Criminal Law

QUESTION

You are a criminal lawyer who has been contacted to provide advice and guidance on potential charges concerning 4 individuals: Tony Bill; Rownie Mac; Dicken Piz and The Colonial.

All four individuals have been advised accordingly that charges are to be laid against them in the coming days.

The facts are as follows:

a. Tony Bill (“Tony”)

Tony is a 23-year-old single male. He is: a bi-sexual; a non-smoker; does not drink; and never takes drugs.

Tony decided to ‘hit the town’ one Friday night at his favourite spot the ‘Retro Nightclub’ on Lonsdale Street in Melbourne. Around 9pm, Tony approached a male by the name of Johnny. Tony is attracted to his fit physic and decides to grope his backside.

Johnny is taken back by this. He then says: “Man, what do you think you are doing? Get outta of my face before I knock you out”.

Around 8am on Monday morning, the Victoria Police knock on Tony’s door. Tony allows them to enter. At this point in time, they explain to Tony that they would like to take him down to the police station for questioning in relation to an incident that occurred at the Retro Nightclub.

Tony agrees to accompany the officers after he has called his lawyer (you).

b. Rownie Mac (“Ron”)

Ron paid over $50,000.00 for an overseas retreat. However, it was soon discovered that he was scammed and had therefore lost all that money.

A friend of Ron’s somehow discovered who this scammer was and where they resided. They inform Ron who decides to pay this person a visit and ‘teach them a lesson’.

After monitoring the residence, he discovers that the scammer is small in stature and lives alone. Ron is confident that he can confront this person alone without fear of appraisal or being seen.

Ron comes back the next day around 7pm with a small rolling-pin concealed under his jacket. He knocks on the door. Upon the scammer opening the door, Ron quickly pushes them to ground and then shuts the door. At this point, he pulls out the rolling-pin and whacks them across the head causing them to become dazed. After a quick scope of the premise, Ron discovers that no-one else is inside. He closes the blinds and then heads back to the scammer. He then says: “No one steals money from me. I’m going to teach you a lesson and you will never walk again”.

Ron repeatedly hits the scammer with the rolling-pin. He targets the scammers entire body. The attack last around 45 seconds. As Ron leaves, he says: “Let this be a warning to you”.

The neighbour had heard the attack and had called the police. The Police arrive and notice the scammer lying unconscious on the floor. They call an ambulance, but the scammer dies on the way to the hospital from the injuries sustained from the attack.

CCTV footage from the neighbour positively identifies Ron, and after some days pass, the Police locate, arrest and take Ron into custody

c. Dicken Piz (“Dicken”)

Dicken is: a non-drinker; is anti-drugs; and a fitness fanatic.

One weekend, she is with her friend Reddy Rooster at her farm in Ballarat.

Dicken starts bragging to Reddy how good she is at shooting her rifle – a Winchester 22. Dicken insists on showing Reddy how good she is. At this point, she convinces Reddy to walk 10 meters from her and balance an empty beer bottle upon her head. Dicken then says that on the count of three, she will shoot the bottle clean off Reddy’s head without incident.

Dicken counts to three and then pulls the trigger. Unfortunately, she misses the bottle and instead shoots Reddy in the temple, causing Reddy to die instantly from the shot.

Dicken calls an ambulance. They in turn call the Police who arrest Dicken and take her into custody.

d. The Colonial (“Col”)

Col is out with friends late one night. They were frequenting various bars and establishments. Col and his friends eventually settle at the Royal Melbourne, where they confine themselves to the back left corner – right near the back bar.

Col notices an individual by the name of Sob Wey (“Sub”) looking at him. Shortly after, both Col and Sub walk towards the back bar to order further drinks. Upon reaching the bar, Col decides to break the ice and say to Sub: “Hey, how is your night going mate”. Sub responds: “I’m not your mate, Pal. Talk to me again and I will smack you in the head”. Col, a mild-mannered individual, smirks and looks away back to the barman to order drinks.

Sub, who is little intoxicated and hot-heated, walks up to Col and says: “Want to take this outside?” Col responses: “Get stuffed you jerk”.

Sub then goats Col about his appearance, his mother, his sister, etc. At this point, Col tells Sub: “OK. Let’s do this”.

