DIPLOMA IN LAWLEGAL PROFESSIONADMISSION BOARD

LAW EXTENSION COMMITTEE

LAW EXTENSION COMMITTEE SUBJECT GUIDE

02 CRIMINAL LAW AND PROCEDUREWINTER SESSION 2016

This Guide includes the Law Extension Committee’s course information and teaching program and the Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW Admission Board Rules 2015.

Course Description and Objectives 1Lecturers 1Assessment 1-2September 2016 Examination 2Texts and Materials 3Lecture Program 4Weekend Schools 1 and 2 5Prescribed Topics and Course Outline 6-21Compulsory Assignment 21Assignment Questions 21Sample Examination Question 22

LAW EXTENSION COMMITTEE WINTER 201602 CRIMINAL LAW AND PROCEDURE

COURSE DESCRIPTION AND OBJECTIVES

This course provides the student with an understanding of the general principles of criminal law, together with a detailed knowledge of the application of these principles in respect of major crimes. The student is also introduced to aspects of pre-trial criminal procedure, including police powers of arrest, search, seizure and interrogation.

The objectives of the course are:

(a) to introduce students to aspects of pre-trial criminal procedure with a view to appreciating the competing public policy considerations of crime control and individual liberty;

(b) to provide students with a basic understanding of the general principles of criminal responsibility through an appreciation of criminal law theory, and the study of major crimes and defences;

(c) to develop the students’ skills of critical appraisal of social institutions and community values and expectations in relation to criminal behaviour; and

(d) to encourage students to think about the ways in which power structures in society are reproduced by the criminal law and criminal justice system.

LECTURERS

Mr Greg Sarginson, BA, LLB, LLM (Syd)

Mr Sarginson is a barrister practising in Sydney. Prior to coming to the Bar in 2003, he was a solicitor for 10 years. Greg was a casual lecturer at the University of Western Sydney and has previously taught at the University of Technology, Sydney. Greg is also a casual lecturer at the College of Law and a reporter for the New South Wales Law Reports. Greg has been a contributor for the criminal chapters of Halsbury’s Laws of Australia (Lexis Nexis). He is a contributor for NSW Civil Procedure Practice (Thomson Reuters). He has a varied practice at the Bar, including appearing for NSW government entities in tort matters; appearing for the NSW Commissioner for Fair Trading in Supreme Court matters where injunctive relief is sought under the Australian Consumer Law; and appearing in criminal matters, including conducting prosecutions for the NSW Department of Fair Trading.

ASSESSMENT

To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the Board. This gives you access to the full range of learning resources offered by the LEC.

To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus.

Eligibility to Sit for Examinations

In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s performance in a subject in order for the student to be eligible to sit for the examination, conducted by the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.

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Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for examinations. However, a category of “deemed eligible” has been introduced to offer students whose assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the examination.

Assignments as part of the Board’s Examinations

Assignment results contribute 20% to the final mark in each subject.

The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC engages the LPAB’s Examiners to assess or supervise the assessment of assignments.

Submission

Assignments must be received by 11:59pm on the due date unless an extension has been granted. Extensions must be requested by email prior to the due date. Specific supporting evidence must be provided. Assignments that are more than ten days late will not be accepted. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks available, per day.

Assessment

Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments will be returned to students and results posted on students’ individual results pages of the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their eligibility to sit for the examination.

Review

Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in that subject will be included in the Revising Examiner’s review. The final examination mark is determined in accordance with this review. Assignment marks will not otherwise be reviewed.

SEPTEMBER 2016 EXAMINATION

Candidates will be expected to have a detailed knowledge of the prescribed topics:

General principles of criminal responsibility; A case study of criminal jurisdiction; Property offences; Assault; Sexual offences; Conduct of homicide; The minds of murder; The minds of involuntary manslaughter; Provocation; Self-defence; Duress; Necessity; Insanity and diminished responsibility; Intoxication; Automatism; Strict liability and mistake of fact; Complicity; Attempt and Pre-trial criminal procedure.

Candidates will be expected to have made a study of the prescribed materials in relation to those topics, and to have analysed cases and statutory provisions referred to in the Law Extension Committee's course outline.

Information regarding permitted materials is listed in the Course Information Handbook. All enquiries regarding examinations should be directed to the Legal Profession Admission Board.

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TEXTS AND MATERIALS

For the period from 21 April to 30 May 2016, LexisNexis is offering our students a special discount and free shipping on purchases made through the LexisNexis e-store at www.store.lexisnexis.com.au. Students quoting the promo code LECW2016 will receive a 15% discount on all text titles (except for those authored by John Carter). This discount is not limited to the prescribed or recommended texts for our courses. Students should, however, still compare LexisNexis’s discounted price with that of other outlets. The Co-op Bookshop, for example, offers a discount on texts sold to its members.

