Analysis of Criminal Law Cases - Case Study Example

Question 1: There are two basic considerations under the scanner in the case provided. David had, in all fairness given Sam a certain sum of money- $5000, in return for a promise that Sam would provide a certain type o service i.e. get David on a few dates and help him find a partner, however after getting the money that was due to him, Sam completely backtracked on his promise. By virtue of the fact that there was an oral contract in place, there are legal liabilities that stand against Sam. David, instead of taking the matter up with authorities, David confronts him in the car park, threatens him, and then steals his very expensive watch. There are liabilities that are under consideration against David as well by this scheme of things. The following study will seek to find the relevant laws and build a case that, first David can file against Sam, demonstrating Sam’s legal liabilities and second, the case that could be filed against David himself because of the fact that he threatened Sam with murder and that he stole Sam’s watch. First, if one was to talk about the non-fulfillment of contract obligations by Sam, there are two angles that need to be kept under consideration. First, Sam entered in to an oral contract that was legally binding with David. Although it is true that economic loss is the principal concern of commercial parties to contract; in many contracts especially those that are entered by consumers, the purpose of making the contract may include the expectations of enjoyment, satisfaction, and peace of mind1. Breach of such contracts can mean a loss of money, but in addition, the consumer faces disappointment, vexation, worry and inconvenience. Traditionally, however, this approach has not found favour with most jurists. The principal was reinforced in Addis v Gramophone Co Ltd.2 Further; these would be charges under a simple contractual law setting. In order to enforce criminal proceedings against Sam, the various sections of the Trade Practices Act need to be applied. The consumer protection laws in Australia, have made precise and detailed stipulations to authorize action against unfair and deceptive trade techniques such as "bait & switch", "failing to supply after accepting payments" and "harassment & coercion" exercised by traders like Sam. Section 56 of the Australian Trade Practices Act 1974 lays down statutory prohibition against bait advertising. The idea inherent in the act is to refrain retailers from enticing potential customers to their services by the display of inexpensive goods or services that do not exist or are being offered in very small quantities or for very limited periods of time3. It specifies that - “A corporation shall not ... advertise for supply at a specified price, goods or services if there are reasonable grounds... for believing that the corporation will not be able to offer for supply those goods or services at that price for a period that is, and in quantities that are reasonable.... A corporation that has... advertised goods or services for supply at a specified price shall offer such goods or services for supply at that price for a period that is and in quantities that are, reasonable..” There are also charges that could be instituted because Sam indulged in "bait advertising”. The Australian Act made two more provisions to sanction against those unfair and deceptive trade practices that are closely related to the conduct of "bait & switch". Section 58 of the Act prohibits a trader from accepting payment for goods or services if he does not intend or is unable to supply those goods or services as ordered. Further, the use of physical force, undue harassment, or coercion by a trader in connection with the supply of goods and services to a consumer is also specifically prohibited under Section 60. Details of the relevant provisions are as follows4, “Accepting payment without intention to supply A corporation shall not... accept payment or other consideration for goods or services where, at the time of the acceptance: 1. The corporation intends: (a) not to supply the goods or services (b) to supply goods or services materially different from the goods or services in respect of which the payment or other consideration is accepted; or 2. There are reasonable grounds ...for believing that the corporation will not be able to supply the goods or services within the period specified by the corporation or... within a reasonable time. Thus, criminal charges can be pressed against Sam for misleading and unfair trade practices, with claims of refund and compensation for distress caused and an imprisonment sentence for a period of up to 14 years. The only defence is that David is ugly; had this been the case, Sam should not have made the promise that he did wherein he guaranteed David that he would find him dates. The stipulation about looks did not come into discussion; there was a deliberate attempt to gloss over the shortcomings of the service on offer making it a clear case of misrepresentation. David, on the other hand committed an extremely foolish act by not going to legal authorities in order to get duress for his claim. He stole Sam’s watch, which makes him directly accountable to Sections 155 (robbery and stealing from person) and 158 (robbery with violence) of the South