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Summary - Criminal Law and Procedure - complete
Criminal Law and Procedure (Australian National University)
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(I) UNDERPINNINGS OF CRIMINAL JUSTICE SYSTEM
(i) General Principles
-
Prevention of Harm: Only those who have caused sufficient harm to others should be punished
Morality: Justice Devlin’s notion – can criminalise inherently immoral actions
Public Interest: Must heed the community values
Preservation of Welfare: Preserve the welfare of the community as a whole
I.e. The Queen v Dirckze – No lawful excuse, those who recklessly endanger people, can be liable of SIO
(ii) Procedural Principles
-
-
Territoriality:
o Principal Case – Ward v The Queen (2006)
 Facts – Ward shoots a man in NSW while standing in Victoria
 Found – Question of jurisdiction resolved by the more relevant of the two tests:
 (i) Jurisdiction determined by where the conduct causing death was initiated
(objective)
 (ii) Jurisdiction originates where the consequence occurred (subjective)
 Unsure whether it applies outside of homicide.
o Now fused into statute – S 10C - page 681: need all elements and a geographical nexus – i.e. the
Ward test
Fairness
o Right to a Fair Trial – Principal Case: Dietrich v The Queen
 Facts – whether Mr. Dietrich had been impaired in trial where unable to afford
representation
 Found  Duty not to ensure wrongful conviction, but not necessarily ‘fairness’
 Serious criminal cases – want some form of legal representation.
o Pre trial delay leading to negative impacts on the accused to be avoided – Jago v District Court of
NSW
o Trial judges sleeping = miscarriage of justice – Cesan v The Queen
o Signatory to ICCPR = must maintain fairness more strictly – R v Upton
(iii) Presumption of Innocence
-
Golden Thread = the prosecution bears the onus of proof for every offences – to be proven beyond reasonable
doubt – Woolmington v DPP
Woolmington v DPP
Facts: Accused killed estranged wife by accidental shooting. Judge at the first instance directed jury that the accused was
presumed guilty unless it could be shown that his actions were accidental, thus directing the jury that the onus was on the
defendant. Accused appealed death sentence and case went to House of Lords.
Ratio: ‘Golden Thread Speech’ – Viscount Sankey LC = ‘throughout the web of the English Criminal Law one golden thread is
always to be seen, that 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 the subject also to any statutory exception. If, at the end of the whole case, there is reasonable doubt,
created by the evidence, given by either the prosecution or the prisoner, the prosecution has not made out its case and the
prisoner is entitled to an acquittal. No matter what charge or where the trial, the principle that the prosecution must prove the
guilt of the prisoner is part of the common law and no attempt to whittle it down can be entertained.
Legal vs. Evidential Burden of Proof
Prosecution
-
Legal burden - Must prove every element of the crime: (Woolmington)
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Must rebut/disprove all defences raised by the D or the Court BRD
Exceptions: where defence of mental impairment or diminished responsibility provided by statute is
raised  shifts to the Defence
o Standard of proof: BRD - s 141(1) Evidence Act 1995 (NSW)
Evidential Burden: Rests on P when supporting a claim
o Rests on the accused when they make a defence – Bratty v AG for Northern Ireland
o Standard of Proof – Balance of Probabilities (BOP)
o
o
-
Defence
-
-
Legal Burden – Placed on accused when defence of mental impairment/diminished responsibility provided by
statute made
o Standard of proof: BRD - s 141(2) Evidence Act 1995 (NSW)
Evidential Burden - Raise matters pertaining to the facts re the elements of crime
o Standard of proof is Balance Of Probabilities (BOP)
(ii) PHYSICAL ELEMENTS/ACTUS REUS
TYPES OF PHYSICAL ELEMENTS
(i) Conduct – assault, aggravated assault, theft
-
-
-
Can be either:
o Act
o Omission
o State of Affairs (i.e. drunk and disorderly, illegal aliens)
Re Omissions - No general duty to prevent a crime – R v Instan
o However - Duty to act may arise as a result of a family relationship – R v Russell 1933 – or
undertaking to care for another unable to self care – R v Instan
o Can be criminally liable for failure to take measure within one’s power to counteract self-created
danger – R v Miller
Where a duty to provide for in CL or statute, omission to act can amount to criminal conduct – R v Miller
Once the accused becomes aware of the danger he has created, a duty arises to take reasonable steps to
counteract the danger – R v Miller
(ii) Conduct in specified circumstances – i.e., sexual assault, theft
-
Something additional to the conduct
Intentional sexual penetration (conduct) is only criminal without consent (specified)
(iii) Results/consequences of conduct
-
Murder, manslaughter, arson
o Must prove causation (i.e., that conduct caused the requisite consequences)
Bringing about a specific result – i.e. the death of a person, pollution of a lake, etc.
Need Concurrence – conduct and circumstance must be shown to be linked – must temporally coincide.
(i) VOLITION
General Rules
-
The physical element must be acted voluntarily: ‘pursuant to the accused’s will, exerted with conscious
control over the muscular contractions’ – Ryan v The Queen
Volition is presumed in the absence of contrary evidence (evidential burden on the defence, which then
shifts to the prosecution BRD) – R v Falconer, Ryan, Bratty v AG for Northern Ireland
Whether the act was voluntary is a matter to be left to the jury – Murray v The Queen
Involuntary acts
- (i) Accident - Falconer
- (ii) Reflex action - Ryan
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(iii) Sane automatism (impaired consciousness) - Falconer
(i) Accident
- Acts caused without intention, recklessness or criminal negligence are deemed accidental – R v Falconer
- As it was an accident, there is no intention and thus, no requisite MR – i.e. no accident defence for
strict/absolute liability offences
(ii) Reflex action
- An unwilled reflex or spasm is not voluntary and will not constitute an AR – Ryan
- A willed act is one exerted with conscious control over the muscular contraction. – Ryan
- Acts based on an external cause rather than intention are deemed reflexive – Ryan
Ryan v The Queen (1967) 121 CLR 205  Reflex Action
Facts: The accused entered a petrol station to commit a robbery – pointed a loaded gun at attendant and demanded money. When
getting a chord to tie the attendant’s hands with one hand, the attendant swung around causing him to falter, and the gun
discharged reflexively.
Law applied: P must prove BRD that the “deed charged as a crime was the voluntary or willed act of the accused.”
Held: The act must be intended, although not the consequences.
 The accused’s involuntary act as a foreseeable consequence of voluntarily placing himself in a particular position is
enough to prove criminal liability – here the act causing the death was pointing a loaded gun at the victim’s head with
the safety off.
o Involuntary discharge was a “likelihood which ought to have been in the contemplation” of the accused when
he pointed the gun
o In holding a loaded weapon at the head of the victim, the accused was acting as a “fully conscious man”
(iii) Impaired Consciousness
- The accused has the evidential burden, which the prosecution must prove BRD – Youseff 1990
- States of impaired consciousness:
o (i) Asleep or unconscious: ‘[an] act committed while unconscious is necessarily involuntary’ –
Jimenez
o (ii) Sane Automatism: Being in a dissociative state, often without memory of the actions, with
the absence of the conscious will to perform an action due to external stimuli – Ryan
 Some degree of control over body movements does not preclude automatism from being
found, nor does some awareness/cognitive function – R v Radford
- Intoxication is irrelevant to volition or a state of automatism unless there is a continuing, underlying
condition caused or exacerbated by the intoxication – R v Falconer
Jiminez v The Queen (1992) 173 CLR 572 - Asleep at the Wheel
Facts: The accused fell asleep at the wheel and crashed into a tree. The passenger in the vehicle died. The accused was
R v Falconer – Sane Automatism
charged forhusband
Culpable
Causing
Deathshe
(s52A
Act).heHe
appealedherarguing
that he
asleep
Facts: Accused’s
hadDriving
come over
to where
was Crimes
staying and
assaulted
– she shot
himfell
dead.
Mrswith no
the “driving”
element
of the
offence
was not
Falconerwarning
claimedand
shehence
remembered
nothing
after her
husband
grabbed
hervoluntary.
hair, and she found herself slumped with a gun
Issue:
Appellant
momentarily
awoke
before
the
crash
–
tried
to regain
of theofvehicle
– abuse,
whilst he
with no recollection of firing, picking up the weapon, or loading it. There
was acontrol
long history
spousal
andwas
the driving
this time,
he was not driving
dangerously.
accusedduring
had obtained
a non-molestation
order
against the husband and criminal proceedings were undertaken regarding
Law of
applied:
Act committed
whilstargument
asleep (i.e.,
unconscious)
is not voluntary
molestation
their daughters.
Defence
was
that the accused’s
conduct was consistent with a state of
automatism
that
rendered
her conduct
involuntary.
Held:
Where
the driver
has fallen
asleep, the relevant period of time for assessing whether driving was in “a manner
Judgement:
the accused
was notiscriminally
responsible
for period
an act or
that occurs independently of the exercise
dangerous
to the public”
immediately
prior to the
of omission
sleep
of his/her will.
 An act committed while unconscious (asleep) is necessarily involuntary
 There
dissociative
where
segmented
that of
sheimpact
was not
hercrash,
actions.
Such
a
 was
Theacourt
held thatstate,
he was
not personality
driving dangerously
at such
the point
or aware
prior toofthe
since
he could
not
state raises no question of insanity, but does of whether the act was voluntary.  Dissociation caused from a
be said to be voluntarily driving. Whilst he woke up immediately prior to crashing, his attempts to avoid
severe psychological blow is sufficient to cause sane automatism – external psychological stimuli are relevant to
collision were not dangerous.
insane automatism.
o of
Nonetheless,
he was
found
the to
offence
coincidence of MR and AR section for the
 Amnesia is not
itself, a defence,
though
it isguilty
often of
linked
a state –ofsee
automatism.
court’s focus on dangerousness prior to falling asleep
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Sane vs. Insane automatism
- Once raised as issue with a proper foundation (normally medical evidence), onus is on P to prove BRD that the
accused’s act was voluntary: Hill v Baxter. There are two types:
o Sane = a consequence of external stimuli – Falconer – See above
 Provides complete acquittal since act was involuntary
o Insane –. A disease of the mind that is internal, prone to recur, and could not be experienced by a
normal person – Falconer.
 Cannot be taken into account under volition – this is the defence of mental
impairment/insanity.
 Consequence: defence of insanity/mental impairment raised
Disease of the mind tests:
- There are three tests for what should be considered a ‘disease of the mind’:
- NB, this is meant only as an analytical tool – not an all encompassing methodology – R v Falconer
o (i) Recurrence/continuing danger test - R v Carter; Bratty v AG Northern Ireland
 Is the mental condition, which has manifested in violence, prone to reoccur
 Unfair conditions such as epilepsy, sleepwalking etc. which CAN reoccur, but can also be
treated with medication
o (ii) Internal/External test - R v Falconer
 If the mental state is ‘internal’, rather than arising for external stimuli, this points to insane
automatism/disease of the mind
 This of limited use for cases which are internal but stimulated by external causes, e.g.
sleepwalking
o (iii) Sound/unsound mind test - R v Radford, R v Falconer




Aimed specifically at “dissociative states”
Distinction between reaction of an unsound mind to its own delusions or to external
stimuli, and the reaction of a sound mind to external stimuli, including stress-producing
factors.
Difficulty in distinguishing between reaction of unsound mind and that of sound mind –
may largely depend upon accused’s susceptibility to emotional shock and stress.
“The significant distinction is between the reaction of an unsound mind to its own
delusions or to external stimuli on the one hand, and the reaction of a sound mind to
external stimuli, including stress producing factors, on the other hand.” - King CJ at
276, Radford
States that may constitute sane automatism
- Sleepwalking – Ryan
- Concussion following a blow to the head – Sullivan
- Hypoglycaemia – Quick [1973] QB 910
- Epilepsy – Sullivan
- Disassociation arising from extraordinary external stress – Falconer
- Sleep – Kroon
- Exception: culpable conduct in the context of driving – Jimenez – Look at coincidence of acts
R v Radford – Unsound Mind
Facts: Shot and killed woman he believed to be lover of his ex-wife. Radford served in Vietnam and thought he was in
army at time, and claimed he had ‘gone into a sort of cocoon.’
Found: Accused had fought in Vietnam and was suffering from PTSD, there was nothing to suggest actions were
voluntary. Acted in a way similar to someone affected by external stimuli, and clearly of unsound mind. Not sane
automatism.
R v Yilmaz – Unsound Mind
Facts: Saudi diplomat shot in back of head with air gun pellet, stabbed multiple times and throat slashed. Accused had
been member of Turkish army, had fired on civilians, been tortured and claimed dissociative state due to flashback from
traumas whilst diplomat mistreated accused’s gf. Accused had already been excluded from military service for a similar
episode.
Found: Man of unsound mind. He was acquitted for murder.
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(iii) FAULT ELEMENTS/MENS REA
SUBJECTIVE FAULT ELEMENTS
(i) INTENTION
General Rule
- The accused must have intended to perform the relevant conduct; or (for result crimes) to bring about the
results or consequences of that conduct – La Fontaine; R v Crabbe
- Intention ‘connote a decision to bring about a situation as far as it is possible to do so – to bring about an
act of particular kind or a particular result. Such a decision implies a desire or wish to do such an act or
bring about such a result. – Brennan J in He Kaw Teh at 569.
- ‘Intention must ordinarily be inferred from all of the evidence admitted at the trial – Peters v The Queen
Other Rules
- The actual victim need not have been the intended victim – R v Saunders
- A belief that there is only a small chance of causing the result is irrelevant – Leonard v Morris
- The crime can take effect in an unforeseen or unintended manner – R v Michael
- Motive is not intention, but can form part of circumstantial evidence establishing/inferring the requisite
state of mind – Hyam v DPP
(ii) KNOWLEDGE
General Rule
- Knowledge entails being conscious that a particular circumstance exists, or awareness that a particular
consequence will result from the performance of the conduct.
- Wilful Blindness – accused is deemed to possess requisite knowledge of a reasonable person in their
position, even though they have deliberately refrained from making enquires or wilfully shut eyes for fear
of learning the truth
o This not an alternative to knowledge, but can have an evidential role to refer to intention –
Kural; Periera
o “A belief falling short of actual knowledge, or awareness of some amount of illicit drug, could
sustain an inference of intention” – Kural
o Possession of a prohibited import does require actual knowledge, and not merely imputed
knowledge – Pereira v DPP
o Suspicion coupled with failure to inquire may be inference from which jury can infer knowledge.
– Pereira v DPP
(iii) RECKLESSNESS
General Rule
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Where the accused acts with foresight or is aware that a particular circumstance or outcome is possible
yet carries on in spite of this risk; ‘conscious risk-taking’ – Pemble; Coleman
Standard for murder is probability, not possibility - Crabbe
Subjective test – accused must have been aware that the risks are substantial, with a ‘real and not
remote’ chance of occurring – Boughey
It is a subjective inquiry, however, often a jury will have to objectively impart a subjective awareness
from the circumstances, since the accused will not admit to any foresight.
OBJECTIVE FAULT ELEMENTS
(i) NEGLIGENCE
General Rule
- Objective standard of reasonableness – a person has acted with criminal negligence if his or her conduct
falls short of that of a reasonable person in the circumstances, to a criminal or gross degree - Nydam;
Andrews v DPP
- The more serious the offence, the greater required degree of departure from the standard of
reasonableness – NSW Sugar Milling Co-Op v EPA)
- Negligence in terms of manslaughter – “such a great falling short of the standard of care which a
reasonable [person] would have exercised and which involved such a high degree of risk that death or
grievous bodily harm would follow that the doing of the act merit[s] criminal punishment.” – Nydam at
445
Nydam v The Queen – Unsound Mind
Facts: Nydam throw petrol all over himself and two other women and ignites it. Claims he only meant to kill himself
after other two women die
Found: Breach of the standard of the ordinary person to a criminal degree. Knew what he was going to do would put the
other women a serious risk of GBH and was therefore found guilty – even without intent.
FULL MR, STRICT LIABILITY OR ABSOLUTE LIABILITY
-
There is a presumption that all crimes involve a fault element – Sherras v De Rutzen.
Determining if the presumption is displaced
- However, to determine if the presumption is displaced, must consider – He Kaw Teh
- (i) Language of the section creating the offence
o Words like “knowingly,” “dishonestly,” or “wilfully” suggest a fault element exists and means it
will be hard to displace the presumption
- (ii) Subject matter of statute
o Acts that ‘are not criminal in any real sense, but are acts which in the public interest are
prohibited under a penalty’ (Sherras v De Rutzen) will suggest the presumption is displaced.
o The presumption is displaced if you are dealing with adulterated food (Parker v Alder) and
serving alcohol (Cundy v Le Cocq 1884)
- (iii) Consequences for community of offence
o Generally weighed directly against the potential consequences for accused if convicted.
o Community benefits have outweighed latter in environmental damage (Allen v United Carpet
Mills 1989 VR) and speeding offences (Kearon v Grant) displacing the presumption.
- (iv) Potential consequences for the accused, if convicted
o More serious conviction consequences means displacement less likely
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o
Severe penal provisions relating to importation and possession of heroin meant presumption not
displaced (He Kaw Teh)
STRICT LIABILITY
- Strict liability offences require proof of the AR only  need not prove a fault element
- There will be a defence of ‘honest and reasonable mistake’ if Proudman v Dayman test fulfilled:
o (i) It was mistake and not mere ignorance
 There is a distinction between a positive act of making a mistake, and not thinking about
a matter at all/ignoring it. – SRA (NSW) v Hunter Water Board
 Mayer v Merchant – regarding tanker loads, specific consideration (of weights) was not
required. Rather, a general belief about load weights was sufficient.
o (ii) Mistake is one of fact – not law
 A fact is something perceptible by the senses – Glanville Williams in Criminal Law:
The General Part
 If the mistake is a compound mixture of fact and law, it will be taken to be a mistake of
fact – Australian Fisheries Management Authority v Mei Ying Su
 Griffin v Marsh - Mistaken belief of law is flawed by earlier mistake about an important
fact, held to be of fact
 Cannot be mistaken as to legal effect or legal significance of known facts – Von Lieven
v Stewart
 Analogy: Misreading the speedometer vs. mistaken belief of speed limit
o (iii) Mistake must be honest and reasonable
 Honest belief is one made in fact - GJ Coles v Goldsworthy
 Mistakes made carelessly are not reasonable. –GJ Coles v Goldsworthy
 Assessing the carelessness of a mistake – looking at subjective circumstances in which
the accused placed including attributes and information available at the time – AFMA v
Mei Ying Su
o (iv) Mistake must render the accused’s act innocent
 Belief must be such that if true, then no offence would have been committed –
Proudman v Dayman
- Honest and Reasonable Mistake defence can be expressly or impliedly excluded by the statute – He Kaw
The v The Queen
Proudman v Dayman
Facts: Accused charged with allowing an unlicensed person to drive a motor vehicle. Convicted and appealed to.
Argued that she though the driver had a licence, with this belief based on reasonable grounds.
Found: Four step test provided.
DEFENCE OF HONEST AND REASONABLE MISTAKE
- Once raised, P must prove BRD that accused did not have an honest and reasonable mistaken belief in
facts which, if true, would have rendered the accused’s acts innocent – Proudman v Dayman
- D bears evidential burden  provides evidence of the mistake of fact or pointing to evidence in the P’s
case from which such a mistake may be inferred – He Kaw Teh v The Queen
ABSOLUTE LIABILITY
- Only the AR must be proven  Excludes ‘mistake of fact’ defence
- Courts are reluctant to categorise offences as those of absolute liability in the absence of clear legislative
intention – R v Wampfler
- Places individuals engaged in potentially hazardous or harmful activity, a legal obligation of extreme (not
merely reasonable) care.
He Kaw Teh v The Queen (19850 157 CLR 523
Facts: Accused was convicted of importing and possessing heroin under s233B of the Customs Act 1901 (Cth). The trial
judge had directed the jury that the P was not required to prove that the accused had any knowledge of the drugs.
Crux: Principles for statutory interpretation in construing whether offence is SL or AL – creates tripartite division of crime.
7
Examination of MR – especially intention and knowledge.
Law applied: 4 Factor test (Proudman v Dayman)
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Held: Presumption of MR had not been displaced
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CONCURRENCE OF AR AND MR
General Rule
- For all crimes the physical and fault elements must coincide - Meyers v R.
- There is a vital need to isolate the relevant conduct causing death Royall – Mason J at [15].
- Courts are willing to construct concurrence by either imposing the fault element over a series of acts, or
upon a continuing act.
(i) Fault imposed upon a continuing act
- The mens rea may be superimposed upon an existing act. It is not required to be present at the inception
of the AR, but simply before completion – Fagan
- The fault element cannot be superimposed upon an act already completed – Fagan (in obiter)
- The authority for concurrence of AR and MR in MURDER = Meyers v R
R v Miller [1983] 2 AC 161
Facts: Homeless
person
fell asleep in of
a derelict house while smoking. While asleep, the bed caught fire. He awoke to
Fagan
v Metropolitan
Commissioner
(ii) Fault
imposed over
a series of actsPolice [1969] 1 QB 439
find
the
mattress
smouldering
but
instead
of extinguishing
the
fire, he merelyhis
moved
to moving
another the
room.
The accidentally
house burnt
Facts: -At the
theAR
accused
(a police
accused
car.MR
In
car,
It isrequest
possibleoffor
to be viewed
as aofficer),
series ofthe
acts
and formoved
the requisite
to be imposed
on D
such series
down
charged
He appealed.
of
acts–
Thabo with
Meli
drove and
ontohe
thewas
policeman’s
foot.arson.
He refused
to move the car for a few minutes when asked, turned off the engine despite
Held:
The
Court
held
that
the
accused
lacked
the
mens
when
the initial
act occurred.
Instead,
Where
the
requisite
mental
state
was
present
atrea
the
beginning
of thedamaging
acts,
will be
found. the court
the requests of the policeman. Eventually he moved
the car
off
the policeman’s
foot. concurrence
relied
on
the
accused’s
recklessness
after
becoming
aware
of
the
fire,
thus
taking
a
‘continuing
act’
approach
that the
Arguments:
court
on the
basis
of a (mounting
duty
arising228
from
creating
a situation
of danger. with the requisite MR – also, that the
Thabo
Meli
v The
Queen
1 WLR
 justified
D argued
that
the [1954]
AR
the
officers
foot)
was not accompanied
Facts: Accused
took
victim
hut where
attacked
according
AR ended
when
the to
cara was
parkedthey
on top
of the him
officers
foot to a preconceived plan. They threw him off of a
cliff, believing
him
to the
be dead
anda hoped
it would
lookAR
likeended
an accident.
was not dead
at that
point, he
P argued
that
act was
continuing
act, the
when theThe
carvictim
was eventually
moved
and during
thisdied
act
later from
exposure
at
the
bottom
of
the
cliff.
the requisite MR was formed.
Arguments:
The D
argued
were 2 distinct
(1)when
= hut,
= disposing
of onto
victim,
which
Found: The court
held
that itthat
wasthere
a continuing
act that acts,
started
the(2)
wheel
was driven
the neither
victims’offoot
and
possessed
theitrequisite
concurrence
of both
elements.
ended
when
was removed.
Although
a fault
element was not present at the beginning, it was superimposed upon the
Held: it act.
is artificial
divide
wascannot
essentially
a series of acts
into
separate
acts – the whole of the conduct
existing
Obiter:tothe
fault what
element
be superimposed
upon
an distinct
act already
completed.
was regarded as one indivisible transaction causing the death.
