Criminal Law Take Home Exam (2 Viewers)

[scarecrow_of_oz]

sorry mj i'm just firing off question after question as i come across them!
fofeiture and pecuniary penalty is in the week 6 (drugs) readings, p.1142-52. i was a bit suprised by that - seems so harsh! - and i'm sure they wouldn't do it that often but would it be a possibility in this case? IF the house is a drug premises or whatever (which there probably isn't evidence for) they could take it as 'tainted', and couldn't her bank account etc be seized with pecuniary penalty as likely being derived from illegal activities unless she can prove otherwise?
so many readings...

 

[MaryJane]

Hmm... I guess the DPP could argue for forfeiture of the house, but personally I think it might be a long shot. However, if I need to boost out my word count (which I probably will!) I'm going to mention it briefly. I'd counter it by saying... I dont know! Maybe could you argue that the house itself was not used in the commission of a crime? All the cases they mention involve cars moving heroin or ships with pot, but nothing about possession in a house. Personally, I think its a bit harsh to ask for that kind of penalty.

I dont knooowwww!!!

 

[scarecrow_of_oz]

yeah i think they can only even try and take the house if there's evidence of her giving drugs to people in it or from it - although she prolly did there isn't any specific evidence to support it so i will probably only include it if i need the words. but what of pecuniary property - if she made 'heaps of money' wouldn't there be a case for police confiscation of it as a penalty (its applicable to fraud and drug offences)?

 

[MaryJane]

Yeah I agree that if she did make heaps of money from her flour-selling then they could confiscate the money... But didnt the text say that they first have to prove that she committed the offence before being able to confiscate?

Also, when you get up to it, I want your opinion on the detention: was it lawful etc? Because they have the 4 hour limit and didnt get it extended by a magistrate, and so I was wondering whether she could argue Williams v R?

 

[scarecrow_of_oz]

not quite up to that bit but will wb as soon as i find it and have a think
if i ever finish the readings....

 

[MaryJane]

With the second charge of supply with a deemed drug, there is no need to prove actual actus reus is there because the legislation says it can be an agreement, so they dont need to physically have it on their person at that time... right?

Also, what are you guys saying about drugs just generally? I'm saying that they cannot prove mens rea or actus reus for the first charge of deemed supply, and because of this, the charge of deemed supply might not be successful, but it all depends on whether the court deems her confession admissible or not..

 

[scarecrow_of_oz]

as i understand it, it's deemed supply for the first one and deemed drugs for the second one... how do u reckon we relate williams v r (main common law case?) to statute (the statute being the four hours thing) do u reckon? doesn't statute sort of cancel out williams v r?

 

[scarecrow_of_oz]

do u think there is an element of fraud here (passing off flour as heroin for the purpose of monetary gain) or would that not be at issue since the device in question is illegal? i just don't want to lose marks for not mentioning it under substantive law!
and i'm still not sure if i should refer to the customs act at all - u're sure ur friend's tutor said it was not at issue at all because it's commonwealth legislation? i don't get it
oh if i only had a brain...

 

[MaryJane]

lol, love the comment at the end

I've done a draft, and although its terrible, its nearly 2200 words, without mentioning fraud. I'm not going to say it because its a deemed drug under s. 40 of the DMTA, and so I think that says enough.

And I'm positive there is no customs act: the customs act is commonwealth legislation for importation of drugs. Kylie didnt import the drugs, she only possessed/supplied them, and so no need for customs act, only DMTA.

 

[scarecrow_of_oz]

you're finished?! wow well done!
i've written like 50 words... well i suck
hmmm... i thought they had the option of getting them under the customs act with them having the onus of proving it's not an import? maybe not - u sure anne said no customs? hope so, so many words for that!
and she does mention in the lecture notes for drugs that exchanging flour represented as money is dishonest aquisition for which they can be properly charged doesn't she (p.9)? i'm not sure if they could charge it in addition, i mean i know they'd go for supply of deemed drugs but couldn't dishonest aquisition charges still be laid against her?

