Question 1

Issue 1
Can the prosecution prove murder against Arnold?
- Legal Capacity is presumed
- Voluntariness is presumed (Ryan (1967))
- 4 Heads of murder
o Intent to kill
o Intent to cause Grievous Bodily Harm
o Recklessness indifference to human life
o Constructive murder
Law
Definition of Murder
S 18(1)(a) (Crimes Act 1900)
o ‘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, or during or immediately after the commission, by
the accused, or some accomplice with him or her, of a crime punishable by imprisonment for
life or for 25 years.’

Sub-Issue 1
Can the prosecution prove the Actus Reus of Murder against Arnold?

Law
Actus Reus; ‘death of a person caused by a voluntary unlawful act of the defendant’ (Crimes Act 1900)
- Voluntariness; ‘minimum control over bodily actions’ (Ryan (1967))
- Death; ‘irreversible cessation of all function of the person’s brain or irreversible cessation of
circulation of blood in a person’s body’ (s41, Human Tissue Act 1982 (VIC))
- Life; ‘If [a person] has breathed, and has been wholly born into the world, whether it has had an
independent circulation or not.’ (s20, Crimes Act 1900)
Causation; (Objective Tests)
- Substantial or Significant Cause Test (Preferred test)
o R v Smith [1959]
 ‘It doesn’t have to be the only cause for their death but it must be a leading cause for
such.’
- Natural Consequence Test (Primarily used in escape cases)
o Royall v R (1991)
 ‘The conduct of the accused induces in the victim a ‘well-founded fear or
apprehension of physical harm’ such as to make it a natural consequence that he or
she should take such steps to flee or escape’ and if injured, the injury is caused by the
defendant’s conduct.’
- Reasonable Foreseeability Test
o Royall v R (1991)
 ‘Would a reasonable person have foreseen the victim’s death arising from the
conduct in which the defendant engaged in.’
Blaue’s principle; ‘You take your victim as you find them’ (R v Blaue (1975))

Application
Within the police interview Arnold states, ‘I turned around, it was George, and I immediately landed a powerful
punch square in the forehead’ confirming that it was his action alone which incapacitated George to begin with.
Further, although the paramedics were able to revive George and the conduct of nurse was a substantial factor in
inducing George’s coma and his eventual death, the post-mortem as well as the pathologist’s assessment
produced that Arnold’s actions were the ‘main cause of death.’

Conclusion
The prosecution would be able to prove the actus reus of murder against Arnold beyond a reasonable doubt.

Sub-Issue 2
Can the prosecution prove the Mens Rea of Murder against Arnold?

Law
Mens Rea states
- Intent to kill
- Intent to cause Grievous Bodily Harm
- Advertent Recklessness
Definition of Intent; ‘Aims or purpose of the actions of an individual’
Definition of Grievous Bodily Harm; ‘Really serious physical injury’ (R v Smith [1961])
Definition of Advertent Recklessness; ‘An accused is said to have been reckless if they acted in the knowledge
that a particular harmful consequence would probably result from their conduct, but they decided to continue
their actions regardless of that consequence’ (R v Crabbe (1985))
- Probable; ‘likely to happen’ (R v Crabbe)

Application
Arnold’s actions of calling an ambulance and advertising the need for CPR and medical attention expresses his
intent was not to kill George. Further, he has no desire to even cause grievous bodily harm. However, his
actions of punching George in the head demonstrates an element of recklessness and further, it’s evident through
his abusive questioning, ‘Do you want it; do you want it?... you hear me?’ that he understands the probability of
a harmful consequence following his actions.

Conclusion
The prosecution would find it difficult to demonstrate the mens rea of murder against Arnold.

Overall conclusion
The prosecution would find it difficult to prove murder against Arnold as the mens rea element is lacking, they
would be better suited with a manslaughter argument.

