Criminal defences in Australia [5th edition.] 9780409339062, 0409339067, 9780409339079, 0409339075

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Previous Editions Criminal Defences D O’Connor, P A Fairall, Butterworths, Sydney, 1983 Criminal Defences, 2nd edition D O’Connor, P A Fairall, Butterworths, Sydney, 1988 Criminal Defences, 3rd edition D O’Connor, P A Fairall, Butterworths, Sydney, 1996 Criminal Defences in Australia, 4th edition P A Fairall, S Yeo, LexisNexis Butterworths, Sydney, 2005

Criminal Defences in Australia 5th edition

Professor Paul Fairall BA, LLB (Hons) (Canterbury), LLM (ANU)

Malcolm Barrett BA (Hons), LLB (Hons) (Tas), LLM (UNSW)

LexisNexis Butterworths Australia 2017

AUSTRALIA

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN:

Fairall, P. A. (Paul A.). Criminal defences in Australia. 5th edition. 9780409339079 (hbk). 9780409339062 (pbk). Includes index. Defense (Criminal Procedure) — Australia.

Notes: Subjects: Other Barrett, Malcolm. Authors/Contributors:

© 2017 Reed International Books Australia Pty Limited trading as LexisNexis. 1st edition 1983; 2nd edition 1988; 3rd edition 1996; 4th edition 2005. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in ITC Galliard Std and Futura Std Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

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Preface This edition has, according to the publishers, taken too long to write. Naturally, we do not share that view. We would have liked more time to read, reflect, sharpen and polish. Indeed, to paraphrase Blaise Pascal, in parts the work is too long because we had not time to make it shorter. That applies especially to Chapter 13 dealing with the defence of mental illness, which seems to defy simple treatment, at least in present company. This book is intended to be helpful to judges, prosecutors and defence lawyers in all Australian jurisdictions. Legal academics and students may also find it of some use. We have relied heavily upon primary materials and the coverage is comparative and expositional rather than theoretical. We are aware of the limitations of approaching the subject matter of the criminal courts primarily through the lens of appellate case law. We have extended our net to extrajudicial materials, and the work of law reform commissions is of great value to those seeking to understand a body of case law. It is a dozen years since the previous edition of this work was published in 2005. It is inadvisable to let so much time pass between editions, but inevitably other duties in each of our lives took priority. Much has happened in the field, and many chapters have been recast from scratch. Many areas of criminal law have been modified, especially in the field of defences. The growth of federal criminal law has been spectacular. Our view about the pressing need for harmonisation of Australia’s patchwork of criminal laws has not changed. We see some signs of convergence, although the dream of achieving a unified Australian criminal law, one of the aims of the Criminal Code project of the late 1990s, remains unfulfilled.

We would like to acknowledge the contributions of Dr Desmond O’Connor and Professor Stan Yeo to earlier editions of this work. Each was an original and formidable criminal law specialist. The present authors were colleagues from 1995–2001 and instigated law teaching at the Cairns campus of the Townsville- based James Cook University. We delivered the criminal law lectures together. Our mutual interest in the subject shared some 20 years ago laid the foundation for this collaboration. It has been a great pleasure to again work together and rekindle that friendship. We thank Dr Narrelle Morris of Curtin Law School for her contribution to the topic of Chapter 9, ‘Superior Orders’, drawing on her knowledge of the Japanese war crimes trials conducted by Australia after World War II, an area in which she is a leading expert. We thank our wives, Susan and Motomi, for countless cups of English and Japanese tea consumed during this confinement. Thank you. Finally, this book is dedicated to those who work in the criminal jurisdiction at whatever level. The work is hard but virtuous. To you we say, in the words of Proverbs: Open your mouth, declare what is just, and do justice to the indigent and the poor.1

We hope that our book is of some use in this cause. We accept joint responsibility for errors. The law is stated as at 1 January 2017. Professor Paul Fairall Foundation Dean, Curtin Law School Malcolm Barrett Senior Lecturer, James Cook University

1.

Aperi os tuum, decerne quod justum est, et judica inopem et pauperem (Proverbs 31:9).

Preface to the 4th Edition This book is devoted to the study of criminal defences. Our approach is doctrinal rather than sociological and may be seen by some as unduly narrow or even peripheral to the great themes and debates of the modern criminal law.1 In our defence we plead that our primary audience is that of practitioners engaged principally in appellate court work, for whom doctrinal analysis in the traditional sense may be helpful. We do not seek any phantom grand unifying theory of criminal responsibility, nor do we maintain that there are immutable and discoverable ‘general principles’ that govern or determine the excusatory matters that this book is principally concerned with. Specifically, we do not ‘see the criminal law and process as a single unified system with over-arching general principles’.2 Indeed, in this work there is little discussion of general principles, apart from the elucidation in Chapter 1 of some general concepts such as the concept of fault in the criminal law. We accept that even in relation to matters such as the golden thread of proof beyond reasonable doubt, the reality often falls short of the rhetoric.3 Our approach may be deeply unsatisfying to those who see the criminal law as a dynamic system resulting from the interplay of complex factors operating within functional constraints determined by the actual practices of law makers and courts. We have some understanding of the social, political, historical and economic factors that shape the modern criminal law, and resist the notion to say that the law is determined in a theoretical sense by its past. We do not engage in deep philosophical analysis, although we have great admiration for the multifaceted approach recommended by a leading criminal law text4 that seeks to place the criminal law in its broad historical, social and political context. We agree that this has been greatly to the benefit of

law students exposed to such studies, and we encourage our readers to participate in that wider discourse. However, that is not our present project, which has the more modest goal of traditional analysis of the case law and legislation dealing with so-called ‘defences’, embedded within the criminal law framework and reflecting the values of contemporary Australia. We have included a section in each chapter dealing with reform of the law, indicating the general direction of desirable reform. The book has another, less clearly stated purpose which arises from the constitutional context of criminal law in Australia. There is a popular song about Australia that promotes the idea of national unity. We are one, we are many — we are Australian! This is a healthy notion for a migrant nation. But, sadly, Australian criminal law is characterised by parochialism and jurisdictional divergence. It is also in many instances piecemeal, obscure, incomprehensible, unduly complicated, and a challenge to any scholar seeking order amongst the chaos of single instances. The causes of the sorry state of Australian criminal law are many. One is the limited constitutional authority of the Federal Government over criminal law;5 another is the media-driven hysteria that so frequently characterises debate about criminal law. We have become inured to the fecklessness of politicians, driven by populism and the ruthless willingness to auction the criminal justice system to the highest bidder. The inane ‘get tough on crime’ law and order campaigns that inevitably precede any state or federal election are now depressingly predictable, and distract attention from one of the real problems with the criminal law — that it is anything but ‘Australian’. A consequence is that as lawyers pack their new national ‘travelling practice certificates’ and gear up for practice within a national profession,6 the proliferation of separate systems of criminal law present a major challenge for the new breed of transnational lawyer. Despite some efforts to produce greater unity, jurisdictional divergence is as much a feature of Australian criminal law as the infamous proliferation of different rail gauges across the continent, but without the engineering justification. Jurisdictional divergence and diversity are unfortunate aspects of Australian criminal law affecting the definition

of offences7 and the scope and existence of particular defences.8 The approach to criminal responsibility also varies significantly between the common law and Code states and territories. Highly mobile Australian travellers alter their basic criminal law obligations every time they cross a state line or engage in activity subject to federal law.9 Twin city residents in towns such as Albury–Wodonga or Coolangatta–Tweed must recalibrate not only their watches, but also their comprehension of criminal responsibility as they journey to shops, school or work. In crime we are accidental forum shoppers. We live mostly by parochial state-based rules. Australian criminal lawyers have come to accept this as a normal, even quaint, aspect of the system, but in reality it is not efficient, nor convenient, nor just.10 For those who live here it makes a mockery of the popular refrain that ‘we are Australian!’ Unlike Britons, Canadians or New Zealanders, we do not have a national system of criminal law. It is true that, despite regional variations, the core elements of the criminal law are essentially similar. But we contend that it is wasteful and inefficient that basic notions of criminal responsibility and the availability of particular defences — diminished responsibility, provocation or intoxication, and the like — or indeed even the essential fault elements of liability such as the requirement of subjective foresight should be jurisdictionally determined. Steps towards achieving a uniform set of fault standards have been hesitant and faltering, and there is a need to accelerate towards greater uniformity. Australia faces external challenges that demand national cooperative responses. The Commonwealth, states and territories have agreed to move towards a national legal profession. The new Commonwealth Criminal Code is bedding in. It has been adopted in the Australian Capital Territory. But despite these factors there is little cause for optimism. No state has indicated that it will follow the broad gauge of the recent Commonwealth reforms. Queensland and Western Australia in particular have strong independent positions, no doubt due to the inherent strengths of the Griffith Code, arguably one of the great criminal codes of the world.

It follows from this that we see no need to apologise for the emergence of a fourth edition of this work if it is seen as promoting a sound understanding of the extent of jurisdictional divergence and therefore can be used to make a case for greater uniformity. The first edition of this work, written 21 years ago, passed lightly over the Australian criminal codes. With the perspective of greater maturity, we now strongly believe that it is in the national interest to work harder towards acceptance of a national code. The potential savings are considerable, especially for the smaller jurisdictions that devote considerable legal resources to the reinvention of new solutions to old problems. Although we do not seek in the discussion that follows to promote a common position, we hope that by presenting the law in all its rich complexity, those with the responsibility for law reform will be assisted in their search for common and cost-effective solutions. Finally, we wish to acknowledge the contribution of Dr Des O’Connor to the first three editions of the present work. Des made a lasting impression on generations of criminal law students at the Australian National University with his insights, humour and wit. His contribution to the present work may be found scattered through the pages that follow, for in some areas there has been little change. The original work was intended to be of particular assistance to the legal profession, and as both academic and magistrate, Des understood the needs of the profession better than most. We also record our thanks to our research assistants, Heather Fossey, Shelley Bielefeld, Patrick Leader-Elliott and Aditi Rao. Finally, each of us would like to thank the other for the collegiality and support with which this edition has been undertaken. We accept joint responsibility for our errors and oversights. The law is stated as at March 2005. Paul Fairall, Adelaide Stanley Yeo, Lismore May 2005

1.

Brown, Farrier, Egger, McNamara, Criminal Laws, Materials and Commentary on Criminal Law and Process in New South Wales, 3rd ed, The Federation Press, Sydney, 2001. 2. As above, p 3. 3. See Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000) 116 Law Quarterly Review 225; Fairall, ‘Unravelling the Golden Thread — Woolmington in the High Court of Australia’ (1993) 5 Bond Law Review 229. 4. Brown, Farrier, Egger, McNamara, as above. 5. As to the power of the Commonwealth to legislate with respect to criminal law matters, see Sweeney and Williams, Commonwealth Criminal Law, Federation Press, Sydney, 1999, para 2.3. 6. Under the national scheme introduced in 2004, a lawyer with a practising certificate in one State or Territory may practice in another State and Territory without the need to be formally admitted there. See for example, Legal Profession Act 2004 (NSW). 7. The simple notion of stealing is governed by the common law crime of larceny in New South Wales and under Commonwealth law; a statutory crime of theft in Victoria (based upon dishonest appropriation) and South Australia; and stealing in Queensland and Western Australia (based upon a taking or conversion). 8. As to the availability of diminished responsibility as a partial defence to murder, see Chapter 15. 9. A passenger departing Queensland’s Coolangatta’s airport, which straddles the Queensland–New South Wales border, is subject to three criminal law regimes before the aircraft leaves the main runway: Commonwealth law, Queensland’s Criminal Code, and the common law-based system of New South Wales. 10. See Thompson (1989) 169 CLR 1; Ward (1980) 142 CLR 308; Isaacs (1996) 87 A Crim R 513; Leeth (1992) 174 CLR 455.

Table of Cases References are to paragraph numbers A A (Children) (Conjoined Twins: Surgical Separation), Re [2000] EWCA Civ 254; [2000] 4 All ER 961; [2001] 2 WLR 480 …. 1.48, 6.3, 6.8, 6.24, 6.35, 6.37 A (Children), Re [2001] 2 WLR 480 …. 5.78 A v Hayden (1984) 156 CLR 532; [1984] HCA 67 …. 9.1, 9.2, 9.3, 9.21, 9.33, 9.35 Abbott v R [1977] AC 755 …. 8.18, 8.19 Abdallah v R [2016] NSWCCA 34 …. 10.27, 10.30, 10.32 Abebe v DPP (2000) 114 A Crim R 398 …. 11.12 Ackroyd v Barrett (1894) 11 TLR 115 …. 1.52 Ahadizad v Emerton [2002] ACTSC 20 …. 14.2, 14.3 Ahmadi v R [2011] WASCA 237 …. 6.11 Ainsworth v O’Sullivan [1955] SASR 323 …. 12.53 Airedale National Health Service Trust v Bland [1993] AC 789 …. 5.24, 6.3 Ajayi v R [2012] WASCA 126 …. 6.11, 8.29 Akulue v R [2014] 1 NZLR 17; (2013) 26 CRNZ 417; [2013] NZSC 88…. 8.8, 8.35 Aleksovski v R [1979] WAR 1 …. 10.36 Alexander MacGrowther (1746) Fost 13; 168 ER 8 …. 8.15 Ali v R [2005] HCA 8 …. 16.13 Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 …. 1.27, 7.11 Allen v R (1867) 17 LT(NS) 222 …. 11.24 Allen v United Carpet Mills Pty Ltd [1989] VR 232 …. 2.49 AM v R [2011] NSWCCA 237 …. 5.61 Anderson v R [1972] AC 100 …. 13.16

Anderton v Ryan [1985] AC 560 …. 7.24 Andrews v Ardler & Brown (2012) 266 FLR 177 …. 3.7, 4.12 — v — [2013] NSWDC 94 …. 4.12 Ansari v R (2010) 241 CLR 299; [2010] HCA 18 …. 7.37, 7.43, 7.46, 7.47 Arnol v R (1981) 7 A Crim R 291; [1981] Tas R 157 …. 2.12, 2.25, 5.60, 12.22, 12.23 Aslan v R [2015] NSWDC 185 …. 6.16, 12.54 Astor v Hayes (1988) 38 A Crim R 219 …. 4.10 Attorney-General (Cth) v Colonial Sugar Refining Co Ltd (1913) 17 CLR 644; [1913] UKPCHCA 4; [1914] AC 237 …. 1.2 Attorney-General (Qld) v Austin [2014] QCA 97 …. 13.32 — v Williams [2014] QSC 192 …. 1.22 Attorney-General for Northern Ireland v Gallagher [1963] AC 349; [1961] 3 All ER 299 …. 12.43, 12.51, 13.40, 14.39 Attorney-General for Northern Ireland’s Reference (No 1 of 1975) [1977] AC 105 …. 10.44 — v Warrabadlumba (1990) 74 NTR 5 …. 14.12 Attorney-General’s Reference (No 1 of 1977) [1979] WAR 45 …. 2.12, 5.60, 12.8 Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410 …. 14.44 Attorney-General’s Reference (No 1 of 1992) (1993) 67 A Crim A 415 …. 11.7 Attorney-General’s Reference (No 2 of 1982) [1984] QB 624 …. 5.76 Attorney-General’s Reference (No 2 of 1992) [1993] 3 WLR 982 …. 12.52 Attorney-General’s Reference (No 6 of 1980) [1981] QB 715; [1981] 2 All ER 1057 …. 5.24, 5.26, 5.27, 5.31 Attorney-General’s Reference No 1 of 1996, Re; Weiderman (1998) 7 Tas R 293; 99 A Crim R 386 …. 12.10, 12.13 Aubertin v State of Western Australia (2006) 33 WAR 87; 167 A Crim R 1; [2006] WASCA 229 …. 2.26, 2.35, 2.36, 5.60, 12.36, 13.59 August v Fingleton [1964] SASR 22 …. 12.52, 12.53, 12.54 Australian Capital Territory v JT (2009) 232 FLR 322 …. 5.81 Australian Fisheries Management Authority v Su (2009) 176 FCR 95;

195 A Crim R 352 …. 2.38, 3.10 Australian Iron and Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497; 66 A Crim R 134 …. 1.65, 2.49 Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 …. 1.2 B B and A (1979) 69 Cr App R 362 …. 17.12 B v DPP [2000] 1 All ER 833 …. 10.13 — v R (1958) 44 Cr App R 1 …. 17.8, 17.11 — v — [2015] NSWCCA 103 …. 6.11, 6.16 Bailey v R [1983] 2 All ER 503 …. 14.39 Banditt v R (2005) 224 CLR 262; [2005] HCA 80 …. 1.52, 5.58, 7.46 Bank of New South Wales v Piper [1897] AC 383 …. 2.41 Barker v Burke [1970] VR 884 …. 12.52, 12.53, 12.54, 12.56 — v R [2010] 1 NZLR 235 …. 5.23, 5.30, 5.37 Barnes v Fowler [2016] TASMC 8 …. 2.41 — v Kuser (2007) 179 A Crim R 181 …. 9.22 Barton v R [1977] 1 NZLR 95 …. 11.8 Bastian v R [1958] 1 All ER 568 …. 15.13 Battle v R (1993) 8 WAR 449 …. 12.22, 12.24, 12.32 Baumer v R (1988) 35 A Crim R 340; (1987) 48 NTR 1; 27 A Crim R 143 …. 12.4 Bayley v The Police (2007) 99 SASR 413; 178 A Crim R 202; [2007] SASC 411 …. 6.21, 6.27, 12.40, 14.5 BC v R [2015] NSWCCA 327 …. 17.21 Beckford v R [1988] AC 130; [1987] 3 All ER 425; [1987] 3 WLR 611 …. 10.12, 10.13, 12.39 Beckwith v R (1976) 135 CLR 569; [1976] HCA 55 …. 1.27 Bedelph v R (1980) 1 A Crim R 445 …. 11.14 Bedi v R (1993) 61 SASR 269; 68 A Crim R 539 …. 12.4, 12.39, 12.58 Beer v McCann (1991) 57 A Crim R 101 …. 5.2, 5.20 Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 219 CLR 486 …. 6.29 Belmont Finance Corp v Williams Furniture Ltd (No 2) [1980] 1 All ER

393 …. 3.32 Bennett v R (1989) 45 A Crim R 45 …. 14.41 — v — [1991] Tas R 11 …. 2.25 Bergin v Stack (1953) 88 CLR 248 …. 2.41, 2.42, 2.55 Biess v R [1967] Qd R 470 …. 15.8, 15.9 Binskin v Watson (1990) 12 MVR 282; 48 A Crim R 33 …. 1.65, 2.49 Blacker v R (2011) 211 A Crim R 250 …. 12.7, 12.17, 12.18, 12.20, 12.22, 12.26 Blechynden v Bogumil (2011) 206 A Crim R 329 …. 3.26 Bochkov v R [2009] NSWCCA 166 …. 5.56 Bonython v R (1984) 15 A Crim R 364 …. 10.52 Bosanquet, Re [2011] QMHC 24 …. 13.43 Boughey v R (1986) 161 CLR 10; 20 A Crim R 156 …. 1.61, 5.17 Bournewood Community and Mental Health Trust; Ex parte L [1999] 1 AC 458 …. 6.3 BP v R; SW v R [2006] NSWCCA 172 …. 17.4 Brambles Holdings Ltd v Carey (1976) 15 SASR 270; 2 ACLR 176 …. 3.10 Bratty v Attorney-General for (Northern Ireland) [1963] AC 386; [1961] 3 All ER 523 …. 13.38, 13.60, 14.2, 14.26, 14.43 Bravery v Bravery [1954] 3 All ER 59 …. 5.35 Braysich v R (2011) 243 CLR 434 …. 2.53 Bremer Handelsgesellschaft v Mackprang J R [1979] 1 Lloyd’s Rep 221 …. 3.4 Brennan v Bass (1984) 35 SASR 311 …. 8.50 — v R (1936) 55 CLR 253 …. 1.7, 12.10 — v — [2015] 1 WLR 2060; [2014] EWCA Crim 2387; [2014] WLR (D) 502 …. 13.16 Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84; [2009] WASC 229 …. 5.24, 5.78 Brimblecombe v Duncan; Ex parte Duncan [1958] Qd R 8 …. 2.11, 2.53, 2.55 Britten v Alpogut [1987] VR 929; (1987) 23 A Crim R 254 …. 7.18, 7.25, 7.26, 7.27, 7.30, 7.31 Bromage, Re [1991] 1 Qd R 1; (1990) 48 A Crim R 79 …. 12.22, 12.24, 12.32, 12.37, 13.22, 14.34, 14.35

Brook v Ashton [1974] Crim LR 105 …. 3.23 Broome v Perkins (1987) 85 Cr App R 321 …. 14.13 Brown v Attorney-General (SA) [1959] ALR 808 …. 13.47, 13.48 Browning v Barrett [1987] TASSC 53 …. 2.41 Brutus v Cozens [1972] 2 All ER 1297 …. 3.7 Buck, Re (1946) 13 ILR 293 …. 9.15 Buckman v R [2013] NSWCCA 258 …. 1.18 Buckoke v Greater London Council [1971] Ch 655 …. 6.4 Budd, Re [1962] Crim LR 49 …. 14.2 Bugmy v R (2013) 249 CLR 571; 229 A Crim R 337; [2013] HCA 37 …. 1.91 Burgess v R [1991] 2 QB 92; [1991] 2 All ER 769 …. 14.2, 14.30 Burnell v R [1966] Qd R 348 …. 3.17 Burns v Nowell (1880) 5 QBD 444 …. 7.9 — v R (2012) 246 CLR 334 …. 1.35, 1.40 Burnskey v Police (1992) 8 CRNZ 582 …. 14.2 Burr v R [1969] NZLR 734 …. 14.13 Butler v Western Australia [2013] WASCA 242 …. 2.35, 2.53 C C (a minor) v DPP [1996] AC 1; [1996] 1 Cr App R 375; [1995] UKHL 15 …. 17.10, 17.11, 17.12, 17.13, 17.14, 17.15, 17.17, 17.18 C v R (1981) 3 A Crim R 146 …. 3.10 C, Re (Adult: Refusal of Treatment) [1994] 1 WLR 290 …. 5.81 Callaghan v R (1952) 87 CLR 115 …. 1.59 Cambridgeshire and Isle of Ely County Council v Rust [1972] 2 QB 426 …. 3.4, 3.22, 3.23 Cameron v Holt (1980) 142 CLR 342; 28 ALR 490 …. 1.63, 2.55, 3.10 — v R (1990) 47 A Crim R 397 …. 12.10, 12.22, 12.24, 14.41 Campbell v R (1987) 84 Cr App R 255 …. 15.8, 15.14 — v Western Australia [2016] WASCA 156 …. 1.7 Cancoil Thermal Corp v R (1986) 27 CCC (3d) (CA Ont) …. 3.34 Carraher v HM Advocate [1946] SLT 225 …. 15.2 Carter v Canada (Attorney General) [2015] SCC 5 …. 5.24 Censori v R [1983] WAR 89; (1983) 13 A Crim R 263 …. 11.8, 12.42 Chard v Wallis (1988) 12 NSWLR 453; 36 A Crim R 147 …. 2.7

Charlie v R (1999) 1999 CLR 387 …. 12.7 Charlson v R [1955] 1 All ER 859; (1955) 39 Cr App R 37 …. 14.2 Chayna v R (1993) 66 A Crim R 178 …. 15.9 Chester v R [1982] Qd R 252; (1981) 5 A Crim R 296 …. 15.9, 15.16 Chetwynd (1912) 76 Justice of the Peace …. 14.5 Chew v R (1992) 173 CLR 626; 60 A Crim R 82; [1992] HCA 18 …. 1.27 Chia Gee v Martin (1906) 3 CLR 649 …. 7.1 Chiha v State of Western Australia (No 2) [2015] WASC 147 …. 13.21 Churchill v Walton [1967] 2 AC 224; [1967] 1 All ER 497 …. 3.32, 7.46 Cittadini v R [2009] NSWCCA 302 …. 1.40 Civilian Casualty Court Martial, Re (2011) 259 FLR 208 …. 9.33 CJ v R [2012] NSWCCA 258 …. 13.18, 13.36, 13.46 CL (a minor) v Lee [2010] VSC 517 …. 13.21 Clark v R [2008] NSWCCA 122 …. 2.19 Clough, Re [2007] QMHC 002 …. 12.49 CMX, Re [2014] QMHC 4 …. 13.33 Coates v R (1957) 96 CLR 353 …. 14.2 Codere v R (1916) 12 Cr App Rep 21 …. 13.40 Cogley v R [1989] VR 799; (1989) 41 A Crim R 198 …. 7.25, 7.30 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 …. 1,27 Coles Myer Ltd v Catt (1992) 58 SASR 298 …. 2.2 Coley v R [2013] EWCA Crim 223 …. 12.43, 14.2, 14.39 Collins v R [1973] QB 100; [1972] 2 All ER 1105 …. 4.23 — v The Secretary of State for Justice …. [2016] EWHC 33 …. 1.22, 10.7, 10.13, 10.20, 10.27, 10.37, 12.39 — v Wilcock [1984] 3 All ER 374; [1984] 1 WLR 1172 …. 5.15, 5.20 Colonel Aird, Re; Ex parte Alpert (2004) 220 CLR 308 …. 9.33 Commissioner of Police v Stehbens [2013] QCA 81 …. 2.35 Commissioner of the Australian Federal Police v Fitzroy All Pty Ltd [2015] WASC 320 …. 7.35 Cook’s case (1660) 5 How St Tr 1077 …. 2.3, 8.15 Cooke v R (1985) 39 SASR 225; 16 A Crim R 304 …. 12.20, 12.42 Cooley v State of Western Australia [2005] WASCA 160 …. 13.63 Cooper v ICI Australia Operations Pty Ltd (1987) 31 A Crim R 267 ….

2.55 — v McKenna; Ex parte Cooper [1960] Qd R 406 …. 12.63, 14.2 — v Phibbs (1867) LR 2 HL 149; [1861] All ER Rep 2109 …. 3.20 Cope v Sharpe (No 2) [1912] 1 KB 496 …. 6.11 Crespigny v R (1795) 1 Esp 280; 170 ER 357 …. 3.16 Crichton v Victorian Dairies Ltd [1965] VR 49 …. 3.28 Croton v R (1967) 117 CLR 326 …. 5.65 CTM v R (2008) 236 CLR 440; 185 A Crim R 188; [2008] HCA 25 …. 1.27, 1.69, 2.5, 2.7, 2.9, 2.22, 2.27, 2.34, 2.38, 2.39, 2.42, 2.53, 2.54, 2.55, 2.56 Curtis, Re (1756) Fost 137; 168 ER 67 …. 11.1, 11.6 Cutter v R (1997) 143 ALR 498; 94 A Crim R 152; [1997] HCA 7 …. 1.50, 12.10 Cvetanovski v R [2015] VSCA 65 …. 1.18 Cvetkovic v R [2010] NSWCCA 329 …. 13.13, 13.64, 14.5 D Da Costa v R (1968) 118 CLR 186 …. 11.52 Dal Cortivo v R (2010) 204 A Crim R 55 …. 10.27, 12.39 Dalla v Minister for Immigration and Border Protection [2016] FCA 998 …. 1.73 Dalzell v Ferguson [2009] 185 IR 392 …. 2.38 Daniels v R (1989) 1 WAR 435 …. 2.26, 5.60, 12.36 DAR v DPP (Qld) [2008] QCA 309 …. 13.18 Darby v R [2016] NSWCCA 164 …. 1.46, 1.52 Darkan v R (2006) 227 CLR 373; [2006] HCA 34 …. 1.75 Darrington and McGauley v R [1980] VR 353; 1 A Crim R 124 …. 8.18, 8.19 Davey v Towle [1973] RTR 328 …. 7.15 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 …. 3.6 Davis v Chief of Army (2011) 205 A Crim R 521 …. 5.15, 5.20, 5.31 — v Spadaccini [2008] NTMC 15 …. 4.28 Dawson v Commissioner of Police [2015] QDC 295 …. 6.10, 6.27 — v R (1961) 106 CLR 1 …. 1.75 De Bruyn v Minister for Justice and Customs (2005) 213 ALR 479 ….

9.29 Dearnley v R [1947] St R Qd 51 …. 12.43, 12.63 Derbas v R [2012] NSWCCA 14; [2011] NSWCCA 215 …. 8.1 Derschaw v Sutton (1996) 17 WAR 419 …. 4.12 Di Duca v R (1959) 43 Cr App R 167 …. 15.10 Dick v R [1966] Qd R 301 …. 15.8 Dickson v R (2010) 241 CLR 491; [2010] HCA 30 …. 1.20, 1.21, 1.22, 7.37 Dietman v Feast [2015] SASC 148 …. 1.31 Dietrich v R (1992) 177 CLR 292 …. 1.27 Dillewaard v Queensland Police Service [2012] QDC 93 …. 4.18 Director of Civil Aviation Authority v Barr [2010] 1 NZLR 138 …. 2.48 Director of Public Prosecutions (ACT) v AW (2013) 8 ACTLR 86 …. 1.33 Director of Public Prosecutions (Acting) v Morgan [2015] TASCCA 11 …. 12.4 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; 205 A Crim R 1; [2010] NSWCCA 194 …. 13.5 — v Keating (2013) 248 CLR 459; [2013] HCA 20 …. 1.27 — v Poniatowska (2011) 244 CLR 408; 212 A Crim R 344; [2011] HCA 43 …. 1.10, 1.34, 1.36 Director of Public Prosecutions (NT) v WJI (2004) 219 CLR 43; 210 ALR 276; [2004] HCA 47 …. 1.33, 1.44 Director of Public Prosecutions (WA) v TJD (No 3) [2013] WASC 43 …. 1.73 Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653; [1975] 1 All ER 913 …. 8.2, 8.10, 8.13, 8.19, 8.32, 8.57 Director of Public Prosecutions Reference (No 1 of 1991) (1992) 60 A Crim R 43 …. 10.53 Director of Public Prosecutions Reference (No 1 of 1999) (1999) 105 A Crim R 489; [1999] NTSC 23 …. 1.84, 4.1, 4.5, 4.8, 4.23, 9.20 Director of Public Prosecutions Reference (No 1 of 2002), Re (2002) 137 A Crim R 158 …. 1.33 Director of Public Prosecutions v Beard [1920] AC 479; [1920] All ER 21 …. 12.1, 12.5, 12.6, 12.15, 12.43

— v Camplin [1978] AC 705; [1978] 2 All ER 168 …. 11.14 — v Dover and The County Court of Victoria [2013] VSCA 233 …. 12.54, 14.8 — v Gomez [1993] AC 442 …. 5.75, 5.76 — v Leonboyer (1999) 109 A Crim R 168 …. 11.30 — v LW [2009] VSC 227 …. 7.64 — v Majewski [1977] AC 443; [1975] 3 All ER 296 …. 12.1, 12.6, 12.7, 12.8, 12.10, 12.12, 12.13, 12.14, 12.15, 12.16, 12.18, 12.22, 12.59, 14.39 — v Matthews [2016] VCC 1261 …. 5.75 — v Morgan [1976] AC 182 …. 5.7, 5.43, 5.58 — v Nock [1978] AC 979; [1978] 2 All ER 654 …. 7.39, 7.40, 7.51, 7.53, 7.54, 7.55, 7.56, 7.57, 7.60 — v Olcer (2003) 143 A Crim R 337 …. 14.25 — v Q P X [2014] VSC 189 …. 16.1 — v Taleski [2007] VSC 183 …. 13.21, 13.36 — v Whelan [2006] VSC 319 …. 12.44 — v Wille (1999) 47 NSWLR 255; 114 A Crim R 150 …. 3.22 Director of Public Prosecutions, Case Stated by (No 1 of 1993) (1993) 66 A Crim R 259 …. 5.42 Director of Public Prosecutions, Reference No 1 of 1992 v M (1993) 9 WAR 281 …. 5.42 Dixon-Jenkins v R (1985) 14 A Crim R 372 …. 6.9 Dodd v R (1974) 7 SASR 151 …. 14.39 — v — [1978] WAR 209 …. 12.10 Donnelly v Commissioner of Inland Revenue [1960] NZLR 469 …. 3.16 Donoghue v Terry [1939] VLR 165 …. 1.79 Donovan v R [1990] WAR 112; (1989) 39 A Crim R 150 …. 13.9, 15.13 Doolan v Edgington (1999) 110 A Crim R 19 …. 11.13 Doust v Meyer [2009] WASCA 65 …. 11.47, 11.48 Dowling v Bowie (1952) 86 CLR 136 …. 1.79, 3.10 Downs v R (1985) 18 A Crim R 75 …. 10.14 Drago v R (1992) 63 A Crim R 59 …. 1.33 Dudley v Ballantyne [1998] WASCA 198; (1998) 28 MVR 209 ….

6.11, 6.12 Duffy v R [1981] WAR 72; (1980) 3 A Crim R 1 …. 1.40, 12.10, 12.17, 12.24 Dunjey v Cross (2002) 36 MVR 170; [2002] WASCA 14 …. 6.11, 6.12, 6.27 Durovic v R (1984) 71 A Crim R 33 …. 5.75 Duval-Smith v R [2013] NZCA 492 …. 13.10, 13.42 E Eaglesfield v Marquis of Londonderry (1876) 4 Ch D 693 …. 2.44, 3.8 Ebatarinja v R [2000] NTSC 26 …. 1.88 Edwards v MaCrae (1991) 14 MVR 193 …. 12.54, 14.5 — v R [1973] AC 648 …. 11.29 Egan v R (1985) 15 A Crim R 20 …. 12.19, 12.21, 12.56 Elliott and Hitchins v R (1983) 9 A Crim R 238 …. 15.20 Elomar v R [2014] NSWCCA 303 …. 7.18, 7.36 Elturk v R [2014] NSWCCA 61 …. 13.5 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74 …. 1.73 — v N (1992) 26 NSWLR 352; 59 A Crim R 408 …. 1.45, 1.46, 2.23 Ericsson v Police (1993) 10 CRNZ 110 …. 14.2 Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 …. 6.18 Evans v Donaldson [1977] Tas SR 104 …. 3.41 — v State of Western Australia [2010] WASCA 34 …. 13.43 Evenett; Ex parte A-G [1987] 2 Qd R 753 …. 5.73 Evgeniou v R (1964) 37 ALJR 508 …. 1.56, 1.59 F F (Mental Patient: Sterilisation), Re [1990] 2 AC 1 …. 6.3 F v Padwick [1959] Crim LR 439 …. 17.11, 17.12 —, Re v West Berkshire Health Authority (Mental Health Act Commission Intervening) [1990] 2 AC 1 …. 5.15, 5.20, 5.81 Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439 …. 1.67, 10.39 Farrance v R [1978] RTR 225 …. 7.29

Fattal v R [2013] VSCA 276 …. 7.18 Fenwick v Boucaut and Hodder [1951] SASR 290 …. 3.17 Field and South Australia v Gent (1996) 87 A Crim R 225 …. 17.4 Finau v Department of Labour [1984] 2 NZLR 396 …. 7.9, 7.10 Fingleton v R (2005) 227 CLR 166 …. 2.53 Floyd v Western Australia [2013] WASCA 33 …. 6.11 Flyger v Auckland City Council [1979] 1 NZLR 161 …. 3.10, 12.37 Foster v Aloni [1951] VLR 481 …. 2.49 Fowler v Padget (1798) 7 Term Rep 509; 101 ER 1103 …. 1.66 Franklin, Re [2011] QMHC 28 …. 14.10 Frannis v Flood [1978] 1 NSWLR 113 …. 1.79 Franze v R [2014] VSCA 352 …. 7.32, 7.35, 7.63 Fry v R (1992) 58 SASR 424; 63 A Crim R 263 …. 10.49, 11.12, 11.21, 11.40 G Galbraith v HM Advocate 2002 JC 1 …. 15.2 Gall v R [2016] NSWCCA 82 …. 9.2 Gammon Hong Kong Ltd v Attorney-General of Hong Kong [1985] 1 AC 1 …. 1.63 Garrett v R [1999] WASCA 169 …. 13.53, 13.63 Gedeon v R (2013) 237 A Crim R 326; [2013] NSWCCA 257 …. 1.18 Gee v Deputy Commissioner Stewart [2012] QCAT 33 …. 4.20 — v Martin (1905) 3 CLR 649 …. 1.30 Geraldton Fishermen’s Co-op Ltd v Munro [1963] WAR 129 …. 2.11, 2.55 Gherashe v Boase [1959] VR 1 …. 2.27 Gibbon v Fitzmaurice [1986] Tas R 137; (1986) 23 A Crim R 12 …. 2.25 Gillard v R (2014) 236 A Crim R 586 …. 5.48, 5.58 Gillespie v R (1988) 36 A Crim R 235 …. 15.9 Gillick v West Norfolk and Wisbech Area Health Authority [1984] QB 581 …. 5.81, 6.3 — v — [1986] 1 AC 112 …. 5.81 Giorgianni v R (1985) 156 CLR 473; 58 ALR 641; A Crim R 163; [1985] HCA 29 …. 1.45, 2.13, 2.16, 7.40

GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183 …. 2.26, 2.31, 2.49 GMB, Re (2002) 130 A Crim R 187 …. 13.45, 15.10 Goddard v Osborne (1978) 18 SASR 481 …. 8.52, 8.55, 8.56 Golden-Brown v Hunt (1972) 19 FLR 438 …. 3.41 Gollan v Nugent (1988) 166 CLR 18; [1988] HCA 59 …. 7.38 Goodwyn v Western Australia (2013) 45 WAR 328 …. 10.11, 10.27, 10.32 Gow v Davies (1992) 1 Tas R 1; 61 A Crim R 282 …. 12.7, 12.39 Graham v R [2016] HCA 27 …. 1.82, 10.8, 10.10, 10.32, 10.51 Grant v R [1960] Crim LR 424 …. 15.13 Gray v Smith [1997] 1 Qd R 485; (1996) 87 A Crim R 454 …. 10.10, 10.47, 10.50 Green v Chief of Army (2011) 252 FRL 130 …. 4.30 — v R (1997) 191 CLR 334 …. 8.48, 11.12, 11.33, 11.34, 11.38 — v Sargeant [1951] VLR 500 …. 2.26, 2.27 Griffin v Marsh (1994) 34 NSWLR 104 …. 3.13 Guicheret v R (1980) 7 Man R (2d) 1 …. 3.10 Gulyas v R (1985) 2 NSWLR 260; 15 A Crim R 472 …. 7.25, 7.29 H Haas v R [1964] Tas SR 1 …. 7.20 Habib v Commonwealth (2010) 183 FCR 62 …. 9.28 Hadba v R (2004) 146 A Crim R 291; [2004] ACTSC 62 …. 12.34, 12.54 Haggie v Meredith (1993) 9 WAR 206 …. 12.10, 12.22, 12.24, 12.32, 12.61 Hakiwai v R [1931] NZLR 405 …. 4.23 Hall v Fanceca [1983] WAR 309 …. 1.45, 5.10, 12.10 Hallett v R [1969] SASR 141 …. 16.13 Hampshire County Council v E [2007] EWHC 2584 …. 6.26 Hancock v Birsa [1972] WAR 177 …. 3.26 Hardie v R [1984] 3 All ER 848 …. 14.39 Harkins v R [2015] NSWCCA 263 …. 12.15 Harmer v Grace; Ex parte Harmer [1980] Qd R 395 …. 2.27, 2.40, 3.10, 12.37

Harrington v R (1866) 10 Cox CC 370 …. 11.24 Hart v R (2003) 27 WAR 441; 139 A Crim R 520 …. 11.12, 11.47, 11.48, 11.51 Harwood v Western Australia [2016] WASCA 8 …. 4.9 Hasan v R (2010) 222 A Crim R 306 …. 12.4 HAT v R [2011] VSCA 427 …. 1.92 Haughton v Smith [1973] 3 All ER 1109 …. 2.22 — v — [1975] AC 476 …. 7.23, 7.24, 7.25, 7.26, 7.27, 7.28, 7.29, 7.30, 7.51, 7.53, 7.57, 7.65, 7.68 Hawkins v R (1994) 179 CLR 500; 72 A Crim R 288; [1994] HCA 28 …. 1.38, 1.41, 1.45, 11.44, 12.9, 13.62, 13.63, 13.64, 14.6, 14.13 Hawthorn (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120; 65 A Crim R 227 …. 1.65 Haynes v MOT (1988) 3 CRNZ 587 …. 14.13 Haywood v R [1971] VR 755 …. 14.39 He Kaw Teh v R (1985) 157 CLR 523; 15 A Crim R 203; [1985] HCA 43 …. 1.45, 1.63, 1.64, 2.2, 2.5, 2.7, 2.12, 2.19, 2.23, 2.24, 2.34, 2.38, 2.53, 2.54, 2.55, 2.56, 3.46, 7.16, 8.14 Heaton v Western Australia (2013) 234 A Crim R 409; [2013] WASCA 207 …. 1.35, 2.18, 2.53 Henri Daviault v R (1994) 3 SCR 63 …. 12.25 Henshaw v Mark (1997) 140 FLR 438; 95 A Crim R 115 [1997] ACTSC 64 …. 6.9, 6.24 Hibble v Cannon [2001] TASSC 1; (2001) 10 Tas R 129 …. 2.41 Hickey v R (NSWSC, Slattery AJ, 14 April 1992, unreported) …. 10.40, 10.52 Hill v Baxter [1958] 1 QB 277; [1958] 1 All ER 193 …. 12.52, 13.60, 14.26 Hills Shire Council v Kinnarney Civil & Earthworks PTY Ltd & Kinnarney [2012] NSWLEC 45 …. 3.13 Hindrum v Lane [2014] TASFC 5 …. 2.25, 2.27, 2.38, 2.41, 2.53, 2.56 Hinze v R (1986) 24 A Crim R 185 …. 15.9 Hksar v Kissel [2013] HKCA 622 …. 13.16 HM Advocate v Braithwaite [1945] SLT 209 …. 15.2 — v Hawton and Parker (1861) 4 Irv 58 …. 9.1 — v Savage [1923] SLT 659; [1923] JC 49 …. 15.1

Hodge v R (1984) 13 A Crim R 458 …. 11.14 Hogan v Sawyer; Ex parte Sawyer [1992] 1 Qd R 32; (1990) 51 A Crim R 46 …. 3.44 Hoho v The State [2008] ZASCA 98 …. 3.18 Hollywood v City of Joondalup (2010) 203 A Crim R 292 …. 4.28 Holman v R [1970] WAR 2 …. 5.43, 5.44, 12.8, 12.10 Holmes v DPP [1946] AC 588 …. 11.17, 11.30, 11.32, 11.52 Hone v State of Western Australia [2007] WASCA 283 …. 13.16, 13.21 Horan v Ferguson (1994) 75 A Crim R 31 …. 5.1, 5.10, 5.17, 5.20 Houghton v R (2004) 144 A Crim R 343 …. 5.12, 5.13 Hugh v Mitchell (1856) 2 Irv 488 …. 8.9 Hughes v Hi-Way Ads Pty Ltd; Ex parte Hughes [1963] Qd R 328 …. 3.43 — v Police [2009] SASC 57 …. 6.25 — v R (1994) 76 A Crim R 177 …. 1.47 Hume v Palmer (1926) 38 CLR 441; [1926] HCA 50 …. 1.22 Hunt v Maloney; Ex parte Hunt [1959] Qd R 164 …. 9.22 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88; [2009] NSWSC 761 …. 5.78, 5.80, 5.81 Hunter Area Health Service v Presland [2005] NSWCA 33 …. 13.65 Huynh v R (2013) 228 A Crim R 306; [2013] HCA 6 …. 1.82 Hyam v DPP [1975] AC 55 …. 1.45 I Iannella v French (1968) 119 CLR 84 …. 1.45, 2.45, 3.1, 3.4, 3.7, 3.10, 3.18 Ibbs v R (1987) 163 CLR 447 …. 1.67 — v — [1988] WAR 91 …. 5.44 Illich v R (1987) 162 CLR 110 …. 4.17, 5.2, 5.64, 5.71, 5.72 Ingram v R [1972] Tas SR 250 …. 2.25, 2.55 IPH v Chief Constable of South Wales [1987] Crim LR 42 …. 17.11 Isaac v R (1996) 87 A Crim R 513 …. 7.35 Isitt v R (1977) 67 Cr App R 44 …. 14.13, 14.33 ISJ v R (2012) 226 A Crim R 484 …. 5.46, 5.47 J

Jabarula v Poore (1989) 68 NTR 26; 42 A Crim R 479 …. 11.13, 11.37 Jadurin v R (1982) 44 ALR 424 …. 1.88 Jaggard v Dickinson [1981] QB 527 …. 12.39 Jeffrey v R [1982] Tas R 199; (1982) 7 A Crim R 55 …. 11.14, 12.44, 12.63 Jeyavel Thangavelautham v R [2016] NSWCCA 141 …. 4.24 Jimenez v R (1992) 173 CLR 572; 59 A Crim R 308; 53 A Crim R 56 …. 1.38, 1.64, 2.5, 2.24, 2.38, 2.55, 12.52, 14.2, 14.39 JL v Queensland Police Service [2014] QCAT 623 …. 14.10 JM (a minor) v Runeckles (1984) 79 Cr App R 255 …. 17.11, 17.14 Johnson v Phillips [1975] 3 All ER 682 …. 6.4, 7.12 — v R (1976) 136 CLR 619 …. 11.7, 11.16, 11.17, 11.40, 11.49, 11.53 — v Western Australia [2009] WASCA 71 …. 6.11 — v Youden [1959] 1 KB 544 …. 2.13 Jones v R (1986) 22 A Crim R 42 …. 15.8, 15.10, 15.35 Jovanovic v R [2007] TASSC 56 …. 4.19, 4.20, 4.23 JS, Re [2014] NSWSC 302 …. 5.78 Justins v R (2010) 79 NSWLR 544; 204 A Crim R 315; [2010] NSWCCA 242 …. 1.82 K K v Minister for Youth and Community Services [1982] 1 NSWLR 311 …. 6.3 — v T [1983] 1 Qd R 396 …. 6.27 Kable v DPP (NSW) (1996) 189 CLR 51; [1996] HCA 24 …. 1.8 Kain & Shelton Pty Ltd v McDonald (1971) 1 SASR 39 …. 2.12, 2.32, 2.47, 3.10 Kaitamaki v R [1985] AC 147; [1984] 2 All ER 435 …. 1.67 Kaporonovski v R (1973) 133 CLR 209 …. 1.43, 11.47, 12.10, 12.22, 14.23 Karpany v Dietman (2015) 252 CLR 507 …. 4.12 Kassis v Katsantonis [1984] 3 NSWLR 330 …. 7.25 KBT v R (1997) 191 CLR 417 …. 1.81 Keighly v Bell (1886) 4 F & F 763; 176 ER 781 …. 9.1, 9.24 Kelly v Saadat-Talab (2008) 72 NSWLR 305 …. 13.34

Kemp v R [1957] 1 QB 399 …. 14.2 Kennison v Daire (1986) 160 CLR 129; 64 ALR 17; 60 ALJR 249 …. 5.65, 5.72 Khammash v Rowbotton (1989) 51 SASR 172 …. 3.1 Kia v R [2011] WASCA 104 …. 8.29 Kilbride v Lake [1962] NZLR 590 …. 1.28, 8.9 Kimmorley v Atherton; Ex parte Atherton [1971] Qd R 117 …. 5.10, 5.20 King v Chief of Army [2012] ADFDAT 4 …. 9.33 — v R (1996) 88 A Crim R 150 …. 10.1 — v — (2012) 245 CLR 588 …. 2.18, 2.24 Kjeldsen v R (1981) 24 CR (3d) 289 …. 13.40 Knight v R (1992) 175 CLR 495; 109 ALR 225 …. 1.45, 1.46, 1.51 Koerner v Bretherton (1995) 128 FLR 291 …. 10.49 Kolalich v DPP (NSW) (1991) 57 A Crim R 237 …. 11.4 Kosian v R [2013] VSCA 357 …. 13.16 Kroon v R (1990) 55 SASR 476; 52 A Crim R 15 …. 1.38, 12.52, 14.2, 14.39 Kruger v Kidson [2004] NTSC 24 …. 1.28, 14.12 Kuczynski v R (1989) 2 WAR 316 …. 5.12 Kumar v Immigration Department [1978] 2 NZLR 553 …. 3.10 Kural v R (1987) 162 CLR 502 …. 2.19 Kuzmenko v R [1968] QWN 49 …. 15.10 Kwong v R [1980] HKCA 49; [1980] HKC 88 …. 7.63 L L v DPP [2001] All ER (D) 106; [2001] EWHC Admin 882; [2003] QB 137; [2002] 2 All ER 854; [2002] 3 WLR 863 …. 17.10 La Fontaine v R (1976) 136 CLR 62; 11 ALR 507 …. 1.51 — Souveraine, Compagnie d’Assurance Générale v Autorité des Marches Financiers [2013] 3 SCR 756 …. 2.48 Lacis v Cashmarts [1969] 2 QB 400 …. 5.67 Lages, Re (1950) 16 ILR 553 …. 9.15 Lamberton v Hill [1944] VLR 11 …. 3.17 Lane v Purcell [2011] TASMC 19 …. 5.31 Larner v Dorrington (1993) 19 MVR 75 …. 6.4

Larsen v GJ Coles and Co Ltd (1984) 13 A Crim R 109 …. 2.27 Lavallee v R [1990] 4 WWR 1; (1990) 55 CCC (3d) 97 …. 10.40, 10.41, 10.45, 10.52 Lawford v R (1993) 61 SASR 542; 69 A Crim R 115 …. 1.35 Lawrence v Metropolitan Police Commissioner [1972] AC 626 …. 5.75 Lawson v R (1985) 18 A Crim R 360 …. 11.21 LCM v Western Australia [2016] WASC 164 …. 12.4 Leaf-Milham v R (1987) 47 SASR 499; 30 A Crim R 68 …. 12.3 Lean v R (1989) 42 A Crim R 149 …. 10.47 Leask v Commonwealth (1996) 187 CLR 579; [1996] HCA 29 …. 1.2 Lee v New South Wales Crime Commission (2013) 251 CLR 196; 235 A Crim R 326; [2013] HCA 39 …. 1.73 Leith v Chief of Army [2013] ADFDAT 4 …. 9.33 Lenard v R (1992) 58 A Crim R 123 …. 4.9, 4.24 Lergesner v Carroll [1991] 1 Qd R 206; (1990) 49 A Crim R 51 …. 1.32, 1.65, 5.10, 5.11, 5.17, 5.20 Levett’s Case (1638) Cro Car 538; 79 ER 1064 …. 2.3 Lévis (City) v Tétreault [2006] 1 S.C.R. 420; 2006 SCC 12 …. 3.34 Li v Chief of Army (2013) 203 ALR 297; [2013] HCA 49 …. 1.10, 1.38 Libke v R (2007) 230 CLR 559 …. 2.31, 5.49 Light v R (1915) 11 Cr App R 111 …. 7.30 Lim Chin Aik v R [1963] AC 160; [1963] 1 All ER 223 …. 1.63, 3.39, 3.42, 3.47, 7.2 Limbo v Little (1989) 65 NTR 19; 98 FLR 421; 45 A Crim R 61 …. 6.9, 6.19 Lindsay v R (2015) 255 CLR 272; [2015] HCA 16 …. 11.2, 11.12, 11.13, 11.17, 11.30, 11.33, 11.34, 11.50, 11.52, 11.53, 11.57 Lipohar v R (1999) 200 CLR 485 …. 7.37 Liristis v DPP (NSW) [2016] NSWCA 66 …. 4.24 Llandovery Castle, The [1920] P119…. 9.7 Long v State (1949) 65 A 2d 489 …. 3.46 Loveday v Ayre; Ex parte Ayre [1955] St R Qd 264 …. 2.53, 2.55 Lucas v R (1970) 120 CLR 171 …. 12.43, 13.24 Lynch v Hennicke [1985] Tas R (NC 5) 175 …. 13.34 M

M v J [1989] Tasmanian Reports 212; [1989] TASSC 55 …. 17.5, 17.6, 17.8, 17.21 Macaura v Northern Assurance Co Ltd [1925] AC 619 …. 3.14 Macleod v R (2003) 214 CLR 230 …. 4.5, 4.8, 4.19, 4.20, 4.31, 5.75, 5.77 MacPherson v Brown (1975) 12 SASR 184 …. 1.52, 5.15 Maher v Musson (1934) 52 CLR 100 …. 3.10 Maintenance Officer v Starke [1977] 1 NZLR 78 …. 3.10, 3.15, 3.28 Malungahu v Department of Labour [1981] 1 NZLR 668 …. 7.9 Mancini v DPP [1942] AC 1 …. 11.8, 11.14, 11.16, 11.17 Mann v R [2016] NSWCCA 10 …. 1.34 Margarula v Rose (1999) 149 FLR 444 …. 4.28 Mark v Henshaw C6/1998 [1999] HCATrans 100 …. 6.9 Marlow v R [1990] TASSC 7 …. 16.9 Marshall v Foster (1898) 24 VLR 155 …. 3.10 Martin v Puttick [1968] 2 QB 82 …. 5.67 — v R (1983) 9 A Crim R 376 …. 12.20, 12.56 Martindale v Falkner (1846) 2 CB 706; 135 ER 1124 …. 3.3 Marwey v R (1977) 138 CLR 630 …. 10.27, 10.32 Masciantonio v R (1995) 183 CLR 58 …. 10.53, 11.6, 11.10, 11.11, 11.12, 11.13, 11.17, 11.49, 11.52 Mason v Tritton (1994) 34 NSWLR 572 …. 4.12 Massie v R [1999] 1 VR 542 …. 7.59 Matheson v R [1958] 1 WLR 474 …. 15.36 Mathews v R (2001) 24 WAR 438; 123 A Crim R 137 …. 1.56, 2.12, 4.22 Mattar v R [2012] NSWCCA 98 …. 6.30 Maxwell v R (1996) 184 CLR 501; [1996] HCA 46 …. 15.14, 15.33 Mayer v Marchant (1973) 5 SASR 567 …. 2.26, 2.29, 2.32, 3.10, 7.1 Mbuzi v Torcetti [2008] QCA 231 …. 6.10 McBride v R (1966) 115 CLR 44 …. 2.24 McCullough v R [1982] Tas R 43; (1982) 6 A Crim R 274 …. 2.40, 5.60, 10.8, 10.12, 10.27, 10.36, 12.36, 12.39 McDavitt v McDavitt [2013] WADC 22 …. 11.47 McDermott v Director of Mental Health; Ex parte Attorney-General (Qld) [2007] QCA 51 …. 13.45, 15.2, 15.10

McEwan v R [1979] 2 NSWLR 926 …. 2.12, 5.58 McGarvie v R (1986) 5 NSWLR 270 …. 15.7 McGhee v R (1995) 183 CLR 82 …. 11.43 McHenry v Stewart (SC(WA) (FC), No 140/1976, 14 December 1976) …. 6.12 McKechnie v Jones (1976) 13 SASR 184 …. 3.3 McL v Flavel (1985) 45 SASR 69; 21 A Crim R 267 …. 3.18, 3.32 McLaren v R [2012] NSWCCA 284 …. 13.5 McLeod v R (1991) 56 A Crim R 320 …. 14.25 McMillan v Reeves (1945) 62 WN (NSW) 126 …. 7.29 McNamara v Queensland Police Service [2015] QCA 99 …. 6.10, 6.27 McPherson v Cairn [1977] WAR 28 …. 2.53, 2.55 Medlin v Samuels [1971] SASR 223 …. 13.34 Melville (2003) 27 WAR 224; [2003] WASCA 124 …. 5.42 Mercorella v Secretary to Dept of Justice [2015] VSC 18 …. 1.2 Michael v Western Australia (2008) 183 A Crim R 348 …. 5.52, 5.55 Middleton v Gough (1908) 5 Adam (SC) 485 …. 8.9 — v R [1998] WASCA 96 …. 13.63 — v R (2000) 114 A Crim R 258 …. 14.25 Miers v R [1985] 2 Qd R 138 …. 15.9, 15.10 Miles v R [2014] ACTCA 18 …. 7.42 Milirrpum v Nabalco (1971) 17 FLR 141 …. 1.86 Milloy v R (1991) 54 A Crim R 340 …. 14.22, 14.43 Milne v R (2014) 252 CLR 149; [2014] HCA 4 …. 1.82 Minear v Rudrum (2001) 33 MVR 119 …. 3.33 Minister for Health v AS (2004) 29 WAR 517 …. 5.81 Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 219 CLR 664; [2004] HCA 38 …. 7.11 Ministry of Transport v Strong [1987] 2 NZLR 295 …. 12.52 Minniti v R (2001) 120 A Crim R 531 …. 10.10 Missingham v Rogers; Ex parte Missingham (1985) 2 MVR 367 …. 12.52, 12.53 M’Naghten’s Case, Re (1843) 1 Car & Kir 130n; (1843) 4 State Tr NS 847; [1843–60] All ER 229; (1843) 10 Cl & Fin 200; (1843) 8 ER 718 …. 2.36, 13.1, 13.4, 13.9, 13.35, 13.36, 13.37, 13.38, 13.40, 13.42, 13.47, 13.48, 13.49, 13.53, 13.54, 13.59

Moffa v R (1977) 138 CLR 601 …. 11.14, 11.17, 11.30, 11.31, 11.32, 11.49 Molina v Zaknich (2001) 24 WAR 562; 125 A Crim R 401 …. 4.28 Molis v R [1980] 2 SCR 356 …. 3.42, 3.46 Momcilovic v R (2011) 245 CLR 1; 209 A Crim R 1; [2011] HCA 34 …. 1.22, 1.24 Moore v Branton [1974] Crim LR 439 …. 3.10 — v R [2016] NSWCCA 185 …. 1.73, 1.82 Morgan v Coleman (1981) 27 SASR 334; 4 A Crim R 324 …. 10.27 Morris v R (1987) 163 CLR 454; [1987] HCA 50 …. 15.9 — v — (2006) 201 FLR 325; [2006] WASCA 142 …. 6.11, 8.14, 8.29 Morrison v ANL (1996) 91 LGERA 437; 88 A Crim R 122 …. 2.28 Mouse’s Case (1609) 12 Co Rep 63; 77 ER 1341 …. 6.11 Mueller v Vigilante (2007) 177 A Crim R 506 …. 4.5, 4.12, 4.13, 4.28 Mulcahy v R (1868) LR 3 HL 306 …. 7.36 Munda v Western Australia (2013) 249 CLR 600 …. 1.89, 1.90 Murphy v Spencer [2013] WASC 256 …. 1.33, 5.10, 12.10 Murray and Manton v R [1980] 2 NSWLR 526; (1980) 2 A Crim R 418…. 12.8, 12.59 Murray v R (2002) 211 CLR 193; 189 ALR 40; 76 ALJR 899; 131 A Crim R 215; [2002] HCA 26 …. 1.29, 1.38, 1.43, 1.73, 14.5, 14.11, 14.16 N Nairn v Verkerk [2000] WASCA 372 …. 6.11 Narrandera Pastures Protection Board v Coote (1961) 78 WN (NSW) 697; [1961] NSWR 318 …. 7.14, 7.15 Nationwide News Pty Ltd v Bitter (1985) 16 A Crim R 53 …. 2.23 Neal v R (1982) 149 CLR 305; 7 A Crim R 129; [1982] HCA 55 …. 1.86, 1.88, 1.89 — v — (2011) 213 A Crim R 190 …. 5.15, 5.22, 5.31, 5.33, 5.41 Nedrick v R [1986] EWCA Crim 2; [1986] 3 All ER 1; [1986] 1 WLR 1025 …. 1.45, 1.48 Neilson v R [1978] RTR 232 …. 7.29 New South Wales Sugar Milling Co-Operative Ltd v Environmental Protection Authority (1992) 59 A Crim R 6 …. 1.58

Nguyen v R [2005] WASCA 22 …. 6.11 Nielsen v R [1990] 2 Qd R 578 …. 15.9 Nikro v O’Sullivan [2013] ACTSC 129 …. 2.38 Ninness v Walker (1998) 143 FLR 239 …. 10.27 Nirta v R (1983) 79 FLR 190; [1983] FCA 330 …. 7.19, 7.36, 7.42 Noble v Police (1994) 70 A Crim R 560 …. 4.9 NOM v DPP [2012] VSCA 198 …. 13.2, 13.9, 13.33 Nominal Defendant v Dunstan (1963) 109 CLR 143 …. 1.79 Norrie v R [2008] NSWCCA 185 …. 13.45 Nuri v R [1990] VR 641; (1989) 49 A Crim R 253 …. 1.45, 1.52 Nydam v R [1977] VR 430 …. 1.51, 1.54 O O’Leary v Daire (1984) 13 A Crim R 404 …. 12.3 O’Meara v R [2009] NSWCCA 90 …. 2.15 — v McTackett (2000) 172 ALR 342; [2000] HCA 32 …. 1.2 O’Sullivan v Peters [1951] SASR 54 …. 7.30 — v R [2012] NSWCCA 45 …. 2.38, 5.61, 5.63 Oblach v R (2005) 158 A Crim R 586 …. 12.41 Ogbonna v Lay (2013) 230 A Crim R 148 …. 3.10 Oldcastle’s Case (1419) 1 Hale PC 50; 1 East PC 70 …. 8.15 Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580 …. 3.20, 3.28, 4.3, 4.9, 4.28 Onuorah v R (2009) 76 NSWLR 1; 197 A Crim R 430; [2009] NSWCCA 238 …. 7.25, 7.31, 7.55, 7.57 Oris Funds Management Ltd v National Australia Bank Ltd [2005] VSCA 148 …. 5.75 Osborne v Dent; Ex parte John Dent (CA(Qld), No 30/1981, unreported) …. 6.16 Osland v R (1998) 197 CLR 316 …. 10.52, 11.8, 11.54 Ostrowski v Palmer (2004) 218 CLR 493; 206 ALR 422; [2004] HCA 30 …. 2.2, 2.9, 2.25, 2.39, 3.4, 3.6, 3.10, 3.12, 3.13, 3.30, 3.34 Oubid v Western Australia [2013] WASCA 79 …. 6.11 Owens v R (1987) 30 A Crim R 59 …. 12.3 P

Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 …. 5.41 Palmer v Ostrowski (2002) 26 WAR 289 …. 3.13 — v R [1971] AC 814 …. 10.2 — v — [1985] Tas R 138; (1985) 21 A Crim R l …. 2.25, 12.13, 12.22, 12.23 Papadimitropoulos v R (1957) 98 CLR 249 …. 5.19, 5.50, 5.57 Paquette v R (1976) 30 CCC (2d) 417 …. 8.13 Parish v DPP (2007) 179 A Crim R 304; [2007] VSC 494 …. 5.5, 5.16, 5.31, 5.63, 13.59 Parker v R (1963) 111 CLR 610 …. 1.50, 11.1, 11.2, 11.5, 11.9, 11.23, 11.38, 11.52, 12.9 — v — (1964) 111 CLR 665 …. 11.49 — v — (1997) 186 CLR 494 …. 5.65 Parks v R (1992) 15 CR (4th) 289 …. 14.2, 14.30 — v — (1992) 75 CCC (3d) 287 …. 14.30, 14.35 Pascoe v Christie [1984] 1 Qd R 464 …. 12.37 Patterson v R (1982) 6 A Crim R 331 …. 12.39 Pearce v Hallett [1969] SASR 423 …. 10.14 — v Paskov [1968] WAR 66 …. 4.28 Pearson’s case (1835) 2 Lewin 144; 168 ER 1108 …. 12.27 Peden v Boxx [2016] ACTSC 86 …. 1.79 Peko-Wallsend Operations Ltd v Knee (1991) 5 WAR 232 …. 1.31 Pemble v R (1971) 124 CLR 107 …. 2.53, 12.7 Penn v R (1989) 44 A Crim R 131 …. 10.20 People (New York) v Torres 488 NYS 357 (1985) …. 10.52 People v MacEoin (1978) 112 ILTR 53 …. 11.14 Pereira v DPP (1988) 35 A Crim R 382 …. 1.45 Perka v R (1984) 13 DLR (4th) 1; 14 CCC (3d) 385; [1984] 2 SCR 232 …. 6.6, 6.13, 6.16, 6.22, 6.24, 7.12, 8.10 Perry v R (1982) 150 CLR 580 …. 7.35 Pershouse v Queensland Police Service [2013] QCA 296 …. 6.10 Peters v R (1998) 192 CLR 493; [1998] HCA 7 …. 4.9, 4.18, 4.19, 4.20, 4.21, 4.31, 7.36, 7.42 Petersen v Western Australia [2016] WASCA 66 …. 6.11 PGA v R (2012) 245 CLR 355; 223 A Crim R 170; [2012] HCA 21 …. 1.27, 5.42, 7.38

Phekoo v R (1981) 73 Cr App R 107 …. 3.10 Pilgram v Dean [1974] 2 All ER 751 …. 7.14 Pitt, Re [2000] QCA 30 …. 12.32, 14.34 Plomp v R (1963) 110 CLR 234 …. 14.44 Poidevin v Semaan [2013] NSWCA 335 …. 3.10 Police (SA) v Beukes (2011) 205 A Crim R 406 …. 2.38 Police v Bannin [1991] 2 NZLR 237; (1991) 7 CRNZ 55 …. 14.2 — v Bayley (2007) 96 SASR 555; [2007] SASC 49 …. 6.21 — v Creedon [1976] 1 NZLR 571 …. 2.48 — v Cunard [1975] 1 NZLR 511 …. 3.10 — v Hellyer [2002] SASC 61 …. 12.46 — v Kennedy (1998) 71 SASR 175 …. 2.19, 2.21, 5.32 — v Lloyd (1998) 72 SASR 271 …. 10.30, 10.51 — v Ludwig [2015] SASC 183 …. 6.40, 8.1 — v Starkey [1987] 2 NZLR 375 …. 2.48 Pollard v DPP (Cth) (1992) 28 NSWLR 659; 63 A Crim R 383 …. 1.64, 3.1, 3.28 Pollock v R (2010) 242 CLR 233; 203 A Crim R 321 …. 1.82, 11.3, 11.6, 11.9, 11.10, 11.17, 11.23, 11.31 Polyukhovich v Commonwealth of Australia (War Crimes Act case) (1991) 172 CLR 501; [1991] HCA 32 …. 1.17, 1.27, 9.2, 9.17, 9.26, 9.35 Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229 …. 15.16, 15.17, 15.26 Power v Huffa (1976) 14 SASR 337 …. 2.44, 2.45, 3.11, 3.12 Poyser v Commissioner for Corporate Affairs [1985] VR 533 …. 2.23, 3.49 Pregelj v Manison (1987) 51 NTR 1; 31 A Crim R 383 …. 2.25 Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley [2008] NSWCA 204 …. 5.75 Prosecutor v Erdemovi [1997] ICTY 6; 111 ILR 298 …. 8.5 Proudman v Dayman (1941) 67 CLR 536 …. 1.65, 2.2, 2.5, 2.6, 2.7, 2.8, 2.13, 2.18, 2.21, 2.22, 2.24, 2.26, 2.27, 2.32, 2.34, 2.39, 2.42, 2.52, 2.54, 2.56, 5.8 Purdy v R [1982] 2 NSWLR 964 …. 15.14, 15.20, 15.22 Pym v R [2014] NSWCCA 182 …. 13.5

Q Queensland v Alyssa Grace Nolan and Bethany Rose Nolan (2001) 122 A Crim R 517 …. 6.3 Quelch v Collett [1948] 1 KB 478 …. 3.14 Question of Law (No 1 of 1993) (1993) 59 SASR 214 …. 5.43, 5.44 Question of Law Reserved (No 1 of 1997) [1997] SASC 6444 …. 13.28 R R (a child) v Whitty (1993) 66 A Crim R 462 …. 17.8, 17.14 R (on the application of Nicklinson and another) v Ministry of Justice; R (on the application of AM) v Director of Public Prosecutions [2015] AC 657; [2014] 3 WLR 200 …. 6.32 — v AAM; Ex parte A-G (Qld) [2010] QCA 305 …. 13.34 — v AAP (2013) 1 Qd R 344 …. 11.48 — v Abbot (CCA(WA), Library No 2878, 24 April 1980, unreported) …. 7.27 — v Abusafiah (1991) 24 NSWLR 531; 56 A Crim R 424 …. 6.20, 8.3, 8.27, 8.32, 8.37, 12.41 — v Adam [2010] NSWSC 1162 …. 13.21 — v — [2012] SADC 119 …. 13.16, 13.28, 13.37, 13.38, 13.58, 13.59 — v Adams (1892) 18 VLR 566 …. 2.44 — v — (1935) 53 CLR 563; [1935] HCA 62 …. 1.27 — v — [1957] Crim LR 365 …. 1.48 — v — [2002] NSWCCA 448 …. 13.45 — v Adomako; [1995] 1 AC 171; [1994] UKHL 6; [1994] 3 All ER 79; [1994] 3 WLR 288 …. 1.45, 1.52 — v Afele [2014] NSWSC 366 …. 13.16 — v Ahluwalia [1992] 4 All ER 889 …. 10.52, 11.7 — v Ainsworth (1994) 76 A Crim R 127 …. 12.3 — v Aitken [1992] 1 WLR 1006 …. 5.33 — v Alexopoulos [2009] VSCA 269 …. 14.5 — v Alford [2005] VSC 405 …. 13.63 — v ALH (2003) 6 VR 276; [2003] VSCA 129 …. 17.4, 17.8, 17.9 — v Ali [2008] EWCA Crim 716 …. 8.35 — v Allard [1988] 2 Qd R 269 …. 4.18

— v Allday (1837) 8 Car and P 136; 173 ER 431 …. 3.16 — v Allen and Bradford [1992] QCA 222 …. 15.12 — v Aller (No 2) [2015] NSWSC 402 …. 15.15 — v Allwood (1975) 18 A Crim R 120 …. 11.29 — v — [1997] QCA 257 …. 10.32, 10.54 — v Anderson (1997) 94 A Crim R 335 …. 11.50 — v Angus [2002] QCA 29 …. 4.17 — v Anning [2013] QCA 263 …. 1.86 — v Ansari (2007) 70 NSWLR 89; [2007] NSWCCA 204 …. 7.37, 7.42, 7.43, 7.46, 7.47 — v Antoine [2000] UKHL 20; [2001] 1 AC 340 …. 13.61 — v Arden [1975] VR 449 …. 11.28 — v Ardler [2004] ACTCA 4 …. 13.21, 13.29, 13.57, 13.63 — v Arnold; Ex parte Attorney-General (Qld) [2002] QCA 357 …. 12.24, 12.63, 13.63 — v Asamakan [1964] PNGLR 193 …. 16.17, 16.24 — v Ashwell (1885) 16 QBD 190 …. 5.65, 5.69, 5.70 — v Athanasiadis (1990) 51 A Crim R 292 …. 1.45, 1.52 — v Auberson [1996] QCA 321 …. 11.32, 11.35 — v Ayoub (1984) 10 A Crim R 312 …. 13.9 — v — [1984] 2 NSWLR 511 …. 15.13 — v Azaddin (1999) 109 A Crim R 474 …. 1.50 — v Azbaa [2014] NSWSC 1228 …. 13.64 — v B (an infant) [1979] Qd R 417 …. 17.10 — v B [2006] EWCA Crim 2945 …. 5.21, 5.54 — v B, JA [2007] SASC 323 …. 6.16, 6.27 — v B, MA (2007) 177 A Crim R 268 …. 1.83, 12.60 — v B; R v A [1979] 3 All E.R. 460 …. 17.13 — v Backshall [1999] 1 Cr App R 35 …. 6.4 — v Bailey (1800) Russ and Ry 1; 168 ER 651 …. 3.38 — v Baines (1900) 69 LJQB 681 …. 8.55 — v Bajwa (Naripdeep) [2011] EWCA Crim 1093 …. 7.39, 7.51 — v Balaban (1953) SASR 282 …. 13.43 — v Ball, Bunce and Callis (1991) 56 SASR 126; 53 A Crim R 461 …. 12.7 — v Bamber (1843) 5 QB 279; 114 ER 1254 …. 7.13

— v Banhelyi [2012] QCA 357 …. 14.2 — v Bannah [1989] 1 Qd R 331 …. 5.66, 5.68 — v Baraghith (1991) 54 A Crim R 240 …. 11.14 — v Barbeler [1977] Qd R 80 …. 7.20 — v Barbouttis (1995) 82 A Crim R 432; [1995] NSWSC 115 …. 7.51, 7.52, 7.53, 7.54, 7.55, 7.57, 7.68 — v Barbouttis S51/1996 [1996] HCATrans 397 …. 7.39, 7.51, 7.54, 7.55 — v Barker [2014] ACTSC 153 …. 13.16, 13.21 — v Barlow (1997) 188 CLR 1 …. 2.39 — v Barnes [1995] QCA 11 …. 13.63 — v — [2004] EWCA Crim 3246 …. 5.15, 5.41 — v — [2005] 1 Cr App R 30 …. 5.33, 5.41 — v Barrett (1980) 72 Cr App R 212 …. 3.21, 9.20, 10.16 — v Barrow [2001] 2 Qd R 525 …. 8.36 — v BAS [2005] QCA 97 …. 5.19, 5.48, 5.51, 5.63 — v Bateman [1925] All ER Rep 45; 19 Cr App R 8 …. 1.59 — v Bayley [2013] SADC 103 …. 13.28 — v BBD [2007] 1 Qd R 478 …. 2.18, 6.10 — v Beck [1980] Qd R 123 …. 5.68 — v — [1990] 1 Qd R 30 …. 2.13, 12.11 — v Bedford (2007) 98 SASR 514 …. 4.4, 4.6, 4.10, 4.23, 4.24 — v Beeson (1835) 7 Car and P 142; 173 ER 63 …. 11.42 — v Bennett (1989) 45 A Crim R 45 …. 12.13, 12.22, 12.23 — v Bernhard [1938] 2 KB 264; [1938] 2 All ER 140…. 4.3, 4.4, 4.15, 4.23 — v Besim (2004) 148 A Crim R 28 …. 10.27 — v Bikic (2000) 112 A Crim R 300 …. 11.52 — v Bishop [2010] QCA 375 …. 6.10 — v Blayney (2003) 87 SASR 354 …. 5.49 — v Bober (No 3) [2010] SASC 31 …. 13.23, 13.29 — v Boden (1844) 174 ER 863 …. 4.10, 4.24 — v Bojovic [2000] 2 Qd R 183 …. 10.10 — v Bolus [2003] NSWSC 661 …. 7.51, 7.56 — v Bond [2009] SASC 256 …. 12.17 — v Bonollo [1981] VR 633; (1980) 2 A Crim R 431 …. 3.15, 4.16

— v Bonora (1994) 35 NSWLR 74 …. 5.15 — v Bourke [1970] 1 NSWR 767; (1969) 91 WN (NSW) 793 …. 5.58 — v Bourne (1831) 5 Car and P 120; 172 ER 903 …. 11.42 — v — [1939] 1 KB 687 …. 6.3, 6.24 — v — (1952) 36 Cr App R 125 …. 8.43 — v Bowman (1987) 49 NTR45; 87 FLR 469 …. 15.14 — v Box [2001] QCA 272 …. 12.12 — v Boyd [2004] NSWSC 263 …. 10.36 — v Boyea [1992] Crim LR 574 …. 5.26 — v Boyle [2009] VSCA 289 …. 13.11, 13.13, 14.25 — v Bradshaw (1878) 14 Cox CC 83 …. 5.25 — v Brady [2005] SASC 277 …. 7.29 — v Brain (1834) 6 Car & P 350 …. 16.22 — v Bretherton [2013] NSWSC 1036 …. 13.21, 15.15 — v Brindley [2014] NSWSC 1274 …. 13.16, 13.64 — v Brow [1981] VR 783 …. 4.16 — v Brown (1776) 1 Leach 148; 168 ER 177 …. 11.26 — v — (1841) C and M 314; 174 ER 522 …. 5.41, 7.8 — v — (1975) 10 SASR 139 …. 1.45, 2.12, 2.41, 3.48, 5.58 — v — (1986) 43 SASR 33; 87 FLR 400; 21 A Crim R 288 …. 8.14, 8.34, 8.37 — v — [1990] Tas R 46 …. 2.55 — v — (1993) 97 Cr App R 212; [1994] 1 AC 212 …. 1.32 — v — [1994] 1 AC 212 …. 5.15, 5.24, 5.27, 5.28, 5.29, 5.30, 5.31, 5.33, 5.41 — v Brown and Morley [1968] SASR 467 …. 8.9, 8.15, 8.18, 8.19 — v Bruer (2012) 225 A Crim R 130 …. 4.25 — v Bruzas [1972] Crim LR 367 …. 11.42 — v Bugg [1978] VR 251 …. 12.7 — v Burgess (2005) 152 A Crim R 100 …. 10.7 — v Burke [1986] Crim LR 331 …. 8.40 — v Burke, Bannister, Howe and Clarkson [1986] 2 WLR 294 …. 8.40 — v Burnside [1962] VR 96 …. 1.52 — v Bush [1975] 1 NSWLR 298 …. 2.19 — v Butay [2001] VSC 417 …. 11.35 — v Buttigieg (1993) 69 A Crim R 21 …. 11.12, 11.31

— v Buttsworth [1983] 1 NSWLR 658 …. 1.59 — v Bux (2002) 132 A Crim R 395 …. 13.4 — v BW (2012) 225 A Crim R 451; [2012] NTSC 29 …. 2.15, 5.59, 5.60 — v Byrne [1960] 2 QB 396 …. 13.45, 13.48, 15.6, 15.10 — v Cahill [1978] 2 NSWLR 453 …. 2.41 — v Caldwell [1982] AC 341 …. 1.52 — v Callope [1965] Qd R 456 …. 11.47 — v Campbell (1973) 21 CRNS 273 …. 3.35 — v — (1984) 12 A Crim R 272 …. 11.43 — v — [1997] Crim LR 495 …. 15.42 — v — [2009] QDC 61 …. 4.29 — v Cannell [2009] QCA 94 …. 5.49 — v Cannon [1997] QCA 334 …. 12.49 — v CAP [2009] QCA 174 …. 7.33, 8.43 — v Cardillo [2007] SADC 82 …. 13.28 — v Carker (No 2) [1967] SCR 114; [1968] 2 CRNS 16 …. 8.34 — v Carn (1982) 5 A Crim R 466 …. 12.61 — v Carney [2009] QCA 133 …. 6.10 — v Carter [1959] VR 105 …. 14.2, 12.63, 13.38 — v Case (1850) 169 ER 381 …. 5.50 — v CBK [2014] QCA 35 …. 1.75 — v Celliers [1903] ORC 1 …. 9.24, 9.34 — v Chaulk [1990] 3 SCR 1303; (1990) 62 CCC (3d) 193 …. 1.69, 13.9 — v Cheatham [2002] NSWCCA 360 …. 15.4, 15.9 — v Chhay (1994) 72 A Crim R 1 …. 10.44, 11.6, 11.7, 11.9, 11.10, 11.23, 13.54 — v Chisam (1963) 47 Cr App Rep 130 …. 10.13 — v Cinous (2002) SCC 29; [2002] 2 SCR 3 …. 14.25 — v Clare [1994] 2 Qd R 619 …. 1.45, 2.20 — v Clark (1980) Tas R 48; 2 A Crim R 90 …. 8.3, 8.50 — v Clarke [1972] 1 All ER 219 ….13.59 — v — [1991] Crim LR 383 …. 11.19 — v — (1995) 78 A Crim R 226 …. 13.11, 13.13, 14.25 — v — (2008) 100 SASR 363 …. 2.21

— v Clements [2016] NSWSC 1021 …. 13.21 — v Clinton Parker & Evans [2013] QB 1 …. 11.36 — v Clothier [2002] SASC 9 …. 10.19, 10.32, 12.39 — v Clough (2010) 200 A Crim R 140 …. 12.32, 12.37, 12.46, 12.63 — v CMM (2002) 81 SASR 300; [2002] SASC 21 …. 10.37, 10.44 — v Colella [2016] SASC 31 …. 13.28 — v Coleman (1990) 19 NSWLR 467 …. 12.4 — v — [2010] NSWSC 177 …. 13.21 — v Collingburn (1985) 18 A Crim R 294 …. 10.39 — v Collingridge (1976) 16 SASR 117 …. 7.25, 7.29 — v Coney (1882) 8 QBD 534 …. 1.34 — v — (1882) 8 QBD 534 …. 5.15, 5.25, 5.26, 5.41 — v Conlon (1993) 69 A Crim R 92 …. 10.16, 10.25, 10.27, 10.44, 12.39, 12.40, 12.41, 13.54 — v Connolly (1829) 2 Lewin 229; 168 ER 113 …. 8.55 — v — (1959) 76 WN 184 …. 12.43 — v Conway [1989] QB 290; [1988] 3 All ER 1025…. 6.4, 6.20 — v Cooke (1985) 39 SASR 225 …. 11.8 — v Cooper (1980) 51 CCC (2d) 129 …. 13.40 — v Coote (1873) LR 4 PC 599; [1861–73] All ER Ext 1113 …. 3.1 — v Copeland (1997) 194 LSJS 1 …. 12.42 — v Corbett [1903] St R Qd 246 …. 12.32 — v Corry [1966] QWN 40 …. 15.8, 15.14 — v Cottle [1958] NZLR 999 …. 13.22, 13.38, 13.60, 14.2, 14.27 — v Court (1912) 7 Cr App R 127 …. 8.50 — v — [1989] AC 28; [1988] 2 All ER 221 …. 1.33 — v Coventry (1938) 59 CLR 633 …. 2.24 — v Cox [2006] SASC 188 …. 13.21 — v Crabbe (1985) 156 CLR 464; 16 A Crim R 19 …. 1.45, 1.46, 1.51 — v Crispe (No 2) [2014] NSWDC 201 …. 13.64 — v Croft [1981] 1 NSWLR 126; (1981) 3 A Crim R 307 …. 11.6, 11.14, 12.42 — v Crothers [2010] QCA 334 …. 11.47 — v Cuerrier [1998] 2 SCR 371 …. 5.54 — v Cunliffe [2004] QCA 293 …. 3.10, 4.6 — v Cunningham [1959] 1 QB 288 …. 11.42

— v Curtis (1991) 55 A Crim R 209 …. 12.21 — v Curzon (2000) 1 VR 416; 114 A Crim R 472 …. 11.8 — v Cuskelly [2009] QCA 375 …. 10.8, 10.20, 10.37, 12.24, 12.25 — v Daher [1981] 2 NSWLR 669; (1981) 40 ALR 70 …. 8.14 — v Dale [2012] QCA 303 …. 4.27 — v Darrington and McGauley [1980] VR 353 …. 12.61 — v Dastagir [2013] SASCFC 109 …. 13.13 — v Daviault (1994) 93 CCC (3d) 21 …. 12.8 — v Davidson [1969] VR 667 …. 6.3, 6.24 — v Davies (1970) VR 27 …. 5.65 — v Dawson [1978] VR 536 …. 6.28, 8.10, 8.34, 8.39 — v De Souza (1997) 41 NSWLR 656 …. 12.49, 15.35 — v Dean [2009] QCA 304 …. 10.27, 10.33, 11.47 — v Dempsey [2000] VSC 527 …. 8.50 — v — [2001] VSC 21 …. 8.50 — v Denton [1981] 1 WLR 1446 …. 3.24, 5.2 — v Derbin [2000] NSWCCA 361 …. 12.44 — v Dgl [2004] NSWSC 414 …. 13.16, 13.21 — v Dhillon [2011] VSC 6 …. 16.21 — v Dib (2002) 134 A Crim R 329; [2002] NSWSC 934 …. 11.37, 15.33 — v Dica [2004] EWCA Crim 1103 …. 5.21, 5.22, 5.28, 5.54 — v Dillon; Ex parte Attorney-General (Qld) [2015] QCA 155 …. 4.18, 4.20 — v Dimond (2000) 118 A Crim R 188 …. 11.26 — v Dincer [1983] 1 VR 460 …. 11.14, 11.49 — v Ditroia and Tucci [1981] VR 247 …. 2.19 — v Ditta, Hussain and Kara [1988] Crim LR 42 …. 8.50 — v Dixon [2008] 2 NZLR 617; [2007] NZCA 398 …. 13.42 — v DJB [2007] NSWCCA 209 …. 12.15 — v DMC (2002) 137 A Crim R 246 …. 5.20 — v Donovan [1934] 2 KB 498 …. 5.1, 5.15, 5.25 — v Dodsworth (1837) 8 Car and P 218; 173 ER 467 …. 3.10, 3.16, 3.32, 3.34 — v Doherty (1887) 16 Cox CC 306 …. 12.1, 12.5 — v Donaldson and Poumako (2009) 103 SASR 309 …. 2.12

— v Doolan [2010] NSWSC 147 …. 12.44, 13.21 — v Douglas [1985] VR 721 …. 1.79 — v Doyle [1971] WAR 110 …. 12.32, 12.53 — v Duckworth [2016] QCA 30 …. 2.26, 12.25 — v Dudley and Stephens (1884) 14 QBD 273 …. 6.33, 6.34, 6.35 — v Duffy [1949] 1 All ER 932 …. 11.25 — v — [1967] 1 QB 63 …. 10.13 — v Dunrobin [2008] QCA 116 …. 2.35, 2.36, 13.59 — v Duong [2015] QCA 170 …. 7.17 — v Dutton (1979) 21 SASR 356 …. 11.14, 11.30, 11.31 — v Duvivier (1982) 29 SASR 217; 5 A Crim R 89 …. 11.43 — v Dwyer [2008] QCA 117 …. 12.4 — v Dziduch (1990) 47 A Crim R 378 …. 10.25, 10.26, 10.27, 10.51 — v Eagle (1862) 2 F and F 827; 175 ER 1305 …. 11.7 — v Egan (1897) 23 VLR 159 …. 12.23 — v Eid (1999) 46 NSWLR 116; [1999] NSWCCA 59 …. 7.55, 7.58 — v El Azzi [2001] NSWCCA 397 …. 7.6, 7.56 — v Ellem (No 2) [1995] 2 Qd R 549 …. 10.10 — v Emmett [1999] EWCA Crim 1710 …. 5.28 — v English (1993) 10 WAR 355; 68 A Crim R 96 …. 7.16, 7.25 — v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27 …. 12.10 — v Eustance [2009] QCA 28 …. 12.11, 12.12 — v Evans (1987) 48 SASR 35; 30 A Crim R 262 …. 2.13, 5.61 — v Evans and Gardiner (No 1) [1976] VR 517 …. 8.18, 8.23 — v Evens [2008] 1 AC 269 …. 1.35 — v F; Ex parte Attorney-General (1998) 101 A Crim R 113; [1998] QCA 97 …. 17.6, 17.8, 17.10, 17.13, 17.14 — v Falconer (1990) 171 CLR 30; 50 A Crim R 244; [1990] HCA 49 …. 1.29, 1.38, 1.43, 1.45, 8.9, 12.17, 12.43, 13.13, 13.17, 13.22, 13.37, 14.2, 14.3, 14.5, 14.10, 14.13, 14.14, 14.16, 14.18, 14.19, 14.21, 14.22, 14.24, 14.25, 14.26, 14.35, 14.42, 14.44, 14.45 — v Falla [1964] VR 78 …. 10.25 — v Faure [1999] 2 VR 537 …. 12.7 — v Fennell [1971] 1 QB 428 …. 10.13, 10.49 — v Fenton (1975) 61 Cr App R 261 …. 15.10, 15.35 — v Fernando [2011] NSWSC 1556 …. 13.21

— v Fili [2010] NSWSC 712 …. 13.21 — v Finnagan (No 2) [2015] SADC 55 …. 7.25 — v Fisher (1837) 8 C & P 182 …. 11.28, 11.33 — v Fitchett [2009] VSCA 150 …. 13.9, 13.15, 13.23, 13.25 — v Fitzmaurice [1983] QB 1083; [1983] 1 All ER 189 …. 7.62, 7.64 — v Flaherty (1968) 89 WN (Pt 1) (NSW) 141 …. 5.58 — v Flannery [1969] VR 31 …. 5.58 — v Flattery (1877) 2 QB 410 …. 5.50 — v Fontaine [2004] SCC 27 …. 14.25 — v Forbes [2005] NSWCCA 377 …. 10.27 — v Ford [1972] QWN 5 …. 15.8, 15.9 — v Fowler (1985) 39 SASR 440; 17 A Crim R 16 …. 12.61 — v — [1999] VSCA 135 …. 1.38 — v Fox [2011] SASC 224 …. 13.31 — v Foy [1960] Qd R 225 …. 13.37 — v Francis [1993] 2 Qd R 300 …. 5.49 — v Fuge (2001) 123 A Crim R 310 …. 4.1, 4.3, 4.4, 4.7, 4.8, 4.10, 4.24, 4.31 — v G [2003] UKHL 50; [2004] 1 AC 1034 …. 7.46 — v Gardner (1989) 42 A Crim R 279 …. 11.26 — v — [2012] QSC 73 …. 6.10 — v Gauthier [2013] 2 SCR 403 …. 2.53 — v Gemmill (VSC, Osborn J, 12 November 2003, unreported) …. 13.25 — v — [2004] VSC 30 …. 13.4 — v — [2004] VSCA 72 …. 13.4 — v Georgatsoulis (1994) 62 SASR 351 …. 12.42 — v George [2013] 2 Qd R 150 …. 12.10, 12.11 — v Ghosh [1982] QB 1053 …. 4.18, 4.19, 4.20, 4.21, 4.31 — v Gill [2009] NSWDC 229 …. 13.21 — v Golding [2014] EWCA Crim 889 …. 5.21 — v Goldman (No 4) (2004) 147 A Crim R 472; [2004] VSC 291 …. 8.12, 8.15, 8.21 — v Goldsworthy [2016] QSC 220 …. 1.40 — v Goliath (1972) (3) SA 465 …. 8.57 — v Good [2010] NSWSC 402 …. 10.36

— v Goodridge [2012] NSWSC 378 …. 15.15, 15.35 — v Gore (dec’d) [2007] EWCA Crim 2789 …. 16.3, 16.6, 16.7, 16.16, 16.24 — v Gotts [1992] 2 AC 412; [1992] 1 All ER 832; [1992] 2 WLR 284 …. 8.15, 8.17, 8.21 — v Gould and Barnes [1960] Qd R 283 …. 2.27, 2.40 — v Graham [2015] QCA 137 …. 10.32 — v Grant (2002) 131 A Crim R 523 …. 12.8, 12.15 — v — [2009] NSWSC 833 …. 13.4 — v Graveline [2006] 1 SCR 609; (2006) SCC 16 …. 14.13 — v Gray (1998) 98 A Crim R 589 …. 10.10, 10.27, 10.32, 10.50, 10.54 — v Green [1976] QB 985 …. 7.39 — v Greenwood [2002] QCA 360 …. 10.27, 10.32 — v Griffin (1980) 23 SASR 264 …. 11.14 — v Gross (1913) 23 Cox CC 455 …. 11.26 — v Grosser (1999) 73 SASR 584; 106 A Crim R 125 …. 10.27, 10.32 — v Gutch (1829) Mood & M 432; 173 ER 1214 …. 1.64 — v Guthrie (1981) 40 ACTR 27; 52 FLR 171; 2 A Crim R 248 …. 12.3, 12.56 — v GW [2015] NSWDC 52 …. 17.4, 17.13 — v Hagan (1837) 8 Car and P 167; 173 ER 445 …. 11.42 — v Haidley [1984] VR 229; (1983) 10 A Crim R 1 …. 12.61 — v Hajistassi (2010) 107 SASR 67 …. 11.6 — v Hall (1828) 172 ER 477 …. 4.15 — v — (1988) 36 A Crim R 368 …. 1.38, 14.2, 14.5, 14.33 — v Hamilton (1985) 31 A Crim R 167 …. 12.3 — v Hamlyn [2012] SADC 158 …. 13.28 — v Hamoui [2005] NSWSC 279 …. 11.35 — v Hancock [1986] AC 455 …. 1.45, 1.48 — v Hansen [1964] Qd R 404 …. 1.59 — v Harb [1999] VSCA 178 …. 10.16 — v Hardie [1984] 3 All ER 848 …. 12.6 — v Harding [1976] VR 129; [1976] VicRp 11 …. 8.19, 8.32 — v Harkin (1989) 38 A Crim R 296 …. 1.33 — v Harris, Kirby and Johnson (CCA(NSW), Street CJ, No 202–4 of

1985, 18 July 1986, unreported) …. 17.13 — v Harrison [1963] Crim LR 497 …. 4.4 — v Hartwick (2005) 159 A Crim R 1 …. 11.29 — v Hasan [2005] UKHL 22; [2005] 2 AC 467; [2005] 2 WLR 709; …. 6.6, 8.2, 8.8, 8.12, 8.18, 8.35, 8.40 — v Hawes (1994) 35 NSWLR 294 …. 10.27 — v Hawton [2009] QCA 248 …. 6.10 — v Hayes [2008] QCA 371 …. 12.11, 12.58 — v Hayward (1833) 6 Car; 172 ER 1188 …. 11.7 — v Haywood [1971] VR 755 …. 12.7, 12.18 — v Helmhout (1980) 30 ACTR 1; 1 A Crim R 103 …. 12.39 — v Hemsley (1988) 36 A Crim R 334 …. 1.45, 1.46, 1.52 — v Hendy [2008] VSCA 231 …. 10.25 — v Hennessey [1989] 2 All ER 9; [1989] 1 WLR 287 …. 12.52, 12.53, 14.2, 14.19, 14.30, 14.35 — v Hensler (1870) 11 Cox CC 570 …. 7.30 — v Hercules (1954) (3) SA 826 …. 8.57 — v Herlihy [1956] St R Qd 18 …. 11.3, 11.47 — v Heuer [2013] QSC 357 …. 13.15 — v Hewitt [2004] VSC 487 …. 13.18, 13.19, 13.58 — v Higgins (1801) 2 East 5; 102 ER 269 …. 7.26, 7.65 — v Higgs [2011] SASCFC 108 …. 5.61 — v Hilder (1997) 97 A Crim R 70 …. 13.26 — v Hoang Van Truang (1987) 35 A Crim R 57 …. 11.4 — v Hodges (1986) 19 A Crim R 129 …. 13.45 — v Hodgetts [1990] 1 Qd R 456; (1989) 44 A Crim R 320 …. 1.59 — v Hodgson [1985] Tas R 75 …. 12.23 — v Hoet [2016] QCA 230 …. 10.15 — v Holmes [1960] WAR 122 …. 8.10 — v — (1993) 2 Tas R 232 …. 5.15, 5.31 — v — [1993] TASSC 5 …. 5.31 — v Honner [1977] Tas SR 1 …. 12.61 — v Hornbuckle [1945] VLR 281 …. 12.8 — v Howard [1966] WLR 13 …. 5.43 — v Howe (1958) 100 CLR 448; [1958] HCA 38 …. 10.35, 10.37, 10.53

— v — [1986] UKHL 4; [1987] AC 417 …. 8.10, 8.13, 8.15, 8.19, 8.57 — v — [1987] AC 417; [1986] UKHL 4 …. 6.34 — v — [2004] TASSC 61 …. 13.14 — v Hubert (1993) 67 A Crim R 181 …. 12.3, 12.32 — v Hucker [2002] NSWSC 1068 …. 15.17 — v Hudson [2016] SASCFC 60 …. 1.92 — v Hudson and Taylor [1971] 2 QB 202 …. 8.15, 8.32, 8.35, 8.36 — v Hughes (1829) 2 Lewin 229; 168 ER 1137 …. 8.55 — v — (1989) 42 A Crim R 270 …. 1.38, 14.2 — v — [2015] VSC 312 …. 16.21 — v Huni [2014] QCA 324 …. 14.7 — v Hunt [2009] QCA 397 …. 6.10 — v Hurley and Murray [1967] VR 526 …. 8.37 — v Hussey (1924) 18 Cr App Rep 160 …. 10.16, 10.37 — v Hutchinson (1864) 9 Cox Cr Ca 555 …. 9.1 — v — [2014] SCC 19 …. 5.53, 5.56 — v Hutty [1953] VLR 338 …. 16.9, 16.23, 16.24 — v Iannazzone [1983] 1 VR 649; (1980) 3 A Crim R 246 …. 2.23, 2.41, 2.42 — v Imadonmwonyi [2004] VSC 361 …. 10.53 — v Ireland (1987) 29 A Crim R 353 …. 12.4 — v Irwin (2006) 94 SASR 480; [2006] SASC 90 …. 7.21, 7.25, 7.28, 7.33 — v Isaac (1996) 87 A Crim R 513 …. 1.27 — v Isaacs (1997) 90 A Crim R 587 …. 11.39 — v Isitt (1978) Cr App R 44 …. 14.19 — v Islam [2011] ACTSC 32 …. 15.42 — v James (1837) 8 C & P 131; 173 ER 429 …. 9.20 — v Japaljarri (formerly known as Hocking) (2002) 134 A Crim R 261; [2002] VSCA 154 …. 6.2, 6.11, 6.32, 8.18, 8.19 — v JC [2000] ACTSC 72 …. 5.42 — v Jeffrey [1967] VR 467 …. 11.23, 13.22 — v — [2003] 2 Qd R 306 …. 2.13 — v Jeffrey and Daley (2002) 136 A Crim R 7 …. 4.9, 4.10, 4.11, 4.24 — v Jennings [2005] NSWSC 789 …. 12.44, 12.49 — v Jennion (1962) 46 Cr App R 212 …. 15.16

— v Jervis [1993] 1 Qd R 643 …. 2.13 — v JGA [2013] QMHC 3 …. 13.44 — v Johnson [1964] Qd R 1 …. 10.36, 10.38, 10.47, 11.3, 11.47 — v — [2013] NSWDC 40 …. 13.12, 13.18, 13.20, 13.48 — v — [2015] QCA 270 …. 1.67 — v — [2015] SASCFC 170 …. 17.4, 17.21 — v Johnstone [2003] QCA 559 …. 11.41 — v Jones (1986) 22 A Crim R 42 …. 12.49 — v Jones [1990] RTR 33 …. 6.17 — v Jones (2011) 209 A Crim R 379 …. 1.33 — v Jones [2008] QB 460; [2007] 4 All ER 112; [2007] EWCA Crim 1118 …. 7.5 — v Jorgensen (1995) 102 CCC (3d) 97 …. 3.34 — v Joyce [1970] SASR 184 …. 13.22, 14.13, 14.19 — v — [2003] NSWCCA 280 …. 14.44 — v — [2005] NSWDC 13 …. 14.17 — v JTB [2009] 1 AC 1310; [2009] UKHL 20 …. 17.8, 17.17, 17.18, 17.20 — v Julian (1998) 100 A Crim R 430 …. 10.10, 10.27 — v Jungarai (1981) 9 NTR 30; (1982) 5 A Crim R 319 …. 1.88 — v K (1970) 3 CCC (2d) 84 …. 14.13, 14.20 — v Kahn [1990] 2 All ER 783 …. 12.8 — v Kai-Whitewind [2005] EWCA Crim 1092 …. 16.28 — v Kakavand [2010] SASC 350 …. 13.28 — v Kaminski [1975] WAR 143 …. 12.10 — v Kamipeli [1975] 2 NZLR 610 …. 12.9 — v Kapeliotis (1995) 82 A Crim R 300 …. 7.51 — v Kaporonovski [1972] Qd R 465 …. 10.47 — v Kastratovic (1985) 42 SASR 59; 19 A Crim R 28…. 4.7, 4.9, 4.23, 4.24 — v Katarzynski [2002] NSWSC 613 …. 10.7, 10.27, 10.30, 10.32, 12.39 — v Kayal [1979] 2 NSWLR 117 …. 2.19 — v Kear [1997] 2 VR 555 …. 10.46, 10.53 — v Kelly [2014] ACTSC 28 …. 4.24 — v Kemp [1957] 1 QB 399; [1956] 3 All ER 249 …. 13.38

— v Kennedy [1923] SASR 183 …. 2.44 — v — [1981] VR 565 …. 2.11, 2.23 — v Kenney [1983] 2 VR 470 …. 11.25, 11.26 — v Keogh [1964] VR 400 …. 12.7, 12.18 — v Kidd [2001] QCA 536 …. 1.56 — v Kincaid (1983) 33 SASR 552 …. 10.27 — v King [2004] ACTSC 82 … 14.15, 14.18, 15.34 — v Kingston [1995] 2 AC 355; [1994] 3 WLR 519 …. 12.3, 12.27, 12.28, 12.29, 12.31, 12.34 — v — [2008] NSWDC 86 …. 14.1, 14.2, 14.6 — v Kingswell [1984] 3 NSWLR 273 …. 7.51 — v Kirkham (1837) 8 Car and P 115; 173 ER 422 …. 11.7 — v Klamo [2008] VSCA 75 …. 13.16 — v Knutsen [1963] Qd R 157 …. 5.12 — v Koani [2016] QCA 289 …. 1.37, 1.56, 1.82 — v Konidaris [2014] VSC 89 …. 13.21, 13.32, 13.36 — v Konzani [2005] EWCA Crim 706 …. 5.21 — v Kooken (1981) 74 Cr App R 30 …. 15.14 — v Kray (Ronald) [1970] 1 QB 125; [1969] 3 All ER 941; (1969) 53 Cr App R 569 …. 8.19 — v Krbavac [2013] NSWSC 1671 …. 13.64 — v Kristo (1989) 39 A Crim R 86 …. 7.25, 7.31 — v Kumar (2002) 5 VR 193 …. 11.31 — v Kurtic (1996) 85 A Crim R 57 …. 10.25, 12.39 — v Kusu [1981] Qd R 136; (1980) 4 A Crim R 72 …. 12.10, 12.11, 12.22, 12.24, 14.41 — v L (1991) 174 CLR 379 …. 1.27, 5.42 — v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274 …. 6.10 — v Lamb (1967) 51 Cr App R 417 …. 1.48 — v Lancaster [2013] NSWSC 322 …. 13.64 — v Lane (1990) 53 SASR 480 …. 12.4 — v — [1983] 2 VR 449; (1983) 8 A Crim R 182 …. 10.13, 10.16, 10.39 — v Langford [1842] 174 ER 653 …. 4.23 — v Langham (1984) 36 SASR 48; 12 A Crim R 391…. 3.25, 4.3, 4.4, 4.8, 4.9, 4.10, 4.23, 4.24

— v Larsonneur (1933) 24 Cr App Rep 74 …. 1.30 — v Latimer [2001] 1 SCR 3 …. 6.6 — v Laurie [1987] 2 Qd R 762 …. 4.18 — v Lavender (2005) 222 CLR 67; [2005] HCA 37 …. 1.58, 2.18 — v Lawrence [1982] AC 510 …. 1.52 — v — (1996) 86 A Crim R 412 …. 4.8 — v Le Broc (2000) 2 VR 43 …. 12.58 — v Leak [2011] VSC 212 …. 7.64 — v Lean & Aland (1993) 66 A Crim R 296 …. 10.29, 10.51 — v Lee (1990) 1 WAR 411; 47 A Crim R 187 …. 7.25, 7.27 — v — (1999) NSWCCA 301 …. 11.30 — v — [2006] 3 NZLR 42 …. 5.15, 5.21, 5.22, 5.30 — v Leonboyer [2001] VSCA 149 …. 14.2, 14.15, 14.20, 14.31 — v Leoni [1999] NSWCCA 14 …. 4.24 — v Lesbini [1914] 3 KB 1116 …. 11.14 — v Letenock (1917) 12 Cr App R 221 …. 11.8 — v Lipman [1970] 1 QB 152 …. 12.6 — v LK (2010) 241 CLR 177; [2010] HCA 17 …. 1.7, 1.9, 7.36, 7.37, 7.43, 7.44, 7.46, 7.51 — v LMS [1996] 2 Cr App R 50 …. 17.14 — v Lock [2002] 1 Qd R 512; (2001) 121 A Crim R 219 …. 13.39, 15.14 — v Lockwood; Ex parte Attorney-General [1981] Qd R 209 …. 1.45, 1.51, 12.11 — v Lopatta (1983) 35 SASR 101 …. 4.4, 4.10, 4.23, 4.31 — v Lopez [2014] NSWSC 287 …. 13.21 — v Lorenz (1998) 146 FLR 369; [1998] ACTSC 275 …. 8.39, 8.49 — v Loughnan [1981] VicRp 43; [1981] VR 443 …. 6.15, 6.18, 6.20, 6.26, 6.28, 6.30, 6.41, 12.40 — v Loughrey [2011] NSWSC 1456 …. 13.21 — v Love (1989) 17 NSWLR 608 …. 4.9 — v Low (1991) 57 A Crim R 8 …. 11.39, 14.2, 15.36 — v Luedecke [2008] ONCA 716 …. 12.25 — v Lukins (1902) 19 WN (NSW) 9 …. 11.32 — v Lynch (1832) 5 Car and P 324; 172 ER 995 …. 11.7 — v Lyon [2002] VSCA 231 …. 10.46

— v M (a minor) (1977) 16 SASR 589 …. 17.4, 17.11, 17.14 — v Mabior [2012] 2 SCR 584 …. 5.54 — v MacDonald (1904) St R Qd 151 …. 7.8 — v MacDougall (1983) 1 CCC (3d) 65 …. 3.34 — v Machin (No 2) (1997) 69 SASR 403 …. 11.31 — v Maclean (1974) 27 CRNS 31 …. 3.38, 3.46 — v MacMillan [1966] NZLR 616 …. 13.42 — v Maher [1987] 1 Qd R 171 …. 4.18 — v Mai (1992) 26 NSWLR 371; 60 A Crim R 49 …. 7.25, 7.31, 7.35 — v Majdalawi (2000) 113 A Crim R 241 …. 15.16, 15.20 — v Major [2015] 2 Qd R 307; [2013] QCA 114 …. 11.28, 11.41, 11.47, 11.51 — v Mallett [2003] SASC 332 …. 12.60 — v Maloney [2001] 2 Qd R 678 …. 13.24 — v Mankotia (2001) 120 A Crim R 492 …. 11.12, 11.13 — v Mardon [2015] SADC 78 …. 7.25 — v Martin (1984) 16 A Crim R 87 …. 12.55 — v — [1963] Tas SR 103 …. 2.9, 2.25, 2.55 — v — [1979] Tas R 211; (1979) 1 A Crim R 85 …. 12.22 — v — [1989] 1 All ER 652 …. 6.4, 6.15, 6.20 — v — [2005] VSC 518 …. 13.36 — v — [2007] VSCA 291 …. 13.23 — v Martin (No 1) (2005) 159 A Crim R 314 …. 12.43 — v Mary Hogan (1851) 2 Den 277; 169 ER 504 …. 7.8 — v Masnec [1962] Tas SR 254 …. 10.36 — v Mathers [2011] NSWSC 339 …. 15.9 — v Mawgridge (1707) Kel J119; 84 ER 1107 …. 11.1, 11.24 — v Mawson [2007] NSWSC 1473 …. 15.9 — v Mayberry [1973] Qd R 211 …. 1.67 — v MB (No 2) [2014] NSWSC 1755 …. 15.15, 16.13 — v McBride [1962] 2 QB 167; [1961] 3 All ER 6 …. 12.3 — v McCafferty [1974] 1 NSWLR 89 …. 8.18, 8.19, 8.57 — v McCarthy [1954] 2 QB 105 …. 11.14 — v — [2015] SASCFC 177 …. 1.81 — v McConnell [1977] 1 NSWLR 714 …. 8.18, 8.19 — v McCoy [2001] 51 NSWLR 702; (2001) 123 A Crim R 81; [2001]

NSWCCA 255 …. 7.6, 7.22 — v McDermott [2003] ACTSC 1 …. 13.43, 13.52 — v McDonough (1962) 47 Cr App R 37 …. 7.60 — v MCG [2015] QCA 184 …. 8.43 — v McGuckin [2014] ACTSC 242 …. 13.11, 13.21, 13.23, 13.41 — v McIntosh [1999] VSC 358 …. 5.31 — v McIver (1928) 22 QJPR 173 …. 5.10, 12.10 — v McKay [1957] VR 560 …. 10.1, 10.3, 10.16, 10.21, 10.31 — v McMartin [2013] QCA 339 …. 10.17 — v Meachen [2006] EWCA Crim 2414 …. 5.15, 5.24, 5.28 — v Meddings [1966] VR 306 …. 12.44, 14.29, 14.34 — v Messent [2011] QCA 125 …. 10.50, 10.54 — v Middleton (1873) LR 2 CCR 38 …. 5.65, 5.69, 5.70 — v — [2003] QCA 431 …. 12.10 — v Miers [1985] 2 Qd R 138 …. 12.10, 12.22, 12.49 — v Milka [2010] SASC 250 …. 13.28 — v Miller (1965) 49 Cr App R 241 …. 5.67 — v — [2009] QCA 11 …. 11.13 — v Mills [2008] QCA 146 …. 11.32 — v Minani (2005) 63 NSWLR 490; 154 A Crim R 349; [2005] NSWCCA 226…. 13.64 — v Minor (1992) 79 NTR 1 …. 1.88 — v Mitchell (1994) 72 A Crim R 200 …. 12.4 — v — [2012] NSWSC 1404 …. 13.64 — v Miyatatawuy (1996) 6 NTLR 44; [1996] NTSC 84 …. 1.86, 1.88 — v Moffatt (No 3) [1999] NSWSC 233 …. 13.45 — v Mogg (2000) 112 A Crim R 417 …. 13.39 — v Mohan [1976] QB 1; [1975] 2 All ER 193 …. 1.45, 1.46, 1.47 — v Mollison (1876) 2 VLR (L) 144 …. 3.7, 3.10 — v Moloney [1985] AC 905; [1985] 1 All ER 1025 …. 1.45, 1.48 — v Monreal (1984) 16 A Crim R 361 …. 11.4 — v Morcom [2015] SASCFC 30 …. 7.16 — v Morgan [1970] VR 337 …. 5.49 — v Morgan; Ex parte A-G [1987] 2 Qd R 627; (1986) 24 A Crim R 342 …. 15.9 — v Morris [1984] AC 320 …. 5.64, 5.74, 5.75

— v Mouers (1921) 57 DLR 569 …. 11.24 — v Mrzljak [2004] QCA 420 …. 13.59 — v — [2005] 1 Qd R 308 …. 2.9, 2.34, 2.35, 2.36, 2.37, 2.39, 5.49, 5.60, 10.27, 12.10, 12.36, 12.41 — v Mueller [2005] NSWCCA 47 …. 5.43, 5.44 — v — [2015] NSWCCA 292 …. 13.5 — v Mujunen [1994] 2 Qd R 647; (1993) 67 A Crim R 350 …. 5.64, 5.73 — v Mullen (1938) 59 CLR 124 …. 1.73 — v Mungatopi (1991) 2 NTLR 1; 57 A Crim R 341 …. 11.13 — v Munro (1981) 4 A Crim R 67 …. 12.59 — v — (2001) 51 NSWLR 540 …. 10.37, 10.44, 10.53 — v Muratovic [1967] Qd R 15 …. 10.10, 10.38, 10.47 — v Murphy [2009] SASC 2 …. 13.28 — v Murray [2001] NSWCCA 289 …. 7.51 — v — (2002) 211 CLR 193 …. 12.24 — v Mwai [1995] 3 NZLR 149 …. 5.12 — v N (1999) 106 A Crim R 493; [1999] NSWCCA 187 …. 8.32 — v Najibi [2015] VSC 260 …. 7.64 — v Navarolli (2009) 194 A Crim R 96 …. 2.26 — v NCT [2009] VSCA 240 …. 13.21 — v Nemec [2010] QCA 335 …. 4.18 — v Newbury [2012] NSWSC 1361 …. 13.64 — v Newell (1980) 71 Cr App R 331 …. 11.14 — v Newman [1948] VLR 61 …. 11.29 — v Nguyen [2009] NSWSC 918 …. 13.21 — v Nielsen [1990] 2 Qd R 578 …. 12.49 — v Nundah (1916) 16 SR (NSW) 482 …. 4.8, 4.23 — v O (2003) 139 A Crim R 432 …. 8.50 — v O’Connor (1980) 146 CLR 64; 4 A Crim R 348; [1980] HCA 17 …. 1.33, 10.27, 12.1, 12.2, 12.3, 12.7, 12.8, 12.9, 12.10, 12.13, 12.15, 12.18, 12.19, 12.20, 12.24, 12.27, 12.29, 12.30, 12.31, 12.51, 12.58,13.63, 14.39, 14.41 — v O’Donoghue (1927) 20 Cr App R 132 …. 16.14 — v O’Loughlin [2011] QCA 123 …. 2.26, 2.36, 12.36 — v O’Neil (1910) 126 NW 454 …. 3.48

— v O’Neill (1981) 4 A Crim R 404 …. 12.42 — v — [1982] VR 150 …. 11.14 — v O’Regan [1961] Qd R 78 …. 12.10, 12.11 — v O’Sullivan [1925] VLR 514 …. 5.68 — v Oblach (2005) 65 NSWLR 75; 195 FLR 212; 158 A Crim R 586; [2005] NSWCCA 440 …. 8.14, 8.28, 8.29, 10.27, 10.30, 10.32 — v Olugboja [1982] QB 320 …. 5.47 — v Opie [2014] NSWSC 814 …. 13.64 — v Osip (2000) 2 VR 595 …. 2.17, 2.18 — v P (1986) 41 SASR 360 …. 3.27 — v — (1991) 57 A Crim R 211 …. 15.13 — v Pacino (1998) 105 A Crim R 309 …. 2.18, 2.40 — v Paddock [2009] NSWSC 369 …. 15.8 — v Palazoff (1986) 43 SASR 99; 23 A Crim R 86 …. 8.3, 8.10, 8.12, 8.27, 8.37, 11.49 — v Pangilinan [2001] 1 Qd R 56 …. 10.10, 10.53, 11.3, 11.12, 11.26, 11.52 — v Pantelic (1973) 1 ACTR 1 …. 14.16, 14.20 — v Parks [1992] 2 SCR 871 …. 1.38 — v Parsons [2000] VSCA 15; (2000) 1 VR 161 …. 11.19, 11.52 — v Patel; Ex parte Attorney-General (Qld) [2011] QCA 81 …. 5.34, 5.36 — v Patience (1837) 7 Car and P 775; 173 ER 338 …. 11.42 — v Pavlou [2014] NSWCCA 337 …. 8.1 — v Pear (1779) 1 Leach 212; 168 ER 208 …. 5.66 — v Pearce (1983) 9 A Crim R 146 …. 11.43 — v Peckover (2002) 135 A Crim R 400; [2002] NSWCCA 468 …. 7.30, 7.66 — v Peisley (1990) 54 A Crim R 42 …. 11.6, 11.25 — v Penno [1990] 2 SCR 865 …. 12.52 — v Percy Dalton (London) Ltd (1949) 33 Cr App R 102 …. 7.23, 7.27 — v Perera [1907] VLR 240 …. 7.30 — v Perks (1986) 41 SASR 335; 20 A Crim R 201 …. 11.8, 12.3, 12.42, 12.58 — v Peterkin (1982) 6 A Crim R 351 …. 12.7 — v Petersen [2008] NSWDC 9 …. 12.15

— v Petroff (1980) 2 A Crim R 101 …. 11.53 — v Pham [2014] QCA 287 …. 8.1 — v Phillips [1973] 1 NSWLR 275 …. 3.25 — v Pickering [2016] QCA 124 …. 8.23, 10.8, 10.10, 10.33 — v Pickett [1972] Qd R 425 …. 10.10 — v Piper [2005] NSWCCA 134 …. 14.6 — v Pobar (SC(NT), 9–12 February 2010, unreported) …. 14.2 — v Pollard [1962] QWN 13 …. 3.19, 4.3, 4.5, 4.7, 4.8 — v Pommell [1995] 2 Cr App R 607 …. 6.28 — v Porritt [1961] 3 All ER 463 …. 11.26 — v Portelli (2004) 148 A Crim R 282 …. 10.14, 10.25, 10.27, 10.28 — v Porter (1933) 55 CLR 182 …. 12.44, 13.4, 13.40, 13.41 — v — [2006] EWCA Crim 560 …. 2.21 — v Potisk (1973) 6 SASR 389 …. 5.65, 5.70 — v Pratley [2013] VSC 298 …. 7.64 — v Pratt [2009] NSWSC 1108 …. 13.21, 13.36, 13.38 — v PRFN [2000] NSWCCA 230 …. 10.39, 10.42 — v Priest [2011] ACTSC 18 …. 7.5 — v Prince (1875) LR2CCR 154 …. 2.41, 2.42 — v Prow [1990] 1 Qd R 64; (1989) 42 A Crim R 343 …. 10.10, 10.33, 10.47, 11.41, 11.47 — v Prue and Baril (1979) 96 DLR (3d) 577 …. 3.10 — v Pryor (2001) 124 A Crim R 22 …. 5.43, 5.50, 5.57 — v Quayle; Attorney General’s Reference (No 2 of 2004) [2006] 1 All ER 988; [2005] 1 WLR 3642; [2005] EWCA Crim 1415 …. 6.9, 6.26 — v Quick; R v Paddison [1973] QB 910; [1973] 3 WLR 26; (1973) 57 Cr App R 722 …. 12.6, 12.44, 12.63, 14.35 — v R (1981) 28 SASR 321; 4 A Crim R 127 …. 10.41, 11.9, 11.21, 11.23, 11.28, 11.30, 11.31 — v — [1991] 4 All ER 481 …. 5.42 — v — [1992] 1 AC 599 …. 1.27 — v — [2003] VSC 187 …. 13.63 — v Raabe [1985] 1 Qd R 115 …. 5.10, 5.17 — v Rabey (1977) 37 CCC (2d) 461 …. 14.2, 14.31, 14.32 — v Radford (1985) 42 SASR 266; 20 A Crim R 388 …. 1.38; 11.29;

13.6, 13.37; 14.2, 14.33, 14.43, 14.44 — v Ramage [2004] VSC 508 …. 11.35 — v Rawcliffe [1977] 1 NSWLR 219 …. 2.19 — v Redenback (1991) 52 A Crim R 95 …. 12.4 — v Redman [1978] VR 178 …. 10.14 — v Rehman and Wood [2006] 1 Cr App R 404 …. 3.10 — v Reid (2006) 162 A Crim R 377 …. 5.13 — v Reynhoudt (1962) 107 CLR 381 …. 2.7, 2.41, 3.10 — v Reynolds (1983) 10 A Crim R 30 …. 11.43 — v Richards [2002] NSWSC 415 …. 15.9, 15.42 — v — [2015] SADC 44 …. 7.25 — v Richardson (Diane) [1999] QB 444 …. 5.23 — v Riddell [2009] NSWCCA 96 …. 8.1 — v RK (2008) 73 NSWLR 80; [2008] NSWCCA 338 …. 7.37, 7.44 — v Roba [2002] VSCA 74 …. 10.46 — v Roba (No 2) (2000) 110 A Crim R 253 …. 10.53 — v Roberts (1987) 84 Cr App R 117 …. 4.31 — v Rodger [1998] 1 Cr App R 143 …. 6.31 — v Roebuck (1856) 7 Cox CC 126 …. 7.30 — v Roffel (1985) 14 A Crim R 134 …. 5.75, 5.76, 5.77 — v Rogers (1996) 86 A Crim R 542 …. 6.14, 6.29, 6.30, 6.39, 6.41 — v Romano (1984) 36 SASR 283; 14 A Crim R 168 …. 11.14 — v Rose (1884) 5 Cox CC 540 …. 10.13 — v Rosenberger; Ex parte Attorney-General (Qld) [1995] 1 Qd R 677 …. 12.4 — v Ruzic (2001) 153 CCC (3d) 1 …. 8.34 — v — (2001) SCC 24; [2001] 1 SCR 687…. 6.8, 14.5 — v Ryan (1995) 90 A Crim R 191 …. 15.4, 15.16, 15.35 — v S [1979] 2 NSWLR 1 …. 13.9, 13.63 — v — [2012] EWCA Crim 389; [2012] 1 WLR 3081; [2012] 1 Cr App R 31 …. 6.26 — v Sabbah [2004] NSWCCA 28 …. 4.1, 4.10, 4.11, 4.24 — v Sadique [2012] 2 All ER 793; [2011] EWCA Crim 2872 …. 7.59 — v Saik [2006] UKHL 18; [2007] 1 AC 18; [2006] 4 All ER 866 …. 7.36, 7.45, 7.46, 7.48 — v Salvo [1980] VR 401; (1979) 5 A Crim R 1 …. 4.4, 4.9, 4.16,

4.17, 4.18, 4.19, 4.23 — v Sanders (1991) 57 SASR 102 …. 4.1, 4.11, 4.22, 4.23 — v — (1991) 93 Cr App R 245 …. 15.14 — v Sandoval [2010] NSWDC 255 …. 13.4, 13.56 — v Saragozza [1984] VR 187 …. 2.12, 5.58 — v Satnam (1983) 78 Cr App Rep 149; [1983] EWCA Crim 5 …. 1.52 — v Sault Ste Marie (1978) 85 DLR (3d) 161; [1978] 2 SCR 1299 …. 2.48 — v Scarlett [1993] 98 Cr App Rep 290 …. 2.52 — v Scarth [1945] St R Qd 38 …. 1.59 — v Schofield (1784) Cald Cas 397 …. 7.26 — v Schubling; Ex parte A-G [2004] QCA 318 …. 11.32, 11.35 — v Scott [1967] VR 276 …. 1.66, 14.2 — v Scriva (No 2) [1951] VLR 298 …. 11.21, 11.25, 11.40 — v Sebalj [2003] VSC 181 …. 13.36 — v Sebo; Ex parte Attorney-General (Qld) (2007) 179 A Crim R 24; [2007] QCA 426 …. 11.32, 11.35 — v Secretary (1996) 107 NTR 1; 86 A Crim R 119 …. 10.40, 10.41, 10.42 — v Seminara (2002) 128 A Crim R 567 …. 11.12 — v Settree (No 2) [2016] NSWSC 1079 …. 13.21 — v Sew Hoy [1994] 1 NZLR 257 …. 7.51 — v Sewell (1981) 29 SASR 12 …. 12.4 — v Seymour [2004] QCA 19 …. 4.20 — v Sharp [1987] QB 853; [1987] 3 All ER 103; [1987] Crim LR 566 …. 8.40 — v Shaw [1981] 2 NSWLR 648 …. 12.58, 12.59 — v — [1995] 2 Qd R 97 …. 5.55 — v — (1996) 1 Qd R 641 …. 5.46 — v Shayler [2002] UKHL 11; [2003] 1 AC 247 …. 6.9 — v Sheehan [1975] 2 All ER 960 …. 12.6 — v — [2001] 1 Qd R 198 …. 2.44 — v Sheldon [2014] QCA 328 …. 6.10 — v Shephard (1919) 14 Cr App R 26; [1919] 2 KB 125 …. 7.60 — v — (1988) 86 Cr App R 47; [1987] Crim LR 686 …. 8.40 — v Sherlock (1866) LR 1 CCR 20 …. 7.8

— v Shevlin [2013] ACTSC 88 …. 5.20 — v Shields [1981] VR 717 …. 2.18 — v Shiers (2003) 7 VR 174; [2003] VSCA 179 …. 11.1, 11.49 — v Shivpuri [1987] AC 1; [1986] 2 All ER 334 …. 7.24 — v Simpson [1978] 2 NZLR 221 …. 3.10 — v Singh [1999] ACTSC 32 …. 15.9 — v — [2012] QCA 130 …. 2.54 — v Sitek [1988] 2 Qd R 284 …. 2.12, 4.18 — v Skerritt (2001) 119 A Crim R 510 …. 1.43 — v Skivington [1968] 1 QB 166; [1967] 1 All ER 483…. 4.9, 4.23, 4.24 — v Sleep [1966] Qd R 47 …. 10.10, 11.41 — v Smalley [1963] Qd R 508 …. 5.66 — v Smith (1900) 17 SC 561 …. 9.24 — v — (1984) 10 A Crim R 322; [1984] 2 Qd R 69 …. 12.3 — v — (Morgan) [2000] UKHL 49 …. 11.1 — v — [1974] 1 All ER 632 …. 3.24 — v — [1979] 3 All ER 605 …. 12.52 — v — (CCA(NSW), Street CJ, No 164/1981, 3 September 1981, unreported) …. 11.44, 11.46 — v Smyth [1963] VR 737 …. 8.40 — v Solomon [1980] 1 NSWLR 321 …. 1.52 — v Sorgenfrie (1981) 1 A Crim R 404 …. 5.15 — v Spartels [1953] VLR 194 …. 10.14 — v Sperotto [1970] 1 NSWR 502; (1970) 92 WN (NSW) 223 …. 1.45, 5.58 — v Sproule (1975) 26 CCC (2d) 92 …. 14.20 — v Spurge [1961] 2 QB 205; [1961] 2 All ER 688 …. 1.79 — v Stables [2014] NSWSC 697 …. 13.63, 13.64 — v Staszewski [2004] VSCA 176 …. 10.53 — v Stead [1994] 1 Qd R 665 …. 9.33 — v Stead; Ex parte A-G [1997] QCA 236 …. 9.33 — v Steane [1947] KB 997; [1947] 1 All ER 813 …. 8.13, 8.32 — v Steele [2012] SASC 55 …. 13.28 — v Stein (2007) 179 A Crim R 360 …. 5.31 — v Steindl [2002] 2 Qd R 542; (2001) 124 A Crim R 520 …. 1.43

— v Steurer [2009] ACTSC 150 …. 13.21, 13.27 — v Stevens [1989] 1 Qd R 386; (1989) 41 A Crim R 60 …. 10.50, 11.4, 11.47 — v Stewart (1988) 36 A Crim R 13 …. 14.44 — v Stojkovic [2004] VSCA 84 …. 10.6, 10.52 — v Stone [1977] QB 354 …. 1.59 — v — (1999) 134 CCC (3d) 353; [1999] 2 SCR 290 …. 14.9, 14.30, 14.35, 14.36, 14.37, 14.42 — v Stones (1956) SR (NSW) 25 …. 12.7, 12.8, 12.44 — v Stott [2002] 2 Qd R 313; (2001) 123 A Crim R 359 …. 1.56 — v Sullivan (1981) 6 A Crim R 259 …. 12.59 — v — [1984] AC 156; [1983] 2 All ER 673 …. 14.2, 14.19, 14.30 — v — [2010] NSWSC 755 …. 15.8 — v Summers (1986) 22 A Crim R 47 …. 12.58 — v Szymusiak (1972) 3 OR 602 …. 14.6 — v T [1990] Crim LR 256 …. 14.2 — v — [1997] 1 Qd R 623; (1996) 91 A Crim R 152 …. 1.51 — v Taber (2002) 136 A Crim R 478 …. 1.35 — v Taiapa (2008) 186 A Crim R 252 …. 8.36 — v Tait [1973] VR 151 …. 12.7 — v Taiters [1997] 1 Qd R 333; (1996) 87 A Crim R 507; [1996] QCA 232 …. 1.40, 1.43 — v Taktak (1988) 14 NSWLR 226; 34 A Crim R 334 …. 1.35, 1.59 — v Tang (2008) 237 CLR 1; [2008] HCA 39 …. 1.73 — v Taouk (1992) 65 A Crim 387 …. 7.66 — v Tarantello [2011] NSWSC 383 …. 13.21 — v Tatton [2015] SCC 33 …. 12.8 — v Tawill (1974) VR 84 …. 2.19, 8.14 — v Telford (1996) 86 A Crim R 427 …. 11.53 — v — [2004] SASC 248 …. 13.21 — v Terry [1964] VR 248 …. 11.24, 11.28, 11.33 — v Thomas (1837) 7 Car and P 817; 73 ER 356 …. 11.8, 11.42 — v — (1993) 65 A Crim R 269 …. 10.49 — v Thompson (1825) 1 Mood 80; 168 ER 1193 …. 11.42 — v — [1961] Qd R 50 …. 12.8, 12.10 — v Thornton [1992] 1 All ER 306 …. 11.7

