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1.
Murder a.
Actus i.
Act or omission must have caused the death (s 18(1)(a) CA) b.
Mens i.
No punishment shall be incurred by person who kills by misfortune only (s 18(2)(b)) ii.
Intention to kill or inflict GBH(s 18(1)(a))
1.
Requirement that D has actual awareness of consequences of actions (Aiton)
2.
Subjective test: Conscious purpose, decision not desire (Hyam)
3.
Foresight of certainty (Woollin)
4.
Knowledge of chance of consequences fulfils malice requirement (Coleman); transferred malice (intent to kill some1 else)
5.
"Grievous bodily harm" includes(s 4):
(a) the destruction of foetus, whether or not the woman suffers any other harm, and
(b) any permanent or serious disfiguring of the person, and
(c) any grievous bodily disease (causing a person to contract a grievous bodily disease). iii.
Reckless indifference to human life(s 18(1)(a))
1.
Act or omission must be malicious and without lawful cause/excuse (s 18(2)(a))
2.
ProbabilityNOT possibility of death or GBH required(Crabbe) a.
Probability = likely, a real and substantial risk (Boughey), in that it could well have happened as a result of the act (Darkan) b.
Not indifference as to consequences; but knowledge that those consequences will probably occur c.
Not a remote chance (Annakin)
3.
Wilful blindness has no role to play in murder, the question is if D had actual knowledge or foresight of the probability of death/GBH, imputed knowledge is not enough (Crabbe) – subjective test!
4.
Reckless indifference to GBH and not death issue amounts to manslaughter rather than murder (Solomon) iv.
So long as one of the mental states for murder was present, irrelevant that the accursed did c.
Penalty not intend the precise way in which death actually occurred (Royall) i.
Life imprisonment (s 19A(1)); natural life (s 19A(2))
1.
If court is satisfied that level of culpability is so extreme that community interest in retribution, punishment, community protection and deterrence can only be met through that sentence (s 61 CSPA) ii.
Imprisonment for specified term can be imposed otherwise (s 21(1) CSPA)
2.
Suicide a.
Not a criminal offence to attempt suicide (s 31A CA) b.
Offence to aid or abet suicide (s 31C(1))
3.
Euthanasia a.
help bring about their death = murder/aiding or abetting suicide- 10 yrs imprisonment. (s 31C(1))
4.
Protecting the foetus a.
Foetus i.
Right of pregnant women to choose whether to undergo medical treatment outweighs foetus’ need for treatment (St George’s Healthcare) ii.
Abortion: offence to perform act with intent to procure miscarriage, unless therapeutic
(ss 82-84 CA) iii.
Violence to foetus causing death in utero (King)
1.
Not murder or manslaughter
2.
Death of foetus = GBH to pregnant woman (s 4 CA) b.
Child – ‘alive’

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Definition:
1.
Murder: child is held to be alive if it has breathed, independent circulation and been wholly born into the world (s 20)
2.
Manslaughter: any sign of life after delivery (Iby) ii.
Child born alive but dying due to earlier violence can constitute criminal homicide and causing death by dangerous driving (Case of F) iii.
GBH to child during /after delivery (s 42) iv.
Wilfully contributing to a child’s death during/after delivery – alternative to murder (s 21)
5.
Constructive Murder a.
Actus i.
Act or omission causing death is done in an attempt to commit, or during/immediately after commission, by accused/with accomplice,of a crime punishable by imprisonment for life or
25 years (s 18(1)(a) CA) ii.
Acts done in furtherance of/associated with purpose of committing felony (Mraz) iii.
Base offence:
1.
Felonious conduct must involve violence or danger to some person (Ryan)
2.
Example s 98 CA: robbery with arms and wounding b.
Mens i.
No intent to murder ii.
Guilty mind must coincides with substantial act, but need not coincide with final act, e.g. walking around with loaded gun (Ryan) iii.
Death may be an accident; but act causing death must still be voluntary (Ryan)
1.
Need not prove that D realised death/other consequence could result, or that RP could have appreciated any such risk (Munro) iv.
Require consequential accident AND involuntary act to contest constructive murder (Ryan) c.
Causation i.
Close connection necessary, but no strict causal link required (Munro) ii.
Injuries must be an operative and substantially contributing cause of death iii.
Time dimension on case by case basis(Elliott)
6.
Involuntary Manslaughter a.
Every other punishable homicide shall be taken to be manslaughter (s 18 (1)(b) CA) b.
No absolute liability if death is caused, depends on what RP in D’s position would have expected c.
No need to prove malice (Lavender) d.
Objective test: Reasonable person i.
Reasonable person has characteristics of D and knowledge of D of surrounding & ordinary fortitude of strength of mind (Lavender) ii.
Excludes emotional, mental state or anything personal affecting reasoning/judgement
(Wills) iii.
Subjective beliefs are irrelevant (Lavender) e.
Manslaughter by an unlawful act i.
Actus:
1.
Unlawful act, not omissione.g. child neglect (Lower) a.
Direct contact not necessary,t5r still liable if injury occurred as an immediate result of D’s act without a fresh intervening cause (Mitchell) b.
Includes: injection with unlawfully possessed drug (Cato) i.
Administering drug must be ‘direct act’ for manslaughter (Dalby) c.
Excludes: self defence(Cornelissen), natural mistake (Lamb) d.
Motor vehicle accident only unlawful where vehicle used as weapon, otherwise criminal negligence (Pullman)
2.
Need distinct offence, tort/contract/other civil wrong not enough (Wilson) ii.
Objective test
1.
Dangerous act: RP in D’s position should have realised that the act carried with it an
appreciable risk of serious injury (Wilson)
2.
Intention to do an unlawful thing, need not be directed at ultimate victim (A-G’s

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Reference (No 3)) f.
Manslaughter by criminal negligence i.
Actus: Negligence is of a degree high enough to warrant criminal punishment:
1.
Conscious and voluntary act omission causes death; ii.
Objective test: falls ‘short of the standard of care which a RP would have exercised, and which involved such a high risk of death or GBH (Nydam)
1.
Need not prove act was unlawful iii.
Duty in negligence (BRD): Duty of care, breach through act/omission, causation(Sood)
1.
Duty exists even where there was joint unlawful activity (Wacker) iv.
Defence of HRMF is not available (Lavender) g.
Penalty h.
25 years imprisonment (s 24)
7.
Deaths on the road: a.
Death by culpable driving (s 52A CA)
(1) Dangerous driving occasioning death (10 years)
(a) intoxicated, or
(b) speeding, or
(c) driving dangerously.
(2) Aggravated dangerous driving occasioning death (14 years)
(3) Dangerous driving occasioning GBH – as above (7 years)
(4) Aggravated dangerous driving occasioning GBH (11 years) b.
Negligent driving causing death/GBH (s 42 Road Transport Act)
8.
Homicide by omission a.
Actus: Failure to act i.
@CL there must be a duty to act(Instan) ii.
No duty where victim is capable of taking care of themselves (Russell) b.
Duty to act: i.
Special relationship(Russell)e.g. parental, but not husband – wife ii.
Legal duty created by undertaking – contract iii.
Voluntary assumption (VA) of responsibility
1.
Possible VA where there is someattempt to care (Stone and Dobinson)
2.
Where person secludes helpless person, preventing others from getting aid (Taktak) iv.
Control over a dangerous thing v.
Duty imposed by statute
9.
Causation for proving actus in homicide a.
General rules i.
Must be a cause, not necessarily the cause (Royall) ii.
Must have a temporal nexus between the act and death(Royall) b.
Tests for causation i.
Substantial contribution
1.
Whether an act/omission consciously performed is so connected that it had a sufficiently substantial causal effect, which subsisted up till the event and was not sufficiently interrupted by another act/event. (Hallett) a.
Chain of causation only broken by extraordinary events, e.g. earthquake ii.
Natural consequence test(Royall)
1.
Whether V’s act/death could reasonably have been foreseen as a natural consequence of D’s act(Roberts in Royall)
2.
E.g.D’s conduct induces in V a well-founded apprehension of physical harm, then V gets injured in the course of escaping (Royall) iii.
Reasonable foreseeability test
1.
Harm must be foreseeable, not the way that the harm occurred (Royall) iv.
Operating and substantial cause test
1.
Where there is more than one potential cause of death, original injuries inflicted must be continuing, operating, substantial causes of V’s death(Smith) c.
Medical treatment cases breaking causal chain

