Criminal Law and Procedure A – LAWS2113
Week 1 What is Crime?
Crime: a legal wrong followed by criminal proceedings which may result in punishment.
The aims of the law are:
 Punish – punishing the offender for the wrong
 Retribution – proportionate punishment
 Deterrence – preventing crime (showing others what happens if you commit a crime)
 Rehabilitation – modify behaviour
 Incapacitation – protect society by removing the criminal
Crime and punishment serve to protect individuals and human rights and liberties.
 Homicide – protect the right to live
 Assault – protect a person’s physical integrity
 Sexual offence – protect sexual integrity
 Property offences – protect right to own and control property
 Drug offences – protection of public health

Week 2 Sources of Criminal Law and Burden of proof
Sources:
State Criminal Law – Code jurisdictions (QLD, WA, TAS, NT, ACT) and common law jurisdictions (NSW, SA, and VIC)
Federal Criminal Law – Criminal Code (Cth)
Some powers are given to the federal government (immigration, defence, taxation, etc.)
International Criminal Law – bilateral; multilateral (UN)
Sir Samuel Griffith (former supreme judge of QLD and first high court judge) drafted the code for Queensland using:


(UK) [later
(Canada, NZ)]
of New York

(Italy) – the Italian code was considered to be very progressive at that time
1899 (QLD)
Structure: general principles - part 1; specific offences - parts 2-6; criminal procedure - part 8
Other offences outside the code include Common law offence of ‘Contempt of court’,
1995 (Qld), and
1986 (Qld)
Interpretation of the code
1.
Natural and ordinary meaning – fair meaning of the enactment
(1935)
2.
Legislative history – looking at bills, explanatory memos to find the meaning
(1996)
3.
Strict Construction – in favour of the subject by refusing to extend the category of criminal offences: this is used as a last resort
(1976)
Code Jurisdictions
Queensland Criminal Code introduced by Criminal Code Act 1899
WA, TAS, NT, ACT, PNG, Penal Code (Fiji), Penal Code (Kiribati), Penal Code (Solomon
Islands, Penal Code (Tuvalu)
Common law jurisdictions
NSW, SA, VIC (also UK).
Federal Criminal Law:
1914 (Cth)
International Criminal Law:
 Customary International Criminal Law – offences that are part of universal, natural justice (genocide, war crimes, crimes against humanity, aggression i.e. invasion);
 Conventional International Criminal Law – offences that are part of bilateral or multilateral treaties (financing of terrorism, drug trafficking)
Implementation of international laws in Australia requires conventions to be signed by Cth under s 51(xxix) of the Constitution. Also necessary for Parliament to enact domestic

legislation pursuant to these treaties to recognise the separation of powers doctrine between the executive and the legislature
Elements of Criminal Responsibility:
To establish responsibility of a criminal offence, prosecution must establish the elements of the crime the accused is charged with not matter what crime that may be:
Offence
1.
Proof of the voluntary occurrence of the physical elements specified in the offence the accused is charged with – physical element (
)
2.
Proof of the state of mind or mental elements of that offence (if required) to make a person responsible for that conduct – mental element (
)
Defence
3.
Absence of any defences (justification or excuses) that would negative criminal responsibility for the offence (defences)
Common Law: ‘
: the act does not constitute guilt unless the mind is guilty
S 3.1(1) Criminal Code (Cth) – an offence consists of physical elements and fault elements
Queensland
There is not requirement for mens rea in Queensland criminal law:
(1907) 4 CKR 977 at 981
1.
The prosecution need only prove the material elements of each offence
But: some offences also require proof of a particular state of mind (mental elements)
2.
‘State of mind’ elements only need to be established when they appear as an express element of an offence, s23
(Qld).
Commonwealth Criminal Code ss3.1, 3.2
Physical offence (s4), Fault elements (s5), defences
Burden of proof:
Evidential burden – prosecution has onus to produce sufficient evidence to persuade trial judge to consider the issue (beyond reasonable doubt):
(1938)
Persuasive burden – prosecution has the onus of persuading the arbiter of the fact beyond reasonable doubt of the guilt of the accused by establishing the elements of an offence
(innocent until proven guilty)
General defences (excuses) – defence carries evidential burden; prosecution carries persuasive burden to negative the defence
Statutory defences (with/without lawful authority, insanity etc) Defence has evidential and persuasive burden (on the balance of probabilities)

Standard of proof
Criminal trials – ‘beyond reasonable doubt’ –
[1935];
(1938), cf s 13.2 (1)
(Cth)

Week 3 Elements of Criminal Responsibility
Sometimes the mental element can be left out as it is missing (rarely occasions)
Physical Elements
Type of physical elements (s 4.1
(Cth))
1.
Conduct
 S 4.2 – voluntary conduct (under the control of the accused)
 Can be an act (doing something e.g. driving, having sex), this can be done illegally
(speeding, rape etc.)
 Can be an omission (not doing something e.g. parent’s duty to her child). Only in limited circumstances: parent-child, voluntarily assuming duty to act (nurse-patient) and when the accused creates the danger (lighting a bonfire – person has duty to prevent others from being hurt by it)
 State of affairs (being something) e.g. intoxicated, loitering (hanging around – applies to homeless)
2.
Result of conduct
 A cause between the conduct and the result. Without the result, there is no proof e.g. murder – the result of this criminal conduct is death. Without death, it cannot be proven
3.
Conduct in specified circumstance
 The result occurred in a particular situation where it is deemed illegal e.g. speeding, the circumstance is driving over the limit; rape, the circumstance is without consent
All offences do not have all physical elements – any combination is possible
Queensland Criminal Code (very similar)
1.
Conduct
 S 23 – conduct not independent of the will s 23
 Act s 23
 Omission ch 27
 State of affairs
2.
‘Event’ = result of conduct
 Causation between conduct and ‘event’
3.
Conduct in specified circumstances: Main difference is that it is not written anywhere
Causation
Where proof of specific result or consequences is required, the prosecution must prove that the conduct caused those results and not the result of something else (died from the accused’s offence and not some other disease)
Common Law jurisdictions: Common law
Queensland: Common Law + ‘deemed causation’, ss293-298
Voluntariness

There is a requirement that physical actions were under the accused’s control
Federal law s4.2: voluntary if it is a product of the will of the person whose conduct it is
Queensland law s23: independent of the will when the act was not accidental, by reflex action, automatist state or otherwise in a state of unconsciousness or impaired unconsciousness
Mental Elements – what was going through the accused’s mind when the act took place?
Require proof of a state of mind of the accused. Elements involve an inquiry into the mind of the accused at the time he/she was committing the offence:
1.
Subjective test – ask the accused “what was going through your mind” (determined only in reference to what the accused thought, knew or was aware of)
2.
Objective test – what other ordinary persons would have thought, known, would have been aware of in the situation of the accused. This is not used often, simply because it is unfair. Other people may think it is general knowledge but it is not known to the offender
Role of the objective test
The act does not constitute guilt unless the mind is guilty
S3.1 (1) Criminal Code (Cth)
An offence consists of physical elements and fault elements.
Common law presumption – there must be a mental element of intention for guilt
Federal Law s 3.2 Criminal Code (Cth) – guilt of offence must have the existence of physical elements, a fault element in respect to each physical element.
You can have more mental elements per physical element but NOT vise-versa
S 5.6 does not define what fault elements are (can make elements up if it is not written)
Queensland Jurisdiction has no equivalent for mens rea or fault elements in Queensland criminal law:
(1907) 4 CLR 977 at 981
Some offences also require proof of a particular state of mind – only in express element of an offence under s 23
Types of mental elements: subjective mental elements are determined only in reference to what the accused thought, knew, and was aware of: Intention (s 5.2), knowledge (s 5.3) and recklessness (s 5.4)
Negligence (s 5.5) is also a mental element but is not used often as it shifts the standard to others – i.e. ‘what would others have thought?’
Intention
Direct intention (
S 5.2 – (1) “means to engage in that conduct” and (3) “means to bring the result about”
Indirect intention (
)
Foresees the result of the criminal conduct as virtually certain – now mostly rejected in
Queensland:
(1961) 108 CLR 56
Oblique Intention (UK only)

