
held The trial judge did not misdirect the jury. The conviction were upheld
Taktak (1988,NSWCCA) [C.571] [N.24]
facts - D was a heroin addict and associate of R, a heroin supplier.
- R asked D to procure 2 prostitutes for a party.
- V had been using drugs and in the early hours of the morning R phoned D
to pick up the girl.
- when D arrived the girl was moaning and unable to speak.
- D took the girl back to Rs where he attempted to wake her by slapping
her face, pumping her chest and performing mouth to mouth resuscitation.
- R returned at 10 but she still wasnt awake so he went to get a doctor.
- the girl was already dead when the doctor arrived.
- D was charged with manslaughter. There was however a dispute as to the
time of death.
issue was it open to a jury to find that in the circumstances, D owed the girl a
legal duty to obtain medical attention for her?
ratio - P must prove BRD the 3 requirements for this head of manslaughter:
1. D owed a duty of care in law to V
2. Ds omission was the proximate cause of Vs death
3. Ds omission was conscious & voluntary, without any intention of
causing death but in circumstances which involved such a great
falling short of the standard of care which a reasonable man would
have exercised and which involved such a high risk that death would
follow that the omission merited criminal punishment.
note a duty of care will be assumed where the appellant cared for a helpless and
infirm person, thereby removing them from a situation in which anyone else
might have rendered or obtained aid.
held appeal allowed: verdict of acquittal entered.
Russell (1933,VSC) [C.576] [N.24]
held man convicted of manslaughter for standing by & watching his wife drown
herself & their 2 children. His conviction relating to his wife was overturned
on appeal he owed her no duty of care (whereas he did to his children).
note this is an example of the common law requirement for a duty to exist before an
omission will attract criminal liability for homicide
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1.5.6 voluntariness
voluntariness is part of the actus reus
useful to argue involuntariness in cases of constructive murder (Ryan
[C.365]) or manslaughter for unlawful and dangerous act. This can lead to
acquittal. [U.43]
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2. Defences
2.1 Introduction 6.1
[C.607-13] [N.30-2]
a criminal offence = ar + mr + defences
o P must prove BRD ar & mr (& co-incidence of both)
o D must discharge evidentiary burden (raise a doubt) for all defences,
except persuasive burden (balance of probabilities) required for:
insanity [C.608]
substantial impairment (a.k.a. diminished
responsibility) [C.608]
statutory provisions expressly or impliedly placing
such a burden on D [C.414]
o P must disprove/negative BRD any defences raised (i.e. P must prove
absence of the defence elements)
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ratio
2.2.1.1 procedure
party raising insanity bears the burden of proving the defence on the balance
of probabilities: (Porter; contra Woolmington)
both P and D can raise the defence (Falconer; Ayoub)
burden of proof is the same for both P and D: balance of probs (Falconer;
Ayoub)
Ayoub (1984,NSWCCA) [C.625] [N.34]
facts - D stabbed his father to death
- D pleaded diminished responsibility & adduced supporting evidence of
schizophrenia
- D did not raise defence of insanity, but P did
- D found not guilty for reason of mental illness
issue what is the standard of proof required when P raises insanity?
ratio P must prove on balance of probabilities (just like D)
dissent Woolmington should be followed (Enderby J)
Falconer (1990,HCA) [C.625] [N.34]
ratio it is open to P to lead evidence to establish mental illness, on the balance of
probabilities, as an alternative to conviction.
Mental Health (Criminal Procedures) Act 1990 (NSW)
[C.625-6] [N.34]
s 37: jury direction on defence of insanity
s 38 special verdict: not guilty by reason of mental illness
s 39 indeterminate detention: a forensic patient is detained in custody for an
indefinite period (formerly at the governors pleasure)
automatic retention: men in Long Bay, then Morriset; women in
Cumberland Hospital
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dissent
note
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appealed to HCA.
did the act of shooting occur independent of Ds will?
D bears an evidentiary burden in raising non-insane automatism
if both insanity & non-sane automatism are before the jury, then there
is a two-stage test to determine which it is:
1. had P disproved BRD non-insane automatism?
