LAW162 Criminal Law T3 2021 Hypothetical Assignment Instructions Due Date: 23.59 pm (AEDT), 19th December 2021 Word Limit: 2000 words, not including footnotes or reference list. Weighting: 40% Please read this document in its entirety. It contains not only the assignment question, but information relevant to how the assignment will be assessed. All citation of sources must be compliant with the Australian Guide to Legal Citation (4th edition). Students cannot submit an assignment unless they have completed AIRLI. Please ensure that you complete AIRLI well before the assignment is due. Problems with completing AIRLI are not an excuse for late submission. Regarding referencing requirements, please refer to the Student Coursework Academic Misconduct Rule (the Rule), especially [8] and [9], for information regarding plagiarism. Please remember that the assignment is not group work. Do not discuss any aspect of your assignment with anyone else – not even the issues or the structure. These are assessable aspects of the assignment. The consequences of a finding of academic misconduct are very serious, especially for law students, because such a finding can adversely impact on entitlement to be admitted into legal practice. The onus is on you, the student, to ensure that you understand and comply with the Rule. If you are unsure, it’s much better to ask. Please see the Law School Student Essentials for word limit and extension policies. Submit your assignment via the link in the Assessment module on the unit’s Moodle site. Please be advised that UNE uses Turnitin plagiarism detection software. Required Reading for the Assignment • Anthony Marinac et al, 'Chapter 7: Frameworks for Legal Thinking' in Marinac et al, Learning Law (CUP, 2018) 171 (on 'Reading List', link from Moodle's home tile). • 'How to answer legal problem-solving questions - including the IRAC method' and Tasks A, B and C, in 'Writing for Law' in the Law Skills Hub. • This document – in entirety. • A brief lecture specifically on the assignment will also be posted on the Moodle site. LAW162 Assignment Question 2021 In the Bangalow hinterland of northern NSW, a religious group known as Destination Heaven maintained a compound on 100 hectares. In June, 2021, the group had 160 members, including men, women and children. The Supreme Patriarch of Destination Heaven was Paul Marshall, but he preferred for the members of the group, his followers, to refer to him by his title. Followers believed that the Supreme Patriarch communed directly with the Deity and that by following him (the Supreme Patriarch), their places in Heaven would be assured. The Supreme Patriarch maintained a strict control over the lives of group members, including over religious observances, permissible types of foods and clothing, access to information about matters happening outside of the compound, and who was permitted to leave the compound and under what circumstances. Members were asked to yield up to the group all property, chattels, assets and income so that the Supreme Patriarch could administer all on behalf of Destination Heaven. Theoretically, all of the members of Destination Heaven were free to leave at any time and seemingly, all were in fact there voluntarily. The compound was not locked or guarded. But no members had ever left. Apparently, members of Destination Heaven were held in check by the force of the Supreme Patriarch’s charismatic personality and the belief system he had inculcated. The Supreme Patriarch also claimed the power to select brides for young men that had earned the privilege of marriage. A tradition in Destination Heaven was that a secret ‘purification’ ritual was conducted for the brides-to-be a month before marriage, which had the effect of blessing the marriage. It was conducted by the Supreme Patriarch with the help of his wife, known to group members as Mother Verity, but otherwise, members of the group knew little about the ritual because brides were sworn to secrecy, and for a week after the ritual, they remained in isolation for reflection and prayer. In May 2021, 18-year-old Bianca was informed that she was to get married to one of the men in the group and in due course, she would have to participate in the purification ritual. On 7 June 2021, Mother Verity came to visit Bianca. Mother Verity told her that some aspects of the ritual were painful, and if she wanted, Bianca could take painkillers and mild sedatives ahead of the ritual, which would commence in one hour’s time. Mother Verity left Bianca with some packets which contained readily available, over-the-counter pain relief and sedative tablets. Mother Verity also told Bianca to prepare by showering thoroughly and gave her a white robe to wear after her shower. Bianca took Mother Verity’s advice and she showered as instructed, and fifteen minutes ahead of the designated time, took the dosage of tablets as recommended on the packets. Mother Verity returned at the appointed time and took Bianca to the Supreme Patriarch’s private quarters. Bianca was taken into a large L-shaped bedroom where there was an A-shaped wooden frame and a large bed. The Supreme Patriarch greeted her and told her that first, sin had to be expiated from her body and then there was a ritual whereby holiness would be entered into her body to complete her purification. Bianca was told to remove the robe and grip handles on the sides of the A-frame. Mother Verity retreated to pray in the other wing of the L-shaped room, out of direct line of sight of the ‘ritual’ that Bianca was undergoing, but a mere 10 metres away. The Supreme Patriarch had a two-metre branch of a local native tree. One end of the branch was bare. The other end had branching twigs and was covered in spiky leaves and hard, nut-sized seedpods. The Supreme Patriarch started whipping Bianca with the branch with some force, thirty-six times, across her bare back and buttocks. Despite the painkillers, the