Discuss about the Criminal Law Offences and Defences for Bashar Bank.
Bashar received financial advantage through deception and thus committed fraud. The offence is provided under s. 192E[1]. Under the provision, any person who receives any financial advantage through deception or dishonesty or puts another in financial disadvantage through deception or dishonesty has committed fraud. The crime of fraud also includes acquiring another’s property through fraud or deception. To obtain financial advantage under s. 192E is defined under s.192D and it means to be the beneficiary of the financial advantage or by inducement of a third you make yourself the beneficiary or another person the beneficiary. It is inconsequential whether it temporary or permanent[2]. From s. 192D and 192E it is possible to deduce the following to be the actus reus of the offence to include obtaining of financial advantage while the mens rea being intentional or recklessly acting in dishonest or deceitful manner.
Bashar had signed a sponsorship contract with a major sports clothing manufacturer who had agreed to pay $20,000 for each test match he plays, with a bonus of $80,000 for each test match the team wins. However, Bashar’s team was not winning and informed his friend about being in need of the $80,000 winning bonus. The friend told him to tamper with the ball. Bashar tampered with the ball and thus his team won leading to receipt of $100,000 as bonus from his sponsor. However, he does not remember the incidence. This might considered reckless being that he does not give an account how the sand paper found itself in his pocket. Thus Bashar used deception and dishonest means to obtain the $100,000 which is a crime under s. 192E of the Act.
Bashar can rely on the defence of intoxication. He does not remember the event of tampering with the ball and this he informed his coach, Francis and Dyson. Intoxication is defined in s. 428A and it means being under the influence of drug or some other substance. Under s. 428C the defence of intoxication is limited to offences of specific intent and are not available to such offences where the defendant had resolved to commit the offence before intoxication or became intoxicated to commit the offence[3]. Even though evidence of intoxication is relevant, under s. 428D, in determining existence of mens rea, however, it is irrelevant where the intoxication was self-induced[4]. This applies to offences other than specific intent offences[5]. Also, under s. 428G the defence of intoxication is not available where it is self-induced.
The offence is not specific intent offence and thus s. 428A and 428C are not available. Bashar’s intoxication was self-induced. He woke up with severe pain and decided to take twice the prescribed amount of pain killers. Therefore, the defence is not available for his as per s. 428G.
Christos committed behaved offensively in a public place in the presence of school going children contrary to the s. 4 of the Summary Offences Act. Under s. 4 no one is permitted to behave offensively in or near a public place or a school. This include within the view and hearing. However, use of offensive language alone does not constitute offensive conduct under s. 4 of the Act[6]. A public place and a school are both defined in the Act. However, for purposes of this scenario question we shall refer to the definition of a public place. A public place is defined, under s. 3, as a place accessible by members of the public either on payment or not. This includes places covered by water and part of premises. It is, also, inconsequential whether the members of the public are of a particular class or not. The offences are justifiable where the defendant has a proper reason for the offensive conduct or language[7]. The Actus reus of the offence is conducting of oneself in offensive manner or using offensive language. the offence do not provide for mens rea.
Get your fucking shit together can be considered to be offensive language. The language was used in the cricket national team training accessible to members of the public, and in this case school children. Thus, the playground fits the definition of a public place under the Act and therefore, Christos committed the offense of using offensive language in a public place.
Dyson had sex with Bashar in order to keep Bashar’s act of ball tampering secret. From the case scenario, Dyson can be considered to have committed sexual assault on Bashar contrary to s. 61I of the Crimes Act 1900. Sexual assault crime, as provided under s. 61I, is committed where the defendant engages in sexual intercourse with another person knowing that other person has not consented to the sexual intercourse. Sexual intercourse is defined under s. 61H of the Act. The consent has to be freely and voluntarily given otherwise there is no consent at all[8]. There are circumstances where consent might be negated[9]. This include where the consent is obtained by way of intimidation, coercion and threat. From the stated provisions, the actus reus of the offence is having sexual intercourse with another while mens rea is engaging in the act knowing you do not have the prerequisite consent[10].