— v Thorpe [1999] 1 VR 326; (1998) 102 A Crim R 278; [1998] VSCA 13 …. 11.52, 10.53 — v Thorpe (No 2) [1999] 2 VR 719 …. 11.49 — v Thurlow [2015] QCA 89 …. 12.17 — v Tiknius (2011) 221 A Crim R 365 …. 8.1 — v Tinkler (1859) 1 F and F 513; 175 ER 832 …. 4.25, 4.29 — v Tolmie (1995) 37 NSWLR 660 …. 1.52 — v Tolson (1889) 23 QBD 168 …. 2.7, 2.22, 14.2 — v Train (1985) 18 A Crim R 353 …. 10.25 — v Trainer (1864) 4 F & F 105 …. 9.23 — v Trevenna (2004) 149 A Crim R 505 …. 10.5, 10.36 — v Trotter (1993) 35 NSWLR 428 …. 15.17 — v Trudgeon (1988) 39 A Crim R 252 …. 7.42 — v Tsiaras [1996] 1 VR 398 …. 13.23 — v Tsigos [1964–65] NSWR 1607 …. 13.22, 14.2, 14.19, 14.26 — v Tulloch (1986) 83 Cr App R 1; [1985] Crim LR 50 …. 7.24 — v Tumanako (1992) 64 A Crim R 149 …. 11.25, 11.26 — v Tuncay [1998] 2 VR 19 …. 11.52 — v Turnbull (1943) 44 SR (NSW) 108 …. 2.2 — v — (1977) 65 Crim App R 242 …. 13.45 — v Turner (1816) 5 M & S 206; [1814–23] All ER Rep 713 …. 1.79 — v Turner [1962] VR 30 …. 10.1, 10.16, 10.22 — v Turner [1975] QB 834; [1975] 1 All ER 70 …. 13.13 — v Turner (No 2) [1971] 2 All ER 441 …. 4.1 — v Turner (No 8) (2001) 162 FLR 251; [2001] TASSC 86 …. 7.55, 7.56 — v Turvey [1946] 2 All ER 60 …. 5.65, 5.67 — v Tyrrell [1894] 1 QB 710 …. 7.65 — v V, T [2013] SADC 171 …. 13.31 — v Valahulu [2011] NSWDC 64 …. 13.4 — v Valderrama-Vega [1985] Crim LR 220 …. 8.32 — v Valiukas [2009] NSWSC 808 …. 15.27 — v Van Bao Nguyen (2002) 139 NTR 15 …. 10.17 — v Van Den Bemd (1994) 179 CLR 137; 70 A Crim R 494; [1994] HCA 56 …. 1.32, 1.56 — v Venna [1975] 3 All ER 788 …. 1.52

— v Verdins [2007] VSCA 102 …. 13.23 — v Vidler (2000) 110 A Crim R 77 …. 11.12 — v Voukelatos [1990] VR 1 …. 11.29, 13.54 — v Waine (2005) 157 A Crim R 490 …. 4.12, 4.13, 4.28 — v Walden (1986) 19 A Crim R 444 …. 10.29 — v Walsh [1984] 2 Qd R 407; 14 A Crim R 431 …. 4.28 — v — (1991) 60 A Crim R 419 …. 10.8, 10.12, 10.27, 10.31, 12.39, 13.51, 13.53 — v — [1991] TASSC 30 …. 15.13 — v — (2002) 131 A Crim R 299; [2002] VSCA 98 …. 1.81 — v Walter (1799) 3 Esp 21; 170 ER 524 …. 1.64 — v Wang [1990] 2 NZLR 529 …. 10.41, 13.54 — v Ward (1938) 38 SR (NSW) 308 …. 5.66 — v Wardrope (1987) 29 A Crim R 198 …. 10.53 — v Warner [1969] 2 AC 256 …. 2.19 — v Warner [1980] Qd R 207; (1979) 1 A Crim R 18 …. 6.10, 6.25, 6.27 — v Warren (1996) 88 A Crim R 78 …. 1.87, 8.46, 8.47 — v Waszczuk [2012] NSWSC 1080 …. 13.64 — v Webb (1977) 16 SASR 309 …. 11.14, 11.30, 12.42 — v Weeks (1993) 66 A Crim R 466 …. 12.47, 13.40 — v Weise [1969] VR 953 …. 13.24 — v Wells (1981) 28 SASR 63; 3 A Crim R 453 …. 11.43 — v Welsh (1869) 11 Cox CC 336 …. 11.1 — v Werner 1947 (2) SA 828 …. 9.24 — v Whelan [1937] SASR 237 …. 8.55 — v Whallen (CA(NSW), April 1991, unreported) …. 10.40, 10.52 — v White (2002) 135 A Crim R 346 …. 4.18 — v Whitehouse [1977] 1 QB 868 …. 7.65, 8.43 — v Whitworth [1989] 1 Qd R 437; (1987) 31 A Crim R 453 …. 12.49, 15.7, 15.8, 15.9, 15.10, 15.14, 15.19, 15.21, 15.35 — v Wilk (1982) 32 SASR 12 …. 7.51 — v Willer (1986) 83 Cr App R 225 …. 6.1, 6.15, 6.27 — v Williams [1923] 1 KB 340 …. 5.50 — v — [1953] 1 QB 660 …. 4.15, 4.16 — v — [1971] Qd R 414 …. 11.47

— v — [1978] Tas SR 98 …. 13.62 — v — (1978) 19 SASR 423 …. 7.25 — v — [1987] 3 All ER 411; (1983) 78 Cr App Rep 276 …. 10.13, 10.49 — v — [1988] 1 Qd R 289 …. 12.38 — v — (1990) 50 A Crim R 213 …. 1.38, 1.45 — v — (1996) 15 WAR 559 …. 11.47 — v — (1997) 97 A Crim R 119 …. 8.51 — v — (2008) 192 A Crim R 218 …. 2.13 — v Williamson [1972] 2 NSWLR 281 …. 8.32, 8.34 — v Williamson (No 1) (1996) 92 A Crim R 24 …. 12.17, 12.20 — v Willis (1864) 4 SCR (NSW) (L) 59 …. 7.35 — v Willmot (No 2) [1985] 2 Qd R 413; (1985) 18 A Crim R 42 …. 1.7, 1.42, 1.45 — v Wills [1983] 2 VR 201 …. 10.27 — v Wilmot (2006) 165 A Crim R 14; [2006] QCA 91 …. 10.32, 10.38, 10.47, 10.50 — v Wilson (1986) 22 A Crim R 130 …. 12.59 — v — [1997] QB 47 …. 5.28, 5.33, 5.38 — v — [1997] QCA 244 …. 13.63 — v — [2009] 1 Qd R 476 …. 2.24, 2.35, 2.36 — v Wilson (No 3) [2013] NSWSC 1684 …. 13.4, 13.5, 13.21 — v Wilton & Hallion [2014] SADC 205 …. 8.1 — v Winchester [2014] 1 Qd R 44 …. 5.44, 5.45, 5.46, 5.57 — v Windle [1952] 2 QB 826 …. 13.42 — v Wiseman (1972) 46 ALJ 412 …. 14.19 — v Witika [1993] 2 NZLR 424 …. 1.35 — v Wogandt (1988) 33 A Crim R 31 …. 1.38 — v Woods [2008] SASC 335 … 1.82 — v Woolley [1998] Current Law Yearbook (UK) 914 …. 14.3, 14.26 — v Woollin [1999] 1 AC 82; [1998] UKHL 28; [1998] 4 All ER 103 …. 1.45, 1.48 — v Wyatt (1888) 22 SALR 105 …. 7.30 — v Yasso (2002) 6 VR 239 …. 11.35 — v Yasso (No 2) (2004) 148 A Crim R 369 …. 11.29 — v Yigwai and Aku [1963] PNGLR 40 …. 16.17, 16.24

— v Young [1957] St R Qd 599 …. 11.47 — v — (2004) 142 A Crim R 571 …. 1.73 — v Youssef (1990) 50 A Crim R 1 …. 1.38, 13.9, 14.2, 14.25, 14.43, 14.45 — v Yugovic [1971] VR 816 …. 10.25 — v Zahab [2014] NSWSC 1197 …. 13.21, 13.36, 13.40 — v Zilic [2010] SASC 70 …. 13.16, 13.28, 13.46 — v Zorad (1979) 2 NSWLR 764 …. 1.46, 2.13 — v ZZMM [2015] VSC 524 …. 16.3, 16.9 Rabey v R (1981) 54 CCC (2d) 1 …. 14.13, 14.21, 14.30, 14.31 Raabev R (1984) 14 A Crim R 381 …. 5.17 Ramsay v Watson (1961) 108 CLR 642, [1961] HCA 65 …. 13.16 Randle v R (1995) 15 WAR 26; 81 A Crim R 113 …. 10.38 Raymond v Marcon & Braun [2006] NTMC 36 …. 7.9 Reeves v R (2013) 227 A Crim R 444 …. 5.80 — v — (2013) 304 ALR 251; [2013] HCA 57 …. 1.82, 5.1, 5.23, 5.79 Reniger v Fogossa (1551) 1 Plowden l; 75 ER 1 …. 6.11 — v — 1 Pl Com. 1; 75 Eng Rep (1378–1865) 30 …. 8.9 Reynolds v R [2015] NSWCCA 29 …. 1.40 Rice v Macdonald (2000) 113 A Crim R 75; [2000] TASSC 70 …. 8.31, 8.49 Rich v Attorney-General (Vic) (1999) 103 A Crim R 261 …. 14.28 Richards v Kerrison [2013] ACTMC 15 …. 4.25 Rigby v Taing [2015] NTSC 16 …. 7.16 Riley v Tasmania [2007] TASSC 61 …. 12.13 Roberts v Local Authority of the Burgh of lnverness (1899) 27 Sc LR 198 …. 3.10 — v Western Australia (2005) 29 WAR 445 …. 4.9, 4.20, 4.22, 4.27, 4.28 Roche v R [1988] WAR 278; (1987) 29 A Crim R 168 …. 11.26, 11.43, 11.47 Roddan v R (2002) 128 A Crim R 397 …. 2.12 Rodrigues v Ainsworth [2014] WASC 101 …. 11.48 Roffel v R [1985] VR 511 …. 5.64, 5.75 — v Wennerbom [1965] Qd R 43 …. 3.26 Rogers v R (1989) 44 A Crim R 301 …. 12.4

— v — (1996) 86 A Crim R 542 …. 12.40 Rolls v R; Sleiman v R [2011] VSCA 401 …. 7.20, 7.36, 7.40, 7.42 Rolph v R [1962] Qd R 262 …. 15.7, 15.9, 15.16, 15.29, 15.36 Rooke v Auckland City Council [1980] 1 NZLR 680 …. 2.32, 3.10, 12.37 Rose v Matt [1951] 1 KB 810 …. 3.14 Rose v R [1961] AC 496 …. 15.29 Royall v R (1991) 172 CLR 378; 54 A Crim R 53; [1991] HCA 27 …. 1.40, 1.45, 1.69, 16.13 Royley’s case (1612) Cro Jac 296; 79 ER 254 …. 11.1 RP v R (2015) 90 NSWLR 234; [2015] NSWCCA 215 …. 17.4 RPS v R (2000) 199 CLR 620; 113 A Crim R 341 …. 13.39 Runjanjic and Kontinnen v R (1991) 56 SASR 114; 53 A Crim R 362 …. 8.49, 10.40, 10.41, 10.52, 11.54 Ryan v R (1967) 121 CLR 205; [1967] HCA 2 …. 1.38, 8.9, 8.10, 12.17, 13.58, 14.5, 14.16 S S v De Blom [1977] 3 SA 513…. 3.18 — v Nkosiyana 1966 (4) SA 655 …. 7.65 SAJ v R (2012) 225 A Crim R 528 …. 4.16, 4.20, 4.21 Salmon v Chute (1994) 70 A Crim R 536 …. 1.36 Salomon v Salomon and Co Ltd [1897] AC 22 …. 3.14 Samuels v Flavel [1970] SASR 256 …. 13.16 — v Nicholson [1973] 6 SASR 479 …. 3.26 Sancoff v Holford; Ex parte Holford [1973] Qd R 25 …. 2.54 Sault Ste Marie v R [1978] 2 SCR 1299 …. 3.45, 3.46 Sawada, Re (1946) 13 ILR 302 …. 9.15 Sayed v R (2012) 220 A Crim R 236 …. 2.12, 4.22 Schloendorff v Society of New York Hospital (1914) 105 NE 92 …. 5.78 Scholz v Standish [1961] SASR 123 …. 14.3 Schultz v R [1982] WAR 171 …. 12.61, 14.33 Schwark v Police [2011] SASC 212 …. 14.7 Secretary of the Department of Immigration and Multicultural and Indigenous Affairs v Behrooz (2002) 84 SASR 453…. 6.29

Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218 …. 5.24, 5.31, 5.36, 5.81 Semaan v Poidevin [2013] NSWSC 226 …. 2.42, 2.52 Sgarlata v State of Western Australia [2015] WASCA 215 …. 7.17 Shaw v DPP [1961] UKHL 1; [1962] AC 220 …. 7.38 Shaw v Dunham [2014] QDC 44 …. 11.41 Shearn v Rowbottam [2003] NTSC 78 …. 11.37 Sheer Metalcraft Ltd v R [1954] 1 QB 586 …. 3.42 Sherras v De Rutzen [1895] 1 QB 918 …. 1.63 Shields v New South Wales Crime Commission (2007) 177 A Crim R 130 …. 5.72 Simms v R [2004] WASCA 237 …. 13.63 Simpson (1915) 11 Cr App R 218 …. 11.25 Sio v R [2016] HCA 32 …. 1.82 Skelton v R [2015] NSWCCA 320 …. 13.5, 13.36, 13.42 Slater v R (1987) 44 SASR 136; 31 A Crim R 155 …. 10.27 SM v R [2013] VSCA 342 …. 13.5 Smith v Le Mural; Ex parte Smith [1983] 1 Qd R 535 …. 2.11 — v R (1845) 1 Cox CC 260 …. 17.8, 17.10 — v Western Australia [2010] WASCA 205 …. 6.11 Smyth v R (1957) 98 CLR 163 …. 1.50, 12.10 Snedden v Nationwide News Pty Ltd [2009] NSWSC 1446 …. 9.29 Snow v R [1962] Tas SR 271 …. 2.25, 12.8, 12.10, 12.22, 12.23, 12.31, 14.41 Sodeman v R (1936) 55 CLR 192 …. 13.40, 13.47 Sodo v R (1975) 61 Cr App R 131 …. 15.16 Solle v Butcher [1949] 2 All ER 1107; [1950] 1 KB 671 …. 3.10 Southwark London Borough Council v Williams [1971] 1 Ch 734 …. 6.4, 6.9 SRYYY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1588 …. 9.16, 9.31 SS v R; JC v R [2009] NSWCCA 114 …. 8.1 ST v Kelly [2009] HCATrans 175 …. 13.34 Stanik v R (2001) 125 A Crim R 372 …. 1.43 Stapleton v R (1952) 86 CLR 358 …. 13.42

State of New Jersey v Kelly (1984) A 2d 364 …. 10.52 State of Tasmania v Wahl [2011] TASSC 40 …. 2.24 State of Western Australia v Auckram [2013] WASC 69 …. 8.38 — v Auckram (No 2) [2013] WASC 170 …. 8.38 — v Brown (No 3) [2013] WASC 349 …. 13.21, 13.45, 13.46, 13.48 — v Carlino (No 2) [2014] WASC 404 …. 10.52 — v Chiha [2015] WASC 138 …. 14.10 — v Elliott [2012] WASC 174 …. 13.63 — v Iley [2006] WASC 107 …. 13.21 — v Liyanage [2016] WASC 12 …. 10.52, 10.53 — v McDonald (No 2) [2010] WASC 355 …. 13.53 — v Silich [2011] WASCA 135 …. 14.2 State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721; 65 A Crim R 101 …. 1.65, 2.28, 2.30 State v O’Brien (1892) 31 Pac 45 …. 3.48 Stead v R (1992) 62 A Crim R 40 …. 9.33 Steel v Smith (1817) 1 B and Ald 94; 106 ER 35 …. 1.79 — v State of Western Australia [2010] WASCA 118 …. 10.51, 10.53 Stevens v R [1989] 2 Qd R 386; (1989) 41 A Crim R 60 …. 11.21 — v — (2005) 227 CLR 319 …. 1.43, 1.56 Stevenson v Yasso (2006) 163 A Crim R 1 …. 4.12, 4.28 Stingel v R (1990) 171 CLR 312; 50 A Crim R 186; [1990] HCA 61 …. 1.62, 8.27, 8.29, 10.50, 10.53, 11.11, 11.12, 11.14, 11.17, 11.47, 11.49, 11.52, 12.42, 13.54 Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128; [1932] HCA 40 …. 1.19, 1.23 Stockdale v Coulson [1974] 3 All ER 154 …. 7.13 Stokes and Difford v R (1990) 51 A Crim R 25 …. 12.3, 12.58 Straker v R (1977) 15 ALR 103 …. 11.14 Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 …. 2.44 Stratton v R (1779) 21 St Tr 1062 …. 8.15 Stripp v R (1978) 69 Cr App R 318 …. 14.2 Strudwick v Russell (1989) 9 MVR 15 …. 6.13 Stuart Axtell Davis v Zachariah Ray Mason [2010] NTMC 5 …. 14.12 Stuart v R (1974) 134 CLR 426 …. 1.7 Subramaniam v Public Prosecutor (Malaya) [1956] 1 WLR 965 …. 8.32

Suda, Re [2013] QMHC 18 …. 15.9, 15.32 Surrey County Council v Battersby [1965] 2 QB 194; [1965] 2 WLR 378 …. 3.33, 3.34 SW v R [2012] NSWCCA 103 …. 12.15 SZITR v Minister for Immigration & Multicultural Affairs [2006] FCA 1759 …. 9.27, 9.31 T T, Re (Adult: Refusal of Treatment) [1992] 2 FLR 458; [1993] Fam 95 …. 5.78, 5.80 TA v R [2008] NSWCCA 179 …. 8.48 Tabe v R (2005) 225 CLR 418; [2005] HCA 59 …. 2.16, 2.19, 2.20, 7.17 Tagiao Ah-Chong v R [2015] NZSC 83 …. 7.19, 7.36 Taiapa v R (2009) 240 CLR 95; [2009] HCA 53 …. 1.74, 6.39, 8.1, 8.30, 8.36 Tajber v R (1986) 23 A Crim R 189 …. 12.55, 12.56 Tandy v R (1988) 87 Cr App R 45 …. 15.10 — v — [1989] 1 All ER 267 …. 15.8 Taylor v R (1978) 22 ALR 599; 45 FLR 343…. 13.9, 13.16 Tesco Supermarkets Ltd v Nattrass [1972] AC 153; [1971] 2 All ER 127; [1971] 2 WLR 1166 …. 2.2 Thabo Meli v R [1954] 1 All ER 373 …. 12.51 Thomas v R (1937) 59 CLR 279 …. 2.9, 2.11, 2.34, 2.44, 2.45, 3.9, 3.10, 3.11, 3.25, 5.50, 14.27 — v — (1960) 102 CLR 584 …. 1.50 Thompson v New Zealand Police [2012] NZHC 1500 …. 5.20 — v R (1988) 36 A Crim R 223 …. 15.42 — v — (1989) 169 CLR 1; 41 A Crim R 134; [1989] HCA 30 …. 1.2 Thorneloe v Filipowski (2001) 123 A Crim R 92 …. 1.64 TI v R [2015] ACTCA 62 …. 14.2 Timbu Kolian v R (1968) 119 CLR 47 …. 1.7, 1.32 Timms v Darling Downs Co-operative Bacon Association Ltd (1988) 38 A Crim R 430 …. 2.2, 2.27 — v R [1988] WASCA 41 …. 9.22 Tipple v Police [1994] 2 NZLR 362 …. 3.34

Tomarchio v Pocock [2002] WASCA 156 …. 10.8, 10.10, 10.15 Tough v Kay (1996) 87 A Crim R 278 …. 11.47 Towse v Bradley (1985) 60 ACTR 1; 14 A Crim R 408 …. 3.10 Tracey, Re; Ex parte Ryan (1989) 166 CLR 518 …. 9.33 Tucker v R (1984) 13 A Crim R 447 …. 12.18 Tumanako v R (1992) 64 A Crim R 149 …. 15.7, 15.14, 15.16, 15.19 Turnbull v R (1977) 65 Cr App R 242 …. 15.10 — v — [2016] NSWCCA 109 …. 11.15, 11.22 Turner v R (No 2) [1971] 2 All ER 441 …. 3.14, 4.3, 4.23 Twose v R (1879) 14 Cox CC 327 …. 4.23 Tziavrangos v Hayes (1991) 55 SASR 416; 53 A Crim R 220 …. 1.45, 1.52 U Ugle v R (2002) 211 CLR 171; [2002] HCA 25 …. 1.38, 1.43, 14.5, 14.16 Uncle v Owens (1973) 2 SC (NT) 79 …. 3.26 United State v de Quilfeldt (1881) 5 F 276 …. 8.50 V Vallance v R (1961) 108 CLR 56 …. 1.7, 1.29, 1.40, 1.45, 1.52, 2.25 Van den Hoek v R (1986) 161 CLR 158 …. 11.6, 11.49 Veen v R (1979) 143 CLR 458; 23 ALR 281 …. 11.39, 15.36 Verhoeven v Ninyette (1998) 101 A Crim R 24 …. 11.12, 11.31 Vines v Djordjevitch (1955) 91 CLR 512 …. 1.79 Viro v R (1978) 141 CLR 88; [1978] HCA 9 …. 1.73, 10.27, 10.35, 10.37, 10.49, 10.53, 10.54, 12.39, 12.40, 12.58, 15.2 Von Lieven v Stewart (1990) 21 NSWLR 52 …. 1.65, 2.26 W W O v DPP (NSW) [2009] NSWCCA 275 …. 2.13, 5.47, 5.61, 12.8 W, Re (a minor) (medical treatment) [1992] 4 All ER 637 …. 5.81 Wagenaar v R [2000] WASCA 325 …. 5.44 Wakefield v — (1957) 75 WN (NSW) 66 …. 14.2 Walden v Hensler (1987) 163 CLR 561 …. 1.84, 2.12, 4.4, 4.5, 4.6, 4.12, 4.15, 4.23, 4.25, 4.26, 4.28

Walker v New South Wales (1994) 182 CLR 45 …. 1.86, 1.88 Walsh v R [1993] TASSC 91 …. 10.27 Walton v — [1978] AC 788; (1977) 66 Cr App Rep 25 …. 13.16, 15.10, 15.16 Ward v — (2000) 23 WAR 254; [2000] WASCA 413 …. 13.63 — v — [2013] NSWCCA 46 …. 15.35 Warnakulasuriya v — [2012] WASCA 10 …. 6.11 Watmore v Jenkins [1962] 2 QB 572 …. 12.52 Watson v Lee (1979) 144 CLR 374 …. 3.44 — v Paterson [2016] WASC 357 …. 4.24 Weggers v Western Australia [2014] WASCA 57 …. 7.20 Welsh v Donnelly [1983] 2 VR 173 …. 2.23 Western Australia v R (2007) 33 WAR 483; 169 A Crim R 206; [2007] WASCA 42 …. 2.19, 7.17 WGC v — (2007) 233 CLR 66; [2007] HCA 58 …. 1.81 White v Conway (CCA(Qld), CA No 37 of 1991, unreported) …. 10.15 — v Director of Military Prosecutions (2007) 231 CLR 570 …. 9.2 — v R (1987) 9 NSWLR 427; 31 A Crim R 194 …. 6.27 White, Re Appeal of (1987) 9 NSWLR 427; 31 A Crim R 194 …. 6.4, 6.18, 6.27 Wicks v R (1989) 3 WAR 372; 44 A Crim R 147 …. 11.4 Widgee Shire Council v Bonney (1907) 4 CLR 977 …. 2.2, 2.25, 5.6 Willgoss v R (1960) 105 CLR 295 …. 13.40 William Grey, The (1810) 29 Fed Cas 1300 …. 7.1 Williams v R (1978) 140 CLR 591; [1978] HCA 49 …. 7.17 — v — [1978] Tas SR 98 …. 1.41, 1.45 — v — [1988] 1 Qd R 289 …. 4.31 — v — (2006) 160 A Crim R 151 …. 4.24, 4.25 Wilson v Chambers (1926) 38 CLR 131 …. 3.16 — v Department of Public Prosecutions (NSW) [2016] NSWSC 1458 …. 1.34 — v Dobra (1955) 57 WALR 95 …. 2.13 — v Inyang [1951] 2 KB 799 …. 3.10 — v R (1992) 174 CLR 313; 61 A Crim R 63 …. 1.27, 1.45, 1.59, 12.55 — v — [2011] VSCA 328 …. 5.46

Wiseman v R (1972) 46 ALJ 412 …. 14.19, 14.20 Wogandt v R (1988) 33 A Crim R 31 …. 14.2 Wong Pooh Yin v Public Prosecutor [1951] AC 93 …. 3.25 Woodbridge v R [2010] NSWCCA 185 …. 13.11, 13.13, 13.17, 13.37, 13.38, 14.15, 14.25, 14.28, 14.39 Woodward v Morgan (1990) 10 MVR 474 …. 6.4, 6.27 Woolley v Fitzgerald [1969] Tas SR 65 …. 5.19 Woolmington v DPP [1935] AC 462 …. 1.73, 2.7, 2.55, 4.31, 10.51, 12.9, 13.9, 14.45 Worters v R [2014] NZCA 371 …. 13.57 Wroblewski v Starling [1987] WAR 233 …. 2.53 Wurridjal v Commonwealth of Australia (2009) 237 CLR 309; [2009] HCA 2 …. 1.92 X X v The Sydney Children’s Hospitals Network [2013] NSWCA 320 …. 5.78, 5.81 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 …. 1.73 Y Yanner v Eaton (1999) 107 A Crim R 551; [1999] HCA 53 …. 1.84 Young v Bristol Aeroplane Co [1946] AC 163 …. 3.4 Z Zaburoni v R [2016] HCA 12 …. 1.42, 1.45, 1.47, 1.49, 1.50, 5.13 Zecevic v DPP (Vic) (1987) 162 CLR 645; 25 A Crim R 163; [1987] HCA 26 …. 1.27, 1.71, 3.36, 6.14, 10.2, 10.7, 10.9, 10.25, 10.26, 10.28, 10.33, 10.35, 10.37, 10.46, 10.49, 10.51, 10.54, 11.21, 12.39, 15.2 Zhang v State of Western Australia [2013] WASCA 121 …. 13.5 Ziems v The Prothonotary of the Supreme Court (1957) 97 CLR 279 …. 14.2 Ziha v R [2013] NSWCCA 27 …. 11.28, 15.21 Zwerus v Western Australia [2015] WASCA 174 …. 13.5

Table of Statutes References are to paragraph numbers

Griffith Code Griffith Code 1899 …. 1.3, 1.4, 1.6, 1.9, 1.11, 1.12, 1.13, 1.14, 1.15, 1.16, 1.29, 1.37, 1.42, 1.43, 1.45, 1.49, 1.50, 1.56, 2.8, 2.10, 2.11, 2.25, 2.37, 2.38, 2.39, 2.40, 2.43, 3.27, 4.2, 4.9, 4.12, 4.17, 4.20, 4.26, 4.28, 4.29, 4.31, 5.10, 5.11, 5.12, 5.36, 5.39, 5.42, 5.60, 5.61, 5.64, 5.66, 5.72, 6.1, 6.10, 7.3, 8.17, 8.35, 9.21, 10.17, 10.23, 11.26, 11.32, 11.41, 11.42, 11.43, 11.47, 11.51, 12.1, 12.5, 12.11, 12.13, 12.14, 12.22, 12.32, 12.33, 12.37, 12.39, 12.55, 12.56, 14.10, 14.11, 14.23, 14.41, 17.6 Ch V …. 1.13, 1.16, 1.42, 5.6 s 2 … 1.13 s 4 …. 8.17 s 23 …. 1.12, 1.43, 12.24, 12.25, 12.53, 14.41 s 23(2) …. 12.10 s 24 …. 1.56, 2.25, 5.9, 12.10 s 26 …. 12.63, 13.9, 13.36 s 27 …. 12.48 s 28 …. 12.10, 12.12, 12.48, 14.41 s 28(1) …. 12.10, 12.32 s 28(3) …. 12.10, 12.11, 12.12 s 29 …. 17.6 s 29(2) …. 17.6 s 31 …. 1.4, 8.6, 8.17, 8.41 s 31(3) …. 9.21 s 32 …. 8.50 s 211 …. 8.43 s 270 …. 11.41, 13.5

s 363A …. 4.29 s 391(2) …. 12.10 s 425 …. 8.15 s 647 …. 12.63

Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976 s 70 …. 6.23 Australian Participants in British Nuclear Tests (Treatment) Act 2006 s 4(2) …. 4.18 Australian Passport Act 2005 s 27 …. 4.18 Australian Security Intelligence Organisation Act 1979 s 35C(2)(e)(ia) …. 9.30 s 35K(1)(e)(ia) …. 9.30 Biosecurity Act 2015 s 68 …. 5.82 s 72(5) …. 5.82 s 90 …. 5.82 s 92 …. 5.82 s 95 …. 5.82 s 97 …. 5.82 s 104 …. 5.82 s 107 …. 5.82 Commonwealth Electoral Act 1918 s 101 …. 1.36 s 245 …. 1.36 Commonwealth of Australia Constitution Act …. 1.2, 3.28 Ch III …. 1.8 s 51(vi) …. 1.17 s 51(xxiv) …. 1.2 s 51(xxix) …. 1.17 s 51(xxviii) …. 1.2, 1.17 s 51(xxxix) …. 1.17 s 71 …. 1.8

s 75(iv) …. 1.24 s 77(iii) …. 1.8 s 80 …. 1.22 s 92 …. 3.20 s 109 …. 1.2, 1.17, 1.18, 1.19, 1.20, 1.21, 1.22, 1.87, 8.58 s 122 …. 1.2, 1.92 Corporations Act 2001 s 184 …. 5.74, 5.75 s 184(2) …. 4.21 s 191 …. 5.74 s 588G …. 5.74 s 1041F(2) …. 4.18, 4.21 s 1041G(2) …. 4.18, 4.21 Crimes Act 1914 …. 1.9, 8.16 s 3AA …. 1.24 s 4 …. 1.9 s 4C …. 1.18 s 4C(2) …. 1.19 s 4M …. 17.3, 17.5 s 4N …. 17.3, 17.5 s 5.6 …. 2.24 s 16A(2A) …. 1.92 s 16AA …. 1.92 ss 20B–20BH …. 13.27, 13.32 s 20BJ …. 13.6 s 20BL …. 13.33 s 20BQ …. 13.34 s 24AA …. 8.16 s 24AB …. 8.16 s 25 …. 8.16 s 52 …. 8.16 Crimes (Torture) Act 1988 …. 9.29 s 11 …. 9.29 Criminal Code Act 1995 …. 1.9, 1.10, 1.14, 1.36, 1.42, 1.50, 1.52, 1.77, 7.5, 7.36, 7.38, 7.49, 7.59, 7.68, 8.4, 8.28, 8.37, 8.38, 9.21, 9.27, 10.5, 10.12, 10.18, 10.20, 10.24, 12.14, 13.36, 13.45, 13.46,

14.11, 14.12, 15.2, 17.6, 17.18 Ch 2 …. 1.14, 1.15, 1.23, 2.19 Pt 2.2 …. 1.14 Pt 2.3 …. 1.14 Pt 7.2 …. 5.65 Pt 9.1 …. 1.18 Div 4 …. 1.14 Div 5 …. 1.14 Div 71 …. 1.25 Div 274 …. 9.28 s 1.1 …. 1.27 s 3.2 …. 1.14, 14.12 s 4.1 …. 14.12 s 4.2(2) …. 14.12 s 4.2(3)(b) …. 14.12 s 4.2(6) …. 12.22, 12.26, 14.40 s 4.2(7) …. 12.27 s 5.2 …. 1.50 s 5.3 …. 1.50, 2.19 s 5.4 …. 1.52 s 5.4(4) …. 1.51, 7.47, 7.49 s 5.5 …. 1.55 s 6.2 …. 2.11 s 7.1 …. 17.3, 17.5 s 7.2 …. 17.6, 17.18 s 7.3 …. 13.1, 13.36 s 7.3(1)(b) …. 13.42 s 7.3(1)(c) …. 13.36, 13.46 s 7.3(7) …. 10.27, 13.54 s 7.3(8) …. 13.6, 13.36, 13.45 s 7.3(9) …. 12.43, 13.6 s 8.2(1) …. 12.14 s 8.2(2) …. 12.14 s 8.2(3) …. 12.23 s 8.2(3)–(4) …. 12.14 s 8.2(5) …. 12.51

s 8.3(1) …. 12.57 s 8.3(2) …. 12.57 s 8.4(1) …. 12.36 s 8.4(2) …. 12.36, 12.39, 12.40, 12.41 s 8.4(3) …. 12.37 s 8.5 …. 12.34, 14.40 s 9.1 …. 2.2, 2.3, 2.12, 2.18 s 9.1(1) …. 2.12 s 9.1(2) …. 2.12 s 9.2 …. 2.2, 2.8, 2.18, 2.34, 2.38, 2.39 s 9.2(2) …. 2.29 s 9.2(1)(b) …. 2.41, 2.42 s 9.3(1) …. 3.1 s 9.3(2)(a) …. 3.27 s 9.3(2)(b) …. 3.16 s 9.4(2)(c) …. 3.44 s 9.5 …. 4.30 s 9.5(1)(a) …. 4.4 s 9.5(2) …. 4.30 s 9.5(3) …. 4.9 s 10.2 …. 8.28, 8.29, 8.37, 12.41 s 10.2(2) …. 8.3, 8.5, 8.16, 8.32 s 10.3 …. 6.1, 6.16, 8.28, 12.40 s 10.3(2) …. 6.11 s 10.3(2)(a) …. 8.29 s 10.3(2)(b) …. 8.29 s 10.3(2)(c) …. 8.29 s 10.4 …. 8.28, 10.5, 10.7, 12.39 s 10.4(2) …. 10.12, 10.18, 10.27, 10.32, 12.39 s 10.4(2)(a) …. 10.14 s 10.4(2)(e) …. 10.30 s 10.4(3) …. 10.12, 10.18, 10.20, 10.34 s 10.4(4) …. 10.18, 10.48 s 11.1(4) …. 7.20 s 11.1(4)(a) …. 7.20 s 11.1(6A) …. 2.15

s 11.1(7) …. 7.35 s 11.4(3) …. 7.59 s 11.4(4A) …. 2.15 s 11.5 …. 7.37 s 11.5(3)(a) …. 5.38 s 11.5(7A) …. 2.15 s 12.5(1) …. 2.50 s 13.1 …. 2.55 s 13.3 …. 1.77, 2.53 s 13.3(2) …. 4.31 s 13.3(3) …. 1.79 s 13.3(4) …. 14.31 s 13.3(6) …. 4.31 s 13.4 …. 1.77, 1.79 s 43BI(7) …. 7.63 s 66A …. 1.36 s 71.2 …. 1.23, 1.24, 1.25 s 71.17 …. 1.25, 1.24 s 80.1 …. 8.16 s 80(2)(b) …. 7.12 s 102(3) …. 1.30 s 130.3 …. 4.18 s 131.1 …. 4.9 s 131.3 …. 5.64 s 131.7 …. 5.70 s 132.2 …. 2.15, 4.9 s 134.2(1) …. 5.74 s 135.1(1) …. 5.74 s 135.1(3) …. 5.74 s 135.1(5) …. 5.74 s 135.2(1) …. 1.36 s 135.4(10)(a) …. 7.5 s 268.14 …. 5.42 s 268.14(3) …. 5.42 s 268.18 …. 5.2 s 268.116 …. 9.27

s 268.116(3) …. 9.27 s 270.11 …. 5.2 s 272.14(3) …. 7.5 s 372.1(3)(a)(i) …. 7.5 s 274.4 …. 9.28 s 301.1 …. 2.19 s 307.5 …. 2.19 ss 307.5–307.10 …. 2.19 ss 307.8–307.10 …. 2.19 ss 308.1–308.4 …. 2.19 s 400.3(2) …. 7.44 s 470.2 …. 4.18 s 471.28 …. 7.5 s 472.29 …. 2.15 s 474.1 …. 4.18 s 474.8(2) …. 7.5 s 474.29 …. 2.8 s 477.1(7) …. 7.5 s 478.4(2) …. 7.5 Sch …. 2.14 Customs Act 1901 s 233(2) …. 8.14 s 233B …. 1.18, 8.14, 8.29 s 233B(1) …. 2.19, 8.14 s 233B(1)(b) …. 2.23, 7.26, 8.14 s 233B(1)(c) …. 2.23, 7.27 s 234 …. 3.16 Defence Act 1903 s 51ST(2)(f) …. 6.23 Defence Force Discipline Act 1982 Pt III …. 9.33 s 3(1) …. 9.33, 9.34 s 14 …. 9.34 s 20 …. 9.33 s 27 …. 9.33 s 27(3) …. 9.33

s 29(3) …. 7.1 s 37 …. 9.33 s 47A …. 4.18 s 62 …. 9.34 Discipline Act 1982 … 9.33 s 27 …. 9.33 Excise Act 1901 s 117 …. 2.42 s 117(1) …. 2.19 Family Law Act 1975 s 65Y …. 6.16 Financial Transactions Reports Act 1988 …. 7.47 Future Fund Act 2006 s 5 …. 4.18 Health Insurance Act 1973 s 129 …. 3.27 s 129(3) …. 3.27 International Criminal Court Act 2002 …. 9.27 International Criminal Court (Consequential Amendments) Act 2002 …. 9.27 Div 268 …. 9.27 Judiciary Act 1903 s 39(2) …. 1.8 s 68 …. 1.9 s 80 …. 1.9 Legislative Instruments Act 2003 s 12 …. 3.40 Migration Act 1958 …. 6.29, 7.11 Military Rehabilitation and Compensation Act 2004 s 305(2) …. 4.18 Navigation Act 2012 s 247(2) …. 6.23 Native Title Act 1993 …. 1.84 s 211 …. 1.84, 4.5, 4.12, 4.13 Northern Territory (Consequential and Transitional Provisions) Act 2012 …. 1.92

Northern Territory National Emergency Response Act 2007 …. 1.2, 1.92 s 91 …. 1.92 Proceeds of Crime Act 2002 s 81 …. 2.22 Social Security (Administration) Act 1999 s 66A …. 1.36 War Crimes Act 1945 …. 9.9, 9.17, 9.32 s 6(2) …. 9.32 s 9 …. 9.17 s 13(2) …. 9.32 s 16 …. 9.18, 9.32 War Crimes Amendment Act 1988 …. 9.17

Australian Capital Territory Children and Young People Act 2008 s 877 …. 5.40 Crimes Act 1900 …. 5.62, 12.49 Pt 13 …. 13.5, 13.27, 13.32 s 13 …. 11.3, 11.4, 11.27, 15.36 s 13(2) …. 11.23 s 13(2)(a) …. 11.21, 11.24, 11.28, 11.29, 11.32 s 13(2)(b) …. 11.16, 11.18 s 13(3) …. 11.34 s 13(4)(a) …. 11.16 s 13(4)(b) …. 11.10 s 13(4)(c) …. 11.5 s 14 …. 12.49 s 14(1) …. 15.2, 15.36 s 14(2) …. 15.13 s 14(3) …. 15.12 s 14(4) …. 15.12 s 14(4)(b)–(c) …. 11.16 s 20(2) …. 5.59 s 22 …. 2.24

s 29(1) …. 2.24 s 35 …. 5.59 s 43I …. 13.32 s 43Z …. 13.32 s 43ZA …. 13.32 s 44(6) …. 2.15 s 47(3) …. 2.15 s 48(3) …. 2.15 s 50 …. 5.42 s 50(1)(f) …. 1.67 s 54 …. 5.42 s 54(1) …. 5.59 s 54(3) …. 5.59 s 55 …. 5.42 s 56 …. 2.55 s 58 …. 2.53 s 60 …. 5.63 s 61 …. 5.42 s 62 …. 5.42 s 67 …. 5.42, 5.44, 5.63 s 67(1) …. 5.48 s 67(1)(a) …. 5.55 s 67(1)(a)–(h) …. 5.48 s 67(1)(b)–(c) …. 5.55 s 67(1)(d) …. 5.55 s 67(1)(e)–(i) …. 5.49 s 67(1)(g) …. 5.52 s 67(1)(h) …. 5.55 s 67(1)(h)–(i) …. 5.42 s 67(1)(j) …. 5.55 s 67(2) …. 5.46 s 67(3) …. 5.62 s 74 …. 5.35 s 85(3) …. 5.65 s 301 …. 13.29 s 304(1) …. 5.65

s 305(6) …. 5.70 s 612 …. 2.19 s 612A …. 2.19 s 614 …. 2.19 s 614A …. 2.19 s 621 …. 2.19 Crimes (Amendment) No 2 Act 1990 …. 15.2, 15.36 Criminal Code 2002 …. 1.10, 2.19, 12.14, 14.12 Ch 3 …. 1.10, 4.18 Pt IIAA …. 12.26, 12.34 s 8(1) …. 2.8 s 12 …. 14.12 s 12(2) …. 3.27 s 12(1)(a) …. 12.55 s 12(1)(b) …. 12.55 s 12(1)(c) …. 12.55 s 13(2)(a) …. 11.6 s 14 …. 14.12 s 15(2) …. 14.12 s 15(5) …. 12.22, 12.26, 14.40 s 24 …. 2.11 s 25 …. 17.3, 17.5 s 26(1) …. 17.6 s 27 …. 13.1 s 27(1) …. 13.36, 13.45 s 27(2) …. 12.43 s 28 …. 13.36 s 28(1)(c) …. 13.36, 13.46 s 28(2) …. 13.42 s 28(4) …. 13.9 s 29(2) …. 10.27, 13.54 s 30(1) …. 12.14 s 30(2) …. 12.27 s 31(1) …. 12.14 s 31(2) …. 12.23 s 31(2)–(3) …. 12.14

s 31(4) …. 12.51 s 32(1) …. 12.57 s 32(2) …. 12.57 s 33(1) …. 12.36 s 33(3) …. 12.36, 12.39, 12.40, 12.41 s 33(4) …. 12.37 s 34 …. 12.34, 14.40 s 35 …. 2.2, 2.3, 2.12, 2.18, 5.9 s 36 …. 2.2, 2.8, 2.18, 2.34, 2.39, 5.9 s 36(1)(b) …. 2.41, 2.42 s 37(1) …. 3.1 s 38 …. 4.30 s 38(1)(a) …. 4.4 s 38(2) …. 4.30 s 38(3) …. 4.9 s 40 …. 12.41 s 40(2) …. 8.3, 8.4, 8.16, 8.37 s 41 …. 6.1, 6.11, 12.40 s 42 …. 10.5, 10.7 s 42(2) …. 10.12, 10.18, 10.32, 12.39 s 42(2)(a)(i) …. 10.14 s 42(2)(b) …. 10.27, 10.30 s 42(3) …. 10.12, 10.18, 10.20, 10.34 s 42(3)(b) …. 10.18, 10.48 s 42(4) …. 10.18 s 43 …. 12.39 s 44(4)(a) …. 7.20 s 47(4) …. 7.59 s 48 …. 7.37 s 48(5)(a) …. 7.38 s 53 …. 2.50 s 58(3) …. 1.79, 4.31 s 58(5) …. 4.31 s 58(7) …. 4.31 s 127(4) …. 2.8 s 139 …. 2.8

s 300 …. 4.18 s 304(1) …. 5.64 s 308 …. 4.9 s 309 …. 4.9 s 409 …. 5.2 Dictionary …. 2.14 Criminal Code Regulation 2005 reg 5 …. 2.19 Drugs of Dependence Act 1989 …. 2.19 s 171 …. 2.19 Mental Health Act 2015 …. 13.6 Supreme Court Act 1933 s 68B …. 13.21 Transplantation and Anatomy Act 1978 …. 5.35

New South Wales Adoption Act 2000 s 64 …. 1.84 s 65 …. 1.84 Children and Young Persons (Care and Protection) Act 1998 s 175 …. 5.35 s 230 …. 5.40 s 230A …. 5.40 Children (Criminal Proceedings) Acts 1987 …. 17.1 s 5 …. 17.3, 17.5 s 7A …. 17.7 s 45 …. 17.7 Clean Waters Act 1970 …. 2.28 Coal Mine Health and Safety Act 2002 s 13 …. 7.12 Community Welfare (Child Assault) Amendment Act 1985 …. 1.36 Crimes Act 1900 …. 1.3, 1.6, 4.18, 4.21, 5.77, 11.32, 12.26, 12.57, 13.64, 14.40, 16.14, 16.16 Pt IIA …. 12.15, 12.54 Pt 4AA …. 5.74 s 4 …. 11.22

s 4B …. 4.18, 4.21 s 5 …. 3.25 s 18 …. 12.15 s 18(a) …. 12.55 s 18(c) …. 12.55 s 18(1) …. 11.40 s 19A …. 11.4 s 19A(2) …. 11.42 s 21 …. 16.19 s 22 …. 16.21 s 22A …. 16.12, 16.18 s 22A(1) …. 16.1, 16.4 s 22A(2) …. 16.1, 16.4 s 23 …. 10.44, 11.3, 11.4, 11.27, 11.28, 13.54, 15.36, 15.38 s 23(2) …. 11.15 s 23(2)(a) …. 11.24, 11.28 s 23(2)(b) …. 11.22 s 23(2)(c) …. 11.5, 11.6 s 23(2)(d) …. 11.18, 12.42 s 23(3)(b) …. 11.29 s 23(4) …. 11.10, 11.23, 11.49 s 23(5) …. 11.8, 12.42 s 23(6) …. 11.5 s 23A …. 12.49, 15.2, 15.36 s 23A(1) …. 12.49 s 23A(1)(a) …. 15.24, 15.29 s 23A(1)(b) …. 15.25 s 23A(2) …. 15.16 s 23A(3) …. 12.49, 15.35 s 23A(4) …. 15.13 s 23A(5) …. 15.12 s 23A(6) …. 15.12 s 23A(8) …. 12.49, 15.4 s 25A(1)(a) …. 5.10 s 33 …. 5.79, 11.4 s 38A …. 2.4

s 38A(4) …. 2.1 s 45 …. 5.2, 5.35 s 52 …. 13.56 s 52A …. 2.24, 2.38 s 61H …. 5.42 s 61H(d) …. 1.67 s 61HA …. 5.42 s 61HA(2) …. 5.44 s 61HA(3)(a)–(c) …. 5.61 s 61HA(3)(d)–(e) …. 5.61 s 61HA(4)(a)–(b) …. 5.49 s 61HA(4)(c) …. 5.55 s 61HA(4)(d) …. 5.55 s 61HA(5) …. 5.62 s 61HA(5)(b) …. 5.50 s 61HA(5)(c) …. 5.50 s 61HA(6) …. 5.57 s 61HA(7) …. 5.46 s 61I …. 5.42, 12.15 s 61JA(4)–(5) …. 5.48 s 61L …. 5.63, 12.15 s 66C(3) …. 2.54 s 66EB(7) …. 2.8 s 66F(5)–(6) …. 5.42 s 77 …. 5.2, 5.15, 5.35 s 78A …. 5.42 s 78C(2) …. 5.42 s 85 …. 16.21 s 91H …. 2.19 s 117 …. 5.65 s 125 …. 5.65 s 162 … 5.74 s 173 …. 5.77 s 192M(3) …. 7.5 s 195 …. 3.25 s 247 …. 3.25

s 308G(3) …. 7.5 s 310D(a) …. 6.30 s 316 …. 1.34 s 344A …. 7.20 s 344A(2) …. 11.43 s 407A …. 8.50 s 417 …. 6.24 s 417A …. 1.79 s 418 …. 2.52, 10.5, 10.7, 12.39 s 418(2) …. 10.12, 10.18, 10.27, 10.30, 10.32, 12.39 s 418(2)(a) …. 10.14 s 419 …. 10.51 s 420 …. 10.12, 10.18, 10.20, 10.34 s 421 …. 10.36 s 422 …. 10.18, 10.48 s 428B(1) …. 12.15 s 428B(2) …. 12.15 s 428C …. 12.15, 12.51 s 428E(a) …. 12.57 s 428E(b) …. 12.57 s 428F …. 12.57 s 428G …. 14.40 s 428G(1) …. 12.26, 12.54 s 428G(2) …. 12.54 s 438G …. 12.30 Crimes (Administration of Sentences) Act 1999 s 73 …. 5.35 Crimes (Amendment) Act 1951 s 2(d) …. 16.1 Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 Sch 2, No 99…. 5.77 Crimes Amendment (Provocation) Act 2014 …. 11.3, 11.16, 15.36 Sch 1 …. 11.32 Crimes Amendment (Self-Defence) Act 2001 …. 10.36 Crimes (Domestic and Personal Violence) Act 2007 s 13 …. 11.22

Crimes (Public Justice) Amendment Act 1990 …. 1.34 Crimes (Sentencing Procedure Act) 1999 s 21A(3)(d) …. 8.1 Criminal Assets Recovery Act 1900 …. 5.72 Criminal Law Amendment Act 1883 …. 1.2 Criminal Legislation Amendment Act 1996 …. 12.1 Criminal Procedure Act 1986 s 132 …. 13.21 Drug Misuse and Trafficking Act 1985 s 6 …. 7.6 s 10 …. 2.19 s 11 …. 2.19 s 11B …. 2.19 s 11C …. 2.19 s 21 …. 2.19 s 25(2) …. 1.18 s 26 …. 7.56 s 29 …. 1.18 Sch 1 …. 2.19 Evidence Act 1995 …. 1.84 s 72 …. 1.84 s 76 …. 1.84 s 78A …. 1.84 Firearms Act 1996 s 4A(1)(b) s 7 …. 2.19 s 7A …. 2.19 Human Tissue Act 2004 …. 5.35 Interpretation Act 1987 s 39 …. 3.40 Mental Health Act 2007 …. 13.1, 13.5, 13.6, 13.32, 13.36, 13.46 s 4 …. 13.7 Mental Health (Criminal Procedure) Act 1990 s 32(1) …. 13.34 s 33(1)(a) …. 13.34 s 37 …. 13.25

s 38 …. 12.47, 13.46 Mental Health (Forensic Provisions) Act 1990 …. 13.27, 13.36 s 23(1)(b) …. 13.29 s 33(1)(a) …. 13.32 s 38 …. 13.1, 13.5 s 38(1) …. 13.57 s 39 …. 13.32 s 39(2) …. 13.32 s 73(3) …. 13.33 Minors (Property and Contracts) Act 1970 s 49 …. 5.35 Motor Traffic Act 1909–1986 s 4E …. 12.54 National Parks and Wildlife Act 1974 s 71AU …. 1.84 Navigation Act 1901 s 96 …. 7.4 Pastures Protection Act 1934–1957 s 50 …. 7.14 Public Health Act 2010 s 62 …. 5.82 Roads Act 1993 s 231 …. 7.4 s 231A …. 7.4 Young Offenders Act 1997 …. 17.1

Northern Territory Code Amendment (Criminal Responsibility Reform) Act 2005 …. 1.10 Criminal Code 1983 …. 1.4, 1.36, 1.37, 1.44, 1.57, 2.11, 2.12, 4.2, 4.17, 4.20, 4.31, 5.10, 5.39, 5.51, 5.59, 5.60, 8.50, 9.21, 12.7, 12.14, 12.22, 12.48, 12.55 Pt II …. 12.7, 12.18, 12.22 Pt IIA …. 13.5, 13.27, 13.32 Pt IIAA …. 1.44, 11.37, 12.1, 12.7, 12.14 s 1 …. 1.67, 2.14, 5.12, 5.36, 5.42, 11.21, 12.14, 12.33

s 2 …. 12.7 s 4 …. 2.43 s 4(3) …. 7.20 s 7 …. 12.7, 12.33, 12.63 s 22 …. 4.20 s 23 …. 4.20 s 26(1)(c) …. 9.21 s 26(2) …. 9.21 s 26(3) …. 5.36 s 27 …. 10.36, 12.63 s 27(a) …. 10.23 s 27(b) …. 10.23 s 27(c) …. 10.23 s 27(d) …. 10.23 s 27(e) …. 10.23 s 28 …. 10.36 s 28(f) …. 10.41 s 29 …. 10.5, 10.7, 12.39 s 29(2) …. 10.12, 10.18, 10.32, 12.39 s 29(2)(a)(i) …. 10.14 s 29(2)(b) …. 10.27, 10.30 s 29(3) …. 10.12, 10.18, 10.20, 10.34 s 29(5) …. 10.48 s 29(5)–(6) …. 10.18 s 30 …. 3.1, 4.2, 4.7, 4.9, 4.12, 4.26, 4.28 s 30(1) …. 3.27 s 30(2) …. 4.20 s 30(3) …. 3.44 s 31 …. 1.44, 1.48, 2.40 s 31(1) …. 12.7 s 31(2) …. 1.57 s 32 …. 2.2, 2.8, 2.10, 2.25, 2.34, 2.39, 2.43, 5.6, 5.9, 5.10 s 33 …. 6.1, 6.11, 6.15, 12.40 s 34AS(1) …. 12.14 s 37 …. 15.2 s 38(1) …. 17.3, 17.5

s 38(2) …. 17.6 s 40 …. 8.37 s 40(1)(c) …. 12.41 s 42(2)(a)(i) …. 10.14 s 43 …. 12.43 s 43A …. 12.33, 12.48 s 43AA …. 1.10 s 43AF …. 12.22 s 43AF(5) …. 12.26, 12.55 s 43AK(2) …. 5.59 s 43AM …. 2.24 s 43AO …. 2.11 s 43AQ(1) …. 17.6 s 43AR(1) …. 12.27 s 43AS(1) …. 12.55 s 43AS(2) …. 12.55 s 43AS(2)–(3) …. 12.14 s 43AS(4) …. 12.51 s 43AT …. 12.55 s 43AU(1) …. 12.36 s 43AU(3) …. 12.36, 12.39, 12.40, 12.41 s 43AU(4) …. 12.37 s 43AV …. 12.34 s 43AW …. 2.3, 2.12, 2.18, 5.9, 5.59, 11.37 ss 43AW–43AY …. 2.2 s 43AX …. 2.8, 2.18, 2.39, 5.9 s 43AX(1)(b) …. 2.41, 2.42 s 43AY …. 2.34 s 43AY(2) …. 3.27 s 43AY(3) …. 3.42 s 43AZ …. 4.30 s 43AZ(1)(a) …. 4.4 s 43AZ(2) …. 4.30 s 43AZ(3) …. 4.9 s 43BB …. 8.3, 8.4, 8.16, 12.41 s 43BC …. 12.40

s 43BD(2) …. 10.12, 10.18, 10.32, 12.39 s 43BD(2)(b) …. 10.27, 10.30 s 43BD(3) …. 10.12, 10.18, 10.20, 10.34 s 43BD(3)(b) …. 10.48 s 43BD(3)(b)–(4) …. 10.18 s 43BF(9) …. 2.15 s 43BI(4) …. 7.59 s 43BI(6) …. 2.15 s 43BJ …. 7.37 s 43BJ(4)(a) …. 7.38 s 43BJ(9) …. 2.15 s 43BO …. 2.50 s 43BR(2) …. 2.55 s 43BU …. 2.53 s 43BU(2) …. 4.31 s 43BU(4) …. 4.31 s 43C …. 12.33, 12.48, 13.1, 13.36, 13.46 s 43C(1)(b) …. 13.42 s 43C(1)(c) …. 13.36 s 43D …. 13.9 s 43I …. 12.33 s 43ST(1) …. 12.57 s 43ST(2) …. 12.57 s 43ZA(2) …. 13.32 s 125(c) …. 5.10 s 127 …. 5.42 s 130 …. 5.42 s 132 …. 5.42 s 134 …. 5.42 s 139A …. 5.42 s 154(4) …. 12.4 s 155 …. 1.36, 9.25 s 155A …. 5.10 s 156(1)(c) …. 12.55 s 158 …. 11.3, 11.27, 12.42, 15.36 s 158(2) …. 11.15

s 158(2)(a) …. 11.6, 11.24, 11.28, 11.29 s 158(2)(b) …. 11.16, 11.18 s 158(3) …. 11.21, 11.28, 11.32 s 158(4) …. 11.23 s 158(5) …. 11.34 s 158(6)(a) …. 11.16 s 158(6)(b) …. 11.10 s 158(6)(b)–(c) …. 11.16 s 158(6)(c) …. 11.5 s 159 …. 15.2, 15.36 s 159(1)(a) …. 15.12 s 159(3) …. 12.49 s 159(4) …. 15.13 s 160 …. 12.55 s 161A …. 5.10 s 161A(4) …. 5.33 ss 174C–174FA …. 12.7 s 174F …. 2.24 s 176A …. 2.1 s 181 …. 5.11 s 183 1.37 s 186 …. 5.11 s 186B …. 5.35 s 187 …. 5.10 s 187(a) …. 5.18, 5.19 s 187(c) …. 5.81 ss 188–189A …. 5.10 s 190 …. 5.10 s 191 …. 5.10 s 192 …. 5.42, 5.44, 5.63 s 192(2) …. 5.42 s 192(2)(a) …. 5.55 s 192(2)(a)–(g) …. 5.48 s 192(2)(b) …. 5.55 s 192(2)(c) …. 5.47 s 192(2)(c)–(d) …. 5.49

s 192(2)(f) …. 5.50 s 192(2)(g) …. 5.51 s 192(3) …. 5.42, 5.59 s 192(4A) …. 5.59 s 192A …. 5.46 s 209 …. 4.9, 4.17, 5.64 s 209(5) …. 5.70 s 211 …. 4.9 s 212 …. 5.10 s 213(4)–213(5) …. 2.43 s 248 …. 5.2 s 249 …. 4.29 ss 282–293 …. 7.37 s 318 …. 12.7 s 406(2) …. 13.30 s 438D …. 10.5, 10.7, 12.39 Sch 1 …. 1.44, 2.3, 2.8, 5.59, 7.20, 12.33 Emergency Medical Operations Act s 3(1) …. 5.81 Mental Health and Related Services Act 1998 …. 13.6 s 6(3)(g) …. 13.7 Misuse of Drugs Act s 9 …. 2.19 Transplantation and Anatomy Act …. 5.35

Queensland Acts Interpretation Act 1954 s 15D …. 3.40 Criminal Code 1899 …. 1.3, 1.9, 1.39, 2.6, 5.46, 8.41, 9.22, 10.8, 10.10, 10.15, 10.32, 10.33, 10.38, 10.47, 10.50, 11.3, 12.49 Ch V …. 1.3 s 1 …. 2.43 s 4(2) …. 7.20 s 4(3) …. 7.20 s 5 …. 1.27, 7.35

s 6(2) …. 5.42 s 7 …. 8.19 ss 7–10 …. 12.11 s 7(1) …. 7.17 s 8A …. 2.19 s 9A …. 2.19 s 10 …. 2.19 s 10A …. 2.19 s 10B …. 2.19 s 22 …. 3.1, 3.22, 3.43, 4.26, 4.28 s 22(1) …. 3.27 s 22(2) …. 4.5, 4.7, 4.13, 4.20 s 22(3)–(4) …. 3.44 s 23 …. 12.22, 12.53 s 23(1) …. 1.43, 12.56 s 23(1)(a) …. 1.13, 1.38, 1.43, 7.3, 14.8, 14.11, 14.16 s 23(1)(b) …. 1.13, 1.40, 1.56, 11.12, 12.10, 12.35, 12.55 s 23(1A) …. 1.43 s 23(2) …. 1.13, 1.43, 14.11 s 24 …. 2.2, 2.8, 2.13, 2.25, 2.31, 2.34, 2.35, 5.10, 10.32, 11.37, 13.59 s 25 …. 1.13, 6.1, 6.10, 6.11, 12.40 s 26 …. 12.63, 13.9, 13.36 s 27 …. 1.13, 12.32, 12.48, 12.63, 13.1, 13.54, 15.6, 15.7, 15.29 s 27(1) …. 13.36 s 27(2) …. 13.50 s 28(2) …. 12.10, 12.25, 12.32, 12.37, 12.43, 12.45, 12.46 s 29(1) …. 17.3, 17.5 s 29(2) …. 17.6 s 31 …. 8.16 s 31(1)(b) …. 9.21 s 31(1)(c) …. 8.37, 10.5, 10.10, 10.15, 10.27, 10.32 s 31(1)(d) …. 1.13, 1.74, 8.3 s 31(1)(d)(i) …. 8.32, 8.37 s 31(1)(d)(ii) …. 12.41 s 31(1)(d)(ii)–(iii) …. 8.31

s 31(1)(d)(iii) …. 12.41 s 31(2) …. 8.17, 8.23, 8.41, 9.21, 9.22, 10.10, 10.33 s 31(3) …. 9.21 s 36 …. 4.20 s 36(1) …. 1.3 s 36(2) …. 1.6, 4.20 s 99(3) …. 3.27 s 205 …. 9.21 s 206(c) …. 5.10 s 207 …. 5.10 s 208(3) …. 2.8 s 210 …. 5.42 s 215 …. 5.42 s 216 …. 2.31 s 216(4) …. 2.31 s 216(4)(a)–(b) …. 5.42 s 218A(6)(7) …. 7.5 s 222 …. 5.2, 5.35 s 222(3) …. 5.42 s 228D …. 2.19 s 245 …. 5.10, 5.19, 5.63, 10.50 s 248 …. 10.23 s 249 …. 10.23 s 254 …. 10.23 s 257 …. 10.23 s 258 …. 10.23 s 260 …. 10.23 s 261 …. 10.23 s 263 …. 9.21 s 265 …. 9.21 s 266 …. 10.5, 10.15, 10.23, 10.27 s 267 …. 10.5, 10.17, 10.20, 10.27, 10.33, 12.39 s 268 …. 10.10, 10.47, 10.50, 11.4, 11.47, 12.10, 14.23 s 268(1) …. 11.47 s 268(4)–(5) …. 11.48 s 269 …. 1.14, 11.4, 11.47, 14.23

s 269(1) …. 11.47 s 271 …. 1.14, 10.5, 10.10, 10.33, 10.50 s 271(1) …. 10.10, 10.27, 10.32, 10.33 s 271(2) …. 10.10, 10.27, 10.32 s 272 …. 1.14, 10.5, 10.10, 10.33, 10.38 s 272(1) …. 10.27, 10.32, 10.47 s 272(2) …. 10.32, 10.38 s 273 …. 10.5, 10.15 s 274 …. 10.5, 10.17 ss 274–279 …. 10.27, 10.33 s 275 …. 4.11, 4.29, 10.5, 10.17 s 276 …. 10.5, 10.17 s 277 …. 10.5, 10.17 s 278 …. 4.11, 4.29, 10.5, 10.17 s 279 …. 10.5, 10.17 s 282 …. 5.36, 5.81 s 282A …. 1.48, 5.24 s 283 …. 10.36 s 284 …. 5.1 s 285 …. 1.60 s 286 …. 1.60 s 288 …. 1.60, 13.5 s 289 …. 1.60, 5.13 s 290 …. 1.60 s 302 …. 1.56, 10.10, 11.26 s 302(1)(a) …. 12.10, 12.55 s 302(1)(b) …. 12.11 s 304 …. 11.9, 11.47, 15.36 s 304(3) …. 11.35 s 304(3)(c) …. 11.31 s 304(6) …. 11.32, 11.35 s 304A …. 12.49, 13.45, 15.2, 15.10, 15.36 s 304A(1) …. 15.6, 15.12, 15.29 s 304A(2) …. 15.13 s 304B …. 10.5, 10.10, 11.55, 11.57 s 306 …. 10.10

s 313 …. 5.10 s 314A …. 1.56, 5.10 s 314A(4) …. 5.33 s 316A …. 2.4 s 316A(2) …. 2.1 s 317 …. 1.50, 1.56, 10.10, 11.4, 11.41 s 317(1) …. 11.47 s 320 …. 1.50, 5.11, 11.47 s 323 …. 5.11 s 323(1) …. 11.47, 12.10 s 323A …. 5.2, 5.35 s 328 …. 1.37, 1.54 s 328A …. 2.24, 6.27 ss 335–346 …. 5.10 s 347 …. 5.42, 5.50 s 347(2)(e) …. 5.51 s 348 …. 5.42, 5.44, 5.63 s 348(1) …. 5.49 s 348(2) …. 5.48 s 348(2)(a) …. 5.55 s 348(2)(a)–(f) …. 5.48 s 348(2)(b)–(c) …. 5.55 s 348(2)(d) …. 5.55 s 349 …. 5.42 s 351 …. 5.10, 5.63 s 352(1) …. 5.63 s 352(1)(a) …. 5.10 s 359C(1)(b) …. 2.8 s 359B …. 12.10 s 363(2) …. 4.29 s 391 …. 5.64, 5.65 s 391(2) …. 12.10 s 391(2)(a)–(f) …. 4.17, 5.71 s 391(2)(b) …. 5.64 s 391(2AA) …. 5.64 s 393 …. 5.65

s 394 …. 5.65 s 412 …. 5.10 s 413 …. 5.10 s 419 …. 2.43 s 458 …. 5.2 s 461 …. 12.11 s 477 …. 12.10 s 535 …. 7.35 s 536 …. 7.20 ss 541–543 …. 7.37 s 647 …. 13.32 Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Act 2010 s 3 …. 11.55 Criminal Code and Other Legislation Amendment Act 2011 s 4 …. 1.43 s 5 …. 11.3, 11.32, 15.36 s 5(7) …. 11.51 Criminal Law Amendment Act 1997 s 13 …. 8.6, 8.16, 8.17, 8.36 s 28(2) …. 12.32 Criminal Law Amendment Act 2000 s 16 …. 8.6 Domestic and Family Violence Protection Act 2012 …. 8.48 Drugs Misuse Act 1986 …. 1.6, 2.16 s 4 …. 2.19 s 5 …. 8.36 s 9 …. 2.19, 7.17, 8.36 s 31 …. 8.36 s 57(d) …. 2.20 s 117 …. 7.20, 7.35 s 117(1) …. 7.17 s 129(1)(d) …. 2.20 Evidence Act 1977 s 132B …. 8.48 Fauna Conservation Act 1974

s 54(1)(a) …. 1.84, 4.5 Fire and Emergency Services Act 1990 s 68 …. 6.25 Fisheries Act 1994 s 14 …. 4.12 s 84 …. 4.12 Health and Other Legislation Amendment Act 2016 …. 7.34 Justices Act 1886 s 76 …. 1.79 Law Reform Act 1995 s 16 …. 5.81 Mental Health Act 1974 …. 14.35, 15.18 Mental Health Act 2000 …. 13.27, 13.34, 15.18 s 12 …. 13.6, 13.7 s 58 …. 13.32 s 64 …. 13.32 s 257 …. 15.18 s 259 …. 15.18 s 267 …. 15.31 s 268 …. 13.57 s 288 …. 13.32 s 317 …. 15.18 s 382 …. 15.18 s 405(1) …. 15.31 s 405(2) …. 15.31 Mental Health Act 2016 …. 13.6, 13.7, 13.21, 13.27, 13.34 s 10 …. 13.6, 13.7 s 10(2) …. 13.7 s 22(1) …. 13.34 s 159 …. 15.18 s 181 …. 15.18, 15.31 s 183 …. 15.18 s 638 …. 15.18 s 638(1) …. 13.21 s 638(2) …. 13.21 s 685 …. 15.31

Primary Producers’ Organisation and Marketing Act 1926 s 15 …. 3.20 Prostitution Act 1999 s 77 …. 8.2 Public Health Act 2005 s 133(3) …. 5.82 s 143 …. 5.13 s 213B … 5.35 Public Health Regulations 2005 s 12F …. 5.35 Regulatory Offences Act 1985 …. 1.6, 3.43 s 5 …. 4.20 Summary Offences Act 2005 s 18 …. 5.39, 5.40 s 19 …. 5.39, 5.40 s 20 …. 7.35 s 22 …. 7.35 Tattoo Parlours Act 2013 …. 5.39 Transplantation and Anatomy Act 1979 Div 2 …. 5.35 Div 2A …. 5.35 Div 3 …. 5.35 Weapons Act 1990 s 50 …. 2.19 s 56 …. 5.1 Youth Justice Act 1992 …. 17.1

South Australia Anangu Pitjantjatjara Land Rights Act 1981 s 19(1) …. 1.85 Companies Act 1962 s 67 …. 3.32 Consent to Medical Treatment and Palliative Care Act 1995 …. 5.35 s 13(1) …. 5.81 Controlled Substances Act 1984

s 33L …. 2.19 Crimes Act 1854 …. 1.2 Criminal Law Consolidation Act 1935 …. 1.6, 2.21, 5.32, 10.34, 12.26 Pt 5 …. 4.18, 5.65 Pt 8A …. 13.1, 13.5, 13.27, 13.32, 13.46 s 5 …. 5.42 s 5(1) …. 1.67 s 15 …. 10.5, 10.30, 10.34, 10.36 ss 15–15C …. 10.5 s 15(1) …. 10.8, 10.12, 10.27 s 15(1)(a) …. 10.32 s 15(2) …. 10.36 s 15(3) …. 10.8, 10.12, 10.14 s 15(5) …. 10.51 s 15A …. 10.5, 10.19, 10.20, 12.39 s 15A(1) …. 10.34 s 15A(2) …. 10.34 s 15B …. 10.5, 10.30 s 15C …. 10.5, 10.19, 10.30, 12.39 s 19A(1) …. 2.24 s 19A(3) …. 6.16 s 20 …. 5.32 s 20(2)(a) …. 5.20 s 22 …. 5.15, 5.32 s 22(3) …. 5.34, 5.38 ss 23–24 …. 5.32 s 31(5) …. 4.7 s 32C …. 2.1, 2.4 s 33A …. 5.2, 5.35 s 46(3)(a)–(h) …. 5.48 s 46 …. 5.42, 5.44 s 46(3) …. 5.48 s 46(3)(a)(i) …. 5.55 s 46(3)(a)(ii) …. 5.55 s 46(3)(b) …. 5.55 s 46(3)(c) …. 5.47

s 46(3)(c)–(f) …. 5.49 s 47(a)–(c) …. 5.61 s 48 …. 5.42, 5.61 s 49(4)(b)(ii) …. 2.8 s 49(7) …. 5.15 s 51(1) …. 5.42 s 51(4) …. 5.42 s 57 …. 5.2, 5.15, 5.35 s 57(3) …. 5.42 s 58(2) …. 5.15 s 62 …. 2.21 s 63A …. 2.19, 2.21 s 72 …. 5.42 s 80(2) …. 4.25 s 86E(2)(b) …. 7.5 s 131 …. 4.18 s 131(1) …. 4.18 s 131(5)–(6) …. 4.8, 4.23 s 132 …. 5.64, 5.65 s 195 …. 4.11 s 234 …. 4.9 s 268 …. 12.16, 14.40 s 268(1) …. 12.51 s 268(2) …. 12.16, 12.26 s 268(3) …. 12.16 s 268(4) …. 12.16 s 268(5) …. 12.16 s 269A …. 12.43, 12.45 s 269C …. 13.36, 13.46 s 269C(c) …. 13.36 s 269D …. 13.9 s 269E(2) …. 13.28 s 269O …. 13.32 s 270A …. 7.20 s 270A(4) …. 7.35 s 270AB …. 11.43

s 328A …. 8.50, 8.54, 8.55, 8.56 Criminal Law Consolidation (Intoxication) Amendment Act 2004 …. 12.1 s 269 …. 12.61 Criminal Law Consolidation (Self- Defence) Amendment Act 2003 …. 10.34, 10.36 Education Act 1972 s 76(3) …. 1.31 Fisheries Management Act 2007 …. 4.12 s 72(2)(c) …. 4.12 s 120 …. 1.31 Fire and Emergency Services Act 2005 …. 6.25 Housing Improvement Act 1940 …. 3.18 s 56A(i) …. 3.18 Landlord and Tenant (Control of Rents) Act 1942 …. 3.18 Mental Health Act 2009 s 3 …. 13.6, 13.7 s 28 …. 5.35 National Parks and Wildlife Act 1972 s 48A …. 2.19 s 60 …. 2.19 Police Offences Act 1953 s 18(3) …. 3.11 Road Traffic Act 1961 s 30 …. 2.22 s 47 …. 12.53 Summary Offences Act 1953 s 21Q …. 12.50 s 21R …. 5.40 s 33 …. 2.20 Summary Procedure Act 1921 s 56 …. 1.79 Transplantation and Anatomy Act 1983 …. 5.35 Young Offenders Act 1993 …. 17.1 s 5 …. 17.3, 17.5 s 6 …. 17.20

Tasmania Acts Interpretation Act 1931 s 13 …. 14.11 s 31 …. 7.35 s 36 …. 1.6, 2.8, 12.18 s 47(3) …. 3.40 Classification (Publications Films and Computer Games) Enforcement Act 1995 s 74A …. 2.19 Criminal Code 1924…. 1.4, 1.41, 2.8, 2.10, 2.25, 2.39, 2.40, 2.41, 4.23, 4.29, 5.14, 5.19, 5.31, 5.36, 5.51, 7.20, 7.37, 8.40, 8.50, 9.21, 10.5, 10.17, 10.36, 11.47, 12.5, 12.7, 12.14, 12.22, 12.31, 13.63 Pt 8 …. 7.37 s 1 …. 1.67, 5.42 s 2(1) …. 7.20, 7.23 s 2(2) …. 7.20 s 2A …. 5.14, 5.42, 5.44, 5.48, 5.63 s 2A(2) …. 5.48 s 2A(2)(a) …. 5.46 s 2A(2)(b) …. 5.55 s 2A(2)(b)–(c) …. 5.55 s 2A(2)(b)–(e) …. 5.18 s 2A(2)(d) …. 5.55 s 2A(2)(e) …. 5.55 s 2A(2)(f) …. 5.52 s 2A(2)(f)–(g) …. 5.19 s 2A(2)(g) … 5.51 s 2A(2)(h) …. 5.47 s 2A(2)(h)–(i) …. 5.18, 5.49 s 3 …. 8.19 s 4(1) …. 13.7 s 4(3) …. 1.6, 2.8, 12.7 s 6 …. 1.27

s 8 …. 1.4, 5.15, 5.31, 6.1, 8.50, 12.31 s 12 …. 3.1, 3.16 s 13 …. 1.40, 1.41, 1.45, 12.22, 12.23, 13.62 s 13(1) …. 12.23 s 14 …. 2.2, 2.25, 2.34, 2.39, 2.41, 2.55, 5.10 s 14A …. 5.60 s 14A(2) …. 12.8 s 14B …. 2.8 s 15 … 13.9 s 16 …. 13.1, 13.46, 13.51 s 16(2) …. 13.51 s 16(3) …. 13.50, 13.51, 13.54 s 17 …. 12.10, 12.13 s 17(2) …. 12.5, 12.13 s 17(3) …. 12.10 s 18 …. 17.6 s 18(1) …. 17.3, 17.5 s 18(2) …. 17.6 s 18(3) …. 17.6 s 20 …. 8.3, 8.7, 8.50, 12.41 s 20(1) …. 8.3, 8.17, 8.18, 8.20, 8.31, 8.37, 8.41 s 20(2) …. 8.50 s 23 …. 10.23 s 26 …. 10.23 s 30 …. 10.23 s 31 …. 10.23 s 32 …. 10.23 s 34 …. 10.23 s 36(1) …. 9.21 s 36(2) …. 9.21 s 38(1) …. 9.21 s 38(2) …. 9.21 s 39 …. 10.12, 10.23 ss 39–43 …. 10.27 s 40 …. 10.5, 10.17, 10.20, 10.33, 12.39 s 41 …. 10.5, 10.17

ss 41–45 …. 10.33 s 42 …. 4.11, 4.29, 10.5, 10.17 s 43 …. 10.5, 10.17 s 44 …. 4.11, 4.29, 10.5, 10.17, 10.27 s 45 …. 10.5, 10.17, 10.27 s 46 …. 10.5, 10.8, 10.12, 10.27, 10.30, 10.32, 13.51 s 46(2) …. 12.39 s 51 …. 5.14, 5.36 s 51(3) …. 5.81 s 52 …. 10.36 s 53 …. 5.14 s 53(a) …. 5.1 s 55 …. 8.50 s 63 …. 8.40 s 64 …. 8.40 s 118 …. 9.21 s 124 …. 5.2, 5.35 s 124(3) …. 5.42 s 125B(3) …. 5.42 s 126 …. 5.42 s 126(2) …. 5.42 s 127 …. 5.63 s 133 …. 5.42 s 153(4) …. 16.21 s 153(5) …. 16.21 s 157(1)(a) …. 12.55 s 157(1)(b) …. 12.55 s 157(1)(c) …. 12.13, 12.55 s 160 …. 1.62, 11.11 s 160(2) …. 11.11 s 165A …. 16.1, 16.12, 16.16, 16.18 s 167A …. 2.24 s 170 …. 11.4 s 172 …. 5.15, 5.31 s 178A …. 5.2, 5.35 s 182 …. 5.63

s 182(3) …. 5.20 s 182(4) …. 5.14, 5.15, 5.31 s 185 …. 5.42 s 187(e) …. 5.20 s 191(3) …. 4.29 s 226(1) …. 5.64 s 226(1)(b) …. 5.65 s 253 …. 4.29 s 267(3) …. 4.29 s 297 …. 7.37 s 298 …. 7.59 s 333 …. 16.21 s 333(d) …. 16.1 s 381 …. 13.51 Sch 1 …. 7.20 Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 …. 11.3 Criminal Code Amendment (Self Defence) Act 1987 …. 10.47 s 46 …. 10.47 ss 46–49 …. 10.47 Criminal Justice (Mental Impairment) Act 1999 s 21 …. 13.5, 13.32 Environmental Management and Pollution Control Act 1994 s 55 …. 2.49 Evidence Act 2001 s 142A …. 1.79 Human Tissue Act 1985 Div 2 …. 5.35 Div 3 …. 5.35 Div 4 …. 5.35 Justices Act 1959 s 74 …. 7.35 Larceny Act 1863 …. 1.2 Mental Health Act 2013 …. 13.6 Misuse of Drugs Act 2001 s 24 …. 2.19

s 25 …. 2.19 Sch 1 …. 2.19 Offences Against the Person Act 1885 …. 1.2 Police Offences Act 1935 s 35A …. 5.40 Rules Publication Act 1953 …. 3.40 Youth Justice Act 1997 …. 17.1

Victoria Charter of Human Rights and Responsibilities Act 2006 …. 1.22 s 25(1) …. 1.22 s 36 …. 1.22 Children, Youth and Families Act 2005 …. 17.1 s 344 …. 17.3, 17.5 Community Services Act 2000 …. 6.28 Community Welfare Services Act 1970 s 132(1) …. 6.26, 6.28 Companies Act 1961 s 165(2) …. 3.28 Crimes Act 1890 …. 1.2 Crimes Act 1958 …. 1.6, 4.16, 5.15, 5.60, 7.59, 8.3, 8.51, 10.48, 16.7 Pt 1 Div 1 Subdiv 1AA …. 10.36 s 3 …. 11.4 s 4A …. 5.10 s 5A …. 16.20 s 6 …. 16.7 s 6(1) …. 16.1, 16.1216.16, 16.18 s 6(2) …. 16.1, 16.13 s 8 …. 5.6 s 23 …. 5.22 s 34 …. 5.2, 5.35 s 34C …. 5.42, 5.63 s 34C(1) …. 5.44 s 34C(2) …. 5.48 s 34C(2)(a) …. 5.55

s 34C(2)(a)–(b) …. 5.55 s 34C(2)(a)–(l) …. 5.48 s 34C(2)(c) …. 5.55 s 34C(2)(d) …. 5.47 s 34C(2)(d)–(f) …. 5.49 s 34C(2)(i) …. 5.50 s 34C(2)(k) …. 5.46 s 37D(1) …. 5.42 s 37G …. 5.60 s 37H(1)(b) …. 5.60 s 37H(1)(a) …. 5.60 s 38 …. 5.42 s 38(1) …. 5.60 s 38(3) …. 5.42 s 40 …. 5.63 s 44 …. 5.2, 5.35 s 44(5) …. 5.42 s 45 …. 5.2, 5.35 s 45(4) …. 5.15, 5.42, 7.30 s 47(2) …. 5.42 s 47(7) …. 5.62 s 48(2) …. 5.15 s 49(2) …. 5.15 ss 50–52 …. 5.42 s 52(3) …. 5.42 s 61N …. 5.42 s 66A …. 5.42 s 66C …. 5.42 s 72 …. 5.65, 5.74, 5.75 s 73(2) …. 5.2 s 73(2)(a) …. 4.8, 4.11, 4.23 s 73(2)(b) …. 5.64 s 73(6)(9) …. 5.65 s 73(10) …. 5.70 s 81(1) …. 4.16, 4.19 s 192B(2) …. 7.5

s 192C(2) …. 7.5 s 192D(2) …. 7.5 s 192E …. 7.35 s 233T(3) …. 12.39 s 233T(4) …. 12.39 s 247B(3)(a) …. 7.5 s 318(1) …. 2.18 s 319 …. 2.24 s 319(1) …. 2.18 s 321 …. 7.37, 7.38, 7.68 s 321F(1) …. 7.37, 7.38 s 321G …. 7.59 s 321G(3) …. 7.59 s 321H …. 7.59 s 321L …. 7.59 s 321N …. 7.25, 7.30 s 321N(3) …. 7.20 s 322H …. 10.34 s 322I …. 1.77, 10.18, 10.48, 10.51 s 322J …. 8.48, 10.40 s 322J(2) …. 10.40 s 322K …. 10.7, 10.12, 10.18, 12.39 s 322K(2) …. 10.32, 12.39 s 322K(2)(b) …. 10.27 s 322K(3) …. 10.12, 10.18, 10.20, 10.34 s 322M(1) …. 10.40 s 322M(2) …. 10.40 s 322O …. 8.3, 8.4, 8.16, 12.41 s 322O(2)(a)(i) …. 8.37 s 322P …. 8.48 s 322Q …. 1.7, 8.4, 8.16 s 322R …. 6.1, 12.40 s 322S …. 6.11, 12.40 s 322T …. 12.39, 12.40 s 322T(2) …. 12.40, 12.41 s 322T(3) …. 12.40, 12.41

s 322T(4) …. 12.37 s 327 …. 1.36 s 336 …. 8.50, 8.51 s 336(2) …. 8.50 s 336(3) …. 8.51, 8.52, 8.53 s 336(4) …. 8.51 s 336(5) …. 8.56 s 337 …. 8.51 s 338 …. 8.51 s 339 …. 8.51 s 458 …. 10.22 s 459 …. 10.22 s 623 …. 10.12 Crimes Amendment (Abolition of Defensive Homicide) Act 2014 …. 8.16, 12.40 s 3 …. 10.36 s 4 …. 10.5 Crimes Amendment (Child Homicide) Act 2008 …. 16.20 Crimes (Homicide) Act 2005 …. 8.16 s 3B …. 11.3 s 6 …. 10.5, 10.36 s 9AD …. 10.36 s 9AH(1) …. 10.40 Crimes (Married Persons’ Liability) Act 1977 …. 8.51 Crimes (Mental Impairment and Fitness to be Tried) Act 1997 …. 13.1, 13.5, 13.25, 13.36, 13.46 Pt 5 …. 13.27, 13.32 s 20(1)(b) …. 13.36 s 21(1) …. 13.9 s 22(2)(a) …. 13.25 s 23 …. 13.32 s 24(3) …. 13.32 s 25 …. 13.36 s 26 …. 13.34 s 26(4) …. 13.32 Criminal Procedure Act 2009

s 72 …. 1.79 Drugs, Poisons and Controlled Substances Act 1981 s 4(1) …. 2.19 s 5 …. 1.22 s 25(1) …. 1.22 s 73(1)(b) …. 2.19 Education and Training and Reform Act 2006 s 2.1.21 …. 1.36 Environment Protection Act 1970 s 66B(4B)(c) …. 2.49 Environment Protection Act 1990 s 59E …. 1.54 Firearms Act 1996 ss 5–8 …. 2.19 Gaols Act 1958 s 35 …. 1.66 Human Tissue Act 1982 …. 5.35 Jury Directions Act 2013 …. 1.83 Jury Directions Act 2015 …. 1.83, 8.48, 10.53 Pt 6 …. 10.40 ss 1–15 …. 1.83 s 16 …. 1.83 s 46 …. 5.44, 5.56 s 46(3)(c)(i) …. 5.46 s 47 …. 5.60 s 60 …. 8.48 s 61 …. 1.76 s 63 …. 1.76 s 67 …. 1.83 Licensing Act 1998 s 266 …. 2.41 Medical Treatment Act 1988 …. 5.35 Mental Health Act 2014 …. 13.6, 13.7 Metropolitan Fire Brigade Act 1958 s 32B(3) …. 6.25 Motor Car Act 1958 …. 2.23

Subordinate Legislation Act 1994 s 16 …. 3.40 s 16A …. 3.40 s 17 …. 3.40 Summary Offences Act 1966 s 41H(2)(b)(ii) …. 2.1 s 42 …. 5.40 Wildlife Act 1975 s 45 …. 2.19 s 47 …. 2.19

Western Australia Children and Community Services Act 2004 s 103 …. 5.39, 5.40 s 104A …. 5.39, 5.40 Criminal Code 1913 …. 1.4, 7.35, 8.4, 8.38, 10.20, 10.32, 11.48, 13.6, 13.46, 14.16 s 1 …. 7.59, 13.45 s 2 …. 1.29 s 4 …. 1.27, 7.20, 7.27 s 6(2) …. 2.19 ss 7–10 …. 12.11 s 22 …. 3.1, 3.27, 4.7, 4.13, 4.20, 4.26 s 23 …. 14.14, 14.19 s 23(1) …. 1.13, 1.43, 12.10, 14.11 s 23A …. 12.22 s 23A(1) …. 1.43, 12.56 s 23A(2) …. 1.13, 1.38, 7.3, 14.8, 14.11 s 23B …. 1.40, 12.10, 12.35, 12.55 s 23B(2) …. 1.13, 1.43 s 24 …. 2.2, 2.8, 2.25, 2.34, 2.40, 5.10 s 25 …. 6.1, 6.4, 6.12 s 25(2) …. 1.13 s 25(3)(b) …. 12.40 s 25(3)(c) …. 12.40

s 26 …. 13.9 s 27 …. 1.13, 13.1, 13.36, 13.45, 13.54, 14.14 s 27(1) …. 13.36 s 27(2) …. 13.50 s 28(2) …. 12.37, 12.43, 12.45 s 29 …. 17.3, 17.5, 17.6 s 31 …. 9.22 s 31(1)(b) …. 9.21 s 31(2) …. 9.21 s 32 …. 8.3, 8.4, 8.16, 8.37, 8.50 s 32(b) …. 12.41 s 32(1) …. 1.13 s 36 …. 4.20 s 49 …. 8.40 s 63 …. 12.10 s 64 …. 12.10 s 75A(1)(b)(iv) …. 5.10 s 178 …. 9.21 s 204B(7)(8) …. 7.5 s 221A(1A) …. 2.8 s 222 …. 5.10, 5.19, 5.63 s 225 …. 10.23 s 226 …. 10.23 s 231 …. 10.23 s 233 …. 10.23 s 235 …. 10.23 s 235(2) …. 10.23 s 238 …. 10.23 s 240 …. 9.21 s 242 …. 9.21 s 243 …. 10.5, 10.14, 10.27 s 244 …. 10.17, 10.27, 12.39 s 244(1A) …. 10.20 s 244(4) …. 10.17 s 245 …. 11.4, 11.47, 14.23 s 246 …. 1.14, 11.4, 11.41, 11.47, 14.23

s 247 …. 11.41 s 248 …. 1.14, 10.5 s 248(1) …. 10.11 s 248(3) …. 10.36, 10.54 s 248(3)(b) …. 10.27 s 248(4) …. 10.11 s 248(4)(a) …. 10.14, 10.27, 10.32, 10.39 s 248(4)(b) …. 10.27 s 248(4)(c) …. 10.27, 10.32 s 248(5)–(6) …. 10.48 s 249 …. 10.5 s 250 …. 10.5 s 251 …. 10.17, 10.33 ss 251–256 …. 10.27 s 252 …. 4.11, 4.29, 10.5, 10.17, 10.33 s 253 …. 10.5, 10.17, 10.33 s 254 …. 10.5, 10.17, 10.33 s 255 …. 4.11, 4.29, 10.5, 10.17, 10.33 s 256 …. 10.5, 10.17, 10.33 s 258 …. 6.23 s 259 …. 5.36, 5.81 s 260 …. 10.36 s 261 …. 5.1 s 262 …. 1.60 s 263 …. 1.60 s 265 …. 1.60 s 266 …. 1.60, 5.12 s 267 …. 1.60 s 271 …. 5.63 s 279 …. 11.26 s 279(1)(a) …. 12.55 s 279(1)(a)–(b) …. 12.10 s 279(1)(b) …. 12.11, 12.55 s 279(4) …. 11.56 s 279(6) …. 11.56 s 281 …. 5.10, 11.47

s 294 …. 11.41 s 297 …. 5.11 s 301 …. 5.11 s 301(1) …. 12.10 s 305A …. 2.4 s 305A(5) …. 2.1 s 306 …. 5.35 s 310 …. 2.46 ss 313–318A …. 5.10 s 319(1) …. 5.42 s 319(1)(d) …. 1.67 s 319(2) …. 5.42, 5.44 s 319(2)(a) …. 5.48, 5.49, 5.52, 5.55 s 321 …. 5.42 s 321(9) …. 2.8 s 323 …. 5.10, 5.63 s 324 …. 5.10 s 325 …. 5.42 s 329 …. 5.42 s 330(1) …. 5.42 s 330(9) …. 5.42 s 343 …. 4.29 s 371 …. 5.65, 5.71 s 371(2) …. 5.64, 12.10 s 371(2)(a)–(f) …. 4.17 s 371(2)(a)(f) …. 5.71 s 373 …. 5.65 s 374 …. 5.56 s 392 …. 5.10 s 393 …. 5.10 s 441 …. 5.2 s 490(2) …. 7.5 s 492(3) …. 7.5 s 553 …. 7.59 s 555A …. 7.35 s 557A …. 7.17

s 558 …. 7.37 s 560 …. 7.37 Criminal Code Act 1902 …. 1.4 Criminal Investigation Act 2006 s 24(1)(c) …. 10.23 s 24(1)(d) …. 10.23 Criminal Law Amendment Act 2008 …. 10.5 s 6 …. 10.5 s 7 …. 10.5 s 8 …. 10.5 Criminal Law Amendment (Homicide) Act 2008 …. 8.38, 10.5, 10.47 s 6 …. 8.16 s 12 …. 11.3 s 13 …. 16.1 s 248 …. 10.47 ss 248–250 …. 10.47 s 281A(1) …. 16.1 Criminal Law (Mentally Impaired Accused) Act 1996 …. 13.5, 13.27, 13.32 s 19(5) …. 13.29 s 20 … 13.34 s 22 …. 13.24 Criminal Procedure Act 2004 s 78 …. 1.79 s 118(2) …. 13.21 Environmental Protection Act 1986 s 74(1) …. 2.49 Firearms Act 1973 …. 10.10 Fish Resources Management Act 1994 s 46 …. 4.13 Human Tissue and Transplant Act 1982 s 8 …. 5.35 s 9 …. 5.35 Interpretation Act 1984 s 41 …. 3.40 Local Government (Miscellaneous Provisions Act 1960 …. 4.28

Mental Health Act 2014 …. 13.6 s 6 …. 13.7 Misuse of Drugs Act 1981 …. 1.6 s 6(1) …. 7.17 Road Traffic Act 1974 s 59 …. 2.24 Wildlife Conservation Act 1950 s 16A …. 2.19 Young Offenders Act 1994 …. 17.1

United Kingdom 9 Geo IV c 31 (1828) s 12 …. 11.42 12 Geo III cl 48 s 1 …. 3.16 30 Geo II s 24 …. 5.66 43 Geo 3 c 58 …. 11.42 Children Act 1968 …. 3.33 Coroners and Justices Act 2009 s 52 …. 15.2, 15.25 s 53 …. 15.2, 15.25 s 54 …. 11.36 s 54(1) …. 11.6 s 55 …. 11.36 s 57 …. 16.1, 16.6 Crime and Disorder Act 1998 …. 17.18 s 34 …. 17.18 Criminal Attempts Act 1981 …. 7.24, 7.37, 7.48, 7.51 s 1 …. 7.20 Criminal Damage Act 1971 …. 3.24 Criminal Justice and Immigration Act 2008 s 76(10)(b) …. 10.13 Criminal Law Act 1977 …. 7.48 s 1(1) …. 7.37

Criminal Procedure (Scotland) Act 1995 s 51B …. 15.2 Criminal Justice and Licensing (Scotland) Act 2010 s 168 …. 15.2 Highways Act 1959 s 121(1) …. 3.23 s 127 …. 3.22 Homicide Act 1957 s 2 …. 15.2, 15.25 Infant Life (Preservation) Act 1929 …. 16.6 Infanticide Act 1922 (12 & 13 Geo 5 c 18) …. 16.1, 16.13, 16.26 Infanticide Act 1938 (1 & 2 Geo 6 c 36) …. 16.1, 16.4, 16.6 s 1(1) …. 16.4, 16.6 s 1(2) …. 16.4, 16.6 Jervis’ Act 1848 (11 & 12 Vict c 43) …. 1.79 Malicious Shooting or Stabbing Act 1803 …. 11.42 Offences Against the Person Act 1861 s 4 …. 7.60 Person Act 1861 …. 5.27 Road Traffic Act 1972 s 162 …. 7.15 Serious Crimes Act 2007 …. 7.68 ss 44–46 …. 7.59 s 59 …. 7.59 Theft Act 1968 …. 4.18, 4.23, 5.74 s 24(3) …. 7.23

Canada Criminal Code 1985 Pt XX.1 …. 14.37 s 17 …. 6.8, 8.34 s 233 …. 16.1 s 265(3)(c) … 5.53 s 271 …. 5.53 s 273.2 …. 5.53 s 662 …. 16.1

New Zealand Crimes Act 1961 …. 8.3, 8.7 s 20 …. 8.7, 8.8 s 24 …. 8.3, 8.8 s 178 …. 16.1, 16.13 s 178(1) …. 16.18 Domestic Proceedings Act 1968 s 107 …. 3.28 Immigration Act 1963 s 14(5) …. 7.9 Sentencing Act 2002 s 102 …. 11.56 Transport Act 1962 s 58(1)(b) …. 12.37

International Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal Art 8 …. 9.15 Charter of the International Military Tribunal for the Far East Art 6 …. 9.15 Convention on the Rights of the Child 1991 Art 24(3) …. 5.35 European Convention on Human Rights Art 2 …. 1.22 Geneva Convention …. 9.34 Rome Statute of the International Criminal Court Art 31(1)(d) …. 8.1, 8.6 Art 33 …. 9.27 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment …. 9.29

Singapore

Immigration Ordinance 1952 s 6(3) …. 3.39

Contents Publisher’s Note Preface Preface to the 4th Edition Table of Cases Table of Statutes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Introduction Mistake of Fact Ignorance and Mistake of Law Claim of Right Consent Sudden Emergency (Necessity) Impossibility Duress, Compulsion and Coercion Superior Orders Defensive Force Provocation Intoxication The Defence of Insanity Automatism Diminished Responsibility and Substantial Impairment Infanticide Infancy and Nonage

Index

[page 1]

1 Introduction A brief history of Australian criminal law 1.1 Every story has a beginning. This book is about criminal defences, but in order to appreciate the modern law it is useful to recount briefly the rich and diverse history of criminal law in Australia. To borrow a memorable phrase from G D Woods, a New South Wales judge of long standing and former academic, New South Wales was founded for and upon the criminal law.1 It is sobering to think that Australia, this prosperous and lucky country, could have such inauspicious beginnings, born from the cruelties and parsimonies of English penal law, and to reflect that but for the American War of Independence, Great Britain may not have needed to find a new dumping ground for her social problems.2 1.2 In the 19th century, the criminal law of each Australian dominion was a combination of common law and statute.3 In stark contrast to the unifying nation-building approach of the Canadian founders,4 the delegates to the Australian Federation Conventions of the 1890s showed little interest in criminal law. This is interesting given the antecedents mentioned above. If the delegates to the Adelaide, Sydney and Melbourne conventions owed their patrimony to the criminal law, this was a dark secret and they would not be defined by it. The records of the Convention Debates contain very few references to criminal law, and merely a brief exchange between delegates as to the desirability of a

uniform criminal law throughout Australia. Even voter fraud was to be dealt with outside the Constitution. The federal system that emerged treated the Commonwealth as preeminent within certain defined areas of legislative power. Criminal law did not figure large, although the Commonwealth was given power to legislate for [page 2] the influx of criminals,5 and the service throughout the Commonwealth of civil and criminal process.6 As a result, the Australian Parliament lacks the legislative competence to enact criminal laws for the states other than in connection with a specific head of legislative power.7 Plenary power in criminal law rests with the states,8 subject to a rule of inconsistency which provides that in the event of conflict, federal law will prevail.9 A secondary feature of Australian criminal law is the need to determine, as a precondition to establishing jurisdiction, in which state or territory the impugned acts or omissions may have occurred. This may be difficult where the criminal transaction has a multijurisdictional element.10 Australia has a complex system of overlapping laws and enforcement mechanisms, while our Canadian cousins have a unified system of criminal law. This is a significant impediment to Australia’s national development. The wasted effort of running separate and overlapping systems of criminal law is incalculable.11 1.3 In the period before federation, major criminal law reform statutes were debated by the Parliaments of Victoria, Queensland and New South Wales. In 1882, a Bill was introduced in Victoria for the codification of the substantive civil and criminal law. It was not passed, and simply lapsed.12 Queensland enacted [page 3]

a criminal code in 1899, which came into effect on 1 January 1901.13 It was the masterful work of Sir Samuel Griffith,14 drawing heavily on European and some American sources.15 While the Crimes Act 1900 (NSW) was essentially a ‘tidy up’, building on the major reforms in New South Wales of 1883, the Griffith Code was designed to break the dependency on the common law. The Criminal Code 1899 (Qld) was drafted on the footing that the rules of criminal responsibility set out in Ch V of the Code would apply to all persons charged with any criminal offence against the statute law of Queensland.16 There was no attempt to bring all statutory offences into the Code, nor was there any explicit extinguishment of the common law. 1.4 In 1902, the Griffith Code was adopted in Western Australia,17 but attempts to introduce it that year in South Australia failed, as did a later Victorian attempt in 1904.18 The Western Australian Code was consolidated in 1913 and in 1924 Tasmania enacted a Code based not on the Griffith Code but on the equally famous code prepared by Sir James Fitzjames Stephen in the 1870s, which expressly preserved common law defences.19 Section 8 of the Criminal Code Act 1924 (Tas) provides: All rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to a charge upon indictment, shall remain in force and apply to any defence to a charge upon indictment, except in so far as they are altered by, or are inconsistent with, the Code.

For the Griffith Code, there was to be one more Australian success. In 1983, the Northern Territory enacted a Code based on the Griffith Code with some interesting and significant modifications.20 [page 4] 1.5 The present position therefore (ignoring for the moment the important area of federal criminal law) is that criminal codes are in place in Queensland, Western Australia, Tasmania, and the two mainland territories. In the remaining jurisdictions of New South Wales, South Australia and Victoria, the principles of criminal responsibility,

the definition of offences, and matters of justification and excuse are for the most part governed by the common law. 1.6 It is customary to classify the criminal law of Australia in terms of so-called ‘common law’ and ‘Code’ jurisdictions, but the distinction is perhaps more formal than substantive. Each of the common law states has an extensive statute dealing with serious criminal offences.21 And in these common law jurisdictions many specific doctrines have been reduced to statutory form or ‘codified’. The Griffith Code falls far short of a comprehensive statement of the criminal law.22 In some code jurisdictions, regulatory offences are not governed by the general fault principles.23 The restatement of the general principles of criminal responsibility in statutory form is the main difference between the Code and common law jurisdictions. 1.7 We also note that neither the process of codification nor the passage of a statute dealing with a particular topic leads automatically to the exclusion of the common law, although a statute may expressly or impliedly abolish common law doctrine.24 It is a mistake to approach a statute that purports to be a code on the basis that particular expressions or doctrines are merely an embodiment of the preexisting common law. It is true that words should be given their ordinary meaning, free from any presumption that they were intended to evoke previous common law doctrine.25 But in cases of doubtful import it is permissible to resort to the common law,26 especially where the word in question has a prior technical meaning. Words such as ‘intention’, ‘dishonest’ or ‘wilful’ may, unless otherwise specifically defined, take for granted the relevant common law meaning.27 [page 5]

Federal criminal law — the advent of the Commonwealth Criminal Code 1.8

At or shortly after federation, all state courts (and later, territory

courts) became repositories of the judicial power of the Commonwealth, along with the High Court and other dedicated federal courts. Thus, federal criminal offences could be dealt with in ordinary state or territory courts rather than in dedicated federal courts. Given economic and demographic considerations, this was a matter of practical necessity rather than doctrinal purity.28 The federal compact constitutes an integrated court system protected by Ch III of the Constitution.29 1.9 Within the Commonwealth sphere, considerable (and necessary) reform took place in the late 20th century. Those criminal offences defined by the Crimes Act 1914 (Cth) were governed by the common law,30 whereas those offences contained within other statutes were governed by the law applicable to the place of trial.31 The fact that the rules governing substantive principles in a federal criminal trial might turn on the place of prosecution was obviously unsatisfactory, and in 1987 the Commonwealth appointed Sir Harry Gibbs to make recommendations for law reform. The Gibbs Committee recommended the development of a unitary federal criminal code. Following the release of the Gibbs Committee Report,32 the Standing Committee of Attorneys-General (SCAG) placed the development of a national criminal law on the agenda.33 The Criminal Law Officers Committee of the Standing Committee of Attorneys-General was established with representatives of all states and territories and led to the creation of a draft model criminal code.34 In 1995, the Commonwealth enacted [page 6] the Criminal Code Act 1995 (Cth), which dealt with the general principles of criminal responsibility.35 At this moment of history there was broad support for codification of the criminal law as a means of promoting greater clarity, certainty and consistency in all aspects of the criminal law. The momentum for reform was strong and pointed not only to the codification of federal criminal law but to greater uniformity of state and federal criminal law across all jurisdictions. It was hoped

that these dual purposes would be achieved by 2001, 100 years after the commencement of the Griffith Code. 1.10 The Commonwealth Code that emerged from the reform movement was and is referred to as the ‘model’ Criminal Code, a name which aptly and perhaps ambitiously reflects the aspirations of those associated with its development.36 It applies to Criminal Code offences from their inception and to all remaining federal offences after 15 December 2001.37 The model Code has been adopted in the Australian Capital Territory,38 and in 2005 the criminal responsibility provisions of the model Code were applied in relation to certain code and declared offences in the Northern Territory.39 A number of its provisions have been adopted by state jurisdictions; for example, the provisions on selfdefence have been adopted in Victoria and New South Wales. 1.11 Despite many areas of similarity and convergence, there are important differences between the model Criminal Code and the Griffith Code. And these differences may have impeded the rapid achievement of the second major purpose of the 2001 reforms, namely, unifying Australia’s criminal laws across [page 7] all jurisdictions under one code. The Griffith Code, a great gift to the nation at the time of federation, appears to some now as an obstacle to harmonisation and reform in the new millennium.40 1.12 It is important to understand the different logical starting points of the respective codes. Under the Griffith Code, criminal responsibility is defined predominantly by a series of brief negative rules set out in s 23 about intention, unwilled acts, and accident; whereas Ch 2 of the model Criminal Code sets out to define in a more comprehensive way the physical and fault elements that make up criminal responsibility.41 1.13 The Griffith Code sets out to define the circumstances of liability for each offence, setting out rules of general application which may

exclude criminal responsibility. It is well known that Sir Samuel Griffith regarded this aspect of his work with great pride. He described the topic in these terms:42 Criminal Responsibility. – This most important and difficult branch of the law is dealt with in Chapter V. I have appended to several of the sections Notes to which I invite special attention. No part of the Draft Code has occasioned me more anxiety, but I may add that I regard no part of the work with more satisfaction.

The basic structure of the Griffith Code is as follows. Section 2 provides that an act or omission which renders the person doing the act or making the omission liable to punishment is called an offence. The Code does not specify the fault element associated with each offence, although it does lay down an important rule, namely, that ‘[u]nless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial’.43 Chapter V provides many instances where a person is not criminally responsible for an offence. Thus, a person is not criminally responsible for an act or omission which occurred independently of the exercise of the will; for an event which occurs by accident; for an act on account of insanity; for an act done in an emergency; for an act done under duress and so on.44 These rules define criminal responsibility under the Griffith Code but operate for the most part as a set of exclusionary conditions. The rules in Ch V do not purport to be exhaustive of matters of justification or excuse. For example, keys concepts such as self-defence and provocation are dealt with outside Ch V.45 1.14 The Criminal Code (Cth) follows a similar structure, with some important differences. Chapter 2 is headed ‘General Principles of Criminal Responsibility’. Chapter 2 is intended to provide an exhaustive codification of the general principles of criminal responsibility. It states that it ‘contains all the general principles of [page 8]

criminal responsibility that apply to any offence, irrespective of how the offence is created’.46 One of the most important principles is found in s 3.2: 3.2 Establishing guilt in respect of offences In order for a person to be found guilty of committing an offence the following must be proved: (a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt; (b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.

The Chapter then proceeds in Pt 2.2 to define the elements of offences, including the physical elements in Div 4 and the fault elements in Div 5. Part 2.3 covers many of the same concepts covered in Ch V, defining the circumstances in which there is no criminal responsibility. Like the Griffith Code, it also incorporates a series of rules which negate criminal responsibility. 1.15 It is an important and distinctive feature of the model Criminal Code that it attempts to define the physical and fault elements associated with criminal responsibility in an explicit and comprehensive manner. Chapter 2 was designed to remove uncertainties associated with the doctrine of mens rea in relation to the interpretation of statutory offences, and clearly delineates the concepts of strict and absolute liability. The model Code sets out to identify with precision the external physical elements and the internal fault elements associated with each crime. It seeks to build the concept of criminal responsibility from the ground up. In this respect, the model Code seems quite different from the Griffith Code. The ‘bottom up’ approach of the model Criminal Code does not sit comfortably with those raised in the tradition of the Griffith Code, and unfortunately for Australian law,47 the quest to secure a national criminal law by 2001 failed. This failure stands in stark contrast to the glorious achievements of the 1890s, encapsulated in the Griffith Code and indeed the Australian Constitution itself. That is not to say that the Griffith Code is a superior document. Each is a major achievement, although the former is usually associated with a single individual, and the latter with a committee, albeit one associated with many notable criminal law scholars such as

David Neal, Ian Leader-Elliott and Matthew Goode, to name a few. It is, rather, a comment on the political complexities of cooperative federalism and the difficulties of national law reform. 1.16 There is another important difference between the two codes. It would appear from the case law on Ch V, considered in its entirety, but especially in relation to the Griffith Code’s default fault standard of accident, that the Griffith Code is based on objective standards of fault.48 Objective standards based upon what an ordinary person would have foreseen are imbedded in key areas of criminal responsibility under the Griffith Code. The approach of the model Criminal Code is somewhat different. It explicitly recognises negligence as a basis for liability. Indeed, it sets up a classification scheme based on guilt without fault, distinguishing clearly between cases where fault elements are required, and where they are not. In the latter case there is a clear distinction between offences of strict and absolute [page 9] liability. Thus is created a framework for the classification of offences. The adoption of standardised drafting techniques in framing offences means that the model Code can be seen as a set of drafting guidelines for parliamentary counsel, rather than an embodiment of a predetermined standard of fault.49 However, there is no systemic bias in favour of subjective or objective theories of fault. Whether the defendant should be convicted without fault is a matter for the legislature, to be determined at the time of creating the offence provision and slotted in to the framework as part of the drafting exercise. This marks an important point of distinction between the Codes. For further discussion of key differences between the Griffith and model Codes in relation to fault, see 1.41–1.46.

Overlapping state and federal jurisdiction — the importance of s 109

1.17 There are very real challenges in operating a complex system of criminal law in which Commonwealth, state and territory parliaments have concurrent jurisdiction. Criminal laws passed by the Commonwealth are valid only insofar as they are reasonably connected to matters that fall within enumerated heads of powers.50 Commonwealth criminal laws may also be founded on the express power to legislate on matters incidental to the execution of any power vested in the parliament.51 The purpose of this section of the chapter is to discuss some complexities arising from the overlapping jurisdictions of criminal law in Australia. 1.18 It is not uncommon that one act or series of acts may constitute an offence under both state and federal law.52 The operation of such a system requires a clear rule governing inconsistency. This is provided by s 109 of the Australian Constitution, which provides that: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Section 109 is one of the pillars of the Australian federal system, and is of increasing relevance to criminal lawyers. The existence of concurrent jurisdiction, especially in the context of drug offences, presents interesting opportunities for constitutional [page 10] challenges.53 As Commonwealth power grows and federal offences proliferate in broad areas of social activity, such as drug control, cyber security, terrorism and border protection, s 109 issues are likely to become increasingly common. 1.19 Case law on s 109 suggests the following propositions. First, a state law may be invalid if, on proper analysis of the law of the state taken with the relevant law of the Commonwealth, the latter is to be construed as a comprehensive statement of the law governing the rights and liabilities of the citizen in that subject area. An express statement to that effect in the Commonwealth law will be determinative; but the

same conclusion may be drawn as a matter of implication from the respective Commonwealth and state laws. Second, the absence of exclusive federal coverage does not preclude a finding of inconsistency. Section 109 may operate in cases where the application of the state law would ‘alter, impair or detract from’ the federal law.54 Third, the potential for double punishment arising from concurrent jurisdiction is prevented by a specific provision of federal law.55 1.20 The High Court decision in Dickson v R (2010) 241 CLR 491; [2010] HCA 30 provides a copybook example of s 109 inconsistency. The appellant was convicted of conspiring to steal from a storage warehouse owned by a company called Dominion. The warehouse was leased to the Australian Customs Service, which had exclusive possession and control under the terms of the lease. Forty pallets of cigarettes had been placed in the warehouse after being seized by the Customs Service under a warrant. The conspiracy charge arose from the subsequent theft of the cigarettes from the warehouse. The trial was conducted on the basis that the only relevant offence was against state law; the count upon which the appellant was convicted did not refer to property belonging to the Commonwealth; and the trial judge directed the jury that they could assume that the cigarettes belonged to Dominion. Special leave to appeal to the High Court was granted on the constitutional question whether the existence of concurrent state or federal jurisdiction meant that the alleged conspiracy was not an offence against the law of Victoria by reason of s 109 of the Commonwealth Constitution. This issue had not been raised either before the Court of Appeal or at trial. The court held unanimously and in a single judgment that there were several important differences between the federal and state law of conspiracy and that these created a case of direct inconsistency. The High Court allowed the appeal, quashed the conviction and set aside the sentence. 1.21 In theory, it would be wise for prosecutors to commence matters involving potential federal jurisdiction under federal law. However, anticipating the potential conflict may be difficult. The existence of a fact or circumstance upon which federal jurisdiction might have been invoked may not appear until well into the

[page 11] trial, as Dickson illustrates, and the extent of direct or indirect inconsistency under s 109 usually will involve complex questions of constitutional law. Trials aborted on this ground and retried under federal law impose cost burdens on all sides. 1.22 Momcilovic v R (2011) 245 CLR 1; 209 A Crim R; [2011] HCA 34, is the first High Court case to consider the impact of the Charter of Human Rights and Responsibilities 2006 (Vic) (the Charter). The likely enactment of similar human rights legislation in some states has the potential to further complicate and diversify the criminal law within and between the various Australian jurisdictions.56 In Momcilovic, the police found a large quantity of methylamphetamine in the appellant’s apartment. The appellant was subsequently convicted of drug trafficking. As there was no evidence that the appellant was aware of the existence of the drugs, the prosecution relied on the presumption in s 5 of the Drugs Poisons and Controlled Substances Act 1981 (Vic), which states that a person is ‘deemed’ to be in possession of substances found in premises occupied by the person unless the person can satisfy the court that he or she was not in possession of the substance. On appeal it was argued that s 5 should be interpreted consistently with the presumption of innocence, expressed in s 25(1) of the Charter. Accordingly, the trial judge should not have reversed the onus of proof and required the defence to prove that the appellant was not in possession of the drugs, but instead s 5 should have been interpreted as simply placing an evidential onus on the defence. The High Court agreed with the Victorian Court of Appeal decision that s 5 could not be interpreted as simply placing an evidential onus on the defence. Accordingly, the High Court held that by reversing the onus of proof, the section was inconsistent with the right to be presumed innocent until proven guilty (Charter s 25(1)).57 The High Court, however, allowed the appeal and ordered a retrial as it held that s 5 has no application to the offence of trafficking. The central element of trafficking is ‘possession for sale’, a compound concept which is distinct

from the element of possession as set out in s 5. However, as constitutional grounds of appeal were also argued, the justices of the High Court engaged in lengthy discourse on the proper interpretation of the Charter and s 109 of the Constitution. The question was whether, as in Dickson, the differences between state and federal law were sufficient to engage s 109. Those differences were threefold: the existence of the deeming provision in s 5 (which did not have a counterpart under the federal law); the existence of majority verdicts under state law (federal offences were subject to the unanimity requirement contained in s 80 of the Constitution); and the existence of differing penalties and sentencing regimes. The court held that the identified differences between state and federal law were not such as to render the state law invalid under s 109. The court held (with Hayne J in vigorous and eloquent dissent) that differences between penalty and sentencing options were neither a necessary nor sufficient basis for inconsistency.58 [page 12] 1.23 It is of particular interest for present purposes that Ch 2 of the Criminal Code (Cth) does not contain a provision found in other parts of the Code which denies an intention to ‘exclude or limit’ the operation of any other Commonwealth law, or any law of a state or territory. This is important in relation to the operation of defence provisions contained in Ch 2. For example, the defence of duress has a wider scope under the Commonwealth provision than under its Queensland and Tasmanian counterparts. This means that duress may be unavailable on a state charge but available on the federal equivalent.59 The question then arises whether the narrower or non-existent defence under state law has the effect of altering, impairing or detracting from the federal law. If so, the state law may be ‘operationally inconsistent’ with the law of the Commonwealth, and invalid.60 1.24 The question whether state or federal offences should be laid is an exercise of executive authority by the respective federal or state

prosecuting authorities, informed no doubt by the desire on all sides to avoid conflict, costs, and duplication of effort.61 Whether the court is exercising federal judicial power may have some bearing on whether state or federal charges should be laid.62 In some cases, the matter is controlled by legislation.63 Indeed, the trial of a federal offence may be subordinated to the trial of the equivalent state offence.64 A major factor may be whether federal jurisdiction is engaged either by reason of a direct interest in the subject matter of the offence65 (for example, whether the goods if stolen belonged to the Commonwealth); or for some other reason (for example, that the accused is a resident of another state).66 [page 13] 1.25 Some specific devices have been adopted to minimise the scope for conflict. Provisions such as s 71.17 within Div 71 (Offences against United Nations and associated personnel) of the Criminal Code (Cth) are designed to avoid conflicts that might otherwise arise. That section provides that in relation to offences defined by the Division, a state or territory court does not have jurisdiction to determine a charge of such an offence ‘if the conduct constituting the offence also constitutes an offence (the State offence) against the law of that State or Territory’. But if a prosecution under s 71.2 is brought and the court finds a corresponding state offence, then the person may be prosecuted for the state offence. Paradoxically, at least in Queensland, the effect of this provision is that the defence of diminished responsibility, which is recognised as a partial defence to murder in Queensland but not under federal law, would be available.

The concept of criminal responsibility 1.26 The purpose of a criminal trial is to determine whether a person is criminally responsible for some act or omission. The concept of criminal responsibility embodies the core principles that govern whether

a person is liable to state-sanctioned punishment. The law seeks to define in advance the specific circumstances in which a person may be convicted of a particular offence. Some of these relate to particular events, occurrences or circumstances and some relate to the state of mind of the offender. There are many rules, principles and concepts that together form the complex notion of criminal responsibility. The general concepts adopted to explain criminal responsibility are as follows: (a) a prohibition or obligation imposed by the law (see 1.27); (b) conduct by the accused (see 1.28–1.38); (c) the concept of cause in law (see 1.39–1.40); (d) the element of fault (see 1.41–1.65); (e) the relevance of time (see 1.66–1.67); and (f) the absence of justification or excuse (see 1.68–1.72).

A prohibition or obligation imposed by the law 1.27 It is a cardinal principle that a person should not be subject to coercive punishment other than by reason of a breach of some preexisting rule of the criminal law: nulla poena sine (lege) crimen. This principle is reflected in the Australian Criminal Codes67 and supported by rules of statutory interpretation and the abandonment of the power to create new offences. One important rule of statutory interpretation is that the reach of the criminal law should not be [page 14] extended except by clear words of legislative intent. In R v Adams (1935) 53 CLR 563; [1935] HCA 62, the plurality referred to Blackstone’s assertion that:68 The law of England does not allow of offences by construction, and no case shall be holden to be reached by penal laws, but such as are within both the spirit and the letter of such laws,

and stated:69

No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category.

Another important principle is that statutory provisions should be interpreted so as not to encroach on fundamental rights in the absence of clear legislative intent.70 This so-called ‘principle of legality’ has emerged as an important concept in modern human rights theory.71 In any event, the notion that penal statutes should not be extended lightly and without clear legislative intent sits comfortably within the principle of legality. Arguably, it is merely one instance of this broader doctrine. Another supporting rule of interpretation is that statutory provisions should be interpreted where possible to avoid retrospective effect72 and where possible in conformity with Australia’s international obligations.73 We also observe that the courts have abdicated any power previously possessed to create new offences. The development of new criminal law is a matter for parliament.74 But while the courts eschew the power to create [page 15] new offences, the abolition of a recognised defence may have the practical effect of changing the reach of an existing offence. The rejection of excessive self-defence manslaughter enlarged the offence of murder,75 while the abolition of assault manslaughter reduced the scope of manslaughter.76 Arguably, the offence of rape was widened by the High Court’s non-recognition of the rule of spousal immunity.77

Conduct by the accused 1.28 Another important principle upon which criminal responsibility is determined is the need for some conduct by the defendant linking him or her in a legally relevant way to the proscribed event or consequence.

There are some exceptions to the generality of this principle, notably in the area of status offences (see 1.30) or obligations arising from a duty to act (see 1.34). The conduct requirement was well expressed in the judgment of Woodhouse J in the New Zealand case of Kilbride v Lake [1961] NZLR 590. The defendant was convicted under a regulation in that he operated a motor vehicle and ‘did fail to display in the prescribed manner a current warrant of fitness’. It was agreed that he drove the car into the city and parked there, that the warrant was then in place, but that at some point before his return the ticket had become detached and was lost or removed by some unknown person. Woodhouse J set aside the conviction and said:78 [I]t is a cardinal principle that, altogether apart from the mental element of intention or knowledge of the circumstances, a person cannot be made criminally responsible for an act or omission unless it was done or omitted in circumstances where there was some other course open to him.

The conduct requirement underlies criminal responsibility and is in that sense anterior to any question of the fault element required for the offence, whether of intention, knowledge or recklessness. Another example may be found in the case of Kruger v Kidson [2004] NTSC 24, where Mildren J held that a regulation that imposed liability on a ‘licence holder who is occupying a front seat of a vehicle that is being driven by a learner’79 did not apply to a person who was asleep in the passenger seat at the time the vehicle was being driven. In this case, there was no relevant ‘act’. 1.29 Under the Griffith Code, the word ‘offence’ is defined as an act or omission which renders the person doing the act or making the omission liable to punishment.80 In R v Falconer (1990) 171 CLR 30 at 38; [1990] HCA 49, Mason CJ, Brennan and McHugh JJ approved the comments by Kitto J in Vallance v R (1961) 108 CLR 56 at 64 that ‘act’ in s 2 of the Criminal Code 1913 (WA) referred to ‘a bodily action which, either alone or in conjunction with some quality of the action, or consequence caused by it, or an accompanying state of mind, entails criminal responsibility’. Criminal responsibility usually involves some physicality on the part of the accused. Most criminal offences are committed in this way.

[page 16] 1.30 Liability may also be based on the possession of some particular status; for example, having no visible means of support, being a neglected minor, being ‘found’ in a certain place, or being a member of a proscribed organisation.81 In Chia Gee v Martin (1906) 3 CLR 649, the accused was convicted of an offence of being a prohibited immigrant when he was in fact brought into the Commonwealth under arrest. Likewise, in Larsonneur v R (1933) 24 Cr App R 74, the accused was convicted having been ‘found’ in the United Kingdom without permission when she had in fact been arrested and taken there against her will. 1.31 Criminal responsibility may also extend in some situations to responsibility for the conduct of others. Where a child of compulsory school age fails to attend school and where one of a number of exceptions does not apply, each parent of the child is guilty of an offence.82 Vicarious liability may arise in other contexts of social policy, such as workplace safety83 or environmental protection,84 where one party is made responsible for the actions of another. 1.32 The external elements of a particular offence may extend beyond an act or omission by the accused to proscribed consequences or attendant circumstances.85 Such offences are described as crimes of consequence86 or crimes of circumstance,87 as the case may be. Some offences are mixed; for example, on a charge of assault occasioning bodily harm the absence of consent (a circumstance) is material, as is the fact of bodily harm (a consequence).88 The distinction between an act and the attendant circumstances is relatively straightforward. Distinguishing between an act and its consequences has proved more difficult.89 1.33 The conduct elements of some offences include a reference to the mental state of the accused or some other person (including the victim). Thus the mental state of the victim is an element of the offence in rape and assault.90 The absence of consent or knowledge of certain facts is a

part of the actus reus of such crimes.91 Sometimes it is necessary to prove that the act was performed by the accused [page 17] for some purpose; for example, on a charge of indecency it may be necessary to prove an indecent motive. The nature of the act may be such that it is not inherently indecent, and reference to the defendant’s purpose will be necessary to say whether the act was indecent or not.92 On a charge of burglary, it is necessary to prove an intent ‘to commit a felony’ as well as breaking and entering the dwelling house.93 In larceny, there must be intent to deprive the owner of his or her property at the time the goods are taken.94 An intention or purpose of this nature is sometimes called ‘the ulterior intent’ and may be treated as part of the actus reus. The purpose determines the nature of the act.95

Omissions 1.34 The common law showed scant desire to punish omissions. Liability for omissions was not a significant feature of the English common law. The general principle was that a failure to act was not punishable as a criminal offence unless there was a duty to act.96 So, merely being present at an unlawful prize fight was not a criminal offence unless there was evidence of a calculated presence intended to encourage the commission of an offence. Hawkins J, in the famous case of R v Coney,97 said: ‘It is no criminal offence to stand by, a mere passive spectator to a crime, even of a murder’. However, there were some important exceptions to this principle. An egregious breach of duty resulting in death was punishable even in the absence of a positive act.98 Another example was that of misprision of felony.99 1.35 Where the accused has created, by voluntary conduct, a danger to another, a legal duty arises not to leave that other in harm’s way. In R v Taber (2002) 136 A Crim R 478, the accused robbed, bound and gagged the victim, and then dialed emergency services, but the call was

ignored as a hoax. The victim died of dehydration [page 18] between nine and 11 days later. The Supreme Court of New South Wales held in such circumstances that a murder should be left for the jury.100 1.36 The reluctance to impose liability for omissions may be a thing of the past.101 There are many statutory examples which impose liability for a failure to act. The Criminal Code 1983 (NT) imposes a duty to rescue.102 A failure to report suspected child abuse may attract liability in certain jurisdictions.103 Failing to respond to a school attendance notice is a criminal offence in Victoria.104 Failing to register to vote or vote or file a tax return are criminal offences in Australia.105 Failing to advise of a change of circumstances that may affect payment of a social services benefit may lead to an offence under the Criminal Code (Cth).106 1.37 The Griffith Code deals with omissions in an innovative manner. It sets out various duty-creating situations and creates a statutory causal connection linking the failure to perform a statutory duty with a resulting consequence. The omission does not per se constitute a criminal offence, but a specific offence such as manslaughter or murder may be constituted thereby.107 However, negligent conduct causing harm may be punishable under specific statutory provisions, such as s 328 of the Criminal Code (Qld) by which it is made punishable by 2 years’ [page 19] imprisonment to unlawfully do any act by which bodily harm is actually caused to any person or to omit to do any act which one is duty-bound to perform. The Criminal Code (NT) provides a specific offence (s 183)

of failing to provide necessaries of life where there is a duty to do so. It need only be shown that, because of the accused’s failure, the life of the victim is or is likely to be endangered, or his or her health is or is likely to be permanently injured.

Voluntary conduct 1.38 One of the key assumptions underlying the criminal law is that a person is not criminally responsible for an involuntary act.108 In Ryan v R (1967) 121 CLR 205; [1967] HCA 2, Barwick CJ stated:109 If voluntariness is not conceded and the material to be submitted to the jury wheresoever derived provides a substantial basis for doubting whether the deed in question was a voluntary or willed act of the accused, the jury’s attention must be specifically drawn to the necessity of deciding beyond all reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused.