Not directly linked to their intention, but emerges as a consequence of that conduct (the movie
) – In Australia, this is recklessness
Knowledge
Accused has knowledge of the possibility of his/her conduct being unlawful s5.3
Recklessness
The accused has knowledge of the possibility that a consequence is a probable or possible result of their conduct s5.4
Negligence
No longer looking at the state of mind of the accused, but the objective person’s mind
Question: what would a hypothetical ordinary person have known in the circumstances?
Negligence is relevant when it is expressly specified as the mental element (s 328
(Qld)); or where the code expresses in the provision imposing a duty to act – ss 286, 288,
289 (Criminal Code Qld)
Common law builds on the concept of ‘guilty mind’ and the presumption that subjective fault is essential. Negligence is an exception to the common law rule that guilt is determined subjectively.
Contemporaneity – physical and mental elements MUST COINCIDE
The mental element must coincide with or exist at the same time as the offence. E.g. offender cannot be intending to murder someone after murdering them
Case:
[1954] 1 WLR 228
Guys attempting to kill someone then drop him off a cliff to make it look like the death was caused by falling. The victim was not dead at the time they attempted, but died after falling.
Contemporaneity is present where the accused engages in “a series of acts to achieve a particular objective according to a preconceived plan”
Case:
[1969] 1 QB 439
Person accidentally stops car on a policeman’s foot. Later, when asked to move, declines.
Person wasn’t intending at the time it started but did later. ‘Not necessary that [the fault element] should be present at the inception of the [physical element]; it can be superimposed’

Week 4 Homicide I: Murder
Definition: s 300 – any person who unlawfully kills another; s 293 – causing death of another directly or indirectly, by any means whatsoever, is deemed to have killed that person
It is a causal offence, i.e. it doesn’t matter how (what circumstance), just the fact that it has resulted in someone dying.
1.
Types a) Murder (s 302), Manslaughter (s 303)
 Causing death with intention to kill s 302 (1), intention to cause grievous bodily harm s
302 (2) and constructive murder (felony murder/statutory murder) s 302(1)(b)-(e)
 Manslaughter has involuntary manslaughter: mental elements or murder cannot be established; and voluntary manslaughter: murder is mitigated (defence such as self-defence, provocation, etc.)
Always think murder first, THEN manslaughter because it can’t always be established by facts b) Attempted murder
S 306 attempted murder – intention to kill but no death (of the intended victim) caused. This has the mental element but no physical element. c) Suicide (
) is no longer a crime. Back in 1899 it was illegal as it was against
“protecting life”. Law was used when people failed to suicide (attempted murder) – this was abolished in 1979 s 312. However, aiding suicide is currently regarded as an offence, even if the person is going to die anyway s 311. Suicide pacts such as religious pacts remain an offence.
 There is no right to die, consent to death is not possible - s 284
Euthanasia ‘assisted suicide’. There are various forms; including
 Involuntary euthanasia: intentional killing against known wish of the person = murder
 Voluntary euthanasia: terminally ill person requests assistance to die
 Rights to the
1995 (NT) abrogated (cancelled) by
1997 (Cth): no right to request termination of life
 Powers of Attorney Act 1998 (Qld): a person can take an ‘advance health directive’ which allows them to state in advance that they don’t want life support when they suffer PVS. This can however be overruled by relatives
 Non-voluntary euthanasia: termination of life support without express request is illegal but s 282A
(Qld) – doctor’s opinion that there is no hope of recovery. d) Offences relating to childbirth – to protect the foetus and the mother
 Abortion: termination of pregnancy is an offence (ss224-226) (Qld); s 282 provides special defence for the first couple of weeks of pregnancy, and only by practitioners.
 Killing an unborn child is the offence of ‘child destruction’ if it is during the last

stages of pregnancy, s 313 (1)
 S 313(2) – assaulting pregnant women, killing or causing gbh to foetus
 S 314 concealing birth by disposing dead body of child
 Infanticide: killing of the child by the mother after birth (offence/partial defence not in Qld)
2.
Physical elements of death and manslaughter a) Death of a victim that is a human being
Circumstances is irrelevant; the causation is only needed
Death – irreversible cessation of the circulation of blood in the body or irreversible cessation of all functions of the brain
Can there be “a little bit dead”? yes – persistent vegetative state: trauma to the cerebral cortex but the brain stem is not similarly damaged. The person will possess no conscious, sensory or cognitive capacity but will sustain basic blood circulation and respiration.
You must be alive to be dead (unborn babies) s 292a child becomes capable of been killed when it has completely proceeded in a living state from the body of its mother.
‘Living state’ approach – harming a pregnant woman is not hurting the pregnant foetus but the woman
 Child in the womb is not ‘in being’
 Offence before birth are offences relating to childbirth b) Causation of death by accused’s conduct – link between the conduct and its consequence (i.e. death). The prosecution must prove that the conduct actually caused death (s 293)
Look at causation in two steps:
1.
Was the accused’s conduct the cause of death? Meaningful connection between the conduct and result? A LINK
2.
No intervening act that constitutes immediate cause; deemed causation ss294-298
(Qld)
Write down the series of events, and see if there is the chain has been broken.
Was the accused’s conduct the cause of death?
Case:
(1991) HCA
Victim fell to her death from a bathroom window of her 6 floor flat. There was evidence of violent altercation between her and the accused. The last the accused had seen of the victim was before she went to the bathroom. There are only 3 possible scenarios:
1.
Accused pushed her
2.
Victim accidentally fell from the window whilst attempting to avoid the attack
3.
Victim intentionally jumped attempting to escape the violent of the accused
Case:
(1968) SA
Hallett was charged for the murder of W. The two were at the beach and had a fight whilst intoxicated. Hallet hits W with a large stick, knocking him unconscious. W was left near the

shore overnight, and Hallett move higher up the beach and slept. The next morning, W was floating dead in the sea. There was no evidence to show whether W had drowned by the sea.
The result is evident, but no distinct causation without an intervening act can be proved
Possible “chains” from conduct to result
1.
Accused’s conduct was immediate cause of death – test to assess whether an accused’s conduct caused the requisite result.
CRITICISM this test doesn’t provide unequivocal (clear) answers. At best they provide arguments to interpret the connection. Don’t get too attached to this, the answer is basically up to you argument, and therefore the jury
2.
/‘but for’ test – establishes factual, not legal causation. “is the alleged causal event a cause
(an indispensable condition) of the result? – would the result have happened but for (if it wasn’t for) the accused’s conduct?
3.
Reasonable foreseeability test – objective foreseeability of the result: would a reasonable person in the position of the accused have foreseen the result would eventuate from the conduct?
(1991) 172 CLR 378 at 399 per Brennan J if the result is not foreseeable by the accused, his conduct cannot be used to charge an offence.
CRITICISM test emphasises state of mind of a reasonable person thus not the subjective position of the person
4.
Natural consequences/reasonable act test – from the victim’s perspective, is it a reasonable act to do what they did? S 295
(Qld)
CRITICM test does not always work. ‘reasonable’ requirement is unfair; McHugh in
(1991)
5.
Substantial cause tests: causation can be established if it can be proven that the accused’s conduct substantially contributed to the result (i.e. death)
 R v Smith [1959] 2 QB 35 at 42-43
 Royall v R (1991) 172 CLR 378 at 411 per Deane, Dawson JJ
 R v Sherrington [2001] QCA 105 at [4] McPherson JA – courts in Queensland use the R v
Royall decision that a person causes the death of another if his act or conduct is a substantial or significant cause of death, or substantially contributed to the death.
Are there any intervening acts that constitute immediate cause?
Investigation where any intervening acts breaks the chain of causation between conduct and result (
R v Hallett – the tide coming in was an intervening act.
Intervening acts that can be used, whereas the law states that they do not matter:
 Acts done before childbirth s 294 – causation exists if the conduct before childbirth causes death after birth
 Death by threats s 295 – acts by the victim in response to threats, intimidation or deception by the accused do not break chain of causation

