Culpability

Question 1

What is culpability defined as?

Answer 1

To be blameworthy involving the commission of an offence or breach of duty imposed by law.

Question 2

What are the two foundational elements of Criminal Law?

Answer 2

Actus reus - meaning the physical conduct associated with the offence.
Mens rea - meaning a blameworthy state of mind.

Question 3

How can Actus reus be considered?

Answer 3

Where the act is done. A person intentionally runs someone down in their car and kills them.
Where the act is not done. A mother does not provide food and clothing to their child.

Question 4

How can you define Intention?

Answer 4

Means that an accused acted with the aim or purpose of committing conduct which forms the offence.

Question 5

How can you define recklessness?

Answer 5

When the accused foresees the possible or probable consequences of his or her conduct. Yet still persists in that conduct regardless of the risk of those consequences.

Question 6

What are the two types of offences?

Answer 6

Indictable and Summary.

Question 7

What are ‘offences of strict liability’?

Answer 7

Offences that do not have to prove Mens rea, such as a majority of Summary Offences and Regulatory Offences, such as council by-laws. Police do not need to prove that the person acted intentionally or recklessly.

Question 8

What summary offences do require Mens rea to be proven?

Answer 8

• Common Assault (s. 3 Summary Offences Act 1966)
• False Report to Police (s. 53 Summary Offences Act 1966)
• Wilful destruction, damage etc of property (s. 9 Summary Offences Act 1966)
• Loiter with Intent (s. 49B Summary Offences Act 1966)

Question 9

What can be used to prove Mens rea? (2)

Answer 9

• Admissions

- Overt physical acts

Question 10

What may be considered overt physical acts? (Consider shop stealing example)

Answer 10

• Selecting the item from the shelf.
• Looking around to ensure no person is present and observing their behaviour.
• Concealing the item under their clothing.
• Failing to pay for the item at the point of payment.
• Possessing no method of payment for the item.

Question 11

What are the general defences to crime? (6)

Answer 11

• Mistake of fact.
• Coercion.
• Self defence.
• Automatism.
• Impairment (mental).
• Drunkenness.

Question 12

What is the proof needed to declare one insane when committing an offence?

Answer 12

On the balance of probabilities.

Question 13

What are the elements which constitute the accused becoming temporarily insane? (2)

Answer 13

• He or she did not know the nature and quality of the conduct.
• He or she did not know the conduct was wrong (that is, 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)

Question 14

What is the defence of Automatism?

Answer 14

The defence of Automatism is concerned with involuntary acts performed by the muscles of a person who is either conscious or unconscious.

Question 15

What are the two causes of Automatism?

Answer 15

• Automatism from a ‘disease of the mind’ is considered to be ‘insane automatism’.
• Automatism resulting from something other than a ‘disease of the mind’ is considered to be ‘sane automatism’.

Question 16

What is the defence of ‘self-defence’?

Answer 16

A person is entitled to use such conduct as he or she genuinely believes is reasonable and necessary for a ‘defensive purpose’. Eg. If person A raised a fist and threatened person B, then person B may be entitled to strike person A in self-defence.

Question 17

When does self-defence not apply?

Answer 17

• In reply to lawful conduct.

- At the time of the person’s response, the person knows that the conduct is lawful.

Question 18

What is the defence of Duress/ Coercion?

Answer 18

Duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat, or other pressure against them.

Question 19

What is the defence of drunkenness defined as?

Answer 19

The accused contends that he or she has not voluntarily committed the actus reus and/or that he or she has acted without mens rea. Onus is on the prosecutor to show that the individual acted with mens rea and voluntarily.

Question 20

What was the court decision in defining drunkenness defence? (R v Murray 1980)

Answer 20

“The mere existence of evidence that an accused person had consumed alcohol or was intoxicated (or drunk) does not automatically lead to a view of the evidence that the accused did not intend did not intend to do as he did.”

Question 21

What are the degrees of responsibility of participants to a crime as defined in Crimes Act 1958? (6)

Answer 21

• Using an innocent agent.
• Vicarious liability.
• Intentionally assisting, encouraging or directing.
• Entering into an agreement, arrangement or understanding.
• Being an accessory, and
• Concealing offences for benefit.

Question 22

What is use of an innocent agent defined as?

Answer 22

In the case of using an innocent agent, this occurs when a person uses another person to commit a crime and the other person is not liable because they are too young for criminal responsibility, is mistaken as to facts or lacks the requisite mens rea. The person who used the innocent agent will be the principle offender.

Question 23

What is Vicarious Liability?

Answer 23

Vicarious liability is the imposition of liability on an otherwise blameless party who has some sort of responsibility over the blameworthy party. An employer will generally be vicariously liable for the negligence of his employees.

Question 24

What is the D.O.R of intentionally assisting, encouraging or directing?

Answer 24

Under sections 323 to 324C of the Crimes Act 1958 provides a statutory codification of the principles of complicity. It explains when a person “involved in the commission of an offence is taken to have committed the offence and is liable to the maximum penalty for that offence”

Question 25

A person is “involved in the commission of an offence” if he or she? (4)

Answer 25

• Intentionally assists, encourages or directs the commission of the offence.
• Intentionally assists, encourages or directs the commission of 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.
• Enters into an agreement, arrangement or understanding with another person to commit the 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.

Question 26

What are the four elements of entering an agreement to commit an offence?

Answer 26

• That two or more people reached an agreement to commit an offence that remained in existence at the time the offence was committed.
• That the accused engaged in an overt act to support or participate in the agreement.
• That, in accordance with the agreement, one or more parties to the agreement performed all acts necessary to commit the offence charged, in the circumstances necessary for the commission of that offence.
• That the accused had the state of mind required for the commission of the relevant offence at the time of entering into the agreement.

Question 27

When are people deemed an accessory? (3 points)

Answer 27

After a principle offender committed an indictable offence which carries a maximum penalty of 5 years or more (serious I/O) and another person does an act intending to impede the principal offender’s apprehension, prosecution, conviction or punishment, they is guilty of a separate indictable offence (Accessory after the fact). Spouses cannot become accessories generally. Unless they possess objects under controlled legislation.

Question 28

Who are the persons not liable for Prosecution?

Answer 28

• Diplomats (police must use extreme discretion, they also cannot be compelled in any way)
• Children (under 10 Irrebuttable presumption, 10-14 rebuttable presumption)