Crim Law Notes

tag-notestag-tutorial

Charts - Check Seminar Questions

• Murder chart

Fatal offences against the person chart

Negligent manslaughter by omission chart

Unlawful and dangerous act UDA Manslaughter chart - as defined in wilson

Negligent manslaughter by act chart

Non-fatal offences against the person chart

Psychic assault chart

Physical Assault chart

Assaults spectrum chart

Reckless GBH/wounding chart, wounding/GBH with intent chart

Assault occasioning actual bodily harm chart

Sexual Assault chart

Larceny chart - if tricked move to fraud

Fraud chart

Attempt chart / attempted chart

Joint criminal enterprise chart / JCE chart

Accessorial Liability Chart

Extended Joint Criminal Enterprise elements / EJCE elements

Defences chart

Mental Health Impairment or Cognitive Impairment (MHI&CI) chart

Diseases of the mind

Automatism

Self-Defence Chart

Duress and Necessity

• Duress and Necessity
  • The elements of duress and necessity are elicited at common law.
  • The elements of necessity are outlined in Loughnan [1981] VR 443, 448.
    • The defence must raise evidence to suggest a reasonable possibility that:
      • 1. The act must have been done in order to avoid consequences which would have inflicted irreparable harm on the V or those s/he was bound to protect;
      • 2. The accused must honestly believe on reasonable grounds that there was an imminent or immediate peril; and
      • 3. Acts done to avoid the peril must not be out of proportion to the peril avoided.
  • The leading authority for the elements of duress is R v Lawrence [1980] 1 NSWLR 122,
    • applying Smith J’s formulation of the defence in R v Hurley and Murray [1967] VR 526 with approval.
    • The defence must raise evidence to suggest a reasonable possibility that D was required to do the criminal act:
      • 1. under threat of death or GBH to a person if the act is not done (majority limited it to a personal threat), and
      • 2. a person of ordinary firmness would have yielded to the threat, and
      • 3. the threat was present and imminent, and
      • 4. accused reasonably apprehended the threat would be carried out, and
      • 5. the threat actually induced the crime (ie. no other main reason), and
      • 6. the crime was not murder, and
      • 7. D did not, by their own fault, expose themselves to the threat, and
      • 8. D had no means to avoid the threat.
  • Resisting arrest + Assaulting an Officer + Public Disorder
    • Check the bodycam footage
    • Trifecta of Police charges - likely defendant did nothing wrong - can be on smtp or already known to police and trying to make something stick
      • Resisting arrest
      • offensive behaviour (language)
      • assault police

Homicide law table

Murder

Actus Reus
Mens Rea
MURDER

(s 18(1)(a))

• A’s voluntary act ormission
• 2. caused the death of a person.
• Intent to kill; or
• Intent to inflict GBH; or
• Reckless indifference to human life; or
• Constructive murder [not assessable].

Temporal coincidence:
actus reus and mens rea at the same time

VOLUNTARY MANSLAUGHTER
The result when D raises a partial defence once the prosecution has been able to establish all elements of murder.

Elements of murder must first be established
Requirements for reducing charge to manslaughter

Provocation (s 23)
See above. Negated beyond a reasonable doubt.

1. Act causing death in response to conduct of V towards or affecting A; and

2. Conduct of V a serious indictable offence; and

3. Conduct of V caused A to lose self-control; and

4. Conduct of V could have caused ordinary person to lose self-control to the extent of intending to kill or inflict GBH on V.
   Substantial Impairment by Mental Health Impairment or Cognitive Impairment (s 23A)
   See above. Negated beyond a reasonable doubt.

5. At the time of the act/omission causing death, A was suffering from a mental health impairment or cognitive impairment

6. This substantially impaired A’s capacity to understand events; to judge right from wrong; or to control her/himself.

7. Impairment so substantial to warrant reduction of liability from murder to manslaughter.

INVOLUNTARY MANSLAUGHTER

Where A does not have the subjective MR for murder

Differentiation from murder
Specific elements
UDA Manslaughter

(s 18(1)(b), elements established at common law: see Wilson)

A caused the death of V but did not possess the MR for murder.
A’s voluntary act (not omission) caused the death of a person, and that act was:

1. Unlawful (i.e., a breach of criminal law); and

2. Dangerous (a reasonable person would have realised they were exposing another to an appreciable risk of serious injury).

Negligent manslaughter (s 18(1)(b), elements established at common law, can be committed by way of a positive act or omission: see Nydam)
A caused the death of V but did not possess the MR for murder.

• A caused the death of a person by an act, or by an omission in a situation in which A owed V a duty of care; and
• A reasonable person in the position of A would have adverted to the risk that death or GBH would result from that act or omission (‘standard of care’); and
• There was such a great falling short of the standard of care as to warrant criminal punishment (‘breach of duty’).

JCE Problem questions

• When solving problems involving multiple participants:
  • First analyse the criminal liability of the principal offender who fulfilled the actus reus elements of the crime.
  • Then contemplate whether the other offender/s can be charged with being party to a JCE if there is an agreement or mutual understanding.
• This is because liability is primary, not derivative, for participating in a JCE. In many cases it would be wise for the prosecution to pursue JCE first and accessorial liability as a ‘back up charge’.
  • If there is no agreement, then the Crown would be likely to assess whether D could be liable due to fulfilling the elements of accessorial liability (either as an ABF or P2), or potentially, through the doctrine of innocent agency.
  • It is also important to consider whether any additional offences have been committed by a co-accused that may not have been agreed to by the D, or which D did not participate in, but D may have contemplated as a possible incident of participating in the original enterprise (Extended JCE).

Specific Intent vs Basic Intent chart

Specific intent offences
Basic (non-specific) intent offences
Section 18(1)(a) - murder
• Section 33 – wounding or GBH with intent to cause GBH
• Section 117 – larceny
• Section 192E(1)(a) – fraud (obtaining property by deception)
• All accessories to crimes (ABFs and
P2s – see Giorgianni)
• Attempts of specific intent offences
Section 18(1)(b) – involuntary
manslaughter
• Section 25A – assault causing
death
• Section 61I – sexual assault
• Section 61 - common assault
• Section 59 – assault occasioning
ABH
• Section 35 – reckless
wounding/GBH
• Section 192E(1)(b) – fraud (obtaining a
financial advantage/ causing a financial
disadvantage)
• Attempts of non-specific intent
offences

Intoxication chart

Type of intoxication
Voluntariness
Mens Rea
Self-induced
Intoxication cannot
be considered (s
428G(1))
Intoxication can only be
considered for specific
intent offences (s 428C)
(and see specific
provisions for sexual
assault)
Not self-induced
Intoxication can be
considered (ss 428A &
428G(2))
Intoxication can be
considered for non-
specific and specific intent
offences (ss 428C and
428D)

Week 1

• SOURCES OF THE CRIMINAL LAW
  • centralised justice in order to control crime and the growing population of England
  • Prior to 1907, in England and Wales there was no system of appeals against conviction or sentence in criminal cases.
  • Have records of 16th century, detailed records from 18th century+, reliance in criminal law on writers of authority
    • Coke,
    • Hale,
    • Hawkins,
    • Foster,
    • Blackstone
    • and East
  • Criminal Code Act 1995 (Cth) (Criminal Code Act (Cth)).
    • Crimes Act 1914 (Cth)
    • Crimes Act 1900 (NSW) (Crimes Act (NSW))
    • Code states removed common law, Not SA, NSW, or VIC
      • Can still use other cases from other states, but not binding just persuasive
• Different Kinds of Defenses
  • Self-defence
    • Statutory only defence
    • accused’s conduct was objectively necessary to defend themselves or another from serious harm
  • Duress
    • operates on the basis that it is unfair to convict somebody,
  • Necessity
    • operates where the defendant’s conduct was carried out in response to circumstances of sudden or extraordinary emergency.
  • Mistake
    • Ignorance of law is not excuse
    • defendant’s honest and reasonable mistake of fact will operate as an excuse for certain types of offence
      • Offenses of strict liability
• DIFFERENT KINDS OF CRIMINAL OFFENCES
  • Summary offences
    • Dealt in Local Court NSW, magistrate w/o jury
      • Don’t exist in common law, created by parliament
    • Typically maxes at 2 years imprisonment
  • Indictable offences
    • NSW district court and SCNSW
    • Judge and jury
      • Jury answers tests/questions that judge provides
    • All common law offences are indictable.
  • Punishment
    • Often offenses are referred to by punishment, such as prison or not
      • If not, fines or community based order
    • Also between cases with a fault element (mens rea) and those that do not
      • Typically only matters the higher the penalty
      • Absolute liability offences
    • No mens rea for lesser crimes
      • Known as strict liability offenses
  • Categories of Offenses
    • Person Offenses
      • Victim is a person
        • Murder
        • Assault
        • Rape
      • Further distinguished between
        • Fatal
        • Non-fatal
        • Sexual offences
        • Status of victim
          • Police or paramedic
        • Offences against Government
          • Treason
          • Sedition
          • Terrorism
        • Offenses against Justice Syste,
          • Perjury
          • Contempt
        • Public Order
          • Good order of public spaces
        • Subject matter
          • Drug offences
          • Federal telecom offences
        • Regulatory offences
          • amoral actions
            • Ex: changing gas meters
          • Malum in se
            • conduct that is wrong in itself
          • Malum prohibitum
            • Conduct that is wrong because prohibited
    • Property offences
      • Victim is directly property
    • All handled by AFP or Police for state
      • AFP do not handle day to day issues
      • Terrorism is a preparatory offense, once it happens, charged with whatever happens
    • Criminal Trial Courts Bench Book - magistrate resource
• Who can commit crimes
  • Infancy
    • Legal persons
      • No mens rea
      • Under 7 cannot commit crime historically
      • Now 10 years old cannot be held
        • Children (Criminal Proceedings) Act 1987 (NSW) s
        • Until 14 fall under presumption of doli incapax (incapable of wrongdoing)
          • Doli capax
            • Capable of wrongdoing
          • Have to know conduct is wrong (insanity)
          • Must prove if 10-14 years that they knew was wrong
• Immunities — the Sovereign, etc .
  • King is the fountain of justice’ and ‘the King can do no wrong’
  • While not true, reigning Sovereign cannot be put on trial in the courts for a crime.
  • In Oz, same for Gov-gen and govs until they exit office
    • Have constitutional convention relieving responsibility on advice of ministers
  • Diplomats immune from criminal process and extradition, but not incapable of committing a crime
• CRIMINAL PROCEDURE
  • The law of criminal procedure
    • is essentially the law governing the prosecution of criminal offences in the courts.
    • Law governing Criminal Procedure Act (NSW)(CPA)
    • Criminal law protects the state and public, tort is for people
  • The investigation of criminal offences
    • formal criminal legal process only commences once a charge is filed in court.
    • Police investigation is primarily concerned with,
      • first, ascertaining whether there is evidence that a crime was in fact committed and,
      • second, whether there is sufficient evidence to warrant charging a person with that offence
      • Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Pt 4.
  • Arrest, charge, prosecution and infringement notices
    • After a reasonable period post-arrest, the police must either charge the person or release them without charge.
      • If a person has been arrested and charged, the police may then release the person unconditionally and they will be summoned to court in due course.
    • Bail Act 2013 (NSW)
      • If a charged person has been refused bail, they are remanded in custody (that is, returned to custody) and kept in detention (‘on remand’) until the end of their case.
    • Most charges filed in lower courts, even indictable
    • Local or lower courts may be simpler, faster, low cost, and lesser sentencing than higher courts
      • Met with limited jurisdiction, and no jury
    • District courts receive jury trial, more thorough consideration
      • But more complex, longer, costlier, greater sentencing
    • ‘summary procedure’.
      • a magistrate sitting without a jury and deciding both questions of law and fact.
    • Typically committal hearing in the lower court to determine whether there is evidence of sufficient weight to support a conviction.
    • infringement notice
      • minor nature such as parking offences
  • The criminal trial process
    • First is the arraignment, in which the accused is formally asked by the court whether they plead guilty or not guilty to the charge
    • Prosecution opening then defense opening
    • Prosecution “examination-in-chief ” - direct
      • Cross-examination next
      • Objection rules found in Evidence Act 1995 (NSW)
      • After all prosecution witnesses called, Defense may argue no case’ submission;
        • the accused argues there is not enough evidence to support a verdict.
        • Judge must decide if there is a case to answer (not deciding guilt, just if response necessary)
    • Common for the accused not to call any witnesses and simply rely on the argument that the prosecution case does not prove beyond reasonable doubt that the accused is guilty.
    • Double jeopardy
      • Criminal Procedure Act (NSW) s 156
      • Can retry if acquittal was tainted or there is ‘fresh and compelling evidence’:
        • Crimes (Appeal and Review) Act 2001 (NSW) ss 99–106;
  • Sentencing
    • Crimes (Sentencing Procedure) Act 1999 (NSW)
    • Sentence
      • is an order, made by a judge, that something be done by or to a person found guilty of a criminal offence
    • Parole
      • is the conditional release of a prisoner from prison prior to reaching the end of their maximum term of imprisonment.
    • Non-parole period
      • is therefore a minimum term of imprisonment
    • Specific sentencing, such as through Drug Courts
      • Circle Sentencing in New South Wales
        • Indigenous style assistance
  • Appeals
    • Criminal Appeal Act 1912 (NSW)
    • appeal against sentence
      • sentencing was incorrect (excessive or misinterpreted
    • Appeal may be accepted due to mistake by judge in admitting hearsay evidence
    • Did not use to have criminal appeals
    • Supreme Court of Appeals
      • Leave of appellate court
    • Prosecution cannot appeal against an acquittal, but on a question of law
    • royal prerogative of mercy = acquittal
      • Correct mistakes in legal system
• Prosecution Guidelines Ch 1
  • Decision to prosecute
    • can it be said that there is no reasonable prospect of conviction on the admissibleevidence?
    • 2. is the prosecution in the public interest?
  • 1.3. Prospects of conviction
    • 1. are there reasonable grounds to believe any evidence might be excluded
    • 2. whether the prosecution witnesses are available, competent, compellable and reliable
    • 3. the credibility and reliability of other admissible evidence in the prosecution case
    • Arguments by accused
      • any inferences that may be drawn from circumstantial evidence
      • 2. whether the prosecution is able to exclude beyond a reasonable doubt any reasonable
      • hypothesis consistent with the accused being innocent
      • 3. any other matter that could impact on the prospects of conviction.
  • Factors
    • Offence-related factors
      • The seriousness, or conversely, the triviality, of the offence
      • 2. the prevalence of the offence in the community, whether it is of considerable public concern and the need to denounce and deter the offending behaviour
      • 3. whether the offence is obsolete or obscure
      • 4. the passage of time since the offence, having regard to its seriousness and the reasons for the delay
    • Accused-related factors
    • Victim-related factors
      • State of victim/mental readiness
    • Sentencing factors
      • Will conviction stick
    • Other factors
      • 1. whether any resulting conviction would necessarily be regarded as unreasonable or a miscarriage of justice
      • 2. any mitigating or aggravating circumstances of the offence
      • 3. the availability and efficacy of any alternatives to prosecution, including disciplinary proceedings
      • 4. the availability of compensation, restitution, reparation or forfeiture to any person or body
      • following a successful prosecution, including any criminal compensation or confiscation
      • 5. whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute
      • 6. the need to maintain public confidence in basic constitutional institutions such as the Parliament and the courts
      • 7. any special circumstances that would prevent a fair trial from being conducted
      • 8. the likely length and expense of a trial if disproportionate to the seriousness of alleged offending
      • 9. the age, physical health, mental health or special infirmity of an essential witness.
  • Exceptions to offer and acceptance
    • Offer and acceptance analysis is the orthodox approach
    • Sometimes issue = if contract formed at some point
    • Court can find that contract formed despite no clear offer/acceptance
      • Protracted negotiations w parties start performing as key terms are agreed
      • Long-term contractual relationships w parties make ad hoc variations
    • Inferring contracts from conduct
      • Integrated Computer services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988)
        • Whether conduct of the parties shows a tacit understanding or agreement
        • Must prove all essential elements of express contract
      • Brambles Holdings Ltd v Bathurst City Council (2001)
        • Council owned solid waste disposal site
        • Brambles tendered to manage it
        • 1985: brambles started accepting liquid last
        • Sept 1991: Council requests Brambles increases fees for disposing liquid waste and remitting them to the Council
        • October 1991: Brambles says that no contract for disposal of liquid waste & current tip fees make it unviable to continue
        • October onwards: Brambles charges for disposal of liquid waste at rates proposed in September letter
        • Did the october letter reject Council offer in September letter
        • Judge found
          • Was not rejection, expressing dissatisfaction and leaving room to negotiate
  • Battle of the Forms
    • Battle of the Forms
      • Where parties purport to offer and accept by imposing their standard terms on the other side
      • Butler Machine Tool Co Ltd v Ex-Cell-O Corp (England) Ltd [1979]
        • Butler provides quote to sell machinery
          • All order accepted only upon and subject to terms set out in our quotation and following cond. Terms and conditions shall prevail over any terms and conditions in buyer order
          • Terms contained a price escalation clause
        • Ex-Cell-O responds w/ own form
          • Contained ack to be signed and returned
          • Conflicting terms
          • No price escalation clause
        • Ex-Cell-O signed and returned ack w/letter
          • Machinery would be ‘delivered in acc w our revised quotation of 23 May’
        • Butler relied on price escalation clause to charge another 3k
        • What terms were in the contract
        • Judge found
          • Last shot fired approach,
            • Winner is last party that fired off terms and received acceptance w/o objection
          • Scrap it
            • If too different, just redo it
          • Found that Ex-Cell-O won, last shot fire method
          • Could have mashed all terms together or no contract at all
  • Electronic transactions
    • Electronic Transactions Act 2000 (NSW)
      • Interpretation
      • S 5
        • Electronic communication
          • Comm in form of data, text, or images by means of guided or unguided electromagnetic energy or both
          • Comm of info in form of sound by means of guided or unguided electro energy, or both, w sound processed at dest by auto voice recog sys
        • Transaction
          • Anny trans in the nature of a contract, agreement, or other arrangement
      • S 7
        • Validity of electronic trans
          • A transaction is not invalid bc took place partly or wholly electronically
      • S 9
        • Signature
          • Signature of a person is required, method must be used to id person and indicate person’s intent in respect to info communicated and signature must be accepted by both parties in method described (online)
          • Luxottica Retail Australia Pty Ltd v 136 Queen Street Pty Ltd trustee under … [2011]
      • Time of receipt
        • Email is instrrant comm, acceptance effective when received by offerer
        • S 13A(1)
          • Electronic com sent to a designated address
          • Electronic comm sent to ‘another’ address
        • Receive means
          • When capable of being retrieved by addressee at that address
          • When address has become aware that it was sent to that address
      • Invitation to treat regarding contracts
        • Proposal to form contract made through 1+ ecomms
          • Not addressed to one+ specific parties
          • Generally accessible to parties using info systems
      • The object of this Act is to provide a regulatory framework that—
        • (a) recognises the importance of the information economy to the future economic and social prosperity of Australia, and
        • (b) facilitates the use of electronic transactions, and
        • (c) promotes business and community confidence in the use of electronic transactions, and
        • (d) enables business and the community to use electronic communications in their dealings with government.
    • Electronic Transactions Act 1999 (Cth)
    • General common law rules apply to ET
      • Offer
      • Acceptance
      • Intention to be bound,
      • Etc
    • Objective assessment
      • Not a code on electric transactions
      • Common law continues to apply
• RP v The Queen (2016)
  • Further dimension of proof of knowledge of serious wrongness as distinct from mere naughtiness’
  • [n]o matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts’
  • In R v M (1977) 16 SASR 589, it was established that this requires proof the child understood that the act or omission was wrong according to the ordinary standards of reasonable people.
    • however, that proof of the acts constituting the offence, even if it is an act that is obviously wrong, cannot be used alone to rebut the presumption of doli incapax.
    • Evidence of family background, educational level and social environment may also be adduced to gain an overall picture of the child’s capacities:
  • Legal capacity
    • culpability of someone for their criminal acts
• R v ALH (2003) 6 VR 276 at 281
• evidence of the acts that constituted the offence could not be used alone to rebut the presumption were wrong and should not be followed
• Common form of evidence comes from child police interaction
  • However more likely to make false confessions and admit to wrong thing.
• Children’s Court Act 1987 (NSW);
• Insanity defense became mental illness mental impairment
  • will need to show on the balance of probabilities that the accused cannot be held criminally responsible for their actions and that they should be detained in a hospital for treatment
• Corporations
  • corporation is a legal person and, as such, may be convicted of a crime
  • corporation will be liable for the criminal acts of its officers or employees if it can be shown those acts were, in reality, the acts of the corporation.
  • R v Andrews-Weatherfoil Ltd [1972] 1 All ER 65; [1972] 1 WLR 118.
    • Part 2.5 of the Criminal Code Act (Cth) contains a statutory regime for the prosecution of corporations under federal law.
• ELEMENTS OF CRIMINAL OFFENCES
  • Manslaughter thus developed as an exception to murder where the killing occurred without malice aforethough
  • Wilson v R (1992) 174 CLR 313
  • Began providing excuses for killing
    • accident,
    • self-preservation
    • and insanity
• Actus reus
  • The first element in establishing liability for an offence is often known as the actus reus.
  • the mind thinks and the body obeys
  • Actus reus is the crime that is being commited (physical), such as battery - using harmful force to inflict harm
    • Includes conduct
• Conduct, omissions, circumstances and results
  • actus reus is often thought of as referring to the act the accused committed.
  • May also be conduct crimes
    • The act alone is sufficient
  • Often proof that defendant caused the actus reus is necessary
    • Prove the defendant committed murder
• Voluntariness
  • Voluntary and intended actions are taken into account
    • Mens rea and choice in matter are mitigating factors
      • Ex: sneezing fit, swarm of bees, sleepwalking
    • Automatism
      • Crime committed in dissociative state or in a state of impaired consciousness.
• Mens rea
  • Following actus reus, mens rea needs to be established
    • Mens rea = fault element
      • the intention or knowledge of wrongdoing
• THE BURDENS AND STANDARDS OF PROOF

  • Law and fact

    • Judge
      • Question of law
    • Jury
      • Question of fact
    • If no jury, judge does both
    • Onus = burden of proof

  • The two burdens

    • The legal burden
      • refers to the rules directing the trier of fact, the jury or, in cases tried without a jury, the judge on what to do if they are unable to determine where the truth lies.
      • who will lose the case if he does not make this proposition out,
      • Typically falls to prosecutor
    • The evidential burden
      • Ensure all defendants are judged by the same principles.
      • Judge will direct jury to rule in certain way if not appeased with evidence
        • If in a simple case with no evidence, judge not satisfied directs jury to not guilty
      • duty of producing evidence
      • Judge - voir dire - evaluates if evidence is permissible
        • Prejudicial than probative

  • Incidence of the evidential burden

    • constituent elements of the crime charged are concerned, apart from statute, the prosecution always bears the evidential burden (99% time)
    • Must prove guilt regardless if accused has a defense
    • But, ‘General defences’ (self-defence, provocation, duress, necessity, honest and reasonable mistake of fact etc), the evidential burden is placed upon the accused.
      • Shifted burden to defense, then shifts back to prosecution

  • Incidence of the legal burden

    • the person who makes a claim must establish it.

  • Standard of proof

    • Balance of probabilities (51%)
      • Evidential burden - reasonable possibility
    • Beyond a reasonable doubt (90%)

  • The ‘golden thread’ - beyond reasonable doubt footnote NSW

    • Woolmington v Director of Public Prosecutions [1935] AC 462
      • that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception
      • Presumption of innocence
      • set the standard for the burden of proof in criminal cases.

  • Statutory exceptions

    • Exceptions to general rule (obiter)
      • the defence of insanity,
      • and special provisions made by statute.

  • Doctrine of transferred intent

    • when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held responsible

  • Ryan and Jiminez

  • R v Ryan;

    • accused gets a gun, convenience store robbery, points gun at owner, gets distracted, reflex action gun goes off.
      • Was firing the gun voluntary or involuntary
    • Continuing act - Was found guilty due to series of acts that accused consciously did
      • Further back you go, the bigger surface area for defense to attack

  • Jimenez

    • driving, falls asleep hit someone
    • Charged with dangerous driving, fell apart bc not dangerous when got in the car, only dangerous when involuntarily asleep.
      • Dangerous definition
        • in a way that causes, or is likely to cause, death or serious injury.
    • Only during sleep could be considered dangerous
    • Negligent manslaughter charge would have stuck
    • Continuing act would have been proper method

  • Fagan v Metropolitan Police Commissioner

    • Guy got pulled over, cop did not like where he parked.
    • Police got out, and told person where to go
    • Driver accidentally drove onto constable foot, but stayed
    • When yelled at to move, man said F you, you can wait
    • Appeal found that omission to act cannot be actus reus for assault
      • Initially an unintentional act, converted to intentional
      • Found that purposely delaying removal of car is not omission, but is a positive act to not remove
      • Mens rea can be formed after actus reus, just need to coincide

  • Temporal coincidence

    • The mens rea and the criminal act or omission that brings about the other non-mens rea elements of the offence must exist at the same point in time
    • The intent must be at the same time as the crime - overlap

Week 2A:

• Actus Reus
  • Causation
    • Often proof that defendant caused the actus reus is necessary
      • Prove the defendant committed murder
      • Actus reus is generally a positive act
        • Rarely can be an omission
        • Dependant on voluntariness
  • Voluntariness
    • Voluntary and intended actions are taken into account
      • Mens rea and choice in matter are mitigating factors
        • Ex: sneezing fit, swarm of bees, sleepwalking
      • Subjective mens rea is the intent to do the act or a recklessness as to its consequences
      • Mens rea typically includes
        • Intentional
        • Reckless
      • Partial mens rea
        • Intent to do the action (actus reus) but not the result.
        • Throw something, did not mean to do damage
    • Automatism
      • Crime committed in dissociative state or in a state of impaired consciousness.
      • R v Falconer (1990) 171 CLR 30
        • Prosecution will presume this act was voluntary unless there is evidence to the contrary
        • If automatic, not liable
  • Subjective Blameworthiness
    • Subjective Blameworthiness
      • knowledge and/or intention of wrongfulness.
      • actus non facit reum nisi mens sit rea
      • an act does not make one guilty unless the mind is guilty
      • Vicious will
        • Popular offences and defenses fall under this traditional banner - infancy, duress, mental impairment, etc
  • A theory of human action
  • Austinian doctrine
    • human act is a muscular contraction resulting from the operation of the mind or will.
  • The changing concept of mens rea
    - argued that a person cannot properly be blamed for some transaction (and hence be regarded as possessing a mens rea in regard to it) unless, at the time the person willed the muscular contraction that produced the particular
  • The problem of negligence
    • a failure to comply, in a given activity, with the standard of care a reasonable person engaging in that activity would adopt.
    • Higher degree in criminal than civil
  • Strict liability
    - crimes created by such statutes are called crimes of strict (or absolute) liability.
    • drink driving is a class of strict liability offence
    • Knowledge of being over limit does not matter
  • Fitzjames Stephen’s view
  • Mens rea was unhelpful and misleading (not absolute)
    • He held that each case has it’s own level of mens rea, and is subject to case-by-case discretion
• Evidence of the mental element
  • Obvious intent is not really open to interpretation
    • Picking a wallet means that they want to permanently deprive that person of property
  • Subjective and objective standards
    • determining a person’s thoughts or desires on a
    • given occasion:
      • (a) by asking that person; or
      • (b) by considering what a reasonable person, behaving as that person was seen to behave on that occasion, would have thought or desired in order to produce such behaviour.
    • Subjective standard
      • Facts of the case
        • Subjectivity test is where the ordinary prudence of a person is tested according to the specific facts and circumstances of the case in question.
    • Objective standard
      • The reasonable person standard
        • In an objective test, the prudence of a person is tested by comparing it with that of any other hypothetical reasonable person with the equal development of mind and senses.
    • Criminal liability refers to the outcome of a criminal trial
      • — the judgment that an individual has (or has not) committed the actus reus of an offence with the requisite mens rea
    • criminal responsibility;
    • that is, the assumption that as subjects of the criminal law all individuals have certain cognitive, moral and volitional capacities.
• Types of mens rea
  • Intent
    • decision to bring about the prohibited consequence or outcome of the actus reus
    • R v Moloney [1985] AC 905
    • The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent,
    • Director of Public Prosecutions v Morgan [1976] AC 182
      • modern notion of intent, as it constitutes an element of common law and statutory offences, is not static but variable, depending on the nature of the offence as constructed
      • Relevant standard of mens rea to be intent to have intercourse without consent
      • A belief, however mistaken or unreasonable, if honestly held, will mean that the accused no longer possesses the intent necessary for conviction.
    • Nedrick v R [1986] 3 All ER 1;
      - jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.
    • R v Woollin [1999] 1 AC 82
      • intent was further stated in terms of a high degree of appreciation of the outcome
  • Basic and specific intent
    • Director of Public Prosecutions v Majewski [1977] AC 443
    • House of Lords considered the consequences of the distinction between crimes of basic and specific intent in so far as it related to the ‘defence’ of intoxication
    • Rejected in R v O’Connor (1980) 146 CLR 64; 2
      • defined basic by contrast to specific intent
      • crimes of specific intent include those where
        • the ‘act charged should have been done to achieve a particular purpose’
        • murder
      • Offences of basic intent may therefore be characterised as crimes where
        • the accused does not intend a ‘particular purpose’.
        • Manslaughter
        • Can be rape
        • Offensive language
      • NSW Parliament Pt 11A of the Crimes Act (NSW):
        • restore the distinction between offences of basic and specific intent
        • for the purpose of the availability of the defence of intoxication
  • Recklessness
    • used to denote a lesser state of mind than intent.
    • Depending on offence, possible or probable outcome onus
    • R v Crabbe (1985) 156 CLR 46
    • recklessness involves a positive knowledge that a consequence will probably come about
    • R v Kitchener (1993) 29 NSWLR 69
    • In sexual assault and rape cases, a failure to turn one’s mind to whether or not the complainant consents is deemed to be reckless and is referred to as non-advertent or inadvertence recklessness
  • Negligence
    • ‘criminal negligence’
    • Nydam v R [1977] VR 430
      • offence of manslaughter by criminal negligence drew from notions of breach of duty in tort, but further developed the standard to one that required the accused to exhibit a degree of wickedness.
        • Test:
          • prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow.
      • R v Lavender (2005) 222 CLR 6
        • A person who intends to bring about an undesirable outcome or who is reckless as to the possibility of that outcome but proceeds anyway is more culpable than a person who negligently causes the same outcome
  • Coincidence of actus reus and mens rea
    • Where an offence requires both mens rea and actus reus, the two must overlap in time = contemporaneity
    • R v Darrington [2016] VSC 60
      • need for coincidence between actus reus and mens rea
      • Man shot another person, either self-defense or accident, then shot again to mercy kill
        • Held that to be murder, depriving of chance to survive
• DEFENCES AND EXCEPTIONS
  • Mental state defences
    • Moreover, if the person is unable to control their actions because they are asleep or unconscious, the law will exculpate them on the basis that their actions were involuntary.
    • if the person is suffering from a sufficiently severe mental impairment, they will not be criminally responsible
    • involuntary intoxication may, on occasion, be sufficiently severe to result in an acquittal, either on the basis that the defendant’s actions were involuntary or that they were unintentional.
  • Partial defences
    • Extreme provocation, substantial impairment by abnormality of mind (diminished responsibility), excessive self-defence and defensive homicide are all examples of partial defences.
  • Self-help defences
    • because of the existence of some overwhelming need or necessity.
    • self-defence, duress and necessity
  • Defences of ‘mistake’
    • Mistake of consent in rape
    • Mistake of under-age victim under honest belief of age
    • Ignorance of law does not count

Week 2B:

