Criminal law

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DEFINITION OF A CRIMINAL OFFENCE


A criminal offence is an act on omission, which is held to be wrong because of injuries to the welfare and interests of society in some way, and for which the offender can be prosecuted and punished.


Sources of Criminal Law


Queensland Criminal Law since the turn of the century has a statutory basis. The Queesnland Criminal Code Act 18 came into effect in 101. Code Act was rewritten in 155 to bring it up to date and to make it reflective of community concerns. Also it was written in plain English, so that it could be easily understood.


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Nature of Criminal Law


„Ï Onus of Proof - it is up to the prosecutor to prove the accused is guilty. Beyond reasonable doubt. Up to the prosecution to prove guilt and the defence to prove the client’s innocence.


„Ï An acquitted means that there was ‘reasonable doubt’


„Ï A person is not guilty of a crime unless they have a ‘guilty mind’ ¡V mensrea


Children under the age of ten are presumed to be incapable of formulating guilty intentions and thus cannot be criminally responsible. A person of 15 years and over must accept full responsibility for all criminal acts.


Anyone who is without control of his or her minds can not have a guilty one.


„Ï If a person intends to commit one crime and actually commits another, the guilty mind element is still established.


„Ï Ignorance is no excuse. You can be found guilty of a crime even if you did not know that it was against the law.


Unlawful Killing


Section of the Criminal Code defines unlawful killing as when a person causes the death of another directly or indirectly.


„Ï Directly ¡V when the person dies directly as a result of the person’s actions.


„Ï Indirectly ¡V when the person dies of a result of the situation set up by the other person.


Four elements to the definition.


„h Killing must be unlawful


„h The killing must be of another person.


„h Can be direct or indirect.


„h Obvious cause and effect relationship between the action of the accused and the victim’s death. The accused’s actions must have caused the death of the victim. If the victim dies from other causes, the accused is not guilty of unlawful killing.


„h The killing must be of another person. A baby becomes a person when it can survive outside of the mother’s body.


„h If the intention exist you are charged with murder, if there isn’t any intention, then you are charged with manslaughter.


Assault


„h Involves the actual or attempted or threatened application of force without the victims consent.


„h Threatening does not consist of verbal threatening act or gesture which indicated an attempt or threat to do just that.


Grievous bodily harm


„h Unlawfully causing an injury endangering or likely to endanger life, or causing or likely to cause permanent injury to health.


„h Without intention, maximum penalty ¡V 14 years


„h With intention, maximum penalty ¡V life


Unlawful wounding


„h Injuries are deemed not as serious as ‘grievous bodily harm


„h ‘Wound’ is caused when all layers of skin are broken by act contrary to law and not excused by any legally acceptable defences.


„h Maximum penalty - 7 years.


Serious Assault


„h Assault in connection with a crime


„h Assaulting a police officer


„h Assaulting an elderly or incapacitated person.


Stalking


Several elements of the offence of stalking, which was created in 1. All elements must be established by the prosecution to prove the offence was committed.


„h It must be a ‘concerning act’ (watching, telephoning, harassing, intimidation)


„h Occurs on at least two separate occasions.


„h The offender intends the person being affected to know about the conduct.


„h The person does not know about the conduct


„h The conduct would cause a reasonable person to believe that the person will be injured, that person’s property will be damaged, or the property of a person close to the person, including their employer, will be damaged.


„h Stalking can be bullying.


„h Apprehended violence order. This order prevents the stalker from coming within a certain distance of the other person.


„h Maximum, years, 5 years for violence


Sexual Offences


Definition Section 47 ¡V A person who has sexual relations with another person without that person’s consent, or with that person’s consent if it is obtained by force, threats or intimidation.


The most serious sexual offence is rape.


Most rapes are never reported, only 10% of the cases is the person accused of rape actually convicted.


The main argument in a rape trial is whether consent was given.


„h ‘Doctrine of fresh complaint’ ¡V the victim of the attack made a complaint to another person at the first reasonable opportunity after the attack, this can be used to support the claim of rape.


„h ‘Need for corroboration’ of the complaint’s story. Corroboration means supporting evidence.


Rape also occurs if a person has sexual intercourse with another person with that person’s consent.


Offences against property


Stealing ¡V A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his/her own use.


Conversion ¡V intentionally dealing with the owner’s property in a way that is inconsist with that person’s/owner’s right.


Stealing is thus a taking with an intention on the part of the offender to deprive the owner of the property in question.