NO: D is entitled to unqualified acquittal (for involuntariness)
YES: go on to Q2
2. had D proved on balance of probabilities insanity?
YES: special verdict
NO: D is criminally liable
expert evidence is important to help jury decide whether D is feigning
a dissociative state (in order to catch a pathological D)
per Mason CJ, Brennan & McHugh JJ
when D raises automatism and assigns some malfunction of the mind
as its cause, he raises a defence of unsoundness of mind or insanity
unless malfunction of mind was:
1. transient; and
2. caused by trauma, whether physical or psychological, which the
mind of the ordinary person would be likely not to have
withstood; and
3. not prone to recur.
objective test: the mental strength of an ordinary person [C.643]:
o if the minds strength is below that standardmind is infirm;
o if the minds strength is below that standardmind is sound/sane
the ordinary person of the objective test is the same as that of the
ordinary person in the objective test of provocation: ordinary person
does not possess any of the particular emotional features of D at the
time of the offence, but the objective factors would be taken into
account (such as history of violence & abuse of children). [U.189]
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control him/herself
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2.2.3.5 sentencing
[C.664-6]
Veen (1979,HCA) [C.664] [N.42]:
facts: prostitute stabs V over payment
held: when sentencing diminished responsibility cases, it is necessary to
balance the protection of society against the circumstances & gravity of the
offence.
Veen (No 2) (1988,HCA) [C.665] [N.42]:
facts: D released from prison & does the same thing again
held: when it comes to sentencing recidivists, the scale tips in favour of
protecting society
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OFFENCE
wilful (mens rea)
= intention & knowledge & usually purpose (Ianella v French)[H&J.279]
act or omission (actus reus)
causing (actus reus)
death of her child (actus reus)
note: her child means only the child to whom she recently gave birth, not any other
child
child < 12 mths (actus reus)
DEFENCE
at time of offence her balance of mind was disturbed by reason of:
her not having fully recovered from the effect of giving birth to the child
the effect of lactation consequent upon the birth of the child
Hutty (1953,VSC) [C.670] [H&J.279]: a woman should not be prosecuted for
murder where evidence indicates infanticide.
in practice, however, woman charged with murder so as to encourage D to
plead guilty of the lesser offence of infanticide rather than face jury trial for
murder.
see also [C.671] for onus of proof, etc
strong case for abolition [N.45] [C.672-5]
o offence is arbitrary: 12 month limit; only the child.
o defence could be covered by substantial impairment
description
definitions
drug as per Drug Misuse & Trafficking Act and Poisons Act
intoxication includes alcohol, drug or any other substance
offence includes an attempt to commit offence
offence of specific intent see s 428B
relevant conduct act or omission constituting the actus reus
self-induced intoxication any intoxication except when it:
o was involuntary
o results from fraud, emergency, accident, reasonable mistake,
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428B
428C
428D
428E
428F
428G
428H
Summary
duress or force
o was a prescription or non-prescription drug taken in accordance
with instructions
(table of) offences of specific intent to which Part 11A applies
(2) the tabled offences are not exhaustive
intoxication in relation to offences of specific intent
(1) D can raise intoxication (self-induced or otherwise) for offences of
specific intent
(2) except for cases of Dutch courage (having formed intent prior to
becoming intoxicated)
intoxication for other offences
self-induced intoxication cannot be taken into account for mens rea
if intoxication was not self-induced, it can be taken into account when
examining mens rea
intoxication in relation to murder & manslaughter
if intoxication results in acquittal for murder then:
if self-induced, intoxication cannot be taken into account when
examining mens rea of manslaughter
if not self-induced, intoxication can be taken into account for mens
rea of manslaughter
intoxication in relation to the reasonable person test
the mind of the reasonable person is not intoxicated
intoxication and the actus reus
self-induced intoxication cannot be pleaded when negativing voluntariness
(automatism)
however involuntariness is available if Ds intoxication was not selfinduced
common law relating to self-induced intoxication is abolished
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2.3.4.1 insanity
intoxication is not a disease of the mind & therefore wont pass the
MNaughten test.
however if it triggers an underlying disease of the mind then insanity is
available (AG v Gallagher).
