Kentavius Street Jersey CDU Criminal Law Assignment - Caleb Corneloup

CDU Criminal Law Assignment

 

 

CROCODILE DEATH SCENARIO

Criminal law assignment by Caleb Corneloup

 

INTRODUCTION

There are three offenses from within the Criminal Code (NT) which best suit the facts surrounding the death of Jane and the two potential defendants. The first offense is section 160, manslaughter, the second is section 161A, violent act causing death, and the third is 156, murder. Each of these offenses is a Part VI homicide offence, and therefore a Schedule 1 offense to which Part IIAA, criminal responsibility, applies. The rules for each offense, and their application, will be presented separately. Following this there will be conclusions and recommendations for each offence as they relate to Mary and Francis.

 

RULES

SECTION 160     MANSLAUGHTER

The first physical element requires that the defendant must have engaged in conduct.[1] According to section 43AD, to engage in conduct can mean either an act or omission. Section 43AF(1) requires that conduct must be voluntary, however, section 43AF(5) prevents consideration of intoxication when determining whether the conduct was voluntary. Section 43AG(1) states that an omission can only be a physical element where the law makes it a physical element or implies that it is a physical element. However, section 43AG(2) states that an omission can be a physical element of a schedule 1 offense if the person had a duty  to act specified in Part VI, Division 1.

Manslaughter is a schedule 1 offense. Furthermore, section 152, which is a provision of Part VI, Division 1, states that where a person has given an undertaking to act, the omission of which is dangerous to human life, then that person has a duty to act.

 

The second physical element requires that the conduct must have caused the victims death.[2] Conduct causes death if it substantially contributes to the death.[3] Furthermore, where a person owes a duty to act and that duty is breached, then the person who breached the duty to act is deemed to have caused any consequences to the life or health of the person to whom the duty is owed.[4]

 

The mental element for the first physical element for manslaughter is not specified, and therefore, in most cases, section 43AM(1) operates to create intention as the necessary fault element. According to section 43AI a person who means to engage in conduct intends to do so. Section 43AS(1) prohibits self-induced intoxication from being considered when determining whether the fault element of basic intent exists. However, section 43AG(3) requires that the mental element for an omission to perform a duty referred to in section 43AG(2) is the same as the mental element for the result of the relevant schedule 1 offense.

 

The mental element for the second physical element can be either recklessness or negligence.[5] For the purposes of a result, a person is reckless if they are aware of a substantial risk that their conduct will cause a result and, it is unjustifiable to take the risk in the circumstances.[6] Whether a risk is unjustifiable is a question of fact.[7] Negligence will be satisfied if the persons conduct greatly falls short of the standard of care that a reasonable person would take in the same circumstances and the conduct is deserving of punishment under the offense.[8] Section 43AT(1) requires that where a person is intoxicated, the question of negligence must be determined by reference to the standard of care of a reasonable person who is not intoxicated.[9] Recklessness is different to negligence in that it requires that the person has subjective awareness of the risk, whereas negligence involves an objective test of what a reasonable man would do.10

 

161A     VIOLENT ACT CAUSING DEATH

Section 161A also has two physical elements. First, the defendant must engage in violent conduct towards another person and second, the violent conduct must cause the death of either the person to whom the violent conduct was directed or another person. The key difference being that the conduct must be a violent application of force. The Macquarie dictionary defines “violent” as “acting with or characterised by uncontrolled, strong, rough force: a violent blow; a violent explosion; a violent storm.[10] Secondary meanings include “intense force”. There is no need for a weapon to be used, and the act provides examples such as a blow, hit, kick, punch or strike.[11] Sections 43AD, 43AF(1) and 43AF(5) all operate in the same manner in 161A as they do in section 160. The mental element for the first physical element for section 161A is not specified, therefore under section 43AM(1), intention is the necessary fault element. Section 161A(2) states that the second physical element attracts strict liability and therefore there is no fault element.

