Hayes & Eburn criminal law and procedure in New South Wales

Description

Full Title Copyright Preface to the Fifth Edition Table of Flow Charts Table of Cases Table of Statutes Table of Contents Chapter 1 General principles Definition of crime Role of criminal law Restraining the state Bill of rights Burden of proof Discretion Role of lawyers Elements of a crime Introduction Physical elements Fault elements Motive Coincidence of physical and fault elements Special defendants Introduction Children Corporate defendants Conclusion Strict and absolute liability Conclusion Discussion questions Chapter 2 Murder Introduction MCCOC on murder and manslaughter Murder in New South Wales Elements of murder Physical elements Act or omission Culpable omissions Causation Intervening acts and events Voluntary act of the deceased Pre-existing susceptibility Death of a living person Fault elements Reckless indifference to human life Intention to kill Intention to cause grievous bodily harm Constructive murder The fault element in constructive murder The requirement of malice Conclusion Discussion questions Chapter 3 Voluntary manslaughter Introduction Extreme provocation Introduction The two-part test Loss of control after sustained period of abuse Ordinary person test Intoxication and extreme provocation Words as provocative conduct Presence of the accused Third party conduct Self-induced provocation Mistake Withholding provocation from the jury Proportionality not required Abolition of provocation Substantial impairment by abnormality of mind Excessive self-defence Infanticide Discussion questions Chapter 4 Involuntary manslaughter Introduction Two forms of involuntary manslaughter Unlawful and dangerous act manslaughter Elements of unlawful and dangerous act manslaughter Unlawful and dangerous act Unlawful otherwise than as breach of statutory or regulatory provision Burden on Crown to prove death caused by unlawful act Manslaughter by criminal negligence Manslaughter by negligent act Manslaughter and malice Manslaughter by negligent omission Where there is an unexpected incident in carrying out a common design Assault causing death Culpable killing Discussion questions Chapter 5 Non-fatal offences against the person Introduction Assault Elements of assault Physical elements of assault Fault element of assault Stalking, intimidation and domestic violence Battery Physical elements of battery Fault element of battery Aggravated assaults Wounding Grievous bodily harm Assault and battery summarised Consent Limits of consent Sexually transmitted diseases and consent Consent reviewed Discussion questions Chapter 6 Sexual offences Introduction Statutory and common law framework Statutory framework Intention and recklessness, capacity and consent, knowledge and mistake Sexual assault Introduction Physical elements Act of sexual intercourse Without consent Fault elements Knowledge of and recklessness as to consent Non-advertent recklessness Advertent recklessness Honest but unreasonable belief in consent Negation of consent Consent in relation to offences of attempted sexual assault Grounds to establish absence of consent Indecent assault and act of indecency Indecent assault Act of indecency Act of indecency as an element of indecent assault and as a separate crime Act of indecency towards another person Fault element for indecent assault Child sexual assault Special evidentiary and procedural rules applying in sexual assault trials Discussion questions Chapter 7 Stealing and other property offences Introduction History of larceny Larceny Punishment under the Crimes Act Elements of larceny Concept of property Physical elements of larceny Taking and carrying away Something capable of being stolen In someone’s possession whether or not the owner Without the consent of the person in possession Fault elements of larceny Intention to deprive the owner of property in the thing Fraudulently and without honest claim of right Finding and larceny Mistake and the requirement of coincidence between physical and fault elements Larceny by a trick Statutory offences Introduction Larceny by bailee Fraudulent appropriation Embezzlement Statutory fraud offences of Part 4AA Alternative verdicts in cases of dishonest acquisition Other property offence categories Discussion questions Chapter 8 Mental illness, voluntariness, automatism and intoxication Introduction Mental illness M’Naghten’s Rules Substantial impairment by abnormality of mind Fitness to be tried Voluntariness and automatism Introduction Voluntary act Non-insane automatism