This basic principle is recognised both at common law and under the Criminal Codes.110 If fault (based on the capacity for choice) precedes punishment, then an act that is truly involuntary cannot attract criminal responsibility. The voluntary act theory is firmly established as an axiom of the criminal law. The theory has been applied to unwilled muscular contractions,111 actions performed while asleep,112 and actions resulting from a state of mental dissociation caused by a wide variety of causes.113 Some dissociated stress disorders have been connected with the insanity defence.114 The theory is of critical importance to an understanding of the defence of automatism (see Chapter 14).115 [page 20]

The concept of cause in law 1.39 It is axiomatic that a person is not responsible for an event or circumstance or state of affairs in the absence of some causal connection with his or her conduct. In a classic result crime such as murder, the connection between act and consequence is usually clear, especially

when the defendant has put in play some sequence of events leading directly to a person’s death, such as stabbing with a knife or shooting with a gun. But a person may also be held responsible for the indirect consequences of his or her conduct.116 The concept of indirect causation is slippery — arguably, a particular event is either a cause or not a cause of another event. However, the purpose of recognising indirect causation is to avoid the proposition that a person is only responsible for consequences for which their conduct was the sole contributing cause. This would be a narrow basis for imposing criminal responsibility. But nor would one want to impose responsibility for an act which was at best a trivial contribution to the final outcome. The law follows a middle path by recognising as a possible cause conduct which is a substantial contributing cause of the proscribed outcome.117 One especially difficult problem is where the behaviour of the accused has contributed to the proscribed event or circumstance although a host of other factors stand out as significant. It is often impossible to identify one particular factor as the cause of a particular event, and the law contents itself with whether a particular factor was a substantial or significant cause of the event, and whether it was operating at the time of death. 1.40 The question whether a person caused a particular event is closely related to the question whether it was accidental, although in the Code jurisdictions the concept of an accident is analysed in terms of the intentionality or foreseeability of the event.118 There is no warrant for associating causation with human cognition. In the non-quantum world, events are causally connected even in the absence of human perception or cognition. The leading case on causation, at least in relation to indirect causation, is Royall v R (1991) 172 CLR 378; [1991] HCA 27.119 In Royall, the High Court held that whether a cause should be regarded as a substantial or significant cause of death is to be determined by the jury ‘applying their common sense to the facts as they find them, at the same time appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter’.120

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The element of fault 1.41 Fault is a complex notion in modern criminal law theory. At common law, the term ‘mens rea’ is traditionally used to refer to the mental fault elements associated with a particular offence, that is, the particular state of mind the prosecution must prove to secure a conviction for a particular offence. The most common fault elements are intention, knowledge or recklessness. The term ‘mens rea’ or ‘guilty mind’ does not mean a feeling of guilt. A sense of guilt is not a prerequisite for criminal responsibility, nor is a sense of moral or legal wrongdoing.121 The Criminal Code 1924 (Tas) adopts a different formulation that apparently summarises the common law. Section 13 provides that no person shall be criminally responsible for an act unless it is voluntary and intentional, nor for an event which occurs by chance.122 1.42 Important differences between the Griffith Code and the Commonwealth Criminal Code were considered above (see 1.11–1.16). In short, those jurisdictions based on the model Criminal Code adopt a technical approach to the fault elements of crime by defining with precision each of the relevant mental states.123 In this respect, we believe that the Criminal Code (Cth) is an improvement upon previous Australian criminal codes.124 For example, under the Griffith Code there is no attempt to define key terms such as ‘intention’. This has caused some difficulty.125 External elements of each offence are defined by the relevant offence-creating provision. The exempting conditions from criminal responsibility are contained within Ch V of the Griffith Code. It prescribes the conditions of responsibility and provides certain exemptions from criminal responsibility. 1.43 A critical section of the Griffith Code is s 23, which provides that unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is

immaterial.126 The common law approach of reading subjective fault into offence provisions is therefore barred under the Code. Section 23 also excludes from criminal responsibility an act or omission that occurs independently of the exercise of the will,127 and an event [page 22] that occurs by ‘accident’.128 Accident has been held to mean an event that was not intended or foreseen and was not reasonably foreseeable.129 This definition of accident was given statutory expression by the Criminal Code and Other Legislation Amendment Act 2011 (Qld) s 4.130 1.44 The Criminal Code (NT) has a distinctive fault standard that eschews but also embraces objective notions of fault. Under s 31, a person is not criminally responsible for a consequence unless he or she foresaw it as a possible consequence of his or her conduct.131 Moreover, a person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his or her conduct, is excused from criminal responsibility for it if a reasonable person similarly circumstanced and having such foresight would have proceeded with that conduct.132 However, s 31 does not apply to those offences to which Pt IIAA of the Code applies, namely Sch 1 offences and declared offences. As noted above, Pt IIAA is based on the provisions of the Commonwealth Criminal Code. 1.45 In discussing the fault element, it is important to distinguish between, on the one hand, the interpretation of words, and on the other hand, the defining of the elements of various offences. Interpreting the words of a statutory provision is a common activity in all legal fields. It is an everyday task for criminal lawyers in both common law and Code jurisdictions. Words in regular use such as ‘intention’,133 ‘wilful’,134 ‘will’,135 ‘reckless’,136 ‘knowingly’,137 [page 23]

‘assault’138 and ‘possession’139 have subtleties of meaning as fine as in any area of law.140 A second different, albeit related, activity involves determining the fault element where the requisite fault element is not specified in the definition of the crime. At common law this may involve a major undertaking,141 although the fault elements associated with most common law crimes are reasonably well understood. But the mens rea associated with common law offences such as rape,142 murder,143 manslaughter,144 attempt145 and complicity146 have caused difficulty in the past and may do so in the future. This should ideally not trouble the code lawyer,147 because under the Criminal Codes the necessary fault element is expressly identified by the offence-creating provision. This device is carried through most faithfully in the model Criminal Code, where the fault element is both identified and defined. 1.46 It is important to distinguish between these separate tasks lest the law governing the mental element for one crime be transferred automatically to another, and lest the meaning assigned to a particular mental state would in one context be applied in all other contexts. Neither transfer is automatically warranted. For example, it is well established that a charge of attempt requires proof of a deliberate decision to bring about the completed offence. Mere foresight that the completed offence may occur, whether this is called recklessness or some more general form of intention, is not sufficient. Proof of mere indifference or recklessness is not enough.148 The mens rea required for murder is quite different from that required for attempted murder.149 As to the second point, the words used to describe a mental state may change in meaning as well. The meaning of words can alter according to their context. It is, however, somewhat troubling when words which are commonly used to define criminal offences, such as wilful or reckless, have various meanings depending on context.150 For example, ‘reckless’, in relation to murder, requires advertence to the probability of death or grievous bodily harm.151 For a lesser crime, such as [page 24]

assault or sexual assault, indifference to the bare possibility of nonconsent may be sufficient to constitute reckless behaviour.152

Intention 1.47 Generally, intention refers to the result of conduct, such a result being the object of the conduct. ‘I intended to bring about X’ implies that, first, X was a perceived outcome; and second, that X was the end to which the conduct was directed. Intention does not, of course, mean desire, although people usually desire the ends they pursue.153 But it is not a contradiction to speak of intending an undesired result.154 Desire implies an emotional dimension foreign to the legal meaning of intention. 1.48 Where two events are inextricably linked so that, to a person’s knowledge, one cannot occur without the other, a person who intentionally brings about one may be said to intend the other.155 If a person knows that a rifle is loaded and primed to fire, and deliberately squeezes the trigger, both the movement of the trigger and the discharge of the firearm may be described as intentional.156 Where a person foresees that a consequence is the certain or necessary result of a course of conduct, he or she may be said to intend that result. It is submitted that knowledge of the certainty of a result is for all practical purposes equivalent to intention.157 This raises the general question of the relationship between intention and foresight. Intention implies foresight because it would be contradictory to assert that a result that a person did not foresee was intended. Foresight does not imply intention because one may foresee a result that was not intended.158 In general, intention implies foresight, but foresight does not imply intention. Intention and foresight are not equivalent.159 1.49 The fault element for most common law crimes is satisfied: (a) where the accused intended to achieve the prohibited result, or meant to perform the act in circumstances which render it illegal; or

[page 25] (b) where the accused performed an act which he or she knew would probably bring about the prohibited state of affairs, or believed that circumstances probably existed which made an otherwise lawful act unlawful. Australian common law treats foresight of the probability of a particular outcome (whether under the description of recklessness or intention) as a form of mens rea sufficient for conviction for some common law crimes, although, strictly speaking, foresight of noncertain consequences is not equivalent to intention.160 1.50 Although foresight of non-certain consequences is not equivalent to intention, it is certainly relevant to a finding of actual intent. A jury may properly infer, in light of evidence, that the accused foresaw a particular outcome and that he or she intended it.161 But this is strictly a matter for the jury. The jury should never be instructed in terms of a presumption that a person intends the natural and probable consequences of his or her acts; such a direction reverses the onus of proof. The rejection of the so-called ‘presumption of intention’162 does not mean that the jury cannot consider evidence of foresight in relation to actual intent, but it does mean that the foreseeability of a consequence or circumstance is not an appropriate matter for the jury to consider. Evidence that the accused adverted to some particular consequence is highly relevant to whether he or she actually intended the prohibited consequence. Such advertence is relevant whatever degree of conviction the accused had that the consequence would ensue.163 In Zaburoni v R [2016] HCA 12, the appellant, a circus performer of some notoriety, was convicted of intentionally causing grievous bodily harm164 to his former partner by infecting her with HIV. The High Court allowed his appeal, setting aside his conviction and substituting it with one of causing grievous bodily harm.165 In reaching their decision, the plurality stated emphatically that a trial judge must never refer to foresight or any similar term when instructing a jury as to the meaning of intent as it applies to the Griffith Code:166

Where proof of the intention to produce a particular result is made an element of liability for an offence under the Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct. … knowledge or foresight of result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code. In the last-mentioned respect, the Code is distinguished from its Commonwealth counterpart, which allows that a person has intention with respect to a result if the person is aware that the result will occur in the ordinary course of events. … Where the accused is aware that, save for some supervening event, his or

[page 26] her conduct will certainly produce a particular result, the inference that the accused intended, by engaging in that conduct, to produce that particular result is compelling. Nonetheless, foresight that conduct will produce a particular result as a ‘virtual certainty’ is of evidential significance and under the Code it remains that the trier of fact must be satisfied that the accused meant to produce the particular result.

Recklessness167 1.51 Most common law crimes that can be committed intentionally can also be committed recklessly.168 Some crimes such as attempt, complicity, and so-called ulterior intent offences may require proof of actual intention. Others, such as murder, have their own specific mens rea (in the case of murder, it is called malice aforethought), defined in terms of knowledge of the probability of harm that is similar to recklessness.169 At common law, murder is committed if the accused causes the victim’s death by an act which he or she knew would probably cause death or grievous bodily harm.170 In R v Crabbe (1985) 156 CLR 464, the High Court noted, in a passage which may have implications beyond homicide, that:171 The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur.

1.52 There is a clear tendency towards allowing recklessness as an alternative form of fault for most common law offences.172 In Vallance v R (1961) 108 CLR 56, Windeyer J noted:173

What a man does is often the best evidence of the purpose he had in mind. The probability that harm will result from a man’s acts may be so great, and so apparent, that it compels an inference that he actually intended to do that harm. Nevertheless, intention is a state of mind. The circumstances and probable consequences of a man’s acts are no more than evidence of his intention … The common law treats what was done recklessly … as if it had been done with actual intent. It says that a man, who actually realizes what must be, or very probably will be, the consequence of what he does, does it intending that consequence. The word ‘intentional’ in the Code carries, I think, these concepts of the common law.

But, as with intention, there are aspects of the concept of recklessness that are vague. It is accepted that in Australian criminal law, recklessness refers to a subjective state of mind. The accused must be aware of the consequences [page 27] flowing from or associated with his or her conduct.174 Showing that an ordinary person in the position of the accused would have perceived a risk does not of itself prove recklessness,175 although some offences176 may be defined in such terms.177 Recklessness implies indifference to a perceived risk, and that the conduct is unjustified.178 1.53 The model Criminal Code provides that a person is reckless with respect to a circumstance (or result) if he or she is aware of a substantial risk that the circumstance exists or will exist (or the result will occur); and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk. This provision requires proof of awareness of circumstance or risk, coupled with the lack of justification for taking the risk. The provision does not clarify the precise relationship between lack of social utility and recklessness. It is suggested that the higher the social utility, the greater the risk of harm that might be justified. Conversely, a complete lack of social utility is not likely to justify even a small risk of harm. Leader-Elliott suggests that the provision is forwardlooking, in the sense that it is irrelevant if, subsequently, it appears that there was no possibility of harm, although the offender was unaware of this at the time. He also suggests that the term ‘substantial risk’ was chosen because of its ‘irreducible indeterminacy of meaning’.179

Negligence and objective fault 1.54 Australian criminal law frequently applies an objective standard in the assessment of fault. An objective standard of fault implies a failure to comply with a reasonable standard of conduct or behaviour. A number of statutory offences are defined in terms that overtly specify negligent conduct as an element of the actus reus.180 At common law, manslaughter is an example of liability for gross negligence.181 For many purposes, gross negligence is treated as a species of mens rea, although there has been some difficulty in articulating the degree of carelessness that characterises criminal wrongdoing. [page 28] 1.55

The Criminal Code (Cth) s 5.5 defines negligence as follows:

A person is negligent with respect to a physical element of an offence if his or her conduct involves: (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and (b) such a high risk that the physical element exists of will exist; that the conduct merits criminal punishment for the offence.

1.56 Under the Griffith Code, an objective fault standard is applied to s 24, in that the accused’s exculpatory mistake of fact must be reasonably held,182 and the accident defence applies in circumstances where the event would not have been foreseeable as a possibility by the ordinary person.183 Furthermore, fatal and nonfatal offences against the person, which include a consequence element,184 can be established by proof of gross negligence in the performance or failure to perform a duty.185 An objective standard is even applied to involuntariness-based psychological blow automatism (see 14.21). 1.57 Under the Criminal Code (NT), a person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his or her conduct, is excused from criminal responsibility for it:186

… if, in all the circumstances, including the chance of it occurring and its nature, a reasonable person similarly circumstanced and having such foresight would have proceeded with that conduct.

1.58 It is sometimes said that negligence (unlike intention and recklessness) does not involve an inquiry into the subjective thinking of the accused, and that it is tested objectively.187 It may, however, be necessary to examine the state of mind of the accused to discover if he or she failed to consider a consequence or a circumstance that ought to have been considered.188 Therefore, his or her state of knowledge or belief may be relevant to the issue of negligence (see 2.18). [page 29] 1.59 The standard of negligent behaviour required for criminal liability will vary according to the offence in question. There is some resistance to the use of negligence as the appropriate mens rea for serious criminal offences;189 however, many offences of a regulatory kind now require proof of negligence only. These are largely offences dealing with traffic matters and regulations directed to social welfare, as in the supply of pure foods and so on. In manslaughter based on criminal negligence, the prosecution must prove negligence amounting to a crime against the State.190 A gross form of negligence implying moral turpitude (and deserving of punishment) is required. Defining gross negligence in terms of conduct deserving of punishment is obviously circular,191 but in fairness it is hard to improve on Lord Hewart’s statement in R v Bateman [1925] All ER Rep 45; 19 Cr App R 8:192 [I]n order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment … It is in a sense a question of degree and it is for the jury to draw the line, but there is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime.

1.60 Where negligence is based upon an omission, a duty to act must first be established. It is not negligence if one omits to do something

that one has no duty to do.193 An objective test requires some external yardstick by which the defendant’s conduct can be judged. To decide whether the accused acted negligently may require that the reasonable person against whom his or her conduct is tested should be given some of the characteristics of the accused. So while an experienced driver might be expected to advert to some possible consequences of his or her driving, it seems unreasonable to require that a recently-licensed and inexperienced driver should be tested in respect of negligent driving at the same level. However, it is uncertain how far one can go in ascribing individual characteristics to the reasonable person in this context. This is a particular problem encountered in relation to those defences that retain some objective control element, such as reasonable mistake of fact, provocation and duress. 1.61 In determining whether the accused actually foresaw some particular consequence, the accused’s experience and expertise are obviously relevant factors. Likewise, in determining whether the defendant ought to have foreseen some particular consequence,194 or should have been aware of some circumstances, it seems relevant to consider any individual characteristic bearing upon his or her ability to do so. [page 30] 1.62 Negligence in criminal law does not prescribe an absolute standard applicable to all. It implies a standard that varies according to the abilities and characteristics of the accused. Whether a person may be said to be deserving of punishment for falling below a standard that for him or her was difficult to attain is a matter of degree. Only by looking at the personal attributes of the accused can a fair determination of that issue be made.195 An inexperienced driver charged with negligence would on this basis be tested against a reasonable person who was inexperienced as a driver.

The presumption that mens rea is required 1.63 In construing statutory provisions, it is sometimes unclear whether an offence involves a particular state of mind, such as foresight, intention or recklessness. In the absence of such an element of fault, a person was liable to be convicted for bringing about the prohibited state of affairs, even without fault. This led to the development by the courts of a presumption of mens rea or ‘guilty mind’. In Sherras v De Rutzen [1895] 1 QB 918, Wright J said:196 There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence, but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered.

In Cameron v Holt (1980) 142 CLR 342; 28 ALR 490, this statement was referred to with approval. The court noted that where a statute creates an offence, the presumption of mens rea can be displaced only when, on the true construction of the statute and having regard to the nature of the penalty and the subject matter of the law, it is clear that the legislative intention was to displace the requirement of mens rea. The courts have often found it difficult to determine whether an offence under consideration is one of strict responsibility or an offence requiring mens rea. Factors such as the nature of the subject matter (serious crime or regulatory offences), the nature of the penalty (imprisonment or fine) and the deterrent potential of conviction are all relevant. The latter is an important aspect. In Lim Chin Aik v R [1963] AC 160; 1 All ER 223, Lord Evershed said:197 But it is not enough in their Lordships’ opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to enquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.

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In He Kaw Teh v R (1985) 157 CLR 523; 15 A Crim R 203, the High Court reviewed the earlier decisions of the court and established new criteria for determining when statutory offences are strict. The judgments reinforce the strength of the presumption in favour of mens rea (see 2.23–2.25).198 1.64 As noted above (see 1.14), the scheme adopted by the model Criminal Code was intended to deal with this very issue by requiring parliamentary counsel to specify the fault elements required for the offence. The classification scheme adopted by the Code follows the common law in distinguishing three distinct categories: mens rea offences, offences of strict responsibility, and offences of absolute responsibility.199 The former, as the name implies, require proof of mens rea in the form of some discrete fault element, such as knowledge, intention and so on. The latter categories do not. Public nuisance and criminal libel are sometimes cited as examples of strict responsibility at common law.200 1.65 Where the offence requires proof of mens rea, the defendant may raise evidence to show lack of the requisite mental state. Where the offence is one of strict responsibility, the defendant is restricted to the defence of mistake of fact considered by the High Court in Proudman v Dayman (1941) 67 CLR 536 (see Chapter 2). Absolute responsibility offences exclude even the defence of honest and reasonable mistake. Such offences are rare.201 Where serious penal provisions apply, there is a strong presumption against absolute liability. Although this is a description of the common law principles that have emerged over the past century, they provide a fair description of the basic structure of liability provided under the model Criminal Code.

The relevance of time 1.66 A basic principle of criminal responsibility is that the act and the criminal intent or fault element must coincide in point of time. In Fowler v Padget (1798) 7 TR 509; 101 ER 1103, Lord Kenyon said:202 [I]t is a principle of natural justice, and of our law, that actus non facit reum nisi mens sit rea. The intent and the act must both concur to constitute the crime.

[page 32] This principle often arises in unusual factual circumstances. In the Victorian case of R v Scott [1967] VR 276, the appellant was convicted under s 35 of the Gaols Act 1958 (Vic) with escape from custody. He said that he did not become aware of his escape until 2 days after his departure from custody. He claimed to have been attacked by another prisoner and struck on the head with a piece of timber. He had no recollection of leaving the place where he was working. It was held that the offence could not be committed where the act of withdrawal and the intention of escaping did not concur. 1.67 In some offences where the actus reus comprises a continuing state of affairs, such as being in possession of drugs, it is enough that the mens rea appropriate to the offence occurs with the continuing circumstances at some stage during their continuance. The actus reus of assault continues while force is being applied.203 The position is similar in respect of sexual assault and rape. Therefore, the withdrawal of consent during sexual intercourse will convert lawful intercourse into an unlawful act.204 Where, however, a single act is required, problems of contemporaneity may arise. The actus reus and the fault element must co-exist at the same time. It will not be sufficient to show, for example, that the accused had an earlier intention of killing his spouse and, after that intention had been abandoned, accidentally killed her; or that the accused accidentally killed her husband and immediately thereafter adopted the killing. Problems also arise where the accused produces a prohibited result as a consequence of a series of acts, but the final act that causes the prohibited result is not accompanied by the requisite mental state.

The absence of any matter of justification or excuse 1.68 The absence of any matter of justification or excuse is a critical aspect of the notion of criminal responsibility. A person acting under, for example, self-defence, duress, reasonable mistake of fact or insanity is not criminally responsible for what might otherwise be culpable

conduct. The remaining chapters of this book are taken up with a detailed discussion of specific defences, many of which have a rich, and in some cases controversial, history. Criminal law is a dynamic field and invites social participation and commentary to a significant degree. 1.69 The term ‘criminal defence’ may be broadly defined to include any answer to a criminal charge or any claim that, if accepted, would necessitate an acquittal.205 Under this definition, a claim that the defendant was acting in self-defence would constitute a defence; so too the claim that he or she had not caused the prohibited consequence.206 As noted by the plurality in CTM v R (2008) 236 CLR 440; [2008] HCA 25; (2008) 185 A Crim R 188:207 [page 33] References to arguments raised on behalf of the accused at a criminal trial as a defence, or a ground of exculpation, may be harmless enough if they do not pre-empt questions of onus of proof. People understandably feel the need to call them something, and the adversarial setting of a trial leads judges and practitioners sometimes to refer to any point relied upon by an accused as a defence … Such descriptions have their dangers, but the shorthand may be convenient provided it is understood for what it is.

The subject matter of this book consists of a subset of all such defences so defined, and focuses on substantive defences such as self-defence, provocation, duress and necessity; and mental condition defences such as intoxication, insanity and automatism. There are important points of difference between these groups of defences. For example, mental condition defences operate by negating a fault element required by the definition of the crime. Substantive defences such as self-defence and duress exonerate an act which would otherwise be criminal. Mental condition defences such as self-induced intoxication displace an element of fault, such as intention, and thus operate at a prior logical stage. 1.70 A person is not criminally responsible for conduct that is either justified or excused. For certain purposes, it may be helpful to draw a distinction between defences which operate by way of justification and those which provide merely an excuse.208 A justification involves

socially approved conduct and therefore, intuitively, should not call for punishment. Purely defensive action against an unlawful attack by an aggressor would nearly always be seen as worthy of praise rather than condemnation. Self-defence is a classic case of justification. Justifications are usually situational and do not depend on factors personal to the accused. By contrast, an excuse invariably involves factors personal to the accused. For example, the actions of a person acting under a reasonable mistake of fact would be seen as excusable rather than commendable. Similarly, the blameworthiness of a person acting under duress or provocation may be significantly reduced, although his or her conduct will still be seen as worthy of condemnation, even if that condemnation is muted by personal mitigating factors. 1.71 At one time the distinction was of vital importance, especially in relation to homicide, where the punishment to be suffered depended on whether the case was one of justifiable or excusable homicide. Justifiable homicide was commendable and led to a complete acquittal, whereas excusable homicide required a pardon and involved possible forfeiture.209 A proportionate response to threatened bodily harm would be justified; one who responded to sudden provocation was merely excused. After the abolition of forfeiture in 1828 the distinction ceased to have dispositional consequences in homicide, although its importance did not entirely disappear.210 1.72 While the distinction between justification and excuse is not formally recognised in the modern criminal law, it may have some practical relevance to complex moral situations such as the defence of necessity (see 6.7). Some defences do not fall neatly into one category or the other. Necessity, for example, is easily [page 34] seen as a justification where a course of action entails the lesser of two evils; for example, saving five people by taking one person’s life, when

the actor has no personal interest other than to minimise loss of life. It is less easy to do so when the stakes are reversed, such as deliberately taking five lives not otherwise in peril in order to save one, where the person saved is a personal relation, say a child or a partner. The personal interest creates a conflict of interest that may transform the social judgement from commendation to forgiveness — for who could be expected to act differently even though it might not be ‘right’?

The process of proof Onus and burden of proof 1.73 The onus of proving the guilt of the accused rests upon the prosecution.211 This principle was famously described by Viscount Sankey in 1935 as the ‘golden thread’ running through the common law.212 Although of relatively recent origin, the principle is firmly established as part of the common law of Australia and it has been adopted by implication under the various Australian Criminal Codes.213 It has been described by members of the High Court as a ‘fundamental principle of the common law of Australia’214 and a ‘cardinal principle of our system of justice’.215 The principle has two aspects: first, the prosecution carries the burden of proving the elements of the offence; and second, the prosecution must disprove any defence that is properly raised by the evidence. In each case the requisite standard required is proof beyond reasonable doubt (see 1.75).216 Insanity is a recognised exception to the common law rule,217 and any number of statutory exceptions may be found as well. It is up to the defence to prove on the balance of probabilities that the accused was insane at the time of the alleged offence or that one of the statutory exceptions applies. These are intended by parliament to overcome difficulties of proof, particularly in relation to drug enforcement and national security.218 (See 11.57 for a critique of a statutory reversal.) [page 35]

1.74 It is important to emphasise that the mere characterisation of some matter as a ‘defence’ does not cast a burden of proof upon the defendant. As noted by the High Court in Taiapa v R (2009) 240 CLR 95; [2009] HCA 53:219 While it is conventional to describe s 31(1)(d) as providing the defence of compulsion, it is well-settled that if there is some evidence capable of raising the issue, the legal or persuasive burden is on the Crown to exclude the proposition that the accused was acting under compulsion beyond reasonable doubt … The question is whether, on the version of events most favourable to the accused that is suggested by the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused was not acting under compulsion. It was not disputed that the onus on that question — an evidential burden — is on the accused. It is the accused who must tender evidence, or point to prosecution evidence, to that effect.

Proof beyond reasonable doubt 1.75 The standard of proof required in a criminal trial is proof beyond reasonable doubt. As to the meaning of ‘beyond reasonable doubt’, the established view is that it is irreducible and should not be the subject of judicial expansion or redefinition. Indeed, many trials have miscarried because of judicial attempts to scale this Mount Olympus by directing the jury as to the meaning of the phrase.220 In R v CBK [2014] QCA 35, McMurdo P cited the Queensland Supreme and District Courts’ Benchbook, which states:221 For the prosecution to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt that he is guilty. This means that in order to convict you must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged … It for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence … If you are left with a reasonable doubt about guilt, your duty is to acquit: that is, to find the defendant not guilty. If you are not left with any such doubt, your duty is to convict: that is, to find the defendant guilty.

Her Honour goes on to state:222 Footnotes to that direction explain that a trial judge should not expand on the meaning of ‘reasonable doubt’ or attempt to define the concept any further than in the model direction, unless the jury asks for assistance. In that case, the benchbook provides a further model direction: A reasonable doubt is such a doubt as you, the jury, consider to be reasonable on a consideration of the evidence. It is therefore for you, and each of you, to say whether you have a doubt you consider reasonable. If at

the end of your deliberations, you, as reasonable persons, have such a doubt about the guilt of the defendant, the charge has not been proved beyond reasonable doubt.

1.76 But, as with many aspects of the criminal law, radical change is afoot. Thus s 63 of the Jury Directions Act 2015 (Vic) permits the judge to give the jury an explanation of the phrase ‘beyond reasonable doubt’ if the jury asks the [page 36] trial judge a direct question about the meaning of the phrase or a question that indirectly raises its meaning. Section 61 of the Act states that unless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are: (a) the elements of the offence charged or an alternative offence; and (b) the absence of any relevant defence. The Act constitutes a wholesale reform of the law relating to jury directions and is likely to have a major impact on the conduct of criminal trials. 1.77 At a criminal trial, as noted above the burden of proving the guilt of the prisoner beyond reasonable doubt rests upon the prosecution. This is called the probative or legal burden. The evidential burden refers to the burden of producing evidence sufficient to raise an issue for the jury’s consideration.223 An evidential burden in relation to particular matters may shift from one party to the other in the course of a trial. The issue need not be positively resolved in favour of the party seeking to raise it. 1.78 Where a provision is construed to cast a probative burden upon the accused, it will be interpreted, in the absence of clear words, as requiring proof to the civil standard, that is, on the balance of probabilities. There is, however, nothing to stop parliament requiring the accused to prove his or her innocence to some higher standard, but it is submitted that very clear words are required to achieve this purpose.224

1.79 In relation to summary offences, there are general provisions relating to exemptions and exceptions that have the potential to reverse the burden of proof.225 Such statutory provisions generally derive from Jervis’ Act (1848) 11 and 12 Vic C43 (UK). It is by no means clear that such provisions do reverse the burden of proof. If the ‘description of the offence’ includes an exception its absence then constitutes an element of the offence which must be proved by the prosecutor.226 An exception or excuse falling within the peculiar knowledge of the accused may have to be proved by him or her, but whether this is a general rule may be doubted.227 The rule does not, for example, apply to non-statutory offences.228 The Criminal Code (Cth) provides in s 13.3(3) that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. Under s 13.4 of the Criminal Code (Cth), a legal burden can be imposed only if the statute expressly specifies that the burden is a legal burden. [page 37] 1.80 When discussing proof in a criminal trial, especially in relation to the distinction between evidential and probative burdens, it is worth noting that factual material may serve more than one purpose in a criminal trial. For example, evidence showing that the accused lost selfcontrol as a result of things said or done by the deceased may be tendered to negate a conscious act by which the accused intended to kill; it may also activate a qualified defence of provocation on the assumption that the requisite intent to kill was formed but was qualified by the underlying provocation (see Chapter 11). Similarly, evidence that the accused was suffering from a mental disturbance may be tendered to negate voluntariness or intent; it may also be tendered to activate a defence of diminished responsibility or insanity. The purpose for which the evidence is tendered may have a bearing upon the burden of proof (see Chapter 13). Moreover, an exculpatory element may form an implicit or covert element within the fault element (mens rea) of the

crime charged. For example, the absence of consent is a definitional element of assault; the absence of a claim of right is an aspect of the fault element of larceny. An exculpatory element becomes overt when it is put in issue by evidence. 1.81 A related issue concerns the need in some cases for an extended unanimity direction. Recent decisional law has considered whether it is necessary for the jury to reach agreement on a particular route to reach a verdict, in cases where there are a number of possible explanations for a particular outcome. For example, if the prosecution contends that a blow struck by the defendant caused the death, or that death occurred as a result of asphyxiation caused by the defendant, the case is unlikely to require an extended unanimity direction;229 but where there is a factual basis upon which different conclusions could be reached, then a direction on jury unanimity would be required.230

Jury deliberations 1.82 A passing familiarity with criminal law practice reveals that it is capable of generating complex questions of fact and law. Under the standard model the trial judge sums up the evidence and directs the jury as to the applicable law before the jury retires to consider its verdict. The jury has the responsibility of determining the facts and applying the law. There has been a dearth of study into the capacity of jurors to understand what is put to them during the summing up. Indeed, until recently there was strong opposition to any empirical research into the actual process of jury deliberations.231 There is little doubt that for the most part individual jurors approach their task as one of solemn duty, and faithfully apply the law as explained by the judge. A heavy burden rests on the judge to explain to the jury the legal rules relevant to the circumstances of the case. Counsel also has an important role in narrowing the facts and identifying the applicable law. Recent efforts have been aimed at reducing the scope for error, recognising the limitation of human recall and cognition, especially in the high stress environment of a criminal trial. Over the past decade there has been a greater use of written as

[page 38] opposed to oral directions.232 This has allowed for greater participation by counsel in agreeing to the form and substance of the directions to be put to the jury. In some cases, the written directions amount to little more than a checklist of salient matters. In Pollock v R (2010) 242 CLR 233; 203 A Crim R 321, the High Court was critical of over-reliance on a model direction that included a sevenfold test that was not specifically adapted to the case. The court stated:233 In every case in which provocation is raised it is necessary for the trial judge to explain the concept and the ways in which the prosecution may eliminate it. Model directions, when appropriately adapted to the case, may assist trial judges in this task, but model directions must not be used in a way that distracts attention from the central task of the judge in instructing the jury. That task is to identify the real issues in the case and to relate the directions of law to those issues. The seven propositions identified by the Court of Appeal in the earlier appeal in this matter were not intended to be used as a template for jury directions. That they came to be included in the Bench Book may explain their use by the trial judge and trial counsel’s acquiescence in that course. But, as these reasons explain, their use in this case misdirected the jury.

Of greater interest and suitability is the growing use of ‘question trails’ — questions to be answered in a particular sequence, where the answer to a particular question determines the path to be followed along the question trail, thus leading to a final conclusion on the ultimate issue of guilt. This sort of decision-making procedure is sometimes called a ‘decision tree’. This may involve a degree of integration of the legal and factual issues — so-called ‘integrated directions’.234 Attempts to simplify the process of jury deliberations will no doubt continue and are highly beneficial as long as the words used or the structure of questions do not undermine or contradict the fundamental requirement of proof beyond reasonable doubt. For example, question trails that lead inadvertently to a reversal of the burden of proof, especially when dealing with circumstantial evidence,235 or in relation to the exclusion of defences such as self-defence or provocation,236 must be guarded against and will invalidate the process. 1.83 The topic of jury deliberations has been the subject of extensive study by law reform bodies in Queensland,237 New South Wales238 and

Victoria.239 In 2009, the Victorian Law Reform Commission recommended codification of the law of jury directions, a recommendation implemented in 2013 in the Jury Directions [page 39] Act 2013 (Vic). The Act was reenacted with amendments in 2015, and s 67 allows for the giving of integrated directions. The Jury Directions Act 2015 (Vic) could significantly change a trial judge’s obligation to direct a jury on matters raised by the evidence. The Act states that defence counsel must inform the trial judge as to any defence that it considers, on the evidence before the court, is or is not in issue. Defence counsel must then request that the trial judge give or refrain from giving a direction to the jury in respect to the defence. The trial judge must comply with the request unless there are good reasons not to do so.240 In circumstances where defence counsel fails to request a direction, the trial judge must only give a direction on a defence when there are substantial and compelling reasons to do so.241 In 2012, the New South Wales Law Reform Commission rejected both codification and the use of standard ‘model’ directions, which it regarded as inflexible. The commission adopted a more traditional approach based on the common law while recommending the use of the Benchbook developed by the Criminal Trials Court Benchbook Committee of the Judicial Commission of New South Wales.242

Aboriginality and customary law 1.84 Aboriginal customary law is recognised for certain limited purposes in the statute law of Australia.243 For example, the Evidence Act 1995 (NSW) defines the ‘traditional laws and customs’ of an Aboriginal or Torres Strait Islander group (including a kinship group) to include any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group. In many parts of Australia such traditional laws and customs are deeply relevant to

community members.244 The Evidence Act (NSW) provides one example of the statutory recognition of aboriginal customary law.245 Statutory recognition of aboriginal customary law is complemented by the doctrine of native title. For example, in Yanner v Eaton (1999) 107 A Crim R 551; [1999] HCA 53, the defendant took two juvenile estuarine crocodiles and was subsequently charged under s 54(1)(a) of the Fauna Conservation Act 1974 (Qld). The evidence was that the crocodiles were killed and eaten. The High Court held that the right to hunt native fauna was an aspect of native title that was expressly preserved by the Native Title Act 1993 (Cth) s 211 and was not capable of extinguishment by the Queensland legislation.246 [page 40] 1.85 There is an interesting question as to the extent to which, and purposes for which, such traditional belief systems are relevant to criminal responsibility.247 The intersection of aboriginal customary law with mainstream law is a source of considerable tension. Quite apart from the relevance of traditional belief systems, in some cases ethnic identity may itself be relevant to criminal liability. Consider, for example, the offence of entering without permission the Anangu Pitjantjatjaraku Yankunytjatjara (APY) Lands in South Australia. Section 19(1) of the Anangu Pitjantjatjara Land Rights Act 1981 (SA) provides: ‘A person (not being an Anangu) who enters the lands without the permission of Anangu Pitjantjatjara Yankunytjatjara is guilty of an offence …’. 1.86 Despite these interesting examples it is now well settled that the passage of criminal law statutes of general application is taken to have extinguished any conflicting body of Aboriginal customary law.248 All persons, regardless of ethnic or first nation status, are equally subject to the general criminal law. It would be discriminatory to hold otherwise. No immunity from the criminal law is granted to any person, including the original aboriginal inhabitants of Australia, and even when living in traditional communities.

1.87 Traditional practices may, however, be relevant to criminal responsibility in subtle ways. It is one thing to say that all persons are subject to the general law, but another to deny the relevance of particular belief systems in applying that law. An argument that customary law should determine directly the lawfulness of particular conduct would negate the application of the general criminal law. As Doyle CJ noted in the South Australian case of R v Warren (1996) 88 A Crim R 78:249 If the accused had argued that customary law applied to them of its own force, and that by reason of that their conduct was lawful, such an argument would of necessity negate the application of the general criminal law. By the general criminal law their conduct was unlawful, subject to the issue of duress. According to customary law, as described by them, their conduct was lawful. It is not possible for two bodies of law to operate within the one territory and impose conflicting demands or requirements upon the one individual, unless there is some rule to determine what is to happen in the event of a conflict. Section 109 of our Constitution is such a provision dealing with conflicts between Commonwealth law and State law.

Doyle CJ added that customary law could be relevant to the question of whether an aboriginal appellant was acting under duress at the relevant time, for fear of the application of sanctions within the framework of customary law. This case illustrates how customary law may be accommodated within the general precepts of criminal law, especially in relation to defences such as duress and provocation, where the subjective characteristics of the accused may have some relevance (see Chapters 8 (‘Duress, Compulsion and Coercion’) and 11 (‘Provocation’)). In this way, the content of Aboriginal customary law may have an important bearing upon the assessment of criminal responsibility, not by way of substitution for common law or statutory laws but as an integral part of the concept of fault. [page 41]

Aboriginality and sentencing 1.88 The relevance of ethnic identity and customary law observances in the area of sentencing is a controversial topic. It has been the subject

of considerable decisional law250 and numerous law reform commission reports over past decades.251 We consider it important to include some remarks on this topic, even in a book dealing with criminal defences, given the centrality of punishment to criminal justice. The leading case is Neal v R (1982) 149 CLR 305; [1982] HCA 55, where Brennan J said:252 The same sentencing principles are to be applied … in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group.

R v Miyatatawuy (1996) 6 NTLR 44; [1996] NTSC 84 reflects a highwater mark of judicial benignity. In that case, the defendant stabbed her husband while they were both drunk and punctured his lung. He made a full recovery after a few days in hospital. She pleaded guilty to causing bodily harm and was placed on a good behaviour bond, although in stabbing her husband she had breached an earlier bond. There was much in favour of the accused, including exceptional evidence of changed behaviour, including giving up alcohol and reconciling with her husband. The husband was an elder and spoke strongly in favour of the importance of customary law in achieving reconciliation. The learned Chief Justice considered this to be an important element. Martin CJ said:253 A most significant circumstance bearing upon the sentence was that concerning the resolution or settlement of matters within the relevant aboriginal community and the integral rehabilitation of the offender. In Walter v New South Wales (1994) 182 CLR 45 at 50 Mason CJ said that the customary criminal law of Aboriginal people was extinguished by the passage of criminal statutes of general application. However that may be, it seems to me that facts and circumstances arising from this offender’s aboriginality remain relevant (Brennan J, Neal v The Queen (1982) 7 A Crim R 129 at 145). They arise from the operation within aboriginal communities of practices affecting her. The Courts are entitled to pay regard to those matters as relevant circumstances in the sentencing process.

1.89 But in Munda v Western Australia (2013) 249 CLR 600, a case involving the drunken killing of the accused’s de facto wife, the plurality stressed:254 It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by

persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of

[page 42] human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.

1.90 The fact that the offender is liable to receive some form of tribal punishment (‘makarrata’ or ‘payback’) may be submitted as a relevant factor in mitigation.255 In Munda, the High Court refrained from commenting upon this issue, noting:256 The possibility that the appellant may, at some time in the future, face corporal punishment by way of payback was taken into account in his favour by the sentencing judge. The respondent accepted that that possibility is a factor relevant to sentencing. The Court of Appeal did not take a different view; and the respondent did not argue that this Court should take a different view. In these circumstances, this case does not afford an occasion to express a concluded view on the question whether the prospect of such punishment is a consideration relevant to the imposition of a proper sentence, given that the courts should not condone the commission of an offence or the pursuit of vendettas, which are an affront and a challenge to the due administration of justice. It is sufficient to say that the appellant did not suffer any injustice by reason of the circumstance that the prospect of payback was given only limited weight in his favour by the courts below.257

1.91 In Bugmy v R (2013) 249 CLR 571; (2013) 229 A Crim R 337; [2013] HCA 37, the High Court held that the fact that the defendant was a member of a cultural or ethnic group that had been systemically disadvantaged was not of itself a mitigating factor, for this would be to undercut the fundamental principle of sentencing that each sentence must be adapted to the individual offender, and the impact of systematic disadvantage upon the offender was a matter of evidence. Conversely, there were circumstances in which evidence of individual disadvantage might be relevant as a factor in mitigation.258

1.92 Alcoholism is widely recognised as a prime cause of social dysfunction among aboriginal communities in parts of Australia. One consequence of alcohol [page 43] abuse is the chronic overrepresentation of Aboriginal and Torres Strait Islander individuals in the criminal justice system. The rate of incarceration, including and especially juvenile imprisonment, is, according to the Human Rights Commission, at crisis levels.259 Criminal lawyers working in the Northern Territory, Western Australia and Queensland experience this reality on a daily basis.260 In 2007, a report commissioned by the Northern Territory Government found widespread sexual abuse of children.261 The federal government response to the report was swift.262 Relying on the plenary constitutional power to legislate for the territories, it passed a package of measures designed to restrict alcohol, increase policing, and link income support to school attendance.263 One significant measure for present purposes was the legislative exclusion of customary law or cultural practice from the sentencing process in relation to federal264 and Northern Territory offences.265 As evident from the case law referred to above, the role of aboriginal customary law in sentencing had been somewhat contentious and the new law prohibited a sentencing court from taking into account any form of customary law or cultural practice as a reason for ‘excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates’.266 The response of the crisis in the Northern Territory has been strongly criticised.267 The interminable suffering in Indigenous communities shows no sign of abating.

1. 2.

See G Woods, A History of Criminal Law in New South Wales: The Colonial Period, 1788–1900, Federation Press, Sydney, 2002. See D Hill, 1788, The Brutal Truth of the First Fleet, William Heinemann, North Sydney, NSW, 2009, pp 6–11.

3.

4.

5. 6. 7.

8.

9. 10.

11.

12. 13.

14. 15.

For example, a non-exhaustive list would include: Criminal Law Amendment Act 1883 (NSW); Crimes Act 1854 (SA); Larceny Act 1863 (Tas); Offences Against the Person Act 1885 (Tas); Crimes Act 1890 (Vic). Canada’s first Prime Minister, Sir John A MacDonald, saw securing federal power over criminal law as a critical element to nation-building: B Wright, ‘Self-Governing Codifications of English Criminal Law and Empire: The Queensland and Canadian Examples’ (2007) 26 University of Queensland Law Journal 39–65. Commonwealth of Australia Constitution Act s 51(xxiv). Commonwealth of Australia Constitution Act s 51(xxviii). O’Meara v McTackett (2004) 172 ALR 342; [2000] HCA 32; Leask v Commonwealth (1996) 187 CLR 579; [1996] HCA 29; Attorney-General for the Commonwealth v Colonial Sugar Refining Co Ltd (1913) 17 CLR 644; [1913] UKPCHCA 4; (1914) AC 237. The Commonwealth Parliament has plenary power under s 122 of the Commonwealth of Australia Constitution Act to legislate for the territories (‘the Territories power’): Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29. The Commonwealth exercised this power in 2007 with the Northern Territory National Emergency Response Act 2007 (Cth). Commonwealth of Australia Constitution Act s 109. See Thompson v R (1989) 169 CLR 1; 41 A Crim R 134; [1989] HCA 30; M Goode, ‘The Tortured Tale of Criminal Jurisdiction’ (1997) 21 Melbourne University Law Review 411. An interesting example of the jurisdictional issues that can arise is found in Mercorella v The Secretary to the Department of Justice [2015] VSC 18, where Weinberg JA granted habeas corpus to release a person whose parole had been cancelled because of an earlier conviction in South Australia in an unrelated matter committed prior to the commission of the offence for which the defendant was paroled in Victoria. The need for harmonisation and convergence of criminal laws within a federal system has received more attention in Europe than in Australia: see, for example, A Klip, ‘Harmonisation and Harmonising Effects in Criminal Law’ in J Nijboer and W Sprangers (eds), Harmonisation in Forensic Expertise: An Inquiry into the Desirability of and Opportunities for International Standards, Thela Thesis Publishers, Amsterdam, 2000, p 67; L Visscher, ‘A Law and Economics View on Harmonisation of Procedural Law’ in X Kramer and C Rhee, Civil Litigation in a Globalising World, Springer, Amsterdam, 2012, pp 65–91; E Husabø and A Strandbakken (eds), Harmonization of Criminal Law in Europe, Intersentia, Antwerpen, 2005. For a rare Australian perspective, see S Garkawe and M O’Connell, ‘The Need for a Federal, Australia-Wide Approach to Issues Concerning Crime Victims’ (2006–07) 18 Current Issues in Criminal Justice 488. See W Hearn, The Theory of Legal Duties and Rights Australian, Colonial Law Monographs, Melbourne, 1883, p 378. See Criminal Code Act 1899 (Qld). The Griffith Code has been transplanted to other places, including Israel, Nigeria, Papua New Guinea and Fiji: see R O’Regan, New Essays on the Australian Criminal Code, Law Book Co, Sydney, 1988; G MacKenzie, ‘An Enduring Influence: Sir Samuel Griffith and his Contribution to Criminal Justice in Queensland’ (2002) 2 Queensland University of Technology Law & Justice Journal 53. The term ‘Griffith Code’ is used in this work to refer to the Criminal Codes in force in Queensland and Western Australia. B Wright, W Chan and S Yeo (eds), Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform, Ashgate, UK, 2011; B

16. 17. 18. 19. 20.

21. 22. 23.

24. 25.

26.

27. 28.

29. 30. 31. 32.

Wright, ‘Self-Governing Codifications of English Criminal Law and Empire: The Queensland and Canadian Examples’ (2007) 26(1) University of Queensland Law Journal 39; A Cadoppi and K Cullinane, ‘The Zardanelli Code and Codification in the Countries of the Common Law’ (2000) 7 James Cook University Law Review 116. Criminal Code (Qld) s 36(1). See Criminal Code Act 1902 (WA); Criminal Code Act 1913 (WA) See G Taylor, ‘The Victorian Criminal Code’ (2004) University of Queensland Law Journal 170. See J D Heydon, ‘Reflections on James Fitzjames Stephen’ (2010) 29(1) University of Queensland Law Journal 43. The Criminal Code 1983 (NT) is based on the Griffith Code with some unique features such as a wholly subjective fault element contained in s 31. The Code has been the subject of extensive amendment, with the gradual phase in of the criminal responsibility provisions of the model Criminal Code: see 1.10. Crimes Act 1900 (NSW); Criminal Law Consolidation Act 1935 (SA); Crimes Act 1958 (Vic). For example, in both Queensland and Western Australia, the law relating to drugs is found in a discrete statute: Drugs Misuse Act 1986 (Qld); Misuse of Drugs Act 1981 (WA). For example, Criminal Code (Tas) s 4(3), which excludes the principles of criminal responsibility from offences tried summarily, subject to the exception expressed in Acts Interpretation Act 1931 (Tas) s 36. See also Criminal Code (Qld) s 36(2); Regulatory Offences Act 1985 (Qld). See, for example, in Victoria, the abolition of duress at common law: Crimes Act 1958 (Vic) s 322Q. Brennan v R (1936) 55 CLR 253 at 263; Vallance v R (1961) 108 CLR 56 at 78; Stuart v R (1974) 134 CLR 426 at 437; R v Willmot (No 2) [1985] 2 Qd R 413; 18 A Crim R 42 at 46. The proper approach to the interpretation of the Codes has been explored in many cases. See R v LK (2010) 241 CLR 177; [2010] HCA 17 at [96]. In Campbell v Western Australia [2016] WASCA 156, McClure P (at [14]) gives many examples where the common law had been examined to ascertain the proper meaning of provisions of the Western Australian Criminal Code. Timbu Kolian v R (1968) 119 CLR 47 at 62–3 per Windeyer J. At federation, the judicial power of the Commonwealth was vested in the High Court of Australia, in such other federal courts as the parliament creates, and in such other courts as it invests with federal jurisdiction: Commonwealth of Australia Constitution Act s 71. Section 77(iii) of the Constitution granted the parliament the power to invest any court of the state with federal jurisdiction. In 1903, the parliament provided that the ‘several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it …’: Judiciary Act 1903 (Cth) s 39(2). Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24. See Crimes Act 1914 (Cth) s 4; Judiciary Act 1903 (Cth) s 80. Judiciary Act 1903 (Cth) ss 68, 80. Attorney-General’s Department, Australia, Review of Commonwealth Criminal Law, Interim Report: Principles of Criminal Responsibility and Other Matters, AGPS, Canberra,

33.

34.

35.

36.

37. 38.

39.

40. 41. 42. 43. 44.

1990. For a discussion of the history of the Commonwealth Criminal Code, see R v LK (2010) 241 CLR 177; [2010] HCA 17 at [51], [99]. See also G McDonald, ‘Towards a National Criminal Law; An Overview of the Model Criminal Code Project’ (1995–96) 68 Reform 16; J Hinchcliffe, ‘Commonwealth Criminal Code — 10 years On’, Federal Crime and Sentencing Conference, 11 and 12 February 2012, Canberra, . Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, Chapter 2: General Principles of Criminal Responsibility, Final Report. The Premier’s Leaders Forum and the Commonwealth Government committed to the implementation of the model Criminal Code by 2001. Unfortunately, the withdrawal of Queensland from the project in 1997 put paid to hopes of a national code. The Queensland Parliament passed a new Criminal Code in 1995 but it was not proclaimed: see Criminal Code 1995 (Qld). For 20 years of observations by Matthew Goode, see ‘Codification of the Australian Criminal Law’ (1992) 16 Criminal Law Journal 5; ‘Codification of the Criminal Law’ (2004) 28 Criminal Law Journal 226; ‘An evaluation of judicial interpretations of the Australian Model Criminal Code’ in Wright, Chan and Yeo, above n 15, p 313. Some 10 years after the introduction of the Criminal Code, Justice Heydon, in a dissenting decision conspicuous for its brevity, described with typical acerbic bluntness aspects of the Criminal Code as embodying the vanity of human wishes. ‘That criminal litigation under the Code is conducted with any semblance of ordered justice is a tribute to the Australian legal profession, not to the Commonwealth legislature: Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA 43 at [47]. A good example of the model Criminal Code working at its best may be found in the short unanimous judgment of the High Court in Li v Chief of Army (2013) 203 ALR 297; [2013] HCA 49. I Leader-Elliott, The Commonwealth Criminal Code: A Guide for Practitioners, Commonwealth Attorney-General’s Department, Canberra, 2002, pp 3–5. See Criminal Code 2002 (ACT). The provisions of the model Criminal Code will be of general application as of 17 July 2017. Until that date, the model Criminal Code applies to offences enacted after 2003 and to any other offence where one of two conditions specified in s 8(1) of the Criminal Code 2002 (ACT) is satisfied. For all other offences, the common law applies. See Criminal Code Amendment (Criminal Responsibility Reform) Act 2005 (NT); Criminal Code 1983 (NT) s 43AA. See also P Fairall and S Oliver, ‘Finding Fault: Reform in the Northern Territory Criminal Code’ (2005) 4 Balance: Journal of the Law Society Northern Territory 4; A Hemming, ‘The Criminal Code (Cth) Comes to the Northern Territory: Why Did the Original Criminal Code 1983 (NT) Last Only 20 Years?’ (2010) 35 University of Western Australia Law Review 119. A Hemming, ‘Why the Queensland, Western Australian and Tasmanian Criminal Codes are Anachronisms’ (2012) 31 University of Tasmania Law Review 1. See I Leader-Elliot, ‘The Australian Criminal Code: Time for Some Changes’ (2009) 37 Federal Law Review 205. Griffith CJ, Letter to the Attorney-General, Draft of a Code of Criminal Law, 1897, p x. Criminal Code (Qld) s 23(2); Criminal Code (WA) s 23(1). Criminal Code (Qld) ss 23(1)(a), (1)(b), 25, 27, 31(1)(d); Criminal Code (WA) ss 23A(2), 23B(2), 25(2), 27, 32(1).

45. 46. 47. 48. 49. 50.

51.

52.

53.

54. 55.

56.

57. 58.

59.

Criminal Code (Qld) ss 269, 271, 272; Criminal Code (WA) ss 246, 248. Criminal Code (Cth) s 2.1. See Goode, 1992; 1997; 2004, above n 35. E Colvin, ‘Ordinary and Reasonable People: The Design of Objective Tests of Criminal Responsibility’ (2001) 27(2) Monash University Law Review 197. Leader-Elliott, above n 37, p 344. Where parliament has legislative power with respect to a particular subject matter, it has the implied power to legislate the necessary enforcement mechanism to achieve its legislative purpose. Each grant of legislative power carries with it so much as may be reasonably necessary to give effect to the grant of power. ‘The power of the Parliament to create criminal offences is incidental to the power to legislate with respect to the specific matters enumerated in pars (i) to (xxxviii) of s.51. And s.51(xxxix) gives to the Parliament express power to legislate with respect to matters incidental to the execution of any power vested by the Constitution in Parliament’: Polyukhovich v R (War Crimes Act case) (1991) 172 CLR 501; [1991] HCA 32 at [21] per Dawson J; see also at [16] per Brennan J. The Commonwealth Parliament has power to legislate with respect to criminal law under various heads of power, including the defence power (s 51(vi)), the external affairs power (s 51(xxix)) and the incidental power (s 51(xxxix)). The states and territories have plenary power with respect to criminal law. Where an act or omission constitutes an offence against a law of a territory, the validity of that law is not affected merely because the act or omission also constitutes an offence against a law of the Commonwealth: Crimes Act 1914 (Cth) s 4C. See, for example, Buckman v R [2013] NSWCCA 258 at [85] (deeming provisions in s 29 of the Drug Misuse and Trafficking Act 1985 (NSW) (the Drug Act) not inconsistent with Pt 9.1 of the Criminal Code Act 1995 (Cth)); Gedeon v R (2013) 237 A Crim R 326; [2013] NSWCCA 257 (s 25(2) of the Drug Act not inconsistent with s 233B of the Customs Act 1901 (Cth)); Cvetanovski v R [2015] VSCA 65 (different treatment of a particular substance (Phenyl-2-Propanone) in Commonwealth and state legislation). Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 at 136–7; [1932] HCA 40 per Dixon J. This is sometimes called ‘direct inconsistency’. ‘Where … the offender has been punished for that offence under the law of the State or the law of the Territory, as the case may be, the offender shall not be liable to be punished for the offence under the law of the Commonwealth’: Crimes Act 1914 (Cth) s 4C(2). See, for example, Collins v The Secretary of State for Justice [2016] EWHC 33 at [36]– [64]. The court considered at length whether the law permitting the use of force in the protection of a dwelling was consistent with the right to life under art 2 of the European Convention on Human Rights. The legislation provided that force other than grossly disproportionate force may be excused. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 36. The Victorian Court of Appeal issued a Declaration of Inconsistent Interpretation under s 36 of the Charter. (2011) 245 CLR 1 at 191, [480] per Heydon J; at 114–15, [251]–[256] per Gummow J; at 236–7, [644]–[645] per Crennan and Kiefel JJ. There are earlier indications to the contrary: see Hume v Palmer (1926) 38 CLR 441 at 448, 450–1, 461–2; [1926] HCA 50; referred to in Attorney-General (Qld) v Williams [2014] QSC 192 at [32]. See P Johnson, ‘Consistency in Sentencing for Federal Offences — Challenges for Sentencing Courts in an Evolving Landscape’ [2012] NSW Judicial Scholarship 6. Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 at 136–7; [1932] HCA 40 per

60.

61.

62.

63. 64.

65. 66.

67.

68. 69.

70. 71.

Dixon J. A somewhat unlikely scenario would be the emergence during the course of a murder trial in Tasmania or Queensland that the victim was an official of the United Nations on official business. This situation might attract a federal charge of murder of a United Nations official or associated person: Criminal Code (Cth) s 71.2. This may be dealt with by departmental guidelines: see Charging Guidelines for serious drug offences under Part 9.1 of the Criminal Code, Instruction Number 1, September 2014, . In Momcilovic v R (2011) 245 CLR 1, federal jurisdiction was engaged under s 75(iv) of the Commonwealth Constitution because the accused was ordinarily resident in Queensland but was tried in Victoria. See Crimes Act 1914 (Cth) s 3AA, defining ‘state offences that have a federal aspect’. For example, the intentional killing of a United Nations officer engaged in certain United Nations operations is punishable as murder under federal law: Criminal Code (Cth) s 71.2. Section 71.17 provides that a state or territory court does not have jurisdiction to determine a charge of such an offence ‘if the conduct constituting the offence also constitutes an offence (the State offence) against the law of that State or Territory’. But if a prosecution under 71.2 is brought and the court finds a corresponding state offence, then the person may be prosecuted for the state offence. Assuming that murder simpliciter is such an offence, this would make available a defence not open under federal law, such as diminished responsibility. It may emerge on the trial of a state offence that an offence against the Commonwealth has been committed. The High Court has original jurisdiction in all matters between states, or between residents of different states, or between a state and a resident of another state: Australian Constitution s 75(iv). Criminal Code (Cth) s 1.1 provides that the only offences against laws of the Commonwealth are those offences created by, or under the authority of, the Code or any other Act. The Criminal Code Act (Qld) s 5 and the Criminal Code Act (WA) s 4 provide that no person shall be liable to be tried or punished in Queensland/Western Australia as for an indictable offence except under the express provisions of the Code or some other statute law of Queensland/Western Australia. See also Criminal Code Act (Tas) s 6, which states that ‘[a]fter the passing of this Act no person shall be proceeded against as for a crime as defined by the Code, except under the provisions of this Act, or of some other Act, or of some Commonwealth Act, or of some Imperial Act in force in this State’. (1935) 53 CLR 563 at 567; W Blackstone, Commentaries on the Laws of England, vol i, Hargrave’s ed, 1768, p 88, n 37. (1935) 53 CLR 563 at 567–8. This rule has been called one of last resort, and has lost some of its importance in modern times: Beckwith v R (1976) 135 CLR 569; [1976] HCA 55 per Gibbs J (as he then was) at [9]. Chew v R (1992) 173 CLR 626 at 637; 60 A Crim R 82; [1992] HCA 18; R v Adams (1935) 53 CLR 563; [1935] HCA 62. There is a vast literature on this interpretative doctrine. Some recent papers include D Meagher, ‘The Principle of Legality as Clear Statement Rule: Significance and Problems’ (2014) 36 Sydney Law Review 413; D Meagher and M Groves, ‘The Common Law Principle of Legality and Secondary Legislation’ (2016) 39 University of New South Wales Law Journal 6; B Lim, ‘The Normativity of the Principle of Legality’ (2013) 37 Melbourne University Law Review 372.

72. Director of Public Prosecutions (Cth) v Keating (2013) 248 CLR 459; [2013] HCA 20; CTM v R (2008) 236 CLR 440; 185 A Crim R 188; [2008] HCA 25; Polyukhovich v R (1991) 172 CLR 501 at 608 per Deane J; at 575 per Brennan J. In PGA v R (2012) 245 CLR 355; 223 A Crim R 170; [2012] HCA 21, the High Court held by majority that the doctrine of marital immunity was not part of the law of South Australia in 1963 when the alleged rape occurred. The majority sought to avoid any suggestion of retrospectivity by stating that if the doctrine of marital immunity was ever part of the common law of Australia, it ceased to apply in South Australia after 1935. 73. Dietrich v R (1992) 177 CLR 292; Al-Kateb v Godwin (2004) 219 CLR 562. But see the different approaches to interpretation taken by Gleeson CJ and Kirby J in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39. 74. The offence of conspiracy is restricted to cases where the objects or means are in substance the same as have been previously recognised: see R v Isaac (1996) 87 A Crim R 513 at 524 per Hunt J. 75. Zecevic v DPP (Vic) (1987) 162 CLR 645. 76. Wilson v R (1992) 174 CLR 313; 61 A Crim R 63. 77. PGA v R (2012) 245 CLR 355; 223 A Crim R 170; [2012] HCA 21; R v L (1991) 174 CLR 379; R v R [1992] 1 AC 599. 78. [1962] NZLR 590 at 593. 79. [2004] NTSC 24 at [17]. 80. See also Murray v R (2002) 211 CLR 193; [2002] HCA 26. 81. For example, being a member of a terrorist organisation: see Criminal Code 1995 (Cth) s 102(3). 82. See, for example, Education Act 1972 (SA) s 76(3). See G Sullivan, ‘Parents and Their Truanting Children: An English Lesson in Liability Without Responsibility’ (2010) 12 Otago Law Review 285. 83. See, for example, Peko-Wallsend Operations Ltd v Knee (1991) 5 WAR 232. 84. Fisheries Management Act 2007 (SA) s 120. See Dietman v Feast [2015] SASC 148. 85. The following are examples of attendant circumstances: on a charge of bigamy, that the accused’s wife or husband is alive; on a charge of rape or assault, that the victim did not consent; on a charge of larceny, that the victim was in possession of the goods. 86. The crime of murder, for example, is committed by causing the death of a human being. The death of the human being, as a consequence of the act of killing, is a necessary ingredient in the actus reus of murder. 87. For example, the actus reus of rape requires proof of carnal knowledge without consent. No resulting mental or physical injury is required. 88. See Lergesner v Carroll [1991] 1 Qd R 206; (1990) 49 A Crim R 51; R v Brown [1994] 1 AC 212; (1993) 97 Cr App R 212. 89. R v Van Den Bemd (1994) 179 CLR 137 at 142; 70 A Crim R 494 at 497 per Brennan J; Timbu Kolian v R (1968) 119 CLR 47 at 52 per Barwick CJ. 90. See Director of Public Prosecutions (NT) v WJI (2004) 219 CLR 43; [2004] HCA 47; Re Director of Public Prosecutions Reference (No 1 of 2002) (2002) 137 A Crim R 158. 91. See 5.58–5.61 for the mental element of rape at common law and under statute. 92. Smacking a child on the buttocks purely for discipline or exposing a child to a penis for educational purposes would not be indecent, but they would be if done for sexual gratification: see R v Court [1989] AC 28 at 42–3; [1988] 2 All ER 221; Drago v R (1992) 63 A Crim R 59 at 74; R v Harkin (1989) 38 A Crim R 296; Murphy v Spencer [2013]

93. 94.

95. 96. 97. 98. 99.

100.

101.

102.

103.

104. 105. 106.

WASC 256; Director of Public Prosecutions (ACT) v AW (2013) 8 ACTLR 86. Similarly, it is indecent for a paramedic to place electrocardiogram pads on breast tissue if it is done for a sexual purpose: see R v Jones (2011) 209 A Crim R 379. R v O’Connor (1980) 146 CLR 64 at 81–2; 4 A Crim R 348 at 360 per Barwick CJ. Another example relates to inchoate offences such as conspiracy or attempts. The offence the parties attempted to commit or conspired to commit is part of the ‘purpose’ of the conduct. R v O’Connor (1980) 146 CLR 64 at 81–8; 4 A Crim R 348 at 360–7 per Barwick CJ. Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; 212 A Crim R 344; [2011] HCA 43 at [29]. (1882) 8 QBD 534 at 557–8 per Hawkins J. See Mann v R [2016] NSWCCA 10. This issue is explored by H Gamble in ‘Manslaughter by Neglect’ (1977) 1 Criminal Law Journal 247; and ‘The Mens Rea of Neglect’ (1981) 5 Criminal Law Journal 285. The common law offence of misprision was abolished in New South Wales by the Crimes (Public Justice) Amendment Act 1990 (NSW), and a new statutory offence of concealment of a serious indictable offence introduced: see, for example, Crimes Act 1900 (NSW) s 316. Section 316 remains contentious: see Review of Section 316 of the Crimes Act 1900 (NSW) [1999] NSWLRC 93, recommending abolition of the statutory offence. However, s 316 has been used on several occasions, and this trend is likely to continue: see Wilson v Department of Public Prosecutions (NSW) [2016] NSWSC 1458. For cases where there is a special relationship and an omission is charged, see R v Witika [1993] 2 NZLR 424 at 430–1; R v Taktak (1988) 14 NSWLR 226; 41 A Crim R 334; Lawford and Van de Wiel v R (1993) 61 SASR 542; 69 A Crim R 115. For the liability of the supplier of drugs where death results from a drug overdose, see R v Evens [2008] 1 AC 269; Burns v R (2012) 246 CLR 334; Heaton v Western Australia (2013) 234 A Crim R 409. A Ashworth, ‘The Scope of Criminal Liability for Omissions’ (1989) 105 Law Quarterly Review 424; J Finn, ‘Culpable Non-intervention: Reconsidering the Basis for Party Liability by Omission’ (1994) 18 Criminal Law Journal 90; G Hughes, ‘Criminal Omission’ (1958) 67 Yale Law Journal 590; G Williams, ‘Criminal Omissions — The Conventional View’ (1991) 107 Law Quarterly Review 86. ‘Any person who, being able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously fails to do so is guilty of a crime and is liable to imprisonment for 7 years’: Criminal Code (NT) s 155. See Salmon v Chute (1994) 70 A Crim R 536 at 549 per Kearney J. See Crimes Act 1958 (Vic) s 327. As to mandatory reporting laws for sexual abuse, see generally B Mathews, Mandatory Reporting Laws for Child Sexual Abuse in Australia: A Legislative History Report for the Royal Commission into Institutional Responses to Child Sexual Abuse, available at ; Community Welfare (Child Assault) Amendment Act 1985 (NSW); D Sandor, ‘Mandatory Reporting Laws: Adolescents and their Right to be Heard’ (1994) 5(4) Criminology Australia 17. See Education and Training and Reform Act 2006 (Vic) s 2.1.21. As to voting, see Commonwealth Electoral Act 1918 (Cth) ss 101, 245. Social Security (Administration) Act 1999 (Cth) s 66A. In Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408, the respondent’s convictions on several counts

107. 108. 109.

110. 111. 112. 113.

114.

115. 116.

117. 118.

119. 120. 121.

122. 123. 124.

under s 135.2(1) of the Criminal Code (Cth) were set aside because as the legislation then stood there was no positive duty to inform the department at the relevant time. Section 66A was inserted after the relevant period and did not govern the case. As to murder based on negligence under the Code, see R v Koani [2016] QCA 289 at [69]. See D Lanham, ‘Involuntary Acts and the Actus Reus’ (1993) 17 Criminal Law Journal 97. (1967) 121 CLR 205 at 217 per Barwick CJ; at 244 per Windeyer J. See also Jimenez v R (1992) 173 CLR 572; 59 A Crim R 308, in which it was said that if a person’s condition is such that his or her actions are unconscious or involuntary it does not matter what the cause is. A person cannot be found guilty of an offence, whether statutory or otherwise, unless the acts that constitute it have been done voluntarily. See also R v Fowler [1999] VSCA 135. Criminal Code (Qld) s 23(1)(a); Criminal Code (WA) s 23A(2); R v Falconer (1990) 171 CLR 30; [1990] HCA 49. Ryan v R (1967) 121 CLR 205; R v Williams (1990) 50 A Crim R 213; R v Hughes (1989) 42 A Crim R 270. Jiminez v R (1993) 173 CLR 572; Kroon v R (1990) 52 A Crim R 15; R v Parks [1992] 2 SCR 871. R v Radford (1985) 42 SASR 266; 20 A Crim R 388 (stress); R v Hall (1988) 36 A Crim R 368 (cerebral oedema (swelling of the brain)); R v Wogandt (1988) 33 A Crim R 31 (concussion); R v Youssef (1990) 50 A Crim R 1 (epilepsy). R v Falconer (1990) 171 CLR 30; 50 A Crim R 244; [1990] HCA 49; Ugle v R (2002) 211 CLR 171; [2002] HCA 25; Murray v R (2002) 211 CLR 193; [2002] HCA 26; Hawkins v R (1994) 179 CLR 500; [1994] HCA 28; Li v Chief of Army [2013] HCA 49. See S Yeo, ‘Putting Voluntariness Back into Automatism’ (2001) 32 Victoria University of Wellington Law Review 387. The Criminal Code (Qld) provides that any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person; that it is unlawful to kill any person unless such killing is authorised or justified or excused by law; and that any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case. Thus a person is guilty of at least manslaughter who indirectly causes the death of another under circumstances where the killing is neither authorised or justified or excused. E Colvin, ‘Causation in Criminal Law’ (1989) 1(2) Bond Law Review 253. Criminal Code (Qld) s 23(1)(b); Criminal Code (Tas) s 13; Criminal Code (WA) s 23B; Vallance v R (1961) 108 CLR 56; Duffy v R [1981] WAR 72; R v Taiters [1997] 1 Qd R 333; [1996] QCA 232. See also Cittadini v R [2009] NSWCCA 302 at [81]–[83]; Burns v R (2012) 246 CLR 334 at 364; Reynolds v R [2015] NSWCCA 29 at [41]–[43]. Royall v R (1991) 172 CLR 378 at 425, 441; [1991] HCA 27; R v Goldsworthy, Goldsworthy & Hill [2016] QSC 220. Some offences may require proof of an awareness of wrongfulness. See K Amirthalingam, ‘Mistake of Law: A Criminal Offence or a Reasonable Defence?’ (1994) 18 Criminal Law Journal 271 at 276. See Hawkins v R (1994) 179 CLR 500; 72 A Crim R 288; Williams v R [1978] Tas SR 98 at 101. Leader-Elliott, above n 37, pp 3–5. See Queensland Courts, Supreme and District Court Benchbook, Proof of Mental and

125. 126. 127.

128.

129.

130.

131. 132. 133.

134.

135. 136.

137. 138. 139. 140.

141.

Physical Elements: Commonwealth Offences, No 89.1, . See R v Willmot (No 2) [1985] 2 Qd R 413; (1985) 18 A Crim R 42; Zaburoni v R [2016] HCA 12. Criminal Code (Qld) s 23(2); Criminal Code (WA) s 23(1). Criminal Code (Qld) s 23(1)(a); Criminal Code (WA) s 23A(1). This provision has been interpreted in line with the common law theory of involuntariness: see Ugle v R (2002) 211 CLR 171; [2002] HCA 25; R v Falconer (1990) 171 CLR 30; 50 A Crim R 244; Murray v R (2002) 211 CLR 193; [2002] HCA 26. Criminal Code (WA) s 23B(2). The Queensland provision has been amended to give effect to the decision in R v Taiters [1997] 1 Qd R 333; (1996) 87 A Crim R 507. See R v Steindl [2002] 2 Qd R 542; (2001) 124 A Crim R 520 in relation to s 23(1A) of the Criminal Code (Qld). Kaporonovski v R (1973) 133 CLR 209; R v Taiters [1997] 1 Qd R 333; (1996) 87 A Crim R 507 at 509 per curiam; R v Skerritt (2001) 119 A Crim R 510; Stanik v R (2001) 125 A Crim R 372; Stevens v R (2005) 227 CLR 310 at 370. The Griffith Code defence of accident adopts an objective fault standard; therefore, to disprove accident the Crown need only establish that the event was foreseeable as a possibility. Furthermore, s 23 has no application when the prosecution’s case is based on proving criminal negligence or when criminal responsibility is based on the accused failure to act (omission): Criminal Code (Qld) s 23(1); Criminal Code (WA) s 23A(1). See also Criminal Code (NT) s 31. Director of Public Prosecutions (NT) v WJI (2004) 210 ALR 276. See, for example, Vallance v R (1961) 108 CLR 56 at 76; Williams v R [1978] Tas SR 98 at 101; Hawkins v R (1994) 179 CLR 500; 72 A Crim R 288 (meaning of ‘intentional’ in Criminal Code (Tas) s 13); R v Willmot (No 2) [1985] 2 Qd R 413; (1985) 18 A Crim R 42; Zaburoni v R [2016] HCA 12 at [7]–[14] (meaning of ‘intend’ in Griffith Code). R v Lockwood [1981] Qd R 209 (meaning of ‘wilful damage’ in Griffith Code); Iannella v French (1968) 119 CLR 84 (meaning of ‘wilful’); Environment Protection Authority v N (1992) 26 NSWLR 352; 59 A Crim R 408. R v Falconer (1990) 171 CLR 30; 50 A Crim R 244. R v Hemsley (1988) 36 A Crim R 334 (sexual assault); R v Athanasiadis (1990) 51 A Crim R 292 (rape); R v Williams (1990) 50 A Crim R 213 (malicious wounding); Tziavrangos v Hayes (1991) 55 SASR 416; 53 A Crim R 220 (criminal damage); Nuri v R [1991] VR 641; (1989) 49 A Crim R 253 (reckless endangerment); Royall v R (1990) 172 CLR 378; 54 A Crim R 53; [1991] HCA 27 (murder by reckless indifference to human life). Pereira v DPP (1988) 35 A Crim R 382. Hall v Fonceca [1983] WAR 309. He Kaw Teh v R (1985) 157 CLR 523; 15 A Crim R 203; R v Clare [1994] 2 Qd R 619 (see 2.19–2.21). Some words overtly convey a mental element (eg, desire, intend, wilful, or knowingly), while others do so discretely (eg, possess, or assault); some words convey a mixture of subjective and objective standards (eg, recklessly, or negligently). Cases like Hyam v DPP [1975] AC 55; R v Moloney [1985] AC 905; 1 All ER 1025; R v Hancock [1986] AC 455; Nedrick v R [1986] 3 All ER 1; 1 WLR 1025; and R v Woollin [1999] 1 AC 82 are sometimes regarded as illustrations of the meaning of the word

142. 143. 144. 145. 146. 147.

148. 149. 150. 151. 152. 153. 154. 155. 156. 157.

158.

159.

160. 161.

162.

163.

164. 165.

‘intention’. They are more correctly seen as defining the malice aforethought required for murder. R v Brown (1975) 10 SASR 139; R v Sperotto [1970] 1 NSWR 502. R v Crabbe (1985) 156 CLR 464; 16 A Crim R 19; Knight v R (1992) 175 CLR 495. Wilson v R (1992) 174 CLR 313; R v Adomako [1995] 1 AC 171; [1994] 3 All ER 79. R v Mohan [1976] QB 1; [1975] 2 All ER 193. Giorgianni v R (1985) 156 CLR 473; 16 A Crim R 163. This statement should be qualified at least to the extent that some words in the definition of the crime may be vague and subject to interpretation: see, for example, R v Clare [1994] 2 Qd R 619 (possession); Hall v Fonceca [1983] WAR 309 (assault). R v Mohan [1976] QB 1; [1975] 2 All ER 193. Knight v R (1992) 175 CLR 495; 109 ALR 225. Environment Protection Authority v N (1992) 59 A Crim R 408 at 410. R v Crabbe (1985) 156 CLR 464; 16 A Crim R 19; Knight v R (1992) 175 CLR 495. Darby v R [2016] NSWCCA 164; R v Zorad (1979) 2 NSWLR 764; R v Hemsley (1988) 36 A Crim R 334. Zaburoni v R [2016] HCA 12 at [16]–[17]; R v Mohan [1976] QB 1; [1975] 2 All ER 193; Hughes (1994) 76 Crim R 177. Zaburoni v R [2016] HCA 12 at [18]. See Re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254; [2000] 4 All ER 961; [2001] 2 WLR 480. Of course, if D is unaware that the gun is loaded, the discharge of the gun would not properly be described as intentional: R v Lamb (1967) 51 Cr App R 417. A more controversial example: if a doctor gives a dose of morphine to a patient for relief from acute incessant pain, knowing that the prescribed dose will cause death, he or she may be said to have intended both the alleviation of pain and the death of the patient. See R v Adams [1957] Crim LR 365; A Arlidge, ‘The Trial of Dr David Moor’ [2000] Crim LR 31; Criminal Code (Qld) s 282A. However, the law may stigmatise foreseen unintended consequences as culpable. For example, the Criminal Code (NT) s 31 imposes a test of whether, in all the circumstances, including the chance of it occurring and its nature, a reasonable person similarly circumstanced and having such foresight would have proceeded with that conduct. R v Woollin [1999] 1 AC 82; [1998] UKHL 28; [1998] 4 All ER 103; R v Moloney [1985] AC 905; R v Hancock [1986] AC 455; Nedrick v R [1986] EWCA Crim 2; [1986] 3 All ER 1. However, under the Griffith Code, foresight of even a ‘virtual certainty’ is not the same as intention: see Zaburoni v R [2016] HCA 12 at [15]. Evidence that the accused was aware of the risk of a particular outcome cannot, without further evidence, establish that the accused intended the outcome; Zaburoni v R [2016] HCA 12 at [15], [42]. Smyth v R (1957) 98 CLR 163; Thomas v R (1960) 102 CLR 584 at 596; Parker v R (1963) 111 CLR 610; R v Azaddin (1999) 109 A Crim R 474 at 480; Cutter v R (1997) 143 ALR 498; [1997] HCA 7. The Criminal Code (Cth) does not include advertence to probable consequences, but does extend to awareness that the result ‘will occur’ in the ‘ordinary’ course of events. The concepts of ‘intention’ and ‘knowledge’ are dealt with in ss 5.2 and 5.3 respectively. Criminal Code (Qld) s 317. Criminal Code (Qld) s 320.

166. [2016] HCA 12 at [15]–[16]. 167. The Griffith Code does not adopt the fault element of recklessness. However, it adopts the similar fault element of wilfully. For the meaning of the term ‘wilful’, see R v Lockwood; Ex parte A-G [1981] Qd R 209; R v T [1997] 1 Qd R 623; (1996) 91 A Crim R 152. 168. See Criminal Code (Cth) s 5.4(4). 169. See Nydam v R [1977] VR 430 at 437–8. 170. La Fontaine v R (1976) 136 CLR 62; 11 ALR 507; R v Crabbe (1985) 156 CLR 464; Knight v R (1992) 175 CLR 495 at 501. 171. (1985) 156 CLR 464 at 469. 172. For example, in Ackroyd v Barrett (1894) 11 TLR 115, it was decided that assault required intentional conduct, and recklessness would not be sufficient. In more recent cases, notably R v Venna [1975] 3 All ER 788 and MacPherson v Brown (1975) 12 SASR 184, it was held that recklessness is a sufficient mens rea for assault. 173. (1961) 108 CLR 56 at 82. 174. Where ‘recklessly’ appears in a statute, an element of advertence must be proved: Tziavrangos v Hayes (1991) 55 SASR 416; 53 A Crim R 220 (criminal damage); R v Athanasiadis (1990) 51 A Crim R 292 (rape); R v Hemsley (1988) 36 A Crim R 334 (sexual assault); R v Tolmie (1995) 37 NSWLR 660; R v Solomon [1980] 1 NSWLR 321 at 326–7 (reckless murder); R v Burnside [1962] VR 96 (reckless driving); Nuri v R [1990] VR 641 (reckless endangerment). 175. In England, a form of recklessness involving objective concepts has been adopted in relation to criminal damage and reckless driving: R v Caldwell [1982] AC 341; R v Lawrence [1982] AC 510; but rejected in relation to sexual assault: see R v Satnam and Kewal [1983] EWCA Crim 5; (1983) 78 Cr App Rep 149 at 154. And see R v Adomako [1994] UKHL 6; [1995] 1 AC 171; [1994] 3 WLR 288 at 296. 176. For example, in relation to sexual assault, a failure to think about the matter of consent at all would support a finding of recklessness: Darby v R [2016] NSWCCA 164 at [131] per Rothman J; Banditt v R (2005) 224 CLR 262; [2005] HCA 80. 177. Nuri v R [1990] VR 641 at 644; 49 A Crim R 253 at 256 (conduct endangering life). 178. The Criminal Code (Cth) adopts a definition of recklessness which emphasises the unjustifiability of conduct: see s 5.4. 179. Leader-Elliott, above n 37, p 73. 180. Environment Protection Act 1990 (Vic) s 59E (negligent discharge of pollutants); Criminal Code (Qld) s 328 (negligent acts causing harm). 181. Nydam v R [1977] VR 430. 182. See 2.35–2.38, where the objective element of mistake of fact is addressed in detail. See also Mathews v R (2001) 24 WAR 438; 123 A Crim R 137 as to the dangers of illegitimately transferring the objective element under s 24 to a case where the definition of the crime charged requires proof of a specific intention. 183. R v Van den Bemd (1994) 179 CLR 137; 70 A Crim R 494; [1994] HCA 56; Stevens v R (2005) 227 CLR 310 at 370; Criminal Code (Qld) s 23(1)(b). 184. While in theory proof of criminal negligence can be the basis for any fatal or nonfatal offences against the person, for certain offences there seems to be little or no scope for a prosecution based on criminal negligence: see, for example, Criminal Code (Qld) ss 302 (murder based on a positive act rather than an omission), 314A (unlawful striking causing death), 317 (intentionally causing grievous bodily harm). However, see R v Koani [2016] QCA 289.

185. Unlike at common law, a jury cannot usually be directed on direct act manslaughter and criminal negligence manslaughter in the alternative under the Griffith Code. Only if there is uncertainty as to how the victim died can a jury be directed on both direct act manslaughter and negligent manslaughter. See Evgeniou v R (1964) 37 ALJR 508; R v Kidd [2001] QCA 536; R v Stott and Van Embden [2002] 2 Qd R 313; (2001) 123 A Crim R 359. 186. Criminal Code (NT) s 31(2). 187. NSW Sugar Milling Co-Operative Ltd v Environmental Protection Authority (1992) 59 A Crim R 6 at 11. 188. See R v Lavender (2005) 222 CLR 67 at 87–8; [2005] HCA 37. 189. See R v Taktak (1988) 14 NSWLR 226; 34 A Crim R 334; R v Stone and Dobinson [1977] QB 354; R v Hodgetts and Jackson [1990] 1 Qd R 456; (1989) 44 A Crim R 320; R v Buttsworth [1983] 1 NSWLR 658. 190. R v Hansen [1964] Qd R 404; R v Wilson (1992) 174 CLR 313. 191. Evgeniou v R (1964) 37 ALJR 508; Callaghanv R (1952) 87 CLR 115; R v Scarth [1945] St R Qd 38. 192. [1925] All ER Rep 45 at 48; 19 Cr App R 8 at 11–12. 193. See Criminal Code (Qld) ss 285, 286, 288, 289, 290; Criminal Code (WA) ss 262, 263, 265, 266, 267. 194. Boughey v R (1986) 161 CLR 10; 20 A Crim R 156. 195. In Stingel v R (1990) 171 CLR 312; 50 A Crim R 186, the High Court considered the meaning of the phrase ‘ordinary person in the position of the accused’ under Criminal Code (Tas) s 160. The court held that individual attributes of the accused were relevant only in relation to determining the gravity of provocation offered. Apart from age, no personal characteristics could be considered in determining whether the accused’s response to the provocation so determined was that of the ordinary person. The case is not authority on the general application of objective fault standards (see 11.11–11.15). 196. [1895] 1 QB 918 at 921. 197. [1963] AC 160 at 174; 1 All ER 223. 198. See He Kaw Teh v R (1985) 157 CLR 523 at 582; [1985] HCA 43, where Brennan J summarised the law and quoted with approval (with a reservation as to the fourth proposition) the four propositions of Lord Scarman delivering the judgment of the Judicial Committee in Gammon Hong Kong Ltd v A-G of Hong Kong [1985] 1 AC 1 at 14. 199. Jiminez v R (1992) 173 CLR 572 at 582; 59 A Crim R 308 at 314; He Kaw Teh v R (1985) 157 CLR 523 at 534, 573, 582, 592; 15 A Crim R 203 at 210, 239, 246, 253; Pollard v DPP (Cth) (1992) 28 NSWLR 659; 63 A Crim R 383. See also Thorneloe v Filipowski (2001) 123 A Crim R 92 at 116 per Spigelman CJ. 200. Criminal libel has been confined by statute: see R v Walter (1799) 3 Esp 21; 170 ER 524; R v Gutch Fisher and Alexander (1829) Mood and M 432; 173 ER 1214. 201. State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721; 65 A Crim R 101; Hawthorn (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120; 65 A Crim R 227; Lergesner v Carroll [1991] 1 Qd R 206; 49 A Crim R 51; Binskin v Watson (1990) 48 A Crim R 33; Von Lieven v Stewart (1990) 21 NSWLR 52. As to due diligence, see Australian Iron and Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497; 66 A Crim R 134. 202. (1798) 7 TR 509 at 514; 101 ER 1103 at 1106 per Lord Kenyon. 203. Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439.

204. See Crimes Act 1900 (ACT) s 50 (1)(f); Crimes Act (NSW) s 61H(d); Criminal Code (NT) s 1; Criminal Law Consolidation Act 1935 (SA) s 5(1); Criminal Code (Tas) s 1; Criminal Code (WA) s 319(1)(d); Kaitamaki v R [1985] AC 147; 2 All ER 435; Ibbs v R (1987) 163 CLR 447; R v Mayberry [1973] Qd R 211; R v Johnson [2015] QCA 270 at [30]. 205. See E Colvin, Principles of Criminal Law, 2nd ed, Carswell, Toronto, 1986, p 163. See also R v Chaulk [1990] 3 SCR 1303; (1990) 62 CCC (3d) 193 at 204 per Lamer CJC. 206. Royall v R (1991) 172 CLR 378; [1991] HCA 27. 207. (2008) 236 CLR 440 at 446 (see 2.22). 208. See J C Smith, Justification and Excuse in the Criminal Law, Stevens, London, 1989, p 11; G Fletcher, Rethinking Criminal Law, Little Brown, Boston, 1978; S Yeo, Compulsion in the Criminal Law, Law Book Co, Sydney, 1990. 209. See Zecevic v DPP (Vic) (1987) 162 CLR 645 at 657 per Wilson, Dawson and Toohey JJ. 210. Sir Owen Dixon, ‘The Development of the Law of Homicide’ (1935) 9 Australian Law Journal 64; H A Snelling, ‘Killing in Self-Defence’ (1960) 34 Australian Law Journal 130. 211. Woolmington v R [1935] AC 462. 212. Woolmington v R [1935] AC 462 at 481. 213. The Woolmington principle is a foundation stone of Australian criminal law: see Lee v New South Wales Crime Commission (2013) 251 CLR 196; 235 A Crim R 326; [2013] HCA 39 at [171] per Kiefel J; X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [100] per Haynes and Bell JJ; R v Tang (2008) 237 CLR 1; [2008] HCA 39 at [103] per Kirby J; Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 501 per Mason CJ and Toohey J; at 527 per Deane, Dawson and Gaudron JJ; [1993] HCA 74; Dalla v Minister for Immigration and Border Protection [2016] FCA 998; Director of Public Prosecutions (WA) v TJD (No 3) [2013] WASC 43; Moore v R [2016] NSWCCA 185 at [144] per Adamson J; Murray v R (2002) 211 CLR 193; 131 A Crim R 215; R v Young (2004) 142 A Crim R 571; R v Mullen (1938) 59 CLR 124. 214. Lee v New South Wales Crime Commission (2013) 251 CLR 196; 235 A Crim R 326; [2013] HCA 39 at [171] per Kiefel J. 215. See Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 501 per Mason CJ and Toohey J; at 527 per Deane, Dawson and Gaudron JJ; [1993] HCA 74. 216. Viro v R (1978) 141 CLR 88 at 95 per Barwick CJ; [1978] HCA 9. 217. See Chapter 13. 218. A useful summary of the history, rationale and exceptions to the principle may be found in Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachment by Commonwealth Laws, Report 129, 2015, at 9.64–9.97, . 219. (2009) 240 CLR 95 at 98; [2009] HCA 53 at [5]. 220. Dawson v R (1961) 106 CLR 1 at 18 per Dixon CJ; Darkan v R (2006) 227 CLR 373; [2006] HCA 34 at [69]. For a heroic attempt by a trial judge that was clean bowled by the Court of Appeal, see R v CBK [2014] QCA 35. 221. [2014] QCA 35 at [11]. 222. [2014] QCA 35 at [12]. 223. The Criminal Code (Cth) distinguishes clearly between evidentiary and legal burdens: see ss 13.3, 13.4. See also Crimes Act 1958 (Vic) s 322I. 224. See K Ong, ‘Statutory Reversals of Proof: Justifying Reversals and the Impact of Human

225.

226.

227. 228. 229. 230.

231. 232.

233. 234.

235. 236.

237. 238. 239. 240. 241. 242. 243. 244.

Rights’ (2013) 32 University of Tasmania Law Review 247; A Gray, ‘Constitutionally Protecting the Presumption of Innocence’ (2012) 31 University of Tasmania Law Review 132. Criminal Code 2002 (ACT) s 58(3); Crimes Act 1900 (NSW) s 417A; Justices Act 1886 (Qld) s 76; Summary Procedure Act 1921 (SA) s 56; Evidence Act 2001 (Tas) s 142A; Criminal Procedure Act 2009 (Vic) s 72; Criminal Procedure Act 2004 (WA) s 78. See Peden v Boxx [2016] ACTSC 86; Vines v Djordjevitch (1955) 91 CLR 512; Dowling v Bowie (1952) 86 CLR 136; Nominal Defendant v Dunstan (1963) 109 CLR 143; Donoghue v Terry [1939] VLR 165; Frannis v Flood [1978] 1 NSWLR 113; Steel v Smith (1817) 1 B and Ald 94 at 99; 106 ER 35 at 37. See R v Douglas [1985] VR 721; R v Turner (1816) 5 M and S 206; [1814–23] All ER Rep 713 at 715 per Bayles J. R v Spurge [1961] 2 QB 205; 2 All ER 688. See R v McCarthy [2015] SASCFC 177. See KBT v R (1997) 191 CLR 417 at 422–3; WGC v R (2007) 233 CLR 66; [2007] HCA 58; R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98. The genesis of this problem is thought to be an article by Professor J C Smith: ‘Satisfying The Jury’ [1988] Crim LR 335. See Criminal Law Review, Jury Directions, A Jury-Centric Approach, Criminal Law Review Department of Justice and Regulation, 2015, Melbourne, Victoria. For example, see Sio v R [2016] HCA 32; Graham v R [2016] HCA 27; Milne v R (2014) 252 CLR 149; [2014] HCA 4; Reeves v R (2013) 304 ALR 251; [2013] HCA 57; Huynh v R (2013) 228 A Crim R 306; [2013] HCA 6; Justins v R (2010) 79 NSWLR 544; 204 A Crim R 315; [2010] NSWCCA 242. (2010) 242 CLR 233 at 251–252. In 2009, the Queensland Law Reform Commission called for the greater use of integrated directions, in which the legal and factual issues are interwoven and the critical issues for decision are identified in written form by the judge: Queensland Law Reform Commission, A Review of Jury Directions, Report No 66, 2009, p 287, paragraph 9.130. See, for example, R v Koani [2016] QCA 289 at [23]. R v Woods [2008] SASC 335. For example, when the matter the subject of the question is required to be proved beyond reasonable doubt, questions asked in the form of, ‘Is there a reasonable possibility that …’ may be problematic: see Moore v R [2016] NSWCCA 185. Queensland Law Reform Commission, above n 234. New South Wales Law Reform Commission, Jury Directions, Report 136, 2012. See Victorian Law Reform Commission, Jury Directions, Final Report 17, 2009. Jury Directions Act 2015 (Vic) ss 1–15. Jury Directions Act 2015 (Vic) s 16. But see 12.60; and R v B, MA (2007) 177 A Crim R 268. See Judicial Commission of New South Wales, Criminal Trial Courts Benchbook, . Z Korosy, ‘Native Title, Sovereignty and the Fragmented Recognition of Indigenous Law and Custom’ (2008) 12 Australian Indigenous Law Review 81. Australian Law Reform Commission, The Recognition of Aboriginal Customary Law, Report No 31, Canberra, 1986; Royal Commission into Aboriginal Deaths in Custody, National Reports, AGPS, Canberra, 1991; S Gray and J Blokland, Criminal Laws Northern Territory, 2nd ed, The Federation Press, Sydney, 2012, Ch 2.

245. See Evidence Act 1995 (NSW) ss 72, 76, 78A. Other examples include Adoption Act 2000 (NSW) ss 64, 65; National Parks and Wildlife Act 1974 (NSW) s 71AU. 246. The court noted that the decision of Walden v Hensler (1987) 163 CLR 561 was made before the passage of the Native Title Act 1993 (Cth). See also Director of Public Prosecutions Reference (No 1 of 1999) (1999) 105 A Crim R 489. 247. R French, ‘Speaking in Tongues Courts and Cultures’ (FCA) [2007] Federal Judicial Scholarship 18. 248. Walker v The State of New South Wales (1994) 182 CLR 45 at 50 per Mason CJ; R v Anning [2013] QCA 263. See Milirrpum v Nabalco (1971) 17 FLR 141 at 267 per Blackburn J; Neal v R (1982) 7 A Crim R 129 at 145 per Brennan J; R v Miyatatawuy (1996) 6 NTLR 44; [1996] NTSC 84 at [20] per Martin CJ. 249. (1996) 88 A Crim R 78 at 80–1 per Doyle CJ. See 8.46. 250. See also Ebatarinja v R [2000] NTSC 26; R v Minor (1992) 79 NTR 1; Jadurin v R (1982) 44 ALR 424; R v Jungarai (1981) 9 NTR 30; (1982) 5 A Crim R 319. 251. Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103, 2006, at [29.4]; Law Reform Commission of Western Australia, Aboriginal Customary Laws, Project 94, 2006; Northern Territory Law Reform Committee, Report of the Committee of Inquiry into Aboriginal Customary Law, 2003; New South Wales Law Reform Commission, Sentencing: Aboriginal Offenders, Report 96, 2000. 252. (1982) 149 CLR 305 at 326; [1982] HCA 55 at [13]. 253. (1996) 6 NTLR 44 at 49; [1996] NTSC 84 at [20]. 254. (2013) 249 CLR 600 at 619. 255. M Bagaric, L Xynas and V Lambropoulos, ‘The Irrelevance to Sentencing of (Most) Incidental Hardships Suffered by Offenders’ (2016) 39 University of New South Wales Law Journal 47. 256. (2013) 249 CLR 600 at 622. See 8.44. 257. One interesting feature of contemporary criminal law involves the establishment and operation of specialist sentencing courts for aboriginal defendants: the Koori Courts in Victoria and New South Wales, the Nunga Courts in South Australia, the Murri Court in Queensland, and the older initiatives in Western Australia; and Community Courts in the Northern Territory. See C Bond and S Jeffries, ‘Indigenous Sentencing Outcomes: A Comparative Analysis of the Nunga and Magistrates Courts in South Australia’ (2012) 14 Flinders Law Journal 359; J Blokland, ‘Territory Trials in Alternative Sentencing Models, the CREDIT Court (NT) and Community Courts’ (2005) 4 Balance: Journal of the Law Society Northern Territory 24. At the time of writing, the Community Courts in the Northern Territory are in abeyance in the wake of the Northern Territory Intervention: see Australian Institute of Criminology, Indigenous Courts, . 258. T Anthony, ‘Indigenising Sentencing? Bugmy v The Queen’ (2013) 35 Sydney Law Review 451. 259. The Northern Territory Department of Correctional Services Annual Statistics for 2014–15 shows that the daily average number of Indigenous prisoners in custody during 2014–15 was 1361, which represented 85 per cent of the total daily average. On 30 June 2015, there were 1331 Indigenous prisoners in custody in an adult correctional institution in the Northern Territory, which represented 84 per cent of total prisoners. 260. E Marchetti and J Ransley, ‘Applying the Critical Lens to Judicial Officers and Legal

261.

262.

263. 264. 265. 266. 267.

Practitioners Involved in Sentencing Indigenous Offenders: Will Anyone or Anything Do?’ (2014) 37 University of New South Wales Law Journal 1. See Northern Territory Government, Ampe Akelyernemane Meke Mekarle, ‘Little Children are Sacred’, Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, 2007. See Northern Territory National Emergency Response Act 2007 (Cth). The constitutional validity of the intervention was upheld in Wurridjal v The Commonwealth of Australia (2009) 237 CLR 309; [2009] HCA 2. For background discussion on the intervention, see Parliament of Australia, Department of Parliamentary Services, Northern Territory National Emergency Response Bill 2007, 13 August 2007. Commonwealth of Australia Constitution Act s 122 (the Territories power). Crimes Act 1914 (Cth) s 16A(2A), as amended by the Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012 (Cth) (No 101 of 2012). Crimes Act 1914 (Cth) s 16AA, previously Northern Territory National Emergency Response Act 2007 (Cth) s 91. See Hat v R [2011] VSCA 427; R v Hudson [2016] SASCFC 60. See also R Goldflam, ‘The (Non-) Role of Aboriginal Customary Law in Sentencing in the Northern Territory’ (2013) 17 Australian Indigenous Law Review 71; T Anthony and W Crawford, ‘Northern Territory Indigenous Community Sentencing Mechanisms: An Order for Substantive Equality’ (2013/14) 17 Australian Indigenous Law Review 79; T Anthony, L Bartels and A Hopkins, ‘Lessons Lost In Sentencing: Welding Individualised Justice to Indigenous Justice’ (2015) 39 Melbourne University Law Review 47; T Anthony, ‘The Punitive Turn in Post-Colonial Sentencing and the Judicial Will to Civilise’ (2011) 19 Waikato Law Review 66.

[page 45]

2 Mistake of Fact Introduction 2.1 This chapter explores the extent to which a person’s subjective beliefs about the circumstances surrounding a particular offence may be relevant to criminal responsibility.1 Mistake of fact is a difficult and contentious topic covering areas of human behaviour where knowledge is often shrouded by uncertainty and risk, and where communication involves social behaviour determined by cultural values that shift over time.2 There is an obvious distinction between action based on full awareness of the relevant facts, and actions based on flawed or mistaken assumptions, but the moral distance between them often turns on degrees of negligence. Many a Shakespearian tale has been driven by such forces; and as Oberon says to Robin: ‘This is thy negligence. Still thou mistakest, Or else committ’st thy knaveries willfully’.3 Moreover, where liability is based on a belief about what a third person may or may not have believed, or might have believed, the forensic difficulties are not trivial. The attempted regulation of the pernicious practice of drink spiking is a good example.4 [page 46] 2.2

Mistake of fact is relevant to criminal responsibility in a number

of situations. (1) It may prevent proof of the fault element (or mens rea) required for the offence.5 (2) Mistake of fact may arise in the context of strict liability offences; in this context it is known as the Proudman v Dayman excuse.6 This common law doctrine has statutory expression in the six Australian code jurisdictions.7 (3) The excuse of honest and reasonable mistake of fact can be relied upon to enliven other excuses or defences which alone would not apply to the objective circumstances. Whether relying on mistake to negate a fault element (1) or relying on the excuse of mistake of fact (2), the accused is seeking to displace the prosecution’s evidence that the accused knew of the relevant facts that make up the elements of the offence charged.8 Corporations as well as individuals can rely on mistake of fact in each of the three identified situations. With corporations, it is the belief of those directors and managers who are the ‘directing mind and will of the company’ that must be considered.9 2.3 In the first case, a mistaken belief or ignorance as to the facts and circumstances surrounding a particular act or omission may be inconsistent with the state of mind required to establish the crime.10 The accused is entitled to an acquittal if, in light of all the evidence presented at the trial (including that relating to any relevant mistake of fact), the jury fails to be satisfied as to the presence of the requisite state of mind. In other words, evidence of a mistake or of ignorance with respect to matters of fact may prevent the prosecution from proving the requisite fault element of the offence charged. For example, in the Northern Territory and Victoria, the offence of drink spiking can be established only if the defendant knew of, or was reckless as to, the victim’s lack of awareness of the added alcohol or additional alcohol. A mistaken belief on the part of the defendant that the complainant was aware of the actual facts is inconsistent with that fault element. A defendant who had no relevant belief as to the complainant’s state of awareness, or did not consider the matter at all, might be seen as reckless. But these matters fall to the prosecution to prove, either by

showing that the [page 47] defendant believed that the complainant was not aware of the matters required, or by proving recklessness in the relevant sense. In determining whether the defendant held any such factual belief or possessed any such state of ignorance, the reasonableness of the belief or ignorance would be a relevant factor for the trier of fact. This principle is recognised explicitly under the model Criminal Code.11 2.4 In the second case, there are many statutory offences where culpability may be established upon proof of the actus reus or physical element alone. However, unless otherwise provided, an accused will be excused if he or she had a reasonably held belief in certain facts. Not all reasonably held beliefs are relevant to criminal responsibility. On a charge of drink spiking, D’s reasonable but mistaken belief that the additional shot he or she added to the complainant’s drink was vermouth rather than whisky would be irrelevant. This is because the belief, if it were true, would not negative any element of the offence. However, a reasonably held but mistaken belief that the amount of alcohol added to a drink was in conformity with a patron’s request would be an excuse in those jurisdictions where the offence of drink spiking does not require proof of a mental element.12 2.5 The Proudman v Dayman excuse and the Code form of the excuse apply to both common law and statutory offences (and, in this sense, it is a general excuse). However, there remains some uncertainty as to how the Proudman v Dayman excuse should be characterised. One view is to treat the excuse as merely part of the common law presumption of mens rea. Accordingly, offences are presumed to have either a fault element such as intent or knowledge, or the fault element of honest and reasonable mistake of fact (the Proudman v Dayman excuse). From this perspective, honest and reasonable mistake of fact is simply an ‘ingredient essential to the offence.’13 The alternative view is

to regard honest and reasonable mistake of fact as a separate consideration from the elements of an offence.14 It is raised as a ground of exculpation and accordingly it is referred to as the Proudman v Dayman excuse or the excuse of honest and reasonable mistake of fact — the latter phrase being of equal application to the code jurisdictions. Two issues turn on which of these approaches is adopted.15 First, how are offences classified? If mistake of fact is simply a fault element there can be only two types of offences: those that have a fault element and those that do not — so–called [page 48] absolute liability offences. By treating mistake of fact as a separate ground of exculpation, three types of offences can be identified: • mens rea offences; • strict liability offences which do not include mens rea but which allow recourse to the excuse of mistake of fact; and • absolute liability offences which do not include mens rea and do not allow recourse to the excuse of mistake of fact. This tripartite classification of offences has been embraced by commentators but the High Court has been less emphatic in its endorsement of it.16 The second issue arises with regard to the evidential onus. If mistake of fact is a ground of exculpation, the defence bears an evidential onus (discussed at 2.53). This chapter applies the second approach as it ensures greater consistency between the common law and the Codes (Proudman v Dayman is an excuse). 2.6 In the third case (see 2.2), the availability of a particular excuse or defence (such as self-defence, provocation or necessity) may be affected by the subjective beliefs of the accused. The belief can reflect the real state of things or it can be an honest and reasonable mistaken belief as to the relevant facts.17 In this sense, mistake of fact is a constituent part of the relevant excuse or defence and there is no need to have recourse

to the Proudman v Dayman excuse or to the code form of the excuse. However, the same excuse or defence may also include objective facts: for example, self-defence under the Criminal Code (Qld) requires evidence that the accused was acting in response to an assault. In circumstances where such an objective fact did not exist, an accused can rely on the excuse of mistake of fact in respect to the relevant objective fact. To raise self-defence in circumstances where the accused was not being subjected to an actual assault the accused can utilise the excuse of mistake of fact and enliven self-defence by reference to evidence that he or she reasonably believed. Therefore, objective elements of excuses and defences are enlivened by reference to evidence that such circumstances existed or by reference to the accused’s honest and reasonable belief that such circumstances existed. 2.7 It is necessary to distinguish between the operation of mistake in each of the above situations. This is of importance for two reasons. First, the Proudman v Dayman excuse was formerly treated as an ‘affirmative’ defence, an exception to the general rule that the onus and burden of proof rest upon the Crown.18 [page 49] The decisions that placed the onus on the accused reflect the history of mistake of fact. It was accepted as part of the common law19 before the decision of Woolmington v Director of Public Prosecution [1935] AC 462 clarified the burden and standard of proof. Although courts now accept that the Crown bears the persuasive burden of proof, there remains a degree of inconsistency in the language used, with some decisions using the terms ‘defence’ and ‘excuse’ interchangeably when referring to mistake of fact. The use of the term ‘defence’ is not a reference to the technical use of the word as an ‘affirmative’ defence but rather reflects the tendency to ‘refer to any point relied upon by an accused as a defence’ (see 1.69).20 Therefore, the cases should be read with care as the older cases incorrectly state the burden of proof, and the more recent cases continue to use somewhat confusing language.21

Second, it is noteworthy that under the Proudman v Dayman excuse and the code forms of the excuse, only a reasonable mistake will exculpate. Therefore, the type of case and the way in which evidence of a mistaken belief is sought to be used will determine the evidence that must be present, such as whether the mistaken belief must be reasonable.22 2.8 Above, we drew a simple dichotomy between the excuse of reasonable mistake of fact as it applies at common law (Proudman v Dayman excuse) and as it applies under the codes. Six of the jurisdictions are relatively consistent with this dichotomy, with New South Wales, South Australia and Victoria generally applying the common law excuse of reasonable mistake of fact, and the Commonwealth, Queensland and Western Australia jurisdictions having a code-based excuse of general application.23 The other three jurisdictions are more complex. In the Australian Capital Territory, the model Criminal Code form of the excuse is of general application as of 17 July 2017. Until that date, the model Criminal Code excuse applies to offences enacted after 2003 and to any other offence where one of two conditions specified in s 8(1) of the Criminal Code 2002 (ACT) is satisfied.24 For all other offences, the common law excuse of mistake of fact applies. In the Northern Territory, the model Criminal Code form only applies to the offences listed in Sch 1.25 An excuse similar to the Griffith Code excuse applies to all other offences.26 In Tasmania, a modified Griffith Code excuse applies except in the case of summary offences, where the common law applies.27 In each of the nine Australian jurisdictions there are also separate legislative expressions of mistake of fact which apply to a specific offence or offences or to specific parts of an offence. These statutory forms modify the general excuse in some way. The two most common statutory variations involve the exclusion of the excuse as it applies to a specific element of the offence, such as knowledge of the age [page 50]

of the complainant and/or the reversal of the onus of proof.28 Other variations are less common; for example, in s 474.29 of the Criminal Code 1995 (Cth) it is a defence to prove that the accused held a belief that the complainant was at least 16 years of age but the accused is not required to prove that the belief was reasonably held. These statutory variations of mistake of fact play an important role when courts determine whether the offence or offences to which they apply require proof of a mental element (see 2.20). 2.9 On different occasions, courts have emphasised the similarities between the common law excuse of mistake of fact and its code counterparts, and on other occasions they have emphasised the differences.29 The majority of the High Court in CTM v R (2008) 226 CLR 440 endorses the view that the excuse, as expressed in the state codes, ‘reflect[s] the common law with complete accuracy’.30 This chapter proceeds on the basis that, although the common law and codes are similar, it is an overstatement to suggest they are more or less identical. There are two important points of divergence. 2.10 First, at common law, under the model Criminal Codes and the Criminal Code (Tas), the excuse only applies where the accused’s conduct would have been innocent if what he or she mistakenly believed was, in fact, the real state of things. In these jurisdictions, if the excuse is successfully raised, an acquittal is the only possible outcome. By contrast, under the Griffith Code and s 32 of the Criminal Code (NT), an accused is not criminally responsible to any greater extent than if his or her belief represented the real state of things. Therefore, in these jurisdictions, a successful reliance on the excuse could result in an acquittal, a lesser penalty or a conviction for a lesser offence (see 2.43). 2.11 Second, under the Griffith Code and the Northern Territory Code, the presumption that the excuse applies to all statutory offences can only be displaced by reference to the terms of the statute that defines the offences.31 At common law, the presumption in favour of the excuse can be displaced by reference to the terms of the relevant statute but also by reference to the subject matter of the statute.32 This point of difference is not further addressed. There is also some degree of

uncertainty as to whether the common law and the codes apply the same [page 51] test to the requirement that the belief be reasonably held in the circumstances. This element of the excuse is addressed in detail below (see 2.33–2.38).

Mistake of fact preventing proof of mens rea/fault element 2.12 An accused’s reasonable or unreasonable mistaken belief or his or her ignorance of a fact may be inconsistent with the mental element of an offence.33 This applies to common law and statutory offences, where the fault element is intention, knowledge or recklessness/wilfulness, or where the fault element is expressed in more oblique terms such as dishonesty or possession (see 2.19–2.21).34 This proposition correlates with the general principle under the common law and under the codes that the prosecution must prove all the elements of an offence, including the mental elements, except where certain statutory offences expressly provide for a reversal of the onus of proof. Juries must be directed as to the relevance of a mistaken belief or ignorance to the proof of the mental element. Where mistake is of relevance to the mental element, the trial judge should not direct the jury in respect to the excuse of mistake of fact as to do so would be contradictory and confusing.35 As Murray J succinctly stated in Roddan v R (2002) 128 A Crim R 397, which involved an appeal against a forgery conviction:36 I cannot see how [the excuse of mistake of fact] would be available as the appellant suggests. Forgery was the act of making false a document knowing it to be false. An honest belief that the document was not false would simply represent an absence of the element of the offence of knowledge of falsity.

While the mistake or ignorance may be unreasonably held, the claim of mistake or ignorance will be more credible if it were reasonable in the circumstances.37 The following comment by Dawson J in the High Court case of Walden v Hensler (1987) 163 CLR 561 is pertinent:38 It is, of course, always necessary for the prosecution to prove the intent which forms an ingredient of a particular crime and any honestly held belief, whether reasonable or not, which is inconsistent with the existence of that intent will afford a defence. But in addition, there is the wider principle that the existence of any state of mind, however limited, which is an element of a crime, may be negated by an honest and reasonable belief in the existence of circumstances which, if true, would make the impugned act innocent.

[page 52] These principles have legislative expression in s 9.1 of the Criminal Code (Cth)39 and are reproduced in the other two model Criminal Codes.40 The provision has been described as superfluous as it simply expresses the fundamental principles of proof.41 However, there is one aspect to the section that arguably adds clarity to the law. It expressly excludes consideration of a mistaken belief or ignorance of a fact in circumstances where the fault element is negligence (see 2.18).

Inchoate and accessorial liability 2.13 Inchoate offences and accessorial liability based on aiding, abetting, counselling or procuring, require proof of a fault element. The fault element for inchoate offences is generally that of intent, although subjective recklessness suffices for common law offences of attempting a circumstance crime, such as rape.42 For offences based on accessorial liability, the Crown must prove that the accused knew the principal was committing or intended to commit the essential element of the offence43 and the accessory must have intended to encourage or assist in the commission of the offence.44 Therefore, evidence of a mistaken belief, including a belief that was not reasonably held, and ignorance of a fact are relevant to proof of the requisite fault requirement of inchoate offences and accessorial liability. Subsequently, the defence is not

required to rely on the Proudman v Dayman excuse or a code form of that excuse as any relevant evidence will be considered in the context of proof of fault.45 2.14 There is a significant exception to the general rule that a mistaken belief of fact or ignorance of a fact is relevant to inchoate offences and accessorial-based prosecutions. Under the model Criminal Codes, inchoate offences and offences based on accessorial liability are subject to the ‘special liability provision’ rule.46 [page 53] 2.15 A ‘special liability provision’ is one where absolute liability is expressed to apply to one or more, but not all, elements of an offence and where the offence expressly states that it is not necessary to prove knowledge or belief as to some thing.47 The rule imposes the principle of parallelism in circumstances where an inchoate or accessorial-based offence comes within the scope of the rule.48 Parallelism applies so that the same ‘special liability provision’ applies not only to a person charged with the offence but also to anyone charged with an inchoate form of the offence or as an accessory to the offence. For example, s 134.2 of the Criminal Code (Cth) prescribes the offence of dishonestly obtaining a financial advantage by deception where the victim is a Commonwealth entity. Absolute liability applies to the victim’s identity.49 Accordingly, parallelism operates so that any mistaken belief as to the identity of the victim, whether it is unreasonably held or reasonably held, and ignorance as to the identity of the victim, are irrelevant, not only to the prosecution of a person who committed all the elements of the offence but also to a person prosecuted with an inchoate form of the offence or a person prosecuted as an accessory to the offence. 2.16 The majority of the High Court in Tabe v R (2005) 225 CLR 418 also applied parallelism to the offence of being an accessory to the possession of a dangerous drug and to the offence of attempting to

possess a dangerous drug — offences against the Drugs Misuse Act 1986 (Qld).50 The Act includes a reverse onus provision which, according to the majority, means that the fault element of the offence of possession is established by proof that a principal knew that he or she had possession of a substance or thing. The Crown is not required to prove that the accused knew the nature of the substance or thing possessed. Where an accused believes that the substance or thing was something other than a dangerous drug, a reverse onus provision applies so that the accused must prove that he or she reasonably held that belief. The principle of parallelism applies so that the same fault element that applies to a principal also applies to an accessory and to someone charged with attempted possession. If an accessory to possession or a person charged with attempted possession believed that the substance was something other than a dangerous drug then he or she, like the principal, can seek to rely on the reverse onus provision. Accordingly, an accessory to possession, or a person charged with attempted possession, cannot undermine evidence of the fault element by reference to their unreasonably held belief that the substance or thing was something other than a dangerous drug or by reference to their ignorance about the nature of the substance or thing. The decision in Tabe is consistent with the model Criminal ’Codes’ ‘special liability provision’ approach. However, it is inconsistent with authority that has rejected the principle of [page 54] parallelism.51 It remains to be seen whether the approach taken in Tabe has any application beyond the confines of the Drugs Misuse Act 1986 (Qld).

Negligence 2.17 An unreasonably held belief can undermine the Crown’s effort to prove a subjective fault element but it cannot perform the same

function where the offence is based on objective fault. Where the offence is based on criminal negligence, evidence of an unreasonably held belief could support the Crown’s case that the accused was negligent.52 On the other hand, a reasonably held belief is relevant to negligence-based offences. However, it is unclear whether evidence of a reasonably held belief simply goes to undermine the fault element of negligence or whether it can and must be used to raise the excuse of mistake of fact. 2.18 In R v Lavender (2005) 22 CLR 67 the plurality judgment stated, by way of obiter, that evidence of a reasonably held belief was to be taken into account when determining whether the accused breached his or her duty.53 Recourse to the Proudman v Dayman or code-based excuse is not required, as the accused’s circumstances, including his or her knowledge and any reasonably held belief, are considered when determining whether the accused’s conduct was grossly criminally negligent. The same approach applies to culpable driving causing death pursuant to s 318(1) of the Crimes Act 1958 (Vic) as the Crown is required to prove that the driving was grossly negligent.54 It does not apply to dangerous driving causing death as prescribed by s 319(1) of the Crimes Act 1958 (Vic) or to other statutory offences of ‘dangerous’, ‘culpable’ or ‘negligent’ driving as prescribed in the other states and territories (see 2.24). The Lavender approach is supported by decisions of appellant courts in Victoria and Queensland55 but it has not been followed by the Western Australian courts. In R v Pacino (1998) 105 A Crim R 309 the Western Australia Court of Criminal Appeal overturned a conviction of negligent manslaughter based on the trial judge’s failure to direct the jury as to the relevance of the excuse of reasonable mistake of fact. This decision was followed in Heaton v The State of Western Australia [2013] WASCA 207 where the victim died of a heroin overdose while in the care of the appellant. Consistent with the court’s earlier decision in Pacino, it was ruled that the accused’s belief that the victim was merely intoxicated and not suffering from acute heroin toxicity could provide the basis for the excuse of reasonable mistake of fact in answer to the negligent manslaughter charge. However, two members of the court ruled that, as the appellant had not

given evidence and had refused to participate in a police interview, there was no evidence before the court that raised the excuse [page 55] of reasonable mistaken belief.56 The other member of the court was willing to infer from the evidence that the appellant held a belief that the victim was ‘merely intoxicated’. However, as the appellant knew that the victim was: a first-time user, in an unconscious state, experiencing difficulty breathing and in need of head support; the jury could not have reached any conclusion other than his belief that she was ‘merely intoxicated’ was unreasonably held.57 These decisions seem to be based on the assumption that criminal negligence is determined by reference to objective facts only. The High Court’s approach in Lavender is preferable as the question of breach should not be considered in a vacuum but rather by reference to what the accused knew and reasonably believed.58

Possession and mistake 2.19 The legislatures have prohibited the possession of a wide range of items, such as weapons,59 wildlife,60 child pornography,61 narcotic drugs62 and items used to manufacture and administer narcotic drugs.63 The relevance of mistake of fact to these offences requires some analysis of the mental element of possession. In some cases, the legislature has prescribed a mental element64 but, in most cases, including the offence of possessing prohibited drugs, it has been left to the courts to determine whether possession requires proof of a mental element and, if so, the nature and extent of that mental element.65 It is now [page 56] accepted that the ordinary meaning of the term ‘possession’ requires

proof of knowledge. Statutory intervention is required to displace the ordinary meaning: courts will find that a possession offence does not include a mental element only where the legislation makes it clear that parliament intended to exclude such an element.66 The leading decision is that of He Kaw Teh v R (2005) 225 CLR 418 where the High Court overruled earlier decisions which held that the offence of possessing a prohibited import under s 233B(1) of the Customs Act 1901 (Cth) did not require proof of a mental element.67 Although the court in He Kaw Teh decided that the natural meaning of ‘possession’ necessarily includes a mental element, it did not determine what precisely must be known or whether a state of awareness less the actual knowledge would suffice. In Tabe v R (2005) 225 CLR 418, four of five High Court judges concluded that, in the absence of a contrary statutory indication, the term ‘possession’ includes an awareness of the nature of the thing in possession. In the context of possessing dangerous drugs, the Crown must prove that the accused knew he or she had a substance which he or she also knew to be, or knew that it was likely to be, a dangerous drug. The Crown is not required to prove that the accused knew precisely which drug he or she possessed.68 Therefore evidence that the accused was ignorant as to the nature of the substance, or held a reasonable or unreasonable belief that a substance was something other than a dangerous drug, can prevent the Crown from proving the mental element. Even a belief that the substance was some illicit substance other than a narcotic drug would mean that the mental element was not proven. However, a belief that the substance was something other than a drug listed as a prescribed substance (as opposed to a belief that it was not a narcotic drug) will not necessarily exculpate. This is because a number of Australian jurisdictions have extended the definition of dangerous/illicit drugs to include substances that are analogues to a proscribed drug. A belief that the relevant substance was of such a nature as to bring it within the scope of the analogue definition would be culpable.69 See 2.16. 2.20 As stated above, the ordinary criminal law meaning of the term ‘possession’ does not apply where the legislature clearly indicates that an alternative meaning is intended. In Tabe v R (2005) 225 CLR 418

the majority held that, by reversing [page 57] the onus of proof for mistake of fact, the legislature had clearly intended to limit the mental element of possession of a dangerous drug. They agreed with the Queensland Court of Appeal decision in R v Clare [1994] 2 Qd R 619 that the Crown need only prove that an accused knew he or she had a substance or thing and not that the accused knew the nature or character of the substance or thing.70 In these circumstances, the mental element of the offence of possession can only be undermined by evidence that the accused was ignorant of the very existence of the substance or thing. A mistaken belief that a substance or thing was something other than a dangerous drug does not undermine the mental element of possession but can provide the foundation for a defence of reasonable mistaken belief as prescribed by s 129(1)(d) of the Drugs Misuse Act 1986 (Qld).71 The defence will be successful if it is established on the balance of probabilities that the accused honestly and reasonably believed that the substance was something other than a dangerous drug.72 The majority in Tabe emphasised that their decision was determined by the specific statutory provisions of the Drugs Misuse Act (Qld) (s 129(1)(d)).73 However, it was the reversal of the onus of proof that was decisive. Reversing the onus of proof for mistake of fact is not an uncommon feature of statutory regimes that create possession offences. Therefore, it can be concluded that where parliament reverses the onus for mistake of fact, the Crown will only need to prove the accused had knowledge of the substance or thing and not that he or she knew of its nature or character. 2.21 The offence of possessing child pornography contrary to the Criminal Law Consolidation Act 1935 (SA) provides another example where the term ‘possession’ has a meaning that is inconsistent with the ordinary criminal law meaning of the term. In Police v Kennedy (1998) 71 SASR 175, the court held that, to establish the offence of possessing

child pornography, the Crown must prove that the accused knew that he or she had possession of the offending material and that he or she knew of the contents of material.74 Notwithstanding that the age of the person depicted is the defining characteristic that renders possession unlawful, the court held that the Crown is not required to prove that the accused knew that the images are of children. The court’s decision arose from the fact that the legislation defined a child to include someone who is apparently under the prescribed age. Whether the relevant image is of a child, is not determined by reference to the subject’s actual age but is objectively determined by the arbiter of fact. It followed that the accused’s belief as to the age of the persons depicted is not relevant to criminal responsibility. The Crown does not have to prove that the accused knew of the very characteristic that rendered the material illegal. Furthermore, the Proudman v Dayman excuse is excluded from applying as criminal responsibility is determined by reference to the jury’s determination as [page 58] to whether the image is apparently of a child. A reasonably held belief that images are of a person above the prescribed age is irrelevant.75

Reasonable mistake as an excuse 2.22 At common law, the excuse of mistake of fact is known as the Proudman v Dayman ground of exculpation.76 In the past it had been common to refer to it as the Proudman v Dayman defence; however, the plurality judgment in CTM v R (2008) 236 CLR 440 cautions that the use of the term ‘defence’ is prone to cause some confusion as to which party bears the onus of proof. Accordingly, the members of the High Court refer to it as the Proudman v Dayman ground of exculpation (see 2.9).77 In substance, the ground of exculpation is activated by a positive reasonable mistaken belief in facts which, had they existed, would have made the accused’s conduct innocent. As

Stephen J remarked in R v Tolson (1889) 23 QBD 168, a person ‘is deemed to have acted under that state of affairs which he in good faith and on reasonable grounds believed to exist when he did the act alleged to be an offence’.78 In Proudman v Dayman (1941) 67 CLR 536, Dixon J elaborated upon the need for a consciously made mistake; simple ignorance being insufficient. The accused was charged with permitting an unlicensed person to drive a motor vehicle on the road, contrary to s 30 of the Road Traffic Act 1961 (SA). His Honour distinguished between those offences where it was necessary to show positive knowledge, and those where it was not. While noting the weakening of the presumption of mens rea in construing statutory offences, that trend did not mean that ‘the rule that honest and reasonable mistake is prima facie admissible as an exculpation has lost its application also’.79 His Honour said:80 It is one thing to deny that a necessary ingredient of the offence is positive knowledge of the fact that the driver holds no subsisting licence. It is another to say that an honest belief founded on reasonable grounds that he is licensed cannot exculpate a person who permits him to drive. As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence.

In the event, the appeal was dismissed. There was no evidence that the accused had cast her mind to the question whether the driver was licensed or not. The case [page 59] was one of complete indifference.81 Had the court ruled that knowledge of the unlicensed status of the driver was an ingredient of the offence under s 30, the accused’s ignorance of that fact would have justified an acquittal. In that event, the onus of proving knowledge would have rested on the prosecution. 2.23 The trend to which Dixon J referred (the weakening of the presumption of mens rea) reached its peak in a series of Victorian decisions82 but was finally turned back by the High Court in He Kaw

Teh v R (1985) 157 CLR 523. In this case, the applicant was arrested at Melbourne airport when an inspection of his suitcase revealed a false bottom containing 2.788 kg of heroin. He was charged with the importation (s 233B(1)(b)) and possession (s 233B(1)(c)) of prohibited imports in breach of the Customs Act 1901 (Cth). The relevant sections made no reference to any specific state of mind such as knowledge, motive, attention or advertence. The Victorian trial judge instructed the jury that proof of such elements was not required and that the burden of proving an honest and reasonable mistake or reasonable excuse rested upon the accused. These directions were consistent with previous decisions of the Full Court, which accordingly dismissed the subsequent appeal. The matter came before the High Court, which found in favour of the appellant. The judgments extend beyond a bare interpretation of the Customs Act, and have had a major impact upon the construction of statutory provisions in Australia. The following general principles, extracted from Brennan J’s judgment, have been much cited:83 (1) There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind. (2) There is a further presumption in relation to the external elements of a statutory offence concerning circumstances attendant on the doing of the physical act involved. It is implied as an element of the offence that, at the time when the person who commits the actus reus does the physical act involved, the person either: (a) knows the circumstances which make the doing of that act an offence; or (b) does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent. (3) The state of mind to be implied under (2) is the state of mind which is more consonant with the fulfilment of the purpose of the statute. Prima facie, knowledge is that state of mind. (4) The prosecution bears the onus of proving the elements referred to in (1) and (2) beyond reasonable doubt except in the case of insanity and except where statute otherwise provides.

Earlier cases which expressed doubt on the existence of a presumption of mens rea in dealing with statutory offences84 must now be read in light of He Kaw Teh. [page 60]

2.24 The strengthening of the common law presumption of mens rea in He Kaw Teh effectively diminished the role of the Proudman v Dayman ground of exculpation as the latter applies only in the absence of a mental element. The model Criminal Codes mirror the common law position by including a default mental element which applies in circumstances where an offence fails to specify a fault element.85 The mistake of fact ground of exculpation still has an important role to play even though it is less frequently relied upon than would have been the case had the High Court not elevated the presumption of mens rea or if the model Criminal Code had not included a default mental element. Take, for example, the statutory offences of ‘dangerous’ or ‘culpable’ driving86 which are not ‘species of the genus of criminal negligence’.87 Responsibility is determined objectively and does not require proof of fault on behalf of the driver. Dangerous or culpable driving is constituted by a serious departure from what would be expected, so as to subject others to potential harm over and above what would normally be expected when driving.88 Although the offence is objectively determined, what was in the driver’s mind is not irrelevant as the accused may seek to rely on the excuse of reasonable mistake of fact.89 The mistake might relate to the condition of the vehicle, the driver’s own physical condition or fitness to drive, or the driving conditions. 2.25 The mens rea presumption does not apply to the Griffith Code or the Tasmanian Code.90 In those jurisdictions the mistake of fact excuse is important as many offences do not include a fault element. As stated above (see 2.9), the excuse of mistake of fact under the codes is similar to the common law excuse.91 Section 24 of the Griffith Code provides:92 A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things has been such as he believed to exist.

[page 61]

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.

Section 32 of the Criminal Code (NT) is the same as the Griffith Code except that it makes no reference as to how the excuse may be excluded from having effect.93 Although the term ‘things’ as it appears in the Griffith and Northern Territory Codes could be read as having a wider meaning than ‘facts’, the courts have defined it consistent with the latter term.94 Unlike the other three Griffith-based Codes, the excuse of mistake of fact under the Tasmanian Code is consistent with the common law in that it exculpates only where the mistaken belief, if true, would render innocent the act of the accused: Hindrum v Lane [2014] TASFC 5 (see 2.41–2.42).

Honest belief and ignorance 2.26 In all jurisdictions the accused must hold an ‘honest belief’.95 The term simply means the accused must have genuinely held a belief.96 The word ‘honest’ does not add anything as a ‘dishonest belief is a contradiction in terms’.97 Any relevant circumstance or characteristic of the accused can be taken into account by the arbiter of fact when considering whether there is reasonable doubt that the accused held a belief. This includes a state of self-induced intoxication, which, although relevant when considering whether the accused held a belief, is irrelevant when considering whether the belief was held on reasonable grounds.98 2.27 In each jurisdiction, it has long been accepted that the accused must have had a positively held belief. Evidence that the accused failed to turn his or her mind to the relevant matter will not suffice.99 The principle can be expressed in simple terms that ignorance or inadvertence does not excuse. This is explicit in the decision of Proudman v Dayman (1941) 67 CLR 536 where the excuse failed on the facts because she had not turned her mind to the question as to whether the driver was licensed. Another example is Green v Sargeant [1951] VLR 500, where the accused, who was charged with killing native game on a proclaimed sanctuary, said that he did not know the

area was a sanctuary. This was no defence because:100 [the accused’s] ignorance of the nature of the area in which he was engaged does not necessarily mean that he had an honest belief in a state of facts which, if they existed,

[page 62] would make his action innocent … He really had no belief on the subject, for it never entered his head what was the nature of the property where he was.

2.28 In State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721; 65 A Crim R 101, the New South Wales Court of Appeal gave the following reason for rejecting a defence of ignorance under the mistake of fact doctrine:101 It would be inconsistent with the legislative purpose underlying the Clean Waters Act (NSW) to conclude that the mere lack of knowledge that pollution was occurring, or was likely to occur, based upon a general understanding or assumption that everything was in order, would be sufficient to amount to a mistaken belief. Rather, a belief in the existence of a set of facts which, if true, would take the conduct in question outside the operation of the statute would entail, in a case such as the present, a positive belief that the operation of the plant and equipment would not result in pollution. That belief would also need to be sufficiently specific to relate it to the elements of the particular offence. In the present case it could be a belief that the particular pipeline did not leak, or a belief that, if it did, oil that was leaked would not pollute waters.

