PART A

The relevant jurisdiction is ACT

AND Relevant act- Criminal Code 2002

Sections 56 and 57 say that burden of Proof is with the prosecution BRD

The PE and FE are in s308

PE

 Appropriation

It is defined in s304.

Under ss(1), assumption of the rights was there when Anthony found it. However not clear evidence
that consent was absent. However, the facts satisfy the requirements in ss(2)¸ as it came to A
without committing theft. It can be said that there was lack of consent under s304 (2). There was
appropriation

 Of property belonging to other

Other, Who does the property belong?

3 have possession of the property (painting+diamond) and under s301(1), all 3 of them are owners.
The painting was brought by 3 and after the transaction it is possessed by all 3 of them (s305(1)).
However, 3 didn’t have knowledge of the diamond*, but did have knowledge of the painting.
Beforehand, V was the owner as he had the possession of it and D did not (as per facts) take any
steps in recent past to retrieve either the painting or the diamonds.

For A, he obtained the property with the painting. He paid for the painting but not the diamond.
Hence, under s305 (6), there was a fundamental mistake in relation with the essential nature of the
property. Moreover under s305(5), A is required to intend to return the diamond. Under the current
set of facts, he did not make any such efforts, instead he made efforts to hide it from his partners

FE

 Dishonesty

Dishonesty is reference to appropriation. The relevant standard is dishonest in the standards of

ordinary people and known by the defendant to be dishonest according to the standards of ordinary
people as per s300’s definition of dishonesty. However, dishonesty can be negated by s303(1) if the
person belonging the property cannot be discovered
As seen from the facts, after A found it, although he said that he would take reasonable steps to
return the diamond, there was no evidence of him doing it. Moreover, his offering of 100 bucks to
keep the whole matter secretive leans towards proving his dishonesty

 Intention to Deprive someone else’s property.

Section 306(1) is the relevant provision

Requirements for subsection (a) is satisfied since as the facts suggest A intended to permanently*
deprive 3 of the diamond as discussed before.

The requirements under ss306(1)(b) is satisfied as per the facts as well.

 Recklessness is not contentious.

2011

ANNE

PE

 Appropriation

FE
2014 CORPS

(a)1

The relevant provision dealing with voidable transactions is s588FE and under the section, a
transaction is voidable if it is an insolvent transaction of the company and was entered into during 6
months prior to winding up.

The requirement in subsection 2b(i) is satisfied as the transaction took place a day before winding up

For 2(a),

2.

WAS ANY OF THE DUTIES BREACHED?

The 2 duties that Ron(R) could have breached are Duty of care and duty to act in the best interest in
the company

DUTY OF CARE

DUTY

The source of the duty is s180(1). The provision requires directors and officers to exercise their duty
with care and diligence given exercise if they:

(a) were a director or officer of a corporation in the corporation’s circumstances; and

(b) occupied the office held by, and had the same responsibilities within the corporation
as, the director or officer.

The requirement in this part of the test is easily satisfied as R is the CEO of the company and his role
is captured under the definition of director/officer in s9 of the Corporations Act. Nothing suggests
despite his position, he did not have the same responsibilities of that of a CEO.

STANDARD

Directors are required to take reasonable steps to place themselves in a position to guide and
monitor the management of the company (Daniels v Anderson) and this includes:

• Ensuring they have knowledge of the business

• Keep informed about its activities

• Remain familiar with the financial account of the company

• Make regular attendance at board meetings

Furthermore, from Asic v Rich, we know that a reasonably formed view of the company’s financial
capacity is required alongside foreseeable risk of harm, and in particular, balance any possible risks
of harm against any potential benefits to be accrued by the company from Vrisakis v ASIC.

Moreover, his position as the CEO raises his standard of duty (Rich)
BREACH

As seen from the facts, R ignored the finance position and tax report, and also is adamant in not
raising the ticket price further. In doing so, he didn’t make himself familiar with the financial position
of the company.

As she went against the other directors and completely ignored the financial and tax report, he also
failed to keep himself informed about the business’s activity.

Furthermore, he did not keep himself informed about the company’s failure to comply with the civil
aviation safety authority’s regulation. Thus, failed to ensure they have knowledge of the business

At the end, he took a loan of 20m. Although, there is not enough information regarding the exact
financial position of the company, after paying the fines the company pretty much seems to be on
the road of insolvency. This suggests 20m was a big amount for the company and it is foreseeable
that company might fail to pay this amount although the net value is unknown.

DUTY TO ACT IN THE BEST INTEREST OF THE COMPANY

DUTY

The relevant provision dealing with this enquiry is s181(1) requiring directors to work in the good
faith

STANDARD

The standard is a combination subjective/objective standard. In order to satisfy their general law
best interests obligation, a director needs to act honestly in what they believe is in the best interests
of the company, and that belief needs to be objectively reasonable

Two part test in Hutton v West Cork Railways Co, requires

(a) Director needs to act honestly in what he believes is in the best interest of the company
(Subjective)

(b) Second Test, Was the belief reasonable? (objective) (Bell Group Ltd (in liq) v Westpac
Banking Corporation )

The best interests for solvent companies will be correlative with the best interests of the
shareholders, taken as a whole (see for example, Ngulri Ltd v McCann (1953) 90 CLR 425).