 MR and AR coincided because accused possessed requisite MR at the same time they began a series of acts
 Concurrence was hence found throughout
Appeal dismissed.
(iii) Acts nearly contemporaneous
- The physical element may, in some circumstances, be so nearly contemporaneous to the relevant event
(where fault element or act actually occurred) to fulfil concurrence. – Jimenez
- In Jimenez, the HCA took a relaxed approach to concurrence such as to ‘bridge the gap where the
accused’s lapse of consciousness was momentary.’
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Jiminez v The Queen (1992) 173 CLR 572
Facts: Accused began driving at 3:30am and 2.5 hours later he fell asleep at the wheel of the car. The car went off-road and
crashed into trees, killing the front passenger. The offence required dangerous driving at the time of impact. The issue was at
the time of the death, the accused was not driving voluntarily, since he was asleep.
Judgement: Court held that even thought he car was not being driven dangerously (it was not being ‘driven’) at the precise
moment of impact, a preceding period of dangerousness may be so nearly contemporaneous with the impact as to satisfy
concurrence.
 Dangerousness is an objective test – in this case the conditions of tiredness were sufficient to constitute dangerous
driving.
(iv) INTOXICATION
General Rule
- Only relevant in extreme cases – used to argue you are acting as an automaton, incapable of forming the
requisite mental state/intent.
- Intention – Evidence of intoxication can be used to show that the accused did not intent to perform the
conduct/act with the purpose of bringing about the result
- Knowledge – Used to show that the accused did not act with the requisite knowledge or awareness
- Recklessness – Used to show that the accused did not foresee the likelihood of a consequence occurring
Burden of Proof
- P bears legal burden – proving all elements of the offence and not the evidence of intoxication – Stokes
- D bears the evidential burden – if embarking
Relevant statutory provisions – Crimes Act 1900 NSW
SECTION
428A
Definitions
Drug – includes a drug within the meaning of a certain act, and a poison, restricted substance
or drug of addiction within the meaning of Poisons and Therapeutic Goods Act 1966.
Intoxication – means intoxication because of the influence of alcohol, a drug or any other
substance
Offence – includes an attempt to commit the offence
Offence of specific intent is defined in section 428B
Self-induced intoxication means any intoxication except intoxication that:
- Is involuntary, or
- Results from fraud, sudden or extraordinary emergency, accident, reasonable mistake,
duress or force, or
- Results from the administration of a drug from a medical practitioner, nurse, dentist
etc. which is prescribed for a purpose, in accordance with prescribed dosage level and
according to manufacturers instructions
428B
Offences of specific intent to which the part applies
An offence of specific intent is an offence of which an intention to case a specific result is an
element
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Provides a (non exhaustive) table of specific intent offences
Specific intent offences (i.e. may be relevant)
- 19A Murder
- 33 Wounding or GBH without intent
- 61K Assault with intent to have sexual intercourse
Offences with an element to cause the specific result
- 58 Assault with intent to commit SID1 on certain officers
Any other offence by or under any law prescribed by regulations
428C
Intoxication re offences of specific intent
Evidence that a person was intoxicated (whether by reason of self-induced intoxication or
otherwise) at the time of the relevant conduct may be taken into account in determining
whether the person had the intention to cause the specific result necessary for an offence of
specific intent.
Evidence can’t be taken into account if the person:
- Had resolved before becoming intoxicated to do the relevant conduct, or
- Became intoxicated to strengthen his or her resolve to do the relevant conduct (‘dutch
courage’)
428D
Intoxication re other offences – basic intent offences
Basic Intent Offence: An offence where the AR is one of conduct only and the intention is
confined to merely engaging in that specified conduct – i.e. no specific result
In determining whether person had mens rea:
- Self-induced intoxication cannot be considered in determining MR
- Non-self induced intoxication can be considered in determining MR
428E
Intoxication re murder/manslaughter – alternative verdict scenario
428F
If evidence of intoxication at the time of the relevant conduct results in a person being
acquitted of murder:
- Self induced intoxication cannot be taken into account in determining whether the
person had the requisite mens rea for manslaughter
- Non self-induced intoxication evidence may be taken into account in determining
whether the person had the requisite mens rea for manslaughter.
I.e. Can’t reargue for manslaughter (no double dipping).
Intoxication re Reasonable Person Test
If necessary to compare the accused’s state of mind to that of a Reasonable Person – the
reasonable person is not to be intoxicated.  Sober person!
428G
Intoxication re AR – voluntariness – all offences
Evidence of self-induced intoxication cannot be taken into account into determining whether
relevant conduct was voluntary. I.e. Cannot argue – ‘I was so drunk I was an automaton’
However, a person is not criminally responsible for an offence if the relevant conduct resulted
from intoxication that was not self-induced.
428H
Abolition of R v Connor Principle – re common law relating Self-Induced Intoxication
The common law relating to the effect of intoxication on criminal liability is abolished.
Applying intoxication
1
Serious indictable offence
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-
-
(i) Where specific intent required for MR, evidence of intoxication can be raised to show that the D did
not intend to perform the conduct or did not act with the purpose of bringing about the
results/consequences of the conduct
(ii) Where knowledge required, intoxication may show that the D did not act with the requisite
knowledge or awareness
(iii) For recklessness, intoxication can show that the D did not foresee the likelihood of a consequence
occurring
Mistake of fact resulting from intoxication may negate the fault element of an offence
Intoxication and Negligence as MR
- P can raise evidence of intoxication to demonstrate that the accused acted negligently – Gow v Davies
- Standard is of a reasonable person who is not intoxicated – s428F
Intoxication and mental impairment
- If intoxication induces a condition such as delirium tremens or permanent brain damage – defence of
mental impairment can be raised – R v Connolly
(v) HOMICIDE
‘Homicide’ refers to the unlawful killing of a human being. It encompasses offences such as murder,
manslaughter, infanticide, and culpable driving causing death.
(i) Murder
General Rule
- Section 18(1) Crimes Act: Act/omission causing death of victim, with reckless indifference to human
life, or with the intent to kill or inflict grievous bodily harm (GBH)
- Punishable by (natural) life imprisonment - s 19A Crimes Act 1900 (NSW)
- Page 684
Munro (1981) 4 A Crim R 67
Facts: Charged with s18 (1)(a) murder, s95 robbery with assault (20 years), s 96 robbery with wounding (life). Issue was
whether the death needed to be caused by the robbery with the wounding (since robbery with assault was insufficient for
constructive murder).
Judgement: No causal link between death and offence needed other than the wording of statute, ‘done in attempt of, during,
or immediately after.”
Sentencing
- Murder is punishable by (natural) life imprisonment - s 19A Crimes Act 1900 (NSW)
- However, a judge may impose a lesser sentence where appropriate – s21 Crimes (Sentencing Procedure)
Act 1999
- However, life imprisonment MUST be given if the level culpability is so extreme that the community
interest in retribution, punishment, community protection and deterrence can only be met through the
imposition of that sentence. – s 61 Crimes (Sentencing Procedure) Act 1999
Year and a day rule
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-
If the person died 1 year and 1 day after infliction of the injury, causation will not be satisfied.
Although, if the injury was inflicted after 17 March 1991 (commencement of this section), then you can’t
use this rule: abrogated
ACTUS REUS
General Rule
- S18 (1) Crimes Act: Voluntary act or omission causing death of a human being (the victim)
- The act itself must always be characterised/identified – Royall
(i) Human being
Beginning of life
- Common Law Position: Homicide can only be committed on a person who is ‘in being’ – R v Hutty
o ‘Legally a person is not in being until he or she is fully born in a living state’ – Barry J in R v
Hutty [339]
- Statute Position: Only for murder
o ‘Born alive if it has breathed, and… wholly born into the world whether it has an independent
circulation or not.’ – s20 Crimes Act 1900
o I.e. if charged under manslaughter, use Common Law position
- Unborn child is not a legal human being – Attorney General v T
End of life
- A person has died where there has occurred – Human Tissue Act 1983 (NSW) S 33
o An irreversible cessation of all function of the person’s brain; or
o Irreversible cessation of circulation of blood in the person’s body
- For death of foetus: (s 4 Crimes Act 1900): Grievous bodily harm includes:
o The destruction (other than in the course of a medical procedure) of the foetus of a pregnant
woman, whether or not the woman suffers any other harm
R v Iby [2005] NSWCCA 178 – Foetus and Manslaughter
R vv Hutty
King –[1953]
Foetus– and
GBH
Born
Alivecar
Rule
Beginning
Life
R
Facts: Appellant
was driving
a stolen
at and
excessive
speedof
erratically
and collided head on with a 38-week pregnant
Facts:
The
victim
refused
to
terminate
pregnancy.
The
accused
attacked
her,baby
kicking her
stomach
repeatedly
and
caused
Facts:
A
woman
gave
birth
to
a
baby
daughter
(evidence
suggested
normally
developed)
and
woman. An emergency caesarean was performed at the hospital. The child that
was the
deliveredwas
in poor
condition,
but with
areturned
a miscarriage.
to
the house
told herbreathing
mother she
hadmedical
given birth
to a baby).
mother
was crying
and upset.
The
heartbeat.
The
infantand
remained
with
assistance
for 2 The
hours
after noticed
delivery,she
despite
little brain
activity
Issue: Whether
or not harm
in the
mother’s
uterus, constituted
GBH
to the mother.
anddelivery.
her husband
wenttotoa foetus,
find thestill
newly
born
baby. According
to a written
statement,
the accused said she had
within 1mother
hour after
Held:
Definition
of
a
‘person’
under
s
33
of
Crimes
Act
[wounding
or
GBH
with
intent]
includes
the she
foetus
being
given
birth
to the baby
standing
andwas
thatnot
it fell
onalive
the ground
and was
whilst
baby was
the ground,
lostas
control
Argument:
The
appellant
argued
that theup,
baby
born
and hence
notthe
capable
of a on
manslaughter
charge.
connected
to the
mother
of
herself
and
hit
a couple
times
the face– and
head with
her shoe.
evidence
she denied
and claimed
Judgement:
Evidence
of it
any
sign ofof
life
afteron
delivery
including
a beating
heartInorlater
breathing
is sufficient
forthis
a child
to
Note:
Crimes
Amendment
(GBH)
Act
2005
(NSW)
codified
R
v
King
principle
–
inserted
s4
into
the
Crimes Act 
the
baby
fell
to
the
floor
after
birth.
be deemed born alive, despite s 33 of Human Tissue Act
GBH now includes
“destruction
(other than
in the course
of mother’s
a medicalbody
procedure)
of the
foetus of
of a pregnant
woman,
baby
had toof
bethe
completely
from the
by virtue
of
 Judgement:
“The scope A
and
purpose
Human delivered
Tissue Act…providing
as it doesand
a ‘living
definition
of deaththe
of functioning
general
whether
or not the
woman
suffers
any
harm.’that a fetus is not a person, with legal rights, until born is a fundamental part
its
own
organs’.
The
common
law
principle
application, does not indicate any legislative intention to alter the concept of “life” for purposes of the law,
of
our legal system.
born
alive
rule has evolved with medical advances, and was recently confirmed as
specifically
the bornThe
alive
rule.”
Atevidentiary
[72]
part of Australian common law in the case of Iby.
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(ii) Causation
General Rule
- It is a question of fact for the jury to decide. If simple, jury uses their common sense. – Campbell; Royall
- It is ultimately a question of common sense – not to be confused with philosophical or scientific ideas of
causation – R v Carter
The Tests
- Different judgments in Royall outline the three tests.
o Substantial and Operating cause test
o Reasonable foreseeability test
o Natural consequences test
- Substantial and Operating Cause test is the starting point of a causation analysis, with the other Royall
tests being relevant to NAI’s (Royall) has fallen into favour (Arulthilakan, and McAuliffe)
- If multiple causes or any potential Novus Actus Interveniens, use the other tests - Royall
(i) Operating and Substantial Cause Test – Deane and Dawson citing R v Smith
- Question: When the victim died, was the relevant act a still-operating and substantial cause of death? –
Royall, Arulthilakan, McAuliffe
- It is a retrospective examination. – Royall
- The event must have had a ‘sufficiently substantial causal effect which subsisted up the happening of the
event.’ – R v Hallet, at 149
- The relevant act needn’t be the sole cause so long as it contributed significantly to the death – R v Pagett
- Where intervening acts are argued, the reasonable foreseeability and natural consequence tests must be
considered – R v Hallet; Royall
R v Hallet [1969] SASR 141 – Reasonable Foreseeability + Substantial and Operating Cause
Facts: Accused knocked out the victim, leaving him on a beach with his legs in the water but his head on the sand. The tide
rose and the victim drowned.
Argument: D claimed that the drowning was the cause of the death – tide coming in operated as an NAI to break the chain
of causation, despite how drowning came about, he claimed he had nothing to do with the drowning.
Held: The blow to the head:
 Was not the ultimate cause of death but was nevertheless a substantial and operating cause which allowed the
unconscious victim to drown
 Initiated the events which led to the victim drowning – the tide coming in was not a supervening event sufficient to
break the chain of causation – it was merely the ordinary operation of “natural forces”
 The consequences of the accused’s conduct – rendering the victim unconscious and leaving them on the beach in
proximity to water – were reasonably foreseeable from an objective perspective.
(ii) Reasonable Foreseeability Test – Toohey and Gaudron citing Hallet
- Viewed prospectively: would a reasonable person (objective) have foreseen the consequence of the
accused’s conduct? – Royall, Hallet
- Death, but not the precise manner of its occurrence must have been reasonably foreseeable =
- Within the normal range of expected outcomes - Royall
(iii) Natural Consequence Test – Mason
- Was the result/intervening act a natural consequence of the accused’s actions? – Royall
- The ordinary operation of forces is a natural consequence of the accused’s act. – Hallet
- Did the conduct induce a “well founded apprehension of physical harm” within the victim, such as to
make it a natural consequence that he/she sought to escape and was injured in the process? - Royall
- Generally applied to the natural phenomena or situation where the victim contributed to their own death
in seeking to escape the attack.
- The natural consequence test is stricter than reasonable foreseeability. Mason J implies that the manner of
death, not merely death itself, must be a natural consequence of the accused’s actions. – Royall
- A victim feeling violence needn’t always act rationally for their acts of escape to be deemed a natural
consequence – Mason CJ in Royall.
- If the act is a substantial and significant cause of death, and other factors/causes were either reasonably
foreseeable or natural consequence of the act, then causation may still be established. – Royall
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(iii) Novus Actus Interveniens
The General Rule
- The chain of causation will be broken if a subsequent event renders the prohibited consequence (Death)
no longer reasonably foreseeable, substantial cause or natural consequence of the accused’s act.
o An act independent of the accused, of an objectively unpredictable, unnatural or unexpected
character may break the chain of causation
o Conduct accelerating the death of the victim may be sufficiently significant to break the chain of
causation – R v Evans (No 2).
(i) Act of a third party
- The act of a third party will break the chain of causation where it is ‘free, deliberate and informed’ –
Pagett
- Question of fact for the jury – R v Burns per Woods DCH
- Unconscious actions by the victim are not free, deliberate and informed and will not break the causal
chain – R v Hallet
R v Pagett (1983) 76 Cr App R 279 – Third Parties and NAI
Facts: Accused used victim as a human shield. While firing on police, the police returned fire and killed victim/human
shield
Judgement: A reasonable act in self-preservation or in performance of a legal duty is not an intervening cause – police
acting in self-defence and performance of a duty rendered their shooting not free or deliberate.
* This approach has been criticised and attributed to public policy and the accused’s criminal recklessness
(ii) Negligent Medical treatment/Refusing Medical Treatment
- Medical treatment will only sever the causal connection in extraordinary cases of gross negligence –
Evans & Gardiner
- Original wound must be rendered merely a part of history – Smith
- Even inept failures in diagnosis are unlikely to sever the causal connection – Evans & Gardiner
- Courts are Unwilling to view a victim’s actions as breaking the chain of causation – Blaue
- We must take the victim as we find them. – Blaue
R v Smith [1959] 2 QB 35 – Substantial and Operating Cause
Facts: Soldier received bayonet wounds during fight with another soldier. Victim was dropped twice, given an
unsuccessful and ineffective treatment on arrival. Victim died two hours later. Evidence showed the medical treatment
was ‘thoroughly bad’, and had the victim been given a blood transfusion (doctors failed to recognise haemorrhaging)
there was a 75% of survival.
Judgement:
 ‘Only if the second cause is so overwhelming as to make the original wound merely a part of history’ will
a novus actus interveniens be found. (42-43)
 Court held that the original wound was a still-operating and substantial cause of death.
 The accused cannot avoid responsibility if they put the victim in a position where an emergency
operation is required, and fails.
o Obiter: This is not the case if doctor turns minor wound into fatal one,
R v Evans & Gardiner (No 2) [1976] VR 523 – Medical Treatment
Facts: 2 prisoners stabbed another inmate, who was successful operated on. 11 months later the victim died from a
common side effect of such operations, which should have been diagnosed, despite continuing complaints for a week
prior to death.
Judgement:
 Failures in diagnosis, ‘however inept and unskilful’ are unlikely to be found a cause of death unless in
extraordinary cases of gross negligence.
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(iii) Acts of victim
- Escaping violence
o Where a victim is killed seeking to escape violence of the accused, their own actions may break
the chain of chain of causation if:
o The fear was well founded and reasonable (Deane & Dawson JJ) and their response was
proportionate to the accused’s conduct (Brenna, Toohey, Gaudron JJ). – Royall
o NB: however, Mason CJ contests the requirement of reasonableness.
- Refusing Medical Treatment
o See above
- Natural Forces
o Expected/reasonably foreseeable natural force like sea tides but not earth quakes or tsunamis –
Hallet
Royall
v The
Queen
(1991)
172–CLR
378 –Medical
All Causation
R v Blaue
[1975]
1 WLR
1411
Refusing
Treatment
Facts:
Victim
died
from
a
fall
from
window
after
a
severe
domestic
At which
the time,
she was
a bathroom
Facts: Victim stabbed was a Jehovah’s witness and refused
a bloodargument.
transfusion
would
haveinprobably
beenwhere
lifethe
only
exit
was
the
door
which
the
accused
was
standing
behind
and
a
window.
Evidence
showed
blood
stains,
saving. D claimed that this refusal of a blood transfusion was the true cause of the death, not the stab wound.
smashed
furniture,
and
walls
in bathroom
an object
wasvictims
swung.decision
The victim
of the
Held:
Cause
of death
in damaged
this was the
internal
bleeding suggesting
from the wound,
not the
– the jumped
fact thatout
treatment
window.
was
refused did not break the causal connection between the act and death.
Issue:
the say
accused
causally
responsible
for the death of the victim, or was the victims act of jumping from a
 Was
Cannot
religious
beliefs
are unreasonable.
window
disproportionate?
 Must
take their victims as you find them – whole person, not just the physical person.
Reasoning: On appeal, the court recognised 3 possible causes for the victim falling from the window:
 was pushed  causation obvious
 jumped out of fear/ to escape accused – problematic
 retreats from accused and falls – not problematic  retreat would not have been voluntary (‘free, deliberate,
and informed”) and the accused’s conduct would have been an operating and substantial cause
Elements of the natural consequence test:
 accused apprehension needs to be intrinsically evidence (or inherently unlawful)
 apprehension to the harm must be ‘reasonable’
 victims mode of escape must be reasonable and proportional to the threat posed by the accused’s conduct
Held: Victim’s apprehension of harm was reasonable and her attempt of escape by jumping from a window was a
proportional reaction to the well grounded fear of harm, the accused was liable for the victim’s death because the causal
link was established
 she has been verbally and physically abused by accused prior to going into the bathroom
 Evidence suggested accused had hit her, been in the bathroom, been banging on the door and there was blood
on the wall
 Victims response to the risk of harm was proportionate
o Window was the only mode of escape
o Had there been multiple escape routes, there might have been one that was less dangerous, BUT this
was not the case
MENS REA
Mens Rea elements
- Intention to kill: s18 (1)(a) Crimes Act 1900 (NSW)
- Intention to inflict grievous bodily harm (GBH): s18 (1)(a) Crimes Act 1900 (NSW)
- Reckless indifference to human life: s18 (1)(a) Crimes Act 1900 (NSW)
(i) Intention to kill – S18 (1) (a)
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General Rule
- Meaning of intention “a decision to bring about a situation so far as it is possible to do – to bring about
a…particular result.” – He Kaw Teh
- P must prove BRD that the accused intended death to result from his/her conduct – S18 (1) and La
Fontaine v The Queen
o It is a question as to the subjective state of mind of the accused when the relevant act was
performed. Accused intended death to ensue from the conduct – Crabbe
o Accused need not have intended the exact mode/manner of death – Royall
o Causing death ‘at a time or in the way that it was to some extent unexpected is irrelevant
provided they intended to kill – Demirian
 Must ‘create a situation to kill and it does’ – Mason in Royall
o Doctrine of transferred intent – victim must only be “some person” – s 18(1)(a) Crimes Act 1900
(NSW). I.e. deceased need not have been the intended victim.
o If the accused intended to kill a particular person, however, in fact killed another then the
requirement of intention to kill is satisfied – Standish
(ii) Intention to Commit GBH – S18 (1) (a)
General Rule
- P must prove BRD that the accused intended death to result from his or her conduct – S18 (1)
- What constitutes GBH is a question for the jury – Watson
- Meaning of GBH:
o The statutory definition is an open/partial definition ‘includes’
 Any ‘permanent or serious disfiguring’ – s 4(1)(b) Crimes Act
 Destruction of pregnant woman’s foetus – s 4(1)(a) Crimes Act
 Any grievous bodily disease (GBD) – s4(1)(c) Crimes Act
o Common law:
o Bodily harm of a serious character – DPP v Smith and R v Saunders
o Not limited to disfigurement only – Tranby
o ‘Really serious bodily injury,” need not be life-threatening – Pemble, DPP v Smith
(iii) Reckless Indifference to Human life – S18 (1) (a)
General Rule
- Knew or foresaw death (only) as a probable consequence of the accused’s actions – Royall; Pemble.
- Essentially conscious risk taking – awareness of risk of death but yet continues anyway
- Subjective test – the accused must have had actual knowledge of the probability of death
- Question of actual knowledge is one for the jury to be determined based on relevant conduct and evidence
– process of inference
- No need for the accused’s knowledge/foresight of the probable consequences to be accompanied by
indifference – Crabbe
- Accused need not have considered the specific victim or mode of death – Crabbe
- Foresight:
o Subjective
o ‘Awareness, knowledge, foresight or realisation of the probability of death’ – Royall
- Probable consequence:
o Must be more than a mere possibility – Crabbe
o Not sufficient to say that death “may well happen or could well happen” - Annakin
o Must be ‘substantial’ or ‘real and not remote’ – Boughey
Crabbe (1985) 156 CLR 464 – Application of Reckless Indifference
Facts: Man engaged in serious binge drinking at bar, but was ejected and was upset by this. He drove his ‘prime mover’
vehicle through bar wall, killing 5 and injuring multiple others.
Judgements: Recklessness is foresight of probable cause of death, not possible.
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(iv) Constructive Murder
General Rule
- An act or omission causing death is done in an attempt to commit or during or immediately after the
commission of a crime punishable by 25 years or life imprisonment – Munro
- In NSW – no requirement that the crime be dangerous or violent
- No requirement for the MR of murder – only the AR and MR for the foundational offence – criminality
present
Murno
(1981)v 4The
A Crim
R (2003)
67 – Constructive
Murder
Arulthilakan
Queen
203 ALR 259
– Affirmation of Substantial and Operating Cause
Facts: Stabbing
Accused robbed
Facts:
case an old man in his home – intention was to steal from the man. During the robbery, accused
punched the victim
in the
the tests
face in
(wounding)
brokethat
his the
ribstrial
(assault)
victim
contracted
pneumonia
as a to
result
Judgement:
Affirms
Royall andand
affirms
judge–can
direct
the jury that
the act said
haveof the
broken
ribsdeath
and later
chargedcause
with robbery
with though
wounding
life),
withRejected
assault (penalty:
caused the
mustdied.
be a Was
substantial
of the death
not (penalty:
necessarily
therobbery
sole cause.
