Question 1:
Bronitt and McSherry (2017, p.177) explain that criminal responsibility is dependent upon the “idea of a person as a rational being, capable of making choices between right and wrong, and able to control conscious actions”. Provide a brief explanation and critique of the key assumptions about criminal responsibility that are reflected in this statement.
(This question is worth 3 marks in total and should be about a paragraph in length – approx. 150 words)
Question 2:
Provide an explanation of what is meant by the ‘elements’ of an offence, and briefly explain the difference between ‘fault’ and ‘physical’ elements.
(This question is worth 2 marks in total and should be a short paragraph in length – approx. 100 words)
Question 3:
Select a defence recognised in Australian law (e.g. mental impairment, self-defence, etc) and briefly describe its scope and rationale (i.e. what are its key elements and why is it allowed/useful as a defence?).
(This question is worth 3 marks in total and should be about a paragraph in length – approx. 150 words)
Question 4: Explain what is meant by an ‘inchoate offence’? Identify and briefly describe one problem that arises with respect to these kinds of offences.
(This question is worth 2 marks in total and should be a short paragraph in length – approx. 100 words)
Question 5: Read the following scenario and answer the 3 sub-questions below. Relevant legislation is extracted at the end of the document. The question is worth 10 marks in total.
THE SCENARIO:
James, Margot, and Jane are in a dispute with Tim over some drug debts. He has been avoiding them and they are frustrated that he has not been answering his phone despite their repeated calls. They decide to stop by his house to pay him a visit. They agree beforehand that they are just going to talk to Tim to try to get him to see reason about paying the money he owes them, but Margot agrees with James that he should take a knife with him too, in case Tim “needs to be reminded that they are serious about being paid”. Both Margot and Jane know that James is short-tempered and has a reputation for violence. Jane has an intellectual disability, and James and Margot like to have her around because she can usually be convinced to do anything that is asked of her without question.
James, Margot, and Jane arrive at Tim’s house. They knock on the door and when Tim answers they push their way into his house despite his protestations. Jane says, “don’t worry Tim, we’re just here to talk to you about the money you owe us”. Margot agrees with her but adds, “you’d better be ready to pay up quickly or else there will be trouble! James is not feeling very friendly today”. Tim explains that he doesn’t have the cash right now, but he promises he’ll pay as soon as he can. James gets angry about this and, without warning, punches Tim hard in the stomach and face. As Tim falls to his knees, James draws his knife and stabs him, unintentionally hitting a major artery. This kills Tim.
- QUESTION 5(a) Look at LEGISLATION EXTRACTS A (below) which contains relevant provisions from the Criminal Code Act 1899 (s300, s302, s303, and s305). Identify the relevant physical AND fault elements required to prove murder AND the physical and fault elements required to prove manslaughter. (2 Marks, approximately 150 words)
- QUESTION 5(b) Did James commit the crime of murder or of manslaughter? Apply the law to the facts of the scenario to explain whether his actions satisfy the elements of the crime.
(4 Marks, approximately 250 words
- QUESTION 5(c) Will the law hold James, Margot, and Jane equally criminally responsible for the unlawful killing of Tim? Why/why not? Look at LEGISLATION EXTRACTS B (below) – s7, s8, and s304A Criminal Code Act 1899. Use ILAC to structure your response to this question). (4 Marks, approximately 300 words)
LEGISLATION EXTRACTS A
300 Unlawful homicide
Any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case.
302 Definition of murder
(1) Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say—
(a) if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;
(aa) if death is caused by an act done, or omission made, with reckless indifference to human life;
(b) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
(c) if the offender intends to do grievous bodily harm to some person for the purpose of facilitating the commission of a crime which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such crime;
(d) if death is caused by administering any stupefying or overpowering thing for either of the purposes mentioned in paragraph (c) ;
(e) if death is caused by wilfully stopping the breath of any person for either of such purposes;
is guilty of “murder” .
(2) Under subsection (1) (a) it is immaterial that the offender did not intend to hurt the particular person who is killed.
(3) Under subsection (1) (b) it is immaterial that the offender did not intend to hurt any person.
(4) Under subsection (1) (c) to (e) it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.
303 Definition of manslaughter
- A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of “manslaughter”
305 Punishment of murder
(1) Any person who commits the crime of murder is liable to imprisonment for life, which can not be mitigated or varied under this Code or any other law or is liable to an indefinite sentence under part 10 of the Penalties and Sentences Act 1992
LEGISLATION EXTRACTS B
7 Principal offenders
(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—
(a) every person who actually does the act or makes the omission which constitutes the offence;
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) every person who aids another person in committing the offence;
(d) any person who counsels or procures any other person to commit the offence.
(2) Under subsection (1) (d) the person may be charged either with committing the offence or with counselling or procuring its commission.
(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
(4) Any person who procures another to do or omit to do any act of such a nature that, if the person had done the act or made the omission, the act or omission would have constituted an offence on the person’s part, is guilty of an offence of the same kind, and is liable to the same punishment, as if the person had done the act or made the omission; and the person may be charged with doing the act or making the omission.
8 Offences committed in prosecution of common purpose
When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
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304A Diminished responsibility
(1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only.
(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section liable to be convicted of manslaughter only.
(3) When 2 or more persons unlawfully kill another, the fact that 1 of such persons is by virtue of this section guilty of manslaughter only shall not affect the question whether the unlawful killing amounted to murder in the case of any other such person or persons.
