Elements of a Criminal Offence II Zagreb November
Elements of a Criminal Offence- II Zagreb, November 27 th 2019
2. 2. Essence of the criminal offence/ elements constituting an offence n n n essence of the criminal offence/statutory element (St. GB)/elements constituting an offence (CPC) ; objective/subjective elements of the offence In civil law system -set of characteristics; a) conduct, b) perpetrator, c) causation (causational link); d) object, e) consequences very similar to legal description of criminal offence (criminal offence in Code) BUT not the same (it can be broader or narrower) In common law system- causation
2. 2. Essence of the criminal offence/ elements constituting an offence Theories of causation in Croatian Penal Law: 1. 2. 3. Theory of equivalency (conditio sine qua non) Theory of adequacy (adequate consequence of action) Theory of objective accounting (+) (or criminal law causation- special danger must be realized in some specific consequence)
2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law n n common law – act must be the actual and legal (proximate) cause of the result MPC – „BUT-FOR” test (conditio sine qua non) + PROXIMATE cause „BUT-FOR” test: What would have happened if the suspect's actions were absent? BUT-FOR” test -suffers from three major deficiencies-Problem with: n 1) alternative sufficient causes; if Y would have occurred without X, then X is not a cause of Y (People v. Arzon -merging fires) n 2) proximate cause and intervening cause; n 3) liability for omissions (p. 63 -69, Fl)
2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law 1. n n alternative sufficient causes; People v. Arzon (causation) 1978 Casebriefs/Brief fact: The Defendant, Arzon, was charged with the murder of a fireman who had received fatal injuries when, responding to an arson that Defendant committed, he encountered a separate arson fire in the same building. Facts. The Defendant set fire to a couch on the fifth floor of an abandoned building. Firemen attempted to put out the blaze, but decided to give up when they saw they were having no effect. In retreating from the building, they encountered another fire on the second floor of the building and one of the fireman received fatal injuries from this blaze. The second fire was also determined to be caused by arson, but there was no evidence that it had been committed by Defendant. He was nonetheless charged with the fireman’s murder.
2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law 1. n n n alternative sufficient causes; People v. Arzon (causation) 1978 Casebriefs/Brief fact: The Defendant, Arzon, was charged with the murder of a fireman who had received fatal injuries when, responding to an arson that Defendant committed, he encountered a separate arson fire in the same building. Synopsis of Rule of Law. An individual is criminally liable for the death of another if his conduct is a sufficiently direct cause of death that could have been reasonably foreseen as a consequence of his actions. Issue. Was Defendant criminally liable for the fireman’s death notwithstanding that the victim’s fatal injuries were received by an independent intervening cause not attributable to Defendant? No break of causal chain because Arzon should have foreseen the result Problem in question: 1) alternative sufficient causes
2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law- causation alternative sufficient causes; if Y would have occurred without X, then X is not a cause of Y Scenario a) The problem of merging fires. „Suppose that both Joe and Karl set fires that converge and destroy the plaintiff's house. Either fire alone would have been sufficient to destroy the house. Therefore both Joe and Karl can point the finger at the other and say: He was the cause; I was not the cause because the harm to the plaintiff's house would have happened even without my fire. n This is a serious challenge to the "but for" test for in fact if that test is applied, neither Joe nor Karl is responsible for the damage to the plaintiff's house. …Together they generate a single fire that in fact destroys the house”. -YES both responsible- parallel perpetrators 1.