- maximum penalty, is years, except special cases e.g. Air craft 14 years.


Robbery


„Ï Stealing accompanied by the threat or use of violence


„Ï Maximum penalty, 14 years


„Ï Circumstances of aggravation ¡V Robber uses a dangerous weapon or wounds a person while in the act of stealing, or is in the company of one or more people.


Regulatory offences


„Ï Regulatory offences Act 185 deals with shoplifting


„Ï Applies only in the case of first time offenders. Who steal goods worth $100 or less or property is $50 or less.


Difference between burglary and robbery.


Burglary ¡V done at night, more serious, armed, with more than 1 person.


Robbery ¡V done at day, less serious than burglary.


Burglary


S41 states ‘a person who is inside another person’s house without their consent, intending to commit a serious offence


The following circumstances make burglary more serious


„Ï Offence is committed at night


„Ï The offender uses or threatens violence


„Ï Offender is or pretends to be armed


„Ï Offender is with at least one other person


„Ï The offender damages or threatens to damage property.


Fraud ¡V S408C creates the offence of fraud.


If a person dishonestly


„Ï Uses property belonging to another


„Ï Gets property from another


„Ï Causes loss or injury to any person


„Ï Makes off intending to avoid payment when payment is required on the spot


„Ï Forces a person to do something the person is legally entitled to do.


Receiving stolen property


A person who receives anything which has been stolen commits an offence if the person has reason to believe that the thing was stolen. ACTUAL KNOWLEDGE is required, must be proven by prosecution. Suspicion is not sufficient.


Wilful damage


A person who deliberately destroys or damages the property of another person, commits a criminal offence e.g. graffiti on a public property. Maximum penalty for graffiti is 5 years imprisonment or (7 years, if the material is obscene)


Driving Offences


Dangerous operation of a vehicle levels.


1. Dangerous operation of a vehicle without seriously injuring another, maximum years or $15000 fine.


. Dangerous operation of a vehicle and affected by alcohol or previous conviction for dangerous operations of a vehicle. Maximum 5 years or $0 000.


. Dangerous operation of vehicle causing death or serious injury. Maximum 7 years imprisonment. 10 years if affected by alcohol. 14 years if seriously affected by alcohol. Can be charged with manslaughter.


Driving can be broadly defined & included when motor vehicle is broken down & is being towed to a garage. It includes being in charge of a motor vehicle in possession of the keys for the vehicle ‘during in a public place ‘is every place open to or used by public as well as any field, ground, park, reserve, garden, wharf, jetty used for public use.


Vehicle ¡V is defined to include tractors, bobcats and bicycles.


Dangerous operation of a vehicle ¡V decided on by the jury ¡V it is a question of fact.


If a person is involved in a car accident


„Ï The person must give their name and address and details of the vehicle to the other involved including those who are injured and those whose property was damage.


„Ï If you fail to do this, maximum $1500 or 1 years imprisonment.


„Ï Police must be called if damage to the vehicle exceeds $1500


„Ï A person who shows ‘callous disregard’ for the needs of injured people will be imprisoned. This is a moral obligation now becoming a legal obligation. A person involved in an accident must give whatever medical assistance they can, to any person injured by the accident until medical expert arrive.


Drug offences are contained in the Drugs Misuse Act.


The seriousness of the offence depends on the type of drug the offender is associated with. The Act creates two lists of drugs, called Schedule 1 drugs and Schedule drugs.


Schedule 1 drugs are


„Ï Cocaine (prescribed amount is 00g)


„Ï Heroine (prescribed amount is 00g)


„Ï LSD (50g)


„Ï Angel dust (0.4 mg)


Schedule contains hundreds of drugs. The most common and their ‘prescribed amount’


Cannabis (500g or 100 plants), speed (g), methadone (g), codeine (10g), morphine (g), ecstasy (g), and fantasy (g).


Possession


The maximum penalty for possession is 15 years’ imprisonment. The penalty increases if the person has more than the ‘prescribed amount’ of the drug. The sentence will be more lenient if the person proves they were addicted to the drugs at the time.


Possession means physical control and does not necessarily mean ownership. It does not mean that the drug is on the person’s body, or in his pocket. A person can be deemed to have possession if the prohibited drugs are on that person’s premises, without that person’s knowledge. Example if your flatmate brings drugs into the flat and you were unaware of this, you could still be charged with possession.


