Criminal Law

CR2
Contents as per syllabus
• (c) assault; • (b) robbery;
• (d) wounding; • (c) burglary;
• (ii) Sexual Offences: • (d) criminal damage or malicious
damage;
• (a) rape;
• (iv) Inchoate Offences:
• (b) incest;
• (a) conspiracy;
• (iii) Offences against Property:
• (b) attempt;
• (a) theft/ larceny;
• (c) incitement.
Assault & Wounding
Assault (or Assault & Battery aka Common Assault)
• Assault - intentionally or recklessly cause another to apprehend immediate and
unlawful personal violence. (physical contact)
• Actus reus = creation of an expectation of immediate unlawful violence in the
mind of the victim.
• Ergo, Assault = shaking a fist or brandishing a knife at someone. Stephens v
Myers, Hull v Ellis
• Mens rea = intentionally or recklessly engaging in act.(Subjective) R v
Cunningham
• R v Venna [1975], Police sought to arrest him, the appellant kicked out, fracturing
hand of officer.
• The appellant was convicted for assault and appealed. Appeal was dismissed, was
reckless, as defined in Cunningham.
Assault (or Assault & Battery aka Common Assault)

• The view among some scholars = words can constitute an assault,

• Courts are reluctant to agree,
• the traditional view = must be some accompanying menacing act,
• where the appellant entered a bank and, having a coat draped over his arm, said to
the teller, "I've got a gun, give me all your money or I'll shoot".
• R v Meade & Belt (no-singing or words)vs R v Ireland 1998 (yes- phone calls)
Battery

• Battery- the application of physical contact on someone.

• Actus Reus- the direct application of such force to the victim.
• Mens rea-The intentional or reckless use of force against another.
• R v Spratt [1991]- appeal against assault occasioning actual bodily harm successful,
would be guilty only if he foresaw the result. He didn’t.
• Intoxication is no defence to a charge of battery.
• No need to show injury. Merely touching would be enough, if done without consent.
Wounding with intent
s20 s22 OAPA
s43
Sexual Offences
Rape & Incest
Rape
• Under Section 3 of the Sexual Offences Act Jamaica 2009
• A man commits the offence of rape if he has sexual intercourse with a woman
• (a) without the woman's consent
• (b) knowing that the woman does not consent to sexual intercourse or recklessly not
caring whether the woman consents or not.
• Consent is not equal to threat, nor false pretence
• Actus Reus of Rape- Penetration (however slight)
• Mens Rea- 1. Without her consent 2. Knowing she didn’t consent or Reckless as to
whether consent was given
Rape
• Under Section 6 of the Sexual Offences Act the term of imprisonment is from 15
years to life imprisonment
• Grievous Sexual Assault -S4 of the Offences Against the Persons Act this includes
penetration of the vagina or anus with something other than the penis and also
includes oral sex without the consent of the victim.
• Penalty for Grievous Sexual Assault- tried at Parish Ct-up to 3 years
• Penalty for Grievous Sexual Assault- tried at Circuit Ct-15years - life
• Actus Reus for Marital Rape the same as rape
Incest
• Section 7 of the Sexual Offences Act
• committed by a male person who willingly has sex with another person knowing that
person is his
– grandmother, mother, sister, daughter, aunt, niece or granddaughter.

• Or a female who willingly has sex with the male alternates of above (e.g.,son, father,
brother, grandfather, grandson, nephew, uncle)
• Half Blood or Whole blood relations liable
• Actus reus- Knowingly having sex with, mens rea- knowledge of relation
• Penalty is life imprisonment. Attempt penalty is up to 10 years.
Offences Against Property
larceny; robbery; burglary;
criminal damage / malicious damage
Offences against Property- Larceny

A Person steals who,

• without the consent of the owner,
• fraudulently and without a claim of right made in good faith,
• takes and carries away anything capable of being stolen
• with intent, at the time of such taking, permanently to deprive the owner thereof

• Larceny Act Jamaica s3

Offences against Property- Larceny
• Takes= tricks, intimidates, cons, finds
• Carries away =removal from the place which it occupies, completely detached
• Owner=any part owner/ person having possession in anything capable of being
stolen

• Actus Reus
– 1. Fraudulently Taking
– 2. Permanently Depriving the owner
– 3. Anything Capable of being stolen (Property)
– 4. Conversion (in the case of a baillee)
• Mens Rea
– 1. Intention to Permanently Deprive the owner of the thing stolen
– 2. Dishonesty
Offences against Property- Larceny
• R v Taylor – A put his hand into T’s pocket, drew purse to the edge. The purse
lodged in T’s belt so T recovered it. Held, there was sufficient action amounting to
larceny. His appeal was dismissed and his conviction for Larceny was upheld.
(Fraudulent, carry away)
• R v Hall -A, B’s servant took certain items belonging to B and brought them to B for
sale, claiming that he got them from C. A was found guilty of larceny. A intended to
permanently deprive B of the property. (intent to permanently deprive) contrast
with:
• R v Ensom- A took a handbag, searched it and found nothing of interest in it and left
it with its contents intact. The owner reclaimed it. He was convicted of theft and
appealed. It was held that there was no evidence that the accused intended to
deprive the owner of the contents of the bag.
Offences against Property- Robbery
• ROBBERY –s37 Larceny Act- being armed with any offensive weapon or
instrument, or being together with one other person or more, robs, or assaults with
intent to rob, any person; uses personal violence
• Actus Reus
• Someone or a group uses an offensive weapon to steal.
• Assaults their victim before stealing from them.
• Uses personal violence before or after stealing from the victim
• Mens rea
• Same as larceny (Intention to permanently deprive the owner of property)
• Penalty = Up to 21 years, hard labour
Offences against Property- Burglary
• BURGLARY - Section 39 of the Larceny Act
Every person who in the night-
• breaks & enters the dwelling-house of another w/ intent to commit any felony
OR
• breaks out of the dwelling-house of another, & entered with intent to commit any
felony or actually did commit one
• If the felony is rape, shall be liable to imprisonment for life;
• Any other case shall be liable up to 21 years
Offences against Property- Burglary
• Actus Reus
• Breaking and entering of the dwelling house of another at night;
• Breaking out after having entered a dwelling house at night;

