FINS and INFS Notes-19
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Course
997
Subject
Law
Date
Nov 24, 2024
Type
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5
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Policy
Questions
2011
Question
2
(30
marks)
An
objective
test
is
imposed
in
several
different
contexts
in
the
criminal
law.
The
reasonable
or
the
ordinary
person
standard
is
a
requirement
of
some
offences
and
defences.
Identify
four
different
objective
tests
required
in
different
contexts
in
the
criminal
law:
1.
Examine
the
legal
characteristics
of
the
different
tests.
(15
marks)
2.
Critically
evaluate
the
rationale
for
imposing
these
objective
tests
and
why
the
features
of
the
tests
differ
from
one
context
to
another.
(15
marks)
(Note:
you
should
only
focus
on
offences
and
defences
covered
in
Criminal
Law
2).
2012
Consider
the
following
statements:
‘[t
is
contrary
to
fundamental
principles
and
the
whole
tenor
of
modern
thought
to
judge
a
man
in
a
criminal
court
...
not
by
his
actual
intention,
knowledge
or
foresight,
but
by
what
a
reasonable
and
prudent
man
would
have
intended,
known
or
foreseen
in
the
circumstances.”
(MacPherson
v
Brown
(1975)
12
SASR
184,
188
per
Bray
CJ).
‘Sexual assault
laws
must
be
understood
in
their
cultural
and
social
context,
reflecting
changing
perspectives
on
sexuality
in
this
society.
The
laws
of
rape
and
indecent
assault
developed
within
a
dominant
masculinist
discourse
that
was
focused
on
a
penetrative/coercive
and
heterosexual
form
of
sexuality.
While
major
steps
have
been
made
in
relation
to
law
reform
in
this
area,
it
remains
the
case
that
persisting
presumptions
about
women’s
and
men’s
sexuality
make
it
easier
for
the
prosecution
to
prove
an
offence
where
some
resistance
has
occurred
than
otherwise.”
(McSherry,
B.
and
Naylor,B.
(2004)
Australian
Criminal
Laws:
Critical
Perspectives,
246).
Consider
these
statements
in
the
context
of
the
current
law
of
sexual
assault
in
New
South
Wales.
To
what
extent
does
s61HA(3)
Crimes
Act
1900
(NSW)
modify
the
test
for
mens
rea
set
out
in
Morgan?
(10
marks)
Is
the
introduction
of
an
objective
test
for
lack
of
consent
desirable?
(20
marks)
2013
QUESTION
2
The
defence
of
diminished
responsibility
(now
called
substantial
impairment
in
NSW)
was
considered
in
1953
by
the
Royal
Commission
on
Capital
Punishment
in
England
on
the
following
basis:
It
must
be
accepted
that
there
is
no
sharp
dividing
line
between
sanity
and
insanity,
but
that
the
two
extremes
of
'sanity’
and
'insanity'
shade
into
one
another
by
imperceptible
gradations.
The
degree
of
individual
responsibility
varies
equally
widely;
no
clear
boundary-
can
be
drawn
between
responsibility
and
irresponsibility.
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To
what
extent
does
this
statement
accurately
reflect
the
rationale
for
the
retention
of
this
defence
in
NSW?
In
your
answer,
you
should
discuss
the
competing
arguments
for
the
abolition
and
retention
of
the
defence,
citing
relevant
authority
where
appropriate.
OR
QUESTION
3
"Extending
criminal
liability
to
those
individuals
...
who
agree
to
commit
criminal
acts,
or
to
those
who
are
present
when
others
commit
offences
swings
the
pendulum
too
far
in
favour
of
the
interests
of
the
state.
These
types
of
extensions
represent
a
shift
towards
a
society
where
the
interests
of
the
individual
are
continually
being
eroded".
Discuss,
with
reference
to
Complicity
and
Conspiracy.
2014
Question
2
In
sentencing
an
offender,
the
court
aims
to
"make
the
punishment
fit
the
crime,
and
the
circumstances
of
the
offender,
as
nearly
may
be".
