Criminal Liability of Mark, Reggie, and Mary

This document analyzes the criminal liability of Mark, Reggie, and Mary in various offenses including causing grievous bodily harm and sexual assault. It discusses the elements of criminal liability, the application of relevant laws, and possible defenses. The document provides a detailed analysis of each issue and concludes with recommendations for sentencing.

CRIMINAL LAW
The Criminal Liability of Mark, Reggie, and Mary
The Name of the Student
Institution
Date
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For one to be held criminally responsible for an offense, he must satisfy the basic elements of
criminal liability. These elements include the age of criminal culpability when it comes to certain
offenses. An example is in sexual offenses where one is allowed to consent at the age of 16 or in
drugs and alcohol-related offenses where the legal age of drinking, selling or buying is set at 18
years old according to the Liquor Control Act. Also, one must have the actus reus with the
requisite mens rea. The mens rea is the intention to commit an offense. It could be either
reckless, negligent or intentional. The guilty mind is essential but for offenses of strict liability1.
The actus reus is the unlawful act. It includes actions such as taking, striking, et cetera. An
important principle is the principle of legality; no punishment without showing the broken law
and punishment is strictly by law.2
ISSUE 1: Did Reggie knowingly cause grievous bodily harm to Mark?
RULE: To establish that one is liable for causing grievous bodily to another, it is mandatory that
the prosecution satisfies s304 of The Criminal Code Act Compilation Act.3 Also, to determine
this, there has to be the presence of the actus reus and requisite mens rea4. It must be established
that the individual while performing or omitting the act was in a position to foresee the imminent
harm being a direct consequence for his action: R v Coleman. It is important to note that the
actions of the accused must be the substantive and operational cause factor for the injuries
sustained. This can be established by the 'but for test' as established in the case of R v Hallett5
Also, the seriousness of the crime is measured by the nature of the injuries sustained by the
victim: R V Mitchell.
APPLICATION: The circumstances surrounding this is, knowingly causing grievous harm to
another. Reggie and Mark are friends and lovers of B.A.S.E jumping. Reggie is described as
1 Michael S. Moore, "The Strictness Of Strict Liability" (2017) 12(3) Criminal Law and Philosophy.
2 R. A Duff, Responsibility And Liability In Criminal Law (Oxford University Press, 2008)
3 Western Australia's The Criminal Code Act Compilation Act s304. If a person with the intent to harm fails
to perform a duty to which they are mandated to and leads to another suffering bodily harm , enders their life, health
or safety is guilty of a crime.
4 Richard J Bonnie et al, Criminal Law (Foundation Press, 5th ed, 2015).
5[1969] SASR 141.
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being an expert in packing parachutes, and this can be inferred by the number of successful
jumps they have had. Mark has entrusted Reggie with the responsibility of packing his parachute
thus satisfying the first limp of s304 of The Criminal Code, that is for one to be held responsible
for causing grievous harm then they must omit to do or act in line with their duty. Reggie fails to
pack Mark's parachute properly thus aiding in the parachute opening failure. Secondly, Reggie
knew exactly what his consequences would have led to, and he later wishes he had warned Mark
that he was not up to the task. Mens Rea, which is the guilty mind can be inferred from the fact
that Reggie could foresee the risk and regrets not warning Mark: R V Maloney.6The failure to
pack the parachute properly as established by the expert consulted by Mark amounts to the Actus
Reus of the crime: R v Coleman. This leads to Mark falling and breaking all his legs' bones and
fracturing his hip. Although Reggie was suffering from emotional imbalance while packing the
parachute for Mark, it is immaterial to these circumstances, and his state of mind cannot be used
as a defense in these circumstances. Using the 'but for test' Reggie would be held accountable.
But for the action of Reggie not packing the parachute properly for Mark, he would not have
fallen and fracture his hips as well as breaking his lower limb bones.
CONCLUSION: Reggie satisfies all the elements for causing grievous bodily harm to Mark and
should be sentenced to serve 20 years in prison.