The rationale for insisting on a positive belief has also been explained in the following terms: ‘ignorance should not be included because this would make strict liability more like negligence, thus eroding the higher standard of compliance set by strict liability’.102 2.29 An exception to the rule that the accused must have held a belief at the time of the offence is where the same situation had arisen previously and on that earlier occasion the accused had formed a belief. When faced with a repeat of the earlier situation, the accused is absolved of the need to once again consider the circumstances and form a belief. For example, in the South Australian case of Mayer v Marchant (1973) 5 SASR 567, Bray CJ referred to the driver of a truck who carried distillate on a daily basis and who may not have given any thought to the weight of his truck on a particular day.103 The driver would be able to plead mistake of fact if he had thought about the

weight of his truck on a previous occasion and assumed that nothing had changed. This principle has been given statutory form in the model Criminal Codes.104 It acknowledges that individuals involved in repetitive behaviour do not, and are not expected to, think about the details of their conduct on every occasion. 2.30 In State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721; 65 A Crim R 101, Gleeson CJ suggested that whether an accused had been mistaken, rather than merely ignorant, may depend on the statutory offence charged. Gleeson CJ had this to say (emphasis added):105 The word ‘mistake’ is, itself, ambiguous. Suppose, for example, that a person permits someone who is in fact unlicensed to drive that person’s car. The owner … may have a positive belief that the driver is licensed or, having considered the matter in a general way, may be of the view that there is no particular reason known to the owner why the

[page 63] driver should not be permitted to drive, or might simply not trouble to think about the subject at all. In any of these cases, the owner might well say that he or she was surprised to learn subsequently that the driver was unlicensed. However it is another thing to say that the owner had made a mistake about the matter. It seems clear enough that, of the three states of mind just described, the first would, in the present context, be accepted as a mistake of fact and the third would not. Whether the intermediate possibility would also be accepted might depend upon a closer examination of the particular case and a consideration of the legislative purpose in creating the offence.

2.31 The importance of the statutory context was further considered by the High Court in Libke v R (2007) 230 CLR 559. The focus of the decision was on the appropriateness of the prosecutor’s conduct during the trial. However, the High Court asked counsel to make additional submissions about the relevant specific statutory defence of reasonable mistaken belief. The appellant was convicted of three counts of engaging in sexual offences with an intellectually impaired person, an offence against s 216 of the Criminal Code 1899 (Qld).106 The appellant relied on s 216(4) which provides a defence if the accused can prove that he or she believed, on reasonable grounds, that the complainant was not intellectually impaired. The only evidence as to the

appellant’s belief was his response in court when asked about his perception of the complainant. He stated that ‘[s]he was friendly, confident. She – she seemed fine’. The appellant did not give evidence that he had turned his mind to whether the complainant was intellectually impaired. Although they dismissed the appeal, Hayne J, with whom Gleeson CJ and Heydon J agreed, pointed out that it would have been ‘forensically difficult’ for the appellant to give evidence as to his awareness or otherwise of the victim’s intellectually capacity.107 Evidence that the appellant had thought about her intellectual capacity and had concluded that she was not intellectually impaired would simply beg the question as to why he had diverted his mind to consider her intellectual capacity. Hayne J states that:108 There are circumstances in which a person may be said to hold a belief, and to hold that belief on reasonable grounds, even though the person does not consciously advert to the question. Often the absence of some indication of departure from what is generally assumed to be the norm will be an important consideration in deciding not only whether a person believes that the norm applies but also whether there were reasonable grounds for holding that belief.

Gleeson CJ added the ‘brief observation’ that ‘[m]ost of the beliefs that form the basis of our dealings with other people are more in the nature of undisturbed assumptions than conclusions based on a process of reasoning’. Kirby and Callinan JJ, who dissented, made similar statements with respect to the defence of mistake of fact:109 There are varying degrees of belief just as there are varying degrees of consciousness, cognition, awareness, sophistication, experience, maturity, gullibility and naivety. A person may understand some matters very well and others barely at all. In general, people are entitled to believe what they have no reason to suppose to be otherwise or what it would not occur to them to question.

[page 64] These statements are made in the context of a specific statutory defence, but they are capable of broader application. Under the Griffith Code, the same ‘forensic difficulty’ could exist in a rape trial where the prosecution’s case is based on the complainant’s lack of capacity to consent (see Chapter 5). The accused would seek to rely on the general

excuse of honest and reasonable mistake of fact. In such circumstances, the approach taken in Libke v R should apply so that an accused would be deemed to believe that which he or she had no reason not to believe.110 However, this approach is unlikely to be applied to companies or individuals charged with offences designed to regulate commercial activities.111 A burden imposed on individuals and companies who enter industries that have health, safety and environmental impact concerns is that they engage in routine and systematic review of processes. They do not simply rely on the assumption that all is well. To this end, many regimes that govern commercial enterprises engaged in such activity include a statutory defence of due diligence (see 2.48–2.50). 2.32 Some judges have gone further and have argued in favour of the criminal law recognising a general excuse based on honest and reasonable ignorance.112 A state of ignorance may not be unreasonable and the question arises as to whether it was intended to punish someone who was not morally blameworthy. Thus, in Kain and Shelton Ltd v McDonald (1971) 1 SASR 39, Bray CJ said:113 … I fail to see why a man who has never directed his mind to a particular question should necessarily be more blameworthy than one who has done so but come to an erroneous conclusion due to a mistake of fact. In either case there may or may not be blameworthiness. A man may be unreasonable in arriving at a mistaken conclusion; he may not be unreasonable in not thinking about the matter at all.

In the later case of Mayer v Marchant (1973) 5 SASR 567, Bray CJ recognised the possibility of there being an excuse of honest and reasonable ignorance but found it unnecessary to determine the issue. Hogarth J, in the same case, also found it unnecessary to decide, as a matter of law, whether such an excuse exists. However, His Honour said that:114 If the defence exists, it may be looked upon as the reverse side of the coin to the defence in Proudman v Dayman. There, there must be a positive belief in a fact or set of facts which, if true, would render the defendant’s act innocent. A defence of reasonable ignorance can only apply if the ignorance is of the existence of circumstances which, if they did not exist, would render the defendant’s act innocent.

Mistake and reasonableness

2.33 Where a mistaken belief is relied upon in order to negative a fault element, there is no requirement that the mistake be reasonable. The crucial question is simply whether the accused had the relevant state of mind. The reasonableness, [page 65] or otherwise, of the mistake is only relevant to the question as to whether the mistaken belief was in fact held (see 2.12). 2.34 Both the Proudman v Dayman excuse and the Code excuse require the accused’s mistake to be reasonably held.115 Two different approaches to the reasonableness requirement can be identified. The first is a purely objective approach whereby the accused’s belief is evaluated by the tribunal of fact with reference to a hypothetical reasonable person. The second approach requires the tribunal of fact to consider whether the accused’s belief was reasonably held given the relevant circumstances.116 Given that the focus is on the accused’s belief, personal characteristics of the accused that may have impacted upon his or her view of the relevant events can be taken into consideration when determining whether there was a reasonable basis for the belief. This second approach is favoured by the wording of the various statutory enactments and the common law expression of the excuse, which require the accused’s belief to be honestly and reasonably held.117 There is, however, support for the first approach in judicial statements that refer to the reasonable person or the objective test.118 2.35 The reasonableness requirement has been the subject of judicial consideration in the code states of Queensland and Western Australia but has attracted little attention in other jurisdictions.119 In R v Mrzljak [2005] 1 Qd R 308 the appellant’s main language was Bosnian and his English was limited to words such as ‘no’, ‘stop’, ‘come’ and ‘refidex’. He was convicted of two counts of rape, the first involving penile penetration of the mouth and the second involved penile penetration of the vagina. The complainant was intellectually impaired, with an IQ of

52. The Crown’s case was that the complainant had not consented or, in the alternative, that she did not have the capacity to consent. Following his conviction, the appellant was examined by a Bosnianspeaking psychiatrist, at which point it became clear that the appellant also suffered from mild retardation as evidenced by his IQ of 58. The Court of Appeal held that the excuse of mistake of fact (s 24 of the Criminal Code (Qld)) requires the jury to consider whether the accused’s belief was held on reasonable grounds and not by reference to what a reasonable person would have believed.120 Holmes J states that:121 The section directs attention to the actual belief of the accused; nothing in its language invites reference to the reasonable man’s putative belief. What must be considered, in my view, is the reasonableness of an accused’s belief based on the circumstances as he perceived them to be.

[page 66] The appellant’s limited English skills and his intellectual impairment meant that he might not have realised that the complainant was suffering from an intellectual impairment and that she was indicating her lack of consent. The majority held that his limited English and mild retardation were factors that the jury should have taken into account when considering whether the Crown had proven that the appellant’s belief was unreasonably held.122 In Aubertin v Western Australia (2006) 33 WAR 87; 167 A Crim R 1, McLure JA lucidly expressed the principle set out in R v Mrzljak. Her Honour’s exposition provides guidance as to which of the accused’s personal characteristics may be of relevance when evaluating whether his or her belief was reasonably held. Her Honour stated that:123 For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused’s belief must be reasonable (mixed element). The focus in this case is on the mixed element. The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused

that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself. However, the ambit of what constitutes the personal attributes and circumstances of a particular accused has not to my knowledge been identified or exhaustively enumerated. It covers matters over which an accused has no control such as age (maturity), gender, ethnicity, as well as physical, intellectual and other disabilities. This list does not purport to be exhaustive.

2.36 It is clear that not every personal characteristic or attribute of the accused will be taken into consideration. For example, the courts have consistently rejected a state of self-induced intoxication as having any relevance to the reasonableness of the accused’s belief.124 Although it has been accepted that evidence of a mental disease, such as chronic paranoid schizophrenia, can be taken into consideration when determining whether a belief was reasonably held,125 some judges have suggested that further judicial review may limit how such evidence is applied.126 As the focus is on whether the accused’s belief was reasonably held, a trial judge would err if he or she were to use phrases such as ‘no reasonable person in the accused’s position’ or ‘would an ordinary, reasonable person have formed such a belief ’.127 [page 67] 2.37 The approach taken in the Griffith Code jurisdictions and its potential application to other jurisdictions represents a very significant development in both the law of mistake of fact and the criminal law more broadly. The question lying at the heart of this development is whether the criminal law imposes a uniform standard on all individuals, regardless of individual differences, or whether, to some extent, it acknowledges that individuals vary in their attributes. Arguing that the law should recognise individual differences, Holmes J in R v Mrzljak [2005] 1 Qd R 308 states that:128 It would be absurd here to introduce a fiction that the appellant had a full command of the language into the process of considering whether he laboured under a reasonable but mistaken apprehension as to the existence of consent.

2.38 It remains unclear whether the common law and the other code jurisdictions will take the same approach to the reasonableness

requirement. The language of some common law decisions supports the conclusion that the accused’s belief is to be evaluated entirely objectively.129 The limited comments provided by the majority in CTM v R (2008) 236 CLR 440130 regarding the reasonableness requirement are somewhat opaque. However, the High Court’s decision in Jiminez v R (1992) 173 CLR 572 supports the conclusion that the Griffith Code approach also applies to the common law. The appellant was convicted of dangerous driving causing death, an offence against s 52A of the Crimes Act 1900 (NSW), in circumstances where he fell asleep at the wheel, veering off the road, hitting a tree and killing his passenger. The High Court held that the appellant’s circumstances—such as the fact that he had slept, he had not taken alcohol or drugs, he had not been driving for a long period of time and he had not experienced any drowsiness — could all be taken into consideration by the jury when determining whether his belief that it was safe to drive was reasonable.131 The Full Court of the Supreme Court of Tasmania and the Supreme Court of Australian Capital Territory have recently endorsed the Griffith Code approach in the context of the common law (see 2.8).132 The Full Court of the Federal Court of Australia in Australian Fisheries Management Authority v Su (2009) 195 A Crim R 352 has also followed the Griffith Code approach when applying s 9.2 of the Criminal Code (Cth).133 [page 68]

Mistake of fact: mistake as to the existence of any state of things 2.39 At common law, under the Criminal Code 1924 (Tas) and under the model Criminal Codes, a mistaken belief must be about a state of facts.134 The wording of the Griffith Code and s 32 of the Criminal Code (NT) differ slightly, with the sections stating that the mistake must be as to the ‘state of things’. In Ostrowski v Palmer (2004) 218 CLR 493, Callinan and Heydon JJ stated that the term ‘things’ implies a

concept that is wider and different from the term ‘facts’.135 However, it is argued that, as the courts have failed to identify any differences between the two terms, they continue to encapsulate the same concept. This approach is consistent with the argument that the Codes reflect the common law and with the rule of statutory interpretation which favours the resolution of statutory ambiguity so as to encourage uniformity between the Australian jurisdictions.136 Further supporting this proposition, the majority in CTM v R (2008) 236 CLR 440 does not rigidly adhere to a set of words when applying the common law; their Honours use the term ‘state of affairs’ interchangeably with the term ‘state of facts’.137 2.40 Although nothing turns on the difference between the terms ‘fact’ and ‘thing,’ a distinction has been drawn based on the words ‘as to the existence’ which is found in a number of codes. The Griffith Code and s 31 of the Criminal Code (NT) state that the mistake must be ‘as to the existence of any state of things’; similarly, the Criminal Code (Tas) states that the mistake must be ‘as to the existence of the state of facts’. These terms have been interpreted so as to impose a limit on the scope of the excuse, a limit that does not exist at common law or under the model Criminal Codes. In R v Gould and Barnes [1960] Qd R 283, the Queensland Court of Criminal Appeal drew a distinction between a mistake as to the state of things and a mistake as to the consequences of the accused’s conduct. The accused were abortionists who had introduced a liquid into the victim’s uterus, resulting in her death. They claimed to have mistakenly believed that there was no danger in using the liquid in the way it was used. The court rejected the contention that mistake of fact should have been left to the jury. The court held there was no evidence of a mistake ‘as to the existence of the state of things’ as their mistaken belief was not about the composition of the liquid, but rather about the liquid’s possible dangerous effect on the victim.138 The court’s decision when applied beyond the facts of the case results in rather fine distinctions being drawn. For example, a mistaken belief that a knife used to inflict a wound was sterilised is a mistake of fact. A belief that a knife wound will not result in an infection is a mistake as to a possible consequence. The courts have not

always been consistent in drawing this distinction between a mistaken belief ‘as to the state of things’ and a mistaken belief as to the consequence of the accused’s conduct. In R v Pacino (1998) 105 A Crim R 309, the accused’s dogs, three Rottweilers and a German Shepherd– Rottweiler cross, attacked and [page 69] killed the victim.139 Based on the decision in R v Gould and Barnes, the trial judge refused to leave the excuse of mistake of fact to the jury. The Western Australia Court of Criminal Appeal held that the trial judge had incorrectly excluded the excuse. The court accepted that ‘the question of whether the dogs were such that, in the absence of care or precautions in their care or management, they might endanger the life, safety or health of a person is “a state of things” for the purpose of s 24’.140 As Pacino was concerned with a criminal negligence conviction, the decision could have been reconciled with that of Gould and Barnes. As argued at 2.18, in criminal negligence cases evidence of a mistaken belief should be used to negate the objective fault element, not raised to enliven the excuse of mistake. The distinction between mistake of fact and mistake as to consequence has no application in the context of mistake being applied so as to negate a fault element.

The legality of the intended outcome 2.41 At common law the mistaken belief must be of such a nature that, if it were true, it would render the accused’s act ‘innocent’.141 The English decision of Prince v R (1875) LR 2 CCR 154 supports the proposition that, in the context of mistake of fact, innocent means morally innocent. However, the notion that a person may be convicted of a crime because of a belief in a state of fact which, if true, would be at most evidence of immoral conduct is repugnant to contemporary notions of life within a pluralistic society.142 It is therefore not surprising that the Prince position has been rejected in favour of the

view that the belief must be such that, if true, it would render the accused innocent of an offence. This approach was followed by the High Court in Bergin v Stack (1953) 88 CLR 248143 and by the Victorian Court of Criminal Appeal in R v Iannazzone [1983] 1 VR 649; (1980) 3 A Crim R 246. In the first-mentioned case, the accused was charged with selling liquor without a licence. He was employed by a club and had not inquired whether the club had a licence but assumed that it did. The liquor was sold after 6 pm. No club could be licensed to sell at this hour and therefore, even on the footing that the club did have a licence to sell liquor, the sale at that time would have been an offence under s 266 of the Licensing Act (Vic). In Iannazzone, one ground for rejecting the qualified defence of killing pursuant to a suicide pact was that, even if the facts were as the accused believed them to be, he would still have been guilty of manslaughter. Therefore, the defence was not available.144 This approach is also consistent with that expressed in the model Criminal Codes and in the Criminal Code (Tas).145 [page 70] 2.42 What is meant by the term ‘innocent’ in this context remains unresolved. Brett J, the sole dissenter in Prince v R (1875) LR 2 CCR 154, stated that the accused’s mistaken belief must be such that it ‘would, if true, make his acts no criminal offence at all’.146 This approach has been cited with approval by Australian judges, including by Fullagar J, with whom Williams and Tayor JJ concurred, in Bergin v Stack (1953) 88 CLR 248.147 Assuming that this approach is adhered to, the obvious question to be asked is why an accused should be convicted of a particular crime if, on the facts which he or she believed to exist, he or she would at most be guilty of some minor offence with which he or she had not been charged.148 For example, it would seem wrong to convict a person of a serious drug offence in circumstances where he or she had possession of the drugs but reasonably believed them to be an excisable good, namely tobacco, which if the belief were

true would have meant that he or she was merely committing a breach of s 117 of the Excise Act 1901 (Cth). However, it is sometimes said that burglars should not be able to escape punishment if, in order to minimise potential punishment, they enter premises to steal, believing it to be earlier than 9 pm when in fact it is after 9 pm. Be this as it may, there is a world of difference between burglars who set out to commit a crime in a manner which (so they believe) will be least unpleasant for them if they are caught, and a person who honestly believes that at worst what he or she is doing is a minor offence. An alternative approach is to limit the innocence requirement so that the mistaken belief, if true, would render the accused not guilty of the offence charged or of any similar offences. This narrow approach is supported by the statement of Dixon J in Proudman v Dayman (1941) 67 CLR 536149 with whom the majority in CTM v R (2008) 236 CLR 440 agreed. According to the latter decision:150 [T]he word ‘innocent’ means not guilty of a criminal offence. In the case of an offence, or series of offences, defined by statute, it means, if the belief were true, the conduct of the accused would be ‘outside the operation of the enactment’.

On this basis, an honest and reasonable but mistaken belief will exculpate in circumstances where, if the belief were true, the accused would not have committed the offence and would not have committed any other offence prescribed by the same legislation which enacts the offence for which he or she has been charged.151 The language of the model Criminal Codes is inconsistent with the approach taken in CTM as the Codes give expression to the position taken by Brett J in Prince.152 2.43 As stated at 2.10, this is an area of the law where the Griffith Code and s 32 of the Criminal Code (NT) differ from the other jurisdictions. Those codes state that an accused is not criminally responsible to any greater extent than if his or her belief represented the actual state of things. The successful reliance on [page 71]

the excuse can result in: an acquittal; a conviction for a lesser offence; or being subject to a lower maximum penalty for the offence for which they were charged. An example of the third possible result is where a burglar, in Queensland or the Northern Territory, enters premises at 5.30 am (at night) believing that it is 6.30 am (during the day). By successfully raising reasonable mistake of fact the burglar would be liable to a maximum of 14 years’ punishment for housebreaking, but not life imprisonment for burglary at night, which is defined as the hours between 9 pm and 6 am.153

Mistake must be of fact and not of law 2.44 At common law and under the codes, the excuse requires the mistake to be one of fact and not of law. The distinction between mistake of fact and mistake of law is, in many cases, clear-cut; on the basis that the former entails a mistaken belief of the true facts whereas the latter involves a mistaken belief as to the legal relevance of the facts.154 However, problems with demarcation arise in cases where the mistake involves a compound of fact and of law so that they could be classified as matters of fact or matters of law. In the High Court case of Thomas v R (1937) 59 CLR 279, Dixon J (as he then was) opined that such compound mistakes will usually be categorised as mistakes of fact.155 Bray CJ, in the South Australian case of Power v Huffa (1976) 14 SASR 337, took the opposite view.156 2.45 For these difficult cases, it has been suggested that the answer lies in the basis on which the accused formed the mistaken belief. If the mistake stems from a factual error, such as transpired in Thomas v R (1937) 59 CLR 279 where the error was whether an event had or had not occurred, the mistake will be one of fact. However, where the mistake is primarily concerned with drawing legal inferences or engaging in legal interpretations, the mistake will be treated as one of law. This occurred in Power v Huffa (1976) 14 SASR 337 where the accused erroneously assumed that the federal government minister could lawfully authorise behaviour which was otherwise in breach of state law. This approach could be usefully applied to the High Court

case of Iannella v French (1968) 119 CLR 84 in which the court split evenly over the correct classification of the mistake in question. The accused erroneously believed that a statute had been repealed by another statute coming into effect. Barwick CJ and Windeyer J opined that this was a mistake of fact whereas Taylor J and Owen J regarded it as a mistake of law.157 Based on the approach mentioned above, the latter view is to be preferred since the accused’s apparent factual belief was contingent on a conclusion based upon a wrong assumption of law (see 3.6–3.13). [page 72]

Status offences 2.46 Some offences are such that the commission of an act or an omission by the accused does not form part of the actus reus. The term ‘status offence’ is used in this context. Status offences differ widely. In some cases, liability is imposed because of a legally recognised relationship between the accused and some other person or thing; for example, ‘being in possession of’, ‘being the owner of’, ‘being the employer of’ or ‘being the occupier of’. In other cases, liability is imposed because of the accused’s physical condition or location; for example, ‘being drunk’ or ‘being found in’. A given status may combine with some incapacity to create criminal responsibility.158 2.47 In principle, the excuse of mistake of fact may be open even though the crime charged does not require proof of an act or omission by the accused. In the South Australian case of Kain and Shelton Pty Ltd v McDonald (1971) 1 SASR 39, Bray CJ noted that mens rea may be a necessary ingredient of a status offence. In such cases, mistake of fact and ignorance will be relevant considerations (see 2.12). Bray CJ did not regard status offences, which do not require proof of mens rea, as falling into a special category outside the scope of the defence of mistake of fact.159 On the other hand, Hogarth J, in the same case, considered that, where liability attached to the owner of a vehicle, there

was less room to impute to parliament ‘an intention that reasonable mistake should be a defence to the charge’.160 Ultimately, it was not necessary to decide whether the defence was open to the accused because there was no evidence which could invoke the defence in any relevant form.

Mistake, negligence and due diligence 2.48 Some common law jurisdictions have recognised a defence based upon ‘total absence of fault’. Reasonableness is a constituent element of this defence in the sense that the accused must prove that he or she took all reasonable care. To all intents and purposes, the effect is to convert a strict liability offence into a crime of negligence. Although negligence is not a matter for proof in the first instance, the accused can tender evidence to prove on the balance of probabilities that he or she took all reasonable care to comply with the law.161 In cases where the accused has done all that could reasonably be done to ensure compliance with the law, it may be argued that a defence of honest and reasonable mistake should be available under the heading of due diligence.162 [page 73] 2.49 However, it is technically incorrect (having regard to the requirements of proof) and potentially misleading to equate the defence of mistake with an absence of negligence (or due diligence). There is a significant disparity between requiring the prosecution to establish negligence and requiring it to exclude a reasonable mistake of fact.163 The prosecution may defeat the defence of reasonable mistake of fact without having to show negligence at all. The prosecution may prove that the belief was not held or that the facts believed in would not, if they existed, make the accused’s act innocent in the required sense. Therefore, the defence of reasonable mistake of fact does not always entail an absence of negligence.164 The due diligence defence which has been recognised in some jurisdictions, and which does presuppose an

absence of negligence, is therefore not an automatic extension of the excuse of mistake of fact.165 Australian jurisdictions do not generally recognise due diligence as an extension of the excuse of mistake or, as an independent excuse of general application.166 The mere fact that the accused has acted reasonably does not mean that he or she was acting under a reasonable belief. Furthermore, the defence of mistake only excuses the accused if a reasonable mistake was made; it is not a defence of reasonable behaviour or due diligence. 2.50 Although not a defence of general application, due diligence defences of limited application are a common feature of Australian statutory regimes. For example, acts that prescribe environmental offences commonly include a due diligence defence.167 Further, in circumstances where the accused is a body corporate, the model Criminal Codes’ excuse of due diligence is incorporated into the mistake of fact excuse. The model Criminal Codes state that an honest and reasonable mistaken belief will only exculpate a body corporate if it proves that it exercised due diligence in an effort to prevent the offending conduct.168

Mistake of fact giving rise to other defences 2.51 The circumstances under which a mistake of fact may be relevant to some other recognised defence, such as self-defence or provocation, is considered in detail in successive chapters. An obvious example is putative self-defence, where a [page 74] person attacks another in the mistaken belief that an occasion for selfdefence has arisen. The relevance of mistake is considered in relation to the various defences, although some brief comments are offered here. 2.52 There are at least four ways that a factual error may be relevant to some other recognised defence.

First, some defences require the accused to have held a belief as to a particular state of affairs. It is of no consequence whether the belief reflected the real state of things or whether it was a mistaken belief.169 All that is required is that the accused must have held the belief.170 As it is a subjective requirement there is no need for recourse to the excuse of reasonable mistake of fact. Second, it is also common for some defences to include an objective/subjective (hybrid) requirement which, because it gives effect to the same considerations as the excuse of mistake of fact, excludes the need to rely on the excuse of reasonable mistake of fact.171 For example, the specific defence may require the accused to have held a reasonable belief as to a particular state of affairs or require that the accused’s belief be reasonable in the circumstances as the accused believed them to be.172 Third, some defences include an objective requirement.173 For an objective requirement a mistake of fact is irrelevant unless it was such that an ordinary or reasonable (depending on the terms of the defence) person would have reached the same conclusion in the circumstances. Once again, recourse to the excuse of reasonable mistake of fact is excluded as the objective requirement of the defence cannot be whittled away by introducing the hybrid requirement of the mistake of fact excuse. Fourth, some defences require the existence of objective circumstances. For example, the defence may require the accused to have been subject to an assault or the threat of serious harm which will be inflicted unless the accused commits a designated offence or an extraordinary emergency.174 In circumstances where the objective circumstances do not in fact exist, an accused can rely on the excuse of reasonable mistake of fact to raise the defence. That is, if the circumstances had been as the accused reasonably believed them to exist, he or she would have been subject to an assault or a threat of serious harm which will be inflicted unless the accused commits a designated offence or an extraordinary emergency.

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Onus and burden of proof 2.53 At common law and under the codes, the legal burden of disproving a mistake of fact rests upon the prosecution. This is so whether the mistake is raised in order to prevent proof of a fault element or to enliven the excuse of honest and reasonable mistaken belief. In the first case, the prosecution must prove beyond reasonable doubt that the accused was not ignorant or did not hold a mistaken belief, or that the ignorance or mistaken belief did not exclude the necessary mental element. The defence carries no burden of proof and does not have an evidential onus to raise a doubt with regard to the presence of the necessary state of mind.175 In the second case, the accused carries merely an evidentiary onus of raising the excuse of reasonable mistake of fact.176 A trial judge, when deciding whether the evidential burden has been met, must determine whether ‘there is evidence which, taken at its highest in favour of the accused’, could lead to a reasonable doubt that the accused had a belief which was reasonably held — which, if the belief reflected reality, would mean that one of the elements of the offence could not be established.177 A trial judge must take care to avoid reference to words such as the ‘evidential burden of establishing an honest but mistake belief’, as it suggests a more onerous requirement than the requirement that the excuse must merely be raised.178 If the evidential onus is met, the trial judge must direct the jury on the excuse even though the defence counsel has abandoned it or sought to have it disallowed.179 In Victoria, the decision to direct a jury as to any defence is now regulated by statute (see 1.83). 2.54 Evidence capable of satisfying the evidential burden was the subject of the High Court’s decision in CTM v R (2008) 236 CLR 440. The appellant, a 17-year-old male, was convicted of having sexual intercourse with a 15-year-old girl, an offence against s 66C(3) of the Crimes Act 1900 (NSW).180 In an interview with police, the appellant

denied that sexual intercourse had occurred and he alleged that when they first met, the girl informed him that she was 16 years of age. He further told police that he believed the girl was in grade 10 at school. At trial, the appellant did not give any evidence and the defence case was that sexual intercourse had not occurred. On appeal, it was argued that the trial judge should have given a Proudman v Dayman direction to the jury. The majority of [page 76] the High Court held that the Proudman v Dayman excuse could be relied upon where the offence alleged is sexual intercourse with a person under the age of 16 years (s 66C(3)).181 However, the majority dismissed the appeal on the basis that the defence had failed to meet the evidential onus to raise the Proudman v Dayman excuse. There was no evidence before the court to ‘support the honesty and reasonableness of a suggested belief in the truth of his out-of-court assertion that the complainant had told him what would have been a lie about her age’.182 According to the majority, to ‘enliven’ the excuse the appellant must have given evidence or, at the very least, the defence counsel must have questioned the complainant about any conversation he had with the appellant about her age.183 The decision has significant ramifications as it requires defence counsel to elicit some evidence of an excuse even in circumstances where the excuse is inconsistent with the ‘primary’ case of the defence.184 Kirby J, in dissent, was the only member of the court who ruled that the evidential onus had been met. His Honour found that the trial judge incorrectly failed to direct the jury as to the Proudman v Dayman excuse. Kirby J rejected the majority’s ruling that the defence must ‘enliven’ the excuse. In effect, the majority’s approach requires that the accused either give evidence or elicit evidence which excludes the option of the defence simply relying on evidence presented as part of the prosecution’s case.185 The majority’s approach is inconsistent with the presumption that the excuse of honest and reasonable mistake of fact applies generally as an

element of an offence. Kirby J took the view that the majority’s decision is based on a misconception as to how the adversarial process operates. The defence is ‘entitled to put the prosecution to the proof’.186 2.55 Once mistake of fact is raised as a live issue, it is for the prosecution to prove beyond reasonable doubt that the accused did not believe on reasonable grounds in the existence of facts which, in the circumstances, would take the accused’s act outside the operation of the statute (see 2.42).187 Earlier common law dicta which suggested that the defence is ‘affirmative’ (in that the onus of [page 77] proof is cast upon the accused) are incorrect.188 In He Kaw Teh v R (1985) 157 CLR 523, Dawson J said:189 There is, however, no justification since Woolmington v Director of Public Prosecutions for regarding the defence of honest and reasonable mistake as placing any special onus upon an accused who relies upon it … The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted.

Reforming the law 2.56 The three leading High Court decisions on mistake of fact have done much to clarify the common law of mistake: see Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v R (1985) 157 CLR 523; CTM v R (2008) 236 CLR 440. There are small but important differences between the common law and the Griffith Code, although these should not be overstated. The model Criminal Code provisions and the various state laws dealing with mistake of fact are not poles apart, but neither are they identical, and this may have practical consequences, especially when dealing with drug offences involving

charges under state and federal law. It is hoped that the courts will seek to achieve as much convergence as possible under the respective provisions. One area of significant variation relates to the requirement of objective innocence under the common law and the model Criminal Code; in this respect, the Griffith Code has much in its favour: see 2.42. And as we shall see from the next chapter, the distinction between mistake of fact and mistake of law can cause difficulty, especially when dealing with complex beliefs that contain elements of fact and law: see 2.44. The recognition of a defence of due diligence based on reasonable conduct has some claim for serious consideration: see 2.48. Perhaps the most complex and dynamic issue relates to the extent to which the fault standard should be modified to take account of individual differences while maintaining equality before the law. In this respect, recent developments under the Griffith Code are of some interest: see 2.35.

1. 2. 3. 4.

5.

6. 7.

See J Hall, General Principles of Criminal Law, 2nd ed, The Bobbs-Merrill Co Inc, Indianapolis, IN, 1960, p 363. The extent to which mistake of fact has exculpatory force in relation to sexual offences is considered at 5.7. A Midsummer’s Night’s Dream, Act 3, Scene 2. Recently enacted drink spiking offences reveal different approaches in relation to mistake. In New South Wales and Western Australia, on a charge of drink spiking it is a defence that the offender ‘has reasonable cause to believe that each person who was likely to consume the drink or food would not have objected to consuming the drink or food if the person had been aware of the presence and quantity of the intoxicating substance in the drink or food: Crimes Act 1900 (NSW) s 38A(4); Criminal Code 1913 (WA) s 305A(5). See also Criminal Code (Qld) s 316A(2). In the Victorian legislation, it is an element of the offence that the defendant ‘knows that the victim is not aware, or is reckless as to whether the victim is aware, that the food or drink contains more of an intoxicating substance than the victim would reasonably expect it to contain’: Summary Offences Act 1966 (Vic) s 41H(2)(b)(ii). See also Criminal Code (NT) s 176A. In South Australia, the question is simply whether the other party ‘will or might consume the food or beverage without knowledge of the presence of the substance’: Criminal Law Consolidation Act 1935 (SA) s 32C. The term ‘mens rea’ should not be used in reference to the Codes (see Widgee Shire Council v Bonney (1907) 4 CLR 977 at 981). Therefore, in this chapter, the terms ‘mental element’ and ‘fault element’ are used. (1941) 67 CLR 536. See Criminal Code Act (Cth) ss 9.1 and 9.2; Criminal Code (ACT) ss 35 and 36; Criminal Code (NT) ss 32 and 43AW–43AY; Criminal Code (Qld) s 24; Criminal Code (Tas) s 14; Criminal Code (WA) s 24.

8.

9.

10. 11. 12. 13.

14.

15.

16.

17.

18. 19. 20. 21. 22. 23. 24. 25. 26.

Turnbull v R (1943) 44 SR (NSW) 108 at 109 per Jordan CJ, and cited with approval by Brennan J in He Kaw Teh v R (1985) 157 CLR 523 at 572; and by Gleeson CJ and Kirby J in Ostrowski v Palmer (2004) 206 ALR 422; [2004] HCA 30. An accused’s lack of knowledge that those elements constituted an offence is a mistake of law and is therefore not exculpable: see Chapter 3. Timms v Darling Downs Co-Operative Bacon Association Ltd (1988) 38 A Crim R 430 at 441, applying Tesco Supermarkets Ltd v Nattrass [1972] AC 153; [1971] 2 All ER 127; [1971] 2 WLR 1166; Coles Myer Ltd v Catt (1992) 58 SASR 298 at 305–6: see 5.74. This was recognised quite early in the common law: Levett’s Case referred to in Cook’s case (1638) Cro Car 538; 79 ER 1064. Criminal Code Act (Cth) s 9.1; Criminal Code (ACT) s 35; Criminal Code (NT) s 43AW (which only applies to Sch 1 offences). See Crimes Act 1900 (NSW) s 38A; Criminal Code (Qld) s 316A; Criminal Law Consolidation Act 1935 (SA) s 32C; Criminal Code (WA) s 305A. He Kaw Teh v R (1985) 157 CLR 523 at 568 and 572 per Brennan J and CTM v R (2008) 226 CLR 440 at [8] per Gleeson CJ, Gummow, Crennan and Kiefel JJ, at [61] per Kirby J and at [138] per Hayne J. He Kaw Teh v R (1985) 157 CLR 523 at 590–1 per Dawson J; CTM v R (2008) 226 CLR 440 at [1]–[8] and [200]. The plurality judgment does not address the excuse in the context of the mens rea presumption, and its concern over the use of language is focused on the avoidance of terms that are misleading in terms of the onus of proof. In He Kaw Teh v R (1985) 157 CLR 523 at 533–4 Gibbs CJ discuss the two approaches and concludes that: ‘[i]t may be that little turns on the question whether honest and reasonable mistake should be regarded as a special defence available only in cases not requiring mens rea, or as something the absence of which constitutes mens rea’. In He Kaw Teh v R (1985) 157 CLR 523 at 533–4, 556, 580 and 590, Wilson J adopts a two-tier classification of offences, Brennan and Dawson JJ endorse a three-tier classification and Gibbs CJ, with whom Mason J concurred, expressed uncertainty as to whether a two-tier or three-tier classification is to be endorsed. In Jiminez v R (1992) 173 CLR at 581–2 the majority applied the tripartite classification without addressing its merits. More recently in CTM v R (2008) 226 CLR 440 only Hayne J made reference to the term ‘strict liability offence’ and his Honour’s purpose for doing so was to warn against the classification of offences by reference to the term: at [149]. The extent to which each of these defences may be activated by a mistake is considered in detail elsewhere in this book: see Chapter 4 ‘Claim of Right’; Chapter 5 ‘Consent’; Chapter 8 ‘Duress, Compulsion and Coercion’; Chapter 10 ‘Defensive Force’; Chapter 11 ‘Provocation’; Chapter 12 ‘Intoxication’; and Chapter 13 ’The Defence of Insanity’. Proudman v Dayman [1941] 67 CLR 536 at 541 per Dixon J. See R v Tolson (1889) 23 QBD 168 at 181. See CTM v R (2008) 236 CLR 440 at 446. See, for example, R v Reynhoudt (1962) 107 CLR 381 at 389. He Kaw Teh v R (1985) 157 CLR 523 at 592; Chard v Wallis (1988) 12 NSWLR 453; 36 A Crim R 147. Criminal Code Act (Cth) s 9.2; Criminal Code (Qld) s 24; Criminal Code (WA) s 24. Criminal Code (ACT) s 36. Criminal Code (NT) s 43AX. Criminal Code (NT) s 32.

27. Criminal Code (Tas) s 4(3). The common law excuse does not apply to summary offences that have a Criminal Code (Tas) equivalent offence: see Acts Interpretation Act 1931 (Tas) s 36. 28. For example, see Criminal Code (ACT) ss 127(4) and 139; Crimes Act 1900 (NSW) s 66EB(7); Criminal Code (Qld) ss 208(3) and 359C(1)(b); Criminal Law Consolidation Act 1935 (SA) s 49(4)(b)(ii); Criminal Code (Tas) s 14B; Criminal Code (WA) ss 221A(1A) and 321(9). 29. See Thomas v R (1937) 59 CLR 279 at 305–6 per Dixon J; by contrast, see Ostrowski v Palmer (2004) 218 CLR 493 at 526 per Callinan and Heydon JJ where the learned judges emphasise the difference between the excuse as expressed in the Codes and the common law and R v Mrzljak [2005] 1 Qd R 308 at 326. 30. (2008) 226 CLR 440 at 445; Martin v R [1963] Tas SR 103. 31. Brimblecombe v Duncan; Ex parte Duncan [1958] Qd R 8 at 18–19 per Stanley J; Geraldton Fisherman’s Co-operative Ltd v Munro [1963] WAR 129 at 133 per Hale J; Smith v Le Mural; Ex parte Smith [1983] 1 Qd R 535 at 539 per Andrew SPJ. 32. See Thomas v R (1937) 59 CLR 279 at 305; R v Kennedy [1981] VR 565 at 568. This issue does not arise under the model Criminal Codes as offences are either expressly defined as absolute liability offences and therefore the excuse has no application (see Criminal Code (Cth) s 6.2; Criminal Code (ACT) s 24; Criminal Code (NT) s 43AO), or the excuse is excluded from applying to specified elements of an offence because it is a ‘special liability provision’ (see 2.15). 33. As to ignorance of fact having this effect, see Kain & Shelton Pty Ltd v McDonald (1971) 1 SASR 39 at 45 per Bray CJ. 34. See R v Sitek [1988] 2 Qd R 284 293; Sayed v R (2012) 220 A Crim R 236 at 246–7; R v Donaldson and Paumako [2009] 103 SASR 309 at 318 where the excuse of reasonable mistake of fact was held to have no application to offences of dishonesty. 35. Mathews v R (2001) 123 A Crim R 137 at 142; R v Sitek [1988] 2 Qd R 284 at 293. 36. (2002) 128 A Crim R 397 at 401. 37. McEwan v R [1979] 2 NSWLR 926; Saragozza v R [1984] VR 187; R v Brown (1975) 10 SASR 139. For the Code states, see Arnol v R (1981) 7 A Crim R 291; Attorney-General’s Reference (No 1 of 1977) [1979] WAR 45; He Kaw Teh v R (1985) 157 CLR 523 at 624 per Gibbs CJ. 38. (1987) 163 CLR 561 at 591–2. 39. Section 9.1(1) gives expression to the principle that evidence of a mistaken belief or of ignorance of a fact are relevant as to proof of a fault element, and s 9.1(2) gives expression to the principle that an assertion as to the existence of a reasonably held belief will make it more difficult for the Crown to disprove the existence of the belief than an assertion as to the existence of an unreasonably held belief. 40. Criminal Code (ACT) s 35; Criminal Code (NT) s 43AW. Note that the Criminal Code (NT) is only in part a model Criminal Code. 41. R v Donaldson & Poumako (2009) 103 SASR 309 at 318. 42. See R v Zorad [1979] 2 NSWLR 764 at 773; R v Evans (1987) 48 SASR 35 at 41; W O v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 at [65]–[68], [83]. 43. Johnson v Youden [1959] 1 KB 544 at 546 where Goddard LJ stated that an aider or abettor ‘must at least know the essential matters which constitute the offence’. See Giorgianni v R (1985) 156 CLR 473 at 487–8 per Gibbs CJ, at 494 per Mason J, at 503 per Wilson, Deane and Dawson JJ; R v Jeffrey [2003] 2 Qd R 306 at 310; R v Jervis [1993]

44.

45.

46. 47.

48. 49. 50. 51.

52. 53. 54. 55.

56. 57. 58.

59. 60. 61.

62.

1 Qd R 643 at 648. Giorgianni v R (1985) 156 CLR 473 at 494; 58 ALR 641; a classic statement is that of Lord Goddard CJ in Johnson v Youden [1950] 1 KB 544 at 546–7. Similarly, in relation to the Code jurisdictions, see Wilson v Dobra (1955) 57 WALR 95; R v Beck [1990] 1 Qd R 30. In R v Williams (2008) 192 A Crim R 218 at 240 the Queensland Court of Appeal took the inconsistent approach of ruling that, on an attempted rape charge, evidence that an accused believed that the victim was consenting should result in a jury direction as to the relevance of s 24 of the Code. See Criminal Code Act (Cth) Sch; Criminal Code (ACT) Dictionary; Criminal Code (NT) s 1. The scope of the definition of ‘special liability provision’ remains in dispute. Contrast the court’s decision in O’Maera v R [2009] NSWCCA 90 with that of R v BW [2012] NTSC 29. See Criminal Code Act (Cth) ss 11.1(6A), 11.4(4A), 11.5(7A); Criminal Code (ACT) ss 44(6), 47(3), 48(3); Criminal Code (NT) ss 43BF(9), 43BI(6), 43BJ(9). For example, see s 472.29 of the Criminal Code Act (Cth) where it states that it is not necessary to prove knowledge of age. (2005) 225 CLR 418 at 425, 428–9, 459–61. See 7.17 and 2.19. See Giorgianni v R (1985) 156 CLR 473; M Barrett and J Dietrich, ‘The Knowledge Element for Accessories to Strict Liability and Limited Cognition Offences: Revisiting Tabe v The Queen’ (2014) 38 Criminal Law Journal 197. R v Osip (2000) 2 VR 595 at 601–8. (2005) 22 CLR 67 at 86–8, Kirby J agreeing at 94. R v Shields [1981] VR 717 at 724; King v R (2012) 245 CLR 588 at 604. See R v Osip (2000) 2 VR 595 at 601–8; R v BBD [2007] 1 Qd R 478 at 491–2. In the latter case, the court ruled that in a prosecution involving negligence it would be confusing to direct a jury as to the excuse of extraordinary emergency as the relevant evidence would be taken into account in determining whether there had been a breach of duty. [2013] WASCA 207 at [53]–[60] per Pullin JA, with whom Martin CJ agreed. [2013] WASCA 207 at [160]–[168]. See E Colvin, J McKechnie and J O’Leary, Criminal Law in Queensland and Western Australia: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2015, p 270. Neither approach applies to proceedings under any of the model Criminal Codes. Although a breach is considered in light of the relevant circumstances, the Codes expressly state that a mistaken belief or ignorance as to a fact have no application in negligence-based offences and the excuse of mistake of fact applies only to strict liability offences: see Criminal Code Act (Cth) ss 9.1, 9.2; Criminal Code (ACT) ss 35, 36; Criminal Code (NT) ss 43AW, 43AX. See, for example, Firearms Act 1996 (NSW) ss 7, 7A; Weapons Act 1990 (Qld) s 50; Firearms Act 1996 (Vic) ss 5–8. See, for example, National Parks and Wildlife Act 1972 (SA) ss 48A, 60; Wildlife Act 1975 (Vic) ss 45, 47; Wildlife Conservation Act 1950 (WA) s 16A. See, for example, Crimes Act 1900 (NSW) s 91H; Criminal Law Consolidation Act 1935 (SA) s 63A; Classification (Publications Films and Computer Games) Enforcement Act 1995 (Tas) s 74A. Criminal Code (Cth) ss 307.5–307.10, 308.1–308.4; Drugs of Dependence Act 1989

63. 64. 65.

66.

67.

68. 69.

70. 71. 72. 73. 74.

75. 76. 77.

78.

(ACT) s 171; Drug Misuse and Trafficking Act 1985 (NSW) ss 10, 21; Misuse of Drugs Act (NT) s 9; Drugs Misuse Act 1986 (Qld) s 9; Controlled Substances Act 1984 (SA) s 33L; Misuse of Drugs Act 2001 (Tas) ss 24, 25; Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(1)(b); Misuse of Drugs Act 1981 (WA) s 6(2). See Criminal Code (ACT) ss 612, 612A, 614, 614A, 621; Drugs Misuse and Trafficking Act 1985 (NSW) ss 11, 11B, 11C; Drugs Misuse Act 1986 (Qld) ss 8A, 9A, 10, 10A, 10B. See, for example, Excise Act 1901 (Cth) s 117(1); Firearms Act 1996 (NSW) s 4A(1)(b); Criminal Code (Qld) s 228D; Criminal Law Consolidation Act 1935 (SA) s 63A. Historically, the mental element for Commonwealth possession offences was determined by reference to the common law. However, since December 2001, the mental elements of offences have been determined by reference to the specific offence provision and Ch 2 of the Criminal Code Act (Cth). For example, s 307.5 prescribes the offence of possessing a substance which is a commercial quantity of an unlawful imported border-controlled drug. Absolute liability applies to the facts of unlawful importation and the quantity, and recklessness applies to the fact that it was a border-controlled drug. By virtue of s 5.3, the mental element for possession of the substance is knowledge. The same approach applies to possession offences prescribed by the Drugs of Dependence Act 1989 (ACT) and the Criminal Code (ACT). See R v Warner [1969] 2 AC 256 at 288, 299 and 304; He Kaw Teh v R (1985) 157 CLR 523 at 537–8, 586, 589, 598–600; Tabe v R (2005) 225 CLR 418 at 446, 459; Police v Kennedy (1998) 71 SASR 175; Clark v R [2008] NSWCCA 122 at [226]. Bush v R [1975] 1 NSWLR 298; Rawcliffe v R [1977] 1 NSWLR 19; Kayal v R [1979] 2 NSWLR 117; R v Tawill [1974] VR 84; R v Ditroia and Tucci [1981] VR 247. The offence has been repealed and replaced by the offences set in the Criminal Code (Cth) ss 307.8– 307.10. See Kural v R (1987) 162 CLR 502 at 505; Tabe v R (2005) 225 CLR 418 at 436, 446–7, 459; Western Australia v R (2007) 169 A Crim R 206 at 217–230, 259. See Criminal Code (Cth) s 301.1; Criminal Code Regulation (ACT) s 5; Drug Misuse and Trafficking Act 1985 (NSW) Sch 1; Drugs Misuse Act 1986 (Qld) s 4; Misuse of Drugs Act 2001 (Tas) Sch 1; Drugs Poisons and Controlled Substances Act 1981 (Vic) s 4(1). (2005) 225 CLR 418 at 427–8, 463–4. Note that s 129(1)(d) had previously been s 57(d) of the Drugs Misuse Act 1986 (Qld). R v Clare [1994] 2 Qd R 619 at 638–9, 643, 646. (2005) 225 CLR 418 at 429, 459. Note that, at the time of the decision, the offence was prescribed in s 33 of the Summary Offences Act 1953 (SA). The offence has since been incorporated into the Criminal Law Consolidation Act 1935 (SA) ss 62 and 63A and the prescribed age of a child has been increased from 16 years of age to 17 years of age. Police v Kennedy (1998) 71 SASR 175 was approved in R v Clarke (2008) 100 SASR 363 at 371. For a different approach, see R v Porter [2006] EWCA Crim 560. Proudman v Dayman (1941) 67 CLR 536. (2008) 236 CLR 440 at 455; see 2.54. Heydon J disagreed with the plurality judgment with respect to the availability of the excuse. However, like the majority, the learned judge avoids the term ‘defence’ and instead refers to the Proudman v Dayman principle. R v Tolson (1889) 23 QBD 168 at 188. Stephen J’s comment does not imply that persons are liable to conviction merely because they mistakenly believe they are acting unlawfully. Although mens rea is usually a necessary condition for liability it is seldom, if ever, a

79. 80. 81. 82.

83. 84.

85. 86.

87. 88.

89. 90.

91. 92.

93. 94. 95.

96. 97. 98.

sufficient condition. If a person makes a true statement believing it to be false, then he or she is not guilty of false pretences: see Haughton v Smith [1973] 3 All ER 1109 at 1126 per Viscount Dilhorne. (1941) 67 CLR 536 at 540–1. (1941) 67 CLR 536 at 540. In some cases, an unreasonable state of ignorance may be treated as tantamount to knowledge. Compare Proceeds of Crime Act 2002 (Cth) s 81 (money laundering). R v Iannazzone [1983] 1 VR 649; (1980) 3 A Crim R 246; R v Kennedy [1981] VR 565; Welsh v Donnelly [1983] 2 VR 173; Poyser v Commissioner for Corporate Affairs [1985] VR 533. Compare Nationwide News Pty Ltd v Bitter (1985) 16 A Crim R 53 at 56. (1985) 157 CLR 523 at 582. In Welsh v Donnelly [1983] 2 VR 173, the Victorian Full Court held that a provision of the Motor Car Act 1958 (Vic) dealing with overloading was an offence of absolute liability. The offence did not require proof of mens rea and mistake of fact was not available as a defence. For the modern approach, see Environment Protection Authority v N (1992) 26 NSWLR 352; 59 A Crim R 408. Criminal Code (Cth) s 5.6; Criminal Code (ACT) s 22; Criminal Code (NT) s 43AM. See Crimes Act 1900 (ACT) s 29(1); Crimes Act 1900 (NSW) s 52A; Criminal Code (NT) s 174F; Criminal Code (Qld) s 328A; Criminal Law Consolidation Act 1935 (SA) s 19A(1); Criminal Code (Tas) s 167A; Crimes Act 1958 (Vic) s 319; Road Traffic Act 1974 (WA) s 59. King v R (2012) 245 CLR 588 at 608. R v Coventry (1938) 59 CLR 633 at 637–9; McBride v R (1966) 115 CLR 44 at 50; Jiminez v R (1992) 174 CLR 572 at 579; King v R (2012) 245 CLR 588 at 609; R v Wilson [2009] 1 Qd R 476 at 479–80. See Jiminez v R (1992) 174 CLR 572 at 579; R v Wilson [2009] 1 Qd R 476 at 480; State of Tasmania v Wahl [2011] TASSC 40. Widgee Shire Council v Bonney (1907) 4 CLR 977 at 981; Vallance v R (1961) 108 CLR 56 at 78–9; Pregelj v Manison (1987) 31 A Crim R 383 at 393; Bennett v R [1991] Tas R 11 at 17–19 Criminal Code (Qld) s 24; Criminal Code (WA) s 24. See also Criminal Code (Tas) s 14; Criminal Code (NT) s 32. The Griffith Code is expressed in identical terms: see Criminal Code (Qld) s 24; Criminal Code 1913 (WA) s 24. As for Tasmania, see Criminal Code (Tas) s 14. Relevant decisions include: Martin v R [1963] Tas SR 103; Ingram v R [1972] Tas SR 250; Snow v R [1962] Tas SR 271; Arnol v R (1981) 7 A Crim R 291: Palmer v R [1985] Tas R 138; 21 A Crim R l; Gibbon v Fitzmaurice [1986] Tas R 137; 23 A Crim R 12. Criminal Code (NT) s 32: see Pregelj v Manison (1987) 51 NTR 1; 31 A Crim R 383. Ostrowski v Palmer (2004) 218 CLR 493 at 508–9 per McHugh J and case authorities cited there; at 526–7 per Callinan and Heydon JJ. Proudman v Dayman (1941) 67 CLR 536 at 538, 539, 541 per Rich ACJ; Von Lieven v Stewart (1990) 21 NSWLR 52 at 66–7 per Handley JA; Mayer v Marchant (1973) 5 SASR 567; Green v Sergeant [1951] VLR 500; Aubertin v Western Australia (2006) 33 WAR 87 at 96; 167 A Crim R 1. G J Coles & Co Limited v Goldsworthy [1985] WAR 183 at 187; R v O’Loughlin [2011] QCA 123 at [33]. R v Navarolli (2009) 194 A Crim R 96 at 112. Daniels v R (1989) 1 WAR 435 at 445; R v O’Loughlin [2011] QCA 123 at [33]–[34]; R v

99.

100. 101. 102.

103. 104. 105. 106. 107. 108. 109. 110.

111. 112. 113. 114. 115.

116. 117. 118. 119.

120. 121. 122. 123. 124. 125. 126.

Duckworth [2016] QCA 30 at [105]–[106]. Gould v Barnes [1960] Qd R 283; Harmer v Grace; Ex parte Harmer [1980] Qd R 395; Timms v Darling Downs Co-operative Bacon Association Ltd (1988) 38 A Crim R 430; Larsen v GJ Coles and Co Ltd (1984) 13 A Crim R 109 at 111; CTM v R (2008) 236 CLR 440 at 447; Hindrum v Lane [2014] TASFC 5 at [48]–[60], [70]. [1951] VLR 500 at 504–5. See also Gherashe v Boase [1959] VR 1. (1992) 65 A Crim R 101 at 105, followed in Morrison v ANL (1996) 91 LGERA 437; 88 A Crim R 122. Model Criminal Code Officers Committee, Model Criminal Code, Ch 2: General Principles of Criminal Responsibility (Commentary), Commonwealth Attorney- General’s Department, Canberra, 1992, p 55. (1973) 5 SASR 567 at 570. Criminal Code Act (Cth) s 9.2(2). (1992) 65 A Crim R 101 at 104. The Code has since been amended so that the term ‘intellectually impaired person’ has been replaced by the term ‘person with an impairment of the mind’. (2007) 230 CLR 559 at [105]. (2007) 230 CLR 559 at [108]. (2007) 230 CLR 559 at [61]. It would appear from the joint judgment of Kirby and Callinan JJ, and the judgment of Hayne J, that their comments were applicable to both s 216(4) and s 24 of the Criminal Code (Qld). See G J Coles v Goldsworthy (1985) WAR 183. In Rooke v Auckland City Council [1980] 1 NZLR 680, the New Zealand High Court allowed a defence based on non-negligent ignorance. (1971) 1 SASR 39 at 45. (1973) 5 SASR 567 at 579. Thomas v R (1937) 59 CLR 279 at 287; Proudman v Dayman (1941) 67 CLR 536 at 540– 1; He Kaw Teh v R (1985) 157 CLR 523 at 533, 573, 575, 592–3; CTM v R (2008) 236 CLR 440 at [8]; Criminal Code Act (Cth) s 9.2; Criminal Code (ACT) s 36; Criminal Code (NT) ss 32, 43AY; Criminal Code (Qld) s 24; Criminal Code (Tas) s 14; Criminal Code (WA) s 24. The two approaches are discussed in R v Mrzljak [2005] 1 Qd R 308 at 321, 326. R v Mrzljak [2005] 1 Qd R 308 at 327. He Kaw Teh v R (1985) 157 CLR 523 at 543, 575. See R v Mrzljak [2005] 1 Qd R 308; Aubertin v Western Australia (2006) 33 WAR 87; 167 A Crim R 1; R v Wilson [2009] 1Qd R 476; R v Dunrobin [2008] QCA 116; Butler v Western Australia [2013] WASCA 242. [2005] 1 Qd R 308 at 315, 321, 327. [2005] 1 Qd R 308 at 327. [2005] 1 Qd R 308 at 308, 330. Aubertin v Western Australia at 96; see also Commissioner of Police v Stehbens [2013] QCA 81 at [18]. R v Mrzljak [2005] 1 Qd R 308 at 315, 321; Aubertin v Western Australia (2006) 33 WAR 87 at 96; 167 A Crim R 1; R v O’Lounghlin [2011] QCA 123 at [33]. R v Dunrobin [2008] QCA 116. R v Dunrobin [2008] QCA 116 at [75]. In R v Mrzljak [2005] 1 Qd R 308, McMurdo P disagreed with the other members of the court that the appellant’s intellectual impairment

127.

128. 129. 130. 131. 132.

133. 134. 135. 136. 137. 138. 139. 140. 141.

142. 143. 144. 145.

146. 147. 148. 149. 150. 151.

could be considered in determining whether his belief was reasonably held. Her Honour held that any condition which came within the insanity rules could only be relevant when applying the Code’s statutory form of the M’Naghten Rules. See R v Wilson [2009] 1 Qd R 476 at 482–3. In Aubertin v Western Australia (2006) 33 WAR 87 at 96; 167 A Crim R 1 it was stated that, although the use of phrases such as ‘reasonable or ordinary man’ is unhelpful, provided it is made clear that it is not entirely an objective test, their use will not necessarily result in a material error. [2005] 1 Qd R 308 at 329. See He Kaw Teh v R (1985) 157 CLR 523 at 534, 575; Police (SA) v Beukes (2011) 205 A Crim R 406 at 410. (2008) 236 CLR 440 at [8]. (1992) 173 CLR 572 at 583–4. Hindrum v Lane [2014] TASFC 5 at [26]–[28], [68]–[70]; Nikro v O’Sullivan [2013] ACTSC 129 at [39] (see 2.8, where the circumstances in which the common law applies are explained). In Dalzell v Ferguson [2009] 185 IR 392 at [79] the Industrial Relations Commission of New South Wales made obiter comments about the Griffith Code approach but it did not accept or reject the approach. However, the commission proceeded to point out differences between the excuse as it exists at common law and as it exists under the Griffith Code. In O’Sullivan v R [2012] NSWCCA 45 at [124]–[126] the court applied the same approach to the fault element of rape. (2009) 195 A Crim R 352 at 360. Proudman v Dayman (1941) 68 CLR 536 at 540; Criminal Code (Tas) s 14; Criminal Code Act (Cth) s 9.2; Criminal Code (ACT) s 36; Criminal Code (NT) s 43AX. (2004) 218 CLR 493 at 526; see also R v Mrzljak [2005] 1 Qd R 308 at 326. R v Barlow (1997) 188 CLR 1 at 31–2. (2008) 236 CLR 440 at [7]. [1960] Qd R 283 at 291–2, 297–8; see also McCullough v R [1982] Tas R 43 at 53. See also Harmer v Grace; Ex parte Harmer [1980] Qd R 395. (1998) 105 A Crim R 309 at 320. Bank of New South Wales v Piper [1897] AC 383 at 389–90: ‘The absence of mens rea really consists in an honest and reasonable belief entertained by the accused of the existence of facts which, if true, would make the act charged against him innocent.’ See R v Brown (1975) 10 SASR 139 per Bray CJ; R v Cahill [1978] 2 NSWLR 453 at 458 See also R v Reynhoudt (1962) 107 CLR 381 at 389 per Kitto J. [1983] 1 VR 649 at 655; (1980) 3 A Crim R 246 at 253. See Criminal Code (Cth) s 9.2(1)(b); Criminal Code (ACT) s 36(1)(b); Criminal Code (NT) s 43AX(1)(b). As to Criminal Code (Tas) s 14, applied in Hindrum v Lane [2014] TASFC 5; Hibble v Cannon [2001] TASSC 1; (2001) 10 Tas R 129; Browning v Barrett [1987] TASSC 53; Barnes v Fowler [2016] TASMC 8. (1875) LR 2 CCR 154 at 169–70. (1953) 88 CLR 248 at 262; R v Iannazzone [1983] 1 VR 649 at 655; (1980) 3 A Crim R 246. See also Semaan v Poidevin [2013] NSWSC 226 at [68]. See B Fisse, Howard’s Criminal Law, 5th ed, Law Book Company, Sydney, 1990, p 521. (1941) 67 CLR 536 at 541. (2008) 236 CLR 440 at [8]. The decision in Bergin v Stack (1953) 88 CLR 248 and R v Iannazzone [1983] 1 VR 649; (1980) 3 A Crim R 246 can be reconciled with this alternative approach to the innocence

152. 153.

154. 155.

156. 157. 158.

159. 160. 161.

162.

163. 164. 165.

166.

167. 168. 169. 170. 171. 172.

requirement. Criminal Code (Cth) s 9.2(1)(b); Criminal Code (ACT) s 36(1)(b); Criminal Code (NT) s 43AX(1)(b). R v Duong [2015] QCA 170. For the offence of burglary see Criminal Code (Qld) ss 1, 419; Criminal Code (NT) ss 4, 32, 213(4)–213(5): burglary has a maximum 10 years’ penalty which increases to a maximum of 20 years if it occurs at night. R v Adams (1892) 18 VLR 566; R v Kennedy [1923] SASR 183. (1937) 59 CLR 279 at 306, relying on an observation by Jessel MR in Eaglesfield v Marquis of Londonderry (1876) 4 Ch D 693 at 702–3. See also Sheehan v R [2001] 1 Qd R 198. (1976) 14 SASR 337 at 346. See also Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 at 751 per Gleeson CJ. The fifth judge, McTiernan J, did not discuss the issue. One extraordinary example contains two status elements: being an engineer in charge of machinery when an act is done by a third party prejudicial to safety: Criminal Code (WA) s 310. (1971) 1 SASR 39 at 42–5. (1971) 1 SASR 39 at 55. Police v Creedon [1976] 1 NZLR 571 at 586; Police v Starkey [1987] 2 NZLR 375 at 378–9; Director of Civil Aviation Authority v Barr [2010] 1 NZLR 138 at 149–50; Sault Ste Marie [1978] 2 SCR 1299; (1978) 85 DLR (3d) 161; La Souveraine, Compagnie d’Assurance Générale v Autorité des Marches Financiers [2013] 3 SCR 756. See Fisse, above n 148, pp 521–2. Compare D Brown, D Farrier, S Egger and L McNamara, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales, 3rd ed, Federation Press, Sydney, 2001, pp 454–5, who propose a defence of due diligence when strict liability is imposed for results as opposed to circumstances. Compare P Brett, ‘Strict Responsibility: Possible Solutions’ (1974) 37 Modern Law Review 417 at 430, n 50. Australian Iron and Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497; 66 A Crim R 134 at 147. See Fisse, above n 148, pp 365–6, where a different conclusion is reached in discussing Foster v Aloni [1951] VLR 481. Fisse’s approach was, however, picked up approvingly by Kirby P in Binskin v Watson (1990) 12 MUR 282; 48 A Crim R 33 at 39. See Fisse, above n 148, p 535. Australian Iron and Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497; 66 A Crim R 134; G J Coles and Co Ltd v Goldsworthy [1985] WAR 183 at 187; but see Allen v United Carpet Mills Pty Ltd [1989] VR 232 at 237. See Environmental Management and Pollution Control Act 1994 (Tas) s 55; Environment Protection Act 1970 (Vic) s 66B(4B)(c); Environmental Protection Act 1986 (WA) s 74(1). Criminal Code (Cth) s 12.5(1); Criminal Code (ACT) s 53; Criminal Code (NT) s 43BO. The greater the departure between the belief and reality the more likely that the arbiter of fact will find that the accused did not in fact hold the belief. See, for example, 4.7–4.8 and 10.35–10.36. Based on the assumption that the hybrid test applies not only under the Griffith Code but in the other jurisdictions: see 2.35–2.36. See, for example, 10.25–10.27. However, see Semaan v Poidevin [2013] NSWSC 226 at

173. 174. 175.

176. 177.

178. 179.

180. 181. 182. 183. 184. 185.

186. 187.

188.

189.

[75] where Rothman J states that self-defence under Crimes Act 1900 (NSW) s 418 could be raised in combination with the Proudman v Dayman excuse. See, for example, 10.27, 10.32 and 11.11–11.15. See, for example, 6.12, 8.32–8.36 and 10.32. He Kaw Teh v R (1985) 157 CLR 523; CTM v R (2008) 236 CLR 440; Loveday v Ayra; Ex parte Ayre [1955] St R Qd 264; Brimblecombe v Duncan; Ex parte Duncan [1958] Qd R 8; McPherson v Cairn [1977] WAR 28; Wrobleswki v Starling [1987] WAR 233. See also Criminal Code (Cth) s 13.3; Criminal Code (ACT) s 58; Criminal Code (NT) s 43BU. He Kaw Teh v R (1985) 157 CLR 523 at 534–5 per Gibbs CJ and at 592 per Dawson J; CTM v R (2008) 236 CLR 440 at [8] per Gleeson CJ, Gummow, Crennan and Kiefel JJ. Braysich v R (2011) 243 CLR 437 at 445, 454; Butler v The State of Western Australia [2013] WASCA 242 at [120]. The Supreme Court of Canada has adopted the ‘air of reality test’: see R v Gauthier [2013] 2 SCR 403 at [23]–[25]. Hindrum v Lane [2014] TASFC 5 at [22], [44]. Pemble v R (1971) 124 CLR 107 at [18]–[20]; Fingleton v R (2005) 227 CLR 166 at [83]; Braysick v R (2011) 243 CLR 434 at [32]; Heaton v Western Australia [2013] WASCA 207 at [54]–[65], [163]. Crimes Act 1900 (NSW) s 66C(3). Heydon J, although not in dissent, was the only member of the court to hold that the Proudman v Dayman ground of exculpation did not apply to the relevant offence. (2008) 236 CLR 440 at [38]. (2008) 236 CLR 440 at [36], [39], [194]; Sancoff v Holford; Ex parte Holford [1973] Qd R 25 at 33; R v Singh [2012] QCA 130 at [23]. He Kaw Teh v R (1985) 157 CLR 523 at 592 where Dawson J states that the evidential onus is met by evidence adduced by the accused. See He Kaw Teh v R (1985) 157 CLR 523 at 582 where Brennan J states that the excuse can be raised without the accused adducing evidence as all that is required is for the defence to be in a position to ‘be able to point to something in the evidence tending to show his belief and reasonable grounds for his belief …’ (see also Dawson J at 592–3). (2008) 236 CLR 440 at [106]. CTM v R (2008) 236 CLR 440 at [8]; Jiminez v R (1992) 173 CLR 572; 59 A Crim R 308 at 314; He Kaw Teh v R (1985) 157 CLR 523 at 534–5, 573, 582, 592; 15 A Crim R 203 at 210, 239, 246, 253; Loveday v Ayre [1955] St R Qd 264 at 267–8; Brimblecombe v Duncan [1958] Qd R 8 at 12; Geraldton Fisherman’s Co-op Ltd v Munro [1963] WAR 129; McPherson v Cairn [1977] WAR 28 at 30; R v Brown [1990] Tas R 46 at 54–61. Criminal Code (Cth) s 13.1; Criminal Code (ACT) s 56; Criminal Code (NT) s 43BR(2). See, for example, Bergin v Stack (1953) 88 CLR 248 at 261 per Fullagar J. Under the Criminal Code (Tas) s 14, the persuasive burden of proof (on the balance of probabilities) had been held to rest upon the accused: see Martin v R [1963] Tas SR 103; Ingram v R [1972] Tas SR 250 at 258 per Neasey J. In R v Brown (1990) Tas R 46, Neasely J, with whom the other four members of the Court of Criminal Appeal agreed, held that the prosecution has the persuasive burden of disproving an excuse based on s 14 of the Criminal Code (Tas). (1985) 157 CLR 523 at 592–3. See also Cameron v Holt (1980) 142 CLR 342 at 347 per Barwick CJ; Cooper v ICI Australia Operations Pty Ltd (1987) 31 A Crim R 267.

[page 79]

3 Ignorance and Mistake of Law Introduction 3.1 There is a maxim in the criminal law which states that ignorance of law is no excuse: ignorantia juris neminem excusat. This is so whether the accused’s ignorance or mistake consists of: (1) unawareness that certain conduct is prohibited by the criminal law; or (2) a belief that his or her particular conduct did not fall within the ambit of the crime charged. The ignorantia juris rule is firmly entrenched within the common law1 and has statutory force in the code jurisdictions.2 A mistake as to the general municipal law of the land is, for policy reasons,3 treated as no defence. The rule purports to uphold the principles of equal protection and equality before the law, and is also supported on grounds of expediency. The recognition of a defence of ignorance of law would impose an onerous task on the Crown of disproving the accused’s alleged ignorance. Further, permitting individuals to plead ignorance of the law [page 80]

would encourage others to do so; consequently, the law would fail in its educative function, and the criminal justice system would be stymied:4 see also 3.48. 3.2 The rule has been stated in many different forms, not all of which seem to carry the same meaning. Hale said: ‘Ignorance of the municipal law of the Kingdom … doth not excuse … because every person … is bound to know the law, and presumed so to do.’5 Blackstone said: ‘a mistake in point of law, which every person of discretion not only may, but is bound and presumed to know, is in criminal cases no sort of defence. Ignorantia juris, quod quisque tenetur scire, neminem excusat.’6 3.3 The limiting phrase ‘quod quisque tenetur scire’ (‘which everyone is bound to know’) contained the seeds of rational doctrine. Yet the opportunity was not taken up by English courts, which for a long time simply asserted that everyone is bound to know the law. In Martindale v Falkner (1846) 2 CB 706; 135 ER 1124, Maule J observed:7 There is no presumption in this country that every person knows the law: it would be contrary to common sense and reason if it were so … The rule is, that ignorance of the law shall not excuse a man, or relieve him from the consequences of a crime, or from liability upon a contract.

Likewise, in McKechnie v Jones (1976) 13 SASR 184, the South Australian Full Court noted:8 The doctrine is not that all persons are deemed to know the law. It is properly expressed in the maxim ignorantia juris haud excusat; that is to say, ignorance of the law does not excuse an act which contravenes it. This is not the same thing as saying that the person concerned is deemed to know the law. It merely says that even though he does not know it, his ignorance is no excuse to him.

3.4 Neither Hale nor Blackstone provided authority for the rule, which is thus of doubtful pedigree.9 Ironically, the very existence of appeal courts and the recognition of per incuriam decisions implies that judges may be ignorant of or mistake the law.10 The ignorantia juris rule is nevertheless regarded with something approaching reverence; indeed, members of the High Court of Australia have stated that it would be ‘a heresy’ to deny the rule.11 In Ostrowski v Palmer (2004) 219 CLR 493, Gleeson CJ and Kirby J defended the rule by saying that

it did not mean that people are presumed to know the law. In their Honours’ view:12 [page 81] Such a presumption would be absurd. Rather, [the rule] means that, if a person is alleged to have committed an offence, it is both necessary and sufficient for the prosecution to prove the elements of the offence; and it is irrelevant to the question of guilt that the accused person was not aware that those elements constituted an offence.

3.5 There are, however, numerous exceptions to the ignorantia juris rule. Hall once remarked that it enters the arena a roaring lion but is so cut down by case law that it exits as a timid lamb.13

The distinction between fact and law An elusive test 3.6 In some cases the distinction between fact and law is straightforward. A mistaken belief that conduct is lawful or that conduct is authorised is a mistake of law.14 However, complications arise where there is a mistaken belief about documents including legislation, licences, permits and other authorisations. A mistake as to the existence of such a document is a mistake of fact, and a mistake as to the scope is a mistake of law. The difficulty arises when the mistake can be characterised as the application of law to facts. Many a writer on criminal law has lamented the obscurity of the distinction between fact and law. Professor Winfield considered the task of elucidation immensely difficult, if not a ‘practical impossibility’.15 However, the general defence of mistake presupposes that some workable distinction can be made between fact and law and it is therefore disturbing that the availability of a criminal defence should turn upon a distinction that cannot be clearly delineated. Examination of the law reports reveals that the test for distinguishing fact from law is also a closely guarded secret. Nor is the problem confined to the criminal law. The absence of any coherent test continues to embarrass many branches of the law.16

3.7 Whether a particular belief pertains to the facts or to the law is not determined simply by asking whether the subject matter of the belief related to a ‘jury issue’ or to a legal issue upon which the court must rule. This is a circular approach, and of no help whatsoever in the absence of some further test for distinguishing those matters which must be determined by the court rather than by the trier of fact. Unfortunately, the division of functions between the judge and jury are sometimes blurred. That division is not dictated by the intrinsic nature of the subject matter. The scope of foreign law and customary law, for example, is a question of fact;17 however, whether customary rights and interests or native title are recognised, are questions of law.18 The meaning of a word or phrase appearing in a statute is a question of law, even though the meaning may be discovered by examining the way in which the word or phrase is used in everyday English.19 [page 82] 3.8 The notion that the status of a person’s belief may be classified according to a process of reasoning has some eminent supporters. In Eaglesfield v Marquis of Londonderry (1876) 4 Ch D 693, Jessel MR gave the following example in the context of a civil case:20 A misrepresentation of law is this: when you state the facts, and state a conclusion of law, so as to distinguish between facts and law. The man who knows the facts is taken to know the law; but when you state that as a fact which no doubt involves, as most facts do, a conclusion of law, this is still a statement of fact and not a statement of law. Suppose a man is asked by a tradesman whether he can give credit to a lady, and the answer is, ‘You may, she is a single woman of large fortune.’ It turns out that the man who gave that answer knew that the lady had gone through the ceremony of marriage with a man who was believed to be a married man, and that she had been advised that the marriage ceremony was null and void, though it had not been declared so by any court, and it afterwards turned out that they were all mistaken, that the first marriage of the man was void, so that the lady was married. He does not tell the tradesman all these facts, but states that she is single. That is a statement of fact. If he had told him the whole story, and all the facts, and said, ‘Now, you see, the lady is single,’ that would have been a misrepresentation of law. But the single fact he states, that the lady is unmarried, is a statement of fact neither more nor less; and it is not the less a statement of fact, that in order to arrive at it you must know more or less of the law.

3.9 Dixon J (as he then was) referred to this passage with approval in the High Court case of Thomas v R (1937) 59 CLR 279 at 306–7, where the accused’s belief that he was an unmarried man and therefore free to marry was based upon the belief that his prior marriage was void. This latter belief was based on the belief that his first wife was, at the time of the marriage ceremony, not validly divorced from her previous husband. This belief was, in turn, based upon the erroneous view that certain requirements governing the conversion of a decree nisi into a decree absolute had not been complied with. The whole complex situation was treated as a compound event consisting of law and fact and, as such, a mistake of fact which could provide a defence. Few would quibble with the final outcome in Thomas, although it may be doubted whether the principle stated by Jessel MR provides a satisfactory rationalisation. The implication that criminal responsibility may turn upon whether the accused reached a conclusion by extracting what he or she considered to be the legal significance of particular facts is somewhat strange. That the same belief may be classified either way according to the degree of detail with which it is accompanied confirms the impossibility of distinguishing between fact and law according to the intrinsic nature of the belief. 3.10 In the absence of some a priori test for distinguishing mistakes of fact from mistakes of law, the reader may find useful a list of examples of mistaken beliefs which have, in one way or another, provided a defence. The cases are not all concerned with the general defence of mistake; in some, the mistaken belief was taken to negate mens rea, while in others it was treated as a possible ground for establishing a ‘reasonable excuse’. Thus, the following have been treated as exculpatory beliefs: • that a person is married or divorced (Thomas v R (1937) 59 CLR 279); • that a decree nisi or decree absolute has been made (Thomas v R (1937) 59 CLR 279); [page 83]

• •

• • • • • • •

•

•

•

•

that a driver’s licence has not been suspended (R v Prue and Baril (1979) 96 DLR (3d) 577); that a person has the required property qualifications to be placed upon the electoral roll (R v Dodsworth (1837) 8 Car and P 218; 173 ER 467); that a declaration has been made removing a statutory disqualification (Dowling v Bowie (1952) 86 CLR 136); that a licence to occupy premises has been improperly revoked (Police v Cunard [1975] 1 NZLR 511); that a person is a squatter (Phekoo v R (1981) 73 Cr App R 107); that marital consent to intercourse has not been revoked by a nonmolestation order (C v R (1981) 3 A Crim R 146 at 150); that maintenance is not payable (Maintenance Officer v Starke [1977] 1 NZLR 78 at 83); that a document entitles one to enter a country (Kumar v Immigration Department [1978] 2 NZLR 553); that goods are not ‘illicit goods’ (Maher v Musson (1934) 52 CLR 100) but a mistake that goods have not been prescribed as prohibited will not exculpate: see R v Cunliffe [2004] QCA 293 at [13]; R v Rehman and Wood [2006] 1 Cr App R 404); that a benefit is claimable (Cameron v Holt (1980) 142 CLR 342; 28 ALR 490; Moore v Branton [1974] Crim LR 439; Guicheret v R (1980) 7 Man R (2d) 1); that a constable was not a police officer or that he or she was not acting in the pursuit of his or her duty (R v Simpson [1978] 2 NZLR 221; Towse v Bradley (1985) 60 ACTR 1; 14 A Crim R 408; Poidevin v Semaan [2013] NSWCA 335 [13]–[14]), but a mistaken belief as to the scope of a constable’s duties will not exculpate: see R v Reynhoudt (1962) 107 CLR 381; Ogbonna v Lay (2013) 230 A Crim R 148; that an employee is entitled to absent himself or herself from work (R v Mollison (1876) 2 VLR (L) 144, but see Marshall v Foster (1898) 24 VLR 155); that premises are not ‘controlled premises’ within the meaning of a particular Act (Solle v Butcher [1950] 1 KB 671; [1949] 2 All ER 1107);

•

• •

• • •

that blood alcohol level has not exceeded a prescribed maximum (Rooke v Auckland City Council [1980] 1 NZLR 680; Flyger v Auckland City Council [1979] 1 NZLR 161; Harmer v Grace [1980] Qd R 395); that a district has not been subdivided (Roberts v Local Authority of the Burgh of lnverness (1899) 27 Sc LR 198); that a truck is not laden over the legal limit (Brambles Holdings Ltd v Carey (1976) 15 SASR 270; 2 ACLR 176; Mayer v Marchant (1973) 5 SASR 567; Kain and Shelton Pty Ltd v McDonald (1971) 1 SASR 39); that one is permitted to use a title indicating certain qualifications (Wilson v Inyang [1951] 2 KB 799); that a statute has been passed, proclaimed or repealed (Iannella v French (1968) 119 CLR 84 at 97 per Barwick CJ); and that a red line on a GPS indicated the border of the Australian Fishing Zone and thus the fishing boat’s location (Australian Fisheries Management Authority v Su (2009) 176 FCR 95; 195 A Crim R 352) but a mistaken belief that it is lawful to fish in a particular location will not exculpate (Ostrowski v Palmer (2004) 218 CLR 493). [page 84]

Mixed fact and law 3.11 Dixon J in Thomas v R (1937) 59 CLR 279 held that ‘a mistake as to the existence of a compound event consisting of law and fact is in general one of fact’.21 However, this is not always so, as shown in the South Australian Supreme Court case of Power v Huffa (1976) 14 SASR 337. Mrs Power was a leader in the Aboriginal Rights Movement. On the day in question she took part in a protest gathering. She was arrested when she refused to obey a demand made by a police constable that she leave the protest area. She was charged under s 18(3) of the Police Offences Act 1953 (SA), which provides: ‘A person of whom a request is made under sub-section (2) of this section shall cease loitering

and shall leave the place in which he was loitering and the area in the vicinity thereof’. The magistrate found the charge proved but dismissed the complaint without proceeding to conviction. Mrs Power appealed, inter alia, on the ground that the magistrate erred in failing to consider the relevance of her belief that she was acting under the lawful authority of a Federal Government Minister in refusing to comply with the request to leave. It was alleged that Mrs Power had made contact with the then Minister for Aboriginal Affairs during the demonstration, and he had told her to remain where she was. The Chief Justice declared that the appellant’s belief that she was acting under the lawful authority of the Minister could be analysed into two distinct beliefs: (1) that she was acting under his authority, and (2) that the authority was lawful. The second belief was a belief as to the law. Because a ‘vital part’ of the appellant’s belief consisted of a mistake of law, the defence was not open.22 Zelling J dissented, holding that the appellant’s belief was a mixture of both fact and law and, on the authority of Thomas, capable of providing a defence.23 Jacobs J took the via media saying that there was no difference between his fellow judges: it all depended on how the question was formulated. The question for the court was formulated on the assumption that the Minister did not have the power to authorise the appellant to act as she did. If the Minister had no such authority, the appellant’s belief that he had was necessarily a mistake of law and did not change colour because of a further belief that the Minister had purported to exercise a power which, in law, he did not possess. Therefore, ‘on the question as drawn, postulating as it does that the appellant may have been under the mistaken belief that acting as she did had the lawful authority of Senator Cavanagh’,24 the defence was not available. 3.12 Power v Huffa may be cited for the proposition that a mistaken belief that conduct is authorised cannot excuse if, as a matter of law, the authority in question did not have the power to authorise the conduct.25 The case is consistent with English decisions dealing with the statutory defence of ‘lawful excuse’: see 3.22–3.24. Those cases provide that, if no lawful authority could sanction the conduct in question, the accused’s mistaken belief that such authority existed and had been

favourably exercised will not constitute a ‘lawful excuse’. It has been [page 85] suggested that the case is otherwise where the statutory exculpation is based upon ‘reasonable cause or lawful excuse’. These matters are dealt with below. 3.13 There existed a rule that a mistake of law, which was based upon an earlier honest and reasonable mistaken belief as to a relevant and important fact, should be treated as a mistake of fact.26 This rule was disapproved of by the High Court in Ostrowski v Palmer (2004) 218 CLR 493, which regarded it as effectively saying that a mistake of law is a defence to a criminal charge if it was the consequence of a mistake of fact.27 Such a proposition could not stand with the maxim that ignorance of law is no excuse. In that case, the accused was a commercial fisher who was charged with fishing for rock lobsters in a zone prohibited by regulation. There was irrefutable evidence that he had done so because he had been misinformed by the fisheries authority. The accused’s contention that this constituted a mistake of fact was rejected by the High Court, which held that it was a mistake of law. McHugh J states that:28 The earlier mistakes made by Mr Palmer — as to whether he had a complete set of regulations and whether a regulation existed which prohibited fishing in the area — explain how he came to form his mistaken view as to where he could fish. These earlier mistakes are nevertheless preliminary to the commission of the offence. They do not concern the elements of the offence; they cannot change what is a mistake of law, namely, a belief that Mr Palmer was entitled to fish for rock lobster in the area, into one of fact.

Mistake of civil law 3.14 It is an interesting and difficult question whether or not the ignorantia juris rule applies to mistake or ignorance as to the civil as well as the criminal law. A mistake concerning the civil law may underlie an accused’s belief that his or her conduct was not criminal.

The accused may, for example, be ignorant of the ‘special property’ rule which vests a possessory lien in the repairer of goods to the exclusion of the owner until payment of the fee. If the accused recaptures their goods they may be convicted of theft despite their ignorance of the civil law of property. The accused may be surprised to find that they can be convicted of stealing their own property.29 As another example, the accused may be ignorant of the corporate personality rule enunciated by the House of Lords in Salomon v Salomon and Co Ltd [1897] AC 22, convert their business to a company, sell their car to the company without transferring the third party insurance, and continue to use ‘their’ car as before. The company may then be prosecuted for operating a vehicle without insurance. The accused’s insurance policy is invalid, because they have no insurable interest in the car.30 Accordingly, it would seem that the company is liable.31 [page 86]

Mistake of law as a defence 3.15 Although it may generally be stated that the ignorantia juris rule is inapplicable to mistake or ignorance of the civil law,32 there are situations where such a mistake may provide a defence. First, should the crime with which the accused is charged be such that knowledge of unlawfulness is a matter of proof for the prosecution, a mistaken belief of law (whether civil or criminal) may excuse. Second, if the crime is such that the defence of ‘bona fide claim of right’ is open, the accused may rely upon a mistake of the civil law to support that claim. Third, mistaken belief as to private rights and obligations not previously determined by a court of competent jurisdiction, to the knowledge of the defendant, may provide a defence. Each of these situations will be dealt with below.

Mens rea and mistake of the law

3.16 In some cases, the accused may rely upon ignorance or mistake of law in order to negative the necessary mens rea: ‘While ignorance of the law does not excuse, it is an element which cannot be overlooked in determining whether certain types of mens rea have been established.’33 For example, in the English case of R v Allday (1837) 8 Car and P 136; 173 ER 431, the accused was charged with felony in that, contrary to the provisions of s 1 of the Statute 12 Geo III cl 48, he wrote upon a document on which stamp duty had already been paid. The indictment did not charge that the accused had acted fraudulently. Ex facie, it was not necessary to aver or prove fraud. Nevertheless, Lord Abinger CB declared that fraud was a necessary element of the statutory offence:34 It is a maxim older than the law of England, that a man is not guilty unless his mind be guilty. If a person through mistake thought he could alter this licence … that would be no felony in law any more than it would be in reason, justice, or common sense.

Likewise, in the High Court case of Wilson v Chambers (1926) 38 CLR 131, the accused was charged with evasion of import duty contrary to s 234 of the Customs Act 1901 (Cth). The accused had made an agreement with local customs officials to pay the duty sometime after it fell due. The agreement was for the mutual convenience of both parties. There was no intention to evade the duty. Isaacs J held that dishonesty was an ingredient of the offence and that the accused’s conduct was honest even though founded upon a mistake of law. 3.17 The word ‘wilful’ may be taken to imply the need for dishonesty or, at least, awareness by the accused that his or her behaviour is unlawful. However, [page 87] the word has no settled usage, but shifts in meaning according to the context.35 In some cases, it has been construed to mean little more than consciously doing an act in order to achieve some particular goal.36 In the South Australian case of Fenwick v Boucaut and Hodder [1951] SASR 290, Napier CJ stated:37 I agree that ‘wilfully’ connotes an act which is done deliberately or intentionally, and is

— in some sense or degree — culpable or blameworthy; but I cannot agree that no blame attaches to those who deliberately or intentionally act as the law forbids them to act. The fact that they err in ignorance of the law may be urged as extenuating the fault, but it does not entirely exculpate them.

3.18 In Iannella v French (1968) 119 CLR 84, the High Court considered the word ‘wilful’ in the context of a statute designed to maintain rent restrictions in respect of certain controlled properties. The accused was charged with an offence under s 56A(i) of the Housing Improvement Act 1940 (SA). This section made it an offence to ‘wilfully demand’ or ‘wilfully recover’ an irrecoverable sum as rent. The accused was the owner of a substandard house for which the maximum rental had been fixed under the provisions of the Act. He fell into the error of believing, along with a large section of the community, that all rent controls, including those pertaining to substandard housing, had been removed with the expiry of the Landlord and Tenant (Control of Rents) Act 1942 (SA). Some four years after the expiration of the Act, he rented the premises to new tenants at a sum greater than the permitted rental, and was charged under the Act. He was ultimately acquitted on the ground that the charge was bad for duplicity. With respect to his mistaken belief that all rent controls had been lifted, the majority ruled it to be a mistake as to the law and therefore no excuse. Taylor J considered that the word ‘wilful’ did not imply that the accused must be shown to have acted in the knowledge that his acts were proscribed. Barwick CJ and Windeyer J demurred. The Chief Justice observed:38 Mens rea may in some cases, depending on the context and the subject matter, require that the defendant should know that the act is unlawful. That element of the offence itself cannot be eliminated in such a case by saying that ignorance of the law is no excuse. The defendant who is not shown in such a case to know that the act is unlawful needs no excuse. The offence has not been proved against him.

Accordingly, the Chief Justice held that the accused could not be said to ‘wilfully’ recover or demand an irrecoverable sum if he did not know that there was a notice in force fixing the maximum rent. There was no occasion for applying the general defence of mistake because the prosecution had failed to prove the necessary mens rea. It was therefore strictly unnecessary to classify the mistake into the realm of law or fact. Because the case went off on the duplicity point, it cannot be regarded as settling the law in Australia as to the denotation of the word

‘wilful’.39 While the Australian courts have taken a tentative approach to ignorance of the law and its relevance to mens rea offences, the South African courts have not been so constrained. The South African courts have widely applied the principle that ignorance of the law can be inconsistent with mens rea of an offence. For example, [page 88] in S v De Blom [1977] (3) SA 513(A), it was held that ignorance of the law was inconsistent with the mens rea of the offence of unlawfully taking jewellery out of the country and, in Hoho v The State [2008] ZASCA 98, it was applied to intentionally publishing defamatory material.

Claim of right and mistake of law 3.19 People act in the exercise of an honest claim of right if they honestly believe themselves to be legally entitled to do what they are doing.40 The doctrine was originally formulated to mitigate the harshness of the law in respect of property offences where the accused had acted in the genuine but mistaken belief that they were legally entitled to deal with the property in the way that they had. A claim of right may be based upon a factual mistake (as where the accused mistakenly believes that the owner has consented to the destruction of property) or upon a mistake of law (as where the accused asserts some proprietary interest in the property which he or she does not have). In the first case, the defence is closely related to the defence of mistake of fact, although discrimintion may be necessary in dealing with the question of reasonableness.41 In the second case, the doctrine is not of general application but has been confined; the mistaken belief must be one as to civil law, not to the criminal law. For the most part, it has been restricted in application to the realm of property offences: see 4.23–4.25.

Private rights and mistake of law 3.20 In the House of Lords case of Cooper v Phibbs (1867) LR 2 HL 149; [1861] All ER Rep 2109, Lord Westbury, when dealing with a civil matter, declared that the word ‘jus’ in the maxim ignorantia juris haud excusat had no application to private rights. The word ‘jus’ was used in the sense of denoting general law, that is, the ordinary municipal law of the land.42 Lord Westbury’s statement was referred to with approval by Hanger J in the Queensland Court of Criminal Appeal case of Olsen v Grain Sorghum Marketing Board [1962] Qd R 580. The accused was charged with an offence under s 15 of the Primary Producers’ Organisation and Marketing Act 1926 (Qld), which consisted of buying several quantities of grain sorghum from a person other than the Board. The accused purchased the grain in Queensland and transported it through New South Wales by truck to a buyer in Queensland. It was thought at the time that the transaction was protected by s 92 of the Constitution which provides that trade and commerce between the states shall be absolutely free. Subsequently the High Court ruled that s 92 was not operative in such circumstances. The question for the Full Court was whether the accused’s honest and reasonable belief that the transaction was protected by s 92 could provide a defence. It was argued that the mistaken belief was as to private rights rather than to public law and that the maxim was inapplicable. Hanger J stated that s 92 was ‘not to be construed as dealing with the private rights of individuals, the breach of which involves an [page 89] action for damages’.43 Rather, s 92 was to be seen as conferring immunity from the exercise of governmental power, which was a liberty or freedom enjoyed by all citizens, and different in kind from the rights and obligations flowing from contractual undertakings between specific individuals. 3.21

In R v Barrett (1980) 72 Cr App R 212, the English Court of

Appeal placed an important restriction upon the private rights doctrine. The accused was convicted of assault occasioning actual bodily harm in circumstances where he used force against a bailiff who was executing a warrant for possession of the accused’s house. The accused believed that the court order had been obtained by fraud; however, he knew that his application to have the order set aside had failed. The court recognised the availability of a claim of right on a charge of assault, even where that claim was supported by reference to a mistaken belief as to the private rights as between individuals. However, the doctrine was not applicable where the respective rights of the parties had been determined to the knowledge of the accused by a court of competent jurisdiction. In such circumstances, it was not open to the accused to plead that he or she honestly believed that the decision was in error. However, it is a moot point whether this limitation applies where the accused has not exhausted his or her civil remedies. In Barrett’s case, for example, if the bailiffs had moved in prior to a final determination of the legal issues between the parties, the decision may have been otherwise.

Statutory defences and mistake of law English cases 3.22 Where a statute punishes certain acts done without ‘lawful 44 excuse’, the question arises as to whether a mistaken belief that the acts concerned are lawful may provide a defence even if the belief is founded on a mistake of law. The question arose in the English case of Cambridgeshire and Isle of Ely County Council v Rust [1972] 2 QB 426. The accused set up a stall for selling agricultural produce on a grass island dividing a lay-by from the main carriageway of a trunk road. Before setting up the stall, he went to various authorities, including the local police, to ascertain whether he was permitted to set up the stall in that place. He received no clear-cut answer and, certainly, no one forbade him from doing so. Indeed, the local district council levied rates on the stall which the accused paid for a period. When the county council requested the removal of the stall, the accused refused,

whereupon the council removed it. The accused then set up another stall. He was charged under s 127 of the Highways Act 1959 (UK) in that he had, as an itinerant trader or hawker, pitched a stall on a highway without lawful excuse. The justices dismissed the information. They held that the accused honestly believed he had a right to set up the stall and had taken reasonable steps to ascertain his position. On appeal, the Queen’s Bench Division directed the magistrates to convict. There was no authority which could have granted the accused a licence to set up the stall and, in the absence of some competent [page 90] authority, there could be no ‘lawful excuse’ for the accused’s conduct. At a more general level, Lord Widgery CJ stated:45 I think that in order for the defendant to have lawful excuse for what he did, he must honestly believe on reasonable grounds that the facts are of a certain order when, if they were of that order, he would have an answer to the charge, and indeed his conduct would be lawful and not contrary to the law. I do not believe at any time one can have lawful excuse for conduct because one is mistaken as to the law; everyone is supposed to know the law, but a mistake of fact of the kind which I have described seems to me to amount to lawful excuse.

3.23 Cambridgeshire and Isle of Ely County Council v Rust was followed in Brook v Ashton [1974] Crim LR 105. The accused was charged with obstructing the free passage along an unmade highway, contrary to s 121(1) of the Highways Act 1959 (UK). He had received permission from the council to resite the footpath which was causing rising damp to his house property. He had laid an eight-feet wide tarmac footpath partly covering the old footpath. He proposed to widen the tarmac to 12 feet, but the local council refused permission and advised him to apply to the justices for an order closing the footpath to the public. The justices declined to make the order sought. The accused proceeded to widen the footpath. He was charged before the justices who found that the footpath had been obstructed but acquitted on the ground that the accused’s dealings with the council were such that he might reasonably have believed that he was entitled to carry out the

extension. The Court of Queen’s Bench declared that no one could authorise the obstruction of a public footpath in defiance of the public interest. The accused’s mistaken belief that the council could confer such authority was a mistake of law and no excuse. The case was remitted to the justices with a direction to convict. 3.24 However, in the English Court of Appeal case of R v Smith [1974] 1 All ER 632, the accused was charged with an offence under the Criminal Damage Act 1971 (UK). Under the Act it is an offence to destroy or damage property belonging to another without lawful excuse. The accused asserted that he genuinely believed that the property in question belonged to him. The court held that the mistaken belief was a good defence. It was unnecessary to consider whether the belief was a justifiable or reasonable belief, provided that it was honestly held.46

Australian cases: R v Phillips 3.25 The subtleties of this area of law are well illustrated by the New South Wales case of R v Phillips [1973] 1 NSWLR 275. The accused was charged under s 247 of the Crimes Act 1900 (NSW) with doing malicious injury to goalposts at the Sydney Cricket Ground. The incident occurred during a political protest against apartheid. The damage was admitted but the accused denied having any criminal intent. He specifically denied that the act was done ‘without lawful excuse’ in terms of s 5 of the Act which defines the word ‘maliciously’. He supported this claim by reference to certain United Nations resolutions [page 91] and declarations concerning racial discrimination. Reliance upon s 195 was disclaimed. That section provides: No act shall be deemed malicious which was done by the accused under a reasonable supposition that he had a right to do such act.

The trial judge treated the accused’s defence as a claim of right under this section. He directed the jury that, under Australian law, the United Nations resolutions did not entitle the accused to damage the posts. However, if the jury were satisfied on the balance of probabilities that the accused had a ‘reasonable supposition’ of entitlement to damage the goalpost, they should acquit. The accused was convicted. The Court of Criminal Appeal set aside the conviction. The direction wrongly placed a burden of proof upon the accused. It was also potentially confusing as to the mental element required under s 247 and obscured the significance of ‘lawful excuse’ to a denial of intent. The court held:47 [T]he words ‘lawful excuse’ do not refer to any right in law of an accused to do what he did. Rather they go to the intent of an accused when doing what he did.

Hence, the accused was correct not to rely upon s 195. His belief regarding the United Nations declarations was a mistake of law. A ‘supposition of right’ required more than a mere error of law;48 in the court’s view, it required:49 … a supposition by an accused that he has particular rights in respect of the subject property, either as a private individual, or as a member of the public or a class of the public which, if he were correct in that supposition, would entitle him to deal with the subject property in that manner in which he dealt with it. A mistaken claim or supposition of right involves a mixture of fact and law and is treated as a mistake of fact: see Thomas v R (1937) 59 CLR 279 at 306, per Dixon J. It is no supposition of right when an accused, by error of law, believes that he can, with impunity, do the act with which he is charged.

In summary, an accused’s belief as to the legal significance of the United Nations declarations was capable of negating intent under s 247 by providing a ‘lawful excuse’ within s 5; however, a mistaken belief that property damage could be committed in deference to United Nations declarations was not capable of amounting to a ‘supposition of right’ under s 195. This last approach may be compared with case authority which, in relation to larceny and related offences, permits a claim of right to be based upon mistake of law.50 Conversely, in allowing lawful excuse to be founded upon mistake of law, the decision in Phillips shows greater leniency than the English cases discussed above. 3.26

Where the word ‘lawful’ is used in conjunction with the word

‘reasonable’, so that the accused has an excuse if he or she acted with ‘reasonable or lawful excuse.’ the term is generally not limited to a purpose that is legislatively authorised, but includes any purpose that ‘would appear to a reasonable man to [page 92] be adequate in the circumstances’.51 It is therefore submitted that an error based upon law alone or mixed law and fact may provide an excuse.52

Legislation 3.27 The model Criminal Codes make an exception to the ignorantia juris rule if the legislation creating the offence is expressly or implicitly to the contrary effect.53 The Griffith Codes and s 30(1) of the Criminal Code (NT) also prescribe an exception but it must be expressly declared by legislation.54 Legislation seldom expressly provides a defence, excuse or exception to criminal liability for people who infringe a statutory prohibition on account of a mistake or ignorance of the prohibition. An example of such an offence could include casting a vote in an election in circumstances where the accused knew he or she was not entitled to vote.55 Legislation which implies such a defence, excuse or exception is more common. Thus, the statutorily prescribed defence of mistake of fact in strict liability offences may, in some circumstances, be extended to include cases where the mistake of fact arises from a mistake or ignorance about the law. The statutory defence which was at issue in the South Australian case of R v P (1986) 41 SASR 360 was such a case.56 The appellant was a medical practitioner charged with Medicare fraud. Section 129 of the Health Insurance Act 1973 (Cth) (since superseded) created an offence of making a statement that was false in a material particular and capable of being used in connection with an application for payment under the Act. Under s 129(3) it was a defence if the person proved that he or she did not know, and had no reason to

suspect, that the statement, document, return or information to which the prosecution related was false or misleading, as the case may be. The Court of Criminal Appeal held that the trial judge was wrong to direct the jury that a medical practitioner who mistakenly assumed that a particular consultation was covered by a designated schedule number was mistaken as to the law, and therefore not entitled to rely on s 129(3). A genuine belief that a particular consultation was covered by a designated number was relevant to whether the accused knew or suspected or had reason to suspect that the document was false. The provision was not to be read down by reference to the ignorantia juris rule. King CJ said:57 I find it difficult to think that parliament would create an offence using language and punishments appropriate to a serious crime and yet, in doing so, limit the available defences in a way which would expose to criminal liability persons guilty of no moral or serious civic wrongdoing.

[page 93]

Reliance on legal advice 3.28 Reliance on legal advice is not generally recognised as a defence to a criminal charge. Thus, in the New South Wales case of Pollard v DPP (Cth) (1992) 28 NSWLR 659, it was held that ‘once all the facts are known, incorrect legal advice in relation to them would be a mistake of law’.58 In Olsen v Grain Sorghum Marketing Board [1962] Qd R 580, the Queensland Full Court upheld a conviction notwithstanding the advice received from counsel that the transaction was protected by the Constitution. In giving that advice, counsel relied upon a decision of the Full Court of the Supreme Court of Queensland which was subsequently reversed by the High Court. In Crichton v Victorian Dairies Ltd [1965] VR 49, a company was convicted under s 165(2) of the Companies Act 1961 (Vic) for failing to appoint an auditor in circumstances in which the company had been advised by counsel that there was no duty to appoint. By way of contrast, in Maintenance Officer v Stark [1977] 1 NZLR 78, the accused was

charged under s 107 of the Domestic Proceedings Act 1968 (NZ) with defaulting under a maintenance order for support of his child ‘without reasonable cause’. The accused had been advised by a solicitor that this obligation to support ceased upon signing a consent form for the adoption of the child by the mother and her present husband. The advice was bad. Beattie J held that the accused’s reasonable mistake as to his civil obligations to maintain could provide a ‘reasonable cause’ under s 107. 3.29 Two arguments may be directed against recognising the defence of reliance upon the advice of counsel. First, the client should be aware that his or her lawyer acts in an advisory capacity; the client is free to reject that advice and obtain a second opinion. Lawyers do not, nor should they, warrant the correctness of their advice; they are not liable for wrong advice unless that advice was given negligently. Second, recognition of a defence of reliance would corrupt the profession. One could obtain any advice one wished, for the right price. In particular, large corporations which retain their own counsel could exercise undue influence in order to obtain favourable advice. 3.30 By way of rebuttal, the first argument is irrelevant; the second is unduly cynical. The first is irrelevant because accused do not claim that they were coerced by their lawyer to act in the way they did. Evidence of the seeking of competent independent legal advice is relevant because it shows that the accused’s conduct does not show a wanton disregard for his or her obligations under the law. On the contrary, it shows that the accused is concerned to comply with the law. The second argument is unduly cynical because a lawyer’s most valuable asset is his or her professional reputation. No greater professional embarrassment can be imagined for the practising lawyer than to have the quality of the advice given called in question before a criminal court. Indeed, the mere possibility of that occurrence could have a beneficial effect upon the legal profession. If the advice was so bad that no reasonable lawyer could have given it honestly, the case may be one for the disciplinary committee of the relevant professional association. In the light of these arguments, it is regrettable that the High Court in Ostrowski v Palmer (2004) 218 CLR 493 asserted, without explanation, that a ‘mockery

would be made of the criminal law if accused persons could rely on … erroneous legal advice’.59 [page 94] 3.31 It is not suggested that the shelter of legal advice be extended to every infraction of the criminal law. In the hard core of crimes malum in se, it may be doubted whether the defence is appropriate at all. In the case of offences mala prohibita, it may be appropriate to consider whether a person’s behaviour in relying upon the advice given was in itself reasonable. It may also be relevant to consider whether the advice was given independently and upon full disclosure of all relevant facts. 3.32 Where the crime charged requires proof of some particular state of mind, evidence of legal advice may be tendered in order to raise doubt with respect to that state of mind. In the English case of R v Dodsworth (1837) 173 ER 467, the accused was charged with falsely stating electoral qualifications. He had acted on the advice of an election committee. Lord Denman said that a person should not be convicted if he had acted bona fide and had ‘been guided in his conduct in a matter of law by persons who are conversant with law’.60 This decision suggests that evidence of legal advice may be tendered in order to displace the necessary mens rea. In the South Australian case of McL v Flavel (1985) 21 A Crim R 267,61 a conviction under s 67 of the Companies Act 1962 (SA) (‘knowingly and wilfully’ permitting the company to give financial assistance for the purchase of shares in the company) was set aside. Evidence of the defendant director’s lack of knowledge and appreciation of the tainted scheme was relevant to mens rea and ought not to have been excluded. There was a reasonable possibility that the accused had been the ‘unknowing victim of poor advice’.62

Officially induced error of law

3.33 Hard cases make bad law. In the English case of Surrey County Council v Battersby [1965] 2 QB 194; [1965] 2 WLR 378, a woman inquired of the local council whether she was obliged to register a particular childcare arrangement as a fostering arrangement under the Children Act 1968 (UK). She was advised that, in the circumstances, the arrangement did not require registration. That advice was wrong. She was prosecuted under the Act and convicted on the ground that the advice received was no defence. Similarly, in the Western Australian case of Minear v Rudrum (2001) 33 MVR 119, the holder of a probationary driver’s licence was issued with a traffic infringement notice informing him that the licence was automatically cancelled by law. His mother subsequently received erroneous advice from the licensing authority that, until the licence was collected, the probationary driver could continue to drive. The Court of Appeal held that the cancellation of the licence was a matter of law, not of fact, and that the advice given to the appellant’s mother could not affect his legal position. Professor Brett describes cases such as Battersby and Minear as constituting a ‘glaring injustice’,63 a conclusion with which it is difficult to disagree. [page 95] 3.34 A person who acts upon the express advice of an authority empowered with the administration of the law should not suffer for the incompetence of the authority concerned. Lord Denman’s dictum in Dodsworth has already been noted (at 3.32) a fortiori where, as in Battersby, the authority is not simply conversant with the law, but is charged with administering it. The Supreme Court of Canada in Lévis (City) v Tétreault [2006] 1 S.C.R. 420; 2006 SCC 12 recognised that the defence of officially induced error applies where a defendant acts on erroneous but reasonable advice from an appropriate official and the defendant relies on the advice to draw a conclusion that is either an error of law or an error of mixed law and fact. The onus of proof is on the accused to prove the elements of the defence on the balance of

probabilities.64 The concept of officially induced error was raised and rejected in the High Court case of Ostrowski v Palmer (2004) 218 CLR 493, where the state fisheries authority had provided the accused (respondent) with an incomplete set of regulations by which to determine the designated zones for rock lobster fishing. The High Court did not need to determine the issue of officially induced error after upholding the prosecution’s (appellant’s) objection that evidence relevant to the issue might have been adduced at trial had it been raised there. However, McHugh J opined that ‘[i]f a defendant knows all the relevant facts that constitute the offence and acts on erroneous advice as to the legal effect of those facts, the defendant, like the adviser, has been mistaken as to the law, not the facts’.65 Accordingly, the defendant would not be exculpated from criminal liability.

Reliance upon ‘the law’ 3.35 Perhaps the clearest case for modification of the ignorantia juris rule occurs when a person relies upon the express ruling of a court of competent jurisdiction, which is subsequently (but before the trial) disapproved or overruled. In the Canadian case of R v Campbell (1973) 21 CRNS 273, the accused was charged with taking part in an immoral performance in a theatre. She had danced nude before members of the public who were admitted upon payment of a fee. By way of defence, she relied upon a previous decision in which it was held that a performance was not immoral if it did not have the undue exploitation of sex as a dominant characteristic. That decision was reversed on appeal. The accused’s reasonable mistake of law was held to be no defence. The implication that citizens may be expected to know the law better than judges was ‘amusing’66 but irrelevant. Kerans DCJ noted:67 The principle that ignorance of the law should not be a defence in criminal matters is not justified because it is fair, it is justified because it is necessary, even though it will sometimes produce an anomalous result.

In the event, the accused was given an absolute discharge.

[page 96] 3.36 Cases of this kind amount to a reductio ad absurdum of the ignorantia juris rule. A person who acts in good faith, relying on a judicial decision correctly understood and applied at the time of the act, should be allowed to plead that decision by way of defence. A person’s liability should be judged at the time of the alleged criminal act, not at the time of the trial. Certainty is an indispensable foundation of the criminal law. These cases suggest that there can be no certainty until a matter is litigated before the highest court of appeal. Reliance upon a judicial decision at any lower level takes the form of a gamble.68 3.37 Similar considerations apply where someone relies upon deregulated legislation by way of defence. If the regulations are held to be ultra vires then, in strict logic, there is no defence because the law relied upon is a nullity. Nevertheless, criminal liability should be assessed on the assumption that the rules or regulations authorising the conduct were valid. It is conceivable that this could be done within the present framework by treating the accused’s error as comprising elements of fact and law.

Non-discoverable laws 3.38 There is some doubt whether the defence of impossibility, which is available with respect to the performance of a duty imposed by law (see 7.7–7.8), may be raised in relation to the ascertainment of a criminal prohibition. In the old English case of R v Bailey (1800) Russ and Ry 1; 168 ER 651, the accused was charged under a statute within a few weeks of its being passed, at which time he was on the high seas. It would have been physically impossible for notice of the statute to have reached him by the time he did the prohibited act. He was convicted but given an absolute pardon. More recently, in the Canadian case of R v Maclean (1974) 27 CRNS 31, O’Hearn J observed:69 It is hardly a sufficient consolation in such a case to pardon the offender after he has undergone a trial and conviction, a course that most commentators suggest would be

followed today. The situation strikes the ordinary individual as radically unjust.

3.39 In Lim Chin Aik v R [1963] AC 160, the Privy Council considered the ignorantia juris rule in relation to the exercise of powers conferred upon a minister to declare certain persons ‘prohibited’ from entry into the State of Singapore. Under s 6(3) of the Immigration Ordinance 1952 (Sing) it was unlawful for a prohibited person to remain in the State of Singapore. The Minister made an order in respect of the appellant. He was convicted of the offence of remaining in Singapore despite there being no evidence to suggest that he was aware of the order. The prosecution contended that the question of knowledge was irrelevant because mens rea was not an ingredient of the offence contained within s 6(3). Furthermore, the Minister’s order was part of the law of Singapore so that the accused’s ignorance of that order could not provide a defence. The Judicial Committee ruled against the prosecution on both points. With respect to the second argument, Lord Evershed said:70 [E]ven if the making of the order by the Minister be regarded as an exercise of the legislative as distinct from the executive or administrative function (as they do not

[page 97] concede), the maxim cannot apply to such a case as the present where it appears that there is in the State of Singapore no provision … for the publication in any form of an order of the kind made in the present case or any other provision designed to enable a man by appropriate inquiry to find out what ‘the law’ is.

The Judicial Committee rejected the ignorantia juris point on the ground that non-publication of the order excluded the operation of the rule. Incidentally, the same result might have been reached by classifying the accused’s mistake as ignorance or mistake of fact (ie, the exercise by the Minister of the power to declare him a prohibited person). 3.40 In most Australian jurisdictions, statutory rules and regulations take effect on and from the date of registration, notification or publication — unless a contrary intention is expressed by the

legislature.71 In some cases, publication in full in the Government Gazette is required.72 In New South Wales, the statutory rules must be published on the legislative website.73 In other cases, the notification requirement is satisfied if the regulations are noted in the Gazette and a statement is made as to where copies may be obtained. The Rules Publication Act 1953 (Tas) provides that where ‘statutory rules’ are required to be published in the Gazette it is sufficient to place a notice in the Gazette that the rules have been passed, along with a statement of the general purport or effect of the rules and information as to the place where copies may be obtained. In Victoria, legislative instruments must be published in full;74 however, statutory rules need only be noted in the Gazette together with a statement as to where a copy may be obtained.75 3.41 In the Australian Capital Territory Supreme Court case of Golden-Brown v Hunt (1972) 19 FLR 438, the requirement was held not to be satisfied by a statement that the relevant rules could be obtained from a particular mailbox number, or from ‘AGPS Book Centres in Canberra, Melbourne, Perth and Sydney’. The ordinance was therefore inoperative, but not void. In Evans v Donaldson [1977] Tas SR (Pt 2) 104, the Tasmanian Full Court took a more liberal approach and held that notification that a statutory rule approving a particular sort of breathalyser might be purchased at the Government Printing Office, Hobart, was sufficient description of a ‘place’ within the equivalent Tasmanian section. Golden- Brown v Hunt was explained as turning on the fact that a mailbox was not a ‘place’ and the abbreviation ‘AGPS’ was vague and uncertain. 3.42 Assuming that the ordinance satisfies the necessary notification and publication requirements, it should be asked whether the nonavailability of the ordinance from the government printer or other appointed source may be relied upon as a defence. In the English case of Sheer Metalcraft Ltd v R [1954] 1 QB 586, non-compliance with the statutory duty to print and sell was held not to postpone the operation of the statutory rule. In terms of the ignorantia juris rule, it is difficult to see any real difference between the absence of a publication or notification requirement (Lim Chin Aik [1963] AC 160) and non-

compliance [page 98] with the duty to publish by the appointed authority. The citizen’s duty to know the law is correlative to the lawmakers’ duty to make the law knowable. The citizen should not be fixed with knowledge of that which he or she could not have known due to another’s fault.76 3.43 In the Queensland case of Hughes v Hi-Way Ads Pty Ltd; Ex parte Hughes [1963] Qd R 328, Wanstall J commented upon the importance of accessibility of the law to those who might be affected by it and recalled the story of the Emperor Caligula, reputed to have deposited his criminal edicts on top of a monument. Consequently, he had a store of ‘luckless victims’ who transgressed them in ignorance of their provisions.77 Wanstall J went on to contend that natural justice regarded publicity and accessibility as constituting threshold or minimum requirements which any edict must have in order to be ‘law’.78 This is an interesting argument that warrants serious consideration. 3.44 The Commonwealth, Northern Territory and Queensland Codes make ignorance of a non-published statutory instrument an excuse.79 These provisions exempt from responsibility, an act or omission done or made in contravention of a statutory instrument if, at the time of doing or making it, the statutory instrument was not known to the accused and had not been published or otherwise reasonably made available, or known to the public or those persons likely to be affected by it.80 The Commonwealth provision contains the additional stipulation that persons are not liable if they could not be aware of the contents of the legislation even if they had exercised due diligence.

Absence of fault and mistake of law 3.45

The question has arisen as to whether the law does, or should,

recognise a general defence based upon complete absence of fault.81 Such a defence might be applied not only to the fulfilment of a duty imposed by law, but also to ascertainment of a prohibition or its interpretation. People may be led into error, entirely without fault, by unsound legal advice. If the circumstances are such that it was reasonable for them to rely upon that advice, should they not have a defence? To punish a person who has taken all reasonable steps to conform with the law has a tendency to bring the law itself into disrepute. See 2.48. [page 99] 3.46 However, the principle actus non facit reum nisi sit mens rea82 is firmly established within the criminal law, perhaps more firmly than the competing rule presently under consideration. The policy considerations underlying the rejection of the defence of ignorance or mistake of law have little or no relevance where the accused has, before engaging in conduct, made a genuine and diligent effort to ascertain and abide by the law, resorting to such means as are provided by the legal system.83 It is sad to report that Australian and English courts have, for the most part, clung fast to the dogma that ignorance of the law is no excuse, regardless of the circumstances. In some cases, substantial justice has been achieved by discharging the accused without penalty, which fails to recognise the legal or social stigma of a criminal conviction. After a brief flirtation with the approach suggested here, courts in some Canadian jurisdictions have to some extent been called back into the fold by the Supreme Court in Molis v R [1980] 2 SCR 356. The accused was charged with trafficking in a restricted drug, namely 3-4 methylenedioxy-N-methylamphetamine (MDMA). When the accused began manufacturing MDMA it was not prescribed; however, it was added to the list of prohibited drugs a short time later. The evidence that the accused had exercised due diligence in ascertaining whether MDMA was a prohibited drug was held to be inadmissible. The court declared that the ‘no fault’ defence expounded by the Supreme Court in

Sault Ste Marie v R [1978] 2 SCR 1299 was limited to due diligence in the performance of a statutory duty, and did not apply to due diligence in ascertainment of a statutory prohibition or its interpretation.84 However, in specific situations, the tendency to bring the law into disrepute has been militated against by the defence of officially induced error of law: see 3.34.

Onus of proof 3.47 In cases where an exception to the ignorantia juris rule is raised, the accused is effectively denying any fault element which the prosecution must prove. Accordingly, the prosecution bears the burden of rejecting the claim beyond reasonable doubt. In jurisdictions that recognise an excuse of ignorance of a statutory instrument, the accused must adduce evidence that the legislation was not published, or otherwise reasonably made available or known to the public or persons likely to be affected by it.85

Reforming the law 3.48 The scope and meaning of the ignorantia juris rule remains unclear in many important aspects. In particular, the distinction between fact and law is a source of great difficulty. For the most part, the rule is justified on the ground of necessity. The American case of State v O’Brien (1892) 31 Pac 45 justified the rigid enforcement of the rule in these terms:86 The rule rests on public necessity. The welfare of society and the safety of the state depend upon its enforcement. If a person accused of crime could shield himself

[page 100] behind the defence that he was ignorant of the law which he violated, immunity from punishment would in most cases result. No system of criminal justice could be sustained [with] such an element in it to obstruct the course of its administration. The plea would

be universally made, and would lead to interminable questions incapable of solution. Was the defendant in fact ignorant of the law? Was his ignorance of the law excusable? The denser the ignorance the greater would be the exception from liability.

Assuming that the criminal law is designed to punish the wicked and the vicious87 rather than the stupid or the ignorant, the conclusion drawn might not be thought inappropriate. Furthermore, the rule applies not only in respect of ignorance of the law which the accused violated, but also with respect to ‘collateral’ mistakes of civil law. This application of the ignorantia juris rule is hard to justify on grounds of public necessity. At any rate, it is submitted that the public interest does not require blind application of the rule in all circumstances regardless of any question of fault or moral blameworthiness on the part of the accused. There is much truth in the assertion that:88 Respect for law, which is the most cogent force in prompting orderly conduct in a civilised community, is weakened, if men are punished for acts which according to the general consensus of opinion they were justified in believing to be morally right and in accordance with law.

3.49 The risk of injustice perpetrated by the application of the rule is increased considerably in a multicultural society, such as Australia. As noted by Murphy J in the Victorian case of Poyser v Commissioner for Corporate Affairs [1985] VR 533:89 It is easy to say that as a matter of law a foreign immigrant cannot escape a charge of murder by proving that he believed that his sister’s husband should be punished for deserting her and her children, but it is not altogether satisfying to say that the same immigrant should be liable to be sent to gaol for keeping a few goats in his backyard, he not knowing that this was illegal.

As a solution, it has been suggested that parliament should prescribe an exception to the ignorantia juris rule where the accused, on account of language or cultural barriers, did not know and could not reasonably be expected to have known of the existence of the offence.90

1.

2.

R v Coote (1873) LR 4 PC 599; [1861–73] All ER Ext 1113; Iannella v French (1968) 119 CLR 84; Khammash v Rowbotton (1989) 51 SASR 172; Pollard v DPP (Cth) (1992) 28 NSWLR 659. Criminal Code 1995 (Cth) s 9.3(1); Criminal Code 2002 (ACT) s 37(1); Criminal Code (NT) s 30; Criminal Code 1899 (Qld) s 22; Criminal Code 1924 (Tas) s 12; Criminal Code 1913 (WA) s 22.

3.

4.

5. 6. 7. 8. 9. 10.

11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27.

For discussion of the policy grounds underlying the rule, see K Amirthalingam, ‘Mistake of Law: A Criminal Defence or a Reasonable Defence?’ (1994) 18 Criminal Law Journal 271; A Ashworth, ‘Excusable Mistake of Law’ [1974] Criminal Law Review 652; P Brett, ‘Mistake of Law as a Criminal Defence’ (1966) 5 Melbourne University Law Review 179; W Brookbanks, ‘Recent Developments in the Doctrine of Mistake of Law’ (1987) 11 Criminal Law Journal 195; M Furmston, ‘Ignorance of Law’ (1981) 1 Oxford Journal of Legal Studies 37; J Herlihy, ‘Ignorance of Law: Claim of Right under the Criminal Code of Queensland, Western Australia and the Northern Territory’ (1988) 9 Queensland Lawyer 31; A Smith, ‘Error and Mistake of Law in Anglo-American Criminal Law’ (1985) 14 The Anglo-American Law Review 3. See A Ashworth, Positive Obligations in Criminal Law, Hart Publishing, Oxford, UK, 2013, pp 82–3, where it is argued that neither of the consequentialist justifications withstand close scrutiny. See M Hale, Pleas of the Crown, vol 1, Professional Books, London, 1972, Ch VI. See W Blackstone, Blackstone’s Commentaries on the Laws of England: A Facsimile of the First Edition of 1765–1769, Book IV, University of Chicago Press, Chicago, 2002, p 27. Martindale v Falkner (1846) 2 CB 706 at 719–20; 135 ER 1124 at 1129–30. (1976) 13 SASR 184 at 187. See Brett, above n 3, at 184–5; D O’Connor, ‘Mistake and Ignorance in Criminal Cases’ (1976) 39 Modern Law Review 644 at 646. Cambridgeshire and Isle of Ely County Council v Rust [1972] 2 QB 426; Young v Bristol Aeroplane Co [1946] AC 163 at 169; Bremer Handelsgesellschaft v Mackprang J R [1979] 1 Lloyd’s Rep 221. See Furmston, above n 3, at 46. See Ianella v French (1968) 119 CLR 84 at 101 per Taylor J; at 112 per Windeyer J. (2004) 219 CLR 493 at 500. See J Hall, General Principles of Criminal Law, 2nd ed, The Bobbs-Merrill Co, Indianapolis, 1960, p 323. Ostrowski v Palmer (2004) 218 CLR 493 at 518. P Winfield, ‘Mistake of Law’ (1943) 59 Law Quarterly Review 27. See, for example, David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353. Iannella v French (1968) 119 CLR 84 at 114 per Windeyer J; as to trade custom, see Mollison (1876) 2 VLR (L) 144. Andrews v Ardler (2012) 266 FLR 177 at 185–6. Brutus v Cozens [1972] 2 All ER 1297 at 1299 per Lord Reid. (1876) 4 Ch D 693 at 702–3. (1937) 59 CLR 279 at 306. (1976) 14 SASR 337 at 345. (1976) 14 SASR 337 at 355. (1976) 14 SASR 337 at 357. Affirmed by the High Court in Ostrowski v Palmer (2004) 218 CLR 493 at 518 per McHugh J. Griffin v Marsh (1994) 34 NSWLR 104 at 118 per Smart J and approved of in Palmer v Ostrowski (2002) 26 WAR 289 at 302 per Olsson AUJ. (2004) 218 CLR 493 at 515–16 per McHugh J; at 528–9 per Callinan and Heydon JJ; The Hills Shire Council v Kinnarney Civil & Earthworks PTY Ltd & Kinnarney [2012] NSWLEC 45 at [182].

28. (2004) 218 CLR 493 at 515. 29. Turner (No 2) [1971] 2 All ER 441; Rose v Matt [1951] 1 KB 810; R Cross, ‘Larceny by an Owner and Animus Furandi’ (1952) 68 Law Quarterly Review 99; B Fisse, Howard’s Criminal Law, 5th ed, Law Book Co, Sydney, 1990, p 250. 30. Macaura v Northern Assurance Co Ltd [1925] AC 619. 31. Quelch v Collett [1948] 1 KB 478. 32. R v Bonollo [1981] VR 633; Maintenance Officer v Starke [1977] 1 NZLR 78. 33. Donnelly v Commissioner of Inland Revenue [1960] NZLR 469 at 472–3. Section 12 of the Criminal Code (Tas) expressly states that ignorance of the law ‘may be relevant to the question whether or not an act of omission, which would constitute an offence if accompanied by a certain intention or state of mind, was in fact accompanied by that intention or state of mind’. Likewise, s 9.3(2)(b) of the Criminal Code (Cth) makes it an exception to the ignorantia juris rule ‘if the ignorance or mistake negates a fault element that applies to a physical element of the offence’. 34. (1837) 8 Car and P 136 at 137; 173 ER 431 at 432–3. See also Crespigny v R (1795) 1 Esp 280; 170 ER 357, which held that a genuine mistake in the construction of a private deed is a good defence to a charge of perjury; and R v Dodsworth (1837) 8 Car and P 218; 173 ER 467, which held that acting on erroneous advice from election committee members is a good defence to misstating electoral qualifications. 35. Lamberton v Hill [1944] VLR 11 at 12 per Gavan Duffy J. 36. Burnell v R [1966] Qd R 348. 37. [1951] SASR 290 at 294. 38. (1968) 119 CLR 84 at 97. 39. See C Howard, ‘Australian Letter’ [1968] Criminal Law Review 590 at 604; McL v Flavel (1985) 45 SASR 69; 21 A Crim R 267 at 275 per Bollen J. 40. Pollard v DPP (Cth) [1962] QWN 13 at 29 per Gibbs J. See W Brookbanks, ‘Colour of Right and Offences of Dishonesty’ (1987) 11 Criminal Law Journal 153; and Chapter 4. 41. See G Williams, Criminal Law: The General Part, 2nd ed, Stevens, London, 1961, pp 310– 17. 42. (1867) LR 2 HL 149 at 170; [1861] All ER Rep 2109 at 2118. 43. [1962] Qd R 580 at 590. 44. In Director of Public Prosecutions v Wille (1999) 47 NSWLR 255; 114 A Crim R 150, it was held that, in determining the meaning of ‘without lawful excuse’, only limited assistance is to be obtained from cases which construe phrases that are superficially similar, such as ‘without reasonable excuse’ or ‘for a lawful purpose’. 45. [1972] 2 QB 426 at 434. 46. In R v Denton [1981] 1 WLR 1446, the Court of Appeal held that a person who damages property upon instructions from the owner of that property has a ‘lawful excuse’, even if the purpose of the owner is to make a fraudulent insurance claim. 47. [1973] 1 NSWLR 275 at 290 per Jacobs J. See also Wong Pooh Yin v Public Prosecutor [1951] AC 93 at 101. 48. [1973] 1 NSWLR 275 at 279 per Kerr CJ; at 288 per Jacobs J. 49. [1973] 1 NSWLR 275 at 288 per Jacobs J. 50. R v Langham (1984) 36 SASR 48 at 60. 51. Hancock v Birsa [1972] WAR 177 at 179, 181, 183; Roffey v Wennerbom [1965] Qd R 43 at 58; Uncle v Owens (1973) 2 SC (NT) 79 at 81; Samuels v Nicholson [1973] 6 SASR 479 at 484; Blechynden v Bogumil (2011) 206 A Crim R 329 at 336–7.

52. Ashworth, above n 3, at 660. 53. Criminal Code (Cth) s 9.3(2)(a); Criminal Code (ACT) s 12(2); Criminal Code (NT) s 43AY(2). 54. Criminal Code (Qld) s 22(1); Criminal Code (WA) s 22; Criminal Code (NT) s 30(1). 55. Criminal Code (Qld) s 99(3). 56. See I Leader-Elliott, ‘Casenote: P’ (1987) 11 Criminal Law Journal 112. 57. (1986) 41 SASR 360 at 368. 58. (1992) 28 NSWLR 659 at 678 per Abadee J. 59. (2004) 218 CLR 493 at 527 per Callinan and Heydon JJ. 60. (1837) 173 ER 467 at 469. 61. See also Churchill v Walton [1967] 2 AC 224 at 237; Belmont Finance Corp v Williams Furniture Ltd (No 2) [1980] 1 All ER 393 at 416. 62. (1985) 21 A Crim R 267 at 282. 63. Brett, above n 3. See also P Barton, ‘Officially Induced Error as a Criminal Defence: A Preliminary Look’ (1980) 22 Criminal Law Quarterly 314; W Brookbanks, ‘Officially Induced Error as a Defence to Crime’ (1993) 17 Criminal Law Journal 380. 64. The scope of the defence was adopted from the judgment of Lamer CJ in R v Jorgensen (1995) 102 CCC (3d) 97. See also R v MacDougall (1983) 1 CCC (3d) 65 at 71; Cancoil Thermal Corp v R (1986) 27 CCC (3d) (CA Ont). For the New Zealand law, see Tipple v Police [1994] 2 NZLR 362; M Briggs, ‘Officially Induced Error of Law’ (1995) 16 NZULR 403. 65. (2004) 218 CLR 493 at 516. 66. (1973) 21 CRNS 273 at 280. 67. (1973) 21 CRNS 273 at 280. 68. See the comment by Deane J in Zecevic v DPP (Vic) (1987) 162 CLR 645 at 677–8. 69. (1974) 27 CRNS 31 at 50. 70. [1963] AC 160 at 171. 71. Legislative Instruments Act 2003 (Cth) s 12; Interpretation Act 1987 (NSW) s 39; Acts Interpretation Act 1954 (Qld) s 15D; Acts Interpretation Act 1931 (Tas) s 47(3); Subordinate Legislation Act 1994 (Vic) s 16; Interpretation Act 1984 (WA) s 41. 72. Interpretation Act 1984 (WA) s 41. 73. Interpretation Act 1987 (NSW) s 39. 74. Subordinate Legislation Act 1994 (Vic) s 16A. 75. Subordinate Legislation Act 1994 (Vic) s 17. 76. In Molis v R [1980] 2 SCR 356, the Supreme Court of Canada rejected the notion that due diligence could excuse ignorance of regulations which had been published in satisfaction of a statutory requirement. See E Colvin, Principles of Criminal Law, 2nd ed, 1986, p 263. 77. [1963] Qd R 328 at 334. 78. Section 22 of the Criminal Code (Qld) was amended in 1985 by the Regulatory Offences Act (Qld) which gives statutory expression to the principle expressed by Wanstall J. 79. Criminal Code (Cth) s 9.4(2)(c); Criminal Code (NT) ss 30(3), 43AY(3); Criminal Code (Qld) s 22(3)–(4). See further Hogan v Sawyer; Ex parte Sawyer [1992] 1 Qd R 32; (1990) 51 A Crim R 46. As to the intended effect of the Commonwealth provision, see Model Criminal Code Officers Committee, Model Criminal Code, ‘Chapter 2: General Principles of Criminal Responsibility’, Commonwealth Attorney-General’s Department, Canberra, 1992, p 59, citing Watson v Lee (1979) 144 CLR 374 at 408 per Mason J. 80. See Ex parte Sawyer [1992] 1 Qd R 32; (1990) 51 A Crim R 46.

