Monash Law Students’
Society
STUDENT TUTORIAL
PROGRAM 2015
SKETCH NOTES
Criminal Law
B
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If you have any questions, please do not hesitate to contact tutorials@monashlss.com Tutor name: Ayesha Singh Studied Criminal Law B: Semester 2 2014 Cases included that are not in the Crim B 2015 reading guide: Topics in the Crim B 2015 unit guide not included: Sexual offences, parties Cases in the Crim B 2015 reading guide not included: Morris [1984] AC 320 AG’s Ref (No 1 of 1985) [1986] Bonollo [1981] VR 633 B v Director of Public Prosecutions [2000] 1 All ER 833 Director of Public Prosecutions v Morgan [1976] AC 182 PROPERTY OFFENCES Theft (S 72(1) Crimes Act) 1. AR: Appropriation • Appropriation is an assumption of the owner’s rights (S 73(4)) o An owner generally has the right to control and possess property (Roffel; Henshall; Woodrow) o Appropriation could involve taking, using, damaging, extinguishing, lending, retaining or offering to sell another person’s property (Roffel; Henshall; Woodrow) • Exception: good faith purchaser (S 73(5)) • Consent: in Victoria, there is no appropriation if there is valid consent from the owner (Baruday) o C.f. Britain: consent is irrelevant to appropriation; all that is needed is an assumption of the owner’s rights (Lawrence; Gomez; Hinks) • When the company is a victim: there is no appropriation if the Accused is ‘the mind’ of the company (Roffel) o C.f. McLeod (NSW): a sole owner or officers of a company can steal from the company 2. AR: Property • Property o Money (S 71(1)) o Real and personal property (S 71(1)) o Things severed from land (S 73(6)(b)) o An animal that has been reduced into possession or is in the course of being reduced into possession (S 73(7)) o Electronic funds transfer/bank deposit (Preddy) o Cheque (Parsons) • Not property o Land or things forming part of land (S 73(6)) o Wild animal or carcase (S 73(7)) o Confidential information (Oxford) o Copyright (Lloyd) o Future obligation (Akbulut) 3. AR: Belonging to another (BTA) • Per S 71(2) Crimes Act, property will belong to any person having o A proprietary right or interest; or o Possession; or o Control Property must belong to at least one person, but may belong to more and can be stolen from each of those people • It is possible for an owner to steal their own property (Turner) o C.f. Meredith • Does not BTA: o Abandoned property: is neither possessed nor controlled, so is not property BTA o If the AR and MR are not contemporaneous (e.g. Greenberg) • Can things in action BTA? o Victoria: Cheques are valuable pieces of paper capable of being owned, controlled or possessed by both the drawer and the payee (Parsons). Can therefore infer that an electronic funds transfer can also BTA. o UK: things in action can BTA (Williams, overruled Preddy) • S 73(8) -­‐ trusts • S 73(9) -­‐ fiduciary obligations o There must be a legal obligation, but it does not need to be ultimately enforceable (Meech) o A mere contractual obligation to provide a service in return for payment is not sufficient (Hall) • S 73(10) -­‐ mistake 4. MR: Intention to permanently deprive (IPD) • IPD is an intention to treat property as one’s own to dispose of, regardless of the owner’s rights (S 73(12) Crimes Act) o S 73(13) -­‐ deemed IPD • Taking or using a motor vehicle or aircraft without the owner’s consent is deemed IPD (S 73(14)(a) Crimes Act) o Attempting to take or use a motor vehicle or aircraft without the owner’s consent is also deemed IPD (S 73(14)(b)) • Fungibles are deemed to always satisfy IPD, because they cannot be precisely returned o E.g. money (notes and coins), petrol, sugar, flour, perfume, make up • Intention to temporarily deprive is not the same as IPD (Lloyd; Warner; Dardovska) • Conditional intention to permanently deprive may be sufficient to make out IPD (Sharp) 5. MR: Dishonesty • For an appropriation to be dishonest (S 72(1) Crimes Act), the Prosecution must establish beyond reasonable doubt that the Accused appropriated property belonging to another in the absence of one of the three beliefs set out in S 73(2) Crimes Act •
Appropriation is still dishonest even if the Accused was willing to later pay for the property (S 73(3)) v S 73(2)(a): Accused believed they had a legal right to the property o This is a subjective belief (Salvo; Brow), not objective like the UK (Feely) o NB: an Accused will still be protected by S 73(2)(a) if they use deceptive methods to acquire property that they believe they have a legal right to (Salvo) v S 73(2)(b): Accused appropriated the property in the belief that they would have the owner’s consent if they knew of the appropriation and its circumstances v S 73(2)(c): Accused appropriated the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps • C.f. Commonwealth jurisdiction: dishonesty is to be decided by the jury, applying the standards of ordinary decent people (Peters) • C.f. UK: must be objectively and subjectively dishonest (Ghosh) o
