70114 Criminal Law and Procedure- Police Treatment of Roman

Identify any breaches of procedure with respect to the police treatment of Roman, and explain the legal consequences of these breaches.

You should not consider whether Roman ought to have been held on remand or released on bail.

Discuss Roman’s criminal liability for Cory’s death.

When addressing the elements of any offence(s) with which Roman has been charged, and the elements of any defence(s) that he will raise, you should briefly discuss the impact of recent amendments to the Crimes Act 1900 (NSW) (where applicable).

You should not consider constructive murder, negligent manslaughter, or any offences or defences not covered in Weeks 4–6 of this course.

Rule

Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’) covers that there is a two step process for making an arrest without a warrant. As per section 99(1) (a), an arrest can be made without warrant when the police officer has reasonable grounds to suspect that the individual has committed or is committing an offence. However, section 99(1) (b) provides that the arrest has to be reasonable necessary for attaining the purposes covered in this subsection. For instance, protecting the welfare or safety of a person; preserving evidence of offence; or stopping an individual from fleeing the scene.

The behavior of the defendant is taken as key grounds on which the officer bases their suspicion. Judge Lakatos, in R v Yana ORM noted that the experience and commonsense of the police officer is used for seeking out and for investigating any lead relating to an offence. In this particular case, a vehicle having a South Australian registration plates was pulled over by the officer for a random breath test. It turned out to be negative and upon checking the license, it was revealed that the license of the defendant of South Australia had been cancelled. When the defendant started smoking, the officer got suspicious about possession of drugs, as the defendant had been on holiday with his cousins in Liverpool. Upon the search, drugs and money were found inside the car. There were five different grounds for suspicion by the officer.

• Avoidance of eye contact;
• Stayed in Liverpool;
• Did not stay at home of cousins, and instead stayed at a hotel;
• Attempted to avoid random breath test;
• Accused exited the car and smoked.

However, the Crown claimed that the suspicion of the officer was not reasonable, when an appeal was made. Ultimately, the evidence was admitted as the defendant gave his consent to search his vehicle.

When, upon suspicion, an individual is arrested by a police officer, a procedure has to be followed. When an individual is being arrested, he has to be told that he is being placed under arrest, the reasons for placing him under arrest and the name and place of duty of the police officer making the arrest. The police officers have the authority to use force in necessary cases. However, the same has to be reasonable or else, would amount to an assault. If an individual resists arrest, it is considered as an offence and in case violence is used against the police, the individual can be charged with assault of a police officer.

Once an individual is arrested, the police have the right of searching the individual, at both the place of arrest and at the police station. When an individual is put under arrest, they are to be handed over a document which clearly states the rights of the individual. In case the police want the individual to take part in the investigation, in form of questioning the suspect, the lawyer or some other individual can be contacted by the individual. The police also have the right to take palm prints, photographs or fingerprints for the purpose of identification.

The accused individual has certain fundamental rights and one of such rights is covered in the recently amended section 89A of the Evidence Act 1995 (NSW), which gives the accused the right to silence. Hence, the accused, at every stage of the legal process, has the right of remaining silent. In case an individual has been arrest regarding a specific offence, the individual is not required to take part in any interview which requires him to answer questions about the particular offence.

The effects of a wrong arrest can be seen in the case of Zaravinos v State of NSW; State of NSW & Ors v Zaravinos. In this case, the matter was brought forward by Mr. Zaravinos who was represented by Greg Walsh, regarding a false arrest and imprisonment against the State of New South Wales. Zaravinos was attending a police station through an appointment for interview and two officers arrested him on related but different charges. He was charged, interviewed, and photographed, fingerprinted, bailed, and released. After many adjournments, the prosecutions were discontinued.

Initially it was held by the District Court judge that there was an absence of the reasonable grounds for arrest. And the Zaravinos was awarded damages. Upon an appeal made to the NSW Court of Appeal, a number of issues regarding the law of arrest were determined. It was held that Zaravinos was deliberately arrested at late Saturday night so that he could not be granted bail till Monday. The minor fear of Zaravinos absconding was held unreasonable as his passport was submitted to the police. And the decision of the trial judge regarding the reasons for arrest being heavy handed, were further held to be correct.

Application

In the given scenario, the first issue was the absence of reasonable grounds. The police officers had no reasonable grounds to deny the student ID of Roman, especially when it was valid and when he had a ticket also. The information regarding the assault reached the officers after they had rejected the student ID of Roman. Hence as per Lakatos, in R v Yana ORM, their reasonable grounds would be contested.

After Roman ran, when the officers tried to apprehend him, he was informed that he was being placed under arrest for assault. However, the police officer making the arrest never told him their names and place of their duty. Roman was also not read his rights, which was again a breach in the procedure. Due to this, he was not aware about his right to remain silent and spoke one line in the interview conducted by Constable Dwyer. Due to these procedural breaches, as per Zaravinos v State of NSW; State of NSW & Ors v Zaravin, Roman is eligible to claim damages.

Conclusion 

To conclude, there were breaches of procedure in the treatment of Roman, and such breaches make him eligible to claim damages from the State of NSW.

Part B

Issue

Whether Roman is criminally liable for the death of Cory, or not?