• Murder

  • Unlawful homicide
  • Requires specific states of mind

• Manslaughter

  • Unlawful homicide, same actus reus as murder

• The importance of murder

  • Sets the standards for other crimes as they are the most detailed cases
  • Institutional writers are very influential on this matter
  • Three types of homicide
    • Justified
      • No share of guilt at all
    • Excusable
      • Very little fault
  • Fatal offences against person chart
    • Felonious
      • Large guilt
        • Suicide
        • Murder
        • Manslaughter
  • Definition of homicide
    • s 33 of the Human Tissue Act 1983 (NSW)
      • Irreversibe cessation of all function of brain
      • Irreversible cessation of circulation of blood in person’s body
    • Edward Coke murder definition
      • .. when a man of sound memory and of the age of discretion unlawfully kills any reasonable creature in being, and under the King’s peace, with malice aforethought, either express or implied by the law, the death taking place within a year and a day
      • Found is s 18 Crimes Act 1900 NSW
      • Breaking down the quote
        • ‘Of sound memory and of the age of discretion’
          • ‘Sound memory’ merely means ‘sane’ or ‘not mentally impaired
          • Appropriate age to be held culpable
        • Unlawfully kills
          • Must be justifiable or excusable, now the same thing
        • ‘Any reasonable creature in being’
          • Reasonable means human
          • Must be born “in being”
        • ‘Under the King’s peace’
          • Jurisdictional limit
        • ‘With malice aforethought, either express or implied by law’
          • Intention to kill or cause harm
          • Recklesness as to death
          • Express malice is intent
          • Constructive murder
            • malice is ‘implied by law’ when the law treats a person as if they had the relevant state of mind when in fact they did not (or, at least, it is not proved that they did).
        • ‘Within a year and a day’
          • Proving causation, especially after long time
          • Now Crimes (Injuries) Amendment Act 1990 (NSW), inserting a new s 17A into the Crimes Act (NSW).
      • The contemporary elements of murder
        • 18(1)(a) of the Crimes Act - statutory definition of murder
        • (1)
          • (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life,or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years
      • in New South Wales, murder is committed when:
      • 1. the accused’s voluntary act or omission causes the death of another human being; and
      • 2. the accused’s act or omission is accompanied by:
        • a. intent to kill; or
        • b. intent to cause grievous bodily harm; or
        • c. reckless indifference to human life.
      • Or if killing in progress of another crime worth 25+ years
        • This is constructive murder
      • In New South Wales, murderous recklessness encompasses only reckless indifference to death, not grievous bodily harm.
  • ACTUS REUS OF MURDER
    • Who can be murdered
      • a child en ventre sa mere (in the womb) is not ‘in being’.
      • Baby must be breathing, coughing, or sneezing traditionally used
        • Functioning off it’s own organs, even if still dependant on another person
          • R v West [1848] ER 78; R v Iby (2005) 63 NSWLR 278
          • Unlawful homicide, once out of womb it becomes human life
            • R v Martin (1995) 13 WAR 472
      • The identity or status of the human being who is killed is not part of the elements of murder. In principle, all human beings are equally potential murder victims.
      • DPP v Debs & Roberts [2003] VSC 30, in sentencing two offenders for the murder of two police officers in the course of their duty
        • Life in prison to protect police to serve the community
      • Killing a sovereign is a species of treason
      • Animals do not have personhood for murder
        • Falls under animal cruelty laws
  • Death
    • Murder and manslaughter are result-based offences: they are defined (in part) as conduct that causes, or results in, a certain outcome or event, namely the death of a human being.
      • Law does not care what happens after death
    • First, if victim is already dead, then no murder
      • Secondly, unless actual death, then no murder
        • Attempted murder is a separate charge
  • Conduct causing death: acts and omissions
    • General provisions as to what can cause death
      • Conduct must be voluntary
      • ‘Conduct’ encompasses both acts and omissions to act
    • ‘innocent agency’ — the person who did the direct killing is innocent and is a tool for murderer if no intent to kill
      • offering and inciting are the acts that will satisfy the conduct element of murder, even though they are not the acts that directly cause the
    • Accused could have chose to preserve life and had a legal duty, but chose not to
      • This is omission, still murder
      • Includes assuming care of someone
      • Very rare
      • Similar to negligent manslaughter
  • Conduct must be voluntary
    • The prosecution in a murder or manslaughter trial must prove that the accused’s conduct was voluntary.
    • Automatism is not involvd
  • Case Summary:
    • Case Name: Ugle v R
    • Citation: (2002) 211 CLR 171; 189 ALR 22
    • Jurisdiction: SCWA → High Court of Australia
    • Procedural History:
      • Appellant was tried for wilful murder in the Supreme Court of Western Australia.
      • Deceased died from a knife wound to the chest, and appellant was holding the knife at that time.
      • Appellant claimed self-defense, stating he was trying to fend off the deceased who was attacking him with a cricket bat.
      • Section 23 of the Criminal Code (WA) was relevant, which states a person is not criminally responsible for an act or omission occurring independently of their will or for an accidental event.
      • Trial judge didn’t provide a direction to the jury about unwilled acts.
      • Appellant convicted of murder and appealed to the Supreme Court of Western Australia.
    • Material Facts:
      • Appellant was holding a knife when the deceased sustained a fatal chest wound.
      • Appellant claimed self-defense, asserting he was trying to fend off the deceased who was attacking him with a cricket bat.
    • Issue Raised by Material Facts:
      • Whether the act of inserting the knife into the body of the deceased was a voluntary act willed by the appellant.
    • Judges’ Opinions:
      • Gummow and Hayne JJ focused on the interpretation of section 23 of the Criminal Code (WA) and whether the knife insertion was a voluntary act willed by the appellant.
      • Parker J in the Supreme Court of Western Australia pointed out that the trial judge’s directions did not address whether the knife insertion was an act independent of the appellant’s will.
      • Gaudron, Kirby, and Callinan JJ delivered separate judgments agreeing that the jury should have been directed about unwilled acts.
    • Legal Reasoning and Ratio:
      • The key question was whether the knife insertion was a voluntary act or an act independent of the appellant’s will.
      • The trial judge’s directions about the use of the knife as a weapon and the intention behind the fatal blow assumed the act had been done in the exercise of the appellant’s will.
      • The jury should have been directed to consider whether the act of inserting the knife was independent of the appellant’s will.
      • The issue of whether an automatic motor action is an involuntary or unwilled act is a question for the jury.
    • Result:
      • The High Court allowed the appeal and ordered a new trial.
      • The case highlighted the importance of addressing the issue of unwilled acts and causation in murder cases, both under the Criminal Code (WA) and at common law.
  • Causation
    • Proving that the accused’s conduct caused the death of the victim is a pivotal part of any homicide trial.
    • Causation
      • attribution of legal responsibility
      • Key case: Royall v The Queen (1991) 172 CLR 378
        • an accused’s conduct will have caused a result if it ‘contributed significantly’ to that result or was ‘a substantial and operating cause’ of that result.
        • complicating factor include:
          • a natural event, for example the incoming tide (R v Hallett [1969] SASR 141:
          • actions or choices of the victim,
            • for example fatally injuring themselves when trying to escape the accused (R v RIK [2004] NSWCCA 282; Royall v R (1991) 172 CLR 378);
            • leaving a hospital against medical advice: R v Bingapore (1975) or refusing medical treatment, such as a blood transfusion, on religious grounds: R v Blaue [1975] 3 All ER 446; [1975] 1 WLR 1411;
          • actions of a third party, for example
          • poor medical treatment exacerbating the victim’s injury (R v Smith [1959] 2 QB 36);
          • a police officer shooting at the accused but hitting the victim whom the accused was using as a human shield (R v Pagett (1983) 76 Cr App Rep 279).
        • Question becomes
          • complicating factor new intervening act (novus actus interveniens) that ‘breaks the chain of causation’?
    • the ‘but for’ test,
      • certain conduct (C) will be shown to be a cause of a particular result (R) if it can be shown that ‘but for’ C, R would not have
        • aka test for factual causation
      • Causation-in-fact is not causation-in-law.
    • Case Summary:
      • Case Name: R v Hallett
      • Citation: [1969] SASR 141
      • Jurisdiction: Supreme Court of South Australia
      • Original Dispute:
        • Appellant convicted of the murder of Whiting.
        • Appellant admitted to beating Whiting unconscious and leaving him on the beach.
        • Pathologist concluded that Whiting drowned in shallow water.
      • Current Reason for Trial:
        • Appellant argued that he did not directly drown Whiting and therefore did not cause his death.
        • Claimed to have hit Whiting due to homosexual advances, and both had been drinking.
      • Material Facts:
        • Appellant beat Whiting unconscious and left him on the beach.
        • Whiting’s body was discovered buried in the sand, with removed genitals and inflicted post-mortem injuries.
      • Issue Raised by Material Facts:
        • Whether the appellant’s actions were the cause of Whiting’s death by drowning.
      • Judges’ Opinions:
        • Bray CJ, Bright, and Mitchell JJ discussed the question of causation and the appellant’s responsibility for Whiting’s drowning.
        • They considered the effect of the appellant’s actions and subsequent events leading to drowning.
      • Legal Reasoning and Ratio:
        • The question of causation arises when an accused inflicts injury on a victim and some other act or event intervenes before death.
        • The court referenced Smith and Hogan’s Criminal Law (1st ed, 1965), indicating that causation hinges on whether the accused’s action was the substantial cause of death.
        • Differentiates between cases where death from a subsequent act/event was the natural consequence of the accused’s act and cases where it wasn’t.
        • Provides examples of situations where an accused might not be held liable for homicide, e.g., if an earthquake causes death after an assault.
        • The court emphasized that foreseeability of death is relevant to malice aforethought but not causation.
        • Explains that the act of the accused, consciously performed, should have a substantial causal effect that persists until the event, without being interrupted.
        • an accused should not be held to be guilty unless his or her conduct induced the victim to take action which resulted in harm to him or her and that harm was either intended by the accused or was of a type which a reasonable person could have foreseen as a consequence of the accused’s conduct.
      • Result:
        • The court upheld the trial judge’s direction on causation.
        • Rejects the argument that the appellant’s act of leaving the victim unconscious on the beach broke the chain of causation.
        • Confirms that the appellant’s actions in reducing Whiting to unconsciousness initiated the events leading to drowning.
        • The appeal on the question of causation fails.
    • This case clarified the legal concepts of causation in relation to criminal acts and subsequent events leading to death.
      • It emphasized that the accused’s initial actions and their connection to the event’s occurrence are key factors in determining causation.
  • Royall v The Queen (1991) 172 CLR
    • Background
      • The case involves the assessment of whether the applicant is responsible for the death of the deceased. The applicant’s violent actions led to the deceased’s demise after a struggle, raising questions about causation and the applicant’s mental state.
    • Facts
      • The applicant attacked the deceased, prompting her to lock herself in the bathroom. The applicant forcibly broke down the door, resulting in a struggle that culminated in the deceased falling out of a window and dying.
    • Tests
      • operating and substantial cause doctrine
        • This test requires that the accused’s act or omission must have been the operating and substantial cause of the prohibited consequence (in this case, the victim’s death) for criminal liability to be established.
        • Substantial and operating cause (SOC test)
          • Large enough to meaningfully contribute to death
          • Ongoing and still have an effect on the cause of death
          • Work backwards: Barman died due to the fire caused by lighting newspapers
      • However, in cases where the harm to the injured person would never have occurred but for a subsequent act of the victim or a third person. One test which has been used in this class of case is to ask whether the intervening act was a voluntary act or abnormal occurrence which amounted to a novus actus interveniens which broke ‘the chain of causation’.
    • Royall tests
      • Reasonable foreseeability test
        • Looks forward to determine whether conduct of D made the result reasonably foreseeable
      • Natural consequences test
        • `similar to rf test,
        • was V’s conduct a ‘natural’ response to D’s act?
          • Good for when victim does something, ex: jumps out a window
      • Substantial and operating cause test
        • Large enough to meaningfully contribute to death
        • Ongoing and still have an effect on the cause of death
        • The only non-hypothetical test, based on the facts, so preferred test
    • Legal Principles
      • The court analyzed whether a reasonable connection existed between the applicant’s actions and the deceased’s death.
      • The foreseeability of death as a consequence of the applicant’s conduct was central.
      • The court also examined the applicant’s state of mind at the time of the events, particularly focusing on the intention to kill or inflict harm.
    • Causal Link and Intent
      • The court established that a causal link between the attack and the death existed if the death was a reasonably foreseeable outcome of the attack. The applicant’s actions induced fear in the deceased, potentially leading her to jump out of the window to evade violence.
    • State of Mind and Accountability
      • The court considered whether the applicant had the intent to kill, cause harm, or was recklessly indifferent to the deceased’s life.
      • The court rejected arguments that lack of specific intent to kill or foreseeing the exact manner of death could absolve the applicant. The court highlighted that creating a situation intending harm resulting in death still held the applicant responsible.
    • Causation and Timing
      • The court clarified that the relevant state of mind need not align precisely with the moment of death.
      • The trial judge’s directions, suggesting the opposite, were deemed incorrect.
      • The state of mind only had to accompany the act leading to death.
    • Conclusion
      • The court granted special leave to appeal, considering significant legal principles discussed.
      • However, the appeal was dismissed, affirming that the applicant’s actions reasonably led to the deceased’s death.
      • The court emphasized the relevance of the applicant’s state of mind to this outcome and clarified the temporal aspect of the relevant state of mind.
  • Jurisdictional issues
    • In New South Wales, there is now jurisdiction where there is ‘a territorial nexus’ between the state and the offence: Crimes Act (NSW) s 10C, inserted by the Crimes (Application of Criminal Law) Amendment Act 1992
    • Ward v R (1980) 142 CLR 308;
      • top of a steep bank of the River Murray, on the Victorian side of the river,
      • shot and killed the deceased who was fishing by the river’s edge, some 30 feet below
        • High Court held that the Victorian court did not have jurisdiction, the killing having taken place in New South Wales
      • not where the physical act of the accused is performed, but where that act takes effect upon its victim that determines the locus of a homicide.
    • R v Graham
  • The actus reus of murder involves multiple elements that must be established to prove the defendant’s culpability. Actus reus elements typically include
    • Causation: The defendant’s actions must have directly caused the death of the victim. Causation focuses on the cause-and-effect relationship between the defendant’s conduct and the victim’s death.
    • Conduct: The defendant’s conduct refers to the specific actions they took that resulted in the death. This involves detailing what the defendant did and how their actions led to the fatal outcome.
    • Outcome: The outcome element refers to the fact that the victim died as a result of the defendant’s conduct. This establishes that the result was a direct consequence of the defendant’s actions.
  • Case Summary:
    • Swan v The Queen [2020] HCA 11
      • Background: The case involves the question of the appellant’s responsibility for the death of the victim, Mr. Kormilets.
      • The appellant, along with an accomplice, violently attacked the victim during a home invasion, causing severe injuries.
      • The victim’s subsequent quality of life was poor, and he eventually died from complications arising from a fractured hip.
      • The prosecution presented three causal pathways linking the appellant’s conduct to the victim’s death.
    • Facts: The appellant and an accomplice attacked Mr. Kormilets during a home invasion, causing severe injuries. The victim’s quality of life declined, and he eventually broke his left femur. After deciding not to operate, he died from complications related to the fracture.
    • Tests: The case deals with the concept of causation and the establishment of a causal link between the appellant’s conduct and the victim’s death.
    • Legal Principles: The prosecution presented three possible causal pathways to the jury, focusing on the decline in the victim’s quality of life due to the appellant’s initial assault.
      • The High Court affirmed that the law allows for a relevant causal link between the accused’s conduct and death, even if multiple steps, including decisions by victims, family members, and doctors, are involved.
  • • Causation and Decision-Making: The crucial point was whether the appellant’s attack caused a significant decline in the victim’s quality of life, leading to a decision not to medically intervene to prevent death from subsequent events.
    • Jurisdictional Issues: The case highlights the territorial jurisdiction of states in cases where the act leading to death occurs in one state, but death occurs in another.
      • Legislation varies across states regarding jurisdiction in such cases.
    • Mens Rea of Murder: The text also briefly touches on the mens rea (mental element) of murder in New South Wales and Victoria, mentioning the different alternatives of intention and recklessness encompassed within this element.
  • R v Smith [1959] 2 QB 36,
    • if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.
    • if the deceased had received proper treatment after he was stabbed, there was a 75 per cent chance he would have recovered.
  • Evans and Gardiner (No. 2),
    • Died 11 months after stabbing
    • Scar tissue from surgery - should have been diagnosed and treated (could be cured)
    • upheld the applicant’s convictions for murder.
    • abnormal treatment could be regarded as a supervening event which broke the causal chain
  • R v Blaue [1975] 1 WLR 1411
    • chain of causation was not broken because the victim of a stabbing, who was a Jehovah’s Witness, had refused to have a blood transfusion which would probably have saved her life
    • Religion did not stop the injury from being stabbers fault
      • Those who use violence on other people must take their victims as they find them.
      • This in our judgment means the whole man, not just the physical man.
      • Take the victim as you find them, eggshell principle
  • Malcherek and Steel
    • Two cases involving defendants charged with murder due to inflicted injuries and subsequent medical treatment.
    • In the first case, defendant stabbed his wife, leading to hospitalization; she later died after life support removal.
    • In the second case, defendant attacked a girl, causing severe head injuries; she died after life support disconnection.
    • Both defendants argued life support disconnection caused deaths.
    • Defendants’ appeals dismissed; court emphasized competent medical treatment doesn’t absolve assailant if original injury remains a significant cause of death.
    • Precedent from R v Malcherek; R v Steel [1981] 2 All ER 422 supported court’s decision.
    • Original injury’s causative impact persists despite medical decisions if it contributes to victim’s death.
  • R v Jordan (1956) 40 Cr App R 152
    • a stabbing wound was stitched up but the victim died a week later.
    • death had not been caused by the stab wound but by the introduction of terramycin after the deceased
    • had shown that he was intolerant of it and by the intravenous introduction of abnormal quantities of liquid which led to broncho-pneumonia from which the victim died
    • Did not allow this evidence in as it would preclude jury from saying that they were satisfied that death was caused by the stab wound’
  • Homicide law table

Week 3A:

• Mens rea of murder
  • Malice aforethought originally to intention and recklessness
  • La Fontaine v R (1976)
    • Said old definition is still relevant
  • R v Crabbe
    • Knowledge vs. Probability:
      • An accused’s act, when knowing death or grievous harm is probable, aligns with an intent to kill or harm.
    • Probability vs Possibility:
      • Murder is considered when death is a probable outcome, not just possible.
    • Reckless Indifference:
      • Being indifferent to potential harm doesn’t equate to murder.
      • Knowledge of probable harm is key.
    • Wilful Blindness:
      • Intentionally avoiding the truth, yet nearly certain of outcomes, may equate to having mens rea.
    • Social Utility’s Role:
      • Acts with a valid social purpose might be justifiable, influencing mens rea determination.
    • Court’s Decision Impact:
      • Ensuring clear understanding of mens rea is vital in jury decisions; as seen when a retrial led to a murder conviction.
  • Intention to kill
    • R v Moloney [1985] AC
      • judge should avoid any elaboration or paraphrase of what is meant by intent,
    • possessing an intent to kill someone is to meant to kill someone by one’s act, or to have someone’s death as the purpose or design of one’s act.
    • Willmot (No 2),
      • intention is not the same as desire or wish
      • Intent vs volition
    • Zaburoni v The Queen (2016) 256 CLR
      • prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in the conduct.
      • Purpose does not = motive
        • Purpose directly addresses the act itself and its intended result - purpose is to kill business partner
        • Motive is the reason behind the purpose - to remove debt by killing partner
      • Intent means desire for an outcome
    • ‘oblique intention’.
      • Conduct knowing a particular outcome is certain
        • Bomb to destroy airfract for insurance money, knowing people will die
        • Direct pupose is to destroy aircraft
        • Not recklessnesss, but is intention
  • Intention to cause grievous bodily harm
    • Murder includes an intention to inflict grievous bodily harm in NSW
    • R v Rhodes (1984) 14 A Crim R 124
      • Do not want to define grievous bodily harm other than generic for jury.
      • Cut off air supply to girl in motel
    • Director of Public Prosecutions v Smith [1961] AC 290.
      • GBH definition
      • intention to cause grievous bodily harm’ means, in the law of murder, intention to cause bodily injury of a really serious kind:
    • Grogan v R [2016] NSWCCA 168
      • here a victim’s injuries only suggest a ‘moderate’ degree of force was used, an intention to inflict grievous bodily harm cannot be inferred
    • Grievous bodily harm definition s 4 Crimes Act 1900
      • the destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform Act 2019) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and
      • (b) any permanent or serious disfiguring of the person, and
        • Concussion
        • Suffocation
        • Knockout
        • Broken bones
        • Permanent disfiguration
      • (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).
  • Recklessness concerning death
    • reckless indifference to human life (New South Wales)
    • Campbell v R [2014] NSWCCA 175
      • the act causing death was done by the accused person in the knowledge of the probability that that act would cause death
    • Reckless murders requires that the accused must know that death was probable
      • To do this, jury will consider age, education, social background, emotional state, sobriety, etc.
      • Must be probable that the action would cause death
    • R v TY (2006) 12 VR 557,
      • 14 year old struck with steel tip umbrella killed someone
      • judge failed to distinguish expressly between the mental elements of reckless murder and manslaughter by unlawful and dangerous
      • Reckless murder elements:
        • The accused caused the death of the deceased.
        • The accused ought and must have foreseen the consequences of the act contemplated
          • Taking circumstances such as age and background into consideration
  • Recklessness concerning really serious injury
    • R v Solomon [1980] 1 NSWLR 321
      • murder under s 18 (1)(a) of the Crimes Act does not encompass recklessness as to any form of bodily injury (other than death).
  • ‘Transferred malice’
    • R v Newman [1948] VLR 61
    • if a man, intending to murder one person, kill a third person, even if the killing of the third person is unintended, he is guilty of the murder of the third person.
    • R v Saunders and Archer (1577)
      • Husband gave wife poisoned apple
      • Wife shared apple with child
      • Husband stood by and made a miniscule effort to save his child he loved
      • Watched them both eat the apple
      • Convicted of murder
  • Contemporaneity of mens rea and actus reus
    • Temporal coincidence
      • Thabo Meli v R [1954] 1 All ER 373
        • Knocked dude out after giving beer in hut, rolled him over cliff, man died of exposure
        • Mens rea and actus reus never coincided
          • Two actions were seperate
            • Attack in hut
            • Place body outside afterwards
        • Judge dismissed appeal, cannot get away with no intent just because they thought they already killed him
          • Temporal coincidence did not apply here
          • When they assaulted him, they had intent and actus reus
  • CONSTRUCTIVE MURDER
    • murder to cause death in the course of committing a felony or while resisting lawful arrest:
      • Included in s 18(1)(a
    • Known as constructive murder or felony murder
  • Jayasena v The Queen [1970] AC 618
    • Defendant burden to raise the ‘reasonable possibility’ of the defence.
  • Defenses to murder
    • NSW has partial defences
      • extreme provocation,
      • substantial impairment by reason of abnormality of mind,
      • surviving a suicide pact,
      • or excessive self-defence
      • 12 months - infanticide
  • Criminal Code (Cth) does in its definition of recklessness at s 5.4:
    • ‘A person is reckless with respect to a result if:
      • (a) he or she is aware of a substantial risk that the result will occur; and
      • (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk’.
    • Doctor saving life due to risky surgery is higher purpose
    • R v Faure [1999] 2 VR 537
      • Russian roulette death is not thigher purpose, even with same odds of death
      • taking a risk that it is unjustifiable to take in those circumstances
      • 16% chance at first shot, increases each round.
      • Substantial and real, not remote chance
    • R v Schonewille [1998] 2 VR 625.
      • Summarise the facts in this case.
        • The accused, a 15-year-old boy, was charged with the murder of a 61-year-old woman.
        • He stabbed the victim during a robbery.
        • He pleaded guilty to manslaughter, defending that he lacked the intent to cause death or grievous bodily harm.
        • The accused’s defense was based on statements he made to the police.
        • The trial judge told the jury they could consider the credibility of these statements in deducing the accused’s intent.
          • The judge further redirected the jury by saying people generally intend the outcomes of their actions.
        • The accused was convicted of murder.
      • Why would the prosecution have argued an intention to kill in this case?
        • Had the knife in advance
        • Stabbed the woman with the knife
        • took the knife with him after stabbing
      • On what grounds did the defence argue a lack of intention to kill?
        • One stab of knife is not intent
        • Stabbed in the back, in a scuffle
        • Could not deny beyond reasonable doubt
      • Intent to kill/gbh: The prosecution must prove that their position is the only reasonable inference on the facts
        • R v Perks (1986) 41 SASR 335
  • R v Ravindran (No.4) [2013] NSWSC 1106
    • Guilt must not only be a rational inference, but it must be the only rational inference that the proven facts enable me to draw.
    • Everything was circumstantial evidence
    • Strong evidence of father suicidal tendancy, killed himself, son beat the father when “dead” which killed him.
      • Prosecution did not have provable intent

Week 3B: Voluntary Manslaughter

• Manslaughter is traditionally divided into two forms: voluntary manslaughter and involuntary manslaughter.
  • Actus reus is the same as murder
  • Mitigating circumstances include
    • extreme provocation (in New South Wales
    • excessive self-defence
    • and substantial impairment by abnormality of mind in New South Wales,
    • Killing pursuant to a suicide pact
    • infanticide
    • (where a biological mother kills her child due to mental disturbance)
    • can be dealt with as an offence in itself or raised as a partial defence reducing murder to manslaughter
  • INFANTICIDE
    • Infantcide
      • s 22A of the Crimes Act (NSW).
      • under the age of 12 months
        • due to not having fully recovered from the effects of childbirth or due to the effects of lactation.
      • Prosecution has the onus of proving the offence beyond reasonable doubt: R v Hutty [1953] VLR 338 at 339;
    • R v MB [2014] NSWSC 1755
    • found mother to be unfit to be tried,
    • accused raised the partial defence of infanticide
    • the effect of giving birth to the child’ and the ‘effect of lactation’
      • disturbance of mind that the accused claims ‘must be by reason solely of her not having fully recovered from the effect of the process of giving birth’ (emphasis in original).
    • because of the significance of other factors, the accused could not rely upon s 22A.
      • Partially schizo aggravated by baby
  • Defence of Substantial Impairment by abnormality of mind:
    • Substantial Impairment by abnormality of mind
      • in some instances, culpability is reduced but not abrogated where the accused has a mental impairment that affects them in a particular way at the time of the offence.
      • s 23A of the Crimes Act (NSW).
        • at the time of the killing, the accused was suffering from an abnormality of the mind that arose from an underlying condition with a legally recognised cause.
        • Must be extremely substantial, and not able to control themselves, or understand events
  • EXCESSIVE SELF-DEFENCE (DEFENSIVE HOMICIDE)
    • EXCESSIVE SELF-DEFENCE (DEFENSIVE HOMICIDE)
      • killing in defence was not a reasonable response in the circumstances.
        • must have believed, at the time of the killing, that the conduct was necessary to defend themself, or another.
      • a form of voluntary manslaughter
  • PROVOCATION AND EXTREME PROVOCATION
    • Extreme provocation
      • a killing under extreme provocation provides a partial defence for murder, resulting in a conviction of manslaughter: Crimes Act (NSW) s 23(1).
      • In 2014, amendments were introduced by the Crimes Amendment (Provocation) Act 2014 (NSW)
        • changing the name of the partial defence to ‘extreme provocation’ and making the requirements of the defence more stringent.
        • The amended provision introduced a new objective test.
          • For the partial defense to be available, the acts or omissions of the deceased must constitute extreme provocation to an ordinary person, and the accused must have lost self-control in response to these acts or omissions.
        • Exclusions:
          • The amendment explicitly excluded certain situations from the definition of “extreme provocation.”
          • For instance, non-violent sexual advances and the discovery, knowledge, or belief of a person’s sex or sexual orientation cannot be raised as grounds for extreme provocation.
        • Inducing or inciting one’s own death:
          • Acts done by or words used by the deceased that were incited by the accused for the purpose of providing an excuse to use violence against the deceased are also excluded from the grounds of extreme provocation.
    • rationale for provocation
    • Manslaughter with the proper mens rea for murder
      • However formed mens rea as a loss of self-control due to provocative conduct
      • Cannot be premeditated
        • Parker v R (1963) 111 CLR 610
    • If not capable of controlling themselves, it is actually automatism
      • Must still have been possible to control actions during passion
    • Purpose of provocation is providing an appropriate offence label (that is, manslaughter) that reflects the lesser-degree of culpability of the offender
  • The partial defence of extreme provocation has three aspects:
    • (1) there was a ‘trigger’; that is, there was an act of the deceased towards or affecting the accused that amounted to a serious indictable offence, and that is not excluded by s 23(3);
    • (2) this trigger caused the accused to lose self-control (which is assessed subjectively); and
    • (3) the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased (which is assessed objectively)
  • Procedural issues
    • Extreme provocation becomes relevant only if the prosecution has otherwise proven all the elements of murder.
  • Trigger for the loss of self-control
    • Triggers for provocations
      • ‘Conduct of the deceased towards or affecting the accused’
      • R v Davis (1998) 100 A Crim R 573.
        • Killed someone that stepdaughter told assaulted her and 5 year old neice.
        • Davis killed deceased while sleeping later days
          • Held in R v Quartly (1986) 11 NSWLR 332, that hearsay provocation does not amount to provocative conduct within the meaning of the Crimes Act (NSW).
    • ‘Serious indictable offence’
    • conduct of the deceased must constitute a ‘serious indictable offence’
    • According to the Crimes Act (NSW) s 4(1), a serious indictable offence is an ‘indictable offence that is punishable by imprisonment for life or for a term of 5 years or more’
  • Exclusions
    • The conduct was only a non-violent sexual advance to the accused
      • Green v R (1997) 191 CLR 334; 148 ALR 659 (at 6.40C), Green killed the deceased after the deceased made an unwanted homosexual advance towards him
        • unlikely that the kind of homosexual advance that occurred in Green could amount to a serious indictable offence
      • the High Court held that words alone could amount to provocation and that it was not necessary for there to be a physical act to give rise to the defense.
  • The accused incited conduct
    • In R v Allwood, the accused deliberately sought out the deceased and was determined to have a confrontation.
      • Only if the hostile reaction goes beyond the reasonably predictable can provocation that is itself provoked be fit for consideration by a jury.
  • Words alone?
    • After 2014, the requirement in s 23(2)(b) that the provocative or ‘triggering’ conduct by the deceased must amount to a serious indictable offence (discussed at 6.31) is likely to prevent an accused from successfully raising provocation in many situations involving words alone
    • Moffa v R (1977) 138 CLR 60
      • Wife became indifferent to husband, wife was going to leave family
      • Begged wife not to leave family
      • Insulting words Moffa v The Queen (1977) 138 CLR 601, 620-621 Mason J requires “close scrutiny of claims of provocation founded in words, rather than in conduct.” b/c words easier to fake claim
    • R v R (1981) 28 SASR 321
      • Woman was not present, but daughters were raped by husband
      • Killed husband
        • Judge found that jury should have decided bc she was not present, almost hearsay
  • The ‘trigger’ caused the accused to lose self-control
    • There must be some evidence that the accused was, in fact, acting under provocation.
    • accused cannot assert that the situation would have aroused the ire of another, although it in fact left them unmoved.
  • Timing between the triggering conduct and the (actual) loss of self-control
  • Provocation includes ‘slow-burn’ response to long-term domestic violence: see R v Muy Ky Chhay (1994) 72 A Crim R 1.
    • does not remove the requirement that the accused must have subjectively lost self-control
  • Self-induced intoxication and the loss of self-control
    • However, self-induced intoxication is now irrelevant to this question.
      • This is set out in s 23(5) of the Crimes Act (NSW),
  • The ordinary person test
    • The law requires that the conduct of the deceased could have caused an ordinary person to lose self-control (the ordinary person test), to ensure there is a control on the circumstances that can reduce murder to manslaughter.
    • From Stingel v R (1990) 171 CLR 31
      • Then
        • Masciantonio v R (1995) 183 CLR 58; 129 ALR 575;
        • R v Mankotia (2001) 120 A Crim R 492),
        • the High Court adopted a two-stage approach to the ordinary person test.
          • The first stage
          • determine the gravity of the provocation assessed from the perspective of the accused
          • The second stage
          • a court must ask whether an ordinary person could have lost self-control to such an extent as to form the intention to kill or inflict grievous bodily harm and to act upon that intention as the accused did.
    • Removed two-stage test
      • Section 23(2)(d) requires that ‘the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.
  • Singh v R [2012] NSWSC 637
  • Chamanjot Singh was sentenced to just six years in prison for repeatedly slitting his wife’s throat with a box cutter after she threatened to leave him and have him deported back to India
  • Sentenced to manslaughter, could not refute explanation
  • R v Lawrence [1980] 1 NSWLR 122;
    • accused individuals were convicted of conspiring to import a significant amount of cannabis into Australia.
    • One of the accused claimed he had been under duress due to threats, which compelled him to participate in the criminal venture after discovering its illicit nature.
    • The trial judge had rightly considered both the subjective state of the accused and the objective test based on an “average person of ordinary firmness.”
  • Taiapa v R (2009) 240 CLR 9
    • Taiapa had a drug-related debt of $60,000 to his dealers, Tony and Salvatore.
      • When he couldn’t repay the debt, the dealers threatened Taiapa’s partner’s life if he approached the police.
    • Compulsion could not be held due to accused’s belief that police could not protect him
    • The lack of faith in police to protect his familyt was not sufficient to claim compulsion in committing the crime
  • R v Turnball
    • 70 year old farmer held grudge against compliance officer for farm purposes
    • Shot compliance officer when trying to run away