81. Sault Ste Marie v R [1978] 2 SCR 1299. 82. ‘An act does not make a person legally guilty unless his or her mind is legally blameworthy.’ 83. Long v State (1949) 65 A 2d 489; referred to in R v Maclean (1974) 27 CRNS 31 at 51. 84. Compare He Kaw Teh v R (1985) 157 CLR 523 at 533–5. 85. Lim Chin Aik v R [1963] AC 160 at 175 per Lord Evershed. 86. (1892) 31 Pac 45 at 47. 87. R v Brown (1975) 10 SASR 139 at 148 per Bray CJ. 88. R v O’Neil (1910) 126 NW 454 at 456. 89. [1985] VR 533 at 536. 90. S Bronitt and K Amirthalingam, ‘Cultural Blindness: Criminal Law in Multicultural Australia’ (1996) 21 Alternative Law Journal 58.

[page 101]

4 Claim of Right Introduction 4.1 The essence of a claim of right at common law is said to be that the accused did not know that another person’s legal rights were being violated.1 This is so, even where the accused takes property on behalf of, or in collaboration with, another whom he or she believes has a claim of right to the property in question.2 At common law, the primary function of honest claim of right is to resolve a conflict that arises at the intersection of two basic principles. The first principle is that ignorance or mistake of law is no excuse. The second is that mens rea must be established, it cannot simply be imputed. Accordingly, although a mistake of law generally does not constitute a defence (see Chapter 3), an accused cannot be convicted if such a mistake is inconsistent with the existence of the requisite mens rea. This position was well expressed by Lord Parker in the English case of R v Turner (No 2) [1971] 2 All ER 441:3 The whole test of dishonesty is the mental element of belief. No doubt, although the defendant may for certain purposes be presumed to know the law, he would not at the time have the vaguest idea whether he did have in law a right to take the car back again, and accordingly when one looks at his mental state, one looks at it in the light of what he believed. The jury were properly told that if he believed that he had a right, albeit there was none, he would nevertheless fall to be acquitted.

At common law, claim of right is raised in order to prevent the prosecution from proving mens rea. In effect, the prosecution proceeds on the basis that the accused did not have a claim to the property. It is

only if the defence raises claim of right that it has to be disproved in order for the Crown to establish the requisite mens rea. 4.2 Claim of right under the Griffith Code and the Criminal Code (NT) is similar in substance to the common law; however, there are some differences in terms of scope and, consequently, in application. Claim of right has a wider application under the Griffith Code and s 30 of the Criminal Code (NT) as it is not restricted to negativing the mental element of an offence; subsequently, an [page 102] accused can raise claim of right in answer to offences that are regulatory in nature. For offences with a subjective fault element, claim of right is not based on the prescribed excuses expressed in the codes but is simply a possible explanation of the accused’s mental state that would be inconsistent with guilt. In this respect, it is operationally the same as the common law, with the exception that the evidential burden remains with the Crown. Therefore, the prescribed excuse of claim of right only applies to offences that do not have a mental element or to those that have a limited mental element. Consistent with the common law, the Codes prescribe that the defence must raise the excuse of claim of right. 4.3 Although it is possible to characterise a claim of right as a defence, it is better viewed as a qualification to the rule that ignorance or mistake of law is no excuse.4 Claim of right is commonly raised where the accused believes, for one reason or another, that he or she is entitled to take5 or otherwise appropriate the property which is the subject of the charge. The accused’s belief does not have to be reasonable or grounded in law or fact, but it must be genuinely held.6 Where the circumstances are such as to render the accused’s claim fanciful, the court may not accept the claim as an honest belief.7 The accused’s belief may go to his or her legal right to take or keep the property or to a matter of fact concerning the property. For example, the accused may believe the property to be his or her own. However,

such a mistaken claim of ownership will not invariably defeat an allegation that the accused knew the property to belong to another, since property can ‘belong’ to more than one person under the common law.8

Claim of right not founded in law 4.4 At common law and under the codes the plea of a claim of right invariably involves a mistake as to a private right or civil law which results in a belief that the conduct in question was lawful.9 The claim may be one of ownership of property or a right to receive payment or a right to possess, use, access, damage or destroy property. The model Criminal Codes are more restrictive in their application as the claim can only relate to either a proprietary or possessory right.10 The accused must believe in a legal right to the property; however, it is not necessary that there be an actual right in law or in fact to the property. In R v Bernhard [1938] 2 KB 264, the appellant had entered into an agreement with her former lover that he would pay her a certain sum of money. When he refused to make the second payment the appellant threatened to expose their affair to his wife. The [page 103] trial judge directed the jury that claim of right was not available as it arose out of a ‘bargain made for an immoral consideration’ and, as a result, the appellant was convicted of demanding money with menaces with intent to steal. The conviction was quashed on appeal where Charles J held that ‘a person has a claim of right … if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact’.11 As claim of right must concern a legal right, it is insufficient for it to simply be based on a moral right.12 For example, in R v Salvo [1980] VR 401; (1979) 5 A Crim R 1, Murphy J stated that:13 [A] sincere belief entertained by the accused that Karma required that he should retake

the car would not prevent the retaking from being dishonest. But a sincere belief that the law of the land allowed him to do so, would.

Although it must be based on a belief in a legal entitlement to property, the claim does not have to be couched in legal terms.14 In R v Langham (1984) 36 SASR 48, Johnston J stated that it is not necessary that the accused use technical legal language, as it is sufficient if he or she uses ‘layman’s terms from which the inference can reasonably be drawn that he believed he was entitled to possession of the property’.15 4.5 The plea does not extend to a mistake as to the criminal law since actors are required to be always aware of the obligations they have under penal law which may never be compromised.16 The difficulties in distinguishing between a mistaken belief as to a civil right and a mistaken belief as to the application of penal laws is well illustrated by the High Court decision in Walden v Hensler (1987) 163 CLR 561; 29 A Crim R 85. In that decision, the court considered the honest claim of right principle in s 22(2) of the Criminal Code 1899 (Qld). The accused was charged with taking fauna, a bustard and its chick, without being the holder of a licence or otherwise authorised, contrary to s 54(1)(a) of the Fauna Conservation Act 1974 (Qld). He claimed that he had a right to take the animals as he was simply hunting in the traditional way that his father had taught him. The majority dismissed the appeal, with the court being divided as to the application of s 22(2). Deane and Dawson JJ, who formed part of the majority, held that the accused’s claim did not constitute a legally recognisable claim of right in respect of property. Rather, it amounted to ignorance of the penal law sanctioning his conduct, which is not a legally recognisable form of exculpation.17 Brennan J, who also dismissed the appeal, held that the appellant’s belief that according to Aboriginal law he was entitled to take the birds was sufficient to raise the excuse of [page 104] honest claim of right.18 However, his Honour went on to find the offence was not one related to property and therefore his belief was not

exculpatory.19 Toohey and Gaudron JJ, in dissent, held that the offence was related to property and that the appellant was exercising a claim of right in respect to property; he was not simply ignorant about the application of the criminal law. ‘It was an honest claim that by the customs of his people, recognised by law, he was entitled to eat the adult bird and keep the chick as a pet.’20 According to Gaudron J, in order to raise claim of right the accused must believe that his customs were recognised not by traditional laws but by the laws of the state.21 4.6 The difference between a mistaken belief in a private right and a mistake as to the criminal law can result in fine distinctions. In R v Bedford (2007) 98 SASR 514, the appellant was convicted of the attempted robbery of a shopkeeper. According to the appellant, the shopkeeper had sold him poor quality heroin and the appellant had demanded more heroin or his money back. When the shopkeeper refused to comply with his requests, the appellant tried to take $100 out of the till. The South Australian Criminal Court of Appeal held that in light of the appellant’s evidence the Crown must disprove the alleged claim of right to the $100.22 Had the appellant attempted to grab a cap of heroin, claim of right would not have been available as the criminal law prohibits the possession of heroin.23

The ‘honest’ claim of right need not be reasonable 4.7 In some jurisdictions the term ‘honest’ expressly qualifies the phrase claim of right.24 However, the term ‘honest’ means nothing more than that the claim of right must have been genuinely held.25 In all jurisdictions the claim of right must have existed at the time of the offence. This is consistent with the requirement that a temporal connection exist between the fault element and the physical act. Accordingly, an assertion of a past right or a future right to the property will not suffice.26 4.8 At common law and under the codes a claim of right need not be reasonably held.27 In the New South Wales case of R v Nundah (1916) 16 SR (NSW) 482, the appellant had been convicted of stealing two of

his neighbour’s heifers in circumstances where he claimed ownership of the cattle. The trial judge directed [page 105] the jury to consider whether he had ‘reasonable grounds’ for his belief. The Supreme Court held this to be a misdirection. Cullen CJ said:28 But this must have regard to his own state of mind because a man may be a stupid, unreasonable, or wrongheaded man, without being a dishonest one. … But in the case of larceny where the question is between honesty and dishonesty, the guilt or innocence of a man cannot, as I understand the principles applicable to that branch of the criminal law, be made to depend upon a consideration by the jury whether he had reasonable grounds for his belief. The question whether he honestly believed the property to be his is that which is material.

Claim not dependent on manner of execution 4.9 At common law and under the codes, the manner of taking property is irrelevant to the claim of right. In R v Love (1989) 17 NSWLR 608; 44 A Crim R 416, the New South Wales Court of Criminal Appeal considered the question of whether it was material to a claim of right to argue that the accused had a right to obtain the property in the deceptive manner employed. The court held that there was no such requirement for a claim of right.29 In the South Australian case of R v Kastratovic (1985) 42 SASR 59; 19 A Crim R 28,30 it was held that claim of right applied to the offence of demanding money by a forged instrument under s 234 of the Criminal Law Consolidation Act 1935 (SA). Neither is it necessary that the accused believed that he or she was entitled to take or carry away the property in the manner executed. For claim of right to succeed, the accused need only believe that they had a right to possession of the property.31 Likewise, where claim of right is argued on a robbery charge, it is only necessary that the accused believed they had a right to take the property, not that they believed they had the right to take it by force or threats.32 In R v Langham (1984) 36 SASR 48; 12 A Crim R 391, claim of right was

held to be available where the accused used a shotgun to demand that a shop assistant hand over $301 that the accused believed he was entitled to. Similarly, in the Queensland Court of Appeal decision of R v Jeffrey and Daley (2002) 136 A Crim R 7, claim of right was held to be available to a charge of robbery with aggravated circumstances of personal violence. The appellant hit the victim over the head with a coffee table and kicked him in the face in order to extract $300, believed to be owed to his co-accused. The Griffith Code, s 30 of the Criminal Code (NT) and the model Criminal Codes all include qualifications that appear to limit the manner in which claim of right can be exercised. The Griffith Code and s 30 of the Criminal Code (NT) state [page 106] that an honest claim of right must be exercised ‘without intention to defraud’. The qualification cannot apply to the claim of right because the two terms are mutually exclusive; an accused cannot have the intent to defraud and have an honest claim of right to the same property (see 4.22). Some commentators argue that the qualification operates so as to exclude the excuse of claim of right in circumstances where the accused asserted his or her claim by dishonest means.33 This view is open to criticism on a number of grounds.34 The sections make no reference to the term ‘without fraudulent means’ but, rather, state that it must be ‘without intention to defraud’. Furthermore, the existence of a claim of right will be determinative of culpability where an accused asserts his or her right by violent means (see 4.24), where an accused is prosecuted with an offence of dishonesty or where the Crown must prove an intent to defraud (see below); therefore, it would be inconsistent if an accused who has been prosecuted with stealing could not rely on the excuse in circumstances where the claim was pursued by dishonest means. Finally, the weight of authority is against the view. In Roberts v Western Australia (2005) 29 WAR 445, for example,

Mclure J stated that a ‘person can have an honest belief with respect to property even if dishonest means were used to access the property’.35 Accordingly, the words ‘without intention to defraud’ must simply clarify that the excuse is rendered otiose where the relevant fault element is intent to defraud. This is because evidence of a claim of right is determinative of the existence of the fault element and, accordingly, the excuse has no role.36 The model Criminal Codes include a qualification which states that a claim of right ‘does not negate criminal responsibility for an offence relating to the use of force against a person’.37 The scope of this qualification is also difficult to determine. At first glance, it would appear that on a charge such as robbery, a claim of right cannot be relied upon as the Crown must not only prove theft but further prove that the accused used force to gain the property stolen.38 However, such an interpretation cannot apply because the fault element of theft is that of dishonestly taking another’s property, a state that is inconsistent with an [page 107] honest claim of right.39 Like the qualification under the Griffith Code, the model Criminal Code qualification is probably superfluous.40

The extent of the claim and accessorial liability 4.10 At common law and under the codes, the claim of right is not confined to the specific property or money that was previously held by the claimant but can extend to property of an equivalent value.41 However, the claim of right must extend to the entirety of the property or money that was taken. Subsequently, the claim will fail if the property or money intentionally taken exceeded that which the honest claim of right attached.42 4.11 Claim of right is available to a person acting on behalf of another whether the person is charged as a principal or as an

accessory.43 In R v Sanders (1991) 57 SASR 102, the accused was charged with obtaining money by false pretences with intent to defraud contrary to s 195 of the Criminal Law Consolidation Act 1935 (SA). He had withdrawn amounts of money for his friend W from the bank account of S. The accused had honestly believed that S owed money to W who had permission from S to make the withdrawals. The trial judge directed the jury not to consider the accused’s plea of a claim of right because the law does not permit such a claim made on behalf of another person. On appeal, this was held to be a misdirection. The appellate court held that an accused may have a claim of right if he or she takes property on behalf of, or in collaboration with, another whom he or she believes to have an honest claim of right to it. White J noted the incongruity which would result if distinctions were drawn among accomplices on this ground.44 In the New South Wales case of R v Sabbah [2004] NSWCCA 28, the appellant had taken an amount of money and a mobile phone from two people whom he believed owed money to his employer. The Court of Criminal Appeal held that, subject to adequate evidence being led, the defence of claim of right was open to the appellant. At common law, claim of right has a wider application to accessories than it does to principals. The prosecution must prove an accessory had knowledge of the ‘essential matters’ which render the principal’s conduct unlawful even though the offence does not require proof of mens rea as against the principal. Therefore, if an accessory believes that a principal has a claim of right, that belief will negative the mental element of accessorial liability even though the principal could not rely on a claim of right.45 [page 108]

Traditional or customary claim of right 4.12 There are three distinct avenues for an Aboriginal or Torres Strait Islander seeking to rely on a customary right. First, the statutory regime proscribing the conduct may include a

specific exemption for certain activities committed by an Aboriginal or Torres Strait Islander. For example, in Stevenson v Yasso (2006) 163 A Crim R 1, the accused was charged with the unlawful possession of a commercial fishing net, an offence against s 84 of the Fisheries Act 1994 (Qld). The accused claimed to be a member of the Darumbal people and to have acted in accordance with their traditions. The Court of Appeal held that s 14 of the Fisheries Act 1994 (Qld) applied to exempt an Aboriginal or Torres Strait Islander who, in accordance with ‘Aboriginal tradition’, takes, keeps or uses resources for ‘personal, domestic or non-commercial communal need’.46 Second, where native title rights have not been extinguished, an Aboriginal or Torres Strait Islander may seek to rely on s 211 of the Native Title Act 1993 (Cth) which preserves certain ‘native title rights or interests’. The preservation is of general application to Commonwealth, State and Territory laws (see 1.84). However, native title rights and interests are only preserved in circumstances where the prohibited activity can lawfully occur pursuant to a licence permit or similar instrument and the right or interest must be asserted by an Aboriginal person entitled to exercise those rights and interests.47 In Karpany v Dietman (2015) 252 CLR 507, a father and son were charged with possessing 24 undersized greenlip abalone in breach of s 72(2)(c) of the Fisheries Management Act 2007 (SA). It was accepted that the two men were members of the Narrunga People and that they were fishing in the traditional manner. Having unanimously held that the earlier statutory regime had not extinguished native title rights to fish in South Australian waters,48 the court went on to give a broad interpretation as to when an activity may lawfully occur within s 211 of the Native Title Act. It held that as the Fisheries Management Act allowed the Minister to gazette an exemption for a person or class of persons from the provisions of the Act. Activities prescribed under the Act could occur pursuant to a licence, permit or similar instrument. Accordingly, the applicants could rely on the s 211 defence.49 Third, a customary claim may constitute an honest claim of right which negatives the fault element of an offence or constitutes an excuse for an offence related to property under the Griffith Code and s 30 of the

Criminal Code (NT) (see Walden v Hensler (1987) 163 CLR 561 at 4.5).50 Foraging-type offences do not generally include a mental element that an honest claim of right would negative; therefore, the general claim of right (the third approach) has greater potential for application in Queensland, Western Australia and the Northern Territory where it is a genuine excuse (see 4.2). [page 109] In appropriate circumstances, all three bases for excluding criminal responsibility may be available to an accused. However, the general claim of right excuse (the third approach) may prove to be the most favourable as some specific exemptions, such as s 14 of the Fisheries Act 1994 (Qld), reverse the onus of proof so that the accused must prove on the balance of probability that his or her conduct came within the section.51 Uncertainty remains as to whether the defence bears an evidential or a persuasive onus when seeking to rely on s 211 of the Native Title Act 1993 (Cth).52 Further, under the Commonwealth provision, an accused may have difficulty meeting the persuasive burden or perhaps the evidential onus as it relates to the identification of their ‘Aboriginal traditions’. 4.13 Where the accused acts on behalf of another, with the belief that the other person has Aboriginal or Torres Strait customary rights to the property, the accused must rely on an honest claim of right as it is expressed in its general form. In R v Waine (2005) 157 A Crim R 490, the appellant was convicted of six counts of wilful damage to property. She had spray painted ‘AUA’ (Aboriginal University of Australia) on six government-owned huts on Fraser Island. She believed that her coaccused had native title rights to the land and that the local Aboriginal community intended to establish a cultural centre on the land. The Queensland Court of Appeal held that claim of right (s 22(2) Criminal Code (Qld)) should have been left to the jury as the appellant was acting as the agent of her co-accused whom she believed had native title rights to the land. A similar outcome would ensure in other

jurisdictions, provided the relevant offence had a fault element and the claim of right prevented the Crown from establishing that fault element (see ‘malicious damage to property’ at 4.23). In Mueller v Vigilante (2007) 177 A Crim R 506, the accused was charged with being in possession of undersized crabs in breach of s 46 of the Fish Resources Management Act 1994 (WA). He had gone to throw the crabs back; however, he kept them upon the request of two Aboriginal boys who had accompanied him on the fishing trip. The accused was not of Aboriginal descent; however, he believed that, in accordance with Aboriginal lore and custom, the boys had a right to keep the undersized crabs. Mckechnie J found that the boys had a claim of right based on traditional rights preserved by s 211 of the Native Title Act 1993 (Cth). His Honour held that the accused could also rely on a claim of right (s 22 Criminal Code 1913 (WA)) as he was acting on behalf of or was authorised by the boys. A claim of right would not exculpate for a similar offence at common law or under the model Criminal Codes, as it did not negative a fault element of the offence.53 [page 110]

Claim of right and mens rea/mental element 4.14 The emergence and function of a claim of right as a principle of criminal law is inextricably connected to the evolution of the mens rea of larceny and, more recently, to the evolution of the fault element for a wider range of dishonesty offences. From a claim of right perspective, the judicial and legislative evolution of the mens rea/fault element of dishonesty offences, including larceny, can be analysed as an attempt to answer some basic questions: • The first question is whether the fault element of larceny and other dishonesty offences is established by simply proving that the accused did not have a claim of right. • Second, on the basis that an honest claim of right is not the only constituent component of the fault element, what else must the

•

Crown prove? Third, if the fault element is more extensive than simply negativing claim of right, what is the precise role of claim of right? Is it a determining part of the fault element so that the fault element cannot be established where the accused acted pursuant to a claim of right? Is it simply one of several salient facts that a jury must consider when determining the issue of dishonesty but its existence is not determinative of fault? Is it to be considered independently of the fault element in that claim of right is not relevant unless it is raised by the defence, at which point, to convict, the Crown must establish beyond reasonable doubt that the accused did not have a belief in the right to act as he or she acted?

These questions have been variously answered, and differences in how they are answered remain both within and between the nine Australian jurisdictions. 4.15 A mental element was not a feature of the early common law offence of larceny.54 When the common law began to ascribe a mental element to the offence it was defined by reference to an animo furandi (felonious intent). East’s Pleas of the Crown characterised larceny as ‘the wrongful or fraudulent taking and carrying away …’ which required proof of ‘a felonious intent to convert [the goods of another] to his [the taker’s] own use …’.55 A felonious intent was established in the absence of a claim of right to the property. For example, in Rex v Hall (1828) 172 ER 477, Vaughan B held that:56 [I]f the Jury think that he took them under a bona fide impression that he was only getting back the possession of his own property, there is no animo furandi, and I am of the opinion that the prosecution must fail.

Sir James Stephen was of the view that felonious intent (fraudulently) simply meant the absence of a claim of right. He observed that:57 Fraud is inconsistent with a claim of right made in good faith to do the act complained of. A man who takes possession of property which he really believes to be his own does not take it fraudulently, however unfounded his claim may be.

[page 111]

The assertion that fraud was interchangeable with claim of right was, however, subject to challenge. In R v Williams [1953] 1 QB 660, Lord Goddard CJ said:58 The court thinks that the word ‘fraudulently’ does add, and is intended to add, something to the words ‘without a claim of right’, and that it means (though I am not saying that the words I am about to use will fit every case but they certainly will fit this particular case) that the taking must be intentional and deliberate, that is to say, without mistake.

The scope of Lord Goddard CJ’s judgment is difficult to determine; however, it was the catalyst for the development of a number of tests which have been variously applied by the courts at different times and in different jurisdictions. Although, as stated above, the term originally used to describe the fault element was that of animo furandi, that term gave way to the term ‘fraudulently’, which in turn transformed into the term ‘dishonesty’. The various tests will therefore be addressed by reference to the commonly used term ‘dishonesty’.

The Salvo test 4.16 The subjective test finds expression in the Victorian case of R v Salvo [1980] VR 401; (1979) 5 A Crim R 1 and in the Griffith and Northern Territory Codes. It has its origins in the period before the decision of R v Williams. In Salvo, the Court of Appeal determined the meaning of ‘dishonesty’ as used in the offence against s 81(1) of the Crimes Act 1958 (Vic). The offence is established by proof that the accused dishonestly obtained property by deception in circumstances where the accused intended to permanently deprive the person of the property. The majority held that the term ‘dishonest’ is not to be given its ordinary common meaning because it is used in a special sense to mean that the accused did not have a claim of right to the property.59 Furthermore, Fullagar J took the view that ‘dishonesty’ had the same meaning throughout the Act.60 Although the correctness of the decision has been challenged, the Salvo test continues to be applied by the Victorian courts not only to offences against s 81(1) but to other dishonesty offences, including theft.61 In order to establish that an accused acted dishonestly, the Crown must prove that he or she acted

without a claim of right.

The approach under the Codes 4.17 A similar approach applies to the offences of stealing under the Griffith Code and the Criminal Code (NT) as the offences include a limited mental element. The Griffith Code defines ‘stealing’ as the fraudulent taking or conversion of property. The term ‘fraudulent’ has no additional meaning other than an intent to permanently deprive a person entitled to the property, or an intent to use the property in a way that is inconsistent with another’s rights to the property.62 [page 112] The Northern Territory Code defines the term ‘steals’ as intentionally depriving another of their property, and is consistent with the Griffith Code in that the Crown is not required to prove the additional element of dishonesty.63 However, the codes include the excuse of honest claim of right which applies to all offences with respect to property. Accordingly, when prosecuting an offence of stealing, the Crown must prove the requisite intent to deprive another of property or to use property inconsistent with another’s rights to the property and, in circumstances where it is raised by the defence, disprove that the accused had an honest claim of right. The difference between the Salvo approach and that of the codes is that, in the case of the former, claim of right is a fault element that must be disproved to establish the offence, whereas in the case of the latter, claim of right is an excuse that does not have to be disproved unless raised.

The Ghosh test 4.18 The Ghosh test is derived from the English Court of Appeal decision of R v Ghosh [1982] QB 1053. The appellant was a surgeon who was convicted of four offences of dishonesty under the Theft Act

1968. He had requested payment for operations that he falsely claimed to have performed. The trial judge directed the jury that the relevant standard below which behaviour was dishonest is a matter for the jury to determine. Although the appeal was dismissed, the court held that the trial judge had incorrectly directed the jury as to the meaning of ‘dishonesty’. Lord Lane held that:64 In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it.

As with the Salvo subjective test, a claim of right is determinative of criminal responsibility under the Ghosh test. An accused who believes that he or she has a right to property will not form the belief that his or her conduct was dishonest according to ordinary standards of reasonable people. Although the High Court in Peters v R (1998) 192 CLR 493 rejected the Ghosh test (see 4.19), it has been given legislative expression in a number of Australian jurisdictions. The Ghosh test is prescribed in ss 130.3, 470.2 and 474.1 of the Criminal Code 1995 (Cth) and in a number of other Commonwealth Acts.65 It also finds expression in s 300 of the Criminal Code 2002 (ACT),66 s 131(1) of the Criminal Consolidation Act [page 113] 1935 (SA)67 and s 4B of the Crimes Act 1900 (NSW).68 Prior to the decision in Peters, the Queensland courts embraced the Ghosh test69 and, notwithstanding its rejection by the High Court, they continued to apply the Ghosh test up until the recent Court of Appeal decision of R v Dillon; Ex parte Attorney-General (Qld) [2015] QCA 155.70

The Peters test

4.19 The High Court in Peters v R (1998) 192 CLR 493 rejected the Ghosh test, criticising it as being artificial and confusing in its application.71 The majority held that, depending on the terms of the relevant legislation, the term ‘dishonesty’ can have its ordinary meaning or it can have a special meaning.72 According to the Peters test, where the term ‘dishonesty’ is used in its ordinary sense, the trial judge must:73 [I]dentify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest. Necessarily, the test to be applied in deciding whether the act done is properly characterised as dishonest will differ depending on whether the question is whether it was dishonest according to ordinary notions or dishonest in some special sense. If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people.

The majority identified s 81(1) of the Crimes Act 1958 (Vic) as an example of where ‘dishonesty’ is used in a special sense. In so doing, the majority endorsed the decision of R v Salvo [1980] VR 401; (1979) 5 A Crim R 1 and the cases that followed.74 In Macleod v R (2003) 214 CLR 230, the High Court approved the Peters test and addressed the relationship between the test and claim of right. The plurality judgment stated that:75 Adopting the reasoning in Peters, as we do, and applying it to the offences now under consideration, there is no requirement that the appellant must have realised that the acts in question were dishonest by current standards of ordinary, decent people. To require reference to a ‘subjective’ criterion of that nature when dealing with a claim of right would have deleterious consequences. It would distract jurors from applying the Peters

[page 114] direction about dishonesty, and it would limit the flexibility inherent in that direction. A direction about the ‘subjective’ element of a claim of right was neither necessary nor appropriate in this case.

4.20 The scope of the Peters test as it relates to claim of right is difficult to identify. There are at least three possible alternative ways that it could apply. First, the Peters test could exclude any consideration of an accused’s

claim of right to entitlement. However, this approach is inconsistent with the first two steps of the Peters test, which requires consideration of the accused’s state of mind. It is also inconsistent with the statements in Macleod’s case which do not exclude consideration of an accused’s belief to entitlement but, rather, state that ‘specific directions respecting a “claim of right” are not required’.76 An alternative approach is that the Peters test gives primacy to a claim of right. Accordingly, if there is any reasonable doubt that the accused acted pursuant to a claim of right then it could not be established that he or she had the knowledge, belief or intent that is said to be dishonest. If the dishonest knowledge, belief or intent had not been established, the arbiter of fact is not required to consider whether the accused was dishonest according to community standards. There are judicial statements that support this second approach77 and it could explain why the Queensland decision of R v Seymour [2004] QCA 19 conflated the Ghosh and Peters tests.78 On this basis, the Peters test does little more than reverse the order of the Ghosh test. The recent Queensland Court of Appeal decision of R v Dillon; Ex parte Attorney General (Qld) [2015] QCA 155 applied a variation of the second approach. The court held that the term ‘dishonestly’, as expressed in the offence of fraud, is not used in a special sense but, rather, that it should be given its ordinary meaning. As the High Court has expressed the ordinary meaning of the term in Peters case, the Court of Appeal held that the Peters test must apply. The court went on to state that the excuse of honest claim of right is not excluded by the Peters test.79 Accordingly, when the excuse has been raised, the jury must first determine whether the accused was dishonest pursuant to the Peters test and then decide whether the prosecution had disproved that the accused was acting pursuant to an honest claim of right. The problem with this approach is that it places an objective criterion between two subjective criteria and, in so doing, it effectively extinguishes any real distinction between the Ghosh and Peters tests. It is also inconsistent with the High Court’s approach in Macleod (see 4.19). Finally, the Peters test could require all of the steps to be taken sequentially. An honest claim of right is taken into consideration when

characterising the accused’s state of mind; however, an arbiter of fact must determine whether the identified state of mind was dishonest according to the ‘standards of ordinary, decent people’. An honest claim of right is not determinative of dishonesty, as an arbiter of fact can find that the accused acted dishonestly, notwithstanding [page 115] that he or she acted pursuant to an honest claim of right.80 The third approach is consistent with the court’s subsequent characterisation of the Peters test as a ‘wholly objective’ test.81 Acceptance of the third approach excludes the Peters test from application under the Griffith Code or the Criminal Code (NT) as it is inconsistent with the general application of the claim of right excuse. In those jurisdictions, the excuse is defined to be determinative of criminal responsibility and the excuse cannot be excluded by adopting an inconsistent common law definition of the term ‘dishonesty’.82 4.21 Although the Peters test expresses the common law of Australia it has limited application. It applies to offences of dishonesty in Queensland (in a modifed form: see 4.20), Tasmania and, unless a contrary intention is expressed, it also applies to Commonwealth, Australian Capital Territory, New South Wales and South Australia offences of dishonesty. However, as stated at 4.18, in a number of those jurisdictions the legislature has expressly applied the Ghosh test to a wide range of offences. Therefore with each dishonesty offence it is necessary to determine whether the relevant act specifically defines dishonesty and then determine whether that definition applies to the specific offence.83 For example, ss 1041F(2) and 1041G(2) of the Corporations Act 2001 (Cth) defines the term ‘dishonesty’ consistently with the Ghosh test; however, there is no definition that applies to the offence of dishonesty by directors, officers or employees of a corporation under s 184(2) of the Act. In SAJ v R (2012) 225 A Crim R 528 the Victorian Court of Appeal held that, in the absence of a statutory expression to the contrary, the Peters test applied to s 184(2).

Finally, there is uncertainty as to which test applies to the offence of larceny in New South Wales.84 In 2009 the Crimes Act 1900 (NSW) was amended to include a Ghosh definition of the term ‘dishonesty’.85 Although the definition applies generally to the Act and the Act sets out the punishment that applies to larceny, the Act does not define the offence of larceny and therefore the common law definition applies. As the Ghosh definition was inserted into the Act in 2009 uncertainty remains as the courts are yet to consider whether the statutory definition or the common law definition of dishonesty applies to the offence of larceny. 4.22 The relationship between a claim of right and an ‘intent to defraud’,86 a term used in many statutory offences, is illustrated in the South Australian case of R v Sanders (1991) 57 SASR 102. King CJ, with whom Bollen J concurred, ruled that there would be no intent to defraud if the accused acted on behalf of [page 116] another in the belief that the other person was entitled to the property obtained.87 In those circumstances, the accused would not have the intent to defraud which is necessary for the crime of obtaining by false pretences. In Roberts v Western Australia (2005) 29 WAR 445, it was similarly held that it is unnecessary to direct a jury as to the excuse of claim of right, as the failure to exclude such a claim would determine whether the fault element of ‘intent to defraud’ had been proven.88

Offences to which the claim of right applies 4.23 In the common law jurisdictions, a claim of right can be raised in case of: • theft/larceny89 (Turner v R (No 2) [1971] 2 All ER 441; R v Bernhard [1938] 2 All ER 140; Rex v Nundah (1916) 16 SR (NSW) 482; Walden v Hensler (1987) 163 CLR 561 at 571);

• • •

• •

burglary (Collins v R [1973] QB 100; [1972] 2 All ER 1105; R v Lopatta [1983] 35 SASR 101); arson (Twose v R (1879) 14 Cox CC 327; Hakiwai v R [1931] NZLR 405; R v Kastratovic (1985) 42 SASR 59 at 79–80); malicious damage to property (Reg v Langford [1842] 174 ER 653; Walden v Hensler (1987) 163 CLR 561 at 571 per Brennan J; Director of Public Prosecutions Reference (No 1 of 1999) (1999) 105 A Crim R 489 at 496); obtaining by false pretences (R v Kastratovic (1985) 42 SASR 59; R v Sanders (1991) 57 SASR 102 at 108 per White J);90 and robbery (R v Skivington [1968] 1 QB 166; [1967] 1 All ER 483; R v Langham (1994) 36 SASR 48; R v Bedford (2007) 98 SASR 514).

4.24 There remains some uncertainty as to the availability of claim of right for the offence of robbery. In the English case of R v Skivington [1968] 1 QB 166,91 it was held that a claim of right might be made in aggravated larcenies offences such as robberies. The effect of the claim would be to negate the mens rea of larceny and, since robbery requires proof that the offender was engaged in theft of property, the charge of robbery will fail. The South Australian courts have also held that as robbery necessarily involves stealing, and stealing is the fraudulent or dishonest taking away of property, evidence of claim of right is always relevant to proof of the required fraudulent intent.92 However, on a number of occasions the New South Wales courts have questioned whether a claim of right applies [page 117] to the offences of robbery.93 In R v Fuge (2001) 123 A Crim R 310, Heydon J described the argument that claim of right applied to the offence of robbery as ‘astonishing’. His Honour stated that as the issue had not been considered by the High Court it should be reconsidered in an appropriate case.94 In the same decision, Sully J described the availability of honest claim of right as an ‘absurdity’ requiring ‘prompt

and specific legislative correction’.95 The court’s concern about the application of claim of right to an offence of robbery is difficult to justify. Robbery is a serious compound offence which requires proof of the use of force and dishonesty. If there is doubt about the Crown’s ability to prove the dishonesty element, then prosecutorial discretion should be exercised and the accused charged with a different offence. In R v Kastratovic (1985) 19 A Crim R 28, the Crown argued that the application of claim of right to robbery had the potential to encourage debtors to engage in violent self-help in recovering what is owed. White J dismissed such concerns, stating:96 These cases do no such thing. They merely insist that the necessary subjective dishonest frame of mind must be proved by the Crown to exist, and proved beyond reasonable doubt to exist, before a conviction can be secured in these kinds of cases. Lopatta and Langham were each guilty of committing other types of offences (being unlawfully on the premises and assault respectively) but they had not been charged with those appropriate offences.

Since at least the decision of Reg v Boden (1844) 174 ER 863 it has been held that although a claim of right is an answer to a robbery charge, an accused can nevertheless be convicted of assaulting the victim for applying force to exercise a claim of right.97 4.25 Claim of right primarily applies to property offences. However, at common law, the doctrine of claim of right appears to overstep the bounds of property offences strictly understood.98 For example, in R v Tinkler (1859) 1 F and F 513; 175 ER 832, the accused took a child out of the custody of her guardian in circumstances where he was acting upon a promise he allegedly made to the child’s father. At the father’s death bed, the accused had promised to take care of child. Although the accused had no right to take the child, Cockburn J allowed a claim of right on a charge of taking a child out of the custody of her guardian. In R v Bruer (2012) 225 A Crim R 130 the South Australian Court of Criminal Appeal expressed the view that the common law excuse of claim of right may apply to the offence of abducting a child; however, on the facts before the court it was unnecessary to reach a decision.99 The excuse does not extend in application to the offence of

[page 118] kidnapping. In Williams v R (2006) 160 A Crim R 151, the New South Wales Court of Criminal Appeal held that although claim of right may apply to parents or guardians who commit an offence by restraining their children, it has no application in circumstances where the appellant kidnapped the victim in order to extract a $2000 drug debt.100 It is doubtful whether a claim of right based on property rights can be a defence to a charge of assault, although there is surprisingly little authority on the point: see Richards v Kerrison [2013] ACTMC 15.

Claim of right under the Codes101 4.26 As discussed at 4.2, a claim of right under the Queensland, Western Australia and Northern Territory Criminal Codes applies in broadly similar terms to the claim under the common law.102 However, there are some material differences between these code provisions and the common law. A basic difference is that claim of right is recognised by the code provisions as a true excuse, whereas the common law views such a claim as no more than a ground for denying the mens rea of an offence against property. Accordingly, the code provisions on a claim of right operate whether or not there is a mental element in the offence charged.103 However, under the codes the excuse is expressed to only apply to offences ‘relating to property’.104 In Walden v Hensler (1987) 163 CLR 561, Brennan J articulated these differences in the following terms:105 Section 22 has a wider operation than the common law defence of honest claim of right in that it may apply to an offence whether or not the offence contains a mental element that is negatived by an honest claim of right; it has a narrower operation than the common law defence in that it applies only to offences which are offences relating to property …

4.27 When it comes to offences that include a subjective mental element the codes function in the same way as the common law. Evidence of a claim of right is not raised by reference to the excuse

provision but as evidence to undermine proof of the fault element.106 Although recourse to the statutory excuse is not required for mental element offences, the excuse still informs the application of the law. Accordingly, evidence of a claim of right could not be applied so as to undermine the fault element of an offence which is not ‘relating to property’ or [page 119] where the accused’s actions were not done ‘in respect to any property’, as to do otherwise would undermine the unambiguous restriction imposed by the excuse. 4.28 The scope of the restriction limiting the excuse to offences ‘relating to property’ has received considerable judicial focus. In Walden v Hensler (1987) 163 CLR 561, Brennan J (as he then was) identified two approaches to the restriction. An offence could be described as one ‘relating to property’ if it is concerned with the ‘infringement of another’s rights over or in respect of property’.107 On the other hand, an offence could be one ‘relating to property’ if it is concerned with an accused dealing in some way with what is defined as property. Brennan J held in favour of the former and more restrictive approach; however, he was not supported by the other members of the court. Dawson J, who together with Brennan and Deane JJ made up the majority, reached his decision on different grounds and therefore did not reach a conclusion as to the scope of the restriction.108 Deane J, consistent with the approach taken by the dissenting judges, applied the second, less restrictive approach.109 Although it can be argued that precedent cannot be drawn from combining Deane J’s decision with that of the dissenting judges,110 it is the second approach that has prevailed. For example, in Molina v Zaknich (2001) 24 WAR 562; 125 A Crim R 401, s 22 of the Griffith Code was applied to a person charged with the offence of remaining, without authority, on premises after being warned to leave. Additionally, in Mueller v Vigilante (2007) 177 A Crim R, it was held to apply to the offence of possessing undersized crabs.111 In

Hollywood v City of Joondalup (2010) 203 A Crim R 292, the accused’s erroneous belief that his paperwork authorised the construction of a retaining wall was held to be an excuse to an offence under the Local Government (Miscellaneous Provisions Act 1960 (WA)) of building without a permit. Likewise, in Margarula v Rose (1999) 149 FLR 444, it was held that s 30 of the Northern Territory Code could apply to a charge of trespassing unlawfully on enclosed premises.112 The cases which favour a less restrictive interpretation of the expression ‘offence relating to property’ tend to suggest that in this respect the Code and the common law are aligned, contrary to the suggestion of Brennan J in Walden v Hensler.113 4.29 Unlike the other codes, the Tasmanian Criminal Code does not include a general excuse of claim of right. However, it contains several specific provisions which incorporate the concept of honest claim of right. Under the Criminal Code 1924 (Tas), a person who takes, removes or conceals anything capable of being stolen with the intent to obtain payment for work done in respect of such a thing, may escape liability based on a claim of right.114 Section 267(3) of the Code also [page 120] expressly stipulates that any act causing injury to property does not constitute a crime unless it was done without a claim of right. Moreover, the Tasmanian Code provides that it is lawful for any persons in peaceable possession of any land or structure under a claim of right to use such force as they reasonably believe is necessary to defend their possession against other persons, provided that the force used is not intended to (or likely to) cause death or grievous bodily harm.115 The Griffith Code includes similar provisions, with the major difference being that the force used must not cause grievous bodily harm (in Queensland) or bodily harm (in Western Australia).116 Consistently with the common law as expressed in R v Tinkler (1859) 1 F and F 513; 175 ER 832, the Griffith Code and Tasmanian Code include a claim of right defence that superficially applies to the offence

of child stealing.117 The exact scope of these specific defences is difficult to determine;118 however, for the most part, they should be interpreted consistently with the general excuse of honest claim of right.119 However, inconsistently with the general excuse, they reverse the onus of proof so that the accused must prove on the balance of probabilities that he or she was acting pursuant to a claim of right to possess the child.120 Finally, s 249 Criminal Code (NT) provides that a person is not criminally responsible for offences such as arson, damage to property and causing bushfires if the person believes they have a right or interest in the property which authorises them to engage in such activities.121 4.30 The model Criminal Codes also include claim of right 122 excuses. A claim of right is described as ‘arising necessarily out of the exercise of the proprietary or possessory right that [the accused] mistakenly believes to exist’. The excuse applies to negative a fault element of an offence that has a ‘physical element relating to property’.123 As it simply negatives the fault elements of property offences, the excuse has been described as superfluous as it plainly states the obvious that the Crown must prove a requisite fault element, and a reasonable doubt that the accused acted pursuant to a claim of right is inconsistent with proof of fault.124 [page 121]

Onus of proof 4.31 At common law, the distinction between the requirement of proof of any defences and a requirement that the accused merely adduce evidence of matters of exculpation had been developing throughout the 19th century. The confirmation of this distinction in Woolmington v DPP [1935] AC 462 meant the extension of the definition of larceny and related offences to include the negative element ‘without claim of right’. The result is that, where such a claim exists, the onus to establish the non-existence of the claim of right rests on the prosecution.125

Inconsistent with the general position that the Crown bears the evidential and persuasive onus with respect to the elements of an offence, statements from the High Court suggest that the evidential onus of raising claim of right is on the defence.126 If that approach were to be accepted, the Australian common law jurisdictions would be consistent with the Australian code jurisdictions.127 In respect of the claim of right provisions under the model Criminal Code, the Griffith Code and the Northern Territory code, the evidential onus falls on the accused.128 If that burden is discharged by evidence fit to be considered, whether in the defence case, or in the case for the prosecution, then the onus is on the prosecution to disprove the defence beyond a reasonable doubt.129

Reforming the law 4.32 In spite of the obvious importance of the doctrine of claim of right, particularly in relation to property offences, some uncertainty remains as to its scope of operation. Additionally, the relationship between an honest claim of right and the fault element of dishonesty offences remains at best inconsistent as between jurisdictions, and at worst elusive. The claim of right provision contained in the model Criminal Codes does little to resolve these uncertainties. One desirable reform would be the adoption of a standardised approach to dishonesty in all jurisdictions. It would also be helpful to articulate more clearly the limits of claim of right as a defence, and its relationship to the fault element in offences of dishonesty.

1. 2.

3. 4. 5.

For the historical development of claim of right, see D O’Connor and P Fairall, Criminal Defences, 3rd ed, Butterworths, Sydney, 1996, pp 72–5. R v Fuge (2001) 123 A Crim R 310 at 314 per Wood CJ; R v Sanders (1991) 57 SASR 102 at 105 per King CJ; Director of Public Prosecutions Reference (No 1 of 1999) (1999) 105 A Crim R 489 at 496 per Martin CJ; R v Sabbah [2004] NSWCCA 28 at [100] per Ipp JA. [1971] 2 All ER 441 at 443. Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580 at 589. For the opinion that claim of right does not require belief in the right to take the property and that the mere existence of a claim to the property may be sufficient, see R v Langham

6.

7. 8.

9. 10. 11. 12.

13. 14. 15. 16.

17.

18. 19. 20.

21. 22. 23. 24. 25. 26. 27. 28.

(1984) 38 SASR 48 at 51–2. R v Bernhard [1938] 2 KB 264 at 270; R v Pollard [1962] QWN 13 at 29; R v Langham (1984) 36 SASR 48 at 49 per King CJ; R v Fuge (2001) 123 A Crim R 310 at 314 per Wood J. R v Fuge (2001) 123 A Crim R 310 at 314 per Wood J. Thus it has been held that the owner of property could be guilty of stealing that property from a person who has possession or control of it: see Turner v R (No 2) [1971] 2 All ER 441. G Williams, Criminal Law: The General Part, 2nd ed, Stevens, London, 1961, p 305. Criminal Code (Cth) s 9.5(1)(a); Criminal Code (ACT) s 38(1)(a); Criminal Code (NT) s 43AZ(1)(a). [1938] 2 KB 264 at 270. See also R v Lopatta (1983) 35 SASR 101 at 107 and 119; Walden v Hensler (1987) 163 CLR 561 at 568–9, 600 and 606. In R v Harrison [1963] Crim LR 497, the defence was rejected on a charge of embezzlement where the accused believed himself morally entitled to a higher salary. See also R v Salvo [1980] VR 401; (1979) 5 A Crim R 1; Walden v Hensler (1987) 163 CLR 561 at 602; R v Fuge (2001) 123 A Crim R 310 at 314 per Wood J. [1980] VR 401 at 420. Walden v Hensler (1987) 163 CLR 561 at 608; R v Bedford (2007) 98 SASR 514 at 526. (1984) 36 SASR 48 at 64. Walden v Hensler (1987) 163 CLR 561 at 592–3; Macleod v R (2003) 214 CLR 230 at 243; R v Pollard [1962] QWN 13 at 29; W J Brookbanks, ‘Colour of Right and Offences of Dishonesty’ (1987) 11 Criminal Law Journal 153 at 164. (1987) 163 CLR 561 at 583, 593–4. As s 211 of the Native Title Act 1993 (Cth) preserves traditional rights in some circumstances, the principle articulated by their Honours must be in doubt (see Mueller v Vigilante (2007) 177 A Crim R 506). See 1.84. (1987) 163 CLR 561 at 569. (1987) 163 CLR 561 at 569, 575. (1987) 163 CLR 561 at 603 per Toohey J; see Gaudron J at 608–9. See also Director of Public Prosecutions Reference No 1 of 1999 (1999) 105 A Crim R 489 at 501 where the Supreme Court of the Northern Territory held that honest claim of right was not available as there was no evidence that the Indigenous elder believed that the law recognised his rights to act pursuant to customary law. (1987) 163 CLR 561 at 609. (2007) 98 SASR 514 at [18]–[19]. See Walden v Hensler (1987) 163 CLR 561 at 583; R v Cunliffe [2004] QCA 293. Criminal Code (Qld) s 22(2); Criminal Code (NT) s 30; Criminal Consolidation Act 1935 (SA) s 31(5); Criminal Code (WA) s 22. R v Fuge (2001) 123 A Crim R 310 at [24]. R v Pollard [1962] QWN 13 at 29; R v Kastratovic (1985) 42 SASR 59 at 65. See also Criminal Law Consolidation Act 1935 (SA) s 131(5)–(6); Crimes Act 1958 (Vic) s 73(2)(a). (1916) 16 SR (NSW) 482 at 489–90. See also Macleod v R (2003) 214 CLR 230 at 243; R v Langham (1984) 36 SASR 48 at 40 per King CJ; R v Lawrence (1996) 86 A Crim R 412 at 420; R v Fuge (2001) 123 A Crim R 310 at 314 per Wood J; R v Pollard [1962] QWN 13 at 29; Director of Public Prosecutions Reference (No 1 of 1999) (1999) 105 A Crim R 489 at 496.

29. The court approved of R v Salvo [1980] VR 401; (1979) 5 A Crim R 1. 30. Both cases were distinguished in Lenard v R (1992) 58 A Crim R 123. 31. See R v Langham (1984) 36 SASR 48; distinguished in Lenard v R (1992) 58 A Crim R 123 at 135. 32. See R v Skivington [1968] 1 QB 166; considered in Lenard v R (1992) 58 A Crim R 123 at 129. 33. See J Devereux and M Blake, Kenny Criminal Law in Queensland and Western Australia, 9th ed, LexisNexis Butterworths, Sydney, 2016, p 140; S Gray and J Blokland, Criminal Laws Northern Territory, 2nd ed, Federation Press, Annandale, p 183. The cases cited are not concerned with the excuse of honest claim of right but with the fault element of intent to defraud. In the decision of Roberts v Western Australia (2005) 29 WAR 445 at 453 and 468 the court held that an intent to defraud is not established simply by proving dishonest means as the Crown must prove that the accused did not have a claim of right to the property. 34. See R v Kastratovic (1985) 42 SASR 59; 19 A Crim R 28; Noble v Police (1994) 70 A Crim R 560; Peters v R (1998) 192 CLR 493 at 508; Roberts v Western Australia (2005) 29 WAR 445. For the contra position see Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580 at 593. 35. (2005) 29 WAR 445 at [140]; Harwood v The State of Western Australia [2016] WASCA 8 at [23] per Buss JA. 36. See E Colvin, J McKechnie and J O’Leary, Criminal Law in Queensland and Western Australia: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2015, p 290. 37. Criminal Code (Cth) s 9.5(3); Criminal Code (ACT) s 38(3); Criminal Code (NT) s 43AZ(3). 38. See, for example, Criminal Code (Cth) s 132.2; Criminal Code (ACT) s 309; Criminal Code (NT) s 211. 39. Criminal Code (Cth) s 131.1; Criminal Code (ACT) s 308; Criminal Code (NT) s 209. 40. See S Odgers, Principles of Federal Criminal Law, 2nd ed, Law Book Co, Pyrmont, Australia, 2010, pp 117–18. 41. R v Boden (1844) 174 ER 863; R v Lopatta (1983) 35 SASR 101; R v Langham (1984) 36 SASR 48; R v Bedford (2007) 98 SASR 514; R v Jeffrey and Daley (2002) 136 A Crim R 7. 42. Astor v Hayes (1988) 38 A Crim R 219 at 222 per Perry J; R v Fuge (2001) 123 A Crim R 310 at 315 per Wood J; R v Sabbah [2004] NSWCCA 28 at [107] per Ipp JA. 43. Protection for individuals assisting another or acting under another’s authority is specifically included in the Criminal Code (Tas) ss 42 and 44; Criminal Code (Qld) ss 275 and 278; and Criminal Code (WA) ss 252 and 255 44. (1991) 57 SASR 102 at 108–9; R v Jeffrey and Daley (2002) 136 A Crim R 7; R v Sabbah [2004] NSWCCA 28. See also Crimes Act 1958 (Vic) s 73(2)(a). 45. See M Barrett and J Dietrich, ‘The Knowledge Element for Accessories to Strict Liability and Limited Cognition Offences: Revisiting Tabe v The Queen’ (2014) 38 Criminal Law Journal 197 at 205–9. 46. Although the exception expressly applied to taking, keeping or using of resources, the court held that it also applied to incidental activities, including the possession of a commercial net. 47. See Mueller v Vigilante (2007) 177 A Crim R 506 at 510. 48. (2015) 252 CLR 507 at 518–21. 49. (2015) 252 CLR 507 at 526–8. 50. See R v Waine (2005) 157 A Crim R 490 at 494 where the court characterised a claim of

51. 52.

53. 54. 55. 56. 57.

58.

59. 60. 61. 62. 63. 64. 65.

66. 67.

68. 69. 70.

right consistent with Brennan and Toohey JJ’s approach in Walden v Hensler (1987) 163 CLR 561. Stevenson v Yasso (2006) 163 A Crim R 1 at 29–30 and 48. In Mason v Tritton (1994) 34 NSWLR 572 at 594 and 604 it was held that it is for the defence to prove the accused was exercising a native title right to fish. However, in Derschaw v Sutton (1996) 17 WAR 419 at 431 and 445, it was held that the defence need only raise a claim of native title rights to fish and the Crown must negative the claim. Neither decision concerned s 211 of the Native Title Act 1993 (Cth) and evidential and proof issues remain unresolved: see Andrews v Ardler & Brown (2012) 266 FLR 177 at 186 and Andrews v Ardler & Brown [2013] NSWDC 94 at [11]–[15]. Even if the offence required proof that the accused knew that the crabs were undersized or were likely to be undersized the claim of right would not have negated that fault element. For a thorough account of the history of larceny, see A Steel, ‘The Meaning of Dishonesty in Theft’ (2009) 38 Common Law World Review 103. E H East, Pleas of the Crown, 1803 ed, vol 2, Professional Books, London, 1972, p 553. (1828) 172 ER 477 at 478. J Stephen, A History of the Criminal Law of England, vol III, London, Macmillan, 1883, p 124. See also R v Bernhard [1938] 2 KB 264; [1938] 2 All ER 140; Walden v Hensler (1987) 163 CLR 561 at 571. [1953] 1 QB 660 at 666. See Steel, above n 54, at 106–8, where the author states that the uncertainty as to whether the fault element is defined exclusively by reference to claim of rights had existed for more than a century prior to the decision in Williams. (1979) 5 A Crim R 1 at 13, 32. (1979) 5 A Crim R 1 at 17; Murphy J was more circumspect at 9 and 14. See R v Brow [1981] VR 783; R v Bonollo [1981] VR 633 (1980) 2 A Crim R 431; SAJ v R (2012) 225 A Crim R 528 at 535–6. See Illich v R (1986) 162 CLR 110 at 115; R v Angus [2002] QCA 29; Criminal Code (Qld) s 391(2)(a)–(f); Criminal Code (WA) s 371(2)(a)–(f). Criminal Code (NT) s 209. [1982] QB 1053 at 1064. Corporations Act 2001 (Cth) ss 1041F(2) and 1041G(2); Defence Force Discipline Act 1982 (Cth) s 47A; Military Rehabilitation and Compensation Act 2004 (Cth) s 305(2); Australian Passport Act 2005 (Cth) s 27; Australian Participants in British Nuclear Tests (Treatment) Act 2006 (Cth) s 4(2); Future Fund Act 2006 (Cth) s 5. The definition applies only to offences prescribed in Ch 3 of the Criminal Code (ACT). The definitions set out in s 131 are restricted in their application to the offences prescribed in Pt 5 of the Criminal Consolidation Act 1935 (SA). The definition of ‘dishonestly’ in s 131(1) is not similarly restricted in its application. The definition applies to offences prescribed by the Crimes Act 1900 (NSW). R v Maher [1987] 1 Qd R 171 at 186; R v Laurie [1987] 2 Qd R 762 at 763; R v Sitek [1988] 2 Qd R 284; R v Allard [1988] 2 Qd R 269 at 270 and 276. See R v White (2002) 135 A Crim R 346 at 349–51; R v Nemec [2010] QCA 335 at [21]; Dillewaard v Queensland Police Service [2012] QDC 93 at [23]; R v Dillon; Ex parte Attorney-General (Qld) [2015] QCA 155 at [45]. In Western Australia and the Northern Territory, the question as to which test should apply is of limited relevance as most offences in those jurisdictions define fraud by reference to an intent to defraud rather than by reference to conduct that is dishonest or fraudulent.

71. (1998) 192 CLR 493 at 503–4, 552, 527. 72. (1998) 192 CLR 493 at 504–5. See also Macleod v R (2003) 214 CLR 230 at 242; Jovanovic v R [2007] TASSC 56 at [38]. 73. (1998) 192 CLR 493 at 504. 74. Peters v R (1998) 192 CLR 493 at 402. 75. (2003) 214 CLR 230 at 245; see also McHugh J at 258. 76. Macleod v R (2003) 214 CLR 230 at 246. 77. Macleod v R (2003) 214 CLR 230 at 267 per Callinan J; Roberts v Western Australia (2005) 29 WAR 445 at [167]. 78. [2004] QCA 19 at [109]–[113]; see also Gee v Deputy Commissioner Stewart [2012] QCAT 33. 79. [2015] QCA 155 at [47]–[48]. 80. Steel, above n 54, at 134; Peters v R (1998) 192 CLR 493 at 504; Macleod v R (2003) 214 CLR 230 at 242; Jovanovic v R [2007] TASSC 56 at [38]. 81. SAJ v R (2012) 225 A Crim R 528 at 546; Jovanovic v R [2007] TASSC 56 at [38]. 82. Criminal Code (NT) ss 23 and 30(2); Criminal Code (Qld) ss 22(2) and 36; Criminal Code (WA) ss 22 and 36. Note the exception that the test could apply to Northern Territory regulatory offences and to s 5 of the Regulatory Offences Act 1985 (Qld) as the Codes expressly exclude the application of the excuse of honest claim of right to those offences (see Criminal Code (NT) s 22 and Criminal Code (Qld) s 36(2)). 83. See A Steel, ‘New Fraud and Identity-Related Crimes in New South Wales’ (2010) 22 Judicial Officer’s Bulletin 17. 84. New South Wales is the only jurisdiction to retain the offence of larceny. 85. Crimes Act 1900 (NSW) s 4B. 86. The term ‘intent to defraud’ is defined by reference to the subjective intent of the accused: see Mathews v R (2001) 24 WAR 438 at [17]; Sayed v R (2012) 220 A Crim R 236 at 246–7. 87. (1991) 57 SASR 102 at 105. 88. (2005) 29 WAR 445 at [27]–[28], [140], [172]. 89. For a statutory form of a claim of right, see: Criminal Law Consolidation Act 1935 (SA) s 131(5)–(6); Crimes Act 1958 (Vic) s 73(2)(a). The Criminal Code (Tas) does not include a general claim of right exception; however, the offence of stealing requires proof of dishonesty and a claim of right would be inconsistent with such a requirement (see Jovanovic v R [2007] TASSC 56 at [37]–[42]). 90. See also the persuasive effect of cases, such as R v Salvo [1980] VR 401; (1979) 5 A Crim R 1 (concerning the Victorian version of the Theft Act 1966 (UK)), which support White J’s view in Sanders. 91. Distinguished in Lenard v R (1992) 58 A Crim R 123. 92. R v Langham (1994) 36 SASR 48 at 52–3 and 58; R v Bedford (2007) 98 SASR 514 at 516–17. Although the later decision concerned a statutory regime which expressly states that a person does not act dishonestly if they believe that they have an equitable or legal right to take such action, the court held that the statute reflected the common law. 93. (2001) 123 A Crim R 310 at 311, 321; R v Sabbah [2004] NSWCCA 28 at [103]; Williams v R (2006) 160 A Crim R 151 at 158–9. 94. (2001) 123 A Crim R 310 at 311. 95. (2001) 123 A Crim R 310 at 321. 96. (1985) 19 A Crim R 28 at 49; Watson v Paterson [2016] WASC 357; Jeyavel

97. 98. 99.

100. 101.

102. 103. 104.

105. 106. 107. 108. 109. 110. 111. 112.

113. 114. 115. 116. 117. 118.

Thangavelautham v R [2016] NSWCCA 141; Liristis v DPP (NSW) [2016] NSWCA 66; R v Kelly [2014] ACTSC 28; R v Leoni [1999] NSWCCA 14. See R v Skivington [1968] 1 QB 166; [1967] 1 All ER 483; R v Langham (1994) 36 SASR 48 at 53; R v Jeffrey and Daley (2002) 136 A Crim R 7. Walden v Hensler (1987) 163 CLR 561 at 591. (2012) 225 A Crim R 130 at 140–1. Section 80(2) of the Criminal Law Consolidation Act 1935 (SA) prescribes a statutory form of claim of right that exclusively applies to the offence of abducting a child. However, on the facts before the court, the father’s conviction was upheld as he had been the subject of a restraining order and therefore it was established beyond reasonable doubt that he did not have a bona fide claim of right to take his children. (2006) 160 A Crim R 151 at [40]. See further R O’Regan, ‘Honest Claim of Right and Criminal Responsibility under the Queensland Code’ (1978) 10 University of Queensland Law Journal 254; J Herlihy, ‘Ignorance of Law: Claim of Right under the Criminal Codes of Queensland, Western Australia and the Northern Territory’ (1990) 9 Queensland Lawyer 31; W J Brookbanks, ‘Colour of Right and Offences of Dishonesty’ (1987) 11 Criminal Law Journal 153; and A Hemming, ‘The Time Has Come to Tighten the Reach of Honest Claim of Right in Australian Criminal Codes’ (2008–09) 11 Newcastle Law Review 167. Criminal Code (Qld) s 22; Criminal Code (WA) s 22; Criminal Code (NT) s 30. See Walden v Hensler (1987) 163 CLR 561 at 572–3 per Brennan J. The Griffith Code gives expression to the excuse in the following terms: ‘a person is not criminally responsible … for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud’. Section 30 of the Criminal Code (NT) is in similar terms, with the excuse only applying to offences in ‘respect to, or for an event caused to, property’. (1987) 163 CLR 561 at 573. Roberts v Western Australia (2005) 29 WAR 445; R v Dale [2012] QCA 303 at [35]–[41]. (1987) 163 CLR 561 at 574. See also Olsen v Grain Sorghum Marketing Board [1962] Qd R 580; Pearce v Paskov [1968] WAR 66; Walsh [1984] 2 Qd R 407; 14 A Crim R 431. (1987) 163 CLR 561 at 583. (1987) 163 CLR 561 at 580, 598–9, 605–6. See, for example, Stevenson v Yasso (2006) 163 A Crim R 1 at 30–32 per McPherson JA. See also R v Waine (2005) 157 A Crim R 490 at 494; Roberts v Western Australia (2005) 29 WAR 445 at 468; Stevenson v Yasso (2006) 163 A Crim R 1 at 18–21. See also Davis v Spadaccini [2008] NTMC 15, where the excuse was successful in circumstances where the accused was prosecuted with unlawful damage to property for having trimmed trees belonging to Darwin City Council. (1987) 163 CLR 561 at 573. Criminal Code (Tas) s 253. Criminal Code (Tas) s 42. See also s 44, which provides a similar excuse with respect to movable property. See Criminal Code (Qld) ss 275 and 278; Criminal Code (WA) ss 252 and 255. See Criminal Code (Tas) s 191(3); Criminal Code (Qld) s 363(2); Criminal Code (WA) s 343. A literal reading of the defences would mean that, in the case of an illegitimate child, the mother or a person who believes that he is the father need only assert their status in order

119. 120.

121. 122. 123. 124. 125. 126. 127.

128. 129.

to raise the defence whereas, in the case of a legitimate child, the mother or father must prove that they had a claim of right to the child. Such a distinction would seem extremely unusual and perhaps the better interpretation is that the offence of child stealing was not anticipated as having any application to parents of a legitimate child. See R v Campbell [2009] QDC 61 at [8]. This is more problematic in Tasmania where the Code does not include a general excuse of honest claim of right. R v Campbell [2009] QDC 61 at [7] and [17]. Note that the Queensland Criminal Code (s 363A) includes an offence of child abduction which is similar in scope to the offence of child stealing but does not include a defence of claim of right. With the exception of the offence of sabotage, s 249 applies to all Pt 7 Div 6 offences. Criminal Code (Cth) s 9.5; Criminal Code (ACT) s 38; Criminal Code (NT) s 43AZ. Criminal Code (Cth) s 9.5(2); Criminal Code (ACT) s 38(2); Criminal Code (NT) s 43AZ(2). See Odgers, above n 40, pp 114–19; Green v Chief of Army (2011) 252 FRL 130 at 134–5. R v Lopatta (1983) 35 SASR 101 at 108; Williams v R [1988] 1 Qd R 289 at 302–3; R v Fuge (2001) 123 A Crim R 310 at 315. See Peters v R (1998) 192 CLR 493 at 509; Macleod v R (2003) 214 CLR 230 at 243. It would also be consistent with the English Court of Appeal decision of R v Roberts (1987) 84 Cr App R 117, where it was held that it is unnecessary to instruct a jury on the second limb of the Ghosh test unless the defence raises evidence that the accused did not know that his or her conduct was dishonest according to community standards. Criminal Code (Cth) s 13.3(2) and (6); Criminal Code (ACT) s 58 (3) and (7); Criminal Code (NT) s 43BU(2). Criminal Code (Cth) s 13.3(4); Criminal Code (ACT) s 58(5); Criminal Code (NT) s 43BU(4).

[page 123]

5 Consent Introduction 5.1 The well-known torts maxim, ‘no injury is done to him who consents’ (volenti non fit injuria) has a limited application in the criminal law. Generally speaking, consent of the victim is not a defence, on the principle that the victim cannot license the commission of a crime.1 If consent were a defence to murder, then voluntary euthanasia, for example, would be lawful.2 There are, however, countless activities that, being unlawful in the absence of consent, are quite lawful when performed consensually. Thus, absence of consent transforms surgery into unlawful wounding,3 a handshake into assault, lawful intercourse into rape, borrowing a library book into stealing or larceny, and taking a profit into a secret commission. Whether an activity is proscribed absolutely (whether or not the victim consents) or only in the absence of consent is, therefore, a matter of some importance. 5.2 Criminal offences may be classified into three categories according to the relevance of consent:4 (1) cases where consent is a defence and non-consent is part of the actus reus/ physical element (common assault, indecent assault, rape, larceny, and various statutory offences);5 (2) offences where consent may operate as an independent matter of justification or excuse, non-consent not being a constituent element (some forms of assault, criminal damage,6 stealing,7 and theft8);

and [page 124] (3) crimes where consent is never a defence (such as incest, gross indecency with a minor, female genital mutilation, and slavery).9 5.3 In the second category, policy factors may be crucial in determining whether consent is available as a defence. Some activities of dubious social value, such as prize-fighting, street fighting, sadomasochism (both sexual and nonsexual), and body adornment, will often involve issues about consent. There is often a tension between the public interest in maintaining moral, health and safety standards, and the private interest in privacy and freedom of expression. In other cases, statutory provisions determine the availability of consent. 5.4 The above classification of consent is only the first step, as it is also necessary to determine the conditions that validate consent. This includes consideration of the capacity and knowledge of the person alleged to have consented and the conduct and belief of an accused who alleges that the relevant activity was consensual.

Belief in consent 5.5 At common law, the doctrine of mens rea implies a state of advertence (belief or foresight) with respect to each element of the actus reus. The application of this rule to category 1 offences implies that the prosecution must prove either that the accused believed that consent was lacking or the accused was reckless in the sense that he or she was aware that the consent might be lacking.10 In the case of rape, recklessness may also be established by proof that the accused was indifferent to the victim’s consent. However, there has been considerable statutory intervention which has substantially changed the mental element of some offences. This is particularly evident when it comes to the offence of rape (see 5.58–5.61).

5.6 The theory of implied mental states does not operate under the Criminal Codes. The Codes contain specific exemptions from criminal responsibility and there is no mandate for implying a state of advertence with respect to the issue of consent.11 If a particular mental state (such as a belief that the victim was not consenting) is not specified in the offence-creating provision, it is not subject to proof by the prosecution.12 If, however, some exemption from criminal responsibility (such as reasonable mistake of fact) is raised by way of an excuse, the burden of negating it beyond reasonable doubt falls to the prosecution.

Mistaken belief as to consent 5.7 At common law, the type of offence determines the relevance of a mistaken belief by the accused regarding consent. If, for example, nonconsent is an element of the actus reus, as in category 1 offences, then the mens rea of the offence would [page 125] require proof that the accused knew that the other party was not consenting, or might not be consenting. The existence of a reasonably or unreasonably held belief is inconsistent with the mental element that must be proven.13 A person cannot be convicted of a crime requiring proof of a particular state of mind if that state of mind is missing. The fact that an accused can rely on an unreasonably held belief has been criticised as favouring unmeritorious acquittals, especially in the context of rape. Consequently, each of the common law states have statutorily defined the fault element of rape so that an accused will not escape criminal responsibility based on an unreasonably held belief (see 5.50–5.61). 5.8 If the offence is a category 2 offence, then a mistaken belief as to consent may still be relevant, but under the distinct principle of Proudman v Dayman (1941) 67 CLR 536 (see 2.5).

5.9 Under the Codes, if the offence provision specifies that the accused must have been aware of the absence of consent, then a mistaken belief, whether reasonable or not, will excuse.14 However, if the offence provision contains a physical element of absence of consent but no expressed mental element, then an accused may rely on the excuse of reasonable mistake of fact under s 24 of the Griffith Code (see Chapter 2).15

Assault and other offences against the person Assault in the Codes 5.10 Absence of consent is an element of the definition of assault under the Griffith and Northern Territory Codes.16 On a charge of any offence that includes assault as an element, non-consent must be proved.17 In Western Australia, absence of consent also controversially applies to the homicide offence of unlawful assault causing death.18 The accused’s belief as to consent is not an express element of the crime of assault.19 Were it so, it could be argued that a mistaken belief would excuse, whether the belief was reasonable or not. If D mistakenly believes that V is consenting to the application of force or to the degree of force, the excuse of mistake of fact arises.20 [page 126] 5.11 Absence of consent is not an expressed element of the more serious non-fatal offences such as unlawfully causing grievous bodily harm or unlawful wounding. As the Griffith Code does not include a consent-based excuse, the traditional view is that V’s consent to harm or the risk of harm is irrelevant when D causes serious harm.21 A person who causes such injuries in a sporting context, during consensual sado-masochistic activities, as part of a religious ceremony, during consensual sexual activity or in the process of consensual body adorning can be convicted of the offence.

5.12 Whether the traditional position is strictly adhered to will depend on the meaning ascribed to the term ‘unlawful’, which qualifies the offences of wounding and grievous bodily harm.22 The term is defined in some parts of the Code; however, it is not defined in the context of the serious non-fatal offences against the person. Whether ‘unlawful’ means without excuse or contrary to some positive law was central to the Western Australian Court of Criminal Appeal decision in Houghton v R (2004) 144 A Crim R 343. In this case, the appellant was convicted of causing his partner grievous bodily harm by infecting her with HIV. Houghton confessed that he had not informed her of his HIV status. He claimed to have avoided ejaculating inside her, as he believed that such a practice would protect her from contracting the disease. However, the complainant gave evidence that on one occasion the appellant anally penetrated her and ejaculated inside of her. Murray J, in dissent, adopted the traditional position that the word ‘unlawful’ means without excuse, and in the absence of a consent excuse the conviction should be upheld.23 His Honour acknowledged that, consistent with his decision, serious injury caused incidentally to a participant in a sporting context could result in a grievous bodily harm conviction as none of the Code excuses are likely to apply in such circumstances.24 Steytler and Wheeler JJ, who allowed the appeal, held that the term unlawful means that the act causing grievous bodily harm must be contrary to some positive law.25 On the facts, a jury could find that the accused’s conduct was prohibited as it breached the statutory duty to take care in the use and management of a dangerous thing (s 266 of the Code). Their Honours decision is supported by R v Mwai [1995] 3 NZLR 149, where the New Zealand Court of Appeal applied a similar duty provision in circumstances where the appellant infected his sexual partners with HIV. The New Zealand Court acknowledged that it was ‘arguable’ that a duty would not arise in circumstances where the sexual partner consents to the risk of contracting the disease.26 Although the majority in Houghton did not specifically endorse Mwai’s consent argument, it seems clear from the majority’s approach that consent, or

[page 127] absence of consent, would almost certainly determine criminal responsibility. In circumstances where a partner consents to the risk of contracting a disease it is unlikely that a duty of care will arise. If a duty of care does arise, there is unlikely to be a breach of duty, where the partner consents to the risk of contracting a disease. This approach to consent is consistent with the policy considerations that underpin the majority’s decision in Houghton. Individuals, regardless of the circumstances, should not necessarily be convicted for transmitting a disease to another. A person who has a sexually transmittable disease should not face the risk of serious criminal sanctions if his or her partner is willing to take the risk of contracting the disease in order to conceive a child or simply as a consequence of their connubial relationship.27 5.13 In the Queensland Court of Appeal decision of R v Reid (2006) 162 A Crim R 377, McPherson J expressed the view that the term ‘unlawful’ could be interpreted to mean that the act causing grievous bodily harm must be independently unlawful. However, his Honour did not agree that the negligent provision could apply in such situations to render the conduct unlawful. The relevant duty provision (Criminal Code 1899 (Qld) s 289) speaks of a dangerous thing being such that a ‘failure to take care or precaution in its use or management’ would be likely to endanger the life, health or safety of others. McPherson J stated that it would be straining the words of s 289 to suggest that a person has use or management over his own seminal fluid. Instead, his Honour suggested that in situations similar to Houghton the accused’s actions could be unlawful if they came within the terms of the offence of fraud.28 If fraud were relied on, then V’s consent would be central as fraud’s fault element of dishonesty could not be established if V consented to the serious injury or the risk of serious injury. 5.14 Non-consent is not a constituent element of assault as defined under the Criminal Code 1924 (Tas). However, except in cases where it is established that consent cannot be given or shall not be a defence, an

assault is not unlawful if it is committed with the consent of the person assaulted. A further exception to the general rule that consent excuses is that it does not excuse where the act is otherwise unlawful, and the injury is of such a nature or is done under such circumstances that make it injurious to the public (as well as to the person assaulted) and it involves a breach of the peace.29 [page 128]

Assault at common law 5.15 At common law, consent is sometimes perceived as a defence to a charge of common assault.30 Properly considered, consent is an element that prevents an act that would otherwise be an assault constituting an assault in the criminal sense. In other words, nonconsent is a constituent element of assault.31 However, this statement requires qualification. While there may be circumstances in which the idea of consent is properly related to the elements of assault stricto sensu, in most cases the question of consent relates to the element of battery which, in modern terminology, is generally included within the term ‘assault’.32 Whether consent to the battery is a relevant consideration will depend upon the level of violence contemplated by the accused and the nature of the offence charged (see 5.24–5.32). Some statutorily-defined aggravated forms of assault exclude or limit consent as a defence.33 Further, at common law a distinction is drawn between battery malum in se and battery which may be negatived by consent.34 This distinction has been drawn in respect of unlawful prize-fighting in the English case of R v Coney (1882) 8 QBD 534; and in respect of flagellation for sexual purposes in R v Donovan [1934] 2 KB 498. Before turning to these matters, it is appropriate to consider the mens rea of assault. 5.16 At common law, non-consent is an element of the actus reus of assault, and therefore it is necessary as part of the mens rea of assault that it be proved that the accused knew of, or was reckless as to the

existence of, non-consent. If the accused believes the other person is consenting, whether that belief is mistaken or not, the belief is inconsistent with the requirement that he or she knows that the victim is not consenting. For example, in Parish v DPP (2007) 179 A Crim R 304, the appellant, who had been diagnosed with Asperger Syndrome, was charged with two counts of indecent assault and two counts of common assault. While on a train he made contact with the complainant’s leg which included placing his hand on her knee. Later, at a train station, he touched her hand and then rubbed her lower back and upper buttocks. The indecent assault charges were dismissed due to lack of evidence of a sexual purpose and because the magistrate could not be certain that the accused knew that the complainant was not, or might not be, consenting. [page 129] The appellant was convicted of two counts of assault, as the magistrate ruled that the mental element that applied to indecent assault did not apply to common assault. On appeal, Robinson J ruled that as indecent assault is simply a common assault with circumstances of indecency, the offences must have the same mental element.35 As the appellant had less capacity than the average person to interpret his social setting, and had difficulty picking up non-verbal cues, the Crown had difficulty in establishing that he was aware the complaint was not, or might not be, consenting.

Absence of consent: proof, capacity, duress and fraud 5.17 The absence of consent is a question of fact. It is determined by reference to the complainant’s evidence and from all the circumstances. Absence of consent can be established by proof that there was no consent or by proof that there was no consent to the degree or nature of the force applied.36 It can also be established by proof that the complainant did not have the capacity to consent or by proof that it

was obtained by duress or fraud. Tasmania is the only jurisdiction where the issue of capacity is statutorily addressed. However, in all jurisdictions the Crown can establish absence of consent by proof that the complainant was asleep, was unconscious or because the complainant did not understand the nature of the act due to his or her state of intoxication or lack of maturity, or because of an intellectual impairment or malfunction.37 5.18 Although the principle is of general application, only the Tasmanian and Northern Territory Codes state that duress negatives consent.38 Duress need only be sufficient to deprive the complainant of his or her capacity to resist.39 It is unnecessary to consider whether a reasonable, or even ordinary, person would have succumbed in the circumstances. The excuse of reasonable mistake of fact and the fault element of some offences (see 5.45) militate against any injustice that would otherwise be caused where, unbeknown to the accused, the complainant’s will is easily overborne. 5.19 Consent is also vitiated if it is obtained by fraud.40 In the context of non-fatal offences against the person, the term ‘fraud’ probably has the same meaning [page 130] as the common law definition that applies to rape. In Papadimitropoulos v R (1957) 98 CLR 249, the High Court stated that consent to sexual intercourse is vitiated where fraud results in a mistaken belief about the nature or character of the act or a mistake as to the identity of the person.41

Consent: express or implied 5.20 In all jurisdictions, consent can be express or implied.42 It is artificial to refer to individuals as impliedly consenting to the physical contact that incurs in the course of everyday life. Therefore, the English

courts have abandoned the concept in favour of an exception to the rule that every application of force is an assault. Physical contact is ‘generally acceptable in the ordinary conduct of daily life’ and, therefore, it is not an assault.43 South Australia, Tasmania and the Northern Territory adopt the same approach.44 In the other jurisdictions, the courts continue to rely on the concept of implied consent.45 Accordingly, individuals impliedly consent to the jostling that occurs near or on public transport, in a supermarket or on a busy street.46 Consent may also be implied to the application of force at a party, between friends, and between family members.47 Factors that commonly determine whether consent is implied include: • the circumstances that precede the application of force;48 • the relationship between the complainant and the accused;49 and • the degree of force applied.50

Informed consent 5.21 Generally, if a person understands the scope of an activity and consents to it, they are taken to have consented to the consequences of the activity.51 However, recent common law decisions consider whether consent is absent where there is [page 131] an information imbalance between D and V as to the possible consequences of the activity. Most cases concern the transmission of HIV. However, the legal principle also applies to other sexuallytransmittable diseases such as chlamydia, gonorrhoea, anal or genital herpes and syphilis, and possibly to other contagious diseases such as hepatitis, Ebola and smallpox.52 R v Dica [2004] EWCA Crim 1103 held that D will not be criminally responsible for transmitting HIV if V consented to the risk of contracting the disease and D was merely reckless as to the transmission of the disease.53 However, V’s consent will not exculpate if D intended to transmit the disease. R v Konzani

[2005] EWCA Crim 706 clarified what it means to consent to the risk of contracting HIV: an individual consents to the risk if he or she makes an informed decision to run that risk. V does not consent to the risk of a serious disease if he or she merely understands that unprotected sexual intercourse is risky. Consent, in most cases, will only be informed if D communicates his or her disease status to V. The court in Konzani stated:54 There is a critical distinction between taking a risk of the various, potentially adverse and possibly problematic consequences of sexual intercourse, and giving an informed consent to the risk of infection with a fatal disease. For the complainant’s consent to the risks of contracting the HIV virus to provide a defence, it is at least implicit from the reasoning in R v Dica … that her consent must be an informed consent. If that proposition is in doubt, we take this opportunity to emphasise it.

And that:55 If an individual who knows that he is suffering from the HIV virus conceals this stark fact from his sexual partner, the principle of her personal autonomy is not enhanced if he is exculpated when he recklessly transmits the HIV virus to her through consensual sexual intercourse. On any view, the concealment of this fact from her almost inevitably means that she is deceived. Her consent is not properly informed … Silence in these circumstances is incongruous with honesty, or with a genuine belief that there is an informed consent. Accordingly, in such circumstances the issue either of informed consent or honest belief in it will only rarely arise: in reality, in most cases, the contention would be wholly artificial.

Two situations are identified where consent may be informed even though D fails to disclose his or her disease status: (1) if a third person told V about D’s HIV status; or (2) where V, prior to sexual relations, became aware that D was receiving medical treatment for HIV. In such situations, even if consent is deemed not to be informed, D could rely on his or her honest belief in informed consent.56 5.22 In Neal v R (2011) 213 A Crim R 190, the Victorian Court of Appeal considered whether consent to the risk of HIV must be informed. The appellant, who was HIV-positive, had unprotected sexual intercourse with numerous individuals. He was convicted of multiple offences, including reckless conduct [page 132]

endangering others. His appeal was upheld on several grounds, including that the trial judge misdirected the jury as to the relevance of consent to the offence of reckless conduct endangering others.57 The trial judge applied the general rule that V cannot lawfully consent to the infliction of significant physical injury (see 5.31).58 The Court of Appeal rejected the application of the general rule in the circumstances. It found that ‘different considerations apply where the question is whether consent to the risk of infection with HIV is a defence to a charge’.59 The court followed the English decisions and held that a person’s informed consent to the risk of HIV was a defence to a charge of reckless endangerment.60 The court also agreed with Dica that informed consent was not a defence where an accused intentionally transmitted the disease. In R v Lee [2006] 3 NZLR 24, the New Zealand Court of Appeal justified the need for informed consent, in limited circumstances, in the following terms:61 Where … there is a known information imbalance about the risks involved between those giving and seeking consent, it does not seem unreasonable to require the person seeking consent to correct that imbalance. This requirement may, however, be limited to cases where the risk is major because of the very serious consequences if it does eventuate (such as with unprotected sex and HIV).

5.23 There are, however, public policy arguments against imposing a disclosure obligation on individuals with a serious disease. It stigmatises those who engage in certain activities with a ‘high risk’ of disease. It is also difficult to justify why someone should disclose his or her disease status in circumstances where the risk of transmission is low but the possible consequences are serious, but not where the risk of transmission is high but the consequences are less serious. It also creates uncertainty as advances in treatment will invariably result in ongoing disputes as to the risk profile of a disease. Finally, it could encourage a culture of ignorance whereby individuals seek to avoid disclosure requirements. The imposition of a ‘positive information obligation’ does not sit easily with the High Court’s decision in Reeves v R (2013) 304 ALR 251 (see 5.79).62

The concept of ‘public interest’

5.24 An individual’s right to freedom of choice means his or her consent transforms what would otherwise be unlawful conduct into ‘accepted and therefore acceptable conduct’.63 However, public interest considerations, such as the need to prevent unnecessary injury which potentially places an impost on the health system, the prevention of conduct that could give rise to a breach of the peace, and the need to discourage the cult of violence mean that there are limits on an individual’s right to consent to violence. In R v Brown [1994] 1 AC 212, the House of Lords explored the public interest dimension in detail. The appellants [page 133] were willing participants in private sado-masochistic activities involving ‘genital torture and violence to the buttocks, anus, penis, testicles and nipples’.64 They were convicted on various counts, including assault occasioning actual bodily harm and unlawful wounding. Their appeal against conviction was dismissed. The court held by a majority of 3:2 (Lords Mustill and Slynn dissenting) that consent was not a defence to either offence. Lord Templeman stated:65 The violence of sadomasochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sadomasochistic encounters which breed and glorify cruelty and result in offences … Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.

Lord Lowry agreed, saying:66 [B]oth those who will inflict and those who will suffer the injury wish to satisfy a perverted and depraved sexual desire. Sado-masochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society.

Having recognised that the right to consent is limited, the courts have struggled with the question of delimitation. One approach is to give primacy to the general rule that individuals are free to consent to any degree of harm but impose specific public policy-driven exceptions. On

this basis, there are only limited circumstances when an individual’s consent will not render the application of force as innocent conduct. This approach is adopted by the New Zealand courts and was favoured by Lord Mustill, in dissent, in Brown (see 5.30). The alternate approach is to set a limit to the degree of harm that can be consented to, while recognising exceptions for activities that have social utility. Where the activity is an exception, an individual’s consent will render the conduct lawful even though the resulting harm exceeds the proscribed limit. This approach has been adopted by the English courts and favoured by the Australian courts. The difficulty with the latter approach is determining the appropriate level of harm above which consent does not excuse. Wherever the line is drawn, there will be activities of social value that can result in harm exceeding that which can generally be consented to. In the absence of exceptions, an individual’s consent to such activities would not exculpate. Surgery and medical treatment are obvious examples of activities of social value that are known to cause serious harm and even death.67 Uncertainty [page 134] as to the level of harm that can be consented to has correspondingly resulted in uncertainty as to the activities that come within the general rule and those that are exceptions.68

The delimitation of lawful consent English position 5.25 English courts and commentators distinguish between what can and cannot be consented to by reference to the result of the application of force;69 the likely or probable consequences of the application of force;70 the intended level of force;71 or a combination of these factors.72 For example, Stephen limited the relevance of consent by reference to the result, stating that ‘everyone has a right to consent to

the infliction upon himself of bodily harm not amounting to a maim’.73 The Court of Criminal Appeal in R v Donovan [1934] 2 KB 498 restricted the relevance of consent by adopting an objective test. In Donovan the appellant had entered into an arrangement with a young prostitute whereby she allowed him to beat her. On appeal, Swift J said:74 … it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial.

5.26 In Attorney-General’s Reference (No 6 of 1980) [1981] QB 715, the same court restricted the relevance of consent by adopting a combined result and intent test. The 18-year-old respondent and a youth of 17 years of age engaged in a fist-fight in a public street. The youth sustained a bleeding nose and bruises and the respondent was charged with assault. At trial, the jury was directed that an agreement to fight would be a sufficient basis for an acquittal, provided that only reasonable force was used. The respondent was acquitted. The case was referred to the Court of Appeal, where Lord Lane CJ said (emphasis added):75 [I]t is not in the public interest that people should try to cause or should cause each other bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent.

[page 135] The inclusion of a results-based component has been criticised as being overly restrictive.76 In circumstances where an accused caused bodily harm, he or she can be convicted even though the force was consented to and the accused intended to use only such force as would amount to a battery. 5.27 In R v Brown [1994] 1 AC 212 (see also 5.24), the House of Lords held that consent will always prevent a conviction for a common assault even in circumstances where the accused intended to inflict

significant harm.77 However, there was a divergence when it came to identify when consent is irrelevant to criminal responsibility. Based on the facts, the majority ruled that the victims’ consent to the sadomasochistic activities was irrelevant to the offences of assault occasioning bodily harm and unlawful wounding. Their Lordships approved the Court of Appeal’s statements in Attorney-General’s Reference (No 6 of 1980) and in so doing endorsed a result-based approach. As bodily harm and wounding occurred, the convictions could not be overturned simply because the participants consented to the harm.78 However, two of the majority also made statements consistent with an intent-based focus. Lord Templeman said:79 In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims … I am not prepared to invent a defence of consent for sado-masochistic encounters …

Lord Jauncey of Tullichettle concluded:80 My Lords I have no doubt that it would not be in the public interest that deliberate infliction of actual bodily harm during the course of homosexual sado-masochistic activities should be held to be lawful.

Lord Slynn, in dissent, also took the view that it is necessary to demarcate between harm that can and cannot be consented to. According to Lord Slynn, a workable solution is to distinguish between force that results in less serious harm, such as bodily harm and wounding, and force that results in grievous bodily harm and death, to which consent is irrelevant.81 Lord Mustill, in dissent, proceeded on the basis that the State should minimalise its interference with an individual’s right to live as he or she chooses. Where interference occurs, the State must strike a balance between the rights and interests of the individual and society’s interests in restricting an individual’s right to choose how to live. As the Offences against the Person Act 1861(UK) makes no reference to the limits of consent, it is [page 136]

necessary to determine whether there are good reasons for an interpretation that renders consent irrelevant.82 According to his Lordship, the potential for serious harm resulting from the sadomasochistic activities was over-stated. There was no compelling reason why the activities should be classed together with duelling and prizefighting, which fall into a special category of activities that are criminal notwithstanding that the participants’ consent to the risks.83 5.28 Brown failed to provide clarity;84 however, subsequent decisions rejected the result-centred approach in favour of an intent-based approach. In R v Dica [2004] EWCA Crim 1103, the trial judge followed the majority in Brown and ruled that the women’s alleged consent to the risk of contracting HIV was irrelevant.85 The Court of Appeal observed that sexual intercourse involved a risk that the participants will have an adverse health outcome as a result of the encounter. It could involve contracting a highly contagious disease or a sexually transmitted disease or lead to a pregnancy, possibly with associated medical complications. In the absence of clear statutory intervention to the contrary, participants should not be punished for engaging in sexual intercourse in circumstances where the other participant is harmed but willingly accepted the risk of such harm. If a person is prepared to run the risk of harm, a partner is not criminally responsible for any harm that results, even if the partner knew of the person’s susceptibility to serious harm. However, a person’s consent will not relieve the partner of criminal responsibility in circumstances where the partner deliberately or intentionally inflicts bodily harm.86 The court judgment is not limited to sexual intercourse.87 Therefore, the law as it is currently applied in England is that a person’s consent to harm is irrelevant in circumstances where the accused intended to cause actual bodily harm to that person.88 However, uncertainty remains as to whether consent is also irrelevant where the accused recklessly inflicts bodily harm. According to R v Dica, proof that bodily harm was recklessly inflicted does not render consent irrelevant.89 5.29 The rule that the accused’s intention to inflict bodily harm renders consent irrelevant is subject to exceptions. It does not apply in circumstances where bodily harm fails to eventuate and the accused is

charged with common assault.90 Furthermore, it does not apply where the activity that results in bodily harm has social value (see 5.33–5.41). [page 137]

The New Zealand position 5.30 The New Zealand courts have followed Lord Mustill’s approach in Brown. In R v Lee [2006] 3 NSLR 42, a young woman died as a result of a type of exorcism known as a deliverance. The Crown’s case was that death resulted from manual strangulation which occurred at the hands of Mr Lee as he sat on the victim and applied pressure to her neck in an effort to rid her of her demons. The trial judge directed the jury that if it accepted that death was caused by manual strangulation, the woman’s possible consent to the force was irrelevant. The Court of Appeal rejected the trial judge’s result-based approach and instead held that a person can lawfully consent to the intentional infliction of any degree of harm other than death.91 As the victim had not consented to her own death but to the application of force that resulted in death, the manslaughter conviction was set aside. The court went on to state that where public policy considerations outweigh an individual’s right to personal autonomy, the relevant activity will be an exception to the general rule, and for the purposes of criminal responsibility the victim’s consent will be irrelevant. The list of public policy-driven exceptions is limited but includes fighting other than ‘sparring matches or play-fights and organised matches’, duelling and other ‘particularly dangerous activities’.92 Although the list of exceptions is not closed, the Court of Appeal expressed a reluctance to expand the list.93 The court stated:94 A high value should be placed on personal autonomy. Any constraints on human activity must be justified …

In Barker v R [2009] 1 NZLR 235, the majority refused to find an exception in circumstances where the accused, a 50-year-old man, used a scalpel to cut a dragon symbol into a 15-year-old girl’s shoulder blade and cut the breast of a 17-year-old girl to create a ‘blood angel’.

Although there were sexual overtones to the activities, the majority held that the girls’ consent was a defence and the convictions were set aside.

The Australian position 5.31 The common law’s limits on the exculpatory capacity of consent apply in New South Wales, Victoria, the Australian Capital Territory and Tasmania.95 To date, the issue has received limited judicial consideration and when it has been considered it [page 138] has usually been unnecessary to reach a conclusion.96 Although the Australian courts support limiting the relevance of consent there is a lack of consistency in how to distinguish conduct that can and conduct that cannot be consented to. In Parish v DPP (2007) 179 A Crim R 304, Robson J of the Supreme Court of Victoria endorsed a result-based approach. His Honour stated that consent is irrelevant if actual bodily harm is inflicted.97 In Davis v Chief of Army (2011) 205 A Crim R 521, the Defence Force Discipline Appeal Tribunal stated that consent is irrelevant if the accused caused bodily harm or intended to cause bodily harm.98 In R v McIntosh [1999] VSC 358, the victim died as a result of strangulation in the context of erotic asphyxia and bondage. Vincent J stated that the consent of the victim was irrelevant where the accused intended or was reckless as to the infliction of ‘significant physical harm’.99 In R v Stein (2007) 179 A Crim R 360, the victim died during sado-masochistic activities involving the appellant placing a gag over the victim’s mouth. The Victorian Court of Appeal endorsed an objective approach: that consent is irrelevant if the victim is exposed to a foreseeable risk of serious physical injury.100 The Tasmanian Supreme Court in R v Holmes [1993] TASSC 5 also included an objective component. Wright J held that if the blows struck by the accused were intended or were likely to cause bodily harm, the complainant’s consent to the force was irrelevant.101 Finally, in Neal v R (2011) 213 A Crim R

190, the Victorian Court of Appeal reviewed the authorities and expressed a preference for Lord Slynn’s judgment in R v Brown. The court favoured recognising an individual’s right to consent to harm that amounts to less than grievous bodily harm.102 Although there is inconsistency in the courts’ approach, it is clearly accepted that the consensual application of harm less than bodily harm is not culpable.103

South Australia 5.32 The South Australian offences of assault, assault causing harm, and aggravated assault are defined as conduct that occurs without the complainant’s consent.104 Unlike other jurisdictions, the Criminal Law Consolidation Act 1935 (SA) also affirms the relevance of consent to more serious offences where harm or serious harm is intentionally or recklessly inflicted. Section 22 states that a person, or the parent or guardian of a person, may consent to harm, including serious harm, provided it is inflicted for a purpose that is generally accepted by the community.105 The section provides a non-exhaustive list of acceptable activities that can be intentionally or [page 139] recklessly inflicted even where serious harm results. Activities identified are those for: a religious purpose (including male circumcision but excluding female genital mutilation); a genuine therapeutic purpose; the control of fertility; and sporting or recreational purposes. The section would seem to operate as a defence so that the accused must raise consent and the Crown must either prove that the person did not consent or that the harm inflicted was not within the limits generally accepted by the community. Whether an activity falls within the limits of what is acceptable according to community standards is a question of fact.106

Exceptions

5.33 There are socially acceptable and/or desirable activities that involve the infliction or risk of infliction of harm that exceeds the general legal limits on consent. To accommodate these activities the courts recognise certain exceptions to the general rule. In some circumstances, the exceptions apply even where death results.107 The exceptions include activities such as surgery, violent sports, ritual circumcision, body modification, rough horseplay, religious mortification, certain sexual activities, and possibly also injuries inflicted for the purpose of entertainment.108 Three of these exceptions are addressed in greater detail below.

Surgery 5.34 As with other forms of physical interference of another, it is an offence to perform surgery without consent. Unlike other forms of medical treatment (for consent to medical treatment more generally, see 5.78–5.82), surgery will usually involve a wounding and in some cases the infliction of grievous bodily harm or serious harm. If the common law recognises an individual’s right to consent to harm less than grievous bodily harm, then most surgeries come within the scope of the general rule. However, surgery that causes serious injury is not unlawful if performed with the consent of the patient. Sir James Fitzjames Stephen wrote:109 Everyone has a right to consent to the infliction of any bodily injury in the nature of a surgical operation upon himself … but such consent does not discharge the person performing the operation from the duties hereinafter defined in relation thereto.

The footnote to that statement says: I know of no authority for these propositions, but I apprehend they require none. The existence of surgery as a profession assumes their truth.

5.35 With the development of some modern forms of cosmetic and sexual surgery, questions arise as to whether a person may consent to these forms of surgery. Such surgical procedures include sterilisation as a form of birth control,110 gender reassignment surgery, some plastic surgery, circumcision, and

[page 140] the removal of organs for transplantation. The position seems settled that there is no justification for the intervention of the criminal law in circumstances where consent is given by a party who has the capacity to consent.111 Prosecutions in respect of these kinds of surgery are only likely in cases where the apparent consent was not real by reason of fraud or some other element of a kind that would vitiate consent, or a person lacks the capacity to give consent. However, female genital mutilation is prohibited in Australia regardless of the person’s age or consent, or whether it is performed for religious or cultural purposes.112 5.36 The Griffith Code excuses those who perform surgeries or provide medical treatment provided it is performed in good faith and with reasonable care and it is reasonable to administer the treatment in the circumstances.113 The excuses make no reference to consent and, therefore, the common law rather than the statutory excuses may apply to render lawful any surgery that is performed with consent.114 The Criminal Code (Tas) includes a similar excuse but, unlike the Griffith Code, it expressly addresses the relevance of consent. In Tasmania, it is lawful to perform surgery with consent provided it is for the person’s benefit, it was performed in good faith and with reasonable care and skill, and surgery was reasonable having regard to all the circumstances.115

Body modification 5.37 Body modification or adornment includes practices such as tattooing, piercing, tongue splitting, earlobe stretching, scarification, branding, and implants under the skin. Practices such as tattooing and piercing have for some time been [page 141]

accepted by Western societies as having social value. Other practices are of cultural significance in non-Western societies and in more recent times have been embraced by a small but growing section of Western society. In the absence of clear policy reasons to the contrary, the criminal law in a pluralistic Western society should not dictate the acceptability of cultural practices and it should not be the arbiter of fashion. In Barker v R [2010] 1 NZLR 235, a case involving acts of scarification, Glazebrook J stated:116 It cannot be open to this Court to introduce into our law a general prohibition against scarification and its related activities of piercing, branding and tattooing …. Scarification can serve a variety of functions in different cultures. For instance, in some cultures, it may be used as a rite of passage in adolescence or to mark particular emotional states. It can have deep spiritual significance. Scarification may also operate as an ‘identifier’ in some instances. Many young people today adopt facial or body ornamentation, sometimes associated with scarring. The short point for present purposes is that in many societies, practices associated with, or similar to, scarification are an exercise of personal or tribal autonomy and have social utility.

5.38 Most body modification or adornment practices do not inflict harm that exceeds the common law’s limit on consent.117 Furthermore, in R v Wilson [1997] QB 47, the Court of Appeal held that body modification is an exception as the law recognises an individual’s right to consent to such procedures even if they exceed that which can generally be consented to.118 Wilson concerned a husband who, at his wife’s instigation, used a hot knife to brand his initials into her buttocks. His conviction for assault occasioning bodily harm was overturned, with Russell LJ stating:119 For our part, we cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing. The latter activity apparently requires no state authorisation … We do not think that we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing.

5.39 In the Griffith Code states, the legality of some forms of body modification is questionable. As stated above, the Codes may not recognise an individual’s right to consent to a wounding or grievous bodily harm.120 Therefore, in the absence of statutory intervention, many forms of body modification may be unlawful.121 5.40 The capacity to consent to body modification is age dependent. The states and territories have taken legislative action to prevent minors

from consenting to some forms of body modification and/or prevent them from consenting to [page 142] procedures on certain parts of the body. For example, in Victoria it is an offence to tattoo, engage in scarification, tongue split, brand or bead a person under 18 years of age122 and in Queensland it is an offence to tattoo a minor or to pierce a minor on an intimate part of his or her body.123

Sporting matches 5.41 Injury, including serious injury, is not uncommon in sport. However, there are relatively few instances of participants being prosecuted for causing injury. In R v Barnes [2004] EWCA Crim 3246, the English Court of Appeal observed that in most cases involving sporting injuries it is unnecessary for proceedings to be brought before the criminal courts as sporting organisations have their own disciplinary procedures to punish breaches of the rules.124 In the civil case of Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331, the Victorian Supreme Court considered whether injuries sustained in a boxing match constituted an actionable assault. It held that fighting for money in public was not of itself criminal.125 The court rejected the proposition that boxing was only lawful so long as there was no intention to inflict actual physical harm. The court accepted that it was virtually impossible for pugilism to take place without the infliction of some physical harm and not every contest conducted under the rules could be regarded as prohibited or illegal. On the question of consent, the court said (internal references omitted):126 If physical violence is inflicted while the parties are engaged in a game or sporting contest in which the parties have engaged on the footing that each consents to take the risk of the infliction on him of such violence as is ordinarily and reasonably to be contemplated as incidental to the sport in question, that consent will ordinarily preclude the infliction of physical violence during the course of that game or contest from constituting an assault. Thus a batsman who plays at and misses a ball which goes on to strike him

somewhat painfully on the thigh cannot be regarded as having suffered an assault and battery. ‘Body line bowling’ and ‘bouncers’ may, however, raise separate problems. Ordinarily, therefore, consent will preclude the infliction of physical violence during a game or sporting contest, if such violence is inflicted within the spirit and intendment of the rules of that game or sporting contest, from constituting an assault and battery at all events so long as the game or sport is lawful and not seriously dangerous to life and limb.

His Honour adopted the statement from R v Coney (1882) 8 QBD 534, where Stephen J said:127 [W]here life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault even when considerable force is used, as, for instance, in cases of wrestling, singlestick, sparring with gloves, football and the like;

[page 143] but in all cases the question whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending upon circumstances.

Although the judgments refer to assault, the principle expressed also applies where serious harm is caused.128

Sexual offences 5.42 A distinction is drawn between sexual offences where the complainant’s consent is irrelevant, such as incest,129 sexual intercourse or indecent dealing with a minor130 and sexual intercourse or indecent dealing with a person with an intellectual impairment,131 and sexual offences where the Crown must prove absence of consent. The latter can be further divided into those where the physical elements involve the act of penetration and those that involve the sexual contact of another or some form of sexual display. The non-consensual penetration offence is colloquially known by its common law name of rape. Rape is either fully or partly defined by statute, with the statutory definitions extending the scope of the offence.132 The offence has been enlarged to include an extensive range of sexual

[page 144] acts of penetration, including cunnilingus, the insertion of the penis into the mouth or anus, the insertion of a part of the body not the penis or the insertion of an object into the vagina or anus.133 Furthermore, in every jurisdiction, except for Tasmania, a woman can be convicted as the principal offender.134 All jurisdictions have introduced provisions, some detailed, defining consent.135 Notwithstanding these legislative interventions, the basic elements of the statutory offences of rape remain similar to the common law. The Crown must prove that the victim was intentionally penetrated, that the act was non-consensual, and that the accused knew that the victim was not consenting.

Rape Absence of consent: a positive definition of consent 5.43 Early common law decisions defined rape as an act of ‘force and against her will’.136 It was not until the late 19th century that the focus moved to an absence of consent; however, judges continued to refer to force as a requirement.137 By the 1970s, the courts had ceased referring to physical resistance. Instead, they distinguished consent from mere submission and non-consent from acquiescence and/or tolerance. It was accepted that mere submission does not equate to consent.138 However, references to acquiescence or terms that convey a similar meaning continued to be problematic. In the much-cited decision of Holman v R [1970] WAR 2, it was held to be a misdirection to refer to ‘willing consent’, a phrase which suggests that a woman who consents reluctantly or unwillingly is not consenting. Jackson CJ states that:139 A woman’s consent to intercourse may be hesitant, reluctant, grudging, or tearful, but if she consciously permits it (providing her permission is not obtained by force, threats, fear or fraud) it is not rape.

[page 145]

5.44 Since the decision in Holman, all jurisdictions, except for the Australian Capital Territory, have statutorily defined consent in positive terms to mean ‘freely and voluntarily agrees’ or ‘given’ or to enter a ‘free agreement’.140 In light of these positive legislative definitions, judicial directions that draw a distinction between non-consent and acquiescence, or even tolerance, should be avoided as they are not acceptable.141 The words ‘freely and voluntary’ and ‘freely agrees’ are commonly used terms that should be left to a jury to apply.142 Furthermore, in five jurisdictions legislation provides that evidence of a failure to respond physically or verbally can be taken as evidence of non-consent and/or is not to be regarded as evidence of consent (see 5.46). 5.45 In some circumstances, absence of consent is established by reference to a single fact such as whether V was asleep or unconscious. However, in most cases the jury will focus more broadly on the complainant’s circumstances, when determining whether absence of consent is established. In R v Winchester [2014] 1 Qd R 44, the Queensland Court of Appeal ruled that the trial judge had incorrectly conveyed to the jury that it could find absence of consent based on the appellant’s inducement that he would give her a race horse if she engaged in sexual intercourse. The horse, Big Macca, did not belong to the appellant and, accordingly, he could not fulfil his promise. The court held that when viewed in isolation most inducements to engage in sexual intercourse, such as a promise to marry, promises of gifts or the promise to take care of the complainant or some other person, would not deprive the agreement of its free and voluntary character. Muir JA found that the jury should have been directed to consider the promise of Big Macca together with other circumstances such as:143 … the complainant’s age, maturity, mental acuteness and her psychological and emotional state, which might bear on whether a consent, which on the face of it … was freely and voluntarily given, was in fact so given … In the circumstances of this case, it seems to me that the jury should have been instructed that the complainant’s consent should not be regarded as not freely and voluntarily given, regardless of the strength of the inducement provided by the offer of the horse, unless in all the circumstances the complainant was rendered unable to exercise freedom of choice.

Fryberg J took a similar but more conservative approach. His Honour

stated that a promise of a gift on its own could never deprive a person of the capacity to freely and voluntarily consent. However, in circumstances where a woman has fallen under the control of a domineering and oppressive man, it is not unusual for there to be [page 146] periods of physical or psychological abuse followed by periods of expressions of love. In such circumstances, the promise of a gift could be relevant in determining whether consent to sexual intercourse was not free and voluntary.144 Muir JA’s less conservative approach is to be preferred, as the element of non-consent should be focused on the individual complainant’s state of mind. It should be of no consequence that the complainant’s state of mind is attributable to organic factors that render him or her unusually susceptible to loss of his or her capacity to choose, nor should it take into account any wrongdoing by the accused. It is simply a question as to whether the particular complainant freely agreed to intercourse. The necessary fault element (see 5.58–5.61) protects against any injustice that would otherwise occur in circumstances where an accused is unaware or could not be expected to be aware that the complainant was not exercising a free choice. 5.46 Most Australian jurisdictions have moved towards a communicative model of sexuality whereby silence and inactivity are indicative of non-consent rather than consent.145 In Victoria and Tasmania, evidence of a failure to respond physically or verbally means that the person does not consent.146 The communicative model of sexuality also finds expression in New South Wales, the Australian Capital Territory and the Northern Territory, where legislation states that a person is not ‘to be regarded as consenting’ by reason only that he or she does not physically resist sexual intercourse.147 Under the Criminal Code (Qld), silence or inactivity is also inconsistent with consent.148 The Code states that ‘consent means consent freely and voluntarily given’. In R v Winchester [2014] 1 Qd R 44, Fryberg J

stated:149 Passive acquiescence or even a desire to participate are not enough. Consent must be given. It need not be given verbally, but given it must be. No longer may an ardent suitor sweep his coy beloved off her feet. Now she must somehow give her consent in advance, or at least concurrently. Autre temps, autre murs. The law no longer presumes the existence of demure damsels with Victorian modesty. Rather it assumes that modern [page 147] females will speak up and speak their minds. There seems to be little reason to doubt the accuracy or the assumption.

5.47 Statements that consent can be given in advance should be treated with caution. Usually, the Crown must prove a temporal connection between the act of penetration and the absence of consent.150 In ISJ v R (2012) 226 A Crim R 484, the Crown presented evidence that the appellant had rubbed his penis against his stepdaughter’s vagina and that she had instructed him not to insert his penis. Although the appellant proceeded to penetrate the girl, his rape conviction was overturned as the Crown failed to lead evidence as to the amount of time between the girl’s rejection and the act of penetration.151 In the absence of such evidence the girl’s state of mind at the time of penetration could not be established.152 In limited circumstances, a person’s state of mind at a point prior to penetration may be determinative of consent. In the context of an attempted rape, the court in WO v DPP (NSW) [2009] NSWCCA 275 stated:153 [I]n the case of a stable relationship, the circumstances may allow for a factual finding that the partner had had an ‘opportunity to consent’ whether or not she was asleep at the time sexual intercourse was attempted.

Absence of consent: specific circumstances 5.48 At common law, consent obtained by force, threats or fear or by some forms of fraud or mistake was a nullity. All jurisdictions list circumstances where consent is absent. These lists incorporate the common law grounds and introduce new grounds.154 In every jurisdiction the list is expressed in non-exhaustive terms. Most of the listed grounds either expressly or by necessary implication require a

causal connection between the listed circumstance and the complainant’s submission to intercourse.155 In Gillard v R (2014) 236 A Crim R 596, the High Court stated that although some of the listed grounds are expressed in very broad terms, the unintended consequences of such terms are avoided by the need to establish a substantial causal connection between [page 148] the relevant circumstance and the complainant’s submission.156 The specific circumstances are sometimes said to vitiate or negate consent.157 In the context of the modern statutory provisions, it is misleading to refer to most of the listed circumstances in such terms. The listed circumstances do not destroy or impair what would otherwise be consent, but provide examples of circumstances where a complainant does not ‘free and voluntarily agree’ or enter a ‘free agreement’.158

Capacity 5.49 Circumstances where there is a lack of capacity provide the most obvious examples of where a complainant does not consent as he or she is incapable of exercising a free choice whether to consent or not.159 Common incapacity grounds include where the complainant is asleep, unconscious, or inebriated by alcohol or drugs,160 and where the individual does not have the cognitive capacity to understand the nature of the act.161

Mistake or fraud 5.50 The second category of specific circumstances where consent is absent is where submission results from a mistake or fraud. At common law this category was limited to a mistake as to the nature or character of the act and a mistake as to the identity of the man.162 As stated in

Papadimitropoulos v R (1957) 98 CLR 249, the focus should be on the complainant’s mistake rather than the accused’s fraud:163 [page 149] It must be noted that in considering whether an apparent consent is unreal it is the mistake or misapprehension that make it so. It is not the fraud producing the mistake which is material so much as the mistake itself. But if the mistake or misapprehension is not produced by the fraud of the man, there is logically room for the possibility that he was unaware of the woman’s mistake so that a question of his mean rea may arise.

Only Victoria, New South Wales and South Australia focus exclusively on the complainant’s mistake rather than on the fraud of the accused. The mistake or fraud category has been extended beyond the confines of the common law.164 Legislation in New South Wales, Victoria and the Northern Territory states there is no consent where the complainant submits because of a mistaken belief that the act is for medical or hygienic purposes.165 Consent given under a mistaken belief by the complainant that he or she is married to the accused is deemed nonconsensual in New South Wales.166 5.51 In Queensland and the Northern Territory, consent is absent if the complainant submits because of a false and fraudulent representation as to the nature or purpose of the act.167 By including fraud as to the purpose, the legislature has substantially expanded the circumstances where consent is not free and voluntary. It not only includes a fraudulent misrepresentation that the act is for medical or therapeutic purposes168 but also where an accused fraudulently misrepresents that the act is for sexual gratification when procreation is the intended purpose (see 5.53) or where the accused falsely represents the act as consummation of his or her love for the complainant. The Criminal Code (Tas) includes a similar provision which focuses on the complainant’s reasonable but mistaken belief rather than the false and fraudulent representation.169 5.52 In Western Australia, Tasmania and the Australian Capital Territory there is no consent if submission is obtained by fraud of any

kind.170 The Western Australian provision has the widest application as it does not require the [page 150] accused to be the source of the fraud or to be cognisant of the fraud; it simply states that consent is not free and voluntary if it is obtained by ‘deceit or any fraudulent means’. In Michael v Western Australia (2008) 183 A Crim R 348 it was unnecessary to reach a conclusion as to the meaning of the term ‘deceit or any fraudulent means’; however, Steyltler P rejected suggestions that the term could be narrowly construed. His Honour agreed with the suggestion that a false assertion of love for the complainant, an incorrect statement that the perpetrator was not married or a false promise of marriage could all come within the scope of ‘deceit or any fraudulent means’. Consent would be absent if the complainant agreed to sexual intercourse because of such a lie.171 His Honour concluded that the term ‘deceit or any fraudulent means’ is ‘susceptible to an interpretation that is dramatic in its reach’ and he called for legislative action to limit its scope.172 5.53 The Canadian Courts have not demonstrated timidity when interpreting potentially broad statutory provisions. In R v Hutchinson [2014] SCC 19, the appellant was convicted of rape in circumstances where he poked holes in the condom, resulting in his partner’s pregnancy. Although the complainant had agreed to sexual intercourse, it was on the condition that the appellant wear a condom to prevent the risk of pregnancy. The Supreme Court of Canada held that there was no consent as the complainant had submitted because of fraud.173 Although the legislation simply refers to the absence of consent due to ‘fraud’, the majority of the Supreme Court held that the term must be given a restricted meaning. If the court failed to restrict the meaning of the term, there would be no ‘clear line between criminal and noncriminal conduct and [it would result in] over-criminalization’.174 The majority held that fraud is established upon proof that the accused was dishonest, which could include the failure to disclose important facts,

and the complainant suffered deprivation or was subjected to the risk of deprivation.175 Deprivation includes serious bodily harm or a significant risk of serious bodily harm. The majority stated:176 The concept of ‘harm’ does not encompass only bodily harm in the traditional sense of that term; it includes at least the sorts of profound changes in a woman’s body — changes that may be welcomed or changes that a woman may choose not to accept — resulting from pregnancy ... [F]inancial deprivation or mere sadness or stress from being lied to will not be sufficient.

5.54 In Canada, a person who fails to inform his or her sexual partner that he or she is HIV-positive can be convicted of rape.177 However, if at the time of intercourse the person’s viral load was low and a condom was used there would be no significant risk of deprivation and consequently no conviction.178 Whether an accused who failed to disclose his or her HIV-positive status could be convicted [page 151] of rape in any of the Australian jurisdictions remains to be tested.179 However, the English Courts of Appeal held that the offence of rape could not be based on D’s failure to disclose his or her HIV-positive status.180

Force 5.55 The third category of circumstance where there is an absence of consent concerns submission resulting from force,181 threats, fear of force, fear of harm,182 unlawful detention,183 and the abuse of a position of authority.184 In most jurisdictions there are no restrictions on the type of threat or fear that can or may be relied on to establish an absence of consent.185 In Michael v Western Australia (2008) 183 A Crim R 348, the appellant unsuccessfully appealed his convictions for the rape of two prostitutes. On separate occasions the appellant falsely told the woman that he was a police officer and he informed one woman that she would be in trouble if she did not reduce her fee, and the other woman that she would be in trouble if she did not provide

sexual intercourse for free. Both women gave evidence that they had complied with the appellant’s request as they did not want any trouble with the police. Steytler J found that the jury must have concluded that the women had not consented, because their agreement was induced by threats and intimidation. His Honour concluded that the appellant’s deceitful claim that he was a police officer played no part in inducing the women’s compliance except insofar as it conveyed to them an expressed or implied threat.186 [page 152]

Positive definition and the specific circumstances 5.56 Only Victoria specifies how and when a trial judge is to direct a jury on the general definition of consent and the specified circumstances where consent is absent.187 Although not legislatively addressed in other common law jurisdictions, it appears that where one of the specific circumstances is relevant the jury will be instructed that it can find absence of consent in one of two ways: (1) where there was no free agreement to sexual intercourse; or (2) where there was an absence of consent due to one or more of the specified circumstances.188 5.57 In R v Pryor (2001) 124 A Crim R 22, the Queensland Court of Appeal took a different approach that focuses on the positive general definition of consent and minimises the relevance of the specific circumstances.189 The majority in Pryor held that it is rarely necessary to distinguish between the general definition of consent and the specific circumstances. The central question is whether there was an absence of consent and the specific circumstances merely clarified what is meant by absence of consent. Accordingly, the majority held that specific circumstances do not apply to limit the meaning of absence of consent.190 Similarly, in R v Winchester [2014] 1 Qd R 44 the majority of the Court of Appeal held that evidence of dishonesty which did not satisfy the specific circumstance of a ‘false and fraudulent representation about the nature or purpose of the act’ could nevertheless be considered

in determining whether consent was free and voluntary in the circumstances (see 5.45).191

Fault element 5.58 At common law, the mental element of rape is an intention to have sexual intercourse with a woman, knowing that she is not consenting or reckless as to consent. Recklessness is established by proof that the accused was aware of the possibility that the complainant was not consenting or by proof that the accused [page 153] was indifferent as to whether the complainant was consenting.192 The requirement of subjective fault means that rape is not established if the accused honestly believed that the complainant was consenting. It is not necessary for the accused to have reasonable grounds for the belief.193 Negligence is not a sufficient basis for liability. The unreasonableness of an asserted belief is only relevant insofar as it tends to support a finding that the accused did not in fact hold the belief. 5.59 The law in each of the Australian jurisdictions has been subjected to legislative intervention. The mental element for rape in the two territories is similar to the common law. The Crown must prove that the accused either knew of, or was reckless as to, lack of consent.194 Recklessness is defined as being aware of a substantial risk that the person is not consenting.195 The definition of recklessness as it applies to rape is qualified under the Criminal Code (NT) to include not giving any thought as to whether the person is consenting.196 In both jurisdictions an accused will not be guilty of rape if he or she held a reasonable or unreasonable mistaken belief that negates the mental element of rape.197 5.60 The Griffith and Tasmanian Codes bear no resemblance to the common law. The offence of rape does not include a mental element.

Evidence of a belief in consent will raise the excuse of reasonable mistake of fact.198 The accused must point to evidence that he or she199 held a belief that the complainant was consenting and that the belief was reasonably held in the circumstances. Whether a belief was reasonably held is not determined by reference to what a reasonable person would have believed but by reference to whether the accused’s belief was reasonable given his or her circumstances.200 Not all of the accused’s circumstances can be taken into consideration when considering the reasonableness of his or her belief. Self-induced intoxication must be ignored, as a reasonably held belief is one that he or she would have held had he or she been sober (see Chapter 2).201 [page 154] However, for attempted rape, an honest, albeit unreasonable, mistake as to consent will excuse as the Crown must prove that the accused intended to have non-consensual intercourse.202 The fault element of rape in Victoria is similar to that in the Griffith Code. However, under the Crimes Act 1958 (Vic) a reasonable belief in consent is not raised as an excuse but its absence is an element of the offence.203 In determining whether an accused’s belief in consent was not reasonable, regard must be had to the steps taken by the accused to find out whether the complainant was consenting.204 Furthermore, in circumstances of nonself-induced intoxication, the reasonableness of the belief is determined by reference to the standards of a person intoxicated to the same extent as the accused.205 5.61 Statutory intervention in New South Wales means that an accused is no longer able to escape criminal responsibility where his or her belief in consent is unreasonably held. The Crown must prove that the accused either knew that the complainant was not consenting, was reckless206 as to consent, or had no reasonable grounds for believing that the complainant was consenting.207 If the Crown’s case is based on the absence of reasonable grounds for a belief in consent, the jury must consider any steps taken by the accused to ascertain whether the

complainant was consenting and it must disregard any impact on the accused as a result of self-induced intoxication.208 The common law mental element for rape continues to apply to the offence of attempted rape in New South Wales and, accordingly, an unreasonable belief in consent will excuse.209 In South Australia, the accused must know that the complainant is not consenting or be recklessly indifferent as to consent.210 A person is recklessly indifferent if they are aware of the possibility that the complainant might not be consenting or fails to give any consideration as to whether the complainant is not consenting.211 [page 155]

Fault and the specific circumstances 5.62 The New South Wales legislation includes a form of constructive liability that equates knowledge of the complainant’s mistaken belief in a material matter with knowledge of lack of consent. Section 61HA(5) of the Crimes Act 1900 (NSW) provides: For the purpose of subsection (3) [mental element], the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief.

An accused can be convicted if he or she knows the complainant was mistaken about a material matter but genuinely and reasonably believed that the mistaken belief did not prevent consent from being free and voluntarily. No other jurisdiction imposes constructive liability. The Crimes Act 1900 (ACT) states that the mental element of rape is established if the Crown proves that the accused knew the complainant consented because of one of the specified circumstances.212 In other jurisdictions, evidence of the accused’s awareness of a specific circumstance is taken into account in determining whether the fault element has been established.213

Sexual assault

5.63 All jurisdictions prescribe a non-penetration sexual offence which is commonly called sexual assault or indecent assault. Consistent with the law of rape, absence of consent is a central element of these offences. In the Northern Territory, the Australian Capital Territory, Victoria and Tasmania, the same statutory definition of consent or absence of consent applies to both rape and the indecency offences.214 In New South Wales and Western Australia, the relevant offence is called indecent assault.215 The offences make no direct reference to consent; however, the constituent element of assault means that absence of consent must be established. Accordingly, in New South Wales and Western Australia, the meaning of the term ‘consent’ is not determined by reference to the statutory definitions of consent as it applies to rape, but by reference to the law that applies to assault.216 The position in Queensland is similar but slightly more complex. Section 352(1) of the Criminal Code (Qld) adopts both approaches to the definition of consent. In effect, s 352(1) contains two offences: indecent assault; and the procuring of an act of indecency without consent. For the offence of indecent assault the element of consent is defined [page 156] by reference to the assault definition expressed in s 245 of the Code.217 For the offence of procuring an act of indecency without consent the definition of consent is determined by reference to s 348 of the Code, which defines consent for the purpose of the offence of rape.218

Larceny, stealing and theft 5.64 Questions of consent may arise in relation to the basic dishonesty offences in Australia, of which there are three major categories: common law larceny, stealing under the Griffith Code, and dishonest appropriation or theft. Absence of consent is an express element of the core offence of stealing or theft,219 although in some statutory formulations of the offence the requirement of non-consent is

implicit.220 The requirement of adverse interference or usurpation of the rights of the owner carries an implicit requirement of non-consent.221 Moreover, an appropriation is not dishonest if the taker believes that the owner would consent if he or she knew of the appropriation and the circumstances of it.222 The fraudulent taking or fraudulent conversion of anything capable of being stolen is the core of the offence of stealing under the Griffith Code.223 Non-consent of the owner is not an expressed element of stealing under the Code. However, in Ilich v R (1987) 162 CLR 110, Gibbs CJ stated:224 The Code does not require the taking or conversion be without the consent of the owner, but … the practical effect of its provisions is that a person who takes or converts goods will not be criminally responsible if he acts with the consent of the owner or under an honest and reasonable but mistaken belief that he is acting with the owner’s consent.

This is because, subject to any special property rights,225 a person cannot be convicted of stealing where title to property has transferred to the accused. Therefore, under the Griffith Code a person can be convicted of stealing where they take property with the consent of the owner and subsequently convert the [page 157] property; however, a person cannot be convicted in circumstances where title to the property has been transferred to the accused.226 5.65 Larceny survives in New South Wales227 but the offence known colloquially as stealing has been modernised in most jurisdictions, including Victoria,228 South Australia,229 the Australian Capital Territory230 and the Commonwealth.231 The essence of larceny is the taking and carrying away of property without the consent of the owner. The centrality of non-consent in the definition of larceny led to serious problems for the early common law in dealing with cases where D originally obtained possession of another’s goods with consent, but subsequently dealt with them in a dishonest manner, either by disposing of them or consuming them.232 This was not larceny, as the initial taking was with consent.233

5.66 The need for reform was also highlighted by cases where a person was tricked into parting with goods. This was dealt with by inventing two new offences: the common law offence of larceny by a trick234 and the statutory offence of obtaining by false pretences.235 The distinction between them depended on whether the transferor intended to pass property in the goods, or merely possession.236 If the former, it was obtaining by false pretences; if the latter, it was larceny by a trick. It could not be both.237 5.67 The importance of consent is illustrated where it is alleged there was entrapment. The taking of property by the person charged, even when he or she has the necessary mental state, will not be larceny where the owner or his or her agent invites D to remove the property.238 Mere facilitation of the taking of the goods when the taking is not consented to does not import consent, as, for example, when a door is left open. In such circumstances, the person charged with taking the property can be found to have committed larceny.239 [page 158]

Mistake 5.68 An enduring problem has been the circumstances under which a mistaken belief by either party to a property transfer will taint the transaction as criminal. If the mistake was induced by D, the case was either larceny by a trick or, if V was divested of ownership by the transfer, false pretences.240 If not induced, the case could not be one of obtaining, and was larceny or nothing. 5.69 The early approach, at least where money was concerned, was that D’s initial innocence did not make his or her conduct innocent. The 19th century cases held that if the accused was aware that a mistake had been made when the property was taken, it was larceny. In R v Middleton (1873) LR 2 CCR 38, a bank teller overpaid the accused because he mistook him for someone else. The accused had done nothing to contribute to the error. A conviction for larceny was upheld.

Nor did it matter if the mistake was discovered after the transfer. In R v Ashwell (1885) 16 QBD 190, the relevant mistake was to the value of a coin voluntarily handed over in the dark. At the time, both parties thought the coin was a shilling, but in fact it was a sovereign. The accused discovered this fact later and decided to keep the coin. A conviction was upheld on a technical majority, the court being equally divided. 5.70 Both of these decisions have been questioned in Australia. In R v Potisk (1973) SASR 389, the accused presented a foreign currency traveller’s cheque to a bank teller for exchange to Australian currency. The teller applied the wrong exchange rate, and gave the accused too much money. The accused was aware of the mistake but pocketed the money. The South Australian Court of Appeal rejected both Middleton and Ashwell and held that the accused was not guilty of larceny.241 5.71 In Illich v R (1987) 162 CLR 110 a charge of stealing arose under s 371 of the Criminal Code 1913 (WA). The accused was handed an envelope by his employer containing a sum of money representing his final wages. The envelope contained an excess of $530, which he kept, but he did not mix the excess funds together with the money to which he was entitled. A conviction for stealing was set aside by the High Court. The majority applied the presumption that property in money passes with delivery so that there could be no subsequent conversion.242 Wilson and Dawson JJ noted:243 [page 159] At common law larceny involves the taking of something without the consent of the owner … For this reason it is said that there is no larceny if the circumstances would not sustain an action for trespass.

Brennan J held that for a mistake to vitiate consent it had to be fundamental. His Honour said:244 To determine whether a mistake is fundamental, one must properly identify the transaction and the relationship of the mistake to it … When the relevant transaction is the transfer of possession or ownership of property, a fundamental mistake must relate

to the knowledge of the owner of the property as to what he is doing, what the property is, and to whom he is transferring possession or ownership …

His Honour concluded that there was no fundamental mistake in the present case.

Automated banking processes 5.72 In Kennison v Daire (1986) 160 CLR 129, the High Court of Australia upheld a conviction for larceny where the appellant withdrew money, via an automatic teller machine (ATM), from an account that he had closed. The bank’s computer was offline at the time. When offline, the machine was programmed to permit withdrawals of up to $200, but the status and currency of the account could not be verified. The court dismissed an argument that the taking was with the bank’s consent. The machine was not an agent with power to consent to an unauthorised transfer to a person who was no longer a bank customer.245 In Shields v New South Wales Crime Commission (2007) 177 A Crim R 130, the claimant challenged certain restraining orders made under the Criminal Assets Recovery Act 1900 (NSW). He asserted that the relevant subject matter was not ‘serious crime derived property’. He had acquired the property with funds drawn from a corporate banking facility. The bank had set up an auto-replenishment facility (ATR) between accounts so that any drawings from the business account were automatically replenished from the claimant’s personal account. By means of 33 separate drawings, the claimant withdrew some $10.5 million and used it to acquire the subject property. Although the personal account was at all relevant times overdrawn, the ATR permitted notional credits to be placed to the credit of the business account. At no time were there sufficient funds in the personal account to redeem the drawings from the business account. The court held, referring to Kennison v Daire, that each withdrawal amounted to larceny, and there was no evidence that the bank had consented to the corporate account withdrawals. The property in question was therefore ‘serious crime derived property’. 5.73

In Evenett; Ex parte A-G [1987] 2 Qd R 753, the Queensland

Court of Appeal held that the trial judge was wrong to withdraw a charge of stealing from the jury where the accused had overdrawn his account by using the ATM when the computer was offline. In R v Mujunen (1993) 67 A Crim R 350, a majority went one step further in upholding a conviction for stealing from a bank by means of an ATM withdrawal against the uncleared proceeds of a cheque deposited [page 160] by the accused (the cheque being subsequently dishonoured).246 But a separate conviction based upon a counter transaction also drawn against the uncleared funds was set aside, because the bank teller had authority to transfer property in the money, intended to do so, and there was nothing to displace the presumption applicable to money that the recipient acquired ownership upon receipt.