Commentary on automatism Intoxication Introduction Common law background Part 11A of the Crimes Act Intoxication and attempted offences of specific intent Intoxication and mental illness Discussion questions Chapter 9 Duress, necessity and self-defence Introduction Duress Introduction Elements of duress Would a reasonable person have acted as the accused did? Is an act done under duress a ‘voluntary’ act? Duress, murder and constructive murder Necessity Elements of necessity Necessity and murder Necessity and abortion Self-defence Common law background Legislative statement of self-defence Elements of self-defence Excessive force that inflicts death Response to lawful conduct or non-criminal conduct Defence of others and defence of property Defences to non-fatal offences Discussion questions Chapter 10 Attempt, conspiracy and complicity Introduction Inchoate terrorism crimes Attempt Introduction Common law on attempt Elements of attempt Physical element of attempt Impossibility Fault element for attempt Conspiracy Introduction Physical and fault elements for conspiracy Agreement Impossibility of carrying out the agreement Fault element of agreement Intention that an offence be committed Conspiracy to commit a crime of recklessness Complicity Introduction Statutory provisions relating to complicity Principal in the first degree Joint criminal enterprise Innocent agents Principal in the second degree Accessory before the fact Joint criminal enterprise Introduction Scope and application of joint criminal enterprise Extended common purpose Constructive murder and joint criminal enterprise Manslaughter from participation in a joint criminal enterprise Withdrawal from complicity Requirements for withdrawal Accessory after the fact Introduction Physical element for accessory after the fact Fault element for accessory after the fact Misprision of felony Discussion questions Chapter 11 Criminal procedure and evidence — Part 1 Investigation, arrest and bail Introduction Overview of criminal procedure Detecting the offence Investigating an alleged offence — power to stop and search without warrant Reasonable suspicion Investigation with warrant Search warrants Issuing a warrant Powers and responsibilities under a warrant Nature of search warrants and obligations of issuing justice Entry for investigation without warrant Expanding powers Commencing proceedings Arrest without warrant Arrest with warrant Definition of arrest Statement of reason for arrest Entry into premises to effect an arrest Force used against a person to effect an arrest Purpose of arrest Search incidental to arrest Detention for further investigation after arrest Search, identification and collection of forensic examples after arrest Search Medical examinations Collection of forensic samples Fingerprints and photographs Rights of accused Protections at the police station Release or bail Bail Nature of bail Bail Act 2013 Making bail decisions Considerations for bail (Bail Act 2013 (NSW) s 16)) Bail conditions Refusing bail or bail conditions cannot be met Period of bail Varying bail Failure to comply Conclusion Discussion questions Chapter 12 Criminal procedure and evidence — Part 2 Trial, admissions, sentence and appeal Introduction Penalty notice matters Court hearings Summary matters Return first date Plea of guilty Plea of not guilty — brief to be served Ex parte hearings Hearing of the matter Indictable matters Committal proceedings Presentation of the indictment Plea Pre-trial disclosure Arraignment Criminal trial Sentencing Principles Statutory framework Maximum penalties Non-custodial options Community service orders Good behaviour bonds Find the offence proved but take no action Deferral of sentence for rehabilitation Fines Diversion of offenders Suspended sentence Custodial orders Compulsory drug treatment detention Home detention Intensive correction Full-time custody and parole Life sentence Appeals Appeal against sentence Power of the Court of Criminal Appeal Petition to the Governor based upon fresh evidence following final appeal Rule against double jeopardy — autrefois convict and autrefois acquit Aspects of evidence Evidence Act 1995 (NSW) Admissions and confessions Illegally or improperly obtained admissions Fabricated confessions — common law Modern statutory scheme Criminal Procedure Act 1986 s 281 and Evidence Act 1995 s 86 Evidence Act 1995 s 84 Evidence Act 1995 s 85 Evidence Act 1995 s 137 Discretionary exclusion Evidence Act 1995 ss 138 and 139 Evidence Act 1995 s 90 Right to silence Conclusion Discussion questions Index