Week 4A: Involuntary Manslaughter

• Involuntary manslaughter is the category of unlawful homicide where an accused lacks the mens rea for murder, but is regarded by the law as sufficiently culpable that they should still be held responsible for the death.
  • (1) unlawful and dangerous act manslaughter (UDA); and
  • (2) manslaughter by gross negligence
    • Manslaughter by omission
• Unlawful and dangerous act manslaughter
  • confine the concept of ‘unlawful act’ to those acts that are subject to criminal punishment and not simply to civil liability,
  • Accepted since R v Franklin (1883) 15 Cox CC 163.
  • R v Larkin [1943] 1 All ER 217
    • unlawful act must also be ‘dangerous’, and defined a dangerous act as one ‘likely to injure another person’.
  • R v Church [1966] 1 QB 59
  • Unlawful act must reasonably subject the other person to this risk of harm, including minor harm
  • Wilson v R,
    • unlawful and dangerous act manslaughter is the only true common law manslaughter in cases where no question of criminal negligence is present.
    • After Cumming’s arrival the appellant punched the deceased in the face.
    • He fell backwards and struck the back of his head on the footpath.
    • He died as a result of that blow. Cumming went through the deceased’s pocket and took a wallet containing some money.’
    • Cumming then “smashed [the deceased’s] head on the concrete … twice
• Gross negligence manslaughter
  • Gross negligence manslaughter
    • a person kills another by either an act or omission with a high degree of carelessness
  • tort law cannot be applied to the crime of manslaughter.
  • R v Lavender
  • wicked negligence
• Gross negligence manslaughter: negligent omissions
  • Manslaughter by criminal negligence
    • a failure to take steps needed to preserve life in situations in which the accused was under a legal duty to take such steps.
• Based on Wilson v R, prosecution must prove
  • prosecution must prove:
    • 1. an unlawful act;
    • 2. that caused the death of the victim; and
    • 3. that a reasonable person would realise that the unlawful act was exposing others to an appreciable risk of serious injury, that is, that it was objectively dangerous.
    • An act performed in self-defence is not an unlawful act (R v Cornelissen [2004] NSWCCA 449) a
    • prosecution identify a specific unlawful act was confirmed in Burns v R (2012) 246 CLR 334
  • Causation: the unlawful act must cause the death of the victim
    • Burns v R
      • whether the supply of drugs caused the death of the victim
      • if the victim injected themself with drugs supplied by D, then D would not be guilty of manslaughter by unlawful and dangerous act.
        • Breaks the chain of causation with a voluntary act
        • R v Dalby [1982] 1 All ER
  • Appreciable risk of serious injury
  • a jury must assess whether the act was such that a ‘reasonable person would realize that it was exposing others to an appreciable risk of serious injury’
• Supply of drugs causing death
  • New South Wales has created a new offence of supply of drugs causing death:
    • Crimes Act (NSW) s 25C.
      • A person is guilty of an offence under this section if:
        • the person has supplied a prohibited drug to another person for financial or material gain;
        • the drug is self-administered by another person
          • (whether or not the person to whom the drug was supplied); and
        • the self-administration of the drug causes or substantially causes the death of that other person.
      • Section 25C(1)(b) explicitly circumvents Burns v R
        • Does not break chain of causation if person consumes drugs themselves
• NEGLIGENT MANSLAUGHTER
  • Nydam v R, R v Lavender found the following
    • Liability for negligent manslaughter is based on causing death by an act or omission that falls so far short of the standard of care required of a reasonable person that it is worthy of criminal punishment
    • Negligent manslaughter requires risk of injury of gbh
    • Defendant punched once and man died from head injury
      • No intention to kill
      • No reckless indifference
  • Negligent act
  • Where negligent manslaughter is due to an act, the elements of the offence are specified in Nydam v R [1977] VR 430.
  • prosecution must establish that:
    • D’s acts were voluntary;
    • D’s acts caused V’s death; and
    • there has been a gross departure from the standard of care of a reasonable person, amounting to criminal negligence.
  • Negligent omission
    • R v Lavender (2005) 222 CLR 67 test of negligent manslaughter by omission,
    • D must be under a legally-recognised duty to act;
    • D must have omitted to fulfil this duty, or ‘breached’ the duty, in a way that exhibited a great degree of negligence as required by the doctrine of negligent manslaughter; and
    • as a result of this omission, V died
  • Gross criminal negligence
  • The prosecution must identify a legal duty to act. At common law, legal duties to act have been found in:
    • parent–child relationships:
      • R v Russell [1933] VLR 59 (see note 3(b) below);
    • voluntary employment in an occupation that bears upon public safety:
      • R v Lowe (1850) 175 ER 489;
    • voluntary assumption of care for helpless persons:
      • R v Instan (1893) (at 7.20C);
      • R v Taktak (1988) 14 NSWLR 226 (see 7.26 , note 1 );
      • R v Stone & Dobinson [1977] QB 354 (at 7.22C ); and
    • cases where D has created a situation of danger by dealing with dangerous things or doing dangerous acts:
      • R v Miller [1983] 2 AC 161;
      • R v Styman;
      • R v Taber (at 7.24C)
  • Duty of care
    • R v Moore [2015] NSWCCA 316
    • duty of care could arise if the following facts were established beyond reasonable doubt.
      • (a) That a reasonable person in the position of the appellant would foresee a risk of serious injury being occasioned to the deceased by reason of the wall not being braced.
      • (b) That the deceased was vulnerable in the sense that he was unaware of the danger presented by the unbraced wall.
      • (c) That the respondent had assumed responsibility for safety on the site.
      • (d) That the respondent had control over the site and the ability to direct that steps be taken to secure the wall.
      • (e) That the wall could be braced at little cost or inconvenience
  • R v Instan [1893] 1 QB 450
    • Caretaker niece did not take aunt to doctor, she was the only one who knew of aunt’s condition, but only brought necessities.
    • Aunt died from exhaustion from the gangrene
  • R v Taber & Styman [2005] NSWSC 1292.
    • Defendants Peter David Taber and Ian Craig Styman were found guilty of manslaughter in a court case in New South Wales, Australia.
    • The victim, Joy Golbie Alchin, was found bound and gagged in her home, and the defendants were accused of robbing and restraining her before her death.
    • The court quashed the defendants’ previous convictions for murder and ordered a new trial for manslaughter.
    • The defendants were sentenced to concurrent sentences for aggravated robbery and manslaughter.
    • The judge considered factors such as remorse, guilty pleas, and assistance to the police in determining the sentences.
    • The sentences were backdated to the date of arrest and included non-parole periods.
    • The omission to call and speak with 000 is relevant because they ower her a duty of care due to placing her in the position of the first place
• R v Stone & Dobinson
  • Facts: Stone and Dobinson were an elderly couple living in England.
    • Fanny, Stone’s sister, came to live with them.
    • Fanny had some mental and physical health issues.
    • Over time, her health deteriorated, and she became bedridden.
    • The couple made some attempts to care for her but did not seek adequate medical assistance or other help.
    • Fanny eventually died from malnutrition and other complications.
• Taktak (1988) 14 NSWLR 226
  • Heroin addict procures two prostitutes for his heroin dealer for a party
  • She was in the hotel lobby, public space, when they took her, it stopped other people from helping her as she was no longer in public
    • This is where duty of care activates
  • Dealer calls up defendant because one of the girls is in a bad state
  • T takes her back to a private residence and tries to wake her, pours water, slaps, pumping her chest and giving her mouth to mouth
  • Took her to hospital at 10am next day
    • Found not guilty on appeal because there was no evidence about whether he had taken her to hospital she would have survived or when she tied etc.
• Unlawful Act Manslaughter
  • R v Cato - 1976
    • Heroine and water mix that duo gave each other
    • Administering a noxious substance rather than administering a drug
    • Possession did not cause death, administration did
      • Administration was the unlawful act
  • Mitchell [1984]
    • Mitchell applied force to person X, X fell backwards and accidentally killed a person by breaking femur
      • Substantial and operating cause blames mitchell
  • Goodfellow (1986)
    • Lived in public housing, set fire to his house after evacuating almost everyone in order to get moved, was prevented from rescuing people as planned
      • Not enough to get him off charges

Week 4B:

• Homicide chart

• Homicide problem-solving tips
  • How to identify a homicide problem question?
    • A homicide fact scenario involves a victim who has died.
      • It asks you to assess whether the defendant is criminally liable for that person’s death.
    • In this subject, you can assume that fact scenarios take place in NSW, and therefore the relevant law that will apply is NSW legislation, including the Crimes Act 1900 (NSW) and applicable caselaw.
  • Problem-solving: Murder, Involuntary manslaughter and Assault Causing Death
    • For homicide scenarios,
      • ordinarily, after assessing the defendant (D’s) liability for murder, and assessing the elements success of any partial defence(s) D will raise, you will need to consider the appropriate ‘back up’ offence(s)
      • Involuntary manslaughter. They are:
        • Unlawful and Dangerous Act manslaughter (Wilson);
          • alternative, assault causing death (s 25A).
            • Intentional hitting’ (like a punch, a strike, a beating, a head-butt or a slap).
        • Negligent manslaughter, noting that this offence can be committed by way of a positive act (Nydam; Lavender) or an omission (Taktak
        • both types of involuntary manslaughter (e.g. Taber; Burns);
        • or only one type (e.g. Taktak
  • Overal format of essay
    • Step 1.
      • assess the defendant’s liability for the offence of murder.
    • Step 2.
      • whether the defendant will raise any partial defences (if the facts raise a partial defence)
      • Becomes voluntary manslaughter
    • Step 3.
      • on the chance that the prosecution is unsuccessful in proving murder, the prosecution will be able to prove (an) alternative homicide charge(s)
  • Sample structure
    • Introduction
      • Address:
        • Appropriate charges,
        • any partial defences raised,
        • sources of these,
        • applicable burdens
        • and standards of proof
    • Charge 1 [Specify] Elements of Charge 1
      • Analyse each element separately, applying the law to the fact, using headings:
        • Actus reus elements (remember to characterise the act and always address voluntariness)
        • Mens rea elements
        • Temporal coincidence (Actus reus/mens rea at the same time)
        • Mini conclusion
    • Partial Defence 1
      • Analyse each element in turn by applying the law to the facts
      • Mini conclusion
    • Repeat analysis of defence or offence as necessary
      • Note that your answer will have to be adapted to the elements of the offence/defence under consideration
    • Overall Conclusion
      • Based on your reasoning, will the defendant be convicted?
        • Of which offence(s)?
        • Will any defence(s) be successful?
        • What is the result?
• AGLC4 rules
  • A full stop should appear at the end of every footnote.
  • Short quotations should use single quotation marks and be integrated into the body of the text.
    • Longer quotations (4 lines or more) should be indented, in a smaller font size, and appear without quotation marks
  • Footnotes should generally appear after the punctuation at the end of a sentence.
  • The first citation of a source should appear in full.
    • Ibid should be used to refer to a source in the immediately preceding footnote, including any pinpoints.
  • ‘The King’ or ‘The Queen’ should be abbreviated to ‘R’ when it is the first named party (e.g. R v Reid [2007] 1 Qd R 64).
    • When the Crown is the respondent, ‘The Queen’ or ‘The King’ should be written in full (e.g. Honeysett v The Queen (2014) 253 CLR 122)

Week 5: Assault and Related Offences

• assault
  • A Treatise of Pleas of the Crown - assault def
  • assualt is any attempt or offer with force and violence to do a corporal hurt to another, whether from malice or wantonnes
  • R v Lynsey [1995] 3 All ER 654.
    • Combines battery and assault for criminal law
    • Assault
      • covers both the psychological consequences of an act, or fear of an imminent threat, and an unlawful physical touching, or battery
  • COMMON ASSAULT
    • the slightest touching can ground an assault
      • (Collins v Wilcock [1984] 3 All ER 374; [1984] 1 WLR 1172)
      • However something more is needed to establish the offence of common assault
  • Intention and recklessness
    • either intent or recklessness is required in order for there to be an assault:
      • Fagan v Metropolitan Police Commissioner [1969] 1 QB 439
  • The victim’s mental state
    • does not matter whether the victim was or was not conscious of what was being done
    • State v Barry (1912) 45 Mont 598 that to point a rifle from behind at a victim who was unaware of what was going on was not an assault
    • Pemble v R (1971) 124 CLR 107;
      • Same facts as state v Barry but rifle discharged and victim killed
      • rifle had discharged accidentally
      • High court found if true, then UDA manslaighter
      • victim was unaware that the accused was threatening her with the rifle, an assault was not committed.
    • Brady v Schatzel [1911] St R Qd
      • victim testified that when the accused pointed a gun at him he did not try to protect himself because he did not think she would fire it.
      • Judge still found guilty of assault on the grounds that otherwise an accused’s liability would vary according to whether their chosen victim was timid or courageous.
    • Ryan v Kuhl [1979] VR 315
    • The accused thrust a carving knife through a hole in the partition between the neighboring toilet cubicle in order, he said, to stop the victim from annoying him.
    • sight of the knife had not frightened him, since he realised that the accused could not harm him with the knife while he remained in his cubicle.
      - SO NOT ASSAULT BECAUSE NO FEAR OF VIOLENCE
    • It is now established that it is an assault to point an unloaded gun if apprehension is thereby created:
      • R v St George (1840) 9 Car & P 483; 173 ER 921;
      • R v Everingham (1949) 66 WN (NSW) 122;
      • Logdon v Director of Public Prosecutions [1976
• Aggravated assaults
  • Aggravated assault is anything above common assault
  • Crimes Act (NSW) ss 25A–25B, 27–30, 32–60E
    • aggravated assaults fall into three classes:
      • (1) assaults that are accompanied by an intention of a particular kind or are performed in a particular manner;
      • (2) assaults committed on particular classes of person; and
      • (3) assaults that result in harm of a particular kind
• ELEMENTS OF ASSAULT
  • Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439;
    • To constitute the offence of assault some intentional act must have been performed:
      • a mere omission to act cannot amount to an assault.
      • Assault cannot be an omission
  • R v Miller [1983] 2 AC 161;
    • arson causing death is an offence under s 197A, and under ss 195–197 of the Crimes Act (NSW
    • ‘Whether the actus reus of the offence of Arson is present when a Defendant accidentally starts a fire and thereafter, intending to destroy or damage property belonging to another or being reckless as to whether any such property would be destroyed or damaged, fails to take any steps to extinguish the fire or prevent damage to such property by that fire?
• R v Patton [1998] 1 VR 7
  • The accused was convicted of a number of offences, including burglary arising from a spate of criminal activity over the course of an afternoon.
  • The Crown alleged the accused had entered a building as a trespasser with ‘intent to assault and injure a person (in the premises)’.
  • On appeal it was argued that the accused should not have been convicted of burglary because the intent relied on was an intent to commit a common assault, and that crime had been abolished in Victoria when the former s 37 of the Crimes Act (Vic) was repealed in 1985
    • we are satisfied that the Parliament did not intend, when it repealed s 37, to do more than remove the penalty which had been so prescribed.
    • The effect of the repeal was, we believe, to leave the offence of common assault as a common law offence capable of being tried on indictment and for which the penalty was at large.
• R v Venna [1976] QB 421;
  • The appellant was involved in a struggle with police officers who were attempting to arrest him.
  • The appellant fell to the ground and then proceeded to lash out wildly with his legs.
  • In doing so, he kicked the hand of one of the police officers, fracturing a bone.
  • The appellant claimed that he was kicking out in an attempt to get up off the ground, and that he did not intend his foot to strike the police officer.
    • The appellant was charged, inter alia, with assault occasioning actual bodily harm.
    • The trial judge directed the jury that they could find the appellant guilty if they found that he had lashed out with his feet ‘reckless as to who was there, not caring one iota as to whether he kicked somebody’.
    • The appellant was convicted, and appeale
  • Argued on R v Lamb [1967] 2 All ER 1282,
    • assault is not established by proof of a deliberate act which gives rise to consequences which are not intende
  • Argued on Ackroyd v Barrett (1894) 11 TLR 115
    • in support of his argument that recklessness, which falls short of intention, is not enough to support a charge of battery, and argued that, there being no authority to the contrary
  • However
    • R v Bradshaw (1878) 14 Cox CC 83 can be read as supporting the view that unlawful physical force applied recklessly constitutes a criminal assault
    • Did not support the arguments by appellant
• R v Coleman (1990) 19 NSWLR 467
  • Facts:
    • The defendant was charged with maliciously inflicting bodily harm with the intent to have sexual intercourse.
    • At trial, the jury was instructed that an act is considered reckless if the accused realized there was a possibility of injury but chose to proceed anyway.
    • The defendant appealed, arguing that recklessness should require the realization of a probability (or likelihood) of injury, not just a mere possibility.
  • Legal Context:
    • The High Court, in the case R v Crabbe, had clarified that for the crime of murder, the recklessness test should be based on the probability of causing death.
    • However, it was generally accepted in Australia that for statutory offenses other than murder, recklessness could be established if the accused realized that some harm might possibly result from their actions.
    • This distinction arose from cases like R v Cunningham and R v Mowatt.
  • Hunt J emphasized that the degree of reckless indifference required for murder is distinctly different from that needed for lesser offenses.
    • While the realization of the probable consequence of death is essential for murder, the same standard doesn’t apply to lesser crimes from a legal, logical, or commonsensical perspective.
  • Outcome:
    • The appeal was dismissed, with Finlay and Allen JJ concurring.
    • This means the court upheld the definition of recklessness as the realization of the possibility (not probability) of harm for the crime in question.
    • This essentially solidified the understanding that the test for recklessness in common assault is a subjective one.
      • The accused must have foreseen the possibility of the assault (even if they didn’t intend for it to happen).
• R v Campbell [1997] 2 VR 585
  • In a dispute involving the accused, a gun was discharged, injuring a man.
    • The accused was convicted of recklessly causing serious injury but appealed, citing jury misdirection by the trial judge on the nature of “recklessness.”
    • The Court of Appeal agreed, clarifying that the correct measure is knowing an injury “probably will” occur, not just “might” occur.
    • The appeal was allowed, and a new trial was ordered.
      • This interpretation was later supported in Victoria but rejected in New South Wales.
      • R v Coleman (1990) 19 NSWLR 467 is still the authority on reckless assault in NSW
• Rozsa v Samuels [1969] SASR 205
  • Background:
    • The appellant, a taxi driver, had a confrontation with another taxi driver, Drummond, after cutting in front of him in a taxi queue.
    • When Drummond threatened physical harm, the appellant responded by showing a table knife, threatening to use it if Drummond tried to attack.
    • The appellant was convicted of assault and appealed the decision.
  • Legal Discussion:
    • Judge Hogarth examined the nature of assault, specifically focusing on whether a conditional threat (i.e., “I will harm you if you do X”) can constitute an assault.
    • The core issue is whether an apparent threat can still be considered an assault if the threatening individual expresses conditions that may or may not lead to the actual use of force.
  • The judgment cites several past cases, including “Tuberville v Savage” and “State v Myerfield”.
    • These cases suggest that a gesture could be deemed non-assaultive if accompanied by words indicating no intent to use force.
    • However, a threat coupled with a condition may still constitute an assault, especially if the condition is unlawful or if the threat involves excessive force compared to what would be legally justifiable.
  • Judge Hogarth concluded that the primary test to ascertain if an assault occurred is to determine whether, if Drummond had acted on his threat, the appellant would have been justified in using the table knife in self-defense.
    • If the use of the knife would’ve been justifiable, then the conditional threat might not constitute an assault.
  • Outcome:
    • The appeal was dismissed, upholding the original conviction of assault.
• R v Salisbury [1976] VR 452
  • The accused had hit another man in the eye, causing the victim to lose most of the sight of that eye.
    • He was convicted of maliciously inflicting grievous bodily harm: Crimes Act (Vic) s 19A (now repealed).
  • On appeal it was argued the trial judge had erred in not directing the jury that they were entitled to find the accused guilty of one of the lesser offences of assault occasioning actual bodily harm or common assault.
    • The accused had not been charged with these offences, thus the question whether the trial judge should have given such a direction could only arise if an assault constituted an essential ingredient of the offence contained in s 19A.]
  • The injury does not need to have been caused by the accused personally assaulting the complainant.
    • This element will be satisfied even if s/he caused the injury indirectly
• R v Westaway (1991) 52 A Crim R 336
  • The applicant appealed against his conviction under s 16 of the Crimes Act (Vic) for intentionally causing serious injury to a child.
    • The applicant had been looking after the 1-month old child of his partner in their caravan, while his partner was out.
  • On the mother’s return, the child was found to have been injured; she had a fractured skull, brain damage and other injuries.
    • The applicant eventually admitted to hitting the child and to picking her up and throwing her.
  • The injury must have been intended (Westaway v R) AND
    • The prosecution must establish an intention to cause serious injury, not merely an intention to do an act which in fact causes serious injury
• R v Abdul-Rasool (2008) 18 VR 586
  • The applicant was convicted of reckless conduct endangering life.
  • In the course of an altercation in the office of the deputy principal of the school attended by the applicant’s daughter, the applicant poured petrol over herself, some of which splashed onto the deputy principal and an interpreter who was present.
  • At trial, the Crown submitted that in the applicant’s highly agitated state she may have lit the petrol by striking a lighter or matches she was carrying and setting fire to herself. On appeal against conviction
• R v Knight (1988) 35 A Crim R 314
• In the given circumstances, a threat of violence made over the phone could be a threat of immediate violence:
• Zanker v Vartzokas (1988) 34 A Crim R 11
  • It has also been held that threats made by a driver (the D) in a moving vehicle, where the V is a passenger, can create an apprehension of imminent harm for the purpose of (psychological) assault:
    • ‘there was no escape, no reasonable possibility of a novus actus interveniens to break the causal link between the threat and the expected infliction of harm’.
• CONSENT
  • Limits of consent
    • R v Brown [1994] 1 AC 212
      • Good law for what’s consensual, not good for whether sado-masichism is legal
      • The appellants belonged to a group of sado-masochistic homosexuals who, over a 10-year period from 1978, willingly participated in the commission of acts of violence against each other, including genital torture, for the sexual pleasure it engendered in the giving and receiving of pain.
        • The passive partner or victim in each case consented to the acts being committed and suffered no permanent injury.
      • The activities took place in private at a number of different locations, including rooms equipped as torture chambers at the homes of three of the appellants.
        • Video cameras were used to record the activities and the resulting tapes were copied and distributed among members of the group.
      • Lemplement
        • Argued for the ethics behind it, saying disgusting, corrupting, etc.
        • HIV information was not available, factor
      • Found it to be no different than Ritual circumcision, tattooing, earpiercing and violent sports including boxing, or sugery.
        • All are lawful activities.
      • Lord Mustill categorized the behaviour of the appellants as a matter of personal morality with which the criminal law should not be concerned
      • Found it a question of law, not ethics, and one answered by saying it was legal
• Sexual diseases
  • In R v Brown, the House of Lords was considering the question of the limits the criminal law places on that to which a person may consent.
  • In R v Clarence (1888) 22 QBD 23; [1886–90] All ER Rep 133, the Court for Crown Cases Reserved had considered the question of whether an apparent consent to sexual relations could be negated by the fact that, unbeknown to the person consenting, the other party was infected with a life-threatening sexually transmitted disease.
  • Aubrey v The Queen [2017]
  • appellant caused the complainant to contract HIV.
    • infecting another person with a sexually transmitted infection is within the definition of ‘maliciously inflicting grievous bodily harm’ under s 35(1)(b) of the Crimes Act (NSW).
• Boxing and other contact sports
  • Prize fights
    • (bare knuckle contests of indefinite duration, ending only when one contestant was unable to continue)
      • see R v Coney (1882) 8 QBD 534
    • have been illegal since the nineteenth century:
  • Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331
  • considered the legality of modern boxing contests.
    • civil action for damages in respect of injuries suffered to his eyesight
  • Used in r v brown as justification for society sanctioned violence
• Surgery and body modifications
  • Surgical operations are lawful when performed with the patient’s consent, even though the operation may be dangerous to life
    • A surgeon who operates on an unwilling patient commits an assault, no matter how selfless the surgeon’s motives might be or how great their concern for the patient’s well-being.
  • Human Tissue Act 1983 (NSW) s
  • Children and Young Persons (Care and Protection) Act 1998 (NSW) s 174
    • provides that for emergency medical treatment, a medical practitioner or dentist may carry out medical or dental treatment on a child (under 16 years) or young person (16 or 17 years) without the consent of the child/young person or their parent
      • if the medical practitioner or dentist ‘is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment on the child or young person in order to save his or her life or to prevent serious damage to his or her health’
• OTHER OFFENCES AGAINST THE PERSON
  • Affray
    • using or threatening unlawful violence towards another in circumstances where third persons of reasonable firmness, present at the scene, would fear for their own personal safety
    • Crimes Act (NSW) s 93C
      • In New South Wales, an offence of affray can be proven even where no persons are present, or likely to be present, at the scene of the threatened unlawful violence: Crimes Act (NSW) s 93C(4)
      • For public order purposes
    • I v Director of Public Prosecutions [2002] 1 AC 285.
      • (1) whether the overt possession of a weapon could constitute a threat of violence for the purpose of affray when it was not used or brandished in a violent manner;
        • Answer: the visible carrying in public of primed petrol bombs by a large number of what was obviously a ‘gang out for no good’
      • and (2) whether the threat of unlawful violence had to be towards a person or persons present at the scene
        • held that the threat of unlawful violence had to be directed towards a person or persons present at the scene.
  • R v St George (1840) 9 Car & P 483
    • It is now established that it is an assault to point an unloaded gun if apprehension is thereby created
  • Assault requires imminent unlawful contact - zanker
    • Assault elements
      • Psychic assault elements
      • Physical assault elements

Week 5B:

• Limits of consent
  • R v Brown [1994] 1 AC 212
    • The appellants belonged to a group of sado-masochistic homosexuals who, over a 10-year period from 1978, willingly participated in the commission of acts of violence against each other, including genital torture, for the sexual pleasure it engendered in the giving and receiving of pain.
      • The passive partner or victim in each case consented to the acts being committed and suffered no permanent injury.
    • R v Coney (1882) 8 QBD 534
      • Stephen J
        • The act of maim was unlawful because the King was deprived of the services of an able-bodied citizen for the defence of the realm.
        • If injury deprives “the public” of a resource, then consent does not matter
      • Hawkins J
        • though a man may by consent debar himself from his right to maintain a civil action, he cannot thereby defeat proceedings instituted by the Crown in the interest of the public for the maintenance of good order ..
    • Hawkins J
      • Society is entitled and bound to protect itself against a cult of violence.
      • Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.
    • Lord Mustill [dissenting]
      • The only question is whether these consensual private acts are offences against the existing law of violence.
      • Not a moral question, a legal one, morality is for parliament
  • R v Clarence (1888) 22 QBD 23
    • the Court for Crown Cases Reserved had considered the question of whether an apparent consent to sexual relations could be negated by the fact that, unbeknown to the person consenting, the other party was infected with a life-threatening sexually transmitted disease.
    • the opinion of the minority in R v Clarence is to be preferred
    • The wife consented to the sexual intercourse that occurred
      • wife did not, however, consent to the infliction of serious injury upon herself in the form of a potentially fatal disease.
  • Aubrey v The Queen [2017] HCA 18
  • High Court held that infecting another person with a sexually transmitted infection is within the definition of ‘maliciously inflicting grievous bodily harm’ under s 35(1)(b) of the Crimes Act (NSW).
  • R v Clarence (1888) 22 QBD 23 should no longer be followed.
    • Required: ‘direct causing of some grievous injury to the body itself ’ — a manifest, immediate and obvious occasioning of harm.
• Boxing and other contact sports
  • Prize fights have been illegal since the nineteenth century:
    • bare knuckle contests of indefinite duration, ending only when one contestant was unable to continue
    • R v Coney (1882) 8 QBD 534
  • Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331
    • The plaintiff brought a civil action for damages in respect of injuries suffered to his eyesight in the course of a professional boxing contest organised by the first defendant, Stadiums Pty Ltd
    • It is clear that an application of force during a sporting contest is legal where it is not in contravention of the rules of the game.
  • See week 5 for further details, surgery affray.
• Common Assault
  • Unloaded guns
    • Where the accused has brandished a gun at the victim, the prosecution may fail to establish that the gun was loaded.
      • Thus the fact must be taken in favour of the accused, that is, it must be assumed that it was not.
• AGGRAVATED ASSAULT
  • aggravated assaults fall into three classes:
    • (1) assaults that are accompanied by an intention of a particular kind or are performed in a particular manner;
    • (2) assaults committed on particular classes of person; and
    • (3) assaults that result in harm of a particular kind
  • Poisoning, for example, does not technically constitute an assault: R v Sherriff [1969] Crim LR 260.
  • Aggravated assault
    • non-fatal infliction or potential infliction of physical harm upon the victim
    • In Swan v R [2016] NSWCCA 79,
      • Garling J asserts the view that when assessing grievous bodily harm, it is not open to the jury to have regard to the personal, social and economic consequences of the injury, in addition to the physical effects of the offence
    • Haoui v R [2008] NSWCCA 209
      • No specific threshold that differentiates GBH from aggravated assault
    • Wick v R [2017] NSWCCA 244 p
      • severity of the tissue damage is evident from the surgeon’s description of the lacerations as “full thickness”, causing the victims face to be immediately “gushing with blood” (in Mr Danaher’s description) and requiring two layers of suturing
      • Quantity and quality of wounds indicated GBH
  • Assaults accompanied by particular intentions or performed in a particular way
    • The most important form of aggravated assault involving a particular intention is assault with intent to commit murder: Crimes Act (NSW) s 27
      • It is not sufficient that the accused acted with an intention to inflict grievous bodily harm even though that would be sufficient to render the accused guilty of murder if death resulted
        • R v Whybrow (1951) 35 Cr App R 141;
        • R v Grimwood [1962] 2 QB 621;
        • R v Bozikis [1981] VR 587 at 591),
    • nor is it sufficient that the accused acted with recklessness as to the possibility of death: R v Belfon [1976] 3 All ER 46
  • Assaults on persons of a particular class
    • assaulting a police officer in the execution of their duty: Crimes Act (NSW) s 60
    • R v Reynhoudt (1962) 107 CLR 381;
      • not necessary that the accused be aware that the victim is a police officer
    • Section 60A of the Crimes Act (NSW)
      • provides for assault and other actions against law enforcement officers (other than police officers), including prosecutors, and
    • s 60B provides for actions against third parties
      • connected with law enforcement officers, which makes it an offence to assault, stalk, harass or intimidate any person with whom a law enforcement officer has a domestic relationship, with the intention of causing the law enforcement officer to fear physical or mental harm.
    • Section 326 of the Crimes Act (NSW) provides for reprisals against judges, witnesses, and jurors: see R v Pender [2019] NSWSC 1814
  • Assaults resulting in harm of a particular kind: New South Wales
    • assault occasioning actual bodily harm (Crimes Act (NSW) s 59) and
      • ‘Actual bodily harm’ (abh) covers any hurt or injury calculated to interfere with the health or comfort of the victim, provided it is something more than merely transient and trifling: R v Donovan [1934] 2 KB 498 at 509
      • Examples include cutting a person’s hair (Director of Public Prosecutions v Smith [2006] EWHC 94)
      • or psychiatric injury (R v Chan-Fook [1994] 2 All ER 552;
    • wounding or inflicting grievous bodily harm (Crimes Act (NSW) ss 33, 35, 54)
      • Wounding def
        • Cutting or tearing of interior layer of skin, blood
          • R v Shepherd [2003] NSWCCA QCA 343
      • GBH is bodily harm of a really serious kind: Director of Public Prosecutions v Smith [1961] AC 29
      • Section 4 of the Crimes Act (NSW) defines grievous bodily harm
        • (a) the destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform Act 2019) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and
        • (b) any permanent or serious disfiguring of the person, and
        • (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).
• Domestic violence: partners and children
  • emancipation of wives in this regard was put beyond doubt by the Court of Appeal in
    • R v Jackson [1891] l QB 671,
    • and firmly restated in R v Reid [1973] QB 299.
  • parent (or person in the position of a parent; for example, a guardian) may inflict reasonable and moderate punishment on a child:
    • R v Terry [1955] VLR 114
  • Section 61AA of the Crimes Act (NSW) limits the extent to which a child can be physically disciplined
    • the physical force was applied by the parent of the child or by a person acting for a parent of the child, and
    • (b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.
  • Unless the force is trivial, it is not ‘reasonable’ if it is applied
    • (s 61AA(2)) ‘(a) to any part of the head or neck of the child,
    • or (b) to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period’.
• Stalking
  • Stalking
    • is, following or otherwise showing repeated unwanted attention to another, often a woman),
      • in circumstances that arouse reasonable fear or apprehension in the person being stalked, represents a twofold dange
    • Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
      • Section 13(3) requires that the accused actually ‘knows that the conduct is likely to cause fear in the other person’ (that is, a subjective standard).
      • not required to prove that the victim actually feared physical or mental harm.
        • Director of Public Prosecutions (NSW) v Lucas [2014] NSWSC 1441
    • Crimes (Domestic and Personal Violence) Amendment Act 2018 (NSW)
      • extends intimidation and stalking to cyberbullying under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)
        • Expanding the definition of stalking and intimidation to publication of offensive material via the internet or a smart device would capture situations where intimate images are distributed without consent, where the offender also intends to cause mental harm to the victim by distributing the image.
  • Ritual circumcision and female genital mutilation
    • Female circumcision
      • Aka ‘female genital mutilation’,
      • Criminalized Crimes Act (NSW) s 45
    • R v A2; R v Magennis; R v Vaziri [2019] HCA 35
      • Ritual involving daughters like a circumcision, determined illegal
      • otherwise mutilates’ in s 45(1)(a) of the Crimes Act (NSW) must mean physical injury to the clitoris to any extent for non-medical reasons, and that a nick or cut is capable of constituting mutilation.
        • (1) the court erred in construing the words ‘otherwise mutilates’ in s 45(1)(a) as requiring injury or damage that ‘renders the [labia majora or labia minora or clitoris of another person] imperfect or irreparably damaged in some fashion’;
        • and (2) the court erred in construing the terms ‘clitoris’ in s 45(1)(a) of the Act as not including the clitoral hood or prepuce
  • R v Wilson (1996) Crim LR 573
    • Husband brands wife with initials, goes to hospital bc of slight mistake, wife consents
    • Branding is just like a tattoo, consensual
    • Compared to r v brown bc they were not gay
  • R v BM [2018] EWCA Crim 560
    • Tattoo artist removed ear, nipples, and tongue splitting when client asked
    • Surgery required, and not a surgeon, not consensual