‘but for’ 20
test.
years) and murder (penalty: life)
Argument: P relied on reckless indifference and felony murder as satisfying the MR elements of the murder charge. D
argued that there had to be a causal connection between the felonious wounding and death – argued it was absent on the
facts. There were multiple crimes committed, only which of arguably caused the death.
Held Street CJ: No requirement for causal link between the 25 year imprisonment felony and the victim’s death – only
need to show that the act causing the death was done during or immediately after the commission of the 25 year crime.
No need for reasonable foreseeability
Intoxication and murder
- Intoxication can be relevant to any criminal case – s428 Crimes Act 1900 (NSW)
- Self-induced intoxication is only really any help in relation to specific intent crimes.
- According to the table in s 428 – murder is a specific intent crime.
R v Grant (2002) 55 NSWLR 80  Intoxication and S18 (1) (a)
Facts: The accused was convicted of the murder of one person and the shooting of another with the intent to murder in a
caravan park. He had been drinking heavily and he had been refused service at a local club due to intoxication. He was
sentenced to 18 years.
Issue: Court had to decide whether murder in all its forms including reckless indifference to human life could be
classified as a specific intent crime for the purposes of the application of the provisions in the intoxication of the act.
Judgement: ‘the legislature should be taken as having intended that murder, in all its forms, should come within the
operation of s428(C) – Wood CJ. I.e. can use intoxication to argue no requisite MR formed.
(ii) Manslaughter
General Rules
- The crime of manslaughter is punishable by a maximum of 25 years imprisonment – s 24 Crimes Act
(NSW)
- However, a judge may impose a lesser sentence – s 21 Crimes (Sentencing Procedure) Act 1999
- Section 24 of the Crimes Act needs to be read in conjunction with Crimes (Sentencing Procedure) Act
subsections (2) – lesser terms and (5) – does not limit the discretion of the court
- Two Types of manslaughter
o Voluntary manslaughter
o Involuntary manslaughter
Statutory definition
CRIMES ACT 1900 (NSW) - 18 Murder and manslaughter defined
(1)
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Irbyto
(karmasvanity@gmail.com)
(b) Every other punishable Downloaded
homicide shall
be taken
be manslaughter.
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(i) Voluntary manslaughter
- Refers to situations where the accused commits murder but is convicted of manslaughter due to
mitigating circumstances – something in the mental state that doesn’t warrant same criminality as murder
- Voluntary manslaughter is governed by statute - examples include:
o S23 provocation, s23A substantial impairment by abnormality of mind, s 22A infanticide,
diminished responsibility, pursuance of a suicide pact.
o Note s421 – excessive self-defence
(ii) Involuntary manslaughter
- Entirely governed by common law in NSW – R v Lavender
o No definition in the Crimes Act – fall back on CL
o ‘The section [s18] did not alter the common law of unlawful homicide by involuntary
manslaughter.’
- Operation of CL principles is not altered by s18 of CA.
- Where the accused has caused the death of the victim but did not possess the requisite MR for murder –
other factors of culpability are present
- Two types of Involuntary Manslaughter recognised by the HCA in Wilson
o (i) Unlawful and Dangerous Act Manslaughter
o (ii) Criminal Negligence Manslaughter
(i) Unlawful and Dangerous Act Manslaughter
Elements of UDA Manslaughter
- AR: Voluntary act/omission causing the death of a human being where:
- MR: Act was unlawful, and
- MR: Act was dangerous
- How to set it out:
o Intro – need to prove act unlawful - Test: Both elements of the alleged unlawful act (actus reus
and mens rea) must be proven BRD – R v Lamb; Pemble
o AR: Foundational Offence
o MR: Foundational Offence
o AR: Manslaughter (Murder analysis)
o MR: Manslaughter
Actus Reus
General Rule
- Voluntary act (NOT omission) causing the death of a human – s18 (1)(a) Crimes Act
o Refer to AR issues raised under murder
o Characterise the act specifically – it must be unlawful
Mens Rea
(i) UNLAWFULNESS:
- Unlawfulness must be a criminal act rather than merely a civil wrong – Pemble.
o Breach of a statutory or regulatory prohibition does not necessarily make the relevant act
‘unlawful’ for the purposes of manslaughter – Pullman
o There is a difference between an unlawful act and a lawful act with a degree of carelessness
which the legislature makes criminal (suggests a focus on an element of danger) – Pullman
- Not necessary for the UDA to be directed at the victim - Goodfellow
- The unlawful act must be a positive one, and not an omission – Lowe
Examples of Unlawful Acts – will constitute sufficient unlawfulness
18
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-
-
Assault, aggravated assault, attempted assault (Pemble) , unlawful wounding (McCallum), robbery
(Dawson), burglary (Watson), arson, (Goodfellow) abortion (Creamer), discharge of firearm in a public
place (Pemble), supplying and aiding injection of dangerous drug causing overdose (Cato).
Pemble – had a broad approach taken to establishing foundational crime in a situation of moral
blameworthiness.
R v Pullman (1991) 58 A Crim R 222; NSWLR 89 – Unlawful Act: More than a Breach
Pemble v R (1971) 124 CLR 104 – Unlawful Act: Must be unlawful in nature
Facts: The accused deliberately crossed broken line whilst turning at a blind corner, causing the oncoming driver to
Facts: Accused approached his ex-lover from behind with a sawn off rifle. The rifle discharged and the victim died of a
leave the road and lose control. The consequence of this was that it hit a motorcycle and an oncoming car (travelling in
wound to her head. The accused argued he had only wanted to frighten the victim but that the rifle accidentally
the same direction as the accused). The charge of manslaughter was for the motorcyclist.
discharged. On trial, it was a murder conviction, he appealed to the HCA.
Judgement: Hunt CJ at CL at 98 : ‘My conclusions, stated very shortly, are therefore:
Held – 3:2 Majority: HCA overturned the verdict of murder but for one on manslaughter. However, the judge in the
- An act that constitutes a breach of some statutory or regulatory prohibition does not, for that reason alone,
majority reasoned differently.
constitute an unlawful act sufficient to found a charge of manslaughter within the category of an unlawful and
 Barwick CJ – unlawful act was attempted assault – since evidence showed that the victim was not aware of the
dangerous act.
gun and hence assault could not be made out
- Such an act may, however, constitute such an unlawful act if it is unlawful in itself – that is, unlawful otherwise than
 McTiernan J – unlawful act was discharging firearm in a public place
by reason of the fact that it amounts to such a breach.”
 Windeyer J – manslaughter by gross negligence
R v Lamb [1967] 2 QB 981 – Unlawful Act: All element must be present
Facts: Lamb
and
the victim
friends
withAct
a loaded
Gunter
(1921)
21 SRwere
(NSW)
282 playing
– Unlawful
– Justrevolver.
a BreachBoth regarded it as a joke. They were aware
that 2 bullets
in thewho
chamber,
but struck
neitheroff
knew
pulling
the trigger
moved
the friend
barrel in
(thus
positionhis
one
bullet inCharged
Facts:were
- Doctor
had been
the that
register
decided
to operate
on his
removing
appendix.
line withfor
themanslaughter
hammer). Lamb
pulled
the
trigger
while
aimed
at
friend,
killing
him.
Expert
witnesses
give
evidence
that
after friend dies. Was this unlawful?
this was Ratio:
a natural
to be made
by someone
of the
mechanism
of athe
gun.
Notmistake
an unlawful
act – just
a breach unaware
of statutory
provisions
in that
doctor is no longer allowed to operate.
Judgement: On Appeal, the court held that there was no intention, and thus, the fault element of assault could not be
proven. Hence, manslaughter by unlawful and dangerous act was not made out.
* All elements of unlawful act must be present.
R v Cato [1976] 1 WLR 110 – Unlawful Act: Consent present, so no AR for foundational offence
Facts: The accused and his friend injected each other a number of times with heroin. Both became very ill and the friend
died. The court found the accused guilty of manslaughter. On appeal it was argued that there was no unlawful act since
the administration of a drug to another with consent did not amount to an offence.
Ratio: Court of Appeal upheld manslaughter conviction “The unlawful act would be described as injecting the
deceased…with a mixture of heroin and water which at the time of the injection and for the purposes of the injection the
accused had unlawfully taken into his possession.”
(ii) DANGEROUSNESS:
- Test: From the objective standpoint of a reasonable person in the accused’s position, was the act one
carrying with it an appreciable risk of serious injury? - Wilson
- (i) Reasonable person:
o Imbued with the knowledge of the accused and the physical features of the situation, but not the
accused’s idiosyncrasies and ephemeral emotional or mental state – Wills, affirmed in Besim
o Relevant circumstances – age and any knowledge of the accused, about a condition affecting the
dangerousness of the conduct - Wills
- (ii) Risk of serious injury:
o The risk must be real or significant, not remote, trivial or fanciful. - Wilson
o It must also be less than ‘really serious’ since to exceed this would stray to close to the MR for
murder. - Wilson
- (iii) Meaning of “serious injury”
o Something more than trivial or negligible – Wilson
o Not sufficient to show that there was a risk of some harm resulting, it must be a risk of serious
harm – Holzer; Whittaker
o Psychiatric harm is unlikely to be sufficient – R v Dawson
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(iv) Meaning of “appreciable risk”
o Not clearly defined but arguably a risk that is significant rather than remote, easily appreciated
by the objective person in their situation.
o Less than a standard required in criminal negligence – Wilson
Intoxication
- Cannot be considered when determining a reasonable person – reasonable person = sober person
o ‘The comparison is to be made between the conduct or state of mind of the persona and that of a
reasonable person who is not intoxicated.’ – s428F Crimes Act 1900 (NSW)
Wilson v The Queen (1992) 174 CLR 313 – Appreciable Risk of Serious Injury
Facts: Accused saw victim drunk and clenching fist. Accused punched the victim who hit head on the dirt. Accomplice
DPP v Newbury – Consider the Age in Dangerousness Test
smashed victims head on concrete. The cause of death was brain damage from fall, rather than the second attack.
Facts:
Accused were
two, 15
yearface)
old ‘dangerous’?
boys – threw paving stone over the side of a bride – it smashed through the
Issue: Was
the accused’s
act (punch
to the
window
of a passing
train favourable
below – struck
killedline
the guard
on board. Both were tried and convicted of manslaughter,
Held: Used
the Holzer
test –more
to theand
English
of authority
 found
Whether
a reasonable
in itaccused’s
position,
have broke
realised
thatand
hiskilled
act was
paving
stone andman,
threw
into the front
of a would
train, stone
glass
theexposing
driver. another to an
appreciable
risk
of
really
serious
injury
Held: Conduct was both:
 Harder test for P to meet
 unlawful – throwing the paver onto the railway line
 Reasons for preferring Holzer test:
o dangerous
– paver
hit someone
cause
harm
(1) Need for
close could
correlation
becauseand
with
moral
culpability and legal responsibility
It was
necessary
to prove
thatisthe
accused
knew what they were doing was unlawful and dangerous
o not(2)
Australian
authority
more
persuasive.
is subjective
– no
arerisk
to beofmade
for injury’
age.
 Test
Therefore,
better to
useconcessions
‘appreciable
serious
Holzer [1968] – Really Serious Injury
Facts: Considered Newbury test. Accused punched victim in the street. He fell and dies from the effects of the fall, not
from the effects of the punch.
Decision: judge considered church test and whether to follow them. Decided not to follow and instead, would tweak the
tests. The better view is to think that circumstances must be such that a reasonable man in the accused’s position,
performing the very act which the accused performed, would have realised that he was exposing another or others to an
appreciable risk really serious injury… I(t) is not sufficient, as it was held to be in Church to show that there was a risk
of some harm resulting, albeit not serious harm.”
R v Besim – Mental State and the Reasonable Person
Facts: Woman in a violent relationship with a man. She throws a vase at his head and kills him. Charged with
involuntary unlawful and dangerous act manslaughter
Held: Objective nature of the dangerousness test precludes any personal capacity of the accused to assess the risk –
judge it according to the capacity for foresight of the reasonable person.
- Relates to the physical circumstances of the accused as viewed by a reasonable person.
- Emotions, passions or the mental state of the accused at the time of the act and which may have impaired the
accused’s capacity to assess the risk are not to be attributed to the reasonable person
- Knowledge is to be considered, but not idiosyncrasies.

The Queen v Franklin (1883) – Need Criminality, not tortious case
o Facts: He was on a pier in Brighton. He picked up a box on the refreshment stand and ‘wantonly’
20
threw it into the sea. He hit a swimmer and the swimmer dies. He clearly didn’t intend to kill the
swimmer. But did he commit manslaughter?
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o Decision: He had indeed engaged in an unlawful act but the act was a tortuous one, not a criminal one.
lOMoARcPSD|7406611
(ii) Criminal Negligence Manslaughter
General rule
- Manslaughter will be found where gross negligence causes the death of the victim – Nydam; Bennett
o This standard of negligence or incompetence is beyond compensation, and shows disregard for
the life and safety of others – Bateman
o Whether there was a great falling short of the standard of care that a reasonable person would
have exercised, involving such a high risk that death or GBH would follow that, the doing of the
acts merits the criminal punishment – Nydam
- There is no need for s 18(2)(a) element of malice to be satisfied – R v Lavender.
- Can be Active Negligent Conduct (Nydam, Lavender) or an Negligent Omission (Russell, Stone and
Dobinson)
Elements of CN Manslaughter
- AR: Voluntary act/omission causing the death of the human being
- MR: Duty of care owed to the victim
- MR: Gross breach of high standard of care that would have been exercised by a reasonable person under
the same duty
- MR: Circumstances where there is a high risk of death/GBH resulting from the breach of duty
- How to Set it Out – Positive Act
o AR – murder analysis: conscious and voluntary act causing death
o MR – three elements of CN Manslaughter
- How to Set it Out – Omission
o AR – A failure or omission to act causing death
o MR – three elements of CN Manslaughter (duty to take action, gross failure to meet standard,
high risk).
Actus Reus
General Rule
- Voluntary act (NOT omission) causing the death of a human – s18 (1)(a) Crimes Act
o Refer to AR issues raised under murder
o Characterise the act specifically – it must be unlawful
Mens Rea Duty of care  Breach of standard of care  Gross negligence in circumstance with high risk
(i) Duty of care
- General duty not to cause harm exists at common law – R v Doherty; Nydam
- However, no duty to take positive action to avert harm or death/prevent wrongdoing
- Omissions - duty to act may exist for:
o (i) Providing necessities to wife, servant, apprentice, or servant or any insane person – s44 CA
 ‘Whosoever: being legally able to provide any wife, apprentice, or servant or any insane
person with necessary food, clothing, or lodging, wilfully and without lawful excuse
refuses or neglects to provide the same, so that, in any case, his or her life is
endangered, or his or her health becomes seriously injured.’
o (ii) Special relationship between the accused and the victim (e.g., parent/child) – Russell
o (iii) Voluntarily undertaking care for another incapable of self care – Stone and Dobinson;
Taktak
o (iv) Accused has created a situation of danger – Miller
 Lord Diplock – No rational ground for excluding conduct that consists of failing to take
measures that lie within one’s power to counteract a danger that one has oneself created
– homeless man fire case.
o (v) Victim being under ‘exclusive custody and control’ shows assumption of care – Taktak
o (vi) Providing home for drug taking and recipient becomes ‘seriously affected’ – Burns
o (vii) Duty Arising out of Contract and failure to fulfil this obligation is likely to endanger the
lives of others– Pittwood (railway worker fails to close gate which he was contractually
obligated to do), Dytham (off duty policeman held contractually to keep the peace, sees an
assault
a doesn’t226
intervene).
Taktak (1988)
14 NSWLR
– Assuming the Duty of Care (v), Whether the Breach is ‘Gross’
Facts: Taktak hired two prostitutes for a party, friend phoned Taktak asking him to collect one girl who overdosed on
R v Stone
& Dobinson
[1977]
QB
Dutytoofwake
Careher
and
taking
care
of and
someone
(Omission)
21 her chest
heroin.
Taktak took
her1to
his354
flat,– tried
byVoluntarily
washing water
on her
face
slapping
her, pumping
Facts: Both
accused
were
physically
and
mentally
disabled.
The
male
accused’s
sister
came
to
lodge
with
them,
but
she
and giving her mouth-to-mouth. Accused did not call Doctor because he believed she would recover. Conflicting
became medical
ill and bedridden
– the
accused
madeofineffectual
to get medical attention and give food. Victim died
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by
Gabriella attempts
Irby (karmasvanity@gmail.com)
opinion as
to the
exact
time
death.
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(ii) Breach of standard of care
- Test: Grossly failed to uphold the standard of care of a reasonable person, in circumstances involving
such a high risk of death or GBH that it constitutes criminal negligence. – Nydam
- Objective test
o Question of fact for the jury – Nydam
o Pertains to the reasonable person in the same position as the accused – Nydam
o Accused state of mind is irrelevant – Taylor, Lavender
o No subjective elements are to be considered. Must ignore  Intoxication – s428F Crimes Act
 Disabilities – Stone and Dobinson
- Standard of reasonable person
o Accused characteristics are irrelevant, but specialist knowledge and age is relevant – Wills;
Taylor; Holness
o Personal belief is immaterial – Lavender
- Circumstances of high risk:
o ‘Very high degree of negligence is required’ – Andrews v DPP
o ‘Wickedly negligent’ – Lavender
R v Lavender [2005] HCA 37 – No Subjective Element in Breach Test – All Objective
Taylor
(1983)
9 A Crim
R 358
– Objective
Test
Reasonable
Person
in Position
Facts: the
accused
operated
a front
end loader
at a– mine,
the loader
weighed
25 tonnes and was much higher and longer
Facts:
Accused
was
convicted
of
killing
her
daughter
–
gave
her
an
overdose
said that
been
to
than a car, it could only travel at 4kmph and his view was mostly obscured byofa medication
bucket. The–victim
andshe
hishad
three
friends
the
doctor
who
instructed
her
that
it
was
OK
to
give
the
child
a
bit
more
than
the
dosage
stipulated
on
the
label.
went to the mine to play in the sand – they should not have been there. The accused, upon spotting them, decided to
Arguments:
D argued
(1) accused
on her
was of
acting
a reasonable
would
chase
them away
and drove
towardhad
the acted
boys who
in doctor’s
response,instructions
ran into an–area
thickasvegetation.
Theperson
accused
pursued
have
in
her
circumstances
and
(2)
accused
didn’t
subjectively
know
that
the
dosage
was
enough
to
kill
her
child.
them, driving the loader toward them, although again, he could not see much, especially with the vegetation. He ran the
Held: Accused
fellcaused
severely
short of
the standard
of care that would have been exercised by a reasonable person in the
victim
over which
injuries
resulting
in death.
accused’s position.
Judgement:
Test isconfirmed
objective –that
second
argument immediately
– no‘not
subjective
can be considered.
 Case
manslaughter
at Common rejected
Law does
requireelements
any subjective
appreciation by the


accused that the conduct engaged in is unsafe.’ (B&McS)
No need for s 18(2)(a) element of malice to be satisfied
Appeal allowed
(iii) Gross negligence
- Entails a ‘great falling short of the standard of care involving high risk of death or serious harm’ –
Nydam
- Degree of higher than degree in civil law – Callaghan v The Queen
- So grossly negligence that they may be adjudged criminally liable: R v Adomako; Taktak
- The gross negligence must cause the death
Intoxication
- Manslaughter is NOT a specific intent crime/offence – s428B table
- UDA Manslaughter
o Unlawful act may be a crime of specific intent
o If so, intoxication can be considered in assessing the MR of that crime – S428C(1) CA – Lamb
test
- Alternative-verdict limitation
o If intoxication is considered in assessing MR of murder and alternative verdict of manslaughter
is considered instead – intoxication cannot be considered in the relevant MR manslaughter (i.e,
unlawful act) – s 428E CA
- Reasonable person tests
o No intoxication is to be considered – s428F
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(iii) Defences
Two categories of defences
- Complete  success leads to complete acquittal – i.e. Self Defence
o NOT confined to a particular offence
- Partial  Whilst there is still an element of blameworthiness, there is a reduction in it and the sentence
range changes i.e. murder to manslaughter – Provocation
o IS confined to a particular offence - Provocation reduces murder to manslaughter – reduced
level of culpability or blameworthiness, but not absolved.
(i) PROVOCATION
Procedural Rule
- Where the jury would have found D guilty of murder, but for provocation, D will be convicted of
manslaughter instead - S23 (1) Crimes Act 1900 (NSW)
- May be raised in relation to reckless murder – Johnson v The Queen
Burden of proof
- The prosecution bears the legal burden of proving BRD that the accused’s act/omission of (_________)
was not done/omitted under provocation – s23 (7) Crimes Act 1900 (NSW)
- Accused bears evidentiary burden, however, if evidence exists, it is a question for the jury – Parker
- Provocation is a partial defence – where the jury would have otherwise found the accused guilty of
murder, but for provocation, a conviction of manslaughter will be found instead – s23 (1) Crimes Act
1900 (NSW)
The Statute
- Statutory test: Act causing death resulted from a loss of self control induced by any conduct of the
deceased towards or affecting the accused – s23 (2) – CA
- The requisite elements that you must have in order to satisfy provocation under - s23 (2)
o (a) Towards or affecting the accused
o (b) Induced conduct that is a SIO
o (c) Caused the accused to lose self-control
o (d) Conduct could have caused an ordinary person to have lost self-control to the extent of
intending to kill or inflict GBH
- This is a subjective test
- Not Extreme Provocation if - s23 (3)
o (a) It is a non-violent sexual advance
o (b) The accused incited conduct to provide excuse for violence
- Does not have to occur immediately before the act causing death - s23 (4)
- Self induced intoxication irrelevant - S23 (5)
(a) - Towards or affecting the accused
- Within sight/hearing: provocation must occur within the accused’s sight or hearing – Arden; Davis
(NSW)
o Being told hearsay by a 3rd person is not adequate provocation, since it requires element of belief
which cannot be tangibly acted upon – Arden
o This requirement may have been softened by acceptance of history of provocative incidents,
many of which may not have occurred in the accused’s presence – Parker; R v R
o NSW AG 2nd Reading speech – 2014 – rule not relaxed, attention on limb (b) = SIO. What is SIO
‘affecting’ the accused not in their presence? One for the courts.
- Indirect provocation: Provocation needn’t be aimed directly at accused – can be aimed at person accused
is familiar/in a relationship with – R v Terry
- Inducing the provocative conduct: Provocation cannot be self induced: Edwards [A tried to blackmail V]
23
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o
There is a difference between inducing provocative conduct as an excuse to kill, and risking
provocative reaction from the victim (latter = provocation) – Edwards
R v Fisher [1837] - Hearsay
Arden [1975] VR 449 – Hearsay
Facts: Father had been informed that his son had been raped. Father stalked perpetrator for two days, stalked him, and
Facts: The de facto wife, who was 2 months pregnant, told husband (the accused) that another man in another room in
killed him.
the house where they were staying raped her. Showed him broken underwear. Went to the room, woke up the guy,
Held: ‘In all cases the party must see the act done…In this case the father only heard of what had been done from
physical altercation, so he gets an iron bar. Accused killed the man despite his protestations.
others’. No Provocation found.
