Criminal Law and Procedure Tutorial Program

Semester 1 2019

Tutorial Objectives and Overview

The purpose of the tutorial program is to enable students to raise questions flowing
from their developing understanding of the criminal law in the areas taught. Tutorial
questions are based on past exam questions therefore each week in this course you
will be developing your skills for the final exam. It is expected that students will
attend weekly tutorials and actively engage with criminal law problem solving. Good
legal reasoning and criminal law problem solving and critical analysis will be
modelled in the tutorials by tutors and students will be able to receive immediate
feedback on their ideas, arguments and approaches through class participation.

Skills
Participation in the tutorial program will provide opportunities for students to refine
and practice the following skills:
• oral communication and listening (through active participation);
• reading and textual analysis;
• statutory interpretation;
• legal reasoning/problem-solving skills;
• accuracy and precision;
• attention to detail;
• critical/analytical thinking;
• working collaboratively (developing a professional and responsible attitude
to collaborative learning);
• legal and general argument;
• creative thinking;
• advocacy skills;
• legal technology skills (preparation for tutorials - accessing case law and
legislation online);
• study management skills (preparation for tutorials)

This course contains confronting and sensitive material

The facts and language in criminal law cases can be confronting. The tutorial
program reflects that reality. Frequently, tutorial problems have been inspired by
real cases. Anyone who has any concerns about attending tutorials (or lectures)
covering particular areas of the criminal law can discuss this with Mark or Wendy.
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PREPARATION FOR TUTES – IN A NUTSHELL:

For each tutorial, students should carefully read the question beforehand; review
their lecture notes and prescribed readings relating to the relevant part of the
course; prepare a written answer to the tutorial question; and come to the tutorial
prepared to participate in discussion. In this course, tutorials are not supplementary
lectures and will conducted by tutors on the basis that students have prepared their
answers in accordance with the above instructions.

You are advised to take notes during the tute discussion to assist you prepare for
your assessment tasks.

Note: Assume that all facts occur in NSW for each tutorial EXCEPT property offences
which take place in the ACT as indicated.

Note:

There are no tutorials in this course in week 1 and week 2.

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TUTORIAL IN WEEK 3: INTRODUCTION TO CRIMINAL LAW PROBLEM SOLVING

Tutorials this week introduce the tutorial program for Criminal Law and Procedure.
In class this week, you will meet your tutor and other members of your group.

The problem-solving task this week asks you to work with a basic criminal offence
provision. You will be practising recognising actus reus and mens rea elements of an
offence which is an important skill that you will draw upon all semester in Criminal
law and procedure. As part of your preparation for this class, you should have
listened to all the lectures in weeks 1 and 2 of the course and have completed the
required reading.

You must attend the tutorial that you have enrolled in via WATTLE. If your name is
not called from the class roll this means that you are not enrolled in the tutorial and
you will need to check WATTLE to see which tutorial group you have enrolled in. In
this course, swapping between tutorial groups over the course of the semester is
not permitted.

ANALYSING CRIMINAL OFFENCES

S 49A Throwing rocks and other objects at vehicles and vessels

(1) A person is guilty of an offence if:

(a) the person intentionally throws an object at, or drops an object on or
towards, a vehicle or vessel that is on any road, railway or navigable waters,
and
(b) there is a person in the vehicle or vessel, and
(c) the conduct risks the safety of any person.

Maximum penalty: Imprisonment for 5 years.

(2) This section extends to a vehicle or vessel that is stationary at the time that the
object is thrown or dropped.

(3) In the prosecution of an offence under this section, it is not necessary to prove:
(a) that the accused was aware that his or her conduct risked the safety of
any person, or
(b) that the object made contact with the vehicle or vessel.
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(4) In this section:

road means a road or road related area within the meaning of the Road Transport
(General) Act 2005.1

throw includes propel.

vehicle includes:

(a) a motor vehicle, and

(b) a train or tram, and
(c) a bicycle, and
(d) a vehicle drawn by an animal or an animal ridden by a person.