 Acceleration of death s 296 any acts accelerating the death are considered to be a cause of death
 Contributory act of victim, s297 – acts and decision by the victim contributing to the death do not break chain of causation, including refusal to get medical treatment – a
British case regarding a Jehovah’s witness; accused was liable for homicide
 Unexpected susceptibility s23(1A) – causation is not broken by unexpected defects, weaknesses or abnormalities of the victim (‘take the victim as you find it’)
 Voluntary acts by third party – acts that are done completely independent of the act of the accused may break the chain of causation e.g. attempting to kill someone by a pill, but before it takes effect they die from a gunshot. Only guilty for attempted murder. BUT acts or innocent agents do not break the chain of causation:
– accused wanted to kill the baby and poisoned the baby. A third party wanted to feed the baby, and accidentally fed poison to it.
 Natural events – common weather patterns and ordinary natural events (e.g. tide) cannot break the chain of causation; extraordinary natural events (e.g. earthquakes) can:
[1969]
 Medical treatment s 298 – doctors administer drugs or do surgery but fails and the patient dies. As long as the treatment is reasonably proper and applied in good faith cannot break the chain of causation, including unsuccessful treatment, decisions not to treat or not to continue treatment not to use certain drugs
Improper, palpably wrong, or turns minor wounds into fatal ones may, in exceptional circumstances, break the chain of causation, s 298
(Qld),
(1979), R
(1956)
3.
Mental elements of murder: this is listed in s 302(1) of the
(Qld). Work through them in order a) Intention to kill – accused acts with the purpose, objective or desire of bringing about the result of death. Transferred malice (the intention to kill, not whom) s 302(2) b) Intention to cause grievous bodily harm (s 302(1)) – intentional infliction of some degree of grievous bodily harm. Mismatch (intended gbh but not death. Law believes it is bad enough to attempt gbh, therefore still guilty. Definition of gbh in s 1 c) ‘constructive murder’ i.
Felony murder – e.g. robbery in which someone dies. No intention to kill or inflict gbh, but dies. The robbery can be used to convict them for murder. ii.
Resisting lawful arrest/escaping from lawful custody
Recklessness does not exist in Qld, but in Common Law
Unlawful purpose murder

1.
Physical elements killing = causing death of another
2.
Mental elements intention to cause death or gbh cannot be established, THEN death caused by means of an act in the prosecution of an unlawful purpose a) Accused has an unlawful purpose other than inflicting death or gbh b) Dangerous act: accused’s act (objectively) endangers life c) Dangerous act and unlawful purpose must be different (cannot be the same):
(1974) guy wanted to burn down a strip club but not kill anyone.
Case Matrix
1.
Physical Elements of murder: a) Death (of a victim that is a human being) b) Causation (of death by accused’s conduct)
Tests to assess whether accused’s conduct caused death
No intervening act that constitutes immediate cause; deemed causation, ss 294-298
(Qld)
2.
Mental elements of murder a) Intention to cause death, s 302(1)(a) 1 st alternative
b) Intention to cause grievous bodily harm, s 302 (1)(a)2 nd alternative c) ‘Constructive murder’, s 302 (1)(b)[-(d)]
If physical elements cannot be established  attempted murder?
If mental elements cannot be established  no liability for murder  manslaughter?

Week 5 Homicide II: Manslaughter
What is the point of putting it down to manslaughter? Historically, it was to prevent the death penalty as murder’s punishment was death. Nowadays, it is more concerned with the label; and in Queensland, murder is mandatory life imprisonment, whereas manslaughter is not; which means that it can be lowered
1.
Manslaughter, s303 a) Positioning manslaughter
 When the physical elements are evident, but no mental element is evident, it would likely be ‘involuntary manslaughter’: s 303, s310 of the Criminal Code
 Manslaughter is also available even if mental elements exist through partial defences. This is called ‘voluntary manslaughter’: s310. General defences acquit the person from any charges (includes self-defence, force, etc).
 The criminal code does not distinguish the different manslaughters. It is secondary in that it arises in circumstances that “do not constitute murder”:
(2005)
There are 3 types of involuntary manslaughter: b) ‘Intentional violent act’ manslaughter (unlawful death)
 Death occurred with no mental elements. The violent act did not intend to cause death or grievous bodily harm (e.g. pushed someone outside when it’s raining, the victim falls over and cracks his death, causing his death. The push is a violent act).
 Defence: s 23 (1)(b) – unforeseeable consequence. There is no liability for events that are not foreseen by the accused and not foreseeable by a reasonable person as a possible outcome. If the outcome is completely unforeseeable, it can be used. c) Negligent manslaughter (awful but not unlawful)
 Nothing unlawful has been done, but has caused the death. E.g. unleashing a dog, which has never attack anyone before, suddenly kills a baby. S288 doing a dangerous act; or s 289 controlling a dangerous thing. This can overlap with Intentional Violent act; to prevent loopholes in this section
 Criminal Negligence:
(1977) VR 430 at 445: “the accused’s behaviour involved 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 the death or grievous bodily harm would follow that the doing of the act merits criminal punishment”.
 Dangerous thing can change through use/context e.g. pencil is not dangerous unless used to stab someone d) Manslaughter by omission (awful but not unlawful)
 Where there is a duty to act ss, 285, 286, 290
 Criminal negligence – a reasonable person could have acted and would have foreseen that death would occur as a result of the omission, cf
(1977) VR 430 at

445
Voluntary manslaughter is when the accused has committed murder but is convicted of manslaughter because of mitigating circumstances (i.e. defences):
(2005).
These include:
2.
Provocation, s304 a) Purpose, availability
 Provocation is generally seen as a concession for human frailty: Provocation  anger
 loss of self-control. S 304 – killing on provocation
 It is available to charge of murder including ‘constructive murder’ (s302(1)(b)-(e)), but not for attempted murder.
 TAS and VIC have abolished provocation b) Elements
Cause/’trigger’ – what was the provocative act by the victim which caused the accused to kill. This must be a sudden provocation
Subjective element – in the “heat of passion” the accused lost self-control as a result of the provocative conduct
Objective element – an ordinary person provoked with the same gravity, too, could or might have lost self-control and formed an intention to kill
Identify the cause of provocation; what does it mean to the accused, and what does it mean to an ordinary person
Cause/’trigger’ – what was the provocative conduct that set the accused off? Identify the provocative conduct by the victim provocateur; ensure that this conduct was sufficient to amount to provocation. This approach fails to ignore provocation that takes place successively over time; i.e. long term abuse. The provocative conduct must be seen in context and not in isolation. It is the cumulative effect that is important
(1994) 72: words as a provocative conduct – it is not commonly accepted that words alone can be provocative conduct (Moffa v R), but only violent provocative words of/in
‘exceptional circumstances’ suffice; where the ‘circumstance is of a most extreme and exceptional character’ s 304(2)
(Qld)
 Wrongfulness of the provocative conduct
 Provocation ‘by’ the victim – generally, provocation must stem from the victim-provocateur: R v Davies [1975]. It suffices if the provocation is offered by someone closely connect to the victim (e.g. a member of the group), and misdirected retaliation suffices if the accused wrongfully believes the victim offered the provocation (killing the wrong person)
 Can’t be self-induced exceptions have been made if the victim’s response to self-induced provocation was completely unforeseeable.
 Indirect provocation – must be directed at the accused; exceptions have been made if it

was directed at a third party if the provocation directly involved the accused and the victim:
 The accused must be present and within the sight or hearing of the accused:
(1986). ‘Hearsay provocation’ does not suffice:
[1975]
Provocative conduct
 In domestic relationships, provocation is only available in ‘circumstances of a most extreme and exceptional character’ s 304(3)-(7)
(Qld)
 There is no defence for ‘sexual possessiveness or jealousy’
Subjective element
 Loss of self-control was because of the provocation, and was not premeditated (s 304) e.g. accused killed “in the heat of passion” before there was any time for their passion to cool

(1995) 183 CLR 58 at 66: [P]rovocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he [or she] had the opportunity to regain his composure.
 Loss of self-control must be “sudden” cf s 304 the accused acts on an impulse and there was no time to cool down, to regain an emotional equilibrium (contested)
 Loss of self-control may be caused by feeling of anger, apprehension, fear, hatred, panic, revenge, resentment:
(1986) 69 ALR 1
Subjective element: look at the accused and the environment they are in that may contribute to the loss of self-control:
,
Objective Elements – would an ordinary person with the same gravity, too, could or might have lost self-control and formed an intention to kill? Not whether others would do the exact same thing but whether it was conceivable
 This defence is not available “to persons who lost self-control because of unusual temperament or excitability or because of self-control states”
1.
Determining the gravity of the provocation – assess the seriousness of the conduct
 Seriousness/gravity depends on the person and background of the accused
 Characteristic of the accused such as age, gender, race, ethnicity, physical features, personal relationships are relevant in determining
2.
Could an ordinary person provoked to the same gravity too, lost self-control and form an intention to kill?
 Superimposing the degree of gravity onto an ordinary person – would an ordinary person have lost control and formed an intention to kill?
 There is no requirement that the ordinary person would have reacted exactly the same way/killed in the same way as the accused
 Personal characteristics are irrelevant: historically, it included these, but
has rejected these.
 This is the most contested part
Provocation can be a complete defence for assault offences, resulting in the acquittal of the

charge. It is available only if assault as defined in s 245 Criminal Code is an element of the offence, but not available to ss 317, 320. It is not available in all jurisdictions. If this is raised successfully, a person can be acquitted from the charge
3.
Domestic violence defence, s 304B a) Purpose, background b) Elements

