Published on 31/03/2007

Criminal Law Assignment by student from Law Extension Committee.
This assignment received a mark of 63%.

Please note the download link for these set of notes are at the end of page 2 (Criminal Law Q2)

Criminal Law Q1

Question 1 (1,500 words) - 60 marks

Daisy is a 15 year old virgin, and is looked after by Robert, a 50 year old male nanny. Daisy is lonely and depressed, being an only child kept secluded in a mansion by her rich parents, who are often away on business trips. She does not attend school, but is taught at home by Robert. Daisy’s parents are fundamentalist Christians, and the majority of the material taught by Robert comes from the Old Testament of the Bible. Daisy is not allowed to socialise with other children.

After Daisy went to bed one evening, Robert entered her bedroom, and got into bed with her. Robert placed his hand on Daisy’s breasts. Daisy, being asleep at the time, did not protest or resist. After touching Daisy’s breasts, Robert states:

“I know how lonely you are. I know how to make you feel better. If you tell me to go, I will leave your room right now.” Daisy, confused and frightened, did not respond.

Robert inserted his penis into Daisy’s vagina. Daisy did not protest or resist.
After finishing intercourse, Robert tells Daisy:

“You are the work of the Devil. You seduced me, and I will make you pay unless you never breathe a word of this to anyone”.

Confused and upset, Daisy got out of bed, and moved towards the balcony of her room. She tells Robert:

“I do not deserve to live. I am unworthy of God. Unless God gives me a sign, I will kill myself”.

Robert stands silently and watches as Daisy climbs the railing of her balcony. After standing on the balcony for 30 seconds, Daisy jumps, plummeting to her death.

Discuss the criminal liability, if any, of Robert.

Answer

In determining the criminal liability of Robert, the acts of Robert must be examined in conjunction with the Crimes Act 1900 (NSW) (Crimes Act) and the common law.

When determining whether Robert’s acts amount to criminal liability, his actions must also be examined against the four requirements that are needed to fulfil criminal liability. The first requirement being capacity is automatically fulfilled, as “there is a presumption that everyone has a capacity to commit a crime”[1] and there is no where in the facts that show Robert as insane. The second and third requirements are what need to be analysed closely in each criminal action and these are the actus reus and mens rea of Robert at the time of each crime. The fourth requirement of not having any defence or legal justification is prima facie obvious in the offences committed by Robert.

Criminal Liability

Aggravated Act of Indecency

The first criminal offence that Robert may be liable for is found in s61O of the Crimes Act, which is ‘Aggravated act of indecency’. Robert being Daisy’s nanny at the time of the offence, enters her bedroom while she is asleep, gets into bed with her and places his hand on her breasts. The crime here is his indecent and intentional act of getting into bed with a 15-year-old girl who is under his authority, and following on with a sexual act of by placing his hands on her breasts. The actus reus is clearly established through Robert’s physical and voluntary actions that satisfy elements of s61O. Furthermore, the mens rea is satisfied through Robert’s intention at the time he gets into bed with Daisy and fondles her breasts. He does this while she is asleep and therefore unable to consent or protest.

Robert’s sexual actions fall as indecent as they are “contrary to the ordinary standards of morality…” as defined in R v Harkin[2]. In addition, s61O (3b) states how Robert’s act falls as an aggravated act as Daisy is under his legal authority. Due to these circumstances of aggravation and indecency, Robert is liable to imprisonment for 5 years.

Aggravated Sexual Assault

The second crime Robert may be liable for is his Aggravated sexual assault on Daisy, which is based on s61J of the Crimes Act. In satisfying this authority, Section 61H of the Crimes Act must firstly be taken into consideration as it defines sexual intercourse as the “sexual connection… penetration…of a female person…by any part of the body of another person.” The actus reas of Robert inserting his penis into Daisy’s vagina clearly satisfies this definition.

Having asked Daisy for her consent, Robert went ahead and inserted his penis into Daisy’s vagina without her responding. Based under s61R (2)(d), Daisy not offering any “actual physical resistance to sexual intercourse is not…to be regarded as consenting to the sexual intercourse.” Therefore, in regards to consent, Robert may falsely have considered Daisy’s failure to protest, an act of her consenting to the sexual intercourse. Simpson J discusses a similar scenario in R v Clark where he states that “just because someone passively submits to something does not mean to say that they welcome it…that is not the same as consent”[3]. Consequently, this resulted in an outcome of Robert having sexual intercourse with Daisy, without her consent.

