Crim Notes Semester 2

Criminal Law Semester 2 Notes

Week 1 ATTEMPTS

A person who does not fulfil an intention to commit any offence, under certain circumstances, will still be charged with an attempt to commit the offence.

The scheme of the code in relation to attempts is to establish a general attempt offence, and to supplement that with some specific attempt offence.

Sec535 of the code makes it an offence to attempt to commit an indictable offence, punishment for which is determined under sec536, 537, 538. In addition to these general provisions, there are also a number of specific provision (eg s306 attempted murder). Other statutes may also make provision for attempts, eg, DMA;

Sec4 of the code defines attempts. There are four elements:

Intention to commit offence;

Begins to execute intention by means adapted to its fulfillment;

Manifests intention by overt act;

Does not fulfil intention so as to commit the offence (unnecessary to prove does not fulfil intention).

The onus is on the Crown for the first three elements - note it is not necessary to prove that the offence was not committed; intention to commit an offence is essential, even where the offence itself does not include an element of intent (eg rape). However, proof of intention alone is not sufficient to prove attempt. The second element of an attempt is that the accused must begin to execute the intention by ‘means adapted to its fulfillment’.



ELEMENT 1: Intention to commit offence (offence see sec2 ‘punishable act or omission); the offence that was attempted doe not have to have a specific intent element;



ELEMENT 2: accused must begin to execute the intention by ‘means adapted to its fulfillment’. Must get past preparation – at what point does mere preparation end and the conduct mature into an attempt? Various approaches have been suggested – one is the last act test, which requires consideration of whether the accused has done the last act in his/her power towards committing the offence

( Eagleton ). This has been rejected on the basis that in many cases it leaves little practical scope for the law of attempt because the last act may result in the commission of the offence itself ( Williams, Chellingworth, Edwards ). Eg, on strict application there would be no conviction of attempted murder, by shooting, unless the trigger was pulled ( White ). Another approach was to require that the act of the accused form part of a series of acts which would constitute its actual ommission if not interrupted ( AG Reference no1 ). This test has also been criticised because it falls short of defining the exact point the series of acts can

1

Criminal Law Semester 2 Notes be said to begin: Campbell.

In Williams, another approach was adopted – the unequivocally test, whereby the physical act necessary to constitute an attempt is regarded as complete if the accused does an act which is a step towards the commission of the specific crime and that act cannot reasonably be regarded as having any other purpose than the commission of that specific crime (see also

Nicholson, Caitlin, White ).

See Williams where it says that it is unlikely that a definite test will ever be adopted because then people could work out how to escape their act being an offence and thereby get away with crimes.

So there is no single test, and it is thus a question of fact as to whether the conduct of the accused is sufficiently proximate to the commission of the offence.

(proximity test)



ELEMENT 3: accused must manifest his/her intention by some overt act, that is, an act capable of being observed by someone else – mere intention then, is insufficient to amount to an attempt.

IMPOSSIBILITY

The definition of attempt in sec4 contains four provisos

– it is immaterial, except for the purposes of punishment:

whether the offender does all that is necessary for completing the commission of the offence;

fulfilment is prevented by circumstances independent of will;

the offender desists of their own motion;

impossibility.

It is immaterial that by reason of circumstances not known to the accused it is impossible to commit the offence – this provision served to make the accused responsible for an attempt where he/she failed to complete it because of ineptitiude, inefficiency or the adoption of insufficient means – for example:

the pick-pocket who dips into an empty pocket;

the murderer who uses a non-lethal dose of poison (Collingridge);

the burglar who employs an insufficiently strong jemmy;

the thief who enters a room to steal a particular diamond that is not there because the owner has removed it (White);

the accused who attempts to receive stolen goods which, it turns out, are not stolen (Shivpuri);

the accused who attempts to import a prohibited substance where, unbeknowns to him, the substance is not prohibited (Mai and Tran);

In these situations, the intended crime was not committed because of fatual impossibility due to circumstances not known to the accused

– nevertheless, he will be guilty of an attempt provided the offence attempted was a recognised

2

Criminal Law Semester 2 Notes offence, the proximity test is satisfied, and there was an intention to do it (Lee;

Britten v Alpogut);

 ‘means adapted’: the accused must have means adapted to the fulfilling of his

/ her intention

– this is debated – but it is safe to assume it means: it is sufficient for the accused to have begun to put his/her intention into execution by doing an act that is more than merely preparatory to the commission of the offence.

NOTE sec 583 of the code makes an attempt an alternative verdict to the principle offence (eg makes attempted murder an alternative verdict to murder).

DOUBLE JEOPARDY

The code makes provision for special pleas in the event that persons are charged with an offence for which they have already been tried and acquitted/convicted, or punished (double jeopardy and double punishment).

The burden to establish either plea rests with the accused on a balance of probabilities. These special pleas are conceptually difficult. Their purpose is to ensure fairness by preventing a person being placed in jeopardy more than once or being punished more than once for an act or omission.

Double Jeopardy: S17 Code:

‘it is a defence to a charge of any offence that the accused person has already been tried, and convicted or acquitted upon an indictment …etc’

If any of the four rules in sec17 are available, then it is a defence to any offence:

O’Halloran v Byrne.

former conviction: autrefois acquit ; former acquittal: autrefois convict

Note

– it does not afford protection following the dismissal of a complaint in summary proceedings.

Note

– s17 also provides a defence to a charge of an offence where the accused could have been convicted of that offence, as an alternative, on an earlier occasion. In that way, the section operates in conjunction with those provisions of the code which enable a person to be convicted, in the alternative, of an offence other than that which is named in the indictment – those provisions are s575-589.

So, if a person could have been convicted of manslaughter at the time of the trial as an alternative to murder, then this provides a defence if they try to convict him of manslaughter later.

3


An illustration of the operation of s17:

Person charged with murder and manslaughter, and is either acquitted or convicted; s17 provides a complete defence to a subsequent charge of murder arising out of the same set of facts; also provides a defence if the accused is subsequently charged with manslaughter – this is because the accused, at first trial, was in jeopardy for manslaughter as well as murder because it is an alternative verdict during the first trial (s576). Thus at the subsequent trial for manslaughter, the accused is in jeopardy for the second time for that crime and s17 may be raised y the accused. The obverse is also covered by the provision – eg, say the accused were charged with manslaughter at the first trial and either acquitted or convicted

– if he is later charged with murder for a second trial, he is again in jeopardy for manslaughter because manslaughter is an alterntive verdict for murder at the second trial (s576).

Raising s17

The accused who wishes to raise the plea under s17 will do so by (instead of pleading not guilty or guilty) stating that he/she has been lawfully convicted or acquitted of the offence for which he/she is in jeopardy on that second occasion, and in doing so, it is sufficient for the offence to be referred to in terms by which it is commonly known (see ss598(3)-(5), 602) – because it is a defence, the onus is on the accused

– must be discharged on the balance of probabilities

(Coughlan v

Young).

Successfully Raising s17

To successfully raise s17, the earlier proceedings must have reached finality in the sense that the accused was convicted or acquitted. Where in the first trila there was a nolle prosequi , this is not enough, or if the jury failed to find a verdict, this is not enough. Also where a new trial is ordered by an appeal court after quashing a conviction, the plea will not succeed (Nicholas ).

Sec17 is not limited to indictable offences, and potentially will have application in any Court for any type of offence – in practice, it is most likely to arise for an indictable offence.

Note – one limitation – it is a defence if you are tried twice for an injury to the same person, but you can still be tried at a later date for injury to a second person arising out of the same incident.

4 rules for double jeopardy:

1. if you were tried and convicted upon an indictment in 1997 – what were the alternative verdicts open on this indictment? You are then charged with an offence in 1999 - Was the 1999 charge amongst them? Raise the defence under rule 1 because might have been convicted of it in 1997 if it was an alternative verdict.

4


2. If in the past trial in 1997 you were tried and acquitted upon an indictment, look at alternative verdicts ; in 1999 present trial, if you are charged with an offence, if it was an alternative in the 1997 trial, this will be a complete offence;

3. If you had already been acquitted on indictment of an offence of which might be convicted on the present indictment – raise this defence if you are now charged for an offence which was an alternative verdict on the first trial;

4. If you had already been convicted of an offence of which might be convicted on the present indictment or complaint – look at previous alternatives and if so, use this defence.

5 th rule – additional rule: when summary offences are dismissed:

- s700 – may issue a certificate of dismissal which is a bar to further prosecution for the same cause; only available after hearing on the merits

–

Hay ex parte

Patane – ie, after trial and the matter being thoroughly gone into; applies to both simple offences and indictable offences being dealt with summarily.

How do you find the Alternative Verdicts?

2 sources:

1. alternatives actually joined on the indictment (s567 & 568 code);

2. alternatives available in Chapter 61 of the Code

– eg, s575 circumstances of aggravation; s317 doing GBH with intent;s576 murder & mansalughter (note extends in the case of motor vehicles to dangerous driving vide 328B; s578 offences of a sexual nature; s581 offences of dishonesty; s583 attempts to commit always an alternative.

General Verdicts vis a vis Partial Verdicts:

O’Halloran v O’Byrne : eg indictment charging count of rape – verdict of ‘not guilty’ is a general verdict; eg indictment charging a count of rape and a count of indecent assault with intent to rape and a count of indecent assault – say there is a verdict of guilty on the third count, but can’t agree on counts 1 & 2, THIS IS

NOT a general verdict – it is a partial verdict – R v Simpson .

DOUBLE PUNISHMENT: S16 Code:

A person may not be punished twice for the same offence. Sec16 of the code provides an accused with protection against being punished twice for the same act or omission. This section operates where a number of offences are joined in the sale proceedings or where there are successive trials.

What is the same act or ommision? Depends on unity of time and place

–

Hull; same punishable act

–

Gordon .

The application of sec16 depends on the interpretation of the word ‘act / omission’. In the majority of cases where sec16 has been tried, it has been held

5

Criminal Law Semester 2 Notes to have no application. Several cases relate to the driving of a motor vehicle where the accused has been charged with two offences arising out of the one incident. These have included driving under the influence of alcohol and dangerous driving: Gordon, ex parte; Tricklebank .

In Gordon , the accused, under the influence of alcohol, was driving on the wrong side of a divided highway and collided with a motor cyclist

– he was convicted and punished in a magistrate’s Court of being in charge of a motor vehicle while under the influence. Subsequently, he was convicted of dangerous driving causing grievous bodily harm but no penalty was imposed in respect of that offence on the basis that he had previously been punished for the same act

– appeal held – that s16 had no application because the punishable act in each offence was different. Williams J pointed out that the punishable act in respect of the drink driving offences was the act of driving in a particular condition

– the manner of driving was not relevant. On the other hand the punishable act in respect of the dangerous driving charge was the act of driving in a particular manner – he condition of the driver not relevant : ‘it seems to me the proper test is whether the same wrongful act or ommission which previously resulted in conviction and punishment is the central theme, the focal point and the basic act or omission in the later offence charged.

This broad approach of the word act was also adopted in Philip V Carbone (no2)

– there the accused had driven a motor vehicle into a stationery vehicle in which two people were injured. He was convicted and punished on one count of dangerous driving causing bodily harm, but although convicted of such a second count, no punishment was imposed due to s16. Appeal – held according to definition of ‘offence’ in s2 code, the act which makes the accused liable for punishment was the result of his driving

– and that was not limited to the mans by which that was brought about. Pidgeon ACJ described the gravaman of the offence as causing bodily harm to a person by driving a vehicle in the specified manner. Because bodily harm was caused to separate victims, there were separate punishable acts and s16 had no application. This interpretation will give limited scope to the provision.

