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Criminal law Case Study on Defense Memorandum of Advice

Question

Task:
Scenario: Kreep is an expert in karate. He has a black belt denoting his status as a ‘Karate master’. Kreep trains regularly with his students Hallie (16) and Jimmy (18) in the training room at the back of his house known as the ‘Kobra Kai Dojo’. They have brown belts (a lower rank) and both regarded Kreep as Sensei (i.e. teacher or mentor) because he was 20 years older than them and had studied martial arts while travelling overseas.
Kreep had a crush on Hallie. She was oblivious to his interest. She regarded him as a friend and mentor and nothing else.
At a training session with Jimmy and Hallie earlier this year Kreep, hoping to demonstrate his physical prowess to Hallie, commenced the session by saying:
I am going to show you this special move which is normally reserved for those who have black belts. Are you up for it, Jimmy?
Jimmy said:
Sure man! Provided you won’t do me any serious damage. My lower back is sore and I've got to be fit for tonight.
Jimmy winked at Hallie as he said that. Kreep, who noticed everything, got more irate when he saw that wink and Hallie's smile in return. Kreep then said:
Look, if you are unsure, I'll demonstrate on Hallie and you can see how gentle it is.
Kreep then demonstrated the move on Hallie making sure it was very gentle. Jimmy then said
Look man, I may have a sore back, but that doesn’t mean that I’m a girl. Go on, just fight me like a man.
Kreep then took hold of Jimmy and threw him with much more force than he had for Hallie. It was not an unusual amount of force for the throw but it was normally reserved for those who had a black belt and Jimmy had not learnt how to hold himself to cushion the fall. He also had been having problems with his back.
Jimmy fell to the floor and remained on it groaning. The fall had badly aggravated his back problem. Kreep, noticing Jimmy’s pain snickers to himself whilst Hallie, upset that Jimmy had been hurt, then called the ambulance.
The paramedics arrived and carried Jimmy outside for examination and treatment. Kreep then said:
Don’t worry Hallie. I’m sure he’ll be fine. Meanwhile, you seem very tense. I think you can benefit spiritually from a special ‘Kobra Kai’ massage which my Sensei first taught me long ago to release the spiritual energies bottled up in your chakra (a spiritual energy centre in the body). Only problem is that it’s a full body massage and I may have to massage you in the most unexpected places so you will need to undress completely for this massage - is that all ok?
Hallie, eager for spiritual enlightenment, responds
Oh yes sure – I’m a very spiritual person and I’m open to anything that will enhance my spiritual well-being so please proceed with the massage because in life, my motto is ‘anything goes’.
Although Kreep initially begins to massage Hallie’s shoulders and back (while she is lying face down on the dojo mat) he then suddenly inserts his thumb into Hallie’s anus and says
Now that’s what we call a ‘thumbs up’ from the Kobra here at the Kobra Kai dojo, it really helps release all the negative energy.
Hallie is initially too shocked to respond but, after noticing that Kreep is smiling to himself while he has his thumb inside her anus she then starts to cry and says,
The Police will lock you up for this abuse!
Concerned about the possibility of repercussions, Kreep immediately removes his thumb from Hallie’s anus and in a ham-fisted attempt to make amends for his conduct then says
Hey Hallie, I thought you indicated that ‘anything goes’? Just so you know there’s no hard feelings, here’s two hundred dollars so that you can go to the shops and buy yourself something nice from me.
 