FACTS

Freda, an ANU student, is mucking about with friends in a public car park outside the
Queanbeyan Leagues Club in NSW. They are throwing a heavy bunch of keys
between them as they pretend to argue about who is going to drive them back to
their shared house in Canberra. In fact, Freda is the designated driver for the group
as she has not drunk any alcohol at the Club. Freda throws the keys to Marcus
saying “I’ve changed my mind – you’re driving”. Her aim is off and instead of
reaching Marcus, the keys hit the windscreen of a car parked in the car park. The
windscreen shatters. There are two people in the car and the driver was just about
to turn on the ignition to drive away. No one is injured in the incident. Freda says
that she did not know that anyone was in the car nor did she intend for the keys to
hit the windscreen of the car.

Advise the NSW Director of Public Prosecutions (DPP) on Freda’s liability for s 49A.

1
The relevant definitions from s 3 of that Act are:

road means an area that is open to or used by the public and is developed for, or has as one of its
main uses, the driving or riding of motor vehicles. […]

road related area means:

(a) an area that divides a road, or

(b) a footpath or nature strip adjacent to a road, or
(c) an area that is open to the public and is designated for use by cyclists or animals, or
(d) an area that is not a road and that is open to or used by the public for driving, riding or
parking vehicles, or
(e) a shoulder of a road, or
(f) any other area that is open to or used by the public and that has been declared under
section 15 to be an area to which specified provisions of this Act or the regulations apply.
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TUTORIAL IN WEEK 4: STRICT AND ABSOLUTE LIABILITY

Bill and Ben are two hobby farmers who have adjoining lots in rural NSW. Both have
tried growing various crops but without much success. One day, while listening to a
radio program called “Green Acres”, Bill learns that many farmers are turning to
beekeeping as a way to earn extra income. With a small cash outlay, Bill buys a
dozen beehives, and within two months his bees are already starting to make honey.
Bill tells Ben about his success, and Ben becomes in interested I joining him in the
beekeeping business. The arrangement is that, in order to “buy” into the business,
Ben will provide 100 sterilised jars which the partners will use for selling their honey.
In exchange, Bill will give Ben half of the beehives and will also share with his partner
expertise in beekeeping. The deal is done. Once their bees have produced enough
honey, Bill and Ben set up a roadside stand outside their lots with a banner that
reads “Bill and Ben’s Delicious Honey - $5 per jar”.

Before long, an inspector from the NSW Department of Primary Industries arrives at
the honey stand and asks to see registration papers for the beekeeping business. Bill
replies that he asked the farmer who sold him the beehives whether there were any
formalities required for keeping bees, and the farmer had told him that registration
was required for large-scale beekeeping operations, but that for “just a few hives,
you don’t need to bother with registration.” Bill says that he therefore assumed he
was entitled to keep the bees and to sell a few jars of honey for a bit of extra cash.

Ben, by contrast, says that he checked the Department’s website after acquiring the
beehives from Bill, and saw information, there that explained that anyone owning
hives was required to register as a beekeeper. Accordingly, he had filled out the
registration form and paid the applicable fee. He says that he assumed that Bill had
also applied for registration as a beekeeper, though he admits that he did not ask
him. When asked why this was the case, Ben said “Bill can be a bit disorganised and
absent-minded. But he know a lot about bees, and he’s had the hives for a while, so I
just reckoned he would know about the whole registration thing.”

The inspector issues an infringement notice to Bill under s 6(1) of the Apiaries Act
1985 (NSW) and another infringement notice to Ben, under s 6(2) of the same Act.
This legislation imposes a number of obligations on beekeepers. When introducing
the Apiaries Bill, the NSW Minister for Agriculture said, in his second reading speech:
“This Bill is designed to set in place regulations that will prevent the spread of
diseases from hive to hive in NSW. Disease pose a significant threat to commercial
honey production in this State. The consequence of leaving beekeeping unregulated
could be disastrous.”

The long title of the Apiaries Act 1985 (NSW) is: “An Act to regulate beekeeping in
NSW and to prevent the spread of diseases among bee populations”.
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Section 6 of the Act provides:

Unregistered person not to keep bees

(1) A person shall not, either alone or in partnership with another person or through
an employee or agent, keep bees or act as or carry on the business of a beekeeper
unless the first-mentioned person is registered as a beekeeper.

Maximum penalty: 20 penalty units

(2) A person shall not carry on a business of keeping bees in partnership with
another person, who to the knowledge of the first-mentioned person, is not
registered.

Maximum penalty: 10 penalty units.