This
involves
a
synthesis
of
all
factors
relevant
to
the
offence
and
to
the
offender
in
order
to
produce
an
appropriate
sentence.
Guidance
is
provided
by
the
purposes
of
punishment
and
by
sentencing
principles
of
the
broadest
kind.
The
whole
exercise
presupposes
a
wide
judicial
discretion.
[New
South
Wales
Law
Reform
Commission,
Sentencing
(1996)]
a)
What
are
the
general
principles
of
sentencing
and
the
role
of
“synthesis”
at
common
law?
b)
How
has
the
New
South
Wales
Government
moved
away
from
the
approach
outlined
in
this
quote
since
2002?
c)
Evaluate
the
impact
of
these
changes.
OR
Question
3
The
Sydney
Chamber
of
Commerce
is
concerned
that
there
is
a
spate
of
shoplifting
by
young
people,
and
that
their
store
security
personnel
are
finding
it
difficult
to
have
the
youths
prosecuted
by
the
police.
They
have
approached
the
New
South
Wales
Government
with
a
shoplifting
offence
which
they
think
may
be
a
solution.
The
proposed
offence
is:
Shoplifting
1)
Any
person
who
removes
goods
from
a
store
without
the
permission
of
a
store
employee
is
guilty
of
shoplifting.
2)
The
maximum
penalty
for
this
offence
is
500
penalty
units
or
1
year
imprisonment.
You
are
an
advisor
to
the
Attorney
General
and
have
been
asked
to
give
your
opinion
on
the
proposed
offence.
You
have
been
asked
to:
a)
Explain
the
actus
reus
and
mens
rea
elements
of
the
offence
and any
difficulties
you
see
with
the
wording
chosen.
b)
Analyse
whether
this
offence
overlaps
with
prohibited
conduct
in
other
existing
offences
(covered
in
Criminal
Laws
this
semester)
and
any
differences
in
the
scope
and
elements
of
those
offences.
c)
Provide
a
recommendation
as
to
whether
this
proposed
offence
is
a
reform
the
Attorney
General
should
support,
and
the
reasons
for
or
against
that
recommendation.
2015
Question
A
A
coalition
of
victim
support groups
has
written
to
the
Attorney
General
expressing
concern
that
the
law
of
indecent
assault
is
inconsistent
with
other
offences.
They
have
proposed
an
amendment
to
the
Crimes
Act
1900
(NSW).
Consent
(1)
This
section
applies
for
the
purposes
of
offences
under
61L
and
61M.
(2)
A
person
consents
to
an
assault
if
the
person
freely
and
voluntarily
agrees
to
the
assault.
(3)
A
person
who
assaults
another
person
is
deemed
to
know
the
other
person
did
not
consent
to
the
assault
if
a)
the
person
has
actual
knowledge
that
the
other
person
does
not
consent,
or
b)
the
person
is
aware
of
the
possibility
that
the
other
person
is
not
consenting,
but
assaults
them
regardless,
or
c)
the
person
has
an
honest
but
mistaken
belief
that
the
other
person
consents.
1.
You
are
a
legal
policy
officer
working
for
the
NSW
Government.
The
Attorney
asks
you
to
review
the
2.
proposed
amendment
and
brief
him
on
the
following
questions:
A)
In
what
ways
does
this
proposed
amendment
change
the
existing
law?
(10
marks)
B)
What
are
the
advantages
and
disadvantages
of
the
proposed
amendment
and
what
is
your
recommendation
about
whether
the
Attorney
General
should
support
the
amendment?
(10
marks)
OR
Question
B
The
Law
Commission
of
England
and
Wales
has
recommended
the
abolition
of
different
categories
of
manslaughter
in
favour
of
"one
unified
offence
to
cover
every
case
in
which
death
was
caused
by
culpable
inadvertence".
(The
Law
Commission,
Legislating
the
Criminal
Code:
Involuntary
Manslaughter,
Law
Com
No
237,
1996)
53.