Corporate consent 5.74 In the modern law there is a multiplicity of state and federal provisions designed to protect the interests of shareholders and creditors from dishonest dealings by directors.247 In circumstances where individuals in control of a company engage in criminal activity inconsistent with the interests of shareholders and creditors, the relevance of consent will depend on the specific offence charged. A particular problem arises where an individual in control of the company takes corporate assets and relies on corporate consent to authorise his or her taking. Whether the company did in fact consent will turn largely on principles of company law. The relevance of consent to any prosecution is essentially a matter for the criminal law. In classic larceny, consent is a defence to a taking and this is so whether the person authorised to give consent is an individual or a corporation. Whether particular statutory offences of dishonest appropriation involve an absence of consent will depend on principles of statutory interpretation. The offence of stealing defined in s 72 of the Crimes Act

1958 (Vic) has occasioned some difficulty in this regard. The offence is modelled on the Theft Act 1968 (UK). Where the victim of alleged stealing is a company, and the defendant is one of the directors, a charge of stealing from the company may be met by a claim that the body corporate consented to the taking. There may, for example, be a formal resolution authorising the transaction moved by the director and passed by him or her as majority shareholder. Where the defendant controls the company, either personally or through close family members or associates, or the corporation is in essence a family partnership business, the problem is especially acute.248 5.75 One troublesome example may be found in a decision of the Supreme Court of Victoria in R v Roffel (1985) 14 A Crim R 134. The defendant drew cheques against the company’s account for private purposes. He and his wife were the only directors in the company, which was in essence a partnership business carried on within a corporate shell. The defendant was responsible for daily management of the company. He was convicted before the County Court on five counts of theft under s 72 of the Crimes Act 1958 (Vic) which states [page 161] (with admirable brevity): ‘A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.’ On appeal to the Supreme Court, a majority (Young CJ and Crockett J) set aside the convictions and ordered that an acquittal be entered. Brooking J dissented. Young CJ said that ‘where it appears that the defendant had the consent of the owner, there can be no appropriation within the section’.249 The case was not well received and is now of such weak authority that it is largely of academic interest.250 A case such as this would probably now be prosecuted as an instance of dishonesty under s 184 of the Corporations Act 2001 (Cth).251 5.76

In Director of Public Prosecutions v Gomez [1993] AC 442, the

appellant was employed as assistant manager of a hardware store. He presented two cheques, which he knew to be stolen, to his manager as valuable consideration for certain goods. The manager agreed to the release of the goods on the understanding that the cheques were good. A conviction for theft was quashed by the Court of Appeal but reinstated by the House of Lords (Lord Lowry dissenting). Lord BrownWilkinson said:252 Where a company is accused of a crime the acts and intentions of those who are the directing minds and will of the company are to be attributed to the company. That is not the law where the charge is that those who are the directing minds and will have themselves committed a crime against the company.

His Lordship went on to say that the pillaging of companies by those who control them is now all too common and it would offend justice and common sense to hold that the very control which enables controllers to extract the company’s assets constitutes a defence on a charge of theft.253 His Lordship also disapproved the majority decision of the Supreme Court of Victoria in R v Roffel. 5.77 In Macleod v R (2003) 214 CLR 230, the applicant was charged with several offences of fraudulently taking property belonging to the company and applying it for his own purposes. The charges were laid under s 173 of the Crimes Act 1900 (NSW), which has since been repealed.254 The applicant claimed that the [page 162] company had consented to the taking. He was the sole director and shareholder and had purported to ratify the withdrawal of funds from the company account. In a joint judgment, Gleeson CJ, Gummow and Hayne JJ noted that the starting point was to construe s 173 according to its ‘terms, scope and purpose’. The application of statements made in relation to cognate but different offence provisions was to invite error. Their Honours noted (in fn 30) that the decision in Roffel was not relevant in the instant matter, being based on a different provision. In relation to s 173, their Honours stated:255

The submission that the ‘consent’ of a single shareholder company cures what otherwise would be a breach of s 173 should not be accepted. The self-interested ‘consent’ of the shareholder, given in furtherance of a crime committed against the company, cannot be said to represent the consent of the company.

In separate judgments, McHugh J and Callinan J each expressed nonbinding dicta to the effect that Roffel was wrong.256 Although it was not necessary to decide the correctness of Roffel because of the different statutory provisions, Callinan J made the interesting point that Roffel had failed to reference the numerous legislative provisions relating to directors and officers which create offences and impose affirmative duties of honesty, care and diligence. With expansive logic, his Honour asserted that the existence of such offences was a matter of ‘inescapable relevance to the propriety and possible criminality of any transactions between a company and a director even when charges under those provisions are not directly under consideration’.257 This view contrasts with the more restrained approach of the joint judgment, which focused on the ‘terms, scope and purpose’ of the statutory provision under consideration. His Honour added: 258 A director or officer acting in breach of his obligations under statute law relating to companies, or in breach of its memorandum and articles of association, by using the money of the company for his own purpose is no more the voice or the amanuensis of the company, as between himself and the company, than a thief who gains access to its treasury and steals money from it, or a forger who forges a company cheque in his own favour.

Consent and medical treatment 5.78 Every human being of adult years and sound mind has a right to determine what shall be done with his or her own body,259 and accordingly a refusal of medical treatment must be complied with whether the patient’s ‘reasons for making the choice are rational, irrational, unknown or even non-existent’ (see also 5.34–5.36).260 [page 163]

Even in circumstances where refusal of treatment will inevitably result in the patient’s death, the right of self-determination outweighs the State’s interest in taking steps to preserve the sanctity of life. Those responsible for administering treatment or performing surgery are not criminally responsible when it is done with the patient’s consent. In Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84, the court ruled that medical staff who complied with a patient’s request to cease hydration and nutrition resulting in the patient’s death would not be criminally responsible even though the patient was not terminally ill at the time he or she refused treatment. Furthermore, the court ruled that it was lawful to provide pain relief to a patient to minimise the discomfort associated with the withdrawal of hydration and nutrition.261 5.79 A person consents in circumstances where he or she is informed in ‘broad terms’ as to the nature of the treatment. It need not be informed consent in the sense that the patient does not have to be advised of the possible consequences of the treatment or of the alternatives to the treatment. Consent is not invalid simply because medical staff did not take advantage of opportunities available to them to fully explain the consequences of continuing or discontinuing treatment or because the consequence of refusing treatment will inevitably result in the patient’s death. In Reeves v R (2013) 304 ALR 251, the appellant was convicted of maliciously inflicting grievous bodily harm with intent.262 The appellant had surgically removed V’s external genitals (the vulva, including the labia and clitoris) in circumstances where V had consented to the removal of a lesion (together with surrounding tissue) on her left labia minora. In reference to the trial judge’s direction to the jury, the High Court held:263 [I]t was an error to direct the jury in terms of ‘informed consent’. Specifically, it was an error to direct that a medical practitioner must explain the ‘possible major consequences of the operation’ together with ‘options’ and ‘alternative treatment’ before the patient’s consent to the procedure will afford the medical practitioner lawful excuse or excuse for performing it. … It is sufficient that the patient consents to the procedure having been advised in broad terms of its nature.

Notwithstanding the trial judge’s error, the High Court held there was no miscarriage of justice as the conviction was based on failure to

inform V of the extent of the procedure. Therefore, there was no consent to the procedure.264 5.80 A patient’s consent to or refusal of treatment will be invalid if it is obtained by misrepresentation or fraud,265 or it was obtained by undue influence.266 However, uncertainty remains as to validity of consent if it was obtained for a specific purpose and although the procedure is performed or substantially similar procedure is performed, it is done for a different purpose.267 5.81 There are a number of circumstances where medical treatment without consent is not culpable. Treatment without consent can be provided where an unconscious [page 164] patient’s life is endangered. In such circumstances, those who treat the patient are not to be criminally responsible provided the treatment is such that a reasonable person would, in the circumstances, have taken the action in the best interests of the patient.268 This may be seen as an instance of implied consent (an ‘emergency principle’) or simply the operation of necessity.269 In the Northern Territory, Queensland and South Australia there are statutory powers that authorise medical practitioners to provide emergency treatment without consent.270 These provisions are limited in their scope and are, therefore, supplemented by the common law or, in the case of Queensland, by an excuse of broader application contained within the Criminal Code.271 This exception does not apply if treatment is contrary to the known wishes of the patient or if it is contrary to the direction of a person authorised to consent on the patient’s behalf.272 Children are a further exception as below a certain age they fall under parental control and, therefore, it is the parent’s consent that is required. Parental consent is only valid if the treatment is in the best interest of the child.273 There is no fixed age at which the principle of self-determination becomes paramount for all medical purposes, but rather the nature of the operation and the maturity of the

child are relevant in determining whether the child’s consent is decisive or sufficient.274 In cases where a child and or the parents oppose medical treatment, the courts can exercise their parens patriae jurisdiction and, if it is in the best interest of the child, the court can order that the treatment proceed.275 For example, in X v The Sydney Children’s Hospitals Network [2013] NSWCA 320, the New South Wales Court of Appeal ordered that a boy aged 17 years and 8 months be given a blood transfusion against his wishes and those of his parents. The order was necessary so that chemotherapy to treat his Hodgkin’s disease could continue without the risk of severe anaemia.276 Treatment of individuals who lack capacity277 because of a mental disease,278 developmental disorder or state of intoxication (where immediate treatment is necessary) is a further exception where medical treatment can be administered in the absence of consent. [page 165] 5.82 The isolation of those who are dangerously insane or infectious is in the public interest, and the rights of the collective may supersede the rights of the individual to refuse incarceration or isolation. In the case of a person suffering an infectious disease, there is statutory authority to isolate an infectious patient without consent.279 In respect of medical conditions other than the dangerously insane or those who are dangerously infectious, there appears to be no general public interest in the treatment of a patient’s illness. A doctor may have certain duties in respect of the treatment of a patient’s illness but the patient has a right to refuse treatment, even potentially life-saving treatment.

Reforming the law 5.83 The doctrine of consent has thrown up a variety of problems in a world beset by social and technological change. Cases dealing with ‘machine consent’ were not foreseen 100 years ago. But some familiar themes prevail despite the pace of change. Present social trends towards

greater individual autonomy pose a challenge for courts seeking to clarify the borderline between socially sanctioned violence and criminal conduct. There is no clear consensus as to the limits of individual autonomy in a culturally diverse society. The intersection of public and private spheres is by no means a new problem, and will no doubt continue to exercise legal and social thinkers.280 5.84 In a world beset with violence and individual self-abasement, of which smoking and alcohol abuse are key examples, it might seem almost trivial (considered in terms of net human misery) for the law to agonise over less prevalent forms of physical harm such as sadomasochism, genital mutilation, scarification and the like. Case law suggests that the right to submit to physical treatment that is offensive to community standards is highly qualified and not absolute. However, the approach that favours individual autonomy over paternalism is desirable and has the advantage of enhancing legal clarity (see 5.24). 5.85 The statutory amplifications of consent in relation to sexual offences is, on balance, a progressive development that has passed largely without critical comment. Although hazards arise from sexual relations in those murky areas where sexual communication is garbled sometimes by alcohol, youth, naivety or narcissism, the transformation to a communicative mode of consent has been positive. However, the jettisoning of the conventional principle of criminal responsibility, in the form of the subjective fault element of rape, is, in the authors’ view, unfortunate. Rape is a serious crime invariably punishable by lengthy imprisonment. It should remain pre-eminently a crime of mens rea.

1. 2. 3. 4. 5.

6.

See R v Donovan [1934] 2 KB 498 at 507 per Swift J. See Criminal Code (Tas) s 53(a); Criminal Code (Qld) s 284; Criminal Code (WA) s 261. Horan v Ferguson (1994) 75 A Crim R 31 at 46; Reeves v R (2013) 304 ALR 251. Some crimes — ‘victimless’ crimes — fall outside this classification; for example, possession of a proscribed drug. For example, discharging or carrying a weapon on private property without the owner’s consent: see Weapons Act 1990 (Qld) s 56; Beer v McCann (1991) 57 A Crim R 101; enforced sterilisation under Criminal Code 1995 (Cth) s 268.18. On a charge of criminal damage, the fact that the owner consented to the damage to property may excuse: see R v Denton [1981] 1 WLR 1446. Where absence of consent is an

7. 8. 9.

10. 11. 12. 13. 14. 15. 16. 17.

18.

19.

20.

21.

22. 23. 24. 25. 26. 27.

element of the offence of criminal damage, see Criminal Code 2002 (ACT) s 409; Criminal Code (NT) s 248; Criminal Code (Qld) s 458; Criminal Code (WA) s 441. Illich v R (1987) 162 CLR 110. Crimes Act 1958 (Vic) s 73(2). See, for example, Criminal Code (Cth) s 270.11; Crimes Act 1900 (NSW) ss 45, 77; Criminal Code (Qld) ss 222, 323A; Criminal Law Consolidation Act 1935 (SA) ss 33A, 57; Criminal Code (Tas) ss 124, 178A; Crimes Act 1958 (Vic) ss 34, 44, 45. The mens must be rea with respect to each element of the actus reus: see Parish v DPP (2007) 179 A Crim R 304. See Griffith Code Ch V; Criminal Code (NT) s 32. The Tasmanian position is something of a hybrid as it retains common law defences: see Criminal Code Act (Tas) s 8. Widgee Shire Council v Bonney (1907) 4 CLR 977 at 981. Director of Public Prosecutions v Morgan [1976] AC 182. See Criminal Code 2002 (ACT) s 35; Criminal Code (NT) s 43AW. See Criminal Code (ACT) s 36; Criminal Code (NT) ss 32, 43AX. Criminal Code (NT) s 187; Criminal Code (Qld) s 245; Criminal Code (WA) s 222. Criminal Code (NT) ss 125(c), 155A, 188–189A, 190, 191, 212; Criminal Code (Qld) ss 206(c), 207, 313, 335–346, 351, 352(1)(a), 412, 413; Criminal Code (WA) ss 75A(1)(b) (iv), 281, 313–318A, 323, 324, 392, 393; R v Raabe [1985] 1 Qd R 115; Lergesner v Carroll (1990) 49 A Crim R 51 at 56–8. Criminal Code (WA) s 281. The offence was enacted to address incidents of ‘one punch’ resulting in death: see also Crimes Act 1900 (NSW) s 25A(1)(a). For similar offences that do not require an absence of consent, see Criminal Code (NT) s 161A; Criminal Code (Qld) s 314A; Crimes Act 1958 (Vic) s 4A. The definition of assault does not refer to intent; however, the intent to apply force has been held to be an element of assault: see R v McIver (1928) 22 QJPR 173; Hall v Fanceca [1983] WAR 309 at 313; Murphy v Spencer [2013] WASC 256 at [50]–[54]. Unlike the common law, the fault element does not extend to an intent that the force be without consent. Criminal Code (NT) s 32; Criminal Code (Qld) s 24; Criminal Code (Tas) s 14; Criminal Code (WA) s 24. See Kimmorley v Atherton; Ex parte Atherton [1971] Qd R 117; Lergesner v Carroll [1991] 1 Qd R 206 at 215–6, 220; Horan v Ferguson (1994) 75 A Crim R 31. See also Chapter 2. Lergesner v Carroll [1991] 1 Qd R 206, 217–18. For grievous bodily harm, see Criminal Code (Qld) s 320; Criminal Code (WA) s 297. For unlawful wounding, see Criminal Code (Qld) s 323; Criminal Code (WA) s 301. For harm and serious harm, see Criminal Code (NT) ss 181, 186. Criminal Code (NT) s 1 includes a general definition of the term ‘unlawful’, which means without authorisation, justification or excuse. See R v Knutsen [1963] Qd R 157 at 162–3, 187; Kuczynski v R (1989) 2 WAR 316. (2004) 144 A Crim R 343 at 350. (2004) 144 A Crim R 343 at 366. [1995] 3 NZLR 149 at 156. The Houghton approach can be criticised. It introduces additional elements to the offence of grievous bodily harm and is inconsistent with the accepted structure of the Code. The Code has two avenues for conviction for consequence offences against the person. Convictions can be direct by applying the relevant offence provision or they can be via the

28. 29.

30.

31.

32. 33.

34. 35. 36. 37.

38. 39. 40.

41.

negligent provisions: see B White, A Garwood- Gowers and L Willmott, ‘Manslaughter under the Griffith Code: Rowing Not So Gently Down Two Streams of the Law’ (2005) 29 Crim LJ 217. The use of a duty provision to establish unlawfulness effectively merges the two avenues to conviction. (2006) 162 A Crim R 377 at 385–6. See also Zaburoni v R [2016] HCA 12 at [2] fn 3, where the plurality also cites the Public Health Act 2005 (Qld) s 143. Criminal Code (Tas) s 182(4). See also s 2A for the definition of consent and s 53, which states that a person cannot consent to the infliction of death, an injury that is likely to cause death (except as provided for in s 51) or any maim for any purpose injurious to the public. R v Brown [1994] 1 AC 212 at 246–7; Re F [1990] 2 AC 1 at 72; Collins v Wilcock [1984] 1 WLR 1172 at 1177; [1984] 3 All ER 374 at 378; R v Sorgenfrie (1981) 1 A Crim R 404 at 412; Neal v R (2011) 213 A Crim R 190 at 214 in reference to the Crimes Act 1958 (Vic), the language of which compels the conclusion that consent is a defence. The wording of s 22 of the Criminal Law Consolidation Act 1935 (SA) suggests that consent is a defence. As a common law defence, consent could apply to Criminal Code (Tas) s 172 in circumstances where the accused did not intend to cause bodily harm, nor was it likely that bodily harm would be caused: see Criminal Code Act (Tas) s 8; R v Homes (1993) 2 Tas R 232. R v Barnes [20005] EWCA Crim 3246 at [17]; R v Meachen [2006] EWCA Crim 2414 at [42]–[43]; Davis v Chief of Army (2011) 205 A Crim R 521 at 529–30; R v Bonora (1994) 35 NSWLR 74; R v Brown [1994] 1 AC 212; R v Lee [2006] 3 NZLR 42. See MacPherson v Brown (1975) 12 SASR 184 at 195 per Bray CJ. For example, Crimes Act 1900 (NSW) s 77; Criminal Law Consolidation Act 1935 (SA) ss 49(7) (unlawful sexual intercourse), 57 (indecent assault), 58(2) (gross indecency); Crimes Act 1958 (Vic) ss 45(4), 48(2) (sexual penetration of a minor), 49(2) (indecent act). This distinction is implicit within the Tasmanian Criminal Code provision: s 182(4). See Parish v DPP (2007) 179 A Crim R 304 at 317–22, 331–2 for a summary of the relevant authorities. Lergesner v Carroll (1990) 49 A Crim R 51 at 61–2, 65; R v Raabe [1985] 1 Qd R 115; (1984) 14 A Crim R 381. See Criminal Code (Tas) s 2A(2)(h)–(i); Boughey v R (1986) 161 CLR 10 at 38. Children are not deemed to be incapable of consenting simply because of their age: see, for example, Horan v Ferguson (1994) 75 A Crim R 31, where the issue was not whether primary school children lacked the capacity to consent but whether they had impliedly or tacitly consented. See Criminal Code (NT) s 187(a); Criminal Code (Tas) s 2A(2)(b)–(e). This approach would seem to be consistent with the language of the Criminal Code (NT) s 187(a) and the Criminal Code (Tas) s 2A(2)(b)–(e). Given statutory expression in Criminal Code (NT) s 187(a); Criminal Code (Qld) s 245; Criminal Code (Tas) s 2A(2)(f)–(g); Criminal Code (WA) s 222. The Tasmanian Code differs in that fraud does not vitiate consent but rather consent does not exist if the complainant submitted because of the accused’s fraud. Unlike other jurisdictions, the Tasmanian provision states there is no consent if the complainant was reasonably mistaken about the nature or purpose of the act or about the identity of the accused. See Woolley v Fitzgerald [1969] Tas SR 65 at 69–70. In R v BAS [2005] QCA 97 at [90] Fryberg J states that there is uncertainty as to the meaning of the term ‘fraud’ as it applies to assault.

42. Kimmorley v Atherton; Ex parte Atherton [1971] Qd R 117; Horan v Ferguson (1994) 75 A Crim R 31; R v Shevlin [2013] ACTSC 88 at [37]; Beer v McCann (1991) 57 A Crim R 101 at 105. 43. Collins v Wilcock [1984] 1 WLR 1172 at 1177; Re F [1990] 2 AC 1 at 72–3. 44. Criminal Code (NT) s 187(e); Criminal Law Consolidation Act 1935 (SA) s 20(2)(a); Criminal Code (Tas) s 182(3). 45. Horan v Ferguson (1994) 75 A Crim R 31 at 33, 35; R v DMC (2002) 137 A Crim R 246 at 251; Davis v Chief of Army (2011) 205 A Crim R 521 at 527, 529. In Hogan v Ferguson two members of the court ruled that the English approach could not be adopted where the definition of assault is codified. 46. Collins v Wilcock [1984] 1 WLR 1172 at 1177; Re F [1990] 2 AC 1 at 72–3; Horan v Ferguson (1994) 75 A Crim R 31. 47. Horan v Ferguson (1994) 75 A Crim R 31; R v DMC (2002) 137 A Crim R 236 at 251. 48. Beer v McCann (1991) 57 A Crim R 101 at 105; Thompson v New Zealand Police [2012] NZHC 1500. 49. Beer v McCann (1991) 57 A Crim R 101 at 105; Horan v Ferguson (1994) 75 A Crim R 31; R v DMC (2002) 137 A Crim R 236 at 251. 50. Lergesner v Carroll (1990) 49 A Crim R 51. 51. See R v Lee [2006] 3 NZLR 24 at [309]. 52. See R v Golding [2014] EWCA Crim 889, where the Court of Appeal upheld the appellant’s guilty plea on one count of grievous bodily harm for causing his sexual partner to contract genital herpes in circumstances where he had failed to warn her of the risk of the disease. See also EB [2006] EWCA Crim 2945 at [17]; Law Commission, Reform of Offences Against the Person: A Scoping Consultative Paper, No 217, 2014, Ch 6. 53. [2004] EWCA Crim 1103 at [39]. 54. [2005] EWCA Crim 706 at [41]. 55. [2005] EWCA Crim 706 at [42]. 56. [2005] EWCA Crim 706 at [41]–[44]. 57. Crimes Act 1958 (Vic) s 23. 58. (2011) 213 A Crim R 190 at 208–9. 59. (2011) 213 A Crim R 190 at 211. 60. (2011) 213 A Crim R 190 at 214. 61. [2006] 3 NZLR 24 at [309]. 62. (2013) 304 ALR 251 at 258. See also R v Richardson (Diane) [1999] QB 444 at 450; Barker v R [2010] 1 NZLR 235 at 254–5. 63. Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) CLR 218 at 233. 64. [1994] 1 AC 212. 65. [1994] 1 AC 212 at 236. 66. [1994] 1 AC 212 at 263. But see the dissenting judgment of Lord Mustill at 274–5, where he states that the risks associated with the relevant activities are not as great as suggested by the majority. See also Attorney-General’s Reference (No 6 of 1980) [1981] 2 All ER 1057 at 1058; [1981] QB 715 at 716. 67. Medical staff can withdraw treatment with the result that the patient dies; however, they cannot administer treatment with the objective of ending life: Airedale National Health Service Trust v Bland [1993] AC 789. Where a patient requests that nutrition and hydration be withdrawn to enable him or her to die, medical staff can provide medication to relieve the pain of a slow death: see Brightwater Care Group (Inc) v Rossiter [2009]

68.

69. 70. 71. 72. 73. 74. 75.

76.

77. 78. 79. 80.

81. 82. 83. 84.

85. 86. 87. 88. 89.

WASC 229. Some jurisdictions have also introduced excuses to allow medical staff to provide palliative care that hastens death: see Criminal Code (Qld) s 282A. In Carter v Canada (Attorney General) [2015] SCC 5, the Canadian Supreme Court held that the prohibition on medically-assisted death for patients with a ‘grievous and irremediable medical condition causing enduring suffering’ was in breach of the Charter of Rights. See R v Brown [1994] 1 AC 212 at 260, where Lord Mustill describes the authorities as being unable to ‘sustain a step-by-step analysis’. See also R v Meachen [2006] EWCA 2414 at [32]. R v Coney (1882) 8 QBD 534 at 549 per Stephen J. See W Hawkins, Pleas of the Crown, Volume 1, 8th ed, 1824, Ch 15; R v Donovan [1934] 2 KB 498 at 507. See R v Bradshaw (1878) 14 Cox CC 83; R v Coney (1882) 8 QBD 534 at 553–4. R v Coney (1882) 8 QBD 534 at 539 per Cave J, who stated that a person cannot consent to an assault that is ‘likely or is intended to do corporal hurt’. See J F Stephen, Digest of Criminal Law, 3rd ed, 1883, art 206, pp 148–9. [1934] 2 KB 498 at 507. [1981] QB 715 at 719; R v Coney (1882) 8 QBD 534 at 539. See also R v Boyea [1992] Crim LR 574, where the Court of Appeal held that the victims’ consent was irrelevant if the appellant’s actions were likely or intended to cause bodily harm. See, for example, G Williams, Textbook of Criminal Law, 2nd ed, Stevens & Sons, London, 1983, pp 582–3; D Ormerod, Smith and Hogan’s Criminal Law, 13th ed, Oxford University Press, Oxford, 2011, p 636; P Murphy, ‘Flogging Live Complaints and Dead Horses: We May No Longer Need to Be in Bondage to Brown’ (2011) Criminal Law Review 759 at 760–1. [1994] 1 AC 212 at 231 per Lord Templeman, 244 per Lord Jauncey of Tillichettle, 247–8 per Lord Lowry, 279–280 per Lord Slynn. [1994] 1 AC 212 at 235 per Lord Templeman, 244–5 per Lord Jauncey of Tillichettle, 256 per Lord Lowry. [1994] 1 AC 212 at 236. [1994] 1 AC 212 at 246. Lord Lowry, the other member of the court in the majority, expressed agreement with the reasoning and conclusions of Lord Templeman and Lord Jauncey of Tillichettle; however, his Lordship clearly endorsed the result-based test (at 256). [1994] 1 AC 212 at 280. [1994] 1 AC 212 at 257–8. His Lordship observed that the title of the Act indicates that the offences prescribed by the Act are committed in the absence of consent. [1994] 1 AC 212 at 273–5. In R v Emmett [1999] EWCA Crim 1710 at [8] the Court of Appeal acknowledged that there is uncertainty whether consent is irrelevant at the level of assault occasioning bodily harm or at some higher level of harm. As a result of the trial judge’s ruling, the appellant did not give evidence at his trial. [2004] EWCA Crim 1103 at [47]–[51]. [2004] EWCA Crim 1103 at [41]. See R v Wilson [1997] QB 47; R v Dica [2004] EWCA Crim 1103 at [41], [47]– [51]; R v Meachen [2006] EWCA 2414 at [40]–[43]. [2004] EWCA Crim 1103 at [47]. See Ormerod, above n 76, pp 636–7. However, in R v Meachen [2006] EWCA 2414 at [43] the court stated that the relevance of consent to the

90. 91.

92. 93. 94. 95.

96. 97. 98. 99. 100. 101. 102. 103.

104.

105. 106. 107. 108.

109.

110. 111.

reckless infliction of bodily harm is yet to be determined. See also Law Commission, above n 52, pp 19–20. In R v Brown [1994] 1 AC 212, the members of the House of Lords agreed that consent was always relevant to common assault (see 5.27). [2006] 3 NSLR 42 at 89–113, where the court reviewed the limits of consent as they apply in the United Kingdom, Canada, Australia, New Zealand and under the American Law Institute Model Penal Code. [2006] 3 NSLR 42 at 119. [2006] 3 NSLR 42 at 119 for a summary of the New Zealand position on the law of consent. [2006] 3 NSLR 42 at 116. In Tasmania, for assault offences the relevance of consent is determined by reference to s 182(4) of the Criminal Code. However, for non-fatal offences against the person that do not include assault as an element it is possible that the common law limitation on the relevance of consent applies: see Criminal Code (Tas) ss 8, 172. The possible application of the common law to the Criminal Code (Tas) is based on the assumption that consent is a defence, and the level of harm at which point consent is irrelevant is somewhere beyond mere bodily harm. R v Holmes (1993) 2 Tas R 232 is an exception as Wright J of the Supreme Court of Tasmania found it necessary to determine the limits of consent. (2007) 179 A Crim R 304 at 331. (2011) 205 A Crim R 521 at 530. The tribunal’s approach is consistent with that of Attorney-General’s Reference (No 6 of 1980) [1981] 2 All ER 1057. [1999] VSC 358 at [13]–[15]. (2007) 179 A Crim R 360 at 366. [1993] TASSC 5 at [3]–[7]. Followed in Lane v Purcell [2011] TASMC 19. (2011) 213 A Crim R 190 at 210. See Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) CLR 218 at 233; R v Brown [1994] 1 AC 212 at 231 per Lord Templeman, 244 per Lord Jauncey of Tillichettle, 247–8 per Lord Lowry, 279–80 per Lord Slynn. Criminal Law Consolidation Act 1935 (SA) s 20. The section proscribes conduct that is elsewhere known as common assault, aggravated assault, and assault occasioning bodily harm. Section 22 only applies to two offences: see Criminal Law Consolidation Act 1935 (SA) ss 23–24. By way of analogy, see Police v Kennedy (1998) 71 SASR 175. For the statutory recognition of socially-acceptable exceptions where death results, see Criminal Code (NT) s 161A(4); Criminal Code (Qld) s 314A(4). See R v Brown [1994] 1 AC 212 at 231, 262–9; Neal v R (2011) 213 A Crim R 190 at 209; R v Aitken [1992] 1 WLR 1006; R v Barnes [2005] 1 Cr App R 30; R v Wilson [1997] QB 47; S Cooper and M James, ‘Entertainment — The Painful Process of Rethinking Consent’ (2012) Crim LJ 188. A Digest of the Criminal Law (Crimes and Punishments), 3rd ed, 1883, art 204, p 141. See also R v Patel; Ex parte Attorney-General (Qld) [2011] QCA 81 at [46]; Criminal Law Consolidation Act 1935 (SA) s 22(3) Example 2. See Bravery v Bravery [1954] 3 All ER 59 at 63. Indeed, in some general and many specific situations the matter of consent to medical

112.

113. 114.

115. 116. 117. 118.

119. 120.

121.

122.

123. 124.

treatment is governed by statute: see Transplantation and Anatomy Act (ACT); Crimes (Administration of Sentences) Act (NSW) s 73; Children and Young Persons (Care and Protection) Act (NSW) s 175; Minors (Property and Contracts) Act (NSW) s 49; Human Tissue Act (NSW); Transplantation and Anatomy Act (NT); Transplantation and Anatomy Act (Qld) Divs 2, 2A, 3; Mental Health Act (SA) s 28; Consent to Medical Treatment and Palliative Care Act (SA); Transplantation and Anatomy Act (SA); Human Tissue Act (Tas) Divs 2, 3, 4; Medical Treatment Act (Vic); Human Tissue Act (Vic); Human Tissue and Transplant Act (WA) ss 8, 9. Note, for example, that it is an offence under the Public Health Act (Qld) s 213B to perform cosmetic surgery on a child under 18 years of age in the absence of a belief on reasonable grounds that the surgery is in the child’s best interest. See Crimes Act 1900 (ACT) s 74; Crimes Act 1900 (NSW) ss 45, 77; Criminal Code (NT) s 186B; Criminal Code (Qld) ss 222, 323A; Criminal Law Consolidation Act 1935 (SA) ss 33A, 57; Criminal Code (Tas) ss 124, 178A; Crimes Act 1958 (Vic) ss 34, 44, 45; Criminal Code (WA) s 306. The Tasmanian Law Reform Institute recommended that the circumcision of minors be prohibited subject to a traditional religious and cultural practices exception: see Non-Therapeutic Circumcision: Final Report, 2012. In Queensland, male circumcision is non-culpable surgery as it is excluded from the list of prohibited cosmetic surgeries that cannot be performed on a person under 18 years of age: see Public Health Regulations 2005 (Qld) s 12F. See also the Convention on the Rights of the Child 1991, art 24(3). Criminal Code (Qld) s 282; Criminal Code (WA) s 259. R v Patel; Ex parte Attorney-General (Qld) [2011] QCA 81 at [46]. The Criminal Code (NT) ss 1 and 26(3) operate so that a person will not be criminally responsible for causing serious harm if they perform surgery with the consent of the patient: see Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218 at 234. Criminal Code (Tas) s 51. [2010] 1 NZLR 235 at 249. Although Glazebrook J was in dissent, her Honours views in this respect are consistent with those of the majority: see 257–8. Based on the assumption that individuals can lawfully consent to wounding. In South Australia, it would be difficult to prove that most forms of body modification do not come within the limits of what is generally accepted by the community: Criminal Law Consolidation Act 1935 (SA) s 22(3). [1997] QB 47 at 128. Wounding is not an offence under the Criminal Code (NT). Some forms of culturally traditional body modification are probably subject to an exception: see Criminal Code (NT) s 1A(4). Tattooing (and arguably piercing) do not involve the infliction of a wound and, therefore, a person can consent to those activities. In any event, they are regulated by statute: see Tattoo Parlours Act 2013 (Qld); Summary Offences Act 2005 (Qld) ss 18, 19; Children and Community Services Act 2004 (WA) ss 103, 104A, which also regulates branding. Summary Offences Act 1966 (Vic) s 42. See also Children and Young People Act 2008 (ACT) s 877; Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 230, 230A; Summary Offences Act 1953 (SA) s 21R; Police Offences Act 1935 (Tas) s 35A; Children and Community Services Act 2004 (WA) ss 103, 104A, which make it an offence to tattoo a person under 18 years of age without the written consent of the responsible career. Summary Offences Act 2005 (Qld) ss 18, 19. [2004] EWCA Crim 3246 at [5]. The court also observed that injured players can take civil

125. 126. 127. 128. 129.

130.

131.

132.

133.

134.

action in negligence or for an assault. But see R v Brown (1841) Car & M 314 at 318; 174 ER 522 at 524. [1976] VR 331 at 339. (1882) 8 QBD 534 at 549. R v Brown [1994] 1 AC 212 at 231, 262–9; Neal v R (2011) 213 A Crim R 190 at 209; R v Barnes [2005] 1 Cr App R 30. Crimes Act 1900 (ACT) s 62; Crimes Act 1900 (NSW) ss 78A, 78C(2); Criminal Code (NT) ss 134, 139A; Criminal Code (Qld) s 222(3); Criminal Law Consolidation Act 1935 (SA) s 72; Criminal Code (Tas) s 133; Crimes Act 1958 (Vic) s 44(5); Criminal Code (WA) s 329. Crimes Act 1900 (ACT) ss 55, 61; Crimes Act 1958 (NSW) ss 61N, 66A, 66C; Criminal Code (Qld) ss 210, 215; Criminal Code (NT) ss 127, 132; Criminal Code (WA) s 321. In Victoria, South Australia and Tasmania, consent is a defence in limited circumstances. For example, in Victoria consent is a defence if the child was 12 years of age or older and it is proved on the balance of probabilities that the accused believes on reasonable grounds that the child is 16 years of age or the accused was less than 2 years older than the child or it is proved on the balance of probabilities that the accused believes on reasonable grounds that he or she is married to the child: see Criminal Law Consolidation Act 1935 (SA) s 57(3); Criminal Code (Tas) ss 124(3), 125B(3); Crimes Act 1958 (Vic) ss 45(4), 47(2). In most jurisdictions the offence is established by proof of a relationship of dependency between the accused and the person with an impairment: see Crimes Act 1900 (ACT) s 67(1)(h)–(i); Crimes Act 1900 (NSW) s 66F(5)–(6); Criminal Code (NT) s 130; Criminal Code (Tas) s 126; Crimes Act 1958 (Vic) ss 50–52. See Criminal Code (Tas) s 126(2); Crimes Act 1958 (Vic) s 52(3) for a limited consent defence. Under the Criminal Law Consolidation Act 1935 (SA) s 51(1) and (4), a person in a position of power, trust or authority is presumed to have used undue influence to obtain consent unless he or she proves the contrary on the balance of probabilities. In Queensland and Western Australia, the prohibition on sexual relations with a person with an impairment of the mind is of general application, but see Criminal Code (Qld) s 216(4)(a)–(b); Criminal Code (WA) s 330(1), (9). The offence is referred to as ‘sexual intercourse without consent’ in the Crimes Act 1900 (ACT) s 54; Criminal Code (NT) s 192(3); ‘sexual penetration without consent’ in the Criminal Code (WA) s 325 (see R v Melville (2003) 27 WAR 224; [2003] WASCA 124); ‘sexual assault’ in the Crimes Act 1900 (NSW) s 61I. The term ‘rape’ is retained in the Criminal Code (Qld) s 347; Criminal Law Consolidation Act 1935 (SA) s 48; Criminal Code (Tas) s 185; Crimes Act 1958 (Vic) s 38. See also Criminal Code (Cth) s 268.14. Crimes Act 1900 (ACT) s 50; Crimes Act 1900 (NSW) ss 61I, 61H; Criminal Code (NT) ss 1, 192; Criminal Code (Qld) ss 349, 6(2); Criminal Law Consolidation Act 1935 (SA) ss 48, 5; Criminal Code (Tas) ss 185, 1; Crimes Act 1958 (Vic) s 37D(1); Criminal Code (WA) ss 319(1), 325. The common law has effected reform on its own: see R v L (1991) 174 CLR 379; R v R [1991] 4 All ER 481 accepting ‘rape in marriage.’ For cases involving rape in marriage, see Case Stated by Director of Public Prosecutions (No 1 of 1993) (1993) 66 A Crim R 259; PGA v R (2012) 245 CLR 355; [2012] HCA 21 (see Chapter 1, nn 72 and 77). The Crimes Act 1958 (Vic) s 38(3) and Criminal Code (WA) s 319(1) provide that a woman can be convicted of rape in circumstances where she was penetrated. The Queensland Code was amended in 1997 with the objective of making rape a gender-neutral

135.

136. 137. 138. 139. 140.

141.

142. 143. 144. 145.

146.

147.

148. 149.

150.

offence. However, the language used to amend the Code is somewhat ambiguous and the courts may be reluctant to extend the scope of the offence to include where a female accused was penetrated: see, for example, Director of Public Prosecutions, Reference No 1 of 1992 v M (1993) 9 WAR 281; R v JC [2000] ACTSC 72. Criminal Code (Cth) s 268.14(3); Crimes Act 1900 (ACT) s 67; Crimes Act 1900 (NSW) s 61HA; Criminal Code (NT) s 192(2); Criminal Code (Qld) s 348; Criminal Law Consolidation Act 1935 (SA) s 46; Criminal Code (Tas) s 2A; Crimes Act 1958 (Vic) s 34C; Criminal Code (WA) s 319(2). For the history of rape laws, see R v Pryor (2001) 124 A Crim R 22 at 23–4. See R v Howard [1966] WLR 13 at 15; R v Morgan [1976] AC 182 at 186–7, 196. See Question of Law (No 1 of 1993) (1993) 59 SASR 214 at 220; R v Mueller [2005] NSWCCA 47 at [36]–[41]. [1970] WAR 2 at 6. Crimes Act 1900 (ACT) s 67; Crimes Act 1900 (NSW) s 61HA(2); Criminal Code (NT) s 192; Criminal Code (Qld) s 348; Criminal Code (Tas) s 2A; Criminal Law Consolidation Act 1935 (SA) s 46; Crimes Act 1958 (Vic) s 34C(1); Criminal Code (WA) s 319(2). Question of Law (No 1) of 1993 (1993) 59 SASR 214 at 220, 233, 237; R v Mueller [2005] NSWCCA 47 at [33]–[40], where it is accepted that at common law consent meant ‘free and voluntary consent.’ See Ibbs v R [1988] WAR 91 at 93, 101; Wagenaar v R [2000] WASCA 325 at [19], where the Jackson CJ direction was described as ‘highly dangerous’ and ‘inappropriate’. Members of the court in R v Winchester [2014] 1 Qd R 44 at 65, 68, 72, and 76–7 go further and state that a Jackson CJ direction is incompatible with the positive definition of consent. See R v Winchester [2014] 1 Qd R 44 at 65–7, 77. The Jury Directions Act 2015 (Vic) s 46 limits the directions that can be given by a trial judge as to meaning of consent. [2014] 1 Qd R 44 at 67–8. [2014] 1 Qd R 44 at 79–80. See ISJ v R (2012) 226 A Crim R 484 at 491–3; Victorian Law Reform Commission, Sexual Offences: Final Report, 2004, p 346; S Bronitt, ‘The Direction of Rape Law in Australia’ (1996) 18 Criminal Law Journal 249. Criminal Code (Tas) s 2A(2)(a); Crimes Act 1958 (Vic) s 34C(2)(k). For the position prior to recent amendments, see ISJ v R (2012) 226 A Crim R 484 at 493; Wilson v R [2011] VSCA 328 at [112]–[114]. The Tasmanian provision is ambiguously expressed. It begins by stating that ‘without limiting the meaning of free agreement’ but then proceeds to definitively state that a person does not freely agree if that person ‘does not say or do anything to communicate consent.’ See also Jury Directions Act 2015 (Vic) s 46(3)(c)(i). Crimes Act 1900 (ACT) s 67(2); Crimes Act 1900 (NSW) s 61HA(7); Criminal Code Act (NT) s 192A. The way these provisions are expressed is unfortunate. In a rape trial neither party seeks to prove consent. The prosecution seeks to prove absence of consent and the defence seeks to raise doubt as to the prosecution’s case. To direct a jury that certain evidence is not to be taken as establishing something that the jury is not required to determine (ie, was the victim consenting) has the potential to distract and confuse a jury. Evidence of silence or inactivity is likely to be significant if the defence relies on reasonable mistaken belief in consent: see R v Shaw (1996) 1 Qd R 641 at 646. R v Winchester [2014] 1 Qd R 44 at 77. Contrast Fryberg J’s statement with the Court of Appeal’s position prior to the enactment of a positive definition of consent: see R v Shaw (1996) 1 Qd R 641 at 646. R v Olugboja [1982] QB 320 at 332.

151. The rape conviction was substituted with a conviction for incest. 152. (2012) 226 A Crim R 484 at 495. 153. [2009] NSWCCA 275 at [71]. See Criminal Code (Tas) s 2A(2)(h) and Criminal Code (NT) s 192(2)(c) where evidence that the person was asleep is not conclusive evidence of the incapacity to consent. The relevance of sleep is expressed in terms of being such as to render the person incapable of freely agreeing. Criminal Law Consolidation Act 1935 (SA) s 46(3)(c); Crimes Act 1958 (Vic) s 34C (2)(d) states that a person who is asleep at the time of penetration is deemed not to have consented. 154. Crimes Act 1900 (ACT) s 67(1)(a)–(h); Crimes Act 1900 (NSW) s 61JA(4)–(5); Criminal Code (NT) s 192(2)(a)–(g); Criminal Code (Qld) s 348(2)(a)–(f); Criminal Law Consolidation Act 1935 (SA) s 46(3)(a)–(h); Criminal Code (Tas) s 2A; Crimes Act 1958 (Vic) s 34C(2)(a)–(l); Criminal Code (WA) s 319(2)(a). 155. The causal requirement expressly applies to all of the grounds listed in Queensland, Western Australia and the Australian Capital Territory. In the other jurisdictions causation is generally expressed to apply to the force/threat/authority circumstances and by necessary implication to the lack of capacity circumstances. However, it may not apply to the mistake circumstances as it is not expressed, nor does it apply by necessary implication. 156. (2014) 236 A Crim R 586 at [24]. See also R v BAS [2005] QCA 97 at [98], where the Queensland Court of Appeal held that a false and fraudulent representation as to the nature or purpose of the act did not have to be the sole cause by which ‘consent’ is obtained but it has to play a substantial and not a trivial role. 157. See Crimes Act 1900 (ACT) s 67(1); Gillard v R (2014) 236 A Crim R 586 at [24]. However, in respect to most of the listed circumstances it would be more accurate to state that their existence is evidence of lack of consent. 158. See Criminal Code (Qld) s 348(2); Criminal Law Consolidation Act 1935 (SA) s 46(3); Criminal Code (Tas) s 2A(2); Crimes Act 1958 (Vic) s 34C(2); Criminal Code (WA) s 319(2)(a). 159. Crimes Act 1900 (ACT) s 67(1)(e)–(i); Crimes Act 1900 (NSW) s 61HA(4)(a)–(b); Criminal Code (NT) s 192(2)(c)–(d); Criminal Code (Qld) s 348(1); Criminal Law Consolidation Act 1935 (SA) s 46(c)–(f); Criminal Code (Tas) s 2A(2)(h)–(i); Crimes Act 1958 (Vic) s 34C(2) (d)–(f); Criminal Code (WA) s 319(2)(a). For the common law, see R v Morgan [1970] VR 337 at 341. 160. In R v Francis [1993] 2 Qd R 300 it was stated that where consent is induced by alcohol it is not rape, but if a man has carnal knowledge of a woman by reason of sleep or drunken stupor and, therefore, is incapable of deciding whether to consent or not, it is rape. In R v Cannell [2009] QCA 94 at [52] McMurdo P states that in a rape trial, evidence of intoxication is relevant to ‘the complainant’s reliability as a witness; the appellant’s honest and reasonable belief that the complainant was consenting [fault element]; and whether the complainant had “cognitive capacity to give consent”’. See also R v Blayney (2003) 87 SASR 354 at 140. 161. See R v Mrzljak [2005] 1 Qd R 308; Libke v R (2007) 230 CLR 559. 162. Papadimitropoulos v R (1957) 98 CLR 249 at 260. For examples of mistake as to the character or nature of the act, see R v Case (1850) 169 ER 381; R v Flattery (1877) 2 QB 410; R v Williams (1923) 1 KB 340. For mistake as to identity, see R v Pryor (2001) 124 A Crim R 22. 163. (1957) 98 CLR 249 at 260. 164. South Australia is the only jurisdiction where the legislation does not extend the common law: see J Crowe, ‘Fraud and Consent in Australia Rape Law’ (2014) 38 Crim LJ 236.

165. Crimes Act 1900 (NSW) s 61HA(5)(c); Criminal Code (NT) s 192(2)(f); Crimes Act 1958 (Vic) s 34C(2)(i). 166. See Crimes Act 1900 (NSW) s 61HA(5)(b). A person who failed to disclose some technical invalidity relating to the marriage compact after entering the bridal suite would be convicted of sexual assault. See also Thomas v R (1937) 59 CLR 279. The section was no doubt intended to reverse Papadimitropoulos v R (1957) 98 CLR 249 but it is too broad. It should be read down by confining it to impersonation of a spouse. See also R v Pryor (2001) 124 A Crim R 22. Criminal Code (Qld) s 347 was amended in 2000 so that there is no consent if there was a mistaken belief induced by an accused that he or she was the sexual partner. 167. Criminal Code (NT) s 192(2)(g); Criminal Code (Qld) s 347(2)(e). The Northern Territory Code only refers to false representation and not fraudulent representation. However, as knowledge or recklessness is the fault element under the Code, the accused would not be convicted unless it is established that he or she was aware of the false nature of the representation. 168. See R v BAS [2005] QCA 97 at [97]. 169. Criminal Code (Tas) s 2A(2)(g). This provision is unusual as it both extends the common law position to include mistakes as to purpose and restricts the common law in that any mistake as to the nature of the act or identity of the accused must be reasonably held. 170. Crimes Act 1900 (ACT) s 67(1)(g); Criminal Code (Tas) s 2A(2)(f); Criminal Code (WA) s 319(2)(a). 171. (2008) 183 A Crim R 348 at 363–5. See also Muller JA at 387. 172. (2008) 183 A Crim R 348 at 371. 173. Criminal Code (Can) ss 271, 273.2, 265(3)(c). Similar facts could constitute both fraud and rape in Queensland, Western Australia, Tasmania, the Northern Territory and the Australian Capital Territory. 174. [2014] SCC 19 at [42]. 175. [2014] SCC 19 at [67]. 176. [2014] SCC 19 at [70], [72]. The case can be criticised as a gendered decision as a male who tricks his female partner into conceiving a child can be convicted of rape; however, a female who tricks her male partner into fathering a child cannot. 177. See R v Cuerrier [1998] 2 SCR 371. 178. See R v Mabior [2012] 2 SCR 584. 179. A similar approach could apply in Western Australia, Tasmania and the Australian Capital Territory where fraud of any kind can be the basis of absence of consent. 180. See R v Dica [2004] EWCA Crim 1103 at [39]; R v B [2006] EWCA Crim 2945 at [21]. 181. The force can be against the complainant or another person: see Crimes Act 1900 (ACT) s 67(1)(a); Criminal Code (NT) s 192((2)(a); Criminal Code (Qld) s 348(2)(a); Criminal Law Consolidation Act 1935 (SA) s 46(3)(a)(i); Criminal Code (Tas) s 2A(2)(b); Crimes Act 1958 (Vic) s 34C(2)(a); Criminal Code (WA) s 319(2)(a). 182. The threat/fear of force/harm can be directed at the complainant, another person or, in Victoria, fear of harm can be in respect to an animal. See Crimes Act 1900 (ACT) s 67(1) (b)–(c); Crimes Act 1900 (NSW) s 61HA(4)(c); Criminal Code (NT) s 192(2)(a); Criminal Code (Qld) s 348(2)(b)–(c); Criminal Law Consolidation Act 1935 (SA) s 46(3)(a)(i); Criminal Code (Tas) s 2A(2)(b)–(c); Crimes Act 1958 (Vic) s 34C(2)(a)–(b); Criminal Code (WA) s 319(2)(a). 183. In each jurisdiction, except for Tasmania, it is V who must be subject to unlawful detention: see Crimes Act 1900 (ACT) s 67(1)(j); Crimes Act 1900 (NSW) s 61HA(4)(d);

184.

185.

186.

187.

188. 189.

190.

191. 192. 193.

194. 195. 196. 197. 198. 199.

Criminal Code (NT) s 192(2)(b); Criminal Law Consolidation Act 1935 (SA) s 46(3) (b); Criminal Code (Tas) s 2A(2)(d); Crimes Act 1958 (Vic) s 34C(2)(c). Crimes Act 1900 (ACT) s 67(1)(h); Criminal Code (Qld) s 348(2)(d); Criminal Code (Tas) s 2A(2)(e). In the Australian Capital Territory, V must be subjected to the abuse of authority, while in Queensland or Tasmania the complainant or another person can be subjected to the abuse. See R v Shaw [1995] 2 Qd R 97 at 111, 115. Only the Criminal Law Consolidation Act 1935 (SA) s 46(3)(a)(ii) and Crimes Act 1900 (ACT) s 67(1)(d) include very broadly worded limits as to the type of threat that can result in an agreement for sexual activity being non-consensual. Michael v Western Australia (2008) 183 A Crim R 348 at 369. Miller J at 388–9 found that, on the facts, it was not possible to separate the accused’s deceit from the threats and intimidation and therefore the trial judge correctly directed the jury to consider all three grounds for excluding consent. Heenan AJA at 433, in dissent, held that the word ‘deceit’ must be given a restricted meaning. Jury Directions Act 2015 (Vic) s 46. For a critique of the Victoria position prior to 2014, see Justice M Weinberg, ‘The Criminal Law – A “Mildly Vituperative” Critique’ (2011) Melbourne University Law Review 1177. See Bochkov v R [2009] NSWCCA 166 at [86], which predates the introduction of a general definition of consent. See also R v Hutchinson [2014] SCC 19 at [64]–[66]. The decision predates the introduction of the positive definition of consent; however, the principle applies to the positive definition of consent: see R v Winchester [2014] 1 Qd R 44. R v Pryor (2001) 124 A Crim R 22 at 28–9, 39. At the time, the Code stated that consent is absent if D impersonates a woman’s husband, which includes a man with whom the woman lives even though they are not married. The appellant unlawfully gained access to the victim’s bedroom whereupon he sexually penetrated the victim. The victim did not initially protest as she thought it was her male companion who was visiting that evening. The majority held that the victim had not consented even though the appellants’ conduct did not come within the specific circumstance related to impersonation as the victim did not have a husband. The majority applied the common law definition of absence of consent which includes where V does not know the identity of the man with whom she has sexual intercourse; see Papadimitropoulos v R (1957) 98 CLR 249 at 260–1. See also Crimes Act 1900 (NSW) s 61HA(6). See Director of Public Prosecutions v Morgan [1967] AC 182 at 203, 209, 215, 225; Banditt v R (2005) 224 CLR 262 at 273–6; Gillard v R (2014) 236 A Crim R 586 at [26]. Director of Public Prosecutions v Morgan [1976] AC 182; R v Brown (1975) 10 SASR 139; R v McEwan [1979] 2 NSWLR 926; R v Saragozza [1984] VR 187. The earlier cases took the contrary position: see R v Flaherty (1968) 89 WN (Pt 1) (NSW) 141; R v Flannery [1969] VR 31; R v Bourke [1970] 1 NSWR 767; (1969) 91 WN (NSW) 793; R v Sperotto (1970) 92 WN (NSW) 223. Criminal Code (ACT) s 54(1), (3); Criminal Code (NT) s 192(3). Criminal Code (ACT) s 20(2); Criminal Code (NT) s 43AK(2), Sch 1. Criminal Code (NT) s 192(4A). See R v BW (2012) 225 A Crim R 451 at 456. Criminal Code (ACT) s 35; Criminal Code (NT) s 43AW. See Attorney-General’s Reference No 1 of 1977 [1979] WAR 45; Arnol v R (1981) 7 A Crim R 291. A female cannot be convicted of rape under the Tasmanian Code.

200. Criminal Code (Tas) s 14A states that a belief is not honest or reasonable if: it results from self-induced intoxication and it is not a belief that would have been formed in the absence of that intoxication; ‘the accused was reckless as to whether or not the complainant consented’; or the accused failed to take steps that were reasonably available to him to ascertain whether the complainant was consenting. While the first exclusion simply restates the existing law (see McCullough v R [1982] Tas R 43), the scope of the second and third exclusions need judicial clarification. 201. R v Mrzljak [2005] 1 Qd R 308 at 315, 321; Aubertin v Western Australia (2006) 33 WAR 87 at 96; Daniels v R (1989) 1 WAR 435 at 445; Crimes Act 1958 (Vic) s 37H(1)(a). 202. See Attorney-General’s Reference No 1 of 1977 [1979] WAR 45. See also R v BW (2012) 225 A Crim R 451, where it was held that for the offence of attempted rape (Criminal Code (NT)) the accused must know that V is not consenting; recklessness is insufficient. 203. Crimes Act 1958 (Vic) s 38(1). The term ‘reasonable belief’ is a hybrid objective and subjective fault element: see Chapter 2. For jury directions on reasonable belief in consent, see Jury Directions Act 2015 (Vic) s 47. 204. Crimes Act 1958 (Vic) s 37G. 205. Crimes Act 1958 (Vic) s 37H(1)(b). 206. Recklessness can be established by proof that D realised there was a possibility that V was not consenting or by proof that D failed to consider whether V was consenting: AM v R [2011] NSWCCA 237 at [22]–[32]. 207. See Crimes Act 1900 (NSW) s 61HA(3)(a)–(c). It is not whether a hypothetical reasonable person would have lacked the grounds for a belief in consent but whether the accused lacked reasonable grounds for belief in consent; O’Sullivan v R [2012] NSWCCA 45 at [124]–[126]. Note that in New South Wales the Crown bears the evidential and persuasive onus, whereas under the Griffith Code the accused bears the evidential onus to raise a reasonable mistaken belief and the Crown bears the persuasive onus. 208. Crimes Act 1900 (NSW) s 61HA(3)(d)–(e). 209. WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 at [65]–[69], [80]; O’Sullivan v R [2012] NSWCCA 45 at [112]. 210. Criminal Law Consolidation Act 1935 (SA) s 48. 211. Criminal Law Consolidation Act 1935 (SA) s 47(a)–(c). There is some uncertainty as to the difference between subsections (a) and (b): R v Higgs [2011] SASCFC 108 at [36]. The mental element of attempted rape is consistent with the common law: see R v Evans (1987) 30 A Crim R 262 at 267–8. 212. Crimes Act 1900 (ACT) s 67(3). 213. See Jury Directions Act 2015 (Vic) s 47(7), which states that evidence that D had knowledge or belief of a specific circumstance is enough to show that he or she did not reasonable believe V was consenting. Such evidence is sufficient but it is not conclusive evidence of an absence of a reasonable belief in consent. 214. Crimes Act 1900 (ACT) ss 60, 67; Criminal Code (NT) s 192; Criminal Code (Tas) ss 2A, 127, 182; Crimes Act 1958 (Vic) ss 34C, 40. See Parish v DPP (Vic) (2007) 179 A Crim R 304 at [35]. 215. Crimes Act 1900 (NSW) s 61L; Criminal Code (WA) ss 323, 222. 216. See Parish v DPP (Vic) (2007) 179 A Crim R 304; O’Sullivan v R [2013] NSWCCA 45 at [112]. 217. R v BAS [2005] QCA 97 at [51]. 218. Section 348 begins by stating: ‘In this chapter, consent means …’, therefore the definition

219. 220. 221.

222. 223. 224. 225. 226. 227. 228. 229. 230. 231. 232.

233.

234. 235. 236. 237.

238. 239. 240.

241.

in s 348 only applies where the term ‘consent’ is expressed in the chapter and not where it has been imported into the chapter by reference to the definition of assault. The same applies to the offence of assault with the intent to commit rape: Criminal Code (Qld) s 351. The Crown must prove that there was a non-consensual application of force that comes within the terms of s 245 and that the accused intended to have non-consensual intercourse as defined by s 348 of the Code. Criminal Code 1995 (Cth) s 131.3; Criminal Code 2002 (ACT) s 304(1); Criminal Law Consolidation Act 1935 (SA) s 132; Criminal Code (Tas) s 226(1). Criminal Code (NT) s 209; Crimes Act 1958 (Vic) s 73(2)(b). Crimes Act 1935 (Vic) s 73(2)(b). See Roffel v R [1985] VR 511 (Brooking J dissenting)applying certain dicta from R v Morris [1984] AC 320. However, Roffel is of uncertain authority in light of criticisms made of it by judges in Australia and the United Kingdom; see 5.75–5.76. See Crimes Act 1958 (Vic) ss 73(2)(b); Criminal Code (NT) s 209 Criminal Code (Qld) s 391; Criminal Code (WA) s 271. (1987) 162 CLR 110 at 115; R v Mujunen [1992] 2 Qd R 647 at 650, 654. Criminal Code (Qld) s 391(2)(b), (2AA); Criminal Code (WA) s 371(2). R v Mujunen [1992] 2 Qd R 647 at 650, 654. See Crimes Act 1900 (NSW) s 117. Crimes Act 1958 (Vic) s 72. Criminal Law Consolidation Act 1935 (SA) Pt 5. Criminal Code (ACT) s 304(1). Criminal Code (Cth) Pt 7.2. Leading cases include Kennison v Daire (1986) 160 CLR 129; (1986) 64 ALR 17; (1986) 60 ALJR 249; R v Potisk (1973) 6 SASR 389; Croton v R (1967) 117 CLR 326; R v Davies (1970) VR 27 (FC); R v Turvey [1946] 2 All ER 60; R v Middleton (1873) LR 2 CCR 38; R v Ashwell (1885) 16 QBD 190. A statutory offence of larceny by a bailee was introduced to fill this gap: see Crimes Act 1900 (ACT) s 85(3); Crimes Act 1900 (NSW) s 125; Criminal Code (Qld) ss 391, 393, 394; Criminal Law Consolidation Act 1935 (SA) s 132; Criminal Code (Tas) s 226(1)(b); Crimes Act 1958 (Vic) s 73(6)(9); Criminal Code (WA) ss 371, 373, 374. See Parker v R (1997) 186 CLR 494. R v Pear (1779) 1 Leach 212; (1779) 168 ER 208. 30 Geo II, s 24. See R v Ward (1938) 38 SR (NSW) 308 at 313. This rule also applies under the Griffith Code: see R v Smalley [1963] Qd R 508. But see R v Bannah [1989] 1 Qd R 331, where a conviction for false pretences was upheld. D induced V to deliver goods to him, but property in the goods did not pass to D. R v Turvey [1946] 2 All ER 60; R v Miller (1965) 49 Cr App R 241; Lacis v Cashmarts [1969] 2 QB 400. Martin v Puttick [1968] 2 QB 82. The intention with which V transferred the goods was critical as between larceny and obtaining. Note that the divestment did not have to be in favour of D: see R v O’Sullivan [1925] VLR 514; R v Beck [1980] Qd R 123; R v Bannah [1989] 1 Qd R 331. See also B Fisse, Howard’s Criminal Law, 5th ed, Law Book Company, Sydney, 1990 pp 224–6. In some jurisdictions, where a person obtains any property by the mistake of another person and is under a legal obligation to make restoration, in whole or in part, of the

242.

243. 244. 245. 246. 247.

248. 249.

250.

251. 252. 253. 254.

property or of the value of the property, the property or its proceeds shall be taken to belong to the person entitled to the restoration. An intention not to make restoration shall be treated as an intention to deprive that person of that property: Criminal Code (Cth) s 131.7; Criminal Code (ACT) s 305(6); Criminal Code (NT) s 209(5); Crimes Act 1958 (Vic) s 73(10). Gibbs CJ (162 CLR 110 at 115) held that property in money passes with delivery but only if the person acquiring it does so in good faith and for value. In this case the jury was entitled to find that property in the money had not passed to the applicant. Therefore, it was crucial that the jury be properly directed as to the intention necessary to be proved at the moment of conversion, which the trial judge had failed to do: see Criminal Code (Qld) s 391(2)(a)(f); Criminal Code (WA) s 371(2)(a)(f). (1987) 162 CLR 110 at 123. (1987) 162 CLR 110 at 139. See Illich v R (1987) 162 CLR 110 at 133, where Brennan J noted that if Kennison v Daire had been decided under the Griffith Code, the result would have been the same. For the contra argument, see Davies JA’s judgment (1993) 67 A Crim R 350 at 362–3. See, for example, various provisions of the Corporations Act 2001 (Cth) that impose criminal sanctions: s 184 (good faith and honesty provisions); s 191 (material personal interest disclosure); s 588G (insolvent trading); various fraud provisions under the Criminal Code (Cth): for example, s 134.2(1) (obtaining a financial advantage by deception); s 135.1(1) (obtaining a dishonest gain); s 135.1(3) (causing a loss); s 135.1(5) (causing a loss to another); and various state offences such as larceny by joint owners (Crimes Act 1900 (NSW) s 162) or fraud generally (Crimes Act 1900 (NSW) Pt 4AA). See G Virgo, ‘Stealing from the Small Family Business’ (1991) 50 Cambridge Law Journal 464. [1985] VR 511 at 513, applying R v Morris [1984] AC 320 at 332 per Lord Roskill rather than Lawrence v Metropolitan Police Commissioner [1972] AC 626 at 632 per Viscount Dilhorne. Roffel has not quite disappeared without trace but it is now of doubtful authority: see Director of Public Prosecutions v Gomez [1993] AC 442 (see 5.77); Macleod v R (2003) 214 CLR 230; Oris Funds Management Ltd v National Australia Bank Ltd [2005] VSCA 148 at [16] per Chernov J. Roffel was noted as an outlier in Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley [2008] NSWCA 204 at [7]. In Durovic v R (1984) 71 A Crim R 33, the Tasmanian Court of Appeal considered that Roffel was correctly decided on its facts. However, the court approved the notion that for the purposes of stealing under the Criminal Code, a ‘corporate’ consent that was unilateral, rather than consensual and bilateral, was invalid. See, for example, Director of Public Prosecutions v Matthews [2016] VCC 1261. [1993] AC 442 at 496. See also Attorney-General’s Reference (No 2 of 1982) [1984] QB 624. [1993] AC 442 at 496. Repealed by the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (NSW) No 99, Sch 2, [7]. The 2009 Act made wide-sweeping changes to the Crimes Act 1900 (NSW) and introduced a simplified scheme for dealing with fraud, based on the recommendations of the Model Criminal Law Officers Committee of the Standing Committee of Attorneys-General: see Judicial Commissions of New South Wales, Sentencing in Fraud Cases, Monograph 37, September 2012,

255. 256. 257. 258. 259.

260.

261.

262. 263. 264. 265. 266. 267. 268. 269. 270.

271. 272.

273. 274. 275. 276. 277. 278. 279.

. (2003) 214 CLR 230 at 240; C Williams, ‘Reining in the Concept of Appropriation in Theft’ (2003) 29(2) Monash University Law Review 261. (2003) 214 CLR 230 at 253 per McHugh; at 264 per Callinan J. (2003) 214 CLR 230 at 263 per Callinan J. (2003) 214 CLR 230 at 264 per Callinan J. Schloendorff v Society of New York Hospital (1914) 105 NE 92, cited in Re A (Children) [2001] 2 WLR 480 at 509 per Ward LJ; Hunter and New England Area Health Service v A [2009] NSWSC 761 at [5]–[21]. Re T (Adult: Refusal of Treatment) [1992] 2 FLR 458; Re JS [2014] NSWSC 302 at [6]– [9]; Hunter and New England Area Health Service v A [2009] NSWSC 761 at [15]–[16], [28]. See also Re JS [2014] NSWSC 302. A patient does not commit suicide by refusing treatment; therefore, service providers cannot face prosecution for aiding and abetting suicide: X v The Sydney Children’s Hospitals Network [2013] NSWCA 320 at [59]. Crimes Act 1900 (NSW) s 33 (the section has subsequently been amended). (2013) 304 ALR 251 at 258. (2013) 304 ALR 251 at 262–3. Reeves v R (2013) 227 A Crim R 444 at 448. Re T [1993] Fam 95; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 at [26]. Reeves v R (2013) 227 A Crim R 444 at 449. See Re F [1990] 2 AC 1 at 74; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 at [31]–[34]. Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 at [31]. Emergency Medical Operations Act (NT) s 3(1); Criminal Code (NT) s 187(C); Law Reform Act 1995 (Qld) s 16; Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13(1). Criminal Code (Qld) s 282; Criminal Code (Tas) s 51(3); Criminal Code (WA) s 259. F v West Berkshire Health Authority (Mental Health Act Commission Intervening) [1990] 2 AC 1 at 25–6; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 at [34]. Secretary, Department of Health and Community Services and JWB (1992) 175 CLR 218 at 240. Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112; X v The Sydney Children’s Hospitals Network [2012] NSWCA 320 at [21]–[22]. See Secretary, Department of Health and Community Services and JWB (1992) 175 CLR 218, 279–80 for the history and scope of the court’s parens patriae jurisdiction. See also Minister for Health v AS (2004) 29 WAR 517; Re W (a minor) (medical treatment) [1992] 4 All ER 637. For the test of capacity, see Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; The Sydney Children’s Hospitals Network [2012] NSWCA 320 at [12]–[22]. See Hunter and New England Area Health Service v A [2009] NSWSC 761 at [40]; Australian Capital Territory v JT (2009) 232 FLR 322. See, for example, Biosecurity Act 2015 (Cth) ss 68, 72(5), 90, 92, 95, 97, 104, 107. Note that force can be used to ensure compliance with an isolation measure but not for the purpose of administering medication. See also Public Health Act 2010 (NSW) s 62. For

medical examination and treatment without consent, see Public Health Act 2005 (Qld) s 133(3). 280. This theme dominated the famous debate between H L A Hart and Lord Devlin: see P Devlin, The Enforcement of Morals, Oxford University Press, Oxford, 1965; and H Hart, Law Liberty and Morality, Oxford University Press, Oxford, 1971.

[page 167]

6 Sudden Emergency (Necessity) Introduction 6.1 The defence of ‘sudden or extraordinary emergency’ has a statutory basis in all Australian jurisdictions1 other than New South Wales, South Australia and Tasmania, which are governed by the common law defence of necessity.2 In simple terms, acts or omissions performed in reasonable response to circumstances of sudden or extraordinary emergency may exempt a person from criminal responsibility.3 The emergency doctrine had its Australian genesis in s 25 of the Criminal Code 1899 (Qld), which was taken by Sir Samuel Griffith to represent the common law.4 Illustrations of genuine necessity are rare, no doubt due to the sensible exercise of prosecutorial discretion.5 However, in recent times, there has been a steady growth in case law. 6.2 The early common law writers were hostile to necessity as a general defence, or considered it only in the context of what is now regarded as [page 168]

self-defence. Blackstone argued that, unlike in continental countries, it was ‘impossible’ that the needy poor in England could ever be reduced to thieving out of necessity because sufficient provision is made for the poor by the power of the civil magistrate.6 However, he famously recognised the ‘great universal principle of self-preservation, which prompts every man to save his own life preferably to that of another, where one of them must inevitably perish’.7 Hence:8 Where two persons, being shipwrecked, and getting on the same plank, but finding it not able to save them both, one of them thrusts the other from it, whereby he is drowned. He who thus preserves his own life at the expense of another man’s is excusable through unavoidable necessity, and the principle of self-defence; since their both remaining on the same weak plank is a mutual, though innocent, attempt upon, and an endangering of, each other’s lives.

East’s Pleas of the Crown, published in 1803, asserts that ‘taking upon necessity’ can never be a defence to larceny in England, ‘where such humane laws prevail for the care and maintenance of the poor’. However, in apportioning punishment, ‘the court will have a tender regard to cases of real necessity which may and do sometimes exist under the best regulated governments’.9 The 19th-century common law from which Sir Samuel Griffith extracted the emergency doctrine was by no means well settled. Indeed, uncertainty as to the scope of necessity continued well into the 21st century.10 6.3 In modern times, necessity has been described as a concept of ‘great importance’ with a role to play in both civil and criminal law.11 Decisions in the health area have strengthened the foundations of necessity.12 In Gillick v West Norfolk and Wisbech Area Health Authority [1984] QB 581; [1986] AC 112, where the medical treatment (contraceptive advice to a minor) was itself statutorily proscribed by reason of the child’s age, Lord Fraser and Lord Templeton acknowledged the availability of necessity as a defence. In relation to statutory offences, the common law approach has been somewhat piecemeal, suggesting that necessity is anything but a general defence. Indeed, the task of determining whether necessity may be pleaded to a particular statutory offence is not unlike that of determining whether an honest and reasonable mistake of fact is an excuse — it is essentially a matter of statutory construction: see Chapter 2.

[page 169] 6.4 Decisions in both Australia13 and England14 illustrate the operation of necessity especially but not exclusively in the area of traffic offences. In Buckoke v Greater London Council [1971] Ch 655 at 668 Lord Denning suggested that a rescuer who broke a traffic law to save a life should not be prosecuted, but congratulated.15 Conversely, in Johnson v Phillips [1975] 3 All ER 682, a stickler for the law who refused to comply with a lawful command to break the law received little sympathy. In this case the police ordered the defendant to reverse his car the wrong way down a one-way street in order to clear the way for emergency vehicles to gain access to a hotel at the end of the street. This would ordinarily have been an illegal manoeuvre. The defendant refused to obey. He was charged and convicted of wilful obstruction. The English Court of Appeal dismissed an appeal against conviction. The breach of the traffic rules was trivial by comparison with the risk to life caused by the defendant’s obstructing car. The circumstances were powerful enough to temporarily suspend the operation of the traffic regulations, or at least to justify their non-observance.

The rationale for necessity 6.5 The rationale for necessity may be put on either of two foundations. One is the avoidance of greater harm (or the pursuit of some greater good); the other is the difficulty of compliance with the law in emergencies. The first encapsulates the utilitarian notion that, within certain limits, it is justifiable to break the law on the basis that it represents the lesser of two evils. The second is the humanitarian principle that, again within limits, it is excusable in an emergency to break the law if compliance would impose an intolerable burden on the accused. The concepts are not mutually exclusive. A mother who broke free from a lawful arrest to stop a runaway pram containing her infant child would be not only justified but excused. 6.6

In Perka v R (1985) 13 DLR (4th) 1, Dickson J in the Supreme

Court of Canada considered that necessity was in the nature of an excuse, resting on:16 … a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience.

[page 170] However, the defence must:17 … be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale. That rationale is … the recognition that it is inappropriate to punish actions which are normatively ‘involuntary’.

The dissenting judge, Wilson J, analysed necessity as a justification. She considered that in some cases it was appropriate to consider the actor’s response to the situation as not a wrongful act at all — because it was fully justified. The circumstances in which a legal violation was justified arose out of some other conflicting legal duty to act. Her Honour said:18 Where necessity is invoked as a justification for violation of the law, the justification must, in my view, be restricted to situations where the accused’s act constitutes the discharge of a duty recognised by law. The justification is not, however, established simply by showing a conflict of legal duties. The rule of proportionality is central to the evaluation of a justification premised on two conflicting duties since the defence rests on the rightfulness of the accused’s choice of one over the other.

6.7 In theory, necessity may exclude some element of fault, such as intention or recklessness but, in most cases, necessity will operate as an ex post facto defence; that is, after the prosecution has established the elements of the offence, including the necessary intent. After that, necessity operates independently of the fault elements required for liability. Obviously, the fact that criminal conduct was intended is not fatal to a plea of necessity. Conduct induced by necessity may be intended, in the sense that the consequences or circumstances of the conduct are foreseen or recognised. There may, however, be circumstances in which there is room for doubt that the defendant foresaw some particular consequence. For example, if some miscreant

shouts ‘Fire!’ in a crowded theatre, those struggling to escape may not advert to the possibility or probability of causing bodily harm to others. Panic so affects the mind that rational foresight of consequences may be excluded or drastically limited. 6.8 Necessity does not of itself displace the element of voluntary action. Arguably, defences such as duress, compulsion or self-defence are merely instances of a more general underlying principle of necessity or moral involuntariness.19 A person acting under necessity does not disown the physical act, but seeks to explain the behaviour as a rational, moral and, in any event, forgivable response to extreme circumstances.20 The case is different where there is physical compulsion, such as where a person is pushed against a stranger and pleads involuntariness to a charge of assault. Here, there is no relevant actus reus. 6.9 The doctrine of necessity has an undoubted potential to weaken the criminal law by undermining its sanction. Not surprisingly, it is kept on a tight reign. It is of [page 171] little help to those engaged in unlawful activity to achieve political objectives such as disclosing official secrets;21 or opposing nuclear power;22 or promoting animal welfare23 or particular international alliances;24 or the use of cannabis for therapeutic purposes.25 Even the theft of food in the face of imminent starvation has been rejected in the recent past,26 although a modern magistrate might well find this contestable.

Necessity under the Criminal Codes and in Victoria 6.10 The Griffith Code provisions recognise a defence of sudden or extraordinary emergency as one of general application. Section 25 of the Criminal Code (Qld) provides:

Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise.

The provision is rarely invoked. One reason for the relative invisibility of the provision is that the emergency provision operates where the other defences referred to (compulsion, provocation, self-defence) do not.27 In this sense, as Professor O’Regan has noted, s 25 is in the nature of a residual defence.28 The defence has been used more recently, with limited success,29 least of all in relation to speeding.30 However, as noted elsewhere, appellate decisions give little indication of the frequency of use or success rates in the lower courts.31 [page 172] 6.11 An emergency doctrine is contained in s 10.3(2) of the Criminal Code 1995 (Cth) and its derivative codes.32 Section 10.3(2) is of general application and applies even to homicide.33 It provides a defence ‘only if ’ the person carrying out the conduct reasonably believes that: (1) circumstances of sudden or extraordinary emergency exist; and (2) committing the offence is the only reasonable way to deal with the emergency; and (3) the conduct is a reasonable response to the emergency. The West Australian emergency provision was revised in 2008 along similar lines to the Commonwealth provision. It has undoubtedly carried more traffic in recent years.34 It appears that an emergency under s 25 may be activated by a threat to property.35 This is consistent with the common law.36 In 2014, the common law defence of necessity was abolished in Victoria and replaced by a statutory provision similar to the Commonwealth provision: see Crimes Act 1958 (Vic) s 322S.

The elements of necessity

6.12 The cases suggest that the following elements are necessary for the defence of necessity to succeed. First, there must be a serious threat of imminent danger to the life or health of the defendant or his or her family, or property.37 Second, the circumstances must be such that there is no other means of avoiding the threat [page 173] than by breaking the law. Third, the violation of the law must be proportionate to the threat. Fourth, the accused must know of the circumstances of necessity. Finally, the circumstances must be such that a person of ordinary fortitude in the position of the accused would have responded in the manner of the accused. 6.13 One should not expect detached reflection or critical judgement in a crisis, and this rule should be applied sympathetically.38 In Perka v R (1985) 13 DLR (4th) 1, Dickson J said that:39 At a minimum, the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable.

6.14 In Rogers v R (1996) 86 A Crim R 542, the New South Wales Court of Criminal Appeal suggested that, since the High Court decision in Zecevic v DPP (Vic) (1987) 162 CLR 645 at 656–8; 25 A Crim R 163, it may be more appropriate to consider such elements:40 … not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person’s belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response.

6.15 In R v Loughnan [1981] VR 443, the Victorian Court of Criminal Appeal considered the range of threats to be a ‘matter of debate’.41 In the English Court of Appeal’s decision in R v Martin [1989] 1 All ER 652, where necessity was described as ‘duress of circumstances’,42 only ‘death or serious physical injury’ were said to be sufficient to support the defence. In the various Australian codes, there is no description of the types of threat that can be relied on, but there must be a ‘sudden or extraordinary emergency’,43 and the accused’s

response is measured against that of an ordinary person in the circumstances facing the accused. 6.16 The existence of an alternative course of action which does not involve a breach of the law will defeat a defence of emergency, for the breach of the criminal law must have been necessary. As noted by Dickson J in Perka, compliance with the law must be impossible:44 If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some consideration beyond the dictates of necessity and human instincts.

There are many case illustrations. In Aslan v R [2015] NSWDC 185, the appellant was charged with inflicting bodily harm in defence of property. He drove his car with V on the bonnet. V was at the time purporting to exercise a lien over the car for repair work that he had performed. The course of conduct was not a necessary response to V’s conduct. In B v R [2015] NSWCCA 103, D was charged under s 65Y of the Family Law Act 1975 (Cth) of taking her [page 174] three-year–old child out of Australia at a time when she knew that an interim parenting order of the Family Court of Australia was in force. The appellant argued on appeal that the trial judge erred in ruling that the appellant had failed to discharge the evidential burden in relation to the defence of ‘sudden or extraordinary emergency’ under s 10.3 of the Criminal Code (Cth). Ward JA dismissed the application at [74]: In my opinion, her Honour did not err in concluding that the evidence did not meet the evidential burden (slender as it is) of suggesting that there was a reasonable possibility that the necessary belief by Ms B (that the only reasonable alternative was to remove her child from the country and that this was a reasonable response to the emergency) was an objectively reasonable belief.

In R v B, JA [2007] SASC 323, D was charged with causing death by dangerous driving, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (SA). D and S were friends. They were driving down North East Road in separate cars taken without the consent of

the owners. The cars pulled alongside each other at variable speeds, sometimes exceeding the speed limit. S lost control of the car and the passenger was killed in the crash. D pleaded necessity in that he had no choice but to speed up to get away from S. The trial judge ruled that the defence of necessity was not open. An appeal to the Court of Appeal was dismissed. There was no scope for necessity on the facts. Either necessity was not related to the actus reus of driving dangerously (in that it was not the act of speeding up relied upon as the dangerous act but the act of driving in close contact with the other car) or there were alternatives open to D, such as turning down a side street. In Osborne v Dent; Ex parte John Dent ((CA(Qld), No 30/1981, unreported), the defendant was charged with driving without a licence and claimed that he was rushing his sick son to hospital; the defence failed because of the existence of alternatives open to the defendant, such as getting his wife to drive or getting local medical assistance. 6.17 Any deviation from lawful behaviour must be for the minimum period possible. In R v Jones [1990] RTR 33, the defendant was attacked and took refuge in his car. He then drove home with an excess blood alcohol reading. His defence failed because he did not check whether he was being followed, and therefore could not say that he believed the emergency was ongoing. 6.18 The acts done to avoid imminent peril must not be out of proportion to the peril to be avoided.45 By parallel reasoning with selfdefence it is submitted that proportionality is but an element to be considered in determining whether the accused acted out of necessity.46 It is, however, suggested that although property damage may easily be justified to save human life, the opposite is not the case; in other words, the protection of property could rarely, if ever, give rise to a defence where the cost of protection is someone’s life.47 6.19 The accused must perceive the circumstances of necessity, and honestly believe on reasonable grounds that a situation of great peril has arisen. If the

[page 175] accused was ignorant of circumstances of necessity at the time the offence was committed, those circumstances cannot be relied upon. In Limbo v Little (1989) 98 FLR 421; 45 A Crim R 61; Martin J stated:48 I do not consider it is relevant or permissible to attempt to prove facts which were not evident to the offender at the time of the offence.

The objective element 6.20 The accused’s response is objectively assessed. In R v Loughnan [1981] VR 443, it was said that the question was whether ‘a reasonable man in the position of the accused [would] have considered that he had any alternative to doing what he did to avoid the peril’.49 In R v Martin [1989] 1 All ER 652 at 654, the English Court of Appeal referred to a sober person of reasonable firmness. As to whether the correct test is whether an ordinary person ‘would’ or ‘could’ have responded to the threat as did the accused (a question answered for provocation in favour of ‘could’), it has been suggested that in the context of duress the appropriate test is ‘would’, although this does not apply to the Griffith Code.50 6.21 In Bayley v The Police (2007) 99 SASR 413, the accused was charged with driving in a manner dangerous to the public and driving without due care. He raised necessity as a successful defence to both charges. He claimed to be reacting to threats of personal violence and that he was pursued by the occupants of the other car. On appeal, David J upheld a Crown appeal against dismissal of the charge of driving in a manner dangerous: see Police v Bayley [2007] SASC 49; (2007) 96 SASR 555. On further appeal, the Court of Appeal reinstated both convictions and remitted the matter for sentence: [2007] SASC 411; (2007) 99 SASR 413; 178 A Crim R 202. Gray J provided ((2007) 99 SASR 413 at 427) a useful summary of the principles governing necessity (footnotes omitted): •

The issues raised by the defence of necessity are whether an accused believed on

•

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reasonable grounds that commission of the crime charged was necessary in all the circumstances in order to remove a threat of death or serious injury to himself or another. Accordingly, there are subjective and objective considerations. A defence of necessity can only succeed if it is reasonably possible that an accused believed on reasonable grounds that there was a threat of death or serious injury to himself or another, and that the commission of the offence with which he was charged was necessary in order to remove the threat. Further, objectively viewed, there must have been no reasonable alternative course of action open to the accused. Assuming there was an imminent peril, a defendant must have honestly believed on reasonable grounds that it was necessary for him to do the acts which are alleged to constitute the offence in order to avoid the threatened peril. That test will, as a matter of fact, not be met if it is proved that the conduct was disproportionate to the threat. A response is not proportionate to the threat if there are reasonable grounds for believing there were alternative courses of action available. The prison escape cases make clear that each aspect of the criminal conduct must be addressed. That is, even if certain criminal conduct were necessary, the remainder may not be. That is so because such actions may not be either proportionate or reasonable. [page 176]

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The response must be proportionate to the danger and cannot go further. If alternatives are reasonably available, the offending is not proportionate and therefore not reasonably necessary. The threat must be imminent and operative. An accused must be afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law, or involved some lesser breach of the law. Reasonableness and proportionality has to be assessed objectively. The existence of any possible alternative courses of action is of central factual importance. The event justifying the conduct must be imminent and operational. If the threat abates there can be no emergency, nor can an action in response be said to be reasonable or proportionate. This is an obvious limiting factual consideration on the ‘reasonable necessity’ element. The defence may only be expected to arise on rare occasions.

6.22 In Perka v R (1985) 13 DLR (4th) 1, Dickson J held that the legality of the accused’s conduct was relevant to the defence of necessity. While illegal conduct would not necessarily defeat the defence, the defendant’s fault in bringing about the situation was relevant. His Honour stated:51 If the necessitous situation was clearly foreseeable to a reasonable observer, if the accused contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law, then I doubt whether what confronted the accused was in the relevant sense an emergency.

Statutory provisions and necessity 6.23 The question whether necessity is available as a defence to a statutory offence is essentially a matter of statutory construction. The statute may expressly recognise necessity as a basis for exculpation. So, for example, necessity may excuse: a trespass on restricted Aboriginal land (see Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 70); a failure to comply with a maritime direction (Navigation Act 2012 s 247(2); the exercise of force to maintain good order and discipline on a ship or aircraft (Criminal Code 1913 (WA) s 258); or authorise the taking of measures against an aircraft, including its possible destruction (Defence Act 1903 (Cth) s 51ST(2)(f)). 6.24 Necessity may also be available as a defence even where the statutory prohibition is silent on the issue. The availability of necessity may be derived from the existence of particular words in the statutory provisions, such as ‘unlawfully’,52 ‘dishonestly’ or ‘without lawful excuse’.53 Such words may be construed to allow consideration of necessity.54 In abortion cases, the availability of necessity as a [page 177] defence has been derived from the term ‘unlawfully’.55 In R v Davidson [1969] VR 667, Menhennit J said:56 [T]o establish that the use of an instrument with intent to procure a miscarriage was unlawful, the Crown must establish either (a) that the accused did not honestly believe on reasonable grounds that the act done by him was necessary to preserve the woman from a serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail; or (b) that the accused did not honestly believe on reasonable grounds that the act done by him was in the circumstances proportionate57 to the need to preserve the woman from serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail.

6.25 Where property is destroyed in order to prevent a greater catastrophe, necessity may be pleaded as a defence to ‘unlawful’,

‘dishonest’ or ‘malicious’ damage to property. This would be obvious in a case involving destruction to property where the accused was responding to a fire hazard.58 Even a description such as ‘dangerous’ in the context of dangerous driving may lend itself to this sort of analysis. The fact that a person was driving at high speed under circumstances of necessity may affect whether such driving is to be regarded as ‘dangerous’.59 Where the statute prohibits conduct ‘without lawful excuse’, considerations of necessity may be relevant. 6.26 The third situation is where the relevant statute does not contain specific words that import the doctrine of necessity, but the circumstances suggest that the legislation was not intended to operate in the specific circumstances of necessity involved in the case. In other words, necessity is derived from the legislative intent. In R v Loughnan [1981] VR 443, the relevant statutory provision did not contain any relevant words to which a defence of necessity might be anchored.60 Crockett J said that it was ‘probably correct’ to say that all statutes creating statutory offences are to be construed as being subject to the common law doctrine of necessity, and that the long history of grafting common law concepts onto statutory offences allowed ample precedent for an interpretation of the relevant offence which required that the commission of the offence be without justification or excuse such as would be afforded by necessity.61 [page 178]

Driving offences 6.27 Necessity may be available as a defence to a driving offence such as driving at excessive speed;62 driving without due care;63 driving in a dangerous manner;64 reckless driving;65 or causing death by dangerous driving.66 In most but not all cases, the plea failed because there were lawful alternatives open to the defendant so as to escape the emergency.

Escape from custody 6.28 Although the courts have recognised in principle the availability of necessity on a charge of escaping from lawful custody, the plea has met with little success in practice. In R v Dawson [1978] VR 536, the accused claimed that he feared for his life as a result of threats made against him in prison. Necessity was raised unsuccessfully on the facts, and the appeal judges gave scant support for the defence of necessity. The court doubted the existence of a general defence of necessity, noting that it was ‘more vague and elusive’ than duress.67 In R v Loughnan [1981] VR 443, the court confirmed that necessity was an available defence to escaping from custody68 but, again, necessity failed on the facts. The availability of necessity was not defeated because the relevant section did not explicitly attach the word ‘unlawfully’ to the word ‘escaped’.69 The court noted that the availability of specific defences or the absence of mens rea was not [page 179] conditional upon the presence of the word ‘unlawfully’ or some word of similar effect.70 Crockett J specified the following conditions for necessity:71 (1) The harm to be justified must have been committed under pressure either of physical forces or exerted by some human agency so that ‘an urgent situation of imminent peril’ has been created. (2) The accused must have acted with the intention of avoiding greater harm or so as to have made possible ‘the preservation of at least an equal value’. (3) There was open to the accused no alternative, other than that adopted by him, to avoid the greater harm, or ‘to conserve the value’.

6.29 In Rogers v R (1996) 86 A Crim R 542, the New South Wales Court of Criminal Appeal also rejected, on the facts, a defence of necessity to a charge of attempting to escape from lawful custody. The court stated:72 [I]f the appellant acted as he did, honestly believing, on reasonable grounds, that escape from prison was necessary in order to avoid threatened death or serious injury, then his conduct would be excused.

In such cases, the escapee is obliged to report to the authorities once the threat has passed; and, in assessing the reasonableness of an escape, the availability of alternative means of avoiding the threat is critically important.73 6.30 In Mattar v R [2012] NSWCCA 98, a defence of necessity also failed on the facts. The defendant was charged with escaping lawful custody contrary to s 310D(a) of the Crimes Act 1900 (NSW). He was fearful for his safety but had declined protection or a transfer to another prison. He escaped from hospital and raised necessity as a defence. His appeal was dismissed. There was no substantial miscarriage of justice despite the trial judge’s failure to address issues relating to the criminal standard of proof. Harrison J stated:74 The common law defence or excuse of necessity operates in circumstances that bear upon an accused person in such a way as to induce him or her to offend in order to avoid even more dire consequences … The three elements of the defence are: 1. that the criminal act was done in order to avoid the infliction of irreparable evil on the accused, or others that he or she was bound to protect; 2. that the accused honestly believed on reasonable grounds that he or she was placed in a situation of imminent peril; and 3. that the acts performed to avoid that peril were not disproportionate to the peril to be avoided: R v Loughnan [1981] VicRp 43; [1981] VR 443 at [448]; R v Rogers (1996) 86 A Crim R 542.

6.31 In R v Rodger [1998] 1 Cr App R 143, a defence of necessity failed in the context of escaping from custody where the evidential basis was that the [page 180] defendants had become depressed and suicidal following an increase in their sentences. Sir Patrick Russell stated:75 [A]ll these authorities had one feature in common which is not present in the instant appeals. The feature which was causative of the defendants committing the offence was in all the authorities extraneous to the offender himself. In contrast, in these appeals it was solely the suicidal tendencies, the thought processes and the emotions of the offenders themselves which operated as duress. That factor introduced an entirely subjective element not present in the authorities.

Necessity and homicide 6.32 The common law has until recently firmly rejected the suggestion that necessity may be pleaded as a defence to murder. The most recent decision of the Supreme Court (UK) is that necessity is not a defence on a charge of assisted suicide and any decision to make necessity a defence to a charge of murder will need to come from parliament.76 In R v Japaljarri (2002) 134 A Crim R 261 at 270–1 Eames J noted that it is unlikely that necessity would be regarded a defence to murder at common law. 6.33 The famous 1884 decision by five judges of the Queen’s Bench Division in R v Dudley and Stephens (1884) 14 QBD 273 was taken to settle the matter. Deliberate taking of human life could not be justified even in circumstances of extreme necessity. Dudley, Stephens, Brooks and an 18-year-old named Parker were shipwrecked and adrift in a liferaft some 1000 miles from land. After days at sea without food and water, Dudley and Stephens agreed to kill Parker and eat his flesh. Brooks took no part. The three adults survived.77 Dudley and Stephens admitted what they had done and were duly charged with murder. The jury found a special verdict and the matter was removed to the Court of Queen’s Bench. Lord Coleridge CJ said:78 There remains to be considered the real question in the case — whether killing under the circumstances set forth in the verdict be or be not murder. The contention that it could be anything else was, to the minds of us all, both new and strange, and we stopped the Attorney-General in his negative argument in order that we might hear what could be said in support of a proposition which appeared to us at once dangerous, immoral and opposed to all legal principle and analogy.

6.34 After an extensive review, the court rejected necessity as a defence to murder. Lord Coleridge said that ‘such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime’.79 [page 181]

6.35 The relevance of necessity in relation to homicide was the subject of considerable argument in the sad case of Re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254; [2001] 2 WLR 480. In this case, the English Court of Appeal confronted a moral dilemma involving the separation of conjoined twins. The parents opposed the medical separation procedure for religious and practical reasons. The twins were joined at the lower abdomen. The procedure would certainly kill one child and the other was likely to survive although with severe disabilities. The hospital sought a declaration that the operation was lawful. The court allowed the operation to proceed, although the judges decided on different grounds. Brooke LJ thought that necessity was relevant to the facts and that R v Dudley and Stephens could be distinguished. Mary’s life would be short-lived no matter what, while Jodie was imperilled only by her ongoing physical connection with Mary. Once separated from Mary, Jodie had the potential for a full and healthy life. His Lordship thought that according to modern principles of family law, the interests of Mary were subordinate to those of Jodie. Although the operation would result in the immediate death of Mary, it was not culpable in these circumstances to shorten Mary’s life to save Jodie’s. His Lordship noted that, according to the writings of Sir James Stephen, there were three requirements for the successful application of the doctrine of necessity and, in this case, those requirements were met, namely:80 (i)

The act is needed to avoid inevitable and irreparable evil; (ii) no more should be done than is reasonably necessary for the purpose to be achieved; (iii) the evil inflicted must not be disproportionate to the evil avoided.

The principles of family law pointed to the conclusion that the interests of the stronger child outweighed the weaker, for she was ‘selfdesignated for a very short life span’ and therefore the requirements were satisfied. Robert Walker LJ also considered that necessity should be extended to the facts of this case, and did not think it was a step down the ‘slippery slope’.81 Ward LJ did not rely explicitly on necessity. By reference to settled family law principles which elevate the best interests of the child, he considered that the operation should proceed, it being in the best interests of the twins to give a chance of life to the

stronger of the two. In his view:82 If a family at the gates of a concentration camp were told they might free one of their children but if no choice were made both would die, compassionate parents with equal love for their twins would elect to save the stronger and see the weak one destined for death pass through the gates.

His Lordship concluded that the operation was not unlawful and therefore he did not need to rely on necessity. The conduct of the medical staff in choosing the lesser of two evils (allowing only one twin rather than both to die) was not unlawful, and therefore no unlawful act would be committed.83 6.36 The defence of necessity is readily applicable in some other situations involving the taking of life; for example: • shooting down an aircraft doomed to crash in a built-up area; [page 182] • •

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displacing a person from a single parachute or a liferaft; giving up one of two children for certain death when faced with the cruellest choice of all — ‘Sophie’s choice’ — where the concentration camp guard allows a loving parent to keep only one of two children; sealing off a burning compartment of a ship in order to save the vessel and the crew, thereby trapping those in the burning compartment.

6.37 It may be possible to place these cases in distinguishable categories, but each has a strong moral claim to protection by reason of necessity. One important idea underlying the analysis in Re A is that of a person being ‘marked for death’. In some scenarios it makes sense to talk of a person ‘marked for death’. For example, if two climbers are linked together and one falls over a precipice, and the first climber — lacking the strength to pull the second climber back up — is in danger of being pulled over the ledge, it would be folly to expect a pointless act of self-sacrifice from the first climber, who can avoid death by cutting the rope. It is better that one should survive than that both should die.

On the other hand, if the climber on the ledge could tie off the rope (say, to a boulder), then it might be argued that the act of cutting the rope (causing the resulting fall of the second climber) would amount to homicide, even if there was no conceivable way that the climber on the rope could get back up, and faced a terrible and slow death by exposure. The argument that this would amount to homicide is based on the notion that the act of cutting the rope accelerates the death of the climber on the rope. In such a case, cutting the rope is not required in order to save a specific person. It is rather intended to hasten the death of the fallen climber. The idea that a fallen climber must be left to dangle to death is not entirely satisfactory, but it finds a more common parallel in the ban on euthanasia. It is widely accepted that a terminally ill patient cannot be assisted to an early death, even if the patient is in chronic pain. Apart from providing palliative care — that is, treatment designed to alleviate pain rather than to accelerate death — nature must be left to take its course. 6.38 In some cases, a necessity defence may seem as appropriate even though the actual victims are not ‘marked for death’ or, at least, not specifically. For example, the captain of a sinking ship may have to select a lucky few from the desperate many to receive a place in a lifeboat. How far can he or she go to enforce the choice? Is it permissible to apply lethal force? What if the captain locks up those who challenge the selection, leaving them to sink along with the ship? The captain’s criminal responsibility will surely not depend on any crude utilitarian calculation as to the number saved and the number lost.84

Burden of proof 6.39 The legal burden is upon the prosecution to negate evidence of necessity that is properly raised on the evidence.85 [page 183]

Sentencing 6.40 There is ample authority for the proposition that a subjective belief in necessity falling short of a defence may be relevant to sentence: Police v Ludwig [2015] SASC 183.

Reforming the law 6.41 While necessity appears to be a powerful moral doctrine, underpinning other defences such as duress and self-defence, it has a somewhat tenuous existence at common law.86 One desirable reform would be to bring New South Wales, South Australia and Tasmania into line with the law of sudden emergency followed in the other jurisdictions, including the Commonwealth. 6.42 That it is a difficult plea to raise successfully even under the statutory formulations is not of itself a ground for concern. In most cases, the prosecution will be able to show that a lawful alternative was open to the accused, thus defeating a claim that it was objectively necessary to break the law. 6.43 In relation to homicide, there does appear to be some merit in distinguishing between necessity as a proportionate response to a crisis (where the net balance of harm averted is important), and necessity as a human response to extreme circumstances (where compassion or recognition of human weakness is the underlying rationale). Consideration might then be given to allowing excusatory necessity to reduce murder to manslaughter, while justificatory necessity would provide a complete defence. It may seem fair to mitigate the penalty of one who saves one at the expense of many (especially if the one saved is a family member), but one whose actions save more than the number lost may lay some claim to commendation rather than any condemnation.87

1.

Criminal Code 1995 (Cth) s 10.3; Criminal Code 2002 (ACT) s 41; Criminal Code (NT) s

2. 3.

4.

5.

6. 7. 8. 9. 10. 11. 12.

13.

14.

15.

16.

33 Criminal Code 1899 (Qld) s 25; Crimes Act 1958 (Vic) s 322R; Criminal Code 1913 (WA) s 25. The provisions refer to ‘sudden or extraordinary’ emergency except in the Northern Territory where s 33 refers to ‘sudden and extraordinary’ emergency. Section 8 of the Criminal Code 1924 (Tas) preserves common law defences, which would include necessity. R O’Regan, ‘The Defence of Sudden or Extraordinary Emergency in the Griffith Code’ (1985) 9 Criminal Law Journal 347; S Yeo, ‘Necessity under the Griffith Code and the Common Law’ (1991) 15 Criminal Law Journal 17; S Yeo, ‘Private Defence, Duress and Necessity’ (1991) 15 Criminal Law Journal 139. Griffith thought that his code ‘sums up nearly all the common law rules as to excuses for an act which is prima facie criminal’, and gave effect to the principle that ‘that no man is expected (for the purposes of the criminal law, at all events) to be wiser or better than all mankind’. See Griffith Criminal Code, Queensland Parliamentary Papers, CA 89-1897, 13, p 2197. See for example R v Willer (1986) 83 Cr App R 225, where the 19-year-old driver drove his car slowly on the pavement to get away from a violent gang of youths directing their anger at him and his passengers. The Court of Appeal considered this to give rise to duress rather than necessity. The court expressed surprise that the matter had come before the court at all. This was indeed an unmeritorious prosecution. Commentaries on the Laws of England, Book 4, Ch II, p 22. Blackstone, above n 6, Book 4, Ch XIV, p 140. Blackstone, above n 6, Book 4, Ch XIV, p 140. E H East, Pleas of the Crown, 1803 ed, vol 2, Professional Books, London, 1972, pp 698– 9. Indeed, the position with regard to homicide is still unsettled: see R v Japaljarri (formerly known as Hocking) [2002] VSCA 154 at [48] per Eames JA. See also 6.33. Bournewood Community and Mental Health Trust; Ex parte L [1999] 1 AC 458 at 490 per Lord Goff; also Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 74–8. See also K v Minister for Youth and Community Services [1982] 1 NSWLR 311; Airedale NHS Trust v Bland [1993] AC 789 at 892 per Lord Mustill; Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR 480); Queensland v Alyssa Grace Nolan and Bethany Rose Nolan (2001) 122 A Crim R 517. As to the legal basis for therapeutic abortions, see R v Davidson [1969] VR 667 at 672 per Menhennett J. As to an abortion following rape, see R v Bourne [1939] 1 KB 687. See Re Appeal of White (1987) 9 NSWLR 427; 31 A Crim R 194, where necessity was permitted as a defence to speeding where the driver was attempting to get his gravely sick son to hospital. See also Woodward v Morgan (1990) 10 MVR 474, where the Supreme Court of Victoria recognised necessity as a possible defence to a breach of road traffic safety regulations; and see Larner v Dorrington (1993) 19 MVR 75, where the Criminal Code (WA) s 25 protected an overtaking manoeuvre involving excessive speed. R v Conway [1989] QB 290; R v Martin [1989] 1 All ER 652, where the defence is described as ‘duress of circumstances’; R v Backshall [1999] 1 Cr App R 35 (escaping from violent road rage incident). See also see Southwark London Borough Council v Williams [1971] 1 Ch 734 at 743 per Lord Denning. Compare R v Conway [1989] QB 290; [1988] 3 All ER 1025, followed in R v Martin [1989] 1 All ER 652. (1985) 13 DLR (4th) 1 at 14 per Dickson J (Charinard and Lamer JJ concurring).

17. (1985) 13 DLR (4th) 1 at 15–16 per Dickson J. This passage was quoted with approval by Lord Bingham in R v Hasan [2005] 2 AC 467 at 492. 18. (1985) 13 DLR (4th) 1 at 36 per Wilson J. See also R v Latimer [2001] 1 SCR 3. 19. In R v Ruzic [2001] 1 SCR 687, the Supreme Court of Canada held that the statutory restriction in s 17 of the Criminal Code limiting the defence of duress to threats of ‘immediate death or bodily harm’ was in breach of a principle of fundamental justice protected by the Canadian Charter of Rights and Freedoms. A person was only criminally responsible for voluntary conduct — that is, ‘behaviour that is the product of a free will and controlled body, unhindered by external constraints’. 20. See the distinction drawn by Brooke LJ in Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR 480 at 569. 21. R v Shayler [2002] UKHL 11; [2003] 1 AC 247 (HL(E)) (official secrets, necessity, disclosure). 22. Dixon-Jenkins v R (1985) 14 A Crim R 372 (threatening to damage property, persons, and public nuisance). 23. Henshaw v Mark (1997) 140 FLR 438; [1997] ACTSC 64; special leave to appeal to High Court dismissed: see Mark v Henshaw C6/1998 [1999] HCATrans 100 (trespass without reasonable excuse). 24. Limbo v Little (1989) 65 NTR 19 (trespass without lawful excuse). 25. R v Quayle; Attorney General’s Reference (No 2 of 2004) [2006] 1 All ER 988; (2005) EWCA Crim 1415. 26. Southwark London Borough Council v Williams [1971] Ch 734 at 743, 746. 27. R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274; R v Hawton [2009] QCA 248. 28. R O’Regan, New Essays on the Australian Criminal Codes: Law Book Co, Sydney, 1988, Ch 4. 29. Unmeritorious claims were made in R v Bishop [2010] QCA 375; R v Carney [2009] QCA 133; and R v Hunt [2009] QCA 397. The defence also failed in the following cases: Mbuzi v Torcetti [2008] QCA 231, where the defendant was charged with making an illegal Uturn under threats from drunk passengers; and R v BBD [2007] 1 Qd R 478, where a woman left her seven- and nine-year-old grandchildren unsupervised during a visit to the lavatory. The seven-year-old was injured in an accident involving a forklift: see Ch 2, n 55. 30. Dawson v Commissioner of Police [2015] QDC 295; McNamara v Queensland Police Service [2015] QCA 99; R v Gardner [2012] QSC 73; Pershouse v Queensland Police Service [2013] QCA 296 (dicta suggesting ‘tailgating’ was not an emergency or reason for exceeding the speed limit). 31. In R v Sheldon [2014] QCA 328, the Court of Appeal allowed an appeal where the trial judge failed to direct the jury correctly on emergency on a charge of dangerous driving causing death: see also R v Warner [1980] Qd R 207; 1 A Crim R 18. 32. Criminal Code (ACT) s 41; Criminal Code (NT) s 33. Under s 33 of the Criminal Code (NT), the emergency must be both sudden and extraordinary. See Ahmadi v R [2011] WASCA 237 in relation to the trial of certain offences of ‘people smuggling’ in the period shortly before the commencement of s 10.3(2). For application of the Commonwealth emergency provision see also Morris v R [2006] WASCA 142; Nguyen v R [2005] WASCA 22; B v R [2015] NSWCCA 103. 33. The plenitude of the Commonwealth provision contrasts with the common law which exempts some serious offences, notably murder. In R v Japaljarri (2002) 134 A Crim R 261

34.

35.

36.

37.

38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52.

53.

at 270–1 Eames J noted that it is unlikely that necessity is a defence to murder at common law. See Ajayi v R [2012] WASCA 126. See Johnson v Western Australia [2009] WASCA 71 where a conviction was set aside due to misdirection on emergency. However, a review of appellate cases reveals numerous unsuccessful pleas: see, for example, Petersen v Western Australia [2016] WASCA 66; Oubid v f Western Australia [2013] WASCA 79; Floyd v Western Australia [2013] WASCA 33; Warnakulasuriya v R [2012] WASCA 10; Smith v Western Australia [2010] WASCA 205; Nairn v Verkerk [2000] WASCA 372. In Dunjey v Cross (2002) 36 MVR 170; [2002] WASCA 14 a plea of emergency failed on the facts in relation to reckless driving; although the court was prepared to allow the defence in relation to an emergency relating to a domestic pet, namely a dog. See also Dudley v Ballantyne [1998] WASCA 198; (1998) 28 MVR 209 at 213 per Owen J. See Cope v Sharpe (No 2) [1912] 1 KB 496 (a mayor orders the digging of moats over private land to stem a rising tide or the destruction of property to prevent the spread of fire); Reniger v Fogossa (1551) 1 Plowden l; 75 ER 1 (jettisoning cargo to save a foundering vessel); Mouse’s Case (1609) 12 Co Rep 63; 77 ER 1341. As to the availability of s 25 in relation to saving horses, see McHenry v Stewart (SC(WA), (Full Court), No 140/1976, 14 December 1976; BC7600018, unreported) referred to in Dudley v Ballantyne (1998) 28 MVR 209 at 213. See also Dunjey v Cross [2002] WASCA 14. See Strudwick v Russell (1989) 9 MVR 15. (1985) 13 DLR (4th) 1 at 16. (1996) 86 A Crim R 542 at 546. [1981] VR 443 at 448. See R v Willer (1986) 83 Cr App R 225. The Criminal Code (NT) refers uniquely to a sudden and extraordinary emergency: s 33. (1985) 13 DLR (4th) 1 at 16–17. R v Loughnan [1981] VR 443 at 449; Re Appeal of White (1987) 9 NSWLR 427; 31 A Crim R 194 at 198. See Chapter 10, ‘Defensive Force’. See also S Yeo, ‘Proportionality in Criminal Cases’ (1988) 12 Criminal Law Journal 211. See Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 at 228 per Lord Devlin. (1989) 98 FLR 421 at 449; 45 A Crim R 61 at 88. [1981] VR 443 at 448. For a similar statement, see R v Conway [1989] QB 290 at 298; [1998] 3 All ER 1025 at 1030. R v Abusafiah (1991) 24 NSWLR 531 at 541; 56 A Crim R 424 at 434. For Griffith Code s 25, see 6.10. (1985) 13 DLR (4th) 1 at 20. Provisions such as those relating to abortion that prohibit the ‘unlawful’ use of an instrument should be distinguished from provisions which provide that it will be an offence if the act is done or a particular specified article or thing is in possession ‘without lawful authority or excuse’. In the latter case, the onus may be thrown on to the defendant to show ‘lawful authority’: see, for example, Crimes Act 1900 (NSW) s 417. See Henshaw v Mark (1997) 140 FLR 438; (1997) 95 A Crim R 115, where animal rights activists invaded a battery hen farm. Drawing attention to the cruel plight of battery hens and advancing the cause against such farming was not a ‘reasonable excuse’ for violating

54. 55.

56. 57. 58.

59. 60.

61.

62.

63. 64.

65. 66. 67.

68. 69.

the farmer’s property rights. See E Y Exshaw, ‘Some Illustrations of the Application and Meaning of “Unlawful” in Criminal Law’ [1959] Criminal Law Review 503. R v Bourne [1939] 1 KB 687. See the comments by Brooke LJ in Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR 480 at 564; Perka v R (1985) 13 DLR (4th ed) 1 at 14 per Dickson J. [1969] VR 667 at 672. ‘Proportionate’ may relate to the stage of the woman’s pregnancy. However, in most jurisdictions, there is specific legislation dealing with fire emergencies: see, for example, Fire and Emergency Services Act 1990 (Qld) s 68; Fire and Emergency Services Act 2005 (SA); Metropolitan Fire Brigade Act 1958 (Vic) s 32B(3). R v Warner [1980] Qd R 207; 1 A Crim R 18; Hughes v Police [2009] SASC 57. Community Welfare Services Act 1970 (Vic) s 132(1). ‘Every prisoner who escapes or attempts to escape — (a) from a prison or a police gaol; or (b) from the custody of a member of the police force or a prison officer in whose legal custody he is or is deemed to be — shall be guilty of an indictable offence. Penalty: Imprisonment for five years.’ [1981] VR 443 at 458. Inferring the availability of necessity from the statutory context may point in either direction. For example, in R v S [2012] EWCA Crim 389; [2012] 1 WLR 3081; [2012] 1 Cr App R 31, the Court of Appeal held that the legislative scheme for the protection of children and the enforcement of care orders did not permit the defence of necessity to be raised as a defence to taking a child out of the jurisdiction where the mother suspected sexual abuse by the custodial father. Likewise, in Hampshire County Council v E [2007] EWHC 2584 (Admin), the Queen’s Bench Division held that the defence of duress of circumstances or necessity was not available on the strict liability charge of failing to ensure a child’s regular attendance at school, even where the teenager was violent towards the defendant and her daughter. See also R v Quayle [2005] EWCA Crim 1415; [2005] 1 WLR 3642, where the Court of Appeal held that the possession or production of cannabis for pain management could not be justified by reference to a defence of necessity. White v R (1987) 9 NSWLR 427; 31 A Crim R 194 (rushing sick son to hospital, necessity allowed); Dawson v Commissioner of Police [2015] QDC 295; McNamara v Queensland Police Service [2015] QCA 99. Bayley v The Police [2007] SASC 411; Woodward v Morgan (1990) 10 MVR 474. Dunjey v Cross (2002) 36 MVR 170; [2002] WASCA 14 (failure to obey direction, dangerous driving); R v Warner [1980] Qd R 207; 1 A Crim R 18 (dangerous driving of a motor vehicle pursuant to s 328A of the Code). K v T [1983] 1 Qd R 396; R v Willer (1986) 83 Cr App R 225. R v B, JA [2007] SASC 323. [1978] VR 536 at 543. In R v Pommell [1995] 2 Cr App R 607, the appellant was convicted of unlawful possession of a machine gun and ammunition. He claimed that he had taken the gun away from a person who was intent on murdering another. The English Court of Appeal recognised the principle that non-compliance with the letter of the criminal law might be justified by the desire to avoid a greater evil, but noted that this had not led to a general defence of necessity in England. The court held that the recorder had erred in finding that any delay in returning the weapon to the police would automatically negate a defence of necessity. [1981] VR 443 at 457–8. Contrary to s 132 (1) of the Community Welfare Services Act 1970 (Vic); repealed by Community Services Act 2000 (Vic).

70. 71. 72. 73.

74. 75. 76.

77.

78. 79.

80. 81. 82. 83. 84. 85. 86. 87.

[1981] VR 443 at 450. [1981] VR 443 at 460. (1996) 86 A Crim R 542 at 547. In Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 ; (2004) 219 CLR 486, the High Court of Australia dismissed an appeal against an order setting aside witness summonses designed to elicit information about the conditions of detention at Woomera Detention Centre, a facility from which the applicant had absconded. The summonses were set aside because the information sought was not relevant to the lawfulness of detention under the Migration Act. The applicant had sought to argue that his detention was unlawful by reason of the detention conditions, rather than that necessity prompted the escape: Behrooz (2002) 84 SASR 453 at 472–3. [2012] NSWCCA 98 at [7]. [1998] 1 Cr App R 143 at 145. See R (on the application of Nicklinson and another) v Ministry of Justice; R (on the application of AM) v Director of Public Prosecutions [2015] AC 657; for High Court decision, see [2014] 3 WLR 200; for Court of Appeal decision, see [2014] 3 WLR 200. The case was by no means unique. It was not the first nor the last case of cannibalism for survival on the high seas. It did, however, become a cause célèbre when the pair were tried for murder. See A Simpson, Cannibalism and the Common Law, University of Chicago Press, Chicago, Illinois, 1984; S White, ‘Sailors, Savages and Civilisation’ (1986) 10 Criminal Law Journal 168. See also United States v Holmes 26 F. Cases 360 (No. 15, 383) (C.C.E.D.Pa. 1842), where passengers were thrown overboard to lighten a lifeboat. (1884) 14 QBD 273 at 281. (1884) 14 QBD 273 at 288. Similar reasoning underlies R v Howe [1987] AC 417; [1986] UKHL 4, where duress was dismissed as a defence to murder, whether by the principle in the first or second degree. Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR 480 at 572–3. [2001] 2 WLR 480 at 588. [2001] 2 WLR 480 at 529. [2001] 2 WLR 480 at 535–6. See the discussion in S Yeo, Compulsion in the Criminal Law, Law Book Co, Sydney, 1990, from p 157. R v Rogers (1996) 86 A Crim R 542; Taiapa v R (2009) 240 CLR 95; [2009] HCA 53 R v Loughnan [1981] VR 443; R v Rogers (1996) 86 A Crim R 542. S Yeo, ‘Duress and Necessity’, in W-C Chan, B Wright and S Yeo (eds), Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform, Routledge, UK, 2016, Ch 9, p 203; and see J C Smith, Justification and Excuse in the Criminal Law, Hamlyn Trust, London, UK, 1989, pp 77–8; M Bohlander, ‘Of Shipwrecked Sailors, Unborn Children, Conjoined Twins and Hijacked Airplanes — Taking Human Life and the Defence of Necessity’ (2006) 70 Journal of Criminal Law 147.

[page 185]

7 Impossibility Introduction 7.1 A claim that it was impossible to perform some duty or prohibition has all the signs of an excellent excuse. Any moral code that ignored fundamental human limitations or physical laws would properly be regarded as harsh and unduly punitive. An old poem from the second century BC said it thus:1 Here lie the bodies of Ho and Hi Whose fate though sad was risible, Being hanged because they could not spy Th’ eclipse which was invisible.

The fate of the poor court astronomers would seem to be a travesty by any just standard.2 If a person lacks the physical means to comply with a law, any resulting conviction will be tainted by injustice. The master of a vessel caught in the grip of a powerful tidal rip should surely be excused for entering harbour without appropriate papers, even while retaining some directional control over the ship.3 Likewise, if a person did not know and could not reasonably be expected to have known that a prohibition existed, he or she might well feel unjustly treated if convicted in breach thereof.4 Cases of physical impossibility are rarely entertained, thanks to the sound exercise of prosecutorial discretion and common sense.

[page 186] 7.2 But there are circumstances where impossibility is not a bar to a criminal conviction. For example, strict or absolute liability offences do not require proof of fault. A company charged with unlawful discharge of effluent into a river may point to unexpectedly heavy rains, earthquake or some such physical cause making compliance with the law impossible, but nevertheless be held responsible.5 A self- induced state of impossibility is unlikely to produce much sympathy, any more than would self-induced intoxication or self-induced provocation. And while physical impossibility may deflect moral culpability for failing to comply with the law, it is far less compelling when there is an attempt or agreement to break the law even if it proved impossible to do so under the circumstances. In this situation, the possibility or otherwise of committing the actual offence may be treated as morally and legally immaterial. 7.3 Some writers regard impossibility as a general defence.6 Impossibility is not mentioned as a specific ground for exemption from criminal responsibility under the criminal codes,7 and, in relation to inchoate offences, it is immaterial that it was impossible to commit the offence under the circumstances, although there are some important exceptions (see 7.18). And there are numerous statutory provisions where impossibility is provided for, either expressly or impliedly.

Express statutory provisions 7.4 Legislation may make special provision for impossibility in particular cases. To give two examples: in New South Wales, impossibility is expressly recognised as a defence to failing to comply with a direction to reduce the load on an overloaded vehicle.8 And, on a charge of taking an unseaworthy ship to sea from a New South Wales port, the captain is required to prove that leaving the port was necessary in order to prevent the ship from running aground, or that it was impossible to dock the ship in a seaworthy state, and that the crew

consented to his or her putting to sea.9 This old and now-repealed statutory provision is of interest because of the juxtaposition of concepts of necessity (see Chapter 6), impossibility and consent (see Chapter 5). 7.5 Conversely, a statutory provision may expressly exclude impossibility as a relevant factor. There are many examples. The criminal codes of Queensland and Western Australia provide that, in relation to the statutory offence of using electronic communication to procure a child aged under 16 years to engage in a sexual act, it does not matter that, by reason of circumstances not known to the adult, it is impossible in fact for the person to engage in sexual activity, or that [page 187] the person is a fictitious person represented to the adult as a real person.10 Under the Commonwealth Criminal Code a person may be convicted of using the postal or similar service to ‘groom’ or ‘procure’ a young person aged under 16 years to engage in sexual activity, even if ‘it is impossible’ for the sexual activity to take place.11 There are now several provisions under the code where a person may be convicted of some preliminary or inchoate offence even though committing the substantive offence may have been impossible under the circumstances.12 A new set of computer offences renders a person guilty of the offence even though it was impossible to commit the offence.13 In some jurisdictions, certain identity crime offences may be committed even if the commission of the indictable offence is impossible.14 7.6 The existence of words such as ‘unlawful’, ‘without reasonable excuse’ or ‘without lawful excuse’ in a statutory provision may provide a lynchpin for arguing impossibility. A person may have a lawful or reasonable excuse for omitting to perform some positive obligation if it was impossible to do so. And, in some cases, specific statutory words may have a similar effect to a doctrine of impossibility.15

Breach of duty 7.7 Where a person is prevented by circumstances from performing, actually or competently, a duty imposed by law, questions of impossibility may arise. In breach of duty cases, ‘impossibility’ is usually subsumed within the question of negligence. If a person, without fault, was unable physically to comply with the law, that conduct is not likely to be seen as negligent, let alone a breach of duty imposed by the criminal law. [page 188] 7.8 The absence of impossibility may form part of the definition of the crime itself. In the old English case of R v Brown (1841) C and M 314 at 318; 174 ER 522, on a charge of refusing to aid and assist a constable in the execution of his duty in quelling a riot, the court held that it was necessary for the prosecution to show, inter alia, that the ‘defendant was duly called upon to render his assistance, and that, without any physical impossibility or lawful excuse, he refused to give it’.16 In cases of failing to provide necessaries or to maintain a child, it may be necessary for the prosecution to prove that the accused had the means of providing support. In R v Mary Hogan (1851) 2 Den 277; 169 ER 504, an indictment that failed to aver this matter was held to be bad. In such cases, a duty lies on the prosecution to show beyond a reasonable doubt that there was no physical impossibility.17 In a modern society with social services and relatively inexpensive food this burden should be easily discharged, unless there is evidence of mental or physical disability or serious financial stress and hardship.18

Deferring the operation of the statutory provision 7.9 An obligation to perform a contractual promise may be frustrated by circumstances that prevent performance as required by the contract. It is suggested that impossibility may operate in the criminal law with

similar effect. In Finau v Department of Labour [1984] 2 NZLR 396, the appellant was charged under s 14(5) of the Immigration Act 1963 (NZ) for overstaying her temporary entry permit. Her defence was that it was physically impossible for her to leave New Zealand by commercial air service, because she was pregnant and the airline refused to uplift her. Her appeal against conviction was allowed. The question also arose whether an acquittal on the basis of impossibility would support a plea of autrefois acquit if she were freshly charged when it became possible for her to leave.19 Richardson J said that ‘the clock does not start running so long as the state of impossibility exists’.20 The effect is to read into the statutory offence limiting words such as ‘when possible’21 or, alternatively, to say that external circumstances of physical impossibility may suspend the operation of the statutory provision for the duration of the obstruction.22 7.10 It is not unreasonable that practical financial considerations enter into an assessment of impossibility. The decision in Finau implicitly acknowledges the relevance of financial factors. A wealthy person may have been able to charter a private aircraft or boat. A wealthy person who failed to exercise that option could hardly claim impossibility, unless physically incapacitated by an advanced state of pregnancy, for example. But while a person may be excused attendance at a meeting some thousands of miles away by reference to impossibility, affordable [page 189] transportation not being available, insufficient funds are unlikely to protect a person who fails to pay prescribed wages, or a person who fails to pay taxes. 7.11 It is perhaps not surprising that there is not much case law to support the notion that physical impossibility will operate in effect to suspend the operation of a statutory provision, perhaps because such cases are not often prosecuted. The issue may arise in other contexts.

For example, in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 219 CLR 664; [2004] HCA 38, the High Court held that an illegal migrant could be detained indefinitely, for life if necessary, under the Migration Act 1958 (Cth). A majority of the court did not accept the argument that words of temporal limitation under the relevant provisions of the Act provided a means of avoiding these draconian, tragic and inhuman consequences. The fact that it was ‘impossible’ for the defendant to be repatriated did not make his detention unlawful. He could be detained until such time as it was possible to repatriate him (no matter how long that took) or until he received the necessary visa.23

Choosing between conflicting obligations 7.12 A person may have to choose to break one law in order to avoid breaking another. In some cases, this will be the subject of statutory guidance.24 In other cases, a statutory obligation may conflict with a statutory prohibition, without either making reference to the other. To take a somewhat graphic example, under federal law it is an offence to fail to give information to a constable within a reasonable time concerning a known treason plot.25 If a person cannot make a disclosure except by committing what on its face is a criminal offence (eg, by breaching confidentiality protected by the criminal law), a defence of impossibility would, in the absence of some specific provision permitting disclosure under such circumstances, be justified. But to say that it was impossible to make disclosure without breaking the law is simply another way of saying that it was necessary to break the law in order to discharge a duty imposed by law. The question whether this sort of case, where there is a conflict between duties imposed by the criminal law, should be analysed in terms of necessity or impossibility has received little attention in the criminal law.26

The non-existence of subject matter

7.13 The non-existence of the subject matter in respect of which an obligation exists may make compliance with the law physically impossible. Whether it does or not is a matter of construing the relevant offence provision. In one old English case, the unanswerable defence to a charge of failing to repair a road was that the [page 190] sea had washed the road away.27 Similarly, on a charge of failing to attach to the annual return certain balance sheets duly certified by the general meeting, it was held that since no meetings had been held, and the document did not exist, the accused could not be convicted of failing to attach a non-existent document.28 7.14 By contrast, in Pilgram v Dean [1974] 2 All ER 751 the accused was charged with using a motor vehicle when no licence under the relevant Act was in force, and not fixing and exhibiting the licence issued under the Act. The accused was found guilty on the first offence. It was then argued that he could not be convicted on the second count, as he had no licence to exhibit. After examining the relevant legislation, the court held that conviction of the first count did not preclude conviction under the second. Furthermore, if the accused is responsible for failing to obtain a necessary document, a defence based on its nonexistence is unlikely to succeed. In Narrandera Pastures Protection Board v Coote (1961) 78 WN (NSW) 697; [1961] NSWR 318, the accused was charged that he did not on demand produce a permit as required by s 50 of the Pastures Protection Act 1934–57 (NSW). The reason he was unable to produce the certificate was that he had failed to secure it. The magistrate dismissed the information. A case was stated for the Supreme Court, which adopted a passage from Glanville Williams:29 Impossibility resulting from the accused’s own fault or from his ignorance of the prescriptions of the law is no excuse.