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Thoroughly bad treatment (Smith)
1.
Only reckless (not negligent) med-treatment will break chain of causation (Cheshire)
2.
Where brain stops working, dr will not be guilty of homicide for withdrawing life support because V is technically dead before removal (s 33 Tissue Act) ii.
Palpably wrong treatment (Jordan) iii.
Liability on medical profession: generally if hasten death, responsible in law for causing it
(Dyson) iv.
Patient’s wishes
1.
Adult of sound mind can refuse medical treatment (St George’s NHS Trust v S)
2.
Dr guilty of battery if insists on treating patient against wishes, unless a court acting in its parenspatriaejuris authorises it (Royal Alexandra Hospital v Joseph)
3.
Dr guilty of murder if dr removes life support from competent patient who wished to continue treatment (R(Burke) v General Medical Council) d.
Pre-existing condition – take victim as you find them (Blaue) e.
Fright and flight cases – novusactusinterveniens i.
Reasonable foreseeability (Paggetts)
1.
Act of a 3 rd party causing death, even if done in self-defence from original aggressor, death will not be imputed to original aggressor as it is too remote(Paggett) ii.
Reasonable and proportionate test
1.
Jury to determine if V’s response was reasonable/proportionate in the circumstances (RIK)
10.
Voluntary manslaughter a.
Met mens for murder, but mitigating factors limit culpability b.
Provocation, substantial impairment, intoxication, excessive self defence, infanticide
1.
Burden of proof a.
Defence with evidential burden i.
Evidential burden on D to prove defence elements ii.
Judge decides whether issue is left to the jury based on reasonable possibility iii.
Persuasive burden on P to prove BRD to the jury iv.
Includes – non-insane automatism, provocation, intoxication, self-defence, duress, necessity b.
Affirmative defence i.
Persuasive burden on D on the BOP: insanity, substantial impairment, insane automatism ii.
Burden on P who raises insanity is BOP(Ayoub)
2.
Justifications and excuses - reasoning a.
Offence is satisfied but challenge wrongfulness/attribution of the act b.
Harm caused outweighs harm prevented
3.
Mental illness: Insanity defence a.
M’Naghten test i.
At the time of act, D was labouring under such a defect of reason, from disease of the mind as to not know:
1.
The nature and quality of the act he was doing
2.
Or that what he was doing was wrong b.
Defect of reason i.
Defect must be cognitive – prevent D from knowing what is wrong, does not cover feelings ii.
Defence not available for volitional defects e.g. impulses (Sodeman) iii.
Psychopaths/sociopaths not covered – not cognitive defect, emotional defect(Willgoss) iv.
D thought there was good reason for killing due to mental illness (Jones) c.
Disease of the mind i.
Presumption of soundness of mind to be criminally responsible (Porter) ii.
D not of sound mind when act was done iii.
State of mind must be one of disease, disorder or disturbance rather than stupidity/lack of self control (Cheatham)

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Uncertain if intellectual disability d.
Nature and quality of the act i.
Intention to kill, but little capacity to understand nature of killing (Cheatham) e.
Wrongness i.
Stapleton ii.
Know he was killing & why killing, but unable to appreciate wrongness (Cheatham) iii.
‘Wrong’ having regard to everyday standards of reasonable people iv.
Mere difficulty with reasoning processing too low of a standard, must be unable to appreciate or incapable (Cheatham) f.
Special verdict: not guilty for mental illness(s 38 MHCPA) i.
Detained in custody for indeterminate period, as the court thinks fit(s 39 MHCPA) ii.
No appeal available after receiving special verdict (Logan) iii.
However, if convicted, may appeal to the CCA (s 5(2) CAA)
4.
Fitness to plead a.
D will be unfit to stand trial if incapable of understanding nature/purpose of proceeding, or incapable of community with the court (Presser) b.
Minimum standard for trial – to understand what he is charged with, plead to the charge, exercise right to challenge, understand general nature of proceedings, let counsel know his version of the story (Presser) c.
Issue of unfitness may be raised by either party, proven on BOP (no party bears onus), should be raised before the trial, but can occur during proceedings (Pt 2 MHCPA) d.
Matter decided by judge/jury; court refers D to the Mental Health Review Tribunal
5.
Forensic patients a.
Patients who are (ss 97, 98 MHA): i.
Unfit to be tried ii.
Not guilty by reason of mental illness iii.
Transferred from general prison due to mental illness b.
Inspected every 6 months by Tribunal (ss 80-83 MHA) c.
Released: person no longer mentally ill and no longer require hospital detention i.
AG can refuse on ground of insufficient time in custody (s 84 MHA) via discretionary powers of public scrutiny (Hayes et al) d.
Summary proceedings i.
Mag may adjourn if D is mentally ill (s 33 MHA) or suffering from mental condition (s 32)
6.
Civil proceedings for involuntary committal a.
No criminal offence, involuntarily committed to hospital or self-protection/protection of others b.
Act of last resort when no other care is appropriate(s 20 MHA) c.
Appeal made to Tribunal
7.
Insane and non-insane automatism a.
Automatism: Act done by the muscles without control by the mind(Bratty) i.
Can be raised with insanity (Falconer) b.
Sane automatism is where involuntary act does not proceed from disease of mind (Bratty) c.
Insane automatism is where involuntary act proceeds from disease of mind. d.
Test: Is there a disease of the mind?(Falconer): i.
Prone to recur (not transitory)= disease of the mind ii.
Arising from external cause = not disease
1.
Reaction of mind to own delusions/external stimuli = suggests disease e.
Not involuntary act because: i.
Doer does not remember (Hill v Baxter) ii.
Doer could not control impulse (Brown) iii.
Unintentional, or consequences are unforeseen (Hill v Baxter) f.
Causes i.
Insane -Special verdict(Judge may leave insanity to jury even if D does not want to)
1.
Hyperglyceamia: Failure to take insulin – no external factor (Hennessy)
2.
Epilepsy: recovering from seizure (Sullivan)

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3.
Sleepwalking: Abnormality of mind (internal); transitory but can recur (Burgess) ii.
Non-insane - COMPLETE DEFENCE
1.
Concussion in sport: Falconer test, question of involuntariness left to jury(Wogandt)
2.
Intoxication & drugs (O’Connor)
3.
Hypoglycaemia: taking insulin – external factor (Quick)
4.
Psychological trauma from prolonged abuse (Falconer)
5.
Sleepwalking: not a neurological illness but a sleep disorder (Jiminez, Parks)
6.
Dissociation (post traumatic stress disorder) (Donyadideh) g.
Voluntariness and psychiatric evidence i.
Evidence indicating disease of the mind cannot support automatism, used to prove insanity
(Falconer) ii.
Where insanity is not raised, psychiatric evidence of mental disease is not admissible on question of voluntariness(Hawkins)
8.
Substantial Impairment (Partial defence) a.
s 23A CA i.
At the time of the killing there was substantial impairment of D’s capacity to:
1.
understand events
2.
judge whether decisions were right or wrong or
3.
control him/herself ii.
Impairment was due to abnormality of mind arising from underlying condition iii.
Impairment so substantial as to warrant reducing murder to manslaughter iv.
Effect on D was not result of self-induced intoxication b.
Abnormality of the mind i.
State of mind so different that ordinary human being consider abnormal (Byrne) ii.
Question is if abnormality substantially impaired D’s mental responsibility; jury can consider medical evidence, acts/statements of D, demeanour iii.
Affecting:
1.
Perception of physical acts and matters
2.
Ability to exercise rational judgement as to whether an act is wrong or right
3.
Ability to exercise will power to control physical acts in accordance with rational judgement c.
Underlying condition i.
Pre-existing, not transitory ii.
Silent on requirement for medical evidence; not usually admissible – only if relevant to capacity to understand events/self-induced intoxication iii.
E.g schizophrenia, depression, psychopathy d.
Causes: Biology, gender, responsibility – women & PMS, men & testosterone? e.
Sentencing i.
Substitutes manslaughter for murder(s 23A(5)) ii.
Longer sentence, judges view them as being incapable of being cured (Veen) iii.
Consideration of protection of society balanced with culpability
9.
Infanticide (Alternative verdict, partial defence) a.
s 22A CA i.
Wilful act or omission causing death of child < 12 mths; mind disturbed by reason of not having fully recovered from giving birth(s 22A(1) CA) ii.
Does not affect power of jury to give murder (or insanity defence) (s 22A(3) CA) b.
Alternative verdict to murder; sometimes obtained by way of plea of guilty rather than jury verdict
10.
Intoxication a.
Negativing factor, complete defence to crimes of SPECIFC INTENT (bar murder; partial) b.
Cannot be used for other offences, but may be considered if NOT SELF-INDUCED (s 428D) c.
s 428A: Self induced intoxication: not involuntary, intoxicated as a result of fraud, extraordinary emergency, accident, duress or force, medical purposes d.
s 428B(1): Offence of specific intent: intention to cause specific result

