Published on 31/03/2007

Criminal Law Assignment by student from Law Extension Committee.
This assignment received a mark of 71%.

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

Criminal Law Q1

1. Introduction

This is a memorandum that will discuss the criminal liability of Robert, in association with the Crimes Act 1900 (NSW) (Crime Act). It is the purpose of this paper to acknowledge that Robert has the capacity to commit a crime in order to be accountable for criminal liability. However, the physical element of the crime namely Actus Reus and the mental element of the crime namely Mens Rea must be established in conjunction with no legal justification to hold Robert accountable for any criminal liability.

2. Criminal Liability

2.1 Aggravated Acts of Indecency

Robert may be convicted of aggravated acts of indecency under s61O (1) of the Crimes Act, based on the fact that he entered Daisy’s room with the intention to commit an act of indecency towards Daisy who is a person under the age of 16. The act of indecency occurred when Robert got into bed with Daisy and placed his hand on her breasts, which complies with the element of Actus Reus.

Therefore, Robert's act of indecency has the essentially element of has sexual connotation and is “contrary to the ordinary standards of morality of respectable people in the community”, as seen in R v Harkin[1]. It seems that mens rea lies in the intention of Roberts' mind to commit the act and the capability of Daisy to consent was not possible, as she was asleep.

Furthermore, Roberts offence is considered as a circumstance of aggravation, as Daisy is under the authority of Robert according to s61O (3) (b) of the Crimes Act.

It is propound that Robert is liable for aggravated acts of indecency with an imprisonment term of 5 years, based on the facts given.

2.2 Aggravated Sexual Assault

The principles of aggravated sexual assault are defined in s61J of the Crimes Act and if these principles are satisfied by Robert, then he will be liable for 20 years imprisonment. The main distinguishing element that must be fulfilled is sexual intercourse under s61H (a). The element of actus reus is satisfied when Robert inserted his penis into Daisy's vagina.

Further, the sexual intercourse must be without consent. It can be seen that even though Daisy did not respond to Robert's statement that he would leave if she told him so and also she did not protest or physically resist the sexual intercourse, it does not mean that she had consented, as portrayed in s61R (2) (d) of the Crimes Act. Additionally, it is evident that there was no consent, on account that she did not understand the nature of Roberts act because she was a virgin, as seen in Williams[2].

Additionally, the sexual assault committed is classified as a circumstance of aggravation by satisfying s61J (2) (d) of the Crimes Act, whereby Daisy is the victim under the age of 16 and also under s61J (2) (e) of the Crimes Act, which states that Daisy is under the authority of Robert when the offence had occurred. To further support that the offence is an aggravated offence, Robert states that “I will make you pay unless you never breathe a word of this to anyone”, which clearly conforms to s61J (2) (b) of the Crimes Act.

Lastly, in order to establish that Robert is liable for aggravated sexual assault, it is essential that s61R (1) is observed. In regards to this particular case, Robert satisfies the requisite mens rea through his recklessness as to Daisy's consent to sexual intercourse and the knowledge that Daisy did not consent.

In effect, the mens rea becomes evident through Robert’s knowledge that Daisy did not consent or was reckless as to this possibility. To determine if Robert’s comprehension of Daisy's consent is of honest belief, a subjective test must be utilised. Thus, from the facts given, the belief must be honest; it does not have to be reasonable, as seen in DPP v Morgan[3]. Robert only stated that “I will leave your room right now”, however she did not respond, which means that there could be no honest belief in Roberts mind that the consent was consensual, as portrayed in s61R (2) (d) of the Crime Act.

However, due to the absence of a definite reply of consent from Daisy, there is a real possibility that there is an absence of consent, thus we have recklessness. Clearly if Robert was “aware that there is a real possibility that she is not consenting but he goes ahead with it anyway, that is reckless”, as seen in R v Banditt[4]. Consequently, Daisy did not reply as she was confused and frightened at this time. However, Robert did not turn his mind further to acquire consent, thus he is reckless under s61R (1) of the Crimes Act.

As a result, Robert is liable for aggravated sexual assault with an imprisonment term of 20 years, based on the facts given.

Once the aggravated acts of indecency and aggravated sexual assault have been proven, Robert is faced with a combined imprisonment term of 25 years.

2.3 Constructive Murder or Manslaughter

Lastly, Robert may be liable of constructive murder if it can be established, “where the act or culpable omission causing death occurred during or immediately after the commission of some offence is punishable by imprisonment for life or for 25 years”. This is called constructive murder because the accused may be guilty of murder without intending any persons' death and without realising that this was probable[5].