Issue 2
Can the prosecution prove manslaughter against Arnold?
- Legal Capacity is presumed
- Voluntariness is presumed (Ryan (1967))
- Heads of Manslaughter
o Unlawful and Dangerous Act Manslaughter
o Manslaughter by Criminal Negligence
Law
Definition of Manslaughter
- S 18(1)(b) (Crimes Act 1900)
o ‘Every other punishable homicide [apart from murder] shall be manslaughter’

The elements which must be proven are;

1. The action was voluntary, dangerous and unlawful which causes death
2. Intent to do the unlawful act
a. It must be an act not an omission (R v Lowe [1973])
3. It must be a dangerous act
Definition of unlawful; ‘There must be something unlawful within itself’ (R v Pullman (1991))
Definition of life – See above
Definition of death – See above
Causation test – See above
Definition of intent – See above
Definition of voluntariness – See above
Dangerousness test (Wilson v R (1992))
 - ‘Would a reasonable person, in the position of the defendant, have appreciated that the unlawful act
exposed the victim to an appreciable risk of serious injury?’
o Subjective Factors to consider;
 Physical and factual features of the situation and action of the defendant involved (R
v Wills [1983])
 In the defendant’s position (R v Cornelissen [2004])
 The defendant’s age (Dpp v Ty (2006))
o The idiosyncratic or ephemeral mental and emotional state of the defendant is not considered
(R v Wills [1983])

Application
Arnold’s action is an assault, which, is expresses to be unlawful within itself and further, under the
dangerousness test outline in R v Wilson (1992) it’s evident that Arnold had exposed George to an appreciable
risk of serious injury with a punch to the head as not only would it inflict pain but further, disorientate and
incapacitate George. Therefore, the act was both dangerous and unlawful and it was not an omission.

Conclusion
The prosecution could successfully prove manslaughter by unlawful and dangerous act against Arnold

Issue 3
Can the prosecution prove assault causing death under s 25A(1) against Arnold?
- Voluntariness is presumed (R v Ryan (1967))
- Legal Capacity is presumed

Law
- S 25A (Crimes Act 1900)
o (1) A person is guilty under this subsection if;
a) The person assaults another person by intentionally hitting the other person with
any part of the person’s body or with an object held by the person, and
b) The assault is not authorised by law, and
c) The assault causes the death of the other person
- ‘Hitting’ is undefined
Causation test under s 25A, (Crimes Act 1900)
- S 25A(3)
o For the purposes of this section, an assault causes the death of a person whether the person is
killed as a result of the injuries received directly from the assault or from hitting the ground or
an object as a consequence of the assault
 This test overrides the common law test for causation when consideration s 25A
assault causing death (R v Domio [2018])
Definition of life – See above
Definition of death – See above

Application
Arnold’s conduct of punching George in the face constitutes an assault, however, the further result of the assault
being George falling to the floor and falling unconscious for a short period of time does not constitute ‘the
person is killed as a result of the injuries received directly form the assault.’ The conduct of the nurse in failing
to administer the necessary medicine to stop George from falling into a coma, as evident in the post-mortem,
‘the cause of death ‘severe traumatic blunt force head injuries and the medical error.’ Is a necessary factor of
consideration when determining the cause of the death. The language of the legislation gives rise to a
presumption of the assault being the single and whole cause of the death.

Conclusion
The prosecution would not be able to prove assault causing death under s 25A(1) against Arnold due to the
cause of death being the assault and medical error as opposed to solely a consequence of the assault.
Issue 4
Can the prosecution prove aggravated assault causing death under s 25A(2) against Arnold?
- Voluntariness is presumed (R v Ryan (1967))
- Capacity is presumed

Law
- S 25A (Crimes Act 1900)
o (2) A person who is of or above the age of 18 years is guilty of an offence under this
subsection if the person commits an offence under subsection (1) where the person is
intoxicated.
Definition of intoxication;
- S 25A (Crimes Act 1900)
o (6) In proceedings for an offence under subsection (2) –
(a) Evidence may be given of the presence and concentration of any alcohol, drug or
other substance in the accused’s breath, blood or urine at the time of the alleged
offence as determined by an analysis carried out in accordance with Division 4 of
Part 10 of the Law Enforcement (Powers and Responsibilities) Act 2002, and
(b) The accused is conclusively presumed to be intoxicated if the… accused’s breath
or blood a concentration of 0.15 grams or more of alcohol in 210 litres of breath or
100 millilitres of blood.

