NON-TESTED P 2 COMMON – PSYCHIC + AGGRAVATED ASSAULT – AOABH, WOUNDING, GBH

SEXUAL ASSAULT P 3

FRAUD P 5

HOMICIDE P 9 VOLUNTARY EXTREME PROVOCATION P 12 SUBSTANTIAL IMPAIRMENT OF THE MIND P 13 INVOLUNTARY MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT P 15 ASSAULT CAUSING DEATH P 17 NEGLIGENT MANSLAUGHTER P 19

ATTEMPT P 21

COMPLICITY JOINT CRIMINAL ENTERPRISE P 23 EXTENDED JOINT CRIMINAL ENTERPIRSE P 24 ACCESSORIAL LIABILITY P 25 INNOCENT AGENCY P 26

DEFENCES NOT GUILTY BY MENTAL ILLNESS P 27 SANE AUTOMATISM P 29 INTOXICATION P 30 SELF DEFENCE P 31 NECESSITY P 32 DURESS P 32

CRIMINAL PROCEDURE POLICING POWERS P 33 ARREST P 33 DETENTION P 34 SEARCHES P 35 EVIDENCE ACT P 37 BAIL P 38

NON-TESTED For UDA manslaughter

COMMON ASSAULT

S 61 Act 1900 Penalty: Imprisonment for 2 years ()

Psychic assault Accused intentionally or perhaps recklessly causes another person to apprehend the immediate infliction of unlawful force upon him (Darby v DPP (2004); Zanker v Vartokas (1988))

Battery Accused intentionally or recklessly causes the application of unlawful contact upon another person without consent (Darby v DPP (2004); Collins v Wilcock (1984))

AGGRAVATED ASSAULT

Assault occasioning actual bodily harm S 59 Crimes Act 1900 Penalty: Imprisonment for 5 years.

ABH is “more than merely transient or trifling” (R v Donovan [1934]) and includes psychiatric harm if it’s a recognised condition and is in a “very serious way” (McIntyre [2009])

Wounding or Grievous bodily harm • GBH is “really serious bodily harm” (R v Perks (1996)) including destruction of foetus, permanent or serious disfiguring and grievous bodily disease (s 4 Crimes Act 1900). • Wounding is an injury that breaks through the whole skin (Vallance v R [1961])

Intentionally: S 33 Crimes Act 1900 Penalty: Maximum imprisonment of 25 years.

Recklessly: S 35 Crimes Act 1900 Penalty: Maximum imprisonment for 10 years

LARCENY

S 117 Crimes Act 1900 Penalty: Imprisonment for 5 years.

Illich v R (1987) HC: Without consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently deprives the owner thereof.

SEXUAL ASSAULT Basic intent

INTRO: [NAME] could be charged with sexual assault contrary to s 61I of the Crimes Act 1900. The prosecution bears the burden of proving all elements BRD (Woolmington v DPP [1935]). [NAME] will: - Raise no defences. - Raise the defence of [DEFENCE/S] [DEFENCE BURDEN OF PROOF] If convicted [NAME] will be liable to imprisonment for 14 years.

S 61I Crimes Act 1900: Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

ACTUS REUS

ELEMENT 1: VOLUNTARY ACT Prosecution entitled to presume voluntariness in absence of evidence to the contrary (R v Falconer (1990)). - From the facts, there is nothing to suggest to suggest that [NAME’s] actions were anything other than ‘conscious’ or ‘willing’ (Ryan v R (1967)). - Evidentiary burden on accused to raise involuntariness, the prosecution must then prove voluntariness BRD. o Non self induced intoxication may negate voluntariness → s 428G(2) ▪ Self induced NO!!!! → s 428G(1) o Automatism may negate voluntariness

ELEMENT 2: SEXUAL INTERCOURSE S 61H: Penetration to any extent of the genitalia (including surgically constructed) of a female person or the anus of any person by any part of another person or object OR introduction of any part of penis into the mouth of another person. • Continuing act: V withdraws and D continues, non-consensual sexual intercourse → s 61H(1)(d) • Any sex of person • Only slightest penetration necessary (R v Papadimitropoulos (1957)) • Doesn’t need to be of sexual nature: R v Abraham (1998): Digital intrusion into genetalia for prison search • Forced self-manipulation s 80A

