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nicolae · 6 years

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New Post has been published on Automate de cafea

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Varietăți și soiuri de cafea arabica

Sursa https://en.wikipedia.org/wiki/File:CoffeaArabica_02.jpg

(Lista și originea soiurilor arabice. )

Potrivit Centrului Internațional de Comerț, cafeaua arabica a reprezentat aproximativ 61% din producția mondială de cafea în perioada 2004-2010. Procentul ar fi chiar mai mare dacă arabica nu ar fi așa de susceptibilă la boală. Cafeaua din specia C. arabica are multe soiuri diferite, fiecare având caracteristici unice. Unele bine-cunoscute cafele arabica includ:

Nume Specie Regiune Comentarii Arusha C. arabica Mount Meru în Tanzania, and Papua Noua Guinee Un soi Typica sau French Mission. Bergendal, Sidikalang C. arabica Indonesia Ambele sunt soiuri Typica, au supraviețuit focarului de rugină din anii 1880; cea mai mare parte a celeilalte varietăți din Indonezia a fost distrusă. Blue Mountain C. arabica Regiunea Blue Mountains din Jamaica. De asemenea, cultivate în Kenya, Hawaii, Haiti, Papua Noua Guinee (unde este cunoscută sub numele de PNG Gold) și Camerun (unde este cunoscută sub numele de Boyo). O mutație unică a Typica, cunoscută ca având o anumită rezistență la boala boabelor de cafea. Bourbon C. arabica Réunion, Rwanda, America Latină. În jurul anului 1708, francezii au plantat cafea pe insula Bourbon (acum numită Réunion) în mijlocul Oceanului Indian, toate probabil din același stoc mamă – planta pe care olandezii le-au dat-o. În mod surprinzător, acesta a suferit o mutație ușoară și a fost plantată pe întreg teritoriul Braziliei la sfârșitul anilor 1800 și în cele din urmă s-a răspândit prin America Latină. Bourbon produce cu 20-30% mai multe fructe decât soiurile Typica. El Salvador este cunoscută sub numele de Țara Bourbon. Catuai C. arabica America Latină Acesta este un hibrid de Mundo Novo și Caturra crescut în Brazilia la sfârșitul anilor 1940. Catimor Hibrid interspecific America Latină, Indonezia, India, China (Yunnan) Aceasta este o încrucișare între cafeaua Timor și cafeaua Caturra. A fost creată în Portugalia în 1959. În India, acest soi este numit Cauvery. Caturra C. arabica America Latină și Centrală Dezvoltată din două soiuri care provin din mutația naturală a Bourbon Red, inițial un arbust de cafea înalt, găsit în Serra do Caparaó. Are un randament mai mare decât Bourbon, datorită faptului că planta este mai scurtă și cu o distanță mai mică între ramuri, se maturizează mai rapid și este mai rezistentă la boli decât soiurile mai vechi, tradiționale de arabica. Mutația sa nu este unică; a dus la formarea soiului Pacas din El Salvador (din Bourbon) și a Villa Sarchi din Costa Rica (din Bourbon). Din punct de vedere genetic, este foarte asemănător cu Bourbon, deși produce o calitate mai slabă a cafelei, în principal datorită faptului că soiul produce mai mult. Charrier C. charrieriana Camerun Aceasta este o specie nou descoperită în Camerun. A câștigat recent o recunoaștere din cauza naturii sale fără cofeină. Încă nu e crescută în mod comercial, dar probabil va fi. Columbiană C. arabica Columbia Cafeaua a fost introdusă pentru prima dată în țara din Columbia la începutul anilor 1800. Astăzi sunt cultivate soiurile Maragogipe, Caturra, Typica și Bourbon. Când cafeaua columbiană este prăjită proaspăt, are o aciditate strălucitoare, este grea și este intens aromatică. Columbia reprezintă aproximativ 12% din piața de cafea (în valoare) din lume, și al treilea în volum după Vietnam și Brazilia. Harar etiopiană C. arabica Etiopia Din regiunea Harar, Etiopia. Cunoscută pentru aroma complexă, fructată, care seamănă cu un vin roșu uscat. Toate cele trei soiuri etiopiene sunt denumiri comerciale cu drepturi de proprietate ale Etiopiei. Sidamo etiopiană C. arabica Etiopia De asemenea, din regiunea Sidamo (acum Oromia) din Etiopia. Toate cele trei soiuri etiopiene sunt denumiri comerciale cu drepturi de proprietate ale Etiopiei. Yirgacheffe etiopiană C. arabica Etiopia Din districtul Yirgachefe din Zona Gedeo a Națiunilor de Sud, naționalități și regiunea poporului din Etiopia. Toate cele trei soiuri etiopiene sunt denumiri comerciale cu drepturi de proprietate ale Etiopiei. French Mission C. arabica Africa French Mission este, de fapt, Bourbon care a fost plantat în Africa de Est de către misionarii francezi în jurul anului 1897. Geisha / Gesha C. arabica Etiopia, Tanzania, Costa Rica, Panama, Columbia, Peru Soiul Geisha sau Gesha, cultivat în zonele muntoase din Boquete din provincia Chiriqui, Panama, foarte căutat la licitație, obținând prețuri ridicate. Inițial din satul Gesha, Etiopia. A fost plantată în anii 1950 ca o cultură rezistentă la rugină și redescoperită la începutul anilor 2000. Cea mai scumpă varietate la licitațiile de cafea, $ 350.25USD în 2013. A depășit propriul record ca cea mai scumpă cafea din lume cu 803.00 USD / lb de Geisha Natural (procesată) în licitațiile “Cel mai bun din Panama” în 2018. Guadeloupe Bonifieur C. arabica Guadeloupe Kona hawaiană C. arabica Hawai Cultivă pe pantele Hualalai și Mauna Loa din districtul Kona de pe insula Big Hawaii. Cafeaua a fost introdusă pentru prima dată în insule de către Chief Boki, guvernatorul orașului Oahu, în 1825. Java Hibrid interspecific Indonezia De pe insula Java, în Indonezia. Această cafea a fost odată atât de larg comercializată încât “java” a devenit un termen de slang pentru cafea. Java este un stil regional, nu un soi de cafea. K7 C. arabica Africa O selecție kenyană a varietății French Mission de Bourbon selectată la Legelet Estate din Muhoroni, Kenya. Selectată pe baza studiilor de cupping. Maragogipe C. arabica America Latină Maragogipe (“y”) este considerată a fi o mutație naturală de la Typica. Acesta a fost întâi descoperit lângă Maragogipe, în statul brazilian Bahia. Maragogype este bine cunoscută pentru producerea boabelor mari. Maragaturra C. arabica America Latină Maragaturra este o varietate hibridă între Caturra și Maragogype. A fost pentru prima dată crescută pentru a surprinde profilul de aromă al Maragogype cu randamentul și eficiența sporită a varietății Caturra. Mayagüez C. arabica Africa O varietate de Bourbon cultivată în Rwanda. Mocha C. arabica Yemen Cafeaua din Yemen a fost comercializată prin portul din Mocha. Nu trebuie confundat cu stilul de preparare (cafea cu cacao). Mundo Novo C. arabica America Latină Mundo Novo este un hibrid între Bourbon și Typica, încrucișat în anii 1940. Orange, Yellow Bourbon C. arabica America Latină Red Bourbon și Orange Bourbon sunt tipuri de Bourbon care au fost selectate din mutația spontană. Pacamara C. arabica America Latină Pacamara este un hibrid între mutația Bourbon Pacas și Maragogype. A fost crescut în El Salvador în 1958, probabil pentru a obține un soi tipic, care produce boabe mai mari. Pacas C. arabica America Latină O mutație naturală a soiului Bourbon găsită în El Salvador în 1949. Pache Colis C. arabica America Latină Pache Colis este un hibrid între Pache Comum și Caturra. Acest soi produce fructe distinct de mari și frunze texturate. Pache Comum C. arabica America Latină Este o mutație de Typica găsităprima dată în Santa Rosa, Guatemala. Ruiru 11 C. arabica Kenia Ruiru 11 a fost lansată în 1985 de către stația de cercetare a cafelei din Kenya. În timp ce soiul este, în general, rezistent la boli, produce o calitate mai slabă a cafelei decât K7, SL28 și 34. S795 C. arabica India, Indonezia Probabil arabica cea mai frecvent plantată în India și Asia de Sud-Est, cunoscută pentru cupa sa echilibrată și notele subtile de aromă de mocca. Apărută în anii 1940, este o încrucișare între soiurile Kents și S.288. Santos C. arabica Brazilia Brazilia Santos este de obicei folosit ca termen de clasificare pentru cafeaua arabica braziliană”. Numele său se referă la portul din Brazilia în care a trecut cafeaua și a fost considerată ca fiind mai bună decât “cafeaua braziliană”. Este, de obicei, din soiul Bourbon. Sarchimor Hibrid interspecific Costa Rica, India Un hibrid între Villa Sarchi din Costa Rican și soiul Timor. Din cauza părintelui său din Timor, Sarchimor este destul de rezistent la rugina frunzelor și la alte boli. Ca și Villa Sarchi, este cultivată în India. Selection 9 (Sln 9) C. arabica India Un hibrid între Tafarikela etiopiană și soiul Timor. SL28 C. arabica Kenia O selecție, de la Scott Labs din Kenya, din soiul Tanganyika rezistent din nordul Tanzaniei, în 1931. Gust excelent, aciditate de coacăze negre. SL34 C. arabica Kenia Selectată de Scott Labs din varietatea franceză a culturii cultivate în Kenya. Selectată pentru calitatea superioară a cupei (deși inferioară SL28), dar nu e rezistentă la CBD, CLR sau BBC. Sulawesi Toraja Kalossi C. arabica Indonezia De fapt soiul S795, cultivat la altitudini mari pe insula Sulawesi (fosta Celebes), Indonezia. Kalossi este micul oraș din centrul orașului Sulawesi, care servește ca punct de colectare a cafelei, iar Toraja este zona montană în care se cultivă cafeaua. Sulawesi prezintă o aciditate bogată, bine echilibrată, și are un caracter multidimensional. Sulawesi în sine nu este un soi de cafea. Sumatra Mandheling și Sumatra Lintong C. arabica Indonezia Mandheling este numită după oamenii din regiunea mandala din Sumatra de Nord, Indonezia. Numele este rezultatul unei neînțelegeri a primului cumpărător străin al soiului și nicio cafea nu este produsă în realitate în “regiunea mandala”. Lintong, pe de altă parte, este numită după cartierul Lintong, situat, de asemenea, în Sumatra de Nord. Acesta nu este un soi specific, ci mai degrabă o regiune cu un stil specific de prelucrare. Timor, Arabusta Hibrid interspecific Indonezia Timor nu este de fapt o varietate de cafea arabică, ci un hibrid de două specii de cafea; arabica și canephora (numită și robusta). Aceasta a fost găsită pe insula Timor în jurul anilor 1940 și a fost cultivat datorită rezistenței sale la rugina de frunze (la care este predispusă cea mai mare parte a cafelei arabice). Se numește Hybrido de Timor în America și Tim Tim sau Bor Bor în Indonezia. Un alt hibrid între cele două specii se numește arabusta, dar, în general, se găsește numai în Africa. Typica C. arabica În toată lumea Typica provine din stocul yemenit, cultivat mai întâi în Malabar, India, iar mai târziu în Indonezia de către olandezi. Mai târziu a ajuns în Indiile de Vest la colonia franceză de la Martinica. Typica a evoluat genetic pentru a produce noi caracteristici, adesea considerate noi soiuri: Criollo (America de Sud), Arabigo (Americas), Kona (Hawaii), Pluma Hidalgo (Mexic), Garundang (Sumatra), Blue Mountain (Jamaica, Papua Noua Guinee) , San Bernardo și San Ramon (Brazilia), Kents & Chickumalgu (India) Uganda Hibrid interspecific Deși în cea mai mare parte produce cafea robusta, există o calitate arabică de cafea cultivată acolo cunoscută sub numele de Bugishu în jurul zonei Sipi Falls. Brutte C. arabica Variety of coffee (arabica) in 2014 in the south of India in g.Madras, 1996 Chennai Tamil Nadu. Grown at an altitude of 1500 m above sea level, which in itself is a good indicator. Differ by more quantitative tannin to 14 -15% and trigonelline 1.5 – 1.7%.Varietate de cafea (arabica) cultivată în 2014 în sudul Indiei în g.Madras, 1996 Chennai Tamil Nadu. Crescută la o altitudine de 1500 m deasupra nivelului mării, ceea ce în sine este un bun indicator. Diferența dintre taninul cantitativ este de 14-15% și trigonelina 1,5-1,7%.