Producing


A person who produces (grows or manufactures) a prohibited drug commits a crime. Producing can be as simple as watering a marijuana plant for a friend while the friend is on a holiday. The maximum penalty for producing a Schedule 1 drug, is 0 years’ imprisonment, increasing to 5 years if the amount is more than prescribed.


Max. penalty for Schedule is 15 years, increasing to 0 years.


Supplying


A person who supplies a prohibited drug commits a crime. The basic penalty is 0 years for Sch 1 and 15 years for Sch . The maximum penalty increases by 5 years, in both cases, if


„Ï The drug is supplied to a minor


„Ï The drug is supplied to a person with intellectual disability


„Ï The drug is supplied to a person in school grounds


„Ï The drug is supplied to a prisoner


„Ï The drug is supplied to a person who does know that it is a drug


Trafficking


The most serious drug offence is drug trafficking. A drug trafficker faces a maximum penalty of 5 years’ imprisonment (Sch. 1 drug) or 0 years for (Sch. drug).


Trafficking means that the person is buying or selling drugs. This means a stronger connection with the drug trade than merely producing drugs ¡V a trafficker is making a living out of dealing in drugs.


Attempting to commit an offence


A person commits a crime if they attempt to commit a crime, within the legal meaning of that word.


„Ï The maximum penalty for an attempt is usually half of what the maximum penalty would be had the person committed the offence.


Attempt ¡V when a person intends to commit an offence and


„Ï Begins to put the intention into effect by doing something appropriate; and


„Ï Something they intend to commit the crime but they actually commit the offence


„Ï The fact that is actually impossible to commit the offence they are trying to commit is not relevant.


DEFENCES


Provocation The law recognizes that sometimes the reason a person committed a crime is because they were provoked by what another person did. It would be unfair to leave out this fact.


S04 Applies to a person charged with murder.


„Ï If a person causes death in the heat of the moment caused by sudden provocation, and before there is time to let his passion to cool, the person is guilty of the lesser crime of manslaughter. Provocation is a partial defense.


S6 Applies to a person charged with assault.


„Ï A person is not criminally responsible for an assault committed on a person by whom he or she was provoked, if they acted upon it on the sudden and before there is time for the person’s passion to cool, and if the force used is not disproportionate to the provocation and is not intended (or likely) to cause death or (serious) harm. Provocation is a complete defense.


Limits to the defence of provocation


Timing The longer the time between the provacate act and the assault or killing, the more difficult it is going to be to use the defence.


Provocation The assault must be proportional to the provocative act.


Self-Defence Unprovoked assault.


The person being assaulted can use reasonable force to properly defend him or herself. This cannot be force that is intended or is likely to cause death or serious harm, unless the assault makes the person think that he or she is going to be killed or seriously hurt, and there is no other way of escape.


Provoked assault


Relevant where the accused started the argument, by assaulting the victim or otherwise provoking the victim. The victim then uses violence against the accused, and the accused uses violence back, is charged with criminal offence, and raises the defence of self defence.


Defence of premises A householder is entitled to use force that the householder believes ‘on reasonable grounds’ If the householder believe that the trespasser, is going to commit an offence on the premises. It is a complete defence.


Intoxication Intoxication can be both a complete and partial defence. It is a limited defence.


Where intent is relevant If the charge includes the requirement of intent, the fact that the accused was intoxicated at the time may be relevant to whether they have intent or not. E.g. murder/manslaughter.


Involuntary intoxication If a person is suffering from intoxication that was not intentional (e.g. spiked punch), their defence is one of insanity rather than intoxication.


Insanity A person is not criminally responsible for any act done while the person is suffering from mental disease ‘or’ natural mental infirmity’ so that the person


1. Cannot understand what he/she is doing


. Cannot understand that what he/she is doing is wrong


. Cannot control his/her actions.


„Ï Insanity is a complete defence


„Ï Needs to be proved ‘on the balance of probabilities’


„Ï Cannot be claimed because of the temporary effect of violence, drugs and alcohol.


Diminished Responsibility


„Ï Is a partial defence


„Ï Applies only to murder and reduces the charge to manslaughter.


„Ï Applies where a person suffers from an abnormality of the mind (temporary) which affects the person’s ability to understand what he or she is doing is wrong.


Involuntary act


„Ï Used only in rare circumstances


„Ï The accused argues that they are not responsible because the actions were not voluntary e.g. sleepwalking.


Accident


„Ï Applies on to acts that are accidental


„Ï Does not matter that the consequences are accidental.





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