Criminal Law - Question 1

Offence

Part II or Part IIAA

Physical element/s

Fault element/s

s 188(2)(d)

IIAA

Aggravated assault, use of offensive weapon, physical force

Motive to attack a person unable to defend or retaliate due to age, infirmity, physique or situation

s 174F(2)

IIA

Causing serious harm to a person

Driving a motor vehicle dangerously

s 66(4)

IIAA

Unlawful damage to property

Assemble with an intention to riot in a group of 12 or more people

s 226B(2)

IIAA

Causing damage to business property

Motive to enter unlawfully into business premises

Complete the table below by stating whether each of these offences under the Criminal Code (NT) is governed by Part II or Part IIAA of the Criminal Code (NT), and list all the physical and fault elements for each offence. For each fault element, indicate which physical element it attaches to.

Criminal Law - Question 2

Rick and Mick are artists and street performers who try to engage in social critique by performances that make members of the public feel uncomfortable. They regularly obtain permits to perform at the Mindil Beach markets in Darwin. One evening, whilst performing at the markets, they decide to try a new act they’ve been working on. Both Rick and Mick strip naked and engage in a mock sword fight using their penises as swords. In a fit of exuberance, Rick also slaps his penis against a nearby male bystander, whilst making a noise similar to a light saber from the Star Wars movies. Rick and Mick’s intention is to highlight issues with ‘toxic masculinity’. The performance, and their genitals, are viewed by several hundred people at the markets. Police charge both Rick and Mick with offences against s 133 and charge Rick with a further offence against s 188(2)(k) of the Criminal Code (NT).

You represent Rick. Advise Rick, with reference to the elements of the offence and any possible defences, whether he should plead guilty or not guilty to the offence against s 188(2)(k). [Note, you do not need to provide advice in relation to the offence against s 133].

S 188(2) (k) refers to sexual acts that are non consensual by nature. The elements of offence include an indecent assault that is sexual in nature and does not obtain the consent. While the most common possible defence relates to the aspect of self defence, it would not be available to Rick as there was no perceived fear or harm. Rick should ideally plead guilty to the charge.

Criminal Law - Question 3

Alison is in her early 20s and is well known in her social circles for her protests that involve various acts of vandalism, property damage, trespass and unlawful entry. Matthew is a friend who has always had a secret crush on Alison. One day Alison visits Matthew and asks to borrow his bolt cutters and a batman mask. “No worries,” says Matthew, lending the items to Alison. “what are you up to this time?” he asks. “Just the usual” replies Alison, “there’s a couple bigwigs in town tomorrow that need to learn a lesson.” “I’m sure you’ll make your point” replies Matthew.

Later that afternoon, Matthew hears on the news that the Prime Minister is visiting Darwin the following day. Matthew is immediately concerned that Alison will be involved in something to do with the Prime Minister’s visit. He calls Alison and says “Sorry, but I really need my batman mask and bolt cutters this evening. Can you please drop them off.” Alison is upset, but agrees.

Alison doesn’t return the bolt cutters and batman mask as asked. The next day she is arrested at Parliament house in Darwin, after cutting through a chain, sneaking into Parliament House and spray painting the words ‘The PM is like a shiver waiting for a spine’ on the inside wall. Alison was wearing the batman mask and in possession of the bolt cutters at the time of her arrest. In her police interview, she is asked where she obtained the items. In a fit of anger towards Matthew’s lack of support, she tells police where she obtained the items and recounts their conversations.

Alison is charged with 1) unlawful entry with intent to commit a summary offence (contrary to s 213(2) of the Criminal Code (NT), relating to the entry and intention to graffiti) and 2) damage to property (contrary to s 241(1) of the Criminal Code (NT), relating to the damaged chain and graffiti).

Matthew is also charged with both offences, on the basis of aiding Alison. You represent Matthew. Advise Matthew whether he should plead guilty or not guilty to each offence. Make sure you provide your advice by reference to the specific elements that must be proven and include specific references to relevant sections of the Criminal Code (NT).

Matthew would not have to plead guilty to each offence, as the key elements that would require to be proved include any specific act or omission that assists, encourages or lends moral support to the perpetration of a certain crime. S 213 (2) relates to unlawful entry into buildings, and Michael had not part to play in Alison entering the Parliament House unlawfully. S 241 (1) refers to damage to property where the fault elements include intentional damage and recklessness. Naturally, Matthew could not be imposed any criminal liability in this regard. Furthermore, the nature of the support would have to have a substantial effect on the perpetration of the crime. Although Matthew gave Alison the mask and the bolt cutters initially, as soon as he found out about the Prime Minister’s visit, he tried to take them back from her unsuccessfully.

