QUESTION to him, therefore must belong to ‘another’
Noah is likely to be charged for larceny,1 grievous bodily harm (GBH),2 robbery3 and assault.4 Each offence will be considered in turn.
Rule: Defined in s117 Larceny- Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years.5
Application: The elements of larceny are the taking and carrying away the personal goods of another without consent and without honest claim of right, with the intention of depriving the true owner of the items.6 Noah has taken the personal goods of another when he took the bag from Bo Lee and ran off. The handbag does not belong to him, therefore must belong to ‘another’
Noah will be guilty of larceny unless he had consent to take the items or took them with an’honest claim of right’.7 There is no evidence of consent. An honest claim of right arises when the accused honestly believes that the property taken belonged to him or her or that he or she should have a ‘legal entitlement…not simply a more entitlement’8 to the property. As Noah is not claiming he owned the handbag or was legally entitled to it, it follows that there is no claim of right. There appears to be no other perspective than Noah intended to keep the item and therefore permanently deprive the true owner of the goods. Even if Noah did intend to return the handbag, this is not a defence in New South Wales.9
Conclusion: Element met. Noah is likely to be criminally liable for Larceny
Issue: Grievous bodily harm and Wounding
Rule: section 35- Reckless or grievous bodily harm
Application: Noah pushed Bo Lee, which amounted to an unlawful application of force. However these actions were not intentional. Under the egg shell skull rule in R v Blaue (1975) Noah would be liable for liable for all injuries caused after he pushed Bo. His initial action of pushing Lee caused him suffer the dislocated should, sever contsuins when she fell and the brain trauma from the vehicle.
Conclusion: Element met. Noah can be liable for reckless GBH and wounding
Rule: s59 (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.10
According to R v Burstow and R v Ireland 11 an assault is any act and not a mere omission to act, by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence. Noah pushed Bo, while trying to remove the handbag, which amounts to an unlawful application of physical force. Noah has therefore committed the actus reus of assault under s59.12 Collins v. Wilcock 13states that even a touch is enough to amount to assault. Noah did not have motive to push Bo as the facts state if Bo “…resisted, well, the strap would break, and then he could grab the bag and run…he didn’t want to hurt the old woman.” R v Venna 14suggests that mens rea of assault is only intentional or reckless infliction of intentional force. Under the circumstance Noah did not intentionally cause assault but was reckless in his actions
Conclusion: Element met. Noah is likely to be charged for reckless assault.
Issue: Robbery with wounding
Rule: Defined in Section 94, 95 and 96
We know that Noah had intention to rob for money to feed his addiction for the purpose of s94(1) which belonged to another. Therefore the actus reus for the offence of robbery or stealing is quite easily satisfied here. Noah took Bo’s handbag and ran off.
Conclusion: Noah would be found criminally liable for robbery
Can Noah be liable form Murder or Manslaughter?
Rule: Defined in s18 (1)(a)15
Noah pushed Bo Lee which triggered a series of events which ultimately led to Ed’s death. The actus reus of murder is an unlawful killing, which is what has occurred here. However, for Noah to be held liable for murder, it would be necessary to demonstrate that he had the mens rea of murder. It would have to be shown that he had the intention to kill or cause GBH. It seems highly unlikely from the facts that Noah had an intention to kill or cause GBH, as he merely pushed Bo. However, the prosecution might suggest that he could have seen the impact of his action if he did not run off. If in the unlikely event Noah was charged with murder, the driver running over Bo Lee’s head would break the chain of causation.
Conclusion: Element has not been met
s 18 Murder and Manslaughter defined
There are two types of manslaughter identified by the High Court in Wilson v R.16 They are manslaughter by unlawful and dangerous act and manslaughter by criminal negligence.
For manslaughter by criminal negligence, the elements are:
a) A negligent act- the act of the accused need not be unlawful, but it must be conduct that was done with little care that it falls well below the standard to expected from the reasonable person) and
b) The act or omission in question must carry a high degree of risk that someone will die or suffer from grievous bodily harm.
The mens rea of reckless assault has been established. Noah cannot be found accountable for constructive manslaughter. Noah did not believe his act of pushing Bo would carry out a high risk that she would die or suffer from grievous bodily harm, as “….it never occurred to him that she would fall and be seriously hurt. He didn’t push her very hard at all…” According to the pathologist report states Bo was killed by catastrophic brain trauma from the vehicle crushing her skull. Bo is 68 years old -elderly and vulnerable- as he could snatch…easily from an old woman…without too much fear of fighting back. It is foreseeable that the reasonable person would have realised it was dangerous to push Bo, as demonstrated in R v Watson.17
Conclusion: Element met
Which charge is most appropriate based on the facts?
Based on the facts Noah can be found criminally liable for larceny, assault and grievous bodily harm. Noah is most likely liable for manslaughter
1 Crimes Act 1900(NSW) s 117.
2 Crimes Act 1900(NSW) s 33.
3 Crimes Act 1900(NSW) s 94, s 95 & s96.
4 Crimes Act 1900(NSW) s 59.
5 Crimes Act 1900(NSW) s 117.
6 R Hayes and M Eburn Criminal Law and Procedure in NSW (3RD ed, 2009), 288.
7 R V Fuge 2001 123 A Crim R 310.
8 Ibid, 314.
9 Crimes Act 1900(NSW) s 118.
10 Crimes Act 1900(NSW) s 59.
11 R v Burstow and R v Ireland 1998 1 AC 147.
12 Crimes Act 1900(NSW) s 59.
13 Collins v Wilcock 1984 1 WLR 1172.
14 R v Venna 1975 3 WLR 737.
15 Crimes Act 1900(NSW) s 18.
16 Wilson v R 1992 HCA 31.
17 R v Watson 1989 2 All ER 865.