2.3.4.2 automatism
s 428G: self-induced intoxication cannot be raised as a defence
2.3.4.4 infanticide
murder is listed as an offence of specific intent (s 428B): s 428C allows
intoxication to be raised as a defence for offences of specific intent, but if a
partial defence is used, then s 428E kicks in
as a partial defence, presumably infanticide goes immediately to s 428E: selfinduced intoxication cannot be raised as a defence; if not self-induced then it
can.
this is confused here because s 22A is both an offence & defence!!!
2.3.4.5 provocation
may be relevant with regard to causation & the objective test [U.74]
there is an ordinary person test (s 23(2)(b)): presumably (?) this is the same
as the reasonable person of s 428F and who therefore may not be
intoxicated.
tricky issue here: there will be argument about whether loss of control was
caused by provocation (which is a defence) or intoxication (which is not a
defence).
2.3.4.6 self-defence
Katarzynski contradicts Conlon (by adding the extra step of a reasonable
response test straight from s 418(2))
Conlon was decided before introduction of Part 11A,
but Kurtic suggests that Conlon still stands
who knows????
as yet there has been no appellate decision we need one!!!
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2.3.4.7 duress
there is an person of ordinary firmness of mind test (Abusifiah): it is unclear
whether the reasonable person of s 428F covers this test. Abusifiah states
that this person is a broader concept than the average person of the
Lawrence test. [C.798, 800]
2.3.4.8 necessity
in Loughnan there is a proportionality test, if thats objective then s 428F
might apply
in Rogers D must honestly & reasonably believe in the necessity of Ds
actions. But the reasonable belief is Ds, not the ordinary persons (Conlon
(per Hunt CJ) makes this point about Zecevic; remember that Rogers decision
adopts Zecevic test)
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2.4.1 history
[C.681-2] [N.51]
R v Smith (2000,UKHL) per Lord Hoffman [C.681]
o defence of provocation is a concession to human frailty
o showing anger in hot blood was once a sign of masculine honour
o when murder attracted the death penalty, partial defence of provocation
meant execution could be avoided
o reasonable man test introduced in R v Welsh (1869,UK)
not until 1980s that provocation was modified to cover domestic violence &
cases where loss of self-control was not immediate. This was in response to
cases of Georgina Hill, SA axe murders, etc
Summary
(2) an act or omission causing death is an act done or omitted under provocation
when:
D lost self-control (subjective test)
as a result of any conduct of V (including grossly insulting words or
gestures) towards or affecting D (the provocative conduct) (sub-s (2)(a)) and
the provocative conduct would have caused ordinary person in the position of
D to so far lose self-control as to form intent to kill or cause GBH to D
(objective test) (sub-s (2)(b))
provocative conduct could have occurred at any time prior to act or omission
causing death.
(3) provocation is not negatived by:
(a) disproportional response (i.e. no requirement for proportionality)
(b) a delayed response (i.e. no requirement of suddenness/immediacy of reaction)
(c) intent of D to kill or cause GBH
(4) P must prove beyond reasonable doubt that act or omission causing death was not
done or omitted under provocation
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notes:
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dissent:
notes:
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2.5.1
statutory
defence of self-defence
418
419
420
421
422
423
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description
self-defence when available
(1) self-defence is a complete defence
(2) self-defence established if & only if the person believes the conduct was
necessary:
(a) to defend him/herself or another; or
(b) to prevent or terminate unlawful deprivation of liberty of him/herself or
another; or
(c) to protect property from unlawful taking, destruction, damage or
interference; or
(d) to prevent criminal trespass or remove person committing criminal
trespass;
and conduct is reasonable in circumstances as s/he perceives them.