ISSUE 2: Did Mary consent to having sexual intercourse with Mark?
RULES: Consent can be either express by word of mouth or implied from conduct. Also, it can
be withdrawn at any time.7 In R V Linekar8it was held that to justify and substantiate rape,
consent is an essential factor, that is, it must be established that the woman did not consent to the
actual act of sexual intercourse. In addition, for one to consent9they must have reached the legal
age10so as to make a valid consent. Similarly, the failure to offer physical resistance does not
amount to consent.11 To justify the sexual engagement, the elements in s392 (4) must be met: the
6 [1995] AC 905
7 Kiatamaki v The Queen [1985] 1 AC 147
8 [1995] 3 ALL ER 69,73
9 The Criminal Code Act Compilation Act s319(2), is to freely and voluntarily give in partaking of an act,
however, it must be obtained without threats, deceit or fraud.
10 According to The Criminal Code Act Compilation Act s321, the legal age for consenting to sex in western
Australia is 16 years.
11 The Criminal Code s392(2)(b) an adoption of Ibbs v The Queen [1988] WAR 91.
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person must sexually penetrate another, must have carnal knowledge and must penetrate the
person's vagina.
Furthermore, it has been held that a person does not freely consent under the influence of any
substance: alcohol or any other drug that renders the person incapable of agreeing freely to the
act or appreciating it.12 This is echoed in the case of Saibu v The Queen where the appellant had
sex with the victim - consensual sex. However, after falling asleep the appellant starting having
sex with the victim again, this time the victim was unable to consent because they were asleep.
APPLICATION: Reggie's girlfriend being of the age of 17, has the legal capacity to consent to
have sexual intercourse with a person: s321 of The Criminal Code. Reggie's girlfriend after
drinking goes to bed only to wake up in the early hours of the morning still under the influence
of alcohol and find Mark next to her in bed. However, Mark has his room and bed - where he
should be sleeping. Mark puts his hands around her waist amounting to an indecent assault: R v
Leeson13. She gives in to kissing Mark while hoping Mark would stop afterward. However, Mark
penetrates her: s392. She tells him to stop, but he continues. Here, the consent has been
withdrawn, and further penetration amounts to rape under the doctrine of 'continuing act'.
Continued penetration constitutes the actus Reus, and the mens rea is formed when the
perpetrator knows consent has been withdrawn but continues: Kaitamaki v The Queen. Also, in
the matter of Saibu v The Queen, it was held that consent can be withdrawn at any time and that
consent at one moment does not amount to continual consent.By Reggie's girlfriend just lying
there and not offering any physical resistance, it does not amount to consent: Ibbs v The Queen.
CONCLUSION: Mark satisfies all the elements required in order for one to be charged with
sexual assault. He should, therefore, serve 14 years in prison.
POSSIBLE DEFENSE FOR MARK: The Mistake of Facts as to Consent.
RULES:The Criminal Code Act Compilation Act 1913 s24 defines Mistake of facts as: when a
person commits or omits to do an act under an honest and reasonable but mistaken belief as to
12 R V Getachew [2012] HA 10.
13 [1968] 52 Cr App Rep 185
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the state of affairs cannot be held criminally responsible for the act or omission to any extent
greater than the real state of things he had believed them to be. A mistake of facts negates mens
rea, which is an essential element when establishing criminal liability unless in crimes of strict
liability. This mistaken belief makes one carry out an illegal act or fails to perform a legal duty.
The reasonableness or good faith aspects of the mistaken belief are irrelevant when applying
mistake of facts as a defense in crimes which require mens rea in the form of intention to commit
an offense: R v Mbombela.14 Many are times silence has been mistaken to imply consent15 in
cases involving sexual offenses. Similarly, the decision by the victim not to offer physical
resistance has been mistaken as consent for one to continue sexually assaulting or penetrating
them.