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Pt 11A Crimes Act i.
ACTUS REUS - voluntariness
1.
s 428G(1): NOT SELF-INDUCED intoxication can determine voluntariness
2.
s 428G(2): If conduct resulted from NOT SI intoxication, not criminally responsible a.
Simply having reduced ability to control actions is not an excuse (Kingston) b.
Determine causation: ‘common sense’ test (March) – not but for test ii.
MENS REA – specific intent/ basic intent to cause specific result necessary for crime
1.
s 428C: Evidence of intoxication (SELF-INDUCED or otherwise) may be taken into account to determine if there was specific intent, except if: a.
D resolved to do act before being intoxicated b.
Become intoxicated to strengthen their resolve
2.
s 428D: Evidence of NOT SELF-INDUCED intoxication may be taken to determine mens rea in offence other than specific intent
3.
s 428E: Evidence of NOT SELF-INDUCED intoxication can be used to determine mens rea for manslaughter (no specific intent)
4.
s 428F:RPis NOT intoxicated iii.
Specific intent: ALL murder even where murder is based on reckless indifference (Grant) iv.
Jury must ask whether D had the capacity to form intent & formed the intent (Makisi) v.
Lesser offences:Malicious wounding with intent to cause GBH (s 33): SELF-
INDUCEDintoxication relevant to intention to cause GBH, but NOT malicious-ness
11.
Provocation (Partial defence) a.
Reduces liability for murder to manslaughter (s 23(1)) b.
Burden: Evidential burden on D; P to prove BRD that conduct did not cause provocation (s 23(4)) CA) c.
Elements i.
Provoking circumstance, that induces ordinary person to form intent to kill (s 23 CA)
1.
Words alone: must be inflammatory in context, not necessarily an insult(Lees)
2.
Within sight or hearing:yes; s 23(2)does not expressly require conduct to occur in D’s presence, but legislature did not intend to change CL position (Davis)
3.
Self-induced: not available where D invited/induced provocation (Edwards) ii.
Two tiered gravity &self control test (Stingel):
1.
Subj test: D must have lost self control (s 23(2)(a) CA) a.
Gravity/offensiveness of provocation to OP with D’s characteristics b.
Ordinary person (OP) has all the relevant circumstances: i.
Gender+ Battered woman’s syndrome(Osland) ii.
History with V (Masciantonio) iii.
Intoxication (Croft) iv.
Age (Stingel) v.
Ethnicity(Masciantonio) vi.
Mental deficiency(Luc ThietThuan) vii.
Depression (Smith) viii.
Sensitivity to sexual assault: homosexual advance(Green) c.
Time factor:V’s conduct at any time may form basis for provocation, must still draw distinction between provocation and planned (Chhay),
2.
Obj test: Could an OP have lost self-control to the same extent as D(s 23(2)(b)) a.
OP: Includes person’s age if infant, young adult/late teens (Stingel) b.
Excludes sex, other particular attributes of D (Stingel)
12.
Self defence (SD) a.
SD available when(s 418): i.
Subj: D believes conduct necessary to:
1.
Defend self or other
2.
Prevent unlawful deprivation of liberty
3.
Protect property
4.
Prevent criminal trespass ii.
Subj/Obj: AND conduct is reasonable response in circumstances as he or she perceives them

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1.
Unclear of intoxication should be taken into account (Conlon: yes /Katarzynski: no)
2.
Unreasonable where there is no nexus between offence an threat (Burgess) iii.
COMPLETE DEFENCE (s 418(1)): which prosecution must negative (s 419) b.
SD for intentional or reckless infliction of death: i.
Does not apply to conduct to protect property/ prevent trespass (s 420) ii.
Applies to conduct NOT reasonablein circumstances as he or she perceives them but D believed to be necessary to defend self/other or prevent deprivation of liberty(s 421)
1.
PARTIAL DEFENCE: reduces murder to manslaughter c.
SD is NOT excluded merely because(s 422): i.
Conduct that D responded to is lawful ii.
Other person was not criminally responsible for conduct to which D responded d.
Battered woman syndrome i.
Evidence of BWS to contextualise act of retaliation is admissible (Kelly); both tests (Osland) ii.
Expert evidence assists ordinary person in understanding position of battered wife (Lavallee) iii.
Applicable in AU, evidence admitted to support duress but also provocation & SD (Runjanjic)
13.
Necessity a.
COMPLETE CL Defence b.
3 elements at CL(Loughnan) i.
Irreparable harm ii.
Belief on reasonable grounds of imminent peril (subjective)
1.
Strong enough pressure to break law? - imminence, immediacy (Quayle)
2.
Actual or apparent danger iii.
Proportionality between act done to avoid peril and peril avoided (objective)
1.
Necessary Response – proportionality, alternatives?
2.
Inevitable that something specific is bound to happen or which could not have otherwise been avoided (Limbo v Little)
3.
Origins: higher duty to die than to kill an innocent person (Dudley)
4.
Homeless & hunger is not a defence to squat (Southwark Lounden Borough)
5.
Insufficient evidence to support necessity of prison escape (Dawson) iv.
4 th element added in Vic: Action must have effect or remove peril (Dixon-Jenkins) c.
Available for strict liability offences e.g. criminal negligence in driving(White) d.
Medical necessity e.g. drugs for pain i.
Require of imminence and immediacy not met by internal motivation to engage in prohibited activities to prevent medical or alleviate pain (Quayle UK) ii.
Prohibition on medical exemptions violates right to liberty (Parker Canada) iii.
Successful necessity defences for use of cannabis in USA (Jenks) e.
Political protest: rarely successful, requires evidence of imminent peril (Dixon-Jenkins) f.
Abortion: only area where necessity is raised successfully i.
s 82 CA: woman who acts with intention to procure own miscarriage, 10 years ii.
s 83: crime to unlawfully procure miscarriage of pregnant woman, 10 years iii.
s 84: supplier of drugs intended for abortion, 5 years iv.
Common law test
1.
Wald Test: necessary to avoid serious danger to life or phys/mental health a.
Can look to economic, social and medical conditions
2.
Danger of abortion was not out of proportion to danger averted(YACS)
14.
Duress a.
CL defence: scope & application vague; murder excluded (Howe) b.
Onus on crown to prove acts were voluntary to eliminate possibility of duress (Abusafiah) c.
Threatened harm i.
D did act under threat of death, GBH (Hurley)or serious bodily violence (Lawrence) d.
Person of ordinary firmness i.
Person of ordinary firmness, age + sex, in like circumstance was likely to yield to the threat the way that D did (Lawrence) ii.
Objective test: person of ‘ordinary firmness of mind’ (Abusafiah)

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Present & continuing threat i.
Threat was present, continuing, imminent & impending (Hudson) ii.
No duress where opportunity to request protection from police iii.
No duress where D voluntarily joins a criminal enterprise (Palazoff in Hudson) iv.
Criticises leniency, D should be expected to take reasonable steps to avoid crime (Hasan) f.
Belief as to nature of threat: D reasonably apprehended that threat would be carried out (Hurley) g.
D had no means of safety to himself of preventing execution of threat (Hurley) h.
Evidence of battered women’s syndrome relevant to question of whether wills of appellants were overborne (Runjanjic)

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1.
Definitions: a.
Assault is fear or apprehension of immediate/unlawful contact (Darby) b.
Battery: Actual application of force without consent, lawful excuse or justification
2.
Elements a.
Actus Reus i.
Application of force or act causing V to apprehend immediate infliction of force (Knight) ii.
Depends on circumstances (Barton) iii.
Immediate fear, once instilled, may be ringing presently in one’s ears as a continuing threat without necessity for repetition (Zanker) iv.
Unlawful imprisonment: not assault unless the fear induced would have impeded V’s ability to escape until a confrontation had occurred (Zanker) v.
Mere words/silence
1.
Telephone threats: Mere words may constitutes assault although V does not know when physical violence may occur (Barton)
2.
Silent caller: if intention by silence is to cause fear, assault (Ireland) vi.
Small force e.g. spitting(JWH)
1.
Assault cannot occur until V is aware of actions
2.
Battery is infliction of force, extent irrelevant unless in ordinary social context
3.
Touching clothes is touching person vii.
Omission and coincidence of AR and MR(Fagan)
1.
Assault requires an intentional act, mere omission insufficient, unless it was part of continuing act and intention
2.
Elements of AR and MR must be present at the same time, but one may be superimposed on the other b.
Mens Rea(MacPherson) i.
Intent to effect unlawful contact or create an apprehension of imminent unlawful contact in the mind ii.
Recklessness can give rise to assault, does not need foresight of dangerous consequences, but a highly blameworthy degree of inadvertence to consequences iii.
One cannot do something without caring about the consequences if he did not direct his mind to the consequences
3.
Consent to harm a.
Consent is material i.
Prize fighting, sparring, boxing, contact sports, surgery, lawful correction, dangerous pastimes, rough horseplay, prostitution, fighting (Brown) ii.
Branding, like tattooing between husband and wife in privacy of home (Wilson) iii.
Suffering of horrendous burns – consensual act of horseplay (Aitken) iv.
Sexual risk taking in Emmet– can go well beyond the line beyond which consent becomes immaterial and should be distinguished from Wilson b.
Consent is immaterial i.
Right to have private life without interference from public authority, unless in the interests of national security, public safety, economic well-being of country, prevention of disorder or crime, protection of health or morals, protection of rights and freedoms of others(EHRC) ii.
Beating with such a degree of violence that the infliction of bodily harm is probable (Brown) iii.
Society entitled/bound to protect itself against violence, cruelty is not legitimised by consent iv.
Hostility not an essential element of unlawful battery c.
Consent to medical treatment i.
Medical/surgical treatment only lawful where consented by patient or emergent conditions procurement of consent impractical (Richardson) ii.
Informed consent: consent given freely after explanation of basic nature/risk of procedure iii.
Only mistake as to nature of act or identity of person doing it vitiates consent