onus of proof
P must prove beyond reasonable doubt that D did not carry out the conduct in
self-defence
inflicting death (protecting property, preventing trespass)
self-defence is not available when:
- D uses force involving intentional or reckless infliction of death on V; and
- D protecting only property (s 418(2)(c)) or preventing criminal trespass (s
418(2)(d))
excessive force inflicting death (defending life or liberty)
(1) if D:
(a) uses force involving intentional or reckless infliction of death; and
(b) the conduct is not reasonable in circumstances as s/he perceives them;
but D believes the conduct necessary to:
(c) defend him/herself or another; or
(d) prevent or terminate unlawful deprivation of liberty of him/herself or
another;
(2) then self-defence is a partial defence (murdermanslaughter)
response to lawful conduct
self-defence still available if:
(a) Vs conduct is lawful
(b) V not criminally responsible for conduct to which D responds
timing provisions
obiter:
notes:
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dissent:
notes:
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(adapting Zecevic)
notes: following are all now evidentiary considerations:
o imminence of the threat;
o whether prisoner promptly handed him/herself in;
o whether there was another course of action open to D (e.g. asking
for protection)
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defence of duress.
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3. Assault
ABH=actual bodily harm; GBH=grievous bodily harm
common assault (s 61: not occasioning ABH)
1. actus reus
a. assault (apprehension of unlawful contact)
an act (but not an omission) creating apprehension in the mind
of V that unlawful contact is imminent
b. battery (unlawful contact)
an act (but not omission) of unlawful contact upon another
person without his consent
2. mens rea
a. assault (apprehension of unlawful contact)
intent or recklessness (to create apprehension etc)
b. battery (unlawful contact)
intent or recklessness (to effect unlawful contact etc)
3. co-incidence
a. mens rea and actus reus must coincide.
3.2.1 assault
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3.2.2 battery
for more examples (& exceptions) see section on consent to harm below & [U.96-7]
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malicious just means with the necessary mens rea [C.379] [N.80]
s 54: includes negligent infliction of GBH
s 36: causing a grievous bodily disease [N.80]
offence
children at birth
exposing or abandoning a child (<2yo)
assauling wives, children
priests
people helping ships in distress
assault of police officer (cf Reynhoudt below)
assaulting, stalking, intimidating a police officer
aircraft crew
witness, jurors, judges, public justice officials (not police all the time)
[N.80]
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4. Sexual Assault
4.1 Introduction 7.8
[C.870-9] [N.88-91,102]
social context [N.88]
law reform [N.89]
current offences:
offence basic
sexual assault
61I
indecent assault
61L
act of indecency 61N
aggravated
61J
61M
61O
circumstances of aggravation:
factor s 61J
inflict ABH
a
threaten to inflict ABH with weapon
b
in company
c
V <16yo
d
V under authority of D
e
V has a serious physical disability
f
V has a serious intellectual disability
g
description
sexual intercourse without consent
touching
no touching (e.g. flashing)
s 61M
a
b
c
d
e
s 61O
b
c
d
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4.2.2 recklessness
Hemsley (1988, NSWCCA) [C.885] [N.93]
facts: - 16 y.o. V goes for a ride with a bikie (D)
- D sexually assaults V
- D claims V consented & that V is now lying
issue: does Crabbe recklessness (advertence to probable consequences)
apply to sexual assault?
held: no
ratio: for recklessness to be proved, the P must prove BRD that :
(a) D was aware that V was not consenting;
OR
(b) D realised V might not be consenting;
AND
determined to have intercourse with V whether V was consenting or
not
note: this is a different standard from Crabbe recklessness in which
probability is required, not possibility.
Kitchener (1993, NSWCCA) [C.885-887] [N.94]
facts: - 16 y.o. V goes for a ride with a bikie (D)
- D sexually assaults V
- D claims V consented & that V is now lying
issue: does a failure to advert (consider) to the possibility that V might not
be consenting amount to recklessness?
ratio: for recklessness to be proved, the P must prove BRD that either:
(a) D considered possibility of lack of consent but ignored it;
OR
(b) D failed to advert to possibility that V was not consenting.
held: appeal dismissed
note: this is a different standard from Crabbe recklessness in which
probability is required, not possibility.