APPLICATION: When Mark starts kissing Reggie's girlfriend who was half drunk, she kisses
him back to a point of it getting intense thus turning both of them on. To Mark the kissing back
he receives from Reggie's girlfriend seems to imply consent and open the way for actual
penetration which is his (Mark) intention. When Mark puts himself inside her (Reggie's
girlfriend- Mary), Mary whispers "stop, Reggie's in the bathroom next door." When a person is
facing an imminent danger of being raped they often scream, this is a call for despair and need
for help. However, she (Mary) just whispers not to alert his boyfriend Reggie, in the next room,
Mary is more concerned with Reggie knowing than being sexually assaulted. Mark whispers into
her ears assuring her that everything is okay and that he won't take long. Mary then lies there for
Mark until he finishes.
WHY THIS DEFENSE MAY NOT HOLD
Mary is half drunk; thus her judgment is impaired; thus she may not be in her rightful senses to
consent to have sex with Mark: Saibu v The Queen. Secondly, although Mary does not offer
physical resistance and just lies there while Mark enters her, this does not amount to consent in
any way s392(4) based on the legal fiction theory everybody is presumed to know the law, Mark
14 (1993) A.D 269.
15 Lucinda Vandervort, "Implied Consent and Sexual Assault: Intimate Relations, Autonomy, And Voice by
Michael Plaxtonmichael PLaxton, Implied Consent and Sexual Assault: Intimate Relationships, Autonomy, And
Voice. Montreal and Kinston: Mcgill-Queens University Press, 2015." (2016) 28(3) Canadian Journal of Women
and the Law.
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ought to be aware of this fact. In addition, when Mary whispers 'stop' consent has been
withdrawn. It has been established that consent is not continual and can be revoked at any given
time: Saibu v The Queen.
CONCLUSION: Mark judging by the conduct of Mary was under the mistaken belief that Mary
had consented to engage in sexual intercourse with him. Mark was convinced that what he was
doing as not illegal. This defense, therefore, is available to Mark and may hold.
ISSUE 3: Is Mark's amount of violence on Reggie occasioning bodily harm an equivalent of the
consent given by his best friend Reggie?
RULES: Consent is an undoubted question of fact. This means it can be rebuttable in certain
circumstance as to whether consent as given or not, consent can be either implied from the
actions of the victim to being direct. In Western Australia people have consented to violence
which includes high-level violence can occasion bodily harm to the person16. The Criminal Code
Act Compilation s222, a person is deemed to have committed the offense of assault when they
strike, move, and touch or otherwise uses force either directly or indirectly to another person
without their consent. In cases of consent, the consent must not be obtained through fraudulent
(the victim must have given the consent freely and without being manipulated into giving the
consent) means or by threats. The application of force could be a thing or substance that if meted
on someone in a certain degree is capable of causing injury or personal discomfort. In as much as
one can consent to violence, it is important that the harm suffered must be an equivalent of the
consent given by the victim: Lergesner v Caroll. However, according toThe Criminal Code Act
Compilation Act, s223 consent to violence does not write off the legal fact that the act is still
unlawful.
APPLICATION: Reggie is feeling guilty and responsible for the injuries suffered by Mark as a
result of failing to pack his parachute properly. He brings him a gun so that Mark could shoot
him in the hoping that this will make them even (both will walk again but with aids). This shows
that Reggie has consented to this form high-level violence (being shot in the knee). By bringing
16 "Assault Laws, Assault Charges, Bodily Harm And Wounding, Lawyers, Brisbane, Criminal Charges",
Awbrisbanelawyers.Com.Au (Webpage, 2019) <http://www.awbrisbanelawyers.com.au/c-crime-assault-law-laws-
lawyers-brisbane-charges-bodily-harm-wounding.html>
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in the gun and instructing Mark to shoot him in the knee, which Mark gladly does. This tears
Reggie's knees. The consent and the amount of injury suffered are at equilibrium thus satisfying
the principle set out in the matter between Lergesner v Caroll.17
The application of force as set out in s222 is also met as Mark uses a thing (gun) to cause injury
and personal discomfort to Reggie.