Kreep, who has never been proficient in numeracy, then hands Hallie a wad of cash amounting to $2,000 from his wallet which Hallie, unaware of the mistake, places in her handbag.
Still feeling remorseful for his conduct, Kreep then also gives Hallie what h e believes is a cheap plastic ooshie (i.e. a figurine) of martial arts legend Tuck Borris from his collection of martial arts figurines as a token of his esteem for Hallie.
Hallie, still upset, then walks outside the house where she meets Jimmy, now recovering after receiving treatment from the paramedics. As Jimmy walks with Hallie to his car he notices a black Stetson hat (i.e. a cowboy style hat) with no name tag of any kind identifying the owner lying on the public footpath outside the Kobra Kai dojo and picks it up saying
Wow – this looks like a real black Stetson – a replica of the one that Tuck Borris, the famous martial artist, wore in his film ‘Stalker, American Ranger’. Well as I don’t have time to ask around to identify the owner, I’ll take it with me for now so that I can decide what to do with this later.
Jimmy then takes then hat with him when he drives Hallie home to his place to help her recover from her ordeal.
Leaving Hallie to relax in the lounge room, Jimmy heads into the bathroom to shower. While Jimmy is in the bathroom his identical twin brother Timmy, dressed only in his underwear (he did not realize that Hallie was visiting their house) enters the lounge room and notices Hallie sitting on the sofa.
Assuming Jimmy has returned from the bathroom, Hallie approaches him, smiles and being eager to engage in sexual intercourse then begins to remove her own clothes saying,
Now look, if you really want to help me recover this afternoon, then you know what to do.
Timmy, genuinely believing that Hallie had finally decided to dump Jimmy in favour of a relationship with him then simply responds
Well, it’s about time.
Timmy and Hallie then proceed to engage in sexual intercourse which Timmy films using his phone camera.
 
As Hallie then prepares to leave the house she then encounters Jimmy emerging from the bathroom and is horrified to learn that she in fact engaged in sexual intercourse with Timmy rather than Jimmy. Hallie then angrily confronts Timmy over his failure to identify himself but Timmy responds
But I really thought you wanted me rather than Jimmy. Besides, I filmed us engaging in sexual intercourse, so unless you’re happy for me to share Australia’s dirtiest home video all over the internet, you’re going to engage in oral sex with me whenever I want it– starting right now.
Petrified by the prospect that Timmy could destroy her reputation (and her relationship with Jimmy) by releasing footage of her engaging in sexual intercourse with him, Hallie then performs oral sex on Timmy in his bedroom and then leaves.
Upon returning home that night Hallie belatedly realizes that Kreep has in fact given her
$2000 in cash but after considering the circumstances she decides to keep the cash as compensation for her suffering.
Hallie then receives a call from Kreep’s number and answers the phone only to overhear Kreep - unaware that he had speed dialled Hallie’s phone number by not locking his mobile phone screen - mumbling to himself
Damn, I can’t believe that I mistakenly gave Hallie the priceless limited edition solid gold plated ooshie of Tuck Borris (sculpted by Tuck himself) rather than the cheap ooshie I meant to give her.  That whore Hallie better return my Tuck Borris ooshie. If she’s  keeping it, then she had better let me get my money’s worth out of her one way or  another.
Hallie then calls the Police.
In the interim, that evening Jimmy realizes that the black Stetson hat he found earlier actually belongs to Kreep (Kreep has posted a request on social media seeking information regarding the whereabouts of his black Stetson hat) but decides to keep the hat as recompense for the discomfort caused by the injury Kreep inflicted upon him earlier that day.

QUESTION ( I . E . I N S T R U C T I O N S )

You are a junior lawyer in the NSW Office of the Director of Public Prosecutions. Prepare a Memorandum of Advice for the Director of Public Prosecutions (DPP) in which you:

  • Identify the various possible criminal charges which could be laid against any relevant parties and the various events in relation to which they are
  • Advise the DPP on the prospects of successfully prosecuting these criminal charges against any relevant parties. Consider both any relevant common law and any relevant statute law (including the Crimes Act 1900 (NSW) ) in your advice. Support your advice with relevant legal
  • Do NOT advise the DPP on criminal law outside the scope of this
  • Provide complete citations and a bibliography in accordance with the Australian Guide to Legal Citation (4th Ed) (AGLC 4).

Answer

Introduction
This criminal law case study relates to a discussion of criminal case and preparing a defense memorandum of advice highlighting the issues and relevant solutions. The study encrypt with highlighting of the issue, signifying rule that applies to find the right conclusion of the case.

