...Criticisms and Reforms – General Defences The current law regarding general defences is extremely unsatisfactory. There are numerous problems with both the definitions of the defences and their operations. The first defence I am going to discuss is insanity then followed by consent. * The definition of insanity is said to be “medically irrelevant” as the definition has not advanced since 1843, even though the Royal Commission on Capital Punishment received evidence from doctors that the definition regarding insanity was “obsolete and misleading” it is also particularly obscure as the rules do not distinguish between defendants who pose a danger to the public (the main purpose for the defence) and those who do not. Many would be shocked to see epilepsy and diabetes fall under insanity alongside with dangerous mental disorders. Lord Bramwell stated “the present lays down such a definition of madness that nobody is hardly ever mad enough to be within it.” The Law Commission recommended for diminished responsibility that a reform should be made and that the definition should be modernised to take into account advances in medicine and psychiatry. They proposed the term ‘recognised medical conditions’ should be used as it is more flexible and allows room for medical developments. I believe that both of these reforms for diminished responsibility should be used and also applied for insanity. I believe it will help improve the current law as it will be much more flexible allowing...
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...The R v stone decision clarified the difference between mental disorder and non mental disorder automatism. Automatism according to Yeo is the lack of control in regards to actions they do not want to commit. Specifically in terms of law, the defence of automatism, under R v Stone, should be considered like mental illness. Wherein the burden of proof is on the accused and expert testimony is valued. Yeo also praised the use of the internal cause test and the continuing danger test. The internal cause test looks at whether or not the automatism is the result of something biological or psychological. The continuing danger test is a method used to determine whether or not that the accused will or will not be a danger to society if they were released. Both of these tests need an expert to conduct or relay the results of the tests. This article is an exploration into the benefits of the R v Stone...
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...What is Actus Reus? Actus Reus is the Latin word for the guilty or wrongful act. It is the physical element of the offence. The act or omission must be voluntary (deliberate). If the Defendant has no control of his actions the Actus Reus has not been committed. Actus Reus when proved beyond reasonable doubt in conjunction with Mens Rea ‘the guilty mind’ produces criminal liability. The Actus Reus of an offence is determined through sources, case law and statutes. The main elements of Actus Reus include: * Conduct * Voluntary Behaviour * Causation * Circumstances * Consequences * State of Affairs Conduct The accused must do something to commit an offence. The conduct itself might be criminal. For example taking money from another. The conduct of taking money from another represents the Actus Reus of theft. The Actus Reus of the crime is complete upon the conduct. Examples include: * Theft * Perjury * Using force to obtain property belonging to another * Rape * Possession of drugs Omissions (not doing something) A person cannot be liable for a failure to act unless the Defendant is under legal duty to take action. Duty to act arising from a contract – Pittwood [1902] When a person has a duty to act because of a duty arising from a contract, failure to perform the duty can make you criminally liable. The Defendant was employed by a railway company; he was a level crossing keeper. The Defendant negligently left the...
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...reasonable man would have, by taking action in creating a higher fence around the cricket ground to minimise the risk of people outside the ground being injured by the cricket balls. However, in Paris v Stephney borough council, the court held that in light of potential serious consequences posed by welding to an employee with only one eye, the employer should have taken reasonable action in providing safety goggles. Liability under the occupiers liability act 1957 also required proof of fault. Fault is also relevant to the general defence of a contributory negligence under the law reform act 1945. S.1(1) damages are reduced according to the claimants responsibility for the damage. In Froom v Butcher, the claimant’s damages were reduced by 25% due to his failure to wear a seatbelt. There are however areas of tort in which there is no need to provide fault. For example, nuisance is a strict liability tort. The defendant cannot claim as a defence that he took reasonable care to avoid causing nuisance. The rule in Rylands v Fletcher is another strict liability tort, however since the case of Cambridge water company v Eastern countries leather plc (1994), negligence principles have applied in respect of the type of damage caused having to be foreseeable. It is also important to consider the principles of vicarious liability which imposes liability for someone else’s fault. In...