Soiurile robusta

Vietnam este cel mai mare producător robusta din lume, reprezentând 97% din producția de cafea din Vietnam.

Deși nu există varietăți separate de cafea, robusta indoneziană Kopi Luwak și filipineză “Kapéng Alamid” sunt neobișnuite și foarte scumpe. Boabele sunt colectate din excrementele civetei comune de palmier, ale căror procese digestive îi conferă o aromă distinctivă.

Alte soiuri

Deși nu sunt la fel de viabile din punct de vedere comercial ca arabica sau robusta, există și alte specii de cafea care conțin soiuri unice. Printre acestea se numără Kapeng barako sau Café Baraco (cafea Barako în limba română), o cafea Liberica. soiul cultivat în Filipine, în special în provinciile Batangas și Cavite. A fost introdusă în perioada colonizării spaniole, iar Filipine s-a dezvoltat rapid devenind al patrulea cel mai mare producător de cafea la începutul secolului al XIX-lea. Cu toate acestea, producția a fost redusă datorită infestării cu “rugina de cafea”.

#cafea arabica #Cafea #Producţia cafelei

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gabriellesunarko · 7 years

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70114 Criminal Law and Procedure Notes (Autumn 2017)

Class 4A – General Principles: Proof, Capacity and Elements of Criminal Offences

Standard of proof

In criminal proceedings the prosecution must prove the guilt of the accused ‘beyond a reasonable doubt’.

Burden of proof

The legal burden in criminal trials rests on the prosecution. The ‘legal burden’ refers to the case which must be made by the prosecution in order to persuade the trier of fact that the defendant is guilty (Woolmington v DPP [1935] AC 462).

In order to establish the guilt of the accused, the prosecution must prove beyond a reasonable doubt all of the components of the offence and disprove any defences raised (subject to limited exceptions).

Elements of criminal liability:

There are 4 requirements for criminal liability:

A person must have legal capacity to commit a criminal offence;

that person must have committed the conduct elements of the offence, i.e., the actus reus;

the fault elements, or the mens rea, which form part of the offence, must have been present at the time of the actus reus; and

the absence of any defences of excuse justification which would negative liability.

Legal capacity

Generally, people are presumed to be responsible for their actions. The 2 major exceptions are those who are insane and children.

In NSW, the minimum age of criminal responsibility is 10 years (Children (Criminal Proceedings) Act 1987 (NSW) s 5).

The doctrine of doli incapax applies to children between the ages of 7-14 years. Doli incapax means ‘incapable of wrong’. It gives rise to a rebuttable presumption that the child does not have the mental capacity to understand that what he or she was doing was wrong (R v M (1977) 16 SASR 589).

Characteristics of the concept of actus reus or the conduct element of a crime

The actus reus of an offence identifies the conduct that the criminal law prohibits.

Generally, the actus reus will involve doing or not doing something, and may include reference to consequences or circumstances.

The actus reus has also been referred to as the ‘external’ events or ‘physical’ element of a crime.

The actus reus may consist of conduct that is not a positive act.

The actus reus may involve neither a positive act nor an omission

The actus reus may include mental elements

The actus reus requirement that conduct must be voluntary

All criminal offences require that the defendant’s conduct was voluntary. If the defendant has not acted voluntarily, then the actus reus requirements of the offence will not be satisfied, and the defendant will not be found guilty.

Voluntariness is presumed (R v Falconer (1990) 171 CLR 30).

The concept of mens rea or the fault elements of a crime

The mens rea of an offence specifies the mental state required for a person to be criminally responsible for an offence.

Mens rea can also be referred to as the fault component or the guilty mind of an offence.

Mens rea can include intention, recklessness and negligence.

Temporal coincidence

Generally, mens rea elements for the offence must co-exist with the actus reus. Criminal liability requires not only that the actus reus and mens rea exist, but that they are present at the same time.

Strict liability and how such offences are interpreted by the courts

Whilst there is a common law presumption that offences have a subjective fault element, there are statutory offences with no mens rea requirements: strict and absolute liability offences.

Determining of whether offences are strict or absolute involves statutory interpretation to ascertain parliament’s intention.