Course Materials

Criminal Law and Procedure Course Materials (available via the Law Library link in the Course Materials section on the LEC Webcampus)

Guide to the Presentation and Submission of Assignments (on the LEC Webcampus)

Prescribed Materials

Hayes & Eburn, Criminal Law and Procedure in NSW, 4th ed. LexisNexis, 2014 Howie & Johnson, Annotated Criminal Legislation New South Wales, 2015-2016 ed. LexisNexis,

2015

Reference Materials

Waller & Williams, Criminal Law Texts and Cases, 12th ed. LexisNexis, 2013 Rush and Yeo, Criminal Law Sourcebook, 2nd ed. LexisNexis, 2006 Gillies, Criminal Law, 4th ed. Thomson Reuters, 1997 (Available as a pdf from the publisher’s

website) Brown, Farrier, McNamara, Egger, Steel, Criminal Laws: Materials and Commentary on Criminal

Law & Process, NSW, 5th ed. Federation Press, 2011 Blackmore & Hoskings, Criminal Law NSW, Thomson Reuters (available as online subscription)

LEC Webcampus

Once you have registered online with the LEC, you will have full access to all the facilities on the Webcampus including links to relevant cases and legislation in Criminal Law and Procedure. Regularly check the Course Materials section on the LEC Webcampus.

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LECTURE PROGRAM

Lectures in Criminal Law and Procedure will be held on Tuesdays from 6.00pm until 9.00pm commencing on Tuesday 10 May 2016. Lectures during the first half of the semester will be held in Carslaw Lecture Theatre 159 (CLT 159). Lecture venues for the second half of the semester have yet to be confirmed. For details as to the location of lecture venues, refer to p.52 of the Course Information Handbook for a map of the University of Sydney main campus. This program is a general guide and may be varied according to need. Readings are suggested to introduce you to the material to be covered in the lecture, to enhance your understanding of the topic, and to encourage further reading. You should not rely on them alone.

LECTURE DATE TOPIC KEY READING1 10 May Introduction to course

General principles of criminal responsibility

Refer to the Synopsis, Course Outline and

references preceded by an asterisk (*)

2 17 May Property offences

3 24 May Property offences (cont'd)Assault

4 31 May Assault (cont'd)Sexual offences

5 7 Jun Conduct of homicide

6 14 Jun The minds of murderThe minds of involuntary manslaughter Revision Exercises

Study Break: Saturday 18 June – Sunday 3 July 2016Please note: Criminal Law and Procedure compulsory assignment is

due on Wednesday 29 June 2016

7 5 Jul Provocation

8 12 Jul Self-defenceDuress

Refer to the Synopsis, Course Outline and

references preceded by an asterisk (*)

9 19 Jul NecessityInsanity and diminished responsibility

Revision exercises

10 26 Jul Automatism and IntoxicationStrict liability and mistake of fact

11 2 Aug Complicity

12 9 Aug AttemptPre-trial criminal procedureRevision for exam

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WEEKEND SCHOOLS 1 AND 2

There are two weekend schools principally for external students. Lecture students may attend on the understanding that weekend classes aim to cover the same material provided in weekly lectures and are primarily for the assistance of external students. Please note that it may not be possible to cover the entire course at the weekend schools. These programs are a general guide, and may be varied according to need. Readings are suggested to introduce you to the material to be covered in the lecture, to enhance your understanding of the topic, and to encourage further reading. You should not rely on them alone.

Weekend School 1

TIME MAJOR TOPICS KEY READINGSaturday 28 May 2016: 8.00am – noon in New Law School Lecture Theatre 101 (New LSLT 101)8.00am-9.10am General principles of criminal

responsibilityRefer to the Synopsis, Course

Outline and references preceded by an asterisk (*)

9.20am-11.00am Property offences

11.00am-11.45am Property offence (continued)Assault

11.45am-12.00noon Revision exercises

Sunday 29 May 2016: noon – 4.00pm in New Law School Lecture Theatre 101 (New LSLT 101)12.00noon-1.10pm Assault (continued)

Refer to the Synopsis, Course Outline and references preceded by

an asterisk (*)

1.20pm-2.40pm Sexual offences

2.50pm-3.45pm Conduct of homicideThe minds of murder

3.45pm-4.00pm Revision exercises

Weekend School 2

TIME MAJOR TOPICS KEY READINGSaturday 23 July 2016: 8am – noon in Eastern Avenue Auditorium (EAA)8.00am-9.20am Provocation

Refer to the Synopsis, Course Outline and references preceded by

an asterisk (*)

9.30am-11.00am Self-defence, duress and necessity

11.00am-11.45am Insanity and diminished responsibility

11.45am-12.00noon Revision exercises

Sunday 24 July 2016: noon – 4.00pm in Eastern Avenue Auditorium (EAA)

12.00noon-1.30pm Automatism and IntoxicationStrict liability and mistake of fact

Refer to the Synopsis, Course Outline and references preceded by

an asterisk (*)1.40pm-2.40pm Complicity

2.50pm-3.45pm AttemptPre-trial criminal procedure

3.45pm-4.00pm Revision exercises

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PRESCRIBED TOPICS AND COURSE OUTLINE

Teaching will proceed on the assumption that you are making a detailed study of the prescribed reading. At a very minimum, you must read all of the references in the course outline which are preceded by an asterisk (*). Most of these references are in Rush and Yeo, Criminal Law Sourcebook. Below each topic heading, there is usually a reference to relevant pages in the prescribed text by Hayes & Eburn, Criminal Law and Procedure in NSW, 4th edition.

1. General Principles of Criminal Responsibility

Synopsis:

Explanation of the physical and mental elements of a crime. To evaluate the relationship between the fault (mental) element of a crime and voluntariness. To consider the classes of criminal activity by reference to mental state of an accused.