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...Always discuss coincidence (Thabo Meli, Royall) and BRD (prosecution, differs for offence and defence) Chapter 5 – Homicide: Murder and Involuntary Manslaughter 5.1 Patterns of homicide 423 Study by A.Wallace. 1968-81 * -relationship of victim to offender. * -homicide is a crime that is socially, historically and culturally determined. * -homicide comprises a variety of offenders and victims in different social settings. * -Homicide in NSW is largely interpersonal in nature, rather than instrumental or ideological. * -Majority of interpersonal killings involved intimates. * -Homicide patterns reflect cultural norms. * -homicide is spontaneous rather than premeditated crime. * -Homicide offenders exhibit a wide range of moral culpability. 5.3 Murder S18 Crimes Act (1900) NSW S 18. (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by penal servitude for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. S 18 (2)(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall...
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...in assessing whether or not he is at fault. However, to be found guilty of most criminal offences (true crimes) both an AR and MR must be proved. The AR also includes elements of fault. These elements relate to the level of responsibility, a positive voluntary act is considered more blameworthy than an omission. The AR of an offence must be voluntary or done with free will for there to be any criminal liability. The D must be in control pf their actions. There are in fact situations where the AR is involuntary and the D is therefore not at fault. Automatism shows the D has no fault if they are not in control of the act they have committed. Quick for example could plead automatism as it was argued that the insulin he had taken made him attack a mental patient, therefore it was not his fault. This lack of fault is reflected in the outcome: a successful plea of automatism results in an acquittal. Self-defence is also a complete defence affecting the AR of a crime, but the D is saying ‘I did it, but there was a good reason to do so’. The case if Williams is a good example of this. Exceptions to the rule that the AR must be voluntary are the ‘state of affairs’ cases. Here the D may not be at fault but is still liable (absolute liability) there is not fault requirements for the AR...
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...Faculty of Law, Governance and International Relations Law Section LL1014 CRIMINAL LAW I Autumn Semester 2011 ESSAY AND QUESTION Introduction The below report will be discussing the criminal liability of husband Tom, and Nurse Freya in the death of Rachel. An analysis will be conducted on each defendant and charges against each of them will be established along with definitions of each offence. The principles of causation, actus reus (AR) and mens rea (MR) will be discussed and relevant laws applied to the facts within each case and relevant laws applied. The first section of the report, R v Tom we will be discussing the criminal liability of Tom in the death of Rachel in which both murder and manslaughter charges will be considered. The AR for both of these offences is the same and can be defined as “The unlawful killing of a human being under the Queen’s peace.”[1] Assuming the victim was alive that this scenario was not during a war, it remains to establish that this was an unlawful killing. In the case of R v Freya we will focus on the AR of omission and determine whether the defendant Nurse Freya did the act or omitted to do a legally recognised duty which resulted in the death of Rachel. We will also decide whether the act was deliberate, unlawful, and a significant cause of death. In the case of R v Freya only a charge of manslaughter will be considered as Nurse Freya had neither the direct...
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...In the case of Woolmington v DPP , Woolmington was charged with murdering his wife but he raised the defence that he had shot her accidentally. The trial judge instructed that after the prosecution proved that Woolmington had shot his wife then Woolmington bore the legal burden (hereinafter referred as 'LB') of proving his argument that it was a pure accident. In this circumstances, the court was meaning that the defendant bore the burden of establishing any defence he wished to rely on. However, the House of Lords (hereinafter referred as HOL) held that it was a misdirection and rejected this approach. Viscount Sankey LC stated, which is now a famous passage named the golden threat rule: “ Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of...