The consent given by Reggie does not in any way sanctify the actions of Mark and thus the
shooting remains unlawful. This is in accordance with s223.
The amount of bleeding and the possibility of not walking again unless Reggie uses aid classifies
this as an assault occasioning bodily harm.18
CONCLUSION: The degree of violence used by Mark does not exceed the consent given by
Reggie.
ISSUE 4: Did Reggie and Mark undertake illegal activity by B.A.S.E from the QBE building?
RULE: Due to the frequent number of deaths met by Australian BASE jumpers. Western
Australia has tried to regulate BASE jumping. Today it is not an offense to BASE jump unless
it's done on private buildings and without the consent of the owner (Rarely do these seekers of
thrill by falling from higher grounds get the permits to do so in parks and tall private buildings)
BASE jumping in Western Australia has been banned on National Park and private building.
Hence, when one is caught, they will face a charge of three months’ imprisonment19
APPLICATION: One fateful night of March, Reggie and Mark set out for the QBE building to
BASE jump. This is private property, and one seeks permission to BASE jump. However, they
manage to sneak to the top of the building. By sneaking, it shows that no permission was
17 The amount of injury suffered must be an equivalent of the consent given.
18 R v Fairbrother; ex parte AG (Qld) [2005] QCA 105
19 Lisa Visentin, "BASE Jumping: Thrill Seekers In Search Of 'Dead Air' And The Law", The Sydney
Morning Herald (Webpage, 2015) <https://www.google.com/amp/s/amp.smh.com.au/national/nsw/base-jumping-
thrill-seekers-in-search-of-dead-air-and-the-law-20150911-gjksz3.html>.
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requested nor granted. This amounts to trespass on private property and as the laws state BASE
jumping from private property without permission is criminal.
CONCLUSION: Reggie and Mark are liable for BASE jumping from private property without
permission; thus they should serve a term of 3 years imprisonment.
ISSUE 6: Did Reggie and Mark break the law by offering Reggie's 17-year-old alcohol?
RULES: According to the Liquor Control Act, the legal drinking age in Perth, Western Australia
is 18 years. Any person who has not attained the age of 18, is prohibited from buying, supplying
or drinking alcohol on licensed or regulated premises20. The law prohibits this even in the
presence of their parents or guardians. It is also illegal for a minor to drink alcohol in unlicensed
places without the permission of the owner21. The maximum penalty for a minor caught drinking
on licensed premises is $2000. However, there is no law that states that minors are not supposed
to drink on private premises. It is also illegal for an adult to purport to be purchasing alcohol for
a minor or purchasing on their behalf. When a minor is found to have alcohol the same shall be
confiscated, and the individual punished according to the Liquor Control Act.
APPLICATION: Mark invites Reggie and his girlfriend to spend the night at his house which is
private property, thus Mark. All three engage in voluntary drinking; this is an assumption
because there are no facts presented in the context that prove contrary. This scenario does not
have the requisite elements necessary to bring an action upon Reggie as a party to the offense
and Mark the owner of the premises.
CONCLUSION: Reggie and Mark cannot be held accountable for offering Reggie's girlfriend
alcohol as the law is silent about it. This is based on the principle of legality (no law prohibits a
minor from drinking while on private. In this case drinking at Mark's place does not amount to
an offense)
20 John W Toumbourou et al, "Should Alcohol The Legal Age For Alcohol Purchase Be Raised To 21?"
(2014) 200(10) The Medical Journal of Australia
21 Allison, Tait, "Alcohol And The Australian Law", Kidspot.Com.Au (Webpage, 2013)
https://www.kidspot.com.au/parenting/parenthood/parenting-style/alcohol-and-the-australian-law/news-story/
d3e6b3f0cdac21322696f5ed96f62bbb/amp>
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GENERAL CONCLUSION TO THE OFFENCES
According to the principle of legality22, a person should not be punished without the law. He
should be provided with the law he has broken and the punishment. The accused should also
satisfy the elements of the said crime.