The effect of s 61R is that the mental element for sexual assault is established if Robert either knew that there was no consent or if he was reckless as to this possibility, as seen in R v Hemsley[4]. Robert requested for Daisy’s consent, which she did not reply due to being confused and frightened. Having said this, Robert may have been aware that there is a real possibility that Daisy did not consent, yet went ahead with the sexual intercourse anyway. This particular circumstance occurs in R v Banditt[5], and was found to be reckless. In saying this, Robert’s reckless intention in regards to Daisy’s consent to the sexual intercourse “is to be taken to know that the other person does not consent to the sexual intercourse”[6]. Hence, the mens rea is satisfied through Robert’s recklessness concerning Daisy’s consent.

S61J (2) clarifies what circumstances of a case cause the sexual assault to be aggravated. In this particular case, Robert’s immediate threat after the “commission of the offence”[7] (that he will ‘make her pay’ unless she ‘never breathes a word to this to anyone’) satisfies s61J (2)(b). Furthermore, the fact that Daisy is under the age of 16 and that Daisy is under the authority of Robert satisfies both (d) and (e) respectively.

Having fulfilled at least one of the necessary elements of Aggravated Sexual Assault in s61J, Robert is therefore liable to imprisonment for 20 years.

By combining the liability of both criminal offences stated above, Robert is liable overall to 25 years of imprisonment.

Murder or Manslaughter by Culpable Ommision

Following the sexual intercourse, Daisy moves towards the balcony of her room and tells Robert how she will kill herself unless God gives her a sign. After standing for 30 seconds on the balcony, she jumps and plummets to her death. Generally an omission to do an act that would have prevented someone’s death cannot satisfy actus reus. However, when “the accused was under a duty to the deceased to do the act which he omitted to do, such omission can constitute the actus reus of homicide…”[8] In saying this, Robert, taking the role of nanny and legal care taker of Daisy at the time, demonstrates that he was under a duty to take care of Daisy when possible.

Using the facts given, Robert’s intent at the time may be difficult to prove, therefore, his omission to take care of Daisy satisfies s18 (b) of the Crimes Act were it states that any “other punishable homicide shall be taken to be manslaughter”. This is further seen in the case of R v Taktak[9], which confirmed that “liability for death caused by omissions arises when the accused has undertaken some duty of care for another”[10]. As a result, Robert’s complete failure to at least attempt to stop Daisy from jumping to her death (which he had 30 seconds to do so, which is likely to be found as more then enough time to suffice as reasonable), fulfils the actus reus of homicide and for that reason can be liable for Manslaughter.

If the “necessary intent is proved”[11] that Robert did actually intended to kill Daisy through his omission, then he will be liable for murder. However, it is not necessary to prove this mens rea because the homicide was linked to offences of his aggravated act of indecency and aggravated sexual assault which bring upon him a combined imprisonment period of 25 years, satisfying the necessary elements for a claim in constructive murder.

Constructive Murder

Daisy’s death flowed directly from the chain of events that consisted of Robert’s crimes that are punishable by 25years of imprisonment. This satisfies the elements of constructive murder, where by the culpable omission of Robert, caused the death of Daisy, which occurred ‘immediately after the commission of his offences that are punishable by 25 years of imprisonment’[12]. Since the above elements of constructive murder are satisfied, a “murder conviction follows as a matter of course even if there is no evidence of intention or recklessness…”[13] This is also backed by the consideration of constructive murder in the case of Butcher[14]. Hence, if the culpable omission that led to Daisy’s death is found to be linked directly after the commission of Robert’s offences, then he will be liable for murder under s18 (1)(a). In addition, the crown will not have the requirement to prove his intent or any of the other elements within s18 (1)(a) required for the charge of murder.

S19A (1) lays the authority for the punishment that Robert will be liable for, and that is imprisonment for life for the crime of murder.