Strict liability and absolute liability offences require nothing more than the perpetration of the actus reus. I.e., strict and absolute liability offences do not have a mens rea component.

As a general rule an honest and reasonable belief in the state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence (Proudman v Dayman (1941) 67 CLR 536).

The accused carries the evidentiary burden. If this is discharged by the accused, then the prosecution must disprove the defence beyond a reasonable doubt (He Kaw The v R (1985) 157 CLR 523).

Class 7B – Property offences: Larceny

s 117 Crimes Act 1900: Punishment for larceny

Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for 5 years.

Statutory provision only stipulates punishment: must turn to common law to find the definition and elements of larceny.

Definition and elements of larceny (Ilich v R (1987) HCA 1):

At common law, larceny is committed by a person who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof.

Actus Reus

Taking and carrying away (asportation)

Physical movement of property

Property that is possession of another (belonging to another)

Taken without consent of the owner

Mens Rea

Intention to permanently deprive at the time of taking

Without a belief in a claim of right (with intention to appropriate goods)

Fraudulent or dishonest – used interchangeably

Taken without consent of the owner

AR and MR coinciding

Burden of proof

In order to establish the offence of larceny, the prosecution must prove all elements of the offence beyond a reasonable doubt (Woolmington v DPP [1935] AC 462).

Property capable of being stolen

At common law not all property can be stolen.

Because larceny is a crime against possession the property has to be capable of being taken and carried away. This means that property has to be tangible (physical) and it also has to be of value, even something of the slightest value is enough (R v Perry (1845) 174 ER 1008; R v Morris [1840] AC 320). Physical property like this is sometimes called a ‘chose in possession’.

Asportation: Physically taking and carrying away (even the slightest amount of movement will suffice) (R v Lapier (1784) 168 ER).

s 4 Crimes Act 1900 (NSW) defines property expansively and is relevant to statutory sections which refer to property.

“Property” includes every description of real and personal property; money, valuable securities, debts, and legacies; all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise.

Mens rea: Intent to permanently deprive (R v Holloway (1848) 169 Eng.Rep.)

s 118 Crimes Act 1900 (NSW): Intent to return property no defence – ‘Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to the accused’s own use, or for the accused’s own benefit, or that of another, but intended eventually to restore the same, or in the case of money to return an equivalent amount, such person shall not by reason only thereof be entitled to acquittal.’

Deals with issues where a person takes another’s property and pawns it, in the hope that when their financial circumstances improve, they can redeem the property and return it. This does not nullify mens rea.

There must be intention to permanently deprive (R v Foster (1967) 118 CLR 117 (Textbook: 977)):

Foster borrowed the victim’s pistol to show parents and said that he was going to return it to the victim. He did no exercise ownership (like a “conversion”).

Held: This did not equate to larceny.

What does amount to intention – Intention to appropriate goods

What does not amount to intention – Merely assuming possession of goods

Without consent of the possessor

If the owner or person in possession consents to the removal of the property there is no larceny because there has been no trespassory taking.

Issues arise in determining whether the owner merely facilitates the removal of the property as opposed to consenting to its removal, or where consent is given due to mistake.

Terminology

Mutual mistake

Mutual mistake is made when neither party at the time of the incident realises that a mistake has been made and then later when the accused realises they have gained from the mistake they form a dishonest intention.

The owner mistakenly gives consent and the accused does not realise this, but later does and forms the intention to permanently deprive the owner.

Unilateral mistake

Unilateral mistake is made when the accused realises immediately that the other party has made a mistake and from the point forms the dishonest intention to take advantage of it.

The owner mistakenly gives consent and the accused immediately realises, but does not do anything about it.

Consent is vitiated in circumstances where there is not true consent, but mere facilitation (Kennison v Daire (1986) 160 CLR 129 (Textbook: 975)):

Appellant took money out of an ATM using a card that was invalid.

The ATM “facilitated” this transaction.

Held: this did not amount to consent by the bank; the machine could not consent for the bank.

Mere facilitation =/= consent

Inability of the machine to give consent to a person.

Mistake of consent also vitiates ownership from passing (Ilich v R (1987) 162 CLR 110).

Unilateral mistake where possession of money was misappropriated.

Ilich had been overpaid by employer, and put the money away whilst deciding what to do with it. Can ownership prevent from passing ownership? Can mistake of Middleton (the boss) vitiate or negative consent?

Held: unilateral or mutual mistake only negates consent if the mistake is so fundamental so as to prevent ownership from passing.

The 3 types of mistake identified in Ilich are:

Mistake as to identity of transferee (R v Middleton (1873) LR 2 CCR 38)

Mistake as to identity of the property that is being handed over (R v Ashwell (1885) 16 QBD 160)

Mistake as to the quantity of thing being handed over/delivered (Russell v Smith [1958] 1 QB 27)

Without a claim of right

Mens rea will not be present if a person genuinely believes they are asserting a lawful claim to the property.

Must genuinely believe they had a claim of right to the property

The claim does not have to be reasonable but does have to be bona fide, i.e., in good faith.

A moral right to the property is insufficient.

It must a legal entitlement to the property, not merely a moral right.

A lawful claim can arise from a mistake of fact, where you mistakenly believe the property is yours.

Requirements for a claim of right – (R v Fuge (2001) 123 A Crim R 310 (Textbook: 983)) sets out what is a bona fide claim of right:

(a) The claim of right must be one that involves a belief as to the right to property or money in the hands of another

(b) The claim must be genuinely; i.e., honestly held, it not being to the point whether it was well founded in fact or law or not

(d) The existence of such a claim when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it.

(e) The claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to case where what is taken is their equivalent in value; although that may be qualified when, e.g., the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them.

(f) The claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches.

(g) In the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders, since there can be no accessorial liability unless there has in fact been a foundational offence.

(h) It is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury.

Fraudulently or dishonesty

Fraud is synonymous with dishonesty.

Larceny is a common law offence; the statutory definition (s 4B) of dishonesty does not apply here.

R v Feely [1973] 1 All ER 341: The question of dishonesty was for the jury, and as ‘dishonesty’ was a word in ordinary use, it was unnecessary for the trial judge to explain what it meant. Additionally, it was for the jury to decide whether the act involved was dishonest by application of the ‘current standards of ordinary decent people’.

Assess on an objective basis – the approach in Feely was applied in Peters v R (1998) 192 CLR 493:

‘…the intentional creation of a situation in which one person deprives another of money or property or puts the money or property of that other person at risk or prejudicially affects that person in relation to some lawful right, interest, opportunity or advantage, knowing that he or she has no right to deprive that person of that money or property or to prejudice his or her interests.’

Class 8A – Property offences: Fraud

Section 192E(1) has 3 distinct forms which must all be caused by a deception:

1. Dishonestly obtaining property

Actus Reus

Act by any deception

Obtains property

Deception causes the obtaining

Mens Rea

Intentional or reckless deception

Intention to permanently deprive

Dishonesty

2. Dishonestly obtaining financial advantage

Actus Reus

Act by any deception

Obtains financial advantage

Deception causes the obtaining

Mens Rea

Intentional or reckless deception

Intention to obtain financial advantage

Dishonesty

3. Dishonestly obtaining financial advantage

Actus Reus

Act by any deception

Causes financial disadvantage

Mens Rea

Intentional or reckless deception

Intention to cause financial disadvantage

Dishonesty

Statutory piece of legislation, found in s 192E Crimes Act 1900 (NSW): Fraud

(1) A person who, by an deception, dishonestly:

(a) obtains property belonging to another, or

(b) obtains any financial advantage or causes any financial disadvantage,

is guilty of the offence of fraud.

Maximum penalty: Imprisonment for 10 years.

(2) A person’s obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property.

(3) A person may be convicted of the offence of fraud involving all or any part of a general deficiency in money or other property even though the deficiency is made up of any number of particular sums of money or items of other property that were obtained over a period of time.

(4) A conviction for the offence of fraud is an alternative verdict to a charge for the offence of larceny, or any offence that includes larceny, and a conviction for the offence of larceny, or any offence that includes larceny, is an alternative verdict to a charge for the offence of fraud.’

Deception

s 192B Crimes Act 1900 (NSW): Deception

(1) In this Part,

“deception” means any deception by words or other conduct, as to fact or as to law, including:

(a) a deception as to the intentions of the person using the deception or any other person, or

(b) conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.