Obtaining property by deception (OPD) (S 81(1) Crimes Act) 1. AR: Obtains • Per S 81(2) Crimes Act, obtains includes o Owning o Possessing o Controlling o Obtaining for another o Enabling another to control or retain 2. AR: By deception • Can be as to fact or law (S 81(4)(a) Crimes Act) • Can be by words or conduct (Gilmartin; S 81(4)(a) Crimes Act) • Can be deliberate or reckless (S 81(4)(a) Crimes Act) • S 81(4)(b) Crimes Act -­‐ computers/machines (overrules Kennison) • There must be a causal link between the deception used and the obtaining of property, where deception affects the mind of the victim (Perera; Lambie) o The victim does not need to be the person deceived (Kovacs) 3. AR: Property • See above (theft) 4. AR: BTA • See above (theft) 5. MR: IPD • See above (theft) 6. MR: Dishonesty • See above (theft) o NB: only S 73(2)(a) Crimes Act is applicable to OPD Obtaining financial advantage by deception (OFAD) (S 82(1) Crimes Act) 1. AR: Obtains • See above (OPD) 2. AR: By deception • See above (OPD) 3. AR: Financial advantage • E.g. a job, fake qualification, evading a debt (Vasic), obtaining a service without payment (Ray) 4. MR: Dishonesty • See above (OPD) Robbery (S 75(1) Crimes Act) 1. Steals • Need to prove the AR and MR elements of theft (Langham) 2. Force • Use of actual force; OR o Force is any physical strength (Dawson; Galas and Mikhael) o Use of force may be on any person, not just the property owner o The use of force must be immediately before or at the time of committing the offences (Hale) Threat of force o The threat must either cause personal intimation or be intended to cause intimidation or submission ( Galas and Mikhael) v The use of force or threat of force must be done with intention to facilitate the theft •
Armed robbery (S 75A (1) Crimes Act) 1. Robbery 2. AR: Possession of a weapon • Items considered weapons for armed robbery listed in S 77(1A) Crimes Act o Explosive o Imitation explosive o Firearm o Imitation firearm o Offensive weapon: any article made or adapted for use for causing injury to or incapacitating a person, or which the person having it with them intends or threatens to use for such a purpose Ø An article can be an offensive weapon even if the victim was unafraid, so long as the accused intended to use it or threatened to use it (Kuhl) Ø NB: the accused must have intended to use the offensive weapon for the purpose of causing injury or incapacitation (Ohlson) • The weapon must have been in the accused’s possession at the time of the offence • The weapon does not have to have been used or produced 3. MR: knowingly has weapon Burglary (S 76(1) Crimes Act) 1. AR: Enters (Collins) • An entry is made as soon as part of the person’s body is inside part of the building • It is sufficient if it is an object being used by the accused that enters the building 2. AR: Building/part of building • A building is a structure of considerable size, intended to be permanent or at least to last for a considerable time (Walkington) • S 76(2) Crimes Act -­‐ inhabited vehicle or vessel 3. AR: As a trespasser • Trespass is an entry without right or authority of a person who is in possession of the land (Barker) • Exception: if the accused had a licence to enter o Does not apply if the licence was obtained by fraud o Does not apply if the accused entered for a purpose other than that which the licence was granted 4. MR: Intentionally or recklessly enters as a trespasser • Accused must enter intentionally as a trespasser, or enter recklessly as a trespasser, in the sense of knowing the entry might not be permitted but continues regardless (Barker) • Exception: honest belief of a right to enter o A trespasser who enters in exercise of an honest claim of a right to enter, even if they know or are reckless as to the existence of the facts which make them a trespasser, is not trespassing (Barker) 5. MR: Intention S 76(1)(a) Crimes Act: To steal; OR S 76(1)(b) Crimes Act: To commit an offence involving an assault to a person in the building or any damage to the building or to property in the building, which is punishable with imprisonment for a term of five years or more •