7.15

Where a document does exist but for some reason is not

available to the defendant, impossibility may be excluded even where its non-availability is attributable to a third person. In the English case of Davey v Towle [1973] RTR 328, the document in question (a motor vehicle test certificate) was in existence but not in the possession of the accused. The defendant was charged under s 162 of the Road Traffic Act 1972 (UK) with failing to produce a test certificate when required to do so. The car he was driving belonged to someone else. The owner promised to bring the certificate to the police station as required but failed to do so. The justices found that the defendant’s failure to produce the test certificate proceeded from impossibility, rather than from neglect or intent, and acquitted. On appeal, after due consideration, the matter was remitted to the justices with a direction to convict. The case suggests that it is not enough that it was difficult to conform to the law, or that the accused was not in a financial position to do so. It must be practically impossible to do so. Where a person has failed to take the steps necessary to enable compliance, a defence of impossibility arising from that specific inability is unlikely to succeed.30 7.16 The question whether an item capable of possession or its qualities or legal character was the subject of belief or knowledge by the accused may be relevant to a particular charge. A person charged with handling stolen goods may deny that he or she was aware that the goods were stolen.31 A person charged with possession of some object may deny knowledge of its existence or its relevant qualities (eg, whether it was a particular size or weight or had a particular legal [page 191] status). The extent to which it is necessary for the prosecution to prove the defendant was aware of the existence or specific qualities of the item will ordinarily depend on the proper construction of the relevant statutory provision.32 It is doubtful whether any universal rule governing the mental element required in possession is ascertainable; the mental element required may vary according to context. For example, the mental element relating to the offence of possession of child

pornography33 may well differ from the mental element associated with the offence of possessing a prohibited drug.34 7.17 In Tabe v R [2005] HCA 59; (2005) 225 CLR 418, the High Court considered the element of knowledge required in a case involving accessorial liability attempted possession.35 Neither the appellant nor his female accomplice ever had custody or control of the prohibited drug, although his accomplice did obtain possession of an empty envelope that was substituted for the envelope that contained the drugs by a post office employee acting on police instructions. The nonexistence of the drugs at the time of the arrest was not fatal to the charge of possession based on the attempt. The defence of impossibility was neither raised nor discussed. Nor should it have been because it was by no means impossible to obtain the drugs, and the appellant and his accomplice would have done so had the interception not taken place. The prosecution alleged that the appellant counselled or procured his female accomplice to attempt to obtain possession of a prohibited drug in excess of 2 grams contrary to s 9 of the Drugs Misuse Act 1986 (Qld). If so, each was guilty of the offence of possession by reason of the joint operation of s 7(1) of the Criminal Code and s 117(1) of the Drugs Misuse Act. The accomplice pleaded guilty to an offence of attempting to possess the drugs and, as such, was deemed under s 117(1) to be guilty of the offence of possession under s 9. The appellant was convicted of possession of a prohibited drug. The trial judge directed the jury that, in relation to the appellant, it must be shown that the accomplice attempted to commit the offence of possessing a dangerous drug; second, that the appellant did some act for the purpose of enabling her to commit that offence; and third, that the appellant knew she intended to attempt to obtain possession of the envelope and its contents. The critical aspect concerned the third element. Should the trial judge have informed the jury that it was necessary to prove that the accomplice was aware the envelope contained prohibited drugs? By majority, the court answered this in the negative and upheld the conviction. It was not necessary for the Crown to prove, as against the appellant, either that he or she knew that the envelope contained a prohibited drug; a belief on her part that it contained something would

suffice. Strong dissenting judgments were offered by McHugh and Hayne JJ. The case should be read subject to its particular facts. Absent the particular statutory and factual framework considered in Tabe, possession connotes awareness of the [page 192] thing possessed, although there might be a lack of precision as to its precise character and quality (eg, if I believe a shoe box to contain my shoes, it is an abuse of language to say that I possess any drugs found therein that have been put there by a third party).36

Inchoate liability and impossibility 7.18 This section considers the extent to which impossibility may serve as a potential defence where an accused is charged with an inchoate offence, such as attempt, conspiracy or incitement. Given the expanding use of preparatory and inchoate offences to deal with areas of social concern, such as drugs, terrorism, computer crime and child pornography, this issue is not without practical importance.37 According to the Law Commission, ‘the main justification for the retention of inchoate offences is the need to permit the law to impose criminal sanctions in certain cases where a crime has been contemplated but not in fact committed’.38 However, the focus upon criminal intent is evident in inchoate liability.39

Attempting the impossible 7.19 The automatic creation of a ‘shadow’ offence in the nature of an attempt for each substantive offence is an accepted feature of modern criminal law. This feature qualifies the notion that the boundaries of criminal conduct should be fixed and clearly defined. Attempts, by their nature, invariably consist of innocuous acts lacking any intrinsic

criminality. It is the intent with which those acts are performed that convert otherwise innocent acts into something punishable as a crime. The law of attempts is a potent weapon to deter criminal behaviour, with a great potential for overreach.40 It is therefore entirely appropriate to approach the topic with a degree of caution. 7.20 In all Australian jurisdictions, a person who engages in conduct intending thereby to commit an offence is liable to conviction for a distinct offence of [page 193] attempt, provided the conduct engaged in is sufficiently proximate to the offence intended.41 In Australia there is little if any practical difference between the code and common law jurisdictions in relation to attempts. In New South Wales and South Australia, the law of attempts is governed by the common law.42 There are discrete statutory provisions in Victoria and under the criminal codes, including specific provisions on impossibility.43 It is submitted that there is no relevant difference between the common law and the various code and statutory formulations of the defence of so-called factual impossibility.44

Distinguishing various categories of impossibility 7.21 For many decades the law governing impossibility and attempts has been in a state of some uncertainty. Until recently, it was generally understood that if an attempt to commit an offence failed simply because the means used by the defendant were not adequate, then he or she could be convicted of attempt to commit that offence. But if the crime aimed at could not be committed regardless of the means adopted, then it was thought that a person could not be convicted of the attempt. This distinction between inadequate means and factual impossibility

[page 194] seems plausible on the face of it, but dissolves under close scrutiny.45 In short, it was seen to lack any moral basis or policy foundation.46 7.22 It is tentatively suggested that the current position in Australia is that factual impossibility, whether caused by insufficiency of means or absolute factual impossibility, is not a defence to a charge of attempt. There is no relevant distinction between trying to kill someone by sticking pins in a voodoo doll or by putting an inadequate dose of a known poison into his or her coffee. The specific acts and causal affinity with the offence intended would, however, be relevant to proximity.47 In a case such as sorcery or voodoo, it is difficult to imagine that such conduct could be regarded as sufficiently proximate. The key elements in attempts relate to concepts of intentionality and proximity. 7.23 There is another kind of impossibility that has had a curious hold over the judicial mind, which was described by a verbal formula articulated by Birkett J in an English case:48 [S]teps on the way to the doing of something, which is thereafter done, and which is no crime, cannot be regarded as attempts to commit a crime.

The verbal formula was seen as marking out a distinct category of impossibility, separate from factual impossibility. It was a potent formula. It was seen as requiring the acquittal of a person attempting to handle stolen goods if, by reason of the operation of a rule of law, the goods were not regarded as stolen at the time of handling. This was the holding of the celebrated decision of the House of Lords in Haughton v Smith [1975] AC 476. Lord Hailsham held that s 24(3) of the Theft Act 1968 (UK) implied that it was an element of the offence of handling stolen goods that the goods were in fact stolen goods at the moment of handling. If so, one was forced to the conclusion that there could not be a conviction for attempted handling based on the very same act of handling.49 His Lordship said: In my view, it is plain that, in order to constitute the offence of handling, the goods specified in the particulars of the offence must not only be believed to be stolen, but actually continue to be stolen goods at the moment of handling. Once this is accepted as

the true construction of the section, I do not think that it is possible to convert a completed act of handling, which is not itself criminal because it was not the handling of stolen goods, into a criminal act by the simple device of alleging that it was an attempt to handle stolen goods on the ground that at the time of handling the accused

[page 195] falsely believed them still to be stolen. In my opinion, this would be for the courts to manufacture a new criminal offence not authorised by the legislature.

7.24 The Criminal Attempts Act 1981 (UK) was passed in England to reverse the decision in Haughton v Smith. The Act stated expressly that a person may be guilty of attempting to commit an offence even though the facts are such that the commission of the offence is impossible. The legislation seemingly adopted a fully subjective approach, emphasising the intention of the accused rather than the objective fault element. However, in Anderton v Ryan [1985] AC 560, the House of Lords held that, under the new provisions, a person who received stolen goods (in that case, a cheap video recorder) believing them to be stolen would not be guilty of an attempt unless the prosecution could prove that the goods were stolen.50 The decision was greeted with dismay bordering on derision and was speedily reversed by the House of Lords in R v Shivpuri [1987] AC 1; [1986] 2 All ER 334. In that case, the accused imported a harmless substance into England, believing it was heroin. He was convicted of attempting to be knowingly concerned in harbouring and dealing with prohibited drugs. Lord Bridge gave the leading judgment. His Lordship could find no basis for distinguishing Anderton v Ryan and took the highly unusual step of invoking the 1966 Practice Statement to overrule the decision. The conviction was duly upheld.51 7.25 It is safe to say that Haughton v Smith is no longer regarded as good law in Australia. It has been considered and rejected in New South Wales,52 South Australia;53 Victoria54 and Western Australia.55 The steps formula (see 7.23) is generally seen as leading to absurd results. The modern assessment is to say that the notion that the act, if completed, would not — on the objective facts — constitute the completed offence and that therefore a person cannot be convicted of

the attempt simply fails to give sufficient effect to the nature of attempts and, specifically, to the criminal intent involved in the attempt. [page 196] 7.26 In Britten v Alpogut [1987] VR 929; 23 A Crim R 254, the accused was charged with an offence of attempting to import a prohibited substance under s 233B(1)(b) of the Customs Act 1901 (Cth). The accused brought in procaine (a non-prohibited substance), thinking it was cannabis. Murphy J held that Haughton v Smith did not reflect the common law of Victoria. His Honour stated that, in attempts, the emphasis lies on the criminal intent in the actor rather than the patent criminality of the act. He concluded:56 [A]t Common Law a criminal attempt is committed if it is proven that the accused had at all material times the guilty intent to commit a recognised crime and it is proven that at the same time he did an act or acts (which in appropriate circumstances would include omissions) which are seen to be sufficiently proximate to the commission of the said crime and are not seen to be merely preparatory to it. The ‘objective innocence’ or otherwise of those acts is irrelevant.

The court traced the foundation of the principle relating to attempts to the statement of Lord Mansfield, in R v Schofield (1784) Cald Cas 397, that: So long as an act rests in bare intention it is not punished by our laws, but immediately when an act is done, the law judges, not only of the act done, but of the intent with which it is done, and if it is coupled with an unlawful and malicious intent, though the act would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable.

Schofield was concerned with the question of whether attempting a misdemeanour was itself a misdemeanour. R v Schofield was approved in R v Higgins (1801) 2 East 5; 102 ER 269, where soliciting an employee to steal from his master was held to be punishable on indictment as a misdemeanour. 7.27 In R v Lee (1990) 1 WAR 411; 47 A Crim R 187, customs officers intercepted a parcel addressed to one ‘Mr Lim’ that contained a wooden clock containing a significant amount of heroin. Customs

removed all but a small amount that was mixed with glucodin to make up the approximate weight. The parcel was then delivered. The three defendants were charged with attempting to obtain the total amount of heroin originally imported into Australia. The West Australian Court of Appeal upheld the conviction. Malcolm CJ indicated that Britten v Alpogutt ought to be followed in preference to Haughton v Smith.57 7.28 In R v Irwin [2006] SASC 90; (2006) 94 SASR 480, the accused appealed unsuccessfully against conviction on a charge of attempted aggravated robbery. It was a point of contestation at the trial whether there was any money to be taken, and the trial judge directed the jury that it did not matter. [page 197] On appeal, this was argued to be a misdirection in light of Haughton v Smith. In rejecting the appeal, Bleby J held that while the authority of the House of Lords decision had been noted in Australia it had been expressly rejected in a majority of jurisdictions in relation to factual impossibility. His Honour (with whom Duggan and Anderson JJ agreed) said:58 More importantly, attempts to classify various types of attempt into particular categories has been shown to be wanting. The concept of a defence of factual impossibility is flawed and has been resoundingly condemned by judges, legislatures and commentators alike in numerous jurisdictions. There can be no ethical distinction between an offender who fails to complete a crime due to insufficient means and one who fails because of physical impossibility. The common law should reflect this. To allow such a distinction would be to endorse a technical, theoretical concept which produces unjust and inconsistent practical results. It would be contrary to common sense and would ignore community expectations that an offender who, with the requisite intention, takes sufficiently proximate steps towards the commission of a crime should be held accountable for his or her actions …

Examples of inadequacy of means 7.29 There are many case illustrations of inadequacy of means. In McMillan v Reeves (1945) 62 WN (NSW) 126, the accused was

convicted of attempting to put a vehicle in motion even though the vehicle was impossible to start because of mechanical defects.59 In Gulyas v R (1985) 2 NSWLR 260; 15 A Crim R 472, the accused was charged with attempted obtaining by false pretences. The accused had devised a scheme to defraud Lotto by filling in a blank coupon after the numbers had been called and claiming that the agent had failed to forward the completed coupon. Under the rules of Lotto, the entry was not complete until received. The attempt to obtain money was therefore thwarted. On a charge of attempted false pretences, the question was whether the impossibility of achieving the stated purpose was a defence. The Court of Appeal held that it was not. The case was one where there was no physical impossibility. There was at most an inadequacy of means, which was punishable as an attempt. In R v Collingridge (1976) 16 SASR 117, the accused inserted a live wire into the water of his wife’s bath while she was in it. The wire did not touch her body. Had it done so while she was holding the tap or some other conductive part of the bath she might have been killed or seriously injured. The electrical current was not powerful enough to cause serious harm by passing through the water to her body. The accused was convicted of attempted murder. On appeal, Bray CJ said that Haughton v Smith ‘ought to be taken as binding on us and I make it my starting point’.60 Having reviewed the direction given by the learned judge at the trial, the Chief Justice intimated that this was a case of insufficient means or inefficient execution. It was not a case where it was physically or legally impossible to form the intention to kill. In R v Brady [2005] SASC 277, an attempted escape from lawful custody failed due to inadequate means.

Examples of factual impossibility 7.30 Cases relating to so called factual impossibility are also commonplace. In R v Perera [1907] VLR 240, the accused was convicted of attempting to obtain [page 198]

by false pretences, although the victim was not deceived but paid money over in order to entrap the accused.61 In O’Sullivan v Peters [1951] SASR 54, the accused was convicted of attempted betting although the horse he backed had been scratched. In Britten v Alpogut [1987] VR 929, the appellant was convicted of attempting to import a prohibited substance, namely cannabis, but the contents of the suitcase contained procaine, an anaesthetic which was not a prohibited import. In Cogley v R [1989] VR 799; (1989) 41 A Crim R 198, the court held that assault with intent to rape under s 45(4) of the Crimes Act 1958 (Vic) was established whether or not the victim was shown to be a woman (and therefore capable of being raped).62 In R v Peckover (2002) 135 A Crim R 400; [2002] NSWCCA 468, the accused was convicted of attempting to cause a child under the age of 14 years to participate in child prostitution although no such child ever existed. 7.31 The rejection of factual impossibility as a defence has been especially important in drugs cases.63 In Onuorah v R [2009] NSWCCA 238, the accused was charged with attempting to possess a marketable quantity of a border-controlled substance, namely cocaine. The plot was foiled by the Venezuelan authorities and the drug was destroyed. Therefore, there was in fact no importation of a border-controlled substance. Indeed, nothing was imported although the accused did take possession of the receptacle. An appeal against conviction was dismissed. The court approved a decision of the Full Court of the Supreme Court of Victoria in Britten v Alpogut [1987] VR 929. The court also approved R v Mai (1992) 26 NSWLR 371; 60 A Crim R 49, an earlier decision of the Court of Criminal Appeal, where the defendant had been charged with attempting to obtain possession of heroin illegally imported into Australia. The Federal Police intercepted the drug and replaced it with plaster of Paris. The defendant came to be in possession of the plaster of Paris, believing it to be heroin. An appeal against conviction was dismissed. Hunt CJ said:64 I interpret the law laid down in Britten v Alpogut … when applied to the general law of attempt, as being that, in circumstances where it is in fact physically impossible for the accused to commit a particular crime, an attempt to commit that crime has nevertheless been proved if the Crown establishes: (i) that the accused intended to do the acts with the relevant state of mind which

together would comprise the intended crime (that is, if the facts and circumstances had been as he believed them to be, he would have committed that crime), and (ii) that, with that intention, he did some act towards the commission of the crime which went beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime.

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Attempts and legal impossibility 7.32 The preceding exposition does not mean that attempts are simply thought crimes. As a matter of law, no action can be sufficiently proximate to the commission of an imaginary crime to amount to an attempt. There is no criminal offence constituted by adultery, witchcraft or blasphemy, and any attempt to charge a person with a non-existent crime would be struck out, regardless of any belief possessed by the accused. While a conspiracy to attempt to commit an offence is good, attempted conspiracy is not.65 Where a crime has been repealed or suspended or has yet to come into force, the inchoate form is by law insufficiently proximate to sustain an attempt, regardless of any mistaken belief, whether of fact or law, by the accused. For example, it would not be a criminal attempt for an adult to have consensual sex with a married person even if one or both individuals think that adultery is a crime, or for an adult to have consensual sex with a person who is aged 20, even when believing — wrongly — that the age of consent is 21. If a law making it an offence to drive a car without a helmet were passed to come into effect at midnight tonight, a citizen would commit neither the completed offence nor an attempt were he or she to drive a car at five minutes before midnight without a helmet, even if he or she mistakenly believed it to be well after midnight. 7.33 Cases like this can be distinguished from so-called factual impossibility. Even though the accused does everything he or she sets out to do, believing it to amount to a crime, his or her actions do not as a matter of law constitute any offence.66 One cannot attempt to steal what cannot be stolen, although, of course, stealing is a criminal

offence. If a crime such as bestiality is defined in such terms that a woman cannot commit the offence, an indictment of attempted bestiality (against a woman) would be equally bad.67 To take another example, having intercourse with a woman aged 17 or older is by law insufficiently proximate to constitute an attempt to have unlawful intercourse with a girl under 16 years, even if the accused wrongly believed that the age of consent was 17.68 The accused’s mistaken belief cannot be the source of inculpation. 7.34 The example of unlawful sexual intercourse is worthy of additional comment because of the non-standard age of consent across Australia. It is 17 years in South Australia and Tasmania and 16 years elsewhere.69 Assume that [page 200] the defendant, having been brought up in New South Wales where the age of consent is 16, wrongly believes that the age of consent is 17, which it is in South Australia. If the girl is over 16 and the accused believes that she is at least 16, then a consensual act of intercourse with the girl in New South Wales does not constitute an offence even if the accused thought the legal age was 17. A criminal attempt cannot be manufactured out of the accused’s mistake of law. This is a true case of legal impossibility. By contrast, a person may be convicted of attempted unlawful sexual intercourse if the accused thought that the girl was below the actual legal age, even if she was not. This is merely an instance of factual impossibility. The accused intended to have sexual intercourse with a person below the legal age, not mistaking that age, and engenders little sympathy. 7.35 In summary, an indictment must disclose a recognised offence; otherwise, it is liable to be quashed.70 Fictitious crimes such as adultery, blasphemy, sorcery or witchcraft71 or possessing an incorporeal object, such as a trust fund,72 fall outside the purview of the criminal law, along with their inchoate forms, regardless of any view the accused may

have on the matter. An indictment charging stealing something incapable of being stolen, or unlawful sex with a woman aged over 17 years, should be struck out. In some cases, the specific attempt is expressly excluded. It is not an offence to attempt to commit an identity crime offence.73 There is no offence of attempting to commit a simple offence in Queensland,74 or attempting to engage in conspiracy.75 Such offences are simply not recognised in the respective jurisdiction. Some offences cannot be charged in a particular jurisdiction. A conspiracy to commit a crime beyond the state is not justiciable in the state.76 Common law crimes (eg, misprision of felony) are not amenable to prosecution under the Queensland Criminal Code. It is not possible to circumvent such restrictions by charging an attempt.77 A limitations period cannot be overcome by charging an attempt. Nor can a personal immunity, such as nonage. In R v Willis (1864) 4 SCR (NSW) (L) 59, the court held that a prosecution for attempt to commit rape by a minor was bad, since the completed offence could not be committed by a [page 201] person aged 14, nor could the attempt. The law relating to carnal knowledge did not apply to the transaction because the accused was insulated by a statutory immunity.

Conspiracy 7.36 At common law, a person who enters into an agreement with another person to do an unlawful act or to perform a lawful act by unlawful means is guilty of an indictable offence called conspiracy: Mulcahy v R (1868) LR 3 HL 306 at 317 per Willes J.78 Conspiracy was recognised as an indictable misdemeanour at common law from the beginning of the 17th century, although conspiracy has a much longer lineage.79 There are various modern rationales for the doctrine of conspiracy. They are not mutually exclusive. One is to inhibit criminal conduct by penalising incomplete or inchoate forms of the offence

aimed at. Conspiracy is sometimes described as ‘auxiliary’ to the principal offence. The agreement to commit an offence may be seen as ‘inherently culpable’ regardless of any action taken to implement it. Another utilitarian explanation is that conspiracy provides a flexible weapon against criminal activity that is inherently difficult to police. It is sometimes called ‘the prosecutor’s darling’ by allowing prosecutors to roll into a single charge the events of a continuing course of conduct.80 Each of these explanations contains some truth about the doctrine of conspiracy, which has a deeply pernicious dark side, and is capable of creating serious dangers of unfairness.81 7.37 In New South Wales and South Australia, conspiracy is governed by the common law of Australia.82 In Victoria the common law offence of conspiracy has been abolished and the law of conspiracy reduced to statutory form.83 Various heads of conspiracy are recognised under the criminal codes,84 although foundational [page 202] concepts spring from the common law.85 In the event of conflict with state provisions (or the common law), the federal law prevails.86 In the United Kingdom, the offence of conspiracy is now governed by statute. See Criminal Law Act 1977 (UK) s 1(1), as substituted by the Criminal Attempts Act 1981 (UK), which provides: … if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions … (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement … he is guilty of conspiracy to commit the offence or offences in question.

7.38 In some jurisdictions a defence of factual impossibility is expressly excluded. Under the Commonwealth Criminal Code a person may be found guilty of conspiracy to commit an offence even if committing the offence is impossible.87 A similar provision exists under the criminal codes in the Australian Capital Territory and the Northern Territory.88 In Victoria the statutory offence of conspiracy excludes

impossibility.89 None of these provisions criminalise by way of conspiracy an agreement to do something which is not a recognised criminal offence.90 In other words, they do not on their face eliminate the distinction previously made between factual impossibility and strict legal impossibility. [page 203] 7.39 The extent to which impossibility is recognised at common law as a general defence to a charge of conspiracy has yet to be determined authoritatively by the High Court.91 The question whether the offence of conspiracy extends to agreements where the criminal purpose is unattainable within the terms of the agreement is not an easy one. An answer requires some understanding of the nature of conspiracy and the relevance of the accused’s state of mind. In R v Green [1976] QB 985, Ormrod LJ said:92 There is ample authority for the proposition that the actus reus of conspiracy is the agreement to effect an unlawful purpose, and that the offence is committed whether or not any act is done in pursuance of the agreement. It must follow that the fact that, unknown to the conspirators, the unlawful purpose could not be achieved is no defence …

7.40 The offence of conspiracy necessarily involves a focus on the state of mind of the participants. Conspiracy is constituted by an agreement, which inherently involves mutuality and reciprocity. For two or more parties to agree means there is a shared common intention with regard to some future course of conduct or event. If one agrees with another person to do something, the fact of agreement suggests a certain mental attitude towards the object of the exercise. And it is implicit in the nature of agreement that nothing less than a common intention will suffice, because if the parties do not have the same common design there is no agreement. If parties are at cross purposes there is no agreement. And one cannot agree with someone who is not in fact agreeing. If one party intends to agree, but the other does not, perhaps because they are a police informant with crossed fingers behind their back, the agreement is mere pretence. Entering into an agreement

requires a positive affirmation on the part of each party and, in this sense, nothing short of intention will suffice. As noted by Peter MacKinnon in a passage quoted with approval in Rolls v R [2011] VSCA 401 by Harper JA:93 When we ask ‘is there an agreement?’ in order to determine an issue of criminal liability, traditional theory demands that we insist upon an act of agreement. This act is an act of the intellect, though we will point to the outward manifestations of concurrence as evidence of the act — the verbal expression that an agreement has been reached or conduct which appears to have been co-ordinated as the result of an agreement. It is because the act of agreement is an act of the intellect, whatever its outward manifestations may be, that our law of conspiracy is open to the criticism that it imposes liability only for a blameworthy state of mind. It is in answering this criticism that the distinction between being in agreement and making an agreement is important. To punish people for being in agreement would be, indeed, to punish them for an opinion which they share, accidentally or otherwise — punishment only for a state of mind. Holding them liable for together reaching an agreement is distinguishable and the distinction is important.

[page 204] These ideas are reflected in the common law of conspiracy. The mens rea of the crime of conspiracy is intention to do the unlawful act, for there can be no agreement without an intention on the part of the parties to agree.94 Recklessness is not a sufficient fault element for conspiracy at common law or, putting it another way, a conspiracy entered into recklessly is not known to the common law. In Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473, Wilson, Deane and Dawson JJ said:95 For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement …

7.41 This leaves two other important questions for consideration. The first is whether a charge of conspiracy to commit a particular offence will lie where the evidence is that two or more parties entered

into an agreement to do something but were reckless or indifferent as to whether that offence would be committed. The second is whether a person can conspire to commit an offence the mental element of which is recklessness. Although the questions are finely distinguished it is important to keep them apart. 7.42 Going to the first point, from a purely linguistic viewpoint, it would seem odd to say that a person has entered an agreement with someone to do something that he or she may or may not do. Is this even meaningful? Agreement implies submission to a common purpose. The term of every conspiracy is the common design to commit an unlawful act, which is the object of the agreement.96 It therefore follows that not only must the party intend to enter into an agreement, but it must be intended that the terms of the agreement will be carried out. The element of intentionality applies not only to the making of the agreement itself but to the common design.97 As McHugh J noted in Peters v R [1998] HCA 7; 192 CLR 493 (citations omitted):98 At the very least, there must be an intention to enter into the agreement, and the present state of the authorities suggests that there can be no conspiratorial agreement unless the accused and his or her co-conspirators also intend that the common design should be carried out.

The agreement must be for a particular purpose, namely, to commit an offence, and it is inconsistent with this fundamental conception that the fault element for conspiracy could be other than intention in both aspects. A mere expectation that an offence may occur is not enough to constitute a conspiracy.99 It need not be [page 205] shown that every party to the agreement took steps towards carrying it out,100 but the agreement must show a common intention that one or more of them would do so.101 So, an agreement between two persons that one should do all acts necessary to kill a third is punishable as a conspiracy to murder, even if it is understood that the other will do nothing towards carrying out the deed. Each has blood on their

hands.102 But an agreement to assist in the clearing of land which was to be used for cultivating marijuana was not punishable as a conspiracy. The offence relied upon by the Crown was possession of the crop by an unspecified third person who was not party to the conspiracy.103 This was held to be insufficient to amount to a conspiracy. 7.43 One interesting consequence follows. Where the prosecution alleges that the parties conspired to commit an offence, but were recklessly indifferent as to the existence of facts or circumstances upon which liability for that offence would depend, the charge is bad in law, even if recklessness is a sufficient fault element for the offence.104 A person cannot be convicted of an offence if he or she is unaware of circumstances that make the conduct unlawful. If the offence requires proof of some fact or thing, it must be shown that the defendant was aware of it.105 7.44 In R v RK [2008] NSWCCA 338; 73 NSWLR 80, the parties were charged with conspiracy based on an agreement to deal with money that was the proceeds of crime on the basis that they were reckless as to whether the money was such proceeds of crime. The trial judge upheld a submission that the offence on the indictment was not an offence known to the law. Spigelman CJ said (emphasis in original):106 It is not the Crown case that either of the accused knew that the money was proceeds of crime. As the Crown emphasised in its submissions in this Court the Crown case was that the appellants were reckless as to the fact whether the money was proceeds of crime. That allegation may have supported a substantive offence under s 400.3(2). It cannot support a charge of conspiracy where, in order to satisfy the test of intention with respect to the entry into an agreement to commit an offence, the accused must know the facts that constitute the offence.

This decision was unanimously upheld on appeal: see R v LK (2010) 241 CLR 177; [2010] HCA 17. French CJ noted:107 There cannot be a conspiracy in which the parties to the agreement are reckless as to the existence of a circumstance which is a necessary element of the offence said to be the subject of the conspiracy. Such recklessness would be inconsistent with the very intention that is necessary at common law and under the Code to form the agreement alleged.

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7.45 The second point identified above (at 7.41) is whether a charge of conspiracy to commit an offence, the mental element of which is recklessness, is good in law. And, if so, are there any limitations in such cases? For example, if the offence alleged to be the subject of a conspiracy can be committed on the basis of a mere suspicion of certain facts falling short of knowledge (which is increasingly common in relation to crimes such as money laundering),108 will such a state of knowledge suffice for the mental element of conspiracy? 7.46 There is authority for the proposition that an agreement to commit a crime for which recklessness is a fault element may be charged as a conspiracy, as long as the conspirators are aware of the facts upon which liability for the offence depends, or rely on a third party to commit the offence.109 A group of men who agree amongst themselves to enter upon a place and engage in sexual intercourse with any female therein, with or without consent, would be guilty of conspiracy to rape.110 Likewise, in a gang rampage resulting in criminal damage a charge of conspiracy is in order even though criminal damage is an offence which may be committed recklessly.111 Conspirators may deal with money on the basis that, at some point in the future, it may become an instrument of crime. If they are reckless as to that possibility they may be convicted of conspiracy.112 It is suggested that a person who agrees to do something on the basis that it will be done even if he or she becomes aware of facts or circumstances that make the conduct unlawful, should be treated as equivalent to a person who agrees to do something knowing of the circumstances that make such conduct unlawful. As to whether wilful blindness (ie, the mindset of somebody who enters an agreement on the basis that he or she will seek to avoid coming to know the facts or forming any belief or suspicion as to the existence of facts or circumstances making the conduct unlawful) will suffice is uncertain. Arguably, such a state of mind is sufficient for conspiracy. 7.47 In R v Ansari [2007] NSWCCA 204; (2007) 70 NSWLR 89, the parties were charged with conspiracy to engage in money laundering under the Commonwealth Criminal Code.113 The conspiracy was said to involve dealing with money where there was a risk that it would

become an instrument of crime [page 207] and the parties were reckless as to that fact. The risk was that the money could be used for tax evasion or to evade the Financial Transactions Reports Act 1988 (Cth). Appeals against conviction to the Court of Criminal Appeal and to the High Court were unsuccessful. Howie J said (Hislop J concurring):114 The question posed by the offences with which the applicants were charged is not whether a person could conspire to commit an offence by entering into an agreement being reckless whether an offence would be committed. Nor is the question whether there can be a reckless agreement to commit an offence. As I have indicated the answer to both questions at Common Law and under the Code is ‘No’. Rather the question raised is, can a person conspire to commit an offence the mental element of which is recklessness?

Howie J held that, under the Commonwealth Criminal Code as at common law, conspiracy could apply in cases where, at the time of the agreement, recklessness was a sufficient fault element for the offence which the parties agreed and intended to commit. In the instant facts, both Howie J and Simpson J (in a separate judgment) relied upon the extended definition of recklessness in s 5.4(4) of the Criminal Code, which provides that intention or knowledge will satisfy proof of recklessness. The decision was upheld on appeal: see Ansari v R (2010) 241 CLR 299; [2010] HCA 18. 7.48 In R v Saik [2006] UKHL 18; [2007] 1 AC 18, on a charge of statutory conspiracy, the House of Lords considered whether the statutory offence of conspiracy was satisfied in relation to an offence of money laundering where that substantive offence could be committed if a person knew or had reasonable grounds to suspect that the money was proceeds of crime. The statutory offence of conspiracy was inserted into the Criminal Law Act 1977 (UK) following the passage of the Criminal Attempts Act 1981 (UK). The court held (Baroness Hale dissenting) that reasonable grounds for suspicion, while sufficient grounds for the substantive offence, was insufficient on a charge of

statutory conspiracy. The case is of some significance, especially in Victoria and Western Australia where the statutory conspiracy provisions are in similar (but not identical) form.

Conspiracy and impossibility 7.49 The preceding paragraphs are connected to issues of impossibility not by way of general doctrine but rather as an intrinsic element of conspiracy itself. So, it is ‘impossible’ to enter into a conspiratorial agreement with a state of mind falling short of intention, or agree to do something without sufficient knowledge of facts upon which liability may depend, or by committing to a course of action that the other conspirators do not agree with. The extent to which one may conspire to commit an offence for which the fault element is recklessness is still vague, although at least where there is a statutory definition of recklessness as under the Commonwealth Criminal Code which brings in knowledge or intent, this appears to be possible.115 7.50 However, in conspiracy cases one looks for the devil in the detail. The scope of an agreement said to amount to a criminal conspiracy must be clearly particularised to enable proof of the fact of agreement — for it must be shown that all conspirators [page 208] were agreeing to the same thing so that there was a consensual agreement between them; the more general the agreement the more difficult this will be to prove and, conversely, the narrower the scope of the alleged agreement, the more likely that the parties were in agreement. But an agreement in very specific terms is more likely to encounter issues of impossibility. If the agreement as identified by the Crown is incapable of performance then a charge of conspiracy may fail, not because of a defence of impossibility but simply because the prosecution has not proved the agreement charged in the indictment. If, however, the agreement was in general terms to commit a known

criminal offence, the fact that it was not possible to achieve the objective in the circumstances because of facts unknown to the participants will not constitute a defence. 7.51 In Director of Public Prosecutions v Nock [1978] AC 979; [1978] 2 All ER 654, the accused were charged with a conspiracy to produce a controlled drug, namely cocaine. The parties agreed they would try to produce cocaine by separating it from a powder they believed to be a mixture of cocaine and lignocaine, believing that they would be able to produce cocaine from the powder. In fact, the powder was lignocaine hydrochloride and contained no cocaine at all. The House of Lords set aside the conviction. As Lord Scarman put it, ‘performance of the limited agreement proved in this case could not in any circumstances have involved the commission of the offence created by the statute.’116 Since the indictment alleged a conspiracy to produce drugs in breach of the statute but only proved an agreement to produce cocaine from a particular powder which the conspirators wrongly believed could produce it, the court reasoned that the fact that the powder was not capable of producing cocaine was fatal to the conspiracy charge. Nock can possibly be explained as a procedural decision turning on the particulars proved in support of the indictment, rather than applying a general defence of impossibility.117 It is, however, difficult to see it as other than applying to conspiracy the logic of Haughton v Smith in relation to attempts. Nock has been noted in New South Wales118 and South Australia,119 but its status in Australia, though weak, has yet to be finally determined.120 In R v LK (2010) 241 CLR 177; [2010] HCA 17, French CJ commented in passing on Nock as follows:121 The House of Lords in Nock rejected the proposition that the offence of conspiracy could be committed notwithstanding that the crime the subject of the conspiracy would be impossible of performance. That rejection was linked to the association between conspiracy and attempt. An agreement to do that which is impossible of performance is not a criminal conspiracy at common law, although it is under the Code.

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Whether this is in fact the present common law of England may be doubted: see R v Bajwa (Naripdeep) [2011] EWCA Crim 1093. In R v Sew Hoy [1994] 1 NZLR 257, the New Zealand Court of Appeal held that persons could be guilty of conspiracy to defraud the revenue notwithstanding that the means adopted under the agreement were incapable of achieving their purpose.122 7.52 An opportunity to clarify the common law of Australia arose in R v Barbouttis (1995) 82 A Crim R 432; [1995] NSWSC 115. The charges arose from an operation conducted by the police designed to disrupt trade in black-market cigarettes. An undercover police officer made contact with three individuals to whom he offered to sell some cartons of cigarettes literally off the back of his truck. He discussed prices and falsely told them the cigarettes were stolen. It appears that two of the parties were early adopters of the scheme, but the third party, Barbouttis, joined in somewhat later. The parties were charged on indictment with conspiring together to commit a criminal offence, namely the offence of receiving stolen property. The Crown case was that the object of the conspiracy was the purchase of cigarettes which the accused believed were stolen. At no stage were these cigarettes stolen. The cigarettes were obtained and placed in a truck by police officers for the purpose of satisfying the accused that there were in fact cigarettes available to be supplied to them upon the payment of money. The trial judge struck out the indictment on the basis it was impossible to commit the offence of conspiring to receive stolen goods where the goods were not stolen. The trial judge’s decision was upheld on appeal. 7.53 Smart and Dunford JJ dismissed the appeal, although for different reasons. Smart J applied the doctrine of impossibility. He noted the formidable views expressed by Lord Reid in Haughton v Smith and was not content to rely on the prosecution not prosecuting where the result may be unfair. By contrast, Dunford J noted that Haughton v Smith no longer reflected the law in Australia relating to impossible attempts, and that the authority of Nock in relation to conspiracy had been undermined by developments in England. He questioned the assumption that attempts and conspiracy could be treated analogously. Conspiracy focused on the mutual intention to

carry out the agreement, and required a precise understanding of the objective. The case did not turn on general principles relating to a conspiracy to achieve the impossible; yet, an agreement to do that which, if done, would not amount to an offence was not punishable as a conspiracy. Dunford J focused on the nature of conspiracy in general and the specific conspiracy alleged. It was an agreement to acquire cigarettes which the alleged conspirators believed were stolen. There was no substantive offence involved in acquiring those particular cigarettes (because they were not stolen) and therefore, in Dunford J’s view, the agreement to acquire them was not punishable as a conspiracy. The case was different where the objective of the agreement, had it been achieved, would have constituted an offence. If the agreement in Nock to produce cocaine from the powder the parties possessed had succeeded, they would have committed a substantive criminal offence. But ‘if the appellants in the present case had succeeded in carrying out their agreement by acquiring the cigarettes which were in the back of the truck (which was in fact possible), they would not have committed any substantive criminal offence because the goods were not stolen’.123 [page 210] 7.54 Gleeson CJ dissented, and the High Court declined to grant special leave.124 Gleeson CJ accepted that Nock was not a secure footing upon which to base an argument and set out to identify with precision the nature and scope of the agreement the making of which constitutes the alleged conspiracy. In his view, the problem arose because the agreement alleged by the Crown was limited to an agreement to purchase, from a particular person, particular cigarettes which were mistakenly believed to be stolen, rather than a conspiracy in general terms to acquire stolen cigarettes. One approach was to ask whether the missing element (that the goods were stolen) was central to the accused’s intention or merely incidental. The Chief Justice dismissed this approach, which he called ‘the motivation theory’, referring to

various criticisms made of it by Glanville Williams.125 A better approach was to characterise the object of the agreement made by the conspirators, the so-called ‘common design’. In his Honour’s view it was properly characterised as an agreement to acquire stolen goods, the fact that the cigarettes were believed to be stolen forming part of the common design: ‘If a person intends to receive goods which he knows or believes are stolen, then he intends to receive stolen goods’.126 It was not properly characterised as an agreement to acquire particular cigarettes at a particular price, ‘such agreement being accompanied by a merely incidental belief that the reason the cigarettes were so cheap was that they were stolen’.127 Gleeson CJ’s method simply avoids any discussion of whether the object of the common design so characterised (to acquire stolen goods) was attainable, or whether it was ‘objectively’ innocent. It is probably more closely aligned to the idea that plotting to do something which the conspirators believe to be unlawful is ‘inherently culpable’. 7.55 The case appears superficially to support a doctrine of impossibility in relation to conspiracy.128 A better explanation is that the decision to quash the indictment was upheld because the particulars did not establish: (1) that the element of ‘stolenness’ was an object of the conspiracy and (2) that this key element had been the subject of communication and express agreement between each of the parties to the conspiracy. Only one of the majority judges relied on Nock; the other two, including the dissenting judge Gleeson CJ, did not rely upon it. Unfortunately, each of the judges approached the problem differently. It is impossible to extract any ratio from the decision, all the more so because of the fate of the case on appeal.129 The High Court declined to interfere and [page 211] revoked the grant of special leave.130 Brennan CJ said that the real problem in the case was simply one of identifying ‘the confines of the agreement charged in the indictment and the question of impossibility

did not arise.131 To that extent he agreed with Gleeson CJ, but then came to a different conclusion. The case certainly highlights the importance of identifying with precision the agreement and the particulars relied upon to prove it. 7.56 Subsequent cases are somewhat inconclusive. In R v El Azzi [2001] NSWCCA 397 the substantial issue was whether it was open to the Crown to charge the applicant with a conspiracy under s 26 of the Drug Misuse and Trafficking Act 1985 (NSW) in relation to each of two incomplete attempts to manufacture methylamphetamine in light of the uncontested evidence that the chemicals being used for the purpose in both cases could not produce that or any other drug.132 The District Court refused to grant a stay on two counts of conspiracy. This decision was upheld by the Court of Criminal Appeal. In R v Turner (No 8) [2001] TASSC 86 the prosecution alleged a conspiracy to understate fish catches and there was evidence that fisheries authorities did not regard any of the returns as credible and therefore were not deceived by them. Blow J rejected a defence of impossibility but considered that Nock was distinguishable.133 In R v Bolus [2003] NSWSC 661, Howie J opined that the law was now arguably such that the only basis upon which an argument such as found favour in Nock would be available is if the conspiracy agreed to by the participants in the conspiracy was to do an act which in fact was not illegal:134 If the act agreed to and intended to be performed was in fact an illegal act, it does not matter that the act could not be completed for some reason unbeknown to persons entering into that agreement.

7.57 In Onuorah v R [2009] NSWCCA 238; (2009) 76 NSWLR 1; 197 A Crim R 430, a strong court of criminal appeal consisting of five judges stated obiter that Nock had been undermined by subsequent decisions of the House of Lords and its judicial reception by Australian courts. The charge was attempted importation rather than conspiracy to import. The drug in question had been removed by overseas law enforcement. A panel of five judges was convened in anticipation that Barbouttis might require reconsideration. Hodgson J gave the

[page 212] only judgment, adopting the passage by Dunford J relating to Haughton v Smith and the analysis by Gleeson CJ in its entirety in preference to that of Smart J. He opined that the analysis was applicable to both attempts and conspiracy.

Conspiracy and legal impossibility 7.58 An agreement to achieve a purpose which is neither unlawful nor pursued by unlawful means is not punishable as a conspiracy, regardless of the accused’s subjective belief. What was said above in relation to attempts applies equally to conspiracy; that is, a conspiracy to commit an offence that does not exist in law is bad. That this is so is illustrated in a somewhat oblique way in R v Eid [1999] NSWCCA 59. A warrant issued to investigate an alleged conspiracy to defraud the revenue of licence fees was challenged on the basis that the statutory basis for collecting licence fees had been invalidated by a High Court decision. The prosecution sought to use the evidence obtained under the warrant to charge other related offences. The NSW Court of Criminal Appeal noted that the case had been put on the basis of an agreement to do an unlawful act. This proceeded on the basis that the making of the agreement was inimical to the public good. That could not be said where the subject of the agreement was not unlawful.

Incitement 7.59 In Victoria, under the Crimes Act 1958 the common law offence of incitement is abolished135 and a statutory offence of incitement is created.136 The Act provides that a person may be guilty of incitement notwithstanding the existence of facts of which the person is unaware which make commission of the offence in question by the course of conduct incited impossible: s 321G(3).137 Under the Criminal Code 1995 (Cth), a person may be found guilty of the offence of incitement

even though it was impossible to commit the offence incited: s 11.4(3); Criminal Code 2002 (ACT) s 47(4); Criminal Code (NT) s 43BI(4). The Western Australian or Tasmanian criminal codes recognise incitement both in general terms138 and in relation to specific acts such as incitement to racial hatred and various sexual offences, but unlike Victoria and those jurisdictions based on the Commonwealth Criminal Code, omit specific reference to impossibility.139 7.60 It has been suggested that at common law a person may be convicted of incitement whether or not it is factually impossible for the person incited to commit the offence and that there is no difference between incitement and [page 213] attempts in this regard.140 For example, in R v McDonough (1962) 47 Cr App R 37, a conviction for incitement based on exhortations to a third person to steal particular lamb carcasses thought to be stolen was upheld although no carcasses existed at the time of the incitement. On this basis, urging an expectant mother to kill her child when it is born would be punishable as an incitement even if she miscarries after the incitement or indeed, even if she was not pregnant at the time of the incitement: R v Shephard [1919] 2 KB 125; (1919) 14 Cr App R 26. Bray J delivered the judgment of the court:141 In this case the appellant was convicted on a count framed under s.4 of the Offences against the Person Act, 1861, which makes it an offence to solicit any person to murder ‘any other person’. The appellant undoubtedly did solicit the woman Shephard to murder her child if and when it should be born, and the question is whether the case falls within the section having regard to the fact that at the date when the letter containing the solicitation was written the child was unborn and therefore could not be the subject of murder. We must look at the matter from a common-sense point of view, and, so looking at it, we cannot entertain a doubt that it does. All that is essential to bring a case within the section is that there should be a person capable of being murdered at the time when the act of murder is to be committed. If there is such a person then in existence it is quite immaterial that that person was not in existence at the date of the incitement. Here the child was in fact born alive, so that the event happened upon which the act was to be done. That is enough to satisfy the section. We do not decide whether the appellant could have been convicted if the child had not been born alive. It is not necessary to decide

that. In the event which has happened the appellant was properly convicted and the appeal must be dismissed.

7.61 But what if the inciter believed at the time that the carcasses were not stolen, or that the woman was not pregnant? He may have had some claim of right to the carcasses or believed that the woman was experiencing a phantom pregnancy (a condition called pseudocyesis). It is hard to see how the defendant could be convicted of inciting a particular offence if he was unaware of facts or circumstances that would make the conduct incited criminal. Incitement is not an offence of strict liability. The law relating to incitement and impossibility has yet to be determined authoritatively by the High Court. 7.62 It may be that, as we have seen from our extended discussion in dealing with conspiracy, the question will stand or fall on the particulars contained in the indictment. In R v Fitzmaurice [1983] QB 1083; [1983] 1 All ER 189, a case of thieves preying on their own, a father asked his son (the appellant) to organise a robbery. The intended target, so said the father, was a woman carrying wages from a local firm to the bank. The son spoke with a friend, B, who agreed to execute the plan with two of his associates. The father and an accomplice, S, supplied them with fake guns and masks. In fact, it was all a lie. The woman was actually S’s girlfriend. She was not a wages clerk at all and there was no money. The plan was supposed to happen at a particular hour when a security van would be outside the bank. The father’s plan was to inform the police that a heist was in progress to rob the van. His motive was to collect the reward, and split it with his accomplices. The son was at all times unaware of the father’s scheme. [page 214] He believed that the woman was a wage’s clerk. B and his two friends pleaded guilty to conspiring to rob the woman. The son was convicted of inciting them to commit the crime. Subsequently, B’s conviction was set aside on the ground that the particular conspiracy to which he (and the two others) had pleaded guilty was impossible to achieve. In setting

aside B’s conviction, O’Connor LJ said:142 However morally culpable, the truth is that these three men had been fraudulently induced to agree to commit a crime which could not be committed in the strict sense; they were themselves the victims of a different conspiracy to which they were not parties.

This raised the question whether the son’s conviction for incitement could stand. The court dismissed the appeal. The crucial question was to establish on the evidence the course of conduct which the alleged inciter was encouraging and the particular robbery incited was not impossible of achievement:143 We return to the facts of the instant case. Counsel for the appellant submitted that the ‘crime’ which Bonham and the two Browns were being encouraged to commit was a mere charade. The appellant’s father was not planning a real robbery at all and therefore the appellant could not be found guilty of inciting the three men to commit it. In our judgment, however, the answer to counsel’s argument is to be found in the facts which the Crown proved against the appellant. As was made clear by counsel on behalf of the Crown, the case against the appellant was based on the steps he took to recruit Bonham. At that stage the appellant believed that there was to be a wage snatch and he was encouraging Bonham to take part in it. As counsel put it: ‘The appellant thought he was recruiting for a robbery not for a charade.’ It is to be remembered that the particulars of offence in the indictment included the words ‘by robbing a woman at Bow’. By no stretch of the imagination was that an impossible offence to carry out and it was that offence which the appellant was inciting Bonham to commit.

7.63 Incitement is inherently culpable, indeed, in some case more so than an attempt, for the inciter never intends to perform the actus reus of the crime, but acts from the shadowy cloak of anonymity, expecting yet to benefit from the criminal deed performed by another at his or her behest. The inciter may be indifferent to long odds; she or he will not get caught in the act and hopes to remain anonymous. This suggests all the more reason to focus on the intention of the inciter rather than the likelihood of success. In Kwong v R [1980] HKCA 49; [1980] HKC 88, the appellants were charged inter alia with inciting C to conspire with them to pervert the course of justice by intimating that they could, by corrupt means, assist her husband to evade serious drug importation offences. It was open to conclude that the appellants had no intention of assisting C’s husband, and their motive was simply to extract money from C with false hopes. But, even on this footing, the Supreme Court of Hong Kong held by majority (Addison J dissenting) that the incitement to conspire charge was made out: it was not necessary to

prove an embryonic or working conspiracy in order to sustain the incitement to conspiracy charge.144 The impossibility of entering a successful conspiracy with the appellants did not preclude a conviction for inciting to conspire. [page 215] 7.64 Incitement is a crime that frequently leads to the involvement of undercover police due to the likelihood that the incitee informs on the inciter and thereafter suggests that someone else will commit the offence.145 Where an undercover police officer poses as a person willing to commit the offence there is no prospect of the crime being carried out. The incitee in this case has no relevant criminal intent. Yet this would not prevent a conviction for incitement.146

Incitement to commit the legally impossible 7.65 In the English case of R v Whitehouse [1977] 1 QB 868, the accused was charged with inciting his 15-year-old daughter to commit incest with him. It was impossible for a girl to commit such a crime, as she was made so incapable by statute. The court said:147 It is of course accepted by the Crown that at common law the crime of incitement consists of inciting another person to commit a crime. When one looks at this indictment in the light of the particulars of the offence pleaded, one sees that it is charging the accused with inciting a girl to commit a crime which in fact by statute she is incapable of committing. If therefore the girl was incapable of committing the crime alleged, how can the accused be guilty of the common law crime of incitement? The Crown accepts the logic of that position and does not seek in this court … to suggest that this man could be guilty of inciting his daughter to commit incest, to use the old phrase, as a principle in the first degree.

From this passage, it appears that the principle relating to the charge of inciting to commit what is not a crime at all is the same as relates to a charge of attempting to commit what is not a crime at all, and such a charge will fail on the authority of Haughton v Smith. It was, however, suggested by the prosecution in Whitehouse that the failure of the charge of inciting the girl to commit the principal offence did not

preclude an indictment for inciting the girl to aid and abet her father to commit the crime of incest upon her.148 Scarman LJ said:149 Is there such an offence known to the law? The difficulty arises from two features of the law to which I have already referred. First, at common law the crime of incitement consists of inciting another person to commit a crime. This was laid down in R v Higgins (1801) 2 East 5 many years ago and is very well described in the very beginning of Chapter 10 in Smith and Hogan’s Criminal Law, 3rd ed, 1973, p 172. The authors cite a passage from S v Nkosiyana 1966 (4) SA 655 at 658, which includes this sentence: ‘An inciter is one who reaches and seeks to influence the mind of another to the commission of a crime.’

After examining the cases in which it is established that a person incapable of committing a crime can nevertheless aid and abet another in the commission of the crime, Scarman LJ went on to consider the position where the person alleged to aid and abet the commission of the crime is the victim of the crime. He said:150 But what if the person alleged to be aiding and abetting the crime is herself the victim of the crime? This poses the short question with which this appeal is concerned.

[page 216] Scarman LJ then proceeded to consider the authorities and, in particular, R v Tyrrell [1894] 1 QB 710, where it was held that it was not a criminal offence for a girl between the ages of 13 and 16 years to aid and abet a male person in committing, or to incite him to commit, the misdemeanour of having unlawful carnal knowledge of her. His Lordship then concluded:151 We have therefore come to the conclusion … that the indictment does not disclose an offence known to the law because it cannot be a crime on the part of this girl aged 15 to have sexual intercourse with her father, though it is of course a crime, and a very serious crime, on the part of the father.

The punishment of offences 7.66 The probability of success is a relevant factor in relation to sentence. It does not follow that so-called impossible attempts will attract only nominal punishment. The fact that an attempt is doomed to

fail in the circumstances of the offence should be taken into account in determining objective offence seriousness. Pertinent cases include: • an attempt to bribe an incorruptible judicial officer (R v Taouk (1992) 65 A Crim 387); • an attempt to have sex with a minor (R v Peckover (2002) 135 A Crim R 400); and • a question of penalty where the drugs are ‘pseudo-drugs’ supplied by police to lure the offender (R v Mihalos, CCA(Vic), No 313 of 2001, 19 December 2001, unreported).

Reforming the law 7.67 The preceding paragraphs demonstrate that the case for impossibility as a distinct defence is somewhat tenuous, and it is not surprising that, in that context, the criminal codes are silent. The operation of impossibility as a doctrine in the area of substantive offences is not controversial. 7.68 In relation to inchoate liability, the judicial reluctance in Australia to follow Haughton v Smith is well-founded despite the difficulties inherent in the notion of punishing mens rea. However, as the decision of the New South Wales Court of Criminal Appeal in Barbouttis demonstrates, there is clearly a need for legislative guidance. There are important questions about the effectiveness of the Commonwealth Criminal Code provisions on inchoate liability in general and impossibility in particular. For New South Wales and South Australia, where the law is entirely common law based, it may be worth statutory measures along the lines of s 321 of the Crimes Act 1958 (Vic). Another question relates to the replacement of the offence of incitement with provisions similar to those enacted in the United Kingdom relating to encouragement and assistance: Serious Crimes Act 2007 (UK). Given the complexity of the law in relation to inchoate offences there is a strong case from legislative reform rather than allowing development on a case–needs basis. Given the transnational nature of inchoate liability there is perhaps a stronger than normal case for harmonising the criminal laws to avoid cost and complexity.

1. 2.

3.

4.

5.

6.

7.

8. 9. 10.

11. 12.

13.

14. 15.

Mayer v Marchant (1973) 5 SASR 567 at 585 per Zelling J. According to some versions of this ancient Chinese legend the court astronomers were not unsighted because of clouds, but drunk — so perhaps their fate for failing to warn the emperor of the impending eclipse was harsh but not entirely undeserved: see Chapter 12. Perhaps a better example was the application of an English language test to non-English speaking migrants: see Chia Gee v Martin (1906) 3 CLR 649. Hall illuminates the distinction between impossibility and necessity in his discussion of physical causation: see J Hall, General Principles of Criminal Law, The Bobbs-Merrill Co, Indianapolis, 1947, p 421. If the captain deliberately entered the harbour in order to replenish supplies, having been swept by storms past the original destination, the case would be one of necessity rather than impossibility as above: Hall, p 422; see The William Grey (1810) 29 Fed Cas 1300, No 17, 694. The Defence Force Discipline Act 1982 (Cth) s 29(3) gives effect to this basic notion in providing that reasonable ignorance would be a defence to breaching a general order in a specific context. In this context, the basic question is whether any useful purpose is served by punishing the blameless victim. The criminal law requires more than the sacrifice of an unlucky victim. See Lim Chin Aik v R [1963] AC 160. Fisse describes impossibility as a general defence: B Fisse, Howard’s Criminal Law, 5th ed, Law Book Co, Sydney, 1990, pp 524, 560. See A Smart, ‘Criminal Responsibility for Failing to Do the Impossible’ (1987) 103 Law Quarterly Review 532. Arguably, the key proposition relating to unwilled acts in the Griffith Code may be seen as a species of impossibility: see Criminal Code (Qld) s 23(1)(a); Criminal Code (WA) s 23A(2). Roads Act 1993 (NSW) ss 231, 231A. Navigation Act 1901(NSW) s 96 (now repealed). Criminal Code (Qld) s 218A(6)(7); Criminal Code (WA) s 204B(7)(8). See, for example, R v Priest [2011] ACTSC 18. And see R v Jones [2008] QB 460; [2007] 4 All ER 112; [2007] EWCA Crim 1118 (police officer posing as child under the age of 13 years). Criminal Code 1995 (Cth) s 471.28. Criminal Code 1995 (Cth) s 135.4(10)(a) (conspiracy to defraud Commonwealth); s 272.14(3) (procuring child to engage in sexual activity outside Australia); s 372.1(3)(a)(i) (dealing in identification information); s 474.8(2) (possession or control of data with intent to modify an telecommunications device identifier). See Criminal Code (Cth) ss 477.1(7), 478.4(2); Crimes Act 1900 (NSW) s 308G(3); Criminal Law Consolidation Act 1935 (SA) s 86E(2)(b); Crimes Act 1958 (Vic) s 247B(3) (a). Crimes Act 1900 (NSW) s 192M(3); Crimes Act 1958 (Vic) ss 192B(2), 192C(2), 192D(2); Criminal Code (WA) ss 490(2), 492(3). For example, in R v McCoy (2001) 123 A Crim R 81; [2001] NSWCCA 255, the New South Wales Court of Criminal Appeal held that a person could not be convicted under s 6 of the Drugs Misuse and Trafficking Act 1985 (NSW) of taking part in a process of manufacturing a particular drug (methylamphetamine) where it was impossible to manufacture the drug by the process of manufacture employed by the accused. But Hulme J noted that the case turned on the proper construction of the phrase ‘process of manufacture’ and was not governed by cases dealing with the doctrine of impossibility. See [2001] NSWCCA 255 at [14]. This case was significant in relation to a subsequent trial of

16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26.

27. 28. 29. 30. 31. 32. 33. 34.

35. 36.

37.

38. 39.

conspiracy: see R v El Azzi [2001] NSWCCA 397, discussed at 7.56. (1841) C and M 314 at 318; 174 ER 522 at 524. R v Sherlock (1866) LR 1 CCR 20. See R v MacDonald (1904) St R Qd 151. Section 14(5) had been construed as a single offence in Malungahu v Department of Labour [1981] 1 NZLR 668. [1984] 2 NZLR 396 at 398. A similar notion applies in relation to the commencement of a statutory provision: see Burns v Nowell (1880) 5 QBD 444. See 6.24–6.26. See also Raymond v Marcon & Braun [2006] NTMC 36 regarding the impossibility of complying with a clean-up notice issued by the local council. See also Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37. Coal Mine Health and Safety Act 2002 (NSW) s 13 (now repealed) Criminal Code (Cth) s 80(2)(b). See the discussion by E Colvin, Principles of Criminal Law, 2nd ed, Carswell, Toronto, 1986, p 250, drawing on Wilson J’s judgment in Perkav R (1985) 13 DLR (4th) 1; 14 CCC (3d) 385. See also the discussion of Johnson v Phillips [1975] 3 All ER 682, discussed at 6.4, which involved a conflict of obligations: on the one hand, to obey the criminal law; on the other, to obey the reasonable command of a police officer. R v Bamber (1843) 5 QB 279 at 286; 114 ER 1254 at 1257. Stockdale v Coulson [1974] 3 All ER 154 at 158 per Milford Stevenson J. See G Williams, Textbook of Criminal Law, Stevens & Sons Limited, London, 1978, p 572. Narrandera Pastures Protection Board v Coote (1961) 78 WN (NSW) 697. R v English (1993) 68 A Crim R 96 at 102. Rigby v Taing [2015] NTSC 16. R v Morcom [2015] SASCFC 30. The mental element relevant to possession has caused particular difficulties in the area of drug law. In He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523, there was support for the proposition that, in order to support a conviction for possession of prohibited drugs contained in a receptacle, it needed to be shown that the defendant was aware of the contents and believed the contents to be a drug of an unspecified nature: see Chapter 2. See also R v Duong [2015] QCA 170. See also Williams v R [1978] HCA 49; (1978) 140 CLR 591 at 610. In Western Australia it has been held that, under the Misuse of Drugs Act 1981 (WA) s 6(1), possession requires actual knowledge that the thing possessed was or was likely to be a prohibited drug of some kind: Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483; Sgarlata v State of Western Australia [2015] WASCA 215. See also R v Duong [2015] QCA 170. In relation to certain preparatory offences, the Criminal Code (WA) s 557A provides for a presumption as to intention. See, for example, Fattal v R [2013] VSCA 276 (conspiracy to do acts in preparation for terrorist attack). See also Elomar v R [2014] NSWCCA 303 (conspiracy in relation to terrorism). Law Commission, Criminal Law: Attempt and Impossibility in Relation to Attempt, Conspiracy and Incitement, Report 102, 1980, p 6. In Britten v Alpogut (1987) 23 A Crim R 254 at 258; [1987] VR 929 at 932, Hunt J noted that ‘in the law of attempt the emphasis lies on the criminal intent of the actor, rather than

40. 41.

42.

43.

44.

45. 46.

47. 48.

on the patent criminality of the act which he performed’ and that ‘the act itself may be innocuous’. See the comments on the potential overreach of inchoate liability: Nirta v R [1983] FCA 330; (1983) 79 FLR 190; Tagiao Ah-Chong v R [2015] NZSC 83 at [7]. The attempt is not always a distinct offence. In some cases, the attemptor is ‘deemed’ to have committed the substantive offence: see Drugs Misuse Act 1986 (Qld) s 117, excluding s 536 of the Criminal Code (Qld). Crimes Act 1900 (NSW) s 344A; Criminal Law Consolidation Act 1935 (SA) s 270A. Although some elements of the statutory provisions are governed by the common law; see, for example, the issue of remoteness under the Criminal Code (Tas). In Haas v R [1964] Tas SR 1, a conviction for attempted murder was returned although the injuries were not capable of causing death. See Criminal Code Act 1995 (Cth) s 11.1(4)(a); Criminal Code (ACT) s 44(4)(a); Criminal Code (NT) s 4(3) Sch I; Criminal Code (Qld) s 4(3); Criminal Code (Tas) s 2 (2) contained in Sch I; Crimes Act 1958 (Vic) s 321N(3); Criminal Code (WA) s 4. Section 4(2) of the Criminal Code (Qld) provides that it ‘is immaterial, except so far as regards punishment, whether the … complete fulfilment of the offender’s intention is prevented by circumstances independent of his or her will …’, and s 4(3) provides that ‘it is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence’. Issues relating to so-called legal impossibility are not governed by this provision: see R v Barbeler [1977] Qd R 80. Section 2(1) of the Criminal Code (Tas) defines an attempt as ‘an act or omission … forming part of a series of events which if it were not interrupted would constitute the actual commission of the crime’; and s 2(2) states that the offence of attempting to commit a crime may be committed ‘whether under the circumstances it was possible to commit such crime or not’. The Criminal Code (WA) s 4 provides that it is ‘immaterial that by reason of circumstances not known to the offender, it is impossible in fact to commit the offence.’ Section 321N(3) of the Crimes Act 1958 (Vic) provides that a person may be guilty of attempting to commit an offence ‘despite the existence of facts of which he or she is unaware which make the commission of the offence attempted impossible’. Section 11.1(4) of the Commonwealth Criminal Code provides that a person may be found guilty even if committing the offence attempted is impossible. See also Criminal Code (ACT) s 44(4)(a); Criminal Code (NT) s 4(3) Sch I. The Victorian and Western Australian provisions are modelled on s 1 of the Criminal Attempts Act 1981 (UK): see Weggers v The State of Western Australia [2014] WASCA 57 at [85] per McClure P; Rolls v R; Sleiman v R [2011] VSCA 401 per Harper JA at [45]. See R v Irwin [2006] SASC 90 at [10] per Bleby J. A burglary might fail because the thieves could not gain entrance to the safe or because the jewels had been moved to another place. A person who administered a potent poison, such as arsenic, in doses too small to kill could be convicted of attempted murder, but the person who administered a non-poisonous substance (such as bicarbonate of soda), mistaking it for arsenic or mistakenly believing that it was poisonous, could not. No distinction should be made between such cases: see R v Irwin [2006] SASC 90; (2006) 94 SASR 480 at [26] per Bleby J. See R v McCoy [2001] NSWCCA 255; [2001] 51 NSWLR 702 at [16]–[17] per Hulme J. R v Percy Dalton (London) Ltd (1949) 33 Cr App R 102 at 110. Note the similarity to the definition in the Criminal Code (Tas) s 2(1): ‘An attempt to commit a crime is an act or omission … forming part of a series of events which if it were not interrupted would constitute the actual commission of the crime.’

49. [1975] AC 476 at 490. 50. In an article not conspicuous for its moderation (as Lord Bridge put it), Glanville Williams described Anderton v Ryan as ‘the worst decision on a point of law by an English court of standing this century’. G Williams, ‘The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes?’ [1986] Cambridge Law Journal 33 at 37. The learned author described Haughton v Smith in similarly scathing terms. 51. See also R v Tulloch (1986) 83 Cr App R 1; [1985] Crim LR 50. 52. Onuorah v R [2009] NSWCCA 238; R v Mai (1992) 26 NSWLR 371; 60 A Crim R 49; R v Gulyas (1985) 2 NSWLR 260; 15 A Crim R 472; Kassis v Katsantonis [1984] 3 NSWLR 330. 53. See R v Mardon [2015] SADC 78 at [21]; R v Finnagan (No 2) [2015] SADC 55 at [50]; R v Richards [2015] SADC 44; R v Irwin [2006] SASC 90; (2006) 94 SASR 480 at [10]; R v Collingridge (1976) 16 SASR 117; R v Williams (1978) 19 SASR 423; R v Kristo (1989) 39 A Crim R 86. 54. See Britten v Alpogut [1987] VR 929 at 935–6, 938; 23 A Crim R 254 at 261–2, 264, where the Victorian Court of Criminal Appeal said that Haughton v Smith did not state the common law of Victoria. In Cogley v R [1989] VR 799; (1989) 41 A Crim R 198, the court clearly indicated a preference for Britten v Alpogut over Haughton v Smith, the latter being regarded as a flawed decision: (1989) 41 A Crim R 198 at 205–6. Note that the case did not turn on s 321N of the Crimes Act 1958 (Vic): see 7.30. 55. R v Lee (1990) 1 WAR 411 at 423, 433; 47 A Crim R 187 at 198, 209; R v English (1993) 10 WAR 355; 68 A Crim R 96. 56. [1987] VR 929 at 939; 23 A Crim R 254 at 264. 57. R v Lee (1990) 1 WAR 411 at 423; 47 A Crim R 187 at 198. A decade prior, in R v Abbot (CCA(WA), Library No 2878, 24 April 1980, unreported), the ‘steps formula’ was applied. The accused was charged with importing a prohibited import, namely heroin. He went to Penang to collect what he believed to be heroin. He brought a briefcase and its contents back into Australia. The substance contained in the briefcase was shown not to be heroin. The trial judge directed the jury that it was open to convict for attempted importation because the accused had done everything he set out to do. The court held that the common law applied to s 233B(1c) of the Customs Act 1901 (Cth), rather than s 4 of the Criminal Code (WA). The court held, relying on the Percy Dalton ‘steps formula’, that the failure to prove heroin in the suitcase was fatal to the attempt no less than to the full crime. 58. [2006] SASC 90; (2006) 94 SASR 480 at [26]. 59. See also Farrance [1978] RTR 225; Neilson [1978] RTR 232. 60. (1976) 16 SASR 117 at 118–19. 61. See also R v Wyatt (1888) 22 SALR 105; R v Hensler (1870) 11 Cox CC 570; R v Roebuck (1856) 7 Cox CC 126; Light (1915) 11 Cr App R 111. 62. The court clearly indicated a preference for Britten v Alpogut over Haughton v Smith, the latter being regarded as a flawed decision: (1989) 41 A Crim R 198 at 205–6. Note that the case did not turn on s 321N of the Crimes Act 1958 (Vic). 63. See the prosecution guidelines prepared by the Commonwealth Director of Public Prosecutions ‘Charging Importation Cases Involving Substitution of Drugs or Precursors’, Instruction No. 5, 2012, (accessed 31 March 2016). 64. (1992) 26 NSWLR 371 at 381–2. His Honour distinguished R v Kristo (1989) 39 A Crim R 86 either as a category four case (insufficiency of means) or as turning on the special category of cases involving attempts at financial deception where the last act constituting

65. 66. 67. 68.

69.

70. 71.

72. 73. 74.

75. 76. 77. 78.

the crime is done not by the criminal but by the victim or intended victim. Franze v R [2014] VSCA 352 at [55]. See R v Irwin [2006] SASC 90 at [10] per Bleby J. Thus, in R v CAP [2009] QCA 174, the female complainant acting under compulsion from the defendant could not be charged with the act or with attempting to commit the act. It is factually impossible to commit the offence in the second case, although the accused can be convicted of the attempt. It is legally impossible to commit the offence in the first case, and he cannot be convicted of the attempt. It is legally impossible not because his acts would constitute ‘no offence’ if prosecuted as the completed offence — that applies equally to the case of factual impossibility. It is legally impossible because the acts are insufficiently proximate to the recognised offence of unlawful sexual intercourse. Although cases like these are unlikely to take up much time in the criminal courts, recent legislative steps by the Commonwealth, South Australia and Tasmania to criminalise possession of child pornography may generate similar problems. The previous rule in Queensland that persons below 17 years of age could not consent to anal sex has been amended, with a reduction of the age to 16 years: see Health and Other Legislation Amendment Act 2016 (Qld). R v Mai (1992) 26 NSWLR 371; 60 A Crim R 49 at 55. Perry v R (1982) 150 CLR 580 at p 593 per Murphy J. Sorcery, witchcraft and blasphemy are very real crimes in some parts of the world. See R Pelgrim, Witchcraft and Policing: South Africa Police Service Attitudes Towards Witchcraft and Witchcraft- Related Crime in the Northern Province, African Studies Centre, Leiden, NL, 2003. In Saudi Arabia, sorcery is a capital crime. Commissioner of the Australian Federal Police v Fitzroy All Pty Ltd [2015] WASC 320. Crimes Act 1958 (Vic) s 192E. See Criminal Code (Qld) s 535. However, an offence that is a simple offence may in some instances be defined to include specific reference to an attempt: see, for example, Summary Offences Act 2005 (Qld) s 20 (preventing or attempting to prevent public meetings); s 22 (imposing or attempting to impose to obtain money). See also Drugs Misuse Act 1986 (Qld) s 117. In Western Australia, the Criminal Code was amended in 1990 such that an attempt to commit a simple offence is a simple offence: s 555A. This is also the position in South Australia: Criminal Law Consolidation Act 1935 (SA) s 270A(4), and in Tasmania: see Justices Act 1959 (Tas) s 74; Acts Interpretation Act 1931 (Tas) s 31. Criminal Code (Cth) s 11.1(7). See also Franze v R [2014] VSCA 352 at [126]. See Isaac v R (1996) 87 A Crim R 513. Criminal Code Act 1889 (Qld) s 5. In the unlikely event that a common law offence was charged in Queensland, the information would be dismissed. For a comprehensive treatment of the crime of conspiracy at common law and under the Criminal Code 1995 (Cth), see R v LK (2010) 241 CLR 177; [2010] HCA 17. The statement by Willes J has been approved by the High Court: see at [62] per French CJ and the cases referred to. See also Peters v R [1998] HCA 7; (1998) 192 CLR 493 (conspiracy to defraud). See also New South Wales Law Reform Commission, Complicity, Report 129, 2010, at 169; Australia, Attorney-General’s Department, Review of Commonwealth Criminal Law: Principles of Criminal Responsibility and Other Matters, Interim Report, 1990; Victoria, Criminal Law Working Group, Report on Conspiracy, 1982; England and Wales, Law Commission, Criminal Law: Attempt, and Impossibility in Relation to Attempt, Conspiracy and Incitement, Report 102, 1980; P Gillies, The Law of Criminal Conspiracy, 2nd ed, Federation Press, Sydney, 1990, p 16.

79. See Rolls v R [2011] VSCA 401 at [4] per Weinberg JA referring to academic works: see S Bronitt and B McSherry, Principles of Criminal Law, 3rd ed, Thomson Reuters, Sydney, 2010, 459, [8.85]; also Ordinance of Conspirators 1305 (33 Edw I, st 2), discussed in Gillies, above n 78, p 1. 80. See R v Saik [2006] UKHL 18; [2007] 1 AC 18 at [123] per Lord Brown of Eaton- underHeywood; Elomar v R [2014] NSWCCA 303. 81. Nirta v R [1983] FCA 330; (1983) 79 FLR 190; Tagiao Ah-Chong v R [2015] NZSC 83 at [7]. 82. See Lipohar v R (1999) 200 CLR 485 at [42] (on territorial nexus). 83. Crimes Act 1958 (Vic) ss 321, 321F(1). 84. See Criminal Code (Cth) s 11.5; Criminal Code (ACT) s 48; Criminal Code (NT) ss 43BJ, 282–293; Criminal Code (Qld) ss 541–543; Criminal Code (Tas) s 297; Criminal Code (WA) ss 558 and 560. The Tasmanian Code does not define the inchoate crimes of conspiracy and incitement: Criminal Code 1924 (Tas) Pt 8, Conspiracies and Crimes Relating to Other Crimes. 85. See R v RK [2008] NSWCCA 338; (2008) 73 NSWLR 80 at 91 [49] per Spigelman CJ; also R v LK; R v LK (2010) 241 CLR 177; [2004] HCA 17 at [72] per French CJ. The words ‘conspires’ and ‘conspiracy’ used in s 11.5 of the Criminal Code (Cth) s 11.5 are to be understood by reference to the common law subject to express modification under that section: Ansari v R (2010)241 CLR 299; [2010] HCA 18 at [58]. 86. See Dickson v R (2010) 241 CLR 491; [2010] HCA 30 where it was held that s 321 of the Crimes Act 1958 (Vic) was excluded by s 11.5 of the Commonwealth Criminal Code. One example of a difference between the common law and Commonwealth Code provisions is that it is not an offence to enter into an agreement to commit a lawful act by unlawful means under the Code: R v Ansari [2007] NSWCCA 204 at [66] per Howie J. 87. Criminal Code (Cth) s 11.5(3)(a). 88. Criminal Code (ACT) s 48(5)(a); Criminal Code (NT) s 43BJ(4)(a). 89. Crimes Act 1958 (Vic) ss 321, 321F(1). Under s 321, if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement, he is guilty of the indictable offence of conspiracy. The Crown must prove that he and at least one other party to the agreement intended to commit the offence that was the subject of the agreement. The section provides that a person may be guilty of conspiracy to commit an offence notwithstanding the existence of facts of which he is unaware which make commission of the offence by the agreed course of conduct impossible. The expression ‘facts of which he is unaware’ is ambiguous. It is uncertain whether this phrase should be interpreted broadly to include mistakes about processes and consequences (eg, whether cocaine can be extracted from lignocaine) as well as mistakes about the existence of objective facts (eg, whether a substance is lignocaine or procaine). 90. For example, adultery is not a criminal offence and therefore a conspiracy to facilitate adulterous relationships would not amount to a criminal offence — unless the offence of conspiracy to corrupt public morals is still part of the common law of Australia. In Shaw v Director of Public Prosecutions [1961] UKHL 1; [1962] AC 220, the House of Lords recognised such an offence. In Gollan v Nugent [1988] HCA 59; (1988) 166 CLR 18 (a civil case) the High Court did not interfere with the assumption of both parties that such an offence did exist. The better view is that it does not: see PGA v R [2012] HCA 21 at [145] per Heydon J.

91. The High Court had an opportunity to do so in R v Barbouttis S51/1996 [1996] HCATrans 397, but the facts did not provide an appropriate vehicle to do so and the Court revoked a grant of special leave. For a full discussion of the case see 7.52. 92. [1976] QB 985 at 993F. In R v Bajwa (Naripdeep) [2011] EWCA Crim 1093, the Court of Appeal noted this statement with approval, and said (with questionable accuracy) that it was not undercut by the House of Lords decision in Director of Public Prosecutions v Nock [1978] AC 979; [1978] 2 All ER 654. 93. [2011] VSCA 401 at [61]. See (1981) 59 The Canadian Bar Review 301 at 303. 94. See also Director of Public Prosecutions v Nock [1978] AC 979 at 994; [1978] 2 All ER 654 at 658 per Lord Scarman: ‘The mens rea of the offence [of conspiracy] is the intention to do the unlawful act: the actus reus is the fact of agreement’. 95. [1985] HCA 29; (1985) 156 CLR 473 at [21]. 96. See above n 94. 97. ‘It is impossible to comprehend two people forming an agreement unless the subject matter of the agreement is known’: R v Ansari [2007] NSWCCA 204 at [63] per Howie J. See also Miles v R [2014] ACTCA 18 at [30] per Ross J. 98. [1998] HCA 7; 192 CLR 493 at [55]. 99. See R v Trudgeon (1988) 39 A Crim R 252, cited in R v Ansari [2007] NSWCCA 204 at [61] per Howie J. 100. Rolls v R [2011] VSCA 401 at [28] per Weinberg JA; [75] per Harper JA. 101. Nirta v R [1983] FCA 330; (1983) 51 ALR 53. 102. Rolls v R [2011] VSCA 401 at [28] per Weinberg JA; [75] per Harper JA. 103. Nirta v R [1983] FCA 330; (1983) 51 ALR 53. 104. R v Ansari [2007] NSWCCA 204 at [67] per Howie J. See also Ansari v R (2010) 241 CLR 299; [2010] HCA 18. 105. In some cases, it may be sufficient to show an awareness of the possibility that it might exist or indifference as to whether it existed or that it was something he or she should have been aware of even if they were not: see R v LK (2010) 241 CLR 177; [2010] HCA 17 at [94], [114]; R v Ansari [2007] NSWCCA 204 at [68]–[78] per Howie J. 106. [2008] NSWCCA 338; 73 NSWLR 80 at [69]. 107. (2010) 241 CLR 177; [2010] HCA 17 at [77]. 108. See, for example, R v Saik [2006] 4 All ER 866; [2006] UKHL 18 (House of Lords). 109. This is true both at common law and under the Commonwealth Criminal Code: see R v Ansari [2007] NSWCCA 204 at [76] per Howie J (Simpson and Hislop JJ agreeing); approved in Ansari v R (2010) 241 CLR 299; [2010] HCA 18 at [18] per French CJ. See also R v LK (2010) 241 CLR 177; [2010] HCA 17 at [6] per French CJ. An agreement to commit an absolute or strict liability offence may be charged as a conspiracy with the same caveat: see Churchill v Walton [1967] 2 AC 224; [1967] 1 All ER 497; R v Ansari [2007] NSWCCA 204 at [85] per Howie J. 110. A person who foresees the possibility that his or her victim may not consent to sexual intercourse but intends to have sexual intercourse even if the victim is not consenting is guilty of rape. Rape is an offence which may be committed recklessly: see Banditt v R [2005] HCA 80; 224 CLR 262. And see the comments by Baroness Hale in R v Saik [2006] 4 All ER 866 at [99]. 111. See R v Saik [2006] 4 All ER 866; [2006] UKHL 18 (House of Lords) at [4] per Lord Nicholls; R v G [2003] UKHL 50; [2004] 1 AC 1034. 112. R v Ansari [2007] NSWCCA 204; but see R v Saik [2006] 4 All ER 866; [2006] UKHL 18.

113. See [2007] NSWCCA 204 at [66] per Howie J for differences between the common law and the Commonwealth Criminal Code. 114. [2007] NSWCCA 204 at [68]. 115. ‘If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element’: Criminal Code (Cth) s 5.4(4). 116. [1978] 2 All ER 654 at 660. 117. While the indictment charged a conspiracy to produce drugs in breach of the statutory provision, the agreement as proved showed merely a failed attempt. 118. See R v Bolus [2003] NSWSC 661 at [22] per Howie J; R v Murray [2001] NSWCCA 289; R v Kapeliotis (1995) 82 A Crim R 300; R v Barbouttis (1995) 82 A Crim R 432; [1995] NSWSC 115; R v Kingswell [1984] 3 NSWLR 273. 119. R v Wilk (1982) 32 SASR 12. 120. As noted by Solicitor-General Mason in argument before the High Court in Barbouttis v R: ‘Nock has tended to follow its progenitor Haughton v Smith into disfavour’; but although Nock may be dead, it is yet to be buried: R v Barbouttis S51/1996 [1996] HCATrans 397. The authority of the decision was no doubt weakened by the barrage of criticism to which Haughton v Smith was subjected, as well as the passage of the Criminal Attempts Act 1981 (UK). 121. (2010) 241 CLR 177; [2010] HCA 17 at [65]. 122. See M Barrett, ‘Conspiring to do the Impossible: The Queen v Barbouttis - Commentary on an appeal to be heard against a judgment of the NSW Court of Criminal Appeal’ [1996] 3 High Court Review: see . 123. R v Barbouttis (1995) 82 A Crim R 432; [1995] NSWSC 115 at [10]. 124. R v Barbouttis S51/1996 [1996] HCATrans 397. 125. (1995) 82 A Crim R 432 at 441; R v Barbouttis S51/1996 [1996] HCATrans 397 at [36]. 126. (1995) 82 A Crim R 432 at 441. 127. (1995) 82 A Crim R 432 at 440. 128. In R v Turner (No 8) [2001] TASSC 86 at [4] Blow J stated: ‘Impossibility can sometimes be a defence to a conspiracy charge. If two or more people conspire to do something which they falsely believe to amount to an offence, they are not guilty of the crime of conspiring to commit an offence: R v Eid [1999] NSWCCA 59; (1999) 46 NSWLR 116. When three men conspired to purchase certain cigarettes, falsely believing that they were stolen, they were not guilty of the common law crime of conspiring to commit the offence of receiving stolen property, since it was impossible for them to commit that offence. The New South Wales Court of Criminal Appeal so held in R v Barbouttis (1995) 82 A Crim R 432’. 129. For a commentary on the Court of Criminal Appeal decision, see M Barrett, ‘Conspiring to do the Impossible’ (in R v Barbouttis (1995) 82 A Crim R 432; [1995] NSWSC 115). 130. R v Barbouttis S51/1996 [1996] HCATrans 397. 131. As noted by the NSW Court of Criminal Appeal in Onuorah v R [2009] NSWCCA 238 although both Gleeson CJ and Brennan CJ considered that the solution lay in focusing upon the indictment, the former regarding the indictment and particulars in support as capable of supporting a conviction, whereas on the view expressed by Brennan CJ, the indictment would have required amendment in order to accommodate the element of belief referred to in the particulars. What precisely would the amendment look like? The existing indictment charged: ‘to commit a Criminal offence, namely the offence of receiving stolen property’. Had the indictment read ‘to acquire specific [named] goods believing them to be stolen’ the problem presumably would not have existed. 132. Conspiracy charges were laid because the conviction of a person arrested at the same time

133. 134. 135. 136. 137.

138. 139.

140.

141. 142. 143. 144.

145. 146. 147. 148. 149. 150. 151.

on a charge of being knowingly concerned in the manufacture of methylamphetamine was set aside by the Court of Appeal in light of evidence that the process in question was incapable of yielding that drug. R v Turner (No 8) (2001) 162 FLR 251; [2001] TASSC 86 at [6]. [2003] NSWSC 661 at [22]. Crimes Act 1958 (Vic) s 321L. Crimes Act 1958 (Vic) ss 321G, 321H. This provision was considered by the Victorian Court of Appeal in Massie v R [1999] 1 VR 542, where Brooking J emphasised the importance of relating the charge to the facts in the case. It was not necessary to explain every aspect of incitement and, in particular, there was ‘no point in telling the jury about impossibility (s.321G(3)) where no question of impossibility arises’: at 546–7. Criminal Code (Tas) s 298; Criminal Code (WA) s 553. Under the Criminal Code (WA) s 1, the term ‘incites’ includes solicits and endeavours to persuade. In the United Kingdom, the common law offence of incitement was abolished and replaced with various statutory offences relating to encouragement and assistance: Serious Crimes Act 2007 (UK) ss 44–46, 59. There is no express reference to a defence of impossibility. For a discussion of the UK provisions see: R v Sadique [2012] 2 All ER 793; [2011] EWCA Crim 2872. New South Wales Law Reform Commission, above n 78, p 237. In Director of Public Prosecutions v Nock [1978] AC 979; [1978] 2 All ER 654, a distinction was drawn between conspiracy and attempt, on the one hand, and incitement on the other. This view is unlikely to be followed in Australia. [1919] 2 KB 125 at 126–7. [1983] QB 1083 at 1088; [1983] 1 All ER 189 at 191. [1983] QB 1083 at 1092; [1983] 1 All ER 189 at 194. It is not an offence under federal law to incite to attempt a criminal offence; to incite to conspire with others to commit a criminal offence; or to incite to incite a criminal offence: see Criminal Code (Cth) s 43BI(7). In Franze v R [2014] VSCA 352 at [73], the court noted the view expressed by Glanville Williams that a charge of incitement to conspire was bad in law: see G Williams, Textbook of Criminal Law, Stevens & Sons Limited, London, 2nd ed, 1983, p 424. See, for example, Director of Public Prosecutions v LW [2009] VSC 227; R v Leak [2011] VSC 212; R v Najibi [2015] VSC 260; R v Pratley [2013] VSC 298. R v Fitzmaurice [1983] QB 1083; [1983] 1 All ER 189. [1977] 1 QB 868 at 872. [1977] 1 QB 868 at 872. [1977] 1 QB 868 at 873. [1977] 1 QB 868 at 873. [1977] 1 QB 868 at 875. See the discussion of this case in Williams, above n 29, p 312.

[page 217]

8 Duress, Compulsion and Coercion Introduction 8.1 Duress is recognised with variations as a defence1 in all Australian jurisdictions, and in international law.2 It is also well established that duress falling short of legal duress may be relevant to sentence.3 The defence of duress protects a person from criminal responsibility for an act or omission done in order to avoid serious and imminent harm threatened by a third person. 8.2 The term ‘duress’4 is most commonly used in Australia, although two jurisdictions refer to ‘compulsion’. By whatever name, duress has a long history stretching back to the 14th century.5 For much of that history it was rarely pleaded, although it has carried more weight recently, due perhaps to the increased concentration of criminal activity by associations and gangs, where threats and intimidation are commonplace. Academic writings on the doctrine of duress are extensive and, as with necessity, inversely proportional to the decisional law on the subject.6 [page 218]

Sources of law — an overview 8.3 The Australian law of duress falls into four distinct groupings: • In New South Wales7 and South Australia,8 the common law applies. • In the Australian Capital Territory, Northern Territory, Victoria and Western Australia, the law is modelled on s 10.2(2) of the Criminal Code 1995 (Cth): see Criminal Code 2002 (ACT) s 40(2); Criminal Code (NT) s 43BB; Crimes Act 1958 (Vic) s 322O; Criminal Code 1913 (WA) s 32. • Queensland is governed by the Criminal Code 1899 (Qld): see s 31(d). • Tasmania is governed by the Criminal Code 1924 (Tas): see s 20(1).9 The term ‘duress’ is used at common law and in the Commonwealth, Australian Capital Territory, Northern Territory and Western Australian Criminal Codes, and in the Victorian Crimes Act. The term ‘compulsion’ is used in the Queensland and Tasmanian Criminal Codes, and in the New Zealand Crimes Act 1961. The term ‘coercion’ is also used in relation to the doctrine of marital coercion: see 8.50. [page 219] 8.4 Turning first to those jurisdictions modelled on the Commonwealth Criminal Code, namely Victoria,10 the Australian Capital Territory,11 the Northern Territory12 and Western Australia,13 the Code provides that a person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress. A person carries out conduct under duress if: • he or she reasonably believes that a threat has been made that will be carried out unless an offence is committed; and • there is no reasonable way that the threat can be rendered

•

ineffective; and the conduct is a reasonable response to the threat.

Moreover, the defence is not available if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out. 8.5 Duress is available in relation to any offence against Commonwealth law.14 In light of the broader scope of the federal defence of duress it is possible that constitutional challenge may be brought in cases under State law where federal interests are engaged: see Chapter 1. The federal duress provision is broadly similar to the articulation of the defence under the Rome Statute.15 8.6 In Queensland, the term ‘compulsion’ appears only in the heading of s 31 of the Criminal Code. Section 31 provides that a person is not criminally responsible for an act or omission if: (1) … the person does or omits to do the act … … (i) in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and

[page 220] (ii) the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and (iii) doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.

Certain serious crimes are expressly excluded, including murder and any offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element. The Code also withdraws protection from a person who has, by entering into an unlawful association or conspiracy, rendered himself or herself liable to have such threats made.16

8.7 In Tasmania, s 20 of the Criminal Code provides that compulsion by threats of immediate death or grievous bodily harm, from a person actually present at the commission of the offence, is an excuse for the commission by a person: (1) … who is subject to such threats, and who believes that such threats will be executed, and who is not a party to any association or conspiracy the being a party to which rendered him subject to compulsion,

of any offence other than treason, murder, piracy, offences deemed to be piracy, attempting to murder, rape, forcible abduction, aggravated armed robbery, armed robbery, aggravated robbery, robbery, causing grievous bodily harm, and arson. The New Zealand Crimes Act 1961 is to like effect: s 20.

Duress and other defences 8.8 Duress has some affinity with other defences. Perhaps the closest analogy is with necessity, but the key difference is that duress implies a threat from a human agency, whereas in necessity the threat emanates from a natural source.17 In duress, the accused responds to an unlawful threat, which distinguishes duress from superior orders.18 Duress is significantly different to self-defence due to the innocence of the victim. Duress is also very different from the qualified defence of provocation, which presupposes a loss of self-control rather than deliberate risk aversion. In R v Hasan [2005] 2 AC 467; [2005] UKHL 22 at [19] Lord Bingham of Cornhill said: Duress affords a defence which, if raised and not disproved, exonerates the defendant altogether. It does not, like the defence of provocation to a charge of murder, serve merely to reduce the seriousness of the crime which the defendant has committed. And the victim of a crime committed under duress is not, like a person against whom a

[page 221] defendant uses force to defend himself, a person who has threatened the defendant or been perceived by the defendant as doing so. The victim of a crime committed under duress may be assumed to be morally innocent, having shown no hostility or aggression

towards the defendant. The only criminal defences which have any close affinity with duress are necessity, where the force or compulsion is exerted not by human threats but by extraneous circumstances, and, perhaps, marital coercion …

8.9 Duress is sometimes referred to as ‘moral involuntariness’ because the ‘will’ of the actor is overborne. It should be clearly distinguished from other kinds of ‘unwilled’ actions. The most obvious is that of physical compulsion. If A deliberately pushes B into C, who falls and suffers injury, A rather than B is responsible.19 Or, if A deliberately pushes the hand of B onto a detonator that causes an explosion, B cannot be said to have acted at all.20 In neither case has B performed any act for the purposes of the criminal law and cannot be held responsible for the consequences the original actor set in train.21 B’s will was not engaged. These are really cases of involuntariness22 or ‘noact’.23 Cases of this sort are sometimes referred to as compulsion, or physical compulsion. In physical compulsion there is no exercise of choice, no relevant voluntary act.24 8.10 A person acting under duress makes a deliberate choice to break the law, although under highly constrained circumstances.25 The subject chooses the lesser of two evils, to do something criminal rather than suffer personal hurt.26 The will is engaged.27 The subject is motivated by fear and by the most fundamental urge [page 222] to avoid serious pain or life-threatening injuries.28 Duress is intimately connected with the impact of fear upon the mind.29

Duress and the fault element 8.11 It is wrong to analyse duress as alleging an absence of the mental fault element required for the crime charged. Duress is a true defence and operates as an independent exculpatory factor. It operates even though all the physical and fault elements required for guilt are

established. A person who intentionally performs a criminal act understanding the significance of what is done may seek exculpation by reference to duress. 8.12 Duress may however provide, in particular circumstances, some basis for raising a reasonable doubt as to the existence of the requisite intent. For example, in R v Goldman (No 4) [2004] VSC 291; 147 A Crim R 472, the accused was indicted on one count of attempted murder and an alternative count of intentionally causing serious injury. The accused claimed in evidence that he was acting under duress when he fired the weapon and that he aimed to miss. Redlich J held that the evidence regarding duress was relevant to the factual determination of the intent required for both offences. It was a relevant factor that the jury would need to consider in relation to the intention to kill. However, duress is not ordinarily related to the negation of mens rea. In R v Palazoff (1986) 43 SASR 99 at 105, Cox J said: It seems to be the better view that duress does not deny the intention to do the forbidden act that is the normal constituent of the mens rea that the common law requires.

And in R v Hasan [2005] 2 AC 467; [2005] UKHL 22 at [18] Lord Bingham said: Where duress is established, it does not ordinarily operate to negative any legal ingredient of the crime which the defendant has committed.

8.13 In relation to statutory provisions, the question whether circumstances of duress are relevant to a denial of the fault element is essentially a matter of statutory interpretation. The case usually cited in this regard is R v Steane [1947] KB 997; [1947] 1 All ER 813. The defendant was charged under the Defence Regulations of doing an act (namely, broadcasting to the allies from Germany during World War II) with intent to assist the enemy. There was evidence that the defendant acted out of fear that the Nazis would send him or his family to a concentration camp. This evidence was capable of sustaining an inference that the defendant lacked the intention to assist the enemy as required by the regulations. The conviction was set aside even though the evidence suggested that the defendant knew the broadcasts could or would be of assistance to the

[page 223] German war effort.30 This was no doubt a generous decision because while such factors might explain why a particular intention was formed it is difficult to see the explanation as providing a basis for denying the intent. Although his motive was self-preservation or the protection of his family, his intention was to undertake the broadcasts which he knew would assist the enemy. 8.14 In R v Tawill (1974) VR 84 at 88, the Full Court of the Supreme Court of Victoria held that duress is a reasonable excuse to a charge of possession of goods unlawfully imported into Australia, and that the onus of proving duress was accordingly cast on the accused. The court said: The words ‘without reasonable excuse’ are words of wide import. We see no reason why defences, answers, justifications or excuses recognized by the established principles governing criminal responsibility, such as absence of mens rea, mistake, insanity, infancy or duress, do not fall within the ordinary grammatical meaning of those words.

It has been held that duress may constitute a ‘reasonable excuse’ under s 233B(1) of the Customs Act 1901 (Cth), although the onus of proof is on the accused.31

The scope of duress 8.15 At common law, duress is a defence to all crimes save murder,32 attempted murder33 and treason.34 In R v Hudson and Taylor [1971] 2 QB 202 at 206 [page 224] Lord Parker CJ said that ‘it is clearly established that duress provides a defence in all offences including perjury (except possibly treason or murder as a principal)’. As to treason, it appears that some kinds of force extenuated some kinds of treason: see R v Brown and Morley

[1968] SASR 467 at 492–3 per Bray CJ. 8.16 In those jurisdictions35 modelled on the Commonwealth Criminal Code, a person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress and if the conduct is a reasonable response to the threat.36 There is no list of excluded offences.37 Therefore, for example, in these jurisdictions duress may be raised as a defence to a charge of murder even by the actual killer. 8.17 In contrast to those more modern provisions, under the Queensland Criminal Code, the defence of compulsion does not extend to murder, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element.38 Nor, by implication, does it extend to attempted murder and those forms of manslaughter involving the infliction of grievous bodily harm.39 Under the Tasmanian Criminal Code, the list of excluded offences is even more extensive and includes treason, murder, piracy, offences deemed to be piracy, attempting to murder, rape, forcible abduction, robbery and robbery with violence, causing grievous bodily harm, and arson.40 [page 225]

Murder and parties to murder 8.18 Historically, in relation to murder the defence of duress was denied to the actual killer.41 According to Blackstone, even under duress a man ‘ought rather to die than escape by the murder of an innocent’.42 This remains the law in New South Wales and South Australia (where the common law governs) and under the Criminal Codes in Queensland and Tasmania. In the remaining jurisdictions duress is available to the actual killer and (a fortiori) to secondary participants. 8.19 In those jurisdictions where duress is denied the actual killer, with the possible exception of New South Wales, duress is also denied secondary participants, that is, those who aid, abet, counsel or procure

the actual killer.43 In South Australia, duress is not a defence to murder, regardless of the degree of participation: R v Brown and Morley [1968] SASR 467 at 497 (Bray CJ dissenting).44 In New South Wales, Glass J favoured allowing duress for minor participation in a killing, drawing upon the minority judgment of Bray CJ.45 In that jurisdiction, duress cannot be raised by the actual killer as a first degree principal.46

Attempted murder 8.20 Australian law covers all options in relation to duress and attempted murder. In those jurisdictions modelled on the federal duress provision, duress may be pleaded to murder and attempted murder. By contrast, in Tasmania, [page 226] compulsion is expressly excluded on a charge of murder or attempted murder: Criminal Code (Tas) s 20(1). 8.21 The position is less clear in the other jurisdictions.47 In those jurisdictions (such as Queensland and South Australia) where duress is available to neither the actual killer nor a principal in the second degree, it is logical to exclude duress for the attempt. The boundaries are ill marked between inchoate liability and secondary participation, and it is desirable that the same rule should govern the availability of duress for each form of liability. The decision by the House of Lords in R v Gotts [1992] 2 AC 412 against allowing duress on a charge of attempted murder points in one direction and is likely to be followed in Queensland and South Australia. 8.22 In New South Wales, if it is the case that duress is available to a principal in the second degree to murder then duress should be allowed on a charge of attempted murder. It will often be the case that the acts constituting aiding and abetting are sufficient to amount in law to an attempt. It would be anomalous if D2, acting under duress in the aiding

and abetting of the killing of V by D1, could be excused if V died but not if V survived. This rule would give D2 every incentive to assist more effectively towards a fatal outcome.48

Manslaughter 8.23 On a charge of murder in the first degree, a direction on duress may be called for, in the event that the jury fails to be satisfied of murder and moves to consider manslaughter.49 In principle, duress should be available on a charge of manslaughter whether the prosecution relies upon gross negligence or an unlawful and dangerous act. Duress may provide an explanation for circumstances under which the deceased was exposed to risk. In Queensland, offences ‘of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element’ are excluded from the defence: Criminal Code (Qld) s 31(2). This has been held to imply the exclusion of manslaughter based upon the infliction of grievous bodily harm: see R v Pickering [2016] QCA 124 at [44]. It would indeed be surprising if the defence were available if the victim died but not if he or she survived.

Accessory after the fact to murder 8.24 It is submitted that the restrictions upon duress in relation to homicide do not apply to an accessory after the fact, which is properly analysed as an offence against justice, not an offence against the person or the State.50 [page 227]

The requirement of reasonableness 8.25 Where a person seeks to avoid criminal responsibility on the basis that he or she had no choice but to commit an offence by reason of duress, the claim is assessed on an objective standard. Were it not so,

criminal responsibility would be determined by the lowest common denominator and the law would lose all credibility. Indeed, a person motivated by an exaggerated sense of threat or danger would be exonerated, while a person of greater sense or fortitude would be accountable. The law may well provide some respite or compassion for the timorous or the weak, but only up to a certain point. At common law and explicitly under the various statutory provisions (with the exception of Tasmania) there is a requirement of reasonableness in the assessment of duress. The behaviour of the accused is judged both by the reasonableness of his or her beliefs, and the appropriateness of the response. 8.26 Whenever the law inserts a requirement of reasonableness, there is a danger that the important division of functions between judge and jury will become blurred. An objective threshold requires the trial judge to determine whether there is sufficient evidence to go to the jury. The judge has a duty to put any matter which arises fairly on the evidence, and no injustice is done by the withholding matters where there is no evidentiary foundation for a defence. This is part of the judge’s duty to limit jury deliberations to matters for which there is a reasonable foundation in the evidence. But care must be taken not to usurp the proper role of the jury by substituting the judge’s sense of what is reasonable for that of the jury. 8.27 An important question that arises concerns the extent to which the personal attributes of the particular accused should be taken into account in determining the reasonableness or otherwise of a person’s conduct. In this area there appears to be an unsettling degree of disharmony among Australian jurisdictions. As to the common law, there is authority to support the view that personal characteristics should be taken into account in determining the reasonableness of the accused’s beliefs and response. In R v Palazoff (1986) 43 SASR 99 at 109; 23 A Crim R 86 at 91, Cox J said that the person of ordinary firmness of mind against whom the accused is to be judged, is a person of the same age and sex and background and other personal characteristics (except perhaps strength of mind) as the appellant.51 In R v Abusafiah (1991) 24 NSWLR 531 at 541–2; 56 A Crim R 424 at

43–5, Hunt J preferred a slightly narrower test, confining personal factors to sex and maturity. His Honour said that if the Crown failed to exclude the reasonable possibility that the accused did the acts by reason of a threat of death or really serious bodily harm to him or his family if he did not do them then:52 [page 228] it must establish in relation to any such threat which may reasonably have been made that there is no reasonable possibility that such was its gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to that threat in the way in which the accused did.

8.28 By contrast, under the federal law (and related provisions) there is authority for saying that the standard is wholly objective. In R v Oblach [2005] NSWCCA 440; (2005) 65 NSWLR 75; 158 A Crim R 586, the accused was charged under federal law with importing a trafficable quantity of cocaine. Duress was raised as a defence. The elements of duress specified under the Commonwealth Code are that the accused reasonably believes that a threat has been made that will be carried out unless an offence is committed; reasonably believes that there is no reasonable way the threat can be rendered ineffective; and reasonably believes that the conduct is a reasonable response to the threat. If there is sufficient evidence of duress to go to the jury, the prosecution must exclude duress beyond reasonable doubt. On appeal against conviction counsel submitted that:53 In considering what the accused himself might have reasonably believed in all the circumstances in which he found himself, account must be taken of all those personal characteristics of the accused which might have affected his appreciation of those circumstances.

The court rejected this submission. The test of duress was wholly objective. It was not necessary for the judge to tell the jury that it was required to have regard to the personal characteristics of the accused and to assess the circumstances as he or she perceived them to be.54 The court approached the matter on the basis of statutory construction of the relevant provisions of the Commonwealth Criminal Code. The

provisions defining duress (s 10.2); sudden or extraordinary emergency (s 10.3); and self-defence (s 10.4) all followed a similar drafting pattern but with some significant textual differences. The court focused on those differences. In relation to self-defence (s 10.4) there was no requirement that the accused ‘reasonably believe’ that a self-defence situation had arisen. There was, however, such a requirement in relation to duress and emergency. Moreover, the reasonableness of the response in self-defence was tested by reference to the circumstances ‘as he or she perceives them’. This expression was omitted from the other two defences. These were important differences. This analysis suggests that the federal law on duress contained in the Code is more stringent than the common law. 8.29 It would be premature to conclude that this analysis has been adopted in other jurisdictions. The matter has arisen in Western Australia: • In Morris v R [2006] WASCA 142; (2006) 201 FLR 325, the appellant was charged with two counts of importing prohibited imports contrary to s 233B of the Customs Act 1901 (Cth). The accused was a 19-year-old who, according to psychological tests, was at the mid-teen intellectual level and functioning as a 15-yearold. In the event, the appeal was dismissed because the court was disinclined to accept that there was any basis upon which a jury might have concluded the appellant reasonably believed there was no effective way for the threat to be rendered ineffective. However, in passing, McClure JA noted that the Oblach test was more stringent than the common [page 229] law and the test applicable to provocation as stated by the High Court in Stingel v R [1990] HCA 61; (1990) 171 CLR 312 at 327. The learned judge did not consider it appropriate to express any opinion on this matter given that the appeal was disposed of on other grounds.

•

•

In Kia v R [2011] WASCA 104, the relevant charge was facilitating the bringing or coming to Australia of non-citizens to whom the requirement to possess a visa applied. On appeal, it was argued unsuccessfully that the trial judge had neglected to direct the jury that, in assessing reasonableness under s 10.2 of the Commonwealth Criminal Code, they should consider what was reasonable from the perspective of the accused, taking into account his or her age, gender and maturity. In Ajayi v R [2012] WASCA 126, the appellant stood convicted of importing a marketable quantity of a border-controlled drug. She sought to raise duress on the basis that she had ingested a quantity of cocaine in Nigeria out of fear for her family’s safety if she did not smuggle the drugs to Australia. Unsurprisingly, this was not seen as a reasonable response by the appellant to the threats of harm. Interestingly, Buss JA at [44] referred to Kia and was prepared to assume that: … the reasonableness of any subjective belief as to the matters specified in pars (a), (b) and (c) of s 10.3(2) may be determined by reference to the appellant’s personal characteristics, to the extent that they are discernible from the conduct of the trial or the evidence.

8.30 Under Queensland law, the defendant must reasonably believe that he or she or the other person is unable otherwise to escape the carrying out of the threat, and doing the act or making the omission must be reasonably proportionate to the harm or detriment threatened.55 This provision was considered by the High Court in Taiapa v R (2009) 240 CLR 95; [2009] HCA 53, discussed at 8.36. 8.31 Interestingly, there is no explicit requirement of reasonableness on the face of the Tasmanian statutory provision: see Criminal Code (Tas) s 20(1). As noted by Slicer J in Rice v Macdonald (2000) 113 A Crim R 75; [2000] TASSC 70 at [32], the section ‘does not preclude regard being had to subjective characteristics of a person claiming to have acted under compulsion’.

The seriousness and immediacy of the threat

8.32 Threats of death or serious harm are recognised at common law as a basis for pleading duress.56 Threats to property may engage compulsion under the Queensland Criminal Code.57 As to the common law, in Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 at 686 Lord Simon observed that a line was drawn between threats of physical harm including possibly imprisonment and threats to property, even though the latter could, in certain circumstances, ‘be as potent in overbearing the actor’s wish not to perform the [page 230] prohibited act as a threat of physical harm’. It is uncertain whether threats of unlawful imprisonment may be relied upon as a possible basis for pleading duress.58 Likewise, any concern about excluding threats of future harm is diminished if the particular threat is tested by reference to the ordinary person test.59 The definition of duress based on the federal provision does not explicitly define the nature of the threat required, but it does provide that the conduct should be a reasonable response to the threat.60 There is an argument that any threat capable of overbearing the mind of a person of ordinary firmness of character should be capable of supporting a defence of duress.61 8.33 All threats relate to the future. The paradigm case of duress exists where D acts to avoid immediate threatened harm: ‘If you do not shoot Smith I will shoot you now!’. But a threat may relate to the more distant future. The question is whether the threatened harm is too remote from the commission of the offence. A threat such as, ‘If you do not give me classified information about the bank security system I will be waiting for you when you get out of prison in 10 years’ time’, would clearly be too remote. The immediacy of the threatened harm is, of course, related to its potency. A threat to kill every member of D’s family next week may be more potent than a threat to beat D now. It is the potency of the threat that matters.

8.34 One measure of immediacy is whether the threatener was actually present when the threat was made. A threat is more immediate if made by a person actually present.62 At common law, immediacy and presence enter into the objective test. They are best regarded as factors entering into the assessment of reasonableness. The question is whether, at the relevant time, the defendant was acting out of fear that the threatened violence was imminent, either there and then or within a short time thereafter.63 The prosecution task of proving that D acted without duress will be made easier if the person responsible for the alleged duress was not present when the act was committed or, being present, was not in a position to prevent D from seeking a safe haven. [page 231] 8.35 In R v Hudson and Taylor [1971] 2 QB 202, duress was allowed to two young women who gave false evidence during a trial at which the person making threats was present. Protection may have been available during the trial, but the court held that the threats were no less compelling because they could be carried out in the streets that night rather than in the courtroom.64 In a later case,65 Lord Bingham expressed some reservation about the ruling which his Lordship thought had ‘the unfortunate effect of weakening the requirement that execution of a threat must be reasonably believed to be imminent and immediate if it is to support a plea of duress …’.66 While one could have some sympathy for the young appellants in the case, Lord Bingham could not accept in principle ‘that a witness testifying in the Crown Court at Manchester has no opportunity to avoid complying with a threat incapable of execution then or there’.67 8.36 In Taiapa v R (2009) 240 CLR 95; [2009] HCA 53, the applicant was a drug dealer indebted to other drug dealers. He was convicted of trafficking in and possession of a dangerous drug under the Drugs Misuse Act 1986 (Qld) ss 5, 9. The defence of compulsion was raised at trial, hopefully no doubt, given that the requirement of actual presence had been removed from s 31.68 He claimed he was acting in

order to save himself and members of his family from harm threatened by two dangerous and violent drug dealers. He claimed he did not believe in the ability of the police to protect him. The trial judge withdrew the issue of compulsion from the jury because there was no evidence that the people the applicant feared were in a position to carry out the threat at the time the applicant engaged in the conduct. The Court of Appeal dismissed the appeal because there was no reasonable ground for the applicant’s belief that the police would be unable to protect him. The court did however note that the decision not to leave the issue was an error, since it was sufficient that the compulsion operating on the mind of the applicant was a present threat of future harm: R v Taiapa (2008) 186 A Crim R 252. The question for the High Court was whether the court below erred in holding that the evidence did not disclose a case fit for consideration by the jury. The applicant submitted that there were certain matters addressed by the court as indicating a lack of reasonable grounds for a belief that the police were able to protect him and that they were matters to be considered by a jury. In rejecting the appeal, the High Court noted at [40] that: The applicant’s belief that police protection may not be 100 per cent safe provided no basis for a reasoned conclusion that it was not. It may explain the applicant’s preference for complying with the unlawful demands. However, an unparticularised concern that police protection may not be a guarantee of safety cannot without more supply

[page 232] reasonable grounds for a belief that there is no option other than to break the law in order to escape the execution of a threat.

The High Court noted that Hudson had been the subject of academic criticism but indicated at [35] that ‘the proposition that the failure of the accused to take advantage of an opportunity to report the threat to the police does not necessarily defeat the defence has been accepted’.

The target of the threat

8.37 At common law, duress extends to threats directed towards third parties, especially family members.69 This is sometimes called indirect duress. In Queensland, the relevant provisions include persons other than the accused within the scope of the threatened harm.70 Under the Commonwealth Criminal Code and those modelled upon it, indirect duress is not expressly excluded.71 The reference is simply to a ‘threat of harm’. There is no explicit requirement that the harm be directed towards the accused. By contrast, s 20(1) of the Tasmanian Criminal Code provides that compulsion by threats of immediate death or grievous bodily harm, from a person actually present at the commission of the offence, is an excuse for the commission by a person who is subject to such threats. This does not appear to extend to indirect duress.

The target of the response 8.38 The Commonwealth Criminal Code provides that a person is not criminally responsible for ‘an offence’ if he or she carries out the conduct constituting the offence under duress. There is similar wording in the Criminal Codes of the Australian Capital Territory, Northern Territory and Victoria. The Western Australia provision is perhaps slightly stronger: a person is not criminally responsible for an ‘act done, or an omission made’ under duress. There does not appear, on the face of these provisions, to be any restriction to the effect that duress cannot be raised in respect of an offence committed against the author of the threat.72 However, such threats might well generate a plea of selfdefence, the retaliation being directed towards the threatener. [page 233]

The nexus between threats and offence 8.39 What if D commits a particular offence not specifically ordered by the threatener?73 On one narrow view of duress, it should not be

available: • Case 1: T tells D1, a prisoner, that unless D1 kills another prisoner he will be killed. • Case 2: T tells D2, a prisoner, that unless D2 joins in a prison escape he will be killed. Assume that D1 and D2 escape from prison together in order to avoid being killed. They are captured and charged with escape. The decision of the Victorian Supreme Court in R v Dawson [1978] VR 536 implies that duress is available only to D2.74 With respect, apart from some particular policy appertaining to prisons, it is difficult to see why. In general, salvation from the execution of T’s threats may lie in means other than doing what T demands. T threatens to kill D unless D drives the getaway car. D steals T’s car and rushes to the police station to seek protection. He is charged with stealing. Why is D a thief when he would not be a robber had he driven the getaway car? One can understand the reluctance of courts to allow fear of reprisals by fellow prisoners to justify jailbreak. Dawson should be confined to that specific context. In R v Lorenz [1998] ACTSC 275, Crispin J said, after referring to Dawson:75 There are theoretical and public policy reasons for confining the defence of duress in this manner. The theoretical basis of the defence of duress is that if a person has carried out an act because his or her will has been overborne by threats then that act cannot be said to have been committed voluntarily. If the threat was related to a more generalised demand such as one for the production of money then whilst the accused may have acted under a significant compulsion his or her will would not have been overborne in relation to the particular act chosen in order to satisfy the demand and it could not be regarded as involuntary. As a matter of public policy it is important to ensure that the ambit of the defence is not expanded to relieve people from criminal responsibility for offences to which the coercion was not directed. The fact that a person has acted in response to such a pressing need will obviously be regarded as a strong mitigating factor. However, pressing needs arise for reasons unrelated to threats. It would not be practicable to effectively excuse criminal behaviour in every case in which it was so motivated.

Self-induced duress 8.40 The protection of duress does not extend to persons who voluntarily enter a situation of predictable duress or fail to remove

themselves from the situation when the opportunity presents itself. This general principle underlies the specific rules relating to contemporaneity and unlawful association. The overwhelming of the will must be operative when the crime was committed. If there was an opportunity to escape from the duress, the defence will fail unless justification can be found in antecedent threats.76 If a person joins an association known by the person to use coercive or violent methods to further its aims, he or she cannot [page 234] rely on duress as an excuse done under the pressure of such coercion.77 Members of paramilitary political groups or criminal gangs fall into this category. However, the question is whether the defendant knew, when he or she joined, the risk of duress arising. This is a jury issue.78 In some jurisdictions, compulsion is specifically restricted in relation to certain offences based upon illegal oath-taking.79 8.41 The position under federal law is that duress is not available if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out. The notion of ‘associating’ is perhaps even looser than that involved in ‘joining’ an organisation or conspiracy, and may limit the availability of duress. The Queensland Criminal Code denies the defence to any person who has, by entering into an unlawful association or conspiracy, rendered him- or herself liable to have such threats made to him or her: s 31(2). In the Tasmanian Criminal Code, duress is not available to a party to any association or conspiracy that rendered him or her subject to compulsion: s 20(1). 8.42 These provisions do not, on their face, require subjective appreciation of the risk of duress arising from the nature of the organisation. The test is objective and does not require consideration of whether the defendant appreciated the risk of compulsion. However, it

is arguable that a person who is compelled under duress to join a criminal organisation should not lose the protection of duress in relation to specific acts performed under ongoing duress. It is possible to construe to words ‘enter into’ and ‘by being a party’ as referring only to willing or voluntary participants.

Complicity 8.43 Criminal conduct is often committed by two or more individuals acting together. The fact that the offence was committed by one party under duress does not insulate the other from criminal responsibility. In R v Bourne (1952) 36 Cr App R 125, a husband was convicted of bestiality when he compelled his wife to have sexual intercourse with a canine. It was no defence that the wife was not charged or, if charged, may have had a complete defence of duress. By contrast, in R v CAP [2009] QCA 174, the defendant was charged in relation to an act of bestiality committed by the female complainant under compulsion from the defendant. The conviction was set aside because it was not possible at that time for the offence of bestiality to be committed by a female and therefore the [page 235] defendant could not be charged as a party.80 In this case, the legal impossibility of committing the offence provided a shield to the secondary party. (The case is distinguishable from R v Whitehouse [1977] 1 QB 868, discussed at 7.62).

The relevance of customary law 8.44 One is born into an ethnic grouping; membership is neither voluntary nor a matter of conscription. Some Indigenous persons choose to live according to mainstream values and mores; others retain

close links with Indigenous culture, a tendency not confined to rural areas. An interesting problem arises where a person identifying as a member of an Aboriginal group or other subculture defends a criminal charge on the basis that he or she was acting in accordance with the demands of customary law or the laws of the group. It is axiomatic that acting under customary law will not of itself provide a justification or excuse for breaking the general criminal law. The sovereignty of the Australian criminal law was determined at settlement. But what if the accused was threatened with bodily harm if he or she failed to carry out some course of action, prohibited by the general law, under pain of punishment for failing to do so? If the person was acting under threats of harm such as to create an appropriate level of fear, duress may well be available. It is the threat of violence, and the ensuring apprehension of fear, that activates duress. 8.45 In order to activate duress, the defence would need to point to the existence of a present and continuing threat (usually of death or grievous bodily harm) for failing to perform a particular act, in circumstances in which a person of ordinary firmness would have committed the act as a response to the threat. It is almost certainly desirable to identify some actual threat made by an individual with the power to carry it out. It will generally be more difficult to substantiate a claim by reference to some generalised fear arising from the existence of customary law. The social cohesion of the particular group and the nature of internal sanctions would be highly relevant to the question of whether the accused believed that the customary law was binding and that a particular punishment would be carried out. This is a matter upon which expert evidence would be indispensable. Indeed, proof of the content and applicability of customary law in the particular circumstances is likely to assume critical significance. 8.46 In R v Warren (1996) 88 A Crim R 78, the appellants were charged with various offences arising out of a conflict between two Aboriginal groups. It was argued before the Supreme Court of South Australia that duress arose only if there was a specific threat of harm made by another person purporting to apply customary law to the circumstances of the case. The prosecution argued that it was not

sufficient to simply assert that customary law imposed a threat of severe harm for failing to act in a certain way. The Chief Justice found it was unnecessary to decide this matter, but noted: 81 If that is so then the law in this respect is somewhat formalistic. It would provide no defence to a person subject to a system of customary law in which there was no person

[page 236] or persons appointed to make authoritative decisions and in which the application of the customary law was, in a sense, self-regulated. I would need to be persuaded by citation of authority or by detailed argument that what the DPP advanced either was or should be the law.

His Honour added that:82 On the other hand, it should also be observed that if duress is available in a case such as the present one, one cannot escape the fact that persons subject to customary law, such as that of the Dieri people, will be able to act in the same manner as the accused should the occasion so require in the future. In short, the acceptance of duress on the basis advanced by the appellants is to accept on a continuing basis the permissibility of the infliction of serious personal injury when members of a relevant group, which need not be Aboriginal people, consider that their law or custom has been broken and that they must punish the infraction under pain of punishment themselves.

8.47 It is doubtful whether mainstream society would tolerate a general exemption from criminal responsibility for serious crimes where the accused believed (indeed, reasonably believed) that he or she would be punished for failing to enforce customary law, and highly doubtful whether society could or would accept such a state of affairs ‘on a continuing basis’. The opposing view would almost certainly damage relations between Aboriginal groups and the broader community. Nor will it do to limit duress to cases where the victim was a member of the same clan or group as the accused, for to do so would be to provide less protection to vulnerable clan members than to members of mainstream society.83 It is not entirely plausible that a member of an Indigenous group should be forced to choose between ‘customary law’ and ‘white man’s law’, so that only those choosing the latter would be entitled to plead duress, on the basis that they were motivated by fear rather than by compliance with customary law.84 As noted by Doyle CJ in Warren,

this matter requires very careful consideration before journeying into the quagmire of conflicting obligations of the criminal law and customary law. The Australian Law Reform Commission did not favour extending the defence of duress as a specific defence in the context of violence arising in customary law settings.85 [page 237]

Family violence 8.48 Family violence is a potent breeding ground for feelings of powerlessness that may lead to duress-induced conduct. The prevalence of widespread family violence in Australia is a matter of growing public awareness and concern.86 A comprehensive review of family violence was undertaken by the Australian Law Reform Commission in 2010.87 The commission noted the existence of judicial benchbooks in some states and territories that provide guidance about the admissibility of family-violence related evidence. In some states there are legislative provisions; for example, in Victoria, evidence of family violence may be relevant in determining whether a person has carried out conduct under duress: Crimes Act 1958 (Vic) ss 322J, 322P. The Jury Directions Act 2015 (Vic) sets out directions which may be appropriate where duress or self-defence is raised in the context of family violence: s 60. In Queensland, relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in certain proceedings, including homicide offences and certain offences against the person: Evidence Act 1977 (Qld) s 132B; see also Domestic and Family Violence Protection Act 2012 (Qld). 8.49 It is now well accepted that domestic violence may produce a lack of independent will on the part of the abused party, usually (but not always) the female partner. Evidence of so-called ‘battered women’s syndrome’ is admissible in support of defences such as duress, provocation and self-defence.88 The theory is seen as casting light on

key questions relevant to the defence, such as the failure to withdraw from a violent relationship, or the degree of psychological domination of one party by the other. The psychological basis of the theory has been criticised89 and battered women’s syndrome has been rejected as a defence in its own right.90 However, in relation to duress it has been held to be relevant to both the objective and subjective aspects of the defence.91 [page 238]

Marital coercion 8.50 The common law presumption that certain offences committed by a married woman92 in the presence of her husband were committed under his coercion has been abolished.93 Failure by the prosecution to rebut the presumption entitled the wife to an acquittal.94 The common law presumption was activated merely by the presence of the husband at the time of committing the offence. The presumption assumed the existence of sufficient coercion to vitiate responsibility from the fact of the husband’s presence. The presumption reflected the prevailing notion that the husband was the dominant partner in heterosexual relationships.95 Marital coercion was provided for under s 32 of the Griffith Code, but this provision is now repealed. The doctrine has no continuing existence except in South Australia and Victoria, where the presumption of marital coercion has been replaced with a statutory defence of marital coercion.96 The Tasmanian Criminal Code provides a defence of compulsion (duress) and provides that a married woman shall be in the same position as regard compulsion by her husband as if she were unmarried.97 The Code also provides that a married person incurs the same criminal responsibility in respect of his or her acts and omissions as if such person were unmarried: s 55. [page 239]

8.51 In Victoria, following a report by the Victorian Law Reform Commission98 that recommended against the abolition of the defence of coercion, the Crimes Act 1958 (Vic) was amended: see Crimes (Married Persons’ Liability) Act 1977 (Vic). The amendment introduced a new division dealing with the ‘Criminal Liability of Married Persons’. Section 336 of the Crimes Act (Vic) now provides: (1) Any presumption that an offence committed by a wife in the presence of her husband is committed under his coercion is hereby abolished. (2) Where a woman is charged with an offence other than treason, murder [or an offence specified in section 4, 11 or 14 of this Act], that woman shall have a complete defence to such charge if her action or inaction (as the case may be) was due to coercion by a man to whom she was then married.99 (3) For the purposes of this section ‘coercion’ means pressure, either in the form of threats or in any other form, sufficient to cause a woman of ordinary good character and normal firmness of mind, placed in the circumstances in which the woman was placed, to conduct herself in the manner charged. (4) Without limiting the generality of the expression ‘the circumstances in which the woman was placed’ in sub-section (3), such circumstances shall include the degree of dependence, whether economic or otherwise, of the woman on her husband. (5) The accused shall bear the burden of adducing evidence that she conducted herself in the manner charged because she was coerced by her husband, but if such evidence has been adduced, the prosecution shall bear the burden of proving that the action or inaction charged was not due to coercion by the husband. (6) This section shall operate in substitution for the common law as to any presumption or defence of marital coercion. (7) This section shall not affect the law relating to the defence of duress.

Further amendments were introduced to the Crimes Act 1958 (Vic) in respect of misprision by a spouse (s 337), as to becoming an accessory after the fact to any indictable offence (s 338) and as to conspiracy and incitement (s 339). In R v Williams (1997) 97 A Crim R 119, the Victorian Supreme Court held that s 336(3) imposed an objective test of coercion, but s 336(4) introduces a degree of subjectivity in determining the degree of dependence. 8.52 ‘Coercion’ is defined as ‘pressure whether in the form of threats or in any other form’ and takes into consideration the wife’s ‘degree of dependence, whether economic or otherwise … on her husband’: Crimes Act 1958 (Vic) s 336(3). It is necessary for the offence to have been a consequence of the husband’s threats. The defence will fail if it can be shown that the defendant would have committed the offence

quite independently of the husband’s threats and presence. The husband may, however, be ‘present’ when ‘he is close enough to influence the wife into doing what he wants done even if he not physically present in the room’.100 The Victorian provision abandons the ‘presence’ requirement. [page 240] 8.53 The degree to which a wife is obliged to resist the threats — that is, the standard of firmness required of her — is purely subjective in all jurisdictions except Victoria, where an objective standard is used. In Victoria, the defence is established only if the threats were ‘sufficient to cause a woman of ordinary good character and normal firmness of mind, placed in the circumstances in which the woman was placed, to conduct herself in the manner charged’.101 8.54

The South Australian provision is in the following form:102

Any presumption of law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband is abolished; but, on a charge against a wife for any offence other than treason or murder, it shall be a good defence to prove that the offence was committed in the presence and under the coercion, of the husband.

The term ‘coercion’ is not defined. The provision refers to coercion as well as presence, and the meanings of these words are far from clear.103 8.55 In Goddard v Osborne (1978) 18 SASR 481, a married woman was charged on two counts of presenting a false document to an officer of the Commonwealth Department of Social Services. In consequence of violence and threats of violence by her husband, she had applied under a false name for unemployment benefits. The husband had accompanied her to the government office where the application was made but waited for her outside and when the cheques were received he had used most of the money. It was held on appeal that the defence of duress had been established and also that it had been sufficiently proved that the offences were committed by the wife ‘in the presence of and under the coercion of the husband’ within the meaning of the relevant section.104

In the judgment of the court, the defence of duress was established but the court went on to consider whether it was also possible to find marital coercion in circumstances where the wife committed the offence away from her husband and not in his presence. The court referred to R v Connolly (1829) 2 Lewin 229; 168 ER 1137 and R v Hughes (1829) 2 Lewin 229; 168 ER 1137 where the court gave an extended meaning to the idea of marital coercion. In Connolly, the prisoner went from house to house uttering base coin. Her husband accompanied her to the door but did not go in, yet Bailey J directed the jury to infer that she was acting under the coercion of her husband and to find her not guilty. In Hughes, the husband did not put his head into the room where the uttering of three two-pound Bank of England notes was going on until the other party was putting the notes into his pocketbook and before the change was paid. In this case, Thompson B directed the jury that the presumption did not apply. However, the court then referred to R v Baines (1900) 69 LJQB 681 where the Court of Crown Cases Reserved referred only to the husband’s being ‘in the neighbourhood’ and left it to the jury to decide whether the wife was acting independently, which would negative the defence of coercion. Similarly, in R v Whelan [1937] SASR 237, a wife uttered a forged [page 241] cheque inside a bank while the husband remained outside. The Full Court of South Australia, having reviewed these various authorities, therefore held that:105 [I]n our opinion it is sufficient if the husband is in a situation where he is close enough to influence the wife in doing what he wants done, even if he is not physically present in the room, and that is the position in the case before us.

Onus of proof 8.56 As with duress, where coercion is argued, the onus of proof is on the prosecution. When the defendant has raised evidence of coercion or

can point to evidence of coercion, the prosecution must show beyond a reasonable doubt that the defendant’s conduct was not caused by such coercion. In South Australia, the expression ‘it shall be a good defence to prove’ in s 328A places a probative burden (on the balance of probabilities) upon the defence.106 The Victorian provision provides, more conventionally, that the accused shall carry an evidential burden, but if relevant evidence has been adduced, ‘the prosecution shall bear the burden of proving that the action or inaction charged was not due to coercion by the husband’.107

Reforming the law 8.57 One significant area relates to the availability of duress on a charge of murder. The question whether duress should be allowed as a defence to murder is essentially a matter of policy.108 The Commonwealth has decided that matter as far as federal offences are concerned. It is, of course, a difficult issue, and academic commentators do not speak with one voice, especially in relation to duress and homicide.109 It is easy to think of hypothetical cases in which the moral guilt associated with a killing falls short of that associated with murder. A parent who acts out of love for a child is perhaps the most obvious case where duress might be put forward as an excuse to murder. Failure to recognise a complete or at least partial defence of duress in such cases may leave the criminal law seriously out of step with community or moral values. There is merit in the suggestion that, in the context of homicide, duress should operate, like provocation, as a qualified defence, reducing what would otherwise be murder to manslaughter.110 [page 242] Another response is to rely upon prosecutorial discretion. This, however, is not satisfactory, due to the relative lack of transparency associated with the prosecutorial decision-making process. Moreover, it is desirable to test a claim of duress, which will almost certainly need to

be supported by sworn testimony from the accused in order to have any chance of success, in the crucible of a criminal trial.111 8.58 The major issue with duress, as with many areas of the law, is the lack of uniformity with respect to the criminal law standard. It is a serious blot on Australian criminal law that such variations continue to exist in Australia. The differences between federal law and the law in other parts of Australia is especially concerning given the risk of constitutional challenge under s 109 of the Constitution in any case in which federal jurisdiction is engaged.

1.

2. 3.

4. 5.

6.

An important point to make about the use of the word ‘defence’ is that it does not imply that any burden of proof rests upon the defence. To the contrary, the persuasive or legal burden of disproving duress rests upon the Crown: see Taiapa v R (2009) 240 CLR 95; [2009] HCA 53 at [5] per curiam. See the Rome Statute of the International Criminal Court art 31(1)(d). See Crimes (Sentencing Procedure Act) 1999 (NSW) s 21A(3)(d); R v Pavlou [2014] NSWCCA 337; Derbas v R [2012] NSWCCA 14; [2011] NSWCCA 215; R v Tiknius (2011) 221 A Crim R 365; SS v R; JC v R [2009] NSWCCA 114; R v Riddell [2009] NSWCCA 96; Police v Ludwig [2015] SASC 183; R v Wilton & Hallion [2014] SADC 205; R v Pham [2014] QCA 287. The term ‘duress’ is also used to define an offence constituted by overbearing conduct in particular contexts: see, for example, Prostitution Act 1999 (Qld) s 77. R v Hasan [2005] 2 AC 467; [2005] 2 WLR 709; [2005] UKHL 22 at [17] per Lord Bingham; Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 at 686 per Lord Simon; [1975] 1 All ER 913 at 931. See S Yeo, ‘Commonwealth and International Perspectives on Self-Defence, Duress and Necessity’ (2008) 19(3) Current Issues in Criminal Justice 345; P Allridge, ‘Duress and the Reasonable Person’ (1983) 34 Northern Ireland Legal Quarterly 125; B Boland, ‘Battered Women Who Act Under Duress’ (1994) 28 New England Law Review, 603; S Borins, ‘The Defence of Duress’ (1982) 24 Criminal Law Quarterly 191; C Carr, ‘Duress and Criminal Responsibility’ (1991) 10 Law and Philosophy 161; E Colvin, ‘Ordinary and Reasonable People: The Design of Objective Tests of Criminal Responsibility’ (2001) 27(2) Monash University Law Review 197; J Edwards, ‘Compulsion, Coercion and Criminal Responsibility’ (1951) 14 Modern Law Review 297; D Elliott, ‘Necessity, Duress and Selfdefence’ (1989) Criminal Law Review 611; W Ferguson, ‘Necessity and Duress in Scots Law’ (1986) Criminal Law Review 103; M Jefferson, ‘The Developing “Duress of Circumstances” Defence’ (1989) 133(26) The Solicitors’ Journal 834; G Orchard, ‘The Defence of Compulsion’ (1980) 9 New Zealand Universities Law Review 105; R O’Regan, ‘Private Defence, Duress and Necessity from a Code Perspective’ (1991) 15 Criminal Law Journal 151; D Pascoe, ‘The Voluntary Exposure Restriction to the Defence of Duress in Australia: A Critical Analysis’ (2013) 4 City University of Hong Kong Law Review 21; P Rosenthal, ‘Duress in the Criminal Law’ (1990) 32 Criminal Law Quarterly 199; A Smith,

7. 8. 9.