Week 6 Assault & other non-fatal offences against the person
Aggravations: each offence is separated through physical elements or circumstances that relate to the assault for example:
 Assault causing actual bodily harm s
339
 Torture s 320A
 Wounding s 323
 Drink spiking s316A
 Grievous bodily harm s 317(b)
 Assaulting, resisting or wilfully obstructing a police officer s 340(1)(b)
It can be equally distinguished through aggravated mental elements
Assaults with intent to:
 Steal ss 412 413
 Commit rape s 351
 Commit a crime or to resist unlawful arrest s 340 (1)(a)
 Torture, s 320A
Assaults are generally offences against a person
 Stalking, s359A
 Socially unacceptable criminal ‘unconsentable’
 Courts are opposed to rough sexual activities
 Socially acceptable legal ‘consentable’
 Professional sports, medical surgery, tattooing
Common Assault
[1969] 1 QB 439 at 444 per James LJ – an assault is any act which is intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence… [or] the actual intended use of unlawful force to another person without his consent (the case of the car parked on top of the police officer’s foot)
There are two types of assaults:
Apprehension of assault (threat)
1.
Striking, touching, or moving or otherwise applies force of any kind (i.e. application of force). This can be committed by an instrument, a dog, etc.
2.
To the person of another, directly or indirectly – causation (i.e. direct or indirect application of force)
3.
No valid consent (circumstance)
2 nd Alternative
1.
Bodily act or gesture – conduct manifesting/constituting the threat or attempt. Attempt of assault is part of the completed offence. Words alone do not suffice unless accompanied by gesture. At common law, words may suffice:
– many threatening calls
Silent phone calls also do not suffice in Qld, but does in common law:
Conditional threats are sufficient if the accused has no right to impose the condition:
2.
No valid consent

3.
Apparent/actual ability – empty threats should not suffice to assault. E.g. a person who threatens to hit you with a baseball bat he physically has at that instant is a proper threat:
,
: subjective test depending on what the victim apprehended, however fear is not required. Immediacy/Imminence is only required in common law and not in Qld (absorbed in ‘present ability’ requirement.
Fault element:
Common law: Intention: assault by threat or force – the accused means to commit the act; and assault by use of force – accused means to use force on the victim.
Queensland: there is no specification of mental elements in the
Aggravated offences:
Assault causing bodily harm
Physical elements
 Status of the victim – who has been harmed/assaulted?
 Type/seriousness – what type and degree of harm has been inflicted?
 Method of result – how has the harm been inflicted?
 Combination with other offence –does the assault/harm coincide with another defence?
Mental elements
 Intention – what harm (or what else) did the accused intend?
Related to special victim – ss 338, 340 (1), 340(2AA)
 Members of crew on aircrafts – s 338
 Police officers s 340 (1) (b)
 Persons 60 or older s 340(1)(g)
 Person who rely on guide dogs s
 Persons performing official duties s
340(1)(c)
340(1)(h)
 Public officers s 340 (2AA)
There is no corresponding mental element that is required to prove knowledge that they were special victims. It cannot be argued that the offender didn’t know the victim was special.
The seriousness of the harm:
 Assault occasioning bodily harm, ss 339, 328
‘bodily harm’ defined in s 1
 Doing grievous bodily harm ss320 317 ‘grievous bodily harm’ defined in s 1
 Torture, s 320A
 Unlawful wounding s 323(1)
There is no need for intention to inflict harm
Method of assault:
 Drink spiking s 316A
 Torture s 320A
 Administering poison with intent to harm
 Female genital mutilation

 Doing bodily harm/pretending to be armed
 Doing harm in the company of others
It can be aggravated with mental elements s 317 – acts intended to cause grievous bodily harm and other malicious acts.
Defences and consent to assault:
Ordinary Social activity:
[1984],
[1994] – there should be a general exception to ordinary conduct of daily life. It is not a written defence in Qld.
Lawful arrest: exercising lawful power of arrest is allowed to use reasonable force in order to affect that arrest and prevent the escape of the arrestee.
Resisting lawful arrest: right to use reasonable force to resist unlawful arrest s 271
(self-defence)
Consent is an expressed negative physical element (you have to prove that there WAS NO
CONSENT)
Assault to consent is no assault at all: s 245(1)
(Qld): Schloss v Macguire
(1987). It is not a physical element of offence that does not include assault such as wounding or gbh. In these offences, consent is used as a defence. An honest, mistaken belief in consent will provide a defence, but only if the mistake was objectively reasonable s 24
Implied consent: consent can be implied or tacit (unspoken) consent:
[1971],
[1991];
[1993]. It also serves to eliminate criminal responsibility for inadvertent contact that occurs in the course of everyday life:
(1986). Consent obtained by fraud or threat is vitiated: fraud renders consent void if the fraud related to the nature of the act itself or to the identity of the person who does the act s 245(1)
Consent vitiates/negates liability for offences of which assault is an element s 245(1). It is irrelevant for liability for offences which assault is not an element (e.g. gbh, wounding etc.)
Case law has developed exceptions (‘good reasons’) to the rule that consent cannot be given to serious offences against the person. These include:
 Personal adornment: tattoos, piercing
 Surgery defences - s 282
 Consent by patient
 Consent by another person
 Treatment without consent
 Sports: general rule – participation in a violent but nevertheless socially approved and lawful sport within the rules of the game implies consent to usual assaults inherent in that sport. Controversial – when does the “socially approved and lawful sport” go up to?

 Rough sex: sado-masochism between consenting adults. The question to the House of
Lords was: does the public interest require the courts to intervene in these activities despite the presences of consent? R v Brown [1994] 1 AC 212
Lord Templmean – deliberate degrading of another person was wrong
Lord Jauncey – if they permit these practises, others who are not as careful may be acquitted from future charges
Lord Lowry – activity cannot be regarded as conductive to the enhancement or enjoyment of family life or conducive to the welfare or society
Lord Mustill – there is no offence against the existing law of violence. To this question I return a negative response

Week 7 Sexual Assault
The purpose of sexual offences is to protect a person’s freedom of choosing whom to have sex with and whether or not to have sex.
(1993): “every individual has a right to the human dignity of his or her own person. Rape amounts to an affront to that person’s dignity and an invasion of the privacy of that person’s body.”
It also protects children and those who have cognitive impairment from sexual exploitation.
Sex itself is not a crime but criminal responsibility arises when a person is forced in or forced to be confronted with non-consensual sexual activity or lacks the capacity to consent. Offences include:
Rape s 349
(Qld)
Physical Elements
 Penetrative sexual intercourse s 349(2) (a) Carnal Knowledge, (b) vulva, vagina or anus,
(c) mouth
 Without the victim’s consent
Mental Elements
 None specified in Queensland
 Elsewhere: knowledge/intention regarding sexual intercourse; or knowledge/recklessness regarding absence of consent
Defences
 Honest and reasonable mistake of fact (regarding lack of consent) s 24 Criminal Code
Physical element 1: penetrative sexual intercourse – carnal knowledge (biblical definition of penile penetration) s 349(2)a
This is any penile-vaginal and penile-anal penetration s 6(2). Only the slightest (any) degree of penetration is required.
Penetration can be by other ‘things’ or body parts s 349(2)b. this include fellatio: oral stimulus of the penis. BUT does not include cunnilingus: oral stimulus of female genitals (as this is not penetration of anything). In Queensland, any penetration done for medical, hygienic or law enforcement purposes is excluded from the definition of sexual intercourse.
Physical Element 2: Without the victim’s consent
The prosecution must prove b, eyond reasonable doubt that the victim did not consent to the penetrative sexual intercourse by the accused:
(1910);
(1930)
Consent is defined as ‘free and voluntary’ under s 348(1) Criminal Code. A persons consent to an act is NOT free and voluntary if it is obtained by force, threat or intimidation, fear of bodily harm, exercise or authority, false and fraudulent representations about the nature or purpose of the act, by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner. It does not state if it is exhaustive. It has no further definition of consent.
The 3 questions asked to establish the lack of consent is:

1.
Is any consent expressed or manifested?
 Express consent by words or conduct
 Physical submission, inactivity is no consent
 No implied consent
[1999] 1 SCR 330
 Physical resistance not required:
[2001] QCA 341. Legislation in ACT, NSW, SA,
WA, not QLD
 If during sex, consent is withdrawn, it must be stopped or else rape is committed:
[1985];
(1998)
2.
If there was consent, was it “free and voluntarily given”, s 348(2)?
 Consent by violence, threat or fear is not free and voluntary and thus not a consent
 It is likely that is it not exhaustive
 Consent obtained by fraud or mistake is not consent:
(1988),
(1957) (man lies to his religious wife that they have been married)
 It is void if mistake relates to physical identity of the perpetrator
 Void if mistake relates to purpose of sexual act
 It has been legislated in NSW that if a person is lied of being married, that is a fraud and thus rape is committed. This was legislated after
was acquitted.
3.
Does the person have “the cognitive capacity to consent”?
 Consent requires an understanding of the ‘nature and character of the act’ s 348(1)
 Consent does not require understanding of the moral or sexual significance of the act
 Consent, sleep and intoxication (capacity to consent)
 Intercourse with a sleeping victim is rape:
(1872)
 (Very) intoxicated victims do not/cannot consent:
(1975),
(1993) – these cases have stated that if you can walk and talk, you have the ability to consent or refrain sex
Mental Element 1: “Objective Approach” (Queensland)
Prosecution need not prove any mental element. Rape does not involve intention to cause a certain result:
;
;
. This approach puts too much onus on the jury; they may have personal perceptions on their view on rape.
Mental Element: “Subjective Approach” (Queensland)
 Did the offender have the intention to have sexual activities?
 The prosecution must prove that the accused either knew that the victim was not consenting or was reckless as to whether or not the victim was not consenting. This leaves little room for the element of defence to apply here.
 Is there proof of foresight that the victim was not consenting  mistake? DPP v Morgan
[1976] AC 182. This approach puts too much onus on the prosecution.
Extending the meaning of recklessness (NSW, VIC, SA)

Recklessness includes “failure to give a moment’s thought” i.e. not caring.
Indecent Sexual assaults s 352(1)(a)
If rape cannot be proved, look at sexual assault. This is a form of assault with a sexual component
Physical Element
1.
Assault: common assault by threat or use of force (s 245(1))
2.
Indecency: determined by reference to the ordinary standards of morality of respectable people within the community. There are two ways of doing something indecent:
Assault itself (touching someone in an inappropriate place)
Assault occurred in indecent circumstance
3.
Sexual nature of the assault
4.
Excluded acts: assault in a s 349(2)-way is rape
5.
Without consent, s245(1) [not s348]
Mental Elements: Not specified
Sexual offences against minors ss208-215
The purpose is to prohibit people to have sexual conduct or relationship to children. Children don’t understand the implications. Children may not know what is happening and therefore the element of consent has been taken out for children under 12 years and under.
Perpetrators who honestly think that the victim is older than 16 but is under 16 may have a lesser offence. Anal-penetration is still considered illegal until the children are over 18. The mistake defence (s 24) is not available
Sexual offences against person with an impairment of the mind s 216
Victim with an impairment of the mind is defined in s 1. The offence is aggravated if sexual activities are involved with a relative or guardian of the victim.
Other sexual offences include:
 Special offences exist for victims incapable of consenting: prohibition of sexual activity with a minor or a person with mental impairment irrespective of consent
 Procuring or witnessing acts of gross indecency s 532(1)(b)
 Procuring a sexual act by coercion or false pretence s 218(1)(a)-(b)

Week 8 Inchoate Offences
Inchoate offences exist for when the physical elements are incomplete. The consequences of this would be either that a) the accused cannot be convicted; thus offence is not made out, or b) liability may be extended beyond completed offences (i.e. extensions of criminal responsibility). Inchoate offences include attempt (or incitement); secondary liability includes complicity, conspiracy and accessory. Plan  Preparation  Completion
Inchoate liability is criminalising people before the offence is completed for law enforcement to intervene and for charges to be laid. Inchoate offences have the potential to cause harm.
They reduce risks that the offence will be completed.
Moral Blameworthiness: the offender who tried but failed is not very different from a person who tried and succeeded. Criminal law should focus on the culpability (responsibility) rather than the outcome.
Crime prevention: law cannot wait until harm is done. Criminal law should punish those who are trying to commit harm as well as those who succeeded in so doing.
An attempt is when the physical elements are incomplete, but the mental elements exist.
Incitements & conspiracy is the same, except the physical element is even less evident
Attempt: rationale – punish those who intend to commit a crime and who do some acts that are more than merely preparatory to the crime, but are unsuccessful in carrying it out i.e. between plan and completion (preparation). Criticised: the offence is not complete. Common law:
[1987] VR 929 at 938 per Murphy J, QLD: s 4(1)
Elements:
1.
Mental elements: intention. Did the accused act with the requisite mental element for attempt? a) The mental element for an attempt is independent from the mental element for the completed offence. Attempt only covers person who are consciously endeavouring to commit the crime. b) Law requires proof of intention before an attempt can be made out.  attempt therefore involves proof that the accused had the purpose of bringing about all elements of the completed offence.
There are two ways to do this:
Option 1: treat all elements of the offence in the same way
 Accused must intend the conduct (sexual intercourse) and
 Intend (or know/believe) that all of the circumstances necessary for the commission of the offence (lack of consent) exist at the time the conduct is engaged in
Option 2: treat circumstance crimes differently to result crimes
(1973): reckless indifference as to the absence of consent is sufficient for attempted rape:
[1965]. A case authority in UK court of appeal is not followed in Qld.
Can the offence be attempted?

 ‘General attempt provision’: s 535 Criminal Code provides that it is an offence to attempt any crime or misdemeanour (see section 3). Simple offences cannot be attempted.
 ‘Special attempt provision’: liability for attempts outside s 535: ss 47, 48, 59, 60, 99, 103,
110, 118, 120, 121, 122, 127, 130, 209, 215, 216, 245, 306, 315, 316, 317, 464.
 Offences that cannot be attempted: statutory crimes of preparation (i.e. you can’t attempt to attempt). E.g. s 306 – an offender cannot attempt to commit attempted murder
2.
Physical elements: can the physical elements required for attempt be proved? a) Proximity “execution by means adapted to its fulfilment”
 Accused’s conduct was sufficiently proximate to completion and not merely preparatory. Only conduct that is “sufficiently proximate” and not “merely preparatory” is considered punishable:
[1987] VR 929 at 939 per Murphy J. applies in Queensland:
[1954] QWN 35,
[1956] QWN 16; cf s4(1) Criminal Code
There are 3 tests to determine proximity:
Last act test: Requires that the accused does the very last act possible toward the completed offence:
(1855);
[1956]. However, this test leaves little room for attempt, and is problematic when the offence is committed in stages
Unequivocality test: requires there to be conduct that unequivocally indicates that the accused intended to commit the offence:
[1924]. This blurs physical and mental elements.
Substantial step test: requires substantial steps to have been made towards the commission of the crime:
[1978] b) Physical manifestation i.e. overt act (physical elements of the offence)
 Physical manifestation of intention/plan. Usually the overt act can be established by proving proximity.
Conspiracy: rationale – serves to criminalise an agreement between two or more persons to commit an unlawful act where there is an intention to commit that unlawful act. Criticised: It sounds like it is criminalising wishful thinking (i.e. thinking “evil”), the course is from common law:
, Federal:
s11.5; Queensland ss541-543A
Elements [simplified]
1.
Mental elements: agreement between 2 or more to commit a serious offence.
2.
Physical elements: overt act (manifesting the agreement)
Incitement: rationale – covers circumstances where one person (‘inciter’) tries to persuade another (‘incitee’) to commit a crime that the inciter wants and intends to have committed:
NSW & SA (Common Law), Federal (
(Cth) s11.4), QLD (“attempting to procure criminal acts” s 539
)
Elements:

Attempting to procure another
To do/omit an act that if done/omitted would be a criminal offence.
Impossibility: trying to commit an offence that cannot be achieved
Offences may be impossible because of:
 Law: accused believes the conduct is criminal when it is not (e.g. cheating). It can also be applied to accused persons who are outside the capable class by the law such as receiving bribes by government official, when the person is in fact not a government official. There are no liabilities for attempts to commit an imaginary crime. Unless the intended end is a legally proscribed harm, causing it is not criminal.
 Circumstance: completion is not possible because of some circumstance. There are two approaches
1.
Act-centred approach: relative impossibility – insufficiency of means/accused’s incompetence  this is irrelevant. Absolute impossibility – impossibility because of physical circumstance independent from accused (e.g. shooting into an empty room)