The criminal law case study of Hallie who is suggestively a victim here is related to committing of sexual offences without her consent and knowledge.  The Australian government follows a substantive form of law in relation to Criminology. The issues of Hallie are she being instigated to get into a sexual activity which can also be defined as sexual assault and she was video graphed engaging into a sexual activity with her co-mate. A case against Kreep can be made under Section 61HE of Crimes Act, 1900 - Consent in relation to Sexual Offences and Section 61 KC of Crimes Act, 1900 - Sexual Touching. A suit may be instituted against Timmy under Section 91K of Crimes Act, 1900 for filming a person engaged in a private act and Section 61KC of Crimes Act, 1900 for Sexual Touching. Both the offenders can be penalized with punishment and be liable for fine. Identification of the various possible criminal charges against the alleged parties and various events in relation to them

Various issues
Kreep - Kreep is the mentor of Hallie and Jimmy in Karate. He teaches Karate in the backside of his house named ‘Kobra Kai Dojo’. Kreep claims himself to be a Black Belt in karate. Kreep has a crush over Hallie and this fact is known to both his students Jimmy and Hallie. During their training session in karate Kreep tried to show his prowess to impress Hallie. He instigated Jimmy to get into a high level karate activity and resulting to it he was injured. Jimmy was sent for medical attention and in between the incident with Hallie happened. Kreep then tried this act upon Hallie following to undress herself for a body massage in order to spread spiritual positivism. In the course of doing so Kreep had put his hand in her anus and tried to engage her in a sexual activity. Hallie being able to understand the wrong intention of Kreep screamed and objected in the activity. Kreep in order to manage the situation gave Hallie some money for the purpose of buying some stuff for herself which was wrongfully a precious and unique $2000 dollar note.

Timmy - Timmy is the identical twin brother of Jimmy who is a friend of Hallie from the karate class. Hallie always had a crush upon Jimmy and wanted to engage in sexual activity with her. Whilst in the due course Hallie gets into a misconception of understanding Timmy as Jimmy. Jimmy was in the washroom while Hallie got into sexual intercourse with Timmy by her own choice and instigation. Timmy without the knowledge of Hallie video recorded in his mobile phone the entire sexual activity and when Hallie finally saw Jimmy getting out of the bathroom objected and protested Timmy for not sharing his identity. Timmy had an idea that Hallie might have interest upon him over Jimmy and got into the activity but as soon as Hallie protested the act Timmy threatened her of sharing the video over social media. Timmy further demanded oral sex from Hallie any and everytime he needed in order to conceal the video from the social media.[1]

Criminal charges against Kreep – Rules within this criminal law case study
Kreep - Kreep can be charged under [2]Section 61HE of Crimes Act, 1900 - Consent in relation to sexual offences. The section states that consent in regards to mistaken belief and getting consent is a punishable offence. Here Hallie was mistaken with the fact that she was getting spiritual energy and consented to the fact but as soon as she understood the fact the spiritual energy process was a false way of Kreep for getting into a matter of sexual activity she objected to it and went away. A clear case of engaging into sexual activity by mistaken belief can be seen and hence a case can be constituted under the section. Section 61KC of Crimes Act, 1900 - Sexual touching is the other section which can be filed against Kreep. The section claims that if the offender sexually touches the victim he/she shall be liable for imprisonment for five years.[3]