(2) A person does not commit an offence under this Part by deception unless the deception was intentional or reckless.

Actus reus:

s 192B

To induce someone to believe something true that is actually false

A false representation

Mens rea:

s 192B

Intentional: Know that the representation is false

Reckless: Recognises or foresees the possibility that the representation is false

Moore v R [2016] NSWCCA 260

Obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW).

Mr Moore continue to borrow and consume funds, knowing that he had no realistic prospect of repaying them, and appreciating that there was a mistake in the Bank’s systems.

There was no deception in the behaviour of Mr Moore, because he knew of the problems:

Permitting the account to reach a negative balance.

A systemic problem in failing to detect that the account was being overdrawn over many months.

Held: There was no deception, he was authorised to use the account the way in which he did.

ss 192B(1)(b) could not be proved as there was no deception or false representation made by him

Not criminally liable in this case, but there might be civil action brought against him

DPP v Ray [1974] AC 370

False representation by words or conduct.

Ray left a restaurant without paying for his meal. When the meal was ordered, Ray intended to pay for it. After eating it, he changed his mind and decided to leave without paying for it. He waited for the waiter to leave the room (about 10 minutes) and then left the restaurant. Ray argued that he had not, by words or conduct, made a false representation.

Held: Ray had made a false representation by conduct.

Ray practiced a false representation by remaining at the table for a short period, until the waiter left the room, before leaving the restaurant. By that deception, Ray had evaded his ability to pay for the meal.

Dishonestly

s 4B Crimes Act 1900 (NSW): Dishonesty

(1) In this Act:

“dishonest” means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

(2) In a prosecution for an offence, dishonesty is a matter for the trier of fact.

The test is a hybrid test with both objective and subjective standards, as found in R v Ghosh [1982] 1 QB 1053:

The test should be:

Whether according to the ordinary standards of reasonable and honest people what was done was dishonest.

Whether the defendant himself must have realised that what he was doing was by those standards dishonest.

Was he dishonest by the ordinary standards of reasonable and honest people and does he know it dishonest by those standards? (Ghosh test)

Obtaining property from another

s 192C Crimes Act 1900 (NSW): Obtaining property belonging to another

(1) For the purposes of this Part, a person

“obtains property” if:

(a) the person obtains ownership, possession or control of the property for himself or herself or for another person, or

(b) the person enables ownership, possession or control of the property to be retained by himself or herself or by another person, or

(c) the person induces a third person to do something that results in the person or another person obtaining or retaining ownership, possession or control of the property.

(2) A person does not commit an offence under this Part by obtaining or intending to obtain property belonging to another unless the person intends to permanently deprive the other of the property.

Obtaining financial advantage (s 192D(1)) and Causing financial disadvantage (s 192D(2))

s 192D Crimes Act 1900 (NSW): Obtaining financial advantage or causing financial disadvantage

(1) In this Part,

“obtains” a financial advantage includes

(a) obtain a financial advantage for oneself or for another person, and

(b) induce a third person to do something that results in oneself or another person obtaining a financial advantage, and

whether the financial advantage is permanent or temporary.

(2) In this Part,

(a) cause a financial disadvantage to another person, or

(b) induce a third person to do something that results in another person suffering a financial disadvantage,

whether the financial disadvantage is permanent or temporary.

Causation

There must be a causal link between the obtaining of property or financial advantage, and deception (Ho v Szeto (1989) 17 NSWLR 608 (Textbook: 1005-1007)).

Class 8B – Assault: Common Assault

Definition of assault (Darby v DPP (NSW) (2004) 61 NSWCCL 558):

An assault is an act by which a person intentionally or perhaps recklessly causes another person to apprehend the immediate infliction of unlawful force upon him; a batter is the actual infliction of unlawful force.

Battery

Actus Reus

Application of unlawful contact

Without consent of victim

Mens Rea

Intentionally apply unlawful contact.

Recklessly apply unlawful contact

AR & MR coinciding

Psychic Assault

Actus Reus

Threatened application of unlawful contact

The victim reasonably apprehends/fears

Imminent unlawful contact

Mens Rea

Intentionally creating apprehension of imminent unlawful contact

Recklessly creating apprehension of imminent unlawful contact

AR & MR coinciding

All common assaults are charged under s 61 Crimes Act 1900 (NSW)

Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for 2 years.

This section only stipulates the punishment for assault; as such we turn to the common law to find the definition and elements of assault.

Battery

There is a striking, touching or application of force.

Conduct is without lawful excuse.

Conduct of accused without consent of victim.

Psychic Assault

There is no physical contact.

Conduct would be without lawful excuse.

Actus reus

Positive act: An omission cannot be an assault (Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 (Textbook: 592)).

Apprehension of imminent unlawful contact

With psychic assault, the accused must act so as to induce in the victim, a fear that the victim is about to by physically harmed by the accused, or other person at the accused’s behest. It is necessary to determine whether the threat of harm is sufficiently imminent.

The actus reus for a psychic assault can include:

Spoken words in threatening circumstances (and not ‘mere words’) (Barton v Armstrong [1969] 2 NSWR 451)

Silence in threatening circumstances: (R v Ireland; R v Burstow [1997] 4 All ER 225)

False imprisonment with continuing threat of injury: (Zanker v Vartokas (1988) 34 A Crim R 11)

Zanker v Vartokas (1988) 34 A Crim R 11

At common law, the victim must apprehend ‘imminent’ or ‘immediate’ unlawful violence.

Thus, generally, threats of future violence should not amount to an assault (R v Knight (1988) 35 A Crim R 314)

Conditional Threats

Conditional threats are capable of forming the basis of a charge of assault. A conditional threat is one in which the accused imposes a condition, and if the victim does not meet that condition, the accused will inflict some violence. The requirement that the infliction of harm is imminent has led courts to look at:

The words of the threat; and

whether the accused had a right to impose the condition.

Barton v Armstrong [1969] 2 NSWR 451

Spoken words in threatening circumstances (and not ‘mere words’)

Rozsa v Samuels [1969] SASR 205

Does the defendant have a right to impose the condition?

Mens rea for common assault

Degree of recklessness required in order to establish an assault (MacPherson v Brown (1975) 12 SASR 184):

The standard for reckless assault is that of ‘possibility’ rather than ‘probability’.

The defendant must subjectively recognize the riskiness of their behaviour.

The defendant is not to be judged by an objective standard of what a reasonable person would have foreseen.

Consent to Actual Bodily Harm

The victim cannot consent to actual bodily harm or more, unless the defendant’s actions were within lawfully recognized exceptions (R v Brown [1994] 1 AC 212 (Textbook: 601)) such as surgery, boxing, ‘contact’ sports, lawful correction, dangerous exhibitions and manly pastimes.

Class 9A – Assault: Aggravated assault; legal responses to domestic violence

Aggravated assault

Aggravated assaults are offences deemed to be more serious because of the presence of additional or aggravating factors.

Many of these offences are comprised of assault plus some other element.

Select appropriate charge by considering the kind or degree of injury inflicted on the victim.

If no harm -> common assault

Assault Occasioning Actual Bodily Harm (‘ABH’) – s 59

s 59 Crimes Act 1900 (NSW): Assault occasioning actual bodily harm

(1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for 5 years.

(2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years.

Actual bodily harm covers ‘any hurt or injury calculated to interfere with the health or comfort of the victim. Such hurt or injury need not be permanent, but most, no doubt, be more than merely transient or trifling’ (R v Donovan [1934] 2 KB 498).

Aggravated assault with ABH has the same mens rea and actus reus as common assaults, but the additional element that the injury amounts to ABH.

More serious that a common assault, but less serious than ‘really serious bodily harm’, as otherwise it amounts to GBH.

Because defining ABH arises from the actus reus, the accused does not have to intend to be reckless as to ABH.

It is a question of fact for the jury to determine whether an injury amounts to actual bodily harm.

Elements

The defendant can be charged with assault occasioning actual bodily harm (s 59).

The prosecution must prove that the defendant intentionally or recklessly committed a psychic or battery assault, that the victim suffered ‘actual bodily harm’, and that the defendant’s actions were a substantial and operating cause of these injuries (Zanker v Vartzokas (1988) 34 A Crim R 11).

The same actus reus as common assault + causation – ‘but for’ test and ‘substantial and operating cause’ test.