Col and Sub go outside, and a fight commences. Unbeknownst to Sub, Col could handle himself - having spent many years training as a kickboxer and in other areas of martial arts. 30 seconds into the fight, Col lands a punch square between Sub’s eyes. Sub collapses and dies shortly after from internal injuries.

An ambulance and Police are called. Col is taken into custody.

Required

With reference to both statute and case law, advise Tony, Ron, Dicken, and Col of the most appropriate offence they will each be charged with. Confine each to one offence only.

Confine your answers to those charges as discussed in homicide sexual offences. Do not identify/discuss defences or other areas of law.

SOLUTION

MEMORANDUM OF ADVICE

Introduction:

This assignment analyses four different cases which come under Criminal provisions. The first is a case of Sexual offence and rest three deals with various dimensions of homicide like manslaughter and murder. We analyse each case on its merits.

Here we go through each case on two parameters

Charges or offences charged with and
Defences by the accused against the prosecution.

This assignment deals with only two offences- sexual assault and homicide, and we confine each case to only one crime.

The most important elements of any crime are Actus Reus and Mens Rea. Latin Maxim Actus Non Facit Reum, Nisi Mens Sit Rea means an act without a guilty mind is not a crime. Criminal intent is a necessity for making criminal charge.

Tony Bill

Charges against Tony

Tony will be charged with sexual assault. Tony made a sexual advance towards Johnny by groping his backside, which he resisted. The act committed by Tony constitutes sexual assault.

Sec 35 B of Crimes Act 1958 defines “touching “as:

(1) Touching may be done—

(a) With any part of the body; or

(b) With anything else; or

Therefore, Tony has done the act of touching and therefore can be charged with sexual assault as explained in Sec 40 of Crimes Act 1958.

Sec 40 Crimes Act 1958 explains Sexual assault as

(1) A person (A) commits an offence if—

(a) A intentionally touches another person (B); and

(b) the touching is sexual; and

(d) A does not reasonably believe that B consents to the touching.[2]

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

Here there is no consent from the part of Johnny; therefore, Tony has committed the crime of sexual assault.

[1] Crimes Act 1958 (VIC) s 35B.

[2] Crimes Act 1958 (VIC) s 40.

Defences:

The possible defences Tony can take are:

He can plead guilty and argue that the act done by Tony was not planned and was instantaneous and, therefore, without any criminal intent.
Tony can plead not guilty by arguing that it was a crowded place and the act was not sexual.
Sec 36A of Crimes Act 1958[3] talks about Reasonable belief in consent and here Tony can plead that the initial gazes from Johnny made an impression that he was attracted to Tony. Therefore, he can argue for reasonable belief in consent.

Tony here is young, a non-smoker, a non-drinker, and not in the habit of using drugs. He can produce witnesses in this regard who could give testimony about his conduct and character. This is proof that he is not a habitual offender. It is common to give proper merit when the accused comes with character references. Moreover, there is no aggravated sexual assault in this case.

Rownie Mac

Charges against Ron

In the state of Victoria, Australia murder is considered under common law offence and is explained as premeditated killing or an act of killing executed in furtherance of a plan.

R v Crabbe[4] is a landmark decision which held that a voluntary action which causes death shall be deemed as murder in case, that action is performed with an intent to cause death. The court also held that an intention to cause serious bodily injury is a sufficient to prove the intention to cause death.

Ryan v The Queen[5] talks about the importance of voluntary acts or the importance of men’s rea. In this case, court reiterated that without guilty mind, the act is not a crime.

In this case, repeated attacks by Ron prove his intention for murder. Section 3 of the Crimes Act 1958 (Vic)[6] deals with the maximum penal provision for murder, that amounts to imprisonment for life.

Premeditated intent of Ron can be proved based on the various facts:

Ron was found watching the premises on the day before
He expressed his intent by saying, “teach them a lesson”
After attacking the scammer, he said, “let this be a warning to you”
He carried the murder weapon along with him

All the above facts very well prove that Ron had the mens rea to murder the scammer.

In R v Miller[7] the court held that intent to cause serious injury can be shown where the accused inflicts grievous injury to the victim.