Timmy - Timmy can be charged under Section 91K of Crimes Act, 1900 - Filming person engaged in private act.[4] The section claims that if a person is filmed during a course of private act without consent then he/she may be liable for punishment which may extend up to 5 years and with fine which may extend up to $11,000. For example, if a person hides video camera in his room for filming the sexual intercourse with his girlfriend without her consent then it will amount to an offence under Section 91K. Hallie also faced a problem of this kind and later on she was threatened for the video by Timmy. Hence Timmy can be held as an offender under this section and is liable to get penalized under this section. Section 61KC and Section 61HE of the Crimes Act, 1900 a suit can be instituted against Timmy for his acts of Sexual Offences and getting consent by mistaken belief. Division 8 Section 69 of the Act establishes in this criminal law case study that actions leading to bodily harm could lead to cognizance as an act of assault. This would also be held as battery under Australian provisions. In accordance with the scenario provided, although Kreep did not use excess force, he was well aware of the back condition troubling Jimmy. Moreover, the degree of force used was deliberately lowered when demonstrating on Hallie in order to mislead Jimmy. There is a certain motive of intent and the merits of the suit would certainly favor Jimmy and Hallie. Division 5 of the Act sets out the list of offences considered as larceny. In the context of the scenario, the Stetson hat was lying on the road without any identifiable credential on the object. Since no method of identification was present, the taking of the hat would certainly not amount to larceny and would have no cognizance in this matter. Moreover, the social media post by Jimmy did indicate that a hat was missing. But there could be several Stetson hats identical in nature. Kreep would have to prove that the hat was in actuality his and this would be relatively difficult considering the lack of identification on the hat. Therefore, the charges would be extremely difficult to realize in terms of larceny and theft.

Advice to the Director of Public Prosecution in the context of prosecuting the criminal charges
In the context of advising the Director of Public Prosecution within this criminal law case study, the adversarial nature of the Australian legal system would have to be a key area of focus. Since the case involving Kreep and Hallie involves acts relating to sexual offences, the question of law would have to be stressed upon in the context of the Crimes Act, 1900. The crimes committed by Kreep fall under statutory law provisions and precedents would be a solid pathway for initiating the trial and prosecution. The reporting of sexual crimes is surprisingly low within Australia considering the developed nature of the economy[5]. Moreover, offences relating to sexual abuse, exploitation and misrepresentation based consent are relatively ambiguous by nature. This would progressively create a clouded scenario when considering the scope and extent of the effectiveness of the prosecution[6]. The evidence collected by Hallie would further be an integral component when considering the delivery of justice through the prosecution. The aspect of public interest also come into play, and would have to be presented by the Director of Public Prosecution in his or her arguments as it would substantially improve the merit within the suit. Sexual offences have consistently been on the rise of Australia in accordance to a number of private data organizations and civilian surveys.

The impact and the best interest of the victim Hallie would also have to be focused upon in a targeted manner in order to improve the quality of the arguments and sufficiently convince the jury. The gravity of the crime involving sexual influence and the obtaining of consent through fraudulent misrepresentation is a serious offence including imprisonment and imposition of fines. However, due process and diligence would have to be maintained in terms of carrying out the prosecution and the onus of liability in this context of criminal law case study would shift upon the Director of Public Prosecution. Procedural fairness measures include a number of subsets including the right to remain silent, right to a fair trial, acknowledging innocence of the suspect until proven guilty and so on. Although these measures can degrade the quality of the prosecution and delay the delivery of justice, precedent based arguments would be crucial in terms of ensuring a speedy and timely trial. The recent years have seen a gradual shift within Australia towards statutory provisions and precedents as opposed to judicial discretion based on the common law system related to sexual offences and crimes. This integration of the same within the arguments of the Director of Public prosecution would ensure that the prosecution remains effective to the fullest extent possible.

The concept of actus reus or the physical act discussed in this criminal law case study would also have to be focused upon by the Director of Public Prosecution in the attempt of convicting Kreep and ensuring that justice is delivered to Hallie. The dynamic shift that has taken place in the context of consent has differentiated the same into positive and negative consent. The Director of Public Prosecution would have to focus on the same in order to further improve the quality of the prosecution and the subsequent delivery of justice.

Relevant Judgments for Reference - Application
Certain judgments in relation to the issues mentioned above can be referred in instituting and proceeding a case against the alleged offender Kreep:

Fitzgerarld v Kennard (1985) 28 NSWLR 185 at 195.