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Female Genital Mutilation (s 45CA)
1.
Excise, infibulate or otherwise mutilate labia/clitoris of another, unless necessary for medical welfare, 7 yrs
2.
Consent is not a defence
4.
Acceptable violence a.
Chastisement of children i.
@CL parents can use reasonable, moderate force ii.
Defence of lawful correction (s 61AA CA)
1.
Force must be reasonable, having regard to age, health, maturity, characteristics of child and nature of misbehaviour
2.
Force must not be applied to head or neck and must only last for a short period b.
Violence in sport i.
Players deemed to consent to force which could be reasonably expected (Billinghurst) ii.
Only unreasonable infringement of rules involving contact is a crim offence(Re Jewell) iii.
No consent to malicious use of violence/recklessly causing GBH (Stanley)
5.
Common assault a.
Not occasioning actual bodily harm (s 61 CA); summarily (12 mths, 20 p.u) or upon indictment (2 yrs)
6.
Aggravated assault a.
Likely to be dealt with on indictment b.
Causing a particular injury: no proof of further or specific intent required (Percali) i.
Actual bodily harm (ABH)(s 59 CA)- 5 yrs, 7 yrs in company
1.
Harm calculated to interfere with health or comfort of V, need not be permanent but must be greater than mere transient or trifling (Donovan)
2.
Includes psychiatric injury, but not mere emotions e.g. fear, distress, panic, nervous shock, or states of mind not clinically identifiable(Chan-Fook) ii.
Reckless Grievous bodily harm (GBH)(s 35 CA)–10 yrs, 14 in company
1.
Must be more serious than wounding, e.g. breaking bone, organ damage
2.
Includes serious, permanent disfiguring, destroying foetus, causing person to contract grievous bodily disease (s 4 CA) iii.
Reckless Wounding(s 35 CA) – 7 yrs, 10 in company
1.
Incision or puncture of dermis; breaking of epidermis, outer layer not sufficient
(Shepherd)
2.
Can be inflicted by fist, weapon or instrument iv.
Negligent infliction of GBH, 2 yrs (s 54 CA) – degree of negligence is gross/criminal (D) c.
Specific intent i.
Assault with intent to commit murder
1.
Poison, wounding, GBH, 25 years (s 27 CA)
2.
Shoots, loaded arms, drown, suffocate, strangle, 25 years (s 29) ii.
Assault with intent to do GBH or resist lawful arrest
1.
Wounds/causes GBH with intent to cause GBH, wound, resist arrest, 25 years (s 33)
2.
Discharge firearm with intent to cause GBH, or resist arrest, 25 years (s 33A)
3.
Use or possess weapon to resist arrest, threatens injury with intent to commit indictable offence or hinder detention of himself or another person, 12 years (s 32A) iii.
Assault with intent to commit other indictable offence
1.
Attempts to choke, suffocate or strangle, 25 yrs (s 37)
2.
Administers intoxicating substance to commit an indictable offence, 25 yrs (s 38) a.
Assault with intent to commit serious indictable offence (SIO), 5 yrs (s 58) d.
Maliciously causing dog to inflict harm(s 35A CA) – same sentence as ABH or GBH e.
Causing disease i.
Reckless transmission of disease (s 35 CA) ii.
Person suffering from scheduled medical condition in a public place and fails to take reasonable precautions against spreading condition: including HIV/AIDS, hepatitis, leprosy, syphilis, gonorrhoea, 50 pu/6 months (s 11 PHA) iii.
Sexual intercourse by person with STI before informing the other person of the risk, or being

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With offensive weapons/dangerous substances i.
Offensive weapon or instrument is anything that is or adapted for offensive purposes, inherently offensive e.g. guns, knives, and items outside of routine use if brandished in a menacing manner e,g. screwdrivers, cricket and baseball bats etc (s 4 CA) ii.
Discharge firearm with intent to cause GBH, or resist arrest – 25 years (s 33) iii.
Use of intoxicating substance to commit indictable offence: chloroform, other stupefying drug – 25 yrs (s 38) iv.
Use of poison or other destructive or noxious thing:
1.
To cause GBH – 10 years (s 39)
2.
To cause pain or distress – 5 yrs (s 41)
3.
To poison water supply, intending to injury persons – 5 yrs (s 41A) v.
Use of explosives or corrosive substances to:
1.
Cause bodily injury, burns, maims, disfigures, disables, does GBH intentionally or recklessly – 25yrs (s 46)
2.
With intent to burn, maim, disfigure, disable, do GBH, whether effected or not, 25 yrs (s 47)
3.
Cause explosives to be placed in building, conveyance or public place, whether they explode/cause harm or not – 14 yrs (s 48) vi.
Set trap with intent to inflict GBH – 5 yrs (s 49) g.
In particular circumstances i.
At schools: assaulting, stalking, harassing, intimidating any school student, staff – 5 yrs; ABH
– 7 yrs; wounding or GBH – 12 yrs (s 60E) ii.
During public disorder: not causing ABH, 5 yrs; causing ABH, 7 yrs (s 59A) [Sunset clause:
2yrs since 2005] h.
Aggravation based on status of V i.
Law enforcement officers
1.
officer in execution of duty: 5 yrs (s 58)
2.
police officer (s 60)
3.
officer other than police officer(s 60A)
4.
third parties connected with officers(s 60B) a.
Not necessary for P to prove D knew V was an officer (Reynhoudt) b.
Strict liability - prosecution must only negative HRMF c.
He Kaw Teh supported Dixon CJ in Reynhoudt: intention should extend to the whole act which was prohibited; d.
The accused knew all the facts constituting the ingredients necessary to make the act criminal (status of officer)(Turnbull) e.
Offence of intimidating police officer does not require proof that such fear overbore them to the extent that they were influenced/deterred from some action in the course of their duty (Manton) ii.
Public justice officials and related persons
1.
Threatening to cause injury/detriment to witnesses, jurors, judicial officers, or public justice officials in connection with judicial proceedings: 10 yrs (s 322) a.
Police officer deemed to be a public justice official, but if assault happens during arrest, it is not part of the conduct of judicial proceedings (Orcher) b.
Does not cover judicial proceedings in another state (Lowe) iii.
Clergy: 2 yrs(s 56) iv.
Person preserving wreck, 7 yrs (s 57) v.
Children at time of birth, 14 yrs (s 42) vi.
Exposing or abandoning children under ages of 7, 5 yrs(s 43) vii.
Neglecting wife, apprentice, service, insane person as to endanger health/life, 5 yrs (s 44) viii.
Member of crew of aircraft of vessel: 14 yrs (s 206)
7.
Domestic violence

