Past Paper law

7/27/2019 Past Paper law

1/3

Past paper

Erin may be liable for Todds murder as per its 19 of the Crimes Act

Actus reus causation

The prosecution bears the onus of proving all the elements of the defence BRD Woolmington v DPP

Whether Erins actions cause Todds death is ultimately a question of common sense for the jury: Royall

However, if it is decided that Erins actions were the substantial and operating cause of the death, causation is established : Smith, Evans &

Gardiner

As Todd was stuck on the balcony with Erin raining continual blows from her stick, arguably Todd had a well-founded and reasonable

apprehension that he would be seriously injured if he did not jump off the balcony: Royall

As such, considering that on the facts Todd had no other means of escaping Erin, analogous to the facts of Royall, and as in a dangerous

situation he may have been forced to act irrationally, it is arguable that he is jumping off the balcony was a natural conseq uence of Erins

threat, as per Mason CJ in Royall

Given the imminent danger of serious harm, especially in light of Erins recent attack on Lara, it is likely that Todds acti ons in jumping off the

balcony were a reasonable and proportionate response to Erins conduct: Rik. As such, causation is thus likely established.

Mens rea

Given Erins anger and violent conduct towards both Todd and Lara, it is arguable that she had an intent to kill Todd or at l east inflict GBH,

which satisfies the means rea to murder: Crabbe, Royall

In inferring intention, the jury may have regard to all the surrounding circumstances, in particular the fact of Todds affair with Lara, Erins

actions in having Lara beat Todd and then assaulting Lara, and her claims that Todd was dog meat, all these c ircumstances infer an intention

to kill or inflict GBH: Pemble, Peters

At the very least, it is arguable that Erin acted with reckless indifference to human life as forcing someone onto a balcony with threats of

serious violence, where the only means of escape was to jump, would lead

Defence provocation

Erin may seek to rely on the defence of provocation, as per section 23 of the Crimes Act, Provocation is a partial defence to murder, and thus if

Erun satisfies, she will be acquitted of murder and convicted of the leeser offence of manslaughter.

1. Provocative conduct

Erin may point to the provocative conduct of walking in on Todd and Laras sexual interaction, as this has occurred within th e sigh and hearing

of Erin: Stingel, Lees. This may be amount to grossly or gestures when combined with Todd is crying over and cradling of Laras body. The

context of their marriage and their young son may also be taken into account in considering the existence of provocative conduct: Lees.

2. Did Erin actually lose self-control?

As per Chhay it is essential that Erin actually lost self-control and formed an itntent to kill or inflict GBH. This is a subjective test as per Stingel.

Erins intense anger and violent conduct may indicate a loss of control especially give Todds pleas her to just calm down which suggests thather behaviour was a departure from her normal conduct.

However, Erins claims that she knows exactly what she is doing which may suggest that reason has resumed itself and she has not lost self-

control: Chhay.

Objective test per s23: Could an ordinary person in Erins position have lost control to the extent to form an intent to kill or inflict GBH?

Gravity of the provocation:

The jury must equip the ordinary person with Erins personal characteristics in order to evaluate the gravity of the provocative conduct :

Stingel. As such, the fact of Erin and Todds six year marriage, their young son, and Erins having walked in on the sexual activities of Todd and

Erin will all be attributed to the question of whether an ordinary person could have been provoked: Stingel

Loss of self-control

The jury must then consider whether an ordinary that had been provoked to the same degree and for the same reasons as Erin could have lost

self-control and formed an intent to kill or GBH: Stingel. Erins personal characteristics are irrelevant to this position: Stingel.


2/3

Considering the precedent of cases where an accused has successfully raise provocation due to witnessing (or even merely being told of) the

infidelity of their partner, it seems not unlikely that a jury may decide that an ordinary person could have lost self-control to that extent:

Moffa; Gardiner; Parker; Singh. Moreover, it is not required that the ordinary person could have used the same method to be to inflict GBH/kill

the victim: Singh

Erin may also be liable for inflicting GBH with intent on Lara, as per s 33 Crimes Act

The prosecution has the legal and evidentiary burden of proving the offence BRD: Woolmington

Actus reus:

Erin has occasioned unlawful contact to Lara by hitting her in the head with a stick.