Advise Bill and Ben on their liability under the Apiaries Act 1985 (NSW).
 7

TUTORIAL IN WEEK 5: MURDER

Esther and Louise are 24 year old friends who work together in the NSW public
service. They live and work in Parramatta. They like to go clubbing and are
recreational drug users. They mainly take oral party drugs with a preference for
hallucinogens. They have recently fallen in with a more adventurous group of friends
who they know are into harder drugs. One of them is Angie.

One night in March 2018, Esther and Louise are at a private party at a friend’s house.
They go into one of the bedrooms where Angie is sitting on the floor with two other
people. Esther and Louise watch as the two other people sniff a white powder and
then get up and leave the room. Esther and Louise join Angie sitting on the floor and
Esther says: “What’s that they’re taking?” Angie says: “just some crushed up speed.
Have you snorted it before?” Esther and Louise both answer that they’ve only ever
taken it orally as tablets before. “Give it a go,” says Angie, “you get a much quicker
and more intense buzz if you snort it.” Both Esther and Louise self-administer a dose
of the white powder nasally. They have different reactions. Louise is hyped up pretty
much straight away and start dancing around the room. Esther remains quiet in her
seated position watching Louise for several minutes. Angie, who has not taken any of
the white powder, but who has drunk 4 vodka shots in 30 minutes, looks at Esther
and says: “You didn’t have enough, girl, or you didn’t snort it properly!” She mixes
the rest of the white powder into the vodka bottle she is holding. Esther shakes her
head in refusal when Angie tries to pass the bottle to her. “I don’t want any more”
she says, “I’m sweating and my heart is racing.” But Angie grabs Esther’s hair, pulls
her head back and tilts the vodka bottle to pour some of it down Esther’s throat.
Esther sputters a bit but swallows some of the vodka. Angie then let’s go of Esther’s
head and observes that Esther remains seated and is sweating. Angie leaves the
room. Louise, still dancing, follows Angie out of the bedroom.

Esther is found by Louise two hours later curled up on her side on the floor of the
bedroom. Louise calls an ambulance. Esther is sweating and breathing shallowly on
her way to the hospital. Her care is delayed in emergency due to the triage nurse
assessing her as less needy of immediate attention than four other patients, two of
whom have been involved in a knife fight. However, she is seen by emergency staff
30 minutes after her arrival and they commence treatment for methamphetamine
overdoes. Despite this treatment, Esther dies two hours after she arrives at the
hospital.

The forensic and medical evidence available to the prosecution is that:

• the powder was the methamphetamine ‘speed’;

• the cause of the death was cardiovascular collapse, which is an uncommon

side effect of a methamphetamine overdose;

• Esther was pre-disposed to cardiovascular problems;

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• If treatment had been commenced by emergency staff at the time of arrival

then Esther may have survived.

The prosecution also has received medical evidence that Angie was taken to
hospital by a friend, 9 months prior to this incident, after taking speed orally and
then chasing it with vodka. Her symptoms had been a racing pulse, chest pains
and severe difficulty breathing. However, she had recovered in the emergency
waiting room and had been taken home by her friend without having been
treated.

Angie is arrested by police and makes the following statement to police: “She
knew what that powder was and she snorted it herself. I just topped her up
because she didn’t seem to be getting high. I only wanted her to get a good high.
I never meant to kill her. She was my friend.”

Advise the NSW Director of Public Prosecutions (DPP) on Angie’s liability for
murder under s 18(1)(a) of the Crimes Act 1900 (NSW).
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TUTORIAL IN WEEK 6: MANSLAUGHTER

Kevin goes shooting in a national park in western NSW. Whilst walking in the park he
sees some kangaroos at a water hole in the distance. He stalks the kangaroos. Lying
down to conceal himself he sees a movement some 50 metres away. He fires his
rifle. Unfortunately the movement was caused by Reg, another shooter, who was
also stalking the kangaroos.

Reg is wounded in the chest. Kevin is horrified at what he has done, but anxious that
he will be in serious trouble as a consequence. He bandages Reg as best he can at
the scene and bundles him into his Land Rover.

Instead of driving Reg to the nearest town which has a large well-equipped hospital
he decides to take him to a small town more than an hour’s further drive away.
Kevin thinks he may be able to leave Reg at the hospital in this town and get away
without acknowledging his involvement in the shooting.