Kiripatea : s16 held to apply.

6


Weeks 2-3: PARTIES

Complicity provisions apply to all offences in Qld

– see sec 2 Criminal Code Act

1899.

Where more than one person is involved in the commission of any offence, criminal responsibility may be determined in accordance with ss7, 8 and 9, the party provisions of the code. A person who is party to an offence is deemed to have committed the offence and may be charged with having committed it. Under s 7, the following categories of parties are given:

(a) every person who actually does the act that constitutes the offence;

(b) every person who does an act to enable or aid anyone to commit the offence;

(c) every person who aids in committing the offence; any person who counsels or procures anyone to commit the offence.

In their operation , the categories have been held to reflect the common law:

Wyles ex parte; Johns; Webb ex parte.

The scope of s7 is extended through s8 & 9.

7(a) Offence Jointly Committed where an offence is jointly committed (for example, where 2 persons combine to perform the acts which constitute the offence), the liability of both arises under s7(a). Where two people open a window in order to break another’s premises with the intention of stealing property within, each of them is deemed to have committed the offence of housebreaking or burglary as a principle offender under s7(a). Also, where one person steals property from the victim, while the other performs violence on the victim, both will have committed robbery. These parties who a ctually do the offence are called ‘principles in first degree’ at common law.

This provision extends to those who make an omission.

7(b) Aiding / Enabling

7(c)_Aiding

7(d) counselling and procuring

These sections operate to make the aider or counsellor liable in a derivative manner – that it, liable for the offence actually perpetrated by another – thus, in the burglary example above, of only one had entered the premises, a person who stayed outside to keep watch would be liable under 7(b) or (c).

sec7(b) covers the enabler – the person who makes the crime possible by enabling it or aiding it. 7(b) parties are known as ‘accessories before the fact’ at common law;

7(c) covers the person who aids in committing the offence also;

Similarly, under s7(d), a person who counselled or procured the thief to commit the offence would also be liable for burglary. Nevertheless, acessorial

7

Criminal Law Semester 2 Notes liability is not entirely derivative in nature because, in some situations, the accessory has been found guilty of a crime different from that of the perpetrator.

S 7 is applicable in circumstances where an offence is comitted – a strict interpretation of these words would mean that the aider or counsellor could not be liable if the perpetrator was acquitted or not brought to trial at all: Miller. This rule has now been swept away, and one conspirator can now be guilty regardless of the guilt of his co-conspirator. So provided there has been the commission of an offence by someone, there can be liability for aiding counselling: Cain v Doyle; Lun; Remilland .

Reliance on the definition in sec2 of ‘offence’ leads to the same conclusion – persons encompassed by 7(a)(b)(c)(d) are liable when a punishable act has been done: Borg; Saunders; Wyles ex parte; Warren and Island.

Lopuszynski:

‘suppose the charge is one of rape – the complainant may not be able to identify the alleged man who raped her

– and there might be insufficient evidence to succeed – but if his alleged accessory made a full confession, which confirms there was a rape, and identifies the person who committed it, and contains admissions he aided that person in committing it, I cannot see why the alleged accessory cannot be convicted’

Under s7, the aider or enabler can only be convicted of the same offence (or alternative) as the person who does the act or ommission (see sec10A(1).)

The Degree of Knowledge of the Offence:

Must the person who enables the commission of the offence know that they are doing so?

There is obviously a chance of overlap here between s7(b) and (c).

s7(b) says the the person who does an act to aid or enable another to commit the offence; 7(b) says the accessory must have done the act for the purpose of enabling or aiding the perpetrator to commit the offence. Must know what the offence is or might be ( Jervis ). Thus, must ascertain objectively the common plan or enterprise.

7(c) says the person who aids anyone in commiting the offence. According to sec7(c), the accessory must ‘knowingly’ aid the perpetrator – thus will not be criminally responsible if unwittingly aided eg driver who innocently drove the accused to the scene of the crime: see Beck; Carden . Must know what the offence is or might be ( Jervis , approving Solomon ); intentional participation and knowledge of the essential facts that constitute the offence ( Giorgianni );

To Ascertain the Common Plan: measured by knowledge of foresight of the participants ( Jervis );things necessarily in the contemplation ( Johns ); includes

8

Criminal Law Semester 2 Notes things foreseen though not agreed to ( McAuliffe ); must know the essential facts that constitute the offence.

Although the accessory must knowingly aid procure of counsel, it is not necessary that the accessory desired or intended that the crime of the perpetrator be committed and guilt may arise even where the accessory is indifferent to the commission of the offence: Lynch v DPP for Northern Island

– where the accessory was held to have aided a murder by driving the murderer to the scene, even though there may have been evidence that the accessory regretted the crime or was horrified to see it: National Coal Board v Gamble .

It is not necessary the accessory know the precise crime for which the aid, counselling, or procuring is given: Ancuta . Eg, where the accessory drove a terrorist to a hotel, knowing he was either going to deposit a bomb or shoot people, accessory held liable for murder caused by the consequential bomb blast: DPP northern Island v Maxwell.

In many cases where the party provisions apply, there is some consensus between the accessory and the perpetrator. This will usually occur when aiding or counselling are involved and it will be less likely in the case of procuring.

However, there will be situations where there is no formal agreement between the parties and where the perpetrator is unaware of the involvement of the accessory: Rannath Mohan.

It thus becomes a question of whether the accused has done an act for the purpose of aiding, counselled, or procuring the perpetrator in the commission of the offence – obviously there will be some overlap between 7(b) and (c). 7(b) also appears to include the person who intended to aid, did an act which was calculated to aid, but who did not in fact aid in the commission of the offence – perhaps because of an act or ommission, through no fault of the person, actually tended to hinder the successful commission of the offence.

Under 7(c), aiding may arise in circumstances where the accessory does not provide physical assistance to the perpetrator in the carrying out of the offence.

There must be some positive encouragement on the part of the accessory, eg see Coney.

Note the aid given by an accessory can be by an omission – see chapter 27 code.

7(d)

the person who counsels or procures anyone to commit the offence – procure is defined to mean: ‘cause or bring about’. So you can advise, urge, encourage, solicit the commission of the offence or conspire with another for its commission

( Stuart; Oberbillig ). Additionally, the accessory may have procured, in the sense of ‘produced by endeavour’ the commission of the offence:

Solomon . Under sec7(d), the person can be either charged with the offence, or with counselling or procuring its commission. The common theme is that the procurer plans the

9

Criminal Law Semester 2 Notes commission of the offence, and therefore carries the primary responsibility for causing it to occur. In such instances where the person who was encouraged to do the offence (called ‘the principle’) may have a defence, but the law of causation will often be used to provide them with liability anyway.

A combination of s7(1)(d) and s9 will find a counsellor guilty if:

offence committed was counselled, but no way of committing was counselled (s7(1)(d);

the offence committed was committed and was committed in the way counselled (s7(1)(d));

different offence committed to that counselled but facts constituting the offence actually committed are a probable consequence of the counselling (s7(1)(d) and s9);

the offence committed was counselled but was committed in a way not counselled and the facts constituting the offence actually committed are a probable consequence of carrying out he counsel (s7(1)(d), and s9) – eg Stuart, counselled to commit arson but commited murder.

(see section below for s9).

Because s7 is determined subjectively, the accessory will not be criminally responsible for any further offence which falls completely outside the scope of the accesory’s contemplation.

At common law, it has been held that the accessory is liable for punishment for the secondary or incidental offence so long as it was contemplated as a possible incident of the originally planned venture: Johns; Miller; Chan Wing-Su.

Although the test may seem far reaching, it is limited by the requirement that it must have been contemplated by the accessory

– albeit as a possibility, and, thus the test is still subjective. At common law this is referred to as the doctrine of common purpose and the changing nature of the test for accessorial liability at common law can be seen in McAuliffe.

(See sec8 below)

Innocent Agent:

The last sentence of the section provides that where the accused procures another to do an act that would have been an offence if the accused had done it, the accused is not guilty of the offence. Eg, if the accused had intentions of killing someone by poisoning their food, and the third party innocently served the poisoned food to them, the final sentence of s7 makes the accused liable for the killing and the 3 rd party is not guilty of an offence: White v Ridley; Cogan .

S7 & 8: The common purpose rule:

Under s7 & 8, the accessory is deemed to have committed the offence committed by the perpetrator – in Qld, these words as they appear in sec8

(offences committed in prosecution of common purpose) have been interpreted

10

Criminal Law Semester 2 Notes in a way which prevents the perpetrator and accessory from being convicted of different offences :

Barlow : three perpetrators were convicted of the murder of victim who was beaten to death in prison

– Barlow did not take part in the killing, he was acquitted of murder but convicted of manslaughter on the basis of his accessorial involvement, as he requested the victim to go to the gymnasium (where they killed him), and he spoke with the perpetrators afterwards. Trial judge’s direction was that different verdicts could be returned

– jury followed this and this was in accordance with previous provisions in Qld: see for example, Jervis . Appeal court

– held murder and manslaughter were separate crimes, and Barlow could only be convicted of murder along with the perpetrators, or be convicted

– so his conviction was quashed. Court followed Hind and Harwood . Conviction quashed because lack of evidence of accessorial involvement. The decision relates specifically to s8

– however, s7 is also expressed in terms that the accessory is deemed to have committed the offence committed by the perpetrator and it would seem that reasoning in those cases has equal application to s7.

Sec8 (offences committed in prosecution of unlawful purpose) operates independently to establish a separate basis of liability beyond 7(b) and (c).

Liability under s8 requires proof:

(a) of a common intention to prosecute an unlawful purpose (consider the scope of the intention – what was the unlawful purpose agreed to by the parties? Miller );

(b) that an offence was committed in the prosecution of the common unlawful purpose ( Philips v Lawrence; Hind and Hardwood ); and

(c) that the offence committed was of such a nature that its commission was the probable consequence of the prosecution of the common unlawful purpose: (this imports a remoteness test and does so in terms which extend accessorial liability beyond that which is found in s7, see

Philips and Lawrence.

‘Probable consequence’ has been held to be when a person of average competence and knowledge might be expected to foresee as likely to follow upon the particular act; though it may be that the particular consequence is not intended of foreseen by the actor

– from

Stuart , per Gibbs J ) .

So, sec 8 extends the scope of secondary liability of sec7 in cases ‘where two or more persons form a common intention to prosecute an unlawful purpose’. The common plan/purpose could be for them to be joint principles in committing the offence; or for one to be the principle and one to be the secondary party. All participants are then liable for any offence committed by any one of them in the prosecution of the unlawful purpose, as long as the offence was a probable consequence of prosecuting it. Eg when a murder is committed in the course of an armed robbery, s8 may operate to make all the robbers liable for the murder, even though it was unplanned. The ‘common purpose’ includes any reasonable inferences drawn from circumstances ( Johns ). On the surface, s8 would appear to encompass the offence which is the subject of the common purpose as well as

11

Criminal Law Semester 2 Notes an additional offence. There would however, be liability for the planned offence under the law of joint participation or aiding. It has therefore been said that s8 applies only to offences falling outside the common purpose ( Jervis).

The condition for extending the scope of secondary liability is that the additional offence should be a probable consequence of carrying out the common purpose.

This test is objective not subjective. It is not required that the consequence actually be foreseen by the secondary party ( Stuartt).