Reading:

*Hayes & Eburn, pp 1-70

(1) Generally *He Kaw Teh (1985) 157 CLR 523; (1985) 60 ALR 449

(2) Actus reus: the physical or external element

(2) (i) Voluntary Conduct Ryan (1967) 121 CLR 205Falconer (1990) 171 CLR 30

(2) (ii) Omission to Act

Taktak (1988) 14 NSWLR 226Burns (2012) 290 ALR 713

(2) (iii) Causation

Hallett [1969] SASR 141

(3) Mens rea: the fault or mental element

Crimes Act s4A

(3) (ii) Intention

Nedrick [1986] 3 All ER 1Stanley [2013] NSWCCA 124"Some Simple Thoughts on Intention" by Richard Buxton QC [1988] Crim LR 484 at 495

(3) (iii) Recklessness

Assault

Williams (1990) 50 A Crim R 213

Sexual Assault

Tolmie (1995) 37 NSWLR 660

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Murder

Crabbe (1985) 156 CLR 464Royall (1991) 172 CLR 378Solomon [1979] 1 NSWLR 321

(3) (iv) Negligence

Nydam [1977] VR 430Lavender (2005) 218 ALR 521

Statutory Offences

(4) Strict and absolute liability

He Kaw Teh (1985) 157 CLR 523; (1985) 60 ALR 449CTM v R (2008) 247 ALR 1

2. Property Offences

Synopsis:

Historical development of the law of larceny. Importance of possession over ownership. Examination of the physical and mental elements of common law larceny. To consider the relationship of temporal coincidence to the elements of larceny. Exceptions to the general principles of larceny. To examine the law of larceny in regard to mistake, finding and tricks. To consider the concept of a false pretence. To analyse the law of breaking and entering. To understand the transition from the crime of stealing to the crime of robbery by use of force.

Reading:

(1) Basic Larceny

Crimes Act, ss 4B, 94AA, 116-140; 150-154; 154A, 154F*Hayes & Eburn, pp 307-346

(a) Actus reus

(aa) Property capable of being stolen

Crimes Act s4

R v Daley (1879) 12 SCR (NSW) 151

(ab) Property belonging to another

*Kelly (1999) QB 621; [1998] 3 All ER 741*Anic (1993) 61 SASR 223*Croton (1967) 117 CLR 326

(ac) Asportation / Appropriation Without Consent

*Kolosque v Miyazaki (1995) NSWSC (unreported, 17 February 1995, per Dowd J)*Wallis v Lane [1964] VR 293*Ellis v Lawson (1987) 33 A Crim R 69*Kennision v Daire (1986) 160 CLR 129

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Morris [1984] AC 320; [1983] 3 All ER 288

(b) Mens rea

(ba) Intent to deprive owner permanently

*Minigall v McCammon [1970] SASR 82*Foster (1967) 118 CLR 117; [1967] ALR 458*Cockburn [1968] 1 All ER 466

(bb) Dishonesty or fraudulence; including honest belief of claim of right

Crimes Act s4B

*Peters (1998) 192 CLR 493; (1998) 151 ALR 51*McLeod v R (2003) 214 CLR 230*Lopatta (1983) 35 SASR 101*R v Fuge (2001) 123 A Crim R 310

(bc) Contemporaneity of mens rea and actus reus

*Minigall v McCammon (1970) SASR 82Buttle (1959) 60 SR (NSW) 320Riley (1853) 169 ER 674

(2) Larceny by mistake

*Hayes & Eburn, pp 336-344

*Potisk (1973) 6 SASR 389*Ilich (1987) 162 CLR 110 Shields v New South Wales Crime Commission [2007] NSWCA 309

(3) Larceny by finding

*Hayes & Eburn, pp 335-336

Crimes Act, s 124

*Minigall v McCammon [1970] SASR 82*MacDonald [1983] 1 NSWLR 729Thurborn (1849) 169 ER 293

(4) Larceny by a trick

*Hayes & Eburn, p 344

*Justelius [1973] 1 NSWLR 471Pear (1779) 168 ER 208Ward (1938) 38 SR (NSW) 308

(5) Fraud; Obtaining Property Belonging to Another, and related offences

Crimes Act, ss 192B-192H*Hayes & Eburn, pp 346-352A Steel; ‘New fraud and identity related crimes in New South Wales’; Judicial Officer’s Bulletin; Judicial Commission of NSW; Vol 22 No 3; April 2010.

*Parsons (1999) 160 ALR 531*Vasic (2005) 11 VR 380*Elias v DPP (NSW) [2012] NSWCA 302

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R v Ho (1989) 39 A Crim R 145R v Clarkson [1987] VR 962; (1987) 25 A Crim R 277Flack v R [2011] NSWCCA 167DPP v Ray [1974] AC 370Lawrence v Metropolitan Police Commissioner [1972] AC 626Balcombe v De Simoni (1972) 126 CLR 576; [1972] ALR 513

(6) Breaking and Entering

Crimes Act, ss 109-115; 148-149

*Stanford (2007) 70 NSWLR 474; [2007] NSWCCA 370Barker (1983) 153 CLR 338; 1983] 47 ALR 1Galea (1989) 46 A Crim R 158Walker (1978) 19 SASR 532

(7) Robbery

Crimes Act, ss 94-98

*Smith and Desmond [1965] AC 960*Langham (1984) 36 SASR 48Gnosil (1824) 171 ER 1206

(a) Steal From Person

*Delk (1999) 46 NSWLR 340Bieu Vinh Hua [2002] NSWCCA 384Edwards [2009] NSWCCA 199

3. Assault

Synopsis:

To evaluate the physical and mental elements of the crime of assault. To analyse a conditional threat. To consider the relevance of the victim’s state of mind by comparing psychic assault and physical

assault. Application of the concept of recklessness to law of assault. To resolve the issue of consent by reference to sports and other consensual activities. The relevance of intention and/or fear/apprehension to law of assault. Consideration of recognised defences.