Held: Not provocation: since he never saw the actions. Being told by a 3 rd party requires acting on belief only, which is
not sufficient. If available, an innocent man would have been killed with justification.
The Queen v R (1981) 28 SAST 321- Towards the Accused - Rule opened up a bit
Facts: Battered wife case. R killed her husband with an axe. Provocative act – stroked arm and cuddled up to her. Said
to her they would be one big, happy family and the daughters would never leave. R had recently been informed that the
husband had sexually abused the 5 daughters. Stroking of the arm in the context where the husband knew the accused
knew. Accused learned about it from her daughters – but the channel of hearsay is not the issue. It is that the accused
didn’t see or hear the abuse.
Held: On appeal – held that still no provocation. Rule widened a bit, however – ‘although, of course, such words or
conduct may be important as part of the background against which what is said or done by the deceased to the killer is
assessed’. Jurors must take into account that she is responding the circumstances of case as well as the hearsay.
Davis (1998) 100 A Crim R 573 (NSWCCA) – Towards to Accused – Rule opened a bit more!
Facts: Davis lived with partner and three year old stepdaughter. Davis becomes attached to child. Child complains of
pain in genital area and told him that the deceased had sexually assaulted her. He gets angry and drunk (for five days),
and in the course of this, he finds the deceased sexually assaulted his niece. Gets drunk, goes to a party, leaves, goes to
accused’s house with a tree branch and beats him while he is asleep over the chest and head.
Held: Court rules that the provocation couldn’t go to the jury, as the conduct must have occurred within the hearing or
the presence of the accused. Two uncomfortable ruling on the matter – bar set higher.
(b) Induced by conduct of deceased which was a SIO
- ‘Serious Indictable Offence’ = an indictable offence that is punishable by imprisonment for life or a term
of 5 years or more – S4 CA
- Caused by victim only: loss of control must be caused by the victim’s provocation, not another factor like
intoxication – Perks
- Provocation built up over time: Act/omission needn’t be done suddenly - s23 (4)
o Loss of self control can develop ‘even after a lengthy period of abuse’ and without need for a
‘specific triggering incident’ – Chhay; R v R
o Loss of self control can be seen in context of history of domestic violence – Hill
o Can be long term and cumulative – consider victim’s whole conduct – Parker
- 2nd Reading Speech
o Not to deter battered women or simmering blood cases, but to ensure provocation proportionate.
o Domestic violence cases generally involve SIO anyway
- Examples of SIO
o S13 of Crimes (Domestic and Personal Violence) Act 2007 – stalking or intimidation with intent
to cause fear of physical or mental harm.
o Crimes Act 1900 – 59 (Assault occasioning actual bodily harm), 61I (Sexual Assault), 61L
(Indecent assault), 61O (Aggravated acts of indecency – victim under 16)
Parker v R
Facts: Husband and wife living on rural property with six children. Wife starts seeing man working on property.
Man taunting Parker, disparaging and insulting him. None of these involve a serious, indictable offence. Man gets in
vehicle with knuckledusters. Drives over the man leaving with Parker’s wife. Attacks him while still unconscious.
24
Elements of loss of self-control.
Held: Ultimately persuading accused’s
wife toby
leave
him Irby
and(karmasvanity@gmail.com)
the children considered cumulative provocation.
Downloaded
Gabriella
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(c) Conduct Caused the Accused to Lose Self-Control
- General Rule: Must be to the point where “reason has been temporarily suspended” – Peisley
- Nature and Evidence
o Must be more than anger, loss of temper but must be greater in the sense of grievance or revenge
– (Van Den Hoek v The Queen)
o Common sense application of Gleeson in Chhay – ‘whether the killing was done whilst the
accused was in an emotional state which the jury is prepared to accept as a loss of self-control’ –
is the jury prepared to accept the emotional state
o Higher the ferocity of the attack itself can indicate subjective loss of self-control: The Queen v
R, Masciantonio, Green v The Queen
o Cooling off period: Must be present at the time of the attack, but no requirement that the loss of
self control is sudden/immediately following provocative conduct – ‘cooling off period’ is
merely a factor the jury can consider – Parker
o Jury may consider any time delays when assessing if there was a loss of self control –Fisher
o Usually arises from anger, resentment, also extends to ‘sudden and temporary loss of selfcontrol due to an emotion such as a fear or panic – Van Den Hoek
o May vary in intensity from ‘icy detachment’ to ‘going berserk’ – Phillips
- Causation
o Conduct may constitute extreme provocation even if it didn’t occur immediately before the act
causing death – S23 (4)
o Must be pinned back to the SIO!
o Use Substantial and Operating Cause test = Royall, Pagett
Masciantonio (1995) 183 CLR 58 – Loss of Self Control + Ferocity
Facts: Accused migrated from Italy and had a pervious head injury – no expert evidence concluding brain damage
(d) Conduct159
would
have
an Ordinary Person to Lost Self-Control
Osland
ALR
170caused
– Pre-meditation
although(1999)
had bad predisposition
to stress and was treated for depression. His daughter’s partner had recently left her and
- A truly objective person test set out in Stingel, affirmed in Masciantonio
Facts:child
Theand
mother
and
son
killed
the father.
their
took
with
him
most
their property.
Father wanted to find him to sort it out. Eventually they meet on a
o ‘Required
of all of
members
of the community’
Held:
Abusive
conduct
of
victim
had
clearly
abated
in
recent
years
there
wastoto
nothe
suggestion
a ‘last
street and they have
an argument
and aare
struggle
begins.
There
were
phases
the
argumentof
o Age
and maturity
relevant
– ‘Age
should
be–two
attributed
ordinary
person
ofstraw’
the objective
1. Accused’s
conduct,
in
planning
to
kill
the
victim,
was
coolly
premeditated
–
little
evidence
to demonstrate
During struggle,
victimMasciantonio
falls to the ground and the accused goes to the knife and stabs him a number
of time
test’ - the
Stingel;
level
of
loss
of
self-control
required.
Must
examine
immediate
circumstances
that
drove
accused
to participate
- – he
Tocollapses
the extent of intending to kill/inflict GBH
homicide.
Still
to show
of self-control
– battered
women
defence
not ainblank
chequekilling
25
2. in
Passers
by try
andneed
frighten
the loss
accused
away but required
he returns
to the victim
and
stabs him
the throat,
him.
by and
Gabriella
Irby (karmasvanity@gmail.com)
Issue: Can you take human frailtiesDownloaded
into account
his culture,
ethnicity etc. into consideration?
lOMoARcPSD|7406611
Assess whether an ordinary person could intend to kill or inflict GBH in response to the conduct
– Green v The Queen Kirby
o Not a question of whether the mode of retaliation was proportionate or whether the act enlivened
the intent to inflict the particular injuries occasioned - Green v The Queen Kirby
Contemporary Attitudes
o Stingel – citing Moffa – ‘be affected by contemporary conditions’
o E.g. adultery of importance in the past, not so much anymore.
Intoxication
o The ordinary person is sober – Croft [s428F – concerns ‘reasonable’ not ‘ordinary’ person]
o
-
-
Masciantonio
– Objective
Person
Test
Stingel(1995)
(1990)183
171CLR
CLR58312
– Objective
Person
Test
Facts: Victim
(son-in-law)
had
a
history
of
badly
physically
abusing
the accused’s
daughter.
Accused
justAccused
left wifestumbled
Facts: Accused was obsessed with his ex girlfriend and
she had
a restraining
order put
againsthad
him.
and children
history
stresshedue
a brain
Accused
sawtovictim
the cunt.’
street,Accused
acrossand
her had
having
sex inofa reacting
car with badly
anotherto man,
wastotold
by theinjury.
other man
(victim)
‘piss ofinyou
went
to
his
car
and
grabbed
a
butchers
knife
and
‘went
wild’
–
stabbed
him
death.
confronted him and a struggle ensued. Accused got knife and stabbed victim. People in the street tried to stop him but he
anstabbed
interview,
describes
the mental state at the time made him lose control and it ‘all happened really quickly’ and
returnedIn
and
the he
victim
to death.
‘it
was
like
I
was
in
a
rage
where
I almostprovocation
felt dazed.’ was of a high degree, then it may also conclude that an
Judgement: if jury concluded that the victim’s
Judgement:
‘insulting,
profane,
dismissive’
insultstotoinflict
a person
stillGBH.
infatuated and protective a girl, who was convinced
ordinary person out of fear and anger, may form an intent
at least
she was being used by the man (victim) = gravity of provocation ‘at its highest’
 Gravity of provocation (told to piss off, pushed, injured elbow) must be seen against context of long-standing
 Subjective test: infatuation was relevant to assessing gravity,
concern over treatment of his daughter by victim
o But did not diminish the power of self-control of the ordinary person
 Given previous failures to speak to victim, unequivocal rejection, using physically and verbally insulting
 Objective test: accused’s self control deemed well below minimum limits compared to an ordinary person –
conduct, canobe seen
as highlyofprovocative
(fear and
anger experienced)
Provocation
victim was conduct.
not sufficient
to deprive
ordinary 19 year old of self-control to the extent
that he would go to his own car, get a butchers knife and stab the victim.
Green (1997) 148 ALR 659 – Objective Person Test and New 23 (3) (a)
Facts: The two involved were close friends. The act that caused the loss of self-control was that he gently touched the
side of the accused’s bottom and groin area. In response, the accused punched the deceased 35 times and banged his
head and stabbed him with a pair of scissors 10 times. The accused rings his brother and admits to killing and says ‘I
killed him but he did worse to me, I killed him because he tried to root me.’
There had been told by his sisters and mother that their father had sexually abused his sister and he had witnessed his
father’s violent assaults to his mother – thus making him particular sensitive to sexual abuse.
Judgement:
 Gravity – Provocative act was sexual and thus sexual history was relevant to assessing gravity (but not
ordinary person test)
 Kirby in dissent: Australian society is not so homophobic as to respond to homosexual advances by forming an
intent to kill or inflict GBH – ordinary person shouldn’t take into account subjective experience.
S23 (3) - Exclusions
- 3 (A): Conduct is only a non-violent sexual advance
o Conduct of the deceased does not constitute an extreme provocation if the conduct was only a
non-violent sexual advance – based on Kirby’s dissent in Green
o Not particularly relevant, as wouldn’t pass the SIO test
- 3 (B): Inciting Conduct
o Conduct of the deceased does not constitute extreme provocation if the accused incited conduct
in order to provide an excuse to use violence
- 23 (5) - Cannot take self-induced intoxication into account.
(ii) SELF-DEFENCE
Procedural Rules
26
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-
Usually only raised to offences involving use/threat of force, but available in relation to any offence –
s423 CA
In NSW, it is a complete defence – s418 CA – I.e. acquittal if found
Burden and Standard of Proof
- Prosecution bears the legal burden of proving BRD that D did not act in self-defence – s419 CA.
- Prosecution is to negate the assertion of self-defence BRD that “person did not carry out conduct in self
defence.” – s419 CA.
- Defendant has evidential burden – must produce evidence to support the claim.
General Rule
- The accused will not be criminally responsible for an offence if they carried out conduct of the offence in
self defence – s418 (1)
- A person carries out conduct in self-defence if and only if they believe the conduct is necessary: s418 (2)
o (a) To defend himself or herself or another person, or
o (b) To prevent or terminate the unlawful deprivation of his or her liberty or liberty of another
person, or
o (c) To protect property from unlawful taking, destruction, damage or interference; or
o (d) To prevent criminal trespass to any land or premises or remove the trespasser committing any
such criminal trespass
- And the conduct is a reasonable response in the circumstances as he or she perceives them
- Two limbs to the test: Conduct is (a) necessary, and (b) a reasonable response to the perceived
circumstances
- Intoxication - Can be considered in relation to subjective elements (e.g., necessity, perception of
circumstances) but not in assessing whether D’s conduct is reasonable – Katarzynski
Exceptions to the Rule
- Self-defence not available if death inflicted to protect property or prevent trespass to property if the
person uses force that involves the intentional or reckless infliction of death – s420 CA
o I.e. for cases of murder/manslaughter, protection of property/preventing criminal trespass is not
applicable for self-defence
o UDA Manslaughter though – no element of recklessness/intention – would it still apply?
- Self-defence still applicable if the conduct is (a) lawful or (b) the person carrying out the conduct that the
accused responds to is not criminally responsible for it – s422 CA
o I.e. where conduct is lawful, you can still claim self-defence (i.e. mentally impaired person
attacks you).
o E.g. Lawful arrest and no criminal responsibility – hypothetically could arise, but Fry v The
Queen – White ACJ – ‘one of those situations where self-defence could hardly be said to arise,
except perhaps in cases of extreme violence’. Needs unreasonable or excessive force used by
police with no entitlement for arrest.
 Can resist unlawful arrest - Coleman v Power
S418 (2) Limb 1 - Belief that the conduct is necessary:
General Rule – s418 (2)
- Self-defence applicable if and only if they believe the conduct is necessary when
o (a) To defend himself or herself or another person, or
o (b) To prevent or terminate the unlawful deprivation of his or her liberty or liberty of another
person, or
o (c) To protect property from unlawful taking, destruction, damage or interference; or
o (d) To prevent criminal trespass to any land or premises or remove the trespasser committing any
such criminal trespass
- (c) And (d) not applicable in circumstances where death was caused as a result of acting to protect
property/prevent trespass – s 420
- This is a subjective limb – relates to the accused’s frame of mind and whether or not they truly believed
the conduct was necessary.
- Not a question of having reasonable grounds for the belief of necessity, but if they actually held that
belief – Katarzynski
27
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o
Reasonableness or unreasonableness of the defendant’s belief is material to the question of
whether the belief was held by the defendant at all - Williams
Nature of victim’s conduct
- Pre-Emptive Strikes
o No NSW provision that requires self-defence be after the triggering conduct of the person
o Pre-emptive strikes can be necessary, where the accused believe in an imminent attack by victim
– Conlon
o Pre-emptive strikes require a genuine apprehension of imminent danger. I.e. must distinguish
between self-defence that is in response to history of abuse, and an act of revenge for the past
despite their being no future danger. – Osland
- Accused is original aggressor:
o Original aggression must have ceased before the victim’s counter-attack - Zecevic
o Must be careful that it is not a situation in which accused wanted response so as to execute attack
with protection of self-defence. – Zecevic
What constitutes ‘necessary’?
- It is a purely subjective test
o It is enough that the D honestly believed; need not be based on reasonable grounds - s418 and
Katarzynski
o Intoxication can be taken into account – Katarzynski
o Nexus needed between the accused’s actions and the imminence of the injury – Burgess
o Accused’s actions must be carried out in the circumstances of urgency and immediacy in
response to the perceived threat – Burgess; Saunders
v DPP
– Common Law Test + Application of subjective test of ‘Necessary’
Katarzynski Zecevic
– Necessity,
Intoxication
Facts: was
Zecevic
and intoxicated.
the deceased
in neighbouring
units. Had
bad and
relations.
Facts: Katarzynski
heavily
Atlived
a hotel.
Had between 10-20
bourbon
cokes.Repeated
Deceasedfailures
was alsoby deceased to
close
gate/park
car
correctly.
Repeated
minor
failings.
Such
an
occasion
where
the
security
gate
wasn’t closed and
heavily intoxicated. Katarzynski had made lewd comments to women walking through the bar. Made an indecent
Zecevic
went to
reprimand/argue
the deceased.
Knocked onLater
glassconfrontation
door. Knocked
so hard
he broke the glass.
comment to the
deceased’s
aunt.
Deceased tookwith
offence,
berated Katarzynski.
in the
games
Deceased
came out,
stabbedhim.
him According
several times,
threatened
to blowleft
histhe
head
off. Bouncer
Zecevic gave
believed the deceased
room. Deceased
head-butted
and pushed
the and
evidence,
Katarzynski
hotel.
had
a
shotgun,
so
he
ran
back
to
his
unit,
got
his
gun,
and
shot
the
deceased.
evidence that Katarzynski beckoned to the deceased. Katarzynski claims he pulled out a revolver when the deceased
Judgement:
Two-limbed
test:to(i)pull
Perceived
as Necessary,
and
(ii) Basedthree
upontimes.
reasonable
grounds
lunged at him,
stumbled, and
didn’t mean
the trigger,
and the gun
discharged
Brother
came
‘Giving
proper
weight
to
the
predicament
of
the
accused
which
may
have
afforded
little, if any, opportunity
evidence that Katarzynski came home and said ‘Fuck him, he shouldn’t have fucked with me’.
for calm
deliberation
detached reflection’
Toohey all the personal
Judgement: Intoxication
considered
– or
‘completely
subjective– Wilson,
point ofDawson
view &
considering
characteristics of the accused at the time he or she carried out the conduct’
Conlon (1993) 69 A Crim 92 – Pre-Emptive Strikes + test of ‘necessary’ and ‘reasonable’
Facts: Conlon was a marijuana grower. He went to check his crop and in the process, he discovered two thieves.
The thieves discover they have been found and run after him. Conlon retreats to his house. The two arrive and
beginning bashing him. One of the men picks up a heavy plank and hits Conlon (the accused) on the head and then
kicks him. Conlon managed to escape from the immediate situation and went to another room where a semi
automatic rifle was kept. He fires, one bullet hits a man in the abdomen but does not kill him, and another bullet hits
the other in the head that kills him. He returns to the back of the house where he saw the other bleeding profusely,
he attempts to shoot him again from close range but has run out of bullets, so he hits him with the butt of the rifle,
he then picks up an axe and hits him on the head and then picks up a kitchen knife and stabbed him in the throat. He
is later picked up and said ‘I was blind drunk and stoned as a maggot’ in evidence.
Judgement: Court was able to take voluntary intoxication into account and the schizoid personality, as they were
personal characteristics that affected appreciation of the incident. Found to have acted in self-defence
- ‘The accused was not obliged to wait until the attack upon him was repeated. If he honestly believed that
the attack would be repeated, he was entitled to take steps to forestall that threatened attack before it had
begun. This was a situation in which a pre-emptive strike was justified.’ – On pre-emptive strikes
- Look at ‘reasonable possibility’ that the accused actually (honestly or genuinely) held a belief in the
necessity of his actions – On the subjective test
- Account must be taken of the personal characteristics of the particular accused which might affect his
28
appreciation of the gravity of the threat which he faced and as to the reasonableness of his response to that
danger - On the objective test
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o I.e. looked at personality disorder, his intoxication, remote farmhouse, at night, two assailants –
lOMoARcPSD|7406611
S418 (2) Limb 2 – Reasonable Response given the Circumstances as Perceived
General Rule – s418 (2)
- Conduct must be a reasonable response in the circumstances as the accused perceives them – s418 (2)
o An objective test with a subjective flavour – Question to ask: in all of the subjectively perceived
circumstances, what would the response of the reasonable person be? Conlon
- Jury’s determination of whether the accused’s response was actually necessary and reasonable according
to their own perception of the circumstances – Katarzynski
R v Muddle [2004] NSWNC 403, [17], [36] – Reasonableness
Facts: Victim’s 23rd birthday, he and friends have been drinking. The two men know the D’s nephew and they go
and visit who is also at the deceased’s birthday. A second party starts up at the Muddle household and deceased is
there to visit the nephew, not the defendant but an argument begins between Muddle and the deceased – deceased
made some drunken remarks about D’s dogs. Punches are exchanged and the fight moves out of the house, the D bit
the nose of the victim. Offender goes inside and stands behind the screen door, calling for deceased to go home,
who in response yells out that he will kill the offender and deceased said ‘if I don’t kill you today, I will kill you
tomorrow.’ Everyone on the street hears it. The D said, “I’m old, you’ve belted me around the front yard, just go
home, you are pissed.’ The victim keeps shouting profanities and insults. The deceased doesn’t go home,
approaches front door and within a short time of entering, the D stabbed him with considerable force, inflicting
serious injury. After inflicting the wound, ran outside and upon realising what he did, runs inside to apologise to the
victim, who was still conscious and mobile. Police arrived to find the D trying to slow the blood from the wound/
Issue: was it a reasonable response to circumstances as perceived subjectively by the D. Were self defence actions
proportionate to the threat? Reasonable?
Judgement: Unreasonable.
 Deceased was unarmed and to introduce a knife with the degree of force at the time was an excessive
response to the circumstances even as he perceived them to be
 S421 manslaughter unsatisfied because prosecution were able to prove unreasonableness BRD.
What is taken into account?
- Some personal attributes will be relevant, as will some of the surrounding physical circumstances in
which the accused acted - Katarzynski
o Age, gender, state of health may be considered by jury - Katarzynski
o Which personal characteristics will be considered is largely depended upon facts of the case
Limitations: Mistake, Delusion, and Intoxication
- A mistake is a subjective belief, so makes no difference when testing the response to the situation the
accused subjectively believed they faced - Katarzynski
- Sane, non-delusional mistakes can be used in assessing whether the response was reasonable –
R v Walsh
o I.e. if it is insanity, must use that defence separately, but if it is delusion, then it is admissible in
the test.
- Intoxication - cannot be taken into account for objective determination of reasonableness – Katarzynski
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R v Vuni [2005] NSWSC 403 – Mistake, Proportionality
Facts: Similar facts to above, person was unarmed but D didn’t know if victim was unarmed or not. D was at home
with family members. Deceased comes to door and says ‘where’s my stuff?’ D doesn’t know what he is talking
about and responds saying don’t come to my house where my family is. A argument begins. D fires shot after he
see’s the deceased pull his hand out of his pocket.
Argument: D argued that he thought he was producing a gun. Eyewitness says that deceased had arm against door
and the other on a baby stroller.
Question: Should you be able to shoot that person on the subjective belief that he was armed if that is your
perception of the circumstances?
Court: Plainly unreasonable [36].
 He chose to deliberately shoot the deceased without prior warning
 He deliberately took a human life and the reaction was disproportionate.
Nexus between threat and response
- Need a nexus point between conduct and action - R v Burgess; R v Saunders
Burgess; Saunders [2005] NSWCCA 52 – Nexus required
Facts: The opera house had a slogan painted across it saying ‘no war’ and used this a tool to complain about the
war in Iraq. The painting was done on the day that Australian forces were committed to Iraq. They argued that
because Australia committed forces to Iraq, people would be killed, and this was their response to prevent death.
Trial: They were denied the defence of self-defence at first instance.
Judgement: [17] ‘to my mind the evidence does not support a conclusion that there existed a necessary nexus
between the offence and the threat that was perceived such as to provide the evidence of self defence.’
 It lacked the necessary tenure of the physical relationship that would have made the action of the accused
necessary.
 In combinations of self-defence and offence, needs to be the necessary temporal and physical
relationship. Imminence was lacking.
 Also considered policy implication if decision was made.
R v PRFN - Nexus, Protection of Others
Facts: There was evidence that the victim had previously raped the 14-year-old boy and on the night in question, he
invites the victim to his property having not seen him or had having anything to do with him for the past 3 years and
when the alleged rapist arrives, shoots him.
Issue: Did nexus between threat and imminence exist? Was it an opportunistic murder?
CCA: The appellant wasn’t being attacked or anything like it and therefore the critical element of imminent threat
was lacking.
 ‘While appellant may have been, in his own eyes, protecting himself and others from perceived reasonable
harm … critical element of imminence was lacking’
(iii) EXCESSIVE SELF-DEFENCE
General Rule – s421: Self-Defence – Excessive force that inflicts death
- (1) This section applies if:
o (a) The person uses force that involves the infliction of death, and
o (b) The conduct is not a reasonable response in the circumstances, as he/she perceives them.