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...Common Assault 42 a. Psychic Assault 42 b. Battery 44 Mens Rea 47 Intentional Assault 47 Reckless Assault 47 Negligence 48 Aggravated Assault 48 a. Assault Occasioning Actual Bodily Harm (ABH) (section 59) 49 b. Reckless GBH or Wounding (section 35) 50 c. Maliciously Wounding/GBH with Intention to Inflict GBH (section 33) 51 SEXUAL ASSAULT 54 Actus Reus 54 a. Sexual Intercourse 54 b. Absence of Consent 55 Common law Rules 57 o Doctrine of marital immunity abolished at common law (L 1991) and under statute (s61T(a) NSW) 57 Mens Rea 57 Intention 57 Mistaken Belief in Consent 57 Recklessness 58 DEFENCES 60 Insanity 60 Elements 60 Automatism 61 Sane and Insane Automatism 61 Intoxication 62 Burden of Proof 62 Self-induced v Involuntary Intoxication 62 Actus Reus 62 Mens Rea 62 Self-Defence 64 Duress 65 Elements 65 Necessity 65 Elements 66 Burden and Standard of Proof *...
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...Charter Influence On Canadian Politics Ever since the Charter came into effect in 1982, it has had major impact on Canadian politics and law. The Charter allows the judicial and legislative branch to be transparent and able to be holding each other accountable. Many would argue that the charter has given court’s infinite powers and they control the legislative branch. However the courts perform a policing function for legislations to see if they violate the master law, the Charter. Therefore if the legislation branch does their “first order Charter duties” properly, which is charter proofing their laws, they will not go for review with the Supreme Court of Canada (Maclvor 138). Each branch of government has their own responsibilities to pursue and they have different resources to achieve them. For example the, the judicial branch’s responsibility is to protect the rights and freedoms of individuals where the legislation branch has to make laws to tackle down social issues (Maclvor 142). Each branch has their own resources to help them with their responsibilities, for instances the Legislative Branch have Department of Justice and Standing Committee. Both of these committees work for the government helping doing research and formulating legislations as well charter-proofing legislation so they don’t go violates the rights and freedoms of Individuals (Maclvor 142). The Charter has allowed for democratic dialogue between both branches of government, allowing for constructive...
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...determine whether A was in control of his physical actions, the death-causing Act must be recognised. As shown in Ryan v R the death causing action can consist of multiple acts . There was a series of death causing acts in this case – the relevant acts performed by A are the initial arrow wound to the shoulder and then the main death-causing act (according to medical evidence) the head collision with the concrete curb. My opinion is that of all the actions together showed the voluntariness was the “complex of acts” all performed by the accused. I do not have enough information relating to A’s sobriety however it does not indicate that he was under the influence of any alcohol or drugs. In this situation the defence would be arguing his actions were a response of automatism. Due to the fact that A claimed in the police statement that ‘when pulling back the bowstring I lost my balance, the dirt just gave out and I slipped and in doing so reached out reflexively to brace the fall. To rebut I would be more incline to follow the judgment of Murry v R, similar to this case the defendant fully voluntarily put himself in a situation where he could intentionally cause harm . Implying that A had full control over his body when putting the arrow in the bowstring and pulling the bowstring back, even if at this stage he had lost his temper. Causation To be found guilty of murder it must be proven beyond reasonable doubt that the accused caused the death of the victim . Causation...
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...Unit 24 - Assignment 1 Introduction For this assignment I will be describing the elements of a crime which are Mens Rea and Actus Reus. Mens Rea is Latin for 'guilty mind' and it is the mental thinking behind the crime which has been committed, it refers to the intentions of the person who committed the crime. For example, when someone commits theft their intention is to permanently deprive the owner/s of the object. Actus Reus is Latin for 'guilty act' and it can either be an act or a failure to act. For example, when someone commits theft they must've physically taken something. The three C's of Actus Reus must be taken into account when investigating a crime they are: • Conduct - this is the act of damaging or destroying something/someone. • Circumstances - this is the fact that the property must belong to another. • Consent - this is the resulting damage or destruction of the act. Causation Causation, also known as result crimes is when a consequence has come about as a result of the Actus Reus being committed. When establishing causation the first step is to ask 'was the defendant's act a cause in the fact of the specified consequence?' This can be answered by asking 'But for what the defendant did would the consequence have occurred?' If the answer is YES then the result wouldn't have occurred if not for the defendant's acts and, therefore causation is established. A case which shows the chain of causation is the case of R v White (1910) the defendant put cyanide...