-

‘Offence committed of such a nature that its commission was a probable consequence’;

use the forseeability of average person ( Brennan );

-

‘apparent to ordinary person in accused’s position’ ( Stuart, Jacobs J);

-

‘a substantial or real chance’ ( Hinds and Harwood , per Pincus J).

The equivalent rule at common law requires actual foresight of the further offence but only as a possibility ( Johns ).

A probable consequence has been held to mean no more than one which is a real or substantial possibility ( Hind and Harwood ). Moreover, it has been suggested that where a plan contemplates contingencies, the issue is simply whether the offence was a probable consequence of carrying out the contingent plan. The likelihood of the contingency eventuating can be discounted ( Hind and

Harwood)

So

– for offences beyond the scope of the common plan (those not contemplated, forseen by accused, or merely incidents) these can still be covered by s8 – may still extend criminal responsibility.

Consider the Liability of the Persons Involved:

-

The assisting party is known as the ‘secondary’ party;

These may be convicted of the offence for which they have provided assistance just as if they were principles;

the secondary party can be convicted even though the primary party is not;

s8 can make both parties jointly liable for any offences committed by them;

s9 can make any person who provides counsel also guilty of the offence;

mere presence does not constitute secondary participation, as opposed to encouragement etc;

can be convicted of differing offences : eg, the secondary party can have greater culpability and commit a more serious offence

– in this case, the secondary can get charged with a more serious offence (eg aggravated), and the principle can commit a lesser offence;

or if the secondary offender is deemed to have done the act of the principle, the secondary offender will not be liable to same extent as principle offender; secondary offender deemed only to the extent that act done;

if however, there is a common purpose, secondary offender considered to have done that act of the principle offender in so far as the act is covered by a common intention.

12


Withdrawal from the plan: ( Menniti)

Withdrawal from the plan can be a defence. In Menniti, appeal court took the view that certain common law principles respecting withdrawal could be considered in interpreting the scope of all forms of secondary liability. The common law has accepted this defence but subject to the requirement that the contribution must be cancelled out, or according to some looser versions, that at least the secondary party has done everything that can be reasonably expected to neutralise his contribution and matters must not have progressed so far that the withdrawal action was incapable of being effective.

Dual tests of White v Ridley :

acts of withdrawal must be capable of being effective PLUS accompanied by such reasonable action as can take to undo previous participation (Thomas

J);

necessary to actually cancel previous participation such that if offence committed is by intervention of new cause (Stephen J).

S9 code: mode of execution immaterial:

Is a person counsels or procures another to commit offence A, and the person commits offence B instead, in what circumstances will the counsellor/procurer be guilty of offence B? see s9 code. It is immaterial that the wrong offence is committed – provided that in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel. In either case, the person who gave the counsel is deemed to have counselled the other person to commit the offence committed by him (quoted from the code section9). In s9, it must be shown that:

(a) the accessory counselled the perpetrator to commit an offence;

(b) an offence was committed by the perpetrator after such counsel

( Stuart ); and

(c) the facts which constituted the offence actually committed were a probable consequence of carrying out the counsel.



so if these requirements met, the accessory is deemed to have committed the offence and it is immaterial whether the offence actually committed is the same as that cunselled or a different one, or whether the offence is committed in the way counselled, or in a different way.

13


Week 5 Section 23 Code – INTENTION AND MOTIVE

Pursuant to sec 23 of the code, a person is not criminally responsible for an act which occurs independently of the exercise of will, or for an event which occurs by accident.

23(2) Intention Immaterial unless ‘expressly declared to be an element of the offence’ – so, unless the intention to cause a particular result is declared to be an element, or unless a person’s motive is otherwise expressly declared to be an element, the result intended to be caused by a person and the motives which induce the person to do the act, are immaterial so far as criminal responsibility is concerned. However, there are many sections of the code which make express references to intention. Widgee Shire Council – motive is immaterial.

23(1) Contains 2 excuses. A person is not criminally responsible for:

(a) an act or omission tha t occurs independently of the exercise of the person’s will, or for;

(b) an event which occurs by accident.



Note

– these excuses are made subject to the express provisions of this code relating to negligent acts and omissions (eg ss288 & 289);



The effect of this qualification

– see

R v Young

– accused was convicted of manslaughter. Crown relied on s285, that the accused failed to provide the necessaries of life for the infant, thereby accelerating the infant’s death. On appeal, it was argued that the section (s285) was not an express provision relating to negligent acts or omissions, and that thus s23 was open as an excuse. Majority rejected this submission, so, s23 not open as an excuse for negligent acts;

 Deliberate breach

– s23 applies;

 Negligent breach – s23 doesn’t apply – eg Dabelstein - the pencil case where argues death was the result of an accident. The crown relied on criminal negligence, so therefore s23 could not apply.

2 limbs of s23(1): (a) acts independent of will

(b) accident

S23(1)(b) ACCIDENT

Note the distinction between willed acts and intended results. The event referred to in this provision is the result which is brought about by the accused’s conduct.

Thus, in homicide cases, it will be the death of the victim ( Mamote-Kulang ). In other personal injury cases, it will be the wound which results or the touching which constitutes an assault ( Kaproronovski ). The provision may also apply to certain property offences, eg wilful damage to property (Kissier).

‘A person is not criminally responsible for an event which occurs by accident’ R v

Auld.

14


Test for accident – from Kaporonovski: ‘it must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person .

In Kaporonovski , 2 men arguing in bar – accused insulted by victim, and struck him a blow with glass that was in the victim’s hand – caused GBH – was this an accidental event? 3 elements must be established to be an accident:

1. event must be intended by accused (subjective test);

2. not foreseen by accused (subjective)

3. not reasonably foreseen by an ordinary person (objective)

R V Taiters restated this test. ‘Crown is obliged to establish that the accused intended that the event in question should occur, or foresaw it as a possible outcome. OR that an ordinary person in the position of the accused would reasonably foresee the event as a possible outcome.’

note, knowledge peculiar to the accused is relevant (Kitto J in Vallance and

Philip J in Knutsen ).

note, event must be so unlikely that an ordinary person would not have taken it into account

–

Vallance v The Queen .

The exact nature of an event need not be foreseen, just likely or probable

( Knutsen - the woman left on side of road and was then run over);

Not an accident if certain or more probable than not or substantial likelihood.

 SO, an ACT + EVENT = Criminal Responsibility. (eg act of pulling trigger + event of death means there is criminal responsibility). There must have been some occurrence or happening which intervenes between the willed act of the accused and the event comprising the offence charged ( Hodgetts and

Jackson ). There are certain constitutional defects which contribute to the severity of the event. An example is the eggshell principle

– historically s 23 did not operate where the accused’s criminal acts were exacerbated by a defect in the victim ( R v Matyr ). Although there are cases where there has not been the need for an intervening cause eg Van Den Bend.

In this case, it was held that s23 does apply even if no intervening cause. Recent amendments to the code have overruled Van Den Bend , reinstating the earlier position.

 The evidential onus is on the accused to raise the excuse, then shifts to the crown to negative beyond reasonable doubt.

Sec 23(1)(a) ACTS INDEPENDENT OF WILL

Provides that a person is not criminally responsible for an ACT or OMISSION that occurs INDEPENDENTLY of the EXERCISE of the person’s WILL.

- note the evidential onus is on the accused ( Queen v Falconer ). Crown then must negative beyond reasonable doubt.

15


2 main issues:

ACT?

INDEPENDENT OF WILL?

The focus of this excuse is on the accused - an accused is not guilty for the consequences that occur as a result of an act that occurred independently of their will.

ACT:

3 judicial views of the word ‘act’: wide view of Dixon in

Vallance ; intermediate of

Barwick CJ in Timbu Kolian v R ; and narrow views described in Vallance, also

Falconer , and Kaporonovski.

These can result in quite different conclusions to be drawn from the same set of facts.

The current view on the meaning of ‘act’ for the purposes of s23(1)(a) is the narrow view as from Vallance & other cases above. From Falconer : ‘ bodily movement over which an accused has control and its contemporaneous and inevitable consequences’.

BUT NOT ACTS OF OTHERS eg complicity.

INDEPENDENT OF WILL:

Falconer:

’the notion of will imports a consciousness in the actor of the nature of the act and a choice to do an act of that nature’

BUT NOT s24 mistake of fact and s28 intoxication or ss26/27 Insanity.

There are a number of categories of acts which can occur independently of will and which fall in the scope of the section. In Bratty v Attorney General Lord

Denning grouped some of these recognised categories of acts together under the broad heading of automatism (sane, sometimes referred to as involuntarism).

Acts which can occur independent of will:

Ryan v The Queen – reflex or muscular spasm;

R v Holmes

– somnambulists or sleepwalkers

Cooper v McKenna

– Concussion;

R v Bailey – hypoglycaemia or diabetic. Note – different under s23 and s27. S

27: it is high blood sugar due to the disease diabetes which is internal; for s23: it is low blood sugar due to insulin to counteract which is an external factor;

The Queen v Falconer – dissociative states caused by psychological blow, stress, anxiety and/or fear.

The onus of proof for these categories: Queen v Falconer.

Intoxication see s28; insanity see s27.

Internal/External Test:

SO – is it s23 (intention/accident/independent of will) or s26/27 (insanity)??

Use the internal/external test : King CJ in Radford v The Queen : ‘temporary disorder or disturbance of an otherwise healthy mind (objective test) caused by external factors that cannot properly be regarded as a disease of the mind’.

internal – mind problem eg insanity

16


external – eg in Radford , not a mind problem like insanity, reaction of a healthy mind to external stresses

In Radford, he was a Vietnam veteran, he was under stress, and his wife had left him for another woman. He went to the home of the other woman where the wife was also living, and he had an M16 with him. He walked up the path and the girlfriend came out with a baseball bat; ended up killing her; he said it was another guy who did it

– disassociated himself from the situation – claimed it was due to the stress, an external stimuli caused an act independent of his will, but claimed he was not insane. Claimed it was a temporary disorder of an otherwise healthy mind. Jury on retrial said no, so was guilty of murder.

Internal/External Test:

‘ essential notion is that in order to constitute insanity there must be an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary stimuli’

(Note -

‘healthy mind’ uses an objective test).

Psychological Blows:

Dissociate states caused by psychological blow due to stress/anxiety/fear

(Falconer) . In Falconer, the accused gave evidence that he entered her house unexpectedly, sexually assaulted her, and taunted here that if her daughters gave evidence no one would believe them (there had been a long history of sexual abuse & violence to her & her daughters). She said he reached out to her with the apparent intention of grabbing her by the hair, and from that point she remembered nothing until she found herself on the floor with a shotgun in her hand and him dead on the floor. Held that she was guilty but said evidence on dissociative acts admissable.

- BUT NOT ‘dissociation caused by low stress threshold and propensity to surrender to anxiety highlighting objective standard’

(Falconer).

- BUT NOT weak willpower due to personality traits eg irresistible impulses (R v

Bailey).

Falconer also discussed normal factors such as excitability, obtuseness, lack of self control and impulsiveness.

Falconer : 50 year old woman shot husband. After 30 years of an abusive marriage they separated and she took out an order against her husband (a nonmolestation kind) but there were also proceedings in progress of sexual abuse towards daughter. Continual fear of him, but also claimed she still loved him. He visited her unexpectedly, and sexually assaulted her and taunted her with tales of sexual abuse against a 7 year old girl

– she shot him and said she didn’t remember it. Her counsel sought to rely on involuntary act (sane automatism).