- But the person believes this conduct is necessary:
o (c) To defend himself or herself or another person, or
30
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(d) To prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another
person
(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be
found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter
o
-
Analysis
- This is a specific defence in the arena of murder – need limb (1) but not (2) of self defence.
- Same burden and standard of proof – s 419 CA
- If proven – found guilty of manslaughter and not murder
R v Silva
Osland- Excessive
- Excessive
Self-Defence
Self-Defence
Facts: Heather
Osland
killed
her husband well-muscled
of 13 years. Evidence
of psychological
and sexual
thatinside,
time.
Ice addicted
(and
ice intoxicated)
ex boyfriend
comes to Silva’s
house,abuse
with over
family
Also
evidenceten
that
this had abated.
Evidence
thatknown
she and
her son
had worse.
dug a grave
on the
day of the
killingmore
and
after making
threatening
calls. Ice
addiction
to have
gotten
Had been
escalating
assaults,
mixed
sedatives
into
his
dinner
–
evidence
of
a
plan.
Son
actually
killed
him,
as
she
couldn’t
do
it,
she
held
him
paranoid, more delusional. Stuck with him because she thought she could change him. Broke up with him on that
down.
Hung jury
chargesSilva
for Heather
Oswald.
day. Screamed
heregarding
was goingthetoson,
kill murder
her. Punched
in the face.
Attacked brother when he intervened. She goes
Issue:
Women
Syndrome
vs. Reality
outsideBattered
and stabs
him with
a kitchen
knife in the back several times, killing him, while father trying to separate
Held:
approach Battered Women Syndrome, as a proper matter for expert evidence – heightened perception of
brotherMust
and deceased
danger,
impact
fear onreasonable?
thinking, and belief she cannot escape are part of the mental state.
Issue: Was
the of
response
Kirby
notes
the
heightened
pressure
to ‘medicalise’
Syndrome,
motivations
maywas
be complex
Held: Silva stabbed
deceased with
an intention
to inflictthe
GBH
becausewhen
she believed
her act
necessaryand
to
conduct
may fallbut
outside
the typical
Calls for more
nuance. with the jury’s verdict, the offender’s
defend not
only herself
her brother
and pattern.
father. However,
in accordance
- Osland
guilty: Syndrome
notthe
a blank
cheque, showed
cool premeditation
of murder.
conduct
was notfound
a reasonable
response on
circumstances
as she perceived
them, thereby
rendering her guilty of
the crime of manslaughter by way of excessive self defence’.
(iv) Assault
(A) COMMON ASSAULT
General Rule
- S61 Crimes Act 1900 (NSW)  Whoever assaults a person, not occasioning actual bodily harm, is liable
for a 2 year imprisonment
o Must turn to the common law for definitions
- Common Assault – basic or simple offences that are foundational
- Aggravated Assault – Assault committed in circumstances of aggravation and is thus more serious.
Three types – don’t need to classify, only be aware.
o Accompanied by Intention – E.g. While resisting arrest
o Committed on a class of people – E.g. Assaulting a police officer
o Resulting in harm of a specific type – E.g. Assault causing GBH
- How to Answer
o Go to Legislation – see how heavily it relies on common law/look for definitions etc.
o Go to Common Law if need be
o Find elements and satisfy them.
Intoxication:
- As assault is a crime of basic intent, self-induced intoxication may not be taken into account for
assessing the Mens Rea – s 428D(a)
- However, non-self-induced may – s428D (b)
(i) Assault by Threat of Force
General Rule
31
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-
Act which intentionally or recklessly puts another person in fear of immediate and unlawful personal
violence. – Fagan, adopted in NSW by Knight
Actus Reus
General Rule
- Act causing the victim to ‘apprehend immediate and unlawful personal violence’ –Fagan
(i) An Act
- Must be positive act – Fagan
- Can be mere words:
o Threatening words of themselves – R v Knight
o Over the telephone - Barton v Armstrong
o Silent phone calls – R v Ireland, R v Burstow – can lay charges under S61, but hard to prove
compared to stalking provision
o Broad approach to phone calls, it depends on the circumstances and the impact of the callers
potentially menacing calls on the victim. – R v Ireland, R v Burstow
R v Ireland, R v Burstow [1997] 4 AII ER 225 - Imminence and Silent Phone Calls
Facts: Ireland involved silent phone calls. Burstow involved silent and abusive calls coupled with a campaign of
harassment.
Judgement: Silent phone calls can constitute an assault, although it is sometimes difficult to establish the element of
immediacy.  ‘It depends on the circumstances and the impact of the callers potentially menacing calls on the victim.’
 Requirement of immediacy could be satisfied but it depended on the circumstances and the evidence.
Barton v Armstrong – Imminence and Phone Calls
Facts: A person of authority had made threats over the phone about whether if the deed wasn’t signed, a person would suffer
some sort of physical violence.
Question: Can a telephone call be sufficiently imminent?
Judgement: Yes. Much depends on the circumstances and a telephone conversation could constitute an assault depending
on the circumstances – phone call was no barrier to disproving assault. Circumstances – person of authority, feared already
- A threat of violence made over the phone could be an assault if in the circumstances one could establish a threat of
immediate violence’ – Taylor J
R v Knight (1988) 35 A Crim R 314 – Can be mere words provided imminence
Facts: The defendant was convicted of assault under s261 Crimes Act 1900 (NSW) following threatening and abusive
telephone calls to a police officer, a magistrate and a judge. Apart from the telephone calls, which were traced to the
defendant at a considerable distance from the targets, there was no evidence of assault as the defendant made threats to the
future rather than threats of imminent harm.
Judgement: However it was held, given the circumstances, a threat of violence made over the phone could be a threat of
immediate violence. However, must have apprehended immediate violence – too temporally vague here. No assault
(ii) – The Issue of Imminence
Bodily harm considered sufficiently immediate where:
- In another room – R v Lewis
- Outside locked door, and apparently about to break it down – Beech
- Peering through bedroom at victim in night clothes - Smith
No assault for threats, even the most menacing, about future violence – Knight
- Calls made from an appreciable distance, then the recipient is in no danger of immediate violence
32
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o
‘Mere threats which may have been executed at any time, if at all.’ – not assault
However, Requirement for immediacy is sometimes relaxed
- ‘Present fear of relatively immediate imminent violence’ instilled and kept alive by continuing progress
as a prisoner towards where violence was to occur – Zanker v Vartzokas
MacPherson v Brown – Imminence before it is stretched
Zanker v Vartzokas
– Imminence
stretcheda via
unlawful
imprisonment
Facts: Following
unrest from
Flinders University,
lecturer
Mr Gibbs
had been involved in ousting a group of students
Facts:
V
offered
a
lift
to
Z
and
she
accepted.
Once
she
was
he offered
her money
sexual
thattoshe
from occupying a building. They had issues about this and a groupinofhis
30van,
students
gathered
around for
him.
The favours
intent was
She asked
him to
stopspokesperson
the car but he spoke
accelerated.
I’mwords
going to
takenot
youthreatening
to my mate’s
house
and that
he’ll really
stop himrejected.
from moving
while
their
with He
him.said
The
were
but
during
‘fix you
up’.inThe
was in
such he
a state
of fear;
leapt out of the moving vehicle. She sustained injury of bruises etc.
interchange,
he was
fearvictim
of danger
should
try and
moveshe
away.
A
charge
of
assault
occasioning
bodily
harm
resulted.
Judgement: On appeal, this conviction was overturned and it was stressed that the defendant must subjectively recognise
Judgement:
White
J drew an analogy
to the decision
Brown
that the
fear was
a present
fear of physical
the riskiness
of his own
behaviour.
The defendant
is NOT in
to MacPherson
be judged byvan
objective
standard
of what
a reasonable
harm in
dueforeseen.
course within the parameters of unlawful imprisonment.
person would
have
 White states a present fear of relatively immediate violence was instilled in her mind from the moment those words
were uttered and the fear was kept in her mind by the continuing presence by the continuing progress of her as a
victimof
orStretched
prisoner towards
the house where the sexual violence was to occur.
Other Instances
Imminence
Thus, the
concept of–imminence
so long
as effective
the unlawful
continues. other
-  Barton
v Armstrong
more subtlestretched
and perhaps
more
waysimprisonment
of creating apprehension
than
by
appearing
immediately
able
to
carry
out
threat
 No authority for what is a continuing threat, but a key component is restriction of liberty/at V’s mercy.
o Seriously violent telephone threat by person in authority, feared by victim = assault
- R v Ireland (HL): fear that the caller’s arrival at door may be imminent, the possibility of immediate
personal violence’ was sufficiently immediate.
(iii) - Conditional threats:
- Unlawful conditional threat, which D legally has no right to impose = assault - Rozsa v Samuels
Rozsa v Samuels – Conditional Threats
Facts: Taxi driver jumped the queue at a taxi rank. Another driver takes objection and threatens to punch him in the head.
Taxi driver (accused) produces a knife and says I’ll cut you to bits if you try it.
Judgement: Although the threat was conditional, it did not prevent it from constituting an assault. Must turn mind to two
things: (i) Words uttered and the condition itself (immediate enough?) (ii) Was there a right to impose the threat (lawful
or not?). These facts – the condition was immediate enough and unlawful (not self defence as it was not proportionate).
(iv) Victim’s apprehension/awareness:
- Purely subjective inquiry – what the state of mind of the victim was at the time of the threat - Barton v
Armstrong; MacPherson
o Fear not required to prove apprehension of unlawful force. – Ryan v Kuhl, Brady v Schatzel
o Victim required to have knowledge/perceive threat – Pemble
o Accused needn’t actually be in a position to carry out the threat – St George
o D’s intention or means to follow up also irrelevant – no substance to threat required - R v
Everingham
o No assault where victim has a belief in facts which remove apprehension – Lamb
- Essentially, must take victim as you find them – Blaue
o Some are more brave or timid – Brady v Schatzel
Ryan v Kuhl
- Apprehension
R v Everingham
(1949) 66 WN (NSW) 122 – Apprehension, following up irrelevant
Facts: DFacts:
wanted
to accused
stop victim
him so putatknife
a hole
in the public
bathroom
VictimIn fact, it
The
had from
used aannoying
toy gun presented
a taxithrough
driver what
appeared
to the taxi
driver cubicle.
to be a pistol.
said he was
scared
he could
didn’tnot
think
thegone
D could
harm
he wasn’t
At the sight of the knife,
was not
a toy
pistolasand
have
off. But
thehim,
taxiclaimed
driver didn’t
knowfrightened.
this.
the victim
had‘This
said out
mad orthat
something’
and opened
the door andcreated.
walked outside. Didn’t report the
Held:
is a loud,
clear a‘are
caseyou
of assault
one can imagine.’
– apprehension
matter to anyone, said ‘he wasn’t frightened’ so he didn’t.
Judgement: Didn’t apprehend immediate personal violence so no assault – walked out and didn’t report it – the
possibility was never in his mind.
33
Brady v Schatzel [1911[ St R Qd 206 - Apprehension + don’t need fear
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Facts: Victim testified that when the accused pointed a gun at him, he did not try to protect himself because he didn’t
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(ii) Assault by Use of Force
General Rule
- Intentionally or recklessly applying of force to the body or clothing of another without consent - Fagan,
Actus Reus
General Rule
- Application of force to the body or clothing of another without consent - Fagan, Venna
o Circumstances Matter: ‘Most of the physical contacts of ordinary life are not actionable because
they are impliedly consented to by all who move in society’ - Goff LJ in Collin v Wilcock
 Hostile intent may convert what would otherwise be unobjectionable as an ordinary
incident of social intercourse into battery at common law’ – Boughey v The Queen
 Hostile intent not something that needs to be proven, but Court will consider it in the
MR elements
o Not to body only: slashing or rubbing clothes is sufficient – R v Thomas
 ‘Regarded as so intimately connected with the person that to touch the clothes is
regarded as touching the person.’
o Needn’t be violent: can be as slight as mere touching or kissing – Collins v Wilcock
 Unlawful touching = not part of ordinary social activity
o Weapon: application of force can be with a weapon, but must be aimed at the victim or object on
which victim supported – Salisbury
o Spitting: = Assault – DPP v JWH
o Directness: At common law the application of force must be direct (aimed at the victim or object
on which they are supported) – Salisbury
o Lawful Excuse: If there is a lawful excuse, no assault is found – Collins v Wilcock (Goff)
 Goff = children may be subjected to reasonable punishment, people may be subject to
the lawful exercise of the power of arrest, and reasonable force may be taken to prevent
a crime.
 Express consent and implied consent also excuse assault
Consent
- Sport:
o Application of force where within the rules is lawful force and consented to – R v Carr
o Act so grossly in breach of the rules that is cannot be consented to amounts to assault – Carr
- Medical Treatment
o Within framework of informed consent, medical procedures are lawful.
o When acting outside framework – may find themselves vulnerable to criminal proceedings
- Tattoos
o Able to give consent to tattoo via hot knife – actions similar to actual tattoo – R v Wilson
- Sadomasochism
o Individuals who engage in serious harm while also in sexual acts have been found to be unable to
give consent – R v Brown
o The consent is not valid or recognised consent, where there is a risk of actual bodily harm, i.e.
asphyxiation, lighter fluid, whipping, bondage etc. – Brown (UK), R v Emmett and R v
McIntosh (AUS)
Mens Rea – Common Assault
General Rule
- It is any assault done intentionally or possibly recklessly to another person– Fagan; Venna
- Must establish recklessness or intention with the physical AR elements for apprehension or use of force
are concurrent.
(i) Intention
- Crime of basic intent, so accused must intend to do the conduct – O’Connor
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-
-
Standard Test: ‘A decision to bring about a situation…such a decision implies a desire or wish to do such
an act to bring about such a result…’ – Brennan J – He Kaw The
o Threat of force: accused must have intended to commit the act creating apprehension of force –
Fagan
o Use of force: accused must mean to use force on the victim – Fagan
The inquiry is into the subjective state of mind of the accused.
(ii) Recklessness
- Threat of force: Accused must have foreseen the possibility of causing apprehension of immediate force
in the victim’s mind, and proceeded anyway– Coleman
- Use of force: Accused must have foreseen the possibility of causing unlawful force to the victim and
proceeded anyway – Coleman
- Standard of recklessness: it will be enough if the accused foresaw the possibility that force might be
inflicted – MacPherson v Brown
o Requires a realisation on the part of the accused that the particular type of harm done might be
inflicted, yet the accused went ahead and acted – Coleman
o Mere advertence is not sufficient to establish recklessness - Coleman
Venna – Recklessness for Assault
Facts: Mr Venna is being arrested and at the time he is lashing out at police officers and kicking in an attempt to get off the
ground. His foot hits one of the police officers hands and fractured it. Mr Venna argued that he hadn’t intended to kick the
(B) AGGRAVATED ASSAULT
police officer. His desire was to get off the ground. He alleged that he didn’t know the police officer was in his way.
Court: See the return of James LJ from Fagan and he says above. The court held that the mental element of recklessness is
(i) Particular Class of People
sufficient
to constitute a result. It was said he could foresee the action of kicking about would come into contact with a
Examples
police officer
veryunable
close totohim.
Found
guilty of because
assault occasioning
bodily harm.
- Those
defend
themselves
of infirmity,actual
age, physique,
situation, or other disability –
s44.
- Wife, child, servant or insane – s44.
- Those under a certain age – s43
- Clergy – s56
- School students or staff – s60E
- Those protecting a wrecked vessel – s57
- Members of the judiciary – s326
- Aircraft of ship crew – s206
- Assault with intent to commit an SIO on officers (custom-house, constable, prison etc.) doing their duty
– s58
o (i) SIO element
o (ii) Classes of people element
o (iii) Resisting arrest/duty element
 I.e. prove AR and MR of Common law offence of assault and then ‘intent to commit an
SIO’
o 5 year imprisonment or more
- Police and other law enforcement officers - s60
o (1): A person who assaults…a police officer while in the execution of the officer’s duty,
although no ABH is occasioned to the officer, is liable to imprisonment for 5 years
 Accused need not know that they were a police officer – R v Forbes & Webb,
Reynhoudt
 ‘On duty’ is a broad term – anything done lawfully or in the public interest - R v K
35
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o
o
o
o
o
Assaults, throws a missile at, stalks, harasses or intimidates policeman while on duty
 Causing ABH = 7 years, no ABH = 5 years
During public disorder
 ABH = 9 years, no ABH = 7 years
Recklessly (by any means) wounds/inflicts GBH on officer while on duty
 12 years
During public disorder
 14 years
If not on duty: officer is considered on duty (even if not) if actions done because person is an
officer, because it is retaliation for officers’ actions when they were on duty.
(ii) Harm of a Particular Kind
Actual Bodily Harm (ABH) – S59
Actus Reus:
General Rule
- Assault (use of force) which occasions actual bodily harm – s59 (1)
- 5 years imprisonment – s59 (1)
- Where in company of others = 7 years imprisonment – s59 (2)
- ‘In company’ = ‘such proximity as would enable’ coercive effect of the group to embolden or reassure
offender – Button; Griffen
(i) What constitutes ABH?
CRIMES
1900
(NSW)
– Section
– Assault
occasioning actual bodily harm
- ACT
Matter
of fact
for the
jury to 59
decide
– Donovan
- Hurt or injury is calculated to interfere with health or comfort of victim – Donovan
(1) Whosever
person,
and thereby
occasions
actual bodily
harm,
shall be –liable
to imprisonment for 5
o assaults
Must be any
more
than ‘merely
transient
or trifling’
but not
permanent
Donovan
- years.
Psychiatric injury: must be an identifiable medical condition – Chan Fook; Lardner
o isDoes
mereunder
emotions
such as fear,
panic
(or temporary)
mind – (1) in
(2) A person
guiltynot
ofinclude
an offence
this subsection
if distress,
the person
commits
an offencestates
underofsubsection
Chan
Fook
the company of another person or persons. A person convicted of an offence under this subsection is liable for
imprisonment for 7 yeas.
Chan Fook – Psychiatric Harm and ABH
Facts: Accused aggressively questioned and locked up a suspected thief. No evidence as to whether the defendant
physically assaulted the victim. Prosecution argues mental harm still actualised, so assault still relevant.
Found: Harm that amounts to diagnosable psychiatric injury was actualised harm. Needs to be identifiable, not mere
fear/panic – Lord Justice Hobhouse.
ii) What is ‘Occasioning’?
- Can be direct or indirect – Martin
o Indirect example: as calculated to cause panic in public assembly, may be liable for resulting
injury.
- Similar to causing – Nicholson
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Mens Rea:
General Rule
- Same as common assault (use of force): intention or recklessness as to use force against another –
Coulter
o Need not intend specific injury or ABH, just unlawful use of force
- Intoxication: basic intent crime, so intoxication is irrelevant to mens rea – s428D
Grievous Bodily Harm (ABH) – S4, S33, S35
General Rules
- S 33 - Wounding with intent, or causing GBH with intent
o Any person who wounds any person or causes GBH to any person with intent to cause GBH
 AR – Wound or cause GBH
 MR – Intent to cause GBH
o 25 years imprisonment
o (3) – If jury satisfied S35 proven, but not S33, alternative verdict provision
- S 35 - reckless GBH/wounding
o S35 (1) – GBH in company

A person who, in the company of another person or persons:
 (a) Causes grievous bodily harm to any person, and
 (b) Is reckless as to causing actual bodily harm to that or any other person
 Is guilty of an offence.
 Maximum penalty: Imprisonment for 14 years
o S35 (2) – Reckless GBH
 A person who:
 (a) Causes grievous bodily harm to any person, and
 (b) Is reckless as to causing actual bodily harm to that or any other person,
 Is guilty of an offence.
 Maximum penalty: Imprisonment for 10 years.
 AR – Causing GBH to any person
 MR – Reckless as to causing ABH to that or any other person (lower threshold)
o S35 (3) – Wounding – same format substituting ‘wound; for ‘causing GBH’
Actus Reus:
General Rule
- S4 – Grievous bodily harm includes:
o Destruction of foetus of pregnant woman (regardless of whether woman suffers other harm)
o Any permanent or serious disfiguring
o Any grievous bodily disease (contracted)
- ‘Really serious bodily injury’ – DPP v Smith
- Matter of fact for the jury – Watson
- Recognisable/diagnosable clinical psychiatric condition – Chan Fook
(i) What is Wounding?
- Breaking through the dermis and epidermis (inner and outer skin) - Smith; Devine
- Internal bruising is insufficient – Eisenhower
(ii) ‘Causing GBH’
- Not limited to ‘direct’ injury – Nicholson
- (Nicholson: accused entered house to remove 2 gas meters, failed to properly plug gas pipe in one meter.
When occupants lit lamp, explosion occurred. Held: - accused indirectly caused injury).
Mens Rea:
(i) Intention
- Same test for all intention - HKT
- Unlawful arrest: if accused subjectively believed it was lawful violence, intent is still formed - Williams
vR
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(ii) Recklessness
- Foresight of possibility that some physical injury (i.e. ABH) would result – Coleman; Cunningham
- Needn’t foresee specific injury, just some ABH is enough - Coleman
Intoxication
- S33 is specific intent offence (s428B) so intoxication is relevant to intention
- Look to see if it is a specific or basic intent. If specific:
o S428C applies, tells us that intoxication may be taken into account to determine if the D had the
intention to cause the specific result necessary for the MR of the facts.
o Look at the facts – what was the extent to which he/she is affected by alcohol – are they
completely or partially intoxicated?
o What the impact of the level of intoxication has on the accused’s behaviour?
- Exception: Cannot rely on intoxication when drawing on evidence of intoxication when he/she had a preexisting plan to do the act prior to becoming intoxication or using alcohol to reduce inhibitions. = Dutch
courage provision – s428C (2)
Other Miscellaneous Provisions – S33A, S33B
Discharging firearm – S33A:
- Rule: discharging, or attempting to discharge firearm with intent to cause GBH to any person –s33A
- Rule: discharging, or attempting to discharge firearm with intent to resist or prevent arrest of self or
others –s33A
- AR = discharging/attempting to discharge loaded arms
- MR = intent to cause GBH/resist arrest
- Intoxication: specific intent = intoxication relevant to MR of intent –s428B
Using or possessing weapon with intent – S33B
- Rule: Using, attempting/threatening to use, or possessing an offensive weapon or instrument, or
threatening injury to any person or property with intent to prevent/resist own/ anyone’s arrest or
hinder police investigation, or with intent to commit indictable offence – s33B
o In company =15 years, without company =12 yrs.
- AR = use/attempt/threaten weapon or threaten injury
o Offensive weapon/instrument = dangerous weapon, anything made/adapted for offensive
purpose, anything used as such whether or not ordinarily used for offensive purposes, anything
capable of causing harm – s4
- MR = intent to resist arrest of self or others, hinder investigation or commit indictable offence
- Intoxication: specific intent = intoxication relevant to MR of intent –s428B
(v) Sexual Assault
General Rule
- Sexual intercourse with another person without their consent, knowing that they did not consent – s61I
- Liable to 14 years imprisonment
CRIMES ACT 1900 (NSW) – SECTION 61I – Sexual assault
Any person who has sexual intercourse with another person without the consent of the other person and who knows that
the other person does not consent to the sexual intercourse is liable for imprisonment for 14 years.