Week 6: Sexual Offences

• Common law rape
  • Common law rape involved non-consensual penetration, however slight, of the vagina by the penis.
    • Neither complete penetration nor ejaculation were necessary:
      • Holland v R (1993) 117 ALR 193; 67 ALJR 946.
      • a woman could not be guilty of rape, nor a man guilty of raping another man.
  • Crimes Amendment (Consent—Sexual Assault Offences) Act 2007 (NSW), and, most recently, the
    • Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
    • rephrased the non-penetrative sexual offences (indecent assault and acts of indecency) and renumbered several sections within Div 10
  • The purported justification for a husband’s immunity at common law to a charge of raping his wife was the view that by entering into the marriage the wife impliedly and irrevocably consented to all further acts of intercourse by the husband with her:
    • Hale’s The History of the Pleas of the Crown,
    • Responsability now to protect women from acts of rape within marriage
      • R v L (1991) 174 CLR 379
      • R v R [1992] 1 AC 599.
  • Consent definition Crimes Act
    • S 61HI Consent generally
      • (1) A person consents to a sexual activity if, at the time of the sexual activity, the person freely and voluntarily agrees to the sexual activity.
  • Reforming legislation in each of the common law jurisdictions has had the effect of prohibiting cross-examination of a complainant about sexual activities where such cross-examination is essentially intended to suggest that the complainant is the type of person who is likely to have consented to the sexual activity the subject of the charge:
    • Criminal Procedure Act 1986 (NSW) s 293.
    • evidence relating to the sexual reputation of the complainant is inadmissible except where it is connected to the offence or the relationship between the accused and the complainant, or is relevant to the complainant’s sexually transmitted disease or pregnancy
  • Some of the reasons for the low levels of conviction include
    • the attrition of sexual assault cases at various stages of the justice system,
    • treatment of complainants throughout the trial,
    • distrust of complainants by the criminal justice system,
    • difficulty in obtaining sufficient evidence,
    • and belief in sexual assault myths and
    • stereotypes
  • In summary, the elements of sexual assault in New South Wales (Crimes Act (NSW) s 61I) are:
    • a. the accused has sexual intercourse with the complainant;
    • b. the complainant does not consent to the sexual intercourse; and
    • c. the accused:
      • i. knows that the complainant does not consent; or
      • ii. is reckless as to whether the complainant consents; or
      • iii. has no reasonable grounds for believing that the complainant consents
• SEXUAL PENETRATION
  • Sexual penetration of the complainant by the accused is an essential element of the crime of rape.
    • It constitutes the core conduct element of rape
    • ‘sexual intercourse
  • Types of commonwealth sexual intercourse def/penetration
    • penile penetration of the vagina,
    • penetration of the vagina by any other body part or by an object;
    • penetration of the anus by any other body part or by an object; and
    • penetration of the mouth by the penis.
    • sexual intercourse also includes cunnilingus.
      • oral stimulation of the female genitals with the mouth or tongue: BA v R [2015] NSWCCA 189 at [9].
  • In relation to fellatio (BJ), R v Preval [1984] 3 NSWLR 647 it was held (at 649) that ‘the penetration of the lips of the victim is a penetration of the mouth in order to constitute the offence. .
    • Penetration may be only fleeting: see Randall v R (1991) 55 SASR 447;
• Continuing penetration
  • sexual penetration was at first consensual but consent is later withdrawn and the sexual penetration continues
    • Crimes Act (NSW) s 61H(1)(d)
    • Kaitamaki v R [1984] 1 AC 147.
  • vagina’ in both New South Wales and Victoria includes surgically constructed vaginas: Crimes Act (NSW) s 61H(1)(a)
  • R v Cogley [1989] VR 799,
  • Verified trans woman as a woman, surgically created genitals can still be violated
  • Changed by Crimes Act (Vic) s 35(3).
  • R v Harris and McGuiness (1988) 17 NSWLR 158.
    • Each of the appellants had made sexual approaches to men who were, in fact, police officers
      • Two trans mtw, H with gender surgery, M w/o surgery
      • psychological sex identification alone is not, the court held, sufficient to warrant a change of classification
        • appellant H should be regarded as female and the appellant M should be regarded as male
  • Intention as to sexual penetration
    • not necessary for the prosecution to prove that the accused intentionally had sexual intercourse with the complainant.
• CONSENT AND ITS ABSENCE
  • Lack of consent is a crucial element in rape, and lies at the heart of what makes the conduct harmful
    • consent is statutorily defined in terms of ‘free agreement’.
    • Section 61HE(2) of the Crimes Act (NSW) provides:
      • ‘A person “consents” to a sexual activity if the person freely and voluntarily agrees to the sexual activity’.
  • R v Wilkes and Briant [1965] VR 475
    • At a trial of a charge of rape the only issue was whether the girl consented.
      • ‘No, [permission] does not have to be absolutely verbal, but there has to be a free and conscious permission
  • Question of Law (No 1 of 1993) (1993) 59 SASR 214
    • The accused was acquitted on charges of rape and attempted rape of his wife.
      • Issue of the correctness of a direction to the jury that a husband may attempt to persuade a wife to freely consent to intercourse by ‘a measure of rougher than usual handling’
• Consent-negating circumstances s 61HJ
  • The element to be proved is the absence of consent.
  • Some consent negating actions
    • lack of capacity to consent to sex;
    • unconsciousness;
    • submission due to force or fear;
    • and mistaken beliefs as to identity or the purpose of the conduct.
• Jury directions on consent
  • s 61HE of the Crimes Act
• The communicative model of consent
  • Consent is thus not merely an internal state of mind or attitude; it is also a matter of a communicated agreement between two (or more) people
• Consent as a state of mind or performance?
  • Consent as a state of mind is a mental attitude of willingness or acceptance of something.
    • Consenting to a sexual act is, on this view, a matter of having that state of mind.
• Mistake, deception and consent
  • Sexual act which the complainant consensually participated in the sexual act, but that consent was predicated on a mistaken belief;
  • Papadimitropoulos v R (1957) 98 CLR 249;
    • The appellant, a Greek, was convicted of rape by a jury before Gavan Duffy J.
    • His appeal to the Full Bench of the Supreme Court of Victoria2 being dismissed, he appealed to the Full Bench of the High Court.
      • The jury found that he had represented to an immigrant Greek girl, who spoke little or no English, that they were married when in fact they had merely applied to the registry office and given the required statutory notice, and that as a result of his fraudulent misrepresentation thd couple had lived together for a short time and had sexual intercourse.
    • P. had then deserted the girl and gone to Sydney, apparently on hearing gossip as to the girl’s prior moral reputation, although he seemed originally to have intended to actually marry her.
      • The appellant contended that there had in fact been consent to the act of sexual intercourse itself and that therefore, notwithstanding any fraud or deception on his part, there could be no rape since the prosecutrix understood the nature and quality of the act
    • Issue:
      • The central issue was whether a genuine belief by a man that a woman had consented to intercourse could be a defense to a charge of rape, even if that belief was based on a mistake of fact.
    • Decision:
      • The High Court found that a genuine belief in consent, even if mistaken, could be a defense to rape. The Court held that Papadimitropoulos had not committed rape because he had an honest and genuine (though mistaken) belief that the woman had consented to intercourse.
    • Significance in the context of rape and sexual assault:
      • The case is notable for its establishment of the principle that a genuine belief in consent, even if based on a mistake of fact, can serve as a defense to a charge of rape.
      • The decision has been both influential and controversial, as it places an emphasis on the accused’s state of mind and belief about consent rather than the complainant’s actual experience and lack of consent.
  • Section s 61HE(6) (amended due to this case)
    • also clarifies the mens rea for those who commit sexual assault knowing the victim is under a mistaken belief in relation to marriage or to the identity of the accused, or that the act is for a medical or hygienic purpose.
  • In New South Wales, s 61HE(8)(a) of the Crimes Act provides that a person does not consent to sexual intercourse if that person is substantially intoxicated
• Conditional consent and ‘stealthing’
  • ‘Stealthing’
    • Stealthing involves a person removing their condom during sexual activity, without telling their sexual partner they have done so (and therefore doing so without the partner’s consent).
  • Assange v Swedish Prosecution Authority [2012] EWCA 2849 (Admin)
    • extradition of Julian Assange to Sweden to face questioning in relation to possible sexual offences
    • gave some support to a more expansive approach to the circumstances in which consent is vitiated by mistaken belief or the non-fulfilment of a condition of consent.
• Abolition of spousal immunity
  • Crimes Act (NSW) s 61T
  • abolished spousal immunity for sexual axt crimes
• THE FAULT ELEMENT OF RAPE
  • Currently have fault element, not mens rea for sexaul crimes
  • Fault element for rape
    • having no reasonable grounds for believing the other person consents (New South Wales)
• Common law subjectivism
  • Director of Public Prosecutions v Morgan [1976] AC 182
    • House of Lords Material Facts:
      • Morgan and 3 friends had been drinking when Morgan invited them to his house andsuggested they have sexual intercourse with his wife.
      • Morgan told them she was ‘kinky’ and would pretend to resist but that she really enjoyed this sort of sex.
      • All 3 had intercourse with her, claiming that, although she resisted at first she had later actively co-operated and enjoyed it Victim said she screamed, struggled and shouted for their son to call the police, but the defendants held her down and had sexual intercourse with her.
    • Issue:
      • Whether in rape a defendant can properly be convicted notwithstanding that he in fact believed the woman consented, if such belief was not based on reasonable grounds?
    • Ratio:
      • Point in dispute is as to the quality of belief which entitles the defendant to be acquitted and as to the evidential burden of proof with regard to it.
      • Belief must be honest.
      • Reasonableness is only “evidence for or against the view that the belief and therefore the intent was actually held”
    • Importance/Principle:
      • NSW legislation is in place that allows for the conviction of those who make an honest and yet unreasonable mistake of fact.
      • However, the case is still important for the strong statement it makes about the relationship between subjective mens rea standards and mistake.
        • Where standard is a subjective one, even unreasonable mistakes will negate proof of mens rea, provided they are genuine: Lord Hailsham’s “inexorable logic”
    • Morgan defence
      • if an accused genuinely believed that the complainant was consenting to the sexual act, even if that belief was unreasonable, it could be a defense to a charge of rape.
      • s 61HK of the Crimes Act 1900 (NSW) directly addresses the knowledge about consent in sexual assault cases.
  • Lazarus v R [2016] NSWCCA 52
    • the defendant appealed against his conviction on a charge of sexual intercourse without consent.
    • Really drunk girl on 18th bday accusing dude she met at club
    • May have held an honest belief that the victim consented (a subjective test),
      • but that belief was unreasonable (an objective test)
        • the accused must have reasonable grounds to believe that the person was consenting
      • Did the accused believe that the person was consenting (subjective)
        • AND were there reasonable grounds to support that belief? (objective)
    • Sex in an alley
      • complainant did “not say ‘stop’ or ‘no.’
        • She did not take any physical action to move away from the intercourse or attempted intercourse.”
        • She had consented without informing him and he did not know that she revoked
    • Led to review of s 61HA of the Crimes Act 1900 (NSW) in order to determine if the law should be amended to better protect victims.
      • Lazarus’ sexual assault conviction was quashed and a retrial ordered
  • Knowledge and recklessness
    • In New South Wales, an accused will be guilty of sexual assault if they have sexual intercourse with another person without that person’s consent
      • and they know that the other person does not consent to the sexual intercourse (s 61HE(3)(a))
      • or is reckless as to whether the other person consents (s 61HE(3)(b)
    • R v Kitchener (1993) 29 NSWLR 696
      • The appellant, who was the president of the Life and Death Motorcycle Club, Penrith Division, took the complainant on a motorcycle ride to a secluded area.
        • The complainant alleged that he forcibly performed various sexual acts on her.
      • The court held that failure to advert at all to the possibility that the complainant is not consenting, necessarily means that the accused is reckless as to whether the other person consents.
        • This type of behaviour (not even considering the possibility at all, despite it being obvious) is usually termed inadvertent recklessness
      • Translation: The court held that if an individual does not even consider (or advert to) the possibility that the other party might not be consenting, then this is a form of recklessness.
    • Banditt v R (2005) 224 CLR 262
      • The accused was convicted in the New South Wales District Court of breaking and entering a dwelling house and committing sexual intercourse without consent.
        • The victim was asleep when the accused began the intercourse, and when the victim realised that it was her cousin she reprimanded him and told him to get off, which he did
      • The accused was aware of the possibility that the victim was not consenting, but went ahead regardless (i.e. advertent recklessness)
  • Absence of reasonable belief, or reasonable grounds for belief, in consent
    • The third form of fault element of sexual assault in New South Wales is that the accused ‘has no reasonable grounds for believing’ that the other person consents.
      • This was introduced (as part of the new s 61HA, now s 61HE)
    • Aubertin v Western Australia (2006) 33 WAR 87.
      • how far the objective standard is to be tailored to the particular circumstances of the accused.
      • articulating the statute’s intended approach to the question of reasonableness of belief in
      • While a purely subjective test is not sufficient, neither should the objective test be wholly detached from the accused’s circumstances.
        • Instead, the court should assess what a “reasonable person” in the position of the accused would have believed.
  • Reasonableness and taking steps to find out whether the other person consents
    • Section 61HE(4)(a) of the Crimes Act (NSW) provides that the trier of fact must have regard to ‘any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity’.
    • R v Lazarus [2017] NSWCCA 279 at [146]–[147].
      • ‘steps taken’ requirement
        • formation of positive belief is sufficient to meet the requirement
  • Intoxication and reasonableness
    • Section 61AH(3)(e) of the Crimes Act (NSW)
      • self-induced intoxication cannot be taken into account when assessing the reasonableness of belief in
  • Mental illness and reasonableness
    • B v R [2013] EWCA Crim 3.
      • In this case, the accused was ‘affected by paranoid schizophrenia and harbouring a number of delusional beliefs’
      • those delusional beliefs were not to be taken into account in assessing the reasonableness of the accused’s belie
  • The relevance of awareness of consent-negating circumstances
    • Crimes Act (NSW) s 61HE(6
      • relevant statutes define a number of situations to be cases
      • where there is no consent to sexual intercourse or penetration:
    • Section 61HE(5) of the Crime Act (NSW) provides
      • that consent is vitiated where a person consents to sexual intercourse with another person under a mistaken belief as to the other person’s identity, or a mistaken belief that they are married to the other person, or that the intercourse is for a health or hygienic purpose, or any other mistaken belief about the nature of the act induced by fraud.
    • Subsection (7) then provides that if the other person knows that the person consented while under such a mistaken belief, then they know that the person does not consent.
    • Thus, subsection (8) defines knowledge of certain kinds of circumstances as also cases of knowledge of non-consent.
    • Subsection (9) provides that a person who does not offer actual physical resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity
  • Jury directions:
    • s292 - s292E, Criminal Procedure Act 1986

Week 7A: Thievery

• Simple Larceny
  • Larceny Act 1916 (UK) larceny act definition - repealed 1968
    • A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof
      • Claim of right definition
        • a genuine belief that they have a legal right over property that they have appropriated
        • Genuine Belief:
          • The accused must genuinely believe that they have a legal right to the property. This belief doesn’t necessarily have to be accurate or reasonable, but it must be sincerely held.
        • Legal Entitlement:
          • The belief should be in a legal entitlement to the property. This means that the accused believes that the law recognizes their claim to the property.
  • ilich v R (1987) 162 CLR 110 at 123
    • summarised the elements of larceny
      • (1) Actus reus: that the accused:
        • (a) took and carried away;
        • (b) property capable of being stolen;
        • (c) in the possession of another; and
        • (d) without the consent of the owner.
      • (2) Mens rea: that, at the time of taking, D acted:
        • (a) with the intention of permanently depriving the owner;
        • (b) without a claim of right; and
        • (c) fraudulently.
  • A bailment will exist where goods are:
    • (1) lent to another for that other’s benefit;
    • (2) delivered to another who is to hold them or deal with them for the benefit of the bailor;
    • (3) delivered to another for carriage, either for reward or gratuitously;
    • (4) leased, either by way of simple lease or hire–purchase; and
    • (5) pawned or pledged
    • possession of the bailed goods is transferred to the bailee, while property or ownership remains in the bailor.
• Larceny Actus reus
  • Asportation
    • The prosecution must prove that the accused took and carried away the property.
      • must be some movement
      • R v Lapier (1784) 168 ER 263; [1784] Eng R 69
        • Moved earing to entangle in owners hair
        • Sufficient asportation
      • Wallis v Lane [1964] VR 293
        • Bike shop deliveries
          • The accused moved two pairs of toe clips from the box and left them on the tray of the truck while he delivered the rest of the boxes to the client.
          • Sufficient aspiration
    • Property capable of being stolen
      • Property defined in s 4
      • The property must be of some value; even the slightest value will be sufficient:
        • R v Perry (1845) 174 ER 1008.
      • A piece of paper is of sufficient value:
        • R v Daley (1879) 12 SCR (NSW) 151.
      • Cannot be land,
        • cannot be moved
      • The property must be tangible,
        • so it has been held not to include information
          • R v Lloyd [1985] 3 WLR 30
        • but does include gas:
          • R v White (1853) 169 ER 696.
      • Fungibles are objects that are interchangeable;
        • for example, money, eggs, sugar etc
          • Does not have to be the same bills or eggs
        • Law does not accept fungibles, places specific item as unique
          • Paying $20 in different notes a week later is depriving borrower of original bill
    • In the possession of another

      • ownership, possession and control are not mutually exclusive:

        • Anic v R (1993) 61 SASR 223

      • In larceny, all that is required is that, at the time of the taking, it must be owned, controlled or possessed by someone other than the accused

      • Possession

        • Director of Public Prosecutions v Brooks [1974] AC 862
          • One has in one’s possession whatever it is, to one’s knowledge, physically in one’s custody or under one’s physical

      • Constructive possession

      • person does not have actual possession, but has the legal right to assume possession whenever that person wishes to do so.

      • Actual possession

        • one person has physical custody of the property or has it in such a place that they have the right or power to place their hands upon it and take custody of it:
          • R v Dib (1991) 52 A Crim R 64.

      • Control

        • Property can be stolen from someone who is merely in control of the property rather than having possession.
        • Hibbert v McKiernan [1948] 2 KB 142; 1 All ER 860.

      • Ownership

        • Property can be stolen from an owner who is not in possession or control of property.
          • R v Flood (1869) 8 NSW 299.

      • Abandonment

        • Property that is abandoned cannot be the subject of larceny.
        • Abandonment is narrowly defined as the intentional giving up of ownership and possession:
          • Hibbert v McKiernan [1948] 2 KB 142
        • Abandonment will not lightly be inferred:
          • Donaghue v Coombe (1987) 45 SASR 330.

      • Croton v R (1967) 117 CLR 326;

        • Background:
          • The accused, Mr. Croton, and a divorced woman, Mrs. Webster, had a joint bank account. By arrangement, they lived on Mr. Croton’s wages and deposited Mrs. Webster’s wages into this joint account.
          • Mr. Croton withdrew money from the account without Mrs. Webster’s knowledge or consent and deposited it into two accounts in his own name.
        • Legal Background:
          • Section 162 of the Crimes Act allows for one of the joint owners to be convicted of larceny, treating them as if they were not a joint owner.
        • Analysis:
          • A depositor with a bank does not have “money in the bank” in the physical sense, but rather a right to recover the balance (chose in action).
          • This right cannot be the subject of larceny but can be the subject of misappropriation.
          • The paper money or coins that Mr. Croton received from the bank were voluntarily handed over by the bank, thus it was not taken against the bank’s will, which negates the element of larceny.
        • Conclusion:
          • The submission of the Crown, suggesting that Mr. Croton became a bailee of the paper money for the joint owners and committed larceny when he intended to use it for his own purposes, was rejected by Barwick CJ.
          • Barwick CJ concluded that Mr. Croton did not commit larceny, but might be found guilty of misappropriation depending on the actual arrangement between him and Mrs. Webster.
          • As a result, the convictions should be set aside due to a lack of evidence supporting them.
        • Verdict:
          • Convictions were quashed (overturned). This was supported by McTiernan J, but Menzies J dissented.
        • Held
          • money deposited in a bank is not “property” in the traditional sense
          • withdrawing money from a joint bank account, even without the other account holder’s knowledge or consent, might not always amount to larceny.
          • when a person withdraws money from a bank, they don’t become a “bailee” of the money on behalf of joint account holders.
            • The bank, in providing the money, does so voluntarily, and it doesn’t do so on behalf of or as an agent for the other joint account holder.
    • Without the consent of the person in possession
      • taking of the property must be without the consent of the possessor; that is, it must be a trespassory taking
      • property is taken against the will of the person in possession:
        • R v Davies [1970] VR 27
      • Facilitation and consent
        • Where an owner facilitates or allows property to be taken away, this will not necessarily amount to consent.
        • Kennison v Daire (1986) 160 CLR 129
          • Opened an account to get a card, closed the account, operated an ATM to pull $200
          • Fraudulent not larceny
          • a possessor’s lack of positive intention to pass possession is sufficient for a trespassory taking.
    • Consent due to mistake
      • Unilateral mistake
        • where the accused realises, at the time the property is handed over, that this is being done as the result of a mistak
        • mistake cases must be regarded as an exception to the general rule that for larceny to be committed the taking must be trespassory
      • Mutual mistake
        • the accused receives the property without realising that it has been given to them, subsequently becomes aware of its existence, and converts it knowing that it was given to them by mistake.
          • Converts = Fraudulently taking
    • Contemporary approach to mistaken consent
    • R v Potisk (1973) 6 SASR 389 and
      • Currency exchange mistake, accused did not give back either knowingly or unknowingly
      • Main issue
        • Was the accused aware of the mistake at the time he received the money?
        • Did the accused only become aware of the mistake afterward?
        • R v Middleton (1873) LR 2 CCR 38” and
        • “R v Ashwell (1885) 16 QBD 190”.
      • accused did not commit larceny when he accepted the money, even if he realized later that he was given more than he should have been due to the bank’s mistake.
      • where the victim has handed over property due to a mistake, this will not amount to larceny, because the handing over was with consent.
    • ilich v R (1987) 162 CLR 110
      • The defendant, Ilich, was overpaid by his employer.
      • Instead of returning the excess amount, he set it aside while contemplating his next move.
        • simply setting aside the overpaid money while deciding what to do with it did not constitute an “intent to permanently deprive the owner” of the money.
        • did not fit neatly into fraudulent taking” and “fraudulent conversion.”
        • merely having an intent to use the overpaid money at some undetermined future point was insufficient to meet the criteria of “fraudulent conversion”
      • There needs to be clear intent to defraud or deprive the original owner permanently. In this case, the mere act of setting the money aside, without further action, did not meet the threshold for criminal intent.
        • where an accused has obtained property due to a mistake, and the accused is aware of the mistake at the time or subsequently becomes aware of the mistake and then converts the property, the accused can be charged with larceny only where the mistake is so fundamental as to prevent ownership from passing.
      • fundamental mistake could not apply to mistakes involving money
    • Mistaken identity of the person whom property is given (post office clerk believed M was the person referred to in the letter authorising payment)- Middleton 1873
    • Three kinds of fundamental mistakes
      • Mistaken identity of the person whom property is given
        • (post office clerk believed M was the person referred to in the letter authorising payment)- Middleton 1873
      • Mistake as to the identity of the property handed over
        • (Both A and transferor thought it was a shilling but in fact it was a sovereign)- Ashwell 1885
      • Where an excess in the quantity of goods is delivered, ownership of the excess has not passed to the receiver - does not apply to money
        • (8 stacks too many delivered to A who appropriated them, Russell v Smith)
  • Mens rea
    • The definition of larceny contained in s 1(1) of the Larceny Act 1916 (UK) requires:
      • (a) an intent to permanently deprive the owner of their property;
      • (b) the absence of a claim of right made in good faith; and
      • (c) an element of fraud
    • Intention to permanently deprive
      • Larceny is not committed unless, at the time of taking, an accused intends to deprive the owner of the property permanently:
        • R v Foster (1967) 118 CLR 117
      • a person takes property but claims they had an intention to return it.
        • R v Holloway (1849) 1 Den 370
          • Tannery worker wanted to take back sold dress skins and resell
            • Not considered larceny because temporary removal, not permanent removal
    • Claim of right
      • Belief in a claim of legal right to the property taken is inconsistent with the commission of larceny
      • R v Fuge (2001) 123 A Crim R 310
        • Claim of right - Accessory to Hungry jacks robbery
          • Must involve a belief as to a right of property or money in hands of another
          • Must be honestly held (even if not well founded)
          • Does not have to be reasonable, but a pretence is insufficient
          • Must be one of legal (not immoral) entitlement to the property
          • May extend to where the means used to take the property involved an assault, use of arms etc (Langham)
          • Not confined to specific property or banknotes once held by the clamant.
            • Can extend to cases whats taken ts equivalent in value (Lopatta)
          • Must extend to the entirety of taken
          • In the case of an offender charged as an accessory what is relevant is the existence of a bona fide claim in the principal offender/s
• • Fraudulently
    • The common law offence of larceny requires that the accused took the property ‘fraudulently’.
    • R v Glenister [1980] 2 NSWLR 597
      • at 604 asserted that ‘fraudulently’ has ‘a meaning interchangeable with “dishonestly”’.
      • R v Feely [1973] QB 530,
        • defined ‘dishonesty’ as having:
          • (1) an ordinary everyday meaning that did not need to be explained to the jury; and
          • (2) a moral
    • Peters v R (1998) 192 CLR 493;
      • Mr. Peters, was a solicitor who was retained by a client to handle certain mortgage transactions
      • accused knew these mortgage transactions were sham transactions.
        • evade tax
      • Larceny Dishonesty test - objective only
        • The accused acted dishonestly.
        • The standard for determining dishonesty was based on what ordinary and reasonable people would consider dishonest.
        • The accused realized that his actions were dishonest by those standards.
• Temporal coincidence
  • Riley principle
    • situations where D innocently acquires property and later forms the intention to permanently deprive the owner of the property.
    • Doctrine of continuing trespass
      • However, an honest but trespassory taking and the development of a subsequent fraudulent intent may amount to larceny, under the Riley principle.
    • R v Riley (1853) 1 Dears CC 149
    • D placed 29 black-faced lambs in a field belonging to a neighbour.
      • The prosecutor had earlier placed 10 white-faced lambs in the same field.
    • D accidentally took 1 white lamb, learned that he had the wrong number of lambs, sold all 30
      • Because he trespassed originally, voided the immunity, felonious trespass
• OFFENCE OF FRAUD
  • 192E Fraud
    • Under s 192E, there are three different forms of the offence based on consequences:
      • (1) obtaining property;
      • (2) obtaining financial advantage; or
      • (3) causing a financial disadvantage.
• R v Langham (1984) 36 SASR 48
  • The accused was found guilty of armed robbery.
  • After buying a crossbow that didn’t meet his needs, he returned it to the store.
    • Instead of a cash refund, he was given a credit note.
    • Later, he used part of this credit to purchase a shotgun.
    • That same day, he returned to the store with the shotgun and threatened the store manager, demanding the cash equivalent of the remaining credit, which amounted to $301.
  • The judge informed the jury that to consider the defense of a claim of right, they must believe that the accused not only thought he had a legal right to the $301 but also believed he had a legal right to take it as he did.
    • Appeal King CJ interpreted that a genuine belief in legal entitlement to the property was sufficient, regardless of the means by which it was taken.
    • He concluded that the directions given to the jury were wrong in law.
• s 118 of the Crimes Act (NSW)
  • which foregoes the requirement that D intends to deprive V of the property permanently.
  • Intending to return property is no defence

Week 7B: Fraud

• Fraud
  • general fraud offence in s 192E of the Crimes Act (NSW), with definitions in ss 192B–
  • forms of the offence based on consequences:
  • (1) obtaining property;
  • (2) obtaining financial advantage; or
  • (3) causing a financial disadvantage.
  • mens rea of the offence requires that the accused was either reckless as to deception or intentionally deceptive, and obtained or caused the consequences dishonestly.
  • Elements of fraud
    • Actus reus
      • (a) deception; and
      • (b) this deception caused an obtaining of property, financial advantage or disadvantage.
    • Mens rea
      • a) the actions of the accused were intentionally or recklessly deceptive; and
      • (b) it was dishonest to cause that consequence.
        • If an accused had a claim of right, then they will not be dishonest.
      • an additional mens rea requirement of an intention to permanently deprive if the accused has been charged with the prohibited consequence of obtaining property
    • Temporal coincidence
  • Actus reus of Fraud
    • Deception
      • a deception as to the intentions of the person using the deception or any other person, or
      • (b) conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.
      • Moore v R [2016] NSWCCA 260
        • Moore had opened an account with St George Bank in March 2010.
        • His accFor the purposes of this Part, property belongs to a person if—
        • (a) the person has possession or control of the property, or
        • (b) the person has a proprietary right or interest in the property (not being an equitable interest arising only from an agreement to transfer or grant an interest or from a constructive trust).
        • If property is subject to a trust, the persons to whom it belongs include any person having a right to enforce the trust.
        • (4) A person obtaining property belonging to another without meaning the other permanently to lose the thing itself has, nevertheless, the intention of permanently depriving the other of it if the person’s intention is to treat the thing as his or her own to dispose of regardless of the other’s rights. A borrowing or lending of the property may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
        • (5) Without limiting the generality of subsection (4), if—
        • (a) a person has possession or control (lawfully or not) of property belonging to another, and
        • (b) the person parts with the property under a condition as to its return that the person may not be able to perform, and
        • (c) the parting is done for the purposes of his or her own and without the other’s authority,
        • the parting amounts to treating the property as his or her own to dispose of regardless of the other’s rights.
        • Site footer We acknowledge the traditional owners of this land and pay respect to Elders, past,ount had a negative balance from June 2010.
        • The terms and conditions of the account permitted Moore to request funds to be lent to him and the bank’s systems accepted these requests
          • Withdrew 2.1 million
        • Held that Mr Moore requested the funds, and the bank gave him those funds.
          • “behaved not only extremely foolishly but dishonestly” and that he “continued to borrow and consume funds, knowing that he had no realistic prospect of repaying them”.
        • even though D was dishonest in that he borrowed and spent money he had no prospect of ever repaying, he did not deceive the bank.
          • Under the terms and condition of the contract, D was allowed to request additional funds to be lent to him
    • False statement
    • R v M [1980] 2 NSWLR 195
      - It is now well established that the falsity of a statement may arise, not only because a fact therein alleged is falsely alleged, but because the statement, by omitting material facts, creates a false impression
    • R v John Bryan [1857] 169 ER 1002
      • exaggeration will not amount to a deception.
        • It will be a question of fact for the jury to determine the distinction
      • Puffery is not the same as lying about a product
    • Deception by conduct and silence
      • Conduct without words, that is, implied representations, can amount to a deception:
      • this has been termed an implied representation
      • Section 192B(1)(b) would include many forms of ATM fraud
      • Director of Public Prosecutions v Ray [1974] AC 370
        • D had ordered a meal in a restaurant with the intention of borrowing money from one of his companions to pay for it.
          • at the end of the meal he and his companions
        • decided to run from the restaurant without paying.
          • D was charged with dishonestly obtaining a pecuniary advantage by deception
        • Was not originally a deception, became one
      • R v Benli [1998] 2 VR 149
        • driving instructor, continued to provide lessons and obtain fees after licence to drive and therefore instruct suspended
          • charged with obtaining property by deception.
        • no express representation that he was a licensed instructor, this was implied by his conduct
      • Barnard [1837] 7 C & P 784
        • deception was found where D obtained credit from a tradesman by entering his shop dressed in an Oxford cap and gown
    • Casuation
      • The prosecution must prove that the accused ‘obtained by deception’; that is, that the deception caused that victim to part with their property or services.
      • R v Clucas [1949] 2 KB 22
      • D wished to place a large sum of money on a horse but knew that because he had been in the habit of collecting on winning bets and defaulting on losing bets he could not get a bookmaker to accept his bet.
      • He placed a bet by falsely representing his name and that the sum wagered was the aggregate of a number of small amounts bet by workmen for whom he was commission agent.
        • Held, not guilty of obtaining money by false pretences.
          • The effective cause of D’s obtaining the money was not his representations as to his agency, but the fact that the horse won
    • The consequence of the fraud
      • The prosecution must prove one of three consequences of the fraud:
        • (1) obtaining property from another;
          • s 192E(a)
            • simple tangible property frauds
          • s 192C(1)
            • obtaining of property to require only that the accused or a third party gain control or possession of the property.
        • (2) obtaining a financial advantage; or
          • R v Walsh (1990) 52 A Crim R 74
          • The term ‘financial advantage’ should be given its ordinary meaning:
          • s 192D
        • (3) causing a financial disadvantage.
          • Historical issues:
            • accused attempts to evade a debt
          • s 192D(2) overcomes these difficulties by providing a non-exhaustive definition of how a ‘financial disadvantage’ may come about.
          • a financial disadvantage means—
            • (a) cause a financial disadvantage to another person, or
            • (b) induce a third person to do something that results in another person suffering a financial disadvantage,
          • whether the financial disadvantage is permanent or temporary.
            • also cover situations where an accused receives no advantage but is aiming to cause harm to the victim;
  • Mens rea of Fraud
    • s 192B(2) requires that the deception is intentional or reckless:
      • (2) A person does not commit an offence under this Part by a deception unless the deception was intentional or reckless.
    • Dishonestly
      • s 192E Fraud
        • (1) A person who, by any deception, dishonestly—
          • (a) obtains property belonging to another, or
          • (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud.
        • Dishonest defined in s 4B
          • Ordinary people test - Ghosh
        • common law defence of claim of right will be implied as an element of the fraud offences
    • Intention to permanently deprive
      • If the prohibited consequence of the offence is the first limb of obtaining property,
        • s 192C(2) requires an additional mens rea element of intention to permanently deprive:
          • (2) A person does not commit an offence under this Part by obtaining or intending to obtain property belonging to another unless the person intends to permanently deprive the other of the property.
          • meaning of ‘intention to permanently deprive’ is complicated by s 192C(4)
  • Temporal coincidence
    • Director of Public Prosecutions v Ray [1974] AC 370,
      • which imports a requirement of temporal coincidence.
  • R v Vasic (2005) 11 VR 380
    • The defendant wrote a cheque for $32,000 and knew that the chequewould be dishonoured
      • The court held that any delay is a financial advantage, as you can use that delay to invest and gain an advantage.
      • Also obtained benefit of further time to pay and did not have to pay the value of the cheque.
    • Financial advantage is interpreted in a broad sense.
      • But now there are provisions for financial disadvantage.
  • Hughes v R [2021] NSWCCA 238
    • Charges and Sentence:
      • Guilty of obtaining a financial advantage by deception as per s 192E(1)(b) of the Crimes Act 1900 (NSW).
      • Sentenced to 2 years and 6 months’ imprisonment starting on 15 June 2020 with an 18-month non-parole period.
    • Details of the Deception:
      • Deception was the “fraudulent transfer of money”.
      • Ms Hughes was the practice manager at Moon Street Medical Centre service trust.
        • Responsible for all financial transactions and operated an account with the Commonwealth Bank using MYOB software.
      • Transferred funds without authority from the service trust’s bank account to her personal accounts on 329 occasions between 19 January 2012 and 15 October 2018.
      • Total amount obtained: $179,153.60.
    • Appeal:
      • Ms Hughes sought to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) against her conviction.
        • Argued that the elements of s 192E were not proven by the statement of facts at her sentencing.
      • Three primary arguments:
        • Issue with causation related to the timing of MYOB entries.
        • The deception did not allow her to “keep” the financial advantage as per s 192D(1)(c).
        • No evidence of actual deception of the service trust directors.
    • Court’s Decision:
      • Refused leave to appeal.
      • The applicant admitted all elements of the offence with her guilty plea.
      • No merit in the application for leave to appeal.
        • The deception was not limited to the MYOB entries but involved a broader course of conduct.
      • The applicant falsely represented to her employer and the bank that she was authorized to make the transfers.
        • Even if MYOB entries were the only deception, they were causative as they concealed misappropriations, allowing further misappropriations.
      • Causation is a factual question, and the agreed facts provided a basis for it.