whipping caused extreme pain and the spiky leaves and twigs had caused severe deep scratches, which were exacerbated by repeated striking on the same spot – some lacerations were bleeding freely. The hard nuts also caused severe bruising. The pain was so great that Bianca struggled to keep hold of the frame. Following the thirty-six lashes, the Supreme Patriarch told Bianca to lie face up on the bed. Bianca complied, despite the pain of lying on her wounded back. He then proceeded to conduct the ‘holiness’ ritual by inserting his penis into Bianca’s vagina. Bianca raised no objection. Children in the compound were not given any type of sex education and Bianca was completely naive about such matters. In due course, the ‘ritual’ was over, and Mother Verity took Bianca back to her room. Mother Verity gave Bianca some antibiotic tablets, and disinfectant, and told her to take the tablets according to directions on the packet, shower again, and wash her back immediately thereafter with disinfectant, and then repeat daily. Mother told her that food and water would be brought to her during her one-week remaining period of purification and that Bianca should use the time to pray. Bianca was upset, confused, exhausted and in severe pain from the experience and was feeling groggy from the sedatives. As soon as Mother Verity left, Bianca took more sedatives and lay face down on the bed and passed into a deep sleep. When she woke, Bianca felt no better. Under the influence of the sedatives, and in light of the impact of her traumatising experience, Bianca had forgotten about the antibiotics and disinfectant, but she did take more painkillers. Not long after waking, she consumed some food and fluids and took more sedatives. After a few days, Bianca started to experience symptoms of sepsis, including chills, fever, nausea, heart palpitations and rapid breathing, and she continued to experience extreme pain. By the following day, Bianca’s thinking was becoming confused and disoriented, and she stopped collecting her food tray from outside the door. By the 7th day, when Mother Verity came to collect Bianca and welcome her back into the community as a purified bride-to-be, Bianca was unconscious with a high fever. Her pulse was weak and breathing shallow. Despite being dehydrated, she was covered in sweat. There was dried vomit and excrement in the bed. Mother Verity noticed that the food had remained untouched, probably for a few days, that no antibiotics had been taken and that the disinfectant had not been used. Clearly, Bianca was extremely unwell. The wounds on her back were visibly seriously infected. The Supreme Patriarch was brought in to advise. He told Mother Verity to clean her up, disinfect the wounds, apply Savlon, keep her cool with wet towels and try to force her to take fluids. He said no-one had ever suffered adverse effects from the ritual before. He believed, as he had at all relevant times, that it was the Deity’s will for Bianca to marry as planned. Mother Verity took Bianca into a cool shower, cleaned her, and tended her wounds as instructed. Mother cleaned the room and the bed and put Bianca back onto clean sheets. Over the next 24 hours, Mother stayed by Bianca’s side, cared for her, kept her clean, bathed the wounds on her back every few hours, and kept trying to cool her fever with cool wet towels. She managed to get Bianca to take some fluids. The Supreme Patriarch was regularly updated on Bianca’s condition. The following morning Bianca was even weaker and the fever hadn’t abated. Mother Verity beseeched the Supreme Patriarch to allow Bianca to be taken to hospital. By late afternoon, he agreed, and Bianca was taken to the nearest hospital. Sadly, the sepsis was too far advanced and Bianca died the next day of multiple organ failure. Medical experts opined that the whipping was so severe as to have been likely to leave some minor scars, even without the wounds becoming infected. The whipping was beyond doubt the cause of the sepsis, although the experts also opined that the scepsis was unlikely to have occurred if the antibiotics and disinfectant had been used according to Mother Verity’s instructions. Discuss the liability of the Paul Marshall, aka the Supreme Patriarch, for unlawful homicide. In your answer, explain why a conviction would or would not be available on each potential basis for liability. (You need not consider Mother Verity’s liability.) In your answer, please ensure that you identify the relevant issues, state the applicable law, apply it to the facts and draw a conclusion. The above events occurred in NSW. Marking Criteria • The answer addresses the question/s • Identification of issues • Identification of relevant law – quality of research • Discussion of the relevant law – demonstrates nuanced understanding of the applicable case law and legislation • Application of law to facts – demonstrates nuanced understanding of how the law applies in context • Structure – contains a concise introduction and conclusion, content is organised coherently, headings and subheadings used appropriately • Presentation – quality of written expression, free of grammatical, punctuation and spelling errors • AGLC4 compliance. Marks will not be awarded separately for each of these criteria. Rather, marks will be awarded for each issue, taking these criteria into account globally. FAQs How should I go about answering the question? I strongly recommend that you use the IRAC method. 1. Issue: Identify the particular legal issue. 2. Rule: Discuss the law applicable to that issue, remembering to cite the relevant legal authority (cases and legislation). 3. Application: Apply the law to the facts. 