LAWS2708 Criminal Law Week 1 - 6

What is the definition of a crime according to Queensland law?

A legal wrong that can be followed by criminal proceedings which may result in punishment

What is legal positivism in criminal law?

Crime is whatever the law says is crime, based on legal categorization rather than moral wrongdoing

What is legal moralism in criminal law?

The view that crime should be based on moral wrongdoing

What does s2 Criminal Code (Qld) define as an "offence"?

An act or omission which renders the person doing the act or making the omission liable to punishment

What are the five aims of criminal law under s9(1) Penalties and Sentences Act 1992 (Qld)?

Punishment (retribution), rehabilitation, deterrence, denunciation, and protection of the community (incapacitation)

What is the difference between general and special deterrence?

General deterrence sends a signal to everyone else; special deterrence prevents the specific accused from reoffending

What are the Code jurisdictions in Australia?

Queensland, Western Australia, Tasmania, Northern Territory, and ACT

What are the Common Law jurisdictions in Australia?

New South Wales, Victoria, and South Australia

Who drafted the Queensland Criminal Code and when?

Sir Samuel Griffith CJ drafted it between 1897-1899

When was the Criminal Code Act 1899 (Qld) enacted?

1899

What are the three methods of interpreting the Criminal Code (Qld)?

1) Ordinary meaning, 2) Legislative history, 3) Strict construction (in favor of the accused)

What are the three elements of criminal responsibility?

1) Physical elements, 2) Mental elements, 3) Absence of defences

What are the types of physical elements (conduct)?

Act, omission, or state of affairs

What does s23 Criminal Code (Qld) address?

Voluntariness - a person is not criminally responsible for an act or omission that occurs independently of the exercise of their will, or if the act was a reflex action or performed in unconsciousness

What are the three circumstances where omission liability arises in Queensland?

1) Providing necessaries of life (s285), 2) Acting because of family relationship (s286), 3) Danger created by accused (ss288-289)

What are the four common law causation tests?

1) But for test, 2) Reasonable foreseeability test, 3) Natural consequence test, 4) Substantial cause test

What is deemed causation in Queensland?

Causation provisions in ss293-298 Criminal Code (Qld) where certain situations automatically establish causation

What case established the principle of continuing act for contemporaneity?

Fagan v Met Police Commissioner [1969]

What is the criminal enterprise doctrine?

Where the accused engages in a series of acts to achieve a particular objective according to a preconceived plan, allowing mental and physical elements to be considered together

What are the three subjective mental elements?

Intention, knowledge, and recklessness

What is the objective mental element?

Negligence

What is direct intention?

Purposeful - the person means to do something, it is their aim or goal

What is knowledge as a mental element?

Knowing that a particular circumstance exists and that a result will follow from the performance of the conduct

What is recklessness as a mental element?

Awareness of the consequence or risk and doing it anyway

What is negligence as a mental element?

Determined by reference to what an ordinary person would have been aware of or known in the situation (objective standard)

What case is important for liability without fault?

He Kaw Teh v The Queen (1985)

What does s5.6 Criminal Code (Cth) provide?

Every physical element needs a fault element

What are the two types of homicide offences in Queensland?

Murder (s302) and manslaughter (s303, s310)

What is the physical element of death in homicide?

Death of another person (no specific definition in the Code)

What case established causation principles for homicide where victim fled and jumped from window?

Royall v The Queen (1991)

What case addressed causation where victim was left unconscious on beach and drowned?

R v Hallett (1968)

What are the mental elements for murder under s302(1)?

Intention to kill, intention to cause GBH, or reckless indifference to human life

What does s302(1)(aa) provide for?

Reckless indifference to human life as a mental element for murder

What case interpreted reckless indifference to human life in Queensland?

R v Crabbe (1985) - HCA case binding in Qld

What is unlawful purpose murder under s302(1)(b)?

Death 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

What are the requirements for unlawful purpose murder?

1) Unlawful purpose other than causing death/GBH, 2) Dangerous act that objectively endangers life, 3) Dangerous act and unlawful purpose must be different

How does s303 define manslaughter?

Unlawful homicide that does not constitute murder

What is the difference between s303 and s302 manslaughter positioning?

S303 is involuntary manslaughter (no mental elements for murder); s302 is voluntary manslaughter (mental elements present but partial defences apply)

What are the three partial defences to murder in Queensland?

Provocation (s304), diminished responsibility (s304A), and abusive relationship (s304B)

What are the elements of provocation under s304?

1) Provocative conduct, 2) Loss of self-control (subjective), 3) Ordinary person test (objective)

What does s304(2) provide regarding words as provocation?

Words alone can be provocative only in circumstances of an exceptional character

What does s304(3) provide?

Provocation in a domestic relationship is not a defence unless there are exceptional circumstances

What does s304(4) provide?

Unwanted sexual advances cannot give rise to provocation except in exceptional circumstances

What is the subjective element of provocation?

Did the provocative conduct actually cause the accused to lose self-control?

What is the objective element of provocation?

Would an ordinary person, possessing ordinary power of self-control, in the same circumstances, have been provoked to form an intention to kill or do GBH?

What case is important for the ordinary person test in provocation?

Masciantonio v R (1995)

What does s245(1) Criminal Code (Qld) define as assault?

1) Unlawfully striking, touching, moving, or applying force to another person, OR 2) Threatening by bodily act or gesture to apply force, without consent or lawful excuse

What are the two ways to commit assault?