Generally, culpable omission to act is defined in Airedale NHS Trust v Bland[6], as an “omission to act which would prevent death”. However, an omission to prevent death is not an actus reus and cannot give rise to a conviction of murder. But Robert was under a duty of care to protect Daisy through this act, an act which he subsequently did not carry out or omit to do. An omission, such as this one, can constitute the actus reus of homicide[7] and he may still be convicted of manslaughter under 18 (1) (b) of the Crimes Act. Robert has the implied duty of care over Daisy, as he assumed the role of her nanny, he was her only point of contact and she was not allowed to socialise with other people. Also, she was secluded in a mansion and this isolation from the public confers a duty of care on Robert since a “relationship exist between the parties to create the duty, the omission of which creates legal responsibility”, as seen in R v Taktak[8]. Therefore, the “general exception at common law, namely that a person may be criminal liable for the consequences of an omission if he stands in such a relation to the victim that he is under a duty to act”[9]. Thus, based on this notion Robert had a duty to act in such a manner to prevent Daisy from jumping off her balcony causing death, as she asked for a sign to prevent her suicide. Therefore, Robert’s conduct, by watching her climb the railings of the balcony and after standing on the balcony for 30 seconds she jumps, portraying Robert's conduct of culpable omission, which “results in death of whom the duty is owing….chargeable with manslaughter”[10].

The next issue is that constructive murder can only suffice if the death was caused after the commissioning of a serious crime, which carries a sentence of 25 years.

The foundation of serious crimes that had been committed are aggravated acts of indecency and aggravated sexual assault, which comprise of a combined prison sentence of 25 years. Furthermore, the death of Daisy does not need to fulfil the element of mens rea under constructive murder, but rather only the foundation crimes require mens rea, as seen in R v Ryan[11], which has previously been proven.

Therefore, it can be held that there is no mens rea at the exact time of death if the actions of the defendant are “really one transaction”, as discussed in Thabo Meli[12]. This notion of one transaction is illustrated when Robert threatens Daisy after the foundation crimes have been committed, through the threat that if she tells anyone about what had occurred, he would make her pay. In response, Daisy kills herself based on the foundation offences and from her last statement exclaiming “I do not deserve to live....I will kill myself”. It may seem that after examination of the circumstances, the death occurred “immediately after” the foundation crimes, as demonstrated in Hitchens[13].

Therefore, if all these elements exist, then Robert would be convicted of murder under the definition stated in s18(1)(a) of the Crimes Act, which is an offence, punishable with life imprisonment under s19A(1) of the Crimes Act.

3. Conclusion

In conclusion, the necessary elements of each crime must be satisfied and it must be proven beyond a reasonable doubt, so as to conclude that Robert may be criminally liable for aggravated acts of indecency, aggravated sexual assault and constructive murder, in reliance with the Crimes Act. Robert may be charged with the first two offences mentioned, however due to the element of culpable omission and the foundation crimes committed, if constructive murder can not be proven beyond a reasonable doubt, accordingly the conviction of manslaughter could be instated.

Word Count: 1540

Question 2 continues on page 2

[1] (1989) 38 A Crim R per Lee J

[2] [1923] 1 KB 340

[3] (1976) AC 182

[4] (2004) 151 A Crim R 215

[5] Hayes, Robert and Eburn, Micheal. Criminal Law and Procedure in NSW 2 Ed. LexisNexis Butterworth, 2006 at Page 91.

[6] [1993] 1 AII ER 821

[7] Hayes, Robert and Eburn, Micheal. Criminal Law and Procedure in NSW 2 Ed. LexisNexis Butterworth, 2006 at Page 70.

[8] (1988) 14 NSWLR 226 at 1129-1130

[9] Airedale NHS Trust v Bland [1993] 1 AII ER 821

[10] R v Taktak (1988) 14 NSWLR 226 at 1129-1130

[11] (1967) 121 CLR 205

[12] (1954) 1 WLR 228

[13] (1983) 3 NSWLR 318

Criminal Law Q2

This paper will essential investigate the facts of Langham[1] and Brown[2], to validate the outcomes or judgements of each case, so that one can determine if our laws have been positively advanced or not.

a) Langham (1984) 36 SASR 48

The issue that is discussed in Langham is honest belief of a claim of right over property, as a defence for conviction of robbery. One must examine all the elements of this notion, in conjunction with the facts of the case to properly distinguish whether or not this proposition of law, will positively advances the law.

Firstly, Langham had used armed means to rob a store, in recovery of property or money that he honestly believed he was legally entitled to. Therefore, it is the question of whether the means that Langham employed to recovery the money was an appropriate method, thus is he liable for robbery or can honest belief be a defence.

The relevant issue is whether the accused had a genuine belief in the legal right to property rather than a belief in a legal right to employ the means in question to recover it.[3]

As a result, King CJ had quashed the conviction on the view that, if the defendant had a honest belief he had claim of right on the property, it could be a defence to robbery or a defence to larceny or a defence to obtain by false pretences. Therefore, the essential element is that the belief must be honest.

