Proving Guilt

Question 1

Purposes of criminal law

Answer 1

1. Protect individuals from physical, psychological and economic harm
2. Protect society by defining prohibited behaviours and outlining sanctions to deter people from illegal conduct
3. Protect property from harm
4. Protect justice by providing proper processes to enforce law and penalise offenders

Question 2

Crime

Answer 2

an act or omission that violates an existing law causes harm to an individual or society and is punishable by law.

Question 3

Actus reus

Answer 3

the ‘guilty act’; the physical element of the crime

The prosecution must prove that the accused physically committed the wrongful action (or inaction).

Question 4

Mens rea

Answer 4

the ‘guilty mind’; the mental element of the crime

The prosecution must prove the accused knowingly, intentionally, negligently or recklessly committed the wrongful action (or inaction).

Question 5

principal offender

Answer 5

The person who commits the offence by carrying out the actus reus with the requisite mens rea

Or

Someone involved in the commission of a crime. They do not have to be physically present at the crime scene to be involved:

• Intentionally assisting, encouraging or directing another to commit an indictable offence
• Making an agreement with another person to commit an indictable offence together

Any principal offender can be subject to the maximum penalty of the offence

Question 6

Accessory

Answer 6

Any person who

1. knows or believes that a person has committed a serious indictable offence (punishable by five or more years imprisonment)…
2. and then acts to prevent the arrest, prosecution, conviction or punishment of that person.

An accessory can be found guilty of an offence regardless of whether the principal offender is found guilty

Question 7

Murder

Answer 7

Definition: the unlawful and intentional killing of a human being by a person who acted voluntarily and without any lawful justification.

Question 8

Elements of murder

Answer 8

1. The accused killed a human being (actus reus)
2. The accused’s act was voluntary (actus reus)
3. The accused’s act caused the death of the victim (actus reus)
4. The accused acted with intention or recklessness (malice aforethought / mens rea
5. The killing was unlawful (no valid defences)

Question 9

Death of a human being

Answer 9

The victim must be a living person, not an object, animal or unborn child.

Question 10

Causation

Answer 10

The prosecution must prove a direct, unbroken causal link between the accused’s actions and the death of the victim.

The accused’s act does not need to be the only cause, but must:

1. Be a substantial and operating cause of death

If at the time of death, the original violence committed by the accused is still a significant contributor, the death is the result of the accused’s act even if some other cause was also operating

2. Have made it a natural consequence for the victim to seek escape

Where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence that the victim would seek to escape, and the victim is injured while escaping, the injury is caused by the accused’s conduct.

Question 11

Intervening acts

Answer 11

There may be an intervening act (novus actus interveniens) that breaks the chain of causation

An act of nature such as a tidal wave or a strike of lightning. The act of nature must be spontaneous, irregular and unpredictable (e.g., not the tide which is a regular daily occurrence)

Medical treatment must be so palpably or overwhelmingly bad to be considered an intervening act (i.e., it makes the original wound a mere setting to the death rather than a substantial and operating factor).

Question 12

Eggshell skull rule

Answer 12

The accused must take their victim as they find them. Unless the victim acts in an unreasonable way, their particular beliefs, allergies or sensitives are not considered to be an intervening act

Question 13

Intentional murder

Answer 13

Malice aforethought will be established if the accused specifically:

Intended to kill the victim; or

Intended to cause the victim grievous bodily harm

GBH = really serious injury / this includes unconsciousness / purely psychological injuries are not sufficient

Question 14

Reckless murder

Answer 14

The accused knows that their act will probably or likely kill or grievously injure someone, but they nevertheless go ahead and commit that act with reckless indifference as to the consequences.

Did the accused realise that death or GBH was a probable consequence?

Did the accused expect death or GBH to be the likely result?

Question 15

Defences for murder

Answer 15

1.Cast doubt on one of the elements of murder so that the prosecution cannot prove the offence beyond reasonable doubt

2. Raise a specific legal defence to justify their action.

the accused raises a successful defence, then their act of killing the victim is not unlawful.

Question 16

Self defence

Answer 16

The accused can raise this defence if they:

1. Believed that their actions were necessary to protect themselves or

someone else from death or grievous bodily harm

2. Perceived their actions to be a reasonable response in the circumstances

Question 17

Duress

Answer 17

The accused can raise this defence if they believed that:

1. A threat of death or grievous bodily harm will be carried out unless they commit a crime; Aided the accused
2. Committing a crime is the only way to avoid the threatened harm
3. Their conduct is a reasonable response to the threat made.

Duress cannot be used if the accused is voluntarily associated with another person for the purpose of carrying out criminal activity (e.g., joining a criminal syndicate and being ordered to murder)

Question 18

Sudden or extraordinary emergency

Answer 18

The accused can raise this defence if they believed that:

1. There was a sudden or extraordinary emergency involving death or

grievous bodily harm

2. Their actions were the only way of dealing with the situation
3. Their conduct was a reasonable response to the situation

Question 19

Driving

Answer 19

Driving means that a person has substantial control of the movement and direction of the motor vehicle.

may be contested if:

The vehicle was not fully operational (e.g., dysfunctional engine, steering wheel or brakes)

The vehicle was not propelled by its own motor force (e.g., being towed, coasting downhill)

The vehicle was stationary (e.g., stopped at traffic lights).

Question 20

Motor vehicle

Answer 20

A motor vehicle is a vehicle that is propelled by a motor and is normally used on a highway.

• This includes cars, trucks, buses and motorbikes.

• This does not include trains, trams, motorised wheelchairs or bicycles

Question 21

Culpable driving

Answer 21

The prosecution must prove that the accused was driving in one of the following ways:

1. Recklessly-the driver is aware that there is a substantial risk that another person could die or be grievously. injured and yet consciously and unjustifiably disregards that risk (e.g., speeding in poor conditions)
2. gross Negligently - the driver fails, to a high degree, to observe the standard of care that a reasonable person would have observed in the same situation (e.g., driving whilst extremely fatigued - they ought to have known that they would likely fall asleep)
3. Under the influence of drugs or alcohol-the consumption of the alcohol or drugs must render the driver incapable of properly controlling the vehicle (e.g., using crystal methamphetamine for several days without sleep and then veering on the road)