Wounding or Grievous Bodily Harm (with Intent – s 33, reckless – s 35)

s 33 Crimes Act 1900 (NSW): Wounding or grievous bodily harm with intent

(1) Intent to cause grievous bodily harm A person who:

(a) wounds any person, or

(b) causes grievous bodily harm to any person,

with intent to cause grievous bodily harm to that or any other person is guilty of an offence.

Maximum penalty: Imprisonment for 25 years.

(2) Intent to resist arrest A person who:

(a) wounds any person, or

(b) causes grievous bodily harm to any person,

with intent to resist or prevent his or her (or another person’s) lawful arrest or detention is guilty of an offence.

Maximum penalty: Imprisonment for 25 years.

(3) Alternative verdict If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 35, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 35. The person is liable to punishment accordingly.

s 35 Crimes Act 1900 (NSW): Reckless grievous bodily harm or wounding

(1) Reckless grievous bodily harm-in company A person who, in the company of another person or persons:

(a) causes grievous bodily harm to any person, and

(b) is reckless as to causing actual bodily harm to that or any other person,

is guilty of an offence.

Maximum penalty: Imprisonment for 14 years.

(2) Reckless grievous bodily harm A person who:

(a) causes grievous bodily harm to any person, and

(b) is reckless as to causing actual bodily harm to that or any other person,

is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(3) Reckless wounding-in company A person who, in the company of another person or persons:

(a) wounds any person, and

(b) is reckless as to causing actual bodily harm to that or any other person,

is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(4) Reckless wounding A person who:

(a) wounds any person, and

(b) is reckless as to causing actual bodily harm to that or any other person,

is guilty of an offence.

Maximum penalty: Imprisonment for 7 years.

(5) Alternative verdict If on the trial of a person charged with an offence against any subsection of this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carries a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly.

An offence under s 33 is very serious and carries a maximum penalty of 25 years imprisonment. The seriousness of the crime is reflected in the requirement that the prosecution prove that the accused intended to cause GBH. This is in contrast to s 35 where there is no such mens rea requirement. The prosecution must only prove that the accused was reckless as to causing actual bodily harm (s 35(2)).

Unlike ss 61 and 59, however, ss 33 and 35 are entirely statutory. As such, they DO NOT require proof of an assault.

Under ss 33 and 35 the prosecution only has to establish that the harm amounted to GBH or wounding as an element of the actus reus. It is a question of fact for the jury to determine whether the injury amounts to GBH or wounding.

Grievous bodily harm

Defined as a ‘really serious bodily harm’ (R v Perks (1986) 41 SASR 335).

It is for the jury to determine whether an injury amounts to grievous bodily harm, e.g. a fracture to the skull or strangulation to the point of unconsciousness.

The statutory definition provided in s 4 is not the primary definition, just succinct examples, so the common law definition continues to apply.

Wounding

A wound is an injury which breaks through the whole skin, i.e., both the inner and outer skin (Vallance v R (1961) 108 CLR 56).

This may range from a minor cut to serious, deep knife wounds.

Elements

There are several different charges for offences causing grievous bodily harm, and the defendant’s culpability will revolve around his or her mens rea.

ss 33 and 35 have different mens rea.

The most serious offence requires that the defendant intended to wound or cause GBH to any person (s 33). The prosecution must prove intention to inflict GBH or to wound, the victim’s injuries amounted to GBH or a wound, and that the defendant caused this.

Under s 35 the defendant can be charged with reckless GBH or wounding. This requires that the defendant recognized the possibility of actual bodily harm (not necessarily GBH or wounding), that the victim suffered GBH or wounding, and that the defendant caused this.

In addition, s 54 proves an offence for causing GBH by any unlawful act or omission.

Negligence

Most assaults cannot be committed negligently (MacPherson v Brown (1975) 12 SASR 184); but there are exceptions such as s 54 of the Crimes Act 1900 (NSW):

s 54 Crimes Act 1900 (NSW): Causing grievous bodily harm

Whosoever by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for 2 years. (italics added)

Where negligence is an element, the prosecution must prove it to the criminal standard. It has been held that the standard of negligence is the same as for manslaughter (Newman [1948] VLR 61; high degree of negligence).

Class 9B – Sexual Assault

Elements of sexual assault

Actus Reus

There needs to be sexual intercourse

Sexual intercourse must take place without consent

Mens Rea

1. Knowing that the victim does not consent to sexual intercourse, where knowledge is deemed to include:

(a) Being aware that the victim does not consent;

(b) Being reckless as to whether or not the victim consents; or

Actus reus and mens rea at the same time

s 61I Crimes Act 1900 (NSW): Sexual assault

Any person who has sexual intercourse with another person without the consent of the other person and who know that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

s 61I makes no reference to recklessness or reasonable grounds. Section 61HA(3) refers to these factors amounting to knowledge of non-consent.

Definition of ‘sexual intercourse’

s 61H Crimes Act 1900 (NSW): Definition of “sexual intercourse” and other terms

(1) For the purposes of this Division,

“sexual intercourse” means:

(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

(i) any part of the body of another person, or

(ii) any object manipulated by another person.

except where the penetration is carried out for proper medical purposes, or

(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or

(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

(1A) For the purposes of this Division, a person has a

“cognitive impairment” if the person has:

(a) an intellectual disability, or

(b) a developmental disorder (including an autistic spectrum disorder), or

(d) dementia, or

(e) a severe mental illness, or

(f) a brain injury,

that results in the person requiring supervision or social habilitation in connection with daily life activities.

(2) For the purposes of this Division, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person.

(3) For the purposes of this Act, a person who incites another person to an act of indecency, as referred to in section 61N or 61O, is taken to commit and offence on the other person.

Do not need to prove whether sexual assault occurred or not. It will be a given that sexual intercourse had taken place. However, do mention the definition of ‘sexual intercourse’, which is found in s 61H Crimes Act 1900 (NSW).

Consent

s 61HA Crimes Act 1900 (NSW): Consent in relation to sexual assault offences

(1) Offences to which section applies

This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J and 61JA.

(2) Meaning of consent A person

“consents” to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.

(3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:

(a) the person knows that the other person does not consent to the sexual intercourse, or

(b) the person is reckless as to whether the other person consents to the sexual intercourse, or

For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:

(d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but

(e) not including any self-induced intoxication of the person.

(4) Negation of consent A person does not consent to sexual intercourse:

(a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or

(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or

(c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or

(d) if the person consents to the sexual intercourse because the person is unlawfully detained.

(5) A person who consents to sexual intercourse with another person:

(a) under a mistaken belief as to the identity of the other person, or

(b) under a mistaken belief that the other person is married to the person, or

(c) under a mistaken belief that the sexual intercourse is for health or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief.

(6) The grounds on which it may be established that a person does not consent to sexual intercourse include:

(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or

(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or

(7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

(8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse.

s 61HA provides a positive definition of consent

ss 4: Factors that automatically negates consent.

(a) There is the opportunity to give consent, but because of their age or cognitive incapacity, they don’t have the legal capacity to give consent in the first place

(b) No consent even nearly given

ss 6: Some circumstances that could vitiate consent – may be established to negate consent.

ss 7: Submission =/= consent.

ss 8: Not an exhaustive list.

Mens rea

Intention

If the defendant intends to have sexual intercourse with the victim, knowing that the victim does not consent (s 61HA(3)(a)).

To find that the accused intentionally had non-consensual sexual intercourse with the victim, the prosecution must prove that the defendant knew of the victim’s lack of consent.

Recklessness

If the defendant is reckless as to whether the victim consents to sexual intercourse (s 61HA(3)(b)).

The defendant can be guilty of either reckless advertence or inadvertence (R v Kitchner (1992) 29 NSWLR 696; Tolmie (1995) 37 NSWLR 660 (NSWCCA); Banditt (2004) 151 A Crim R 215).

To find that the accused recklessly had non-consensual sexual intercourse with the victim, the prosecution must prove that the defendant was reckless as to non-consent.

Advertent recklessness: foresight of the possibility of non-consent.

Where the accused adverts to the possibility that the victim does not consent, but goes ahead anyway.

Inadvertent recklessness: failing to advert at all to the question whether there is consent and just going ahead.

The accused does not even advert to consent; they fail to even think about whether the victim is consenting.

No reasonable grounds for belief in consent

The defendant has no reasonable grounds for believing that the victim consents to sexual intercourse (s 61HA(3)(c)), then mens rea is satisfied.

If the accused raises honest belief in consent, the prosecution has to prove that any belief held by the accused that the other person is consenting is unreasonable, taking into account any steps taken by the accused to ascertain whether consent was given (s 1).