Australian Legislation governing robbery- the Criminal law Consolidation Act or the CCLA Section 155 states5, “Any person who robs another or steals any chattel, money or valuable security from the person of another, shall be guilty of an offense and liable to be imprisoned for a term not exceeding fourteen years”. The most important ingredient in establishing robbery is that the victim is put in fear by the violent assault of the offender6. It is not robbery if the victim is threatened or fearful after the taking of the property, this must happen at the time of taking of the property, e.g. R v Hanias (1976) 14 SASR 137. in this case incidents involving snatching are not robbery, so this would mean that there are chances that David can get convicted for larceny as well, which is an offence that involves the taking of property from the person or from within the immediate control of the owner, but without the use of threat or force. Question 2: The judgment in R v Taktak exemplifies the judgment wherein a breach of a duty of care attracted legal liability for any resulting harm.7 The defending attorney was Gregory Scragg who cross examined a pathologist on the estimate of the time of death. Mr. Taktak was a man that arranged prostitutes for a drug dealer. He was asked on a certain day, to collect one of his women who had fallen sick. The accused did so, and the woman died of a drug overdose. The charge was of manslaughter by criminal negligence. He took the woman to private premises and did not call a doctor nor did he take her to get medical aid, despite the fact that she was in a comatose condition8. The point of debate was the subjective nature of the judgment call that Mr. Taktak had to make. He believed that the woman would recover and hence did not call the doctor. He was ultimately acquitted by the New South Wales Court of Criminal Appeal on the ground that the evidence did not suggest a high degree of negligence that is required for a manslaughter charge. There was a difference of opinion, on the test that should have been given to the jury. The trial judge has directed the jury in accordance with the test that had been adopted in Nydam v R.9 The test as laid down in Nydam was in the context of a positive act of killing, i.e. at least on the face of matters, heavily if not completely subjective. The two majority judges in Taktak, Yeldham and Loveday JJ, adopted not the objective test in Nydam but the more subjective test in Stone and Dobinson, which requires either indifference or foresight of danger to health. The defence used by Mr. Scragg was concerning the amount of time that was spent by Mr. Taktak with the woman. Had these subjective elements been left to the jury, there might have been an acquittal though the majority did not decide the case based on misdirection to the jury. In order to understand whether the judgment advanced the law, it would be necessary first to understand what the law states in this particular context. When a charge of manslaughter is laid in relation to criminal negligence there are three central fundamentals to be looked at, they are a duty of care, a standard of care and a gross departure from the standard of care. The various sections of the law that pertain to this particular section would be10: Criminal Law Consolidation Act 1935 (SA), ss 29–30; Criminal Code (Qld), ss 285–290; Criminal Code (Tas), ss 144–152; Criminal Code (WA) ss262-267; and Criminal Code (NT), ss 149-154 There are in essence four elements to the duty of care; gross departure from this duty warrants persecution. First, there can be no criminal responsibility unless there was a duty to care. This was a condition that is not fully satisfied in this case because Mr. Taktak was an agent and had no legal or binding responsibility of the woman in question. The second element, the standard of care, requires care that is anticipated "of a hypothetical 'reasonable person' in the same situation as the defendant”. If a situation arises which a 'reasonable person' would foresee and take steps to avoid, then a person in these circumstances will be accountable for the way in which a 'reasonable person' would act rather than the way in which s/he did act. It is in this respect that Mr. Taktak is guilty. The woman when he attended to her was in a comatose condition due to a rug overdose. By all rationale of thought, he should have ensured that she received medical attention and by neglecting to do so, he caused her death. He was this guilty of fulfilling the duty of care that was assigned to him and hence the judgment finding him guilty was correct and in absolute congruence with the letter of law. Reference: Australia Trade Practices Act, 1974 Barnett A, 1997, Robbery in South Australia, A Discussion paper based on an audit of Police Incident Reports of unarmed robbery offences reported during 1995, accessed July 2, 2009, Colins H, 2003, The Law of Contract, pub, Cambridge University Press, pp414-416 Eburn & Hayes, Criminal Law and Procedure in NSW, 2nd ed. Pub, LexisNexis Butterworths, 2006  Lanham D, Fartal B F and Evans R, 2006, Criminal Laws in Australia, pub, Queensland, The Federation Press, p220 Taktak (1988) 14 NSWLR 226 Williams and Urbas, 2001, Heroin Overdoses and Duty of Care, Australian Institute of Criminology, trends & issues in crime and criminal justice Read More