[3] Crimes Act (1958) (Vic) s 36A.

[4] R v Crabbe [1985] HCA 22; 156 CLR 464; 59 ALJR 417; 58 ALR 417; 16 A Crim R 19.

[5] Ryan v The Queen [1967] HCA 2; 121 CLR 205; 40 ALJR 488; [1967] ALR 577.

[6] Crimes Act (Vic) s 3.

[7] R v Miller [1951] VLR 346; [1951] ALR 749.

R v Crabbe[8] also held that it is immaterial that the accused is indifferent to an consequence that the accused believed death would not have happened.

When leaving the scene, Ron knew that the scammer was heavily wounded and the person could die eventually. Even though he knew about the seriousness of the situation, he never attempted to call the ambulance or report it to the police. This adds to the intention to kill the victim.

Recklessness

Pemble v R (1971) [9]held that an accused is said to be reckless if the act is with the knowledge that the same would lead to the victim’s death.

Ron can be charged with reckless murder, and the recklessness can be proved based on the following facts:

The fact that Ron continued his attack even after the victim became unconscious
The attack lasted for 45 seconds, and it means that it was not a single-blow attack
Ron had targeted the entire body of the scammer.

When put together, Ron will be charged with murder.

Defences:

Ron can plead for manslaughter by saying that he has no intention to murder but was just to avenge the loss of money.
He can plead insanity if a doctor can certify his mental condition.
Self-defence can be pleaded and can state that Ron had reasonable apprehension to be attacked when he asked for the money to be returned. He had used reasonable caution to protect himself from such an attack and take the rolling pin with him. In the events that followed, he was left with no choice but to counter-attack, which led to the victim’s death.

Dicken Piz

Charges against Dicken

The incident is something a reasonable person won’t do in his right mind and such lethal games are illegal in most countries. For any homicide to be proven in a court of law, it shall have two elements –Mens Rea and Actus Reus.

The Mens Rea to constitute murder are:

1. an intention to kill;

2. an intention to inflict grievous (or serious) bodily harm; or

3. recklessness as to causing death.

This case does not have the first two, so she can be charged with Reckless Murder.

[8] R v Crabbe [1985] HCA 22; 156 CLR 464; 59 ALJR 417; 58 ALR 417; 16 A Crim R 19.

[9] Pemble v The Queen (1971) 124 CLR 107.

In R v Crabble[10], Douglas Crabbe, when he was rejected for alcohol by a local bar, smashed his truck into the bar, killing 5 people and injuring many. He was tried for murder under recklessness. In this case, it was held that any voluntary act leading to death is murder if it is done with an intent to cause death.

R v Pagett, accused held an innocent girl as a shield against the police shooting, and in the events that followed the girl died. The court held that the accused’s act needs not be the only cause of death. Instead, there could be multiple causes which have led to the death of the victim. In such a scenario, whether the accused’s act has significantly contributed to the death.

In Pemble v R,[11] it was held that a person is considered reckless in case, the person has acted with the knowledge that the conduct would probably cause death.

Reckless murder is where the accused/defendant was aware that their act/omission produces a significant danger of death or grievous bodily injury) serious injury to the victim, ignores the risk and continues to act/fails to act, and a human death result. Examples of reckless homicide include accidentally firing at another person, causing death during lethal games like Russian Roulette etc. These situations may result in murder charges, depending on the corroborating evidences and circumstances.

Defences:

The possible defences Dicken has against the charges levelled against her are:

Dicken can plead not guilty based on the fact that mens rea is absent. Absence of mens rea is observed throughout the case; without the criminal intention, the case won’t stand a chance in a court of law.
Dicken can plead not guilty as Reddy is the one who allowed putting the bottle on her head and she has willingly participated in target practice. This shows that Reddy actively participated in the act, so Dicken is not guilty.

In Royall v R (1991),[12] Kelly Healey died due to injuries she has sustained from falling from her apartment. Prior to the falling, she was heard having violent arguments with her boyfriend Mr Royall. Prosecution couldn’t link Mr Royall directly but has argued that whether he pushed her or fell when avoiding the attack or has died while avoiding violence, the ultimate responsibility lies with Mr Royall. Decision on an event that causes the victim’s death shall be taken independently by the victim itself and free from threat or any other influence. Here there was no element of threat or violence or even mens rea is absent.