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APVO(s 19)– same as s 16 without requiring domestic relationship, e.g. work colleagues i.
Can be refused if frivolous, vexatious, without substance or has no reasonable prospect of success (s 53) ii.
Presumption against exercising discretion to refuse if offence relates to race, religion, homosexuality, transgender status, HIV/AIDS or other disability b.
ADVO (s 16 CDPVA) i.
Court satisfied on BOP and person in domestic relationship (DR) has reasonable ground to fear, or in fact fears personal violence, intimidation or stalking can make order for ADVO ii.
Not necessary for court to be satisfied that person in fact fears, if person is
1.
A child
2.
Has below average intelligence
3.
May be subjected to a personal violence offence iii.
Intimidation does not have to involve actual violence/damage to property. iv.
Definitions
1.
Domestic relationship: Includes spouses, de factos, intimate personal relationships
(sexual or not), persons living in same household, relationships of ongoing, dependant care and relatives (s 5)
2.
Domestic violence: includes personal violence offences committed against persons in a defined domestic relationship (s 11) v.
Court must make order when defendant pleads guilty or is found guilty to a domestic violence offence (s 39) or provision order upon charge of domestic violence offence (s 27) vi.
Prohibitions or restrictions (s 35)
1.
Approach to protected person
2.
Their premises & work
3.
Possession of firearms
4.
Orders prohibiting stalking and intimidation can extend to persons with whom the protected person has a domestic relationship (s 36)
5.
Duration specified by court, contravention of restriction = offence arrestable without a warrant and punishable by up to two years/ 50 p.u
6.
Police required to record reasons in writing for not initiating criminal proceedings against a person alleged to have breached an order (s 14) vii.
Bail
1.
Presumption in favour of bail removed for most domestic violence offences, including breach of ADVO by act of violence, stalking where accused has history of violence (s 9A BA) a.
Court must consider protection of person and close relatives of that person
(s 32(1)(b1) BA) b.
Must consider D’s intellectual disability or effect of not imposing bail on
V/other affected persons: (S 37 BA)
2.
Provisional orders by telephone application, urgent in ensuring safety (s 25 BA)
3.
Prohibition of publication of names of children and protected persons (s 45 BA) and disclosure of persons address in ADVO (s 43 BA)
8.
Stalking and intimidation a.
A person who stalks or intimidates another person which intention of causing them to fear physical or mental harm - 5 yrs/ 50 p.u(s 13 CDPVA) b.
Stalking: following a person, watching, frequenting vicinity of or approach person’s place of residence, business work or place of social or leisure activity(s 8) c.
Intimidation:conduct amounting to harassment or molestation, approach made by any means
(phone, txt, email etc) that cause person to fear for safety or causes reasonable apprehension of injury to person, person with whom they have a domestic relationship or damage to property (s 7)
9.
Sexual Assault a.
Actus: An act of sexual intercourse(s 61H)in circumstances where V does not consent (s 61HA)
1.
Penetration of female genitalia/anus bybody part/object, except medical purposes
2.
Sexual connection by introduction of penis into mouth, cunnilingus, or

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3.
Continuation of above b.
Mens (subj&obj) i.
Intends sexual intercourse with the V AND attempts to commit offence under s 61I-OAND ii.
Has knowledge of non-consent: actual, recklessness and no reasonable grounds (RP) iii.
In circumstances where the victim does not consent (s 61HA)
1.
Must consent freely and voluntarily; no physical resistance is NOT consent
2.
Must regard steps taken to ascertain consent, but not self-induced intoxication
3.
No consent(not exhaustive) a.
Where person does not have capacity, opportunity because unconscious or sleep, threats of force or terror, unlawfully detained b.
mistaken belief as to identity, marriage, fraudulent medical/purposes c.
Intoxication by drugs/alcohol, intimidatory or coercive conduct or threat, abuse of position of authority or trust i.
Was reckless to the possibility that V might not be consenting, includes both advertent recklessness AND failure to advert at all to the possibility of non-consent (Kitchener) c.
Knowing non-consensual sexual intercourse - 14 yrs imprisonment (imp) (s 61I) d.
Aggravated sexual assault: sexual intercourse without consent and aware that other person does not consent + aggravating circumstances: 20 yrs (s 61J) i.
at time of, or immediately before or after, the commission of offence, where offender
‘maliciously inflicts actual bodily harm on victim or any other person present/nearby using offensive weapon/instrument ((2)(a)) or threatens to do so ((b)) ii.
if offender is in the company of another person/persons ((c)) iii.
if victim is > 16 yrs ((d)) iv.
if victim is under authority of offender (generally or at time of offence) ((e)) v.
victim has serious physical ((f)) or intellectual ((g)) disability e.
Aggravated sexual assault in company , life (s 61JA) f.
Assault with intent to have sexual intercourse, 20 yrs (s 61K) i.
Includes intentionally/recklessness inflicted ABH on person or 3 rd person nearby ii.
Includes threatened to inflict ABH with weapon
10.
Indecent assault a.
Actus i.
Must be unlawful assault (battery or threat) (Sutton) ii.
Assault (physical or non-physical) and act of indecency may be the one act (Gerald) iii.
Must have sexual connotation, act or circumstance must be contrary to ordinary standards of morality of respectable people in the community (Harkin) b.
Mens i.
Knowledge of non-consent or recklessness as to possibility of non-consent (Fitzgerald) ii.
Intention to commit indecent assault c.
Indecent assault: assaults and immediately before/after, commits act of indecency on OR in the presence of other person - 5 yrs (s 61L) d.
Aggravated indecent assault: in circumstances of aggravation at time/before/after or in presence of another person -7 yrs(s 61M(1)) i.
if V is > 10 yrs - 10 yrs (s 61M(2))– consent is no defence where child < 16(s 77) ii.
Circumstances of aggravation definition (s 61M(3)) same as s 61J(2).
11.
Act of indecency a.
Actus:‘With’ requires two participants, ‘towards’ is committed by person who acts indecently towards a non-participant (Chonka) i.
Sight sufficient, does not require immediate presence/ prospect of physical contact (Barrass) b.
Act of indecency: if committed with/towards/incites someone i.
<16yrs - 2 yrs (s 61N(1))– consent is no defence where child < 16(s 77) ii.
>16 yrs - 18 mths(s 61N(2)) c.
Aggravated act of indecency: i.
if < 16 yrs - 5 yrs(s 61O(1))– consent is no defence where child < 16(s 77) ii.
> 16 yrs - 3 yrs ((s 61O(1A))

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> 10 yrs - 7 yrs imp (s 61O(2))– consent is no defence where child < 16(s 77) iv.
Circumstances of aggravation definition (s 61O(3)) same as s 61J(2).
12.
Removal of CL immunities a.
Minors: presumed capable of giving consent (s 61S) b.
Marriage:no bar to conviction (s 61T)

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1.
Larceny a.
Definition: Where person, without owner’s consent or claim of right, fraudulently takes and carries away property that can be stolen, with intent to permanently deprive when taking (Ilich) b.
5 yrs max(s 117 CA) c.
Actus: Conduct element i.
Property capable of being stolen
1.
Wild animals where possession assumed in natural state (Blade), domesticated animals (Hales, ss 126-131 CA), tangible property e.g. not debt (Croton)
2.
No: Fixtures (Billing) Land, intellectual prop, $$ from bank account, human corpse, pigeons, fish, gas/electricity ii.
Belonging to another
1.
Possession a.
Stealing property that was unlawfully possessed still punishable (Anic) b.
Less than actual possession may be sufficient e.g. constructive possession in employment (Williams v Phillips)
2.
Must have a degree of physical control (Ilich)
3.
Owner: last person in possession, can be constructive even if unaware (Hibbert) iii.
Taking and carrying away (Asportation)
1.
Taking away and carrying away only(HKT)
2.
Sufficient asportation if property is removed from original spot with intent to steal
(Wallis) iv.
Without consent of owner/possessor(Kennison) Implied license? d.
Mens i.
Intent to permanently deprive
1.
If for limited time, no larceny (Foster)
2.
Intent to return is no reason to be entitled to acquittal (s 118 CA)
3.
If intention is to exercise ownership/ treat them as his own, intention to later restore may be larceny (Foster)
4.
Intention to remove fungibles e.g. money, not available as no intention to permanently deprive (Williams in Foster)
5.
Int. to return on condition = int. to permanently deprive e.g. refund fraud (Hooker)
6.
Alteration of taken goods= int. to deprive owner of property as they stood (Snails) a.
Must be substantial alteration (Weatherstone) ii.
Fraudulently/Dishonestly
1.
Ordinary every day meaning of dishonesty with an obj moral basis(Peters) a.
Moral basis = ‘wrongfulness’ (Weatherstone)
2.
Jury must decide based on standards of ordinary, decent people, not accused’s knowledge of dishonesty (Peters, rejecting Ghosh) iii.
Claim of right: Honest belief(Fuge)
1.
Need not be reasonable but a colourable pretence is insufficient
2.
Must be of legal entitlement, not moral (Fuge)or under customary law(Goodsell)
3.
Includes where equiv. value for what is deemed owed taken
4.
Scope: Claim of right must extend to entire property e.
Mistake i.
V accidentally hands over property (Middleton) – depends on whether D knows it was V’s ii.
Unless there is D is dishonest, unlikely that Larceny exists any more (Peters) iii.
No larceny if D takes property unintentionally because they believe it is theirs (Riley) f.
Finding: Larceny if finds lost prop, discovers true owner and does not want to return (Thurbon) g.
Expansions under statute i.
Larceny by bailee(s 125 CA): original thing bailed and substitutes(Slattery) ii.
Embezzlement: Where clerk/servant fraudulently embezzles wholly/partially/receives in name

