Criminal Law Essay Example

CRIMINAL LAW

CRIMINAL LAW

Question 1

From when the crime was reported to the police, the process of prosecution started (Bronitt & McSherry, 2001; Redfern Legal Centre, 1986). A decision to charge in the case of Oscar is based on if the evidence collected from the case is realistic to lead to a conviction on two counts.

The first count of dishonest acquisition, which can be divided into stealing or Larceny, should lead to Oscar being charged. NSW still has a CL larceny while other Australian jurisdictions have statutory theft. The essential elements of the case are that the cleaning chemicals belonged to someone else, the products were taken and carried way since the police found them in his house, and the taking of the chemicals was without consent from Clive the owner of the company Clive’s Cleaning. All these elements are in relation to the Crimes Act 1900 (NSW), Pt. 4, Subdiv 5 (Woods, 2002). The case can be related to different other cases in terms of the three different elements. The movement of product with intent to steal them can be related to Wallis v Lane [1964] VR 293 Herring CJ and Potisk (1973) 6 SASR 389 (Blackmore & Hosking, 2007). The products were taken without the consent of Clive and this can be related to cases of Middleton (1873) LR 2 CCR 38, Kennison v Daire (1986) 60 ALRJ 249, and Kolosque v Miyazaki (unreported, NSWSC 17 February 1995) Dowd J (Brown et al., 2015). Finally, the products being unlawfully possessed can be related to Anic (1993) 61 SASR 223, Williams v Phillips (1957) 41 Cr App R 5, and Hibbert v McKiernan [1948] 2 KB 142 (Brown et al., 2006). Oscar should, therefore, be charged with larceny and no defense raised.

However, Oscar should not be charged with common assault of pouring chemicals Onto Clive’s hand since he was acting on self-defense. The Crimes Amendment (Self-defence) Act 2001 should be used for this count with a repeal to the Workplace (Occupants Protection) Act 2001 No 6 (Watson et al., 2001). The police investigation suggests that Clive raised his fist wanting to harm Oscar and this supports without reasonable doubt that it was self-defense as in the case of Colosimo v DPP [2006] NSWCA 293. Overall, defenses may be raised with regard to the act of Oscar pouring chemicals to Clive’s hand.

Question 2

From when the crime was reported to the police, the process of prosecution started. A decision to charge in the case of Dauld is based on if the evidence collected from the case is realistic to lead to conviction on the two offenses committed against Rafi and Eamon (George, 2001)

Dauld should be charged with having sexual intercourse with Eamon without consent according to the Crimes Act 1900 (NSW), ss 61I–61J. Sexual intercourse started willingly between Dauld and Eamon but after a few minutes Eamon tried to pull out but Dauld resisted and continued the intercourse forcefully without Eamon’s consent for a further five minutes. This case can be related to the Clarke (unreported NSWCCA 17 April 1998) (Howie & Johnson, 2011).

Dauld, however, should not be charged with murder according to the Crimes Act 1900- sect 18. The section clearly defines murder and manslaughter. According to the Act section 1a, Murder shall be taken to have been committed where the act of the accused,
or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit. Any person who kills another by misfortune only shall incur no punishment or forfeiture according to section 2b. It is clear that Dauld did not intend to kill Rafi by locking him up in the bathroom, therefore, he should not be charged with any offense in relation to Rafi. The defense can be raised in relation to intoxication. The fact that Dauld was intoxicated after drinking six bottles of beer at the time he locked Rafi in the bathroom forms a basis for raising the defense. The intoxication was self-induced due to depression but it still led Dauld locking Rafi in the bathroom.

References

Bronitt, S., & McSherry, B., 2001. Principles of criminal law. Pyrmont, NSW: LBC Information Services.

Blackmore, A. M., & Hosking, G. S., 2007. Criminal law handbook: Extracts from criminal law (NSW). Pyrmont, N.S.W: Lawbook Co.

Brown, D., Farrier, D., McNamara, L., Steel, A., Grewcock, M., Quilter, J., & Schwartz, M., 2015. Criminal Laws: Materials and Commentary on Criminal law and process of New South Wales.

Brown, D., Farrier, D., McNamara, L., Steel, A., Grewcock, M., Quilter, J., & Schwartz, M., 2006. Criminal Laws: Materials and Commentary on Criminal law and process in New South Wales. Leichhardt, N.S.W: Federation Press.

Crimes Amendment (Self-defence) Bill 2001.

Crimes Act 1900.

Howie, R. N., & Johnson, P. A., 2011. Annotated criminal legislation New South Wales. Chatswood, N.S.W: LexisNexis Butterworths.

George, Hampel, 2001. Hampel on Ethics and Etiquette for Advocates: A Guide to Basics. Melbourne: Leo Cussen Institute.

Melbourne University Law Review Association., & Melbourne Journal of International Law. 2010. Australian guide to legal citation. Melbourne: Melbourne University Law Review Association.

Redfern Legal Centre. 1986. The law handbook. Redfern Legal Centre Publishing.

Watson, R., Blackmore, A. M., & Hosking, G. S., 2001. Court Advocate’s Handbook: Extracts from Criminal Law (NSW). Pyrmont, N.S.W: Law Book Co.

Woods, G. D., 2002. A history of criminal law in New South Wales: The Colonial Period, 1788- 1900. Annandale, NSW: Federation Press.