As Laras head/neck cracks and she collapses unconsciousness to the floor, the injury is thus arguably serious or permanent disfigurement as

per the definition. Violently hitting a victim in the head with a martial arts stick is likely really serious injury, thus amounting to GBH as per

Haoui, DPP v Smith

Mens rea intent:

In inferring whether Erin intended to inflict serious harm or permanent disfigurement to Lara, the jury may have regard to the surrounding

circumstances of Erins violent activities towards Todd, her threats of violence towards Lara, and her anger in seeing the affair: Pemble, Peters.

Given these facts, it is likely that Erin intended to inflict serious harm on Lara, thus satisfying the mens rea.

Alternatively, as the martial arts stick amounts to a dangerous weapon under the definition in s4, Erin may be convicted of assault with adangerous weapon as per s 33B.

Basic assault : s 61

Erin may also be guilty of psychic assault in her threats to hurt Lara with the stick

While her threats are a conditional threat, she has no right to make them and they are not proportionate to the situation: Roszca v Samuels

As Lara is terrified of Erins stick, she thus apprehends imminent unlawful contact, sufficient to satisfy the actus of reus of psychic assault:

Knight

Erin clearly intends to create a fear of imminent unlawful contact as she threatens Lara in order to force her to assault Todd. Thus, the

elements of the s 61 charge are established.

Laras liability

S 59

In whipping Todds body prior to Erins entrance, Lara may be guilty of assault occasioning actual bodily harm

Actus reus

Lara has applied contact to Todd which has causing bruising; this injury is sufficient amount to actual bodily harm as per Mcintyre, as it is not

transient or trifling: Donovan

Lara my attempt to argue that Todd consented to the whipping, however as per the case of Brown, consent is no defence to ABH, only to

common assault. Wilson

Mens rea

Lara need only have intended to affect the assault, not the resulting harm: Coulter. She intentionally whips to Todd during her sexual exploits,

intention is thus inferred from the surround circumstances. Pemble; Peters.

GBH with intent s 33

Laras actions in whipping Todd face may amount to GBH if they are deemed to be really serious injury or permanent disfigurement: s4, DPP v

Smith.

However, despite Erins threats, Lara may not have intended to inflict GBH on Todd by whipping his face.

She thus may be guilty of the lesser s 35 offence instead, as whipping his face would create the awareness of the possibility of GBH/woundingbut Lara continued anyway: Crabbe. Thus guilty of s 35 at the very least.

The use of the belt may also amount to assault with an offensive weapon per s 33B, as a belt satisfies the definition of the offensive weapon as

per s4 Crimes Act.


3/3

Defence duress

Lara may seek to employ the defence of duress, which is a defence of general application: Lawrence. If she is successful in this, she will be

acquitted of the s 33/35.

Lara has the evidentiary burden of raising duress, which must then be negatived by the prosecution BRD.

Lara may argue that her will was overborne by Erins threats of violence with the stick such that the an ordinary person of reasonable firmness

of mind would have been likely to have yielded to Erins threats:Abusafiah.

The ordinary person is attributed with the same circumstances as Lara, and in particular has very young age is relevant in considering whether

an ordinary 18-year-old in the same poisiton would have been likely to yield: Runjanjic & Kontinnen.

Laras belief in Erin threats were arguably on reasonable grounds, given Erins anger and continual wielding of a martial arts stick: Hurley and

Murray.

The issue is whether when Erin went to the bathroom, Lara had a reasonable opportunity for her will to re-assert itself and to escape from the

situation: Lawrence. However, given Erin was gone less than a minute, and it may have take longer than this too untie Todd and even just

escape herself, this was arguably not a reasonable opportunity for Lara to escape: Hurley.

Similarly, she likely would

Erin

1) Murder/Manslaughter Todd

Issues: Causation, MR, Provocation (murdermanslaughter)

2) Assault - Lara

(threatening)

3) Assault Lara

AOABH

4) GBH Lara

`

Documents

Past Paper law