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1.
Where there is constructive possession in employment, no embezzlement, instead larceny by clerk or servant (Hayward) h.
Expansion of intent to permanently deprive i.
Joyriding: Larceny if offender takes then drives/is carried in vehicle and seeks reward for restoring/pretending to restore vehicle, or any other fraudulent purpose (s 154A CA) ii.
Carjacking: Where D non-consensually takes vehicle from r/lawful possessor and assaults possessor in order to do so, or drives off with person in vehicle, 10 yrs, 14 if armed/maliciously inflicts bodily harm(s 154C) iii.
Fraudulent appropriation(Ss 125, 527)
1.
Where D fraudulently appropriates for his or another person’s use, even where there was no fraudulent intent originally(s 124(a) CA), or
2.
Where D fraudulently retain property to secure reward for restoration (s 124(b) CA),
2 yrs imp/20 p.u/both
2.
Robbery a.
Robbing/assaulting with intent to rob/stealing any chattel, money, valuable security, 14 yrs (s 94) i.
@CL: aggravated form of larceny use of force/threatening force upon V, to overpower party robbed and prevent resistance (Gnosil) ii.
Where there is violence after taking, it is STEALING, not robbery (Delk) b.
Aggravated Robbery: immediately before/at time of/immediately after the robbery – 20 yrs (s 95) i.
Circumstances: corporal violence, intentionally/recklessly inflicting ABH, depriving any person of their liberty c.
Aggravated robbery with wounding or GBH: 25 yrs (s 96) d.
Armed or in company (s 97): 20 yrs; armed with dangerous weapon (gun), 25 yrs e.
With arms AND wounding: If armed or in company or assaults with intent to rob AND assaults/wounding/GBH to any person immediately before/at the time of/immediately after the robbery, assault, wounding, infliction, 25 yrs (s 98)
3.
Fraud a.
Fraud:where someone, by any deception, dishonestly obtains property that belongs to another or
obtains/causes any financial dis/advantage(s 192E) – 10 years b.
Deception (s 192B) i.
Actus Reus: Deception by words or conduct as to fact or law
1.
As to intentions of the person using the deception or any other person (s 192B(1)(a))
2.
Or conduct by a person that causes a computer, machine or any electronic device to make a response that the person is not authorised to cause it to make (s 192B(1)(b))
3.
Examples a.
Includes false impression/omission of material facts (M); pretence (Patmoy) b.
Mere puffery is not deception (Bryan) c.
Conduct without words can = deception (Barnard) ii.
Mens Rea
1.
Deception must be intentional or reckless (s 192B(2))
2.
Even intention is not initially deceptive, change in intention may lead to deception
(DPP v Ray)
3.
Must have knowledge of the falsity of statement and intent to defraud (Greene)
4.
Standard: awareness of the possibility(lower than Crabbe formulation) c.
Obtaining property from another(s 192C) i.
Actus: Accused/3 rd party must gain control/possession of property ii.
Mens: intention to deprive permanently
1.
Property can be tangible or intangible (incl. land) (s 4)
2.
Covers situations where victim is tricked into handing over possession d.
Obtaining financial advantage or causing financial disadvantage(s 192D) i.
Actus: Obtaining financial advantage:
1.
For oneself/another(s 192D(1)(a))
2.
Inducing a 3 rd person to do something resulting in adv(s192D(1)(b) or

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3.
Keeping a financial advantage one has (s 192D(1)(c)) ii.
Financial advantage:
1.
Broad scope? , read in clear, plan meaning (Walsh)
2.
May include debt, compensation, ransom, stock of money, borrowing money at interest, pecuniary resources of a state, company, individual (Murphy)
3.
Scope of ‘financial’ limited – must be monetary (Coelho v Durbin) iii.
Actus: Causing financial disadvantage (s 192D(2)(a)or inducing 3 rd party to do something resulting in another person’s financial disadvantage (s 192D(1)(b))
1.
Example: In debt evasion, liability hinges on disadvantage caused to creditor by dishonest failure to repay by debtor. iv.
Mens: Whether advantage/disadvantage intended to be permanent or temporary (s 192D) e.
Causation: i.
Must have causal connection between deception and obtaining (Szeto) ii.
If victim indifferent to misrepresentation, no false deception (Clemesha) f.
‘Dishonestly’(s 192E) i.
Definition (s 4B): dishonest according to the standards of ordinary people (obj)and
known(subj) by the defendant to be dishonest according to the standards of ordinary people. g.
Innocence and claim of right (Love) i.
Actual obtaining prop/advantage may still be innocent, if they raise claim of right (Love) ii.
Must be a belief of legal right, not moral.
4.
Other fraud offences a.
False and misleading information- 2 yrs (ss 307A, 307B, 307C) i.
Knowing or reckless provision of false info in applications, statements, docs to gov authorities in attempt to obtain benefits ii.
No requirement that recklessly false statement be dishonest or that the benefit/statutory requirement sought to be complied with, provide financial advantage b.
Forgery and false instruments i.
Making false document with intent that person/another use it to induce someone to accept it as genuine  fraud – 10 yrs (s 253) ii.
Document must convey a false impression about its entire nature (i.e. genuine passport) or manner in which it was created (i.e. actually signed by person it purports to have been signed by) (s 250) iii.
No requirement of dishonesty for MR (Welham) c.
Identity theft and fraud i.
Dealing with ID info with int. of committing/facilitating indictable offence - 10 yrs (s 129J) ii.
Possessing ID info with int. – 7 yrs (s 192K) iii.
Equipment to make ID with int. – 3 yrs (s 192L)
5.
Aggravated trespass offences a.
Enter dwelling with intent to commit (srs indictable offence) SIO - 10yrs; aggravated - 14(s 111) b.
If serious indictable offence successful - 14 yrs; aggravated 20(s 112) c.
Breaks and enters dwelling-house/any building with int. to commit SIO, 10 yrs; agg 14(s 113) d.
Enter/remain on land with intent to commit SIO offence/misdemeanour, 7 yrs (s 114(1)(d)) e.
Enter with intent/commit offence, then break out, 14 yrs; agg 20(s 109) f.
Aggravating circs: armed with offensive weapon, in company, violence, actual bodily harm, deprive of liberty, knowing someone is in building (s 105A)
6.
Receiving stolen property a.
Actus: Offence of receiving/disposing/attempting to dispose stolen goods i.
Whereoriginal theft was a SIO, 10 yrs; 12 yrs vehicle (s 188) ii.
Where original theft was a minor indictable offence, 3 yr(s 189) iii.
Property must be stolen (s 187) iv.
D must have taken possession, not mere custody (Fien) v.
May be held jointly with thief (Gleed) and constructively held through employee/accomplice
(Miler and Conner) b.
Mens: Knowing it to be stolen(s 188 and 189)

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Actual belief is sufficient; mere sus/deliberate closing eyes is not (subj)(Raad) ii.
Distinction: belief is something short of knowledge (Hall) iii.
Belief must exist at time of receipt (Balaough), but later realisation may still  conviction if dft ‘disposes’ of property iv.
No receiving occurs where D admitted to knowing prop was stolen but at time intended to hand it to police (Matthews) c.
S 190(dead things)and s 192(tools/mat for manu – 4 yrs) d.
If jury finds larceny and receiving, D charged with lesser of the two (s 121, Clarke)
7.
Goods in custody (s 527C) a.
If motor vehicle/part, 1 yr imp/10 p.u/both; 6 mths/5 p.u for other things b.
Actus: i.
D had any ‘thing’ in his custody or the custody of another/premises, must be reasonably suspected to the COURT (not RP) to be stolen (s 527C) ii.
Dispose: may pass over custody through sale (Gilroy v Jebara) iii.
Except in disposal, must prove that D possessed goods at time of apprehension (English) iv.
If lost before apprehension, P may argue that D remains in custody or it is in custody of another v.
Circumstances under which accused is found/their behaviour are relevant to establishing preconditions (Anderson) c.
Mens/Defence: i.
Can infer no MR as status offence (527C) ii.
If D has no reasonable ground for suspecting that it was unlawfully obtained, will not be responsible (s 527C(2)) iii.
Mental element satisfied in that it is enough that thing in custody may be reasonably suspected of being stolen - objective (Haken)
1.
Attempt a.
Extension of time dimension of crime; cannot charge with both attempt and completed offence b.
Penalty of attempt same as completed offence with some exceptions(s 344A) i.
Attempted murder penalty: 25 yrs (ss 29, 30) ; max for murder: life (see ss 74, 7B) c.
Actus i.
@ CL (Stonehouse)
1.
P must prove some act in pursuance of intention for charge to be laid
2.
Proximity depends on how clearly the D’s purpose appears from all the evidence.
3.
Proximity is merely one factor ii.
Tests
1.
Last act test (no longer used): whether accused had done last act necessary
2.
No other purpose or unequivocality test: acts that unequivocally show MR (People)
3.
Substantial step (proximity) test: is dft’s conduct sufficiently proximate to the commission of the completed offence to constitute attempt a.
First step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required (O’Connor v Killian) b.
Once ‘crossed the line’ cannot be saved from attempt conviction even if
‘voluntarily desist[ing]’ from completing elements of the offence (Page) c.
Temporal – amount of time remaining before all acts for complete offence d.
Physical – D’s physical location where completed offence is to be committed e.
Task-related – how many more tasks must D undertake before completion d.
Withdrawal - can occur before proximity test is satisfied but any time after this withdrawal is pointless e.
Mens i.
Intention to commit the completed offence ii.
Recklessness will not suffice (Mohan); nothing but intention will suffice (McGhee)