Week 8A: Ch 11: Attempts

• Attempts

  • Inchoate crimes

    • crimes of attempt, incitement and conspiracy:
    • Uncompleted

  • Section 344A of the Crimes Act 1900 (NSW) (Crimes Act (NSW)) provides a general offence of attempt

    • in New South Wales attempted murder (ss 27–30)

  • It is only when the accused’s activities begin to approach the complete commission of an offence that the law treats the accused as guilty of an attempt.

    • R v Smith [1975] AC 476
      • the House of Lords restated and affirmed the basic distinction between attempts and preparation
      • activity sufficiently indicative of criminal purpose to law-abiding
        • before a person may be guilty of attempting to murder, it must be shown it was their purpose to kill, not merely to cause some harm which, if the victim had died, would have made the accused a murderer in the eyes of the law
    • 344A Attempts
      • (1) Subject to this Act, any person who attempts to commit any offence for which a penalty is provided under this Act shall be liable to that penalty.
      • (2) Where a person is convicted of an attempt to commit an offence and the offence concerned is a serious indictable offence the person shall be deemed to have been convicted of a serious indictable offence
    • R v Mohan [1976] QB 1
      • D drove his car quickly when a policeman ordered him to stop.
        • The car almost hit the policeman and D was charged with attempted ABH against the policeman.
        • The judge directed that D had to have been at least reckless that ABH would be caused.
        • CA allowed appeal against D’s conviction since in attempted crimes it had to be proved that D intended the crime regardless of normal rules of mens rea.
        • However, in relation to the offence of attempt, such knowledge is not to be equated with intent unless it is established.
      • The term “intention” refers to the decision, to ensure that a specific outcome is achieved.
        • It is thus irrelevant whether the intended result was likely to occur or not.
      • To prove the offence of attempt to commit a crime, a specific intent has to be proven i.e., an aim or decision by the accused to bring about the commission of the offence that he was alleged to have attempted to commit.
        • It was not enough to show that the accused knew or foresaw that the ramifications of his actions would almost certainly result in the commission of the actual offence; nor is a reckless state of mind sufficient to demonstrate the required mens rea.

  • R v Eagleton (1855) Dears CC 515

    • Eagleton contracted with a local Poor Law authority to supply bread of an agreed weight to poor persons who presented the appropriate tickets.
      • Eagleton supplied underweight loaves but his fraud was discovered before any payment was made, although his account had already been credite
        • whether, in law, Eagleton’s activity constituted an attempt
    • jury found that Eagleton intended to represent that the loaves were of full weight
    • Eagleton test?
      • Acts remotely leading to the commission of the offence are not sufficient: but acts “immediately connected” with it are.
        • Here, the “last act, depending on himself” had been committed.

  • R v Page [1933] VLR 351

    • D changed his mind after scaling fence to break into house.
      • Still guilty.
    • Attempt is an act done or omitted with intent to commit that offence, forming part of a series of acts, which would have constituted the offence if the D completed the offence.
      • Attempt is “an act done or omitted with intent to commit that offence, forming part of a seriesof acts or omissions which would have constituted the offence if such series of acts or omissions had not been interrupted either by the voluntary determination of the offender not to complete the offence or by some other cause”

  • Director of Public Prosecutions v Stonehouse [1978] AC 55

    • known as the substantial progress or sufficiently proximate test.
    • Fakes death to claim insurance money.
    • Here, the charge was that the accused “dishonestly and by deception enabled his wife toobtain insurance money by the false pretence that he had drowned.”
      • Towards the commissionof that offence “the faking of his death was
        • (a) intended to produce that result;
        • (b) was thefinal act that he could perform, and
        • (c) went a substantial distance towards the attainment of his goal.
      • Acts which are “sufficiently proximate” to completed offence, and not merely in preparation
    • In short, in my judgment it was sufficiently proximate thereto to constitute theattempt charged.”
      • Found guilty
• ATTEMPTS AND SEXUAL ASSAULT
  • Evans v R (1987) 48 SASR 35
    • Attempted sexual assault includes reckless indifference as to whether V consents.
    • trial judge in directing the jury as to the law relating to attempted rape, referred to the mental element in the same terms as the mental element of rape,
      • that is to say, knowledge that the woman was not consenting or reckless indifference as to whether she was consenting or not
    • This submission raises the question of the mental element of a crime of attempt.
      • An attempt is necessarily purposive.
      • A person attempts to do something only if he intends to do that thing.
  • IMPOSSIBILITY
    • Can a person be guilty of attempting to commit an offence where, for one reason or another, it was not possible for that person to commit the full offence itself
    • R v Smith [1975] AC 476
      • Later held incorrect
    • Legal impossibility
      • Legal impossibility covers two types of case.
        • First, the accused may believe their objective to be criminal when in fact it is not.
          • adultery
        • The second type of legal impossibility involves accused persons who are outside the class of those defined by the law as capable of committing particular crimes.
          • 14 and younger could not be convicted of rape
    • Factual impossibility
      • All other types of impossibility are classified as cases of ‘factual impossibility’.
      • The accused fires a gun into an empty room, intending to kill a person believed to be in the room.
        • The intended victim is, in fact, nowhere in the vicinity.
        • This was held to constitute an attempt in the American case of State v Mitchell (1902) 170 Mo 633.
    • The principle in R v Smith
      • R v Smith [1975] AC 476,
        • the police stopped an overloaded van on the highway.
        • The van was found to contain stolen corned beef, whereupon the van and its driver were taken to a police station.
          • After a period, the police allowed the van to proceed to its destination in order to trap a number of persons who were destined to receive the goods
        • Lord Hailsham concluded that the facts of R v Smith likely fell within class 6 but at the very least within class
        • R v Donnelly [1970] NZLR 980 sixfold classification
          • (1) The accused may change her or his mind before committing any act sufficiently overt to amount to an attempt.
            • Clearly, there would be no criminal attempt in this situation.
          • (2) The accused may change her or his mind, but too late to deny that she or he had got so far as an attempt.
            • In this situation, there would be a criminal attempt.
          • (3) The accused may be prevented by some outside agency from doing some act necessary to complete the commission of the crime.
            • For example, a police officer may interrupt the accused while he or she is endeavouring to force a window open, but before an actual breaking occurs.
            • In this situation, there would be a criminal attempt assuming sufficiently proximate overt acts had occurred.
          • (4) The accused may suffer no such outside interference but may fail to complete the crime because of incompetence.
            • For example, the accused may shoot at an intended victim who is out of range or administer a dose of poison to the intended victim that is insufficiently potent to kill.
            • Cases such as these constitute criminal attempts.
          • (5) The accused may find that what he or she is proposing to do is after all impossible in a physical sense — it does not fail as a result of any incompetence on the accused’s part.
            • The empty pocket case would be an example of this.
            • Lord Hailsham reviewed the authorities, which were in conflict, and concluded that cases falling within this fifth class did not constitute criminal attempts.
          • (6) The accused may do every act he or she sets out to do but it may transpire that those acts, contrary to the accused’s own belief at the time, do not, after all, amount in law to a crime.
            • For example, the accused may believe that duty is payable on a particular commodity and smuggle it past customs officers when, in fact, no duty is payable on that item.
            • In this situation, the accused would not be guilty of attempted smuggling.
      • to fire a shot at a person just out of range is a case of relative impossibility (class 4),
        • while to fire a shot into an empty room, the intended victim being many miles away at the time, is a case of absolute impossibility (class 5)
        • The accused’s moral culpability is precisely the same in cases of absolute impossibility as in cases of relative impossibility
    • R v Smith does not represent Australian common
      • R v Mai (1992) 26 NSWLR 371
      • rejected earlier New South Wales decisions that followed R v Smith in favour of following the Victorian approach in Britten v Alpogut.
      • R v Collingridge (1976) 16 SASR 117
      • While his wife was bathing, the accused entered the bathroom and threw the bared end of a live electric wire into the water behind her.
        • The wire did not touch her body and he did not attempt to bring it into contact with her body.
        • If, however, the wire had contacted her body she might have been killed.
      • Issue was whether the case was one of relative impossibility (because the current was insufficient on the facts) or absolute impossibility (because it was absolutely impossible that an electric wire placed as it was could have led to the victim’s death).
    • Britten v Alpogut [1987] VR 929
      • Can still be guilty of attempt even if impossible to commit the completed offence.
        • “Attempts are crimes because of the criminal intent of the actor”
      • Defendant believed he was importing cannabis but it was not actually that substance a non-prohibited one.
        • Charged with attempting to import prohibited imports into Australia contrary to s 233B of the Customs Act 1901 (Cth). Generally would not be enough of a defense that the product ended up being legal.
        • This works in the case of homosexuality.
          • Note also Crimes Act s.321N(3): A person may be guilty of attempting to commit an offence despite the existence of facts of which he or she is unaware which make the commission of the offence attempted impossible.
          • What about the man who has sexual intercourse with another man, believing homosexuality to be illegal (although it is not)?
  • OTHER INCHOATE CRIMES
    • Incitement
      • It is a common law misdemeanour to solicit or incite any person to commit any indictable offence
      • Young v Cassells (1914) 33 NZLR 852 Stout CJ said ‘The word “incite” means “to rouse; to stimulate, to urge or spur on; to stir up; to animate”.
      • In R v Quail (1866) 4 F & F 1076
        • the accused was convicted of inciting to larceny a servant who had no intention of obeying his exhortations and was only interested in helping his employer to entrap Quail.
      • in R v Howe [1987] 1 All ER 771; [1987] 2 WLR 568,
        • the House of Lords held that an accused who incites another to kill is guilty of incitement to commit murder notwithstanding that the actual killer is convicted of manslaughter only.
• Week 8B: CH 12: Extending Criminal Liability: Participation in Crime
• INTRODUCTION: THE PROBLEM OF COMPLICITY IN CRIME
• In New South Wales, ss 93S(2)(b) and 93T of the Crimes Act provide that a person can be convicted as a member of a criminal group even though only some of the people involved in the group are involved in
  • planning, organising or carrying out any particular activity, so long as the person knows or ought reasonably to know that it is a criminal group, and ‘his or her participation in that group contributes to the occurrence of any criminal activity’.
• the main rules governing the criminal liability of those who assist or encourage others to commit criminal offences continue to be the laws of criminal complicity.
• The doctrine of complicity
  • (1) Where two or more persons agree to commit a crime and one or all of the participants carry out the necessary conduct elements (actus reus), all will be held liable for the crime as principals in the first degree according to the rules of joint criminal enterprise
    • (a) if two or more persons each play a part in performing the acts that go to constitute the crime.
      • Thus, if a number of individuals attack another, intending to kill their victim, and the combined effect of their blows is to cause death, each are principals in the first degree: Macklin and Murphy’s case (1838) 2 Lew CC 225;
    • (b) even if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed pursuant to an understanding or agreement between them that they will commit that crime, and D participated in some other way in furtherance of the enterprise:
      • Dickson v R (2017) 94 NSWLR 476.
      • In this case, the parties are said to be acting in concert: R v Jensen and Ward [1980] VR 194;
  • (2) Accessorial liability applies where a person aids, abets, counsels or procures the commission of a crime by another person (the ‘principal in the first degree’).
    • At common law, a person who was present at the commission of the crime, aiding and abetting the principal in the first degree, was known as a ‘principal in the second degree’.
    • A person who encouraged the commission of the crime, but was not present at its commission, was known as an’ accessory before the fact’.
    • A person who assisted a principal offender subsequent to the commission of the offence was known as an ‘accessory after the fact’.
  • (3) Where, during the commission of a joint criminal enterprise, one or more members commit an additional crime that was not the subject of the original agreement, the other members of the group may also be liable for that additional crime according to the doctrine of common purpose, also sometimes referred to as extended joint criminal enterprise:
    • McAuliffe v R (1995) 183 CLR 108.
  • the different types of contributing to group crime, considering in order;
    • (1) joint criminal enterprise;
    • (2) doctrine of innocent agency;
    • (3) accessorial liability; and
    • (4) extended joint criminal enterprise
• PRINCIPAL OFFENDERS: JOINT CRIMINAL ENTERPRISE Key case
  • Osland v R (1998) 197 CLR 316
    • Osland and her son were abused and tried to leave but were not allowed to obtain a loan without a male signature. After making a report and getting no response, they drugged, killed and dug the husband up.
    • The son was acquitted on self-defence but Osland was found guilty.
      • The outcome should have been different as the absence of response from the police gave Osland and her son no choice but to act in self-defence.
      • Instead of being charged for murder, she should have been acquitted on self-defence, just as her son did, or at least received a much lighter sentence.
  • Huynh v R; Duong v R; Sem v R (2013) 295 ALR 624;
    • Facts
      • V was stabbed and killed, conflicting stories about who did what and weapons
      • Unclear who stabbed, all denied to inflict death/ grievous bodily harm or agreement
    • Held
      • If agreement to inflict death or grievous harm and Ds were present – sufficient to make them liable as principal offenders (don’t need 323 or 324 but could as an alternative)
      • A person participates in joint criminal enterprise by being present when crime is committed pursuant to an agreement
      • Proof D assaulted person was material to determination of existence and nature of any agreement to which D was a party
  • Likiardopoulos v The Queen (2012) 247 CLR 265,
    • the court dealt with the question of whether being a mere presence at the scene of a crime could constitute aiding and abetting. The court suggested that mere presence is generally insufficient to establish liability unless it’s accompanied by other factors like encouragement or direct participation in the crime.
  • Prochilo
• Withdrawal
  • White v Ridley (1978) 140 CLR 34
    • High Court emphasised the need for ‘timely communication’ of the intention to withdraw, and taking reasonable steps to prevent the commission of the crime
    • rules of timely withdrawal also apply in cases of joint criminal enterprise
  • R v Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438,
    • endorsed the following trial judge’s direction to a jury in a case where the appellant alleged that he had withdrawn from a joint criminal enterprise before it escalated into a more violent, and ultimately fatal, attack on the victim
      • The Crown must negate timely withdrawal beyond a reasonable doubt.
  • McEwan, Robb and Dambitis v R (2013) 41 VR 330
    • considered the issue of withdrawal from a joint criminal
      • a participant would not escape liability merely by leaving the scene shortly before the offence was committed, or by attempting to withdraw when it was too late to stop the offence
      • Only wait to do so is if participant attempts to discourage group from continuing crime
• PRINCIPAL IN THE FIRST DEGREE: DOCTRINE OF INNOCENT AGENCY
  • A person who acts through an innocent agent is a principal in the first degree rather than an abettor.
  • The innocent agent may be either one who is unaware of what they are doing (as in the case of a person who administers poison, believing it to be harmless) or one who is (in a sense) aware of what they are doing but, for some reason, is not amenable to the criminal law.
  • This could arise in various ways; for example, the agent might be insane or might be excused on some ground such as duress or infancy.
    • See Pinkstone v R (2004) 219 CLR 444; 206 ALR 84; Matusevich (at 12.52C ).
• R v Hewitt [1997] 1 VR 301
  • FACTS:
    • A lured V into vehicle – picked co-accused up along the way – not in presence of CA, A insisted V have sex with Co-accused (CA) – no AR from A – innocent agency – A set up situation – forced V sex with CA
    • The jury acquitted the co-accused on all counts but found the accused guilty of rape on each count.
  • HELD:
    • Doctrine of IA should be considered separate from accessorial liability
    • What has to be demonstrated in order to support conviction on this basis (per Cogan and Leak) is that A wanted and intended the act of intercourse by ‘the agent’ to take place and, by his conduct, caused the act to occur when he knew that the V was not consenting.
    • P was “merely the instrument used” (so CAs AR was attributed to A)

Week 9: Complicity, and Extended Joint Criminal Enterprise

• ACCESSORIAL LIABILITY
  • Accessorial liability
    • ss 345, 346 and 351
    • where D does not commit the actus reus of the principal offence, but where D intends to assist the P1 in some way or other in the commission of the offenc
    • Abettors (including accessories before the fact) are liable to be punished in the same way as principals in the first degree: Crimes Act (NSW) ss 345–346, 351.
      • accessories after the fact are commonly liable to lesser penalties than the principal offender: Crimes Act (NSW) ss 348–350
    • an abettor can be guilty of a higher crime than the principal in the first degree
      • R v Howe [1987] 1 All ER 771; [1987] 2 WLR 568
  • Abettors: accessories before the fact and principles in the second degree
    • The elements of being an accessory are specified in Giorgianni v R (1985) 156 CLR 473;
      • beyond a reasonable doubt:
        • (1) actus reus: D did aid, abet, counsel or procure; and
        • (2) mens rea:
          • (a) D knew all the essential facts that made what was done by the P1 a crime; and
          • (b) with that knowledge, D intentionally aided, abetted, counselled or procured the acts of P1.
    • In Osland v R (1998) 197 CLR 316; McHugh J described a principal in the second degree as a person who was present at the commission of the crime, ‘encouraging but not participating physically, or whose acts were not a substantial cause of death’
    • Presence:
      • The main distinction between principals in the second degree and accessories before the fact is that principals in the second degree are present at the commission of the crime, while accessories before the fact are not
    • Causation
      • Virtually any act of encouragement, assistance or instigation of P1 to commit a crime will fulfil the actus reus requirements for liability.
    • Omissions and ‘mere’ presence
    • R v Russell [1933] VLR 59
      • D may be liable for an omission (as a principal in the first degree) where D has a duty to act
      • D was charged with the murder of his wife and two infant children.
        • All three had died by drowning late one evening in a public swimming pool.
        • The Crown case was that the accused had deliberately drowned each of them
      • judge directed the jury that a failure to discharge his parental duty to seek to prevent his wife from killing the children would render D guilty of manslaughter.
      • Appeal against this reasoning dismissed
    • For other multiple-offender rape cases, see R v Tyrone Chishimba; Tyrone Chishimba
    • v R; Likumbo Makasa v R; R v Likumbo Makasa [2010] NSWCCA 228
    • The concern that mere presence will be sufficient for liability neglects the requirement that the prosecution must also prove knowledge and intention beyond a reasonable doubt.
      • Tilmouth J in R v Wellgreen [2014] SADC 10
        • Facts
          • In Wellgreen, D was charged with aggravated robbery as a consequence of his involvement in a road rage incident. D and P1 were passengers in a car that was ‘cut off’ by the victim, the driver of another car.
          • When they were stopped at the lights, D and P1 got out of their car and approached the victim. P1 threatened the victim and demanded that he hand over a can of drink that he had in the car.
        • Held
          • Tilmouth J found that ‘the incident erupted too spontaneously and occurred too quickly’ to establish an ‘agreement’ for the purposes of joint criminal enterprise and the doctrine of common purpose.
          • Rather, Wellgreen was liable as an accessory — a principal in the second degree.
  • Conduct amounting to ‘aiding, abetting, counseling and procuring’
    • R v Phan (2001) 53 NSWLR 480
      • Liability of principal in first degree is primary, p2 is derivative and dependent on p1.
      • Mere acquiescence or assent is not sufficient - must be linked in purpose to P1 and, by words or conduct, doing something to bring about, or render more likely through encouragement or assistance, commission of crime.
      • Phan did not have knowledge of all elements.
    • Giorgianni v R (1985) 156 CLR 473; 58 ALR 641
      • Facts
        • Argued G (employer) knew brakes were defective and encouraged employees to continue driving trucks; accident and truck killed 5 people
        • Dangerous driving in NSW was strict liability offence at time (defence of HRM available)
      • Held
        • Actual driver PO (Principal offender?) guilty once shown he drove dangerously causing death
        • G must have positively intentionally participated, assisted or encouraged exact crime
        • G must have known breaks were defective & encourage employee to drive
        • Not dependent on MR for completed offence (usually lower MR)
        • Participation must be intentionally aimed at commission of acts which constitute crime
        • Not sufficient if knowledge/ belief extends only to possibility or even probability that acts PI (principle’s intent) assisting/ encouraging are such to constitute factual ingredients of a crime
        • E.g. accessory for rape: intentionally assisted or encouraged in circumstances where there is a lack of reasonable belief in consent
      • Retrial was ordered, but prosecutors did not retry
    • R v Bainbridge [1960] 1 QB 129
      • Facts
        • The defendant purchased oxygen-cutting equipment.
        • Weeks later, the equipment was used in a bank break-in and was left behind by the thieves.
        • The defendant was convicted as an accessory before the fact.
        • The conviction was founded upon the argument that the defendant purchased the equipment on behalf of the thieves and knew that it was to be used for breaking in to premises.
        • The defendant appealed.
      • Issues
        • The defendant argued that even though he had suspected that the equipment might be wanted for some illegal purpose, he denied knowing actually what it would be used for.
        • He claimed that the trial judge had failed to properly direct the jury in terms of what needs to be established in order to be able to convict someone of being accessory before the fact.
      • Decision/Outcome
        • The Court took the view that the trial judge had not erred in his directions to the jury.
        • The Court held that it was sufficient to prove that the defendant knew about the thieves’ general intention to commit a crime, similar in type to the one subsequently actually committed.
        • If, equipped with such knowledge, the defendant still did something to help in the commission of the crime (e.g. bought equipment he knew might be used in committing the crime like in the present case), he can be found guilty of being an accessory before the fact.
        • In other words, the defendant does not need to know the specific time and date and location of the principal offence in advance in order to be found guilty of being an accessory before the fact.
        • The defendant’s conviction was thus upheld.
      • shows that the abettor must know which crime was to be committed for example, a break and enter).
    • the mens rea requirements for abettors are clear:
      • (1) knowledge of the essential facts that made what was done a crime; and
      • (2) the defendant intentionally aided, abetted, counseled and procured
  • Knowledge of the essential matters of an offence
    • What does the abettor need to know?
      • R v Stokes and Difford (1990) 51 A Crim R 25
        • Stokes was convicted of maliciously inflicting grievous bodily harm with intent to inflict grievous bodily harm:
          • Crimes Act (NSW) s 33 (as it then was).
        • D was convicted as an accessory to the lesser offence of maliciously inflicting grievous bodily harm:
          • s 35 (as it then was)
        • The Crown also had to prove that the accessory was aware that the principal performed the acts with the requisite state of mind for that off
          • the Crown had to prove (at 41–2):
        • Had to prove that Difford knew (or was aware):
          • (a) of the intention of Stokes to hit Partlic; and
          • (b) that Stokes:
            • i. intended thereby to inflict some physical injury upon Partlic; or
            • ii. realized the possibility that some injury might result but he nevertheless intended to go ahead and hit Partlic; and
          • 2. that, with that knowledge, Difford intentionally assisted or encouraged Stokes to commit the crime of maliciously inflicting grievous bodily harm upon Partlic.
    • Ancuta v R [1991] 2 Qd R 413
    • confirmed Bainbridge and held that it was sufficient for the Crown to prove that an accessory aided or abetted the kind of crime committed by the principal
  • Intention to aid, abet, counsel or procure
    • D’s encouragement must be willful:
    • R v Clarkson and Carroll [1971] 3 All ER 344;
    • It is a general rule that the enactment of a statutory offence automatically carries with it the liability of principals in the second degree and of accessories, even though the legislature does not expressly mention such liability.
    • expressio unius est exclusio alterius
    • R v Tyrell [1894] 1 QB 710,
      • D, a girl between the ages of 13 and 16, abetted F to have sexual intercourse with her contrary to s 5 of the Criminal Law Amendment Act 1885 (Eng).
    • In Scott v Killian (1984) 36 SASR 438, on a charge of receiving money paid in a brothel in respect of prostitution, it was held that the client was not an accomplice so as to require that a warning be given as to the possible veracity of his evidence.
• EXTENDED JOINT CRIMINAL ENTERPRISE
  • an accessory is only liable if they have intentionally assisted or encouraged the principal offender
  • Giorgianni
    • [A]iding, abetting, counseling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence’.
  • doctrine of common purpose’
    • McAuliffe v R (1995) 183 CLR 108
      • each party is liable not only for what was agreed but also for possible consequences that were within the contemplation of the parties:
  • Not valid in Australia:
    • doctrine of ‘extended common purpose’ or ‘extended joint criminal enterprise’, has been criticised as a form of ‘constructive guilt’ or ‘guilt by criminal association
      • Gillard v R (2003) 219 CLR 1; 202 ALR 202 (at 12.48C); Clayton v R; Hartwick v R; Hartwick v R (2006) 231 ALR 500;
  • In general, therefore, where two or more persons are parties to a joint criminal enterprise, each is equally liable for the consequences of such acts of the other as are performed as part of that enterprise.
    • if A and B agree to assault C, and the assault is committed by A and C dies, A and B are responsible for C’s death.
      • If B only intended to assualt v A intend GBH, then B can be held manslaughter, while A murder
    • If A and B agree to steal from C, the agreement involving neither violence nor the use of any weapon, but, unknown to B, A carries a gun and deliberately shoots and kills C, the difference between what was agreed and what occurred is such that B will bear no responsibility for C’s death
  • The doctrine of extended joint criminal enterprise should only be relied upon where the offence committed is different to that agreed upon by the parties:
    • R v Tangye (1997) 92 A Crim R
    • From Johns v R (1980) 143 CLR 108, the prosecution must prove beyond a reasonable doubt that:
      • (1) D must have formed a common intention to prosecute an unlawful purpose;
      • (2) the principal offence must have been committed in the pursuance of, in furtherance of, or for the purpose of the common design; and
      • (3) D need only contemplate the incidental crime as no more than a possible incident of the joint enterprise.
    • Varley v R (1976) 12 ALR 347;
      • Facts
        • D and two police officers went to the deceased’s residence to beat the deceased in order to compel him to pay over part of the proceeds of illegal transactions in which all three were engaged
          • The accused’s defence, rejected by the jury, was that he had been an unwilling spectator of the assault, coerced by the police into being there
        • if during the enterprise the police used a baton to inflict a degree of force that was beyond what Varley had expected, the police would be guilty of murder and Varley guilty of manslaughter.
      • Held
        • Here the use of the baton or cosh, even if not actually contemplated, was clearly a likely means of carrying out the plan of beating up Burton: and obviously within the scope of that plan.
      • Johns v R (1980) 143 CLR 108
        • Getaway driver for armed robbery, knowing they were carrying, expected pistol to be loaded
        • He knew the principal offender to be quick-tempered and violent, and he had heard the principal offender say he did not intend to let the victim ‘get on top of him’.
        • The trial judge directed the jury that an accessory may be held liable for acts performed by the principal offender if those acts, while differing from what was directly and specifically intended by the accessory, were within the contemplation of the parties as acts that might be done in the course of carrying out their primary criminal intention.
    • Miller v R (1980) 32 ALR 321
      • FACTS:
        • Truro murders – M would drive around & look for young girls – would leave them with W. M returned once – W killed girl – helped bury body – M said W always assured him it would not happen again.
        • M went on trial as accessory to murder.
      • HELD:
        • GUILTY
          • – Would have foreseen that after first murder – murder would be a possible consequence
          • RE: First woman who died – not accessory (no knowledge, no intent) but for women after – jury would state M would at least foresee possibility that murder would occur.
          • “It’ll never happen again” perhaps useful for P to show he was aware of possibility of it happening again.
          • Possibility = conviction – ECP NOW ABOLISHED
    • McAuliffe v R (1995) 183 CLR 108;
      • FACTS:
        • 3 Defendants intoxicated and high - went to Bondi to “rob or bash” someone.
        • 2 had weapons - other unaware - attacked R in cliff area - fell onto puddle near cliff- they left - he rolled off and died.
      • HELD:
        • All denied who actually killed.
        • Under old CP (Common Purpose?) rule - each liable for murder committed by one — foundation offence - assault - charged offence - murder if they subj ectively foresaw murder as possible consequence
      • NOW - GO THROUGH
        • Intentional assistance / encouragement awareness of probability
        • If clear that each participated in offence but unclear which physically committed offence then all can be G (Guilty) as POs
    • Gillard v R (2003) 219 CLR 1;
      • FACTS:
        • G and P [PO] - jointly convicted of two killings - G stole van and drove PO to place where killings took place.
        • G believed PO was going to commit an armed robbery
        • Appealed as to whether MS an available verdict.
      • UNDER CURRENT LAW:
        • Intentional assistance of armed robbery and murder committed → 1st element satisfied.
        • Q is whether G foresaw as a probability that P might murder
        • Complicated because it is a constructive murder case - no need to prove intent or recklessness - so what did G actually have to foresee as probability?
        • G guilty if he foresaw killing as a probability
  • The relationship between joint criminal enterprise, accessorial liability, extended joint criminal enterprise and the doctrine of innocent agency
    • Wood CJ stated (at [65]) that a case of common purpose is one in which it is alleged ‘the parties agreed to commit a particular crime but had in contemplation some further crime, as a possible incident of its commission.’
    • In contrast, a case involving ‘joint criminal enterprise’ is one in which the parties to the enterprise are each ‘active participants and hence liable as principals in the first degree, or one where the Crown being unable to prove which of several persons, present at the scene of a crime, committed the particular act giving rise to the offence, nevertheless was able to establish that each was assisting the other, in which event it was properly left as one of principal and accessory.
  • The distinction between the different types of complicity is important, as where D acts in joint criminal enterprise (or in concert), D’s liability is primary and not derived from that of the other principal(s).
    • In contrast, where the extended joint criminal enterprise (or the doctrine of common purpose) is applied, D’s liability as an abettor depends on the guilt of the principal in the first degree being established.
      • Chan Wing-Siu v R [1985] AC 168, which developed extended joint criminal enterprise in the United Kingdom
  • Matusevich v R (1977) 137 CLR 633
    • In Matusevich v The Queen (1977) 137 CLR 633., this Court decided that, when two persons are said to be acting in concert, the fact that the actual perpetrator is legally insane does not necessarily mean that the conviction of the other, who was present at the scene, should be quashed. - the crown has no automatic right to examine the D just because they raised their good character - this is something leave has been granted for - need for transparency
  • Clayton v R; Hartwick v R; Hartwick v R (2006) 231 ALR 500;
    • FACTS:
      • Purposely smashed car into rental, women retaliated by killing — 3 Ds involved — unclear who stabbed V
        HELD:
      • P argued all G of murder
      • This was on the basis either that there was a joint criminal enterprise to inflict serious injury to the deceased (1. AGREEMENT), or alternatively, that each foresaw the possibility that death or serious injury might be inflicted by one of them (2. PROBABILITY, NOT POSSIBILITY)
      • Each of these people foresaw that death or really SI could be inflicted by one of them
    • KIRBY IN DISSENT:
      • Kirby’s dissent re: probability is now reflected in s.323
      • Kirby J concerned at the possible application of an extended rule to the ‘young, weak-minded, gullible and intellectually impaired’.
• CRITICAL COMMENTARY ON ACCESSORIAL LIABILITY

  • R v Jogee; Ruddock [2017] AC 387

    • Facts
      • This joint case involved two separate appellants who had been convicted for murder on the basis of joint enterprise, after a co-defendant had actually killed the victim.
      • In the case of Jogee, he had been vocally encouraging the principal while he murdered a police officer.
        • In Jogee, the judge made the direction that liability as an accessory would attach where the defendant participated in the attack while realising that the principal might stab the victim while intending to cause really serious harm.
      • In the case of Ruddock, liability was based on his participation in a botched robbery during which the principal murdered the victim (an act which the principal admitted).
        • In the case of Ruddock, the judge made the direction that it was necessary to establish a shared common intention between the principal and the accessory and this could be proved where the defendant was shown to have known that there was a real possibility that the principal might intend to commit a given crime (in that case GBH or murder) and still continued with his participation in the joint enterprise.
    • Issues
      • The court had to determine whether the principle of Parasitic Accessory Liability, as established in Chan Wing-Siu v The Queen [1985] 1 AC 168, is a correct exposition of the law.
    • Decision/Outcome
      • The court held that in order to prove accessorial liability, it was not sufficient to only prove the necessary mental element, but also the element of conduct.
        • This could be discharged by proving that the accessory either assisted or at least encouraged the principal in committing the offence.
      • The mental element is discharged by proving that the accessory intended to so assist or encourage the principal.
        • The mental element however is not discharged by mere foresight that the principal might commit an offence.
      • Chan Wing-Siu v The Queen [1985] 1 AC 168 was incorrectly decided in the part of equating foresight with intent.
      • The convictions were therefore quashed and R v Collinson (1831) 4 Car & P 556, R v Smith (Wesley) [1963] 1 WLR 1200, CCA and R v Reid (Barry) (1976) 62 Cr App R 109, CA were approved.