;
 impossibility may be a defence, but in
;
 guilty, no difference (Vic et al). The two approaches have been generally rejected.
2.
Fault-centred approach: Liablitiy for attempt arises even though the facts are such that the commission of the offence is impossible. S 4(3)
(Qld)
Immaterial that circumstances unknown to the accused make commission of the offence impossible.
Case Matrix
1.
Completed offence accused may be charged with
1.1
Physical elements
 Completed offence cannot be established
2.
Attempted offence accused may be charged with
2.1
Can offence be attempted?
2.2
Mental elements for attempt
Generally intention (recklessness for rape (circumstances))
2.3
Physical elements for attempt
2.3.1
Proximity (not merely preparatory)
2.3.2
Overt act
3.
Defences

Week 9 Self-help defences: self-defence, duress, necessity
Self-help defences apply in situations where the accused was threatened, compelled or otherwise forced to commit a criminal offence. Self-defence, duress and necessity relieve
(excuse) a defendant from criminal responsibility because he or she committed an offence in order to ‘help’ themselves or help another person to avoid serious (or greater) harm. It is not a justification of the offence.
General (complete) defences come first, and partial defences are secondary as it does not result in complete acquittal.
The purposes of the defences are different. Self-defence serves to protect their lives, others and property against unlawful attacks. Duress excuses crimes committed while accused was compelled to do them (freedom of choice), protecting people who are coerced to commit the crime. Necessity/emergency excuses crimes committed in order to avoid more dire circumstances – it is a last resort in regards to complete defences but is arises very rarely (in extreme emergencies that would commit an offender to save a life).
The availability of the defences is also different. Self-defence is available to all offences against the person, and some property offences. It appears in situations where the offender is defending themselves by committing harm, bodily harm, gbh and sometimes killing the other person. All offences except murder attempted murder or gbh are available for duress. Defence of necessity is available to all charges, but there have been some controversy in regards to murder.
Self-defence
Sources: s 267, 271-278
(Qld), s10.4
(Cth), Common Law only applies partly in Victoria ss271-278
(Qld)
1.
Attack a) Provoked attacks b) Unprovoked attacks c) Attacks against property
What type of self-defence situation is applicable here?
2.
Subjective element a) Non for ‘minor’ provoked ass b) Reasonable belief for ‘major’ unprovoked + for provoked ass
3.
Objective element a) Force was reasonably necessary b) Reasonable apprehension of death or gbh
Thought process for these cases

1.
Who/what is attacked? Accused – ss 271,272; another person who the accused defends – s
272; property ss 267, 274-278
2.
For a person (accused and others), was the attack provoked? No: s271; yes: s272
3.
If No: (Intended) level of force used: not fatal/gbh: s271(1); Fatal/gbh: s271(2)
Trigger Nature of accused’s conduct
Subjective
Element
Objective element
S 271(1) Unlawful,
S 271(2)
S 272
Ss267,
274-278 unprovoked assault
(s245) by the victim
Unlawful, provoked assault
Attack property against
Not intended/likely to cause death/gbh
Is intended/likely to cause death/gbh

None
Reasonable belief no other way
Reasonable relief it was necessary
Force was reasonably necessary
Reasonable apprehension of death/gbh
Reasonable apprehension of death/gbh, necessary
Provocation is defined in ss 268, 269 – it is not the same as provocation regarding murder. The initial attack by the victim must be unlawful and must be an assault (s 245 Criminal Code)
 Assault was not provoked by the accused, s 271
 Force used by accused was not intended/likely to cause death or gbh, s 271(1)
 Force used by accused was intended/likely to cause death or gbh, s 271(2)
 Assault was provoked by the accused, s 272
S 271(1)
Trigger: unlawful, unprovoked initial assault by the victim
Subjective element: none
Objective element: use of force by the accused was ‘reasonably necessary to make effectual defence against the assault’ s27 (1). Necessity of the force used by the accused is determined objectively in relation to the type and nature of the attack and the (un)availability of opportunities to retreat.
 Escalation/excessive force prohibited, s 283
 Honest and reasonable mistake about necessity s 24 is available [in subjective element]
S 271(2)
Trigger: Unlawful, unprovoked initial assault by the victim. Accused’s force was intended or likely to cause death or gbh, s 271(2) [‘major unprovoked assaults’]
Subjective Element: subjective belief based on reasonable grounds that there was no alternative to using force (even if that force may cause death or gbh) [honest and reasonable mistake about grounds s 24 available]
Objective Element: reasonable apprehension of death or gbh (actual and reasonable:
[1967];
[1986].

S 272
Trigger: unlawful, provoked initial assault by the victim
Subjective element: subjective belief based on reasonable grounds that it was necessary to use force to preserve from death or gbh [honest and reasonable mistake about grounds, s 24]
Objective element: reasonable apprehension of death or gbh (actual and reasonable). There is no room for mistake (s 24)
S 272(2): defence under s 272(1) not available if the accused provoked with intent to kill or cause gbh, accused endeavoured to kill or cause gbh, accused did not decline further conflict.
Cumulative reading:
(1995) – it is conceivable for someone to set up the victim by provoking them so much that just before they attack, the person provoking kills the victim.
S 267 – protection of dwelling houses
It is only available to owner + occupiers of dwelling houses. There is a subjective element that the accused believes on reasonable grounds that the victim enters with intent, and that force is necessary. There are no clear objective limitations.
S274-278 depends on what the relationship is between the owner and property, and the type of property it is.
Duress/Compulsion
This is a defence for personal crisis. Where “ordinary power of human resistance was overwhelmed”: Murder cannot be defended by this, as it is too heinous; compulsion cannot justify killing. Neither can attempted murder or infliction of grievous bodily harm be defended.
Queensland: s 31(d)
1.
Threat: of serious harm or detriment; threatener is in a position to carry out the threat s
31(1)(d)(i)
2.
Subjective element: accused reasonably believed he/she is unable to escape the carrying out of the threat, s 31(1)(d)(ii)
3.
Objective element: accused’s response is reasonably proportionate to the harm/detriment threatened, s 31(1)(d)(iii)
Threat is usually threat of death/gbh; any ‘serious’ threat. It is unclear whether public exposure or blackmail is considered serious threat. Threats against property may suffice in
Qld.
Subjective element: accused reasonably believed he/she is unable to escape the carrying out of the threat, s 31(1)(d)(ii)  not available if independent decision to commit crime or if avenue to escape (and call the police)
Objective element: proportionality. Harm threatened must be greater than harm done. Not available to offences involving (intentional killing and gbh)

Necessity/Emergency Be really cautious before using this
The purpose of this defence is to cater for the accused when they are compelled to commit an offence by some extraordinary emergency that was not an attack; compulsion etc.  defence of necessity s 25 is secondary/residual (last resort)
In practice, most cases of necessity s 25 involve driving offences. Driving above speed limit to get someone to hospital (rural Queensland)
Queensland: s 25
Elements
1.
Emergency must be circumstance of sudden of extraordinary emergency, s25 (usually death or physical injury)
2.
None, mistaken belief suffices
3.
Ordinary person possessing ordinary powers of self-control could not reasonably be expected to react differently.

Week 10 Insanity, Intoxication
Natural persons are subjects of criminal law: individuals can be held criminally responsible
(not a collective e.g. a family). Criminal law only applies to persons, and they can commit (or omit) criminal offences. All persons are equal before the lawand the law applies to all persons.
A presumption exists that individuals do not suffer from mental impairment; cf s 26
(Qld), s 7.3(3)
(Cth) and at common law. This presumption may be displaced by the defence of mental impairment. In Queensland, this can be found in s 27.
Children are also exempted from criminal responsibility because they are incapable of understanding the consequences of their acts and they have not fully developed an appreciation of the difference between right and wrong. They are divided into 3 groups:
Persons <10yo
Are NOT criminally responsible for their conduct; s 29(1)
(Qld), s
7.1
(Cth)
Persons 10,<14
Are NOT criminally responsible for their conduct;
UNLESS they have the capacity to know their conduct is wrong; s 29(2)
(Qld), s 7.2 (Cth) e.g. running away from the offence, hiding it somewhere etc.
Persons 14, <17
ARE criminally responsible for their conduct. They are tried before special courts;
1992 (Qld).
Ask: How old is the accused?
You must try and displace the presumption for the 10-14yo section
Legal persons: Corporations
A person can be an individual and also a corporation: s 36
1954 (Qld)
 corporations are subject to criminal liability and can be tried for any offence. In
Queensland, this has been legislated in s 594A
(Qld)
Insanity, Mental Impairments s 27
Only discuss when there is information suggesting that the person may have a mental impairment. Someone with mental impairment is someone who can’t tell right from wrong, or doesn’t know the consequences of committing the offence etc.
The practical application is very rare. Also not desirable for the defendants as it does not result in complete acquittal, and even if it does it is highly likely that they must go to a mental health facility to rehabilitate, and may be required to go for longer than the imprisonment sentence. Questions about mental capacities and fitness to stand trial (s 613
(Qld)) may be referred to the Mental Health Court: s 257
2000 (Qld). If insanity under s 27 is raised successfully a qualified verdict “not guilty by reasons of unsoundness of mind will follow: s 647(1)
(Qld), followed by