ACTUS REUS:
38
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General Rule
- Sexual intercourse with another without consent – s61I
(i) First AR element: Sexual Intercourse – s61H
- Statutory definition - s61H Crimes Act
o (a) Sexual connection occasioned by penetration to any extent of female genitalia or the anus of
any person
 (i) By any part of the body of another person, or
 (ii) Any object manipulated by another person
 Except where the penetration is carried out for roper medical purposes, or
o (b) Sexual connection by introduction of penis into mouth
o (c) Cunnilingus
o (d) Any continuation of these acts
- No longer gender specific
- CL presumption that boys under 14 cannot have sexual intercourse abolished – S61S (1)
- Medical exception: where penetration was carried out for proper medical purposes – s61H (1)
o Prosecution must prove accused did not subjectively believe there was a proper medical purpose
for carrying out act – Zaidi
(ii) Second AR element: ‘without consent’ – 61HA
- Prosecution must prove BRD that the sexual intercourse took place in circumstances where there was no
consent on the part of the complainant
- A person consents if they freely and voluntarily agree to sexual intercourse – s61HA (2)
‘Freely and Voluntarily’
- Requires free and voluntary agreement
- Hulme J in Mueller uses OED ordinary meanings
o Freely = spontaneous, of ones own accord
o Voluntarily = arising or developing in the mind without external constraint, of free will.
- However, Consent may be hesitant, reluctant, grudging or tearful – persuasion leading to consent can still
be good consent - Holman v The Queen Jackson CJ (Victim has aspergers and schizophrenia – lived in
institute forother disabled people. Gives consent to appellant after persuas
- No requirement for physical resistance to show no consent – S61HA (7)
- Focus on the state of mind immediately before and during sexual intercourse, with particular regard to
events leading up to the act, and victim’s reaction to them, showing their impact on the victim’s mind –
Olugboja
Mistaken Consent – S61HA (5)
- A person who consent to sexual intercourse with another person:
o (a) Under a mistaken belief as to the identity of the other person, or
o (b) Under a mistaken belief that the other person is married to the person, or
o (c) Under a mistaken belief that sexual intercourse is for health or hygienic purposes (or under
any other mistaken belief about the nature of the act induced by fraudulent means),
- Does not consent to sexual intercourse
- (a) Identity
o HCA makes clear that social standing to make yourself alluring does not have an impact on
consent in early case law
o Only an issue when you are impersonating another person – look at nature of conduct, not
fraudulent conduct in general - Clarence
- (b) Marriage
o If under a mistaken belief that you are married to the other person, then no consent
- (c) Health/Hygiene
o Mistake induced by fraud regarding the physical nature or content of the acts clearly shown by
the HCA to be nullifying consent – Mobilo
- Further, accused is deemed to know of an absence of consent if he/she knows that the person consents to
sex under such a mistaken belief. MR element of knowledge is fulfilled for S61.
Papadimitropoulos v The Queen (1957) 98 CLR 249 – Marriage and Consent
Facts: Accused tricked Greek migrant into believing they were married so that she would have sex with him. As a
result, the woman ‘consented’ to the sexual intercourse on the ‘honeymoon.’ However, they were not married, accused
39
had merely submitted an intention to marry at the Registry Office. Some evidence that she never intended to consent
outside the marriage. Accused left her shortly after honeymoon – was charged and convicted of rape.
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Law applied: Clarence principle –Downloaded
consent only
vitiated where the fraud relates to the nature of the act itself, or the
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Automatic Negation of Consent – S61HA (4)
- Section 61HA(4) – person does not consent to sex if:
o No capacity to consent (due to age or cognitive capacity)
 Age (16 in NSW) and cognitive incapacity (inquiry into subjective state of mind –
mental disability)
o No opportunity to consent because unconscious or asleep
 Unconscious or asleep – question of fact, must prove BRD> Sleepy/drowsy not
applicable
o Consent is due to threats of force or terror
 R v BMA – Stutter J – Terror may mean a sharp overpowering fear, or causing a fear.
 Generally addresses circumstances where the victim’s choice is eliminated
 Threats or terror could be directed at any other person, and consent can be negated this
way. Does not need to emanate directly from the accused – Clark prison rape case
(victim gives consent to others to prevent the person making threats from intercourse)
o Consents because he/she is unlawfully detained
 Does not hinge on who did the detaining, but that there was unlawful detention.
Potential Negation of Consent – S61HA (6)
- Section 61HA(6) – circumstances where it may be established that the person does not consent:
o (a) Sex where substantially intoxicated by alcohol/any drug
 Focus on level of intoxication – take into account ‘free and voluntary’
 Law does not recognise the intoxication of the defendant
R v Chant, R v Madden - Intoxication under S61HA (6)
Facts: Chant had been dancing with the girl that evening and the victim consumed 6 stubbies of beer. Goes with her to a cabin
house behind the bar. Victim consumes 4 – 5 cones of marijuana with Chant. She becomes ‘drowsy’ and ‘in and out of it’. She
says they went to the house on the property, went to the bedroom. He left. She took her pants off and got into the bed with the
intention of having a sleep. Next thing she remembers was him lying on top of her and intercourse taking place. Immediately
after, another person, Madden, walked in and had sexual intercourse with her. Madden says there was no intercourse, Chant said
there was, but it was consensual.
Held: - Not automatic negation. Substantially intoxicated person may be able to give consent. Need to look at things like:
Conduct and actions of the victim, Quantity of drugs and/or alcohol consumed and Evidence of the effect of these things on the
decision making ability/cognitive capacity of the victim – Wood CJ
o
o
(b) Sex because of intimidation, coercion or threat – not involving threat of force
 Pre reform - Regina v Aitken (2005) 63 NSWLR 719 – held that where threat is non
violent (e.g., threat to report an alleged shop lifter) it could not be said that subsequent
sexual intercourse was non consensual
 The discerning feature – intimidatory conduct – was there intimidation, coercion or
threats?
(c) Sex because of the abuse of position of authority/trust
 Positions of authority or trust cover a broad spectrum. Defined in 61HA (2)
 If the person is in the care, supervision or authority of the other person, then this
position of authority is established
 Need this, and then prove the sex was because of this authority/trust imbalance.
NB – S61HA (8): This section does not limit the grounds on which it may be established that a person does not
consent to sexual intercourse. May be another case where no consent found that doesn’t fit the statute.
Withdrawal of Consent
- Refusal to cease sexual intercourse following withdrawal of initial consent constitutes sexual assault – R
v Ibbs
- Where consent has been withdrawal, the act is rendered non-consensual – Case Stated by DPP (No 1)
- Consent can be withdrawn at any time during the act, and the person must desist on becoming aware that
the other party no longer consents – Case Stated by DPP (No 1)
- NB: still engaged in sexual intercourse – sexual intercourse includes ‘continuation’ – s61I
Evidence about Sexual Reputation
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-
-
Evidence about sexual reputation/experience/activities is inadmissible – ss293 (2) 293 (3) Criminal
Procedure Act
Exceptions: s293 (4) Criminal Procedure Act
o Concerns sexual activity/experience at or about the time alleged offence was committed
o Evidence relates to pre-existing or recent relationship between accused and victim
o Evidence relates to whether sexual intercourse alleged by victim actually occurred
o Evidence of presence/absence of a disease in V or accused at time of alleged offence
o Whether allegation of an offence by victim occurred only after discovery of pregnancy or
disease
Evidence of above will only be admitted if probative value outweighs any distress, humiliation or
embarrassment – s293 (4) Criminal Procedure Act
MENS REA:
General Rule
- Prosecution must prove that the accused knew that the Victim did not consent to sexual intercourse – s61I
- Intoxication: sexual assault = basic intent crime, so intoxication (where self-induced) is irrelevant to MR
– s428D, 61HA(3)(e)
Statutory approach:
- Knowledge of lack of consent is established where the accused – S61HA (3)
o (a) Knows that the victim doesn’t consent to the intercourse
o (b) Is reckless as to whether the victim consents
o (c) Has no reasonable grounds to believe that the victim consents
- In determining the question, trier of fact (i.e., jury) must have regard to all circumstances of the case –
o (d) Including: any steps taken by the accused to ascertain whether victim consents
o (e) Not including: self-induced intoxication of the accused.
(i) Knowledge – S61HA (3) (a)
- Straightforward – refers to actual knowledge
o Question: Did the defendant have positive knowledge that the victim consented in their mind?
- Inferred from a jury - need to establish BRD from the available evidence that the accused knew the
complainant did not consent
- Take into account all circumstances per (d)
(ii) Recklessness – S61HA (3) (b)
- Not defined in statute, so head to the common law. Two types:
o Advertent recklessness: foresight of the possibility that there was no consent but continued with
sexual intercourse regardless – Hemsley, Coleman
Hemsley (1998) – Advertent Recklessness
Facts: The complainant travelled to a farmhouse to look for a friend. Party occurring there. One of the allegations was that she
was dragged inside by a number of men and forced to have sexual intercourse with them over a number of hours. When her
sister arrived, she reported that she had been raped. Accused agreed intercourse had taken place, but that there had been
intercourse. Trial judge made an error on directions for recklessness, so test appears.
Held: Foresight, or realised, that at the time of intercourse, there was the possibility that the victim had not consented, and
proceeded anyway. Needs thought turning to the idea of no consent.
o
Reckless Inadvertence: Where the accused has not considered the question of consent and a risk
that the complainant was not consenting to sexual intercourse would have been obvious to
someone with the accused’s mental capacity if they had turned their mind to it – Tolmie (1995)
Banditt
Facts: Broke
cousins 660
house
and commenced
intercourse while she was still asleep. Dispute over whether they have
R v Tolmie
(1995) into
37 NSWLR
– Reckless
Inadvertence
previously
hadfootball
sex. Victim
recalledevening,
‘waking complainant
up with somebody
on top of
andanot
knowing
who Whilst
it was’ walking,
– recalledthe
it was
Facts:
Following
presentation
and appellant
leftmewith
group
of people.
two like
a
dream;
was
half
asleep.
Victim
realised
who
it
was
when
she
felt
the
accused’s
bald
head.
ended up alone at the back of the group. Complainant alleged that in spite of her protests, the appellant proceeded to have
Held: Non-verbal
reaction tothe
sexalleged
(whilstrape,
still half
asleep) isran
nottoconsent.
intercourse
with her. Following
complainant
the nearest house – called a friend – both women went to
the house where the group was – complainant confronted the accused and she later called the police.
41
Argument: D argued that sex was consensual and initiated by complainant; lied because of fear her fiancée would get angry.
Trial: accused was convicted of sexual assault – appealed against conviction alleging:
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 Trial judge made legal errors in directions to the jury
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(iii) No Reasonable Grounds – S61HA (3) (c)
- Question to ask: Does the person have any reasonable grounds for believing that the other person
consents to the sexual intercourse – if not, and BRD, then no consent.
- Accused can no longer assert honest belief – must be honest and reasonable – overturns Morgan
- Test - AM v R – ‘The test is whether the appellant honestly believed the defendant was consenting to the
sexual intercourse, and if he did have that belief, whether he had reasonable grounds to such belief’
o Grounded in defendant’s perspective (values, opinions, how they saw the elements of the fact
scenario), but adds objective flavour – was it reasonable?
Morgan – No Reasonable Grounds pre-reform
Facts: Morgan a senior member of the RAF. Invited three junior colleagues home to have sex with his wife after a night out
drinking. Alleged in trial Morgan had told them to ignore any protest or struggle by his wife, that it was kinky and it was the
only way she could get turned on. Men go as far as to hog-tie her and drag her down the corridor kicking and screaming
Held: A mistaken but honest belief should lead to an acquittal, even if the belief is an unreasonable one. Pure subjective test
focussing on the belief of the defendant. Would no longer hold under reformed law – need reasonable grounds.
AGGRAVATED SEXUAL ASSAULT
General Rule
- Sexual assault in circumstances of aggravation – s61J (1)
o 20 years imprisonment
- I.e. P must prove BRD that
o (a) Sexual Assault occurred (I.e. full analysis of AR and MR elements)
o (b) In a circumstance of aggravation
‘Sexual assault’  See above s61I
Aggravated sexual assault elements – s61J (2) Crimes Act 1900 (NSW)
- Circumstances where: s61J (2)
o (a) At time, or immediately before/after, the commission of the offence, the accused
intentionally/recklessly inflicts actual bodily harm on the victim/any other person who is present
or nearby
 AR – temporal component: immediately before/after. Matter for jury, but language
indicates narrow timeframe.
 AR – Defendant inflicted ABH on victim or anyone else present/nearby – see ABH
analysis above
 MR – Intentionally or recklessly
o (b) Accused threatens to inflict ABH to the victim or any other person present or nearby by
means of an offensive weapon or instrument
 AR – Temporal
 AR – Defendant threatened to inflict ABH on victim or anyone present/nearby with an
offensive weapon
 Offensive weapon – S4 CA
o (a) A dangerous weapon, or
o (b) Any thing that is made or adapted for offensive purposes, or
o (c) Any thing that, in the circumstances, is used, intended for use or
threatened to be used for offensive purposes, whether or not it is
ordinarily used for offensive purposes or is capable of causing harm
o (c) Accused is in company of another person(s)
 See below
o (d) Victim is under 16
 Simple
o (e) Victim is under the accused’s authority, generally or at the time of commission
 See authority analysis above
o (f) Victim has serious physical disability
 Simple
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o
o
o
(g) Victim has cognitive impairment: see s61H (1A)
 Cognitive impairment: having an intellectual disability, developmental disorder
(including autism), neurological disorder, dementia, severe mental illness or brain
injury; resulting in person requiring supervision or social habitation with regard to daily
life activities – s61H
(h) Accused breaks/enters into house with intention of committing the offence or any other
serious indictable offence (sentence >5 years – s4)
 Simple
(i) Accused deprives victim of liberty for a period before/after the commission of the offence.
 Simple
Alternate verdict:
- If jury cannot find aggravated sexual assault (s61J), they can still find guilt for sexual assault (s61I) ~
s61Q
Aggravated Sexual Assault in Company
General Rule - S61JA
- (1) The accused has committed (a) sexual assault in the (b) company of others and does either:
o (i) Intentionally/recklessly inflicts ABH on victim or anyone present/nearby, immediately
before/after the commission of sexual assault
o (ii) Threatens to inflict ABH by means of offensive weapon/instrument on anyone
present/nearby at time of, or immediately before/after the commission of sexual assault
o (iii) Accused deprives victim of their liberty for period before/after commission of offence
- (2) Penalty: life imprisonment: s61JA (1)
Meaning of in company:
- A common law concept –leading cases: R v Button; Griffen
R v Button; Griffen – NSWCA
Facts: Following a NYE party a woman sought a lift from Crescent Heads back to Kempsie. 5 male co-accused also
travelling in the car. Group drive to a secluded location where members of the group sexually assaulted the victim. Then
drove to a second location, which was in remote bush land, where the victim was subject to repeated sexual assaults.
Defence argued that the acts in the second location took place away from the group – and didn’t amount to in company.
The appellant and the victim were geographically away from the group, a length of 50m
Held: Whilst physical element is not sufficient alone to constitute ‘in company’ – the degree of participation and
common purpose meant that offence was deemed committed ‘in company’
 To establish ‘in company’ there must be such proximity as would enable the inference that the coercive effect
of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the
victim into submission
-
Kirby’s analysis of ‘In Company’ in R v Button; Griffen
o Uses three past cases:
 R v Brougham – two men hire a taxi to rob it. One of the men struck the driver and
demanded the money. The other assisted but did not strike the driver. Argument put
before the court on appeal was that both men must participate for it to be ‘in company’.
Rejected – both present for the common purpose
 R v Crozier - Complainant offered a lift in a vehicle with two men. One of the men
remained in the front. Was there sufficient evidence to put the matter of sexual assault to
‘in company’? Defence argued that one of the men was in company, and did not
participate. Held mere presence not enough – need encouragement/assistance
 R v Leoni – Concerns a home invasion. A group goes into house and demands money.
All separate and search the house. One remains at the front door and communicated with
the others. Held ‘in company’ satisfied – could contribute to the crime and victim knew
of presence.
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o
Outlines five propositions:
 (i) The statutory definition requires the offender to be ‘in the company of another
person or persons’
 Presence not fixed in absolute terms – sniper is ‘in company’ in connection to
purpose, with a ‘personal element’, but not evidently present – James J.,
 (ii) The offender and such a person, or persons, must share a common purpose to
commit the offence in question (i.e. to rob or sexually assault) – confirmed in Markou v
The Queen, FP v The Queen
 (iii) Physical presence of one or more other persons is required
 (iv) Participation in the common purpose without being physically present is not enough
 (v) The perspective of the victim (being confronted by the combined force or strength
of two or more persons) is relevant but not determinative
INTOXICATION AND SEXUAL OFFENCES
Basic intent offences
- Sexual assault: s61I, aggravated sexual assault: s61J, aggravated sexual assault in company: s61jA
- Self-induced intoxication cannot be considered in determining MR – s428D (a)
Specific intent offences
- Assault with intent to have sexual intercourse: s61K
- Self-induced intoxication can be considered in determining MR – intent to have sexual intercourse –
s428C (1)
Where victim is intoxicated (As Above)
- Consent may be negated if victim is substantially intoxicated: s61HA(6)(a)
- Irrelevant whether self-induced or not
- Must be so intoxicated such that he/she is not able to freely and voluntarily consent – Dobinson
- Ultimately a question of fact for the jury – considerations – quantity of alcohol consumed, conduct and
actions of the victim etc.
(vi) Complicity
Terminology and Degrees of participation – Osland v The Queen
- Principal in the 1st degree – Principal Offender (PO): commits the crime(s)
- Principal in the 2nd degree: present at the commission of crime, but not participating physically
- Accessory:
o Before the fact: takes part in preliminary states but not present during commission
o After the fact: takes part in subsequent stages
- In Company – Assisting and aggravating
- Liability
o Primary – liability as the principal offender
o Secondary – liability derived from the liability of the principal offender
- Doctrines of Complicity
o Accessorial Liability – aiding, abetting, counseling, or procuring
o Joint Criminal Enterprise – A joint criminal venture with a common purpose
o Extended JCE – JCE where liability extended when actions of one in the enterprise go beyond
that of the common purpose
o Can be Overlap – Clayton v R (three people inflict stab wounds on victim, one causes the death)
– could not be proven who was did the fatal stabbing, but all three liable for murder in that they
were (i) Accessories, (ii) Acting in a JCE (engaged to rob), or (iii) liable on basis of EJCP
Procedural Provisions to cite
Those who promote a
crime before it occurs
Those who promote or
assist a crime and are
usually present when
Those who carry out
the crime
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Those who assist
another to escape
punishment after the
44
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it occurs
NSW
Crimes Act
1900
Accessory before the
fact (s346)
Person who counsels or
procures in a minor
offence (s351)
Person who counsels or
procures in a minor
offence (s351B)
Person who aids or
abets in a minor
offence (s351)
event.
Principal offender (ss
346, 351B)
Accessory after the
fact (ss 347 – 350)
Person who aids or
abets in a summary
offence (s351B)
Person who aids or
abets in a SIO (s345)
Person who counsels or
procures in a SIO
(s345)
Introduction:
- Liability under s _______ will be found (same punishment as principal offender) where the prosecution
can prove BRD (Woolmington) that the Principal Offender committed the offence of _________, in
which the accused acted as an accessory. Given the incident occurred in _______, jurisdiction is NSW
and thus, the Crimes Act applies.
Offence committed:
- Offence actually committed or attempted?
- Since accused’s liability is derivative, accused cannot be an accessory to the offence unless the offence
was actually committed (or attempted) – Osland
(i) Accessorial Liability
General Rule: Aids, abets, counsels or procures.
- Accessorial liability is aiding, abetting, counselling or procuring – as descriptive of a general concept of
being ‘linked in purpose’ assisting or encouraging the commission of an offence - Giorgianni
- Modern approach – it is merely descriptive of a general concept:
o ‘Instances of the one general idea’ – where the accused is ‘in some way linked in purpose’ with
the principal offender using ‘words or conduct doing something to bring about, or rendering
more likely, such commission’ – R v Russell
o ‘Substantial overlap of the terms’ at common law and ‘general concept which they embody’ –
Giorgianni
o Assistance must be given before, or at the time crime was committed, or does not attract criminal
responsibility as an aider, abettor, counselor or procurer – R v Stally
Actus Reus
General Rule
- Accessorial liability will be found where the accused promotes or assists the commission of a crime (aids,
abets, counsels or procures) – Russell
(i) Presence
- Presence must either constitute the giving of assistance/encouragement or be accompanied by the giving
of assistance/encouragement – Phan; Bland
- A requirement of Presence?
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No clear answer – but courts hint that requirement falling out of favour: Kellam J in R v Wong
says distinction between aider and abettor that was present vs. counsellors/procurers is no longer
valid.
o Still a requirement for ‘aiding and abetting’ though – R v NC
Definition of presence:
o Elastic concept, accused may actually be present (within sight and sound), or constructively
present (sufficiently near to readily assist) – McCarthy & Ryan
 Facts: Ryan aided and abetted McCarthy in sexual assault. Organized a babysitter under
a ruse, went and picked her up with McCarthy and Ryan ‘took a walk’. During this
period, he sexually assaulted the victim in a van.
 Held: Constructively present by Hunt CJ
o R v Wong – Kellam notes presence not required in his opinion, but if it were, constructive
presence (accessory the chief engineer of a ship, stayed on while others unloaded heroin).
o ‘Where presence is prima facie not accidental it is evidence, but no more than evidence, for the
jury of [abetting the assault] – Justice Cave in R v Coney
Mere presence:
o Mere presence at scene of the crime is ordinarily insufficient for criminal responsibility – R v
Russell
o Requires some sort of influence on the perpetrator/linked in purpose – R v Coney; R v Phan
 Coney Facts: Accused tried as an accessory to an illegal price fight as one of the
spectators.
 Held: Deliberately present was encouraging the commission of the crime. Not
accidental/mere presence, so liable. No causal connection, but still liable.
o If the accused is deliberately present at scene of a crime and offers no dissent, this may be taken
as evidence that they intended to promote or assist in the commission of the crime – R v
Coney; Wilcox
o
-
-
R v Clarkson – Presence indicates encouragement
Wilcox
v Jefferyattacked
– Presence
Facts: Soldiers
andindicates
subjectedencouragement
woman at barracks to gang rape. Accused did not participate, simply stood
Facts:
Accused
knew
that
principle
offender
wasthere.
only allowed
intotoUK
on or
condition
thatperpetrators.
no employment was taken.
outside listening, later entered room and remained
Did nothing
assist
encourage
Accused
attended
principaland
offender’s
illegal
jazz performance
with this
a ticket and made
no
Held:
Being
voluntarily
purposely
present,
witnessing crime
and knowledge,
offering nobought
opposition/dissent,
provides
protest.
cogent evidence that accused wilfully encouraged criminal activity
Held:
constituted
promotion
and were
thus encouraged
accessorial by
liability,
since
presence
was more
thanfor
accidental
 Presence
It is important
that principal
offenders
accused’s
presence
– question
of fact
the jury
because it
was voluntary
(paid
for ticket),
he desired to be there (to report on it) and he supported it (paid for the ticket).
whether
presence
offered
encouragement.
In this case, AR satisfied.