As the trip proceeds it is clear that Reg is losing a lot of blood. Kevin becomes
increasingly worried. He stops when he sees a house with a doctor’s surgery sign at
the front and carries Reg into the surgery. He is extremely agitated by now. He
places Reg on the couch and screams at the doctor in a menacing manner to do
something quick to save him. The doctor picks up his scalpel and in his fear and
confusion gashes himself in the arm. He thereafter makes ineffectual efforts to treat
the wound before arranging for Reg to be transferred to the hospital in the bigger
town.

Reg dies soon after arrival at the hospital. The evidence indicates that had he been
given timely and skilled medical treatment he would probably have survived.

Under the applicable New South Wales statute, “Intentionally, recklessly or

negligently discharging a firearm in a national park without a permit” constitutes an
offence carrying a maximum penalty of 6 months imprisonment. Kevin did not have
a permit.

Advise Kevin in relation to his criminal liability manslaughter in respect of Reg’s

death. Consider both manslaughter by criminal negligence and manslaughter by
unlawful and dangerous act in your answer.
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TUTORIAL IN WEEK 7: ASSAULT OFFENCES

Ivan is a drug dealer who deals in the CBD of Sydney. He has an extensive network of
couriers on pushbikes delivering ice, heroin and cocaine to rather wealthy
professional clients. Ivan employs these couriers as they are expected to regularly
gain access to leading law firms, banks, and accounting firms in Sydney to deliver
important documents by hand. This access allows Ivan and his clients opportunity to
move envelopes of drugs and money around effectively unnoticed.

On Monday 27 February 2017, Victor, one of Ivan’s cyclist couriers, delivers a

package to a law firm and is invited into David’s office. David is one of Ivan’s regular
clients. Victor has delivered packages of drugs to David on no less than 10 occasions.
Victor waits in the office as normal and expects David to simply check the delivered
package then give Victor a package of money in return to take back to Ivan.

However, this time, Victor sees that David is exhibiting some rather elevated
behaviour, pacing around the office in a highly-irritated manner. David says to Victor:
“It has all been a bit tough on me lately. I normally sell this shit on
and never have a taste of it but I kept the last lot all to myself. I
now know that this ice is superb and I understand why I have
been able to sell so much of this stuff. I have not needed to sleep
for days and I am pumping out the work, no problem. I will be
over on my monthly billings before the end of this week!”
David paces around the room some more and mutters to himself in an agitated
manner. David is talking so quickly that Victor cannot understand what David is
muttering to himself. Victor eventually receives the normal package of money from
David and leaves to deliver that money to Ivan.

On exiting David’s building 5 minutes later, and before Victor mounts his bike on the
footpath outside, Victor checks his mobile phone and sees a text message from
David that reads:
“Deliver me a freebie package this afternoon identical to the one
you just dropped off. I know from other clients of Ivan’s that they
are expecting deliveries today so I know you have more on you
right now! If I don’t get a second envelope from you today,
heaven help you after Ivan hears from me. Remember that last
courier? I’ll tell Ivan you were off on a holiday to the Gold Coast
with his money. He is paranoid about his couriers pocketing his
money. Ivan is unpredictable! When you think he has let you off,
or that you have more time to come up with the money then
WHAM!!I I’m serious bro if you want to be” [the text message
stops at this point].
Victor, is very shaken by the text message from David. Victor has heard from other
couriers that Ivan has a bad temper and once hit a courier with his own bike so hard
that he broke the courier’s leg and bike with one strike. Victor waits 10 minutes to
see if he gets any more texts. He does not but he is so nervous that he decides to
immediately report this whole story to the police.
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David, in a record of interview conducted on Friday 3 March 2017 after a medical

examiner assesses that David is no longer affected by ice, says:
“I am so sorry if I threatened Victor via text. I cannot remember
doing that. Ice messes with my memory. I do not think that I
called Ivan and told him that Victor had stolen Ivan’s cash and was
off to the Gold Coast. I have lost my phone otherwise I’d show
you to prove it. Anyway I never call or text Ivan directly. To send
any message to Ivan, I would have just chatted to my mate Peter
at work who got me into all this. Can I really be held liable for the
text message threat when I was clearly affected by drugs at that
time? Just ask Victor what state I was in when he made the
delivery to my office! I had been on ice for 4 days straight before
that delivery.”
The police tell David they will issue a Court Attendance Notice charging him with
common assault.