detention in mental health facility: s 200
2000 (Qld). It is argued that this is the best way to protect society, incapacitate offenders. The prosecution and even the judge may sometimes instigate an enquiry regarding the sanity of the defendant.
(1933)
55 CLR 182 per Dixon J
S 27 is available to all charges, s 36
(Qld). It may not be available to children between 10-14years of age because s 29(2): Where doli incapax is in issue, insanity is not relevant:
(2997), R v Brooks [1945]. This means that if s 29 applies, s 27 is not relevant.
S 29 is indistinguishable from s 27(1): R v M, M v AJ. For s 29(2) it matters not whether the child lacked the capacity by reason of immaturity or mental impairment. Should a child be acquitted under s 29(2), he or she may be referred for a committal under the Mental Health
Act 1974 if the child is thought to be insane
S 27(1)
(Qld)
1.
Mental disease or natural mental infirmity: which deprives the accused of
2.
The capacity a) To understand what he/she is doing b) To control his/her conduct (controversial, limited and not applied in common law) c) To understand that conduct is wrong
Elements of Mental disease, s 27(1)
1.
Mental disease of natural mental infirmity
 Psychiatric meaning: ‘pervasive inability to engage reality: as failure of “reality testing”’
 The term in s 27 is, however, a legal one, not a medical of scientific one:
(1990)
[1982]
R v Radford (1985)
 Generally, mental diseases have an internal rather an external cause:
(1990).
External (transient) factors (such as intoxication) do not suffice
Examples:
 Psychomotor epilepsy
 Psychotic disorders, schizophrenia such as
 Somnambulism (sleepwalking)
 Hyperglycaemia: high blood sugar caused by a diabetic accused failing to
 Cerebral arteriosclerosis: hardening of the arteries causing reduced flow of take his or her insulin
 Reactive depression blood to the brain  Delirium tremens
 The weight of authoritative opinion argues that anti-social disorders, such as
‘psychopathy’ are not to be considered mental diseases as these persons are aware of the nature and significance of their conduct
2.
Because of the mental disease, the accused, at the time he/she committed the offence, must lack one of three capacities: a) The capacity to understand what the person is actually doing (exceptionally high

threshold – there are no existing cases available): as a result of a mental disease the accused has no understanding or is mistaken about the physical nature or physical consequences of his or her conduct. E.g. the accused places a baby on the fire thinking it is a log of wood. It is also used where the accused lacks an appreciation of the nature of the conduct e.g. the accused decapitates someone just to see what that person looks like without a head. b) No capacity to control his/her conduct (not in common law, High Court has suggested this should not be here – it has been criticised of being too broad): ‘acting under irresistible impulses’. E.g. the accused experiences an overwhelming desire to do something and cannot exercise restraint:
(1908);
(1930). It only refers to those cases in which the accused acts involuntarily because of a mental disease:
(1990) c) No capacity to understand that conduct is (morally, not legally) wrong (most cases falls in this section): modern view is to understand wrong in this context as morally wrong:
(1952);
(1936). The weight of recent authority suggests the term does not refer to a failure to understand that the act was legally wrong:
(1933)
Automatism, insanity, and involuntary conduct
Sane automatisms – lack of will, lack of voluntariness, and unconsciousness negate criminal liability, s 23(1)
(Qld) and at common law  complete acquittal
Insane automatisms – automatisms that result from a mental disease or from natural infirmity of the mind fall under s 27
(Qld):
(1990).
Diminished Responsibility
This is a partial defence to murder. If raised successfully, it mitigates murder to manslaughter: ‘voluntary manslaughter’
1.
Physical elements of murder + manslaughter
2.
Mental elements of murder s 302(1)(a)-(e)
3.
Defences
3.1
Insanity  qualified acquittal
3.2
Partial defences to murder
Provocation, s 304
Diminished responsibility, s 304A
Domestic Violence, s 304B
Section s304A
(Qld)
1.
Abnormality of mind
2.
Abnormality arises from one of three conditions
 Which substantially impairs the accused’s:

3.
Capacity: a) To understand what he/she was doing b) To control his/her conduct c) To understand that conduct is wrong
The threshold is much lower than mental disease, and abnormality of mind is only for special diseases. Insanity has abnormality of mind, but abnormality of mind is not insanity
1.
Abnormality of mind: ‘Anything beyond the limits marked out by the varied types of people met day to day’:
[1962];
[1989] e.g. severe depression, post-traumatic stress disorder, delirium due to high fever. Emotions (anger, jealousy, bad temper) and prejudice do not suffice
2.
Abnormality arises from a condition of arrested or retarded development of mind or inherent causes or induced by disease of injury: the list of conditions is exhaustive:
[1989];
[1982]
Intoxication
Unintentional intoxication is the only possible way intoxication can be used as a defence.
Intoxication in the criminal law
Depending on the circumstances, evidence of intoxication in Queensland may be used by the defence to support a claim that
Physical element: … the criminal conduct was involuntary [generally rejected]
Mental element: … the accused did not have the requisite “special intent” (subjective mental element), s 28(3)
(Qld)
Defences: … intoxication caused mental impairment, ss 27, 28(1), (2)
(Qld) OR
… it substantiates a claim of self-defence or provocation
Self-induced (intentional) intoxication is never a defence to any charge!!!!
Queensland:
[1920];
[1977].
Can the accused be convicted of assault notwithstanding that, by reason of his self-induced intoxication, she/he did not intend to do the act alleged to constitute the assault?
Offences of general/basic intent
Crimes whose definition implies a mens rea
(mental element) which does not go beyond the actus reus (physical element)
 Voluntary intoxication is irrelevant
Offences of specific/ulterior intent
Crimes whose definition implies a mens rea
(mental element) which does go beyond the actus reus (physical element)
 Voluntary intoxication can/may prevent forming the specific intent (s28(3)
(Qld)).
R v O’Connor (1980)

The intoxicated accused stabs the police officer who is trying to arrest him. At his trial the accused stated that he had no recollection of what had occurred.
Queensland: s 28
(Qld) contains no reference to the issue of voluntariness and automatisms  intoxication is irrelevant for the issue of voluntariness, or, in other words,
“self-induced intoxication provides an exception to the rule (under s23(1)) that a person is not responsible for involuntary acts”:
[1981]:
[1985].
Offences of general/basic intent  voluntary intoxication is irrelevant: offence in which the mental elements do not go beyond the physical elements, or , in other words, the accused does not intend anything beyond what is physically achieved:
[1976] e.g. assault, rape, unlawful use of motor vehicle as the mental elements do not exceed physical element.
But is it also for manslaughter, attempted rape even though the mental elements exceed physical elements
Offences of specific/ulterior intent  voluntary intoxication is relevant, s 28(3), it may mean accused did not have specific intent (but conviction for basic intent offence remains possible): offences in which the mental elements go beyond the physical elements, where the accused’s mind is aimed at consequ3nces beyond the physical elements of the offence: e.g. stealing (
[1961]); arson (
(1982)); robbery (
[1975]). But also: murder
(
[1961])
The outcome is desirable: no person can be acquitted because of intoxication. Even where intoxication is relevant, there is a back-up offence where the accused can still be criminally liable (e.g. without the intent to murder, there is still the offence of manslaughter)
Intoxication and self-defence, provocation
Ss271(2), 272
(Qld): intoxication may be relevant in assessing the accused’s belief about the existence of the threat or the necessity of the force used:
(1993).
However, the intoxication will not be relevant for determining the objective element of the defence.
[1982].
S 304
(Qld): evidence of intoxication may be relevant in determining the subjective element of provocation under s 304
(Qld). Intoxication may, for instance, make the accused more susceptible to losing self-control. But intoxication will not be relevant for determining the ordinary person test of the objective element of provocation
Intoxication causing a mental disease s 27
Intoxication may be relevant if it induces a condition such as delirium tremens or permanent brain damage:
Re Bromage
DPP v Beard [1920]