In conclusion, if Robert can be proved beyond reasonable doubt that he has fulfilled the necessary requirements to be criminally liable for Aggravated Indecent Assault and Aggravated Sexual Assault, combined together, he becomes liable for imprisonment for up to 25years. Following directly from the chain of Robert’s offence, Robert commits Manslaughter through culpable omission, which as a result amounts to constructive murder. In total, Robert will be liable for life imprisonment under s19A (1).

Question 2 is continued on page 2

[1] Lecture 1 notes

[2] [1998] 38 A Crim R 296

[3] [1998] NSWSC 126 NSW

[4] (1998) 36 A Crim R 334 NSW

[5] (2004) 151 A Crim R 215

[6] s61R

[7] s61J (2)(b)

[8] Airedale NHS Trust v Bland [1993] AC 789 (NHS) – Page 70 Eburn & Hayes, Criminal Law and Procedure in NSW, 2nd ed. LexisNexis Butterworths, 2006 (Crim Law Text)

[9] (1988) 14 NSWLR 226

[10] Crim Law Text at page 71

[11] NHS - Crim Law Text at page 70

[12] Crim Law Text at page 91

[13] MCCOC, Fatal Offences Against the Person - Crim Law Text at page 95

[14] [1986]VR 43

Criminal Law Q2

Question 2 (1,200 words)-40 marks

Select any TWO cases from the following list of cases, and state, providing reasons, whether or not you think they positively advance the law:-

a) Langham (1984) 36 SASR 48
b) Mingall v McCammon [1970] SASR 82
c) Brown [1994] 1 AC 212
d) Lavender (2005) 218 ALR 521

Answer

a) Langham (1984) 36 SASR 48 (Langham’s Case)

When basing my opinion, I examine both the facts of the case and the various judgements given, in order to come to a conclusion of whether or not this case has positively advanced the law.

Having purchased a crossbow from a store, Langham finds him self in desperate circumstances and therefore expresses his urgency to the shop owner to obtain the full amount back in exchange for the crossbow. The return Store manager refused the return, which consequently caused Langham to return to the store with a shotgun. On his return, he demanded for the exact amount of what he believed was entitled to and not a dollar over. The facts of the case give strong evidence that Langham had an honest belief the he was entitled to the money that he took.

Langham’s case involves an appeal against a conviction of armed robbery. A required element of the crime of robbery is that the accused must have an intention to steal. Furthermore, “to constitute stealing, and therefore robbery, the property must be taken fraudulently and without bona fide claim of right…”[1] This particular principle is vital to Langham’s case as he maintains that he believed he was entitled to a “claim of right” for that which he took. “A claim of right, in order to negative fraud and dishonesty, must be genuine…fraud and dishonesty are negatived by a genuine belief in a legal entitlement to the property taken.” Langham’s case lays out this principle of claim of right and justifies it clearly. I think that this further advances the law in that it distinguishes the law of Robbery, which requires a dishonest mens rea, from acts that consist of an honest claim of right.

In order to help confirm the views given within the judgements in Langham’s case, the judges refers to earlier judgements concerning similar circumstances such as that in Skivinton[2], where it was said that “…a claim of right is a defence to robbery…also that he was entitled to take the money in the way in which he did”. Although the words ‘in the way in which he did’ may lead to some ambiguity in the given circumstances, King CJ in Langham’s case helps lessen its ambiguity, by providing a clear and concise explanation, as a result helps make clear of the pre-existing judgement. Another example where by Langham’s case advances the law by helping make clear of pre-existing judgements is by utilizing a past judgement in Nundah[3] and further clarifying it with an original and straightforward justification; “The point being made is that he is guilty only if his state of mind is dishonest at the time of taking the property”[4]

I believe that clearing past uncertainties helps the law in that it prevents future circumstances that involve criminal offences (or civil wrongs) that may have been committed by the taking of property that the person honestly believes is entitled do; does not amount to a crime of larceny or any crime in which larceny is n element of.