(ii) ‘Promotes or assists’
- Accessory’s influence in crime may range from:
o Minor role of encouraging by words or supplying materials or information for use in
committing offence – National Coal Board v Gamble
o Major role such as driving principal offender to scene of crime, or holding victim so principal
offender can commit offence – R v Clarkson
-
No causal connection between assistance and commission of the crime needed – O’Sullivan v Truth;
Howell v Doyle
Supplying ‘tools of trade’: suppliers only liable as accessory where they have intention to assist or
encourage crime based on knowledge of essential matters (see MR) – Giorgianni
Legal obligation: suppliers who know of intention but have legal duty to supply will be liable as
accessories unless they take steps frustrate to satisfy the defence of withdrawal
Returning property to lawful owner: English law holds (controversial in Australia in light of
Giorgianni) that a person returning property they have no lawful right to withhold, even if they are aware
of principal offender’s intention, are not accessorily liable – Lomas
o Returned crowbar at owner’s request – knowing owner intended to use it for burglary
(iii) Omission to act:
- Generally accessory must assist via a positive act. However:
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-
Test: An omission may give rise to accessorial liability where:
o Accused is under duty to prevent crime being committed by principal offender – Russell
o Accused has power of control over the principal offender but deliberately refrains from
preventing them from committing offence – Harris; Dennis v Plight
o Supervising a driver – Harris
o People on your premises – Tuck v Robson
o A person may also be convicted if he or she fails to exercise control over the principal offender.
R v Bland – Presence not a prima facie indication of complicity
Facts: Accused lived with drug dealer – evidence that accused knew of drug dealing occurring in flat but no evidence of
assistance – active or passive.
Held: Presence during commission of crime is not prima facie aiding and abetting – lack of assistance while
present, on these facts = no accessorial liability
R v Harris – Power to Control Principal Offender - Omission
Facts: Accused was supervising a learner driver, failed to prevent driver’s dangerous driving and driver killed a
pedestrian.
Held: Accused was under a legal duty to intervene.
 Failure to control learner’s driving made accused liable as accessory to causing death by dangerous driving.
Ex parte Parker; Re Brotherson – Positive Encouragement and Accessories
Facts: Accused was employee who allowed principal offender to steal from his employer. Some evidence of positive
encouragement.
Held: In some circumstances, a failure to carry out a duty to protect employer’s property, arising from contract,
could amount to encouraging a commission of a crime.
Russell – Duty to Prevent Crime
Facts: Accused committed bigamy and told his wife about it. Wife and children found drowned in pool. Husband was
either the silent observer who stood and did nothing or actively encouraged wife (who then killed herself)
Held: Mere silence/passive acquiescence = accessorial liability because as a parent, accused has duty to save children.
Dennis v Plight – Power to Control Principal Offender - Omission
Facts: accused allowed principal offender to drive his car in a dangerous manner whilst accused was a passenger. Found
not guilty because there was not adequate time to prevent dangerous driving.
Held: Car owner may have power to control driver of their vehicle – if they fail to do so they might be vicariously
liable.
Tuck v Robson – Duty to Control PO
Facts: accused left the PO to drink alcohol on the licensed premises after it had already closed.
Held: accused was convicted on the basis that he had a duty to control PO and was present when the offence was
47
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Mens Rea
General Rule
- The accused must have intended to assist or encourage an offence, based on knowledge of the essential
matters/facts making up the offence – Giorgianni
Giorgianni
Facts: Giorgianni leased and operated a prime mover and trailer, and employed Renshaw (PO) to drive. Renshaw lost
control due to break failure while heavily laden with coal, killed 5 and seriously injured another. Giorgianni had services
the vehicle two weeks before the accident and had been told by Renshaw that he was worried about the state of the
brakes.
Held: Giorgianni’s accessorial liability was overturned at HCA:
 Specific intention to assist or encourage aimed specifically at the commission of the offence required – it was
lacking in this instance
 Actual knowledge required – not mere recklessness, i.e. actually know the brakes were defective
(i) Attitude: ‘intended to assist or encourage’
- Rule: an accessory must intentionally assist or encourage the principal offender – Giorgianni
- Specific intent that the principal offender will commit the offence
o Requirement that the accused’s act was ‘intentionally aimed at the commission of the acts’
constituting the principal offender’s offence. – Giorgianni
- Needn’t specifically recognize the criminal act, but participation must be intentionally aimed at the
commission of acts constituting it. – Giorgianni
- This refers to the mental state that accompanies an accessory’s act – this mental state encourages or
assists the principal offender to commit the offence.
(ii) Cognition: ‘knowledge of essential matters/facts’
- Rule: Actual knowledge IS required – recklessness as to existence of factual ingredients of principal
offenders offence is insufficient. – Giorgianni
- Actual knowledge:
o Accused must have had actual knowledge of matters (facts/circumstances) constituting elements
of the offence – AR and MR elements – i.e. knowledge of physical elements and intention
o Strict liability offences (Giorgianni) require knowledge of facts for AR only.
- Recklessness:
o ‘Not sufficient if [accused’s] knowledge or belief extends only to the possibility or even the
probability that he acts [that accused was] assisting or encouraging are such…as to constitute
factual ingredients of a crime.’
o Giorgianni  belief that brakes were possibly or probably be defective is insufficient. Must
actually know.
- Don’t need to know a crime is being committed, just the essential elements of the act done (which will
make up the crime) – Thomas v Lindrop
Divergence – how specific does knowledge have to be?
- I.e. how much of a divergence will the laws accept between actual knowledge of the accused and the
specific crime being committed?
- Rule: accused must have knowledge of principal offender’s intention (Stokes), and of facts making up
physical elements of the general type of crime (Bainbridge)
- Knowledge of intention: sufficient to prove that the accused had knowledge of PO’s intention- Stokes &
Difford
- Liability is negated where there is a difference between the knowledge that they held to promote the
crime and what the PO actually committed
DPP (Northern Ireland) v Maxwell – Knowledge of crime – limited range is sufficient
Facts: Case about IRA – they have a limited range of offences they could commit. If accused knew they would commit
one of these, he would be liable
Twelve
R – Knowledge
of crime
Held: Knew
thatv they
would commit
one of–a means
limitedirrelevant
list of crimes when was an accessory, so liable.
Facts: A and B who believed that B’s mother (V) that she was a witch. Hired a witchdoctor to kill the victim by means
of a magic gun. Witchdoctor loads the gun with bullets and fired them at her. A believed the gun would be 48
pointed at the
sun, and the death would come about via witchcraft. B knew that the gun was loaded with bullets
Stokes and Difford – Knowledge of Intention
Held: Both liable – both intended
to kill
the
whole time
where means of death immaterial
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by charged
Gabriella Irby
(karmasvanity@gmail.com)
Facts: the two were inmates at a prison,
jointly
of inflicting
GBH on another inmate. Stokes was convicted as
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DEFENCE OF WITHDRAWAL:
General Rule
- Once an offence is committed, no later behaviour by the offender affects criminal responsibility.
However, you do not become liable as an accessory until a crime is committed/attempted.
- If there is evidence of withdrawal – onus on P to prove BRD the accused did not withdraw – White v
Ridley
- Rule:
o Withdrawal requires a timely countermand and action as reasonably possible to counteract the
effect of the accused’s previous conduct – White v Ridley (Gibbs J), Tiete
- ‘Action’ – Mere change of mind or secret repentance is insufficient – Jensen and Ward
- ‘Countermand’ – requires a positive act which must be an unequivocal communication of withdrawal –
Rook
o Can be by words or actions, but must be unequivocal – Ngawaka
o Mere absence on the day of the crime is to be committed does not constitute ‘unequivocal
communication’ of withdrawal – this is because assistance/encouragement already occurred. –
Rook
o Withdrawal must be communicated to principal offenders, although there is some debate as to
whether it must be to all principal offenders – Ngawaka
- ‘Timely’: what constitutes timely communication for withdrawal is ‘dependent on the facts’ =
Whitehouse
-
‘Reasonable steps to counteract effect of previous conduct:’ – withdrawal is only effective by taking
all reasonable steps to undo the effect of the party’s previous actions – Ngawaka
Minor previous actions – if accessory only encouraged, counseled or advised the PO, then it may be
enough to try and dissuade PO in unequivocal terms - Grundy; Saunders and Archer
Bigger previous involvement – supplying means for committing the crime requires far more for an
effective withdrawal – Becerra; Tieti
Rook – Requirement of a Positive act/unequivocal communication
Facts: Accused agreed with two other men to kill the wife of the instigator of the crime for 20,000 pounds. Didn’t turn
up on the day of the killing
Held: accused was accessorily liable for murder since he failed to unequivocally communication withdrawal to PO.
Becerra – Timely Communication
Facts: man gave other man knife and robbed the house. Victim came down the stairs – accused told PO to leave, and
then jumped out the window. The PO stabbed and killed the man.
Held: accessorily liable for murder since withdrawal was ineffective since it failed to fulfil Whitehouses’s ‘timely
communication’ requirement.
Grundy – Substantial effort over time
Facts: accused supplied information to PO in relation to a burglary
Held: substantial attempts to stop PO during 2 weeks before offence was sufficient evidence of a valid withdrawal.
IF WITHDRAWAL FAILS: Where withdrawal fails at trial, evidence of steps, albeit it ineffective to withdraw
may be taken into consideration as mitigating factors relevant to sentencing – R v Lew; R v Ng
Tieti – Steps needed to Withdraw
Held: steps needed to effectively withdraw from an assault included physical intervention
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Ngawaka – Reasonable steps for withdrawal
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Held: accused’s actions may have been so overt and influential that positive steps must be taken by him to intercede,
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(ii) Joint Criminal Enterprise
Rule for when to use JCE:
- If unclear which party is the principal and which is the accessory – both may nevertheless be convicted –
R v Clough
- Can find both acting in concert AND accessorial ability: where there is a plan, and accused is present but
not active.
- Both face primary liability in a JCE– Osland
Mohan – Multiple Principal Offenders – Same AR/MR – different to JCE
Facts: Both accused simultaneously attacked the victim with cutlasses – inflicting 2 severe injuries – the victim died.
Held: Although there was no preconceived plan, both attacked at the same time and with the same intention, thus
assisting each other – it was unknown who struck the fatal blow
INTRODUCTION:
- When acting in concert, all are primarily liable (Osland). The accused will be found liable for ______ if,
he/she and ___x___ participated in, or was present at the time of, a joint criminal enterprise, and had
the requisite mens rea. (Osland) – (note jurisdiction is in NSW)
- Given primary liability, the verdict in relation to each offender may differ – Osland
- Perpetrator is dead/unknown/acquitted: A person who has assisted or encouraged a crime pursuant to a
pre-conceived plan (acting in concert) may be convicted even where the perpetrator has died, is unknown,
not been arrested or acquitted. – King
Osland v The Queen (1998) 197 CLR 316
Facts: Mother and son acted in concert to kill the stepfather. They had a preconceived plan which included digging a
grave. They put a sedative in the step fathers meal and the son then killed the victim with a pipe Son was acquitted on
the basis of self-defense (evidence that the victim had threatened him earlier that day. Mother was also convicted of
murder.
Held: You can act in concert with a party who is acting in self-defense/provocation
 Mother had primary liability – same as son (her defence failed at jury) since they were acting in concert
o AR: Participated in joint enterprise
o MR: intended to kill AND intentionally encouraged son in full knowledge of essential circumstances
and his state of mind (his intention to kill).
 Where two or more people act in concert, different verdicts may be found.
Actus Reus
General Rule
- The physical element will be satisfied where it is established there was a joint criminal enterprise, and the
accused participated in the agreed crime or was present at the time. All physical elements of the offence
must be satisfied. – Tangye; Osland
(i) Fulfill the AR of the actual offence itself:
- P must show the existence of the JCE to commit the original offence and participation in it by the accused
– accused must be physically tied.
- The acts done pursuant to the agreed plan must have fulfilled all the offences physical elements –
Osland
(ii) ‘Joint criminal enterprise’ - Tangye; Lowery
- 2 or more persons for an express or implied agreement to commit a crime.
- May be an ‘unspoken understanding or arrangement amounting to an agreement formed between them
then and there to commit that crime.’ - Tangye
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-
Criminal enterprise needn’t be reached at any time before the crime is committed – can be made ‘on the
spot’ - Lowery
Self-defence and joint criminal enterprise: the principal offender may be acting in self-defence or
provocation and at the same time acting in joint criminal enterprise with the accused.
(iii) ‘Agreement between parties’
- Understanding/agreement need not be express – may be inferred from the circumstances – McAuliffe;
Tangye
- An unspoken agreement may also be sufficient – R v Tangye
- Agreement need not be reached before the crime is committed – R v Tangye
- Can be established ‘then and there’ - Lowery
- Possibly even when crime is carried out - Lowery
(iv) ‘Participated in’ or ‘present’
- A person may be found to have acted in concert even if he or she was not present at the scene of the crime
– Camilleri; Tangye
- Participation in the JCE is where accused either:
o Commits the agreed crime – primary participant
o Is simply present when the crime is committed (with the knowledge that the crime is to be or is
being committed), and is intentionally assisting/encouraging the other participant to commit the
crime – secondary participant - Franklin (gang member walks in and out of crime scene while
victim being assaulted)
- Recent case law focuses on agreement and participation – Sever; McEwan, Robb and Dambitis
- If one or any other of the participants in the JCA commits the agreed crime – all participants are equally
guilty of the crime regardless of the part played by each in the commission.
Camilleri – Presence not required
Facts: Accused was several hundred meters away at the time of murder.
Held: Offenders acted in agreement prior to the murders of two school girls, hence accuse acted in concert for
murders
Mens Rea
General Rule
- The accused either has the mens rea for the offence committed - McEwan, Robb and Dambitis, or
- If merely present: With knowledge of the essential circumstances of the crime (including main
participants state of mind) intentionally King v The Queen – Primary Liability
Facts: King was jointly charged with Matthews as principal offenders in the murder of K’s wife. P clamed that M killed
the victim. On the facts, the accused had encouraged someone to kill the victim and the offence had been carried out.
Held: (Dawson J): ‘where two persons are tried jointly upon the one charge as participants in the same degree, it does
not inevitably follow that both must be convicted or both must be acquitted…The evidence may be sufficient to prove the
case against one accused BRD, but be insufficient to prove a case against another.’ At 433
Matsusevich v The Queen – Primary Liability
Facts: Accused jointly charge with murder
Held: found guilty despite the PO not being found guilty.
 It is acting in concert that extends liability
 Accused could be found liable provided that the PO knew the nature and quality of the act but did not know that
it was wrong.
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(iii) Extended Common Purpose
-
Use extended common purpose only where offence charged is not the same as the joint enterprise agreed
upon by accused.
- Derivative liability – based on offence charged is not the purpose agreed upon in the enterprise. Need
conviction of other party to warrant derivation of liability
INTRODUCTION:
- The accused will be liable as an accessory to ___(PO’s)___ offence of ________ if it was carried out in
accordance with an agreement or understanding and occurred within the joint contemplation of the
parties, OR was foreseen as a possible consequence of the common purpose – McAuliffe
o Note that the jurisdiction is in NSW.
Offence committed:
- They must have been committed (or attempted) the offence since the accused’s liability for common
purpose is derivative – i.e. need a JCE – Taufahema (no JCE when men evading police – all going
separate ways)
Actus Reus
General Rule
- Common purpose must have been an agreement to commit a particular crime, which continues while
carrying out crime in accordance to that initial understanding – McAuliffe
McAuliffe and McAuliffe v The Queen – No requirement for explicit/certain plan
Facts: Three men, including two brothers, decide to bash or rob someone at Bondi Beach. Two of the men (including
one of the brothers) armed themselves; there was no evidence that the third man knew this until they arrived at Bondi
Beach. The three men set upon two victims near a cliff-top and one of the victims was subsequently found at the base of
the cliff. The McAuliffe’s were convicted of murder and appealed on the grounds that they never intended to inflict
GBH on the victim, their common purpose was just to assault or rob the V. Since there was no intention to commit
GBH, so they did not have the MR for murder.
Held: Crime committed was pursuant to a plan, even where it is neither explicitly nor certain, can be within the scope
of common purpose.
 Even though decision to rob was impulsive and not pre-planned was not barrier to finding a common
purpose
 Scope of the Common Purpose is subjective – threshold is possible consequence (foreseen as a consequence
of engaging in the CE)
(i) ‘Agreement’
- Agreement can be inferred from all of the circumstances – McAuliffe
- Can be implied: tacit or arrived at by means of actions or words – Chan Wing-Siu
- Plan/agreement needn’t be explicit or certain – Hung Duc Dang
R v Hung Duc Dang – No requirement for explicit/certain plan
Facts: Went to the city with knives, agreed to steal a handbag if the opportunity arose. The opportunity did indeed arise
and ended up stabbing someone.
Held: Crime committed was pursuant to a plan, even where it is neither explicitly nor certain, can be within the scope of
common purpose.
 Even though decision to rob was impulsive and not pre-planned was not barrier to finding a common
purpose
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(ii) ‘Continuing common purpose’
- Rule: The common purpose must be operating or subsisting between parties at the time the Principal
Offender commits the further offence – Gillard
- Once original plan has been executed: or party has effectively withdrawn from the original plan,
subsequent offences are not within the scope of common purpose – Heaney
- Common purpose can change: If plan changes, but new plan is then repeated, the scope of common
purpose may now include those new acts for liability – Miller
Miller - Common purpose can change
Facts: Accused drove friend and woman he picked up to a remote place. Happened many times without incident, but on
one occasion, the friend killed the sexual partner. Yet friend continued to drive and friend did this again 6 more times.
Held: HCA refused leave for appeal because after first killed, the scope of their common purpose had altered and
this was sufficient to include liability.
Mens Rea
General Rule
- Offence must have been within the joint contemplation, OR was foreseen as a possible consequence of
the common purpose – McAuliffe
‘Joint contemplation of both parties’
- Contemplation needn’t be explicit, can be inferred – Hung Duc Dang b
-
-
‘Foreseen as a possible consequence’
Rule: Accused is liable if it foresees possibility, even if does not agree to a crime other than that which
is planned and continues to participate in the venture – McAuliffe; Chan Wing-Siu
Possibility: refers to substantial risk, rather than remote possibility- Johns, McAuliffe
Application to murder unsure: Must foresee not only possibility of death/GBH, but also that it might be
caused intentionally – Clayton & Hartwick; Powell
Strong doubts expressed about application to murder: This would make recklessness a possibility
only, not probability, otherwise, lowering threshold for murder – Clayton & Hartwick
Clayton; Hartwick & Hartwick Facts: Victim drove into Clayton’s car, smashing it. All 3 applicants armed themselves with various weapons and went
to victim’s house and assaulted the victim with weapons. One wound caused fatal injuries.
Held:
 If demonstrated that the accused was party to an agreement to assault to a lesser degree, and foresaw
possibility of death or GBH being intentionally inflicted, derivative liability for murder must be found.
 If accused went armed or knew others were armed, it is open to the jury to infer that the accused saw possibility
of assault with requisite intent (not inevitable however)
 If accused detained Victim’s partner, knowing that the victim was being assaulted with intent to kill/GBH and
detained partner to help/encourage that assault, derivative liability for murder must be found.
ACCESSORY AFTER THE FACT – NOT IN LECTURES
CRIMES ACT 1900 (NSW) – Section 347 Accessories after the fact-how tried and punished
Every accessory after the fact to a serious indictable offence may be indicted, convicted, and sentenced as such
accessory, either before, or together with, or after the trial of the principal offender, whether the principal offender
53
has been previously tried or not, or is amenable to justice or not.
 wife can be accessory
after factbytoGabriella
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CRIMES ACT 1900 (NSW) – Section 347A Wife may be accessory after fact to husband’s felony
INTRODUCTION
(1) The common law rule granting immunity to a wife against prosecution as an accessory after the fact to a felony
For
D to be liable
s_______,
prosecution must prove BRD (DPP v Woolmington) that PO committed the
committed
by herunder
husband
is abolished.
offence of ________, to which D was an accessory after the fact; given incident occurred in ___________,
jurisdiction of NSW.
(2) This section does not apply in respect of any act of, or omission by, a wife if the act or omission occurred before
the commencement of this section.
Offence committed:
for accessories
the fact
murder
= 25ifyears
As this wasa punishment
derivative liability
offence,after
liability
will to
only
be found
the principal ofence was actually
committed (Dawson)
Must be sufficient evidence that the principal offence took place (R v Carter)
CRIMES
ACT 1900 (NSW) 349 Punishment of accessories after the fact to murder etc
ACTUS
REUS
Rule: Must perform an act that assists or has the potential to assist the PO escape from the administration of
(1) Every
justice
(R v accessory
Tevendale)after the fact to murder shall be liable to imprisonment for 25 years.
- Act must be positive (R v Ready)
Indirect
assistance
(R vcrime
McKenna)
(2)- Every
accessory
after is
thesufficient
fact to the
of robbery with arms or in company with one or more person or
- Examples included:
persons, or the crime of kidnapping referred to in section 86, shall be liable to imprisonment for fourteen years.
- Driving PO away from the crime (R v Holey)
 Punishment
forstolen
other property
serious indictable
offences = 5 years (unless specially enacted)
- Helping
dispose of
(R v Williams)
- Removing incriminating evidence after the arrest of the offender (R v Levy)
- Buying a car and clothes for the PO (R v Hurley)
MENS REA:
Knowledge of belief of the Principle Offence
- D required to have had knowledge of the precise principal offence committed and known that PO was
guilty – R v Tavendale
Intention to assist the principal offender escape the administration of justice
- If D acted solely for own benefit, then not liable as an accessory (R v Barlow)
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-
If D acted partly for own benefit and partly in order to assist PO, as may occur in receiving stolen
goods, then will be liable as an accessory – R v Reeves
Accessory whose act fails to assist PO may be convicted of an attempt – R v Maloney
(vii) Property Offences
Principles of interpretation:
- Kirby J in Barlow (1997) 188 CLR 1 and Charlie (1999) 199 CLR 387
o 1. Code is a piece of legislation so interpretation legislation applies – (S15AA AIA) Purposive
approach
o 2. First loyalty is to the code – it must be interpreted with internal consistency – particularly with
o
o
relevance to principles in ch2.
3. Pre-existing common law is relevant where ambiguity arises, or there is a technical or special
meaning
 When the code expresses a common law principle, can use the common law to interpret
this language – including decisions coming after the code
4. Where alternative jurisdictions are possible, the HCA will interpret codes in such a way as to
achieve consistency between jurisdictions – Kirby J in Barlow; Charlie
Notes about the ACT Criminal Code
- Criminal Code Amendment Act 2004 added Ch 3 to Criminal Code 2002 (ACT)
- Operational from: 9 April 2004
- Which was largely based on the Theft Act 1968 (UK)
- Amendments were based on Model Criminal Code (MCC) property offences
- However, code provisions are largely based on the UK Theft Act
- Therefore, ACT Code still shares strong links to the UK Theft Act
Indictable v Summary offences
- Indictable offences: heard by judge and jury – judge is a finder of law, jury is a finder of fact
- Summary offences: heard by a single magistrate – magistrate is both the finder of fact and law
Outline of Relevant Code Provisions
- Chapter 2: General Principles
o Part 2.2 the elements of an offence:
 11 Elements – PE’s and FE’s
 12 Establishing guilt of offences – must prove all PE’s and FE’s
o Division 2.2.2 Physical Elements (AR)
 13 Definitions - conduct and engage in conduct
 14 Physical elements
 15 Voluntariness
 16 Omissions
o Division 2.2.3 Fault elements (MR)
 17 Fault elements (recognition that others could be out there – i.e.
dishonesty)
 18 Intention
 19 Knowledge
 20 Recklessness
 21 Negligence
 22 Offences that do not provide fault elements – what to attach to
what
o Division 2.2.4 Cases where fault elements are not required
 23 Strict liability
 24 Absolute liability
o Division 2.3.4 Mistake and ignorance
 35 Mistake or ignorance of fact - fault elements other than negligence
 36 Mistake of fact – strict liability
 38 Claim of right
- Chapter 3: Theft, fraud bribery etc.