On Wednesday 8 March 2017, when Victor is at home he receives a text from David
which says: “You shouldn’t have done that…You are going to get it now. I’m outside
now”. Victor barricades himself inside the house. David does not appear and the
evening proceeds without incident.

Victor reports the text from David to the police who recommend that Victor
immediately change his routine and stay at friends and take some time off work.
Victor does all this but simply cannot relax and does not feel safe. Victor cannot
sleep and starts to experience some severe anxiety including panic attacks where he
felt as though he was having a heart attack and that he could not breathe.

On 27 March 2017, after presenting at the Accident and Emergency Department of

his local hospital after one of the panic attacks, Victor tells the doctor (Dr Timen)
about his interactions with David. Victor is given some anti-anxiety medication and
some sleeping tablets by Dr Timen who is a general practitioner. Dr Timen says to
Victor: “Looks like you may end up needing both of these types of tablets for the
next little while. It seems like you are under a lot of pressure.” Victor asks Dr Timen:
“Does this mean you are diagnosing me as going mad?” Dr Timen says to Victor: “We
will have to wait and see but take the anxiety tablets from today as they usually take
two weeks to work anyway! The other tablets are to calm you down immediately so
you get some sleep.”

Advise the NSW Director of Public Prosecutions (DPP) on David’s liability for
common assault pursuant to s 61 of the Crimes Act 1900 (NSW) for the first text
message to Victor and for assault occasioning actual bodily harm pursuant to s 59
of the Crimes Act 1900 (NSW) for the second text message to Victor.
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TUTORIAL IN WEEK 8: SEXUAL ASSAULT

Vanessa lives in a two-storey townhouse in a NSW country town with her two young
children. Don has recently moved close to the same town and is Vanessa’s cousin.
One day, Don arrives at Vanessa’s house and she lets him in. The two sit on the
same lounge and talk for a while. Don tries to kiss Vanessa but she pushes him
away, tells him to “Stop it” and then says: ‘I think it’s time you went home now.’
Vanessa is upset by this incident but feels that she cannot tell any of her family
about this.

Two weeks later, Vanessa is drinking with some friends at a tavern when she notices
that Don is also there, talking to his aunt and uncle who are the owners of the
tavern. She avoids talking to Don that evening and leaves the tavern an hour later.
After stopping at another hotel and visiting her boyfriend who works there, she
arrives home at about 10pm. She checks that the doors and windows are locked,
takes off her clothes and goes to bed. As usual, she sleeps naked.

Sometime later, Vanessa wakes up completely to find Don on top of her. He is naked
and has already penetrated her. She remembers that in her drowsy state just before
waking up completely, she thinks that this man is her boyfriend who has a key to the
house has come to visit after finishing his shift at the hotel. She remembers saying:
‘the kids are staying with Mum.’ However, Vanessa only realises that this man is Don
some time later when she reaches up and feels his bald head. At that time, she
pushes Don off and says: ‘No, stop.’ Don then gets up and leaves.

The next day, Vanessa tells her mother about the incident, saying: ‘I had sex with
Don. I didn’t know it was him. I thought I was dreaming about another friend of
mine. When I touched his bald head I realised it was Don and pushed him off. I’m
sick about it. You can’t tell his family.’

Don’s version of the events is that Vanessa told him on several occasions that he
could come and stay at her house if he needed somewhere to sleep rather than drive
home drunk to his own house. She told him where a spare front door key was
hidden. Don said that he arrived at night and let himself in. He called out Vanessa’s
name but she did not reply. He went upstairs and found her asleep in bed. Don says
that she woke up and said that the children were staying with her mother. He
believed this to be an invitation to have sex, so took off his clothes, lay down beside
her, and started to have sex with Vanessa. But then, all of a sudden, Vanessa pushed
him off and told him to stop and to leave, so he did.

Advise the NSW Director of Public Prosecutions (DPP) on Don’s liability for sexual
assault.
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TUTORIAL IN WEEK 9: COMPLICITY

Wes, a Queanbeyan resident, has been charged under the following provision of the
Postal Offences Act 2018 (NSW):

S 93 Leaving or sending an article with intent to cause alarm

(1) A person:

(a) who leaves in any place, or sends by any means, a substance or article, and

(b) who intends to induce a false belief that the substances or article is likely to be a
danger to the safety of a person or of property, or both,

is guilty of an offence.

Maximum penalty: Imprisonment for 7 years.