Evidence of dissociation by 2 psychiatrists; trial judge excluded the pyschiatric evidence and refused to direct the jury; she was convicted of murder and appealed; conviction was overturned. Appealed again to the High Court, and held that the pyschiatric evidence was wrongly excluded.

17


Week 6 INSANITY

Sec 26 Code: presumption of sanity: every person is presumed to be of sound mind, and to have been of sound mind t any time which comes into question, until the contrary is proved.

Sec 27 Code: Insanity: a person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission. (continues)

Bridget

– this section cannot be made any clearer unfortunately – just follow the bold headings.

The common law defence of insanity is based upon rules in

M’Naghten whereby the accused must prove that they were labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act they were doing, or if they did know it, that they did not know it was wrong. The

M’Naghten rules are essentially the same as the defence of insanity under s27 of the code ( Falconer ).

In M’Naghten , Daniel M’Naghten was acquitted by a jury on the grounds of insanity for his trial for murder. He killed a parliamentarian and evidence was presented that he was not of sound mind at the time of the killing and that he was acting under a morbid delusion and thus was deprived of capacity to know what he was doing and had no control over his actions.

S27 is to be read in conjunction with s26 which contains a presumption of sanity every person is presumed to be of sound mind until the contrary is proven. An accused is presumed to be sane in the absence of any evidence to the contrary.

It is this provision which makes s27 a defence (NOT AN EXCUSE).

So what is the difference between a defence and an excuse?

Defence, if argued successfully, allows you to escape criminal liability; e.g., if you successfully raise the defence of self-defence for murder, you will be acquitted;

An excuse merely means you will be liable for the lesser charge, ie, instead of murder



manslaughter;

Who has the burden of proof?

Usually the accused raises the issue, however, not only the defence can raise the issue. The party who raises the issue bears the onus of proof in respect of it

( Falconer; Enright ). So the onus is one the person who raises the defence to be proved on a balance of probabilities, then shifts to other party to negate beyond a reasonable doubt.

18


The trial judge can also direct the jury ( R v Schafferius ). In a case where there is a choice between s23 (involuntary) or s27 (insanity), trial judge must determine whether the evidence of the accused’s state of mind will require a direction on insanity ( Falconer ).

What if the effect of successfully raising the defence of insanity at trial?

A person who is found to be insane is dealt with by the Mental Health Services

Act 1974.

See sec 647 Code which discusses acquittal on the grounds on insanity at the time of the offence. Se sec 645 Code which discusses if the accused person is insane during trial that they are to be dealt with according to the Mental Health Services Act 1974.

In order to successfully raise the defence of insanity, must satisfy the

ELEMENTS FROM s27(1):

 The accused in such a state of mental disease or natural mental infirmity;

(This is proved by the balance of probabilities);

 So as to deprive the accused of;

 The capacity to: (these are the 3 capacities)

 Understand what they are doing or



Control their actions or

 Know that they ought not do what they are doing

 Must focus on the existence of mental disease or natural mental infirmity leading to complete deprivation of 1 of 3 capacities

Note the qualification in s. 27 (2) relating to persons who are affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of ss. (1) is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusion to believe to exist. Must lead to deprivation of 1 of 3 capacities.

Note also ss(613) – fitness to stand trial prior to trial

Ss(645) – issues as to fitness to stand trial arise during trial

There must be reasonable evidence by expert medical testimony at trial, then judge will direct jury to consider insanity, this is a question of fact for the jury to determine.

So what is mental disease? R v Foy

This case had a wide view of mental disease. Philip J “Disease of mind under

M’Naghten rules and mental disease in the code have same meaning”.

“Abnormal mental state no matter how caused or how transient”. Wanstall J “any form of physical or material change or deterioration of the brain or any recognisable disorder or derangement of the understanding”.

This application was narrowed in Cooper v McKenna . Stable J and Matthews J said a lapse of consciousness by reason of accident, s. 23

19


See also R v Mursic where Connolly J applied Foy in the context of epilepsy.

Radford v The Queen : Accused appealed against murder conviction – appellant went to home of friend of ex-wife

– shot her several time with rifle – thought exwife was in a lesbian relationship with her that lead to the breakdown of his marriage. Said he was under stress and acted independent of his will – trial judge didn’t allow this to go to the jury – convicted and appealed – held trial judge’s decision was wrong. Trial judge refused to allow s23 to go to jury

– he regarded insanity as inappropriate – on appeal held he was wrong.

The current approach on mental disease is the INTERNAL / EXTERNAL test.

Radford : ‘disease of the mind synonomous with mental illness’. Insanity: the malfunctioning of the mental faculties – must result from an underlying pathological infirmity of the mind

– be it of long or short duration, permanent or temporary, which can be properly termed mental illness.

So Mental Disease:

underlying pathological infirmity (internal cause);

expert medical evidence essential;

cause and characterisation of a condition of insanity is a question of law for the judge.

Holmes : charged with unlawful explosion. He did not dispute the incident, but said that it was an act independent of will, because he was suffering from premature hardening of the arteries, which is a physical disease capable of affecting mental capacity due to loss of blood to the brain. Court rejected s23 argument of act independent of will, and went towards insanity – said internal physical disease which affects the mind is more to do with insanity.

According to s27, some conditions recognised as mental disease include:

epilepsy ( R v Foy; R v Murisic );

Depression ( The Queen v Milloy );

Arteriosclerosis ( R v Kemp, R v Holmes );

Hyperglysemia ( R v Hennesy, and R v Brugess );

The mental disease must lead to the deprivation of one of the three capacities in s27(1).

BUT MENTAL DISEASE IS NOT

act independent of will s23;

intoxication s28, unless ss28(1) and (2) ‘mind disordered by intoxication or stupefaction caused without intention’ (as opposed to a disease of the mind caused by the condition of alcoholism in Dearnley v The King );

20


Natural Mental Infirmity

S27(1) also applied to natural mental infirmity, see R V Rolph . The natural mental infirmity must lead to deprivation of one of the capacities in s27(1).

Deprivation of capacity

What are practical examples of deprivation of these capacities?

Capacity 1: understand what they are doing: The King v Porter : this means knowing the physical nature of what you are doing; this is a cognitive capacity

– awareness, think, reason, remember, judge;

Capacity 2: control their actions: this is voluntariness;

Capacity 3: know that they ought not do what they are doing: The King v Porter,

R v Micheaux – know right from wrong; this is a cognitive capacity, ie, awareness, thinking, reason, remember and judge.

So when deciding the question of deprivation of capacity, consider: was the accused acting under the influence of some condition and were they deprived of one or more of the capacities?? This is a question of fact for the jury to decide.

The King v Porter : accused administered strychrine to infant son who was 11 months old – died. He was extremely emotional as he was separated from his wife and had custody. Tried many times to reconcile but she wouldn’t. Showed symptoms of a nervous breakdown – was sleepless for three days before the incident, took a number of stimulant drugs, told wife he would poison himself and the child. There was evidence that he was in a state of disassociation

– jury acquitted him on grounds of insanity. He remembered nothing of the incident.

Dixon J, on capacity (a): ‘little capacity for understanding the nature of the life and the destruction of life, that to him 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 - essentially does not understand the material character of conduct.’ On capacity (c): this head is of ‘quite a different character – unable to appreciate that he was doing anything wrong

– that is, incapable of appreciating the wrongfulness of the act at the time, that he could not think rationally – what is meant by wrong is wrong having regard to the every day standards of reasonable people’.

R v Micheaux : Sexual offences against patients – he argued that insanity deprived him of two capacities – to control his actions, and to know he ought not be doing this. There was conflicting medical evidence as to his condition, but concensus that there was no deprivation of capacity – Jury entitled to consider evidence and weight it, and draw own conclusions. Medical evidence all said that he had problems, but differed on what sort, and all agreed that there was no deprivation.



note generally on medical evidence: where it is not in contradiction, jury is bound to accept it; failure to do so, will provide grounds for appeal; however, where the evidence is in contradiction, jury to decide.

21


Mental Incapacity and Intention

Is evidence of insanity, falling short of the scope of the defence itself, still relevant on the issue of intention?

R v Foy

: ‘an abnormal mental state – showing – absence of will or of capacity to have a specific intention.’

Hawkins v The Queen : ‘evidence of mental disease incapable of supporting insanity

– relevant / admissable on formation of intent’

In this case, he was 16 years old and shot his dad

– on murder charge. The defence case was that the boy had confronted his father with the intent of committing suicide in his presence to make him feel guilty for years of family violence. At the last minute he turned the gun on his father because he realised that he was not the one at fault, his father was – said there was no specific intention of murder. Medical evidence that he was suffering from adolescent personality disorder, and defence also argued he was suffering from depression.

Argued his ability to think clearly and logically would be impaired

– thus insanity could not be raised (as there must be complete deprivation), so they used impairment to negate the intent. Trial judge rejected this – appealed – HC said trial judge was wrong

– said issues can be raised to negate intent.



Hawkins was applied in Qld in R v Wilson .

The Relationship Between s23 and s27??? Act independent of will or insane??

S23 (sane automatism) and s27 (insane automatism) can both be left to the jury in the one case (Falconer) BUT this can be problematic. The outcome in such cases will depend on:

the classification of the automatism as sane (s23) or insane (s27). A disease of the mind or natural mental infirmity, or not. This is essentially a Q of law for the judge;

the cause of the act for which the accused has become criminally accountable. Cause

– trigger of the action – causation. This is essentially a Q of fact for the jury.

The fundamental distinction between s23 and s27 in such circumstances where both are left to the jury is found in Radford v The Queen and this was adopted in

Falconer .

22


As an illustration consider:

King v Porter

: what is the cause and characterisation of Porter’s condition? (the husband who killed the baby case).

Previously, we would have used R v Foy: ‘an abnormal mental state, no matter how caused or transient’ or ‘any form of physical or material change or deterioration of he brain or any recognisable disorder or derangement of the understanding’



probably too wide an interpretation.

Using today’s test, we would use the internal/external test from Radford :

IS IT INTERNAL?: ‘underlying pathological infirmity of the mind – which can be properly termed mental illness’ OR IS IT EXTERNAL: ‘from the reaction of a healthy mind to extraordinary external stimulus’???

Note also the application of s28 Intoxication, in particular s28(1): the provisions of s27 apply to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on their part by drugs or intoxicating liquor or by any other means.

What caused (triggered) Porter’s actions?? Consider: drugs, insomnia (s23, 27 or

28?), psychological and emotional stress (s23), symptoms of nervous breakdown

(s23 emotional, or s27 mental disorder?) or a drug induced state (s28)?? Which factor was operating at the time? Evidence would be required

– relevant to question of intent.

23


Week Seven

S28 INTOXICATION &

SS304A DIMINISHED RESPONSIBILITY.

S304A DIMINISHED RESPONSIBILITY

The defence of diminished responsibility (s304A) is restricted to cases where there is death as a result of murder. If successfully raised, this defence would reduced the conviction to manslaughter (as opposed to insanity where there is a complete acquittal).

How is Diminished Responsibility different from Insanity?

To be insane, must be mental disease or natural mental infirmity.

For diminished responsibility, must be a state of abnormality (arrested or retarded development of the mind, or inherent causes or induced by disease or injury)

To be insane, must be total deprivation of at least one of three capacities

For diminished responsibility, must be substantial impairment of one of the three capacities

Onus of Proof:

Onus rests with the accused ( Quartly ).

Whether or not the accused has discharged the onus of proof is a question for the jury, and the appropriate standard is the balance of probabilities. Jury must ascertain whether accused was suffering from a state of mind bordering on, but not amounting to, insanity.