• Mens Rea
• Intention to commit a felony (example of a felony is rape or larceny)
• R v Collins, the accused who was drunk climbed up a ladder and entered the house
of a girl he knew, he stripped and the victim believing him to her boyfriend
welcomed him to have intercourse. The accused was charged with burglary and rape
but was acquitted because CA held that the accused honestly believed that he was
invited to the victims room to have intercourse.
• In R v Bailey (1818) It was held that insertion of any part of the body in a building
is sufficient for burglary to occur.
Offences against Property- Malicious Injury to Prop
• Malicious Injury to Property Act s43
• Whosoever shall wilfully or maliciously commit any damage, injury, or spoil to or
upon any real or personal property whatsoever, either of a public or private nature….
• shall, be liable to imprisonment with or without hard labour, for a term not
exceeding one year
• or else shall forfeit and pay such sum of money, not exceeding twenty thousand
dollars,
• May include trees, saplings, shrubs and plants – s44
Inchoate Offenses
(Conspiracy, incitement, attempt)
Inchoate Offenses

Inchoate offences are offences that are usually committed in preparation of a crime or
offences that are incomplete.

These offences consist of:

• Conspiracy
• Attempt
• Incitement
Conspiracy
Mulcahy v R (1868) by Willes J as:
• the agreement between two or more persons to do an unlawful act, or to do a
lawful act for unlawful means.

• Actus Reus of Conspiracy - agreement

• 1. Agreement of two or more to carry into effect an unlawful act
• 2. Agreement of two or more persons to carry into a lawful act for unlawful means.

• Mens Rea of Conspiracy -intention

• 1. Intend to agree and
• 2. Intend that the object of the agreement be achieved
Conspiracy
R v James Smith (1990) 27 J.L.R. 469 (C.A)
• The appellant was a former Cabinet Minister who had portfolio responsibility for
the Ministry of Labour. The Farm Work programme fell under his portfolio.
• He was convicted on the case made by the prosecution in the RM Court for
Kingston, that, inter alia:
• (1) He induced his Permanent Secretary to embezzle money in Farm Work
programme from funds which came from the US & Canada for the benefit of farm-
workers in a compulsory saving scheme.
• (2) The monies originated abroad but were embezzled in Jamaica, where both men
resided
• Revisit Shaw & Knuller
Attempt
• ATTEMPTS
• Actus Reus
• 1. Any act that is more than preparatory to the commission of an offence. An act
that if not interrupted would have lead to the full offence being committed
• Mens Rea
• 2. Intention to commit the intended offence e.g(murder)

• So if someone intends to commit murder and the victim is severely injured and lives
then it is attempted murder.
Attempt
• ATTEMPTS
• Actus Reus
• 1. Any act that is more than preparatory to the commission of an offence. An act
that if not interrupted would have lead to the full offence being committed
• Mens Rea
• 2. Intention to commit the intended offence e.g(murder)

• So if someone intends to commit murder and the victim is severely injured and lives
then it is attempted murder.
Attempt
• R v White [1910]
• The appellant's mother was found dead sitting on a sofa. Beside her was a glass with
a drink in which was found a poison, two grains of potassium cyanide. She died from
heart failure and not from the poison, no evidence being revealed that she had
imbibed any of the drink. It was also found that even if she had taken that quantity of
poison seen in the glass, it would not have been sufficient to kill her.
• The appellant was indicted for murder but was convicted of attempted murder.
Incitement
• Incitement is a common law offence, a misdemeanour.
• If I tell you that I wish you to commit a crime, it does not matter if you decline, in
order to determine my criminal liability.
• I am liable for incitement, even though you, by declining, would not be guilty of any
offence.
• You and I would be guilty if I incited you to incite C to commit murder and you
complied, whether or not C himself complied.
Incitement
• The Actus Reus of Incitement
• The actus reus of incitement is the act of persuading, encouraging or threatening
another to commit a crime. P.E.T.
• Invicta Plastics Ltd. v Clare -manufactured a device called “Radatec” and
advertised it for sale. It was not illegal to own the device, but it was illegal to use it,
its purpose being for drivers to detect police radar. It was held that the advertisement
incited readers to commit an offence.
• The Mens Rea of Incitement
• The incitor must intend that as a result of his persuasion, the incitee will bring
about the crime.