ELEMENT 3: WITHOUT CONSENT S 61HA(2): Consent if the person freely and voluntarily agrees to the sexual intercourse • S 61HA(4): Person does not consent if they: a. Don’t have the capacity due to age or cognition Not present - Children <10 can’t consent (s66A) - Children <16 is criminalised (s66C) o Defence: honest/reasonable mistake of age (s66C(3)) b. Don’t have the opportunity due to being unconscious or asleep Not present c. Because of threats of force or terror Negated d. Because they are unlawfully detained. Negated

• S 61HA(5): Person who consents under a mistaken belief does not consent a. As to identity of accused ❖ R v Gallienne (1964): V in bed and believed D who climbed in was husband. b. That they are married ❖ R v Papadimitropoulos (1957): V migrant believed she was married. c. That it is for health or hygienic purposes ❖ R v Mobilio [1991]: D radiographer conducted ultrasound in vagina for sexual purpose.

• S 61HA(6): Person does not consent if person has sexual intercourse a. While substantially intoxicated, such that person incapable of freely agreeing b. Because of intimidatory or coercive conduct – threat without force (sexual slavery, condition placed) ❖ Aitken [2005]: Accused had sex with V following threat to disclose V’s shoplifting. c. Because of abuse of a position of authority or trust.

• S 61HA(7): Person who doesn’t offer physical resistant is not to be regarded as consenting

• S 61HA(8): NON-EXHAUSTIVE list of vitiated consent

CONCLUSION: elements satisfied/not satisfied.

MENS REA

NOTE: Basic intent offence so only non-self-induced intoxication can be taken into account → s 428D(2)

ELEMENT 1: KNOWING THAT THE VICTIM DOES NOT CONSENT TO SEXUAL INTERCOURSE: s 61 HA(3)

Option 1: s 61HA(3)(a): Being aware that the victim does not consent • D intends to have sexual intercourse with V subjectively knowing V does not consent • Sufficient if D knows V consents due to mistakes identified in s 61HA(5) – identity, marriage, purpose

Option 2: s 61HA(3)(b): Being reckless as to whether or not the victim consents 1. Reckless advertence o Knowing victim “might” not be consenting (D v Daly [1968]) or possibility of non-consent (R v Saragozza [1984] o Accused adverts to possibility but ignores it ❖ Tolmie (1995): D forcibly removed underpants, V said stop, sexually assault her. 2. Reckless inadvertence o Falling to give any thought to possibility of non-consent; ‘indifferent to the rights of the victim as to ignore completely the requirement of consent’ (Kirby J in R v Kitchener (1993)) ❖ R v Kitchener (1993): D took V for ride on motorcycle to deserted area where he performed forced sexual acts on her. o Reckless is an ordinary term that doesn’t need complicated direction to the jury ❖ Banditt [2005]: D broke into victims house whole she was asleep and commenced intercourse. V woke up with D on top of her and asked him to leave.

Option 3: s 61HA(3)(c): Having no reasonable grounds for believing that the victim consents • Subjective belief • Objective reasonable grounds ❖ DPP v Morgan [1976]: Morgan invited 3 co-defendants to have sex with his wife. Ds had no reasonable grounds to believe that wife was consenting. Guilty. ❖ Lazarus v R [2016]: Lazarus accused of sexually assaulting 18 yo in alley. Acquitted as he subjectively believed she was consenting and had reasonable grounds as they had been kissing prior to event. NOTE: Trier of fact must have regard to steps taking by the accused to ascertain consent (s 61HA(3)(d)) but NOT INCLUDING any self-induced intoxication of the accused (s 61HA(3)(e)) → assume accused is SOBER. ❖ Day v R [2017]: Victim woke up to Day being on top of her with his penis inside her. He thought it was his partner and was intoxicated. Held he took no steps to ascertain her consent and was reckless as to the existence of consent.

CONCLUSION: Mens rea elements satisfied/not satisfied.

TEMPORAL COINCIDENCE Actus reus must coincide with the mens rea (Fagan v Metropolitan Commission of Police [1969]). Sexual intercourse occurred with D knowing V didn’t consent.

DEFENCES? Mental illness → Automatism → Intoxication → Self defence → Necessity → Duress

CONCLUSION: Therefore, it is likely/unlikely that [NAME] will be convicted of [OFFENCE]. Issues for prosecution include … The defence of [DEFENCE] will most likely succeed/fail.