Maddox Smith Staff asked 4 years ago

Hypothetical Problem

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, Dan.   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 Dan’s liability for these offences (again, keeping in mind the advice on word length).   In addition, you must consider any defences upon which Dan 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 under the 1978 or 2013 Bail Acts (NSW). 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 not 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 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 30 marks.  Part A is worth 10 marks and Part B is worth 20 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).   Assignments are due at 6pm on Thursday 10 April 2014. 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 2014 Subject Information Booklet, available at http://www.law.uts.edu.au/students/subject_info_booklet.pdf.   The Facts   Sam was walking down King Street in Newtown with his girlfriend Kate at 11pm on Friday 28 February 2014 when he passed Dan, who was standing in the doorway of a pub.  Dan, a 25 year old Aboriginal male, yelled out to the couple, ‘Nice body, I bet you she’s great in bed.’  In response, Sam turned and yelled back at Dan, ‘Get lost you f…ing ape.’  Sam and Kate continued to walk but Dan rushed at Sam and struck him once from behind at the base of Sam’s skull.  As a result Sam collapsed to the ground, severely striking his head on the concrete.  An ambulance was called and it arrived within 5 minutes.  Sam was then rushed to hospital where he was placed in an induced coma and on life support.   Immediately after hitting Sam, Dan ran off around the corner to where he had parked his new Toyota Camry.  He then drove off in the direction of Marrickville where he lived.  Two police constables on patrol, Constable Jones and Constable Lu, observed Dan driving on Marrickville Road and while they had no reports of stolen vehicles they decided to pull Dan over to see if he had stolen the car.  When the officers approached, Dan got out of the vehicle. Constable Lu asked Dan if he was the owner of the vehicle, to which he replied, ‘Yes.’  Dan appeared quite nervous but on request from the officers, he produced his driver’s licence and registration papers, which showed that he was the owner of the car.  Constable Lu then asked Dan to undertake a random breath test.  Dan complied and the reading showed there was no alcohol in his system.    Constable Jones then asked, ‘So it’s OK if we look inside the car, then?’  Dan said, ‘No, you can’t,’ and pushed his body between the car and Constable Jones, blocking him from opening the car door.  Seeing this, Constable Lu grabbed Dan and handcuffed him.  Constable Jones then searched the car and found four ecstasy tablets in the glove box.  Constable Lu said to Dan, ‘I am placing you under arrest. You are going to have to come to the station with us.’  Dan was then put in the police car and taken to Newtown Police Station.   When they got to the station, Constable Jones observed that Dan was limping quite badly but otherwise Dan appeared to be alert and in good health, though quite distressed.  When asked why he was limping, Dan said he had tripped over earlier that night and had badly sprained his ankle. Constable Jones simply replied, ‘Bad luck,’ and put Dan in an interview room.  By this stage it was 2am on Saturday but it was not until 7am that Dan was questioned.  During the intervening period no one came to see him and he was offered no food or medical help for his ankle.  At 7am, when he was eventually questioned by Constable Lu, there were no other persons present. The interview lasted for 90 minutes, with Dan ultimately admitting he knew the drugs were in the car.  Two hours after the interview was over, Constable Lu returned and formally charged Dan with possession of a prohibited substance (s 10 Drug Misuse and Trafficking Act 1985 (NSW)), and resisting police (s 546C Crimes Act 1900 (NSW)).   Dan was then granted conditional bail by the officer in charge.   At 7am on Saturday 1 March 2014, Constable Jones obtained CCTV footage of the incident between Sam and Dan.  That morning, police also took statements from four eyewitnesses, including Kate.   When they returned to Newtown Police Station, the police investigating the attack were told that a person fitting the description of Sam’s attacker had been released on bail. At 12.00pm on Saturday Kate came to the police station and the attacker was positively identified as Dan.   At 12.30pm on Saturday Dan was arrested and charged with causing grievous bodily harm with intent under s 33 of the Crimes Act 1900 (NSW).   Dan told police he would not say anything until he spoke to a lawyer. Dan was refused bail.   Tests at the hospital revealed that Sam had a congenital weakness of the skull and that this, combined with the punch and his head hitting the concrete, had resulted in a major brain haemorrhage.   Six weeks later, Sam’s family gave consent for the life-support to be turned off and Sam died.  It has also been revealed that Dan holds a black belt in karate.  Following Sam’s death, Dan’s charge under s 33 was upgraded to murder.   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 drug possession and resist police? Do not consider any substantive law issues that relate to the proof of these offences.   Part B (1700 words recommended)   Consider Dan’s liability for murder and any alternative homicide offences. What problems might the prosecution encounter and what defences, if any, might Dan raise?