1. In this case the question is to determine whether Oscar has committed any criminal offence against Clive or not.
Oscar had been found to misappropriate the funds of the company in order to make a person gain. He had been using the name of the company to buy products at a discount and sell the product at a higher price online. This is not right and accounts to fraud on the part of Oscar.
An offence of assaults occurs when a person moves, strikes or touches or applies force of any kind to another person directly or indirectly without consent and causes mental or bodily injury to such person. In the following circumstances Oscar has harmed Clive. The actions of Oscar in this case can also be considered to be causing serious injury intentionally in circumstances of gross violence. The actions of Oscar can also be taken as common assault under the provisions of common law. The actions of Oscar in relation to the misappropriation of the company’s funds may account to the offences of Dishonestly Obtain a Financial Advantage (Centrelink Fraud).
In order to establish a criminal act Mens rea and Actus reus has to be established. Mens rea indicate intention to committee the act and Actus reus indicate the actual act leading to the criminal activity. Only if both the elements are satisfied can a criminal activity come into existence. It has been provided by Oscar that he had the intention to hurt Clive but not as such as the actual harm caused and he satisfied Actus Reus by through the chemical on his hand. Thus Oscar has committed a crime.
There are a few defenses which can be claimed by the offender against the crimes discussed above. In case of assault and bodily injury crime the defendant may use the defense of self defense. According to the concept of self defense an act done in order to protect himself or his property against any harm threatened to be caused by another person is not a crime.
This in this case Clive approached Oscar with a clenched fist and the chemical poured by Oscar on Clive’s hands was a result of the threat Clive posed to Oscar. Thus this situation can be considered to make the defense of self protection applicable.
2. In this particular case it has been provided that Eamon and Dauid were in a relationship. The relationship had ended. They engaged in sexual activity with each other after obtaining each other consent. Initially Eamon had also provided consent for the sex but latter he withdrew his consent and asked Dauid to stop. Eamon was held so tightly by Dauid that he was not able to pull away. He also attempmted to stop the intercourse by punching Dauid but his attempts failed. After the intercourse was over Dauid let Eamon go. The issue which may arise in this situation is related to the consent of Eamon in relation to the sexual activity. If a sexual activity takes place without the consent of one of the individuals it accounts to sexual assault. Sexual assault is a situation when a person engages in unwanted sexual activities with another by asserting control and power over another person. The specific type of sexual assault which can be identified in the given scenario is Rape.
However as Eamon had given consent earlier and normally punched Dauid when they engaged in sexual activities before this event it can be claimed as a defense by Dauid. When the offender believes that the other person has provided consent to the act than such belief can be used as a defense against the charge. Thus this defense may be used by Dauid in relation to the given circumstances as she can prove that she reasonably believed that Eamon provided consent.
When Rafi got to know about the act she went to Dauid to threaten her to stay away from Eamon. Dauid had pushed her in the bathroom and locked the door. Rafi attempted to get out of the bathroom through the window but unfortunately feel to the ground and died. Rafi made this attempt because she knew that Dauid had left and she might be stuck in the bathroom. It was admitted by dauid that she had knowledge that Rafi may attempt to escape through the window but she did not believe she would try such stupid stunts.
This kind of wrongful confinement of a person accounts to an offence of kidnapping in Australia. Any damage caused to the confined person is also a liability of the kidnaper. The kidnaper may be charged for causing death in case the death is caused due to the process of kidnapping. Thus Dauid may be charged for Kidnapping.
However if a person is drunk or unconscious about his or her action he or she may use the situation as a defense against the charge of kidnapping. In the given circumstances Dauid was intoxicated and was under stress so she might use the situation as a defense against the offence of kidnapping and death in relation to Rafi.
3. The court passes an apprehended domestic violence order (ADVO) so that the affected people can be protected. The order prescribes limitations which are binding on the defendant. The provisions of the order have to be obeyed by the defendants. The decision if the magistrate in relation to this order is based on the analysis of the applicants fear or the fear of the police in relation to the safety of the applicant. Whether the order is reasonable or not is analyzed by the magistrates based on balance of probabilities. The order can even be made b y the court if the applicant is not present in case the court has no doubts that the applicant is a victim of physical abuse.
However the usefulness of this order is subjected to a lot of criticism for its uselessness. Recently there have been three domestic violence deaths in Australia and two of the victim’s had an ADVO against the offender. It has been provided by Sydney WDVCAS that more than half of the orders are breached by the defendants due to the lenient approach of the police and the courts. The advent of new technology moreover aids the defendants to breach the order and make it very difficult to prove the breach.
4. According to the NSW Bureau of Crime Statistics and research the criminal rates in NSW are either declining or stable. However the number of offensive languages cases has showed an increase of 42% from the year 2012-2016. Most of the cases recorded by the police are against the individuals of the aboriginal community. During the period of colonization there was no proper law against offensive language and behavior and the aboriginal people have been accustomed to it. The offensive behavior and language has become a part of their culture. There are a few actions which do not account to offensive behavior as per the aboriginal people but may be regarded as offensive in NSW. Thus it can be stated that one of the main cause of rising offensive language and behavior case in Australia in relation to aboriginal individuals is because of colonization. The difference in opinion of the indigenous community with the modern Australian as a result of colonization is a reason for the increase in rates of these offences. Further lack of education and reliance on principles provided by colonization add to the increase in the rate of these offences.
References
Card, Richard. Card, Cross, and Jones-Criminal Law. Oxford University Press, USA, 2014.
Gans, Jeremy. Modern criminal law of Australia. Cambridge University Press, 2016.
Herring, Jonathan. Criminal law: text, cases, and materials. Text, Cases and Materials, 2014.
Khoury, B. S., and J. N. Khoury. “Consent: a practical guide.” Australian dental journal 60.2 (2015): 138-142.
Mann, Rosemary, et al. “Norma’s project. A research study into the sexual assault of older women in Australia.” (2014).
Owen, Santi, and Kerry Carrington. “Domestic violence (DV) service provision and the architecture of rural life: an Australian case study.” Journal of rural studies 39 (2015): 229-238.
Roberts, Donna, Peter Chamberlain, and Paul Delfabbro. “Women’s experiences of the processes associated with the family court of Australia in the context of domestic violence: A thematic analysis.” Psychiatry, Psychology and Law 22.4 (2015): 599-615.
Smith, Linda Tuhiwai. Decolonizing methodologies: Research and indigenous peoples. Zed Books Ltd., 2013.
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