Got workshop questions for criminal law, Ill attach the reading and questions. :)
CRIME 1 – 2019LAW/7719LAW
TUTORIAL QUESTION
WEEK 3 – Daniela Brkan
1. Just as offences can have elements, so can defences or justifications and excuses. If a particular justification or excuse has multiple elements, think about how many of them the prosecution must disprove in order to set aside the justification or excuse as a whole. One? All of them?
S24 stated that
? If you honestly reasonably believe you were doing the right thing
? Mistake of fact defence
? Honest and reasonable are two elements
2. We have discussed the evidentiary onus as it applies to justifications or excuses where it is necessary for an accused person to at least point to some evidence on a topic in order for the matter to be sufficiently raised for the jury even to have to think about it. This is an example of a circumstance where the evidentiary onus (the threshold onus) can arise in the case of a party (the defence) who will nevertheless not have the persuasive onus once the issue has been sufficiently raised by the defence. (This paragraph is an observation, not a question.)
3. Do questions of evidential onus arise for a party which has the ultimate persuasive onus? For example, does the Crown, which has the persuasive onus in respect of the elements of an offence, also have an evidentiary burden with respect to the elements? Does the defence, which has the persuasive burden of proving insanity as a defence, also have an evidential burden with respect to the defence? Read the extract of Braysich’s case at p28 of the Colvin text and attempt an answer. (In Braysich, the term “legal burden” is used interchangeably with the term “persuasive burden”).
The answer to this is yes
4. Returning to the subject of the elements of defences or justifications and excuses, read ss 271(1) and (2), and set out the elements. Is this a matter of justification or excuse (where, if there is some evidence of it raised, the persuasive onus is on the Crown)? Or is it a defence, where the persuasive onus is on the accused?
5. Read s304. What are the elements of provocation in murder cases? Is this a matter of justification/excuse or a defence? Is this different from provocation as referred to in ss268-269?
6. Section 16(1) of the Cremations Act 2003 (you don’t need to look it up) provides as follows:
16 False or misleading information.
(1) A person must not give information to a coroner or independent doctor that the person knows is false or misleading in a material particular.
Maximum penalty – 80 penalty units
What sort of offence is this (simple, indictable, crime, misdemeanour, etc)? (You may assume that there are no other provisions of the Cremations Act that bear upon this question.) In which court will guilt be determined? What provisions of the law provide the answer to these questions?