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1.
Intention must be to cause injury, not simply likely to cause injury (Mohan)
2.
Recklessness insufficient MR for attempted murder & GBH (Knight)
3.
Exception: Recklessness may suffice for attempted sexual assault (Khan) f.
Burden: P bears onus BRD (Knight) g.
Impossibility: Can you attempt to do the impossible? i.
Categories of impossibility:
1.
Accused intends to commit offence but changes mind at preparatory stage
2.
Prevented from completing offence due to interference
3.
Intention but fails due to ineptitude/insufficient means
4.
Accused fails to complete offence as it is physically impossible ii.
Physical impossibility: NOT a bar to conviction if accused believed it to be possible (Britten) & did acts that contributed to more than mere preparation (Mai)
1.
Irrelevant to question of attempt (Haughton v Smith)
2.
Shift away from obj assessment of risk of harm/successful criminal activity associated with dft’s conduct (non-existent in the case of impossibility), and towards a focus on the dft’s criminal intention as the primary rationale for criminal liability (Mai) iii.
Concerns re entrapment methods, where dft may not have committed offence had it not been for agent provocateur (Ridgeway) h.
Impossibility & drug supply/manu i.
Purpose of supply deems a substance to be what defendant believes it to be (s 40(1) DMTA) ii.
However, intention of a person wanting to engage in illegal activity e.g. manufacture illicit substance, it may not be sufficient (McCoy) i.
‘Early intervention’ offences: i.
Suicide related materials: s 474.29B CC ii.
Prep for terrorism: ‘any act in preparation for, or planning, a terrorist act’ (s 101.6(1) CC) iii.
‘Public justice’ offences: attempt = ‘the doing of some act which has a tendency to pervert the administration of public justice (Vreones in Rowell) j.
Statutory offences where preparatory acts will suffice for attempt i.
Possession of spray paint with intention to deface property (s10B SOA) ii.
Loitering by a convicted child offender in a place frequented by children (s11G) iii.
Possession of house breaking implements (s114(1)(b) CA) iv.
Any act in preparation for, or planning, a terrorist act (s101.6(1) CC (Cth)
2.
Conspiracy a.
Extension of time & group dimensions of crime b.
The merger doctrine (prevents the charging of both the attempt and complete offence) does not apply to conspiracy; thus there will be evidence that is not admissible for the substantive offence but is admissible for conspiracy c.
Sentence: i.
Conspiracy to commit murder, 25 yrs (s 26 CA) ii.
Discretion for judge except for where there is a statute. d.
Actus i.
Agreement to do an unlawful act between 2 or more persons (Yip Chiu-Cheung)
1.
Conscious understanding of a common design: – not enough to merely talk of possibility, both must have same understanding (O’Brien)
2.
Can have a conspiracy without identifying co-conspirator (O’Brien)
3.
If undercover agent did not intend to carry out act, no conspiracy; but if D intend to go through knowing that you won’t get convicted = conspiracy (Yip Chiu-Cheng)
4.
D’s conviction will not be void because co-conspirator won appeal (Darby) ii.
Scope of agreement
1.
Wheel/chain
2.
Where all co-conspirators do not know each other, more likely to find multiple small conspiracies than one major conspiracy (Gerakiteys)
3.
Aware of other co-conspirators & common purpose will suffice (Lee)
4.
Not necessary for there to be an agreement as to the precise manner in which the unlawful act is to be performed (Bolton); the charge is important here
5.
Nothing needs to be done to put the plan into action (Rogerson)

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Mens i.
A present intention to agree with one or more others into the agreement ii.
Mutual intention to achieve unlawful purpose in the future; mere consideration of the plan will not suffice (Gerakiteys) iii.
A full intention to perform the completed offence of the agreement; recklessness and negligence won’t suffice (Siracusa) iv.
Do not need to know the precise manner of performance (Douglas) f.
Impossibility i.
Impossibility to achieve the unlawful act of the conspiracy is no defence (Britten, Mai) ii.
BUT: if agreement is to engage in conduct that is not in fact unlawful, there can be no conviction for conspiracy (Barbouttis)
3.
Complicity a.
Extension of group dimension of crime, does not constitute a sep offence (unlike attempt/conspiracy) b.
Lower threshold of agreement – agreement need not be express, can be inferred (Tangy in Osland) c.
Types of accomplices i.
Principle in the first degree – at the scene committing the crime with an agreement ii.
Principle at the second degree- at the scene but not committing the actual offence eg// lookout there is an agreement iii.
Accessory – no agreement before have and can either be at the scene or not at the scene but connected to the crime
4.
Complicity: Joint criminal enterprise (JCE) a.
Burden: The Crown must establish both the existence of the JCE & the participation in it by D b.
Where two or more persons carry out a JCE, each is responsible for the acts of the others in carrying out that enterprise AR (carried out by primary offender) is attributed to the person acting in concert by reason of an AGREEMENT and their PRESENCE at the scene (Osland)
1.
Liability of each participant in JCE is primary, not derivative
2.
Note distinction between spontaneous and agreement: spontaneous acts = derivative c.
Actus: i.
The existence of an agreement to commit an unlawful act between 2 or more people AND the
act was carried out by 1 or more persons (Osland)
1.
Agreement does not have to be express and can be inferred from the surrounding circumstances (Tangye)– different from conspiracy
2.
Does not have to be reached before the crime committed; circumstances in which two or more persons are participating together to commit a crime may themselves establish an unspoken understanding (Tangye) ii.
All parties need to be present at the commission of the offence(Osland)
1.
Even if only the one person actually carries out the unlawful act, all parties need to be present to be complicit (Osland McHugh); NB Gaudron and gummow dissent.
2.
It is not essential for presence to be continuous (Franklin)
3.
HOWEVER presence requirement sometimes interpreted as referring to the presence at time agreement was entered into, rather time of commission of offence (Suteski) d.
Mens: An intention to enter into the agreement i.
Even if actual perpetrator gets manslaughter, the secondary participant can get murder if they have the mens rea(Osland) ii.
With intention: difficult to argue self-defence, provocation e.
Withdrawal i.
Possible to withdraw, but difficult requirements must be met as set out in Tiete:
1.
Need to withdraw completely
2.
Withdrawal must be timely – before the act occurs(White)
3.
He must make it known to the others that he was withdrawing and he must do what he reasonably can to dissuade the others from continuing with the lawful purpose
(nullify effect of previous acts to assist) ii.
The onus remains with the Crown to negate effective withdrawal and countermanding of his involvement in the common enterprise