Reading:

Crimes Act, ss 4A, 32-49A, 51A-61Crimes (Domestic and Personal Violence) Act 2007, s 13*Hayes & Eburn, pp 204-242Hon PW Young “Is there any law of consent with respect to assault? (2011) 85 ALJ 23

(1) Actus reus

(a) Application of force or threatened application of force

*Fagan [1969] 1 QB 439*Knight (1988) 35 A Crim R 314*Zanker v Vartzokas (1988) 34 A Crim R 11*Ireland [1997] 4 All ER 225*Collins v Wilcock [1984] 3 All ER 374*Mostyn (2004) 145 A Crim R 304

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Barton v Armstrong [1969] 2 NSWLR 451

(b) Conditional threats

*Rosa v Samuels [1969] SASR 205Tuberville v Savage (1669) 86 ER 684Police v Greaves [1964] NZLR 295

(c) State of mind of victim

*Brady v Schatzel [1911] St R Qd 206*Ryan v Kuhl [1979] VR 315McPherson v Brown (1975) 12 SASR 174

(d) Absence of consent

*Brown [1994] 1 AC 212; (1993) 2 WLR 556Wilson [1996] 2 Cr App R 241Emmet [1999] EWCA Crim 170Stein [2007] VSCA 300Attorney-General’s Reference (No 6 of 1980) [1981] 1 QB 715Pallante v Stadiums (No 1) [1976] VR 331

(2) Mens rea

*Blackwell [2011] NSWCCA 93; (2011) 208 A Crim R 392; (2011) 81 NSWLR 119*Chen [2013] NSWCCA 116*Percali [1986] 42 SASR 46*Williams (1990) 50 A Crim R 213*Smith [1961] AC 290*D [1984] 3 NSWLR 29Venna [1976] QB 421

(3) Assault Causing Death

Crimes Act ss 25A, 25B

4. Sexual Offences

Synopsis:

Consideration of the physical and mental elements of sexual offences. Definition of sexual intercourse. Importance of consent as part of the actus reus. Developments in the law on consent. Interplay between consent and recklessness; consent and mistaken belief. Physical and mental elements of sexual offences not involving sexual intercourse.

Reading:

(1) Sexual assault

Crimes Act, ss 61H-61Q, 61S-61U, 66A-66F, 73, 77, 80A *Hayes & Eburn, pp 243-294

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(a) Actus reus

*Clark [1998] NSWSC 126*Mueller (2005) 62 NSWLR 476*Dean (2006) 66 A Crim R 341*Chant and Madden (1998) Unreported, 12 June 1998, NSWCCA*Aiken (2005) 63 NSWLR 719CTM v R (2008) 247 ALR 1Williams [1923] 1 KB 340Gallienne (1963) 81 WN (Pt 1) (NSW) 94Papadimitropoulos (1957) 98 CLR 249Mobilio (1990) 50 A Crim R 170Wilkes and Briant [1965] VR 475Question of Law (No 1 of 1993) (1993) 59 SASR 214

(b) Mens rea

*AJS (2005) 12 VR 563*Morgan [1976] AC 182*Tolmie (1995) 37 NSWLR 660* Banditt (2005) 224 CLR 262; 223 ALR 633*Bochkov [2009] NSWCCA 166*Getachew [2012] HCA 10*WO v DPP (NSW) [2009] NSWCCA 275

McEwan [1979] 2 NSWLR 926AM v R [2011] NSWCCA 237

(2) Indecent assault and act of indecency

Crimes Act, ss 61L-61O, 77Hayes & Eburn pp 295-304

*Fitzgerald v Kennard (1995) 38 NSWLR 184; 84 A Crim R 333 *Harkin [1989] 38 A Crim R 296* Gillard (1999) 105 A Crim R 479*Barrass [2005] NSWCCA 131*Bonora (1994) 35 NSWLR 74*Eades v DPP [2010] NSWCA 241

5. Conduct of Homicide

Synopsis:

Definition of homicide. Meaning of ‘human being’ with reference to death. The old ‘year and a day’ rule. Analysis of conducts amounting to voluntary conduct. Understand and apply the tests derived for causation. Appreciate the place of omission in the structure of criminal responsibility for homicide.