  • ABANDONMENT OF CRIMINAL PARTICIPATION

    • R v Rook [1993] 2 All ER 955
      • Facts
        • The accused agreed with A, L and MA to kill MA’s wife in return for MA paying them £20,000
        • Accused seemingly bailed, but the others killed wife anyways.
      • Defense
        • The accused’s defence was that he had never intended the woman to be killed, that he hoped to get some money ‘up front’ from MA and then disappear, that he had never intended to go through with the killing himself and that he had deliberately absented himself on the day of the killing because he thought that if he were not there the other two would not go ahead with the crime
      • Held
        • while a person who has embarked on a criminal enterprise may withdraw from it and save himself from criminal liability, ‘more than mere inactivity is required to destroy the criminal liability which flows from the earlier acts
        • Convicted, appeal dismissed

  • ACCESSORIES AFTER THE FACT

    • Blackstone’s description of an accessory after the fact is ‘where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon’: 4 B1 Comm
    • At common law, an accused can only be convicted as an accessory after the fact if it is established that they had knowledge of all the relevant facts or acts that established the precise offence with respect to which the Crown alleged the accused was an accessory: R v Stone [1981] VR 737
    • The penalty for an accessory after the fact for treason is 2 years; for murder, 25 years; for armed robbery and kidnapping, 14 years; and for all other indicatable offences, 5 years: ss 348–350.

Week 10A: Defences Part 1: Mental Health Impairment and Cognitive Impairment; Automatism

• The foundations of the modern law on insanity are to be found, however, in two nineteenth century cases.
  • The first is the Trial of James Hadfield (1800) 27 St Tr 1282.
    • Facts
      • Hadfield attempted to kill King George III by shooting at him
      • At his trial it appeared that Hadfield had acted under a delusion, possibly brought on by an injury to the brain sustained while a soldier, that he was to be the saviour of the world and that this was to be accomplished by his being executed after commission of a spectacular crime.
    • Uncertainty about whether it was possible to detain Hadfield under the criminal law prompted Parliament to pass the Criminal Lunatics Act 1800 (39 & 40 Geo 3 c 94) (England and Wales
      • It provided that in cases where it appeared at a trial that the accused was insane and they were acquitted on this ground, the accused should not be released but should be ordered to be detained at the pleasure of the Sovereign.
      • The provision in the 1800 Act that a defendant found ‘not guilty on account of insanity’ would be detained ‘in strict custody … until His Majesty’s pleasure be known’ came to be known as indefinite detention, and carried over from England and Wales to the Australian states and territories
  • The second, Re M’Naghten’s Case (1843) 10 Cl & Fin 20
    • Daniel McNaughtan shot and killed Edward Drummond, who was secretary to Sir Robert Peel, the then Prime Minister of England.
    • McNaughtan had suffered from the delusion that he was being followed and persecuted by his enemies.
      • He also believed that these persecutors were ‘the Tories’, and he made several unsuccessful attempts to air his grievances, but without result.
      • At his trial, various lay witnesses testified to his delusions and five eminent doctors also gave evidence in support of the view that he was insane.
      • Tindal CJ, in effect, stopped the trial by advising the jury that they could, if they wished, return a verdict of not guilty without hearing further evidence.
    • Post trial parliament hearing about case came to be known as The M’Naghten Rules
      • It is well recognised that the M’Naughten Rules-influenced insanity defence is difficult to raise successfully.
  • A defence related to the defence of mental impairment is that of automatism.
    • Autism def
      • Automatism may be described variously as insane automatism, where the accused acts under the influence of an internal or congenital physiological condition or illness, including a mental illness, or non-insane automatism, where the accused acts in response to an external stimulus.
    • Although automatism is colloquially referred to as a defence, it is probably more appropriate to think of it as a negativing factor.
      • automatism merely restates the requirement that the the act of the accused must be voluntary – ‘conscious’ or ‘willed’ (Ryan)
    • Insane automatism is dealt with under the defence of mental illness/impairment.
    • As such, most cases of automatism arise from the accused’s reaction to an ‘external’, rather than an ‘internal’, factor
      • It is on this basis that non-insane automatism is thought to mark out an individual who is of less danger to the community, resulting in an unqualified verdict of acquittal.
    • Where an accused consumes an intoxicant voluntarily they will be dealt with under the law of intoxication, even regarding automatism.
      • A plea of automatism is preserved where an accused loses consciousness or ‘blacks out’ as the result of the involuntary consumption of an intoxicant: see s 428G.
  • An additional defence dependent on the accused’s mental state is the defence of substantial impairment by abnormality of mind
  • unfitness to plead def.
    • It is a procedural provision (rather than a defence) that exempts an accused from an ordinary trial (at least temporarily) on the basis that they cannot understand or participate in it
    • If a defendant is found unfit to plead, they are also subject to the disposal regime that follows a successful mental impairment defence: see Kesavarajah v R (1994) 181 CLR 230;
      • A person who is unfit to plead may have been of sound mind at the time of the alleged offending, and a person who suffered an exculpatory mental impairment at the time of the otherwise criminal conduct may be fit to plead at the time of the trial.
      • If an accused satisfies both conditions, then it will usually be the case that they will argue unfitness to plead fi
  • Re M’Naghten’s Case (1843) 10 Cl & Fin 200
    • Facts
      • In January 1843, at the parish of Saint Martin, Middlesex, Daniel M’Naghten took a pistol and shot Edward Drummond, who he believed to the British Prime Minister Robert Pell, wounding him fatally.
        • Drummond died five days later and M’Naghten was charged with his murder. He pleaded not guilty by reason of insanity.
      • At trial, evidence was given of the shooting of Drummond and witnesses were called on the behalf of the defendant, M’Naghten, to attest to the fact he was not in a sound state of mind at the time of committing the act.
        • Some of the witnesses who gave this evidence, had previously examined M’Naghten, whilst others had not seen him prior to the trial and, and they formed their opinion on hearing the evidence given by other witnesses.
        • The medical evidence brought forward stated that persons of otherwise sound mind, might be affected by morbid delusions and that M’Naghten was so affected.
      • A person labouring under such delusion, might usually possess a moral perception of right and wrong, but in relation to acts connected to their delusion may be carried beyond power of their own control leaving them with no such perception.
      • Accordingly M’Naghten was not capable of exercising control over his acts whilst under his delusion. Due to the nature of M’Naghten’s condition these delusions went on gradually until they reached a climax, ending with Drummond being shot.
        • Evidence brought before the Court about the condition from which M’Naghten suffered stated that a man may go on for years quietly whilst under the delusion’s influence, but had the potential break out into extravagant and violent paroxysms.
      • In relation to the charge against M’Naghten, Lord Chief Justice Tindal stated that “the question to be determined is, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act.
        • If the jurors should be of opinion that the prisoner was not sensible, at the time he committed it, that he was violating the laws both of God and man, then he would be entitled to a verdict in his favour:
          • but if, on the contrary, they were of opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him.”
    • M’Naghten was found not guilty.
      • Following this a panel of Judges attended the House of Lords and had a series of hypothetical questions on the topic of insanity put before them.
    • Issues
      • The hypothetical questions about insanity the judges had to address were as follows:
        • What is the law respecting alleged crimes committed by persons afflicted with insane delusion, in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?
        • What are the proper questions to be submitted to the jury, when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?
        • In what terms ought the question to be left to the jury, as to the prisoner’s state of mind at the time when the act was committed?
        • If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?
        • Can a medical man conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner’s mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act, that he was acting contrary to law, or whether he was labouring under any and what delusion at the time?
    • Decision/Outcome
      • In response to these questions the Judges formulated the M’Naghten Rules (1843) 4 St.Tr.(N.S.) 847.
      • These provide the legal definition of insanity. Insanity def:
      • They provide that a defendant wishing to rely on the defence of insanity must show that:
        • They laboured under a defect of reason
        • Caused by a disease of the mind; so that either
        • He did not know the nature and quality of his acts, or that he did not know what he was doing was wron
  • R v Porter (1933) 55 CLR 182
    • Background facts
      • The Defendant [Porter] became estranged from his wife and extremely emotional because of it.
      • Evidence suggests he had a nervous breakdown, barely slept, and took a lot of aspirin and caffeine.
      • After a final unsuccessful attempt to reconcile with his wife, he decided to commit suicide and kill his infant child as well.
      • He injected his son with poison, but the police came in beforehe had a chance to kill himself.
      • He was charged for the murder of his son, and he pleaded that he was mentally insane at the time.
    • Legal issues
      • Insanity Defence - Clarifying terms from M’Naghten’s Case
    • Judgement
      • Every person is presumed to be sane unless he argues otherwise (prosecution doesn’t need to disprove it until it is raised).
        • When assessing insanity, it is important to only assess whether the accused was insane at the time the act was committed, as opposed to before, after, or now.
      • A ‘disease of the mind’ is defined as much more than mere excitability, stupidness, passion, lack of self control etc.
        • Those are the actions of the normal man, and a ‘disease of the mind’ requires a real disorder.
      • ‘Did not know the nature and quality of their act’ means that the accused did not understand what they were doing, and what the implications would be (ie, ending a life).
        • This is a very high standard.
        • The person must be so clueless that, in his mind, ending a life would be the same as breaking a twig.
      • ‘Did not know what they were doing was wrong’ means that the accused was not capable of reasoning that his act is wrong is the normal standards of everyday life.
        • This is a lower standard.
  • Willgoss v R (1960) 105 CLR 295
    • Murder during robbery, D psychopath. Distinguished psychopath by gross lack of self-control and gross lack or diminution of emotional feeling, which involved gross diminution of conscience.
      • Argued judge didn’t distinguish an intellectual understanding of wrongfulness and an emotional appreciation of it.
      • Request denied.
        • The complaint, however, on behalf of the prisoner is that his Honour did not direct the jury that a mere intellectual apprehension on the prisoner’s part of the wrongness of the act would not or might not amount to knowledge unless it was accompanied by some sufficient appreciation of, or feeling about, the effect of his act upon other people; perhaps some moral appreciation.
        • The law provides no foundation for such a complaint.
          • It is enough to say that it is an attempt to refine upon what amounts to knowledge of the wrongness of the act which is not countenanced by the law.
  • Attorney-General (South Australia) v Brown [1960] AC 432
    • Background:
      • Accused charged with murder, sole defense being insanity.
      • High Court of Australia quashed initial guilty verdict.
    • Legal Issue:
      • Can “uncontrollable impulse” serve as evidence of legal insanity without specific medical backing?
    • Medical Evidence:
      • Defense and prosecution agreed on schizoid personality disorder but disagreed on accused’s mental state during the crime.
    • Ratio:
      • Privy Council emphasized M’Naughten Rules as defining legal insanity. “Uncontrollable impulse” not recognized as a symptom of legal insanity by default.
    • Decision:
      • Privy Council allowed the Crown’s appeal, setting aside the High Court’s judgment.
    • Application:
      • Original guilty verdict upheld; clarified role of “uncontrollable impulse” in insanity defense.
  • R v Falconer (1990) 171 CLR 30;
    • Prosecution will presume this act was voluntary unless there is evidence to the contrary
      • If automatic, not liable
    • Did not to the actus Reus because they were unwilled or unconscious- involuntary
      • This is caused by trauma, that the ordinary person is not likely to withstand.
      • Transient, and due to some external cause the ordinary person would not likely withstand, not prone to recur
      • EXAMPLES: Disassociation, concussion, sleepwalking, Acts performed under anesthetic, Hypoglycemia
    • Background:
      • The defendant, Falconer, was charged with murdering her husband.
      • She claimed to have no memory of the act and argued that she was suffering from dissociation at the time, making her actions involuntary.
    • Legal Issue:
      • The primary issue was whether acts committed during a dissociative state could be considered “involuntary,” thus negating the actus reus element required for criminal liability.
    • Court’s Reasoning:
      • The High Court of Australia examined the concept of “voluntariness” in criminal law.
      • It was established that the prosecution generally presumes an act is voluntary unless there is evidence to the contrary.
    • Factors for Involuntariness:
      • The court highlighted that an act could be considered involuntary if it was automatic or unconscious.
        • The condition causing this must be transient, due to some external cause an ordinary person would not likely withstand, and not prone to recur.
    • Examples:
      • The court discussed various states or conditions that could render an act involuntary, such as dissociation, concussion, sleepwalking, acts performed under anesthesia, and hypoglycemia.
    • Decision:
      • The High Court upheld Falconer’s conviction, finding that her act was not involuntary under the law.
    • Significance:
      • The case is significant for its comprehensive discussion on what constitutes an “involuntary” act in criminal law, establishing guidelines for what could negate criminal liability.
      • The High Court of Australia outlined three tests to distinguish between non-insane (sane) and insane automatism:
        • Nature of Condition:
          • Insane automatism is generally associated with a disease of the mind or mental disorder, whereas sane automatism typically results from a transient condition like concussion, sleepwalking, or shock.
        • Likelihood of Recurrence:
          • The Court pointed out that for it to be considered insane automatism, the condition should be prone to recur.
          • Conversely, sane automatism is generally due to an external cause unlikely to recur.
        • Ordinary Person Test:
          • The condition causing the automatistic state in sane automatism is usually something that an ordinary person would not likely withstand, like extreme trauma.
          • Insane automatism, on the other hand, typically does not pass this “ordinary person” test.
    • If an accused raises both mental impairment and automatism, different directions regarding burdens will be required.
      • unlike mental impairment, the defence need only raise evidence of automatism, rather than prove it to a legal standard.
        • Thus, if sufficient evidence of automatism is raised by the defence, the prosecution bears the burden of proving beyond reasonable doubt that the accused was not acting in an automatistic state.
  • Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251
    • Background:
      • The case involved a person charged with murder who had a history of psychiatric illness.
      • The case stated raised questions about the accused’s mental competence to commit the offense and issues of self-defense.
      • The case was reserved for the Full Court of the Supreme Court of South Australia.
    • Legal Issue:
      • The main legal issue revolved around changes to the Criminal Law Consolidation Act 1935 (SA), which established a code for dealing with issues of mental competence to commit an offense and fitness to stand trial.
    • Court’s Reasoning:
      • Justice Duggan provided an in-depth interpretation of Section 269B and related provisions of the Act.
      • These sections significantly depart from the common law by separating issues of mental competence from the rest of the trial.
      • The Court also clarified what counts as “objective” and “subjective” elements of an offense.
    • Procedural Steps:
      • According to the Act, if the court is satisfied that the accused was mentally incompetent to commit the offense, it must record a finding to that effect.
      • Depending on the evidence, the court may then either discharge the accused or find them not guilty but liable for supervision.
    • Subjective vs Objective Elements:
      • The Act distinguishes between subjective elements (mental states like intention, knowledge, etc.) and objective elements (all other elements of the offense).
      • A finding of mental incompetence, coupled with proof of objective elements beyond reasonable doubt, results in a verdict of not guilty but liable for supervision.
    • Impact on Defenses like Self-Defense:
      • The Court noted that defenses such as self-defense are not considered objective elements under the Act.
      • The state of mind that would attract self-defense is a subjective element of the offense for the purposes of Part 8A of the Act.
    • Legislative Intent:
      • The Court observed that the legislation aims to address issues previously encountered in common law, particularly concerning voluntariness and other subjective elements.
      • The legislation assumes that any lack of voluntariness is likely due to mental incompetence.
    • Significance:
      • The case is significant for its interpretation of the Criminal Law Consolidation Act 1935 (SA), particularly in dealing with defendants who have a history of psychiatric illness.
      • It clarifies how issues of mental competence and self-defense should be treated under this legislative framework.
    • Decision:
      • Justices Matheson and Nyland concurred with Justice Duggan’s reasoning and interpretation of the Act.
  • SOME COMMENTS ON MENTAL IMPAIRMENT AND RELATED DEFENCES
    • Scope of the mental impairment defence
      • The scope of the M’Naghten Rules has been restricted to cognitive defects (defects of reason or rationality), excluding defects of conation, the psychological processes of desire and volition.
        • Thus, the rules do not extend to cover the case of psychopathy (Willgoss v R (at 15.14C)) and are not readily applicable to the person who is aware of the nature and wrongfulness of the acts they are performing but who is unable to restrain themself from so acting, that is, the person suffering from uncontrollable impulse:
          • Attorney-General (South Australia) v Brown (at 15.15C ).
    • Commonwealth’s Criminal Code (Schedule to the Criminal Code Act 1995 (Cth)) widens the common law defence of insanity.
      • Section 7.3(1) of the Code provides:
        • (1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:
          • (a) the person did not know the nature and quality of the conduct; or
          • (b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
          • (c) the person was unable to control the conduct.
      • ‘Mental impairment’ is defined in s 7.3(8) and (9) as follows:
        • (8) In this Code:
          • mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
        • (9) The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli.
          • However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
    • In New South Wales, the defence of mental impairment continues to be governed by the common law M’Naghten Rules, but a procedural framework for the defence was included in the Mental Health (Forensic Provisions) Act 1990 (NSW).
      • Section 38(1) provides that if the person tried ‘did the act or made the omission charged, but was mentally ill at the time’, the jury should return a ‘special verdict’ — ‘that the accused person is not guilty by reason of mental illness’.
      • Mental illness def
        • the Mental Health Act 2007 (NSW) s 4 provides:
          • mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms—
            • (a) delusions,
            • (b) hallucinations
            • (c) serious disorder of thought form,
            • (d) a severe disturbance of mood,
            • (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d).
      • volitional incapacity has been proposed
        • Volitional incapacity def
          • the person was unable to control the conduct’
        • The revised defence would rest on statutory definitions of ‘mental health impairment’ and ‘cognitive impairmen
          • ‘Mental health impairment def’ is defined broadly as a ‘temporary or continuing disturbance of thought, mood, volition, perception, or memory that impairs emotional wellbeing, judgment or behaviour, so as to affect functioning in daily life to a material extent’
      • Cognitive impairment def:
        • (a) Cognitive impairment is an ongoing impairment in comprehension, reason, adaptive functioning, judgement, learning or memory that is the result of any damage to, dysfunction, developmental delay, or deterioration of the brain or mind.
        • (b) Such cognitive impairment may arise from, but is not limited to, the following:
          • (i) intellectual disability
          • (ii) borderline intellectual functioning
          • (iii) dementias
          • (iv) acquired brain injury
          • (v) drug or alcohol related brain damage
          • (vi) autism spectrum disorders.
    • The Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 (NSW) seeks to replace the previous defence of not guilty by reason of mental illness with a verdict of ‘act proven but not criminally responsible’.
      • The Bill proposes that a jury is to return a special verdict of act proven but not criminally responsible in respect of an offence if the jury is satisfied that the defence of mental health impairment or cognitive impairment has been established.
    • The question of whether the defence is established is to be determined on the balance of probabilities by the jury (or judge where there is no jury)
  • The burden of proof
    • In M’Naghten’s Case, the legal burden of proof on the issue of insanity was clearly placed on the accuse
      • the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction’
      • The standard of proof is on the balance of probabilities.
        • Insanity is the only common law defence that imposes a legal (as opposed to evidentiary) burden on the accused, and it is referred to as the ‘reverse burden of proof ’ on that basis
    • In Woolmington v DPP [1935] AC 462, the House of Lords accepted insanity as an exception to the ‘golden thread’, and this view has been accepted in numerous Australian cases:
      • It has also been held that the burden of proof on substantial impairment by abnormality of mind and unfitness to plead, rests on the accused: R v Dunbar [1958] 1 QB 1;
  • Disposition of mentally ill offenders
    • The underlying rationale of current disposition rules is that an individual found not guilty by reason of mental illness should be subject to a regime that is the least restrictive of their freedom and autonomy as is consistent with the safety of the community.
    • s 39 of the Mental Health (Criminal Procedure) Act 1990 provides that on a finding of not guilty by reason of mental illness, the court may order that the person be detained in such place and in such manner as the court thinks fit until released by due process of law, or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the court considers appropriate.
      • s 39(2) provides that the court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person’s release.
  • Victim rights following the special hearing
    • In 2018, New South Wales introduced the Mental Health (Forensic Provisions) Amendment (Victims) Act 2018 (NSW), which gave victims of crime the ability to furnish an impact statement before a judge conducting a special hearing into the standing of mentally ill offenders.
    • The 2018 amending legislation amends the Crimes (Sentencing Procedure) Act 1999 (NSW) by inserting s 28A, which provides the following rights to victims and their families:
      • 28A Victim impact statements where verdict of not guilty by reason of mental illness or limited finding of guilt
        • (1) A court may receive a victim impact statement after:
          • (a) a verdict that an accused person is not guilty by reason of mental illness (whether or not following a special hearing) under the Mental Health (Forensic Provisions) Act 1990, or
          • (b) a verdict following a special hearing under that Act, that, on the limited evidence available, an accused person committed an offence.
        • (2) A court must acknowledge receipt of the victim impact statement.
        • (3) A court may consider a victim impact statement when it considers what conditions are to be imposed on the release of the accused person.
        • (4) A court is not to consider a victim impact statement when determining the limiting term to be imposed on an accused person.
        • (5) A court must not consider a victim impact statement under this section unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor.
      • 28B Submissions by designated carers and principal care providers
        • (1) A court may seek a submission by the designated carer or principal care provider of an accused person after a verdict of not guilty by reason of mental illness (whether or not following a special hearing) under the Mental Health (Forensic Provisions) Act 1990 or a verdict following a special hearing under that Act, that, on the limited evidence available, the accused person committed an offence.
        • At the time of publication, these amendments had not yet commenced.
  • R v DB [2022] NSWCCA 87:
  • Background:
    • The case revolves around an individual (referred to as DB) who was accused of child sexual offending.
    • The defense for DB was centered around a condition known as sexsomnia, which is a form of parasomnia where an individual engages in sexual activities while asleep​.
  • Legal Issue:
    • The core legal issue was whether sexsomnia could be considered a mental health impairment under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, ss 4, 28, and whether this condition absolved DB of criminal responsibility for the alleged actions​​.
  • Ratio:
    • The court reasoned that sexsomnia did not qualify as a mental health impairment under the mentioned Act.
    • It was argued that the absence of volition while asleep is a universal phenomenon and not a disturbance of volition, hence the common law defense of “sane automatism” continued to apply​​.
  • Decision:
    • The judge concluded that sexsomnia did not constitute a mental health impairment under the Act and acquitted DB, asserting that DB’s condition made his actions involuntary​1​​2​​3​.
  • Application:
    • This case set a precedent regarding how conditions like sexsomnia are treated in the context of criminal responsibility for sexual offenses.
    • It illustrated an instance of non-insane automatism, updating commentary and suggested directions in reference to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020​.

Week 10B: Defences Part 2 - Self-defence and Intoxication

• Self-Defence
  • Self-defence def - ss 418-423
    • Purely statutory - no common law
    • the accused asserts they have been compelled by extreme circumstances or the threats of another to break the law
    • do not deny that the elements of the offence charged can be proved but instead exculpate the accused on the basis of some further fact, beyond the offence’s elements.
  • Self-defence burden/onus
    • it is the accused who bears the evidential burden with regard to a defence, while the prosecution bears the legal or persuasive burden of disproving the defence
      • Question of law, evaluated by judge
    • Thus the question for the jury to decide, once the accused has met the evidential burden, is whether the prosecution has disproved the defence beyond a reasonable doubt:
      • Woolmington v DPP [1935] AC 462;
    • Where the accused has not raised a defence but the evidence in the trial nonetheless raises that defence, the common law approach is that the trial judge must instruct the jury that the prosecution must disprove the defence:
      • Pemble v R (1971) 124 CLR 107;
  • Common law self-defence
    • In general, a person could raise the defence if they acted in order to:
      • (1) defend themself from unlawful violence;
      • (2) defend another from unlawful violence;
      • (3) prevent the commission of a crime, or
      • (4) exercise a power of lawful arrest
    • In such cases, the accused was entitled to a complete acquittal if three conditions were satisfied:
      • (1) the accused was genuinely acting for one of these purposes.
        • Clearly, the accused may not take advantage of such a situation arising in order to do away with an enemy;
      • (2) the accused used no greater degree of force than they honestly believed to be necessary in the circumstances of the case.
        • This condition posed a test that was subjective in nature; the question is whether the accused believed the force used was proportionate to the necessity of the situation in which that person was placed; and
      • (3) the accused used no greater degree of force than a reasonable person would have regarded as necessary in the circumstances of the case.
        • This condition posed a test that was objective in nature; the question is not what the accused believed to be reasonably necessary but what an ordinary person would have regarded as necessary.
        • In Palmer v R [1971] AC 814, the Privy Council took the view that [failing in condition 3], the accused’s defence would fail altogether and they would be guilty of murder
        • Zecevic v DPP (Vic) (1987) 162 CLR 645; 71 ALR 641,
          • The High Court disapproved of its earlier decisions and chose to follow the approach taken 16 years earlier by the Privy Council and the English Court of Appeal, Criminal Division. While
    • Zecevic v DPP (Vic) (1987) 162 CLR 645; 71 ALR 641
      • Background:
        • The appellant, Zecevic, lived in a block of units with his family in Melbourne, Australia.
        • The deceased was a tenant in the unit block.
        • A deteriorating relationship led to an altercation between the two, after which Zecevic shot and killed the deceased.
      • Legal Issue:
        • The case centered on whether Zecevic acted in self-defense when he shot and killed the deceased.
        • Specifically, did he have a reasonable belief that the use of deadly force was necessary to protect himself?
      • Ratio:
        • The court articulated that the test for self-defense should be whether the accused believed upon reasonable grounds that it was necessary in self-defense to do what he did.
        • The reasonableness of this belief should be considered in the context of the perceived threat.
      • Decision:
        • The High Court of Australia allowed the appeal and ordered a new trial.
        • The judges stated that the jury should consider whether Zecevic believed that his actions were necessary in self-defense and whether he had reasonable grounds for this belief.
      • Application:
        • This case serves as a precedent in Australia for cases involving self-defense claims.
        • It emphasizes that the test should not involve any set words or formulae but focus on the reasonable belief of the accused in the necessity of their actions.
    • R v Burgess (2005) 152 A Crim R 100
      • Painted no war on opera house, “if we don’t show iraq we are not enemies, we may be targets”, Both argued in self-defence
      • Self defence cannot be too remote
  • Statutory self-defence
    • Introduced to Crimes Act 1900 via Crimes Amendment (Self-Defence) Act 2001 (NSW
      • re-established the doctrine of excessive self-defence reducing murder to manslaughter.
      • Crimes Act 1900 Division 3 Self-defence
        • ss 418-423
    • Colosimo v DPP [2006] NSWCA 293
      • Background
        • Three brothers got into a physical altercation with security staff at Star City Casino in Sydney after one of them was asked to leave due to intoxication.
        • When the other brothers verbally abused the security guard and were also asked to leave, a physical confrontation ensued that resulted in injuries to four security guards.
      • Legal Issue
        • The key legal issue was whether the brothers could claim self-defense to justify their actions, stating they were acting to protect themselves and each other from being deprived of their liberty.
      • Ratio
        • The court reasoned that for self-defense to apply, there must be an immediate and unlawful threat to one’s safety or liberty.
          • In this case, the brothers were not facing any such immediate and unlawful threat, thus disqualifying the use of self-defense as a viable legal argument.
      • Decision
        • The New South Wales Court of Appeal upheld the brothers’ convictions for affray.
        • The court agreed with the lower courts that the defense of self-defense did not arise in this particular situation.
      • Application
        • The case serves as a legal precedent, highlighting that self-defense cannot be used as an argument for justifying acts of affray or physical confrontations unless there is a clear, immediate, and unlawful threat to personal safety or liberty.
  • Excessive self-defence: statutory provisions in New South Wales
    • The High Court of Australia abolished the common law doctrine of excessive self-defence in Zecevic v DPP (Vic) (1987) 162 CLR 645; 71 ALR 641.
    • New South Wales reintroduced excessive self-defence in s 421 of the Crimes Act (NSW).
      • (a) all the elements of murder have first been proven by the prosecution beyond reasonable doubt;
      • (b) the accused genuinely believed it was necessary to engage in the conduct in order to defend themself against another person or prevent unlawful deprivation of liberty; and
      • (c) a reasonable person in the accused’s position would not have considered the accused’s response reasonable in the circumstances
  • Excessive Self-defence Onus
    • If s 421 is raised on the evidence or by the defence, the onus is on the prosecution to prove that the act causing death was not done in self-defence;
    • that is, that the accused did not (subjectively) hold the relevant belief:
      • see Crimes Act (NSW) s 419; Ryan v R [2013] NSWCCA 175
  • Silva v R [2016] NSWCCA 284
    • Self-defence in a situation of domestic violence appellant
    • There was much evidence of extreme threats and violence by the deceased against Silva, including recordings of ranting and threats on the day of the homicide.
      • The prosecution had successfully argued that at the time the fatal stab wound had been inflicted, it was no longer reasonable for Silva to inflict a mortal injury, as the deceased was no longer a threat as he was being held down by two men
    • On Appeal, the court held that the deceased’s attack on Silva was urgent, life-threatening and inescapable, and the physical confrontation should be considered in the context of the hours prior to the fatal wound
      • The court focused on Silva’s perception of the threat, including her belief the deceased had a gun (when in fact he did not).
      • It was also accepted that her response of arming herself and stabbing the deceased was a ‘reasonable response’ to defend herself, or her brother or father.
  • R v Katarzynski [2002] NSWSC 613,
    • in New South Wales the questions to be considered by the jury when self-defence is raised are:
      • (a) is there a reasonable possibility the accused believed their conduct was necessary in order to defend themself; and (subjective)
      • (b) if there is, is there also a reasonable possibility that what the accused did was a reasonable response (not a reasonable person test) in the circumstances as they perceived them to be? (objective)
    • It was held that intoxication is relevant to the first, subjective question to be determined by the jury; that is, whether it is reasonably possible that the accused believed it was necessary to do what was done in self-defence, but not to the second question, being whether the response was reasonable.

Week 10B: Part 2 - Intoxication

• Intoxication
  • Intoxication, whether as a result of the consumption of alcohol or of other drugs, is not a defence as such.
  • Intoxication is evidence that may go to the issue of whether the prosecution has proved that the accused performed the requisite actus reus with the mens rea.
    • the law on intoxication relates to the admissibility of evidence, rather than substantive law.
    • Intoxication does not of itself excuse or exculpate an accused.
  • Intoxication as a consequence of alcohol or drugs voluntarily consumed, and falling short of rendering the accused’s conduct involuntary, cannot, however, give rise to a defence to a crime of absolute liability
  • In the important case of R v O’Connor (1980) 146 CLR 64; 29 ALR 449 (at 16.26C ), the High Court of Australia rejected Director of Public Prosecutions v Majewski [1977] AC 443
  • The accused was charged with the murder of a girl whom he raped and suffocated.
  • His defence was that he was drunk and had not intended to cause either death or grievous bodily harm to the girl.
    • The accused was charged with the murder of a girl whom he raped and suffocated.
      • His defence was that he was drunk and had not intended to cause either death or grievous bodily harm to the girl.
    • Principle
      • In relation to crimes of ‘specific intent’, intoxication could be adduced to cast doubt on whether the Crown had proved the elements of the offence, but that in relation to crimes of ‘basic intent’, self-induced intoxication could not be adduced as evidence to cast doubt on the Crown case. = Beard passage
  • In Bratty v Attorney-General (Northern Ireland) [1963] AC 386, Lord Denning stated in obiter that if a ‘drunken man is so drunk that he does not know what he is doing, he has a defence to any charge … in which a specific intent is essential’
    - specific intent def was invested with a distinct technical meaning and came to denote the intent required for an offence, over and above the intent to do the external actus reus of the offence: see R v Heard [2007] 3 All ER 306
    • Aka ulterior intent
  • In R v Lipman [1970] 1 QB 152, the accused and his girlfriend took a quantity of the drug LSD.
    • In the course of the hallucinatory experience that followed, the accused, believing he was being attacked by snakes and had to fight for his life, suffocated his girlfriend by cramming part of a sheet into her mouth.
    • The accused was convicted of manslaughter on the basis of both the negligent manslaughter doctrine and the unlawful act manslaughter doctrine
      • Court of appeal held that manslaughter was a crime of basic intent; that is, it can be proven by proof of the fact of having caused
      • The Court of Appeal noted that, had the defendant’s girlfriend survived the attack, the defendant would have been acquitted, because the offences with which he would have been charged — causing grievous bodily harm with intent, or assault occasioning actual bodily harm — were specific intent offences;
        • Specific intent offence def
          • that is, they required proof that the defendant had a specific intent of causing grievous bodily harm.
  • In Director of Public Prosecutions v Majewski [1977] AC 443, the accused was involved in a brawl at a pub in which he attacked the landlord and customers.
  • He also attacked the police officer who arrested him, another police officer while he was being driven to the police station, and, the following morning, a police inspector in a cell at the police station.
    • The accused’s defence was that the offences had been committed while he was suffering from the effects of alcohol and drugs and that he had not intended to commit the assaults.
  • Judge held assault was not a specific intent crime, self-induced or voluntary intoxication by drink and drugs could not be adduced as evidence and was to be ignored by the jury in reaching their verdict.
  • House of Lords
    • Their Lordships accepted as crucial the distinction between crimes of specific intent and crimes of basic intent.
    • intoxication voluntarily induced will be admissible to cast doubt on whether the Crown has proved the elements of the offence or, put another way, to assist the defence to suggest that the accused’s acts were involuntary or prevented them from forming the mens rea of the crime charged.
  • The decision as to which crimes are of specific intent and which are of basic intent is clearly one of public policy rather than clear logic or principle.
    • partial list of crimes falling within each category.
      • specific intent.
        • murder,
        • wounding
        • or causing grievous bodily harm with intent to cause grievous bodily harm,
        • and theft
        • s 428B of the Crimes Act contains a table setting specific intent crimes.
      • Basic intent
        • manslaughter,
        • maliciously wounding or inflicting grievous bodily harm,
        • assault occasioning actual bodily harm and, a fortiori,
        • common assault
        • it was resolved in R v Eatch [1980] Crim LR 650 that rape is a basic intent offence
  • Harkins v R [2015] NSWCCA 263 demonstrates the intended reading of Pt 11A of the Crimes Act (NSW) as wholly replacing the common law of intoxication in New South Wales
  • As to the inclusion of new offences under s 428B, McIlwraith v R [2017] NSWCCA 13 treats as an offence of specific intent one which can be proved by knowledge of specific matters, in the same way as one where the state of mind involves a specific intention, and thus subject to the provisions of Pt 11A.
    • determines whether error in finding the offence of intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is not an offence of specific intent, and whether the offender’s intoxication at the time of the offence is able to be taken into account in the determination of guilt.
  • McIlwraith v R [2017] NSWCCA 13

    • Background:

      • McIlwraith was convicted for violating s 13(1) of the Personal Violence Act.
      • The trial judge determined that intoxication was not relevant to the case because the offense was not of “specific intent.”