(2) for the purposes of this section, article means any letter, parcel or box.

(3) for the purposes of this section, a false belief that a substance or article is likely to be a
danger includes a false belief that the substance or article is likely to explode, ignite, or
contain, consist of or discharge a dangerous matter.

The facts leading to the charge were as follows. Some months ago, Wes and a friend,
Zack, were discussing recent criminal proceedings involving Australians charged with
drug offences overseas, and both expressed the view that Australian police should
not cooperate with overseas law enforcement authorities in such cases. Both Wes
and Zack are regular cannabis users, and were sharing a joint on this occasion at
Wes’s flat. Wes said: “Wouldn’t it be a riot to send them some of this shit and see
their reaction?” They both laughed. Together, they made up a package containing a
very small amount of cannabis together with some shredded paper and plain flour.
On the front of the package Wes wrote in bold letters: “TO THE COPS – WATCH OUT
– POWERFUL STUFF INSIDE”. Wes said to Zack: “I have had a brain wave. Let’s add
some plain flour so it looks like there is some anthrax.” Wes opened the package and
added in a small amount of plain flour. Zack said to Wes: “Better not go too far. They
will probably think it’s a bomb or something. I’m going home – you do what you
like.” Wes laughed and replied: “Even better – they deserve a good scare.” Later that
day Wes left the package on the front steps of the Queanbeyan Police Station. He
did not realise that some of the shredded paper were old bank statements with his
name and address on them. Wes was arrested and charged under s 93 of the Postal
Offences Act 2018 (NSW) the next day.

Advise the NSW Director of Public Prosecutions (DPP) on:

(a) Wes liability pursuant to the charge under s 93, and

(b) whether Zack is also liable for the s 93 offence.

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TUTORIAL IN WEEK 10: EXAM PREPARATION

This tutorial will be devoted to exam preparation. Arrangements and any required
materials will be advised in the lectures.
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TUTORIAL IN WEEK 11: DEFENCES

After a long day on the tools, working as an apprentice carpenter, 19 year-old Donny
heads out for a night with his football mates at the Queanbeyan RSL Club, NSW. It is
Friday 14 October 2016 and the football season has finished. Donny arrives at 10 pm.
Thinking he will be restrained with his drinking, Donny orders a low alcohol beer and
joins in conversation. There are lots of patrons at the bar and the dance floor is
starting to get crowded. Pretty soon, Donny’s friends start to buy rounds of drinks.
They are all drinking full strength beer. Donny asks for low alcohol beer but by the
time the trays are brought back to the table all of the beers are mixed up. Hoping
for the best, Donny keeps up with his mates. After about six or seven beers, Donny is
starting to feel light-headed. He recalls that he has not eaten that night and resolves
to move on to water and then go for a dance to clear his mind. The dance floor is
crowded.

After dancing to a couple of songs, Donny loses track of his mates. None of them like
to dance. Suddenly, Donny sees Geoff amidst those on the dance floor. Geoff is a
large, heavily-muscled man a few years older than Donny. He plays for an opposing
football team and has a reputation for punching players when the umpire is not
watching. One of Donny’s teammates was hospitalised by Geoff on the last occasion
they played. Donny put in an official complaint and Geoff now holds this against him.
Donny sees Geoff glaring at him across the dance floor. Donny thinks Geoff mouths
the words: ‘you are going to get it’. Geoff, in fact, was singing along to the lyrics of
the music and did not mouth any words to Donny.

Though he plays football, Donny does not like physical contact and aggression. He is
small and fast and always tries to remain out of trouble. The thought of conflict with
Geoff scares him, so he leaves the dance floor and the RSL Club and goes in search of
his friends along the main street of Queanbeyan. It is just before midnight. Donny is
feeling jumpy and worried. He is unsteady on his feet and he continues to look
behind him and studies people’s faces in case one of them is Geoff. He has a strong
feeling that Geoff is following him. Not seeing his friends nearby, Donny continues to
walk along the main street in the direction of his home. He quickly finds himself
away from the crowd. There are very few passing cars.

Nathan, one of Donny’s friends, sees Donny walking alone along the main street.
Nathan is with a friend from out of town, Vince, whom he is trying to impress. It is
dark between streetlights and Nathan decides he will sneak up behind Donny and
scare him. Nathan and Vince approach to within one metre of Donny and then
Nathan yells ‘BOO’.