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It is not necessary to show that the accused actually committed any of these; intention is sufficient NB: formation of intent after entering the building will not turn trespass into burglary Aggravated burglary (S 77(1) Crimes Act) 1. Burglary (AR + MR elements) 2. Has a weapon OR someone is inside the building (Woodward) ATTEMPTS 1. AR: Act of attempt • The Prosecution must prove that the accused attempted an offence, by showing that their act was more than mere preparation (S 321N(1)(a) Crimes Act), and was immediately, not remotely, connected to the attempted offence (S 321N(1)(b) Crimes Act) A: The last act test •
The Prosecution may use the last act test, and argue that the accused completed all acts necessary to complete the offence (Eagleton; Robinson) B: Substantial steps/progress test The Prosecution could instead use the substantial progress test, and argue that the accused’s act was an attempt as it was sufficiently proximate to the attempted offence (Stonehouse) 2. MR: Intention that the indictable offence be committed • The Prosecution must prove that the accused intended the indictable offence would be committed (S 321N(2)(a) Crimes Act; Britten; Stonehouse) o Recklessness and negligence are insufficient (Giorgianni) • If the principal offence is a ‘result crime’ that necessitates proof that the accused caused a particular result, the prosecution must prove beyond reasonable doubt that the defendant intended that result (Mohan) •
3. MR: Intention or belief in facts and circumstances • The Prosecution must prove that the accused intended or had belief in the facts and circumstances (S 321N(2)(b)) o Recklessness is sufficient Defences Voluntary desistence •
If the withdrawal occurred while the conduct was still preparatory, there is no attempt (Page) •
If the desistence is due to a third party, this defence is inapplicable Impossibility •
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Legal impossibility o This is a valid defence o The accused cannot be guilty of an attempt that is not unlawful (Britten) Factual impossibility o This is not a valid defence (S 321N(3)) o This occurs when the commission of an offence is impossible, because of facts unknown to the accused (Britten) STRICT LIABILITY (SL) 1. MR presumption • There is a presumption that an offence has an MR element (Sherras) 2. Is the MR presumption rebutted? Apply the He Kaw Teh test. A: The wording of the section creating the offence •
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Are there particular words that suggest MR? NB: the fact that other sections of the Act expressly require MR is not sufficient to justify a decision that a section which is silent to MR creates SL (Sweet) B: Subject matter and purpose of the statute •
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Prosecution argument: the greater the harm caused, the greater the need for effective enforcement, so more likely to require MR (Kearon) Defendant argument: the more serious the offence, the more likely it is to require MR (He Kaw Teh) C: The social utility of imposing SL, encompassing consideration of: •
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The seriousness of the consequences for the community of the commission of such crimes The seriousness of the consequences for the individual of potential conviction Whether SL would assist in the enforcement of the regulations 3. If the MR presumption is rebutted, is the offence strict liability or absolute liability? • If it appears that parliament intended an offence to not require MR, it is presumed that parliament intended the defence of honest and reasonable mistake of fact (HRMF) to be available (Proudman; CTM) o NB: if the wording of the statute offers a ‘reasonable’ excuse, it must be SL • Reapply the He Kaw Teh test to see if the HRMF is rebutted o Courts are reluctant to impose absolute liability, and the threshold is high (Allen) v If the offence is absolute liability, all that is needed is for the Prosecution to prove the AR o Even if the accused is physically forced to commit the AR against their will, they will be found guilty (Larsonneur) v If the offence is strict liability, proof of AR elements alone may be sufficient to prove guilt (Woodrow; Larsonneur) o The defence of honest and reasonable mistake is also available Defence: honest and reasonable mistake (Proudman; CTM) •