Criminal Law - Question 4

Oliver is on a blind date with Kat at a local pub in Darwin. The date is going well (from Oliver’s perspective) and both Oliver and Kat have had several drinks. Kat mentions that she’s had a big week and is looking forward to having a few drinks and getting a bit dunk. Kat asks for a gin and tonic, and Oliver goes to the bar to order it. Oliver requests that the bartender put in three shots of gin rather than one shot, in the hopes that Kat will be more favourably inclined towards any future sexual advances if she’s had more to drink. Oliver goes back to the table and soon after the bartender delivers the drink to Kat. Kat has a sip of the drink, and immediately notices that it’s different to usual. She accuses Oliver of trying to engage in ‘date rape’ and reports him to the police. Oliver makes admissions to police in line with the facts above, because he believes that he has nothing to hide as he had no intention of engaging in ‘date rape’. Oliver is charged with an offence against s 176A(2) of the Criminal Code (NT).

You represent Oliver. Advise him, with reference to the elements of the offence and any possible defences, whether he should plead guilty or not guilty to the charge.

S 176A (2) refers to spiking food items and drinks, and Oliver would have to plead guilty to the offence based on the elements of the offence. The key element of fault would be the fact that Oliver did not notify Kat regarding the alcohol content with the motive of obtaining a favourable response for his sexual advances. Unwanted intoxication would also constitute the intent to cause harm, and Oliver would be guilty in this regard as well.

Criminal Law - Question 5

Mel lives in Humpty Doo, around 45 minutes outside of Darwin. One day as she is getting out of her new Landcruiser in the parking lot of the local shops, she’s approached by a large bikie. The bikie says to her, ‘I’ve got a job for you, and it’s in your best interests to take it up.’ Mel tells the bikie to leave her alone, but the bikie responds, ‘Nice 4wd. I’m sure you want to keep it that way. And remember, we can work out where you live. Your job is simple. You need to send that butcher a message – one that he won’t forget. Do that, and the job’s done.’

Mel looks around, but does not see anyone who might assist. Feeling she has no choice, she picks up a rock, opens the door of the butcher’s shop and throws the rock past the butcher’s head, deliberately missing. The butcher flinches and yells in fright. Mel runs out of the shop, jumps in her car and drives away. The Bikie is laughing the whole time, saying ‘who would’ve thought you’d actually do it?’

Mel’s actions are captured on CCTV footage, and she’s arrested soon after. In her police interview, she explains to police, “I had no choice, the bikie was going to do something to my car. And I deliberately didn’t hit the butcher with the rock. I made sure it just made him flinch.”

Police are dubious about Mel’s claims and charge her with aggravated assault under s 188(2)(m) of the Criminal Code (NT). They refuse her bail and she’s remanded in custody overnight.

The next morning the NT News runs the headline ‘Bikie warfare out of control in Humpty Doo - again.’

You visit Mel in the cells of Darwin Local Court.

  1. To what extent can the NT News headline be used to help establish Mel’s criminal liability for the offence she is currently charged with? (1 mark)

The news headlines could not be used to any extent in terms of establishing Mel’s criminal liability. The subject ofthe headlines focuses on Bikie warfare, whereas Mel had no involvement with the bikie gang.

  1. Advise Mel whether she should plead guilty or not guilty to the current charge. (8 marks)

S 188 (2) (m) refers to a common assault where the person assaulted, in this case the butcher, is threatened with a fire arm or any other dangerous weapon. Mel should not plead guilty to the offence as while a rock would ideally be considered as a dangerous weapon and her actions were recorded on the CCTV footage, the defence of undue influence in terms of the bikie threatening her to engage in the act could be applicable. However, it would rely on the scope of the arguments presented and the exercise of judicial discretion. The case of Kimmorley v Atherton is relevant in this regard, where the aspect of implied or tacit consent in cases of assault were deemed to be a defence.

  1. Do any mandatory sentencing provisions apply to Mel under the Sentencing Act 1995 (NT) if she pleads guilty or is found guilty of her current charge? (2 marks)

Provided that Mel is found guilty under the Sentencing Act 1995 (NT) or she pleads guilty to the charge, there would be a mandatory sentencing provision in terms of the duration of imprisonment for a period of 5 years.