The amended section of Section 61HE (2) consists the new meaning of consent which defines Sexual Activity.[7] Sexual Activity includes Sexual intercourse, Sexual touching or a Sexual act. Sexual act defined in Section 61HC can be explained as:

  • A reasonable person can consider the act to be sexual
  • A Sexual Act can be considered sexual if :
  • The area involved a genital area or the anus or the breast (in case of a female ) whether or not developed;
  • The offender performed the act for the purpose of sexual arousal or gratification;
  • Any other aspect which makes out the act to be sexual;

R v Lazarus (2017) NSWCCA 279

I AM THAT GIRL aired on 7th May, 2018

References for the case of Timmy:
TM v R (2018) NSWCCA 88, involved offences of privacy with imprisonment sentence of six years[8]

POLICE v RAVSHAN USMANOV (2011), NSWLC 40[9]

USMANOV v R, NSWLDC[10]

Conclusion
From the aforesaid discussed criminal law case study it can be concluded that the offenders named Kreep and Jimmy can be held liable for punishment and also of fine which may extend up to 5 years and above, up to $30,000 fine. They may also be subject to extensive imprisonment if evidence against Kreep and Jimmy can be proved under the Evidence Act, 1995 - Federal Register of Legislation. The evidence can be adduced under the relative provisions of Chapter 2, and admissibility can be made under the provisions of Chapter 3. All the evidence shall be proved under the provisions of Chapter 4 of Evidence Act, 1995. The prior judgments given by the higher courts can be used to satisfy the court for the want of prescribed punishments given under the Crimes Act, 1900.

References
Websites
austlii.edu.au, (2019). CRIMES ACT 1900 - SECT 61HE. Available at: http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61he.html [Accessed on 2/9/2019]

austlii.edu.au, (2019). CRIMES ACT 1900 - SECT 61KC. Available at: http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61kc.html [Accessed on 2/8/2019]

austlii.edu.au, (2019). CRIMES ACT 1900 - SECT 91K. http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s91k.html [Accessed on 31/8/2019]

caselaw.nsw.gov.au, (2019). Criminal law case study Police v Ravshan USMANOV [2011] NSWLC 40 Available at: https://www.caselaw.nsw.gov.au/decision/54a636e73004de94513d973b [Accessed on 31/8/2019]

judcom.nsw.gov.au, (2019). Recent sexual assault law. Available at: https://www.judcom.nsw.gov.au/publications/benchbks/sexual_assault/recent_cases.html [Accessed on 31/8/2019]

Books
Bartels, L., Walvisch, J. and Richards, K., (2019). More, longer, tougher… or is it finally time for a different approach to the post-sentence management of sex offenders in Australia?.

Boxall, H., Australian Institute of Criminology and Fuller, G., (2016). Brief review of contemporary sexual offence and child sexual abuse legislation in Australia: 2015 update. Australian Institute of Criminology.

Quilter, J. (2018).Submission to NSW Law Reform Review into Consent and Knowledge of Consent in relation to Sexual Assault Offences.

Online article
Taylor, S.C., (2017). Community perceptions of a public sex offender registry introduced in Western Australia. Police Practice and Research, 18(3), pp.275-290.

[1] Quilter, J. (2018). Submission to NSW Law Reform Review into Consent and Knowledge of Consent in relation to Sexual Assault Offences.

[2] http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61he.html

[3] http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61kc.html

[4] http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s91k.html

[5] Boxall, H., Australian Institute of Criminology and Fuller, G., (2016). Brief review of contemporary sexual offence and child sexual abuse legislation in Australia: 2015 update. Australian Institute of Criminology.

[6] Bartels, L., Walvisch, J. and Richards, K., (2019). More, longer, tougher… or is it finally time for a different approach to the post-sentence management of sex offenders in Australia?.

[7]https://www.lawreform.justice.nsw.gov.au/Documents/Current-projects/Consent/Preliminary-submissions/PCO92.pdf

[8] https://www.judcom.nsw.gov.au/publications/benchbks/sexual_assault/recent_cases.html

[9] https://www.caselaw.nsw.gov.au/decision/54a636e73004de94513d973b

[10] https://crimlawcommittee.wordpress.com/2017/06/06/new-revenge-porn-offences-for-nsw

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