4. Conclusion: Make a conclusion about the issue. Repeat this process for each issue identified. What are the most common mistakes when answering hypothetical assignments? The most serious and quite common mistakes are: • Insufficient detail in discussion of the law: The slides are not a sufficient foundation for the assignment. Students need to demonstrate nuanced understanding of the applicable legislation and case law. In the case of the latter, that involves reading the cases. Once you’ve identified the key cases you need, please read them. Do not rely on extracts in the text. • Not reading the facts and the question with sufficient care. If you misread the facts, you are likely to miss issues altogether or misapply them. You also need to consider the question carefully. If the question asks about offences committed by Jane there are no marks available for discussing offences committed by Mary. • Missing issues: there will be marks designated for each issue. If you don’t recognise and deal with an issue you lose a chunk of potential marks. • The scattergun approach: another common error involves summarising everything covered in the unit regarding the law relating to the issue. This is an error because it is only the relevant law that needs to be discussed and a scattergun approach conveys to the marker that student doesn’t know which bits of the law are relevant. • Failing to apply the law: Following discussion of the law, many students purport to apply it by saying something like, ‘obviously, that applies to this case.’ That is not application of law; it is a conclusion. Once the applicable law has been identified, it is applied by identifying the particular fact or combination of facts that bring a scenario within the scope of the rule and then subjecting those facts to the rule. Ouch, sounds hard! The cases contain countless illustrations of how it is done. That is why reading them is so important. How will I know what the issues are? Being able to recognise the existence of legal issue is a core legal skill. If you do the readings, engage with the unit resources, and read the relevant cases, you will be able to recognise the legal issues in the factual scenario. To be blunt, almost anyone with a search engine could tell you about the law on a basic legal point. The important skills taught at law school involve recognising legal issues and applying law to the facts. Both of these skills come from reading cases. You should say something about each element of the offences you consider, but you do not need to discuss an element in depth if on the facts, it is entirely straightforward and obvious (in which case, it won’t be ‘an issue’). How much research will I have to do? Most of the cases required for answering this question are discussed (although not necessarily extracted) in the textbook, listed in the required readings or discussed in the lectures. Recommended cases are also an important resource. Research might help you find other relevant cases. How should I present my answer? Your answer should be written in grammatically correct prose. Referencing should be compliant with the AGLC (4th ed). Ensure that spelling is correct in Australian English. I recommend that students ensure that word processing software defaults to Australian English and that a spell checker and grammar checker are used before the document is submitted. Wasting words There is nothing to be gained from repeating the facts of the question. There is nothing to be gained from repeating the facts of other cases. Doing this will create the impression that, although you realise that there is a factual analogy between the case and the facts in the question, you don’t understand the legal principles from the case, and you don’t know how to apply them to the facts. There is nothing to be gained from quoting entire sections of legislation. Doing this will create the impression that you don’t really understand the legislation because you can’t put its effect concisely into your own words. Help! It’s literally impossible to answer the question within the word limit! Meeting word limits is always tough, but it is always possible to answer the question to HD standard within the word limit. Below are my tips for managing the word count: • Are all of your issues really relevant on these facts? • Make sure that your structure is coherent and doesn't require repetition. • Paraphrase concisely, rather than use direct quotes (paraphrasing is also preferable because the marker can see that you understand - a direct quote does not convey understanding). • Use headings and subheadings. • Some students write beautifully with rich adjectives and adverbs. Conversely, legal writing is crisp, yet grammatically correct. Consider whether your adjectives and adverbs are necessary. • Develop a crisp sentence structure, eg, from a past student dealing with a question about grounds for appeal: 'I have addressed only the issues I think are relevant to get up on appeal, and yet keep exceeding the word limit by hundreds.' Word count: 24, could be redrafted without loss of content as: 'I have addressed only relevant appellate issues, yet the word count is exceeded by hundreds.' Word count: 15. Conversely, if your final draft is hundreds of words below the word limit, you have a different kind of problem. The word limit is an indication of the amount of detail expected, given the number of issues. If you have hundreds of words to spare, you might have missed one or more issues, or you might need to consider the issues in more detail. Where can I get help with the assignment? Gilbert Meyns
[email protected], UNE’s law librarian, has created a LAW162 library assignment guide which appears as a link in the assessment module. It contains handy links to a number of criminal law specific resources. Nola Holmes
[email protected] is the first-year student advisor and she can assist with general study and assignment skills. The Law Skills Hub (LSH) has amazing how-to resources including research, referencing, reading, writing and sample assignments. And the Unit Coordinator, Michelle, will, as always, answer your questions (where possible) on the Assessment Forum.