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The onus is on the accused to raise this defence, and there is an onus on the Prosecution to disprove it beyond reasonable doubt The mistake must be honest (subjective) and reasonable (objective) (Proudman) o The defence cannot be applied unless there is a positively held belief (Proudman) Per Proudman, it must be a mistake of fact (e.g. Iannella), not law (e.g. Ostrowski) o If the accused makes a compound mistake that comprises both a mistaken factual and legal belief, it will be treated as a mistake of fact (Thomas) o Ignorance of the law is not a defence (Esop) The honest and reasonable mistaken belief must be one which would render the act an innocent act (Mayer) DRUG OFFENCES Use of drugs (S 75 DPCSA) 1. AR: substance is a drug of dependence (DOD) • Defined in S 4 DPCSA to include any form of the drugs specified in parts 1 and 3 of Schedule 11, whether natural or synthetic • Includes mixed substances and unusable parts of a drug (e.g. stems and roots) 2. AR: use of DOD • Per S 70 DPCSA, use includes: o Smoking o Inhaling fumes caused by heating or burning o Introducing into the body of a person 3. AR: had no authorisation or licence under the DPCSA to use or administer the DOD 4. MR: intention to use • The Prosecution must prove that the accused intended to use the DOD (Saad; Kural; He Kaw Teh) • Intention can be shown by actual or inferred knowledge o Actual knowledge must always be proven beyond reasonable doubt, using a subjective test (Pereira) Possession of drugs (S 73 DPCSA) 1. AR: substance is a DOD • See above (use) 2. AR: had no authorisation or licence under the DPCSA to use or administer the DOD 3. AR: possession of the DOD v Can rely on deemed or common law possession v There must be a sufficient amount of DOD to be able to say as a matter of common sense that the accused is in possession of a drug (Williams, rejects Bocking) o Not sufficient if the quantity is only detectable by scientific means v Custody for any length of time is sufficient to amount to possession (Boyce) • Deemed possession (S 5 DPCSA) o The accused used, enjoyed or controlled the DOD at any place; OR DOD was on land or premises occupied by the accused • Common law possession o Actual custody; OR o Constructive custody Ø Constructive custody means that the DOD does not need to be physically with the defendant (Maio), but they must have power to exercise control. There is no need for exclusive control, but no one else should be likely to discover the DOD, except by accident (Van Swol). C.f. Buck 4. MR: intent to possess DOD • The Prosecution must prove that the accused intended to possess the DOD (Saad; Kural; He Kaw Teh) • Intention can be shown by actual or inferred knowledge o Actual knowledge must always be proven beyond reasonable doubt, using a subjective test (Pereira) o
Trafficking of drugs (S 71AC DPCSA) 1. AR: Substance is a DOD • See above (use) 2. AR: Had no authorisation or licence under the DPCSA to use or administer the DOD 3. AR: Trafficking a DOD A. S 70 DPCSA provides a non-­‐exhaustive list of ‘trafficking’ o Preparing a DOD for trafficking o Manufacturing a DOD for trafficking o Selling, exchanging, agreeing to sell, offering to sell or having in possession (CL possession, not S 5 deeming provision) for sale B. If a person has in their possession (without authorisation) a DOD in a quantity that is not less than the trafficable quantity applicable to that DOD, possession of that DOD in that quantity is prima facie evidence of trafficking (S 73(2) DPCSA) o Per Momcilovic, when relying on possession to make out trafficking, it must be by establishing CL possession (cannot use S 5 deeming provision) o S 73(2) does not reverse the burden of proof; the jury still needs to be convinced beyond reasonable doubt that the defendant trafficked (Clarke and Johnstone) o The accused can rebut S 73(2) with evidence they were not trafficking C. The Prosecution can also rely on the common law definition of trafficking: o An activity performed in a commercial setting; AND o Participation by the trafficker in the progress of goods from source to consumer; AND o Contact between the alleged trafficker and at least one other person • Trafficking does not need to be for reward to the accused (Falconer) • One incident may be enough to constitute trafficking (Falconer) o However, trafficking does not need to be an isolated act. A single count of trafficking can be on a ‘between dates’ basis (Giretti) 4. MR: Intentionally trafficked or attempted to traffic • The Prosecution must prove that the accused intended to traffic or attempted to traffic the DOD (Saad; Kural; He Kaw Teh) o Intention can be shown by actual or inferred knowledge o Actual knowledge must always be proven beyond reasonable doubt, using a subjective test (Pereira) • The accused must have intended to traffic in the specific class of quantity they did (Mustica; Nguyen) o Must have had this intention from the onset of the trafficking (Mustica)