DPP v Morgan [1976] AC 182 has been overturned, where the defendant is deemed to know that the victim is not consenting if the defendant ‘has no reasonable grounds for believing that the other person consents to the sexual intercourse’ (s 61HA(3)(c)).

This is a hybrid test, where it is subjective in the sense that we are relying on their genuine belief, but is objective in that that belief needs to be based on reasonable grounds, looking at the factual circumstances.

Mistaken belief in consent

Identity of the defendant

In NSW, R v Papadimitropoulos (1957) 98 CLR 249 has been overturned by statute. The victim’s consent to sexual intercourse, due to a mistaken belief that the defendant is the victim’s husband, will vitiate the victim’s consent under s 61R(2)(a)(ii) (NSW).

Nature of the act

The decision in R v Mobilio [1991] 1 VR 339 have been overturned in all jurisdictions.

Under these provisions, where the victim consent to sexual intercourse under a mistaken belief that it is for medical or hygienic purposes, the victim’s consent will be vitiated under s 61HA(5)(c).

Threats and violence

Consent obtained by threats of physical and non-physical kind will be vitiated (Papadimitropoulos; s 61HA(4)(c) (NSW)).

There is no need for the victim to physically resist in order to show lack of consent (Papadimitropoulos; s 61HA(7) (NSW)).

Class 10A – I. Attempt

s 344A Crimes Act 1900 (NSW): Attempts

(1) Subject to this Act, any person who attempts to commit any offence for which a penalty is provided under this Act shall be liable to that penalty.

(2) Where a person is convicted of an attempt to commit an offence and the offence concerned is a serious indictable offence the person shall be deemed to have been convicted of a serious indictable offence.

This section, however, tells us nothing about the elements of attempt. These are derived from the common law.

There are specific provisions for attempted sexual assault (s 61P) and attempted murder (s 26-30). However, exam questions about attempt or complicity will only be in the context of larceny, fraud, or assault, or sexual assault (i.e., not murder).

Mens rea

The prosecution must prove beyond a reasonable doubt:

The defendant intended to commit a crime; and

The defendant went beyond mere preparation (Britten v Alpogut [1987] VR 929)

Actus reus

There is no precise definition of the actus reus of the offence of attempt.

A broad definition is that the defendant’s actions must go beyond mere preparation, and go close to the commission of the intended crime (R v Collingridge (1976) 16 SASR).

The defendant’s actions are assessed according to objective standards, but based upon the belief that the defendant had the intent to commit the substantive offence.

There is no definitive test as to what ‘act’ is sufficient to constitute an attempt. However, several tests have been proposed to distinguish between mere preparation and attempt, which were discussed in DPP v Stonehouse [1978] AC 55 (Textbook: 170), and can be used as a guideline. The 4 tests are:

Proximity test: acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are (R v Eagleton (1843-60) 169 ER 826)

Last act test: an attempt is found only where the last act before completion has been performed (Eagleton)

Series of acts test: would an offence have been committed if this series of acts had not been interrupted? (Haughton v Smith [1975] AC 476)

Unequivocal test: an attempt only occurs where the conduct unequivocally indicates an intention to commit the offence: (R v Barker [1924] NZLR 865)

Impossibility

Impossibility of completing an offence is not a defence (Britten v Alpogut [1987]; R v Mai & Tran (1992) 26 NSWLR 371).

In cases where the defendant attempts the impossible, the ultimate issue will be whether the defendant’s actions are sufficiently proximate to the commission of the intended offence.

Thus, physical impossibility will not save the defendant from conduct that would otherwise amount to an attempt.

The focus is on the defendant’s mens area: Did the defendant have the intention to commit an offence?

Temporal coincidence

The act and intention needs to coincide.

II. Complicity: Joint criminal enterprise and extended joint criminal enterprise

Complicity

The offender may personally carry out the crime, in which case he or she is considered to be the principal offender, or principal offender in the 1st degree (P1).

The principle of ‘joint criminal enterprise’ or ‘acting in concert’ applies where 2 or more persons agree to commit a crime and one or all of the participants carry out the necessary conduct elements. All participants are treated as principals in the 1st degree.

Joint criminal enterprise

Where 2 or more people agree to commit a crime and one or all of the participants carry out the necessary conduct elements. All participants are treated as principals in the 1st degree.

Elements of joint criminal enterprise

In order for an accused to be considered as a part of a joint criminal enterprise, the prosecution must prove the elements as found in Osland v R (1988) 197 CLR 316 (Textbook: 1139):

1. Existence of a plan or agreement to commit an offence (MR)

Does not need to be through words, can be through conduct (Tangye (1997) 92 A Crime R 545)

There needs to be a meeting of the minds (Kanaan [2006] NSWCCA 109)

It can be longstanding or arising at the time of commission (Kanaan)

2. Each of the accused participates ‘in some way to furthering the execution’ of the plan or agreement (AR)

Presence at the scene can be sufficient (Huynh, Duong and Sem [2013] HCS 6 (Textbook: 1144))

Presence at the scene is not required (Prochilo [2003] NSWCCA 265)

3. Between them, the participates carry out the AR of the offence

Extended joint criminal enterprise

A situation where one of the participants commits another crime, in addition to, or instead of, the particular crime which was the objective of the joint criminal enterprise.

Doctrine of common purpose

The doctrine of common purpose can be applied where an offence was intended to be committed as part of a common purpose of ‘joint enterprise’.

It can also be utilised to extend liability to secondary participants for ‘incidental crimes which they did not intent to commit.

Requirements of extended joint criminal enterprise

The accused must have formed a common intention to prosecute an unlawful purpose;

the principle offence must have been committed in the pursuance of, in furtherance of, or for the purpose of, the common design;

the accused need only contemplate the incidental crime as no more than a possible incident of the joint enterprise (Johns v R (1980) 28 ALR 155).

The test is thus not particularly demanding, requiring only that the accused foresee the possibility, rather than probability, of the incidental crime (McAuliffe and McAuliffe v R (1995) 183 CLR 108 (Textbook: 1152)).

Withdrawal

The defendant may escape liability as an accessory if, before the offence was committed, the defendant terminated his or her involvement and took all reasonable steps to prevent the commission of the crime (White v Ridley (1978) 140 CLR 342).

To effectively withdraw from a common enterprise upon which he has embarked he must withdraw completely. It must be timely. He must make it known to the others that he was withdrawing and he must, by such act and words as may be appropriate, do what he reasonably can to dissuade the others from continuing with the unlawful purpose (R v Rook [1993] 1 All ER 955).

Class 10B – Complicity: Accessorial liability

Elements for accessories before the fact and participants in the 2nd degree

Actus Reus

To ‘aid, abet, counsel or procure’ the commission of the principal offence.

Mens Rea

Knowledge of all the essential facts of the crime.

With the knowledge of all the essential facts, the defendant intentionally aided, abetted, counselled or procured the acts of the principal offender.

Principle in the 2nd degree (s 345)

s 345 Crimes Act 1900 (NSW): Principles in the second degree-how tried and punished

Every principle in the second degree in any serious indictable offence shall be liable to the same punishment to which the person would have been liable had the person been the principal in the first degree.

Accessories before the fact (s 346)

s346 Crimes Act 1900 (NSW): Accessories before the fact-how tried and punished

Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not.

Doctrine of Innocent Agency

A person who acts through an innocent agent when he intentionally causes the external elements of the offence to be committed by (or partly by) a person who is himself innocent of the offence charged by reason of a lack of a required fault element, or lack of capacity (Pinkstone v R [2004] HCA 23 (Textbook 1176)).

Actus reus

Aiding and abetting usually refers to assistance or encouragement given to the main offender at the scene of the crime.

Aid: natural meaning – to ‘give support to – help, assist’ (R v Beck [1990] 1 Qd R 30)

Abet: to incite, instigate or encourage (Giorgi and Romeo v R (1982) 31 SASR 299)

It is not necessary for the prosecution to prove that the principal in fact derived assistance or encouragement from the accessory’s conduct. It is enough that assistance or encouragement was offered (with the requisite state of mind) (R v Lam [2005] 159 A Crim R 448).

Counselling or procuring refers to participation in the preparation or planning stages, but not the execution stage of the crime.