Reading:

Crimes Act, s 18*Hayes & Eburn, pp 71-121

(1) Human being

Human Tissue Act 1983 (NSW), s 33Crimes Act 1900, s 20

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R v Iby [2005] NSWCCA 178Hutty [1953] VLR 338Malcherek [1981] 2 All ER 422

(2) Year and a day rule

Crimes Act, s 17A

Dyson [1908] 2 KB 454Evans & Gardiner (No2) [1976] VR 523

(3) Voluntary Conduct

*Ryan (1967) 121 CLR 205*Falconer (1990) 171 CLR 30*Katarzynski [2005] NSWCCA 72*Murray (2002) 211 CLR 193Ugle (2002) 211 CLR 171Jiminez (1992) 173 CLR 572

(4) Causation

*Hallett [1969] SASR 141*Evans and Gardiner (No 2) [1976] VR 523*Royall (1991) 172 CLR 378*Burns (2012) 290 ALR 713*Moffat (2000) 112 A Crim R 201 *Arulthiilakan (2004) 203 ALR 259; (2003) 78 ALJR 257Blaue [1975] 3 All ER 446Smith [1961] AC 290Jordan (1956) 40 Crim App R 152Malcherek [1981] 2 All ER 422

(5) Omission to perform a legal duty to preserve life

*Taktak (1988) 14 NSWLR 226Taber and Styman [2002] NSWSC 1329Russell [1933] VLR 59Stone and Dobinson [1977] QB 354Miller [1983] 2 AC 161

6. The Minds of Murder

Synopsis:

To comprehend and evaluate the four mental states required for the crime of murder. Brief outline of recognised ‘defences’ and their relationship to the onus and standard of proof. Examination of the felony-murder rule and its application. Relationship between contemporaneity and the actus reus and the mens rea of the offence of

murder.

Reading:

(1) The fault (or mental) element

Crimes Act, s 18(1)A*Hayes & Eburn, pp 100-112

(a) Intent to kill

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Hyam [1975] AC 55; [1974] 2 All ER 41Nedrick 8 Cr App R 179; [1986] 3 All ER 1Demirian [1989] VR 97

(b) Intent to inflict grievous bodily harm

Perks (1986) 41 SASR 335Smith [1961] AC 290Rhodes (1984) 14 A Crim R 124

(c) Reckless indifference to human life

*Pemble (1971) 124 CLR 107; [1971] ALR 762*Crabbe (1985) 156 CLR 464*Royall (1991) 172 CLR 378*Solomon [1979] 1 NSWLR 321Boughey (1986) 161 CLR 10Pereira (1988) 82 ALR 217Annakin (1988) 17 NSWLR 202

(d) Constructive murder

*Ryan (1967) 121 CLR 205*Jacobs and Mehajer [2004] NSWCCA 462Mraz (1955) 93 CLR 493Hitchins [1983] 3 NSWLR 318

(2) Actus reus and mens rea: time dimension

*Meyers (1997) 147 ALR 440; 71 ALJR 1488*Le Brun 94 Cr App R 101; [1991] 4 All ER 673Thabo Meli [1954] 1 WLR 228McConnell [1977] 1 NSWLR 714Royall (1991) 172 CLR 378

7. The Minds of Involuntary Manslaughter

Synopsis: Definition of the crime of manslaughter. Elements of voluntary and involuntary manslaughter. Contrast between civil and criminal negligence. Analysis of doctrine of unlawful and dangerous act manslaughter. To distinguish between negligent manslaughter and unlawful and dangerous act manslaughter. Reasons for the demise of battery manslaughter.

Reading:

*Hayes & Eburn, pp 163-203

(1) Criminal negligence

*Lavender (2005) 218 ALR 521*Nydam [1977] VR 430*Do [2001] NSWCCA 19*Taktak (1988) 14 NSWLR 226Stone and Dobinson [1977] QB 354

(2) Unlawful and dangerous act doctrine

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*Wilson (1992) 174 CLR 313*Burns 290 ALR 713*Pullman (1991) 25 NSWLR 89; 58 A Crim R 222Cornelissen [2004] NSWCCA 449Newbury and Jones [1977] AC 500Church [1966] 1 QB 59Holzer [1968] VR 481

(3) Intentional infliction of harm less than grievous bodily harm Mamote-Kulang of Tamagot (1964) 111 CLR 62Holzer [1968] VR 481Wilson (1992) 174 CLR 313

8. Provocation (Partial Defence of Extreme Provocation Reducing Murder to Manslaughter)

Synopsis:

To evaluate the nature, function, scope and underlying rationales of the defence of provocation. To present the elements of the defence and to consider whether they accord with general notions

of justice and with community values and expectations. Analysis of the ‘ordinary person test’.

Reading:

Crimes Act, s 23*Hayes & Eburn, pp 124-158

Historical Development of Defence of Provocation prior to Crimes Amendment (Provocation) Act 2014 (NSW)

(1) Scope and rationale of the defence

Parker (No1) (1963) 111 CLR 610Burke [1983] 2 NSWLR 93

(2) Conduct amounting to provocation

*Parker (No 1) (1963) 111 CLR 610*Parker (No 2) (1963) 111 CLR 665*Moffa (1977) 138 CLR 601*Chhay (1994) 72 A Crim R 1Holmes [1946] AC 588

(3) The ordinary person test

*Stingel (1990) 171 CLR 312*Masciantonio (1995) 183 CLR 58; (1995) 69 ALJR 598*Green (1997) 191 CLR 334; (1997) 148 ALR 659Mankotia (2001) 120 A Crim R 492Sievers (2004) 151 A Crim R 426

(4) Actual loss of self-control

*Pollock (2010) 242 CLR 233; (2010) 271 ALR 219*Chhay (1994) 72 A Crim R 1*Osland (1998) 197 CLR 316; (1999) 159 ALR 170Van den Hoek (1986) 161 CLR 158

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(5) Mistake

*Dib (2002) 134 A Crim R 329

9. Self-defence

Synopsis:

Consideration of self-defence, duress and necessity as ‘justifications’ or ‘excuses’. Reiterate how onus rests on Crown to negate once ‘defence’ raised, not accused to prove. To understand the need for and the roles played by the battered woman syndrome in the law of

self-defence. To consider the doctrine of excessive force and its historical role in the law of self-defence.