- ‘Intoxicated’ is an ordinary English word, in common parlance, with its ordinary English meaning in
court… I suggest to the jury that the concept of a person being intoxicated by alcohol could be
expressed more plainly as the person being ‘drunk’ a person who is merely tipsy or ‘happy’ would not
be thought of as intoxicated’

Evidence of intoxication;
- Law Enforcement (Powers and Responsibilities) Act 2002
o S 138D
 (1) This division applies to a person who has been arrested by a police officer
a. For an alleged offence under section 25A(2) of the Crimes Act 1900
o S 138F
 (3) A breath test or breath analysis may only be required to be undertaken under this
section within 2 hours after the commission of the alleged offence.
o S 138G
 (3) A blood or urine sample may only be required to be provided under this section
within 4 hours after the commission of the alleged offence.

Application
As determined above when considering an offence under s 25A(1) Arnold cannot be accused with a s25A(2) as
it requires an alleged offence under subsection (1), ‘if the person commits an offence under subsection (1) where
the person is intoxicated.’ However, assuming that Arnold is liable to be accused with s 25A(1) offence of
assault causing death we must consider whether he was intoxicated to determine whether he is liable for an
offence under s 25A(2). The scenario explicitly states that, ‘The police, however, did not conduct any blood or
urine tests to check the level of alcohol in his system.’ Leaving the prosecution with only witness testimonies,
surveillance footage and the bartender’s conduct to discern whether Arnold would be considered as
‘intoxicated.’

Conclusion
Presuming that Arnold was able to be charged with the base offence of s 25A(1), it is difficult for the
prosecution to prove that Arnold was intoxicated during his offence as there is no concrete evidence to prove
such and it’s unreliable to rely on the evidence present to beyond a reasonable doubt.

Recommendation to the DPP

I contend that the DPP pursues this case with manslaughter as the initial offence of conviction as it promises the
best chance of conviction and it would achieve the highest level of justice once the mitigating factors are taken
into consideration for sentencing.
 Question 2
Issue 1
Can the prosecution prove an offence of common assault against Peter?
- Voluntariness is presumed (R v Ryan (1967))
- Legal Capacity is presumed
- Consent is not presumed

Law
S 61 (Crimes Act 1900)
- ‘Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to
imprisonment for two years’

Sub-Issue 1
Can the prosecution prove the actus reus of assault against Peter?

Law
Elements of the Actus Reus of assault;
- Voluntary act of unlawful physical contact
- Voluntary positive act creating an apprehension of imminent unlawful physical contact
Definition of imminence; ‘Not future threats’ (Knight v R (1988))
- Imminence is preserved through a period of undefined unlawful detention (Zanker v Vartzokas (1988))
Definition of actual bodily harm; ‘Any hurt or injury calculated to interfere with the health or comfort of the
person; more than merely ‘transient or trifling’
Definition of grievous bodily harm; ‘Really serious physical injury’

Application
The conduct of Peter in apprehending and assaulting Arnold left Arnold with, ‘4 broken ribs and he had to stay
in hospital under special care for about a month with it taking him another 3 months to reach full mobility’
which presents itself as actual bodily harm if not grievous bodily harm.

Conclusion
Peter does not demonstrate the under s 61 for common assault as it explicitly states, ‘although not occasioning
actual bodily harm’ which contradicts the scenario’s description of the injuries that Arnold sustained.

Sub-Issue 2
Can the prosecution prove the mens rea of assault against Peter?