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Part 3.1 Interpretation
 300 Definitions
 301 Person to whom property belongs
 302 Dishonesty a matter for the trier of fact
o Part 3.2 Theft and related offences
 How to interpret
 Indictable Offences
 Summary Offences
o Part 3.9 Alternative Verdict Provisions
Dictionary
Legislation Act 2001 that defines ‘property’
o
-
(i) THEFT - Section 308
Background
- Only focusing on s308 - Theft (indictable offence) and s321 – Minor Theft (Summary Offence)
- See definitions of Summary and Indictable Offence above for more detail
- Part 3.2: Div. 3.2.2 – indictable offences; Div. 3.2.3 – summary offences
- Introductory statement: the prosecution must meet its burden in relation to all elements of the offence –
s12 CC
General Rule
- S308 - Theft
o Theft is committed where a person dishonestly appropriates property belonging to someone else
with intention of permanently depriving the other person of the property – s308 CC
 1000 penalty units, 10 yrs. imprisonment, or both
- S312 – Minor Theft
o (1) – Person commits theft if:
 (a) A person dishonestly appropriates property belonging to someone else with
intention of permanently depriving the other person of the property
 (b) The property has a replacement value of $2000 or less when appropriated
 Max penalty: 50 penalty units, imprisonment for 6 months or both
o (2) – Absolute liability applies to subsection (1) (b).
o (3) - Can still be charged under S308 even if replacement value is less than $2000
Elements of theft:
- P must prove BRD all elements satisfied – S12 CC
- Concurrence must also be demonstrated between elements – very strictly applied
- PE’s must have corresponding FE’s – S12 (b) CC
- Physical element 1: appropriating property [conduct]
o Corresponding fault elements: dishonesty and intention to deprive
- Physical element 2: belonging to someone else [circumstance]
o Fault element that needs to be ‘read in’ - S22 CC
o Recklessness as to whether it belongs to someone else: S22 (2) CC
Pairing One: Appropriating Property & Dishonesty/Intention to Permanently Deprive
PE 1: Appropriating property
(i) ‘Appropriation’- s304 CC
- Section 304 CC:
o (1) - Any assumption of rights of an owner to the ownership, possession or control of property,
without the consent of a person to whom the property belongs.
o (2) - If D has come by property (innocently or not) without committing theft, ss 1 applies to any
later assumption of those rights without consent, by keeping or dealing with it as owner - s304(2)
o (3) - If property is, or purports to be, transferred or given to a person acting
in good faith, a later assumption by the person of rights the person believed
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-
the person was acquiring is not an appropriation of property because of any
defect in the transferor’s title.
Complex definition – must go to the common law
(1) - Issue 1: ‘any assumption’
- Where accused has assumed any rights of the owner the “assumption of rights” test is satisfied.
- Broad test – attempted to be limited by ‘ownership, possession or control’, but not very successful
- Rights of the owner include:
o Ownership
o Possession
o Control
o Use is a right of ownership – Stein (within ‘any’ – due to ambiguity/special meaning of any –
Barlow)
o Siting in the back seat can be assumption/appropriation of rights of owner – Wilson (sitting in
the backseat is the right of an owner)
o Only need to assume one of the rights – Morris
Stein v Henshall 1976 VR – ‘Any’ assumption of rights
Facts: Accused used car he knew his friend had stolen, several times. Issue was whether the accused had acted in
relation to the property in a manner in which the owner would have the right to act.
Held: Accused used car for his own purposes several times – and use is a right of ownership. Court held that ‘any’
assumption means even the smallest assumption – very broad scope of owner’s rights, including:
 Use of property
 Destruction or damage
 Selling lending or borrowing
 Refusal to return/retention
(1) - Issue 2: ‘Without Consent’
- Consent defined in CL English cases
- Key case – R v Morris: looking for appropriation without consent where the idea of ‘implied consent’ is
breached.
o As soon as you breach this idea, this is where the appropriation is measured.
R v Morris - Consent
Facts: Accused was looking to buy meat from a supermarket – couldn’t afford it so they swapped the price tags – they
were caught at the register.
Issue: Did their conduct constitute rights over the meat without the owner’s consent?
Held: There is an implied license in a supermarket to handle goods – doing so can be regarded as acting with the
owner’s implied consent when we do.
 However, when the conduct extends beyond the implied consent to handle goods, is when the goods have been
appropriated
 The swapping of prices went beyond the implied license/consent – the accused went beyond the limits of
consent.
Lawrence v Metropolitan Police Commissioner - Consent
Roffel – Consent and Ownership
Facts: Italian was on first visit to England, and spoke little English. Accused taxi-driver overcharged him by 6 pounds
Facts: Director was also shareholder of a company. After insurance payout, accused wrote a company cheque to
after he held open wallet and let the accused taxi driver take money for the fair.
himself.
Held: rejected argument that no theft as owner had consented to money being taken.
Held: No theft because there was consent.
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(2) – Delayed Approach
- Allows the prosecution to pick the moment where they are alleging appropriation
occurs, at what they construe as the appropriate moment as concurrence is tightly
construed
- I.e., I lend you a book legally, but then decide to keep it for yourself. At that moment, you assume right to
ownership without consent – this can be seen as the moment of appropriation.
(3) – Protection of Bona Fide Purchasers
- Protection afforded to people who came by property either by gift or buying it, who were acting in good
faith (subjectively didn’t know it was stolen), but later realize it is stole and decide to keep it. – S304 (3)
o Technical language: If property is, or purports to be transferred or given to the accused in good
faith, a later assumption by the accused of rights they thought they were initially acquiring is
NOT an appropriation of property because of defect in transferor’s title. S304 (3)
o However: if good faith purchaser tries to sell the item, they may be liable for obtaining (value)
by deception (new offence). Nonetheless, it is still NOT theft – R v Wheeler
- Simple Rule: Protected for original acquisition, but not for further transactions where
you know it is stolen
- If second purchaser is aware of true facts, they will also be liable for theft, while first purchaser will be
guilty as party to that crime – aiding, abetting etc.
PE 2: ‘Property’ s304 CC
Definition
- Open definition (start here) – Criminal Code ACT – Section 2 Dictionary: Property includes:
electricity, gas, water, wild creature, any organ/part of human body
- Closed definition – Legislation Act 2001 – Section 2 dictionary: Property means any legal or equitable
estate/interest (where present or future, vested or contingent, or tangible or intangible) in real or personal
property of any description, and includes anything in action
o Includes: ‘Thing in action’ – intangible personal property right recognized by the law Legislation Act, Part 1
 Debts, bank account money, shares, rights under trust, copyright, right to sue under
contract etc.
R v Preddy – Things in Action
Facts: Concerned about electronic money and its status as a ‘thing in action’
Held: Money in one bank account transferred to another creates 2 different ‘things in action’
 Since there was a debiting of one person’s bank account and a crediting of another’s, there was no obtaining of
property belonging to another because the ‘thing in action’ was different to the two transactions.
Issue 2: Is computer data property?
- No – definitions do not extend to information/data. Provisions sit outside theft offences.
Oxford v Moss - Computer Data
Facts: student got advance access to exam paper – briefly looked at paper then put it back, retaining information
Held: confidential information is not property capable of being stolen
Issue 3: General Deficiency – s307
- Where property cannot be listed specifically: can be found guilty of theft of all or part of a general
deficiency in money or other property even though the deficiency is made up of a number of particular
amounts of money or items of other property that were appropriated over a period.
R v Whiteley – Tangible Damage to Property
Facts: Computer hack convicted of criminal damage after obtaining unauthorised access to files and altering contents.
Appealed on the basis that all that was damaged was information, not property.
58was
Held there had been damage to tangible property – rearrangement of magnetic particles on discs), even though there
no tangible (observable) damage.
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FE 1: Dishonesty
General Rule
- Definition: s300 CC – Dishonest means:
o (a) Dishonest according to the standards of ordinary people; and (objective)
o (b) Known by defendant to be dishonest according to the standards of ordinary people
(subjective)
- Provisions that affect this definition:
o Dishonesty is a matter of the trier or fact (s302)
o S 303 (Dishonesty for pt. 3.2)
 (1) If no reasonable steps to return to original owner, then not
dishonest
 (2) Doesn’t count if trustee/personal representative
 (3) Can still be dishonest even if willing to pay for it
Anderson
– Need
actual knowledge
R v Freelyv–Bigmore
Subjective
Knowledge
of Dishonesty according to standards
Facts:
[painting]
Accused
was
told
that
sticker
paintings from
were the
not till.
going
to be taken
to apounds,
new location.
Tooka print
Facts: Employer issued notice to employees
to meant
stop borrowing
Accused
took 30
and placed
note
once
during
working
hours.
One
year
later,
came
late
at
night,
found
and
took
2
paintings,
obviously
valuable
(accused
in the till saying he owed it. It was later claimed that he owned 70 pounds.
had
bubble
wrapped
Accused
did not
inquire whether
werehimself
actuallymorally
going to
be disposed
not. that
Held:
Accused
was them).
found to
have acted
dishonestly,
despitepaintings
considering
justified,
sinceofheorknew
Held:
Jury
mustwould
have consider
evidencehis
of act
actual
knowledge that the accused thought his actions were dishonest.
ordinary
people
dishonest.
 Finding that D has made an error of judgement is not necessarily inconsistent with finding that accused has
acted dishonestly, but it depends on the circumstances
o Mere fact that accused misjudged prospects of eluding detection clearly does not inhibit a finding of
dishonesty
o Conversely, it would be inappropriate to find dishonesty if relevant act was made in good faith due to
an honest mistake – even one due to carelessness or neglect
Issue 1: Claim of right – S38
- Act not dishonest where D, at the time of the alleged appropriation, was under mistaken belief about
proprietary/possessory right that would negate the fault element of the offence – s38 (1) CC
o Must be a mistaken belief as to legal right – not social values/right - Waldon
- Extends to any other offence necessarily arising out of such mistaken belief - ss38 (2) CC
o Except for use of force – ss38 (3) CC
R v Delly – Claim of Right – mistaken belief
Facts: D sold used car from Dad’s car-yard that an acquaintance had left for repair. Father had told him it could be sold.
Held: D could not be taken to have acted dishonestly, if he had (mistaken) belief in claim of right
Waldon v Hensler – Claim of Right – must be legal in nature
Facts: [wild turkey] F hunted wild turkey, believed had a social right as an indigenous person to hunt that turkey
Held:
FE 2:
Must
Intention
be a legal
of Permanently
right, not a moral
Depriving
belief of entitlement. This based on Aboriginal customary law, different from
the law we have set up.
General Rule
- A person has an intention in relation to a result (to permanently deprive) if they mean to bring it about, or
is aware that it will happen in the ordinary course of events – s18 (2) CC
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Finder of fact wants to infer actual intention on the part of the defendant to bring about the
deprivation – can be delayed S304 (2)
Section 306 (1) to (3) does not limit circumstances in which intention to permanently deprive can be
formed – s306 (4)
o
-
Potential Circumstances: (1) – (3)
- A person automatically has an intention to permanently deprive if:
o D appropriates property without accused meaning to lose the property, and intends to treat it as
one’s own – s306 (1) CC
 E.g., borrowing silver bracelet and then smelts it
o D uses borrowed property in circumstances making it equivalent to outright taking or disposal –
s306 (2)
 E.g., borrowing movie ticket and then using it
o Where D has possession/control (lawfully or not) of another’s property and parts with it under a
condition about its return that D may not be able to carry out; and parting is done for D’s own
purposes without owners authority – s306 (3)
 E.g., pawn shop
R v Lloyd (QB) – (2) not satisfied – not outright taking/disposal
Facts: Cinema projectionist temporarily removed film reels from cinema to make pirate copies, but then returned them
in perfect condition before their absence was noted.
Held: Intention to permanently deprive not found:
 Intention to borrow not enough for theft unless intention is to return property in such a state of diminished value
o Remedies were limited to breach of copyright, rather than theft
Conditional Intent
- Appropriation accompanied by an intention to deprive the victim of property only if a certain condition is
met
- Intent must be there to keep it and only return on the condition it is not up to standard set. Other way not
applicable – Sharpe; Easom
R v Easom (QB) – Conditional Intent
Sharp v McCormick (VR- Australian) – Conditional Intent
Facts: Accused convicted of theft after grabbing woman’s handbag in dark cinema and rifling through it, but after
Facts: Accused took starter coil from employer, intending to fix it to his car on the condition it fitted. It didn’t so he
finding nothing of value, replacing it in original position.
returned it.
Held: Prosecution mistakenly characterised offence as attempting to steal handbag, not contents, hence:
Accused: Distinguished Easom
 Accused never actually intended to steal the handbag – it was merely a conditional appropriation
 Court held that D did not intend to return the property unless unsuitable – as opposed to only intending to take it
 Intent would only have been formed if accused saw something in the bag worth taking.
if suitable (Easom)
 D’s reservation of the probability or possibility of keeping it would amount to an intention to treat the coil as
his own to dispose of regardless of the owner’s rights – subsequent intention to return property merely a matter
of own choice
Pairing Two: Belonging to Someone Else & Reckless as to Property Belonging to someone else
PE 1: Belonging to Someone Else
General Rule
- Property belongs to anyone having possession or control of it, or any proprietary right/interest in it –
s301 (1)
o (2) - Subject to S330 (money transfers)
- Definition is modified by S305
- Ordinary Meaning – Code Definition
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o
Temporary or non-temporary control/possession constitutes property belonging to a person s301
(1) – it includes:
 Possession of property; or
 Control of property; or
 Proprietary right in property; or
 Proprietary interest in property
Modification
(i) Section 305 (1) – Multiple Owners
- If property belongs to 2 or more people, a reference to the person to whom the property belongs is taken
to be a reference to all of the owners
o Extends the everyday meaning to include even temporary possession or temporary control over
the property
- Any reference to the person to whom the property belongs is a reference to each of them s305(1)
- Can Steal your Own Property
o Whilst property ‘belongs’ to its legal owner, it also ‘belongs’ to a person possession of it,
consequently can be stolen by the legal owner from the possessor.
- How to deal with this:
o Look at who the property belongs to at the moment of appropriation – there might be multiple
owners at the time of appropriation – s305(1)
o If, at the crucial moment of appropriation, “your” property is belonging to someone else, albeit
only temporarily, you can nevertheless be found to have appropriated it
R v Turner - Multiple Owners
Facts: Appellant took his car to a garage to be repaired – when work was completed, he told the mechanic that he would
return the next day to pay for the repairs and to take the car away. Without telling the mechanic, the appellant took the
car. He admitted that he had taken the caraway without paying but alleged that he had the mechanic’s consent.
Appeal dismissed, court held: It is sufficient that the person from whom the property was appropriated was at the time
in fact in possession or control.
 Despite the fact that the accused had proprietary interest in the car – he had conceded temporary control over
the car to the mechanic and for that period, the car belonged to the mechanic (as well as himself)
Deeming provisions: (2) – (6)
- These cover situations where all forms of ownership appear to have been passed to the purported thief
with the apparent effect that the property in question is not property belonging to someone else as per
ss301 (1) and s305 (2) at the crucial moment of appropriation.
- Law will intervene to ensure that the proprietary interest in the property doesn’t pass to the other person
(purported thief) notwithstanding that it appears to have done so.
- The provisions
o (2) – Trusts
o (3) – Corporations
o (4) – Legal obligation to deal with property in a certain way
o (5), (6) – Fundamental mistake
- It is a 2-stage inquiry.
o Does it appear under s301 not to belong to the owner at the time of appropriation? If NO 
o Is there a deeming provision in s305 to hold that the property still belongs to the original owner,
even though it appears otherwise?
Trusts – s305 (2)
- If a property is a trust
o The person to whom the property belongs includes anyone who has a right to enforce the trust;
and
o The intention to defeat the trust is an intention to deprive any such person of the property
o Very limited provision with infrequent application in real life.
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Corporations – s305 (3)
- Property of a corporation sole belongs to the corporation despite a vacancy – no
gap
Legal obligation to retain and deal with property in a particular way – s305 (4)
- If A receives property from or on account of B and is under a legal obligation to B to retain and deal with
the property or its proceeds in a particular way, the property or proceeds belong to B.
o Not problematic unless it is in the context of money
 Illich: CL presumes that proprietary interest in Money passes at the moment of transfer
- All other property passes when parties intend to pass – (4) negates the CL presumption
o Time obligation is created:
 Obligations existence determined at the time it was assumed, not performance. Meech
o Recipients view of obligation:
 Whether an obligation exists is dependent on recipients view (needn’t be correct) –
Meech
o Look for evidence that parties intended the property to pass, a legal duty at civil law – Hall
 E.g. Contracts (can be verbal) nature of the arrangement (written documents,
quarantining of funds etc.)
R v Hall – Property passes due as there is no legal obligation
Facts: Accused worked at travel agent, received money from some clients for trips to USA. Instead put money into his
general bank account. Trips didn’t materialise – convicted of theft for the money receive. Issues were whether money
had passed ownership, and whether there was an obligation to use it in a particular way.
Held: Court held it was a question of fact – must look to the quality of the obligation in place – contract etc.
 There was no evidence that the clients expected accused to deal with money in a particular way , nor had the
accused assumed such obligation.  Therefore CL presumption (Illich)
o No contract or documents proving the client imposed such an obligation
o Subsection (4) did not operate to prevent proprietary interest from transferring – no appropriation
occurred
Wakeman v Farrar – Property had not passed – signed document
Facts: Accused didn’t get a cheque from welfare, so welfare department gave him ash and made him sign a declaration
that he would return the cheque if it did arrive. Accused cashed cheque instead.
Held: By virtue of signed declaration, accused was placed under a legal obligation to deal with the cheque in a
particular way.
 Problematic because common law presumes that proprietary interest in money passes at the moment of transfer
(for every other type of property it passes when parties intended (see Illich).
R v Meech – Legally Enforceable Retain and Deal with
Facts: Accused told to cash cheque, then kept 40 pounds and give the rest back. Accused because aware that the cheque
was obtained by fraud, so he got friends to fake a robbery.
It was argued that there was no legal obligation to deal with a cheque/its proceeds in a particular way, because the
subject of the agreement – the cheque – was fraudulent; hence the agreement could not be enforced in court.
Held:  it was a legally enforceable obligation – cheque belonged to original person.
 From accused position, at the time he took the cheque, he clearly considered himself to be under an obligation
to deal with it in a particular way.
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o Fact that obligation was unenforceable at civil law (due to illegality) was irrelevant
o Obligation’s existence determined at the time it was assumed, not performance
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o Whether an obligation exists is dependent on the recipients view (needn’t be correct)
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Fundamental mistake: s305 (5) CC
- If A gets property by someone else’s fundamental mistake and they are under a
legal obligation to make restoration of the property, the property or proceeds
belongs to B and A has shown an intention to permanently deprive (FE) and
appropriation without consent (PE) - s305 (5)
What is Fundamental mistake - s305 (6) CC
- ‘Fundamental mistake’: means: s305 (6)
o Mistake about the identity of the person getting the property; or
o Mistake about the essential nature of the property; or
o A mistake about the amount of money, if the person getting the money is aware of the mistake
when getting the money
o Money includes anything equivalent to money (e.g., cheque, or electronic funds transfer)
- If person realizes mistake after receiving the property, there has been no fundamental mistake
Summary of fundamental mistake:
- If 2 triggers are in place, then under s305 (5), proprietary interest doesn’t pass with possession and
control – the person entitled to restoration is deemed to be the person to whom the property still belongs
- Intention not to make restoration demonstrates both:
o Intention to permanently deprive
o Appropriation without consent
- Time period concepts [T1 and T2] become important because of appropriation without consent
requirement
- (6)(c) Is only a fundamental mistake if it occurs during T1 (i.e. intent not formed when receipt occurs)
Type of fundamental mistake
Identity of recipient
Formation of intent not to make restoration becomes intent to
permanently deprive
At time of recipient AND at a later time when mistake is realizes
(T1 and T2)
Essential nature of property
Amount of money
ONLY at time of receipt – T1 ONLY
Triggers:
Trigger 1: Someone’s Fundamental mistake:
- Issue of timing:
o Time period 1: a person receiving property realizes at the moment of receipt that there has been a
FM
 Applicable to ss (a), (b) and (c)
o Time period 2: person receiving property realizes after the receipt of the property that there has
been a FM
 Applicable to ss (a) and (b)  not C
- Look to definition of Fundamental Mistake
Trigger 2: Legal obligation to make restoration
- Meaning of ‘legal obligation’
o As for s305 (4)
- Meaning of ‘restoration’
o A-G’s reference - Held: restoration is analogous to restitution
 Person is obliged to pay for a benefit received when the benefit has been given
mistakenly as to the material fact on the part of the giver
 Restore any ‘unjust enrichment’
 The victim must have a legally enforceable right to restitution, not merely moral or
social – R v Gilks (Gambling debt case)
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Illich - Fundamental Mistake and Money – T2 moments and restoration
Facts: Illich was a vet who worked as a locum for another vet, called Brighton, whilst Brighton
was away. On his return, Brighton was unhappy with the way Illich had run the practice and
sacked him. Illich said he was given a packet of money by Brighton and was told to sign for it
without counting it. He did so, went home and found there was significantly more money than
he had signed for (and that he was entitled to) in the packet. Illich said he put that extra
money in his car. Police came to his house and he denied having any extra. The excess money
was found in his car. Illich then said that he did not intend to keep it but was waiting for
Brighton to call him to ask for it so that he could have the upper hand over his former boss.
Held: Not a normal theft analysis (no consent), so look to S305.
- Had, at the crucial moment of appropriation, property of the money passed?
- Would not be applicable now – formation of intent to not restore does not become intention to permanently
deprive done as it is done at a T2 moment. I.e. no fundamental mistake.
A-G’s Reference (No 1) – Legal Obligation to make restoration, nature of mistake, money and 6 (C)
Facts: Police officer was overpaid 47 pounds. It was wrongly put into her bank account by direct debit. Reason – paid
for a night that she did not work. Evidence that she became aware of the overpayment, but decided to do nothing about
it. Officer became aware of the payment after transfer, but did nothing.
Held:
 Legal obligation to make restoration: same as restitution  after mistaken fact was day of work, and thus she
was under a legal obligation to make restoration
 Fundamental mistake: Intention to not restore goods formed AFTER realising, and thus, there was no
fundamental mistake under s305 (6) (c). This is current stance, back then, fundamental mistake still made.
o Restitution – mistake was made to fact
 Physical element of property: The court defined the relevant property not as to money, but as a debt due to her
from her own bank
‘An intention not to make restoration is: - s305 (5) (b)
- Appropriation of that person’s property without their consent
- Thus, formation of intent determines the moment of appropriation – can occur sometime after receipt of
property – once this intent is formed, this FE element is settled.
FE 1: Recklessness as to the Property Belonging to Someone Else
General Rule – S20 (2)
- Recklessness is the default fault element by application of s22(2), since belonging to someone else is a
circumstantial physical element
- (2) A person is reckless in relation to a circumstance if—
o (a) The person is aware of a substantial risk that the circumstance exists or
will exist; and
o (b) Having regard to the circumstances known to the person, it is unjustifiable
to take the risk.
- Unjustifiability is a question of fact – S20 (3) CC
- Concurrence
o Property must belong to the other person while the recklessness is displayed
- Shortcut:
o Proof of intention or knowledge that property belongs to another satisfies recklessness – s20 (4)
CC
 E.g. - taking item from person’s hand directly = knowledge it belongs to someone else
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