    • Legal Issue:

      • The issue was whether the offense under s 13(1) of the Personal Violence Act qualifies as an offense of “specific intent” under s 428B, in which case intoxication could be relevant to the accused’s mental state.

    • Ratio:

      • The court distinguished between “knowledge” and “intention,” stating that knowing an outcome is likely is not the same as intending it.
        • Basten JA pointed out that s 13(1) should still be considered an offense of “specific intent,” even when the element of intent can be satisfied by knowledge.

    • Decision:

      • The court ruled that the offense under s 13(1) of the Personal Violence Act remains an offense of “specific intent” and that intoxication could be relevant in proving the mental element.

    • Application:

      • The decision clarifies the scope and application of “specific intent” offenses, specifically in the context of the Personal Violence Act.
      • It also discusses how the state of intoxication can be relevant when the offense involves specific intent.
• INVOLUNTARY INTOXICATION
  • Involuntary or non-voluntary intoxication def is defined narrowly to encompass circumstances in which the accused is tricked or forced into consuming alcohol or other drugs.
    • Consuming a seemingly non-alcoholic drink that has been laced with alcohol will be considered involuntary intoxication (R v Allen [1988] Crim LR 698), but underestimating the effect of alcoholic substances will not: R v Eatch [1980] Crim LR 650.
  • Under the Majewski approach to intoxicated offending, evidence of involuntary intoxication may be adduced in relation to both ‘specific intent’ and ‘basic intent’ offences.
  • Similarly, in R v O’Connor, Barwick CJ suggested that the principles to be applied are the same in cases of both voluntary and involuntary intoxication.
    • As Lane LJ stated in R v Sheehan; R v Moore [1975] 2 All ER 960; [1975] 1 WLR 739 at 744, a ‘drunken intent is nevertheless an intent’.
  • in R v Kingston [1994] 3 All ER 353
    • How involuntary intoxication affects liability
    • The accused, who had paedophiliac tendencies, was blackmailed by former business associates who arranged for another man, P, who had similar paedophiliac tendencies, to photograph and audiotape the accused in a compromising situation with a boy
      • P lured a boy to his flat, where he gave him what seemed an innocuous drink and some cannabis.
        • The boy fell asleep on the bed and while he was unconscious P invited the accused to sexually abuse the boy.
        • The accused did so and was photographed and taped.
    • The Law Lords affirmed the trial judge’s direction that Kingston could be acquitted only if his involuntary intoxication meant he did not form, or might not have formed, the intention to assault the boy.
  • A different approach is adopted in the Criminal Code Act 1995 (Cth), where a distinction is drawn between self-induced intoxication and intoxication that is not self-induced.
    • s 8.1 provides:
      • For the purposes of this Division, intoxication is self-induced unless it came about:
        • (a) involuntarily; or
        • (b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force
    • in the case of defences an element of which depends on whether a reasonable belief exists,
      • s 8.4(3) provides that if a person’s intoxication is not self-induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.
      • s 8.5 provides:
        • A person is not criminally responsible for an offence if the person’s conduct constituting the offence was as a result of intoxication that was not self-induced.
  • Statutory Provisions of Self-defence
    • The New South Wales provisions follow the Majewski approach
      • s 428C of the Crimes Act (NSW) provides that self-induced intoxication may be a defence in the case of offences of specific intent.
        • Intoxication in relation to offences of specific intent
      • s 428B lists numerous offences as offences of specific intent, and a further set of offences as offences of specific intent to the extent that an element of the offence requires a person to intend to cause the specific result necessary for the offence
      • s 428D Intoxication in relation to other offences
      • s 428E deals specifically with the situation in respect of murder, manslaughter and assault causing death,
      • s 428F Intoxication in relation to the reasonable person test
        • Reasonable person is not intoxicated
      • s 428G Intoxication and the actus reus of an offence
    • In R v Grant (2002) 55 NSWLR 80,
      • the Court of Criminal Appeal held that murder in all forms, including cases of murder by recklessness and felony-murder, is to be regarded as a crime of specific intent

Week 10B: Part 3 - Necessity and Duress

• Duress and Necessity
  • The elements of duress and necessity are elicited at common law.
  • The elements of necessity are outlined in Loughnan [1981] VR 443, 448.
    • The defence must raise evidence to suggest a reasonable possibility that:
      • 1. The act must have been done in order to avoid consequences which would have inflicted irreparable harm on the V or those s/he was bound to protect;
      • 2. The accused must honestly believe on reasonable grounds that there was an imminent or immediate peril; and
      • 3. Acts done to avoid the peril must not be out of proportion to the peril avoided.
  • The leading authority for the elements of duress is R v Lawrence [1980] 1 NSWLR 122,
    • applying Smith J’s formulation of the defence in R v Hurley and Murray [1967] VR 526 with approval.
    • The defence must raise evidence to suggest a reasonable possibility that D was required to do the criminal act:
      • 1. under threat of death or GBH to a person if the act is not done (majority limited it to a personal threat), and
      • 2. a person of ordinary firmness would have yielded to the threat, and
      • 3. the threat was present and imminent, and
      • 4. accused reasonably apprehended the threat would be carried out, and
      • 5. the threat actually induced the crime (ie. no other main reason), and
      • 6. the crime was not murder, and
      • 7. D did not, by their own fault, expose themselves to the threat, and
      • 8. D had no means to avoid the threat.
  • How to distinguish between defences of compulsion
    • As defences of compulsion, duress and self-defence are particular forms of necessity.
      • Self-defence applies to a situation where D commits a crime to avoid or terminate one of the threats listed in s 418(2)(a)-(d)
        • (e.g. D punches V to escape V who is running at D with a knife in their hand)
      • Duress applies to a situation where D is induced to break the law at the behest of another and their will is overborne by the threat of infliction of violence on D or a person close to D, unless D commits the criminal act
        • (e.g. ‘If you do not rob this bank with me I will shoot you!’)
      • Necessity is the residual defence.
        • It may operate when the other defences of compulsion are not applicable.
        • It refers to a situation where is compelled or induced to break the law to avoid more dire consequences (e.g. D steals a car to drive to higher ground to escape a tsunami).

Week 11: Police Powers

• Intro

  • Criminal investigation is usually put into motion when an alleged crime is reported to the police or when the police identify a crime.
    • The police have a virtually unfettered discretion to determine whether the law should be enforced
    • Structuring a rule or a discretion as a curial
      • A common mechanism for encouraging compliance by police investigators with legal obligations
        • law can be framed such that non-compliance with it may lead a court to exclude relevant evidence wrongly or prejudicially obtained through methods such as questioning, a search or an arrest.
  • Nature of police powers
    • Policy-wise
      • Although policy-makers intended the introduction of tasers to curb the use of firearms, evidence suggests the opposite has occurred.
      • New South Wales police have been given additional search and seizure powers in relation to things used to interfere with business or undertakings under the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW).
        • In New South Wales, extended strip search powers have been given to police under the Law Enforcement (Powers and Responsibilities) Amendment Act 2014 (NSW)
    • Function
      • The police have both inquisitorial and adversarial functions in relation to prosecutions.
      • In terms of their interrogations, the police are responsible for deciding to apprehend, search, caution, arrest, divert, charge, provide bail to and question suspects
  • Advances in criminal investigation
    • How the field has changed
      • 1. advances in science, including DNA, breath testing and computer imaging technology, which make many aspects of criminal investigation less dependent on eyewitnesses, admissions and other sorts of traditional ways of linking crimes and suspects;
      • 2. video, sound and digital recording devices have meant that interviews with suspects can be scrutinised while CCTV has both provided a means for identifying suspected offenders as well as monitoring activities in police cells (including those relating to deaths in custody);
      • 3. body-worn cameras by police officers record interactions with the public and help gather evidence at crime scenes;
      • 4. electronic tags fitted to the ankles of people who have committed offences enable the police and parole officers to identify when they commit further offences.
    • Post 9/11
      • Australian Security Intelligence Organisation Act 1979 (Cth) s 34D(4)(a)
        • the power to arrest and detain a person for up to 168 hours on the broad ground that the person might ‘substantially assist the collection of Intelligence that is important in relation to a terrorism offence’:
  • HUMAN RIGHTS, COMMUNITY PROTECTION AND REASONABLENESS
    • procedural fairness def
      • refers to how fairly the person under investigation is treated and whether he/she is afforded basic legal rights
      • The accused must be treated humanely and his/her innocence presumed.
    • Factual basis for reasonable suspicion
      • Established in R v Rondo (2001) 126 A Crim R 562.
      • In Goldie v Commonwealth of Australia (2002) 117 FCR 566 at 569, [6], Gray and Lee JJ underscored the importance of officers forming a ‘reasonable’ suspicion before an arrest in order to uphold the principle of ‘individual liberty’ that underlies that common law
    • In Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811, the New South Wales Supreme Court narrowly interpreted the meaning of ‘reasonably required’ under s 74A of the Firearms Act 1996 (NSW), which permits searches if it is ‘reasonably required’ to determine whether a person is in breach of a Firearms Prohibition Order (FPO).
      • involved a search of a vehicle for a person who was subject to an FPO, where the police found cannabis.
      • In defending the drug charge, the defendant argued that the search was unlawful because there was no reasonable basis for the search.
        • R v Ioannidis (2015) 124 SASR 86 at [22], in which the Full Supreme Court of South Australia held in relation to its Firearms Act 1977 (SA) that a police officer may be deemed to have lawfully searched a person, on the basis that it is ‘reasonably required’ to ensure compliance with a FPO and ‘for no other cause than to check compliance with the FPO’.
          • Supreme court said too bad
    • However, where police actions, including force, go beyond those prescribed in legislation, courts have restated that there must be proof of ‘reasonable suspicion’ and that their acts must be ‘reasonably necessary’.
      • Moreover, State of Western Australia v Cunningham [No 3] [2018] WASCA 207 concerned a couple, including an associate professor in Law, in Perth who were tasered, handcuffed and charged with obstructing a police officer, as a result of helping a man lying in the bushes.
        • The Western Australian Court of Appeal found that the use of force and charge was excessive and unreasonable and amounted to battery, false imprisonment and misfeasance in public office.
          • Their defence of self-defence failed because the officers did not believe or believe on reasonable grounds that it was necessary to use such force
    • The common law accusatorial system of criminal justice provides accused persons with the following general rights and privileges:
      • the presumption of innocence,
      • the right to remain silent,
      • the privilege against self-incrimination,
      • the right to liberty from unreasonable state interference and
      • the right to the quiet enjoyment of their homes and their properties.
    • For over a decade Coco v R (1994) 179 CLR 427 (see at 1.17) has guided Australian courts in relation to fundamental common law rights in criminal procedure.
      • In Coco v R (1994) 179 CLR 427 at 437 the High Court restated this coco principle as follows:
        • The courts should not impute to the legislature an intention to interfere with fundamental rights.
      • Lee v New South Wales Crime Commission (2013) 302 ALR 363; [2013] HCA 39 at [186], which rely on Coco, reiterate that the fundamental common law rights extend to immunity for suspects ‘from having to answer, under compulsion, questions of the police’
      • In Momcilovic v R (2011) 245 CLR 1; [2011] HCA 34 [444], the High Court described fundamental rights or freedoms as including
        • freedom from trespass by police officers on private property (referring to Coco),
        • freedom from arbitrary arrest or search,
        • the privilege against self-incrimination and
        • the right to a fair trial.
    • Coleman v Power (2004) 209 ALR 182 illustrates the balance that courts and legislatures must strike in the creation and policing of public order offences
      • Public order offences are directly related to policing because they are often utilised by police officers to enforce their power and authority on the street.
        • In Coleman v Power, Coleman was conducting a protest relating to allegations of corruption against certain Townsville police officers.
        • He was distributing pamphlets to this end, and when Constable Power approached and asked to see a pamphlet, he was pushed by Coleman, who said loudly:
        • ‘This is Constable Brendan Power, a corrupt police officer.’
        • It was found that Coleman’s pushing and verbal insult provoked his arrest.
        • Coleman was convicted of using insulting words to Power in a public place under s 7 of the Queensland vagrancy legislation
      • The major issue before the court was whether s 7 creating the offence was constitutionally valid and, following on from this issue, whether Coleman had been lawfully arrested.
        • The court by majority held that the legislation was valid but that Coleman’s conviction should be quashed because any legislation criminalising the use of insulting and abusive words required a narrow interpretation.
      • Blood testing, breath testing and tape-recording of police questioning are some of the trappings of modernity that extend and keep in check police powers of investigation.
    • Al-Kateb v Godwin [2004] HCA 37 illustrates the ‘rights’ tension in this new legal landscape.
      • In Al-Kateb the High Court split 4–3 in determining the applicability of the Coco principles to provisions in the Migration Act 1958 (Cth).
        • These provisions permit detention of unlawful non-citizens until their removal ‘as soon as reasonably practicable’ from Australia.
        • Facts
          • Al-Kateb, an unlawful non-citizen and a stateless Palestinian, had been detained in immigration detention for four years.
          • The countries with which he had connection by birth or by residency, Kuwait and Israel, refused him entry.
          • The court was required to consider whether, with no reasonable prospect of removal to another country, the Migration Act provisions validly authorised the detention of Al-Kateb.
            • McHugh, Hayne, Callinan and Heydon JJ, the majority, held that they did.
        • Gleeson CJ, Gummow and Kirby JJ dissented.
          • Applying the Coco principle, they viewed the provisions as regulating only detention for the purpose of facilitating the removal of unlawful non-citizens from Australia
          • In their Honours’ view, the provisions did not apply where there was no realistic possibility of removing Al-Kateb from Australia.
          • The minority viewed the statutory obligation to detain Al-Kateb as
  • FOUNDATIONAL ISSUES RELATING TO POLICE POWERS
    • The scope of reasonable suspicion
      • Police have the power to arrest a suspect once they have established a ‘reasonable suspicion’ of guilt, or the test of reasonable belief in some jurisdictions
        • If a criminal prosecution is to proceed to conviction, police investigations will usually need to have produced sufficient admissible prosecution evidence to satisfy the court ‘beyond reasonable doubt
      • Reasonablesnes is based on the objective standard in context of the officer’s subjective standpoint
        • Reasonable suspicion is discussed in R v Nguyen
    • Goldie v Commonwealth of Australia (2002) 188 ALR 708;
      • Background:
        • Cain, an officer with the Department of Immigration and Multicultural Affairs, detained Goldie under Section 189(1) of the Migration Act 1958.
        • Cain based his suspicion on computer records that were outdated and incomplete.
        • Goldie actually had a valid visa at the time of the arrest.
      • Legal Issue:
        • Whether Cain’s suspicion that Goldie was an unlawful non-citizen was “reasonable” under the Migration Act, and thereby justifying detention.
      • Ratio:
        • An officer must make due inquiry to obtain material relevant to forming a “reasonable suspicion.”
        • A suspicion not grounded in fact does not become reasonable just because there is a perceived need to act quickly.
      • Decision:
        • The majority held that Cain’s suspicion was not reasonable; therefore, the arrest and detention were unlawful.
        • Stone J dissented, saying that under the circumstances, Cain’s suspicion was reasonable.
      • Application:
        • The case sets a precedent for what constitutes a “reasonable suspicion” under the Migration Act.
        • It emphasizes the need for immigration officers to make comprehensive inquiries before detaining individuals suspected of being unlawful non-citizens.
    • Police discretion
      • guilty pleas represent by far the most common outcome where charges have been laid, preventing the court from scrutinising the methods by which evidence was collected.
      • Even if a policing issue is aired in court, the reality is that curial reviews rely on contested accounts of incidents determined after the event.
        • ‘Voluntary’ cooperation of suspects often follows peremptory ‘commands/ invitations’ such as, ‘We’ll go back to the station and sort this out’.
        • At law these interactions, amounting to ‘consensual policing’ are often invisible.
          • ‘consensual policing’ continues to suspend police obligations — including charging, considering bail, and offering assistance with respect to legal representation — that would otherwise apply after arrest.
    • POLICE WORK
      • Police officers are subjected to work stresses, pressures, inflexibility and shift-work that contribute to high attrition rates.
      • Workplace issues such as bullying, and, at the other end of the spectrum, camaraderie, are also described in the Lynch and Tuckey study
      • A significant feature of police culture is the bond in police services.
        • The term ‘police culture’ has become synonymous with a strong code of solidarity among police officers.
          • a sense of mission about one’s work;
          • an orientation towards action;
          • a cynical or pessimistic perspective about the social environment;
          • a constantly suspicious attitude; an isolated social life with a strong sense of solidarity with other police officers;
          • a clear categorisation of the public as either the rough or the respectable;
          • conservative views on politics and morality;
          • machismo attitudes towards women, drinking and womanising;
          • intolerance of minorities;
          • and a pragmatic view of police work discouraging of innovation and experimentation.

• Statutory limits on police powers: LEPRA and the Evidence Act

  • Overhaul of the Crimes Act 1914 (Cth) and the introduction of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW
    • regulates and enhances police powers in relation to arrest, search and identification of suspects, with the most recent changes focusing on forensic forms of identification, which will be discussed in future chapters.
      • reflecting ‘the views of those who believe “effective law enforcement” is of greater importance than the preservation and protection of individual rights’.
  • Legislative limits on police powers in the Evidence Act
    • The uniform Evidence Act 1995 (Cth) applies federally
      • New South Wales legislated its own Evidence Act 1995 shortly after the Commonwealth Act came into operation, aka Uniform Evidence Acts (UEA).
    • In particular, ss 137 and 138 provide the major forms of discretionary exclusion for unfairly prejudicial and illegally or improperly obtained evidence
      • Uniform Evidence Acts
        • UEA s 137 Exclusion of prejudicial evidence in criminal proceedings
          • In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
        • UEA s 138 Discretion to exclude improperly or illegally obtained evidence
          • Evidence obtained improperly or in violation of Australian law is generally not admissible unless the desirability outweighs the undesirability.
          • Evidence from admissions made during improper questioning is also considered improperly obtained.
          • Improper questioning includes acts that substantially impair rational response or making false statements knowingly.
          • Factors the court considers for admissibility include probative value, importance of evidence, nature of the offense, gravity of the impropriety, and more.
          • The court also considers whether the impropriety violates international rights and if any other proceedings are likely related to the impropriety.
        • UEA s 139 Cautioning of persons
          • If a person is under arrest, evidence obtained without prior cautioning is considered improperly obtained.
          • Investigating officials must caution that the person has the right to remain silent but anything said may be used as evidence.
          • The caution must be in a language the person understands and doesn’t have to be written if the person can hear adequately.
          • The rule doesn’t apply if another Australian law requires the person to answer questions.
          • Being “under arrest” also includes situations where the person is with an official for questioning and believes they cannot leave.
          • Exceptions exist, such as when officials are handling border controls or exercising certain other powers.
  • WHAT IS AN ARREST?
    • Arrest def
      • a means of physically restraining a person’s freedom of movement for the purpose of taking the person before a court to answer criminal charges
      • NOT arresting
        • the stopping of a person for the purpose of a legal search and
        • the stopping and detaining of motorists under road safety, alcohol and drugs legislation for random breath testing.
      • An arrest will only be lawful if it is done in accordance with a specific power and for a proper purpose provided by law.
    • Alderson v Booth [1969] 2 QB 21
      • An arrest may be achieved by words or conduct that make it plain to the person that he or she is no longer free.
    • An argument about whether or not an arrest has taken place will usually arise in the following circumstances.
      • First, is the situation where the accused argues that there was no arrest at all or that any purported arrest was not lawful.
        • typically defending charges of escape from lawful custody or resisting or obstructing the police
          • resistance to an unlawful arrest, or where there has been no arrest, is not unlawful:
            • see Michaels v R (1995) 184 CLR 117;
            • Police v Thomson [1969] NZLR 513;
            • R v Jones; Ex parte Moore [1965] Crim LR 222 (cited by Macarthur J in Police v Thomson);
      • In the second situation, it is the prosecution who argues that there was no arrest.
        • This typically occurs where the defence disputes the admissibility of an item of prosecution evidence, such as a confession, obtained during the arrestee’s detention
          • The accused argues that the evidence has been obtained illegally because the police failed to comply with the legal obligations that flow from the arrest.
          • The prosecution commonly responds to this argument by asserting that there was no need to comply with these obligations as no arrest occurred — the detainee was merely ‘voluntarily’ assisting the police with their inquiries.
      • The point has been made that because a volunteer has none of the rights of an arrestee, he or she is actually at a disadvantage in comparison to an arrestee.
      • This situation has also been criticised as providing the police with a judicially sanctioned loophole that may be exploited to avoid the obligations imposed by the law of arrest
  • Common law arrest
    • At common law, there must be an actual deprivation of liberty to constitute an arrest.
    • But where there is no actual physical restraint of the person, there still must be a deprivation of liberty, which may be proved by showing that the person submitted to the arrestor’s power.
      • Licciardello v R [2012] ACTCA 16 is an example of a case where there had been no deprivation of liberty because, despite the announcement of the police that the defendant was under arrest, the defendant did not submit.
        • Licciardello had been stopped in his vehicle after allegedly committing a traffic infringement.
        • He was asked to produce his licence, which he could not do because he was unlicensed, being a disqualified driver
        • He had just been released from gaol for driving offences.
        • Police told him he was under arrest for driving whilst disqualified.
        • Licciardello responded with words to the effect that he did not want to go back to gaol, and thereupon walked around his car and ran away.
      • The question for the court was whether Licciardello had actually been under arrest, because if he was not, he could not be guilty of having escaped from lawful custody
        • In finding that no arrest had taken place, the court relied on Wilson v New South Wales (2010) 278 ALR 7
          • ‘The requirements for an arrest are
            • (1) communication of intention to make an arrest, and
            • (2) a sufficient act of arrest or submission’.
      • In situations like R v O’Donoghue (1988) 34 A Crim R 397
        • (where the suspect claims he was required to comply with police directions, but police claim that the accused voluntarily accompanied them to the police station, see below),
      • courts interpret police words and conduct in terms of their impact upon the suspect’s state of mind, that is:
        • Did the detainee reasonably believe, as a result of police actions, that he or she was under arrest?
        • Did the police use words or conduct of arrest which compelled the detention of the arrestee? or
        • Was this belief merely ‘a product of his own mind’
  • POWERS OF ARREST
    • Police and officers in many government agencies have statutory powers of arrest (for example, customs and immigration officers etc) that are greater than those given by the common law.
    • Police officers
      • Arrest with warrant
        • A police officer may arrest a person under the authority of an arrest warrant
        • Where an arrest under warrant takes place, the common law requires the warrant be shown to the arrestee.
      • Arrest without warrant — common law
        • At common law a constable or other ‘peace officer’ could arrest without a warrant in the following situations:
        • to prevent the commission of a felony;
        • where a person was found committing a felony or was reasonably suspected of having committed a felony (regardless of whether or not a felony had actually occurred);
        • where a breach of the peace was occurring: R v Ryan (1890) 11 LR (NSW) L 171. 26
        • At common law, without a warrant, a police officer had no power to arrest a person in relation to a misdemeanour or statutory offence punishable on summary conviction with the exception of cases involving a breach of the peace.
      • Arrest without warrant — statutory powers
        • Crimes Act 1914 (Cth) s 3W;
        • Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99;
        • There is only one legitimate purpose for arrest:
          • to take a person into custody for the purpose of commencing proceedings against the person.
        • The New South Wales provision, which was previously similar to the Commonwealth provision, was amended in 2013 with the object of both expanding and clarifying police powers of arrest.
          • Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
            • s 99 Power of police officers to arrest without warrant
            • The amendment expanded the list in s 99(1)(b).
          • The most significant additions are the following:
            • where a police officer is satisfied that it is reasonably necessary to arrest in order to stop the person fleeing from a police officer or from the location of the offence;
            • to obtain property in the possession of the person that is connected with the offence; or because of the nature and seriousness of the offence.
        • The police in most Australian jurisdictions have powers of arrest for specific offences or in specific circumstances under numerous and diverse statutory provisions, including firearms, fisheries, licensing, drug control and road safety legislation
  • THE PURPOSE OF AN ARREST
    • The courts, therefore, have generally held that it is a requisite for a valid arrest that the arrest be made for the purpose of taking the arrested person before a judicial officer as soon as is reasonably practicable to be dealt with according to the law
      • Accordingly, if a police officer arrests a suspect for a collateral purpose such as for questioning or to obtain evidence, the arrest will be unlawful:
        • Williams v R (1986) 161 CLR 278
    • Wright v Court (1825) 4 B & C 596,
      • It is reasonable for police to think that any shortfall in evidence might be made up during interrogation and further investigation of the suspect after arrest.
      • But, as we will see below, this can be inconsistent with the purpose of arrest, which is to take a person into custody for the purpose of delivering that person without delay to a justice to be dealt with according to law:
    • R v Kemp [2008] NSWDC
      • It is a New South Wales case where there is no power to arrest a person merely for the purpose of questioning the person (even if there is reasonable suspicion that the person committed an offence).
      • Facts
        • In Kemp, the police were investigating some robberies of automatic teller machines that had occurred some months earlier.
        • They had a reasonable suspicion that the defendant was involved in the robbery, but their case against him overall was very weak
        • The defendant had, in effect, been arrested for the purpose of questioning in the hope of obtaining a confession
      • Held
        • When the matter went to trial, Nicholson DCJ refused, in his discretion, to allow the confession to be admitted into evidence because, as he held, the defendant was arrested for an unlawful purpose.
        • He found that none of the reasons for arrest in s 99(1)(b) were applicable.
  • Impact of an unlawful purpose
    • The purpose and, therefore, the lawfulness of an arrest may fluctuate over the period of the arrest.
      • If an arrest is made for an improper purpose, such as for questioning, the arrest will be unlawful.
      • Michaels v R (1995) 184 CLR 11
        • Therefore, even though the initial purpose of an arrest may be unlawful, once a proper purpose is formed, the arrest may become lawful:
        • The lawfulness of the detention was considered , in relation to a charge of escaping from lawful custody.
      • Generally, the issue of unlawful purpose arises before courts in the context of an attempt by the defence to have admissions excluded from the trial because they are tainted by an illegal detention:
        • see s 138 of the Uniform Evidence Law;
        • Bunning v Cross (1978) 141 CLR 54
  • Statutory detention following arrest
    • Combatting Williams v R the introduction of legislation allowing for the detention of arrested persons for a period of time for the purposes of investigation.
    • Detention after Arrest provisions
      • CTH

        • Legislation

          • Crimes Act 1914 (Cth):
            • ss 23C, 23DA, 23DF

        • Maximum investigation period

          • 4 hours
          • 2 hours (minors and ATSI people)

        • Period of extension

          • 8 hours
          • 20 hours (terrorism offences)