Law
Definition of intention; ‘Aims or purposes of the actions of an individual’
- Negligence is an insufficient Mens Rea state (Macpherson v Brown (1975))
Recklessness
- ‘The possibility of imminent unlawful physical contact or as to a positive act giving rise to an
apprehension of unlawful physical contact

Application
Peter explicitly states to Arnold, ‘I hope that keeps you in hospital’ demonstrating an intention for him to cause
a level of harm which correlates with actual bodily harm.

Conclusion
Peter possesses the mens rea requirement of intent to assault Arnold, yet, it’s to an extent which is actual bodily
harm or above which goes beyond the requirements for a s 61 common assault. Thus, he does not possess the
necessary mens rea for a common assault
Overall Conclusion
Due to the severity of harm caused to Arnold and the higher level of intent an offence of common assault under
s 61 would not be severe enough for Peter’s actions.

Issue 2
Can the prosecution prove an offence of assault occasioning actual bodily harm

Law
S 59, (Crimes Act 1900)
(1) Whosoever assault any person, and thereby occasions actual bodily harm, shall be liable to
imprisonment for five years.

Elements of assault – See above

Definition of imminence – See above
Definition of actual bodily harm – See above
Definition of grievous bodily harm – See above
Elements of mens rea – See above
Definition of intent – See above
Definition of recklessness – See above

Application
The conduct of Peter amounts to a higher level of harm than actual bodily harm. Due to the presence of multiple
broken bones and the lengthy recovery process Arnold had to endure the level of harm induced by Peter
amounts to grievous bodily harm as opposed to actual bodily harm. Further, he possesses the mens rea to ‘keep
you [Arnold] in hospital’ accompanying his actions with an excess of mens rea correlating to a more aggravated
offence.

Conclusion
Peter’s conduct and the level of harm which he inflicted upon Arnold are to an excessive degree for a charge of
assault occasioning actual bodily harm. Thus, it would be unjust to allow him to be charged with a lesser
offence.

Issue 3
Can the prosecution prove an offence of intent to cause grievous bodily harm against Peter?

Law
S 33, (Crimes Act 1900)
(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
Definition of intent – See above
Definition of grievous bodily harm – See above
Definition of actual bodily harm – See above

Application
As mentioned above Peter’s conduct and the level of harm inflicted upon Arnold results to a higher degree than
actual bodily harm and thus, an offence of intent to cause grievous bodily harm is the best course of prosecution.
The hospital times and the x-rays are enough to fulfill the actus reus requirement as Peter’s own words, ‘I hope
that keeps you in hospital’ towards Arnold fulfill the mens rea requirement of intent for the offence. Although
Peter, ‘realises that he crossed a line’ this does not interrupt the mens rea of his actions as mens rea is taken
during or before the offence is committed, not after. Thus he possessed the intent to cause grievous bodily harm
and later realised his downfall.
Conclusion
The prosecution could successfully prove an offence of intent to cause grievous bodily harm against Peter.

Issue 4
Can the prosecution prove an offence of reckless grievous bodily harm?

Law
S 35, (Crimes Act 1900)
(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.
Definition of recklessness – See above
Definition of grievous bodily harm – See above
Definition of actual bodily harm – See above

Application
Although Peter felt that he had, ‘crossed the line’ after he assaulted Arnold the mens rea of the offence is taken
before and/or during the time of the offence, thus, such a remark is discarded when considering his mens rea
state for the offence. Thus, as mentioned above, Peter possesses the necessary mens rea to understand and
commit an offence of intent to cause grievous bodily harm and was not reckless to his behaviour.

Conclusion
It’s clear through Peter’s conduct and language that he was aware of his actions and thus was not reckless in his
offence. The prosecution could not prove an offence of reckless grievous bodily harm.

Overall conclusion
The prosecution would have the best chance of proving intent to cause grievous bodily harm beyond a
reasonable doubt in court.