Langham’s case has proved to have helped advance the law through its use in a later case of R v Fuge[5] (Fuge). The issue of honest claim of right arises in this case whereby the appellant claims that the principal offender was owed money. In order to clarify this belief, Fuge reviews the authorities given in Langham’s case to help elucidate the necessary elements required to constitute a claim of right. This to me demonstrates the effectiveness Langham’s case had on keeping the principles of ‘claim of right’ in regards to the illegal acts of taking property, constant, in future cases.

Overall, my opinion is that Langham’s case has profoundly advanced the law through Johnston J and King CJ judgements, which clarify the principle of ‘claim of right’ and further help enhance the law of Robbery. In addition, Langham’s case makes clear of uncertainties in past judgements, which aids the law by preventing future false convictions concerning Robbery and claim of right. Langham’s case further advances the law by providing solid and clear justifications for future cases that have used its authority as precedence.

c) Brown [1994] 1 AC 212 (Brown’s Case)

My opinion of whether Brown’s Case has made a positive advance in the law is solely based on my outlook of the judgements and examples given by the judges in the case.

Brown’s case involves the accused, being a group of sadomasochistic homosexuals whom all engaged in extremely painful activities such as torture, under each others consent. They were charged with assault occasioning actual bodily harm and unlawful wounding. “The question on appeal was whether the consent of the victim to such acts provided a ‘defence’ to the perpetrator”[6].

Brown’s case helps distinguish between acts that allow for consent [as a defence], and between unlawful acts where consent is not permitted [as a defence]. Lord Mustill helps outline this through his judgements. “If an act is unlawful in the sense of being in itself a criminal act, it cannot be rendered lawful because the person to whose detriment it is done consents to it.”[7] In my opinion, this enhances the law in a manner that it restricts the limit of consent to unlawful activities “no person can license another to commit a crime.” I believe that it also helps clarify what type of acts may be consented to and those that cannot. Brown’s case takes 10 different examples and discusses the issue of consent in each circumstance in order to help decide the outcome of the new challenge at hand. In doing so, I believe that Brown’s case assists the law by providing an outline that helps determine what type of acts, requiring physical contact, can be consented to lawfully and other acts where consent is not a defence [for the perpetrator].

Brown’s Case discusses various forms of violence from the 19th century that were considered lawful, and examine the changes that society has gone through, til the present day. “The attitude of the public towards homosexual practices changed in the second half of this century. Change in public attitudes leads to change in the law.” The case examines various acts from duelling to boxing, and discusses how public policy continues to change. I perceive this to have a positive outcome on the law as it allows change in the law to keep up with the ongoing change of public policy as it “will not remain constant”[8]. Brown’s case in my view enhances the law of consent to unlawful acts, as it establishes many potential scenarios concerning consent to various forms of assault, in order to restrict and govern any future unlawful acts that are consented to.

Another important aspect of Brown’s Case, is that it focuses a great amount on the importance of public policy and interest. “The question whether the defence of consent should be extended to the consequences of sado-masochistic encounters can only be decided by consideration of policy and public interest”[9] Lord Templemann, implies that his consideration for dismissing the appeal based on consent of the perpetrators, was an outcome that was produced due to the consideration of public policy. Furthermore, Brown’s case finds authority through Welch[10], where it is said that “although the law must recognise individual freedom…then the personal interest of the individuals involved must yield to the more compelling societal interest…” In my view, Brown’s case advances the law in such a way that it protects future public policy of the state. It retains the power with the overall public interest.

Overall, I strongly believe that Brown’s case has made a significant advancement on the law in that it help clarify as to where the law stands for consent and unlawful activities. My further opinions for why Brown’s case enhances the law are that it restricts any future unlawful acts that are consented to and because it retains the future power in the interest of public policy.

[1] Langham’s Case - Rush and Yeo, Criminal Law Sourcebook, 2nd ed. LexisNexis Butterworths, 2006 (Source Book)

[2] (1967) 51 Cr App R 167

[3] (1916) 16 SR (NSW) 482

[4] Langham’s Case – Source Book

[5] (2001) 123 A Crim R 310; [2001] NSWCCA 208

[6] MCCOC, Non Fatal Offences Against the Person – Crim Law Text at page 222

[7] Brown’s Case – Source Book

[8] Brown’s Case – Source Book

[9] Ibid

[10] (1995) 101 CCC 216 at 239