Rule

In order to hold a person criminally liable for his actions, there are certain requirements, which have to be fulfilled. Firstly, the individual needs to have a legal capacity for committing a criminal offence. This has to be followed by the presence of the elements of conduct relating to an offence; in other words, the actus reus. There is also a need to establish the fault elements, which forms a part of the offence; in other words, mens rea. There is also a need to establish temporal coincidence of both actus reus and mens rea. And lastly, there has to be an absence of any defense of jurisdiction or excuse which would be a negative liability.

The legal capacity of the individual is in terms of the minimum age for criminal responsibility. The minimum age for which an individual can be held criminally responsible, in all the states and territories of Australia is 10.

The next requirement is to establish actus reus. The circumstances and consequences which recognize the liability for the offence in question are considered under actus reus. In short, the elements of an offence, apart from the mental state are included in this. For instance, the actus reus for murder, as per section 18(1) (a) of the Crimes Act 1900 (NSW), is such an omission or act which resulted in the death of a victim. The voluntariness as a requirement also has to be involved. So, the act undertaken by the accused has to be done on voluntary basis. And in absence of such voluntariness, the actus reus would not be established.

As per Lord Denning, in Bratty v AG (Northern Ireland), an involuntary act includes an act conducted by the muscles where the individual had no control of mind, for instance, a reflective action. So, the power of choice is the only requirement. But when an individual moves their arm in a way, which hits someone else, it cannot be considered as an unconscious action as per R v Falconer.

The next element which has to be established for ascertaining the criminal liability of an individual relates to the fault or the mens rea. It is a crucial element, without which, the crime cannot be upheld. Mens rea means guilty mind and it depicts the knowledge or intention of doing a wrong thing, which constitutes as a part of the crime, as against the conduct or action of the accused. The words which prescribe the fault elements for certain special offences have been contained in the statute; for instance, as per section 18, there has to be an intention on part of the accused to murder and similar provisions for wounding are contained in section 33 of this act. Section 35 contains that the mens rea is the recklessness in cause of wounding or grievously bodily harm.

The elements of mens rea are subjective or objective depending upon the grounds. For instance, intention to kill as per section 18 is subjective and the recklessness also is subjective aspect. However, for a sexual assault, where there was an absence of reasonable grounds in consent can be both subjective and objective. The element of negligence, where an individual fails to undertake the duty of care, which a prudent individual would have in similar circumstances, is deemed as an objective ground.

In He Kaw Teh v R, it was held by Justice Brennan that the intention depicts a decision for bringing a situation to a particular kind of result, in so far as is possible to do. This decision shows a wish or desire to undertake a task which would bring the desired results. There may be cases where there is partial mens rea and in such cases, a deviation can be made from the general requirement of intention.

In order to hold an individual liable, there has to be a temporal coincidence. In other words, both actus reus and mens rea have to be present at the same time. So, the intention to hit someone has to be made at the same time as the person was hit, and if both these take place at different time, the criminal liability arising out of assault cannot be established.

Murder and manslaughter are two types of homicides which can be conducted in NSW. Manslaughter can be divided into two parts, the first one is the voluntary manslaughter, and the other is the involuntary manslaughter. The presence of mens rea is the only differentiating points between the two types. In the latter, there is an absence of mens rea which is required for establishing murder. In the voluntary manslaughter, mens rea is present and the defense for the same can be in form of substantial impairment of mind or provocation.

Murder on the other hand, is the act committed by an accused, which results in death of another individual, where the accused inflicts grievous bodily harm on someone, or is reckless regarding the human life, in order to commit the crime which is punishable by imprisonment for life. In murder, the actus reus is the voluntary act or omission resulting in a death of another person. And the mens rea is the intention to inflict grievous bodily harm or intent to kill or paying reckless indifference to the human life.

Application

In the given case study, in order for establishing that Roman has criminal liability for the murder of Cory, certain points would have to be established. The first point is the legal capacity for committing a criminal offence. As Roman is 24 years old, which is higher than the age of 10, he has the required legal capacity for committing a criminal offence.

The next element is actus reus. When Cory tried to kiss Roman, his muscles took a reflective action and punched Cory in the jaw. As per the case of Bratty v AG (Northern Ireland), this action of Roman would not hold actus reus and so, this element would be missing in this case, as a result of which, Roman cannot be held liable for a criminal act.

However, when the case of R v Falconer is applied, the situation is changed. This is coupled with the succeeding actions of Roman. Even when Cory had surrendered, Roman continued to hit him. When Cory fell down after the third blow, he hit the pavement. Even after this, Roman kicked him in the ribs. This action depicts the guilty mind, i.e., mens rea on part of Roman. If the case of He Kaw Teh v R is applied here, the intention of Roman shows that he wanted to hurt Cory. Further his statement that he will teach Cory a lesson which he will never forget affirms the mental state of Roman. He started beating Cory and continued beating him even after he stopped responding. He wanted to hurt Cory to achieve the desired results of teaching him a lesson.

In this scenario, there is a clear presence of mergence of actus reus and mens rea, as Roman hit Cory with an intention to inflict grievous bodily harm and he paid reckless indifference to the life of Cory. This makes him criminally liable for the murder of Cory. The conditions covered in section 18 of the Crime Act have been clearly fulfilled; hence, Roman did commit murder.

Conclusion

On these bases, it can be clearly concluded that the elements required to establish the criminal liability, arising from murder, were clearly preset in this case. And so, Roman would be criminally liable for the murder of Cory.