CRIMINAL LAW and PROCEDURE:Explain.

70114 CRIMINAL LAW and PROCEDURE

Instructions

Set out below is a hypothetical problem that raises a number of issues concerning compliance with certain rules of criminal procedure and the criminal liability of one person, Emilie. In Part A, you need to provide answers to the procedural questions asked (bearing in mind the advice about word length). In Part B, your job is to consider the possible offences and the factors that might affect Emilie’s liability for these offences (again, keeping in mind the advice on word length). In addition, you must consider any defences upon which Emilie might seek to rely.

You are only required to deal, however, with the law covered in Topics 1–4 inclusive (that is, classes 1B–6A inclusive) as noted in pages 2–4 the Subject Outline. In addition, do not consider felony/constructive murder or the defence of substantial impairment of the mind (s 23A). Do not discuss any issues in regard to Bail. Do not consider any law, regardless of its relevance, from Class 6B onwards or from outside the syllabus.

Answers should be no longer than 2,500 words. The Faculty’s standard 10% leeway policy does apply to this assignment. You must indicate your word limit total in the space provided on the Faculty’s assignment cover sheet. Simple citations in footnotes are not counted but any substantive or explanatory text in footnotes will be counted towards the word limit; accordingly, it is advisable to put any substantive or explanatory text in the body of your answer and reserve your footnotes for citations. Your examiners will stop reading your assignment once you hit the 2,500 (+10%) word limit. This word limit will be checked using Turnitin.

In your answer, you must cite cases and legislation, and where you do you must use the full citation. You should also cite in full any sources upon which you rely, including textbooks, journal articles and web-based sources. You should use footnotes for these purposes. For information on proper referencing, see the Law Faculty’s Guide to Written Communication, available at http://www.uts.edu.au/current-students/law/overview#resources.

You are not required to include a bibliography.

This assessment is worth 40 marks. Part A is worth 14 marks and Part B is worth 26 marks. Marking will be in accordance with the grading descriptions for High Distinction through to Fail (see the criteria at page 7 of the Subject Outline).

All assignments must be submitted in hard copy and on UTSOnline via Turnitin. You should note the requirements for submission, as well as the Faculty’s policies on extensions and penalties for late submission. These are set out in the Faculty’s 2015 Subject Information Booklet, available at http://www.law.uts.edu.au/students/subject_info_booklet.pdf.

The Facts

Emilie had been in a rocky relationship with Jack for 2 years. During that time he had been violent towards her and she had previously taken out an Apprehended Violence Order, after which she had broken up with him. Jack and Emilie had recently reunited, but Jack had started behaving in a threatening manner again. Emilie called her elderly father, David, and asked him to help her. David went to Jack’s work and told him to stop dating Emilie and let her move on. Jack told David that Emilie was in love with him and would do whatever Jack said. Jack told David to go away. David started moving slowly towards the door and Jack pushed his back. David lost his balance and fell. Jack then kicked David in the chest and told him to mind his own business. David went to the nearest hospital. David’s doctor told him he had broken two ribs and an arm as a consequence of Jack’s actions.

David rang his daughter and told her that Jack had beaten him up so severely that he was in hospital. While she was on the phone to her dad, Jack pulled up outside her home. Emilie was absolutely furious about what Jack had done. She could not believe that he had injured her father so badly. She grabbed a knife from the kitchen bench and ran out to Jack. He smiled when he saw her and told her that her father ‘would not be a problem anymore’. Emilie was enraged and stabbed Jack 5 times in the torso.

Neighbours saw Emilie stabbing Jack and immediately called an ambulance. The ambulance took 20 minutes to arrive. Unfortunately the paramedics did not see the worst stab wound to Jack and treated the other 4, which were not as deep. Jack died as a consequence of the stabbing the next day. Medical evidence suggested that if the paramedics had appropriately treated the 5th wound he would not have died.

Immediately after stabbing Jack, Emilie jumped into her car and started driving to the hospital to see her dad. The traffic along King St was very slow and Emilie was crying and hitting the steering wheel. Two police constables, Constable Marsden and Constable Parker, observed Emilie hitting the steering wheel and decided to pull her over to check if she was under the influence. When the officers approached the car, Constable Marsden asked if Emilie was the owner of the car, and she said yes. She appeared very distracted but produced her driver’s license and registration to prove she was the owner of the car. Constable Parker then asked Emilie to undertake a random breath test. Emilie complied and the reading showed there was no alcohol in her system.

Constable Parker thought that Emilie was behaving in a very suspicious manner as she kept rubbing her hands together and could not seem to follow a whole thought. Constable Parker told Emilie to wait while they made inquiries with the police station. Emilie became frantic and said she wanted to leave. Constable Parker thought this was suspicious and decided to arrest her and take her back to the station and finish making inquiries. Emilie pushed Constable Parker as she attempted to get back in the car. Constable Parker then said to Emilie, ‘I am placing you under arrest. You are going to have to come to the station with us.’ Emilie was then put in the police car and taken to the local Police Station.

When they got to the station it was 2AM on Saturday, but it was not until 7AM that Emilie was questioned. During the intervening period no one came to see her and she was offered no food or medical help for her obvious distress. At 7AM, when she was eventually questioned by Constable Parker, there were no other persons present. The interview lasted for 90 minutes, with Emilie refusing to answer questions. Two hours after the interview was over, Constable Parker returned and formally charged Emilie with assaulting a police officer and resisting arrest. Emilie was then granted conditional bail by the officer in charge.

Later that morning, police officers took statements from four neighbours about the fatal assault on Jack. At 2.00pm that day, after she had visited her father in hospital, Emilie was arrested and charged with murder under s18 of the Crimes Act 1900 (NSW). Emilie told police she would not say anything until she spoke to a lawyer.

Part A (800 words recommended)

What breaches of procedure have occurred and what impact might these breaches have on the prosecution of the charges of assault police and resist arrest? The only aspect of section 58 you need to consider is that section 58 Crimes Act 1900 (NSW) requires that a person assaults or resists ‘any officer while in the execution of his or her duty’. Do not consider any substantive law issues that relate to the proof of these offences.

Part B (1700 words recommended)

Consider Emilie’s liability for murder and any alternative homicide offences. What problems might the prosecution encounter and what defences, if any, might Emilie raise?

Relevant Topics:
• Criminal Procedure and Arrest.
• Bail, Jurisdiction, Burden and Standard of Proof.
• General Principles: Capacity and Actus Reus.
• Homicide: Introduction and Actus Reus.
• Murder.
• Voluntary Manslaughter: Provocation.
• Voluntary Manslaughter: Substantial Impairment by Abnormality of the Mind.
• Involuntary Manslaughter: Unlawful and Dangerous Act
• Involuntary Manslaughter: Negligent Manslaughter
• Assault Causing Death: s25A Crimes Act
• Property Offences: Larceny

A 2500 maximum word essay in which you are given a hypothetical case and are required to comment on any breaches in procedure and also consider the defendants liability for murder and any alternative homicide offences. I will attach more detailed information,