 

[iwannarock]

well i'm about halfway through the readings.

things are sorta starting to make sense. yeah like mj said i'm not using customs act because i don't think kylie imported the drugs. DMTA all the way! and there's that Filipetti case where the dude had drugs in a house........but it was in a place where tonnes of people had access to sorta like this. so im guessing all the drugs stuff is substantive.......procedural and evidence stuff left to go.

don't worry but, some time 2morow when i finish the reading and actually begin writing........there'll be pleeeeeeeenty of questions i'll need answered.

and MJ finished already wow! well done! you better be here for moral support 2morow night for me and scarecrow.

its gonna be a long night 2morow....well into the wee hours. i'll have to find the new important case before i can say it's "[insert case name here] time"

 

[MaryJane]

Oh no, hardly finished, just a rough draft (and I mean oh-my-god-that-is-terrible-what-was-I-thinking-am-I-on-drugs kinda draft).

I remember what anne said in the lecture about the flour... Hmm... will re-read that tomorrow and get back to you!

I'm finding it really difficult to clearly go through the arrest stuff. I mean, I'm trying to argue unlawful detention because of the whole 4 hour thing, but its hard to keep it structured when other facts (like the lack of cautioning about her rights etc) all come into it too...

So tired... going to bed... sleep lots... work lots tomorrow.

 

[scarecrow_of_oz]

i think for the customs thing it's not that she imported them, its that the drugs she has are presumed to be imports... but i don't think i'll worry about it - even if charges under that act are possible, it would be more attractive for them to use the state legislation.
plus if anne said don't worry about it i definately shouldn't since she's my tutor!! that's what she said to ur friend isn't it mj? that's good - customs would've taken too many words to go into.
sweet dreams guys, see u tomorrow!

 

[MaryJane]

Yup, thats what Anne said so you should be fine!

So sleepy, going to have a coffee and then come back and work When are the rest of your exams? Do you have a decent break after this is finished?

 

[MaryJane]

Scarecrow, in relation to the dishonest acquisition she talks of in the lecture:

"And clearly what he intends to do is engage in an offence of dishonest acquisition, with which he might properly be charged. However, under the legislation section 40, if you represent a substance to bea drug, it will be deemed to be a drug".

See, I interpret that as, yeah, it could be dishonest acquisition, but under the circumstances (being drug charges), he would be charged with having a deemed drug under s. 40...

 

[scarecrow_of_oz]

i took it as an either/or thing - as in she could be charged with dishonest acquisition but could also be charged with supply since it's a deemed drug - maybe i'm wrong tho still not sure wat i'm gonna do about that one!
after this exam i've got accg105 on friday, then the following monday i've got market research, and distribution on the wednesday... so i might take monday night off... how about u wat's ur timetable like?

 

[MaryJane]

I have one on friday, and then one the following thursday and friday. Cant wait until this is all over and I can lounge around in the sun and not have a care in the world!

How are you going? I'm trying to rewrite mine, and I'm nearly finished, just have to do the drug bits and the charges, but for some reason my word count has dramatically dropped from last nights attempt. I guess that just shows how incredibly crap and wafty my original draft was!

 

[MaryJane]

Hey, question...

If the confession is deemed admissible evidence, how are we ever to prove her innocence? Because I'm sitting here trying to say "well, it cant be proved that she had exclusive control because of the other people living there", but then the prosecution can say "well, that doesnt matter because she's confessed".. And you cant keep saying that there must be a warning re: dangers of committing on uncorroborated evidence... personally, I dont think thats v. strong.

so confused.

 

[scarecrow_of_oz]

i'm not going too bad - i've written about 600 words... should really get a move on still languishing in my substantive area - once i work out wat i want to say i always have trouble convincing myself to write it!
hmmm.... i've still got a little bit to go on evidential readings... but i see what u're saying - i was planning on crapping on about the warning but u're right that doesn't sound that promising... if i come across something else i'll let u know (and if u do plz post it!) but it might just have to be one of those things that has to be left to the jury- and u can talk about distrust of the police, criticism and so on that might help her chances but you're right she does have some problems if it's admitted.
are u planning on making much of the search? my friend and i were trying to find stuff on it - wouldn't be legal in america without a warrant but here i'm not sure...

 

[scarecrow_of_oz]

hehe they even called the cops to ask - and the cops said it was illegal - but we can't find the relevant case law and legislation