Elements of the Offence:

Accused must be in such a state of abnormality (whether arising from a condition of arrested or retarded development of the mind or inherent causes or induced by disease or injury)

So as to substantially impair

The capacity to

(a) understand what they are doing;

(b) control their actions;

(c) know that they ought not do what they are doing;

What is an abnormality of the mind?

R v Rolph

Must arise from one of the prescribed conditions:

arrested or retarded development of the mind (natural mental infirmity), or;

inherent causes (natural mental infirmity, or;

induced by disease or injury.

Mansfield J: ‘state of mind so different from that of ordinary human beings that a reasonable man would te rm it abnormal’

24


Hangar J: ‘abnormality of the mind – goes beyond the varied types of people met day to day’.

R v Whitworth : Accused murdered fifteen year old son

– relied on combined evidence of brain damage and psychological stress in order to argue diminished responsibility. Medical evidence said the accused had brain damage – However

– none of the factors were linked to any abnormality of the mind, and the judge directed the jury on brain damage only

– convicted of murder – appealed as judge didn’t direct for diminished responsibility. Medical evidence must link to elements of the section. Mansfield J: ‘a question of degree – more than some impairment’.

What is substantial impairment?

R v Beiss

, per Hart J: ‘substantial does not mean total – the mental responsibility need not be totally impaired, destroyed altogether. Substantial does not mean trivial or minimal – it is something in between, and is left to juries to say on the evidence. Was the mental responsibility impaired, and if so, was it substantially impaired?



so it is for the jury to determine.

R v Milloy:

Convicted of 2 murders – shootings at petrol station. Stress – breakdown of relationship and overdue car payment. Financial pressures, so little money for petrol. He said an army figure in his mind lead him to commit the robbery and the shootings

– ‘it didn’t seem real’. He was diagnosed with an adjustment disorder and / or depression – said he was partially impaired / distorted / diminished ability to control his actions and to know that he ought not shoot people – but is this enough to constitute substantial impairment? Essentially, he was upset over a broken relationship. At trial, diminished responsibility put to the jury, but rejected,

Appeal – dismissed. Also held s23 not applicable. Thomas J: ‘psychological factors do not appear as a particularly promising case for sane automatism’.

How does the defence of diminished responsibility differ from the defence of insanity?

3 main ways:

s304A applies only to murder, while s27 applies to all offences;

the relevant state of mind is described in different terms: s27 requires mental disease or natural mental infirmity; while s304A requires a state of abnormality which is caused by the reasons listed in 304A(1);

s27 requires proof that the accused does not have one of the nominated categories of capacity, it is sufficient under 304A if one of these capacities is substantially impaired ( Rolph; Miers ).

Note: as with insanity, issues of mental health, including diminished responsibility, fall within the scope of the mental health tribunal.

25


Situations which will not fall within the scope of diminished responsibility:

the temporary effects of alcohol, as opposed to the enduring damage which intoxication may cause to the brain: Whitworth; Gittens; Fenton; Kusu ;

conduct within the normal range of human propensities or emotions such as prejudice, anger, temper, jealousy, or in general, base natural emotions:

Whitworth; Rolph; Braithwaite;

particular attitudes or prejudices derived from religious, political, partisan influences: Whitworth .

Unchallenged expert evidence as to the accused’s abnormality of mind should normally be accepted by the jury: Micheaux

However the jury must consider the medical evidence in light of all the circumstances of the case including the nature of the killing, the conduct of the accused. It is to approach the matter in a ‘broad common sense way’: Chester.

S28 INTOXICATION

S28 of the code makes provision for modification of the rules of criminal responsibility in limited circum stances where the accused’s mind was affected by intoxication from alcohol or by stupefaction from some other form of drug.

Note – where the ingestion of the alcohol or other drugs brings about a true mental disease such as delirium tremens, the provision relating to intoxication will have no relevance – see provisions relating to unsoundness of the mind.

What is intoxication / stupefaction?

Haggie v Meredith, per Scott J: ‘stupefy – stupid or torpid; deprive of apprehension, feeling, or sensibility; denumb, deaden – to grow dull or insensible’. In this case, the accused was acquitted due to drug induced state.

The provision contains two distinct rules:

Rule One

– (from s28(1)&(2)) the state of intoxication/stupefaction must be brought about without intention on the part of the accused.

Elements of rule 1:

mind disordered by intoxication or stupefaction;

caused without intention;

by drugs or intoxicating liquor (or by any other means);

leading to loss of one of three capacities in s27.

In Corbett , Griffith J directed a jury that something approaching involuntariness is also required by s28 to show that the intoxication is unintentional: Battle; Hubert .

The defence was open only in circumstances where the accused ‘ could not fairly be held responsible’ for the intoxication ( Corbett ). The accused might have been mistaken by the nature of what he was drinking, or the accused could be tricked

26

Criminal Law Semester 2 Notes into drinking something – then the formula in Corbett would be satisfied. On the other hand, where someone is drinking, but did not intend to become intoxicated, he cannot rely on the first rule of s28 ( Kingston ). According to the first rule in s28, the state of intoxication required must be such as to deprive the accused of one of the three capacities in s27 – that is, to understand what he is doing, to control his actions, or to know that he ought not do the thing.

Onus: is on the accused for the first rule, to prove that he was without a capacity.

If one successfully relies on the first rule in s28, there is a special verdict in s647 (acquittal on grounds of insanity).

Rule two – (from s28(3)) has application whether or not the intoxication was intentional and whether or not it is partial or complete. However, it applies only to those offences where there is intention to cause a specific result and where this is an element.

Elements of rule 2:

mind disordered by intoxication or stupefaction;

intention of intoxication/stupefaction to some extent;

by drugs or intoxicating liquor (or any other means);

deprived of one of the three capacities in s27.

It is difficult to determine which offences this second rule applies to, due to the clear statement of elements of the offences. Egs of specific intent: s317 intent to cause GBH; s302(1)(a) murder; s391 stealing; s4 attempt.

In Parker, the full court of WA, without considering s4 of the code which defines attempts, held that intoxication was irrelevant to attempted rape. On the other hand, Mack J in

O’Regan

, expressed the opinion that intoxication is relevant to all attempts including attempted incest. It has been held that an intention to cause a specific result is not an element of rape or unlawfully using a motor vehicle: Kaeser; Holman; Thompson; Snow . In Kaminski , robbery was held to be an offence which had an intention to cause a specific result as an element.

ONUS : for the second rule, the evidential onus is on the accused, but does not need to raise evidence of complete intoxication, as the section says complete or partial. Crozier:

‘if the intoxication is complete, intent cannot be formed. But if it partial only, it if for the jury to decide as a question of fact whether the necessary intent existed…if you are not satisfied beyond reasonable doubt that through intoxication the prisoner was incapable of forming an intent

….then it is your duty to acquit of willful murder and murder’. Note also that sufficient evidence of the intoxication is required – it is not enough for the accused to admit to drinking.

Kaminski: ‘evidence sufficiently cogent to be considered by the jury’.

Dearnley : ‘evidence – as may cause a reasonable man to at least have a doubt as to the existence of the intent’. Holbrook: independent evidence required.

So, after evidence is put forward of some intoxication, the onus of proof remains on the Crown to prove the intention of the offence was present –

27

Criminal Law Semester 2 Notes jury must be satisfied beyond reasonable doubt whether or not the specific state of mind existed and whether or not the accused had the capacity to form a specific state of mind: Cameron; Hubert; Crump.

If one successfully relies on this second rule, it only serves to remove the intent element, so can be a total acquittal, or the accused will be guilty of any offence which is committed but where the intention to cause a specific element is not an intention. Eg: if the accused in Corbett had been charged with murder, and successfully relied on this second rule, this would result in an acquittal for murder, but he would have been guilty of manslaughter because the killing is still unlawful, but manslaughter does not have intent as a specific element.

28


Lecture Week 9 SELF DEFENCE

Sections 271 and 272

What is the result of successfully raising the defence?

If the defence of self defence is successfully raised, it results in a complete acquittal – to act in self defence is to act lawfully.

Onus of proof:

The onus is on the crown to negative the self defence beyond reasonable doubt after the accused has adduced some evidence making issue a live one.

3 separate issue in s271-2:

1. s271(1) minor unprovoked assaults;

2. s271(2) major unprovoked assaults;

3. s272

– provoked assaults s271 – Minor Unprovoked Assaults

Elements of s271(1) from R v Prow:

1. victim unlawfully assaulted the accused;

2. accused did not provoke the assault;

3. accused used such force as was reasonably necessary to make effectual defence against victim’s assault;

4. force used by accused was not intended and was not likely to cause death or

GBH;

MUST ASK an initial inquiry regarding provocation:

Could the victim of self defence have relied on provocation (in terms of s268 provocation) to excuse their assault on the accused?

-

If victim was provoked to attack accused it is a ‘provoked attack’ (sec272);

-

If victim was not provoked to attack the accused it is an ‘unprovoked attack’

(sec271);

Muratovic

: accused may have provoked ‘an’ assault – but not ‘the’ assault : has

THE assault actually made by the victim been provoked? So,sec271 is when there is no provocation at all, or no provocation for the assault actually made.

‘Force’ as per element 3:

Zecevic : no offence is committed if force, even deadly force, was used in reasonable belief that it was necessary to avert the threatened harm.

R v Ellem

: the ‘force’ referred to in sec271 could be constituted by an uninterrupted series of blows and in that case it was the series of blows rather than any single one of them that must be determined to be ‘reasonably necessary’ or not. In Ellem, the accused’s response to the claimed unprovoked assault was a series of blows

– HELD it is the series of the blows that constitutes

29

Criminal Law Semester 2 Notes the force which must be judged against the sec271 criteria was a series of blows reasonably necessary?

- Onus is on the Crown to prove beyond reasonable doubt that the force used was not reasonable necessary.

S271(2) major unprovoked assault:

This para related to when deadly force has been used. Elements of s271(2):

1. an unlawful unprovoked assault by the victim on the accused;

2. the nature of the assault is such as to cause a reasonable apprehension of death of GBH in the accused (objective test);

3. the accused believes (subjective) on reasonable grounds (objective) that he/she cannot otherwise preserve themselves from death or GBH;

4. such force which is reasonably necessary is lawful even though it may cause death or GBH.

NOTE – some controversy due to conflicting decisions of Allwood and Gray – suggested in Julian that Gray be preferred over Allwood .

Nature of the Assault:

was the assault such as to cause reasonable apprehension of death or GBH?

As well as immediate facts, prior threats and attacks by the victim are relevant:

Keith : death threats not admitted as too remote;

Muratovic : threats and assaults y victim 6 days before were admissable to show the nature of the final attack and accused’s apprehension of it;

Masters : acc used’s belief about violent character of victim and basis for it admissable

Belief on reasonable grounds:

There is both a subjective and objective component to this element:

- R v Marwey : it is subjective whether the accused held his belief; it is objective

whether reasonable grounds for the belief;

Julian: confirms that it is the accused’s belief that is the ‘critical factor’

prior history as to threats, assaults, violent reputation etc relevant;

-

‘otherwise’ see Muratovic;

evidential issues : was retreat and less violent reaction possible? – but jury should be warned not to be ‘wise after the event’

(R v Johnson)

battered woman evidence?

Reasonably necessary force:

The force used must be reasonably necessary to be lawful – it seems that once the other elements are satisfied, the issue does not arise: Marwey

– ie, if the belief was that the force was reasonably necessary, then this element is usually satisfied.

