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- Law Extension Committee: Summer 2006-07 v1
Law Extension Committee: Summer 2006-07 v1
- By Mark Machaalani
- Published 31/03/2007
- Past Assignments
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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.
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
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