Reading:

Crimes Act, ss 418-420, 422*Hayes & Eburn, pp 451-463

(1) The general defence

*Zecevic (1987) 162 CLR 645*Kurtic (1996) 85 A Crim R 57 Osland (1998) 197 CLR 316; (1999) 159 ALR 170Conlon (1993) 69 A Crim R 92Viro (1978) 141 CLR 88

(2) The partial defence

Crimes Act, s 421

*Katarzynski [2005] NSWSC 613*Trevenna (2004) 149 A Crim R 505Viro (1978) 141 CLR 88Zecevic (1987) 162 CLR 645

10. Duress

Synopsis:

To critically examine the nature, scope and underlying rationale for the law on duress. Set out the elements for raising duress as a defence. Consideration of the place of voluntary involvement with criminal organisations when raising

duress. The position of an accused that commits murder under duress.

Reading: *Hayes & Eburn, pp 422-439

(1) Type of harm threatened

*Lawrence [1980] 1 NSWLR 122Nguyen [2008] NSWCCA 22Warren, Coombes & Tucker (1996) 88 A Crim R 78Graham (1982) 74 Cr App Rep 235Hurley and Murray [1967] VR 526

(2) Present and continuing threat and opportunity to escape

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Brown (1986) 43 SASR 33Hudson and Taylor [1971] 2 QB 202Williamson [1972] 2 NSWLR 281

(3) Reasonable belief

*Runjanjic and Kontinnen (1991) 53 A Crim R 362Graham (1982) 74 Cr App Rep 235

(4) Ordinary firmness

*Abusafiah (1991) 24 NSWLR 531*Lawrence [1980] 1 NSWLR 122*Makrynikos [2006] NSWCCA 170*Runjanjic and Kontinnen (1991) 53 A Crim R 362Graham (1982) 74 Crim App R 235

(5) Voluntary involvement with criminal group

Calderwood [1983] NI 361Palazoff [1986] 43 SASR 99Nguyen [2008] NSWCCA 22

(6) Murder excluded

*Howe [1987] 1 AC 417McConnell [1977] 1 NSWLR 714

11. Necessity

Synopsis:

To critically examine the nature, scope and underlying rationale for the defence of necessity. Set out the elements for raising necessity as a defence. Consideration of the place of escape in the law on necessity.

Reading:

*Hayes & Eburn, pp 439-451

*Dudley and Stephens (1884) 14 QBD 273*Loughnan [1981] VR 443*Rogers (1996) 86 A Crim R 542

12. Insanity and Diminished Responsibility

Synopsis:

To examine the nature, scope and underlying rationale of the defence of insanity. To analyse the elements of the defence of insanity. To note certain procedural features of the insanity defence. To examine the nature, scope and underlying rationale of the defence of diminished responsibility. To analyse the elements of the defence of diminished responsibility. To consider historical statutory changes to the defence of diminished responsibility.

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Reading:

(1) Insanity

*Hayes & Eburn, pp 356-369

(a) Generally

*M’Naghten’s Case (1843) 8 ER 718; [1843-60] All ER 229*Porter (1933) 55 CLR 182*Cheatham (No 1) [2000] NSWCCA 282

(b) Defect of reason

Sodeman (1936) 55 CLR 192Willgoss (1960) 105 CLR 295

(c) Disease of the mind

*Porter (1933) 55 CLR 182Sullivan [1984] 1 AC 156Burgess 93 Cr App R 41; [1991] 2 WLR 1206Kemp [1957] 1 QB 399Quick [1973] QB 910

(d) Knowledge of nature and quality of act or wrongness

*Porter (1933) 55 CLR 182*Cheatham (No 1) [2000] NSWCCA 282Stapleton (1952) 86 CLR 358

(2) Diminished responsibility

Crimes Act, s 23A*Hayes & Eburn pp 369-380

(a) Generally Veen (1979) 143 CLR 458Thompson (1988) 36 A Crim R 223

(b) Abnormality of mind

*Cheatham (No 2) [2002] NSWCCA 360*Christov [2006] NSWSC 972*Potts [2012] NSWCCA 229Byrne [1960] 2 QB 396 Jones (1986) 22 A Crim R 42Tumanako (1992) 64 A Crim R 149

(c) Substantial impairment of mental responsibility

Lloyd [1967] 1 QB 175Trotter (1993) 68 A Crim R 536

(d) Proof

Tumanako (1992) 64 A Crim R 149Walton [1978] AC 788

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13. Automatism

Synopsis:

To examine the nature, scope and underlying rationale of the plea of automatism. To consider automatism as a sub-species of involuntariness. To distinguish between sane and insane automatism.