BREACH

In the first part, he had other options (raising the ticket price), but he instead didn’t

DEFENCE

ANY DEFENCE FOR DUTY OF CARE

However, the relevant defence here can be found from s180(2) which uphelds the business
judgement rule

The provision states 4 requirement that has to be present in the

A Business Judgment Rule

A business judgment is any decision to take, or not take, action with a matter relevant to the
business operations of the corporation. (s 180(3)) The decision must have been ‘consciously made’
and the director/officer must have ‘turned his or her mind to the matter’. (Rich)

On the facts, during the board meeting, two board members raise the idea of increasing ticket prices
to combat the issue of rising fuel and maintenance issues, to which Ron shouted: ‘this is my
company, I didn’t put all my blood, sweat and tears into it so that you ‘suits’ can turn it into another
bloated high priced airline!’

His reaction demonstrated a material personal interest in the subject matter of the judgment (s
180(2)(b), hence the business judgment rule would fail at this instance.

DUTY TO ACT IN THE BEST INTEREST OF THE COMPANY

PART B

MURDER

Incident took place in NSW and the relevant jurisdiction is NSW

Burden on prosecution BRD from Woolmington

Murder in s18(1) of Crimes Act

ACTUS REAS

 ‘the act of the accused, or thing by him or her omitted to be done,

THE ACT COULD BE

 Act

 causing the death charged’ (leading to CAUSATION)

 Voluntary – presumption

DEFENCE
2013 RED WITCH

The relevant provision is 611

The AR are

 Sexual intercourse

Section 61HA((a). V felt a penetration. It was said by L, that it was a cleansing process which is very
different from medical procedure.

It is unclear from the fact who penetrated it. It could be L, or any other person, but there WAS
penetration and no fact suggests it wasn’t voluntary or the person who penetrated was under the
influence of any substance

 Consent

61HA (2)- has to be free and voluntary

61HE (5)(c) – Terror

R v BMA – Stutter J – Terror may mean a sharp overpowering fear, or causing a fear. A fear was
there

Section 61HE (8)(c) – consent may be negated since L was in a position of trust

61HE (6) (d) quiet arguable that L by fraudulent means put her in this situation.
APL

Week6(3 – tute)

HEAD OF POWER?

States must have a valid source of power and that is s6 of the Australia Act

AG’s test

1. CPP?

Composite phrase as the term of the premier is intimately connected to the structure of the govt

2. MnF?

Stated that MnF is satisfied in accordance to the Victorian constitution

Bill 1 does regard to CPP

It is valid, if satisfies the MnF under s2 of the act.

For the second Bill,

Tute 8 (11)

Head of power is s2(1) of Australia Act giving states to legislate on plenary matters

Is
2013(1)

IS THERE ANY HEAD OF POWER TO LEGISLATIVE ON EDUCATIVE PROGRAM?

No express head of power under the constitution. However, implied nationhood power can be used
for legislating on such a matter by execs (from s61) and s51(xxxix) gives the express incidental power
for that (Davis)

Was There Valid Exercise of Nationhood Power?

 Nationhood power can be decried from exec’s power to act for the advancement and protection
of the nation (Davis).
Can be argued that educating school students about democracy and its function is for the
advancement of the nation.
 Has the capacity to engage in enterprises and activities peculiarly adapted to the govt of a nation
and which cannot b eotherwise carried on for the benefit of the nation (Mason J in AAp; Davis
Pape
It can be argued that state govt might not have the necessary means of authority to exercise and
implement such a nationwide program

 Power for the court to decide if it is National (Vic v Cth)

Could be argued that it is a national issue since the leg that is being enacted is a cth legislation.

Limitation?
 Declaring certain actions unlawful (Tas Dams)
The act required voters to pass a certain course to enrol themselves to vote. Although it is not
unlawful, it pose further requirements for voters
 Competitiion with states (Davis)
Can be argued that it is the state has the power to legislate on its education and state education
boards can bring about the change on itself. There is hence a notion of competition between
states and similar to Tas Dams. Hence, can be argued that it is not supported by nationhood
power.
 Reasonable and proportionate? (Davis)
Can be argued that the usage was not reasonable and proportionate. It is for the court to decide
(Davis) and it is likely that court would find that the exercise was invalid since it incites
competition.

Were voters disenfranchised?

The head of power is ss30, 30 and s51(xxxvi) are the provisions that allow parliament to legislate on
voting rights in cth election. However, ss7 and 24 protect voters from being precluded from their
rights as they ask the parliament to be directly chosen by the people.

To construe if Pericles was entrenched we use the appropriation test from Roach

 Legitimate Purpose?
 In the roach case, inmates were detained from voting if their imprisonment term exceeded a
certain limit. However, extending the principle and using it to exclude people who haven’t
completed a course might be a bit too far. Moreover, even illerate people or those who have
received education overseas would be disenfranchised.

 Exclusion consistent with representative government

Exclusion basis on education level can be held discriminatory and so, is inconsistent with
representative government and ss7 and 24, stating MPs to be chose ‘directly from the public’

Likely that court would find that the exclusion is invalid.