Homicide:
R v Kageregere- Defendant punched wife in
their home and set fire to the house. The
fire, instead of the injuries from the assault,
caused her death. Defendant found guilty
on basis that he knew wife was alive inside
the house when he set fire to it.
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Manslaughter s13 CLCA:
PE and FE of
murder made outreduced to
manslaughter for
excessive selfdefence ONLY
PE for murder made out - FE not
Fully objective test
2
Issue Spotting- Identify what issues are present on the facts- e.g. ‘Peter Ackerman is dead in
circumstances where it appears that Alison have been responsible for causing his death.’
Charge Selection- Demonstrate some knowledge of strategy by referencing charge selection
and prosecutorial obligations.
Voluntariness- Was the defendant’s conduct voluntary in the circumstances?
Start with the PE – establish it was made out by reference to the prevailing tests and the
facts – be concise, don’t repeat the question or describe the law – use the law to answer the
problem question
Move to the fault element – consider whether it was made out by reference to the highest
version of the FE. The facts and the evidence.
Consider ‘who knew what’ and how it will affect proof. These are complex questions that
involve a basis knowledge of evidence as it relates to proof of the elements of crime.
Return to charge selection issues – demonstrate knowledge of differences between s 11, s
12A and s 13 and reference FEs and evidence
DefencesMake an assessment on likelihood of conviction – this is as important as applying the facts
to the elements. Make a recommendation on how D should proceed.
3
Offences against the person:
Assault- s20 CLCA
Recklessly or Intentionally
Causing Harm- s24
Recklessly or Intentionally Causing
Serious Harm- s23
1. The intentional application of
direct or indirect force to the victim
24(1) A person who causes harm to
another, intending to cause harm, is
guilty of an offence.
23(1) A person who causes serious harm to
another, intending to cause serious harm, is
guilty of an offence: Note:
Even if serious harm results, it must be proven
that the accused intended to cause the
serious harm.
2. Intentionally making direct or
indirect physical contact knowing
that the victim might reasonably
object to such contact (whether or
not the victim was aware of the
contact).
3. Threatening by words or conduct
to apply direct or indirect force and
reasonable grounds for victim to
believe person who made threat is in
position to carry out threat and
intends to do so OR real possibility
that the person will carry out the
threat.
4. Doing an act of which the
intended purpose is to apply force
to another.
5. Accosting or Impeding Another in
a threatening manner.
24(2)- A person who causes harm to
another, and is reckless in doing so,
is guilty of an offence.
S21- interpretation ‘Recklessly’—a
person is reckless in causing harm or
serious harm to another if the
person—
(a) is aware of a substantial risk that
his or her conduct could result in
harm or serious harm (as the case
requires); and
(b) engages in the conduct despite
the risk and without adequate
justification;
Note: Subjective foresight R v G
Serious harm (exam hint)
"serious harm" means—
(a) harm that endangers a person's life; or
(b) harm that consists of, or results in, serious
and protracted impairment of a physical or
mental function; or
(c) harm that consists of, or results in, serious
disfigurement.
A question of degree.
The impairment need not be permanent.
Note: Subjective foresight R v G – defendant
must have subjectively believed that serious
harm would result would result
4
s-25 alternative verdicts:
(lack of consent should be seen as a
necessary element of assault under
s 20 or s 20(4)
and not as a defence)
So if charged with intentionally causing
serious harm, may be convicted of
intentionally causing harm.
Assault causing harm- section 20(4)
Only assault needs to be made out
Causing harm does not need to be
intentional
5AA aggravated offences-applicable
5
6
7
Sexual Offences:
8
Charge Selection:
"sexual intercourse" includes any activity (whether of a heterosexual or homosexual
nature) consisting of or involving—
(a)
penetration of a person's vagina, labia majora or anus by any part of the body
of another person or by any object; or
(b)
fellatio; or
(c)
cunnilingus,
and includes a continuation of such activity;
Scope of definition on sexual intercourse:
R v T [2017] SASCFC 28 USI- D took photos of himself holding a vibrator protruding from the
vagina of a 13 year old girl. No evidence as to who inserted it - held- the holding of the
vibrator to keep it in there was the continuing act of sexual intercourse- includes digital
penetration
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Tips on Assessing Indecent Assault
1. The issue spotting of ‘no sexual intercourse’ is just a preliminary step to rule out
the more serious charges (USI/rape) as the initial charge
The occurrence of sexual intercourse does not preclude guilt of indecent assault.
For example, A is charged with rape of B. The jury is persuaded BRD that
 B did not consent to sexual intercourse, and A was recklessly indifferent to B’s lack of
consent, but The jury is not persuaded that sexual intercourse took place (as per definition
under s 5).