Criminal Law - Question 6

Rachel goes out drinking with friends and is heavily intoxicated. Walking home, her friends notice a garden gnome in the front yard of a house. Rachel’s friends know that Rachel has a fear of gnomes, and so they encourage Rachel to “take out the gnome.” Rachel picks up a stick and smashes the head off the gnome, before continuing to walk home. The next day she is arrested by police and charged with damaging property (Criminal Code (NT) s 241(1)). 12 months ago Rachel pleaded guilty to a common assault after pushing someone during an argument at a footy match. What is the bail presumption for Rachel? Would the result be different if Rachel’s previous conviction had been for aggravated assault? Briefly set out how you reached your conclusions, with reference to relevant sections of the Bail Act (NT).

As per the provisions contained in Section 7A and Division 2 of the Bail Act (NT), the presumption for bail for Rachel considering how she pleaded guilty to a common assault a year back would be favouring the granting of a bail for the current charge under s 241 (1). However, had the previous offence been that of an aggravated assault, the presumption would be against the granting of bail. It would be unfavourable for Rachel in the case of an aggravated assault since she would still be in connection to the crime as mentioned in Division 2 s 8 (4) of the Bail Act (NT).

Criminal Law - Question 7

Short answers: For the following questions, state whether you ‘agree’ or ‘disagree’. Provide 1-2 sentences to support your conclusion. Refer to relevant legislation or cases where necessary.

  1. For offences under the Misuse of Drugs Act 1990 (NT) which do not contain an explicit fault element, the correct fault element is that the accused ‘intended or foresaw [the act or event] as a possible consequence’.

I would agree to the statement in terms of how the adjudication process in the lack of an explicit fault element would inherently rely on the aspects of foreseeability and intention for offences relating to the Misuse of Drugs Act 1990 (NT).

  1. The primary consideration in determining the presumption for/against bail under the Bail Act 1982 (NT) is whether or not the accused has a compelling lawful reason for being released from custody.

I agree with the statement. The primary consideration certainly relates to the presence of a lawful reason for being released for custody along with any previous convictions or offences.

  1. When an accused is on trial for murder, the jury can return a verdict of manslaughter even if the accused was not charged with manslaughter.

I agree with the statement. Several cases have been witnessed where the charge of manslaughter has been returned whereas the accused was not initially charged with the same. The case of R v Tran is relevant in this regard.

  1. In establishing the partial defence of provocation for the offence of murder, a defence lawyer can suggest to the jury that the jury assess the provocation in light of her client’s cultural background.

I agree with the statement. The cultural background can have different implications for different people based on specific measures of provocations. The case of R v Young had a similar scenario where the partial defence was upheld based on the cultural background of the defendant.

Criminal Law - Question 8

Short essay question: Only answer ONE of the questions below.

  1. Suggest two legislative or policy changes that you would make to increase rates of conviction for sexual offences. Set out reasons for your proposed changes.
  2. The fault element of ‘intention to cause serious harm’ for the offence of murder (s 156 Criminal Code (NT)) should be replaced with ‘reckless as to causing death’. Discuss and provide reasons for your answer.
  3. The criminal justice system does not adequately protect people who speak English as a second language. Discuss and provide reasons for your answer.
  4. Mandatory sentencing provisions are an effective form of general deterrence and are effective in reducing levels of crime. Discuss and provide reasons for your answer.
  5. Suggest two legislative or policy changes that you would make to improve policing of Aboriginal people in the NT. Set out reasons for your proposed changes.

Suggest two legislative or policy changes that you would make to increase rates of conviction for sexual offences. Set out reasons for your proposed changes.

Authentic Review of Sexual Offense and Child Sexual Abuse Legislation in Australia: 1788–2013.[9]. Authority police units and expert court records for sexual offenses in which specialists, judges, investigators and court staff have attempted preparing in the necessities and encounters of sexual viciousness casualties/survivors. Build up a national lawful reaction that advances consistency in approach, and equity in treatment and administration access, over the locales.

In Australia and somewhere else, residential/family savagery courts are situated in the justices' court purview, while most assault cases are managed in area or region courts. Thusly, proposition for a specific sexual brutality court would need to consider whether the court ought to be for less genuine sexual offense charges in the justices' locale or for a wide range of sexual offenses. Except for the Sexual Assault Archival Study on youth sex irritating (Daly, 2006a; Daly, 2010), there is no similar investigation of sexual offenses finished in court or by meeting.

It is critical to perceive that sexual offenses submitted by youngsters are not really appearances of sexual abnormality; they are regularly part of a general example of standoffish and culpable conduct.

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Criminal Law Assignment Help

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