One could agree with King CJ, as the defendant truly believed that he had the claim of right to the property, it would not matter in what manner or conduct was used to acquire the property. However, the element of honest belief must be proven beyond a reasonable doubt, whereby in this instance, one could agree that Langham did have a honest belief in his property, as he only acquired the equivalent value in money that was owed to him and nothing more.

Furthermore, the element of a crime of robbery is the intention of stealing. To constitute stealing and therefore robbery, the property must be taken fraudulently and without bona fide claim of right[4]. Thus, this confirms that Langham can not be convicted of robbery, as he encompassed a bona fide mens rea. Hence, it allows the law to advance to recognise that a person should not be convicted of a serious crime, if they had a bona fide mens rea, as seen in Skivington[5]

Therefore, my opinion is that Langham[6] has advanced the law, as it has set a definition or foundation of claim of right to allow the recovery of property, but only when there is an absolute honest belief that there is a legal entitlement to the property. More importantly, this case portrays an observation that based on the definition of claim of right that assists in negativing fraud or dishonesty in taking of property.

The authority of Langham[7] is evidently utilised in R v Fuge[8], whereby the question of honest belief in the claim of right over wages was established. It was held that the claim of right was not of bona fide and therefore, they were convicted of intent to rob with offensive weapons. This clearly portrays that Langham[9] has positively advance the law; in respect to implying that claim of right must have the element of honest belief to suffice, to be distinguish from robbery. Thus, it prevents property being improperly taken or retained.

In conclusion, it is evident that Langham[10] has positively advanced the law, through the establishment and clarification of the claim of right over property, in a sense it has differentiated that a crime of robbery can not be established, if the elements of honest belief are apparent. Additionally,

c) Brown [1993] 2 AII ER 75

The issue under question in Brown[11] is the consent in respect to offences against the person for such assaults occasioning actual bodily harm and unlawful wounding. Thus, to determine if the case has made a positive advance on the law, one must observe the judgements of the court.

This case involves a group of men who are involved in sado-masochistic homosexual acts, which engage painful activities. The accused are charged with assault but defend their actions with the defence of consent.

The leading judgement imposed by Lord Templemann, implies that his consideration for dismissing the appeal based on consent to the acts of assault, was a result which involves the consideration of public policy issues. It is clear from the judgement that public policy is against producing a possibility that an absence of consent for such sado masochism acts, as it is concerned with violence. Therefore, it is irrelevant if a person consents to an unlawful act, that is done is such a manner as to infliction bodily harm, it is against public policy.

It is in my opinion, that Lord Templemann through his judgement has positively advanced the law, by restricting the consent to unlawful activities, which provides a structural foundation of law, based on public policy interest. Thus, this notion is illustrates in a contrasting case, which implies that the “personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour”, as seen in Welch[12].

Furthermore, the alternative view by Lord Mustill observes the categories of 10 situations, whereby consent is deemed plausible, even if there is an infliction of physical harm. As a result, the judgement by Lord Mustill is that “the consensual behaviour should be presumptively lawful, unless good social or policy reasons can be found for making the consent ineffective” [13]and thus, does not sustain the interest of the state in preventing harm to the individual but rather allows privacy of unlawful acts.

I agree that the outcome of the case is correct, on the basis that the majority of the judges were inclined to quashed the appeal due to public policy. In effect, the outcome provides a positively advances the law, which confer on the majority of the public to determine or limit the consent of unlawful activities. Therefore, the law is sculptured to protect public policy in relation to the interest of the state in protecting the individual, thus a line can be drawn in the limitations of consent to unlawful activities.

In conclusion, it is evident from both cases that there have been advances in the law, which can be seen as a positive effect. Additionally, these advances in law are also seen through authority citations in subsequent case after precedence had been set.

Word Count: 1098

[1] (1984) 36 SASR 48 - [1] Rush and Yeo, Criminal Law Sourcebook, 2nd ed. LexisNexis Butterworths, 2006 (source book)

[2] [1994] 1 AC 212 – Source book

[3]Langham (1984) 36 SASR 48 at 58 – Source book

[4] Rush and Yeo, Criminal Law Sourcebook, 2nd ed. LexisNexis Butterworths, 2006 at 165

[5] (1967) 51 Cr App R 167 at 171 – Source book

[6] (1984) 36 SASR 48

[7] Ibid

[8] [2001] NSWCCA 208 – Sopurce book

[9] (1984) 36 SASR 48

[10] Ibid

[11] [1993] 2 AII ER 75

[12] (1995) 101 CCC 216 at 239 - Eburn & Hayes, Criminal Law and Procedure in NSW, 2nd ed. LexisNexis Butterworths, 2006 (criminal law)

[13] Eburn & Hayes, Criminal Law and Procedure in NSW, 2nd ed. LexisNexis Butterworths, 2006 at page 223.