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5.
Extended JCE: Common Purpose Doctrine a.
Foundation crime v Incidental crime: Members of a joint criminal enterprise can be held liable for the additional crimes committed in carrying out the common purpose of the group, if they foresaw the possibility of it being committed (McAuliffe) b.
Actus (McAuliffe) i.
In addition to carrying out the offence of JCE, an additional crime is committed
1.
Each of the parties to the agreement is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose
2.
Even if the foundational crime agreed upon is not committed, can still be charged with common purpose if an additional crime ensues (Miller) c.
Mens (McAuliffe) i.
Subj: DForesight/ contemplation of a possibility that the additional crime would be committed ii.
D must, with such foresight, still have participated in the enterprise iii.
If D contemplated possibility, but did not explicitly consent to the commission of the additional offence, and are still present for the commission of the foundation offence, that will be sufficient to be liable iv.
Not all members need have contemplated possibility for 1 to be convicted d.
Examples: murder/weapons: i.
The prosecution can only secure a murder conviction against the secondary participant if it can establish foresight in relation to both the conduct and fault elements ii.
The secondary who contemplated possible act causing death is liableunless the risk was so remote that subjectively the secondary genuinely dismissed it as altogether negligible iii.
Where the principal kills with a deadly weapon, which the secondary party did not know that he had and therefore did not foresee, the secondary party is not guilty of murder iv.
If the weapon used by the primary party is different to but just as dangerous as the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon
6.
Complicity: Accessory liability before the fact a.
Actus(AG’s Reference): i.
Aid, abet (accomplice present) – Principals in the second degree
1.
Assisting/encouraging main offender at scene ii.
Counsel, procure (accomplice absent) – Accessories before the fact
1.
Participating in prep/planning, which leads to commission of offence iii.
Presence
1.
Mere ‘acquiescence’ generally will not constitute aiding and abetting (Phan)
2.
Passive assistance/encouragement a.
Very little overt conduct may constitute aiding/abetting if they know conduct being encouraged is illegal (Wilcox)
3.
Presence can be actual or constructive a.
Actual presence required for aiding/abetting (McCarthy) b.
Constructive presence enough if they are present during the ‘commission’ of the offence’ (McCarthy) c.
Where there are numerous participants and crimes, acts of assistance by every D in relation to each crime need not be proven e.g. in brawls (Annakin) b.
Mens(Subjective) (Giorgianni) i.
Recklessness is insufficient
1.
Cannot be an accessory without intent based on knowledge of essential facts constituted the offence, requisite intended/knowledge does not extend to the occurrence of death in dangerous driving ii.
Intention must be based on actual (not imputed or presumed) knowledge of essential matters
1.
Some crime must be in contemplation, but not simply a general crim purpose (Lomas)
2.
Participation must be aimed at the commission of acts that constitute a crime
3.
Must have knowledge of principle’s physical acts and intention to do an act (Difford)
4.
Not necessary to show that D intended to assist crime in precisely the way that it was

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5.
Sufficient to prove their aided/abetted the kind of crime committed (Ancuta)
6.
Does not need to prove that D wanted to crime to be committed (Gamble)
7.
Recklessness contemplated must involve some foresight that the actions would possibly or probably be dangerous (Giorgianni)
8.
If principal commits a crime more serious than accessory intended to assist with but is objectively dangerous and death results, accessory will be guilty of manslaughter(Chai) c.
Victim assistance i.
Accessorial liability excluded where an act creating an offence exists to protect person against their willing participation in offending conduct, e.g. consensual sex with minor (Tyrell in
Keane) ii.
Party for whose benefit an AVO was made could be convicted of aiding/abetting break of DVO
(Keane) d.
Innocent Agency i.
Person who does not physically undertake same/all elements of offence can be charged ii.
If ‘principle’ lacked the MR/ capacity to commit crime, secondary participant is liable if they intentionally aided, abetted or procured commission of a crime (Pinkstone). iii.
In certain circumstances, a person can be convicted as an aider and abettor even where principal offender has been acquitted (Cogan and Leak).
7.
Complicity: Accessory after the fact a.
Actus i.
Any assistance after crime to a person who committed the offence (Barlow)
1.
Hindering his being apprehended, tried or suffering punishment (Levy)
2.
Comforting/assisting e.g. after felon steals horse, helping him paint face(Butterfield)
3.
Receiving stolen goods (ss 187-193 CA) ii.
Wife is not immune from prosecution for husband’s acts (s 34A CA) b.
Mens i.
Must have specific knowledge of all the relevant facts or acts that establish the precise crime
(Stone) ii.
Mere enjoyment of proceeds of crime not enough, BUT if personal benefit and intention to help avoid detection, will be an accessory (Young and Phipps) c.
Penalties i.
Murder – 25 yrs (s 349) ii.
Robbery – 14 yrs (s 349) iii.
SIO – 5 yrs (s 350) iv.
Minor indictable offences – sentenced same as principle (s 351)
8.
Concealing a serious indictable offence (SIO)(s 316CA) a.
Mens i.
Knowledge/Belief that SIO has been committed b.
Actus i.
Fails to notify police or another appropriate authority of info that might materially assist in securing an offender’s apprehension or prosecution of an offender who has committed a SIO
– 2 yrs (s 316(1)) ii.
Soliciting, accepting, or agreeing to accept any benefit for him/herself another person from concealing a SIO – 5 yrs (s 316(2) CA)
9.
Incitement a.
CL offence to incite or solicit another person to commit offence b.
Extension of time dimension of crime c.
No agreement necessary d.
Soliciting, encouraging, persuading, aiming to persuade a person to commit murder – 25 yrs (s 26 CA) e.
Anti-discrimination i.
Inciting hatred, severe contempt for, or severe ridicule on ground of race (s 20D ADA)

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1.
Threatening physical harm, inciting others to threaten physical harm ii.
Also in relation to homosexuality (s 49ZTA ADA), HIVAIDS (s 49ZXC), transgender (s 38T)
S428B – Specific intent for Intoxication
19A Murder
33B
37
38
41
41A
47
27
28
29
30
33
33A
Acts done to the person with intent to murder
Acts done to property with intent to murder
Certain other attempts to murder
Attempts to murder by other means
Wounding or grievous bodily harm with intent
Discharging firearm etc with intent
Use of weapon to resist arrest etc
Attempts to choke etc (garrotting)
Using chloroform etc to commit an offence
Administering poison etc to injure or to cause distress or pain
Poisoning etc of water supply
Using etc explosive substance or corrosive fluid etc
48
49
55
61K
82
83
86
87
Placing gunpowder near a building etc
Setting trap etc
Possessing etc gunpowder etc with intent to injure the person
Assault with intent to have sexual intercourse
Administering drugs etc to herself by woman with child
Administering drugs etc to woman with intent
Kidnapping
Child abduction
99
110
111
Demanding property with intent to steal
Breaking, entering and assaulting with intent to murder etc
Entering dwelling-house
113 Breaking etc into any house etc with intent to commit serious indictable offence
114 (a) (c) (d) Being armed etc with intent to commit offence
158 Destruction, falsification of accounts etc by clerk or servant
172
174
175
Trustees fraudulently disposing of property
Directors etc omitting certain entries
Director etc wilfully destroying etc books of company etc
176 Director or officer publishing fraudulent statements
178BB Obtaining money etc by false or misleading statements
179
180
181
False pretences etc
Causing payment etc by false pretences etc
False pretence of title
184
185
190
196
Fraudulent personation
Inducing persons by fraud to execute instruments
Receiving etc cattle unlawfully killed, or carcass etc
Destroying or damaging property with intent to injure a person
198
199
Destroying or damaging property with intention of endangering life
Threatening to destroy or damage property
200 Possession etc of explosive or other article with intent to destroy or damage property
202 (c) Interfering or damaging etc bed or bank of river with intent of obstructing etc navigation
205 Prejudicing the safe operation of an aircraft or vessel
210 (b) Acting with intention of destroying etc aids to navigation
211 Criminal acts relating to railways
249C Misleading documents or statements used or made by agents
249D
298
300
301
302
302A
Corrupt inducements for advice
Demanding property on forged instruments
Making or using false instruments
Making or using copies of false instruments
Custody of false instruments etc
Making or possession of implements for making false instruments
314
315
317
False accusations etc
Hindering investigation etc
Tampering etc with evidence
318
319
Making or using false official instrument to pervert the course of justice
General offence of perverting the course of justice
321 (1) Corruption of witnesses and jurors
322 Threatening or intimidating judges, witnesses, jurors etc
323 Influencing witnesses and jurors
328 Perjury with intent to procure conviction or acquittal
333 (2) Subornation of perjury
(b) an offence under the following provisions of this Act to the extent that an element of the offence requires a person to intend to cause the specific result necessary for the offence:
57 (assault on persons preserving wreck)
58 (assault with intent to commit serious indictable offence on certain officers)
66B
66D
(assaulting with intent to have sexual intercourse with child under 10)
(assaulting with intent to have sexual intercourse with child between 10 and 16)

126
139
140
197
204
94
95
96
97
78I
78L
78O
91
98
109
(assault with intent to have homosexual intercourse with male under 10)
(assault with intent to have homosexual intercourse with male between 10 and 18)
(assault with intent to have homosexual intercourse with pupil etc)
(taking child with intent to steal)
(assault with intent to rob person)
(assault with intent to rob in circumstances of aggravation)
(assault with intent to rob with wounding)
(assault with intent to rob with arms)
(assault with intent to rob)
(entering with intent, or stealing etc in dwelling-house and breaking out)
(killing with intent to steal)
(destroys, damages, breaks with intent to steal)
(destroys, damages, breaks with intent to steal)
(dishonestly destroying or damaging property with a view to gain)
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