Criminal law (1 Viewer)

[MaryJane]

Does anyone know the answer to my two questions (C'mon iwannarock and Mr. Oz, you know you wanna help me )

Ummm.. Do you know whether we have the 10% leeway for the word count? I emailed Anne, and she said "I cant answer any questions during the exam period": what the hell is that? I'm not asking a question about the exam, but the admin stuffo. Grrr.

And with Attempts, have we even done anything on attempts? Its briefly mentioned in the book, and even then it doesnt tell us what the result is of an attempt.. perhaps G2G could throw some light on the situation?

Ta lovelies!

 

[MaryJane]

Ah, I have just found it.

I am 600 words over. Yuck.

 

[iwannarock]

Ah, I have just found it.

I am 600 words over. Yuck.

600 words over?.......oh how i envy your position.

right now i'm 2000 words under

what do you mean by attempts?.......as in attempted murder? but the guy died? i haven't read about causation but does the issue of causation lead the charge to be lessened to attempted murder or manslaughter?

you're confusing me.

oh and how do we apply bws in regards to self defence. i mean it hasn't been used in australia, well i mean it hasn't been used successfully in an australian case only that american one? all i could find is its use in regards to provocation. oh i don't know anymore ah well i'll make good use of that fact in the prosecutors argument

lucky i will have anne marking mine. good old wackey yet incredibly generous anne

 

[scarecrow_of_oz]

i'm thinking i'll start with causation, then go with actus, mens, etc. maryjane i'm confused about how to order the defences too- i mean, can u say that the requisite mens rea may not have been there cause of insanity- what's the deal there- i know insanity's meant to be this complete (though unattractive) defence, but is it a 'defence' or does it just mean maybe the prosecution can't establish all the elements (like intent) of the crime? and automatism goes to actus reas so is it the same deal or would you address it separately from the actus reas elements of the crime thing as a 'defence'?

anyone raising substantial impairment (cause of the severe depression)?

oh if i only had a brain

 

[Frigid]

do you guys use that crabby orange crim law textbook too?

 

[iwannarock]

hahah, how very ironic. the people who maryjane asked for help in the first place are both now clueless and are in desperate need of her expertise.

 

[MaryJane]

what do you mean by attempts?.......as in attempted murder? but the guy died? i haven't read about causation but does the issue of causation lead the charge to be lessened to attempted murder or manslaughter?

Yeah, I mean attempted murder. I figured it all out though, just read the lecture on attempts. Basically, its an issue of causation: did she, or did she not kill him in the legal sense. See Smith (1959) for the NSW test.

oh and how do we apply bws in regards to self defence. i mean it hasn't been used in australia, well i mean it hasn't been used successfully in an australian case only that american one? all i could find is its use in regards to provocation. oh i don't know anymore ah well i'll make good use of that fact in the prosecutors argument

I applied BWS in regards to selfdefence v. tokenly. Because the test is subjective for necessity, I just said that the domestic violence could be taken into account.

One thing I'm finding is that all of my prosecution arguments are pretty, well, crappy. i dont like them, and then I try to extend them, and then I'm back over the bloody wordlimit!

i know insanity's meant to be this complete (though unattractive) defence, but is it a 'defence' or does it just mean maybe the prosecution can't establish all the elements (like intent) of the crime? and automatism goes to actus reas so is it the same deal or would you address it separately from the actus reas elements of the crime thing as a 'defence'?

anyone raising substantial impairment (cause of the severe depression)?

I've raised insanity from the defences perspective in automatism. They're arguing insane automatism, which is effectively (in my understanding) insanity. It has the same repurcussions, and I cant raise insanity by itself due to lack of words, so I'm cheating and combining the two. I figure that way I've covered both insanity and insane automatism in one!

I'm using substantial impairment re:depression. I love this argument- its the topic I did for my class facilitation!

 

[MaryJane]

do you guys use that crabby orange crim law textbook too?

That book needs updating already: its like the 1998 edition, a lot has happened since then! I never know whether to trust what its saying... Grrr!

 

[scarecrow_of_oz]

cool thanks maryjane u are the queen of law! all hail thee! (as we can see, i have already entered into the delerious segment of the night). but are you going to talk about the necessary prosecutorial establishment of the elements of the offence (i.e. mens rea, actus etc?) and if so, with that would you say perhaps they'll fail in their burden with regards to actus (cause automatism) and mens (cause insanity??!- confused- is insanity about the failure of the mens rea element?). and if so won't it all hectically overlap - i don't know how to structure it to properly cover elemental issues without necessarily having to go into the defences, which will make it a bit messy - i think they want us to have lovely litttle paragraphs under the heading 'defences' when it comes to the defence side of thing.

 

[iwannarock]

i'm actually using headings for the first time in an essay for uni.

i just started with a heading of issues.

then a heading of sarah's case where i'll just discuss her "options" defences wateva which im doing now.

then later i'll have a heading of prosecutors case, mens rea might come into play there in regards to how they would prove her guility and the difficulty (cuz of automatism impairment and stuff). any thing i've left out or not argued completely in sarah's case i'll continue here by rebutting it with what the prosecutors would argue.

oh and maryjane, i find that'll i'll probably have to be very sneaky to make it look like my prosecutors argument is very strong. i may purposely throw in a weak argument in sarah's case so it can be completely ripped apart when i get to the prosecutors argument and hopefully that will hide the fact that my prosecutors argument will be weak in regards to other things.

just a suggestion, i really don't know if it'd work but thats what i'm doing.

