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Criminal Law DDC Flashcards

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1
Q

Three Heads of Murder

A
  1. RECKLESS MURDER – Accused FORESAW that death will PROBABLY result from act of omission. No need to prove intent to kill (Crabbes)
  2. INTENTIONAL MURDER – Intent to kill or inflict GBH must be proven
  3. CONSTRUCTIVE OR FELONY MURDER – Only need intent to commit the foundational offence (25 years) to satisfy intent requisite for murder
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2
Q

Death occurs when we establish there has been

A

(Human Tissues Act s.33):

(a) The irreversible cessation of the functions of a person’s brain or
(b) The irreversible cessation of the circulation of a person’s blood.

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3
Q

R v HALLET (1969)

A

Murder.
Victim assaulted & left on beach, tide came in & he drowned.
Still liable, as novus actus interveniens (tide coming in) was not substantial or extraordinary to break chain of causation.

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4
Q

ROYALL v R (1991)

A

Murder.
Victim assaulted & locked herself in bathroom. Died after falling out window. Several hypothesis, but all would be a natural consequence of behaviour of accused. Exact cause of death didn’t need to be proved.

The accused will have caused the death if the victims fear was well-founded or reasonable, and the escape a natural consequence of the accused’s behaviour.

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5
Q

The accused must take his victim as he finds him - EGG SHELL SKULL RULE

A

The vulnerability of the victim does not become a competing casual factor (i.e. doesn’t matter if victim had an existing heart condition prior to assault by accused and then dies of a heart attack the accused will still be the primary cause of the death)
Sine qua non - “without which” or “but for,” - CAUSATION

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6
Q

R v BLAUE (1975)

A

Refused blood transfusion on medical grounds after stabbing, later died. Accused still liable. Doesn’t matter how unreasonable victim’s beliefs are.

Victim’s own negligence by failing to take medical treatment does not rupture causal chain

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7
Q

R v KINASH (1981)

A

Murder.
Kinash bashed his girlfriend. Life support turned off, didn’t break causal link. Death after medical treatment does not break causal chain.

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8
Q

R v CRABBE (1985)

A

R v CRABBE (1985) - Murder.
Truck driver drove prime mover into hotel and killed 5 people. Got intox in pub and was ejected. Came back and drove truck through pub. Guilty of murder.
A person who without lawful justification or excuse, does an act knowing that it is “PROBABLE” that death will result, is guilty of murder if death in fact results.
It is not enough that he does the act knowing it is “possible but not likely” that death might result.
Held: guilty of murder on ground that the defendant acted with ‘probability’ of death or GBH

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9
Q

Doctrine of recent possession

A

A person who is in possession of items so soon after stealing has taken place that no other conclusion should be reached by the tribunal of fact than that the person is either the thief or the guilty receiver in the absence of an explanation.

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10
Q

Sexual assault sections

A

s61I - Sexual assault
s61J - Aggravated sexual assault
s61JA - Aggravated sexual assault in company

s61HB - Sexual touching
s61HC - Sexual Act

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11
Q

Aggravated sexual assault - s61J

A

s61J - Sexual intercourse without consent AND circumstances of aggravation:

  1. Reckless inflict ABH
  2. Threaten inflict ABH on victim or person present with offensive weapon/instrument.
  3. Threatens to inflict GBH on victim or other person
  4. In company
  5. B&E commit SIO
  6. Deprivation of liberty
  7. Under 16
  8. Under authority
  9. Disability/cognitive impairment
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12
Q

Aggravated sexual assault in company - s61JA

A

Aggravated sexual assault in company - s61JA
Sexual assault IN COMPANY and circumstances of aggravation:

  1. At time (or immediately before or after) reckless inflict ABH on victim or other person
  2. Threaten to inflict ABH on victim or another person nearby with offensive weapon/instrument.
  3. Deprives victim of liberty

Life imprisonment

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13
Q

Consent for sexual assault - section 61HE

A

A person consents when they freely and voluntarily agree to the sexual intercourse

s61HE - no capacity or opportunity to consent if:
1. Cognitive impairment
2. Unconscious or asleep
3. Threats of force or terror
4. Unlawfully detained
Others:
- Mistake/fraud - mistake about ID, married or mistaken medical procedure
- Substantially intox / intimidatory or coercive conduct
- Abuse of as position of authority or trust

