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Case 1: Fraud and Assault by a Company Employee

1. You are working as a summer clerk with the NSW police prosecutors and have been asked to advise whether Oscar ought to be charged with any criminal offences and whether any defences may be raised.

Clive is the owner of Clive's Cleaning Company which employs over two hundred cleaners. Oscar is responsible for ordering the chemicals and collecting them from Spanos Sparkling Supplies in a Clive's Cleaning Company van. Oscar negotiated a very good price for the chemicals from Spanos Sparkling Supplies, based on the high volume of chemicals purchased.

Last week when Clive was reviewing the companys accounts, he noticed that the amount of chemicals purchased in the previous year had increased by 30% even though the number of cleaning jobs had slightly decreased. That day, when Oscar arrived in the van with the months chemicals he had collected from Spanos Sparkling Supplies, Clive watched Oscar unload the chemicals, and close the door of the van. Clive noticed that there were still several boxes of chemicals in the van. Clive called out to Oscar to come and talk to him, but Oscar said he had to pick up his son from school, and said he would talk to Clive the next day.

After Oscar had left, Clive checked the boxes which Oscar had unpacked against the order form, and noticed that 30% of the order was missing.

The next day when Clive arrived, Oscar was decanting some of the chemicals into smaller containers for the cleaners to use. Clive asked Oscar where the missing boxes from the previous day were. Oscar told Clive that he had ordered some extra chemicals, but that he always paid the company back for the extra chemicals ordered in the companys name. Clive walked towards Oscar with a clenched fist and said I know you've been ripping the company off. You're going to pay for this Oscar poured some of the chemical on Clive's hand, causing a chemical burn which resulted in severe blisters which lasted for three weeks. Clive called the police. That afternoon, the police found the missing chemicals at Oscar's house.

When the matter was investigated, it was discovered that during the last year, Oscar had regularly transferred money into Clive's Cleaning Company account for the additional 30% of the chemicals that he had ordered.

When interviewed by the police, Oscar said he sold the chemicals on ebay for a small profit. Oscar also said he didn’t think there was anything wrong with what he had done, because even though Clive's Cleaning Company initially paid for the chemicals, Oscar always paid Clive's Cleaning Company back within two months.

When Oscar was interviewed by the police about the injury to Clive's hand, he said he thought Clive was going to punch him, and in the heat of the moment, he thought the only way he could stop him was to splash the chemical on Clive's hand, and that he thought it would only cause a temporary burning sensation, not severe blistering.

Case 2: Sexual Assault by an Ex-Partner

2. You are acting as a summer clerk at the Director of Public Prosecutions and have been asked to advise whether Dauid ought to be charged with any offences committed against Eamon or Rafi and whether any defences may be raised.

Dauid and Eamon were in a sexual relationship for two years, but Eamon ended the relationship a year ago. For six months after the end of the relationship, they were still good friends, and sometimes engaged in consensual sexual intercourse. Six months ago, Eamon told Dauid he was going on a date with Rafi the following week. Dauid asked Eamon if they could go on one last date together. They went to a restaurant where they consumed a bottle of wine each. They went back to Dauid's place. Dauid said to Eamon, let's do it one last time. They both started kissing and undressed each other, and had sexual intercourse. At first Eamon willingly participated, but after a few minutes, he tried to pulled away. Dauid was holding Eamon so tightly, Eamon was unable to pull away. Eamon punched Dauid, but Dauid did not let go of Eamon and continued to have sexual intercourse with him. After five minutes, Dauid let go of Eamon. Eamon dressed quickly and left the flat. Later he texted Dauid and said Our friendship is over. You violated me. You knew I didn't want any more when I was punching you, but you just kept on going. Dauid texted back I would never violate you. I love you. You always punch me when we do it together. I didn't know you didn't want any more. I'm sorry. Dauid texted Eamon several times trying to arrange a time to meet up with him. After a couple of weeks, Eamon texted Dauid and said that he had started going out with Rafi, and that he wanted no more contact with Dauid. Dauid fell into a depression, and is seeing a counsellor to try to help him come to terms with the end of his relationship with Eamon.