 

[MaryJane]

I was thinking about separating my essay into defence and prosecution, but I dont think I have the words to do it in! So its under the little headings of the different defences, but under each defence I have the defence and prosecutions arguments... kinda like any other law hypothetical question... its all just a icky mush! I want it to be over!

I'm going through the elements of murder at the beginning like: "murder needs to have intent, reckless indifference or blah blah. The prosecution will argue" etc etc.. My issues is just an introductory paragraph.

 

[iwannarock]

I saw issues worth 10% out of 50%. so i thought hmmmmm thats 400 words from 2000. so i made it about that....probably more like 350. Enough to get a heading. Its my intro too.

im at like 750 words now........and im still talking about provocation, although intoxication is quick, just impairment and self defense to go. then prosecution ahoy!

elements of murder oh yeah, damn i hope i can fit that in, i'll put it in the prosecution section but damn im gonna be running out of words.

as long as the marker thinks im doing something right hopefully they give me the pass.

can't wait til this is over. although......the happiness will be shortlived as the ever approaching ominous black cloud of contracts will rear its ugly head soon.

 

[MaryJane]

Question with murder: do we have to prove reckless indifference all the time? or only sometimes if its what the case is going on, due to all the "or's" between each possibility;

"was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm, or donte in an attempt to commit..."

??

 

[iwannarock]

i guess only sometimes, it just happens that reckless indifference is first on the list. with all those "or"s any of those conditions would fulfil the requirement for murder.

so i'm guessing prove at least one of those conditions, not necessarily reckless indifference but any of them will do?

 

[scarecrow_of_oz]

nah for this one i think it'd just be 'with intent' - reckless indifference is more like with that case where the guy drove a truck through a wall and killed people he didn't know for sure but could have forseen were behind it.

this 'issues thing' - everyone seems to be doing it explicitly i don't get that how are you approaching it? I was just going to let the issues 'surface' with my arguments

 

[MaryJane]

Cool, thats what i thought too..

With specific intent, if she argues intoxication, what are the possible outcomes? it cant be acquittal can it? its just taken into account in jury direction and sentencing, right?

Are both of you putting causation first? I was going to do that, but just felt silly saying at the beginning that she would be acquitted, but then going through the defences... how are you guys going about that?

 

[scarecrow_of_oz]

it'd be really hard for her to establish that intoxication deprived her of the necessary actus reus of the offence. but if she is successful (and its a rare case if she is) then i think it just goes to the closest crime that only requires basic intent - probably manslaughter. are you so sure she'll win in the causation stage? i mean her stabbing her husband satisfies fairly easily the 'but for' and 'operating and substantial cause' tests- i mean the treatment was pretty damn bad but are you sure it would necessarily sever the chain of causation? would the original wound be considered 'merely part of the history' of the harm given that from trying to fix it the gross negligence occurred? i mean, you're probably right (just checking causation notes now) but do you think the outcome would be that certain?

 

[MaryJane]

it'd be really hard for her to establish that intoxication deprived her of the necessary actus reus of the offence. but if she is successful (and its a rare case if she is) then i think it just goes to the closest crime that only requires basic intent - probably manslaughter. are you so sure she'll win in the causation stage? i mean her stabbing her husband satisfies fairly easily the 'but for' and 'operating and substantial cause' tests- i mean the treatment was pretty damn bad but are you sure it would necessarily sever the chain of causation? would the original wound be considered 'merely part of the history' of the harm given that from trying to fix it the gross negligence occurred? i mean, you're probably right (just checking causation notes now) but do you think the outcome would be that certain?

I'm never sure in law... I just write "may" a lot!

I just assume that it would be pretty close to having her acquitted because Tom was stabilised and taken off the critical list... he was healing. Thus, the wound was no longer "operating" at the time of death, and it wouldnt be substantial anymore because he was going to live. the only reason he died was *due* to the medical negligence.... Thats what I'm arguing anyway!

Oh, and the but for test doesnt work in crim law, only the smith case. no more 'but for' her actions, he wouldnt have been in hospital and thus wouldnt have had a knife left inside him! as Anne said, its not the factual causation, but the legal causation...

 

[iwannarock]

im gonna leave causation til last. i'll bring it up in the prosecution argument i think.
prosecution for murder need actus reas mens rea and causation right? i'll throw in the difficulty they'll have of proving causation there.

ok it seems i spent a long time talking about provocation. should i be doing this. seems like you guys aren't mentioning it much. i know it will only get her down to manslaughter and stuff but she could use it. and there are very very similar cases about it so its like a safe argument.

alright i got 1000 words left to talk about impairment and intoxication left in sarah's case............then self defence and causation in the prosecution part.........which inturn ............is just helping sarah but im just raising them as rebutals the prosecution would use against those defenses. ok boy am i screwed lol.

 

[MaryJane]

My biggest defence is provocation, so yeah, I'm talking about it a lot too. Are you talking about proportionality in self-defence for a counter-argument for the prosecution?

My back hurts. Dont even mention contracts... I think I'll vomit.