Indecent assault is an appropriate alternative verdict
That is – the conduct that fell short of sexual intercourse is almost always going to involve
indecent assault
2. Where a rape charge fails because P cannot prove BRD that D had the knowledge/
was recklessly indifferent as to lack of consent then the same problem is likely to
prevent a conviction for indecent assault
For example,
A is charged with rape of B. The jury is persuaded BRD that sexual intercourse took place,
and B did not consent to sexual intercourse, but the jury is not persuaded that A had the
requisite fault with regard to lack of consent
Indecent assault is unlikely to be an appropriate alternative verdict because the same
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definition/issues of consent apply to both offences – unlikely A genuinely believed B
consented to sex but not to actions preliminary to or following it
Take-away: think about the reason the more serious offence failed when assessing the
appropriateness of the alternative offence
This applies to all offences where there are alternative verdicts
Rape s 48 CLCA:
Includes digital penetration
Dpp v Morgan: A mistaken albeit unreasonable belief in consent is a valid defence to
rape
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Unlawful sexual intercourse s 49 CLCA:
s 49(7) – consent
is no defence
46—CONSENT
to sexual activity
(1)
(2)
s 49(8) marriage is a defence
sexual activity includes sexual intercourse.
a person consents to sexual activity if they freely and voluntarily
agree to it
(3)
Without limiting subsection (2), a person does not freely and
voluntarily agree if they agree because of
(a)
(i) the application of force or an express or implied threat of the
application of force
(ii) an express or implied threat to degrade, humiliate, disgrace or harass; or
(b)
unlawful detention; or
(c)
sleep or unconsciousness; or
(d)
intoxication (by alcohol, other substance or combination of
substances) to the point of being incapable of freely and voluntarily agreeing; or
(e)
physical, mental or intellectual condition or impairment such that
they are incapable of freely and voluntarily agreeing; or
(f)
inability to understand the nature of the activity; or
(g)
mistaken belief as to the identity of that person; or
(h)
mistaken about the nature of the activity.
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Robbery and Theft:
Problem solving approach:
1. Begin with addressing the elements of theft –
Jetstar add on analogy
Elements of Theft:
Defences (strictly a necessary mental element is missing)
Claim of right:
Any defence to theft will also be a defence to robbery. For example, an honest (even if
unreasonable) belief in a legal or equitable claim of right to property is a defence to theft
(and robbery) if the accused honestly believed in his or her entitlement to take the property
(R v Skivvington [1968] 1 QB 166). He or she would not be ‘dishonest’. An essential element
of the offence is missing.
The existence of a claim of lawful right, if accepted, denies the dishonest intent in dealing
with property. A claim of lawful right may operate as a good defence to both aggravated
robbery and robbery as the elements of both offences include the dishonest dealing
with property. That is, the claim of lawful right denies the existence of the mental element
necessary for theft and robbery. This is a mental element that the prosecution must prove
beyond reasonable doubt. See R v Langham (1984) 36 SASR 48, 53; R v Bedford (2007) 98
SASR 514
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14
Attempts:
15
Self Defence:
Affirmative – circumstances
Elements of the offence were made out – if there is no completed offence the defence
need not be raised
Self defence –PE and FE made out- complete defence to all charges – i.e. the offence has
been committed (likely murder, manslaughter, assault, cause harm, cause serious harm)
But the offence was committed in circumstances where the force was for a
defensive purpose – i.e. to protect self or another
If defence is successful - no criminal liability attaches to the person despite the
elements of the offence being made out/proven
D bears evidential burden
P must disprove both limbs of self defence test beyond reasonable doubt
Complex test involving combination of objective and subjective features, full
and partial defences, different provisions on protecting people and property,
different provisions for conduct occurring within and outside the home, new
provisions relating to self defence and family/domestic violence
Unique and recent so old SA case law or case law on other jurisdictions – even
from the HCA – must be used very cautiously
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Notes on 15(1)(a):
The first limb is about the subjective belief of the D
The jury must determine what D believed. It must ‘consider not only what an accused
person may say as to his belief but whether in all the circumstances that stated belief was
genuine’: R v Gillman (1994) 62 SASR 460, 465.
The belief need not be reasonable – but if its not reasonable it might not be accepted as
genuine (like FE for rape – think Morgan)
If it fails (i.e. the prosecution disproves it BRD) then the defence fails
If it succeeds (i.e. the prosecution does not disprove it BRD) the second limb must be
considered
Notes on 15(1)(b):
The second limb is about the objective proportionality of the conduct given what the
D subjectively believed
key is whether prosecution has disproved the existence of reasonable proportionality
between the perceived threat and the defendant’s defensive conduct
If it fails (i.e. the prosecution disproves it BRD) then the defence fails - unless it is
a charge of murder, in which case excessive self defence applies
If it succeeds (i.e. the prosecution does not disprove it BRD) then the defence succeeds
17
Note s15A(1):
1(a) is the same as for s 15 except substitutes ‘protecting property’, ‘preventing
criminal trespass’ and ‘making lawful arrest’ for ‘defensive purpose’
1(b) precludes killing intentionally or recklessly to protect property (allowed to kill
intentionally to protect people)
1(c) is the same as for s 15 – references s 15B(1)
Notes s15A(2):
15A (1) D did not intend to cause death + conduct reasonably proportionate =
complete defence (acquitted)
15A (2) D did not intend to cause death + conduct not reasonably proportionate =
partial defence (convicted of manslaughter)
Intentionally killing to protect property = no defence (convicted of murder)
15B—Reasonableness etc where offence committed in circumstances of family violence
(1)
A requirement under this Division that the defendant's conduct be (objectively)
reasonably proportionate to the threat that the defendant genuinely believed to exist does
not imply that the force used by the defendant cannot exceed the force used against him or
her.