Reading:

Hayes & Eburn, pp 390-400

*Falconer (1990) 171 CLR 30*Woodbridge [2010] NSWCCA 185Radford (1985) 42 SASR 266Lainson (1995) Unreported, NSWSC 21 June 1995Bratty v A-G (NI) [1963] AC 386Quick [1973] QB 910Sullivan [1984] 1 AC 156Joyce [1970] SASR 184Burgess [1991] 2 QB 92

14. Intoxication

Synopsis:

To understand the historical development of the law on intoxication in the United Kingdom and Australia.

To consider issues of intent and responsibility in the application of the law on intoxication.

Reading:

Crimes Act, ss 428A-428IHayes & Eburn, pp 403-420

*O’Connor (1980) 146 CLR 64*Grant (2002) 55 NSWLR 80*Derbin [2000] NSWCCA 361*Maski [2004] NSWCCA 333*Ward [2013] NSWCCA 46Majewski [1977] AC 443

15. Strict Liability and Mistake of Fact

Synopsis:

To comprehend the various categories of crime as those requiring mens rea, strict liability and absolute liability.

Application of the Proudman v Dayman defence of honest and reasonable mistake of fact.

Reading:

Hayes & Eburn pp 56-67

(1) Divining the fault element of statutory offences

*He Kaw Teh (1985) 157 CLR 523*Jiminez (1992) 173 CLR 572*Allen v United Carpet Mills Pty Ltd [1989] VR 323

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Proudman v Dayman (1941) 67 CLR 536

(2) Requisite elements of the defence of mistake of fact

*CTM (2008) 247 ALR 1*Mayer v Marchant (1973) 5 SASR 567*Ostrowski v Palmer (2003) 219 CLR 493Iannella v French (1968) 119 CLR 84Proudman v Dayman (1941) 67 CLR 536

16. Complicity

Synopsis:

To appreciate the need for doctrines of complicity so as to widen the scope of criminal liability. To comprehend the derivative nature of complicity. To critically examine the physical and mental elements of complicity including the doctrine of

common purpose. To understand the underlying rationale and requirements of the defence of withdrawal.

Reading:

*Hayes & Eburn, pp 501-538NSW Law Reform Commission Report 129 ‘Complicity’ (2011)-Available from NSW Law Reform Commission website: www.lawlink.nsw.gov.au/lawlink/lrc

(1) Derivative liability

*Osland (1998) 197 CLR 316; (1999) 159 ALR 170*Chishimba; Masaka; Mulenga [2010] NSWCCA 228King (1986) 161 CLR 423White v Ridley (1978) 140 CLR 342Mohan [1967] 2 AC 187Cogan and Leak [1975] 1 QB 217Richards [1974] QB 776Howe [1987] 1 AC 417

(2) Actus reus

Clarkson and Carroll [1971] 3 All ER 344Russell [1933] VLR 59

(3) Mens rea

*Giorgianni (1985) 156 CLR 473*Stokes and Difford (1990) 51 A Crim R 25Bainbridge [1959] 3 All ER 200

(4) Joint criminal enterprise and the common purpose doctrine

*McAuliffe (1995) 183 CLR 108; (1995) 130 ALR 26*Johns (1980) 143 CLR 108; (1980) 28 ALR 155*Osland (1998) 197 CLR 316; (1999) 159 ALR 170*Gillard (2004) 219 CLR 1*Clayton (2006) 231 ALR 500*Chishimba; Masaka; Mulenga [2010] NSWCCA 228Taufahema (2007) 234 ALR 1Jacobs and Mehajer [2004] NSWCCA 462Tangye (1997) 92 A Crim R 545Prochilo [2003] NSWCCA 265

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(5) Withdrawal

*White v Ridley (1978) 140 CLR 342*Rook (1993) 2 All ER 955

17. Attempt

Synopsis:

To appreciate the need for doctrines of attempt to widen the scope of criminal liability. To critically examine the physical and mental elements of attempt offences. To comprehend the need for the law to limit the scope of criminal liability for attempt offences. To evaluate the reasons why there is no defence of withdrawal for attempt offences. To consider the law on attempting the impossible. To note the relationship between attempt and complicity.

Reading:

*Hayes & Eburn, pp 466-479(1) Actus reus

*DPP v Stonehouse [1978] AC 55; [1977] 2 All ER 909*O’Connor v Killian (1984) 38 SASR 327

(2) Mens rea

*Alister (1984) 154 CLR 404*Evans (1987) 48 SASR 35*W O v DPP (NSW) [2009] NSWCCA 275Knight (1992) 175 CLR 495; (1992) 63 A Crim R 166(3) Attempting the impossible

*Mai and Tran (1992) 26 NSWLR 371*Britten v Alpogut [1987] VR 929Haughton v Smith [1975] AC 476

18. Pre-trial criminal procedure

Synopsis:

To understand the main principles underlying the law of arrest, search and seizure, and police interrogation.

To learn the elements of the law of arrest distinguishing between requirements and lawfulness. To recognise the reasons behind the codification of search warrant law. To appreciate the changes in common law and statute law in regard to powers to interrogate

citizens.