Donny reacts instantly, turning abruptly and swinging his right fist in a hooking
motion. His fist strikes Vince in the jaw. With a yell of pain and terror, Vince recoils
and then runs, screaming hysterically, across the road and into the path of an
oncoming truck, which is travelling 10 km per hour above the marked 60 km per
hour speed limit. The driver of the truck is making a late night delivery, having driven
 16

straight through from Melbourne without a break for 7.5 hours. The truck strikes
Vince and he is killed instantly.

Donny is arrested by police. Distraught, he agrees to participate in an electronically-

recorded interview with police. In that interview he says:

‘I thought it was Geoff. I thought he had come to get me… I never meant to
hurt that guy Vince. It was a rough night with all that drinking on an empty
stomach then being scared by that freak Geoff. I suppose I was really nervous
and I just reacted quickly. Plenty of it was just a blur. I didn't even know
Vince. What happened is messed up. How could I know that he would run
onto the road like that?’

Advise the NSW Director of Public Prosecutions (DPP) on the prospects of

successfully prosecuting Donny for unlawful and dangerous act manslaughter on
the facts below. Do not discuss murder. In your advice, ensure that you consider
any available defences.
 17

TUTORIAL IN WEEK 12: PROPERTY OFFENCES

Ashlee is the owner/manager of a food outlet, called “Hot Dogs Are Us”, at Bruce
Stadium in the ACT. There is a big Canberra Raiders game coming up and she needs
to order food to sell to patrons at the game. She is looking for a cheaper deal than
she gets from her normal supplier and has found a website for a firm in Yass, NSW,
“Porkinator Meats”, which sells the same products as her normal supplier for a
cheaper price. They also deliver the products free of charge. The only difference is
that they require payment on receipt of order rather than by invoice after the order
has been delivered.

Ashlee goes onto the Porkinator Meats website and makes her normal pre-game
order: 1000 “Cheapaschips” hot dog sausages and 200 “Dearashell” hot dog
sausages which are made up of exotic meats and which are twice the price of the
Cheapaschips sausages. Ashlee uses the Dearashell sausages to make her upmarket
“Hot Diggedy Dog” for which she charges patrons much more than the price of her
“Hot Enough Dog” which is made with the Cheapaschips sausages. She makes full
payment for her sausage order online.

The Porkinator Meats refrigerated delivery truck arrives at Bruce Stadium the
afternoon before the big game and Ashlee is there to supervise the unloading of the
boxes of meat and their storage in the commercial cold room at the rear of her
kitchen. Each plain brown box contains 100 sausages and the side of each box is
clearly stamped with either Dearashell or Cheapaschips. The stamp has clearly been
applied manually. At the end of the unloading process, the Porkinator Meats delivery
man stands next to Ashlee in the fridge and points to each box saying. “There they
are, then, two boxes of Dearashell sausages and 10 boxes of Cheapaschips ones. No
need to sign anything. Have a good day!” Ashlee agrees that the delivery is correct,
closes the cool room and goes home.

On the day of the Canberra Raiders match, Ashlee opens the boxes and finds that the
contents of the boxes are precisely the opposite type of sausage than the manually
applied stamp that is on the side of the box. So she has 1000 Dearashell sausages
and 200 Cheapaschips sausages. She decides not to ring Porkinator Meats to sort
out the mix-up but rather to use the sausages she has. She works out that if she
discounts her “Hot Diggedy Dog” slightly from the normal price, to encourage sales,
she can make an extra profit of $1900 if she sells all her hotdogs.

She removes all of the sausages from their boxes before her staff come in to start
work and throws the boxes away in a location away from her food outlet. When
asked by her staff why she is discounting the gourmet dogs, she says: “I just thought
I’d try something new this week, so I changed the order. Let’s see if we can sell
more gourmet dogs if we reduce them a little.”
 18

At the end of the game, Ashlee has sold all her hotdogs. Several weeks later, after
investigating a shortfall in their profits from the weekend in question, Porkinator
Meats isolate the problem and police investigate Ashlee. She tells them: “I didn’t do
anything wrong. It was their error and I had to sell something at the match or I
would have gone bust. I paid upfront and they stuffed up, not me. That’s business,
isn’t it?”

Discuss Ashlee’s liability for minor theft under s 321 of the Criminal Code 2002
(ACT).

____________________________________________________________________

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