 

 

156     MURDER

Section 156 has two physical elements. The physical elements of section 156 are the same as they are for section 160. Sections 43AD, 43AF(1), 43AF(5), 43AG(1), 43AG(2),  43AG(3), 152, 153 and 149C all operate the same in section 156 as they do in section 160. The mental element for the first physical element is intention. However, the mental element for the second physical element is intention to cause death or serious harm. Section 43AI(2) states that a result is intended where the person either means to bring that result about or is aware that it will happen in the ordinary course of events. There is no restriction on considering intoxication regarding an intended result.[12]

 

APPLICATION

SECTION 160     MANSLAUGHTER

In Francis case, since the whole exercise of the trust dare was agreed to by both defendants and the victim, and there is no dispute that Francis pushed Jane and indeed meant to push Jane, the first physical element and its relevant mental element can be clearly established. In relation to the second physical element, it seems clear that Frances’ act of pushing Jane substantially contributed to her death and therefore Frances’ act is deemed to have caused Janes death. In respect of the second mental element, there is ample evidence to prove beyond reasonable doubt that she acted recklessly. Frances was subjectively aware that there was a substantial risk that Jane could be killed. She knew that both Jane and Mary were intoxicated, and that Mary was in no condition to catch Jane since Mary had already stumbled and almost knocked her off the edge of the wharf. Frances also believed that there were about 500 crocodiles taken out of the harbor per year and she also heard Mary say that 98% percent of crocodile deaths were related to alcohol. Since she was aware of the risk, her conduct was unjustified in the circumstances as there was a high risk the Jane could be killed and there was little to gain from the conduct.

 

In Mary’s case, since she gave an undertaking to catch Jane, and an omission to perform that duty was dangerous to human life, her omission can be considered as a physical element for the purposes of section 160. Her intoxication cannot be considered when determining whether her actions were voluntary or not. Mary chose to answer her phone rather than to fulfil her duty and consequently her Jane perished. Regarding the mental element of the first physical element, Mary was at least negligent. A reasonable person, not intoxicated, would have exercised great care in such circumstances and most likely would not have engaged in the trust exercise in the first place. Considering the seriousness of Mary’s conduct, and the resulting death of Jane, Mary ought to be punished. In relation to the second physical element, Mary’s failure to catch Jane substantially contributed to her death and therefore caused her death. The second mental element is satisfied using the same reasoning for the first mental element.

 

161A     VIOLENT ACT CAUSING DEATH

Since Mary’s conduct was an omission and not an act, she cannot be charged with this offence. Furthermore, charging Frances with this offence would be difficult because it cannot be proven beyond reasonable doubt that her conduct was violent. Frances’ conduct was a single act of pushing for the agreed purpose of playing a dangerous trust game. There is no evidence that she used “uncontrolled, strong, rough force” or “intense force”.[13]

 

156     MURDER

Regarding both Mary and Frances, the application of the facts in relation to the physical elements and the mental element for the first physical element in section 156 is the same as for section 160. The only difference between sections 156 and 160 is the mental element for the second physical element. There is no evidence available to support the allegation that either Mary or Frances meant to cause the death of Jane. It was Francis belief that Mary would catch Jane before she fell. Mary’s failure to catch Jane was clearly accidental. If Mary was sober, it could be argued that she was at least aware that Jane’s death would occur in the ordinary course of events. She was aware that hundreds of crocodiles were pulled out of the harbor each year. However, because she was intoxicated she most likely did not understand the severity of her conduct and the risks involved. There is ample evidence that she was highly intoxicated as she was slurring her words, her walking was unsteady, she was stumbling and laughing at the idea of a crocodile killing one of them.

 

In conclusion, it is recommended that charges be made against both Frances and Mary Under section 160 of the Criminal Code. There is no need to charge the defendants jointly as each defendant could be convicted without having to establish the elements required for a joint conviction. In relation to the other offences, namely section 161A and section 156, there is no real prospect of a conviction and no charges under these provisions should be laid.