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14
Q

Consent for sexual assault - s61HE

A

Consent for sexual assault - s61HE
A person consents when they freely and voluntarily agree to the sexual intercourse

a) the accused knows that the other person does not consent, or
b) the accused is reckless as to whether the other person consents, or
c) the accused has no reasonable grounds for believing that the other person consents

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15
Q

Malicious Damage / Fire

195/197

A

s195

(1) a - destroy or damage property - 5 years
(1) b - by fire or explosives - 10 years

s197 - Dishonesty destroy or damage property with view to making gain for that person or another

(1) a - destroy or damage property with view to making gain for that person or another - 7 years
(1) b - Dishonestly by fire or explosives - 14 years

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16
Q

Sexual assault - Bail Act

A

According to the Bail Act 2013 as soon as practicable after a bail decision is made, the informant for any sexual assault or personal violence offence should:

  • Must take appropriate steps to ensure the bail decision is given to the victim
  • If the alleged victim has dies as a result of the offence the bail decision should be given to a close
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17
Q

He Kaw Teh v Queen 1985

A

He Kaw Teh v Queen 1985
Knowledge of existence and likely nature of drug
“Possession connotes knowledge in the existence of the thing possessed”
Can’t be in possession of a thing you know nothing about.
Wilful blindness is enough for guilt - If given a bag in suspicious circumstances, or there is something suspicious about the appearance, feel or weight of his own baggage and he deliberately fails to inquire further, the jury may well be satisfied that he wilfully shut his eyes to the probability that he was carrying narcotics and for that reason should be treated as having the necessary guilty knowledge

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18
Q

R v Fillipetti (1978)

A

R v Fillipetti (1978)
Exclusive possession and control
There was not enough evidence to enable the jury to rule out the possibility that
the budda sticks (cannabis) were in the possession of one of the other occupants, or enough evidence to conclude beyond reasonable doubt that the budda sticks in the chair were in the exclusive physical control of the appellant

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19
Q

R v Hamzy (1996)

A

R v Hamzy (1996)

Can add up supply amounts to combined total eg. Commercial/large commercial rather than multiple individual supplies

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20
Q

Nguyen v R (2018)

A

Nguyen v R (2018)
Supply prohibited drugs on ongoing basis (3 or more in 30 days)
Agreements to supply with purpose of financial gain.
Financial reward can be inferred, don’t need to prove it occured

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21
Q

R v Taktak (1988)

A

R v Taktak (1988)
Manslaughter by neglect
Heroin overdose - causation of death by omission to provide medical assistance
Stranger assuming care for a helpless person
Where one has voluntarily assumed the care of another and secluded the helpless person which prevents others from rendering aid.

Other factors are duty of care either by statute, contractual duty or where one stands in relation to another

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22
Q

Larceny as clerk or servant (s156) v Embezzlement (s157)

A

Larceny as clerk or servant (s156)
After the till - taking money out of till

Embezzlement (s157)
Before the till - taking money directly before it enters till

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23
Q

GIC (s527) v Receiving/disposing (s188)

A 
GIC (s527) - 6 months
Reasonable "suspicion" stolen or otherwise unlawfully obtained
Suspicion on the goods 
- Personal possession
- Custody of another
- On premises
- Given to person not lawfully entitled

Receiving (s188) - 10 years
“Belief” property was stolen
Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any goods knowing the same is stolen commits the crime of receiving stolen property.

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24
Q

Common purpose

A

Common purpose

  1. Joint criminal enterprise - agree to commit foundational crime
  2. Participation in agreed enterprise by the accused
  3. An incidental/secondary crime committed by a participant outside of agreed foundational crime but within his/her contemplation

i.e. use of firearm in robbery must be shown to be within contemplation

25
Q

joint criminal enterprise

A

The law is that where two or more persons carry out a joint criminal enterprise, that is an agreement to carry out a particular criminal activity, each is held to be criminally responsible for the acts of another participant in carrying out that enterprise or activity.

A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence.

