Criminal Law Take Home Exam (2 Viewers)

[MaryJane]

illegal to search a house without a warrant? Hmm... I was under the impression that s. 352 (2) of the Crimes Act said it is legal...

http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s352.html

I briefly mention it, and just say that there is no dispute about searching the house...

 

[MaryJane]

Also, what exactly is the legislation for fraud? I'm worried about not mentioning it now!

 

[iwannarock]

ok i've finally done the reading. some stuff still is a bit "iffy" but.

mainly the procedural stuff. so the 4 hours begins from 11am. i think in total they keep her for 5 hours (discounting breaks travel time and whatnot). so her confession was made after being held longer than 4 hours? so then combined with the whole way in which the confession came it (inducement or wateva) would be excluded in court depending on the discretion of the judge?

and oh great the procedural's worth the most

oh and i finish on wednesday. this essay monday......then another essay due on wednesday. i dont have any exams this semester.

 

[iwannarock]

illegal to search a house without a warrant? Hmm... I was under the impression that s. 352 (2) of the Crimes Act said it is legal...

http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s352.html

I briefly mention it, and just say that there is no dispute about searching the house...

i still dont get that. where does it say they are allowed to search the property?

only says property on the person.....like if she had the drugs in her pocket.

im confused

 

[MaryJane]

Hmm, yes good point. lol, it just goes to show I'm over the researching.

So yeah, I guess the search was illegal... but then, as scarecrow said, where is the legislation which says it? Plus, I wont be able to fit it in seeing I'm already way over the word count - stupid references!

 

[MaryJane]

Ah, but what about Filippetti? They took the weed off him, right? And it wasnt on his person, but in that chair.. I wonder what they did?

 

[scarecrow_of_oz]

filippetti gave consent didn't he?
i'm not sure about the fraud thing - i'm going to look at it later if i have time. i'm just not sure what to do about that one!
or search!

 

[MaryJane]

I dont think this is fantastic, but might suffice for search: http://www.austlii.edu.au/au/legis/nsw/consol_act/dmata1985256/s37.html

 

[iwannarock]

i remember reading somewhere, that if you invite police onto your property then they can search it without warrant. that might have been why they could search filipeti.

i dunno where i read it but.

 

[iwannarock]

actually it says in Filipeti that they have a search warrant. right at the beginning.

dang

 

[iwannarock]

i have a question.

how do we deal with the mens rea and stuff. i mean the customs act mentions it. but im using the DMTA. and it doesnt mention the mens rea at all.

and i can't use He Kaw Teh or wateva because thats for offences against s233B of the Customs act or whatever.

23 hours to get this done..........alright.

 

[scarecrow_of_oz]

it's ok - dib confirmed he kaw teh as authority for mens rea for DMTA - says so on p.1128 towards the end of the page

 

[MaryJane]

If you read Anne's drug lecture, it actually says in there what the mens rea is for the DMTA (although v. poorly).

Basically, (and I got this from other sites too just randomly), the mens rea is the same for deemed supply as it is in the customs act, so He Kaw Teh is applicable and good law re: mens rea. actus reus is just filippetti. With supply it gets a lot more complicated, because the mens rea is found in Addison (1993), which says that there doesnt have to be an intent to supply the drug, but a genuine agreement to sell the drug. So its much simpler to prove.

 

[scarecrow_of_oz]

hey can possession be tried by indictment or only summarily? cause i know they'd prolly charge her with supply (and i know the penalties and such for that) but with that quantity could they still charge her with possession? and with possession, is there only the summary offence available with 2 yrs as the max, or can they still proceed by way of indictment?

 

[MaryJane]

I dont think they can charge her with possession, HOWEVER, the prosecution must prove the elements of possession before following through with the deemed supply charge.

I'm also pretty sure that possession is just summary... I havent seen anything to suggest its indictable.

Actually... hmm.. you might be able to charge someone with possession of a large quantity, perhaps if they could only prove possession, not supply... Maybe?

 

[iwannarock]

damn He Kaw Teh is a long case.

i'm trying to look for the general rule about mens rea........but im finding a lot of philosophical mumbo jumbo :S

 

[iwannarock]

I dont think they can charge her with possession, HOWEVER, the prosecution must prove the elements of possession before following through with the deemed supply charge.

I'm also pretty sure that possession is just summary... I havent seen anything to suggest its indictable.

Actually... hmm.. you might be able to charge someone with possession of a large quantity, perhaps if they could only prove possession, not supply... Maybe?

go to page 1136 in the textbook.

it says "those in posession of the traffickable quantity of a drug are presumed to be in posession for the purposes of supply" and the only way Kylie could argue against it is that she had them for reasons other than supply ieersonal use which probably wont happen since theres 55g of the stuff. hard to justify personal use for that.

yeah so i think they automatically charge her with supply.

 

[scarecrow_of_oz]

dammit! there goes my whole 'possession' section!

 

[MaryJane]

do you guys know what page it is in the book where it lists the quantities needed for possession, supply, trafficking etc?

and what are you guys saying for search? i figured there are more important things to discuss, and we werent really taught it, so I just kinda mention it, but say that its not a contested issue.

 

[scarecrow_of_oz]

I get confused on that bit - the book seems to randomly spit out a 'traffickable quantities' section on p.1137 but i don't know how to reference it or where it comes from. then it says the current amounts are in sch1 of the DMT(amendment)A (the amounts and penalties for this are on p.1139). i don't know which one to use either.
and for better or for worse, i am keeping my possession section!! and i will use it as a reference for my supply section. rah ongoing supply - is that relevant here? some people seem to think it is, some don't.
on the 'search front' i'm still searching - i'm fair sure the search was illegal but the books not very forthcoming about it