(2)
In a trial for an offence in which the defendant raises a defence under this
Division, the question of whether—
(a)
the defendant genuinely believed that particular conduct was necessary and
reasonable (either for a defensive purpose or for the purposes referred to
in section 15A(1)(a)); or
(b)
(c)
out; or
particular conduct was reasonably proportionate to a particular threat; or
the defendant reasonably believed that a particular threat would be carried
(d)
the defendant reasonably believed that particular conduct was the only
reasonable way a particular threat could be avoided; or
(e)
particular conduct was a reasonable response to a particular threat,
is, if the defendant asserts that the offence occurred in circumstances of family violence, to
be determined having regard to any evidence of family violence admitted in the course of
the trial.
(3)
In this section—
"circumstances of family violence" has the same meaning as in section 34V of the Evidence
Act 1929 ;
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"evidence of family violence" has the same meaning as in section 34W of the Evidence
Act 1929 .
15C(1): Note Requirement of reasonable proportionality not to apply in case of an
innocent defence against home invasion:
Removes the requirement of reasonable proportionality in the event of home invasion –
i.e. second limb of SD test does not apply
Not a standalone provision – must be read in context with ss 15 and 15A
The first limb of ss 15 or 15A must still be met
No defence just because an event occurred during a home invasion
Notes 15C(2) defence:
Unusually - places a persuasive/legal burden on D
Good politics – little legal effect – most conduct during a home invasion would
satisfy both limbs of s 15 in most cases
‘home invasion’ means ‘serious criminal trespass committed in a place of residence’:
s 168 – so why use the term ‘home invasion’ in the defence and not the offence?
Entrenches the concept of the sanctity of the home and stranger danger – ignores
the reality of women and children caught in abusive relationships
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Mental Impairment:
Mental Impairment:
The First Limb of Insanity: Inability to Appreciate the Physical nature of the ActIn a case where a man intentionally destroys life he may have so little capacity for
understanding the nature of life and the destruction of life, that to him it is no more than
breaking a twig or destroying an inanimate object. In such a case he would not know the
physical nature of what he was doing. He would not know the implications and what it really
amounted to. ’Dixon J in Porter- This rarely arises in practice.
The Second (Main) Limb of Insanity - Morally Wrong- R v Porter
‘The question is whether he was able to appreciate the wrongness of the particular act he
was doing at the particular time.’
Exam Hint: The Concept of ‘Wrong’
The English courts insist that the reference to the term ‘wrong’ in the Rules refers
to knowledge that the act is legally wrong. On this test Hadfield would have been convicted
as he knew he could be hanged for shooting at the King.
See also R v Windle [1952] 2 QB 826
‘I suppose they will hang me for this.’ The trial judge refused to allow the defence of insanity
to go to the jury on the ground that he had known his actions were unlawful. This decision
was upheld on appeal. The emphasis on the term ‘wrong’ in Australia is ‘morally wrong’. R v
Stapleton (1952) 86 CLR 358. R v Porter (1933) 55 CLR 182, 190 (Dixon J). Porter remains a
leading Australian decision. Confirmed under Part 8A for SA in R v Cox [2006] SASC 188, [22]
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Exam Hint: Voluntariness: Sane (also called Non-Insane) vs Insane Automatism
Recall any act must be voluntary to lead to criminal responsibility. This applies even to
crimes of strict or absolute liability. See R v Ryan (1967) 121 CLR 205; R v Falconer
(1990) 171 CLR 30
Hitting someone during an epileptic fit or a state of concussion is involuntary and
therefore not criminal.
Automatism, although often spoken of as a ‘defence’, but it is conceptually part of the
crucial voluntariness requirement, a necessary component of any criminal liability.
An involuntary act, including one committed in a state of automatism entitles an accused to
an unqualified acquittal, unless the automatism stems from a disease of the mind that has
rendered the accused insane or mentally incompetent. In the latter case, the accused not
entitled to a full acquittal, but to a verdict of insanity or mentally incompetent.
See Parks [1992] 2 SCR 871, R v Falconer (1990) 171 CLR 30
The crucial dividing line is does the accused suffer from a mental disease or disease of
the mind. See R v Falconer. Repeat, if the condition in law is a mental disease, the
defence is insanity/mental impairment, if the condition in law is not a mental disease,
the defence is sane automatism (ie acts were involuntary).
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Objective elements= physical elements
Subjective elements= fault elements
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