Section I: Multiple Choice (3 Viewers)

[coz707]

The only thing that made me choose that the judge must accept the plea bargaining is the case of R v Alchin (2008). Here's a bit of it from my notes:

R v Alchin (2008) highlighted how charge negotiation may create an imbalance between the rights of the victim and the accused after the accused was charged with breaching his AVO and choking his girlfriend when she hit her head and cracked her skull. The magistrate hearing the case was willing to give him a serious sentence but the DPP did a plea negotiation deal to lower the charge and the magistrate was then forced to only give a maximum of 2 years non-parole period as opposed to getting up to 20 years in prison.

This is exactly why I chose must accept. The case shows that even if a judge disagrees with a plea, they must take it.

 

[oht]

The only thing that made me choose that the judge must accept the plea bargaining is the case of R v Alchin (2008). Here's a bit of it from my notes:

R v Alchin (2008) highlighted how charge negotiation may create an imbalance between the rights of the victim and the accused after the accused was charged with breaching his AVO and choking his girlfriend when she hit her head and cracked her skull. The magistrate hearing the case was willing to give him a serious sentence but the DPP did a plea negotiation deal to lower the charge and the magistrate was then forced to only give a maximum of 2 years non-parole period as opposed to getting up to 20 years in prison.

I chose is for the exact same reason, this case. The only thing the textbooks seem to say about accepting or rejecting is that the negotiation doesn't guarantee a particular sentence, ie length. Sounds like the plea itself is set in stone. And when you think about it... charge negotiation takes place before the trial, the charge brought to the court is whatever has been decided/ whatever the DPP or PP wants. The jury's role is to decide guilt or innocence (if its srs) based on the charge in focus, the judge's job is to decide the sentence. The judge can't really find them guilty of something that they aren't being charged with... or my reasoning could be completely flawed

 

[HecticSandWitch]

The only thing that made me choose that the judge must accept the plea bargaining is the case of R v Alchin (2008). Here's a bit of it from my notes:

R v Alchin (2008) highlighted how charge negotiation may create an imbalance between the rights of the victim and the accused after the accused was charged with breaching his AVO and choking his girlfriend when she hit her head and cracked her skull. The magistrate hearing the case was willing to give him a serious sentence but the DPP did a plea negotiation deal to lower the charge and the magistrate was then forced to only give a maximum of 2 years non-parole period as opposed to getting up to 20 years in prison.

Well, it is because it didn't violate any of the following:

“
where the appellant ‘did not appreciate the nature of the charge to which the plea was entered’: Ferrer-Esis (1991) 55 A Crim R 231 at 233.

where the plea was not ‘a free and voluntary confession’: Chiron (at 220 D-E).

the ‘plea was not really attributable to a genuine consciousness of guilt’: Murphy [1965] VR 187 at 191.

where there was ‘mistake or other circumstances affecting the integrity of the plea as an admission of guilt’: Sagiv (1986) 22 A Crim R 73 at 80.

where the ‘plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty … some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt’: Cincotta (Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995).

the ‘plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt’: Maxwell at 511; 186-187.

if ‘the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt’: Davies (1993) 19 MVR 481.”

However, before accepting the plea, the judge would first have to consider whether or not any of those factors have been breached.

Imagine a justice system in which the judge DIDN'T consider pleas and had to accept them immediately. It would lead to situations where the police would pull guns on people if they don't agree to plead guilty, threaten people's family etc. Before accepting it, the judge would have to consider if the agreement violated the above. It's not about whether or not he disagrees with it, it's to make sure the agreement was signed voluntarily essentially.

 

[HecticSandWitch]

Ofc it can be a full defence, even if it wasn't intended.

Say your husband is bashing you viciously, you kick him in the nuts only to rupture his testicular cancer you knew nothing about, and he dies within minutes.

This cannot be charged as murder because you lacked any intent to kill.

Yet you were acting in self defence bc your husband was beating the crap out of you, and self defence is a full defence for causing injury or death to a person (NOT JUST MURDER!)

In fact, straight from the criminal code act:

33 Sudden and extraordinary emergency

Subject to the express provisions of this Code relating to self-defence and duress, a person is excused from criminal responsibility for an act or omission done or made under such circumstances of sudden and extraordinary emergency that an ordinary person similarly circumstanced would have acted in the same or a similar way; and he is excused from criminal responsibility for an event resulting from such act or omission.

 

[Cleverusername5321]

Ofc it can be a full defence, even if it wasn't intended.

Say your husband is bashing you viciously, you kick him in the nuts only to rupture his testicular cancer you knew nothing about, and he dies within minutes.

This cannot be charged as murder because you lacked any intent to kill.

Yet you were acting in self defence bc your husband was beating the crap out of you, and self defence is a full defence for causing injury or death to a person (NOT JUST MURDER!)