 

 

 

TREVOR’S DEFENCE

 

Trevor has been charged with giving a false name and address under section 134(2) of the Police

Administration Act (NT), disorderly conduct under section 47 of the Summery Offences Act (NT), assaulting a police officer under section 189A of the Criminal Code (NT) and resist arrest under 158 of the Police Administration Act (NT). There are a several other provisions relating to police powers that are applicable to the charges which need to be explored. These provisions are found in the police administration act, namely, sections 119AA(1)(b), 119AA(2)(a), 123, 128(1)(a), 128(c)(ii), 128(c)(iii) and 128(b).

 

RULES

Under section 134 (1) of the Police Administration Act a police officer may request a person’s name and address where first, the person’s name and address are unknown to police, and second, the police officer believes, on reasonable grounds, that the person may be able to help in the officer’s investigation of an offense.[14] The police officer must subjectively have the relevant belief.16 Belief on reasonable grounds is more than mere suspicion.[15] A person must not give a false name and address when a police officer makes a request under section 134(1).[16] Section

31(1) operates to make intention the relevant mental element for section 134(3).[17]

 

Section 47 of the Summary Offences Act (NT) states that anyone who is guilty of disorderly conduct is guilty of an offence. Disorderly behavior means ‘‘any substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people who may be in, or in the vicinity of, a street or public place’’[18] The person’s behavior must annoy and insult people deeply enough to warrant the interference of criminal law.[19] Under section 31(1) the relevant mental element for section 47 is intention.[20]

 

Assaulting a police officer in the execution of his duty is an offence under section 189A of the Criminal Code (NT). For the offense to be made out there must first be an assault on a police officer and second, the officer must be acting in the execution of his duty.[21] If a police officer unlawfully arrests someone then they are not acting according to their duty.[22] According to section 187 of the Criminal Code (NT), any direct or indirect application of force without consent is an assault. Under section 31(1) the relevant mental element for section 189A is intention.[23]

 

Resisting arrest is an offense under section 158 of the Police Administration Act (NT). There are two physical elements for section 158, first, the defendant must resist police arrest and second the arrest must be in the course of the police officer’s duty. Under section 31(1) intention is the relevant mental element for both physical elements.26

 

According to the Police Administration Act (NT) section 123, police may arrest a person, without a warrant, if they believe, on reasonable grounds, that the person has committed, is committing or is about to commit an offense.[24] Additionally, according to the Police Administration Act (NT) sections 128(1)(a), (b) & (c), a police officer may take a person into custody if they have reasonable grounds for believing that the person is intoxicated, in a public place, and the person cannot take care of themselves, may cause harm to himself or someone else or may intimidate, alarm or cause substantial annoyance to people or may commit an offense.[25] However, it is not an offense to drink on Mitchell street.[26]

 

Under section 119AA a police officer may search a person’s clothing and any property in their immediate control, without a warrant, if they suspect, on reasonable rounds, that a person, in a public place, has an offensive weapon in their possession.[27]

 

Finally, section 23 of the Criminal Code (NT) provides a defense for any offense, other than a Part IIAA offense, if the act was authorized, justified or excused. Section 29(1) & (2) of the act states that a person is not criminally responsible for engaging in defensive conduct which is necessary to defend themselves or to prevent or terminate unlawful arrest and the person perceives the conduct is a reasonable response in the circumstances. When a defense under section 29(1) & (2) is raised, the defendant bears an evidentiary burden and the prosecution bears a legal burden to prove beyond reasonable doubt that the defendant did not act is self-defense.[28]

 

The only charges relevant to the mandatory sentencing provisions in the Sentencing Act (NT) is the assault police charge.[29] According to section 78CA(1)(b), the assault police charge is a level 5 offense. An aggravated assault is also a level 5 offense.[30] The minimum sentence for a repeat level 5 offense is 12 months imprisonment.[31]

 

APPLICATION

When Senior Constable Mark Lawrence approached Trevor, his intention was to confiscate his alcohol and take him into protective custody. He believed that Trevor was committing an offense, but his belief was not based on reasonable grounds. There was no reason to believe Trevor was intoxicated and in need of protective custody since he was walking normally and minding his own business. He was not committing any offense, as drinking is not prohibited on Mitchell street, and he was not acting disorderly as his conduct was not disturbing other members of the public. Therefore, SC Lawrence had no lawful reason to require Trevor’s name or address. Furthermore, SC Lawrence was aware of Trevor’s name and address and therefore was unable to rely upon section 134(1) of the Police Administration Act (NT) and Trevor was under no obligation to provide his details.