30


Gray: assuming there is an unlawful and unprovoked assault, only two conditions needed:

nature of assault ‘such as to cause R apprehension of death of GBH’

person using force by way of defence believes on r. grounds that she cannot otherwise preserve herself from death of GBH

In substance, therefore, a person is by virtue of s271(2) justified in killing or doing GBH to an assailant if he reasonably believes that doing so is the only way to save himself or someone else from an unprovoked and life threatening assault.

What is the Principle Distinction Between s271(1) and s271(2)??

R v Bojovic : identified the broad stream of cases in which one or other of both of defences may be appropriate. Speaking very generally, in homicide cases:

s 271(1) best suited for cases where the deceased’s initial violence was not life threatening and where the reaction of the accused has not been particularly gross, but has resulted in a death that was not intended or likely

– ie where you can argue the unlikely happened when death resulted.

S 271(2) best suited to cases where more serious bodily harm or life threatening violence has been faced by the accused, in which case the level of his/her response is not subjected to the same strictures as are necessary under s271(1);

Sometimes it is appropriate to leave both libs to the jury

– but only cases in the

‘grey area’ – ie where circumstances are arguable but not clear as to whether a r. apprehension of GBH was caused on the part of the accused

Sec271(2) and s24 Mistake

S 24 provides in effect that a person is not liable to greater criminal responsibility where he/she had an honest and reasonable, but mistaken belief in a state of things. Is it a mistake about the amount of force required, or a mistake about the apprehension of the threat.

Muratovic was overruled by Marwey , which said: state of things in s24 will extend to mistake as to threat posed by assault, but not to mistaken judgement about amount of force necessary.

Lawrie: mistaken honest and reasonable belief that he was holding a real gun when it was only a pistol

S 272 Self defence against a Provoked Assault:

This section only applies when the victim retaliates against the accused’s provocation or assault with a murderous assault, that is, an assault which objectively would could cause apprehension in the accused of death or GBH.

31


Note that s272(2) confines the defence and makes it inapplicable where the accused used murderous violence in the first place or before it was necessary to use such violence.

Elements of 272 from Muratovic:

1. that accused assaulted the deceased (cannot be a murderous assault)

2. that accused provoked an assault from the deceased (s268 not s304 type provocation)

3. that the deceased then assaulted the accused with such violence as to cause reasonable apprehension of death of GBH;

4. that this assault induced the accused to believe on reasonable grounds that it was necessary for his/her preservation from death of GBH to use force in selfdefence (in regarding reasonableness, can consider background info such as previous threats, as above);

5. that the force actually used by him was reasonably necessary for such preservation; sec272(2) Retreat need to retreat: ‘in either case, unless, before such necessity arose, the person using such force declined further conflict, quitted it, or retreated from it as far as was practicable’ – section does not apply if person using the force which killed could have retreated from the threat as far as possible before such necessity for the violence arose.

- practicable means feasible : Randle

Zecevic

: ‘there is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all others in determining whether the accused believed on r. grounds that what he did was necessary in self defence’



so conflicting views here

– it is definitely a relevant factor for jury (

Randle ).

Battered Woman Syndrome and its Relevance to Self Defence

Battered woman syndrome is not a defence in its own right – but is introduced in support of other defences.

Lenore Walker d escribed a ‘battered woman’ and described a battering cycle;

Nemenclature/Terminology:

Battered wife/woman syndrome

Battered woman reality ( Scutt and Rathus )

Battered person really? Osland per Kirby J

‘a woman manifesting the syndrome is said to be in a depression like state, becoming immobilised, passive, and unable to improve her situation or escape

32

Criminal Law Semester 2 Notes from her batterer. The syndrome is presented in court through clinical expert opinion evidence. The Courts have taken this course on the basis that ordinary jurors are not be themselves sufficiently equipped to appreciate the psychological state of battered woman. Eg., it was feared that, without expert assistance, jurors would not understand why a frequently battered woman continued to remain with her battere r’ (S. Teo ‘Resolving Gender Bias in Criminal Defence’)

Lavelle (Canadian Case) was cited with approval in Runjanjic and Kontinnen which was the first Australian case to rule on whether such evidence was admissable.

R v Secretary : she shot her de facto husband while he was sleeping – did not accept evidence of battered woman. If the victim is asleep, what is the assault?

Mildren J: threat has not ceased just because the deceased was temporarily physically unable to carry it through

– thus open to the jury to characterise it as a continuing assault which can be legitimately defended.

Consider the prevalence of domestic violence and statistics on women at risk: in

1994, 42% of murder victims were female, and 39% of these were killed by their sexual partner or former sexual partner; compared with 13% of men killed.

Osland v R : recent high court decision considering BWS. Woman and her son both charged with murder of Frank – evidence that there was a high degree of premeditation

– Crown case was that they planned to murder him, had dug a grave for him, and mixed sensitive drugs with his dinner, son struck him which killed him in front of mother, they buried him in the ‘hole’, then both acted for 3 years as if he had just disappeared. They intercepted phone calls; he had physically, psychologically, sexually abused them for 13 years but don’t know what happened in the days leading up to the murder – both relied on self defence and provocation – Son acquitted on basis of self defence – mother convicted of murder - sentenced to 4.5 years. 1 st jury convicted mother, couldn’t decide about son – 2 nd jury acquitted son – mother appealed but dismissed. Her grounds of appeal were the inconsistent verdicts, adequacy and accuracy of instructions given to jury on self defence and provocation, particularly the evidence regarding

BWS and its relevance. HC said it was a joint killing, but individual justification; all agreed that her appeal must fail but there was an inconsistency with the acquittal of her son – first time HC has considered relevance of BWS. All regarded mother’s argument that BWS should be considered as a separate defence as wrong – they all accepted that expert evidence on BWS may be relevant to issue such as self defence and provocation: ‘it must now be accepted that the BWS is a proper matter for expert evidence’.

Kirby J: need for caution with regard to accepting BWS – also said it should be in gender neutral terms – also said not relevant sex, if married, how long abuse has been going on for



only relevant that victim is suffering from the syndrome, the particular characteristics relevant to the legal rules applicable in each case. There is a danger that if it is too closely defined, that it will come to be too rigidly applied by the Courts. Kirby J: BWS

33

Criminal Law Semester 2 Notes evidence may assist a jury in understanding self defensive conduct which on one view occurred where there was no actual attack underway, but rather a genuinely apprehended threat of imminent danger sufficient to warrant conduct in the nature of the pre-emptive strike. It is still necessary to discriminate between a self defensive response to grave danger which can only be understood in the light of history of abusive conduct; and, a response ‘that simply involves a deliberate desire to exact revenge for past and potential but unthreatened future conduct

( Secretary ). Kirby J: ‘the significance of the perception of danger is not its imminence – it is that it renders the defensive force used really necessary and justifies the defendant’s belief that ‘he/she had no alternative but to take the attacker’s life’…purpose of BWS to show how a victim’s action’s in taking lethal self-help against the abused was reasonable in the extraordinary circumstances the victim faced’.

Cycle of Violence:

1. build up phase



2. Acute battering



3. Contrite loving behaviour.

‘learned helplessness’: label for psychological response to repeated violence

– idea that victim feels unable to improve his/her situation or escape.

R v Babsek : Qld Court of Appeal case where evidence accepted of ‘battered womand syndrome’ which ‘seeks to explain why people do not leave a relationship with a violent partner and which suggests a heightened sensitivity on the part of the subject of the violence on prospective or threatened violence, was admissabl e…it was relevant tot he issue of intent, ‘reasonable apprehension, and

‘belief on reasonable grounds’ raised by self defence and to the evaluation of the deceased’s conduct relied on as constituting provocation’

So, evidence of battered woman syndrome is relevant in 2 main ways to self defence:

1. to establish that accused was under a ‘reasonable apprehension of death of

GBH’;

2. the magnitude of force used by accused: was accused’s belief that he/she could not ‘otherwise preserve herself from death or GBH’ based on reasonable ground?



focus on reasonableness of her actions in light of her experiences, not on

status as a battered woman and BWS.

34


OUTLINE OF OPERATION OF S271 & 272



IT IS PROVOKED OR UNPROVOKED?

if provoked then s272

if unprovoked then s271



if s271

– is it minor assault, or Major (deadly force)??

if it is minor force, then s271(1) – only reasonably necessary force;

if major then s271(2) – belief on reasonable grounds that force used is necessary

– more lenient.



if s272

– the accused has provoked the assault, then:

if minor assault results – NO self defence available;

if a major (murderous/deadly) assault results, s272 only (more restrictive than s271(2)).

Aiding in Self Defence:

S 273 – the section allows for any person to use force of any degree to defend another provided that the defender is acting in good faith and also that the person defended would have been lawfully entitled to use that same degree of force to defend him or herself.

must be acting in good faith – White v Conway ;

R v Feitkau

– discusses when you have a defence for aiding;

R v Duffy – the original culpability of the person defended is irrelevant at common law;

Defence of Dwelling

S 267 – defence of dwelling :

test: subjective belief in homeowner, based on (objective) R grounds, the amount of force used was necessary;

covers all ‘dwellings’, not just houses;

entry of dwelling sufficient (breaking not necessary);

use of force to prevent and repel an intruder from entering and remaining.

S274-279 other related provisions

Other circumstances in which force may be used to defend other types of property;

Allows for infliction of bodily harm (previously could not do bodily harm);

Others may now lawfully assist property owner.

35


SENTENCING WK 11

Sentencing in Qld is now governed specifically by the Penalties & Sentences Act

1992.

purposes of the act sec3;

Why do we punish?

See the preamble to the Act:

‘Whereas:

1. society is entitled to protect itself and its members from harm;

2. the criminal law and the power of the courts to impose sentences on offenders represents important ways in which society protects itself or other members of society

3. society may limit the liberty of its members only to prevent harm to itself of other members of society’

What is Criminology?

It is a discrete disciple; informs the study of criminal law and sentencing;

Criminology focuses on three main areas:

the sociology of law, which examines social aspects and the institutions of law;

theories of crime causation;

the study of social responses to crime, which examines in more depth the formal institutions of criminal justice eg police, courts, corrections;

What is Crime?

depends on society’s definition, given effect by Parliament;

factors are many, but include:

historical perspectives

social and cultural differences

religious beliefs

Crime, the Media and the Information Age

Current Popular issues in tabloid journalism:

law and order

increases in crime and violence

home invasions

targeting of certain groups, eg old people

increase in fear

need to get tougher on criminals

What are the causes of crime?

important to criminologists and thus criminal lawyers because informs the sentencing process;

popularly attributed to:

perceived tendency of today’s society to lawlessness

36


inability of the sentencing courts to properly deal with the situation

sentencing too lenient

bad upbringings

schools too lenient

bad parenting

lower-socio-economic status

stress/mental illness

Current trends

decline of rehabilitation in the 1970s

-

‘just deserts’ theory currently popular

based on classical thinking:

only the guilty to be punished

punishment to be proportional to the gravity of the offence, and the culpability of the offender;

Traditional justifications for punishment

retribution

deterrence

general

specific or individual

rehabilitation

protection

Purposes for Punishment

Sec9(1) PSA established the only purposes for which sentences can be imposed in Qld:

to punish the offender to an extent or way that is just in all the circumstances; or

to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or

to discourage the offender or other persons from committing the same or similar offence; or

to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or

to protect the community from the offender; or

a combination of 2 or more factors above

Theories of punishment underlie these:

There are 3 main theories of punishment:

(a). retribution theory;

(b). deterrence theory;

(c). rehabilitation theory.



read these straight from the study guide p 67-72.