Counsel: encouragement or advice prior to the commission of a crime

Procure: to cause or bring about an offence (AG’s Reference (No 1 of 1975) [1975] QB 773)

Mere presence or acquiescence, even if not accidental, is not enough. The accused must have aided, abetted, counselled or procured the crime (rendered encouragement or assistance) (Phan [2001] NSWCCA 29 (Textbook: 1168)).

Causation

There is no causation requirement for aiding, abetting or counselling. Only procuring requires a causal link between the defendant’s conduct and commission of an offence (AG’s Reference (No 1 of 1975) [1975]).

The defendant’s act need only support or promote the commission of crime; it need not be said that it wholly or partly caused the crime (R v Russell [1933] VLR 59):

Russell watched his wife drown their 2 children and herself.

Held: His failure to do something actually caused the deaths of his wife and children.

Mens rea

The mens rea elements are found in Giorgianni v R (1985) 156 CLR 473:

‘No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender.’

Actual knowledge is required is required, even if the principal offence has no such mens rea requirement:

The defendant must know that a felony of the same kind is intended; and

with this knowledge, they did something to assist the felons (R v Bainbridge [1960] 1 KB 129).

The defendant must be well appraised of how their actions would assist in the end crime.

Class 11A – Defences: Mental illness, automatism, intoxication

Mental illness – not a defence in itself

s 38 Mental Health (Forensic Provisions) Act 1900 (NSW): Special verdict

(1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.

(2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order until section 39 in respect of the person.

For the common law defence to apply it must be proved on the balance of probabilities that at the time of committing the act the accused (M’Naghten’s Rules, from M’Naghten’s Case [1843-60] All ER Rep 229 (Textbook: 841)):

Was laboring under such defect of reason, owing to a disease of the mind

So as i) not to know the nature and quality of their act,

or, if the accused did know the nature and quality of the act; that ii) they did not know that what they were doing was wrong

Burden of proof

The prosecution is entitled to presume that every person is sane. To raise the issue of insanity, the evidentiary burden of suggesting that there is a reasonable possibility that the defendant was insane must be satisfied. The party raising the issue of insanity bears the burden of proving insanity on the balance of probabilities (R v Porter (1933) 55 CLR 182 (Textbook: 842)).

Insanity is thus an exception to the Woolmington v DPP (1935) AC 462 ‘golden thread’.

Legal burden

To prove on the balance of probabilities, that at the time of committing the acts constituting the offence: the accused was laboring under a defect of reason; the defect of reason was due to a ‘disease of the mind’; and because of that defect of reason the accused did not know either the nature and quality of his or her actions or that what he or she was doing was wrong (Porter).

‘Disease of the mind’ is a legal term, rather than a medical term. Whether or not there is sufficient evidence of the existence of a disease of the mind for the issue to go to the jury is a question of law for the judge to determine (R v Kemp [1957] 1 QB 399).

One major factor in determining whether a disease of the mind exists is the likelihood of recurrence. This is based on policy considerations related to community safety, rather than medical conceptions of diseases of the mind (Porter).

Conditions held to be a disease of the mind

Arteriosclerosis (hardening of arteries affecting the body) (Kemp)

Hyperglycemia (R v Hennessy [1989] 1 WLR 287)

Malfunctioning of the mind due to insulin (R v Quick [1973] 1 QB 910)

Sleepwalking (R v Burgess [1991] 2 WLR 1206)

Epilepsy (R v Sullivan [1984] 1 AC 156)

Schizophrenia (R v Burfield [2005] SASC 438)

Psychopathy and uncontrollable impulse

According to the law, a psychopath cannot assert insanity, as they know that what they are doing is wrong (Willgoss v R (1960) 105 CLR 295).

In and of itself, irresistible impulse is not a defence (Attorney-General for SA v Brown [1960] AC 432).

Nature and quality of the act

‘Nature and quality of the act’ has been defined as referring to the physical nature and consequences of the act, rather than to its moral aspects (Porter).

Definition of ‘wrong’

‘Wrong’ means wrong according to the principles of ordinary people (Porter). It does not mean wrong in the sense of being contrary to law.

Automatism

Burden of proof

The prosecution is entitled to presume voluntariness (R v Falconer (1990) 171 CLR 30). However, the defence can rebut this by raising automatism. In order to raise automatism as an issue, the defendant must satisfy the evidential burden; i.e., raise the possibility that the defendant’s actions were not voluntary.

Once the issue of (sane) automatism has been raised, the prosecution must prove, beyond a reasonable doubt; that the defendant’s actions were voluntary.

Examples of states of automatism

concussion from a blow to the head (R v Wogandt (1983) 33 A Crim R 131)

sleepwalking (Jiminez v R (1992) 106 ALR 162)

consumption of alcohol and drugs (R v O’Connor (1980) 146 CLR 64)

hypoglycemia (R v Quick [1973] 1 AB 910)

dissociation due to external stress (R v Falconer (1990) 171 CLR 30)

Sane automatism

No actus reus – voluntariness

A sound mind reacting to an external stimulus

Results in a complete acquittal

The defendant bears only the evidentiary burden, and the onus is on the prosecution to negate automatism beyond a reasonable doubt

Insane automatism

Insanity defence

An unhealthy mind reacting to an external stimulus

Results in a verdict of not guilty by reason of insanity

Acquitee detained for indefinite period

The defendant bears the burden of proving insanity on the balance of probabilities

Tests to distinguish between non-insane and sane automatism (R v Falconer (1990) 171 CLR 30 (Textbook 847))

The High Court identified 3 tests that can be used as a guideline:

Recurrence test: If a mental condition is prone to recur it should be considered a disease of the mind.

Bratty v AG (Northern Ireland) [1963] AC 386.

Internal/“external factor” test: If the mental state is internal, as opposed to arising from an external cause, then it should be defined as a disease of the mind.

Quick, Sullivan, Hennessy [1989) 2 All ER 9 and Rabey.

Unsound mind test: A disease of the mind is considered, on this test, to be evidenced by the reaction of an unsound mind to its own delusions or external stimuli.

R v Radford 191985) 42 SASR 266.

Intoxication

Part 11A Crimes Act – Intoxication

s 428A Crimes Act 1900 (NSW): Definitions

In this Part:

“drug” includes a drug within the meaning of the Drug Misuse and Trafficking Act 1985 and a posion, restricted substance or drug of addition within the meaning of the Poisons and Therapeutic Goods Act 1966.

“intoxication” means intoxication because of the influence of alcohol, a drug or any other substance.

“offence” includes an attempt to commit the offence.

“offence of specific intent” is defined in section 428 B.

“relevant conduct” means an act or omission necessary to constitute the actus reus of an offence.

“self-induced intoxication” means any intoxication except intoxication that:

(a) is involuntary, or

(b) results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or

(c) results from the administration of a drug for which a prescription is required in accordance with the prescription of a medical practitioner, a registered nurse who registration is endorsed under the Health Practitioner Regulation National Law as being qualified to practice as a nurse practitioner, a registered midwife whose registration is endorsed under the Health Practitioner Regulation National Law as being qualified to practice as a midwife practitioner, or dentist, or of a drug for which no prescription is required administered for the purpose, and in accordance with the dosage level recommended, in the manufacturer’s instructions.

s 428B Crimes Act 1900 (NSW): Offences of specific intent to which Part applies

(1) An

“offence of specific intent” is an offence of which an intention to cause a specific result is an element.

(2) Without limiting the generality of subsection (1), the offences referred to in the Table to this section are examples of offences of specific intent.

s 428C Crimes Act 1900 (NSW): Intoxication in relation to offences of specific intent

(1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent.

(2) However, such evidence cannot be taken into account if the person:

(a) had resolved before becoming intoxicated to do the relevant conduct, or

(b) became intoxicated in order to strengthen his or her resolve to do the relevant conduct.

s 428D Crimes Act 1900 (NSW): Intoxication in relation to other offences

In determining whether a person had the mens rea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct:

(a) if the intoxication was self-induced-cannot be taken into account, or

(b) If the intoxication was not self-induced-may be taken into account.

s 428E Crimes Act 1900 (NSW): Intoxication in relation to murder, manslaughter and assault causing death

(1) If evidence of intoxication at the time of the relevant conduct results in a person being acquitted of murder:

(a) in the case of intoxication that was self-induced-evidence of that intoxication cannot be taken into account in determining whether the person had the requisite mens are of manslaughter or for an offence under section 25A, or

(b) in the case of intoxication that was not self-induced-evidence of that intoxication may be taken into account in determining whether the person had the requisite mens rea of manslaughter or for an offence under section 25A.

