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Question: issue advise on the possible charges that might be laid...

Question details

Hi friend, I need your help in the draft below:

1.      Analyse the scenario for issues concerning criminal liability.

2.      Research relevant law and procedure.

3.      Follow IRAC for each potential charge – Issue, Rule, Application, Conclusion

4.      Issue – Identify the relevant charge or charges that apply in this case and the elements that must be made out.

5.      Rule – Identify the statutory or common law rule(s) to consider in deciding whether the charge(s) can be established (the relevant law).

6.      Application – Apply the relevant law to the material facts. Analyse the material facts and resolve any relevant ambiguities.

 

7.      Conclusion – Present an informed opinion on reasoning.

 

ISSUE: Advise on the possible charges that might be laid against Mark.

INTRODUCTION

Mark could be charged with murder, under s 18 of the Crimes Act 1900 (NSW). The elements of this crime are defined at common law. The prosecution must prove all offences beyond a reasonable doubt. Mark can raise a number of defences, for example, that the death had occurred by accident for which no criminal responsibility would attach. All defences must be raised to the standard of the balance of probabilities (Woolmington v DPP [1935] AC 462).

For the prosecution to prove a murder charge, three elements must first be met. Murder, as defined by s 18(1)(a) Crimes Act 1900, is made out where a voluntary act or omission of the accused causes the death of the deceased and the act is committed with:

 

1. an intent to inflict grievous bodily harm, or

 

2. an intent to kill, or

 

3. reckless indifference to human life.

 

First element (physical element) - The first element of murder, the death of the deceased, was obviously proved.

The second element - Causation of death.

The prosecution must prove beyond a reasonable doubt the death-causing act has caused the death of the victim.

 

Law principle:

 “the accused must take the deceased as he finds him”. That is a shorthand reference to the principal recognised by Taylor and Owen JJ in Mamote-Kulang v The Queen (1964) 111 CLR 62, 67; R v Blue; The Crown v Jordan - substantial cause.

 

Application1:

Presence of alcohol

What was the cause of death? Was it leaning over the street? Or was it letting go of the shirt?

Capacity related debate?

Cause of death the falling and suddenness of impact; organ failure?

Or was the cause of death by the car?

How the high was the fall? Is it likely that the general impact could have completely stopped the brain stem activity (death in a medical sense)?

 Third element - intention (fault element).  Was Mike attempting to perform a citizen’s arrest under s 231 of the Law and Enforcement (Power and Responsibilities) Act 2002 (NSW) but did so with too much force? He was authorised to do so under s 100, however, did he apply a force that is aligned with the statutory test?

Kill or grievous bodily harm?: In some cases, there may be little difference between doing an act with an intention to kill (or to inflict grievous bodily harm) and doing an act in the recognition that it would probably cause death: Campbell v R at [311].

 

Application2: The fake push involved carelessness; consider also potential reckless indifference?

 

Intent based on the words 'you could have killed me' and 'I will get you for that'. Striking Vengence motive?

MANSLAUGHTER

If the jury was satisfied beyond a reasonable doubt that the accused had caused or substantially contributed to death “by administering a fake push” but were not satisfied that he had the intent required for murder, then they had to consider the elements of manslaughter by the unlawful and dangerous act.

Whether voluntary or involuntary?

Law relating to manslaughter: Manslaughter must be left to the jury as an alternative charge to murder where it is open on the evidence or, in other words, where such a verdict is viable: Nguyen v The Queen (2013) 87 ALJR 853 at [23]; James v The Queen (2014) 253 CLR 475 at [19]–[23]; Martinez v R [2019] NSWCCA 153 at [78]; Lane v R [2013] NSWCCA 317 at [39], [100]–[102]. The jury should be instructed about the availability of a verdict of manslaughter regardless of the attitude taken by the parties, and even where one or both of the parties object: Lane v R at [39]; R v Kanaan (2005) 64 NSWLR 257 at [75]; Penza v R [2013] NSWCCA 21 at [168]–[176]. The duty extends to leaving the possibility of returning a verdict of manslaughter on a different basis to that proposed by counsel at trial: Martinez v R [2019] NSWCCA 153 at [73], [78].

Section 25A(7) Crimes Act 1900 provides that in a trial for murder the jury may return an alternative verdict for an offence of assault causing death while intoxicated under s 25A(2) or assault causing death under s 25A(1). Sections 52AA(4) and 52BA(4) Crimes Act permit the jury to return an alternative verdict for the offences under ss 52A and 52B where the accused is indicted for murder or manslaughter.

Intoxication

Law relating to intoxication: The effect of self-induced intoxication upon the mental element of an offence is set out in Pt 11A Crimes Act 1900. In effect, Pt 11A divides offences committed after 16 August 1996 into two types: (a) offences of specific intent, and (b) other offences.

Offences of specific intent are set out in s 428B of the Act and are offences “of which an intention to cause a specific result is an element”. Generally, intoxication (however caused) is relevant to whether the accused had the necessary specific intention at the time when the act was committed giving rise to the offence: s 428C. It does not extend to the basic or general element to commit the act: Harkins v R [2015] NSWCCA 263 at [34], [39]. Although offences involving recklessness are not included in s 428B (even where recklessness is proved by intent), reckless murder is an offence of specific intent: R v Grant (2002) 55 NSWLR 80.

For other offences, self-induced intoxication cannot be taken into account when determining whether the person had the men's rea of the offence: s 428D.

It is erroneous to direct the jury in terms of whether the accused had the capacity to form the relevant intent and a direction in those terms may give rise to a miscarriage of justice: Bellchambers v R [2008] NSWCCA 235. The issue is whether the accused formed the specific intent referred to in the charge notwithstanding his or her intoxication.

It is suggested that the jury would be assisted by written directions in a case where intoxication is relevant to some counts but not others.

Application:

Does the presence of alcohol, of itself, contribute to the harm so caused in the commission of the crime?

Conclusion:

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