37


SENTENCING – WKS 12-13

Note - At the end of this section, there is an answer plan for sentencing

The sentencing process:

appeals against sentence;

governing principles;

other principles.

Contrary to popular belief, few criminal cases go to trial – the majority of offenders plead guilty to their charges, and thus only go through the sentencing process.

APPEALS AGAINST SENTENCES BY OFFENDER :

Section 668D of the code deals with right of appeal. Person convicted can appeal to the court:

(a) On a question of law alone;

(b) On a question of fact alone;

(c) Against the sentence.

s668E(3) of the code sets out the powers of the Court in an appeal by the offender;

Skinner : when determining an appeal against a sentence, the court must give effect to the general principles which relate to the interference of an exercise of discretion. It is not sufficient if the court might have disposed of the matter differently. Rather, it is necessary for it to be shown that the sentencing discretion has miscarried so that the sentence appealed from is manifestly inadequate or excessive because the judge or magistrate has acted on a wrong principle or overlooked, undervalued, overestimated or misunderstood some salient feature of the material;

Buckmaster ;

Griffith v R .

APPEALS AGAINST SENTENCES BY ATTORNEY GENERAL:

See s669A. On appeal, the question is whether the sentences were outside the range of a proper sentencing discretion: Melano ex parte Attorney-General Qld .

The court of appeal may vary the sentence and impose a sentence the court considers appropriate.

APPEAL TO THE HIGH COURT:

Special leave required to appeal to the HC. Leave will not be granted merely because the sentence is excessive – case must involve some question of law or principle of general importance of that there has been a gross violation of the principles which ought to govern discretion in imposing sentence: Lowe v The

Queen . There is a strong reluctance by the court to grant special leave against sentencing decisions: Lowe . Another matter where it is rare for the court to grant

38

Criminal Law Semester 2 Notes special leave is fi it is an appeal by the Crown

– there would have to be ‘very exceptional circumstances’ : Benz.

The Penalties and Sentences Act

The purposes of this Act are contained in s3, and include the provision of sentencing principles to be applied by the courts, promoting public understanding of sentencing practices & procedures, and generally reforming the sentencing laws of Qld.

Section 4 contains the definitions. The definition of ‘sentence’ is wide:

Brown

– ‘sentence’ includes recording of a conviction under s12;

Corrigan – includes an order recommending early release on parole;

R v Briese ex parte Attorney General Qld – discretion to record a conviction.

S9(3) applies to offences which involve the use of violence or result in physical harm to another person – in sentencing a person to whom (9) applies, the court must have regard primarily to the matters in s9(4).

Governing Principles of s9(2)

S9(2) contains a list of matters the courts must take into account in sentencing an offender. Sentencing is a discretionary process

– must balance the different factors against each other. The list in 9(2) is not exhaustive – 9(2)(p): the court may take into account other relevant circumstances.

Note

– many of the factors below are mitigating factors – the ‘mitigatory effect’ will decrease in proportion to seriousness of the offence and previous convictions. It is a two step process:

1. look at what the sentence would ordinarily be;

2. should it be reduced because of the offender’s mental state?

An example of the mitigatory effect: Hammond : youth is a mitigatory factor because there is usually a greater chance of rehabilitation. (in opposite case can aggravate the sentence)

-

9(2)(a): imprisonment as a ‘last resort’: - it is preferable for the offender to stay in the community if possible. Condoleon.

Note that this section is now applicable to 9(3) & (4).

9(2)(b): the maximum and any minimum penalty prescribed for the offence: in what circumstances will the max penalty be given? Manson, Veen no 2 , applied in Qld in Chivers ; factors such as if criminal history can add weight.

9(2)(c): the nature and seriousness of offence, including harm done to victim: the harm done to the victim is one of the most crucial aspects of the sentencing process. H is an example of where the harm done to the victim is taken into account

– this was the case where the de facto of the mother of a two year old inserted an object into her vagina – both physical and emotional injuries. While the physical damage was obvious, what would the emotional effect be long term? ‘Unwise for sentencing judges to engage in predictions of the unpredictable’. There could be long term adverse consequences on the little girl, but hard to predict. He was given a suspended sentence, no time in

39

Criminal Law Semester 2 Notes custody

– because trial judge held no long term consequences. On appeal, held he couldn’t predict this – 4 years in custody.

Also consider 9(4) – 9(4)(a) considers future risk – also see ss(b), (c),(d),(e),

(f), (k).

9(2)(f): character, age and intellectual capacity: Intellectual capacity discussed in R v Dunn . The offender in this case pleaded guilty to armed robbery, and had a psychiatric abnormality resulting from a car accident

–

Court of Appeal held (following R v McGlynn ), that firstly the court must determine the ‘objectively appropriate’ sentence, and then decide if it should be diminished because of the offender’s mental condition. Applying that principle, the Court of Appeal reduced the penalty from 9 years jail to 7, with recommendation for parole after 3. See also section 11 on character and sec9. Character also includes previous convictions, significant community contributions, other relevant matters. Previous conditions are of particular relevance and how recent they were ( Veen no 2 ). In Veen no 2 , held anticedence criminal history is relevant factor – but cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the offence

– to do so would be to impose a fresh penalty for previous offences. It is relevant though to show whether this offence is an uncharacteristic abbhorration, or whether the offender has manifested in their commission of the offence a continuing attitude of disobedience of the law. It is legitimate to take it into account when it illuminates the moral culpability of the offender, or shows his dangerous propensity or shows a need to impose a type of conduct. Note the court cannot take into account other alleged offences not the subject of convictions ( Burrows ).

9(2)(g): aggravating or mitigating factors concerning the offender. R v Powell, ex parte Attorney General :the offender had a major depressive illness and other significant personal problems. The Court of Appeal set aside a suspended sentence for three years and substituted 3 years jail with a recommendation for parole after 6 months in recognition of his personal circumstances. In R v Le , it was held that family responsibilities (9 year old child and baby) should be taken into account, but shouldn’t overwhelm the other factors unless exceptional ; Smith : ill health will only mitigate where imprisonment is a greater burden by reason of the state of health ( also R v

Pope).

9(2)(h) prevalence of the offence: an example is H .Need for deterrence when particular type of offence prevalent. Link with 9(1)(c) deterrence.

9(2)(i): assistance to law enforcement agencies: R v Batchelor : the offender was charged with 21 property offences, and also pleaded guilty to a further

72, taken into account by virtue of s189 PSA. Sentence reduced from 9 years to 6 with recommendation for parole after 2, the reduction being in recognition of his plea of guilty, and co-operation with the police. Pastiglione : drug importer – charged with drug offences – as an informer his sentence was reduced.

Other relevant circumstances which will be taken into account in the sentencing process:

40


intoxication: R v Rosenberger ex parte : not normally a mitigating factor – exception where something excuses the alcohol/drug taking. Eg, a painful disease may be a mitigating factor; Hammond : drug addiction to explain his conduct

– his ascent into crime was after he became a drug addict – the desperation to get drugs due to human weakness led to the crime – not a primary choice – real weakness is that of a drug addict rather than a robber.

Disparity among co-offenders: Lowe v The Queen : armed robbery at service station - Smith kept watch while Lowe did it

– Lowe pleaded guilty to armed robbery – he got 6 years with recommendation for parole after 2. Smith pleaded guilty to separate judge and he got probation and community service

– Lowe appealed due to the disparity – HC laid down the principle for the disparity in the judgement: TEST: court will interfere if the disparity is such as to give rise to a justifiable sense of grievance (to give the appearance that justice has not been done);

Totality principle: often offenders have been involved in a series of offences over a period of time, and may have been sentenced at different times for these offences. The courts endeavour to take into account the length of the total sentence (the principle only apples to imprisonment) if all offences had been dealt with at the time: this is called the ‘totality principle’. Courts will take into account other sentences, ie ones already being served. See also sec9(2)(k)(l)(m) of the Sentences Act. R v Mill (major authority

– approved in

Postiglione ) ; R v Coss.

Delay between commission of offence and sentence: R v Laws ex parte; delay will not be a mitigating factor unless it results in unfairness to the offender

– eg a long period of uncertainty, significant rehabilitation has taken place etc.

The Sentencing Tariff:

When sentencing, court often uses as a point of reference a sentencing ‘tariff’.

This is the range of sentences which would normally apply to that offence. Eg, the tariff for housebreaking may lie between probation (for young first time offenders), to imprisonment for ten years, for repeat persistent offenders charged with multiple offences with a property value. If this were the tariff for housebreaking, then most sentences would fall somewhere within this range

– most sentences would not fall in the higher range

– in this example, most housebreakers offenders would probably receive sentences around 2-3 years.

With other types of offences, the tariff has a far narrower range – eg, for people who kill their violent spouses after repeat attacks over a long period of time, the sentence is likely to be 6-8 years imprisonment, with a recommendation for parole after 12-24 months.

Section 10 – court’s reasons stated and recorded

Applies to sentences of imprisonment only – including suspended sentences;

-

Court’s reasons must be stated and recorded;

Failure to do so will not invalidate, but the failure may be considered by an appeal court on appeal;

41


Reasons are important if sentence would otherwise be seen as unduly harsh or lenient;

Sentencing judge has a discretion and Court of Appeal is reluctant to interfere, particularly is reasons are given;

Section 11 – character (refer to sec9(2)(f))

See R v Burrows for what is included in determining the character of the offender; for use of antecedents see Vera no 2 .

Section 12 – recording a conviction

Sec 12(1) makes recording a conviction discretionary (with exceptions)

Sec 12(2) lists factors

Sec 12(3)(a) conviction without recording conviction is not a conviction for any purpose;

Sec 12(3)(b) the conviction is not entered in any records, except records of the court, and the offender’s criminal history for purposes of s4(b)

There is a difference between a court convicting a person of an offence, and the court formally recording the conviction. See Graydon v Dickson : 22 year old uni student had a formal conviction recorded against him for possession of a small amount of cannabis

– applying sec12, the court of appeal set aside the conviction, stating that the magistrate had placed too much emphasis on the prevalence of such offences in the area. Fullaliove : 49 year old woman possessed cannabis

– her conviction was also overturned.

Condoleon : no conviction recorded for supplying cannabis to minors. Jennings v Carrigan : conviction for second time offender.

For matters taken into account, see R v Brown ( says the list is not exhaustive, must balance the factors, the factors are not restricted to young offenders) ,

Fullaliove, R v Briese ex parte.

Recording a conviction for drug offenders

R v Condoleon , where the offender pleaded guilty to nine counts of supplying cannabis to minors, and three counts of possession. The court did not ultimately order that a conviction be recorded

Jennings v Carrigan

– considers the second time – conviction will be recorded.

This general policy has been accepted that second time offenders will get conviction.

Effect of Employment

Qualischefscki – considers the nature of your employment – said court should not discriminate on this basis, but in some cases your employment may be a factor (eg if wanting to be a lawyer).

If a differentiation were to be made on the basis of employment though, there would be two classes of offenders – those with jobs and no convictions, and

42

Criminal Law Semester 2 Notes those with no jobs and convictions

– if offender was hoping to rely on this though, they would have to clearly show the effect on their employment.