(2) An offence under section 25A is not an offence of specific intent for the purposes of this Part.

s 428F Crimes Act 1900 (NSW): Intoxication in relation to the reasonable person test

If, for the purposes of determining whether a person is guilty of an offence, it is necessary to compare the state of mind of the person with that of a reasonable person, the comparison is to be made between the conduct or state of mind of the person and that of a reasonable person who is not intoxicated.

s 428G Crimes Act 1900 (NSW): Intoxication and the actus reus of an offence

(1) In determining whether a person has committed an offence, evidence of self-induced intoxication cannot be taken into account in determining whether the relevant conduct was voluntary.

(2) However, a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced.

s 428H Crimes Act 1900 (NSW): Abolition of common law relating to self-induced intoxication

The common law relating to the effect of intoxication on criminal liability is abolished.

s 428I Crimes Act 1900 (NSW): Application of Part

This Part applies to any offence (whether under this Act or otherwise) committed after the commencement of this Part.

Intoxication is not a defence to a criminal charge, but may negate certain elements of a crime if it causes a condition that is inconsistent with criminal responsibility.

Intoxication may form the basis of:

a plea of automatism: going to the actus reus, arguing involuntariness;

a defence of insanity, where an intoxicant has triggered an underlying disease of the mind; or

a denial that the defendant had the necessary mens rea.

Burden of proof

The defendant will bear the evidentiary burden of raising the issue of intoxication as it relates to involuntariness or insanity. Generally, the defendant’s evidence of intoxication will have to be reasonably persuasive before it is determined that the issue can be left to the jury. This evidence will be related to the fact of ingesting an intoxicant and the degree of intoxication:

where the defendant raises the intoxication in relation to a defence of (sane) automatism or involuntariness, the defendant will bear only the evidentiary burden. The prosecution will then be required to prove voluntariness or mens rea beyond a reasonable doubt;

where the defendant raises intoxication in relation to insanity, the defendant must prove insanity on the balance of probabilities.

The High Court has noted that juries tend to be skeptical of a defence based on self-induced intoxication: R v O’Connor (1980) 146 CLR 64.

Self-induced v involuntary intoxication

Intoxication is taken to be self-induced unless it was involuntary, due to fraud, sudden emergency, accident, reasonable mistake, duress or force; or where a prescription or non-prescription drug was taken in accordance with instructions: s 428 A.

Actus reus

Self-induced intoxication will not be available for a defence of involuntariness: 428G(1). The defence of involuntariness continues to be available if the defendant’s intoxication was not self-induced: s 428G(2).

Mens rea

A distinction is drawn between crimes of ‘specific’ intent and crimes of ‘basic’ or ‘general’ intent. The line between crimes of specific and basic intent can be arbitrary, but is specified in the legislation under s 428B. Offences of specific intent are offences of which an intent to cause a specific result is an element.

Intoxication may be pleaded in relation to specific intent crimes, whether the intoxication is self-induced or not: s 428 C.

In relation to offences other than those of specific intent, where the defendant raises intoxication as a negativing factor of mens rea:

if intoxication was self-induced, then it cannot be taken into account: s 428D(a);

if not self-induced, then intoxication may be taken into account: s 428D(b).

Basic Intent

Common assault

AOABH

Specific Intent

Larceny

Fraud

Recklessly causing GBH or wounding

Attempt

Principal in the 2nd degree

Dutch courage

Section 428C(2) accords with the common law rule that the defendant cannot rely on intoxication where the defendant became intoxicated for ‘Dutch courage’ (Attorney-General for Northern Ireland v Gallagher [1963] AC 349).

Critique

R v O’Connor (1980) 146 CLR 64 does not apply anymore.

The defendant can incur liability under the NSW legislation, while lacking vital elements for the offence, due to the culpability of becoming intoxicated.

Class 11B – Defences: Self-defence, necessity, duress

Self-defence

In all the States, legislative provisions have displaced some of the common law principles.

The law has recognized that a person is justified in using some level of force in self-defence.

To act in self-defence is to act lawfully, resulting in a complete acquittal of the defendant.

The principles of self-defence apply to defence of self, defence of other persons, prevention of a serious crime, defence of property and effecting a lawful arrest.

s 418 Crimes Act 1900 (NSW): Self-defence-when available

(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.

The questions to be asked by the jury under s 418 are: (1) is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself; and, (2) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them (R v Katarzynski [2002] NSWSC 613).

The first issue is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct.

The second issue is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he or she faced.

Burden of proof

The defendant must satisfy the evidentiary burden to raise the defence of self-defence, and if satisfied, the prosecution must then negate the defence beyond a reasonable doubt (s 419 (NSW)).

Necessity

The defence of necessity exists at common law (R v White (1987) 31 A Crim R 194).

Necessity is a complete defence.

Burden of proof

The defendant must satisfy the evidentiary burden to raise the defence of necessity. If successful, the prosecution must then negate the defence beyond a reasonable doubt.

Elements

The elements of the defence have been outlined in R v Loughnan [1981] VR 443 (Textbook 931):

Loughnan pleaded necessity on a charge of escaping from prison. He argued that he had been threatened with death by some prisoners and had to escape in order to save his life. His conviction was affirmed. However, the Court outlined the applicable principles.

Loughnan: 3 elements involved in the defence of necessity:

1. The criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect.

Threats of death, serious physical harm, sexual assault and suicide have been recognised at common law; however, these threats are not exhaustive. There is not requirement that the threats be unlawful.

2. Immediate peril: The accused must honestly, believe on reasonable grounds that he was placed in a situation of imminent peril.

real, in that it was capable of being demonstrated objectively to have existed; or

imaginary, that is, honestly and reasonably, but mistakenly believed by the defendant to exist.

The threat must be such that an ordinary person must be capable of yielding in the way that the defendant did.

3. Proportion: The acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril?

The response must be reasonable, necessary conduct: that is, the defendant had no alternative, other than the response adopted by him or her avoid the threat.

Rogers (Textbook: 932): applying Loughnan, addressed 3 elements of the legal excuse of necessity:

The seriousness of the evil which the appellant claimed to be seeking to avoid.

The immediacy or imminence of the peril.

The proportionality or reasonableness of the response.

Duress

The defence of duress comprises a plea by the defendant that he or she committed the crime under a threat of physical harm to the defendant, or to some other person, should the defendant refuse to comply with the threatener’s wishes (R v Hurley and Murray [1967] VR 526).

The accused person has been required to commit the act under threat to inflict GBH or death, if the act is not done.

Duress is a particular form of necessity, but is a separate defence to that of necessity.

Duress is a complete defence, leading to an acquittal.

Burden of proof

The defendant must satisfy the evidentiary burden, but, once this is satisfied, the prosecution must negative the defence beyond a reasonable doubt.

Elements

The elements of duress are established in R v Hurley and Murray, which are also cited in R v Lawrence [1980] 1 NSWLR 122 (Textbook: 942):

8 leading statements:

1. The threat must be a real threat of danger to life or health.

death and GBH (R v Hurley and Murray);

a lawful nature, e.g., where the threatener could plead insanity or is a child;

imprisonment (R v Lawrence);

torture causing intense pain, but without residual injury (Osborne v Goddard (1978) 21 ALR 189);

harm to a 3rd party (R v Abusafiah (1991) 24 NSWLR 531).

2. The ordinary person would have yielded to the threat.

Objective test, comprising of 2 elements: (1) ‘an average person of ordinary firmness of mind, of a like age and sex, in like circumstance, would have done the acts’; and (2) there was no reasonable way of avoiding the threat (R v Lawrence).

Preferred: The objective test is one of probability (would have yielded) in NSW (R v Abusafiah (1991) 24 NSWLR 531).

Battered woman syndrome can be considered (R v Runjanjic and Kontinnen (1991) 56 SASR 115).

3. The threat was present and imminent.

The threat may be present and continuing even if the threatener has no direct physical control over the defendant at the time the defendant commits the crime (R v Hudson [1971] 2 QB 202).

4. The accused reasonably apprehended that the threat would be carried out.

5. The threat actually induced the crime.

6. The resultant crime was not murder.

7. The accused, by their own fault, did not excuse the crime.

8. The accused had no means of avoiding the threat.

Failure to seek police protection, due to the reasonable belief that such aid would be ineffectual, will not necessarily exclude the defence (Brown v R (1986) 43 SASR 33).

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