legislation: recklessness = presumed consent
s 61R(1): being reckless as to whether V consents (i.e. not considering
whether V consents)presumed knowledge of lack of
consentguilty
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4.3.1
d
4.3.2 consent
s 61R(2): consent is vitiated (invalidated) when:
(a)(i) V under mistaken belief as to identity of D; or
(ii) V under mistaken belief that V is married to D;
(a1) V under mistaken belief that intercourse is for medical or
hygienic purposes;
(b) if D knows that V consents under mistaken belief referred to in
(a) & (a1), then D is taken to know that V does not consent;
(c) V only consents as a result of threats or terror against V or
another person;
(d) lack of actual physical resistance does not prima facie equate to
consent
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inform jury that there are good reasons why V might hesitate in
making complaint (s 107(2)(b))
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sub-s (4)(f)
s 105(7): during trial all questions of admissibility under sub-ss (2), (3)
& (6) are to be heard in the absence of the jury
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5. Dishonest Acquisition
[U.117-40]
5.1 Introduction 10 1
[C.1153-4]
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TIME (past)
attempt
conspiracy
complicity
6.2.1 introduction
P must prove BRD that: (Britten v Alpogut per Murphy J [C.1276])
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1. D had at all material times the mens rea to commit substantive offence;
and
2. D did an act or acts (or omissions) that are sufficiently proximate to the
commission of the offence, and are not merely preparatory to it.
unsuccessful attempts to commit a crime
two types failure to complete all elements of actus reus due to:
1. interruption, prevention, change of heart
2. incompetence or impossibility
doctrine of merger: cannot be charged with attempt & commission of the
same crime
attempt is a common law offence
s 344A: penalty for attempt is same as commission of offence
o except attempted murder (ss 27-30) 25 yrs, not life
debate about attempt/completed offence distinction
o Gibbs Report says abolish attempt & charge attempt as commission
o MCC says keep attempt separate
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6.2.4 impossibility
intent is the central concept here. The fact that the actual offence was factually
(in the circumstances) impossible is irrelevant. D intended to commit the offence
& if circumstances & facts had been different he would have succeeded.
test: if the facts were as D believed them, would D have actually committed the
intended crime? (Britten per Murphy J [C.1276])
Mai & Tran (1992,NSWCCA) [C.1273] [N.132]
facts - D caught with blocks that contained no heroin (substituted by police)
- D charged with attempted possession of prohibited import
issue how can you be convicted of attempt when commission of substantive
offence was factually/physically impossible?
held guilty intent to commit offence is sufficient
ratio adopting Britten v Alpogut:
in circumstances where it is in fact physically impossible for D to
commit a particular crime, an attempt to commit that crime will
succeed if P proves BRD:
(a) D intended to do the acts with the relevant mens rea
(b) D performed some act going beyond mere preparation
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6.3.1 introduction
agreement to do an unlawful act (or a lawful act by unlawful means)
(Mulcahy) [C.1293]
crime of conspiracy is committed where two or more people form an
agreement to commit a crime
conspiracy allows much earlier intervention than does attempt
identifying actus reus & mens rea is difficult
there is lots of controversy surrounding conspiracy [C.1282]
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6.3.2 elements
6.3.2.3 impossibility
Barbouttis, Dale & Single (1995,NSWCCA) [C.1292] [N.135]
facts - D charged with conspiring to receive stolen property
- D agreed to buy stolen cigarettes from an undercover police officer
- cigarettes were not in fact stolen (police had them on loan)
held not guilty specific cigarettes were not in fact stolen, therefore there
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6.4.1 introduction
6.4.2 joint criminal enterprise
6.4.3 accessorial liability
6.4.3.1
6.4.3.2
6.4.3.3
6.4.3.4
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was D at the
crim scene?
PRINCIPAL
ACCESSORY
did D commit
actus reus?
counselling
or procuring
did D have agreement
with P1 to commit this
offence? (Tangye)
principal in the
1st degree
accessory
before the fact
joint criminal
enterprise
(Osland)
aiding &
abetting
principal in the
1st degree
principal in the
2nd degree
assisting P to
escape capture
accessory after
the fact
NOTE for secondaries (those who are aiding, abetting, counselling or procuring)
1. if P1 is innocent (lack of mens rea, child, insane, etc), then P can apply doctrine of innocent agency to S (with mens rea): SP1
2. if P1 committed an incidental or additional crime, then P can apply doctrine of common purpose: did S foresee that it was possible that the
incidental crime would be committed? SP1
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Summary
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