Section 13 Plea of Guilty

Courts must take the plea into account, may reduce the sentence (13(1))

reduction may be made having regard to time offender pleaded guilty or informed law enforcement agency of intention (13(2))

court must state in open court that it took plea of guilty into account (13(3))

R v Corrigan : reduction of sentence because of plea of guilty;

Siganto: on appeal, the HC held that a plea of not guilty should not get you a higher sentence – you should have the right to plead not guilty and try to defend yourself without an extra penalty – not an aggravating factors.

R v Batchelor

– reduction of sentence due to plea of guilty – and also cooperation with police.

Note – the usual principle that a plea of guilty will mitigate the sentence is due to

2 reasons:

it shows remorse;

because the community is spared the expense of a trial.

If the court does not reduce the sentence even though there is a plea of guilty – must state that fact in open court and its reasons (13(4)).

The sentence will not be higher if no plea entered ( Siganto )

What qualifies as a reduction in the sentence?

recommendation for early release on parole, suspending the sentence, imposing a fine etc ( Corrigan );

Information on Sentence

Section 15 discusses what information a court can receive – says ‘any information’ eg, references, reports.

psychiatric and psychologists reports: these can’t excuse the inexcusable:

H ;

pre-sentence reports: no reference should be made to other alleged offences

(ie allegations) that the person has not been convicted of: Gilder Rose; Seres .

Comparative sentences: court may receive any information, but they are not obliged to follow it: H ;

Victim Impact Statements:

These are optional at sentencing;

Criminal Offenders Act 1995 is the authority for violent offenders

– s14 & s5 define a ‘victim’ under this act;

In other cases, see the PSA, s9(2)(c);

The statements are provided after conviction but before sentencing, and they provide the victim with an opportunity to be ‘heard’ by the court;

43


Such statements need to conform to guidelines set down by the Director of Public Prosecutions;

The statement can be by relative, friend, or the victim, etc;

Can be orally read, or tendered;

The problem with them is that they can be damaging and contain inadmissable information;

What view of the facts should the judge take?

Haselich : judge to form own view of facts – must not conflict with jury verdict

(this was confirmed in Bedington );

In the case of disputed facts, see Morrison : where facts are disputed and the fact is adverse to the offender, must be satisfied of it beyond reasonable doubt if you are going to regard it; where it is disputed and favours the offender, must be satisfied on the balance of probabilities; Judge is to determine the facts material to the sentence

– where a fact is admitted the court may act on this – but the fact must not be disputed;

The judge must only sentence the person on facts before him : Boney : judge cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence ( applying De Simoni )

This was confirmed in R v D ;

Taking into account other offences

See section189 of the PSA: court may take into account other offences if the offender is represented, pleads guilty, and requests that they may be taken into account. The prosecution must also consent.

Sentencing Dispositions

NON-CUSTODIAL ORDERS:

Unconditional discharged and bonds: see part 3, div 1 of PSA: Releases,

Restitution, Compensation, in particular s18 in regard to the matters the court must have regard to when making an order under s19; conviction must not be recorded, s16; person must be of good behaviour, pt 3, div 1;

Fines: can be in addition to, or instead of other sentence; conviction is discretionary; can pay be instalments (sec50), or time to pay (sec51); imprisonment in default of payment (sec161 Justices Act ); penalty units

(s5(1) PSA $75 – subject to change); fine option orders – community service (see pt 4, div 2);

Probation: ss90-99PSA; conviction discretionary; released under supervision of Corrective services Commission Officer; must not be less than 6 months, not more than 3 years; can also include up to 6 months imprisonment; offender must report and receive special visits, also special condition eg, psychiatric help, restitution and compensation;

44


Community service: ss100-108 PSA; conviction discretionary; performs unpaid community services under supervision under supervision of

Commission officer at times specified by officer; total hours not less than

40, not more than 240; must be performed within one year of order; can order probation plus community service; can contain special conditions including restitution and compensation;

Intensive Correction Orders: part 6, ss111-119 PSA; purpose of these orders is for the offender to serve the sentence of imprisonment by way of intensive correction in the community and not in prison (s113(1)); the offender must, when required, take part in counselling, perform community service, reside in community residential facilities etc (s114(1)); this type of order can only be made if the court sentences the offender to a term of imprisonment of less than one year (s112); court must record conviction

(s111); receives visits twice a week from commission officer.

Breach of community based orders: part 7 PSA; order can b revoked

(s120); offender can then be re-sentenced (s121) – court then takes into account extent of compliance; part 7 div 2 – offence to contravene community based order (see sec123(1)).

-

Disqualification of Driver’s License: sec187 PSA; offence must be in connection with, or arising out of, the driving of a motor vehicle by the offender (s187(1)(a)); satisfied in the interests of justice that the offender be disqualified; see Nhu Ly – where the disqualification was set aside because not in interests of justice.

CUSTODIAL ORDERS:

Orders of suspended imprisonment: part 8 PSA, ss143-151 – this allows a court to suspend a sentence if it is less than 5 years, on condition that the offender must not commit another offence punishable by imprisonment during that time stated by the court (must be less than 5 years sec144). If this order is breached, person dealt with under s147; These are treated as sentences of imprisonment under the Penalties & Sentences Act; the court must record a conviction (s152); Kelleher : it is considered a sentence of imprisonment; s9(2)(a) says that time in custody is a last resort and sec10 says judge must give reasons for giving this sentence; may be sentenced to a lesser period than specified in the offence; served concurrently unless ordered; s158 says if offender in custody from arrest, court may order sentence has effect from then; s161 says that time held in presentence custody to be deducted; difficulties have arisen in the interpretation due to the words ‘may’ and ‘must’ in secs 146 & 147 – assume that it is ‘must’ use one of the alternatives in s147(1) ( Holley ); the court must order that the person must serve the whole of the suspended sentence, unless it is deemed unjust to do so, taking into account s147(3);

45


Imprisonment: Concurrent / cumulative sentences: sentences of imprisonment are dealt with by part 9 PSA, ss152-161. Recall sec9(2)(a) – that it should only be imposed as a last resort; sec10

– if court imposes imprisonment, must state reasons for doing so; court can only order imprisonment if it records a conviction (s152) – also see sec 32 Corrective

Services Act ; major problems In interpreting ss158 & 161 ( R v Wishart and

Jenkins, and R v Holman ); Sentences are served concurrently unless ordered otherwise (s155 PSA); cumulative (s156 PSA); Clements : apply totality principle to see the overall impact; usually it will be concurrent where they are related offences over a short time span; cumulative only where clear and compelling reason for the additional penalty (see s156A);

Indefinite detention: part 10 PSA; do not confuse with indeterminate sentence which means life; indefinite sentences provide for violent offenders (s163(1)); it is instead of a fixed term; R v Wilson discusses the risk of serious physical harm; for definition of ‘violent offender’ see sec162; court must state the nominal offen ce (s163(2)); offender must be ‘serious danger to the community’ per sec 163(3) and R v Wilson; court must review the sentence after 50% of nominal sentence served, or 13 years if life was nominal sentence, then twice yearly; indefinite sentences are a way of the court seeking to deal with offenders who are at risk of reoffending – this can create an ethical problem, because the offender is not only being imprisoned for what they have done, but also what they might do in the future;

Detention of mentally disordered prisoners: see the Mental Health Act

1974 (Qld): mentally disordered patients are detained in specialised secure hospitals;

Home Detention: Corrective Services Act 1988 (Qld) ss86-91.

Discretion in s161B(3)

Court should exercise discretion by using general principles in s9(2) not sec9(4) :

R v Collins

Serious Violent Offenders

Part 9A PSA; 161A & B describe circumstances under which person can be considered one of these; 3 ways of declaring offender serious violent offence:

Convicted of offence in schedule AND sentenced to 10 years jail of more (automatic) – s161A(a);

Convicted of offence in schedule AND 5-10 years jail

(discretion) s161B(3);

-

Convicted of offence involving ‘serious violence’ or ‘serious harm’ and sentenced to imprisonment (discretion) s161B(4);

46


Note also – where a person who is convicted as a serious violent offender is in prison, on parole or similar, (s151A(1)(b)), the sentence of imprisonment must be served CUMULATIVELY. R v Booth

– although this may seem harsh, this was the intention of the legislature.

Cannot apply for parole until 80% of their sentences have been served or

15 years imprisonment

– this cannot be reduced (s157(7) PSA);

Parole

An offender’s eventual release on parole is not ultimately decided by the sentencing court – the role of the sentencing court is to recommend, if it wishes, that the offender be eligible for parole after having served a certain amount of the sentence: s157(2) PSA. It is only a recommendation. Qld Community Corrections

Board actually deals with parole. Corrective Services Act 1988 (Qld) s162-196 also discusses parole. S166(1)(a) 7 (b) discuss life sentences; s166(1)(c) discuss serious violent offenders (also part 9A PSA).

Eligibility to apply: s166 (1):

life sentence 15 years (or 20 years for multiple murders);

others – 50 % of sentence is served;

SVO

– 80% served;

Recently held in Mickelo that it is not possible to make a sentence of imprisonment cumulative on a life sentence.

When released on parole, under supervision of correctional officer

– if breach, parole may be suspended.

Criminal Compensation

See the Criminal Offence Victims Act 1995 and Part 3 Division 4 PSA ss34-

43 dealing with Orders for Restitution and Compensation of Victims, immediate family members, or those suffering harm while intervening to help a victim;

Who is the victim? See ss6-18;

Compensation can be ordered even if no other penalty;

Offender can be ordered to make restitution of property, or pay compensation for loss to property or personal injury;

Sentencing under the Juvenile Act 1992 (Qld)

Sentencing children is dealt with under the Juvenile Justice Act 1992 (Qld) which became operational in 1993. ‘child’ means a person who has not turned 17. It is also possible under s6 for this to be changed by the Govenor in Council by regulation, to a person who has not turned 18.

Crimes (Confiscation) Act 1989

This act provides for the confiscation of the profits of crime, and has particular application to drug offences, where large amounts of money may be involved.

47


HOW TO ANSWER A SENTENCING QUESTION

(1) If an appeal, discuss s668D (right of appeal)/668E (determination of appeal in ordinary circumstances) and establish the grounds for the appeal;

(2) Go through the question by issue – discussing applicable PSA provisions and any relevant cases on each point, and reach a conclusion on each point;

(3) Do NOT discuss all sentencing principles in s9(2) and / or s9(4), work out which are applicable and need mentioning;

(4) Not required to have detailed knowledge of which sentencing options should apply, or how long a jail term should be – emphasis is on the relevant principles;

(5) Do not discuss other issues such as criminal compensation, parole etc unless specifically asked to;

See Question 2 from the 1997 exam paper in the study guide

– issues needed to be addressed in your answer are:

maximum sentence s9(2)(b) principles applicable

– see also

Veem no 2;

Chivers;

nature and seriousness of offence is an aggravating feature: s9(2)(a) and see

H;

Effect of previous convictions: s9(2)(f), sec11, see also Veem no 2 ;

Consider the psychiatric report (s15) disclosing drug and alcohol abuse and ingestion of drugs and alcohol on the day of the offence – this may not be mitigatory, but an explanation

–

Rosenberger ( alcohol) and Hammond

(drugs);

Plea of guilty at a late stage: s13 – still entitled to discount for savings in administration of justice as no cost for the trial

–

Corrigan discusses how section13 applies;

Consequences of conviction for SVO (Part 9A), esp on parole (80% rule s166 corrective services act and s157(7) PSA, no remissions, s161D PSA).

48

Crim Notes Semester 2

Related documents

Products

Support

Crim Notes Semester 2

Related documents

Add this document to collection(s)

Add this document to saved

Suggest us how to improve StudyLib