Last week, Rafi saw the text message exchange between Eamon and Dauid, and was furious with Dauid for what he had done to Eamon. Rafi went to Dauid's place to confront him. Dauid lives on the fifth floor of a block of units. When Rafi arrived, Dauid was intoxicated after drinking six bottles of beer in the hour before. Rafi said to Dauid Don't you ever touch my boyfriend again. Dauid pushed Rafi into the bathroom and locked the door and left the unit to go and see Eamon. Rafi banged on the bathroom door but couldn't get it to open. He texted Eamon and said Dauid has locked me in his bathroom. I heard the front door bang, so I think he has gone out. I'm going to climb out the window and walk along the window sill and get onto the neighbour's balcony so I can get out of here. Another neighbour in a block of units on the other side of the street saw Rafi climb out the window, walk along the window sill and fall onto the pavement. Rafi died in hospital later than evening as a result of hitting his head on the pavement.

When Dauid was interviewed by police, he said that when Rafi arrived at his house he was feeling very depressed and a bit drunk, and on impulse he locked Rafi in the bathroom to detain him while he went to see Eamon to try to win him back. Dauid admitted he had thought that Rafi might climb out the window, but didn't think Rafi would be stupid enough to fall off the window sill to his death.

3. The court process in the Local Court in NSW for dealing with applications for apprehended domestic violence orders does not adequately protect victims of domestic violence from further violence. Discuss.

4. The gross overrepresentation of Indigenous Australians in the statistics for offensive language and offensive behaviour is a consequence of the practices and legacies of colonisation. Discuss.

Case 1: Fraud and Assault by a Company Employee

1. In this case the question is to determine whether Oscar has committed any criminal offence against Clive or not.

Oscar had been found to misappropriate the funds of the company in order to make a person gain. He had been using the name of the company to buy products at a discount and sell the product at a higher price online. This is not right and accounts to fraud on the part of Oscar.

An offence of assaults occurs when a person moves, strikes or touches or applies force of any kind to another person directly or indirectly without consent and causes mental or bodily injury to such person. In the following circumstances Oscar has harmed Clive. The actions of Oscar in this case can also be considered to be causing serious injury intentionally in circumstances of gross violence. The actions of Oscar can also be taken as common assault under the provisions of common law. The actions of Oscar in relation to the misappropriation of the company’s funds may account to the offences of Dishonestly Obtain a Financial Advantage (Centrelink Fraud).

In order to establish a criminal act Mens rea and Actus reus has to be established. Mens rea indicate intention to committee the act and Actus reus indicate the actual act leading to the criminal activity. Only if both the elements are satisfied can a criminal activity come into existence. It has been provided by Oscar that he had the intention to hurt Clive but not as such as the actual harm caused and he satisfied Actus Reus by through the chemical on his hand. Thus Oscar has committed a crime.

There are a few defenses which can be claimed by the offender against the crimes discussed above. In case of assault and bodily injury crime the defendant may use the defense of self defense. According to the concept of self defense an act done in order to protect himself or his property against any harm threatened to be caused by another person is not a crime.

This in this case Clive approached Oscar with a clenched fist and the chemical poured by Oscar on Clive’s hands was a result of the threat Clive posed to Oscar. Thus this situation can be considered to make the defense of self protection applicable.

2. In this particular case it has been provided that Eamon and Dauid were in a relationship. The relationship had ended. They engaged in sexual activity with each other after obtaining each other consent. Initially Eamon had also provided consent for the sex but latter he withdrew his consent and asked Dauid to stop. Eamon was held so tightly by Dauid that he was not able to pull away. He also attempmted to stop the intercourse by punching Dauid but his attempts failed. After the intercourse was over Dauid let Eamon go. The issue which may arise in this situation is related to the consent of Eamon in relation to the sexual activity. If a sexual activity takes place without the consent of one of the individuals it accounts to sexual assault.  Sexual assault is a situation when a person engages in unwanted sexual activities with another by asserting control and power over another person. The specific type of sexual assault which can be identified in the given scenario is Rape.