Dyson persuaded Bashar to go to his place to strip off and show him his beautiful body and later requested to have sex with Bashar in order not to tell anyone. The effect of telling anyone was that Bashar would lose the sponsorship. There was sexual intercourse between Dyson and Bashar. Even though Bashar consented, the consent was not free and voluntarily but was obtained through threat and intimidation. Thus Dyson committed sexual assault.
Acts of Francis caused the death of Sylvester and thus can be considered to have committed the offence of homicide, that being either murder or manslaughter. Murder and manslaughter is provided for under s. 18 of the Crimes Act. A person is considered to have committed murder where with intention to kill another or without any regard/ reckless to human life caused the death of another. This might also be in circumstances where the person intended to cause bodily harm to the person. The act defines manslaughter as any other homicide other than murder. However, under s. 18(2) of the Act, the defendant might excused of homicide where the act was not malicious or where the law provided him or her with an excuse. The actus reus of the offence act or omission of the defendant causing death while mens rea of the offence include intention to cause murder or cause grievous bodily harm or acting recklessly without any due regard to human life.
Francis flicked a cigarette butt into the skip bin stored next to the shop. The butt caused an explosion and a fire when it ignited dry cleaning fluid. The fire spread to Sylvester’s flat. Sylvester’s attempts to leave through fire were futile and he was killed by fire. Francis act of flicking the cigarette butt in the bin can be considered reckless and indifference to human life[11]. The cigarette but was still burning and there were chances that it would ignite fire. Francis is therefore guilty of murder.
Crimes (Domestic and Personal Violence) Act 2007 provides for the Apprehended Domestic Violence Order. The application is made in accordance with part 10 of the Act and the purpose of the order is to protect a person from another he or she has had or has a domestic relationship with. The application can be for the benefit of more than one person but one the beneficiaries must either be or had been in a domestic relationship with the defendant[12]. The spouse of the defendant or police can make application for the order[13]. However, under s. 49 of the Act, there are circumstances under which the police must make an application for the Apprehended Domestic Violence Order[14].
S.17 provides factors considered by court when determining an application for Apprehended Domestic Violence Order. The court has to be satisfied on a balance of probabilities that the there is or had been a domestic relationship between the parties and that the applicant fear or violence is based on reasonable grounds or that there had been violence against the applicant before or that the defendant has stalked or intimidated the applicant. This are facts that have to be put before court.
The courts discretion in making the order is wide. The order is granted on a balance of probability satisfaction[15]. It is a civil order breach of which is a criminal offence under s. 14 of the Act. Even though the Act provides for criminal consequences for breaching the order and may sometimes provide for warrant of arrest it very sketchy and less penal compared to s. 60 of the Crimes Act. S. 60 of the Crimes Act provide consequences for every violation and not a generalised punishment as provided in s. 14 of Crimes (Domestic and Personal Violence) Act 2007. Therefore, it does not matter the weight of the breach, the consequence is the same. Different breach of the order should have different consequences thus catering for the weight of the breach.
Books
Yuka, Sakurai and Russell G Smith. Gambling as a motivation for the commission of financial crime. (Australian Institute of Criminology, 2003)
Findlay, Mark, Criminal Law: Problem in Context (Oxford University Press 2006)
Stanley, Meng Heong Yeo, Fault in Homicide: Towards a Schematic Approach to the Fault Elements for Murder and Involuntary Manslaughter in England, Australia and India (Federation Press, 1997)
Farrell, Anne-Maree et al, Health Law (Cambridge University Press, 2017)
Parashar, Archana, and Francesca Dominello, The Family Law (Cambridge University Press, 2017)
Lanham David et al, Criminal Laws in Australia (Federation Press, 2006)
Lous, Peter Waller and Charles Robert Williams, Criminal Law: Text and Cases (Butterworths, 2001)
Fairall, Paul and Stanley Meng Heong Yeo, Criminal Law Defences in Australia (Butterworths, 2005)
Munice, John and Barry Goldson, Comparative Youth Justice (Pine Forge Press, 2006)
Cassese, Antonio et al, International Criminal Law: Cases and Commentary (Oxford University Press, 2011)
Legislation
Crimes Act 1900 (NSW)
Summary Offences Act 1988 (NSW)
Crimes (Domestic and Personal Violence) Act (2007)
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