26
Q

Criminal defences

A

Criminal defences

  1. Intoxication -
  2. Self Defence - s418 - complete defence - reasonable in circumstances
  3. Automatism - complete defence - seizure causes death of another etc
  4. Insanity - disease of mind - complete defence but institutionalised
  5. Substantial impairment by abnormality of the mind - partial defence - reduces murder to manslaughter - drug & alcohol consumption where applicable
  6. Extreme Provocation - partial defence - murder reduces to manslaughter
  7. Claim of right - honest claim to property (subjective) AND belief of legal entitlement (objective)
  8. Duress - extreme fear or threat of death or serious violence - reasonable person
  9. Necessity - no time interval between threat and act by accused
27
Q

Robbery - Section 94 to 98 Crimes Act

A

Section 94 Robbery (14 years):
- Robbery
- Assault with intent to rob
- Steal from person
Section 95 Aggravated Robbery (20 years): Section 94 AND
- Corporal violence
- Intentionally or recklessly inflicts ABH
- Deprive Liberty
Section 96 Robbery with Wounding (25 years): Section 95 AND
- Wound
- GBH
- Injury can be inflicted to any person involved, not just the victim
Section 97 (1) – Robbery in Company (20 years): Section 94 (Excl. SFP)
- Armed with OFFENSIVE weapon/instrument – in company
Section 97 (2) – Armed Robbery with Dangerous Weapon (25 years):
- Firearm
- Prohibited weapon (e.g. Knuckle dusters)
- Spear gun
Section 98 – Armed Robbery with Wounding (25 years):
- Wound can only be victim only (Ryan v The Queen 1967)
- Does not require intent for wound/GBH (Ryan v The Queen 1967)

28
Q

Break and enter (s112) Circumstances of aggravation (s105A definitions)

A

Circumstances of “aggravation” means circumstances involving any one or more of the following—

(a) armed with an “offensive weapon”, or instrument,
(b) in company
(c) corporal violence on any person,
(d) intentionally or recklessly inflicts ABH on any person,
(e) deprivation of liberty,
(f) knows that there is a person in place where committed

29
Q

Break and enter (s112) Circumstances of “Special aggravation” (s105A definitions)

A

Circumstances of special aggravation means circumstances involving any or all of the following—

(a) intentionally wounds or intentionally inflicts GBH on any person,
(b) the alleged offender inflicts GBH on any person and is reckless as to causing ABH to that or any other person,
(c) the alleged offender is armed with a dangerous weapon.

Dangerous weapon:

  1. Firearm or imitation firearm (Firearms Act)
  2. Prohibited weapon (Weapons Prohibition Act)
  3. Spear gun
30
Q

Homicides - Murder / Manslaughter

A

Murder / manslaughter
Section 18(1) Crimes Act
(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with - - reckless indifference to human life,
- or with intent to kill or inflict GBH upon some person,
- or done in an attempt to commit crime punishable by imprisonment for life or for 25 years.
(b) Every other punishable homicide shall be taken to be manslaughter.

31
Q

R v Kirkwood (1982)

A

R v Kirkwood (1982)
Cultivation - watering plants is sufficient. Any step of cultivation is sufficient.
It is sufficient to constitute the offence of cultivating a prohibited plant that a person watered a plant so as to promote its growth. There was no suggestion that the engagement was other than for the watering of the plants.

“I do not understand why the application of water should not be regarded as cultivating the plant, in the sense of bestowing labour or attention upon it so as to promote its growth”.

32
Q

Section 23 Drug Misuse and Trafficking Act 1985

A

Cultivation of prohibited plants - s23

(a) sow or scatter the seed produced by the prohibited plant, and
(b) plant, grow, tend, nurture or harvest the prohibited plant

Enhanced indoor:

(a) that occurs inside a building or structure, and
(b) that involves any one or more of the following—
(i) the nurture of the plant in nutrient-enriched water (with or without mechanical support),
(ii) the application of an artificial source of light or heat,
(iii) suspending the plant’s roots and spraying them with nutrient solution.

33
Q

R v Giorgi (1982)

A

R v Giorgi (1982) - all steps of cultivation
The term “cultivation” is intended to incorporate the whole process of producing a drug from the soil. It therefore includes “all activities associated” with production from the soil, from preparing the soil to removing and stacking the harvested crop (Giorgi and Romeo v R (1982)

34
Q

Covert search warrant - s46C

A

Section 46C LEPRA
Application by Superintendent:
(a) suspects on reasonable grounds that there is, or “within 10 days” will be, in or on the premises a thing of a kind connected with the searchable offence, and
(b) considers that it is necessary for the entry and search of those premises to be conducted “without the knowledge of any occupier of the premises”.