Reading:

*Hayes & Eburn, pp 546-594; 664-706

(1) Arrest

Law Enforcement (Powers and Responsibilities) Act 2002, ss 10, 99-108, 230-231

*Hussien v Chong Fook Kam [1970] AC 942*Christie v Leachinsky [1947] AC 573*State of NSW v Delly [2007] NSWCA 303

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*DPP v AM (2006) NSWSC 348; 161 A Crim R 219*Williams (1986) 161 CLR 278*Nasr v State of NSW (2007) 170 A Crim R 78

(2) Search and seizure

Law Enforcement (Powers and Responsibilities) Act 2002, ss 20-45 (search without warrant); ss 46-80 (search with warrant or authority); ss 81-87 (search, entry and seizure involving domestic violence offences)

*Lippl v Haines (1989) 18 NSWLR 620*George v Rockett (1990) 170 CLR 104; (1990) 64 ALJR 384*State of NSW v Corbett [2007] HCA 32Clarke v Bailey (1933) SR (NSW) 303

(3) Police interrogation

Law Enforcement (Powers and Responsibilities) Act 2002, ss 109-132Criminal Procedure Act 1986, s 281Evidence Act 1995 (NSW), ss 84, 85, 86, 89, 89A, 90, 137-139

*Williams (1986) 161 CLR 278*Dungay (2001) NSWCCA 443; 126 A Crim R 216*McKinney (1991) 171 CLR 468

COMPULSORY ASSIGNMENT

In Criminal Law and Procedure, there is only ONE ASSIGNMENT. This assignment is compulsory and must be submitted by all students. A pass mark is 50%. Refer to the Guide to the Presentation and Submission of Assignments for the assignment grading and assessment criteria. Students who fail to satisfy the compulsory requirement will be notified through the Results screen on the Webcampus before the examination period of their ineligibility to sit the examination in this subject. The maximum word limit for the assignment is 2,500 words inclusive of footnotes but not bibliography. The assignment is worth 20% of the student’s total marks in this subject.

The rules regarding the presentation of assignments and instructions on how to submit an assignment are set out in the LEC Guide to the Presentation and Submission of Assignments which can be accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting an assignment.

The completed assignment should be lodged through the LEC Webcampus, arriving by 11:59pm on the following date:

Compulsory Assignment Wednesday 29 June 2016 (due in the study break)

ASSIGNMENT QUESTIONS

To obtain the Criminal Law and Procedure assignment questions for the Winter Session 2016, please follow the instructions below:

1. Register online with the LEC (see page 26 of the Course Information Handbook for detailed instructions). Once you have registered, you will have access to all the facilities on the LEC Webcampus.

2. Then go into the Webcampus, select the Course Materials section and click on the link to the assignment questions for this subject.

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SAMPLE EXAMINATION QUESTION

Sam is a sole trader who operates a store that buys and sells antiques, located in Beaumont Street, Hamilton, NSW. One morning, David enters Sam’s store with an antique clock. David informs Sam that his elderly mother has recently died from cancer after a long illness and left him the clock in her will. David asks for an appraisal of how much the clock is worth and tells Sam he is not interested in selling it at this stage. David states he has “no idea” how much the clock is worth, and, because he has been very depressed since his mother’s death, he has not done any research in respect of the value of the clock. David breaks down in tears when he tells Sam how much the clock meant to his late mother.

Sam examines the clock. He believes the clock is worth at least $5,000.00 and sees the opportunity for a good deal. He tells David:

“The clock is probably worth $500.00 maximum. I’ve got a buyer who is interested in these types of clocks, but he is moving overseas soon. He wants to buy a clock immediately and I think he will pay more for the clock than it is worth. If you sell it to me now, I will pay $700.00”.

David is reluctant to sell, stating that the clock has great sentimental value and he has no intention of selling it. Sam states:

“I’ll tell you what. I’ll pay you $700.00 cash now. On top of that, I’ll donate $100.00 out of my own pocket to the Cancer Council charity. You can use the money and go on a holiday. I’m sure that your late Mum would have wanted you to be happy.” Sam has no intention of donating any money to charity.

David agrees to sell Sam the clock, stating, “You’re right, it’s probably for the best.” Sam pays David $700.00.

Later, when closely examining the clock, Sam realises that it is a reproduction clock, and not an antique. The real value of the clock is $300.00, rather than over $5,000.00. Sam is furious with himself and sells the clock to another dealer for $300.00.

One week later, David performs research on the internet, which indicates that similar clocks are being sold for prices in the range of $5,000.00 to $6,000.00. David is angry at the way he was treated by Sam, and decides to take action. David purchases a balaclava and a cricket bat. He waits outside Sam’s store until near closing time. He enters the store through an open door, after putting on the balaclava. David says, “Remember me? Don’t even think about calling the police. Give me the clock back now, or you will regret it!”

Sam replies, “I haven’t got the clock. It’s been sold. Get out! I’m not scared, you idiot.”

David states, “I’m not leaving after what you did to me. That clock meant everything to my mother. You told me it was worth no more than $500.00. Well then, give me all the money in the shop now!” David swings the cricket bat towards Sam, narrowly missing Sam’s head.

Sam removes the money from the cash register and gives it to David. David leaves the store. He counts the money when he gets home and the total amount of money is $520.00. After thinking about what has happened, David donates the $520.00 to the Cancer Council, in memory of his late mother.

Discuss the criminal liability, if any, of Sam and David.

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