• There are 3 main questions; questions 1 & 2 have sub-parts.
• All questions must be answered.
• TOTAL WORDS LIMIT 2000
• The jurisdiction where all events occurred is VICTORIA.
Q1. (10 + 10 = 20 marks)
Mark and Julia met at an all-night rave party. They spent several hours dancing together, took a few ecstasy tablets and then, at 4am, went to a bar and each consumed several shots of vodka. Julia told Mark that she had recently had a sex-change operation and had previously lived as a man. She told him that she had never before felt this intoxicated and carefree. They decided to walk from the bar in Fitzroy to Mark’s home in East Melbourne but were too intoxicated and stumbling, so they hailed a taxi instead. In the back of the taxi they embraced and kissed passionately.
When they arrived at Mark’s apartment, they had a few more shots of vodka. By this time, they were both very drunk. Julia told Mark that she should get an Uber home, but he told her that she could stay at his place and that he was so ‘wasted’ (affected by drugs and alcohol) he wouldn’t be able to do anything ‘naughty’. Julia laughed and agreed to stay the night, sleeping with Mark in his bed.
After they had been in bed for a short time, Mark began to kiss Julia passionately. Although she was so tired that she could hardly keep awake, Julia reciprocated, kissing Mark enthusiastically. Julia then fell asleep. Mark began to remove Julia’s underwear and, when she didn’t object, began to have sexual intercourse with her. At this point Julia awoke and screamed at Mark ‘What are you doing? Get off me!’ Mark was shocked and told Julia that he thought that she had changed her mind about having sex with him. At this point Julia adjusted her clothing, picked up her bag and left Mark’s apartment.
Later that day Mark rang Julia and tried to talk with her. He told her that they had both been very drunk and that he would never have had sex with her if he had realised that she objected. Julia told him that she had made it clear to him that she did not want to have sex with him, but he clearly had thought that he could do whatever he wanted. She also told him that, as she left the apartment, she had taken a Faberge egg that was on his mantelpiece because she ‘had a moral right to take it’. Mark shouted that she had to return his valuable egg and Julia ended the telephone call.
Q1A. Advise Mark as to his liability for rape under s 38 of the Crimes Act 1958 (Vic). (10 marks)
Q1B. Advise Julia as to her liability for theft under s 74 of the Crimes Act 1958 (Vic). (10 marks)
Q2. (15 + 15 = 30 marks)
On December 18 2019, Deb and John got on a train at Noble Park and sat opposite Brendan. John put his backpack under the train seat, looping it around his foot for safety. Deb and John soon became apprehensive when they noticed that Brendan appeared angry and agitated and was rocking back and forth on his seat and muttering angrily. John leant in close towards Deb and suggested that they move seats as he thought that Brendan appeared to be unsettled. Brendan saw them talking and shouted, ‘Are you talking about me, you idiots?’ John and Deb were both scared by Brendan’s behaviour and froze.
Brendan noticed that John had put a backpack near his feet. Brendan was carrying a toy pistol (that looked quite realistic) in his back pocket. He decided that John and Deb would be easy targets and that he would sneakily take John’s backpack. Brendan slowly moved it closer towards him with his feet. However, John had his foot entwined in one of the backpack loops and felt a tug when Brendan pulled on it. John looked at the backpack and then at Brendan and asked him what he what he was doing. John said ‘Mate, that backpack belongs to me. Leave it alone.’ At this point Brendan pulled violently on the backpack, wrenching it free from John’s foot and holding it close to his chest. He simultaneously pulled the pistol out of his back pocket and threatened that he would shoot John unless he kept quiet. When John saw the pistol, he called out to other passengers ‘He’s got a gun, call the police’ and tackled Brendan. In the ensuing scuffle, Brendan punched John on the face, breaking his nose and giving him a black eye. A ring that Brendan was wearing also cut John’s face (the cut subsequently required 4 stitches). With the help of another passenger, John managed to subdue Brendan and keep him restrained until the next station when police got on the train and arrested Brendan.
At the police station, Brendan disclosed that he has a history of schizophrenia and, although he has been taking the medication prescribed by his psychiatrist, he has been having hallucinations in the past few weeks.
Q2. Brendan has been charged with armed robbery and assault under sections 75A and 16 respectively of the Crimes Act 1958 (Vic).
2A. Advise Brendan in relation to the charge of armed robbery (s 75A) (15 marks).
2B. Advise Brendan in relation to the charge of causing serious injury intentionally (s 16) (15 marks).
Q3. (10 marks).
Diana has been married to Bruce for 3 years. During that time, he has repeatedly been psychologically abusive towards her, telling her she is a fat fool, stupid and that no other man would be interested in her. One evening recently, after Bruce was laid off from his job, he punched her for ‘disobeying’ him and wasting his money by buying some chocolate for herself. Julia had a bruised and swollen face for days afterwards.
As a consequence of this treatment, Diana has become deeply depressed. They now have very little money and Bruce devises a scheme whereby they will defraud the Victorian government in relation to start-up money for a new business. He tells Diana that she must sign all the forms and pretend to be developing a business manufacturing herbal soaps and cosmetics from their home. Diana doesn’t want to do this but fears that Bruce will punch her again if she doesn’t do as he says. Diana completes the forms and obtains a grant for $8,000 which is immediately confiscated by Bruce. The deception is subsequently discovered, and Diana is charged with several criminal offences relating to the fraudulent claim for start-up money for a new business.
Q3. Can Diana plead the defence of duress to the crimes with which she has been charged? (10 marks)