35
Q

Section 6 - Drug Misuse and Trafficking Act 1985

A

Section 6 - Drug Misuse and Trafficking Act 1985
Meaning of “take part in”
For the purposes of this Act and the regulations, a person takes part in the cultivation or supply of a prohibited plant or the manufacture, production or supply of a prohibited drug or psychoactive substance if–
(a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply,
(b) the person provides or arranges finance for any such step in that process, or
(c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates.

36
Q

Section 40 - Drug Misuse and Trafficking Act 1985

A

Section 40 - Drug Misuse and Trafficking Act 1985
Effect of certain representations - representing a thing supplied as a drug makes it a drug

(1) A substance (not being a prohibited drug) which, for the purpose of its being supplied, is represented (whether verbally, in writing or by conduct) as being a prohibited drug or a specified prohibited drug shall, be deemed to be a prohibited drug or the specified prohibited drug, as the case requires.

37
Q

Kidnapping - Section 86 Crimes Act

A

s86 Kidnapping
(1) Basic offence: A person who takes or detains a person, without the person’s consent–
(a) with the intention of holding the person to ransom, or
(a1) with the intention of committing a serious indictable offence, or
(b) with the intention of obtaining any other advantage,
is liable to imprisonment for 14 years.
(2) Aggravated offence A person is guilty of an offence under this subsection if–
(a) the person commits an offence under subsection (1) in the company of another person or persons, or
(b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, ABH is occasioned to the alleged victim.

38
Q

Child abuse material (CAM) guidelines

A 
No more than 1000 images and 50 videos in total. If less than that do 100% review.
Victim ID by CEIU immediately 
Not in view of others - private room
Natural light
3 hours per shift
15 mins break every hour
Post CAM welfare check form
None in last 2 hours of shift
39
Q

Reasonable suspicion

A

A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear… A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.

Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value
R v RONDO

40
Q

Reasonable belief

A

Belief is an inclination of the mind towards asserting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise of conjecture.
More than a suspicion. Less than a knowing.

41
Q

Money laundering / Deal with proceeds

A

s193B - Money laundering
193B(1) - Knowingly deal and intend conceal - 20 years
193B(2) - Knowingly deal - 15 years
193B(3) - Recklessly deal - 10 years

s193C - Deal with proceeds of crime - reasonable grounds to suspect proceeds of crime 3-5 years

42
Q

R v RYAN (1967)

A

R v RYAN (1967)
Constructive or felony murder
Petrol station robbery, attendant struggled, gun went off.
Accused claimed reflex action. Convicted.

43
Q

Kidnapping (s86) objectives

A
  1. TO ACHIEVE THE SAFE RETURN OF THE HOSTAGE
  2. Protect the victim and/or courier during the investigation
  3. Secure best evidence to support prosecution
  4. Arrest the kidnappers
  5. Preserve the ransom
44
Q

Elements of Murder (s18)

A

Elements of Murder:
1. The death of the deceased being a HUMAN BEING.
2. An unlawful act or omission the accused CAUSED the death
3. Such act or omission was done or omitted to be done with;
i). Reckless indifference to human life or;
ii). Intent to kill or inflict GBH or;
iii). In an attempt to commit, or during, or immediately after a crime with a
punishment of 25 years to life.

45
Q

Voluntary manslaughter

A

(1) Voluntary manslaughter
This is where there is a killing, which at prima facie amounts to murder but is reduced to
manslaughter by reason of mitigating circumstances;
 Infanticide
 Extreme Provocation
 Substantial Impairment by Abnormality of the Mind (Diminished responsibility).

46
Q

Involuntary manslaughter

A

Involuntary manslaughter
Under this heading there is no prima facie evidence of murder. Here, there is lesser mens rea than required for murder. There are two types of involuntary manslaughter, they are;
NEGLIGENT MANSLAUGHTER (Doesn’t need to be a criminal act)
 Under duty of care
 Grossly negligent (reckless) to perform that duty
 As a result of that failure (act or omission), death was occasioned/accelerated.
(TAKTAK Case Law)

UNLAWFUL AND DANGEROUS ACT (Serious breach of criminal law)
 UNLAWFUL – Must be breach in criminal law
 DANGEROUS – Not only unlawful, but also dangerous

47
Q

Grounds for T.I.