Case 2: Sexual Assault by an Ex-Partner

However as Eamon had given consent earlier and normally punched Dauid when they engaged in sexual activities before this event it can be claimed as a defense by Dauid. When the offender believes that the other person has provided consent to the act than such belief can be used as a defense against the charge. Thus this defense may be used by Dauid in relation to the given circumstances as she can prove that she reasonably believed that Eamon provided consent.

When Rafi got to know about the act she went to Dauid to threaten her to stay away from Eamon. Dauid had pushed her in the bathroom and locked the door. Rafi attempted to get out of the bathroom through the window but unfortunately feel to the ground and died. Rafi made this attempt because she knew that Dauid had left and she might be stuck in the bathroom. It was admitted by dauid that she had knowledge that Rafi may attempt to escape through the window but she did not believe she would try such stupid stunts.

This kind of wrongful confinement of a person accounts to an offence of kidnapping in Australia. Any damage caused to the confined person is also a liability of the kidnaper. The kidnaper may be charged for causing death in case the death is caused due to the process of kidnapping. Thus Dauid may be charged for Kidnapping.

However if a person is drunk or unconscious about his or her action he or she may use the situation as a defense against the charge of kidnapping. In the given circumstances Dauid was intoxicated and was under stress so she might use the situation as a defense against the offence of kidnapping and death in relation to Rafi.

3. The court passes an apprehended domestic violence order (ADVO) so that the affected people can be protected. The order prescribes limitations which are binding on the defendant. The provisions of the order have to be obeyed by the defendants. The decision if the magistrate in relation to this order is based on the analysis of the applicants fear or the fear of the police in relation to the safety of the applicant.  Whether the order is reasonable or not is analyzed by the magistrates based on balance of probabilities. The order can even be made b y the court if the applicant is not present in case the court has no doubts that the applicant is a victim of physical abuse.

However the usefulness of this order is subjected to a lot of criticism for its uselessness. Recently there have been three domestic violence deaths in Australia and two of the victim’s had an ADVO against the offender. It has been provided by Sydney WDVCAS that more than half of the orders are breached by the defendants due to the lenient approach of the police and the courts. The advent of new technology moreover aids the defendants to breach the order and make it very difficult to prove the breach. 

4. According to the NSW Bureau of Crime Statistics and research the criminal rates in NSW are either declining or stable. However the number of offensive languages cases has showed an increase of 42% from the year 2012-2016. Most of the cases recorded by the police are against the individuals of the aboriginal community. During the period of colonization there was no proper law against offensive language and behavior and the aboriginal people have been accustomed to it. The offensive behavior and language has become a part of their culture. There are a few actions which do not account to offensive behavior as per the aboriginal people but may be regarded as offensive in NSW. Thus it can be stated that one of the main cause of rising offensive language and behavior case in Australia in relation to aboriginal individuals is because of colonization. The difference in opinion of the indigenous community with the modern Australian as a result of colonization is a reason for the increase in rates of these offences. Further lack of education and reliance on principles provided by colonization add to the increase in the rate of these offences.

References

Card, Richard. Card, Cross, and Jones-Criminal Law. Oxford University Press, USA, 2014.

Gans, Jeremy. Modern criminal law of Australia. Cambridge University Press, 2016.

Herring, Jonathan. Criminal law: text, cases, and materials. Text, Cases and Materials, 2014.

Khoury, B. S., and J. N. Khoury. "Consent: a practical guide." Australian dental journal 60.2 (2015): 138-142.

Mann, Rosemary, et al. "Norma’s project. A research study into the sexual assault of older women in Australia." (2014).

Owen, Santi, and Kerry Carrington. "Domestic violence (DV) service provision and the architecture of rural life: an Australian case study." Journal of rural studies 39 (2015): 229-238.

Roberts, Donna, Peter Chamberlain, and Paul Delfabbro. "Women's experiences of the processes associated with the family court of Australia in the context of domestic violence: A thematic analysis." Psychiatry, Psychology and Law 22.4 (2015): 599-615.

Smith, Linda Tuhiwai. Decolonizing methodologies: Research and indigenous peoples. Zed Books Ltd., 2013.

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