In fact, straight from the criminal code act:

33 Sudden and extraordinary emergency

Subject to the express provisions of this Code relating to self-defence and duress, a person is excused from criminal responsibility for an act or omission done or made under such circumstances of sudden and extraordinary emergency that an ordinary person similarly circumstanced would have acted in the same or a similar way; and he is excused from criminal responsibility for an event resulting from such act or omission.

Mens rea for murder (s18 Crimes Act 1900 NSW) = intent to kill, intent to inflict grievous bodily harm ("really serious injury" - DPP v Smith), recklessness (foresight of probability of death - Crabbe; Royall), or constructive murder (murder committed during 25+ yr crime). So that's murder - intent to inflict GBH or MAYBE recklessness.

 

[spatula232]

Ofc it can be a full defence, even if it wasn't intended.

Say your husband is bashing you viciously, you kick him in the nuts only to rupture his testicular cancer you knew nothing about, and he dies within minutes.

This cannot be charged as murder because you lacked any intent to kill.

Yet you were acting in self defence bc your husband was beating the crap out of you, and self defence is a full defence for causing injury or death to a person (NOT JUST MURDER!)

In fact, straight from the criminal code act:

33 Sudden and extraordinary emergency

Subject to the express provisions of this Code relating to self-defence and duress, a person is excused from criminal responsibility for an act or omission done or made under such circumstances of sudden and extraordinary emergency that an ordinary person similarly circumstanced would have acted in the same or a similar way; and he is excused from criminal responsibility for an event resulting from such act or omission.

This is one strange scenario bro

 

[HecticSandWitch]

Mens rea for murder (s18 Crimes Act 1900 NSW) = intent to kill, intent to inflict grievous bodily harm ("really serious injury" - DPP v Smith), recklessness (foresight of probability of death - Crabbe; Royall), or constructive murder (murder committed during 25+ yr crime). So that's murder - intent to inflict GBH or recklessness.

How on earth is that intent to inflict grevious bodily harm? GBH is going at someone with a knife and slashing them, not kicking them in a point that will cause pain. When 'sack whacks' were a thing back in Year 8, did you call the cops for an attempted murder due to your mates intent to cause "Really serious injury".

It's not even actual bodily harm ffs:
What is “Actual Bodily Harm”

The most commonly sighted definition of actual bodily harm is any hurt or injury, which doesn’t necessarily have to be permanent, but must more than “merely transient and trifling”. R v. Donovan [1934] KB 498.

A kick in the nuts is exactly that, transient and trifling. It incapacitates but it's certainly not long lasting, the pain lasts all of about 15 seconds.

And it certainly isn't recklessness! I explicitly said she had no idea her husband had testicular cancer (who knows if he knew, shits notoriously hard to spot) so there's no way she could have the foresight that kicking his nuts could kill him.

While the causation is there, the mens rea most certainly is not.

 

[HecticSandWitch]

This is one strange scenario bro

My mate in law school had a scenario where an individual was playing a card game with his friends on top a mountain during the tour de france, dropped the cards below and subsequently causing a huge crash where half the field got injured. Copping a kick in the nuts and dying seems incredibly logical in comparison :')

 

[Cleverusername5321]

How on earth is that intent to inflict grevious bodily harm? GBH is going at someone with a knife and slashing them, not kicking them in a point that will cause pain. When 'sack whacks' were a thing back in Year 8, did you call the cops for an attempted murder due to your mates intent to cause "Really serious injury".

And it certainly isn't recklessness! I explicitly said she had no idea her husband had testicular cancer (who knows if he knew, shits notoriously hard to spot) so there's no way she could have the foresight that kicking his nuts could kill him.

While the causation is there, the mens rea most certainly is not.

If a person was charged with manslaughter on those facts, I think it would have to be a manslaughter by an unlawful and dangerous act. I think this would require proving that there was an assault, and that this assault was dangerous. Self-defence could act as a defence to the assault. But the elements to manslaughter would not be made out because the assault was made lawful by the self-defence. Again, see Cornelissen [2004] NSWCCA 449, which said that an act performed in self-defence is not an unlawful act.

Remember, a defendant will bring up a defence when the elements of the crime have been made out. And on those facts I don't think that manslaughter by an unlawful and dangerous act can be made out.

As for manslaughter by criminal negligence. I said in my previous post that the conduct of the defendant has to fall so far short of what the reasonable person would have done as to merit criminal punishment. Is this made out?

I did my HSC last year. What was the question? Maybe I could justify a different answer. I think the problem with what I'm saying is that it isn't in the HSC syllabus. And according to the syllabus it could maybe act as a self-defence (though technically the elements of involuntary manslaughter are not made out when there is self-defence). If I saw the question and the choices for it, the answer might be something a bit more obvious.

 

[HecticSandWitch]

If a person was charged with manslaughter on those facts, I think it would have to be a manslaughter by an unlawful and dangerous act. I think this would require proving that there was an assault, and that this assault was dangerous. Self-defence could act as a defence to the assault. But the elements to manslaughter would not be made out because the assault was made lawful by the self-defence. Again, see Cornelissen [2004] NSWCCA 449, which said that an act performed in self-defence is not an unlawful act.