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...The media directly influences society’s perceptions and reactions towards the insane criminal. People base their judgement of the criminal and the insane on their representations in the media, which are usually based on stereotypes. Whether insanity is a prerequisite quality for being a criminal or criminality is a manifestation of insanity, there is a definite link between the two, that has been strengthened by the media’s portrayal of the insane criminal. Michel Foucault discusses people’s tendencies to classify people as “normal” or “abnormal” (Faubion 1994). “Abnormal” refers to anyone who deviates from the norm and as a result, we treat the criminal and the insane in a similar manner: We remove them from society in order to give ourselves peace of mind, yet this treatment is not a new phenomenon. For centuries, society has attempted to marginalise both the criminal and the insane. In Madness and Civilization: a History of Insanity in the Age of Reason (1965) Foucault describes this classification as a means to exclude certain types of people from society, by placing them in prisons or institutions. They are taken out of the social order and locked away, to present a “safer” world for those who consider themselves “normal”. We classify the criminal and the insane as “abnormal” without truly understanding the underlying issues of criminality and insanity. This begs the question of what the criminal and the insane actually have in common? Foucault states that criminals...
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...Legal Aspects of Intoxication Aditya Vikram Yadav Student Chapter 1 Abstract Intoxication as defined in S. 86 has remained a convenient defence in numerous murder cases, as it allows for acquittal in case of temporary insanity due to drunkenness. Through this paper we explore the jurisprudential history and the legal aspect of intoxication and find ways to bypass the landmark judgement of Basdev v. State of PEPSU(1956), which established the doctrine of insanity based on previous English judgements. This paper seeks to find ways for the police to establish guilt in such cases. S. 86 Scope of Section – The Indian Courts attribute the same knowledge to an inebriated person as they do to when he is sober. If the man has not gone very deep in drinking, the court can gather from the facts his intention, and whether the act was intended. Therefore, in cases where intention is essential, drunkenness is a defence. This section creates an artificial rule for effect of evidence and significance of facts, and the section must be read as it is and construed strictly. No knowledge or intention further of that of a sober man can be established to an intoxicated person. Drunkenness where not available as a defence can be offered as a mitigator of sentence. The section makes clear that intoxication has no effect on a person’s knowledge, and he must be presumed to cause the consequences of his acts. The difference between S. 85 and S. 86 is essentially based on whether the drunkenness...
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...Unit 24 - Assignment 1 Introduction For this assignment I will be describing the elements of a crime which are Mens Rea and Actus Reus. Mens Rea is Latin for 'guilty mind' and it is the mental thinking behind the crime which has been committed, it refers to the intentions of the person who committed the crime. For example, when someone commits theft their intention is to permanently deprive the owner/s of the object. Actus Reus is Latin for 'guilty act' and it can either be an act or a failure to act. For example, when someone commits theft they must've physically taken something. The three C's of Actus Reus must be taken into account when investigating a crime they are: * Conduct - this is the act of damaging or destroying something/someone. * Circumstances - this is the fact that the property must belong to another. * Consent - this is the resulting damage or destruction of the act. Causation Causation, also known as result crimes is when a consequence has come about as a result of the Actus Reus being committed. When establishing causation the first step is to ask 'was the defendant's act a cause in the fact of the specified consequence?' This can be answered by asking 'But for what the defendant did would the consequence have occurred?' If the answer is YES then the result wouldn't have occurred if not for the defendant's acts and, therefore causation is established. A case which shows the chain of causation is the case of R v White (1910) the defendant...
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