 

At the time SC Lawrence grabbed Trevor by the shoulder and arrested him, his belief that Trevor had committed an offense was not based on reasonable grounds and therefore, the arrest was unlawful. Regarding the assault and resist police charges, SC Lawrence was not acting in the course of his duty and it can be reasonably argued that Trevor’s response of breaking free from

SC Lawrence’s grip and pushing SC Lawrence away with one arm was justified since he was trying to terminate the unlawful depravation of his liberty and he believed his conduct was reasonable in the circumstances. Additionally, the attempted search of Trevor by SC Lawrence was also unlawful because there were no reasonable grounds for SC Lawrence to suspect that Trevor had an offensive weapon.

 

Because Trevor has had a previous conviction for a level 5 offense, namely aggravated assault, if he were to be found guilty he would be imprisoned for a minimum of 12 months.

 

CONCLUSION

Trevor has a viable defense for all the charges against him because it cannot be established beyond reasonable that he was required to provide his name and address to SC Lawrence. His physical response of resist and assault was justified since he was trying to terminate the unlawful depravation of his liberty. Therefore, Trevor will not face any penalty, however, if he were found guilty for assault police he would face 12 months imprisonment.

 

By Caleb Corneloup

http://calebcorneloup.com/

 

 

 

 

 

 

 

[1] Criminal Code Act (NT), 160(a).

[2] Criminal Code Act (NT), s160(b).

[3] Criminal Code Act (NT), s149C.

[4] Criminal Code Act (NT), s153.

[5] Criminal Code Act (NT), s160(a).

[6] Criminal Code Act (NT), s43AK(1).

[7] Criminal Code Act (NT), s43AK(3).

[8] Criminal Code Act (NT), s43AL.

[9] Criminal Code Act (NT), 43AT(1), Criminal Code Act (NT), 1, “person similarly circumstanced”.  10 Explanatory Statement to Criminal Code Amendment (Criminal Responsibility Reform) Bill (No 2) 2005 (Northern Territory Legislative Assembly), 10.

[10] Online Macquarie Dictionary.

[11] Criminal Code Act (NT), s161A (5).

[12] Criminal Code Act (NT), 43AS (1).

[13] Online Macquarie Dictionary.

[14] Police Administration Act (NT), s134(1). 16 Ibid; Prior v Mole (2017) 91 ALJR 449.

[15] O’Brien v Northern Territory (2003) 12 NTLR 218.

[16] Police Administration Act (NT), s134(3)(b).

[17] Pregelj v Manison (1987) 88 FLR 346, 361.

[18] Coleman v Power (2004) 220 CLR 1, 25.

[19] Ibid.

[20] Pregelj v Manison (1987) 88 FLR 346, 361.

[21] Criminal Code Act (NT), s189A.

[22] Coleman v Power (2004) 220 CLR 1, 57.

[23] Pregelj v Manison (1987) 88 FLR 346, 361. 26 Pregelj v Manison (1987) 88 FLR 346, 361.

[24] Police Administration Act (NT), s123.

[25] Police Administration Act (NT), s128(1)(a) & (b), (c)(ii) & (iii).

[26] As advised by the NT Government, https://nt.gov.au/law/alcohol/whereyoucantdrinkintheNT/whereyoucantdrinkindarwinandthetopend.

[27] Police Administration Act (NT), s119AA(1)(b) & (2)(a).

[28] He Kaw The v R (1985) 157 CLR 534-535.

[29] Criminal Code Act (NT), s189A.

[30] Criminal Code Act (NT), s78CA(1)(b).

[31] Criminal Code Act (NT), s78DA(2).