Remember, a defendant will bring up a defence when the elements of the crime have been made out. And on those facts I don't think that manslaughter by an unlawful and dangerous act can be made out.

As for manslaughter by criminal negligence. I said in my previous post that the conduct of the defendant has to fall so far short of what the reasonable person would have done as to merit criminal punishment. Is this made out?

I feel like we are straying far beyond the realms of the multiple choice question and focusing too much on the scenario. The question was which of the following is the lawyer wrong about. The two answers that have been narrowed down are it must be heard by a jury or that self defence is a complete defence to manslaughter. We've already established that we can have a judge only trial, and hence, purely by a process of elimination, the manslaughter answer is the only question left.

Still, we've also established that, as per the above criminal code act:

Subject to the express provisions of this Code relating to self-defence and duress, a person is excused from criminal responsibility for an act or omission done or made under such circumstances of sudden and extraordinary emergency that an ordinary person similarly circumstanced would have acted in the same or a similar way; and he is excused from criminal responsibility for an event resulting from such act or omission.

Which applies to any offense where self defense can be argued, not just murder! Whether or not my specific event qualified for a specific type of manslaughter, while actually really interesting (I want to study law post HSC so I find this cool as shit), doesn't change the fact that self defense to manslaughter, which is, as per your own notes, every possible homicide but GBH, intent to kill, recklessness or constructive, is a full defence, and hence, is the correct multiple choice answer.

 

[MasterEnglish]

hey guys, what did everyone get for q20.

 

[Cleverusername5321]

I feel like we are straying far beyond the realms of the multiple choice question and focusing too much on the scenario. The question was which of the following is the lawyer wrong about. The two answers that have been narrowed down are it must be heard by a jury or that self defence is a complete defence to manslaughter. We've already established that we can have a judge only trial, and hence, purely by a process of elimination, the manslaughter answer is the only question left.

Still, we've also established that, as per the above criminal code act:

Subject to the express provisions of this Code relating to self-defence and duress, a person is excused from criminal responsibility for an act or omission done or made under such circumstances of sudden and extraordinary emergency that an ordinary person similarly circumstanced would have acted in the same or a similar way; and he is excused from criminal responsibility for an event resulting from such act or omission.

Which applies to any offense where self defense can be argued, not just murder! Whether or not my specific event qualified for a specific type of manslaughter, while actually really interesting (I want to study law post HSC so I find this cool as shit), doesn't change the fact that self defense to manslaughter, which is, as per your own notes, every possible homicide but GBH, intent to kill, recklessness or constructive, is a full defence, and hence, is the correct multiple choice answer.

I'll reply in a few hours, I need to finish an assignment. It's due at 10.

 

[HecticSandWitch]

I'll reply in a few hours, I need to finish an assignment. It's due at 10.

go for it, gl (for your assignment that is!).

 

[thebdk123]

regarding the charge negotiation question, my legal teacher who's been a HSC marker for many years was confident that the answer was consider, not accept.

 

[geordienufc1]

With respect to the charge negotiation question, the reason I believe, wholeheartedly, that the judge "considering" the agreement is the correct answer is because of the outcome of the 2002 Dib Case. In this case the presiding judge, Justice Hulme, rejected a charge negotiation on the basis that he considered it "an abuse of process" wherein a "perverse or unwarranted view of the facts be necessary to find the defendant guilty of the lesser charge".

On that basis, it would appear clear that the judge is not duty-bound to accept any agreement reached between prosecutors and the defendant.

If only we'd actually been able to use any of that sort of information in the crime essay...

 

[HecticSandWitch]

regarding the charge negotiation question, my legal teacher who's been a HSC marker for many years was confident that the answer was consider, not accept.

give ur teacher a kiss from me

 

[HecticSandWitch]

With respect to the charge negotiation question, the reason I believe, wholeheartedly, that the judge "considering" the agreement is the correct answer is because of the outcome of the 2002 Dib Case. In this case the presiding judge, Justice Hulme, rejected a charge negotiation on the basis that he considered it "an abuse of process" wherein a "perverse or unwarranted view of the facts be necessary to find the defendant guilty of the lesser charge".

On that basis, it would appear clear that the judge is not duty-bound to accept any agreement reached between prosecutors and the defendant.

If only we'd actually been able to use any of that sort of information in the crime essay...

give justice hulme a kiss from me

 

[coco444]

what did you guys get for the last one? lobby to repeal or law is unconstitutional

 

[geordienufc1]

I said lobby to repeal, but I think the question was far too vague, and that may very well be wrong. My reasoning though is on the previous page.

 

[zachary99]

Its pretty stupid of BOSTES to put in all these multiple choice with 2 distinct answers for a number of questions, ive been blown away by everyone being able to backup their answers through past cases and legislation, flipping bostes!!!!!!