[10] R v Crabbe [1985] HCA 22; 156 CLR 464; 59 ALJR 417; 58 ALR 417; 16 A Crim R 19.

[11] Pemble v. The Queen (1971) 124 CLR 107.

[12] Royall v The Queen [1991] HCA 27; 172 CLR 378; 65 ALJR 451; 100 ALR 669; 54 A Crim R 53.

The Colonial (Col)

Charges against Col

In this case, both the victim and the accused were in an intoxicated state. Even though intoxicated, Col stayed resistant to the provocation initially and lost control later. They took the fight outside, and being a trained kickboxer, he could easily knock out Sub. Sub, being inebriated, collapses within 30 seconds and succumbs to death. Therefore, Col will be charged with involuntary manslaughter under the following laws.

As per Crimes Act 1958 3A Unintentional killing in the course or furtherance of a crime of violence (Constructive Murder)

A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.[13]

Sec 3A talks about constructive murder wherein one causes the death of a person without criminal intent but in furtherance of the commission of a violent crime (bar fight leading to the death of a person involved). Bar fight herein is referred to as the ‘foundation offence’. There is a time limitation to this crime to be added to the charges; therefore, the victim’s death shall occur either ‘during’ or ‘immediately’ after the foundation crime.

As per Crimes Act 1958 Sec 3B -Provocation is no longer a partial defence to murder

Even though the initial provocation came from Sub, Col could not plead provocation by the other party as a defence in this case.

Sec 4A of Crimes Act 1958 [14]explains manslaughter.

Manslaughter can be of two types –voluntary and involuntary depending on the criminal intent involved. The main essential of Voluntary manslaughter is the mens rea or intent to kill. Often, a jurist’s mind is whether voluntary manslaughter is murder. The charge of murder is generally reduced to manslaughter when the intent of the accused is negated or corroborated by the circumstances like provocation, intoxication, heated arguments etc.

R v Crabbe (1985) is a landmark decision which held that a voluntary act causing death is murder if that act is done with the intent to cause death. The court also held that an intention to cause serious bodily injury is sufficient to prove the intention if it results in death.

In R v Miller (1951), it is held that the intention to cause GBH or serious injury can be proved where the accused person acts intending to cause very serious harm to the other person.

Defences:

The defence arguments which Col could plead are:

[13] Crimes Act 1958 (Vic) s 3A.

[14] Crimes Act 1958 (Vic) s 4A.

The intent was never to endanger other person and there is no mens rea. It was a case of bar fight went wrong. The entire crowd at the bar have witnessed the same and therefore they could testify this. Since the intention to kill is absent he is not guilty of the crime.
Both the victim and the accused were intoxicated and could not therefore plan a murder or anything of the sort. The events that followed were not in their right mind, and it was purely incidental and therefore no mens rea involved.

Conclusion

Here we go through four cases involving sexual assault and homicide. Homicide is indeed a general term and includes both murder and manslaughter. The first case deals with sexual assault, and cases 2, 3, and 4 deals with homicide. All the cases have been discussed on their merits. Courts are at the discretion to add, alter and abrogate the charges during and before the trial based on the merits. The laws involved in these cases are derived from Common law or from statutes, especially the Crimes Act 1958.

Every crime discussed here is analysed based on various aspects like mens rea, actus reus, circumstance leading to the crime, mental state of the accused, statutory provisions, common law practices and the moral justice involved.

BIBLIOGRAPHY

A Cases

Pemble v. The Queen (1971) 124 CLR 107

R v Pagett (1983) 76 Cr App R 279

R v Crabbe [1985] HCA 22; 156 CLR 464; 59 ALJR 417; 58 ALR 417; 16 A Crim R 19

Ryan v The Queen [1967] HCA 2; 121 CLR 205; 40 ALJR 488; [1967] ALR 577

R v Miller [1951] VLR 346; [1951] ALR 749

Royall v The Queen [1991] HCA 27; 172 CLR 378; 65 ALJR 451; 100 ALR 669; 54 A Crim R 53

B Legislation

Crimes Act 1958 (VIC)