A 
Grounds for T.I.
Offence punishable by life or at least 7 years imprisonment
Threat to life, serious injury or serious damage to property endangering a person
Serious arson
Trafficking in prescribed substances
Serious fraud
Serious loss of revenue to Commonwealth
Bribery or corruption
48
Q

SD Act - section 21 - What a surveillance device warrant authorises

A

21 What a surveillance device warrant authorises

(1) A surveillance device warrant may authorise, as specified in the warrant, any one or more of the following–
(a) the use of a surveillance device on or in specified premises or a vehicle,
(b) the use of a surveillance device in or on a specified object or class of object,
(c) the use of a surveillance device in respect of the conversations, activities or geographical location of a specified person or a person whose identity is unknown,
(d) the use of a surveillance device on or about the body of a specified person.

49
Q

SD Act section 17 - Application grounds

A

17 Application for a surveillance device warrant GROUNDS

(1) A law enforcement officer may apply SD warrant if the law enforcement officer on reasonable grounds suspects or believes that–
(a) a relevant offence has been, is being, is about to be or is likely to be committed, and
(b) an investigation into that offence is being, will be or is likely to be conducted in this jurisdiction or in this jurisdiction and in one or more participating jurisdictions, and
(c) the use of a surveillance device is necessary for the purpose of an investigation into that offence to enable evidence to be obtained of the commission of that offence or the identity or location of the offender.

50
Q

s61HB Sexual touching

A

Person touching with body part or anything else :
- Through clothing or otherwise
In circumstances a reasonable person would consider sexual such as:
- Area of body (genitals)
- Purpose of sexual arousal or gratification
- Any aspect which would make it sexual

Touching for genuine medical or hygienic purposes is not sexual touching

51
Q

Affray s93C

A 
Affray s93C
- 1 or more 
- Violence at person only 
- Can't be words
- Use or threaten violence
- if 2 or more involved, conduct together used
10 years
52
Q

Riot s93B

A 
Riot s93B
- 12 or more
- person charged need to use violence
- Violence toward person or property 
- Can't be words alone
- common purpose required
- can be 6v6
15 years
53
Q

Voluntary manslaughter

A

Kills with mens rea / prima facie for murder but reduced to manslaughter due to mitigating factors

  1. Infanticide
  2. Extreme provocation
  3. Substantial impairment by abnormality of the mind
54
Q

Extreme provocation

A

Extreme provocation

  • conduct of deceased to accused
  • conduct of deceased amounted to SIO
  • conduct of dealing caused accused to lose control and inflict GBH or kill
55
Q

Involuntary manslaughter

A

Involuntary manslaughter

Criminal Negligence
Victim under duty of care

or
Unlawful and Dangerous Act
- Serious breach of law and
- Act with risk of serious injury

56
Q

Robbery s94 to 98

A

Section 94 Robbery (14 years):
Robbery
Assault with intent to rob
Steal from person

Section 95 Aggravated Robbery (20 years):
Section 94 +
Corporal violence
Intentionally or recklessly inflicts ABH
Deprive Liberty

Section 96 Robbery with Wounding (25 years):
Section 95 +
Wound
GBH
Injury can be inflicted to any person involved, not just the victim

Section 97 (1) – Robbery in Company (20 years):
Section 94 (Excl. SFP)
Armed with OFFENSIVE weapon/instrument – in company

Section 97 (2) – Armed Robbery with Dangerous Weapon (25 years):
Firearm
Prohibited weapon (e.g. Knuckle dusters)
Spear gun

Section 98 – Armed Robbery with Wounding (25 years):
Wound can only be victim only (Ryan v The Queen 1967)
Does not require intent for wound/GBH (Ryan v The Queen 1967)

57
Q

CPR

A

Protect children
Ensure early detection of offences by recidivist offenders
Monitor
Ensure compliance

16C inspection

58
Q

Claim of right

A

R v FUGE
Hungry Jacks Robbery to recover wages
Convicted - intended to take more than owed

Claim of right must be negated beyond reasonable doubt - Woolmington

Criminal Law DDC (1 decks)

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