Intoxication causing abnormality of mind, s 304A
Intoxication may be the cause of an abnormality of mind for the purpose of the defence of diminished responsibility under s 304A providing it is protracted and has caused some injury to the accused’s brain:
[1982] Qd R 252;
[1989]
Unintentional intoxication as insanity, s 28(1),(2)
Intoxication (unless it is self-induced as it usually is), s 28(2)) may give rise to a defence under s 27 if it can be established that the defendant lacked the capacity (1) to understand what he/she was doing; (2) to control his/her conduct; (3) to understand that conduct was wrong, s
28(1)

Week 11 Offences relating to property
The purpose is to protect a person’s ownership, possession and similar rights and to prevent and punish infringements of these rights
Offences related to property in Queensland:
 Offences involving stealing, ss 390-417,
444A,457
 Burglary and related offences, ss418-427
 Identify fraud, s408D
 Computer Hacking, s408E
 Secret commissions, ss458-479
 Property damage and arson, ss458-479
 Forgery and personation, ss484-571  Fraud and deception offences, ss427A-442
Offences involving stealing
Common Law Queensland (1899) UK, Vic, SA (1968-)
Larceny
(1987); s1(1)
Larceny Act 1916 (UK)
1.
Physical elements a) Property, capable of possession and removal b) Possession/ownership of another c) Taking and carrying away d) Without consent of the owner
Stealing
S 391(1)
(Qld): alternatives – taking and converting.
1.
Physical elements a) Things, capable of being stolen s 390 b) Belonging to another c) Taking or converting s
391(1) d) Lack of consent not required
Theft
S 73
1958 (Vic): appropriation
1.
Physical elements a) Property capable of being stolen s 71(1) b) Belonging to another s
71(2) c) Appropriation s 74(4) d) Lack of consent not required
2.
Mental elements 2.
Mental elements 2.
Mental elements a)
Fraudulently b)
Intention to deprive permanently a)
Fraudulently: special intention s391(2)(a)-(f) a)
Dishonestly s 73(2) b)
Intention to deprive permanently s 73(12) b)
No claim of right s 22(2)
Don’t use these interchangeably c)
No claim of right
Stealing s 398
Physical elements a) Taking or converting b) Things capable of being stolen c) Belonging to another

Mental elements a) Fraudulently: special intention b) No claim of right
Aggravated penalties s 398 (‘Special cases’) a) Offences analogous to stealing s 399 are both impractical, not used as much anymore a) Taking
1 st alternative: requires physical movement or dealing with property by physical act (so-called asportation), s 391(6)
2 nd alternative: dealing with the property in a way inconsistent with the right of the owner:
e.g. keeping the property, selling it, changing its appearance, also stealing by bailee, stealing by person who finds lost property if finder knows owner or believes owner can be discovered, s
391(4),(5). Not mere use of property, offer/preparation for sale, mere failure to return (
[2000]) b) Things capable of being stolen s 390
S 390: anything (a) moveable or (b) capable of being made moveable
Property, s 1:
 Animate + inanimate things
 Money
 Electricity, energy, gas, water
 Plants, animals (except wild animals, cf
 ss1(e), s 392(1))
“any property real or personal, legal or equitable, including things in action and other intangible property” s 1 e.g. land cannot be stolen, things that don’t belong to anyone c) Property belonging to another (“of any person”)
 Property that does not belong to anyone (or has been abandoned) and property which accused owns and in which nobody else has a propriety interest cannot be stolen.
 Property may be stolen from the owner, including part-owner, s 391(2)(a)
 Property may be stolen from any person who has a special property in the thing, s
391(2)(b), (2AA)
 Property may be stolen from any person having possession of control s 391(7)
 Property may be stolen from any person having a relevant interest in the thing, s 396
 Property may be stolen by the owner, if others have proprietary rights in or others possess the thing, cf s391(7)
The owner doesn’t change when the property is moved somewhere else.
Possession does not necessarily mean ownership.
Property obtained as a result of mistake
Lack of consent is not an element of stealing in QLD. Hence property passes if transferred with consent of the owner, so property may no longer belong to another person

 Is it stealing if property passes because of a mistake by the owner?
(1) It is not stealing because property has passed and consent is irrelevant
(2) BUT ownership does not pass if the mistake was a fundamental mistake it is fundamental if it relates to the identity of the person to whom it was transferred: to the identity of the thing that is to be delivered; or the quantity to be delivered.
Mental elements: a) Fraudulently – a person is deemed to act fraudulently, s 391(2)(a)-(f). This is an exhaustive list, and therefore START AT THE TOP b) No claim of right s 22(2)
No liability for stealing if at the time of taking or converting, the accused honestly believed he/she was exercising a legal claim of right, s 22(2)
= exception to s 22(1) that ignorance of law is no excuse
 Belief has to be honest, not also reasonable
 Belief is (obviously) not held if it can be established that the accused acted fraudulently
 Belief has to relate to a legal claim of right, not a moral claim:
Robbery:
Physical elements
Stealing
Using or threatening violence, s 409
Mental elements
1.
Fraudulently: special intention
2.
Use of violence/threats in order to obtain the thing stolen or to prevent/overcome resistance, s 409
3.
No claim of right
Aggravations s 411(2):
Armed robbery
Accused is in the company of 2 or more others
Accused causes wounds or uses other personal violence
Attempted robbery, s 412 – requires proximity, mere preparation not criminalised
Assault with intent to steal s 413 – preparation is criminalised (i.e. only assaulting and no stealing)

Burglary
Physical
 Entering or being in a dwelling ss419(1), 418(2)
 Dwelling of another ss 419(1), 1
Mental
 Intent to commit an indictable offence s 419(1) – any indictable offence suffices (not necessarily stealing, can be killing, rape, destroying)
Aggravated
 Entering by means of any break, ss
419(2), 418(2), (3)
 Offence committed at night
 Use or threat of violence
 Armed burglary
 Burglary in company
 Damage of a threat to damage property
 Actual commission of indictable offence
Offences similar to burglary
Entering or being in premises (other than a dwelling) with intent to commit an indictable offence s 241(1)
Aggravations entering by means of any break, actual commission of indictable offence
Possession of things in connection with unlawful entry s 425
Unlawful entry of a vehicle with intent to commit an indictable offence s 427
Receiving s 433
Physical elements
 Receiving – proof of possession or aiding in concealing suffices
 Tainted property ‘anything obtained by way of an act constituting an indictable offence
Mental element
 Reason to believe it is tainted property s 433(1)
Unclear whether the element is assessed subjectively or objectively
Penalty: depends on the type of property/type of receiving s 433(1)(a)-(c)
Offences involving dishonesty
Stealing vs. dishonesty
Offences of dishonesty overlap with stealing: usually the offence are used when stealing offences cannot be established
Double jeopardy – can charge for theft and convict fraud?
Offences under s 408C
 Misappropriation of property, s
408C(1)(a)
 Dishonesty obtaining property from another s 408C(1)(b)
 Inducing a person to deliver property, s
408C(1)(c)
 Obtaining a financial advantage by deception, s 408(1)(d)

 Causing a pecuniary or other detriment to any person, s 408C(1)(e)
 Inducing a person to do any act or to abstain from any act that a person is
Physical elements
Obtaining s 408(3)(e)
Includes to get, gain, receive or acquire in any way lawfully entitled to abstain from doing/to do, s 408C(1)(f) and (g)
 Making off without payment, s
408C(1)(h)
Obtaining possession suffices
Obtaining by owner’s mistake is possible s 408C(f)
Property includes credit, service, any benefit or advantage s 408C(3)(a)
Mental element:
Dishonesty
No code definition  common law
[1973] dishonesty is decided by applying “the current standards of ordinary decent people”  dishonesty is decided (only) objectively
[1982]  dishonesty is decided objectively and subjectively (this approach has been supported by many cases)
(1998) HCA: Jury should apply the current standards of ordinary decent people, no instructions, no subjective element needed (in relation to a charge of defrauding the Cth) i.e. going BACK to
.
The general view is that
also applies in Qld
Aggravations s 408C(2)
Misappropriation
Property damage and destruction
Wilful damage s 469
Property of another s 1
Damage or destruction – result property imperfect or inoperative
‘Wilful’ – held to be equivalent to intentional or recklessness in Qld:
[1981]
Defences: unlawfully
S 458 consent of the owner, authorisation, and other special justifications and excuses
General defences
Penalty
5 years s 469

Higher penalty for ‘special cases’ listed after s 469: explosions, graffiti, damage to cemeteries, aircraft