        • Authority to extend

          • Magistrate
      • NSW
        • Legislation
          • Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
            • ss 114, 115
        • Maximum investigation period
          • 6 hours
        • Period of extension
          • 6 hours
        • Authority to extend
          • Detention warrant —
            • (Magistrate, Local Court Registrar or officer of Attorney-General)
    • Consequences
      • First, it may lead to evidence being excluded on the basis that it was unfairly obtained, or illegally or improperly obtained
        • Judicial discretion
          • see Pollard v R (1992) 176 CLR 177;
          • R v Percerep [1993] 2 VR 109 (CCA);
      • It may also ground an action in tort for false imprisonment.
        • in Slaveski v State of Victoria [2010] VSC 441, [137], it was held that ‘the detention of a person in custody for longer than a “reasonable time”, contrary to s 464A(1) of the Crimes Act, constitutes the tort of false imprisonment’
  • The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
    • The Act:
      • authorises the detention of an arrestee despite any ‘without delay’ requirement (s 114);
      • provides a limited period of time for the detention of an arrestee to enable investigation of the person’s involvement in a criminal offence (s 115); and
      • provides certain rights for the arrestee (ss 122–131).
    • The investigation period
      • The New South Wales legislation sets a reasonable time for the investigation period, but limits the total time to six hours:
        • s 115 (under the previous s 115, the period was four hours).
      • This time can be extended by up to a further six hours where the investigation is being ‘conducted diligently and without delay’ but cannot reasonably be completed within the six-hour period otherwise than by continued detention of the suspect:
        • s 118.
      • s 116 requires (but does not limit) consideration of certain circumstances.
      • s 117 provides that certain circumstances do not ‘count’ in calculating the investigation period
    • After the investigation period has expired
      • Once in custody, a person must be released (on bail or unconditionally) or brought before an authorised officer or a court within the investigation period or ‘as soon as practicable’ after the end of that period:
        • s 114(4)
      • s 114(4) brings the ‘without delay’ principle into play, requiring police to conform to Michaels v R (1995) 184 CLR 117 and Williams v R (1986) 161 CLR 278: see also Coco v R (1994) 179 CLR 427
    • Detention warrants
      • A detention warrant to extend the investigation period beyond six hours may be obtained by telephone where it is required urgently and it is not practicable for the application to be made in person: s 61.
      • Otherwise it must be obtained in person upon a written application: s 60.
    • Custody manager
      • A custody manager (custody manager def) is a police officer who has ‘responsibility for the care, control and safety of a person detained at a police station or other place of detention’:
      • Custody manager must
        • provide an interpreter where there are reasonable grounds for believing that the detainee’s:
          • (i) inadequate command of English; or
          • (ii) physical or intellectual disability makes him or her unable to communicate orally or in writing with reasonable fluency: s 128;
        • arrange medical attention immediately if it appears that the person requires it, or if the person requests on reasonable grounds to receive medical attention: s 129;
        • provide reasonable refreshments and reasonable access to toilet and washing facilities: s 130;
        • keep custody records as required by regulations and by s 131;
        • And caution the arrestee when he or she arrives at the police station (or other place of detention), give the arrestee a summary of the portion of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) relating to detention after arrest and also fulfil obligations relating to a suspect’s rights to communicate: ss 123-127.
    • the New South Wales custody manager is not required to be independent of the investigation,nor is the PACE model of direct responsibility for protecting accused fundamental rights followed in New South Wales
  • The level of certainty necessary to justify arrest is far lower than the level necessary to found a conviction “beyond reasonable doubt.
    • Note also that in establishing a reasonable suspicion (or belief), arresting officers may take into account facts and inferences which are inadmissible in a criminal trial.
    • Shaaban bin Hussien v Chong Fook Kam [1969] 3 All ER 1626 (PC)
      • Not binding, but oft cited
  • In George v Rockett (1990) 170 CLR 104; [19901 HCA 26, the High Court had to consider the meaning of ‘reasonable suspicion’ and ‘reasonable belief’, both states of mind being required for the issuing of a search warrant under relevant Queensland legislation.
    • The court emphasised the need for there to be some facts on which the suspicion is rounded
    • recently considered in Prior v Mole [2017]HCA 10.
      • Mr. Prior was drinking in a public space and was visibly intoxicated.
      • Police Constables Fuss and Blansjaar drove by and observed Mr. Prior making an offensive gesture and shouting abuse.
      • Constable Blansjaar apprehended Mr. Prior under s 128(1) of the Police Administration Act.
      • The Act allows police to apprehend without a warrant anyone who is intoxicated in public and likely to cause annoyance or commit an offense.
      • The apprehension was also based on the belief that Mr. Prior would violate Section 101U of the Liquor Act 1978 (NT) by drinking in a regulated place.
    • The Court of Summary Jurisdiction found Mr Prior had been lawfully apprehended pursuant to s 128(1) of the Police Administration Act.
      • Supreme Court, Southwood J was satisfied beyond reasonable doubt that there were reasonable grounds
  • The case of R v Rondo (2001) 126 A crim R 562; [2001] NSWCCA 540 is the leading authority in New South Wales and provides an example of facts that the court decided did not amount to reasonable suspicion for the purposes of the relevant power (s 357E of the Crimes Act, which is now s 36 of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)).
    • That power allows police to stop a vehicle where they have reasonable suspicion with respect to certain matters.
    • The case also provides a summary of the law on ‘reasonable suspicion’.
  • R v Rondo (2001)126 A Crim R 56
    • Background:
      • Rondo was pulled over by police while driving a “smart car” that had some panel damage.
      • Police searched the car without Rondo’s permission and found cannabis and money.
      • The case took place in Australia, and the key legal statute in question was s 357E.
    • Legal Issue:
      • Whether the police had “reasonable suspicion” to stop and search Rondo’s car based on him driving a fast-looking car with panel damage and not owning the car.
    • Ratio:
      • A “reasonable suspicion” requires less than a reasonable belief but more than mere possibility.
      • The suspicion must be based on some factual basis, not arbitrary, and the officer’s mindset at the time of the action is critical.
    • Decision:
      • Justice Smart ruled that the police did not have sufficient grounds for “reasonable suspicion” under s 357E to stop and search Rondo’s car.
    • Application:
      • The ruling clarifies the boundaries of “reasonable suspicion” for law enforcement.
      • It emphasizes that the mere fact of driving a car one doesn’t own, without additional context, is not sufficient for a stop and search.
      • The decision could potentially impact how law enforcement conducts vehicle stops and searches in similar circumstances.
      • The test for “reasonable suspicion” is both subjective and objective:
        • Subjective:
          • The mindset of the police officer at the time is important (“What is important is the information in the mind of the police officer”).
        • Objective:
          • The suspicion must be based on some factual basis and not arbitrary (“Some factual basis for the suspicion must be shown”)
    • Propositions
      • (a) A reasonable suspicion involves less than a reasonable belief, but more than a possibility.
        • There must be something, which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by section 357E (the section at that time relating to the powers to stop search and detain).
        • A reason to suspect that a fact exists is more than a reason to consider a look into the possibility of its existence.
      • (b) Reasonable suspicion is not arbitrary.
        • Some factual basis for the suspicion must be shown.
        • A suspicion may be based on hearsay material, or materials which may be inadmissible in evidence.
          • The materials must have some probative value.
      • (c) What is important is the information in the mind of the police officer stopping the person or vehicle, or making the arrest at the time he did so.
        • Having ascertained that information, the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed.
        • In answering that question, regard must be had to the source of the information and its content seen in the light of the whole of the surrounding circumstances.
  • Relying on third party’s suspicion or belief
    • police officer who Simply relies on a superior’s orders and arrests a person on another’s reasonable suspicion will not have the requisite state of mind.
      • Even scanty information given in a briefing session can
      • O’Hara v Chief Constable, Royal Ulster Constabulary [1997]1 All ER 129.
    • For example, where the arrestor relies on information given to him or her from a third party, the credibility of the informant will be relevant to determining the reasonableness of the arrestor’s view.
    • In R v Walsh 1990 NSWCCA, police acted upon instructions from a senior officer in arresting Walsh.
      • The arresting officers then detained Walsh until the senior officer arrived to charge him.
      • Gleeson CJ described this conduct as neither unusual nor irregular.
      • However, a contrary approach was adopted by Zeeman J in the Tasmanian case, Hibble v Phegan (20 May 1997, Tas SC, unreported), where it was held that police officers did not have lawful authority to arrest if they acted solely on the direction of a senior officer without having formed their own view of the facts.
  • Arrestor holds a mistaken view of the law
    • A suspicion is not necessarily unreasonable where the arrestor acts under an incorrect view of the law.
    • For example, in Dearing v Passi (4 November 1994, NSWSC, Levine J, unreported)
      • the arrestor’s wrong determination that particular land was ‘enclosed lands’ within certain legislation did not make his belief unreasonable
  • Arrest on a holding charge
    • 2.88 A holding charge (holding charge def) is a charge generally brought to justify the detention of a person suspected of other, usually more serious, offences.
      • The holding charge is based on a lawful arrest for a relatively trivial offence to enable police to question the suspect in relation to a more serious offence.
    • Holding charges are used primarily to bypass the ‘reasonable suspicion’ requirement where it cannot be satisfied on the more serious offence, but can be satisfied on the lesser offence.
  • HOW AN ARREST SHOULD BE MADE
    • Notification of grounds of arrest
      • Common law
        • As a general rule an arrestor should explain to the arrestee why he or she is being arrested
          • applies to both arrests for offences and to arrests made in non-criminal justice contexts, for example, pursuant to a power to apprehend a person under mental health legislation: New South Wales v Riley (2003) 57 NSWLR 496;
        • The principal common law authority for this rule is the House of Lords decision in Christie v Leachins 194 AC573. This
    • Abbassy v Metropolitan Police Commissioner [1990] 1 All ER 193
      • Background:
        • Taleb and Mary Abbassy were driving to Holland Park, London, when they were followed and then stopped by police.
        • The police suspected their Mercedes to be stolen.
        • Taleb was arrested for “unlawful possession” and Mary for “obstructing a police officer.”
      • Legal Issue:
        • Whether the arresting officer had adequately informed Taleb Abbassy of the reason for his arrest, as required by law.
      • Ratio:
        • An arresting officer must inform the person being arrested of the true reason for the arrest.
        • The adequacy of the explanation for arrest is typically a question of fact for the jury, not a matter of law for the judge.
        • The arresting officer’s explanation must be assessed objectively, taking into account the circumstances at the time.
      • Decision:
        • Leonard J ruled that the arresting officer did not give an adequate explanation for Taleb’s arrest, making it unlawful.
        • As a result, Mary Abbassy’s arrest for “obstructing a police officer” was also ruled to be unlawful.
      • Application:
        • The decision underscores the importance of police clearly informing individuals of the reason for their arrest.
        • It also highlights the circumstances under which a judge, rather than a jury, may rule on the lawfulness of an arrest.
        • The case serves as a cautionary note for law enforcement to use precise language when making an arrest.
  • Statute
    • Nearly all Australian jurisdictions have codified the common law obligations an arrestor has to inform a person of the grounds for arrest:
      • Crimes Act 1914 (Cth) s 3ZD;
      • Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 201 (previously Crimes Act 1900 (NSW) s 563);
        • Police must inform arrestees of the reason for the arrest before, at the time of or as soon as reasonably practicable after the arrest: s 201(1) and (3)(a).
        • This provision also requires the arresting officer to provide his or her name and place of duty to the arrestee and evidence that he or she is a police officer.
  • Use of force in making an arrest
    • Additionally, modern arrest powers permit the arrest of all suspected offenders,not only those suspected of felonies.
    • The result is that the common law’s permission to use enough force as is ‘reasonably necessary’ to effect the arrest remains, but in a modified form
  • R v Turner [1962]VR 30
    • Background:
      • Turner had been a victim of multiple car thefts.
      • He decided to keep watch over his car, armed with a pistol.
      • Turner saw a man attempting to steal from his car and fired a warning shot, which resulted in the man’s death.
    • Legal Issue:
      • Whether Turner was entitled to use lethal force to effect an arrest for a misdemeanour and whether the force used was “reasonable.”
    • Ratio:
      • Reasonable force to effect an arrest depends on what the individual believes is necessary under the circumstances.
      • Whether or not there is a duty to arrest, as opposed to a power to arrest, does not affect the right to use reasonable force.
      • The concept of “reasonable force” is analogous to common law powers of arrest for felonies committed in the presence of the arresting party.
    • Decision:
      • The appeal court ruled that the trial judge’s direction stating that Turner had no justification for using a lethal weapon was wrong.
      • The court quashed the manslaughter conviction and discharged Turner.
    • Application:
      • The case establishes that reasonable force can include lethal force, depending on the circumstances.
      • It also clarifies that the concept of “reasonable force” applies whether or not there is a duty to arrest.
      • The case serves as precedent for what constitutes “reasonable force” in the context of a citizen’s arrest.
  • Law treats lawful arrests resulting in violence to the arrestee as a case of lawful assault
    • In Lippl v Haines (1989)18 NSWLR 620 (NSWCA)
      • Lippl successfully sued for assault following an arrest in which he suffered physical and psychological injuries
    • R v McKay [1957] VR 560
      • where McKaywas found guilty of manslaughter after he had killed a (fleeing) intruder on his farm.
      • Lowe J held that it was open for the jury to find that the homicide was lawful where the accused acts in reasonable self-defence in the face of harm to himself,his family or his property
      • the verdict will be murder where the arrestee is found to have died as a result of excessive force
    • Honeysett v R (1987)10 NSWLR 638
      • confirmed that self-defence is not limited to homicide but can apply to a charge of assault,
  • Statute
    • Most Australian jurisdictions have codified the common law power to use reasonable force in arrest.
    • The terms of those provisions differ,but all employ the requirement that force be reasonable or proportional.
    • The common law continues to applying those jurisdictions without specific legislation,and in all jurisdictions with respect to what constitutes ‘reasonable force’.
    • The relevant statutory provisions are as follows:
      • Crimes Act 1914 (Cth)s 3ZC;
      • Law Enforcement (Powers And Responsibilities) Act 2002(NSW)s 231
        • s 231 deals with the use of force in arrest in New South Wales
        • It allows such force as is reasonably necessary to be used, but it doesn’t make specific provision for force resulting in physical injury or death
  • Responsibilities of those who arrest
    • statutory obligations:
      • to alert arrestees to their rights and to enable them to obtain support from friends, relatives, a lawyer and, where necessary,an interpreter
    • the common law:
      • requires a police officer ‘to take all reasonable steps to avoid acts or omissions which he could reasonably foresee would be likely to harm the person for whom he is responsible’:
        • Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246
    • Police liabilities: personal and/or vicarious
      • At common law, the independent discretion rule operates when police officers act within the wide discretionary powers at their disposal.
        • This rule makes senior police and the government immune from vicarious liability for any police tort committed by an officer in the course of duty, unless the officer is directed or delegated by a superior to act in a particular way: Enever v R (1906) 3 CLR 969;
        • Baume v Commonwealth 1906 4 CLR 97. For example, in Jarvis v Her Ma•es ‘s
      • The government’s immunity from vicarious liability has been altered by statute: see Employees Liability Act 1991 (NSW) ss 3, 5;
        • Law Reform (Vicarious Liability) Act 1983 (NSW) s 6, Part 4;
        • Crown Proceedings Act 1988 (NSW) s 5,
          • which makes the Crown vicariously liable where the police officer would otherwise be liable.
          • Police are deemed to be in the service of the Crown and the independent discretion rule is not a defence
  • Unlawful and/ or tortious arrest / improper or illegal arrest def
    • Where there is no basis for the arrest, or the arrest is carried out in an impermissible manner, or it is for an improper purpose, the actions of the arrestor may be unlawful and/or tortious.
    • The arrestee will have two, or possibly three, avenues of redress.
      • First, the arrestee may proceed with an action in tort such as assault or false imprisonment.
        • If the police have trespassed onto land, a private action can be brought on this basis also. There may be a basis for instituting a private criminal prosecution
        • Commonwealth of Australia v Graves (1996) 41 NSWLR 111;
        • McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-361;
        • Langford v Turnbull (29 May1990,NSW CA,unreported);
        • etc
      • Second, where the arrest leads to chargingand a trial, it may be possible for the evidence obtained in the course of the illegal detention to be excluded
        • Uniform Evidence Acts s 138;
        • Bunning v Cross (1978)141 CLR 54.
        • Appeal courts as a matter of principle are hesitant to overturn a trial judge’s decision based on the exercise of a discretion
      • The third avenue available to a person seeking redress for an unlawful police detention is to set in train internal police disciplinary proceeding
      • none of these options provides expeditious relief to a detainee
    • Injury to innocent third parties
      • If the police are acting in the execution of their duty,then they act lawfully and there is no legal claim that can be made.
      • Each jurisdiction does, however, provide for ex gratia compensation to be made

• Interrogation

  • Identifying the Right to Silence
    • The right to silence def
    • the right to choose whether to assist one’s accusers by answering their questions
    • Uniform Evidence Acts s 89
      • in a criminal proceeding an unfavourable inference (defined as a consciousness of guilt) must not be drawn from a failure to answer questions put by an investigating official, and is inadmissible evidence if it can only be used to draw such an inference.
  • Lord Mustill in R v Director of the Serious Fraud Office; Ex parte Smith [1993] AC I at 30—1. Lord Mustill listed six ‘immunities’ forming the right to silence at common law.
    • His list can be summarised thus:
      • It’s generally not an offense to refuse to answer questions, including disclosing one’s name and address.
        • Police and others can ask questions but have no right to expect them answered.
      • One has the right to refuse to answer questions that may be self-incriminating, known as the privilege against self-incrimination.
        • There are some statutory exceptions to this rule.
      • At common law, suspects are not obligated to answer a police officer’s questions.
        • Some regulatory agencies can, however, demand answers under penalty for refusal.
      • An accused person cannot be forced to testify at their own trial.
        • The decision to testify is solely up to the accused, although some states allow for adverse comments if the accused chooses not to testify.
      • Once a person is formally charged, police should stop further questioning.
        • This principle originates from the Judges’ Rules and is reflected in current English Codes and Police Commissioners’ Standing Orders.
      • In court, no adverse comments are allowed for an accused person’s failure to answer pre-trial questions, disclose a defense, or testify.
        • However, the rules vary by jurisdiction, and some places like England and New South Wales do permit adverse comments for pre-trial silence.
  • Disclosure of evidence before trial
    • For example,all Australian jurisdictions have statutory requirements of due notice as a precondition to leading alibi evidence:
      • Criminal Procedure Act 1986 (NSW) s 15
      • Criminal Procedure Act 1986 (NSW) s 141
        • the Supreme Court and District Court must order pre-trial disclosure in complex criminal trials
    • Pre-trial disclosure takes three forms.
      • The first is compulsory pre-trial disclosure by the accused were the accused intends to rely on an alibi (s150) or the defence of mental impairment due to abnormality of mind (s151).
      • Second there is the more general pre-trial disclosure applicable in all cases.
      • The third is specific pre-trial disclosure managed by the court to suit the particular case.
        • Under s 146, there is provision for sanctions for non-compliance with pre-trial disclosure requirements
  • Furnishing Information to the police
    • the only circumstances in which a person is required to aid the policies where a police officer calls upon that person to assist in making an arrest.
    • Law Enforcement (Powers and Responsibilities)Act 2002 (NSW) ss 14-18
      • (powers to require identity of drivers and passengers of vehicles suspected of having been used in connection with an indictable offence to be disclose)
      • requires a person to furnish particulars information to police or other authorities in specific situations,such as where drug-related offences are suspected of having been committed:
    • S 3V of the Crimes Act 1914(Cth) is a more general power operating in relation to Commonwealth offences
    • Statutes frequently make it a criminal offence for a person to be in possession of property reasonably suspected of having been stolen,unless the person can persuade the court that he or she had no reasonable grounds for suspecting that the property was stolen:
      • see, for example, Crimes Act 1900 (NSW) s 527C.
      • Or an Act might penalise the possession of something ‘without reasonable excuse’.
      • s 11B of the Summary Offences Act 1988 (NSW), for example,makes it an offence to carry an offensive implement in a public place ‘without reasonable excuse’.
    • For thieves and receivers, strictly speaking, the suspect’s silence can be taken against them, whether or not they were questioned.
      • The adverse inference is from the general circumstances,rather than any response to interrogate
      • Brucev R (1987) 74 ALR 219;
      • Gilson v R (1991)172 CLR 35
      • Continuing viability of the doctrine: R v Raviraj (1986) 85 Cr App R 98,
        • it is not the accused’s silence which counts against them in the recent possession cases (among others),but their failure to take the first reasonable opportunity to offer any explanation of facts which seem highly incriminating
    • In Lee v New South WalesCrime Commission [2013] HCA 39, the High Court, by majority, dismissed an appeal from the Court of Appeal Of the Supreme Court of New South Wales, which had ordered that the appellant be compulsorily examined under oath before a registrar of the Supreme Court of New South Wales pursuant to s 31D of the Criminal Assets Recovery Act 1990 (NSW)(CARAct)
      • The majority held that s 31D, when read in the context of the CAR Act, authorised the Supreme Court to order such an examination.
  • Statutory Regulation Of police interviews
    • All Australian jurisdictions have now legislated to regulate the conduct of police interrogations:
      • Criminal Procedure Act 1986 (NSW) s 281 (s 23F)
      • and Law Enforcement (Powers And Responsibilities) Act 2002(NSW) ss 122-1
      • Can cause discretions allowing for the exclusion of evidence for unfairness,or because it was obtained illegally improper
  • In R v Lamb [2002] NSWSC 357,
  • Dunford J held that under equivalent New South Wales statutory provisions there is a positive duty to assist a ‘vulnerable person’ (which includes Indigenous Australians) in exercising his or her right

• RETAIN THE RIGHT TO SILENCE?

  • New South Wales has decided to follow the lead set by the United Kingdom with legislation drafted in similar terms in 2013.
  • Evidence Act 1995 (NSW)
    • 89A Evidence of silence in criminal proceedings for serious indictable offences
      • an adverse inference can be drawn if the defendant failed or refused to mention a fact that the defendant could reasonably have been expected to mention at the time and later relied on in court.
    • s 89A only applies where the defendant is charged with a serious indictable offence (punishable by imprisonment for five years or more); the defendant must have been given a ‘special caution’ as defined in the section above;
      • s 89A deals with official questioning in relation to the offence charged, and permits unfavourable inferences to be drawn from failure to mention a fact that the defendant later relied upon in his or her defence of the charge.
      • It should be stressed that such unfavourable inferences are entirely separate from inferences drawn from a decision to remain silent at trial
  • For the rest of Australia, the law relating to the right to silence is that set down by the majority in Azzopardi v R (2001) 205 CLR 50
    • Background:
      • The Evidence Act 1995 (NSW) serves as a guide for what is permissible in terms of evidence and comments in court procedures.
      • s 20 specifically addresses the circumstances under which comments can be made about a defendant’s failure to give evidence in criminal proceedings for indictable offences.
    • Legal Issue:
      • Whether, and to what extent, a judge or certain parties can comment on a defendant’s failure to give evidence without suggesting that the silence is an admission of guilt.
    • Ratio:
      • The law maintains the balance between protecting the defendant’s right to silence and allowing comments that serve the interests of justice.
      • The judge can comment, but the comments must not suggest that the defendant’s failure to speak is an indication of guilt.
    • Decision:
      • s 20 is upheld as a means to allow judicial comment on a defendant’s failure to give evidence, provided the comment does not imply guilt.
      • The section strengthens the judge’s position in terms of making such comments, compared to historical norms.
    • Application:
      • The provision is applicable in criminal cases for indictable offences in New South Wales, Australia.
      • Judges need to exercise caution in how they comment on a defendant’s failure to give evidence, ensuring they adhere to the limitations imposed by Section 20.

• R v William John Bennett [2015] NSWDC 1

  • Background
    • Bennett was originally convicted on two charges, including assaulting an officer.
    • Police officers claimed they arrested Bennett because his aggressive behavior posed a risk.
    • Bennett appealed, stating that the arrest was unlawful and thus the subsequent evidence should be inadmissible.
  • Legal Issue
    • Whether Bennett’s arrest was lawful, and if it was not, whether the evidence gathered thereafter should be admissible in court.
  • Ratio
    • An arrest is lawful only if there are reasonable grounds for it, and the arrested individual must be informed of the reason for the arrest.
    • Failure to comply renders the arrest unlawful.
    • If an arrest is determined to be unlawful, evidence obtained as a result is inadmissible under s 138 of the Evidence Act.
  • Decision
    • The court found that the police did not have reasonable grounds for Bennett’s arrest, making it unlawful.
    • Due to the unlawful arrest, all subsequent evidence was deemed inadmissible.
    • The appeal was upheld, and both of Bennett’s convictions were set aside.
  • Application
    • This case sets a precedent that emphasizes the importance of lawful arrest procedures.
    • It underscores the need for police officers to have reasonable grounds for an arrest and highlights the consequences of failing to do so, i.e., rendering subsequent evidence inadmissible.
    • Serves as a cautionary tale for law enforcement agencies to respect individual liberties and legal procedures.

• Policing the Pedal Rebels: A Case Study of Environmental Activism Under COVID-19

  • Background
    • Australia has seen a rise in environmentally focused activism, aided by social media and global coordination.
    • Extinction Rebellion (XR) has gained attention for its theatrical and disruptive, yet nonviolent, forms of protest.
    • The study focuses on a small protest by the Pedal Rebels during the COVID-19 lockdown in New South Wales (NSW), Australia.
  • Legal Issue
    • The article raises questions about the extent to which police powers should be used to regulate peaceful environmental protests, especially those that are compliant with public health orders.
  • Ratio
    • The study uses green and cultural criminology frameworks to analyze the excessive policing measures used against peaceful, socially distanced protesters.
    • Argues that such policing is empowered by changing laws affecting environmental protest.
  • Decision
    • Concludes that the policing of such protests is disproportionate and represents an impediment to environmental activism.
  • Application
    • The findings can be used to critique and reconsider current policing practices and laws surrounding peaceful protests, particularly those focused on environmental issues.
    • Suggests the need for a balanced approach in law enforcement’s handling of environmental activism, especially in the context of public health emergencies like COVID-19.

Week 11B: The Law and Practice of Search and Seizure

• The Law and Practice of Search and Seizure

  • As Coco v R (1994)179CLR 427 indicates, legislation seeking to curb individual rights and freedoms must make that claim usingclear and unambiguous language
  • Examples of the speed of change and the diversity of search mechanisms include the statutory provisions to enhance police investigations where computerised records are involved: see s s 3K, 3L, 3LAA, 3LA, 3LB of the Crimes Act 1914 (Cth)
    • The Surveillance Devices Act 2004(Cth) increased the offences amenable to surveillance.
    • The Act expands the range of surveillance devices.
    • These devices include listening,optical surveillance,tracking and data surveillance devices. Some do not require the warrant process
  • 2013 amendments to the Firearms Act 1996 (NSW)
    • Police were given strengthened powers in 2013 to conduct searches in aid of FPO orders, which enable police, without a warrant, to search an FPO subject’s body and any vehicle or premises that the person occupies, controls or manages:
      • s 74A of the Firearms Act 1996(NSW).
      • Purpose: to determine if the FPO subjecthas committed an offence by having a firearm, firearm parts of ammunition.
  • The meaning of s 74A was considered by Fagan Jin Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811
    • Background
      • the DPP appealed against a magistrate’s decision to dismiss charges against the defendant of possession and supply of a prohibited drug.
      • The magistrate held that the search of the vehicle by which the constable had located the drug has been conducted without lawful author
    • Held
      • (1) The power of search and hence the efficacy of the orders would be reduced considerably if search were restricted to cases where a policeofficer already suspected non-compliance (at [26]);
      • (2) The power of search has a narrow focus on who or what may be searched and what items may be searched for.
        • By Allowing Such a power to be exercised without the relevant police officer holding a suspicion as to the commission of an offence, Parliament has not effected any broad or substantial erosion of civil liberties
  • The Telecommunications (Interception And Access) Act 1979 (Cth) regulates the interception of telecommunications and, unlike the Surveillance Devices Act, a warrant is required for interceptions.
    • There is also provision for detailed monitoring and reporti
  • Broadly speaking, lawful search and seizure of property can arise in three circumstances:
    • as an incidental power under a lawful arrest;
    • by virtue of an ancillary common law power — such as that relating topreventing breach of the peace or retrieving stolen goods.
      • Surprisingly, as we see below, the common law search powers remain contestable and unclear,even after centuries of articulation; or
    • under the authority of a search warrant or other statutory power of search (or surveillance).

• WHAT IS A SEARCH?

  • A particular problem with defining a search is that searches are not one-dimensional actions.

  • In Nguyen v Elliott (unreported, SC Vic, 6 February 1995),

    • Background
      • Nguyen Refused to consent to a police search.
      • Two plain-clothes police, Elliott and Brittain, had watched a group of Asian youths on a park bench ‘known to be frequented by drug users and dealers’.
      • The police testified that they knew Nguyento have been involved in drug transactions previously.
      • After 15 minutes of observation, during which time a number of Asian males had approached Nguyen and departed, the police approached.
      • They had not witnessed any transactions but Nguyen had looked anxious and alert during the period of surveillance.
      • Fought back and bit police and moved in car
    • Held
      • The police were merely curious to see whether Nguyen had drugs on him, and this did not amount to a reasonable suspicion.
      • Consequently the search was unlawful and Nguyen’s resistance by kicking Elliott was proportional to the threat of the unlawful search.
      • Hedigan J found that the arrest that followed was also unlawful as was Brittain’s attempts to aid Elliott.

  • Bhattacharya v New South Wales [2003] NSWSC 261

    • Background
      • Mr. Bhattacharya was found outside the Supreme Court building in Sydney after police responded to a call from court security officers.
      • He was known for his many “less than harmonious” encounters with court registry staff.
      • Four days earlier, he had threatened to kill a staff member at the Court of Appeal registry.
    • Legal Issue
      • Did the police have legal grounds to detain, search, and take Mr. Bhattacharya for a psychiatric assessment under s 24 of the Mental Health Act 1990 and s 357E of the Crimes Act 1900?
    • Ratio
      • The statutory provisions permitted Bhattacharya’s arrest and detention only if he appeared to be mentally disturbed and had reasonable grounds for believing he committed an offense.
      • A police search without an arrest was allowed only if there was intent to use “any thing” in the commission of an indictable offense.
      • There was no foundation to suggest that Mr. Bhattacharya was a danger or had committed a breach of peace.
    • Decision
      • Mathews AJ found that the police had acted genuinely but wrongly in apprehending, searching, and detaining Mr. Bhattacharya.
      • Mr. Bhattacharya was awarded $15,000 for false imprisonment.
    • Application
      • The case highlights the importance of ensuring that police have proper legal grounds for detaining and searching individuals, particularly in sensitive contexts involving mental health.
      • It sets a precedent for scrutinizing ‘overbearing’ and ‘bullying’ police conduct on the street leading to arrest, search, and detention.

  • The case of Darby shows that even without technological advances, search and surveillance is by no means standardised.

    • Darby v Director of Public Prosecutions (NSW) (2004) 61 NSWLR 558; [20041 NSWCA 431
      • Background
        • Rocky is a trained drug-detection dog used by the police.
        • Rocky alerted the police to Darby, who was then found to possess drugs.
        • The key issue was whether Rocky’s actions amounted to an illegal search, which would impact the admissibility of the evidence (the drugs).
      • Legal Issue
        • Did the actions of Rocky, the drug-detection dog, in sniffing and nudging Darby’s pockets, constitute an illegal search under the law?
      • Ratio
        • A “search” generally involves looking carefully to find something hidden and, when it relates to a person, implies some level of physical intrusion.
        • Rocky’s actions were not for the purpose of searching but for identifying the person possessing the drug scent he had detected.
      • Decision
        • The court held that Rocky’s actions did not amount to an illegal search.
        • The court remitted the charges to be dealt with in accordance with law, instructing that various legal issues could be reconsidered.
      • Application
        • This case sets a precedent for the use of drug-detection dogs in police work.
        • It clarifies that actions for the purpose of identification do not necessarily amount to a “search,” impacting how evidence gathered in such circumstances is treated in court.

  • New Zealand Bill of RIghts Act 1990: Search and Seizure

    • “search def”
      • an examination of a person or property, and a “seizure” is the taking of what is discovered.
    • Entering and searching private property without permission is considered trespass unless authorized by law or specific statutory provision.
    • s 21 of the New Zealand Bill of Rights Act serves as a restraint on government action, not empowering the government to conduct “reasonable” searches.
    • A search can be considered “unreasonable” based on the circumstances that gave rise to it or if it is executed in an unreasonable manner.
    • The core purpose of s 21 is to balance governmental interests against individual freedoms and privacy.
    • Privacy expectations are generally lower in public places than on private property.
    • Lawfulness of a search is highly relevant but not solely determinative in judging its reasonableness.
    • Search warrants are judicial authorizations that must be obtained when possible and should not be used for “fishing expeditions.”
    • Unannounced or forced entries into occupied premises are likely to render a search both unlawful and unreasonable.

• WHAT IS A SEIZURE?

  • The Full Federal Court in Hart v Commissioner of Australian Federal Police (2002) 196 ALR 1; [20021 FCAFC 392 (at [821) seizure def:
    • The content of the term ‘seizure’ is to be understood in light of its purpose which is to enable use of the things seized in the investigation of a suspected offence and at any subsequent trial arising out of the investigation.
    • Seizure under a search warrant therefore involves a taking of possession that is temporary and for a specific purpose.
    • Anything seized must be returned if the reasons for the seizure no longer exist or
    • It is decided that it is not to be used in evidence s 3ZV.
    • That requirement does not apply to the case in which the thing is forfeited to the Commonwealth or is the subject of a dispute as to its ownership.
  • In Kennedy v Baker (2004) 207 ALR 247; [2004] FCA 562,
    • the issue arose in relation to determining the scope of s 3L of the Crimes Act 1914 (Cth) in the context of copying data from a computer hard drive.
    • Branson J held that taking such a copy constituted a seizure under the Act.
    • However, it has been held that there is no seizure under the same Act:
      • where police take items for examination under s 3K to determine whether they are satisfied that they are evidential material as described in the warrant: Hart v Commissioner of Australian Federal Police (2002) 196 ALR 1; [2002] FCAFC 392; and
      • where police take items (unlawfully) and then return them to a location where a warrant applies keeping them in the police car for them to be ‘found’ in a search.
        • This occurred in Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393.
  • Returning Seized items
    • Bunning v Cross (1978) 141 CLR 54 and statutory formulations of the discretion like s 138 of the uniform Evidence Act.
      • s 138 Discretion to exclude improperlyor illegally obtained evidence
        • (1)Evidence that was obtained:
          • (a) improperlyor in contravention of an Australian law; or
          • (b) in consequenceof an improprietyor of a contravention of an Australian law; is not to be admitted unless the desirabilityof admittingthe evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained
  • Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393
    • Background:
      • Puglisi was being investigated by the AFMA for exceeding fishing quotas.
      • Initially, invalid search warrants were issued and executed, leading to the seizure of evidence.
      • New, valid warrants were obtained, but questions arose about the propriety of re-seizing the previously seized items.
    • Legal Issue:
      • Were the items seized under the new valid warrants legitimately obtained and could they be used in the pending criminal proceedings against Puglisi?
    • Ratio:
      • The court found that for the items to be legally seized under the new warrants, they had to be “found at the premises in the course of the search,” which was not the case for items that were already in police custody.
    • Decision:
      • The court declared that the March warrants were invalid while the April warrants were valid.
      • The court did not order the return of the seized items, leaving it to the judicial officer in the pending prosecution to decide whether the items should be admitted as evidence.
    • Application:
      • This case presents a complex situation concerning the legality of evidence seized under multiple sets of search warrants.
      • It emphasizes the importance of following proper procedures in obtaining and executing search warrants to ensure that evidence is admissible in court.
  • Lord Denning’s judgment in Ghani v Jones [19701 1 QB 693 has been highly influential, as has the approach of Horrid J in Elias v Pasmore [1934] 2 KB 164.
    • Ghani has been accepted in several Australian cases as permitting, retention of items seized, particularly in New South Wales courts:
      • see Greer Commissioner of NSW Police (2002) 128A Crim R 586;
    • In Tye v Commisioner Of Police (1995) 84 A Crim R 147 (NSW SC) Studdert J accepted that an unlawfully obtained sample of blood could be retained for criminal proceedings.
    • This was distinguished by Bell J in Greer where the police had lawfully seized a diary which they claimed contained entries that had potential evidentiary significance should criminal proceedings be commenced.
    • The police had made photocopies of the diary before returning it.
    • Greer wanted all copies returned or destroyed, or alternatively all copies of the diary, excluding reference to three relevant dates.
    • Bell J rejected the plaintiff’s claim.
      • There are obvious exceptions to this general no return stance.
  • For example, the High Court was unwilling to even delay its order in George v Rockett 1990 170 CLR 104 to ermit the swearing of a new complaint.
    • In TLC Consulting Services Pty Ltd v White [20021 QSC 434 the ability to print off copies of documents meant that it was unsustainable to argue that a computer server taken unlawfully (it was outside the scope of the search warrant) should not be returned for fear Of evidence being destroyed.
      • Heerey J in Challenge Plastics Pty Ltd v Collector of Customs (1993) 115 ALR 149 declined to follow Ghani.
    • These sentiments follow those expressed by Nathan J in Ozzie Discount Software (Aust) Pty Ltd v Milling (1996) 86 A Crim R 387.
  • There is no obligation to return seized property if the possession of the property would be a criminal offence (for example, prohibited drugs).
  • It is otherwise if the items are merely indecent or obscene and/or not needed for criminal proceedings
    • Lawfully seized items are a different matter to those unlawfully taken.
      • Most legislation is silent on the return of property. Whenever items are seized during a search permitted by search warrant based on a statute requiring the items to be taken before a court (see, for example, s 78(1)(b)(ii) of the Magistrates’ Court Act 1989 (Vic)) the seizure is provisional in the sense that the justice may order the return of an article thin or material consistent with the interests of Justice:
  • Search with an arrest
    • Where there is no arrest or other common law power to search, outside an express statutory power, the law is relatively clear — there is no power to search a erson or seize items from them.

• Filip Black v Regina [2017] NSWDC 326

  • Background:
    • Filip Black was walking on Robertson Road, wearing a black hoodie.
    • A police officer stopped him, arrested him for using offensive language, and conducted a search.
    • Black was later convicted in Local Court for using offensive language.
  • Legal Issue:
    • Was the search lawful, and was the use of offensive language punishable under Section 4A of the Summary Offences Act 1988?
  • Ratio:
    • The police officer had no valid basis for the initial arrest or search, making them unlawful.
    • A reasonable excuse existed for Black’s use of offensive language, given the unlawful interference with his civil liberties.
  • Decision:
    • The appeal court found in favor of Filip Black, stating the search and initial arrest were unlawful.
    • The conviction for using offensive language was overturned.
  • Application:
    • This case sets a precedent for what constitutes a “reasonable suspicion” for a police search.
    • It also clarifies what may qualify as a “reasonable excuse” for using offensive language under the given law.