criminal Law Summary I CRIMINAL RESPONSIBILITY A Onus of Proof It is a fundamental human right embodied in Art 14(2) of the ICCPR that µeveryone charged with a criminal offence is to be presumed innocent until prove guilty.¶ This implies that the onus of proof must lie on the prosecution. This is not always the case as parliament may do what it pleases. The derogation from the presumption of innocence requires justification.1 The Court identified a three-stage approach, once it was established that the statutory provision infringed a Charter right: (1) Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic). (2) Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter. (3) If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified. The Human Rights Act 2004 (ACT) is yet recognized but has not prevented legislature from enacting on strict liability offences. Woolmington V DPP provides authority on the onus of proof. Burden Of Standard Of Proof Proof Legal Evidential Legal Evidential Burden Burden Burden Burden R Placed on Prosecution Placed on Prosecution Beyond easonable - Prove all elements of crime - Elements of Crime Reasonable Possibility - Rebut Available Defenses Placed on Accused Doubt - Defenses Placed on Accused - Defense of Mental Impairment - Defense of Diminished Responsibility Where provided by Statue 1 R v Johnston [2003] 3 All ER 844, 898 B Elements of A Crime (a) Physical Elements Physical Elements R Conduct Conduct In Specified esults of Conduct Circumstances Eg, murder and eg, rape and theft assault Act Omission State of Affairs (i) Act The physical element of most offenses will consist of the commission of an act or series of acts by the accused. The main issue here relates to identifying the relevant act, and voluntariness and causation are relevant in this regard. (ii) Omission There is no general duty to prevent a crime,2 nor does an individual commit a crime or become a party to it simply because he or she could reasonable have prevented it.3 An omission to act may give rise to criminal liability in situations where a duty to act arises at common law or is imposed by statute. R v Miller refers to a duty arising at common law. (iii) State of Affairs There are certain offences which criminalize a state of affairs ± or perhaps, more precisely, a state of µbeing¶, rather than conduct. Examples include being drunk and disorderly in a public place or offences relating to vagrancy. (iv) Conduct Which Occurs in Specified Circumstances A specified form of conduct may not be a crime unless it is performed in a certain 2 R v Instan [1893] 1 QB 450 3 R v Coney (1882) 8 QBD 534, 15 specified circumstances. For example, in general, the crime of rape or sexual assault is defined by intentional sexual penetration (conduct) which occurs without the other person¶s consent (the specified circumstance). (v) Results or Consequences of Conduct The physical element of an offence may sometime refer to the results or consequences of conduct, rather than the conduct itself. For example, what is prohibited in the crime of murder is the death of the victim rather than the conduct which caused the death. Where the physical element of a crime refers to the consequences of conduct it will be necessary for the prosecution to prove that the conduct caused the requisite consequences. (b) Voluntariness The requisite physical element of a crime must be performed voluntarily, in the sense that it must be willed.4 There are three ways in which an act may be considered at law to be involuntary: (1) When the criminal act was accidental To say that an act was caused by accident means that it was caused without intention, recklessness or criminal negligence of the accused¶s part. (2) When the criminal act was caused by a reflex action An act caused by a reflex action is an act founded on an external cause rather than intention, as noted in Ryan v The Queen. In Kay v Butterworth, Humphreys J suggested that a driver would not be responsible if he or she were attacked by a swarm of bees or wasps while driving and his or her car went out of control, causing the death of a passerby.5 (3) When the conduct was performed whilst the accused was in a state of impaired consciousness. (i) Automatism R v Falconer (1986) A Crim R 83 The facts showed a long history of violence by Mr. Falconer towards his wife. She had obtained a non-molestation order against her husband and criminal proceedings had been preferred against him in relation to allegations that he had sexually abused two of their daughters over a period of years. She shot Mr. Falconer dead after he unexpectedly came to where she was staying and assaulted her. She claimed that she remembered nothing after he had reached out to grab her hair until she found herself slumped against an archway with a shotgun nearby. The shotgun had been kept in a wardrobe and Mrs. Falconer said she hand no recollection of picking it up or loading it. At trial, the defense brought forward evidence from two psychiatrists that the 4 R v The Queen (1967) 121 CLR 205; Woolmington v DPP [1935] AC 462, 482. 5 Kay v Butterworth (1945) 61 TLR 452, 453. circumstances leading up to and surrounding the shooting could have produced a dissociative state where, according to one of the psychiatrist, µpart of her personality would be sort of segment and function as a whole as she became disrupted in her behavior, without awareness of what she was doing¶. This evidence was deemed inadmissible and the accused was convicted. On appeal, the court held that the evidence was admissible on the issue of voluntariness. The High Court held that if it is shown that the automatism arose from a mental condition which could not be classified as a result of a mental disease, natural mental infirmity or disorder of the mind and the act occurred involuntarily because of this mental condition, the accused would be entitled to a complete acquittal. The court also held that an act done by a conscious person is presumed to be voluntary unless there is some evidence to the contrary. If a conscious person performs an act, unless there is some evidence that the ac is involuntary then it is presumed to be voluntary. Voluntariness relates to merely what is done not the consequences of what is done. It would be only an exceptional case where a conscious person committed an act without choosing to do so or at least running the risk of doing so. A state of automatism may be caused by concussion from a blow to the head, sleep disorders, the consumption of alcohol or other drugs, neurological disorders, hypoglycemia, epilepsy or dissociation arising from extraordinary stress. Evidence of some degree of control over bodily movements does not preclude automatism.6 It does not matter what the cause of automatism is, providing that the accused¶s actions are involuntary.7 Under the common law, the traditional distinction between sane and insane automatism was based on the concept of a µdisease of the mind¶. If an accused is acquitted on the basis of µsane¶ automatism, he or she is entitled to a complete acquittal because he or she has been deprived of the will to act.8 However, if the automatism arose from what has been termed a desiease of mind it is considered µinsane¶ automatism. Under the common law, the accused was then detained at the Governor¶s Pleasure under a special verdict. Three criteria or tests have been developed by the courts in order to define what should be considered a disease of mind: (1) The Recurrence or Continual Danger Test This tests holds that if a mental condition is prone to recur, it should be considered a disease of the mind. In Bratty v Attorney General, Lord Denning held that µany mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal¶.9 This view was withheld in an Australian case, R v Meddings. 6 R v Radford (1985) 42 SARSR 266 7 Jiminez v The Queen (1992) 173 CLR 572, 581 8 R v Falconer (1986) A Crim R 83 9 Bratty v Attorney General (Northern Ireland) [1963] AC 386, 412 (2) The Internal/External Test This test holds that if the mental state is ¶internal¶ to the accused, as opposed to arising from an external cause, it should be defined as a disease of the mind. (3) The Sound/Unsound Mind Test This test holds that a disease of the mind is considered to be evidence by the reaction of an unsound mind to its own delusions or external stimuli. In R v Falconer, the fundamental distinction of this test was that between the mental states which, although resulting in abnormal behavior, are or may be experienced by normal persons (as example, a state of mind entered from a blow to the head) and those which are never experienced by or encountered in normal persons. (ii) Intoxication The references to be drawn from intoxication are not all one way: evidence of intoxication may result in absence of proof beyond reasonable doubt of the requisite fault element, or in a more ready acceptance that the fault element exists on the supposition that intoxication reduces inhibitions.10 R v O¶Connor (1980) 146 CLR 64 The accused was caught rifling through a car owned by a police officer.