1) Assault by application of force, 2) Assault by threat or bodily gesture

What does s245(2) provide?

Assault by air - a person who unlawfully and indirectly applies force commits assault

What are the physical elements of assault by application of force?

1) Conduct (strikes, touches, moves, applies force), 2) Causation, 3) Without consent

What are the physical elements of assault by threat?

1) Bodily act or gesture, 2) Ability to effect purpose (apparent ability), 3) Without consent

Are mental elements specified in s245?

No - they are imported from common law (intention)

What is the definition of grievous bodily harm in s1?

Loss of distinct organ/member, serious disfigurement, any bodily injury of such a nature as to endanger or be likely to endanger life or cause permanent injury to health

What does s317 Criminal Code (Qld) criminalize?

Acts intended to cause grievous bodily harm - various acts done with intent to maim, disfigure, disable, or do GBH

What does s340(1) provide for?

Assault of police officer - aggravated offence when victim is a police officer performing official duties

What is the consent defense availability for assault?

If assault is not a physical element of the offence and victim gives valid consent, physical elements are not established

What does s24 Criminal Code (Qld) provide?

Mistake of fact - a person who does an act under an honest and reasonable but mistaken belief is not criminally responsible

What are the categories where consent is lawful according to case law?

Surgery, sports (within rules), tattooing, personal adornment, proper medical treatment

What case established limits on consent for bodily harm?

R v Brown [1993] - cannot consent to wounding or GBH for sadomasochistic activities

What is the HIV transmission case regarding GBH?

Zaburoni - HIV infection can constitute grievous bodily harm

What is the maximum penalty for murder in Queensland?

Mandatory life imprisonment

What are conditional threats for assault?

Still constitute threats (e.g., "nothing will happen if you do as you're told")

What is the test for whether accused caused death?

Multiple tests: but for, reasonable foreseeability, natural consequence, substantial cause

What does s297 Criminal Code (Qld) provide regarding causation?

Death resulting from fear or consequences of flight is still caused by the accused's actions

What is the rule for mental elements at common law and federal law?

If not specified, they must be inferred (presumption of mens rea)

What is strict construction in criminal law?

Presumption of innocence - read the code in favor of the accused when ambiguous

What is the purpose of the Human Rights Act 2019 (Qld) s3?

To protect and promote human rights

What rights are protected under ss15-37 of the Human Rights Act 2019 (Qld)?

Civil and political rights

What is revenge as an aim of punishment?

The purpose of punishment is punishment itself

What is retribution as an aim of punishment?

An offender should receive punishment proportionate to the harm caused and their blameworthiness

What is rehabilitation as an aim of punishment?

Seeks to modify behavior by changing the moral outlook of the offender

What is incapacitation as an aim of punishment?

Protecting the community by physically restraining the offender

What was abolished in Queensland in 2001 regarding criminal offences?

S432 Criminal Code (Qld) - pretending to exercise witchcraft or tell fortunes

What is the federal criminal code?

Criminal Code (Cth) - contains general principles of criminal responsibility applying to all Commonwealth offences

What does s4.2 Criminal Code (Cth) address?

Voluntariness at federal level

What does s4.3 Criminal Code (Cth) address?

Omissions at federal level

What does contemporaneity require?

Mental element must coincide with or exist at the same time as the physical element

What case established principles for negligent manslaughter?

Nydam v The Queen (1977)

What are the two offences for negligent conduct in Queensland?

Negligent manslaughter and negligent assault

What case addressed statutory interpretation for drug importing?

He Kaw Teh v The Queen (1985) - regarding Customs Act and mental elements

What is the burden of proof in criminal cases?

Prosecution must prove all elements beyond reasonable doubt (except for specific defences where accused may bear onus)

What is the definition of "wounding"?

Breaking of the skin (both layers)

What is "bodily harm" defined as in s1?

Any bodily injury which interferes with health or comfort

What is the difference between murder and attempted murder regarding partial defences?

Partial defences (provocation, diminished responsibility, abusive relationship) are NOT available for attempted murder (s306)

What does s310 provide for?

Manslaughter - unlawful killing without the mental elements of murder

What is violent act manslaughter?

Manslaughter under s303 where death results from an unlawful violent act

What is the ordinary person test in provocation NOT affected by?

The accused's particular weaknesses in self-control or personal characteristics (except in limited circumstances per case law)

What must provocative conduct be according to s304?

Wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of self-control

Can self-induced provocation be a defence?

No - provocation that the accused brought upon themselves cannot found the defence

Does provocation need to come from the victim?

Generally yes, though there are limited exceptions for indirect provocation

What is the requirement for "presence" in provocation?

The provocative conduct must occur in the presence of the accused, not be mere hearsay

What is assault occasioning bodily harm?

S339 - assault that results in bodily harm to the victim

What is the mental element requirement for s339?

None specified - common law intention for assault is imported

What does s320 provide for?

Doing grievous bodily harm - causing GBH without necessarily intending it

What is the difference between s317 and s320?

S317 requires intention to cause GBH; s320 does not require intention

What does s359 criminalize?

Threats - making threats to cause harm

What is stalking in Queensland criminal law?

Repeatedly following, contacting, or watching a person causing fear or distress

What case addressed the continuing act doctrine for assault?

Fagan v Met Police Commissioner [1969] - parking car on officer's foot

What are the three ways consent can be vitiated?

Fraud, trick, or threat

What does s229 Criminal Code (Qld) provide?

Excludes the operation of s24 (mistake of fact) for certain sexual offences including s218A