2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law- causation alternative (independent) sufficient causes; if Y would have occurred without X, then X is not a cause of Y Scenario b) „Joe wants to kill Paul and therefore on the eve of Paul's setting forth on a hike across the desert, Joe sneaks into Paul's room and replaces the water in his canteen with scentless and colorless poison. Karl also wants to kill Paul and therefore later the same evening he sneaks into Paul's room and drills a small hole in the bottom of Paul's canteen. Paul leaves the next morning without noticing the hole in his canteen. After two hours in the desert he decides that it is time to drink but by now the canteen is empty. Without other sources of water he dies of dehydration in the desert. Who is responsible for the death? Karl can claim that if he had not drilled the hole in the canteen, Paul would have died of poison. But Joe can maintain that in view of Karl's subsequent action, replacing the water with poison was an irrelevant act”. –Karl responsible; Joe attempted murder 1. n These scenarios illustrate the limitations of counterfactual thinking in assessing causation. In these cases, where there alternative sufficient conditions, the question should be not what would have happened, but what in fact did happen. (p. 63, 64 Fl)
2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law n Brackett v. Peters: n The Facts: Defendant B. , a prisoner in state prison was convicted of felony murder. At the time of the crime, defendant B. was 21 and had raped and severely beaten an 85 year old widow, who he had previously done yard work for. Her hospital records show a broken arm, a broken rib, and extensive bruising. While at the hospital, defendant P. became depressed and refused to eat or be fed and became progressively weaker. Her physical injuries were healing when she was transferred to a nursing home, but her mental status deteriorated as she continued her resistance to food. “Her doctor ordered a nasal gastric feeding tube for her but the tube could not be inserted, in part because facial injuries inflicted by Bracket made insertion of the tube too painful. ” Defendant died ten days after admission to the nursing home while a nurse was feeding her through a syringe. The autopsy revealed that she died from a large amount of food being stuck in her trachea, from which she asphyxiated.
2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law The Issue: Whether a defendant’s asphyxiation after being fed through a syringe constitutes sufficient causation of death after a beating and rape, such that defendant can be convicted of felony murder. n Rule: „. . an act is a cause of an event if 2 conditions are satisfied: n (1) the event would not have occurred without the act (but-for doctrine); n (2) the act made the event more likely https: //casetext. com/case/brackett-v-peters (28. 10. 2019. ) n n
2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law- causation 2. n n proximate cause and intervening cause Scenario a) „Defense lawyers often try to mount the argument that their clients seemingly fatal blow to the victim did not cause the victim's death because after being shot or stabbed, the victim received negligent medical care. The defense tried this argument in the trial of Bernhard Goetz: Darrell Cabey was supposedly paralyzed for life not because of the gunshot wound that Goetz delivered to Cabey but because of the subsequent negligent care in the hospital. The same argument came forward in the trial of Lemrick Nelson for having allegedly stabbed and killed Yankel Rosenbaum was taken to the hospital and as the argument goes, if he had received proper care for his wounds he would have survived. There the negligent medical care is like the intersecting tributary that overwhelms and dominates the original causal stream (of proximate cause)”. (p. 65 Fl)
2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law- causation 2. n n proximate cause and intervening cause- YES they were held responsible (if circumstance is made by negligent doing first actors (which acted with intent) are responsible// Intent/ negligent)Common Law- first responsible for all Civil law: n n first attempted murder + Unconscientious Medical Treatment or better Medical Malpractice (Art 181 CPC)
2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law- causation 2. proximate cause and intervening cause; Scenario b) „Suppose Jack negligently runs down the mob boss Gabe. While Gabe is recuperating in the hospital, his nemesis in the criminal underground, Mike, finds him in the room and executes him, mob style, with a rope around the neck. In this situation the party responsible for Gabe's death appears to be Mike, not Jack's negligence merely explains why Mike finds his victim in the hospital rather than at home. n n in other words, Mike's actions emerge in the foreground as the responsible cause and Jack's bringing about the car accident recedes into the background. There is good authority for the conclusion that Jack would not be liable for Gabe's death. now what is the difference between medical negligence in treating Darrell Cabey and Mike's executing Gabe? is it a matter of probability? or of foreseeability, as lawyers say?
2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law- causation 2. proximate cause and intervening cause; Matter in question: A) intent/negligence- causal link exists B) negligence/ intent - break of causal link
2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law- causation 2. n n n proximate cause and intervening cause; different standpoints some prominent judges, notably Justice Benjamin Cardozo, have reasoned that analyzing proximate cause is nothing more than assessing "the eye of vigilance" and the degree of foreseeability this seems to be an oversimplification the perspective of probability ignores the key factor in the situation, namely, that the wound injuring Darrell Cabey in the hospital was merely negligence the mode of Mike's killing Gabe was intentional and willful it could well be the case that the intentional killing of a mob boss in the hospital was more probable, more foreseeable, than the hospital staff's negligent treatment after a gunshot wound”. (p. 65 Fl) – break of causal link/chain -intervening cause (negligent/intent)
- Slides: 15