Several offenses both sexual and non-sexual, fatal and non-fatal against persons have been
committed by Mark and Reggie.
Reggie satisfies all the essential elements of causing grievous bodily harm to another. As set out
in The Criminal Code Act Compilation Act of 1913, s304. If a person with the intent to harm fails
to perform a duty to which they are mandated to and leads to another suffering bodily harm, ends
their life, health or safety is guilty of a crime. Similarly, Mark could also be held liable for
assault occasioning to bodily harm. Mark satisfies all the essential elements but the fact that
Reggie allowed him to shoot him in the knee and even offered the gun, the force of the violence
equates to the consent given this does not however sanctify the act, and thus it remains unlawful.
Mark, could also have the charge of sexual assault preferred against him as he meets the
threshold for one to be deemed to have committed a sexual offense against someone else.
Usually when one is facing two charges (Mark) and is found guilty on different charges. They
are often sentenced to serve the terms either subsequently or concurrently.
22 Meagher Dan and Mathew Groves, The Principal of Legality in Australia And New Zealand (The
Federation Press, 2017)
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BIBLIOGRAPHY
A. Articles/ Books/ Reports
Bonnie, Richard J et al, Criminal Law (Foundation Press, 5th ed, 2015)
Moore, Michael S., "The Strictness Of Strict Liability" (2017) 12(3) Criminal Law and
Philosophy.
Toumbourou, John W et al, "Should Alcohol The Legal Age For Alcohol Purchase Be Raised To
21?" (2014) 200(10) The Medical Journal of Australia.
Vandervort, Lucinda "Implied Consent and Sexual Assault: Intimate Relations, Autonomy, And
Voice by Michael Plaxtonmichael PLaxton, Implied Consent and Sexual Assault: Intimate
Relationships, Autonomy, And Voice. Montreal and Kinston: Mcgill-Queens University Press,
2015." (2016) 28(3) Canadian Journal of Women and the Law.
Tait, Allison, "Alcohol And The Australian Law", Kidspot.Com.Au (Webpage, 2013)
https://www.kidspot.com.au/parenting/parenthood/parenting-style/alcohol-and-the-australian-
law/news-story/d3e6b3f0cdac21322696f5ed96f62bbb/amp>
Duff, R. A, Responsibility And Liability In Criminal Law (Oxford University Press, 2008)
Dan, Meagher and Mathew Groves, The Principal of Legality in Australia And New Zealand
(The Federation Press, 2017)
"Assault Laws, Assault Charges, Bodily Harm And Wounding, Lawyers, Brisbane, Criminal
Charges", Awbrisbanelawyers.Com.Au (Webpage, 2019)
<http://www.awbrisbanelawyers.com.au/c-crime-assault-law-laws-lawyers-brisbane-charges-
bodily-harm-wounding.html
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Visentin, Lisa, "BASE Jumping: Thrill Seekers In Search Of 'Dead Air' And The Law", The
Sydney Morning Herald (Webpage, 2015)
https://www.google.com/amp/s/amp.smh.com.au/national/nsw/base-jumping-thrill-seekers-in-
search-of-dead-air-and-the-law-20150911-gjksz3.html
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B. Case Law
R v Coleman (1992) 13Cr App R (S) 508
R v Mitchell (1983) QB 741
R v Maloney (1985) AC 905
R v Hallett (1969) SASR 141
Saibu v The Queen(1993) 10 WAR 279
Kiatamaki v The Queen(1985) 1 AC 147
Lergesner v Caroll (1990) 49 A Crim R 51.
R v Fairbrother; ex parte AG(Qld) (2005) QCA 105
R V Getachew (2012) HA 10.
R v Leeson (1968) 52 CrAppR 185
Ibbs v The Queen (1988) WAR 91.
R v Mbombela(1993) A.D 269.
C. Legislation
The Criminal Code Act Compilation Act 1913 (WA)
The Liquor Control Act 1988 (WA)
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