10.

11. 12. 13.

14. 15.

16.

17.

18.

‘The Defence of Duress’ (1982) 45 Modern Law Review 464; M Sornarajah, ‘Duress and Murder in Commonwealth Criminal Law’ (1981) 30 International and Comparative Law Quarterly 660; G Williams, ‘The Theory of Excuses’ (1982) Criminal Law Review 732; S Yeo, ‘Private Defence, Duress and Necessity’ (1991) 15 Criminal Law Journal 139; S Yeo ‘The Threat Element in Duress’ (1987) 11 Criminal Law Journal 165. R v Abusafiah (1991) 24 NSWLR 531; 56 A Crim R 424. R v Palazoff (1986) 43 SASR 99. See R v Clark (1980) Tas R 48; (1980) 2 A Crim R 90. Section 20 excludes the common law and can be taken as an exhaustive code of the law relating to duress in Tasmania. See also Crimes Act 1961 (NZ) s 24. The Tasmanian and New Zealand provisions reflect the influence then prevailing of the 19th century draft Criminal Code prepared by Sir James Fitzjames Stephen. Crimes Act 1958 (Vic) s 322O. Following recommendations of the Victorian Law Reform Commission in 2004 the common law defence of duress was abolished and a statutory defence of duress enacted along the lines of the Commonwealth Criminal Code: see Crimes Act 1958 (Vic) ss 322Q, 322O; Victorian Law Reform Commission, Defences to Homicide, Final Report, 2004 at 118. Criminal Code (ACT) s 40(2). Criminal Code (NT) s 43BB. Criminal Code (WA) s 32. The Western Australian Criminal Code was amended along the lines of the Commonwealth Criminal Code following recommendation of the Law Reform Commission of Western Australia, A Review of the Law of Homicide, Project 97, 2007, recommendation 27; see also Law Reform Commission of Western Australia, Aboriginal Customary Laws: The Interaction of Western Australian Law with Aboriginal Law and Culture, Final Report, Project 94, 2006. Criminal Code (Cth) s 10.2(2). See Rome Statute of the International Criminal Court, art 31(1)(d). This provision was passed following the 3:2 decision of the International Criminal Tribunal for the former Yugoslavia (ICTY) in Prosecutor v Erdemovic´ [1997] ICTY 6; 111 ILR 298 rejecting duress as a defence to murder. The Rome Statute was subsequently amended along the lines of the separate and dissenting opinion of Justice Cassese. See B Myers, ‘The Right to Kill or the Obligation to Die: The Status of the Defence of Duress following New Zealand’s Implementation of the Rome Statute of the International Criminal Court’ [2005] New Zealand Yearbook of International Law 17; Yeo, 2008, above n 6. Section 31 was amended by the Criminal Law Amendment Act 1997 (Qld) s 13 following recommendations of the Report of the Criminal Code Advisory Working Group to the Attorney-General, Criminal Code Advisory Working Group, Brisbane, July 1996: see pp 25–6. It was amended again by the Criminal Law Amendment Act 2000 (Qld) s 16 following the Report of the Taskforce on Women and the Criminal Code, Office of Women’s Policy, Brisbane, February 2000. In Akulue v R [2013] NZSC 88; [2014] 1 NZLR 17; (2013) 26 CRNZ 417, the New Zealand Supreme Court held that the common law defence of necessity as preserved by s 20 of the Crimes Act did not extend to cases involving coercion or threats by a third party falling outside s 24. For superior orders to have any chance of success there must be at least the appearance of a lawful command. An order (backed by threats) that was not manifestly unlawful may provide some basis for a plea of superior orders, but it and duress are distinct concepts: see

19.

20.

21.

22. 23. 24. 25.

26.

27.

28.

29. 30.

31.

Chapter 9. See Reniger v Fogossa 1 Pl Com. 1; 75 Eng Rep (1378–1865) 30: ‘(e) So if a man’s arm be drawn by compulsion, and the weapon in his hand kills another, it shall not be felony. And so in all other cases where a man does a thing to which he is forced and compelled, he shall not suffer thereby.’ See R v Brown and Morley [1968] SASR 467 at 499 per Bray CJ. See Middleton v Gough (1908) 5 Adam (SC) 485, where a woman was attacked when she was carrying a child and, as a result of the attack, squeezed and killed the child. Here, the attacker was held by the Scottish court to be the actor in respect of the death and not the woman attacked. See also Hugh v Mitchell (1856) 2 Irv 488. It would be otherwise if there were some pre-arranged plan between A and B for B’s body to be used as an extension of A’s to cause injury to C. In that case, A and B would both be liable. Ryan v R (1967) 121 CLR 205; R v Falconer (1990) 171 CLR 30; 50 A Crim R 244. Kilbride v Lake [1962] NZLR 590. See S Yeo, ‘Voluntariness, Free Will and Duress’ (1996) 70 Australian Law Journal 304. In the South Australian case of R v Palazoff (1986) 43 SASR 99 at 105 Cox J said: ‘The law speaks of a man acting under duress when his will is overborne by another, but that does not mean that his act is involuntary or unwilled in the sense in which those terms are used by Barwick C.J. in Ryan v The Queen (1967) 121 CLR 205. Duress is in this respect sui generis … [I]n a case of duress, the actus reus is voluntary, or willed, and intended, but is, in a real and very relevant sense, undesired. The maxim is coactus volui, but the force is not compulsion, strictly so called, but persuasion created by a dilemma’. Statements suggesting that in duress the threats must overbear the will to the point where the actor is merely an instrument in crime are unhelpful. An actor who chooses to break the law is not a mere passive instrument of crime, but someone motivated by the rational desire to minimise personal exposure to harm: see R v Dawson [1978] VR 536 at 537 per Anderson J. The view expressed by Lord Simon that ‘duress is not inconsistent with act and will, the will being deflected not destroyed’ is now accepted: Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 at 695, and see Lord Edmund-Davies at 709–11; also R v Howe [1987] AC 417 at 436; [1987] 1 All ER 771 at 783 per Lord Bridge. The expression ‘normative involuntariness’ captures the sense in which a person acting under duress is an involuntary agent: Perka v R (1984) 13 DLR (4th) 1; [1984] 2 SCR 232 at 24–9 (SCC). For the relationship between duress, physical compulsion and involuntariness, see Jackson S-PJ in R v Holmes [1960] WAR 122 at 124. The case is somewhat flawed as authority on duress because it turned essentially on the now-discredited doctrine of presumption of intent, evidence of duress being effective to displacing the presumption of intent in favour of a requirement of actual proof: see R v Howe [1987] AC 417 at 428; [1987] 1 All ER 771 at 776–7 per Lord Hailsham, referring to the views of Lord Kilbrandon and Lord Edmund Davies in Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 at 703, 709–10; see also Paquette v R (1976) 30 CCC (2d) 417 at 423 (SCC). As to the logical consequence of adopting this approach, duress could operate as a partial defence in some cases: for example, reducing wounding with intent to murder to unlawful wounding, or assault with intent to cause bodily harm to unlawful assault. See R v Daher [1981] 2 NSWLR 669; 40 ALR 70 and R v Brown (1986) 43 SASR 33;

32. 33.

34.

35.

36.

37.

38.

39.

(1986) 87 FLR 400; (1986) 21 A Crim R 288. These decisions precede the High Court’s analysis of s 233B(1)(b) and (c) in He Kaw Teh v R (1985) 157 CLR 523 where, in Brennan J’s judgment, the ‘reasonable excuse’ provision was said to have a limited purpose only. Section 233B has been repealed although the relevance of duress to ‘reasonable excuse’ may still arise: see, for example, s 233(2). For duress in relation to the federal offence of importation: see R v Oblach [2005] NSWCCA 440; (2005) 65 NSWLR 75; (2005) 158 A Crim R 586; (2005) 195 FLR 212; Morris v R [2006] WASCA 142; (2006) 201 FLR 325, considered at 8.29. The availability of duress on a charge of homicide is considered at 8.18. In R v Gotts [1992] 2 AC 412 (HL); [1992] 1 All ER 832 the House of Lords decided that duress could not excuse attempted murder (thus confirming a dictum by Lord Griffiths in R v Howe [1987] AC 417 at 445; [1986] UKHL 4. More recently, in R v Goldman (No 4) [2004] VSC 291 at [7] Redlich J ruled that duress could be left to the jury in relation to attempted murder. At the time of ruling the defence of duress was governed by the common law in Victoria. The early treason trials in England indicate that being forced to join a rebellion was an answer to a charge of treason, but as Lord Chief Justice Lee said in the English case of Alexander MacGrowther (1746) Fost 13; 168 ER 8: ‘The only force that doth excuse is a force upon the person, and present fear of death; and this force and fear must continue all the time the party remains with the rebels’: see J Hall, General Principles of Criminal Law, 2nd ed, The Bobbs-Merrill Co, Indianapolis, 1960, p 438, citing inter alia: Oldcastle’s Case (1419), 1 Hale, PC 50; 1 East PC 70; Cook’s Case (1660) 5 How St Tr 1077; Stratton (1779) 21 St Tr 1062 at 1223. Namely, the Australian Capital Territory, the Northern Territory, Victoria and Western Australia; the relevant provisions being: Criminal Code (Cth) s 10.2(2); Criminal Code (ACT) s 40(2); Criminal Code (NT) s 43BB; Crimes Act 1958 (Vic) s 322O (inserted by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014); Criminal Code (WA) s 32 (inserted by the Criminal Law Amendment (Homicide) Act 2008 s 6). The common law defence of duress is abolished in Victoria: Crimes Act 1958 (Vic) s 322Q. For the previous position in Victoria, see Crimes (Homicide) Act 2005 (Vic). The Model Criminal Code Committee accepted the view that: ‘Once a person is under the influence of a threat, whatever he or she does depends on what the threatener demands. The crime demanded might be trivial or serious, but it has no necessary connection with the type of threat confronting the accused. Policy reasons would, however, insist that the accused’s response was reasonably appropriate to the threat’. See I Leader-Elliott, The Commonwealth Criminal Code: A Guide for Practitioners, Commonwealth AttorneyGeneral’s Department, Canberra, 2002, p 223; Yeo, 1991, above n 6, at 143. The offence of treason is found in s 80.1 of the Criminal Code, and other offences against government or political crimes may be found in the Crimes Act 1914 (Cth): treachery (s 24AA); sabotage (s 24AB); inciting mutiny (s 25); or piracy (s 52). Criminal Code (Qld) s 31(2). Section 31 was amended by the Criminal Law Amendment Act 1997 (Qld) s 13, upon recommendation of the Report of the Criminal Code Advisory Working Group to the Attorney-General, Criminal Code Advisory Working Group, Brisbane, July 1996, pp 25–6. In R v Gotts [1992] 2 AC 412 (HL); [1992] 1 All ER 832, the House of Lords decided that duress could not excuse attempted murder. Reference was made (at 425) to the position under the Griffith Code. Manslaughter involving the infliction of grievous bodily harm is

40. 41.

42.

43.

44.

45.

46. 47. 48.

49. 50.

51.

probably also excluded: see 8.23. Criminal Code (Tas) s 20(1). New South Wales: R v McConnell [1977] 1 NSWLR 714 (overruling R v McCafferty [1974] 1 NSWLR 89); South Australia: R v Brown and Morley [1968] SASR 467; Abbott v R [1977] AC 755 (Privy Council); Tasmania: Criminal Code (Tas) s 20(1); Victoria: R v Japaljarri (2002) 134 A Crim R 261; Darrington and McGauley v R [1980] VR 353; 1 A Crim R 124; R v Evans and Gardiner (No 1) [1976] VR 517; England: see R v Hasan [2005] 2 AC 467; [2005] 2 WLR 709; [2005] UKHL 22 at [21]. W Blackstone, Commentary on the Laws of England, University of Chicago Press, Chicago, 1979, p 30; see also J F Stephen, A History of the Criminal Law of England, Routledge, London, 1883, vol 2 at 107; Lord Hale, Pleas of the Crown, 1800, vol 1, p 51. In Tasmania, such individuals are deemed to be principals in the first degree (Criminal Code (Tas) s 3) and in Queensland they are deemed to be principal offenders (Criminal Code (Qld) s 7). They are therefore denied access to duress on a charge of murder. The position is the same in the United Kingdom: In R v Howe [1987] AC 417; [1987] 1 All ER 771, the House of Lords (Lords Hailsham, Bridge, Brandon, Griffiths and Mackay): (1) unanimously overruled Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 (Lords Morris, Wilberforce and Edmund- Davies; Lords Simon and Kilbrandon dissenting) by denying duress to the principal in the second degree to murder; (2) affirmed Abbott v R [1977] AC 755 (PC) denying duress to the actual killer; and (3) also excluded duress in relation to an accessory before the fact, disapproving R v Kray (Ronald) [1970] 1 QB 125; [1969] 3 All ER 941; (1969) 53 Cr App R 569. See R v McCafferty [1974] 1 NSWLR 89. There are slender judicial suggestions in Victoria prior to the abolition of common law duress that it ‘might’ be available as a defence to a principal in the second degree of murder. In R v Harding [1976] VR 129; [1976] VicRp 11, the Full Court of the Supreme Court of Victoria held that duress was not an excuse either to a principal in the first or the second degree of murder; but in R v Japaljarri [2002] VSCA 154; (2002) 134 A Crim R 261 at [50], Eames JA said that duress ‘might’ be open to a principal in the second degree, referring to Darrington and McGauley v R [1980] VR 353; 1 A Crim R 124. R v McConnell [1977] 1 NSWLR 714. In R v Goldman (No 4) (2004) 147 A Crim R 472; [2004] VSC 291 at [7], Redlich J ruled that duress could be left to the jury in relation to attempted murder. In the event, perhaps unlikely, of a case of attempted murder arising in or around Cameron Corner, where Queensland, New South Wales and South Australia meet, and throwing up a claim of duress, this scenario would produce some interesting cross-border analysis. R v Evans and Gardiner (No 1) [1976] VR 517 at 522 per Lush J. One who provides assistance to a known felon, intending thereby to assist him or her escape justice, is an accessory after the fact: see P Gillies, Criminal Law, 3rd ed, Law Book Company, Sydney, 1993, Ch 32. This question has arisen in the context of provocation in Stingel v R (1990) 171 CLR 312; 50 A Crim R 186. In that case, the High Court considered the extent to which personal characteristics may be taken into account in relation to the objective test on a charge of murder where the qualified defence of provocation is raised. The court held that only age was attributable to the ordinary person in applying the objective test, except in determining the gravity of the provocation itself: at 327, 331–2; at 195, 198. Gender was not a relevant factor: see Chapter 11.

52. 53. 54. 55. 56.

57. 58. 59.

60. 61. 62.

63. 64. 65. 66. 67.

68.

69.

70. 71.

72.

(1991) 56 A Crim R 424 at 43–5. [2005] NSWCCA 440; (2005) 65 NSWLR 75; 158 A Crim R 586 at [15]. See R v Oblach [2005] NSWCCA 440 at [55]–[60], [88]–[93]. Criminal Code (Qld) s 31(1)(d)(ii)–(iii). Subramaniam v Public Prosecutor (Malaya) [1956] 1 WLR 965 (PC); R v Steane [1947] KB 997 at 1005 per Lord Goddard CJ; R v Valderrama-Vega [1985] Crim LR 220 at 221; R v Williamson [1972] 2 NSWLR 281 at 284, 297–8; R v N (1999) 106 A Crim R 493; [1999] NSWCCA 187. Criminal Code (Qld) s 31(1)(d)(i). See R v Harding [1976] VR 129 at 169 per Murphy J; R v Lawrence [1980] 1 NSWLR 122 at 143. See Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 at 686 per Lord Simon, who assumed that threats of future harm could qualify as a basis for duress, referring to R v Hudson and Taylor [1971] 2 QB 202, contrary to J F Stephen, A Digest of the Criminal Law (Crimes and Punishments), MacMillan, London, 1887, art 10. Criminal Code (Cth) s 10.2(2). R v Abusafiah (1991) 24 NSWLR 531 at 545; (1991) 56 A Crim R 424 at 439 per Hunt J. In R v Ruzic (2001) 153 CCC (3d) 1 the Supreme Court of Canada held that ‘immediate threat’ and ‘present when the offence is committed’ in s 17 of the Canadian Criminal Code required the threatener to be a person present at the scene of the crime who would carry out the threat without delay should the actual perpetrator resist: at [50] per LeBel J. In a previous case, the Supreme Court of Canada rejected duress as a defence to wilful damage by a prison inmate where prisoners locked in separate cells made threats of bodily harm. The threats were neither immediate nor made by persons actually present: see R v Carker (No 2) [1967] SCR 114; [1968] 2 CRNS 16. See also R v Williamson [1972] 2 NSWLR 281 at 284; R v Dawson [1978] VR 536 at 538; R v Brown (1986) 43 SASR 33 at 39; 21 A Crim R 288 at 293. Had the person making the threats not been present in the courtroom, then, at least under the Griffith Code, the decision would have gone the other way. R v Hasan [2005] 2 AC 467; [2005] UKHL 22. R v Hasan [2005] 2 AC 467; [2005] UKHL 22 at [27]. R v Hasan [2005] 2 AC 467 [2005] UKHL 22 at [27]; see also R v Ali [2008] EWCA Crim 716. In Akulue v R [2013] NZSC 88; [2014] 1 NZLR 17; (2013) 26 CRNZ 417, the Supreme Court of New Zealand read Hasan as moving away from the requirements of immediacy and presence. This requirement was removed by the Criminal Law Amendment Act 1997 (Qld) s 13. Compulsion under the Queensland Criminal Code originally required actual presence by a person in a position to execute the threats: see R v Barrow [2001] 2 Qd R 525 at 532–3. R v Hurley and Murray [1967] VR 526 at 542–3 per Smith J; R v Palazoff (1986) 43 SASR 99 at 100 per Zelling ACJ, at 105, 107 per Cox J; R v Brown (1986) 43 SASR 33 at 37 per King CJ; R v Abusafiah (1991) 24 NSWLR 531 at 537; 56 A Crim R 424 at 439 per Hunt J. Criminal Code (Qld) s 31(1)(c), (d)(i). Criminal Code (Cth) s 10.2; Criminal Code (ACT) s 40(2); Criminal Code (NT) s 40; Criminal Code (Tas) s 20(1); Crimes Act 1958 (Vic) s 322O(2)(a)(i); Criminal Code (WA) s 32. Under the previous statutory provision applicable in Western Australia, there are rulings that duress is not available in respect of offences committed against the person making the

73. 74. 75. 76. 77.

78. 79. 80.

81. 82. 83.

84.

85.

86.

threat which constitutes the basis for pleading duress: see State of Western Australia v Auckram [2013] WASC 69 per Heenan J; State of Western Australia v Auckram [No 2] [2013] WASC 170 per Simmonds J. Note that these rulings were based on the previous statutory version of duress within the Criminal Code (WA). It is doubtful whether the position would be different under the 2008 amendment. See B Fisse, Howard’s Criminal Law, 5th ed, Law Book Co, Sydney, 1990, p 542; Gillies, above n 50, p 340. [1978] VR 536 at 538–9. [1998] ACTSC 275 at [39]; (1998) 146 FLR 369 at 377. R v Smyth [1963] VR 737 at 738 per Sholl J. R v Sharp [1987] QB 853 at 861; [1987] 3 All ER 103 at 109; [1987] Crim LR 566; R v Burke, Bannister, Howe and Clarkson [1986] 2 WLR 294; R v Burke [1986] Crim LR 331. And see the specific provisions under the Criminal Code (Tas) relating to sedition and withdrawal from unlawful associations: ss 63, 64. In R v Hasan [2005] 2 AC 467; [2005] UKHL 22 at [39] Lord Bingham said that the defence of duress should not be available when, as a result of the accused’s voluntary association with others engaged in criminal activity, the accused foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence. See R v Smyth [1963] VR 737 at 738 per Sholl J. R v Shepherd (1988) 86 Cr App R 47; [1987] Crim LR 686. Criminal Code (Tas) s 64; see also Criminal Code (WA) s 49. The equivalent Queensland provision has been repealed. Section 211 has since been amended and now reads, ‘Any person who has carnal knowledge with or of an animal is guilty of a crime and is liable to imprisonment for 7 years’. The offence is now gender neutral: see R v MCG [2015] QCA 184. (1996) 88 A Crim R 78 at 81–2. See 1.87. (1996) 88 A Crim R 78 at 81–2. It is suggested that underage Aboriginal girls punished by members of the community (whether or not acting under duress) for failing to submit to so-called traditional marriage might evoke strong reactions not only from mainstream but also from Aboriginal communities: R v Warren (1996) 88 A Crim R 78 at 81–2. This possibility is explored by S Yeo, ‘The Recognition of Aboriginality by Australian Criminal Law’, in G Bird, G Martin and J Nielsen (eds), Majah: Indigenous Peoples and the Law, The Federation Press, Sydney, 1996, pp 252–5. Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report 31, 1996 at [430]: ‘There will be situations involving Aboriginal customary laws where the defence of duress is appropriate. However, there will also be situations where Aborigines have followed their customary law voluntarily without any external pressure being applied or having to be applied. In this situation it is inappropriate to seek to resolve the issue by artificially extending the defence of duress. The issue is rather whether Aboriginal customary laws should be accepted as a defence as such.’ See also Law Reform Commission of Western Australia, above n 13. See Green v R (1997) 191 CLR 334 at 415 per Kirby J; TA v R [2008] NSWCCA 179 at [36] per Simpson J. The academic literature is extensive. E Sheehy, J Stubbs and J Tolmie, ‘Defences to Homicide for Battered Women: A Comparative Analysis of Laws in Australia, Canada and New Zealand’ (2012) 34(3) Sydney Law Review 467; T Crofts and D Tyson, ‘Homicide Law Reform in Australia: Improving Access to Defences for Women Who Kill

87. 88.

89.

90. 91. 92.

93.

94.

95.

96.

97.

98.

Their Abusers’ (2013) 39(3) Monash University Law Review 864; S Yeo, ‘Resolving Gender Bias in Criminal Defences’ (1993) 19(1) Monash University Law Review 104. See Australian Law Reform Commission, Family Violence — A National Legal Response, Report 114, November 2010. See Boland, above n 6; D Brodsky, ‘Educating Jurors: The Battered Woman Defence in Canada’ (1987) 25(3) Alberta Law Review 461; L Walker, R Thyfault and A Browne, ‘Beyond the Juror’s Ken: Battered Women’ (1982) 7(1) Vermont Law Review 1. See also the discussion at 10.40–10.43. E Sheehy, J Stubbs and J Tolmie, ‘Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations’ (1992) 16 Criminal Law Journal 369; I LeaderElliott, ‘Battered but Not Beaten: Women Who Kill in Self-Defence’ (1993) 15 Sydney Law Review 403. R v Lorenz (1998) 146 FLR 369 at 375; [1998] ACTSC 275 at [39]. R v Lorenz (1998) 146 FLR 369 at 375;[1998] ACTSC 275 at [39]. Runjanjic and Kontinnen v R (1991) 56 SASR 114 at 120; 53 A Crim R 362 at 367. See also Rice v McDonald [2000] TASSC 70; (2000) 113 A Crim R 75 at 85–6. The presumption did not apply to de facto, polygamous or customary marriages: R v Court (1912) 7 Cr App R 127 (CCA); Brennan v Bass (1984) 35 SASR 311; R v Ditta, Hussain and Kara [1988] Crim LR 42 (CA). The year of abolition is in brackets. For the Criminal Code States: Queensland, s 32 (1899); Tasmania, s 20(2) (1924); Western Australia, s 32 (1902). For the common law states: New South Wales, Crimes Act s 407A (1924); South Australia, Criminal Law Consolidation Act s 328a (1940); Victoria, Crimes Act s 336 (1977). According to Blackstone, the rule was an aspect of the ‘matrimonial subjection of the wife to the husband’: 4 BI Comm 28. But later, Hale noted that until 1692 women were unable to claim the redemptive benefit of clergy on a capital charge and that the presumption was developed to remedy this source of potentially fatal discrimination: (1803) 1 PC at 45–6. The perception that the rule emanated from ‘the ignorance and pusillanimity of women’ was less insightful: see US v de Quilfeldt (1881) 5 F 276 at 278. For a case in which a plea of guilty was held not to be free and voluntary by reason of duress imposed on a wife by her husband in relation to injuries to their son, see R v O (2003) 139 A Crim R 432; see also R v Dempsey [2000] VSC 527; R v Dempsey [2001] VSC 21. Criminal Law Consolidation Act 1935 (SA) s 328A: ‘[O]n a charge against a wife for any offence other than treason or murder, it shall be a good defence to prove that the offence was committed in the presence, and under the coercion, of the husband’; Crimes Act 1958 (Vic) s 336(2): ‘Where a woman is charged with an offence other than treason or murder, that woman shall have a complete defence to such charge if her action or inaction (as the case may be) was due to coercion by a man to whom she was then married’. Criminal Code (Tas) s 20(2). For comment on this somewhat ambiguous provision see J Blackwood, ‘Compulsion in the Code States: Recent Developments’ (1981) 5 Criminal Law Journal 89. It is doubtful whether s 8 of the Code preserves the common law defence of duress (or the presumption of marital coercion) given the express provisions of s 20: R v Clark (1980) Tas R 48; (1980) 2 A Crim R 90 at 96. The Victorian Law Reform Commission recommended its abrogation, or absorption into the defence of duress: Victorian Law Reform Commission, Criminal Liability of Married Persons (Special Rules), Report 3, 1975 at [5.03]. The Commonwealth Criminal Code omitted marital coercion: see Review of Commonwealth Criminal Law (Australia), Interim

99. 100. 101.

102. 103. 104. 105. 106. 107. 108.

109. 110.

111.

Report: Principles of Criminal Responsibility and Other Matters, Australian Government Publishing Service, Canberra, 1990 at [12.21], [12.38]. The sections enclosed by square brackets have been repealed. Goddard v Osborne (1978) 18 SASR 481 at 493. Crimes Act 1958 (Vic) s 336(3). The moralistic tones in the Victorian amendment, which allows the defence of marital coercion only where her ‘good character’ and ‘firmness of mind’ are established, is considered by S Yeo, ‘Coercing Wives into Crime’ (1992) 6 Australian Journal of Family Law 214. Criminal Law Consolidation Act 1935 (SA) s 328A, following the English amendment. See G Williams, Textbook of Criminal Law, Stevens & Sons Limited, London, 1978, pp 764–8, [268]. Criminal Law Consolidation Act 1935 (SA) s 328A. Goddard v Osborne (1978) 18 SASR 481 at 493. And see Edwards, above n 6, at 310. Goddard v Osborne (1978) 18 SASR 481 at 495. Crimes Act 1958 (Vic) s 336(5). P Alldridge, ‘Developing the Defence of Duress’ (1986) Criminal Law Review 433; R Cross, ‘Murder and Duress’ (1978) 28 University of Toronto Law Journal 369; H Milgate, ‘Duress and the Criminal Law: Another About Turn by the House of Lords’ (1988) 47 Cambridge Law Journal 61; K Smith, ‘Must Heroes Behave Heroically?’ [1989] Criminal Law Review 622; L Walters, ‘Murder Under Duress and Judicial Decision-making in the House of Lords’ (1988) 8 Legal Studies 61. Compare Fisse, above n 73, p 547; and Gillies, above n 50, pp 345–6. The South African approach seems to contemplate duress operating as a complete defence or, depending on the circumstances, as a qualified defence reducing murder to manslaughter: see R v Hercules 1954 (3) SA 826; R v Goliath 1972 (3) SA 465 at 480–1; Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 at 697. See also R v Howe [1987] AC 417; [1987] 1 All ER 771 at 436 per Lord Bridge, at 445 per Lord Griffiths and at 455 per Lord Mackay: their Lordships thought it too late to adopt this approach. See also R v McCafferty [1974] 1 NSWLR 89. See R v Howe [1987] AC 417 at 445 per Lord Griffiths; [1987] 1 All ER 771 at 789–90.

[page 243]

9 Superior Orders1 Introduction 9.1 The extent to which Australian domestic law recognises a substantive defence of superior orders, or respondeat superior, distinct from the defence of duress2 is uncertain. There is a paucity of Australian and English case law on the subject. Some old case law from England3 and South Africa4 allowed superior orders as a defence where the orders were not manifestly illegal; the Australian criminal codes reflect this earlier approach, probably stating what Griffith understood to be the common law at the end of the 19th century. One leading Australian case authority suggests that there is in common law no substantive defence of obedience to superior orders. This appears in the judgments of the High Court in A v Hayden (1984) 156 CLR 532. In that case, members of the Australian defence and security services took part in a disastrous training exercise in public, allegedly carried out under the authority of the Australian Government. The exercise was designed to test the anti-terrorism capabilities of certain government agencies. The question before the High Court was whether the Commonwealth [page 244]

was permitted to disclose to the Victorian Commissioner of Police the identity of the participants. This turned on whether disclosure was prohibited by contractual confidentiality clauses and, more importantly for present purposes, whether the relevant conduct was privileged by any executive orders issued under the authority of the government. On the latter point, Gibbs CJ said:5 The fact that this foolish exercise was carried out under the authority of the Commonwealth would in itself provide no reason in law why the Commonwealth should not disclose the identities of the plaintiffs to the Chief Commissioner [of Police]. It is fundamental to our legal system that the executive has no power to authorize a breach of the law and that it is no excuse for an offender to say that he acted under the orders of a superior officer.

All the judges were clear, as Deane J held, that the ‘criminal law of this country has no place for a general defence of superior orders or of Crown or Executive fiat’.6 9.2 The unusual circumstances of Hayden did not require a sustained analysis of the doctrine of respondeat superior at common law. Nevertheless, the case has been referred to as authority for the proposition that there is no place in Australian criminal law for a general defence of superior orders or executive fiat.7 Mason J went so far as to say that ‘superior orders are not and have never been a defence in our law’.8 Hayden has been cited with approval in several cases involving unlawful conduct purportedly authorised by government orders or directions.9 However, Hayden is unlikely to be the last word on the subject,10 and it is useful to consider the historical and international11 dimensions of the topic. 9.3 The historical usage of superior orders as a defence in military law is of some relevance. Until 1944, Australian military law — in concurrence with British and United States military law — recognised the defence of obedience to superior orders, although there was some disagreement as to whether it was an absolute or only a partial defence. The British Manual of Military Law (1929), which was then in use in Australia, advised that it was ‘somewhat doubtful’ that superior orders was an absolute defence but conceded that:12

[page 245] In most cases the fact of the orders having been given would no doubt prove the innocent intent of the subordinate, and lead in practice to his acquittal on a criminal charge.

9.4 Australia’s inaugural Judge-Advocate General, Victor Le Gay Brereton, formally advised in August 1930 that:13 It is a good defence to a charge against a member of the Military Forces of having committed an offence of which a blameworthy condition of mind is an ingredient, that he acted in obedience to a command of a superior, reasonably believing that the fact justified the command.

This view, Brereton noted, was supported by some authority, including ‘learned text writers’.14 Those text writers included the influential Professor Lassa Oppenheim: editions from 1906 to 1937 of his treatise, International Law, advanced the doctrine of respondeat superior.15 9.5 The Australian edition of the Manual of Military Law (1941), drawing directly upon Oppenheim’s fifth edition, initially took a similar line on the defence of superior orders:16 It is important, however, to note that members of the armed forces who commit such violations of the recognized rules of warfare as are ordered by their Governments, or by their commander, are not war criminals and cannot therefore be punished by the enemy. He may punish the officers or commanders responsible for such orders if they fall into his hands, but otherwise he may only resort to the other means of obtaining redress which are dealt with in this chapter.

9.6 In response to widespread wartime atrocities, however, the Allied Powers began to contemplate the future trial and punishment of Germans and Japanese accused of committing war crimes. Together with similar changes in British and American military law, the above paragraph in the Australian Manual of Military Law was radically amended in September 1944 to the following (emphasis added):17 The fact that a rule of warfare has been violated in pursuance of an order of the belligerent Government or of an individual belligerent commander does not deprive the act in question of its character as a war crime; neither does it, in principle, confer upon the perpetrator immunity from punishment by the injured belligerent. Undoubtedly a court confronted with the plea of superior orders adduced in justification of a war crime is bound to take into consideration the fact that obedience to military orders, not necessarily unlawful, is the duty of every member of the armed forces and that the latter cannot, in conditions of war discipline, be expected to weigh scrupulously the legal

merits of the order received. The question, however, is governed by the major principle that members of the armed forces are bound to obey lawful orders only and that they cannot therefore escape liability if, in obedience

[page 246] to a command, they commit acts which both violate unchallenged rules of warfare and outrage the general sentiment of humanity.

9.7 A new footnote to the paragraph explained that the amendment was due to the revised position on superior orders expressed in the sixth edition in 1940 of International Law, which was by then edited by Professor Hersch Lauterpacht.18 The explanatory footnote advised that the position in previous editions had become ‘inconsistent with the view of most writers upon the subject’ and was also inconsistent with the 1921 decision of the German Supreme Court (Reichsgericht) in the case of The Llandovery Castle.19 The Llandovery Castle established that:20 ... the defence of superior orders would afford no justification where the act was manifestly and indisputably contrary to International Law as, for instance, in the case of killing of unarmed enemies.

9.8 Although the Allied Powers’ about-face on the doctrine of superior orders was criticised for appearing to change the rules of war amidst war, it was relatively settled that, in international law, superior orders was no longer a defence, unless the order in question could be proven to be not ‘manifestly’ unlawful in international (not the relevant domestic) law. Superior orders could be raised, however, as the basis for a plea in mitigation during sentencing: see 9.16. 9.9 Although the position on superior orders had shifted in the military laws of the Allied Powers, Japanese military law on superior orders remained fixed at the position of respondeat superior. A significant majority of the 812 accused Japanese war criminals who were tried by Australian Military Courts, pursuant to the War Crimes Act 1945 (Cth), in 1945–51 therefore raised superior orders as a defence. They argued that subordinates in the Japanese armed forces had no discretion to consider the legality of the orders they received.

Some accused referred to, for instance, the Imperial Rescript to Soldiers and Sailors (Gunjin Chokuyu), issued by Emperor Meiji in 1882, which required absolute obedience to superiors as direct agents of the emperor. They submitted that the imperative to unquestioning obedience was such that they had no mens rea to commit the offence; rather, the mens rea was located in the superior who had issued the order and he alone should be held responsible for the offence. Even if Japanese subordinates knew or suspected that a superior’s order was unlawful in Japanese law, let alone international law, they were morally and legally required to obey it. A defence of superior orders was thus often raised in concert with that of duress, given the disciplinary punishment in the Japanese armed forces for disobedience to orders.21 9.10 Similarly, a small number of accused Japanese charged with failing to act argued that their omission was due to the fact that they had not received superior [page 247] orders to act. For instance, a Japanese medical officer who was charged with failing to provide Allied prisoners of war with proper medical care argued that he had not been ordered to provide that care to them and thus was not responsible for their medical care, implying that he could not act without orders.22 9.11 As the Australian Military Courts applied the law as expressed in the amended Australian Manual of Military Law, a claim of obedience to superior orders was held to not be a defence to the commission of a war crime, unless the order was ‘not obviously unlawful’ in international law. It was irrelevant that an order may have been lawful in Japanese military or civilian law. While the onus was on the prosecution to prove beyond reasonable doubt that the order was ‘obviously unlawful’, the question of whether the orders were ‘obviously unlawful’ had to be considered in light of the knowledge of the recipient(s) at the time the orders were given. Superior orders thus

operated as a defence in only a very small number of cases, on the ground that the order obeyed by the accused was ‘not obviously unlawful’. 9.12 For example, in the Singapore S11 trial of Maj Katsumura Yoshio and five others in September 1946, the accused were jointly charged with being ‘concerned in the unlawful killing’ of two Allied prisoners of war and a Dutch civilian on Java in September 1943. The accused admitted that the three victims were killed but pleaded that the killings were justifiable homicides, as they were carried out in obedience to superior orders issued from their headquarters to execute lawful sentences of death. These sentences had been handed down after the victims had been convicted of espionage in a Japanese ‘special military’ trial, which itself had been lawfully approved for use in lieu of a courtmartial. The execution orders had not been, they argued, obviously unlawful to them. The accused were each found not guilty.23 9.13 This case was reviewed by Col A G Allaway, the Australian Army’s Director of Legal Services, who advised that he considered that if superior orders were raised as a defence:24 the court should acquit if of [the] opinion that the orders are not obviously unlawful and that the accused reasonably considered himself bound to obey them. Orders to commit acts which ‘both violate unchallenged rules of warfare and outrage the general sentiment of humanity’ are, however, obviously unlawful and can provide no defence.

Moreover, when deciding whether or not a particular order was unlawful, a court would:25 need to consider the nature and origin of the order, including such matters as the rank and authority of the officer giving the order, the nature of the offence alleged and any reference in the [execution] order (whether written or oral) to the fact that the accused [persons who were killed] had been tried and found guilty of the offence.

[page 248] 9.14 Superior orders were successfully raised as a plea in mitigation in a number of cases, particularly when the convicted was young, relatively uneducated and low-ranking. For instance, the Judge-

Advocate General, in relation to a series of war crimes trials held at Morotai (now part of Indonesia) in early 1946, recommended that certain war criminals convicted of murdering Allied prisoners of war should receive ‘no punishment’ as it was, in his view, impossible to believe that young privates in the Japanese Army were in a ‘position to appreciate or judge whether an order is legal or illegal’ and that they had ‘no other option than to carry out the order’ and would have been ‘liable to suffer penalty’ if they had refused.26 9.15 In 1949 the United Nations War Crimes Commission declared superior orders to have been the most frequently raised defence in the various post-war international and national trials.27 Surveying the treatment of superior orders, the commission concluded that:28 the general attitude of the courts … has been that, while obedience to superior orders does not constitute a defence upon which an accused can rely with certainty of being completely protected thereby, it may at the discretion of the court be treated as a factor which justifies mitigation of punishment.

Notwithstanding this conclusion, the Charters of the International Military Tribunal (for Nuremberg) and the International Military Tribunal for the Far East expressed an absolute liability approach to superior orders: The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.29 Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires.30

In practice, however, the international tribunals which applied these instruments, as well as various Allied national courts and tribunals applying international law, took a more nuanced approach to superior orders, and allowed superior orders as a defence so long as the order was not obviously unlawful.31 [page 249]

9.16 Since World War II, international law scholars have generally abandoned any suggestion that superior orders provides an absolute defence for war crimes. While there has been some lasting discordance in international law and between international and national laws, it is now reasonably well established in international law that obedience to superior orders can be a defence only if the orders were not manifestly illegal.32 9.17 In Polyukhovich v The Commonwealth of Australia (1991) 172 CLR 501 (Polyukhovich) — commonly known as the ‘War Crimes Case’ — it was necessary to consider whether provisions of the War Crimes Act 1945 (Cth), as amended by the War Crimes Amendment Act 1988 (Cth), were valid. Section 9 of the Act created a ‘war crime’ offence in relation to acts committed outside Australia between 1 September 1939 and 8 May 1945 that would have amounted to serious crimes if committed in Australia. A majority of the court held that s 9 was a valid exercise of the external affairs power. Brennan J (as he then was) dissented. His Honour’s approach is interesting in the present context as it focused on the discordance between the statutory offence as defined in s 9 and the customary international law concept of a war crime.33 9.18 One point of difference identified by Brennan J is the treatment of superior orders. Whereas s 16 of the Act specifically excluded any defence of superior orders (except where the defence existed in the jurisdiction where and at the time the alleged war crime was committed), he considered that there was some uncertainty about the matter at international law. His Honour referred to advice provided by Professor Lauterpacht in 1942 in a memorandum to a committee of the International Commission for Penal Reconstruction and Development, which was approved by the commission and participating governments. The advice rejected the notion that obedience to superior orders was an absolute defence. Brennan J referred to the following passage from the Lauterpacht memorandum:34 There ought to be no doubt that should courts entrusted with the trial of war crimes disregard altogether the plea of superior orders, they would be adopting a course which could not be regarded as defensible. On the other hand, while the fact of superior orders

sets a limit to the punishment of acts which might otherwise constitute war crimes, it need not warp the effectiveness of the law in a manner which may rightly be regarded as a perversion of justice. It will not cover crimes committed by superior authorities and officers acting under their own responsibility and initiative; it will not protect criminal acts committed by subordinates for purposes of private gain and lust; it will not shield acts committed in pursuance of orders so glaringly offending against fundamental conceptions of law and humanity

[page 250] as to remove them from the orbit of any possible justification, including that of immediate danger to the person charged with the execution of the orders; it will not excuse crimes committed in obedience to unlawful orders in circumstances in which the person executing the crime was not acting under the immediate impact of fear of drastic consequences of summary martial justice following upon a refusal to act (the latter being crimes perpetrated by the vast army of officials in the occupied territories). If these limits of the doctrine of superior orders are taken into consideration, then its judicious application, far from defeating the ends of justice, may testify in a significant manner to the determination of the victorious belligerent to abide by the limitations of international law.

9.19 Brennan J’s illuminating dissenting judgment reveals the extent of uncertainty in international law as to the doctrine of superior orders. He noted that some academic writers had suggested that a person’s culpability should be judged according to whether he or she did recognise the criminal nature of the order, or whether its criminality was obvious.35 His Honour thought there was much to commend these views.36 9.20 The awareness of wrongdoing is not usually regarded as a necessary ingredient of criminal responsibility: see 1.26. The question at the core of this discussion of superior orders is whether the social circumstances created by a requirement of strict obedience provides some ground of extenuation for conduct that would otherwise be criminal. The question is likely to arise most frequently in the military sphere, although one can imagine a plea in the nature of superior orders arising in other contexts and in other guises, whether as a mistake of law, a claim of right, or a denial of mens rea. For example, on a charge of theft or larceny,37 or property damage,38 the element of dishonesty

or willfulness may be negated where the employee was carrying out what appeared to be lawful instructions in the course of his or her employment and without personal gain: see Chapter 4.

The state and territory criminal codes 9.21 The criminal codes recognise a defence of lawful authority — as distinct from a defence of duress — which is conditioned by the notion of ‘manifest’ unlawfulness. Under the Griffith-based codes, a person is not criminally responsible for carrying out the order of a competent authority which the person is bound by law to obey, unless the order is manifestly unlawful.39 Indeed, in [page 251] some jurisdictions there is a duty to obey, and disobedience without lawful excuse is an offence.40 In those jurisdictions there are also specific provisions relating to riot suppression by members of the public and by military personnel. Protection extends to any person acting in good faith under orders, not manifestly unlawful, given by a justice or magistrate for suppression of a riot, to use such force as the person believes, on reasonable grounds, to be necessary for carrying such orders into effect.41 Moreover, it is lawful for a person bound by military law to obey the commands of a superior officer for the suppression of a riot, unless the command is manifestly unlawful.42 In Western Australia, Tasmania and the Northern Territory, the defence of superior orders is available as a general defence. In Queensland, however, superior orders is expressly excluded as a defence to murder or an offence involving grievous bodily harm or an intention to cause such harm.43 Each of the criminal codes provides that it is a question of law whether any particular order is manifestly unlawful or not.44 Superior orders is not recognised in the Australian Capital Territory, New South Wales, South Australia or Victoria.45 The position under the Criminal Code 1995 (Cth) is considered at 9.27.

Competent authority to issue order 9.22 The issue of who or what comprises a competent authority to issue an order that might be the subject of a defence of superior orders in the criminal codes was considered in Hunt v Maloney; Ex parte Hunt [1959] Qd R 164, when Stanley J observed, in obiter, in relation to the Criminal Code 1899 (Qld):46 I know of no decision that an ordinary master or principal would be a ‘competent authority’ within the meaning of that section [s 31(2)]. It is not necessary to determine the precise limits of s. 31 (2), but I think it is directed to a subordinate’s obedience to orders e.g. a soldier or sailor, a constable, a gaoler. An ordinary agent is not necessarily bound to obey his principal’s orders; he may terminate his agency.

The proper course for an ordinary employee ordered by his employer to obey an unlawful order, therefore, is to terminate his employment. In Barnes v Kuser (2007) 179 A Crim R 181, McKechnie J observed that, in his view, a ‘competent authority’ within the meaning of s 31 of the Criminal Code 1913 (WA) is ‘a person or body who is invested by a written law with power to issue an order, direction or requirement to another person’.47 The issuance of a ‘permit’ by a competent authority has been held not to amount to an order which the recipient was bound by law to obey.48

Manifest illegality 9.23 Whether an order is manifestly unlawful is a question of law (see 9.21). Yet there is a distinction envisioned in the criminal codes between orders which are reasonably believed to be lawful but are, in fact, unlawful (which, if obeyed, [page 252] may afford a defence) and orders which are manifestly unlawful and therefore incapable of being reasonably believed to be lawful (which will not afford a defence). ‘Manifest’ therefore is a qualifier as to the reasonableness of belief of lawfulness. The standard of ‘manifest

illegality’ adopted by the criminal codes can be traced back to early English and South African cases concerned with the liability of soldiers in times of war. In R v Trainer (1864) 4 F & F 105, Willes J observed:49 [I]n a criminal case an inferior officer must be held justified in obeying the directions of a superior, not obviously improper or contrary to law — that is, if an inferior officer acted honestly upon what he might not unreasonably deem to be the effect of the orders of his superior, he would not be guilty … those orders not appearing to him, at the time, … improper or contrary to law.

9.24 In Keighly v Bell (1886) 4 F & F 763; 176 ER 781, Willes J said, in obiter, that ‘the better opinion is that an officer or soldier acting under the orders of his superior not being necessarily or manifestly illegal would be justified by his orders’.50 This approach was followed in some South African cases decided shortly after the Boer War. In R v Smith (1900) 17 SC 561, Solomon JP said:51 [I]f a soldier honestly believes he is doing his duty in obeying the commands of his superior, and if the orders are not so manifestly illegal that he must or ought to have known that they were unlawful, the private soldier would be protected by the orders of his superior officer.

This statement was in the nature of a compromise between two extreme views put to the court: on the one hand, that ‘absolute, implicit and unquestioning obedience is required from a soldier in complying with the orders of a commanding officer’; 52 alternatively, that ‘a soldier is only bound to obey lawful orders and is responsible if he obeys an order not strictly legal’. 53

Negating a specific fault element 9.25 The specific fault element required for a particular crime may be sufficiently broad to encompass a claim of superior orders. For example, a ‘callous’ failure to render emergency aid under s 155 of the Criminal Code (NT) may be met with a claim that the accused was ordered by a superior not to provide assistance. Consider a scenario where a helicopter pilot, ordered by the company owner not to alight to rescue a stranded motorist in the deep desert, might defend a claim that he acted ‘callously’ in failing to rescue, by reference to the superior order. Similarly, where the essence of the offence is a breach of duty, the

orders of a superior may be tendered to negate an argument that the conduct in question constituted criminal negligence.54 [page 253]

Duress and superior orders 9.26 In extreme cases, a claim that the accused was acting in obedience to superior orders may support a defence of duress. In such a case, duress will be tested according to its own requirements. As noted in Chapter 8, at common law a person compelled to commit an offence under duress of serious threats from a third party may avoid criminal responsibility. The fact that a failure to comply with orders is backed by threats, say, of imminent execution would be relevant to a defence of duress. In his 1942 advice letter, Professor Lauterpacht referred to individuals executing the crime ‘under the immediate impact of fear of drastic consequences of summary martial justice following upon a refusal to act’.55 In such cases, duress might operate even if the order was manifestly illegal, provided that duress is itself available as a defence to the particular crime. Thus, on this approach arson might be excused but not murder.

Commonwealth law 9.27 There is no general defence of superior orders under the Criminal Code (Cth). However, amendments to the Code in 2002 recognise superior orders as a limited defence to war crimes committed since that date. Following Australia’s accession to the Rome Statute of the International Criminal Court, amendments were made to the Code for the prosecution of war crimes, crimes against humanity and genocide.56 Section 268.116 of the Code now provides: (1) The fact that genocide or a crime against humanity has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility. (2) Subject to subsection (3), the fact that a war crime has been committed by a person

pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility. (3) It is a defence to a war crime that: (a) the war crime was committed by a person pursuant to an order of a Government or of a superior, whether military or civilian; and (b) the person was under a legal obligation to obey the order; and (c) the person did not know that the order was unlawful; and (d) the order was not manifestly unlawful.

This provision implemented Australia’s obligations under the Rome Statute and s 268.116(3) is in substantially the same terms as art 33 of the Rome Statute. As Moore J concluded in SZITR v Minister for Immigration & Multicultural Affairs [2006] FCA 1759:57 [page 254] A precondition to the availability of the defence [of superior orders] is that the order was not manifestly unlawful. That precondition cannot be met in relation to a crime against humanity.

9.28 The limited scope of superior orders is demonstrated by the fact that, although available to a war crime (where the relevant act was not manifestly unlawful) it is not available in relation to other offences recognised by international law such as torture. The insertion into the Code of Division 274 — Torture was in response to the recommendation in 2008 of the United Nations’ Committee Against Torture that Australia enact a specific offence of torture at the federal level to overcome gaps in the criminalisation of torture in Australian jurisdictions.58 Section 274.4 of the Code expressly states that it is not a defence to torture that in ‘engaging in the conduct constituting the offence the accused acted under orders of a superior officer or public authority’.59 Superior orders may, however, be taken into account in determining the proper sentence. This position on superior orders reflects the view that the prohibition against torture is a peremptory norm of international law from which no derogation is permitted.60 9.29 The amendments rendered redundant the Crimes (Torture) Act 1988 (Cth), which similarly rejected superior orders as a defence to torture.61 However, both the Code and the now repealed Act define

‘torture’ in identical terms to the United Nations’ Convention Against Torture (UNCAT)62 as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person’ for one of the specified purposes. It is difficult to imagine how such acts could be anything but manifestly unlawful. 9.30 Australia’s compliance with the international law obligation to disallow superior orders as a defence to torture was reconfirmed in 2014. Proposed amendments to Australia’s national security legislation — to create an authorisation scheme to grant limited immunity to the operatives of Australian Security Intelligence Organisation (ASIO) for certain conduct that would otherwise be unlawful while engaging in ‘special intelligence operations’ — were strongly criticised for not specifically including torture on the very brief list of unlawful conduct that could not be authorised.63 The amending Bill was [page 255] quickly amended to insert subclauses which expressly excluded torture from the unlawful conduct that could be authorised under the scheme. The Explanatory Memorandum advised that the refinement was ‘declaratory of the existing legal position’ in relation to torture, which was consistent with Australia’s international human rights obligations and ‘fundamental principles of legality’.64 Conduct constituting torture is thus incapable of being authorised as a part of the ASIO’s ‘special intelligence operations’ and is, also, expressly excluded from attracting operatives’ limited immunity to liability.65 9.31 As stated above, an order to engage in torture may be universally regarded as manifestly unlawful. There is a strong case for maintaining the status quo rejection of superior orders as a defence to torture.66 Moreover, where the conduct in question is wrongly regarded (by the accused or his or her superior issuing the order) as amounting only to ‘cruel, inhuman or degrading treatment’, but is found by the court to amount to torture, a defence of superior orders also should not

be countenanced, even if the legal classification of the treatment in question is not manifestly obvious.67 The Australian criminal codes provide expressly that the question whether any particular order is manifestly unlawful is a question of law (see 9.21). 9.32 It is interesting to note that, under the War Crimes Act 1945 (Cth) as amended in 1988, the defence of superior orders is generally expressly rejected as a basis for excluding responsibility, although superior orders may be pleaded in mitigation of penalty.68 The surprising result is that prosecutions for war crimes under the 2002 Code amendments may be met with a defence of superior orders not available under the amended 1945 Act.69 This discrepancy is probably now only of academic interest, as it is unlikely that further prosecutions will be brought under the 1945 Act: the war crimes the subject of the charge must have been committed in the European theatre of World War II and any suspects are therefore [page 256] rapidly moving beyond prosecution. As Boas and Chifflet suggest, the amended 1945 Act is now ‘practically inoperative’.70

Military personnel — defence force discipline 9.33 Australian military personnel, and certain ‘defence civilians’,71 have no exemption from criminal responsibility under the general criminal law,72 and are subject to additional burdens such as the offences created by the Defence Force Discipline Act 1982 (Cth). The Act creates service offences, some of which are peculiar to the military, such as the offence of taking part in a mutiny or being intoxicated while on duty.73 The Act implicitly recognises a defence of superior orders, as s 27 of the Act makes it an offence for a defence member to disobey a lawful command given by a person known to be a superior officer.74 As the Chief Judge Advocate observed in 2011 in Re Civilian Casualty

Court Martial (2011) 259 FLR 208, a defence member is ‘compellable on pain of penalty to obey lawful orders’.75 However, ‘lawful’ in the context of s 27 is generally considered to be a qualification about the order — whether the superior had the authority to issue the order to the subordinate and whether the order related to military duty as opposed to some other end — and not about the characterisation of the act or omission arising from the consequences of obeying the order.76 9.34 Hence, s 14 of the Act explicitly provides that a person is not liable to be convicted for a service offence by reason of an act or omission that was in obedience to a lawful order, or to an unlawful order that the person did not know, and could not reasonably be expected to have known, was unlawful.77 The test is not one of manifest illegality but the subjective test of whether the accused ‘could [page 257] not reasonably be expected to have known’. It is doubtful whether this amounts to a significant variation in practice.78 Thus, as with torture, for which the defence of superior orders is explicitly rejected, a person who committed rape in obedience to orders from a commanding officer would have no defence, as there could be no justification for an act of rape under any circumstances. By contrast, an act of killing not in breach of the Geneva Convention might be justified in some circumstances; for example, to prevent escape or in self-defence or (semble) under martial law.79 A soldier ordered to inflict some cruel and inhuman treatment on a prisoner falling short of torture might seek to justify his or her conduct by reference to the s 14 test of whether he or she knew, or could reasonably be expected to know, that the command was unlawful.

Reforming the law 9.35

The defence of superior orders is not a common plea, yet there is

no reason why this area of law should suffer from imprecision or uncertainty. If A v Hayden (1984) 156 CLR 532 correctly states the modern common law — namely, that obedience to superior orders is not a defence, even if the order was issued by a competent authority a person was ordinarily bound to obey, and was not manifestly illegal — then it is out of step not only with the Griffith and Northern Territory Codes but with modern customary international law as well. There is some evidence that the manifest illegality doctrine was part of the common law at the end of the 19th century. A compromise position allows manifest illegality to mark the boundaries of a defensible doctrine of superior orders. The observations of Brennan J in Polyukhovich80 provide a useful guide for domestic criminal law. Superior orders should be recognised as a limited exception to the general rule that mistake of law is not a defence. In cases where the unlawfulness of the act or omission is not manifestly apparent, there should be some scope for a defence to operate.

1. 2.

3.

4. 5. 6.

The principal authors are grateful to Dr Narrelle Morris, Senior Lecturer, Curtin Law School, for undertaking the revision of this chapter. See Chapter 8. Some writers regard the defence of superior orders as a special instance of duress: J Burchell and J Milton, Principles of Criminal Law, 2nd ed, Juta, Lansdowne, South Africa, 1997, p 178. Halsbury’s Laws of Australia similarly examines superior orders under the subject ‘Duress and Related Offences’: LexisNexis Butterworths, Halsbury’s Laws of Australia, vol 9, 130 Criminal Law, V ‘General Doctrines’, (4) ‘Duress and Related Offences’, ‘Superior orders – Duress’ [130-7875]. HM Advocate v Hawton and Parker (1861) 4 Irv 58; R v Hutchinson (1864) 9 Cox Cr Ca 555; Keighly v Bell (1886) 4 F & F 763; 176 ER 781. Lt Harry ‘Breaker’ Morant and his co-accused also unsuccessfully pleaded obedience to superior orders in their British Army court-martial in 1901 for shooting prisoners during the Boer War. It was at issue, however, whether any order not to take prisoners (hence implying authority to execute prisoners) had been issued, which the prosecution denied. In any event, the judge-advocate advised the court-martial that an officer was to be held ‘responsible for the carrying out of obviously illegal and improper commands from superiors’: D Furry, ‘Scapegoats of the Empire’ (1997) 192 Military Law Review 127. See also S Miller, ‘Duty or Crime? Defining Acceptable Behavior in the British Army in South Africa, 1899–1902’ (2010) 49 Journal of British Studies 311; N Jackson, ‘The Superior Orders Defence: A Game of Musical Chairs and the Jury is Still Out’ (2007) 10(1) Flinders Journal of Law Reform 185–210. See Burchell and Milton, above n 2, Ch 17. A v Hayden (1984) 156 CLR 532 at 540; [1984] HCA 67. (1984) 156 CLR 532 at 593.

7.

8. 9.

10. 11.

12. 13. 14. 15. 16.

17. 18. 19.

20. 21.

22.

23. 24. 25. 26.

See White v Director of Military Prosecutions (2007) 231 CLR 570; Gall v R [2016] NSWCCA 82. See also Polyukhovich v The Commonwealth of Australia (1991) 172 CLR 501 at 582, where Brennan J firmly rejected the idea that a direction by the executive would be effective to grant any immunity from the ordinary criminal law. See also P J Downey, editorial (1985) New Zealand Law Journal 249. A v Hayden (1984) 156 CLR 532 at 550. See Ridgeway v R (1995) 184 CLR 19 at 29; Denlay v Commissioner of Taxation (2010) 276 ALR 675. A v Hayden (1984) 156 CLR 532 was also approved by the Privy Council, which stated that the High Court had ‘declared emphatically that there was no place for a general defence of superior orders … in Australian criminal law’: Yip Chiu Cheung v R [1995] 1 AC 111 at 118; [1994] 2 All ER 924. S Yeo, ‘Mistakenly Obeying Unlawful Superior Orders’ (1993) 5 Bond Law Review 1 at 16. For a comprehensive treatment of the international law dimension of this topic, see D Johnson, ‘The Defence of Superior Orders’ (1985) 9 Australian Yearbook of International Law 291. Manual of Military Law 1929, His Majesty’s Stationery Office, London, 1929, p 185. Judge-Advocate General’s Circulars, No 3, 5 August 1930, consolidated reprint of nos 1–4, Commonwealth Government Printer, Canberra, 1942, p 21. Judge-Advocate General’s Circulars, above n 13, p 21. L Oppenheim, International Law: A Treatise, Longmans, London, 1st ed, 1906; 2nd ed, 1912; 3rd ed, 1920; 4th ed, 1926–28; and 5th ed, 1935–7. Manual of Military Law 1941 (Australian edition), Commonwealth Government Printer, Canberra, 1941, p 288. The chapter also considered, for instance, reprisals and the taking of hostages to encourage or coerce the enemy to obey the laws and usages of war. Amendments. Manual of Military Law 1941 (Australian ed) (Serial no 7), Government Printer, Melbourne, 30 September 1944, p 1. Amendments. Manual of Military Law 1941, above n 17, p 2. Amendments. Manual of Military Law 1941, above n 17, p 2. The Llandovery Castle, Supreme Court of Leipzig, Annual Digest, 1923–1924, Case No 235 [1921]. See ‘Judgment in Case of Lieutenants Dithmar and Boldt, Hospital Ship “Llandovery Castle”’ (1922) American Journal of International Law 16 at 708. Cited in L Oppenheim, International Law: A Treatise, 6th ed, Longmans, London, 1940– 47, p 455. For instance, art 57 of the Japanese Army Criminal Code (Rikugun keihō ) provided for the death penalty, imprisonment for life or imprisonment over 10 years for committing an act ‘rebelliously’ against the order of a superior or for not obeying the order of a superior. Lt Cdr Surgeon Nakamura Ryōsuke argued that he had the defence of an honest but mistaken belief that he had no duty to provide that medical care: Morotai M45 trial of Capt Shirozu Wadami and others, proceedings held in the National Archives of Australia (NAA): A471, 81709 Parts 1–7. Singapore S11 trial of Maj Katsumura Yoshio and others, proceedings held in the NAA: A471, 81241. Colonel Allaway’s advice is held in the Australian War Memorial: AWM226, 18. See above n 24. See, for example, the Judge-Advocate General’s report on the Morotai M6 trial of Lt Asaoka Toshi and others, proceedings held in the NAA: A471, 80717. For further analysis

27. 28. 29.

30.

31. 32.

33.

34. 35. 36.

37. 38. 39.

40. 41. 42. 43. 44.

of the operation of superior orders in the Australian Military Court war crimes trials, see M Cormier and S Finnin, ‘Obedience to Superior Orders and Related Defences’, in G Fitzpatrick, T McCormack and N Morris (eds), Australia’s War Crimes Trials 1945–51, Brill Nijhoff, Leiden, 2016, pp 174–95. Law Reports of Trials of War Criminals, Vol XV: Digest of Laws and Cases, United Nations War Crimes Commission, London, 1949, p 157. Law Reports of Trials of War Criminals, above n 27, pp 158–9. Article 8 of the Charter of the International Military Tribunal, annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed in London on 8 August 1945, 82 UNTS 279 at 288. The phrase ‘of itself’ does marginally differentiate this position on superior orders from that expressed in the Charter of the International Military Tribunal: art 6 of the Charter of the International Military Tribunal for the Far East, signed in Tokyo on 19 January 1946, amended 26 April 1946, TIAS 1589, 4 Bevans 21. See, for example, Re Sawada (1946) 13 ILR 302; Re Buck (1946) 13 ILR 293; Re Lages (1950) 16 ILR 553. For further reading, see Y Dinstein, The Defence of ‘Obedience to Superior Orders’ in International Law, Sijthoff, Leyden, 1965; M Osiel, Obeying Orders: Atrocities, Military Discipline and the Law of War, Transnational, New Brunswick, 1999; C Staker ‘Defence of Superior Orders Revisited’ (2005) 79 Australian Law Journal 431; and the discussion of post-war thinking on superior orders in SRYYY v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 1 at [51]–[57]. (1991) 172 CLR 501 at 575 assumed that the retrospective creation of an offence in municipal law was hostile to international law, and could not be seen to satisfy an international obligation, and was therefore not within the external affairs power. He found that the statutory offence contained in s 9 was not co-extensive with customary international law and that the enactment of the Act was therefore not a means of enforcing an international obligation and therefore ultra vires the external affairs power. (1991) 172 CLR 501 at 581–2 (references omitted). (1991) 172 CLR 501 at 584. Y Dinstein, ‘The Defence of “Obedience to Superior Orders” in International Law’ in Y Dinstein (ed), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne, Martinus Nijhoff, Boston, 1989, p 253; T Vogler, ‘The Defense of “Superior Orders” in International Criminal Law’ in M Bassiouni and V Nanda (eds), A Treatise on International Criminal Law, vol 1, Thomas, Springfield, 1973, p 634. R v James (1837) 8 C & P 131; 173 ER 429. See Chapter 4. R v Barrett (1980) 72 Cr App R 212; Director of Public Prosecutions Reference No 1 of 1999 [1999] NTSC 23; 105 A Crim R 489. Criminal Code (Qld) s 31(1)(b); Criminal Code (WA) s 31(1)(b). The equivalent provision in the Northern Territory Criminal Code is subject to the qualification that a person cannot authorise or permit another to kill him or her, or, except in the case of medical treatment, to cause him or her grievous harm: Criminal Code (NT) s 26(1)(c), (3). Criminal Code (Qld) s 205; Criminal Code (Tas) s 118; Criminal Code (WA) s 178. Criminal Code (Qld) s 263; Criminal Code (Tas) s 36(1); Criminal Code (WA) s 240. Criminal Code (Qld) s 265; Criminal Code (Tas) s 38(1); Criminal Code (WA) s 242. Criminal Code (Qld) s 31(2). Criminal Code (NT) s 26(2); Criminal Code (Qld) s 31(3); Criminal Code (Tas) ss 36(2),

45. 46. 47. 48. 49. 50. 51. 52. 53.

54. 55. 56.

57. 58.

59. 60. 61.

62.

63.

64. 65.

38(2); Criminal Code (WA) s 31(2). Largely as a consequence of A v Hayden (1984) 156 CLR 532. [1959] Qd R 164 at 173. (2007) 179 A Crim R 181 at 184. Timms v R [1988] WASCA 41 (18 August 1988). (1864) 4 F & F 105 at 111–12. Keighly v Bell (1886) 4 F & F 763 at 793; 176 ER 781 at 800. (1900) 17 SC 561 at 568. (1900) 17 SC 561 at 566–7. (1900) 17 SC 561 at 567. Smith was followed in Celliers [1903] High Court of the Orange River Colony 1, where it was held that during martial law a soldier might justify the shooting of a prisoner by reference to superior orders. But in R v Werner 1947 (2) SA 828 (AD) the Smith test was criticised insofar as it implied that ignorance or mistake of law could provide a defence. See further D Brownlee, ‘Superior Orders — Time for a New Realism’ [1989] Criminal Law Review 396. See 2.18. As quoted by Brennan J in Polyukhovich v The Commonwealth of Australia (1991) 172 CLR 501 at 584. See International Criminal Court Act 2002 (Cth), and International Criminal Court (Consequential Amendments) Act 2002 (Cth), inserting a new Division 268 into the Commonwealth Criminal Code. The Division is entitled ‘Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court’. [2006] FCA 1759 at [51]. Committee Against Torture, Concluding Observations of the Committee Against Torture on Australia, 15 May 2008, UN Doc CAT/C/AUS/CO/3, at 2. It has been suggested that the 2010 amendments did not go far enough in implementing Australia’s international obligations: G Carne, ‘Is Near Enough Good Enough? Implementing Australia’s International Human Rights Torture Criminalisation and Prohibition Obligations in the Criminal Code (Cth)’ [2012] 33 Adelaide Law Review 229. Criminal Code (Cth) s 274.4. See Habib v Commonwealth (2010) 183 FCR 62 at 67. Crimes (Torture) Act 1988 (Cth) s 11. There were no prosecutions for torture under the Act before its repeal, although the definition of ‘torture’ in the Act was referred to in, for instance, De Bruyn v Minister for Justice and Customs (2005) 213 ALR 479 and in Snedden v Nationwide News Pty Ltd [2009] NSWSC 1446. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), adopted by the General Assembly of the United Nations, 10 December 1984, Australian Treaty Series 1989 No 21. The specified conduct that could not be authorised and would not attract immunity was limited to conduct causing ‘death or serious injury to any person’, involving the ‘commission of a sexual offence against any person’ or resulting in ‘significant loss of property or serious damage to property’: National Security Legislation Amendment Bill (No. 1) 2014 (Cth) Sch 3 cls 35C(2)(e) and 35K(1)(e). Further Supplementary Explanatory Memorandum, National Security Legislation Amendment Bill (No. 1) 2014 (Cth), p 2. Australian Security Intelligence Organisation Act 1979 (Cth) ss 35C(2)(e)(ia) and 35K(1)(e)

66.

67.

68.

69.

70. 71. 72. 73.

74.

75. 76.

77.

78.

79. 80.

(ia). In SRYYY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1588 and SZITR v Minister for Immigration & Multicultural Affairs [2006] FCA 1759, claims for protective visas were denied to persons alleged to have engaged in torture under superior orders. For a discussion of torture in Israel, see Judgement on the Interrogation Methods Applied by the GSS, The Supreme Court of Israel, sitting as the High Court of Justice, HC 5100/94 (1999). War Crimes Act 1945 (Cth) s 16, subject to ss 6(2) and 13(2). The Explanatory Memorandum for the War Crimes Amendment Bill 1987 (Cth) explained, at 3, that the specific exclusion of superior orders as a defence was for consistency with the proceedings of the International Military Tribunal at Nuremberg. One academic commentator argues that the 2010 amendments are a ‘retrograde step’, and that evidence of obedience to superior orders should be limited to sentencing: see G Triggs, ‘Implementation of the Rome Statute for the International Criminal Court: A Quiet Revolution in Australian Law’ (2003) 25 Sydney Law Review 507 at 508. For a contrary view, see C Garraway, ‘Superior Orders and the International Criminal Court; Justice Delivered or Justice Denied’ (1999) 81 International Review of the Red Cross 785. See G Boas and P Chifflet, ‘Suspected War Criminals in Australia: Law and Policy’ (2016) 40(1) Melbourne University Law Review (advance copy). For the definition of ‘defence civilian’, see Defence Force Discipline Act 1982 (Cth) s 3(1). See A v Hayden (1984) 156 CLR 532 at 582 per Brennan J. See also R v Stead [1994] 1 Qd R 665; R v Stead; Ex parte A-G [1997] QCA 236; Stead v R (1992) 62 A Crim R 40 at 45. Defence Force Discipline Act 1982 (Cth) Pt III — Offences. For mutiny and intoxication, see ss 20, 37. The service offences also include serious offences such as rape: see Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308; Re Tracey; Ex parte Ryan (1989) 166 CLR 518. Defence Force Discipline Act 1982 (Cth) s 27. It is a defence to this offence if the defence member proves on the balance of probabilities that ‘he or she neither knew, nor could reasonably be expected to have known, that the person giving the command was a superior officer’: s 27(3). The offence of disobeying a lawful command arose in King v Chief of Army [2012] ADFDAT 4; and Leith v Chief of Army [2013] ADFDAT 4. (2011) 259 FLR 208 at 226. See ‘Disobeying a Lawful Command’ in Discipline Law Manual, Vol 3: Summary Authority and Discipline Officer Proceedings, Australian Defence Force Publication, Executive Series ADFP 06.1.1, 4th ed, at 6C-14 to 6C-17. Defence Force Discipline Act 1982 (Cth) s 14. It is also an offence for a defence member to command or to order another defence member to engage in conduct which would constitute the commission of a service offence: s 62. The Act defines ‘order’ to include a command given by a superior officer: s 3 (1). The section has not been judicially considered. The original draft of cl 14 in the Defence Force Discipline Bill 1982 (Cth) stated that the order could not be ‘clearly unlawful’, which is conceptually close to ‘manifest’ illegality. Indeed, a Supplementary Explanatory Memorandum for the Bill, at 1, explained that the expression ‘clearly unlawful’ was ‘intended to mean “manifestly unlawful”’ but ‘doubts’ had been raised whether it had that effect, and the word ‘clearly’ was omitted from cl 14. See Celliers [1903] High Court of the Orange River Colony 1. Polyukhovich v The Commonwealth of Australia (1991) 172 CLR 501.

[page 259]

10 Defensive Force Introduction 10.1 In this chapter, two basic norms of the criminal law intersect. One is that the application of force to the person of another without consent is prima facie unlawful. The other is that a person has a fundamental right1 to defend himself or herself against personal attack. The whole topic of self-defence can be seen as an aspect of the broader question relating to the circumstances in which the application of force to the person of another is justified. The rules governing self-defence are closely related to those governing the application of force to prevent criminal conduct, apprehend offenders2 or evict trespassers.3 This chapter explores under what circumstances, within what limits, and in what degree it is lawful to apply non-consensual force for defensive purposes. It will be seen that the right to repel aggression by force extends to the defence of third parties and property. 10.2 The impulse to self-defence is instinctive; it is ‘hard-wired’ into the human psyche. It is socially acceptable to defend oneself against unjustified attack. Indeed, it is almost a public duty. The use of proportionate force in self-defence is a basic norm of the criminal law. As noted by the Privy Council:4 It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary.

In the High Court case of Zecevic v DPP (Vic) (1987) 162 CLR 645; 25 A Crim R 163, Deane J stated:5 The defence of self-defence is embedded deeply in ordinary standards of what is fair and just. It sounds as readily in the voice of the schoolchild who protests that he or she was only defending himself or herself from the attack of another child as it does in that of the sovereign state which claims that it was but protecting its citizens or its territory against the aggression of another state.

[page 260]

History 10.3 By the mid-19th century, the modern law had taken shape.6 Defensive force could be used to prevent or repel personal attack and to defend others. It could be used to protect realty or personal property and to interrupt criminal conduct or apprehend or arrest offenders. Where self-defence succeeded, it provided a complete defence. But the law was minimalist: only necessary force could be used, and the force had to be proportionate to the danger. The 1879 Report of the Criminal Code Bill Commission stated:7 We take one great principle of the common law to be, that though it sanctions the defence of a man’s person, liberty, and property against illegal violence, and permits the use of force to prevent crimes, to preserve the public peace, and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by less violent means; and that the mischief done by, or which might reasonably be anticipated from, the force used is not disproportioned to the injury or mischief which it is intended to prevent.

10.4 Australian law recognises a range of circumstances where nonconsensual force to the person of another may be justified, including self-protection, defence of another, the prevention or termination of unlawful imprisonment, and the protection of property, including the defence of land and the removal of trespassers. The rules governing the use of force for defensive purposes are not uniform across Australia, and each jurisdiction has statutorily displaced the common law. 10.5 In New South Wales, the Australian Capital Territory and the Northern Territory, statutory provisions embellish the common law

along the lines of the Criminal Code 1995 (Cth).8 In 2005, Victoria introduced statutory defences that only applied to murder and manslaughter.9 The common law defence of self-defence continued to apply to non-fatal offences against the person. In 2014, parliament repealed its 2005 defences, abolished the common law defence in its entirety, and enacted a general self-defence provision modelled on the Commonwealth Criminal Code defence.10 South Australia has distinctive and complex provisions resulting from progressive statutory amendments.11 The South Australian regime includes a provision for the defence of self, defence of another, and prevention or termination of unlawful imprisonment.12 The regime also includes a separate defence of property.13 Tasmania has a simple and elegant [page 261] statutory formulation of the self-defence rule which also applies to the defence of another.14 The Criminal Code 1924 (Tas) includes a number of separate defences for the protection of property and property rights.15 Queensland is the only jurisdiction to retain a long-standing distinction between self-defence where the accused provoked the victim’s assault and self-defence where the accused did not provoke the assaults.16 It also includes the discrete defences of resisting unlawful violence,17 aiding in self-defence,18 preventing violence by an involuntary patient of a mental institution or by a forensic disability client to any person or property,19 the partial excuse of killing for preservation in an abusive domestic relationship,20 and a further seven defences relating to the protection of property or property rights.21 The Western Australian defences were expressed in similar terms to their Queensland counterparts. However, the Criminal Law Amendment (Homicide) Act 2008 abolished the distinction between self-defence to a provoked assault and self-defence to an unprovoked assault, and incorporated self-defence and defence of another into a single defence.22 The Act also abolished the defence of resisting unlawful violence and amended the defence of resisting home invasion.23 The defences of

preventing violence by a mentally impaired person and of protecting property continue to be expressed in terms similar to their Queensland counterparts.24 Given the underlying rationale for allowing the use of defensive force, it is not surprising that regional variations within Australian criminal law are mostly a matter of form rather than substance.25 In the following paragraphs, the specific circumstances in which defensive force may be justified are considered in detail.

Self-defence and intent 10.6 It should be noted at the outset that a plea of self-defence does not commit the accused to a denial that the act was intended. In the Victorian case of R v Stojkovic [2004] VSCA 84, counsel for the prosecution suggested that self-defence only arises once the jury had concluded that the act was intentional.26 However, it is a clear mistake to suggest, as prosecuting counsel did in that case, that an accused charged with murder cannot claim a lack of intent to kill or do really serious injury while at the same time claiming that he or she acted in self-defence. [page 262]

The basic formulation of self-defence 10.7 At common law it is lawful to use force against another if the defender believes, on reasonable grounds, that it is necessary in selfdefence to do what is done.27 In the model Code jurisdictions, a person is not criminally responsible if his or her conduct was in self-defence, which is taken to be the case if, and only if, he or she believed that the conduct was necessary for a defined defensive purpose and that conduct was a reasonable response in the circumstances he or she perceived to exist.28 There are three questions to address when applying the model Code formula. First, did the accused believe it was necessary to act for one of the defensive purposes? Second, did the accused believe his or her

response was necessary given the perceived threat? Third, was the accused’s response, objectively speaking, proportionate to the situation that he or she subjectively believed to exist?29 10.8 In South Australia, a person does not commit an offence by using force against another if the person genuinely believed his or her conduct was both necessary and reasonable, and conduct was, in the circumstances that the person genuinely believed existed, reasonably proportionate to the threat that the person genuinely believed to exist.30 Furthermore, the person must believe that force is necessary and reasonable for the purpose of defending himself, herself or another or for the purpose of terminating his, her or another’s unlawful imprisonment.31 In Tasmania, ‘a person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use.’32 The Criminal Code 1899 (Qld) has different rules that apply to the different circumstances in which defensive force can be used. This adds to the complexity of a trial as the evidence may raise a number of defensive force excuses, each formulated differently.33 Western Australia, like Queensland, has a diverse range of excuses that apply to the protection of property or property rights; however, Western Australia has consolidated unprovoked and provoked self-defence and the defence of others into a single defence.

Personal defence 10.9 The prototypical case, defence of one’s person, is accepted as an expression of individual sovereignty. At common law, a person has an undoubted right to use [page 263] force to repel a personal attack. The joint judgment in the High Court case of Zecevic v DPP (Vic) (1987) 162 CLR 645; 25 A Crim R 163 states:34

The question to be asked in the end is quite simple. It is whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter then he is entitled to an acquittal.

Although expressed in the context of homicide, this approach was said to be of general application. 10.10 Under the Criminal Code (Qld), the position is more complex. The Code distinguishes between self-defence in response to an unprovoked assault and self-defence in response to a provoked assault (see 10.47), and it includes a separate excuse of resisting unlawful threatened violence and a separate partial excuse of killing for preservation in an abusive domestic relationship (see 11.55).35 The unlawful and unprovoked assaults provision contains two distinct defences in separate paragraphs. The first paragraph provides that an accused may apply such force as is reasonably necessary to make effectual defence against an unlawful and unprovoked assault, provided that the force used was not intended, or likely to cause, death or grievous bodily harm.36 The first paragraph applies to most non-fatal offences against the person and to manslaughter.37 The second paragraph deals with cases where the nature of the unlawful and unprovoked assault causes the accused to have a reasonable apprehension of death or grievous bodily harm. As one would expect, in such cases the defender may use any force to the assailant, even though such force may cause death or grievous bodily harm. However, the accused must believe, on reasonable grounds, that he or she cannot otherwise preserve himself or herself from death or grievous bodily harm.38 The second paragraph will usually operate where death or grievous bodily harm has been caused to the assailant, whether intentionally or otherwise.39 The only common elements between the two paragraphs are the unlawful assault and the fact that the accused has not provoked the assault.40 Therefore, it is sometimes necessary to leave both paragraphs to the jury,41 and indeed both paragraphs are available on a charge of manslaughter.42 The defence of resisting violence provides that an accused is not criminally responsible for resisting actual unlawful violence

[page 264] threatened to the accused or to another person in the accused presence.43 Although the defence of resisting violence overlaps with selfdefence, the elements are not identical and, therefore, the exclusion of self-defence is not inconsistent with the application of resisting violence.44 The application of the defence is limited as it does not apply to the offences of murder, intentionally causing grievous bodily harm, causing grievous bodily harm, or manslaughter where the victim died as a result of injuries that amount to grievous bodily harm. Furthermore, it does not apply in circumstances where the accused entered into an unlawful association or conspiracy which rendered him or her liable to such threats of violence.45 10.11 The 2008 Western Australian reforms have reduced the number of defensive force excuses but has replaced them with a formula that is complex and potentially confusing for jurors. The excuse of selfdefence applies in circumstances where the accused believed it was necessary to defend himself or herself against a harmful act,46 including a harmful act which was not imminent, and the accused responded by way of a harmful act which was a reasonable response in the circumstances as the accused believed them to be. Furthermore, there must be reasonable grounds for the accused’s belief that a harmful act was necessary to defend himself or herself against a harmful act, including one that was not imminent, and there must be reasonable grounds for his or her belief as to the existence of the relevant circumstances.47 10.12 The Tasmanian provision, like the other state codes, is not consistent with the model Code defence, although it does lack the complexity of the Queensland and Western Australian provisions. It provides that a person is justified in using, in the defence of self or another, such force which, in the circumstances as he or she believes them to be, is reasonable to use.48 The South Australian provision is similar

[page 265] to that of the Commonwealth Code. A person does not commit an offence by using force against another if that person genuinely believed that the force was necessary and reasonable to defend himself or herself and in the circumstances that the person genuinely believed to have existed, the force was reasonably proportionate to the threat that the person genuinely believed to have existed.49 Under the Criminal Code (Cth), a person carries out conduct in self-defence ‘if and only if’50 he or she believed that conduct was necessary for one of the specified purposes, and the conduct was a reasonable response in the circumstances as he or she perceived them. The particular purposes extend to defence of self or third parties, the termination of unlawful imprisonment, the protection of property, and trespass or the removal of trespassers from land.51 Force intended to cause death or really serious injury may not be used for property protection or to prevent trespass or remove trespassers.52 The substance of this provision operates in the mainland Territories, New South Wales, and in Victoria where it is alleged that an offence occurred on or after 1 November 2014.53 Where it is alleged that an offence occurred prior to 1 November 2014, the common law applies to non-fatal offence against the person. The common law also applies to a fatal offence against the person committed prior to 23 November 2005; however, where it is alleged that the accused committed murder or manslaughter sometime after 22 November 2005 but before 1 November 2014, specific statutory defences apply. The model Code defences extend to an unreasonable misapprehension of threatened harm, the question being whether the conduct was a reasonable response in the circumstances as the person perceived them to be.54

Defence of another — rescue 10.13 The English common law apparently recognises a right to aid in self-defence extending beyond immediate family, although there is little case law on

[page 266] the topic.55 In R v Duffy [1967] 1 QB 63, a woman went to the defence of her twin sister. She was charged with wounding with intent:56 It is established that [self-defence] is not restricted to the person attacked. It has been said to extend to ‘the principal civil and natural relations’. Hale’s Pleas of the Crown, Vol. 1, p. 484, gives as instances master and servant, parent and child, and husband and wife who, if they even kill an assailant in the necessary defence of each other, are excused, the act of the relative assisting being considered the same as the act of the party himself or herself. But no reported case goes outside the relations indicated.

The court concluded (at 67) that defence by a sibling was outside the recognised relations but ‘there is a general liberty even as between strangers to prevent a felony’:57 That is not to say of course, that a newcomer may lawfully join in a fight just for the sake of fighting. Such conduct is wholly different in law from that of a person who in circumstances of necessity intervenes with the sole object of restoring the peace by rescuing a person being attacked.

In R v Fennell [1971] 1 QB 428, the defendant was charged with assaulting a police constable acting in execution of duty. The defendant honestly but wrongly believed that the officer’s restraint of his son was unlawful. As the boy was not in imminent danger of injury, the court held that there was no justification for the use of force to release him from police custody. But in R v Williams [1987] 3 All ER 411; (1984) 78 Cr App R 276, the same court allowed self-defence where the accused intervened in defence of a youth who was being assaulted during a putative arrest for stealing by a private citizen. The accused was unaware of the circumstances of the arrest. The case is also important in applying a subjective test to the question of whether an occasion for the use of defensive force had arisen.58 10.14 The defence of rescue has been recognised as part of the common law of Australia. It is sufficient if the defender believed on reasonable grounds that the person defended was in imminent danger of either death or serious bodily injury.59 Under these circumstances, the defence is not limited by any familial, defined or special relationship between the defender and the defended. In R v Portelli (2004) 148 A

Crim R 282 per Ormiston J said:60 [A]ny apparent limitation to the right or privilege of a person to respond to the attack of another should not be confined to attacks directed at the accused or a person in some

[page 267] defined relationship to the accused, but should be equally applicable whenever response is made to an attack upon any person, whether relative, friend or stranger …

This is also the position under the Commonwealth, Australian Capital Territory, New South Wales, Northern Territory, South Australian, Tasmanian, and Western Australian self-defence provisions.61 In each of these jurisdictions, the defence of rescue is part of, and shares the same elements as, the personal defence (see 10.12).62 10.15 The Criminal Code (Qld) also recognises a defence of rescue and, consistent with other jurisdictions, it is not limited to the rescue of a person who is in a familial or some other special relationship with the accused. Unlike other jurisdictions, the Queensland Code defence of another is a discrete but parasitic excuse. Under the heading ‘aiding in defence’, the Code provides that in any case where a person is entitled ‘to use force of any degree’ in self-defence against an assault, it is lawful for any other person acting in good faith to use a like degree of force for the purposes of defending that person.63 It is necessary to consider whether the person rescued was entitled, or whether the accused reasonably believed that the circumstances existed which, if true, would have entitled the person rescued, to rely on one or more of the specific self-defence provisions.64 The inclusion of the words ‘to use force of any degree’ does not limit the defence’s application to circumstances where the person rescued was entitled to use lethal force.65 The parasitic nature of the defence means that the excusable degree of force is determined by reference to the degree of force the person rescued was entitled to use. The Code, therefore, affords a greater degree of protection than is afforded to the rescuer in other jurisdictions where the reasonableness of the conduct is determined by reference to the accused’s circumstances, not the circumstances of the person rescued.

The ‘good faith’ requirement necessitates consideration of the person’s motives. An accused would not act in good faith where he or she intervened to assert his or her authority rather than to protect the other person.66 An accused who instigates the altercation and had not ceased before the assault occurred would not be acting in good faith.67 The defences of resisting unlawful violence and of preventing violence by an involuntary patient of a mental institution or by a forensic disability client also apply to the rescue of another.68 [page 268]

Protecting property 10.16 The protection of property is a basic purpose of the criminal law, but it is surprisingly uncertain as to how far the common law privileges the forcible defence of property or realty.69 There is no support for an unbridled right of property defence, although there is some support for the permission to use reasonable force.70 In relation to protection of public property, or property belonging to a third party, the aphorism that what is done must be reasonable provides scant guidance, although it may be possible to invoke some other basis for the lawful application of force, such as: • a power of arrest (R v Turner [1962] VR 30); • to prevent crime (R v McKay [1957] VR 560); • to exercise a claim of right (Hussey v R (1924) 18 Cr App R 160; R v Barrett (1980) 72 Cr App R 212); or • personal self-defence (R v Conlon (1993) 69 A Crim R 92; Lane v R [1983] 2 VR 449). It is, however, surprising how little common law authority there is for property defence as an intrinsic right. The uncertainty of the common law has been statutorily addressed in each of the Australian jurisdictions. 10.17 The Griffith and Tasmanian Codes deal with property protection in a piecemeal fashion. The Codes:

• •

•

• • •

provide for the protection of moveable property against trespassers;71 provide for the protection of peaceable possession of moveable property under a claim of right even as against a person entitled by law to the property;72 provide a defence where the accused renders assistance to the enforcement of property rights as against one who is in possession of moveable property but not under a claim of right;73 protect premises by allowing for the exclusion of persons wrongly entering, and the removal of disorderly persons;74 permit defence of real property under a claim of right, even against a person entitled by law to possession thereof;75 and provide for defence of a dwelling house.76

In relation to a disputed right of way or easement, the Griffith Code favours the occupier as against the person claiming the right of way, at least after notice [page 269] has been given.77 Each of the protection of property defences specifies that the force must have been used to achieve a particular purpose. For example, the Queensland defence of a dwelling states that the force used by the occupier must be for the purpose of preventing or repelling another who the occupier believes on reasonable grounds has attempted to unlawfully enter or remain in the dwelling with the intention of committing an indictable offence in the dwelling.78 Therefore, the excuse would not succeed if it is proven that the occupier was motivated by vengeance.79 Most of the Griffith and Tasmanian Code excuses can be raised by both the person who has a right to the property and by others who lawfully assist or act by the authority of the person who has a right to the property.80 All of the Griffith Code excuses, other than the defence of a dwelling, prescribe that the force used must be reasonably necessary;

and the Tasmanian defences prescribe that the person must believe on reasonable grounds that the force is necessary.81 With the exception of the defence of a dwelling, there are limits on the level of force that can be used. The Queensland defences apply where the force falls short of the infliction of grievous bodily harm. The Tasmanian defences apply where the force used was not intended and was not likely to cause death or grievous bodily harm. Three of the Western Australian defences also prescribe limits consistent with the Tasmanian defences82 and three apply only if the force used falls short of the infliction of bodily harm.83 10.18 The question of property protection is less complex under the Criminal Code (Cth),84 which permits the use of force not intended to cause death or really serious injury85 for the purpose of: • protecting property from unlawful appropriation, destruction, damage or interference; • preventing criminal trespass to land or premises; and • removing a person found committing criminal trespass from land or premises. [page 270] Such force may not be used in relation to lawful conduct where the defender knew that such conduct was lawful.86 The model Code provisions on property defence have been adopted in New South Wales and the mainland Territories. The Victorian legislation does not include an exhaustive list of circumstances when force can be used to protect property. Instead, in a note to the defence, it simply states that the circumstances when a person may act in self-defence include where he or she acts in the ‘protection of property’.87 10.19 In South Australia, it is a defence to a charge of an offence if the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable to: • protect property from unlawful appropriation, destruction, damage or interference;

• • •

prevent criminal trespass to land or premises; remove from land or premises a person who is committing a criminal trespass; or make or assist in the lawful arrest of an offender or alleged offender, or a person who is unlawfully at large.

Furthermore, in the circumstances as the defendant genuinely believed them to exist, his or her conduct must have been reasonably proportionate to the threat that he or she genuinely believed to have existed.88 However, this requirement is relaxed in relation to defence against home invasion.89 10.20 Given the sanctity of life and the importance attached to its protection by the criminal law, lethal force should be permitted only in relation to property invasions of the most serious kind, such as of an occupied dwelling.90 The Griffith and Tasmanian Codes sanction the use of lethal force in defence of a dwelling,91 but not in defence of moveable property or land.92 In Queensland and Tasmania, there is no requirement that the occupier apprehend death or serious injury as a prerequisite for the lawful use of lethal force in defence of a dwelling.93 However, the Criminal Code 1913 (WA) limits the use of force intended or likely to cause death to circumstances were the occupant believes on reasonable grounds that violence is being or is likely to be used or is threatened by the home invader.94 The Criminal Code (Cth) and those of the mainland Territories provide that force intended to cause death or intended to cause really serious injury or serious harm may not be [page 271] used in the protection of property or to resist or remove a trespasser.95 Similarly in New South Wales, a defence based on the protection of property or the resistance or removal of a trespasser is not open if the force used involved the intentional or reckless infliction of death.96 Presumably, in each of these model Code jurisdictions where death results, self-defence is available provided the accused did not act with

the prescribed intent. Conversely, even when death does not result, selfdefence is excluded in circumstances where the accused acted with the prescribed intent. The Victorian and South Australian provisions are less restrictive as they limit the use of lethal force by reference to the accused’s intent and the outcome of the accused’s conduct. In Victoria, it is not a defence to use force to protect property or to prevent or terminate unlawful deprivation where death results and the accused intended to cause death or grievous bodily harm.97 Similarly, the South Australian provision excludes circumstances where the accused used lethal force with the intent to kill or with the reckless realisation that death could result.98

Prevention of crime and power of arrest 10.21 The prevention of crime and the exercise of a lawful power of arrest are interrelated. In the Victorian case of R v McKay [1957] VR 560, a chicken farmer shot and killed the deceased whom he believed was responsible for a series of thefts from his farm. The conviction for manslaughter was upheld on appeal. Lowe J expressly recognised property defence as a basis for pleading justification for an assault:99 Homicide is lawful if it is committed in reasonable self-defence of the person committing it, or of his wife or children, or of his property, or in order to prevent the commission of a forcible and atrocious crime.

However, Smith J (who dissented on the result) was more cautious and confined his judgment to the particular question:100 [W]hat conditions must be satisfied before the law will hold that the death of a felon caused by an act done by a person present at the commission of the felony, in order to prevent its completion or the escape of the felon, in a justifiable homicide when the felony does not involve any dwelling-house in any way?

In relation to the felon apprehension rule, Smith J said:101 [T]he test laid down by the law today for determining whether the homicide is justifiable or not is a two-fold test which may be stated in this form: (1) Did the accused honestly believe on reasonable grounds that it was necessary to do what he did in order to prevent the completion of the felony or the escape of the felon? and (2) Would a reasonable man in his position have considered that what he did was not out of proportion to the mischief to be prevented?

10.22

Cases such as this may equally raise issues concerning the

relevant arrest power. In the Victorian case of R v Turner [1962] VR 30, the accused was the [page 272] victim of a series of thefts from his car which was parked outside his home in suburban Melbourne. He decided to catch the thief by lying in wait, armed with a homemade pistol. After midnight, a person appeared and seemed to be tampering with the accused’s car. The accused shouted, ‘Stop or I’ll shoot’. The intruder fled and the accused shot ‘towards’ but allegedly not ‘at’ him. The accused successfully appealed against his conviction for manslaughter. The appeal turned on the proper interpretation of a statutory arrest provision102 for persons found committing an indictable offence at night. The section made no reference to the use of force.103 The Victorian Court of Criminal Appeal interpreted the provision as permitting reasonable force up to and including lethal force. Turner does not establish a general right to use force, including lethal force, in defence of property, but focuses upon the power of arrest arising from the commission of an indictable offence, namely, stealing. The court also noted that the degree of force that is permitted would depend upon whether there is a duty to arrest.104 10.23 The Tasmanian and Western Australian Codes contain a counterpart to the ‘fleeing felon’ rule. In essence, lethal force may be used to prevent the escape of a person lawfully arrested if the escapee is reasonably suspected of having committed a serious offence (for example, one punishable by life imprisonment) and has been called upon to surrender.105 The State and Northern Territory Codes provide that a civilian is not authorised to use lethal force to effect an arrest,106 nor to use lethal force to prevent the escape after arrest,107 unless (and only under the Griffith Code) the person has been arrested for a serious crime.108 The code jurisdictions contain detailed provisions governing the use of force to effect arrest and apprehend offenders,109 and to prevent breach of the peace,110 riot,111 and the commission of

crimes.112 [page 273] 10.24 The Criminal Code (Cth) does not specifically extend to the apprehension of offenders. It is suggested that the specific State provisions, or indeed the common law, would apply.113

Limits on self-defence Reasonableness 10.25 At common law, a person is entitled to rely upon a mistaken belief that he or she is about to be attacked, provided there are reasonable grounds for that belief.114 Under the test formulated by the High Court in Zecevic,115 the question is: did the accused honestly believe on reasonable grounds that it was necessary to do what was done in self-defence? It is the accused’s belief that an occasion for the use of force by way of self-defence has arisen that must be held on reasonable grounds.116 This does not require consideration of whether the hypothetical reasonable person in the accused’s position would have believed that it was necessary to do what was done by way of selfdefence.117 So long as a defender genuinely and reasonably believed that an occasion for self-defence had arisen, the plea of self-defence is available even if the occasion did not objectively call for defensive force.118 10.26 The elements of threat perception and excessive force are sometimes merged; although closely connected, they are separable and indeed should be separated.119 At common law, excessive force (viewed against the objective facts) may be excused if the defender honestly and reasonably believed that it was necessary to use force by way of selfdefence.120 This aspect of self-defence has caused particular difficulties in the context of homicide, a matter considered below: see 10.35.

10.27 The common law’s fault standard, that the defender must hold a belief on reasonable grounds, contains subjective aspects.121 The accused’s knowledge and perceptions of his or her surrounding circumstances, and of his or her victim, [page 274] can be taken into account.122 Personal characteristics of the accused that might affect his or her appreciation of the gravity of the threat faced, including transitory characteristics such as intoxication123 or deluded beliefs, are also relevant to whether the accused’s belief was based on reasonable grounds.124 It is not what a reasonable person would have believed, but what the accused reasonably believed in the circumstances.125 This is consistent with the fault standard for reasonable mistake of fact: see Chapter 2. Consistent with the common law, the model Code jurisdictions adopt a hybrid approach: a mixed objective and subjective fault standard. However, the model Code approach is not concerned with the reasonableness of the accused’s belief but with whether the accused’s conduct was an objectively reasonable response in light of the circumstances that the accused believed existed.126 It prescribes an objective assessment of the proportionality of the accused conduct in light of the circumstances that the accused subjectively perceived to have existed.127 The accused’s age, gender, physical health, mental wellbeing,128 perceptions about the victim, and perception as to the physical surroundings are among the factors that may influence the accused’s perception as to the nature of the threat that he or she faced.129 However, evidence that the accused was under the influence of self-induced intoxication is irrelevant as it is inconsistent with the objective nature of the fault standard.130 In the various state codes, defensive force excuses have different fault standards. Two common fault standards are: that the force used must have been reasonably

[page 275] necessary;131 and that the accused must have believed on reasonable grounds that his or her conduct was necessary.132 The former is objectively determined133 while the latter is a hybrid criterion similar to the common law.134 Some provisions combine both the objective and hybrid criterion.135 The Western Australian provision is one of the more complex provisions as it combines the model Code fault standard with the requirement that there are reasonable grounds for the accused’s beliefs. In Goodwyn v Western Australia (2013) 45 WAR 328, Buss JA identified the four elements of self-defence as:136 First, the accused (subjectively) believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a)). Secondly, the accused’s harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be (s 248(4)(b)). Thirdly, there are reasonable (objective) grounds for the accused’s (subjective) belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4) (a) read with s 248(4)(c)). Fourthly, there are reasonable (objective) grounds for the accused’s (subjective) belief as to the circumstances (s 248(4)(b) read with s 248(4) (c)).

Proportionality 10.28 At common law, the question whether the responsive force used was ‘necessary’, ‘minimal’ or ‘reasonably proportionate’ to the threat is tested by reference to the circumstances that the defender believed, on reasonable grounds, to exist. There is no separate requirement of proportionality in self-defence.137 Proportionality is related to the basic question of whether the accused believed that what was done was reasonably necessary for self-defence. Proportionality is of evidentiary significance to this issue and has no life of its own.138 10.29 There is no rule of law that the use of excessive force (objectively speaking) necessarily establishes that the accused did not act in self-defence.139 [page 276]

However, in the New South Wales Court of Criminal Appeal case R v Walden (1986) 19 A Crim R 444, Street CJ noted that there was:140 … a threshold of law below which it would be proper to hold, as a matter of law, that the actual or believed danger could not be regarded by the jury as reasonably proportionate to the act of self-defence. But once that threshold is passed it is, in my view, in every case a matter for the jury to determine the reasonable proportionality between the act of self-defence and the actual state of danger, followed, if the question arises, by the believed state of danger.

10.30 Under the model Code approach and South Australian legislation, the proportionality of the accused’s response is pivotal to the fault standard.141 It is for the Crown to prove that the accused’s response was objectively disproportionate given the circumstances that the accused believed existed.142 The response need not be precisely proportionate to the threat faced as the accused will usually have limited time for reflection on, and evaluation of, the threat and will usually be limited by the available response options. The defensive conduct can therefore be reasonably proportionate even though it exceeds the force used or threatened by the aggressor.143 However, a jury should reject self-defence if it concludes that, by reference to facts assumed by the accused to exist, the response was not ‘reasonable’, even if the accused considered them to be so. The South Australian legislation provides for a specific circumstance where an accused can rely on self-defence even though his or her conduct was not reasonably proportionate. The relevant defence applies in circumstances where the victim was not a police officer performing his or her duties and the defence proves that: the accused believed that the victim was committing, or had just committed, home invasion; that the accused was not, and had not been, engaged in criminal misconduct that might have led to the threat or perceived threat; and that the accused was not substantially affected by self-induced intoxication.144

Necessity 10.31 In the Victorian case of R v McKay [1957] VR 560, Lowe J echoed the Criminal Code Commissioners of 1879 when he said:145 The homicide in order to be justified must be necessary, and the jury are to inquire as to the necessity of the killing.

The requirement of necessity hovers ambiguously between the requirements that what was done was for the purpose of self-defence, and that what was done involved the least amount of force. In the absence of some evidence of a mistaken belief held on reasonable grounds, action that is not referable to latent or actual threats by another person will not fall under the category of defensive acts. In that sense, there is a requirement that what was done was necessary for selfdefence. [page 277] But that is a distinct proposition from the assertion that only minimal force can, as a matter of law, be justified by way of self- defence.146 10.32 The Criminal Code (Qld) refers to force that is reasonably necessary147 or necessary.148 The former imposes an objective requirement (see 10.27) and the latter, as expressed in s 271(2), is redundant.149 There is, however, an implicit requirement that the defensive force was necessary as the accused must have confronted an assault or violence150 or, if the circumstances were such as he or she reasonably believed them to be, there would have been an assault or violence.151 Self-defence under the Criminal Code (WA) states that the accused must have believed that it was necessary to protect himself or herself or another against a harmful act and there were reasonable grounds for that belief.152 By requiring that the accused’s beliefs be based on reasonable grounds, the Western Australian excuse of selfdefence seems to exclude any engagement with reasonable mistake of fact (see Chapter 2). The model Code approach requires that the accused believed the conduct to be ‘necessary’ for one of the specified purposes, and that the conduct was a reasonable response in the circumstances as the accused perceived them (see 10.27).153 The sections raise two questions: first, did the person carry out the conduct with the belief that the conduct was necessary; and second, was the conduct a reasonable response in the circumstances as the person perceived them? The first question is subjective; the focus of inquiry is

on the accused’s state of belief as to the need for the particular conduct. It may be a mistaken belief that the conduct is necessary and it may be a belief that the accused would not have formed but for the influence of intoxication or because he or she was suffering from delusions.154 The second question is concerned with the reasonableness of the response within the context of the perceived circumstances. If the accused was able to neutralise the threat by lethal or non-lethal means but chose lethal means, and there is evidence that he or she believed that some non-lethal response would have been sufficient to effectively [page 278] defend himself or herself, it is suggested that self-defence may be defeated under the model Code approach. Evidence of the accused’s state of mind as to alternative less serious responses will be highly significant. Furthermore, a jury may find that a particular response (such as stabbing the aggressor with a knife) was an unreasonable response to a threatened assault (such as home burglary) because there is evidence that the accused believed that a non-lethal response (such as locking the door or retreating) was available.

Lethal force 10.33 In all jurisdictions, there are restrictions on the use of lethal force by way of self-defence. The common law test under Zecevic v DPP (Vic) (1987) 162 CLR 645; 25 A Crim R 163 is perhaps the most generous, insofar as the simple question is whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he or she did.155 Under the Criminal Code (Qld), the use of force intended or likely to cause death or grievous bodily harm is limited to cases where the accused could reasonably apprehend death or grievous bodily harm,156 or was acting in defence of an occupied dwelling.157 Self-defence in response to an unprovoked assault does not limit the use of force by reference to prescribed consequences.158 The excuse can

therefore apply where death or grievous bodily harm result, provided that such a consequence was not intended, and given the force used, was not likely to occur.159 10.34 Under the model Code approach, force that involves the intentional infliction of death or serious harm cannot be used to protect property, prevent criminal trespass or remove trespassers.160 In Victoria, the defence of self-defence only applies in the case of murder where the accused believed it was necessary to defend himself or herself or another against the infliction of death or really serious injury.161 A really serious injury is defined to include a serious sexual assault.162 Therefore, a person who believes it is necessary to kill another to protect himself [page 279] or herself against a serious sexual assault can rely on the defence of selfdefence provided that his or her conduct in killing the deceased was a reasonable response in the circumstances that the accused perceived to exist. Statutory provisions in South Australia also limit the use of lethal force.163 An accused who intentionally caused death or who acted recklessly realising that his or her conduct could result in death does not have a complete defence in circumstances where the victim died and the accused was acting to protect property or was assisting in the lawful arrest of an offender or alleged offender or a person who was unlawfully at large.164

Excessive force causing death 10.35 As noted above, self-defence may entail the use of lethal force, giving rise to a charge of murder or manslaughter. A particular problem that may arise in such cases is that the force used was excessive, either in the sense that the occasion did not call for the use of force at all, or in the sense that more force was used than was required to make effective defence. Zecevic v DPP (Vic) (1987) 162 CLR 645; 25 A Crim R 163

abolished the common law doctrine of excessive force manslaughter, which permitted the jury to convict a person, otherwise guilty of murder, of manslaughter by reason of using excessive force in selfdefence.165 The change made by the High Court was to reject the proposition that manslaughter would be the automatic verdict in such cases as a matter of course. The court did not eliminate the possibility that a verdict of manslaughter might be returned where excessive force was used. The evidence might justify a verdict of manslaughter on the basis of gross negligence or an unlawful and dangerous act. Manslaughter could not, however, be based simply on a finding that the accused used excessive force honestly believing it to have been necessary. The majority said:166 As we have expressed the law, the use of excessive force in the belief that it was necessary in self-defence will not automatically result in a verdict of manslaughter. If the jury concludes that there were no reasonable grounds for a belief that the degree of force used was necessary, the defence of self-defence will fail and the circumstances will fall to be considered by the jury without reference to that plea.

10.36 Other than in Western Australia, the doctrine of excessive force manslaughter is not recognised in the Code jurisdictions. The rule expressed under [page 280] the Queensland167 and Tasmanian Codes168 is that in any case in which the use of force by one person to another is lawful, the use of more force than is justified by law under the circumstances is unlawful.169 However, following the abolition of excessive force manslaughter at common law, South Australia and New South Wales reintroduced the doctrine by statute.170 Western Australia became the only Code jurisdiction to recognise excessive force manslaughter, when the Code was amended in 2008. The defence of excessive self-defence reduces murder to manslaughter in circumstances where the accused’s conduct was not a reasonable response in the circumstances as the accused believed them to exist but in all other respects the accused’s conduct was consistent with the requirements of self-defence.171 The statutory

adoption of the doctrine suggests that there exists a significant moral distinction between murder and unlawful killing in excessive selfdefence.172 The Victorian experience, however, challenges the moral distinction view. In 2005, Victoria enacted the offence of defensive homicide, which gave effect to the doctrine of excessive force manslaughter.173 However, the offence was abolished in 2014174 following a review by the Victorian Department of Justice which found that the offence was overly [page 281] complex, failed to offer any clear benefit to women who kill in response to family violence, and reduced the culpability of men who kill in circumstances where such a reduction is not justified.175

The duty to retreat 10.37 At common law, there is no rule requiring retreat. Failure to retreat is simply a factor to be taken into account in determining whether the accused believed, on reasonable grounds, that what was done was necessary for self- defence.176 Retreat in the face of a threat is evidence of the reasonableness of the accused’s belief that defensive force was necessary. This approach is followed even where the accused was the original aggressor. However, in that case it may be difficult to satisfy the test of reasonableness. Where a person is defending his or her dwelling, the law does not impose an obligation to retreat from the threat even if such a course of action is reasonably available.177 10.38 The model Code approach does not require a person to retreat; however, evidence that the option to retreat was available will be relevant as to the person’s belief that force was necessary and to whether the conduct was a reasonable response to the perceived circumstances. For the most part, the Criminal Code (Qld) follows the evidentiary approach of the common law: retreat is not an independent element of the defence of self-defence against an unprovoked assault.178

It is, however, an element of self-defence against a provoked assault in certain circumstances. If a person attacks the victim intending to kill or cause grievous bodily harm and the victim responds with such force that the person believes on reasonably grounds that it is necessary to preserve himself or herself from death or grievous bodily harm, the person cannot rely on self-defence where death results unless the person first retreats as far as is practicable. The obligation to retreat also applies in similar circumstances where the person tries to kill or do grievous bodily harm to the victim before the necessity for selfpreservation arises.179

Pre-emptive force 10.39 A person who believes that an attack is imminent may seek to liquidate the source of potential danger by pre-emptive action. The assessment of such action by reference to the doctrine of self-defence is appropriately conditioned [page 282] by caution and scepticism.180 However, it is not difficult to imagine scenarios falling squarely within the rationale of self-defence. A telephone call from a violent ex-partner may serve notice of an impending and credible threat of serious injury. A hostage-taker may indicate that the captive will be killed at the expiration of a deadline. An abusive husband may threaten to kill the accused after having a nap. In such cases, is the person to wait until the danger has actually materialised? Common sense suggests that effective defence may require pre-emptive action. A conventional approach is to identify conduct by the person making the threat amounting to an assault in progress; for example, the words uttered by the husband before retiring to sleep may be treated as an assault of a continuing nature.181 But if the actual words are not sufficient to amount to an assault, even when ‘contextualised’ by

reference to the particular situation in which they are spoken, it will be necessary to seek to extend self-defence to include defensive action against threatened attacks that, although imminent, are not actually underway.182 Whether this is possible will depend on the actual circumstances and the form taken by the defence. At common law, the basic test is whether the accused honestly believed, on reasonable grounds, that it was necessary to do what he or she did. This formula would seem to be sufficiently flexible to permit some degree of pre-emption, although it will be a matter of degree as to whether the force used was for self-defence as opposed to being motivated for revenge, retribution or some other purpose foreign to the purpose of self-defence. There is no legal requirement that an attack was in progress.183 It is sufficient if the attack was imminent, and imminence is an elastic concept.184 10.40 The notion of pre-emptive force may assume a particular significance in the context of domestic violence.185 Human relationships operate on a very wide range from the harmonious to the dysfunctional. In dysfunctional relationships, one or, indeed, both parties are vulnerable to, or sensitised by, the violence inhering within the relationship.186 A history of physical violence or abuse is not of itself an excusatory factor for committing an act of violence; that is, it does not of itself give an aggrieved partner a licence to kill or wound in retaliation for past wrongs or expected abuse in the future. It does, however, provide some material to be considered on the question of whether the accused believed that what was done was necessary to achieve effective self-defence against an imminent threat. The response, when placed in context against the history of violence, may be seen to fall within a range of reasonable self-defence responses. Victorian legislation recognises the importance of evidence of domestic violence to the defence of self-defence. It provides that where self-defence is raised in the context of family [page 283]

violence,187 a person may believe that his or her conduct is necessary and the conduct may be a reasonable response in the circumstances as perceived by the person188 even if the threat is not immediate or the person responds with force that exceeds the force or harm that was threatened.189 10.41 In the Northern Territory Court of Criminal Appeal case of R v Secretary (1996) 86 A Crim R 119; 107 NTR 1, the accused shot her husband in his sleep. Before he went to sleep, he made threats to kill her when he awoke. There was cogent evidence of a long-standing history of violence and specific violent incidents leading up to the moment of death. Martin CJ held that self-defence was not available under s 28(f) of the Criminal Code (NT), on the basis that the assault ‘being’ defended against implied contemporaneity between the assault and the response, and this was reinforced by the need for there to have been in the deceased an apparent or actual ability to apply force at the time of the threat. The other members of the Court of Criminal Appeal disagreed. Angel J noted that there was a threat to apply force at a future stated time and that the threat was never withdrawn, and the deceased’s ability to carry out the threat continued. He said:190 Having regard to the nature of the threat and the relationship between the accused and the deceased, as recounted in the stated case, it was in my view open for the jury to find that an assault was on foot at the time of the shooting (when the deceased was asleep) and that the accused was acting in self-defence. In my view self-defence ought to have been left to the jury.

Justice Mildren referred to the decision of the Supreme Court of Canada in Lavallee v R (1990) 55 CCC (3d) 97; 4 WWR 1, and said:191 [T]here is no compelling reason why, in a case such as this, the ‘assault being defended’ for the purposes of s 28(f) of the Code, ought not to be characterised as a continuing assault constituted by the threatening words uttered by the deceased immediately before he fell asleep so that, in truth, it is that assault which is being defended, not a possible assault in the future which may or may not occur … As Wilson J points out in Lavallee, at p 31, this does not mean that a battered wife who kills her sleeping husband must inevitably be acquitted of murder. Battered wives may well kill their husbands otherwise than in self-defence, for example, out of revenge. The focus is not on the accused’s status as a battered wife; it is on the questions whether the force was not unnecessary force, and whether the threats which constituted the assault, having regard to the history of the relationship, were such as to cause the accused reasonable apprehension that death or

grievous harm will be caused to her in the future if she did not act in the way she did. Relevant to these considerations would be whether there were other lesser reasonable alternatives open, but I agree with the observations of Wilson J at pps 29–30 in Lavallee, that the law of self-defence does not require a person to retreat from his or her home instead of acting in self-defence:

[page 284] A man’s home may be his castle but it is also the woman’s home even if it seems more like a prison in the circumstances.

It was open for the jury to find that the words of the deceased uttered before he went to sleep constituted a continuing assault so that when the accused shot the deceased, even though he was then asleep, his words before sleeping constituted the assault ‘being’ defended. It was not necessary to find that his words amounted to a threat to commit a further assault upon her when he awoke. The case of Secretary shows that the fact that the victim was asleep at the time of the attack should not, as a matter of law, prevent an issue of self-defence from arising, provided a proper foundation for self-defence arises from the evidence.192 It will, however, be for the prosecution to exclude as a reasonable hypothesis the possibility that the accused believed on reasonable grounds that an attack was sufficiently imminent to warrant pre-emptive measures, given that the victim was asleep at the time of the killing.193 10.42 It is interesting to compare Secretary to the New South Wales case of R v PRFN [2000] NSWCCA 230. In that case, the trial judge refused to allow self-defence to be considered by the jury. The appellant was a 14-year-old boy at the time of the killing. There was evidence that the deceased had previously raped him. On the night in question, the appellant invited the deceased to his property and shot him. It was suggested that the trial judge erred by applying a threshold test: that before self-defence could be left to the jury, there needed to be objective evidence of a threat of immediate harm. The New South Wales Court of Criminal Appeal rejected this ground of appeal, finding that the trial judge had correctly considered whether there was evidence of an

imminent threat relevant to whether the appellant could have believed on reasonable grounds that it was necessary to do what he did in selfdefence. Counsel for the appellant contended that the history of the matter gave rise on the part of the appellant to a reasonable perception that there was a continuing threat of future harm. Giles J said:194 While the appellant may have been, in his own eyes, protecting himself and others from perceived future harm, I do not think the matters on which he relied in the appeal could have supported a reasonable belief that what he did was defending himself and others. The appellant was not being attacked or anything like it, and … the critical element of imminence of a threat was lacking.

10.43 In passing, it may be noted that it is not self-evident that the excessive self-defence doctrine (see 10.35–10.36) will benefit battered spouses who kill in response to the possibility of future harm. The existence of the manslaughter option may operate to the detriment of some accused who might have expected [page 285] to receive a complete acquittal. On the other hand, an unsympathetic jury denied the compromise verdict might convict for murder. The matter is best resolved according to the original justification of the recognition of excessive force manslaughter; namely, that there is a distinct moral difference between a person who kills in a premeditated way and one who kills in excessive self-defence. The abolition of the excessive force doctrine tends to blur this important distinction. 10.44 The pre-emption issue is not confined to the killing of an abusive partner in a domestic context.195 It may arise in any case where violence is imminent.196 One need not wait until the threat is immediate. In the New South Wales Court of Criminal Appeal case of R v Conlon (1993) 69 A Crim R 92, Hunt J presided as judge alone in a murder case where two intruders subjected the accused to an assault in his own home. He obtained a rifle and shot them as they retreated. His Honour said:197 [I]t is well established that a person defending himself from a threatened attack and who

has to react instantly to imminent danger cannot be expected to weigh precisely the exact measure of self-defensive action … The accused was not obliged to wait until the attack upon him was repeated. If he honestly believed that the attack would be repeated, he was entitled to take steps to forestall that threatened attack before it was begun … This was a situation in which a pre-emptive strike was justified.

10.45 Just as there is no rule requiring retreat by the accused, so there is no rule requiring advancement by the victim. Self-defence has been allowed in relation to aggressors who are moving away from the defender.198

Provoked assault 10.46 The common law has no special rule with respect to selfdefence against provoked assaults. Specifically, the fact that the accused was the original aggressor is not a bar to pleading self-defence in relation to any subsequent physical attack.199 The question is whether aggressive behaviour has transmuted to conduct which is genuinely defensive. However, the following passage from Zecevic suggests that the person who initiates hostilities may have difficulty pleading selfdefence:200 [W]here an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist — where, for example, he is engaged in criminal behaviour of a violent kind — then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design. A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack.

10.47 The model Code jurisdictions do not distinguish between selfdefence in relation to provoked or non-provoked assaults. The distinction is, however, made [page 286] under the Criminal Code (Qld), which includes a discrete defence for circumstances where an accused, without justification, assaulted another or provokes201 an assault from another.202 To justify the use of

force in such circumstances, the accused must have been under a reasonable apprehension of death or grievous bodily harm from the violence of the party first assaulted or provoked, the accused must have a belief on reasonable grounds that it is necessary to use force in selfdefence for his or her own preservation from death or grievous bodily harm, and the force used must be reasonably necessary for selfpreservation.203 However, the defence against a provoked assault is excluded if one of two circumstances is established. First, where the accused’s original assault was done with intent to cause death or grievous bodily harm; and, second, where the Crown proves that the accused endeavoured to cause death or grievous bodily harm before the necessity for self-preservation arises. However, in either of these two circumstances the defence will be available if the Crown is unable to prove that the accused, before the necessity to use force arose, failed to decline further conflict and retreat as far as practicable.204

Defence against lawful force 10.48 Under the model Code approach, self-defence is not available if the person is responding to lawful conduct that the person knows is lawful.205 Conduct is not regarded as lawful merely because the person carrying it out is not criminally responsible for it.206 Thus, it is lawful to defend against an attack by a person who is not criminally responsible by reason of mental illness. The equivalent provision in New South Wales refers to the lawfulness of the conduct without referring to the person’s belief about its legality.207 10.49 As to the common law, the High Court held in Zecevic that the lawfulness of the attack against which force is used was not a crucial element of [page 287] self-defence.208 A person may resist a lawful arrest that is reasonably thought to be unlawful.209 Brennan J, in dissent, expressed concern that

the elimination of the unlawfulness requirement would result in the broadening of self-defence to include inappropriate cases.210 In the South Australian case of R v Fry (1992) 58 SASR 424, the accused stabbed a police officer in the course of carrying out a lawful arrest. The court indicated that it would only be in exceptional circumstances that the use of force by way of self-defence would be permitted to repel the lawful application of force.211 10.50 The position under the Criminal Code (Qld) is less clear. The first and second limbs of s 271 only apply where a person is ‘unlawfully assaulted’ and has not provoked the assault.212 Assault is defined in s 245 of the Code to include an actual application of force and an attempted and threatened application of force by any ‘bodily act or gesture’. Therefore, self-defence can be based on a pre-emptive strike; however, it cannot be a response to words alone. The application of s 271 in circumstances where the attacker is insane or is not criminally responsible for some other reason, remains unclear. It is possible that the excuse of reasonable mistaken belief would apply even though, for example, it is unlikely that an accused would hold a belief that his attacker was not insane (see 2.31). In determining whether the person had provoked the assault, the meaning of ‘provoked’ is given by s 268, which provides that a lawful act is not provocation to any person for an assault, and the provision limits provocation to particular kinds of wrongful acts or insults (see 11.47).213 A person may act in a provocative manner; however, if his or her conduct fails to meet the s 268 definition, the person has not provoked an assault.

Onus and burden of proof 10.51 If the evidence discloses the possibility that the act was done in self- defence, the burden of disproving self-defence falls upon the prosecution.214 The ultimate burden of proof rests upon the prosecution; it does not rest upon the defence.215 Once the question of self-defence is put in issue, it becomes necessary

[page 288] for the prosecution to prove beyond a reasonable doubt that the conduct alleged was not done in the exercise of the right of selfdefence.216

Expert testimony 10.52 The scope for expert testimony is limited by the ultimate issue rule that expert testimony is generally not admissible on the ultimate issue such as the mental state of the accused.217 Expert testimony may be adduced to explain abnormal mental conditions existing beyond the common understanding of the ordinary citizen, and upon which the expert has special expertise.218 Expert evidence has been allowed as to the basis for a perception of danger and the need for response, especially in the context of domestic violence. The psychological theory of ‘battered woman syndrome’ purports to explain passive acceptance of violent behaviour in terms of the concept of ‘learned helplessness’ that is said to arise from ongoing and unpredictable violence.219 On the basis of this theory, expert testimony has been received in Australia,220 England,221 Canada222 and the United States.223

Withdrawing self-defence from the jury 10.53 Self-defence is pre-eminently a matter for the jury,224 requiring no set words or formula. The fact that self-defence is pre-eminently a jury issue suggests that a judge should be slow to withdraw self-defence from the jury.225 However, the question whether there is evidence of self-defence capable of raising a reasonable doubt is a question of law. There is no doubt as to the power of the trial judge to withdraw a defence if there is no evidence of self-defence. If there is no basis upon which a person might reasonably have considered that the application of force was necessary for self-defence, the issue should be withdrawn.226 When deciding whether to leave self-defence to the jury

the judge must determine whether the evidence, when viewed most favourably to the [page 289] accused, might fail to satisfy the jury beyond reasonable doubt that the accused did not act in self-defence.227 As with provocation, a direction must be given on self-defence if raised by the evidence, whether or not raised by the defence.228 This may be so even though the accused denies that he or she assaulted the alleged victim at all.229 Moreover, self-defence may be raised together with provocation, although the loss of control that lies at the heart of provocation may somewhat weaken the claim of rational behaviour by way of self-defence, giving rise to a natural reluctance to run both defences together.230 In Victoria, the decision to direct a jury on any defence is now regulated by statute. Defence counsel must seek a direction on any defence considered to be relevant: see 1.83.

Reforming the law 10.54 As noted at the outset, the law of self-defence is grounded firmly on the basic human instinct for self-preservation. Unfortunately, for such a basic area of human behaviour, the law, in some jurisdictions, is overly complicated. There can be no doubt that clarity and simplicity are attributes to be sought in any system of criminal jurisprudence. The High Court decision of Zecevic was intended to simplify the law of self-defence and did so in the basic reformulation of self-defence. It is regrettable that this progressive reform was tied up with the question of whether excessive force manslaughter should be abolished. The High Court abolished the doctrine only because it thought that the law was overly complicated. However, New South Wales and South Australia and subsequently re-introduced the doctrine by way of statutory provisions that appear to be operating well in

practice.231 The resurrection of excessive force manslaughter in these jurisdictions underlines the view that there is a significant moral divide between deliberate murder and killing in self-defence where excessive force is used: see 10.35–10.36. As the fate of Viro v R (1978) 141 CLR 88 amply demonstrates, it is not always easy to implement a sense of fairness. The Viro rules became practically unworkable due to their complexity. The general problem of over-complication is compounded when the specific rules governing self-defence vary horizontally between jurisdictions and, perhaps more worryingly, differ between State and Commonwealth jurisdictions. As noted throughout this book, this is an endemic problem for Australian criminal law. Although reforms have resulted in greater [page 290] consistency between the jurisdictions, there is still a need for further simplification, particularly in Queensland, Western Australia and, to a lesser extent, South Australia and Tasmania. The law on defensive force for the protection of property, for example, could be simplified in all of these jurisdictions. The Queensland self-defence laws are particularly complex and continue to draw comment from the judiciary that they are by ‘no means a model of clarity or simplicity’.232 The Western Australian 2008 reforms have brought together a number of defensive force excuses; however, the test of self-defence enacted is overly complex and inconsistent with the trend in other jurisdictions to the adoption of the model Code approach to self-defence.

1.

2. 3. 4. 5.

The question of whether for theoretical purposes self-defence should be analysed as a justification or an excuse is considered in S Yeo, Compulsion in the Criminal Law, The Law Book Co, North Ryde, NSW, 1990, p 106. R v Turner [1962] VR 30. King v R (1996) 88 A Crim R 150; R v McKay [1957] VR 560. Palmer v R [1971] AC 814 at 831. (1987) 162 CLR 645 at 675; 25 A Crim R 163 at 183–4.

6. 7. 8. 9.

10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28.

29.

30. 31. 32. 33. 34. 35. 36. 37. 38.

The history of self-defence prior to the 19th century may be found in D O’Connor and P Fairall, Criminal Defences, 3rd ed, Butterworths, Sydney, 1996, pp 175–7. See R v McKay [1957] VR 560 at 572–3. Criminal Code (Cth) s 10.4; Criminal Code 2002 (ACT) s 42; Crimes Act 1900 (NSW) s 418; Criminal Code (NT) ss 29, 438D. Crimes (Homicide) Act 2005 (Vic) s 6. The act also introduced the offence of defensive homicide, which gives effect to the defence of excessive self-defence. The offence has subsequently been abolished. See 10.36. Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) s 4. Criminal Law Consolidation Act 1935 (SA) ss 15–15C. See Criminal Law Consolidation Act 1935 (SA) s 15, which is qualified by ss 15B, 15C. See Criminal Law Consolidation Act 1935 (SA) s 15A, which is qualified by ss 15B, 15C. Criminal Code (Tas) s 46. Criminal Code (Tas) ss 40, 41, 42, 43, 44, 45. See 10.17. Criminal Code (Qld) ss 271, 272. Criminal Code (Qld) s 31(1)(c). Criminal Code (Qld) s 273. Criminal Code (Qld) s 266. Criminal Code (Qld) s 304B. Criminal Code (Qld) ss 267, 274, 275, 276, 277, 278, 279. See 10.17. Criminal Law Amendment Act 2008 (WA) s 8 repealed ss 248, 249 and 250 and replaced them with a single defence: see Criminal Code (WA) s 248. Criminal Law Amendment Act 2008 (WA) ss 6, 7. Criminal Code (WA) ss 243, 252, 253, 254, 255, 256. See 10.17. See R v Trevenna (2004) 149 A Crim R 505 at 515, where Santow JA describes the model Code form of the defence as a refinement and elaboration of the common law. [2004] VSCA 84 at [40]. Zecevic v DPP (Vic) (1987) 162 CLR 645; 25 A Crim R 163. Criminal Code (Cth) s 10.4; Criminal Code (ACT) s 42; Crimes Act 1900 (NSW) s 418; Criminal Code (NT) ss 29, 438D; Crimes Act 1958 (Vic) s 322K. Unlike the other jurisdictions, the Victorian provision does not include an exhaustive list of defensive purposes: see below n 51. R v Katarzynski [2002] NSWSC 613 at [20]; R v Burgess (2005) 152 A Crim R 100 at 105. The English defence is similar: see Collins v The Secretary of State for Justice [2016] EWHC 33 at [13]. Criminal Law Consolidation Act 1935 (SA) s 15(1). Criminal Law Consolidation Act 1935 (SA) s 15(3). Criminal Code (Tas) s 46 (as amended); see R v Walsh (1991) 60 A Crim R 419; McCullough v R [1982] Tas R 43; 6 A Crim R 274. See, for example, R v Graham [2016] HCA 27; R v Pickering [2016] QCA 124; R v Cuskelly [2009] QCA 375; Tomarchio v Pocock [2002] WASC 156. (1987) 162 CLR 645 at 661; 25 A Crim R 163 at 174 per Wilson, Dawson and Toohey JJ. Criminal Code (Qld) ss 271, 272, 31(1)(c), 304B. Criminal Code (Qld) s 271(1). It does not apply to intentionally causing grievous bodily harm, murder or attempted murder: Criminal Code (Qld) ss 302, 306, 317. Criminal Code (Qld) s 271(2).

39. Minniti v R (2001) 120 A Crim R 531; R v Pangilinan [2001] 1 Qd R 56; R v Bojovic [2000] 2 Qd R 183; R v Gray (1998) 98 A Crim R 589; R v Julian (1998) 100 A Crim R 430; R v Ellem (No 2) [1995] 2 Qd R 549; R v Prow [1990] 1 Qd R 64; (1989) 42 A Crim R 343. 40. Section 268 provides the definition of the term provoked for the purposes of ss 271 and 272 of the Criminal Code (Qld). See R v Muratovic [1967] Qd R 15 at 27; R v Prow [1990] 1 Qd R 64 at 68, 88; Gray v Smith [1979] 1 Qd R 485 at 489; Graham v R [2016] HCA 27 at [12]. 41. R v Bojovic [2000] 2 Qd R 183 at 186. 42. R v Sleep [1966] Qd R 47; R v Pickett [1972] Qd R 425; R v Prow [1990] 1 Qd R 64; R v Bojovic [2000] 2 Qd R 183. 43. Criminal Code (Qld) s 31(1)(c). 44. R v Pickering [2016] QCA 124 at [16]. The excuse of resisting unlawful violence applies to offences against any Queensland statute whereas it has been suggested that self-defence only applies to Code offences (see Pickering at [19], fn 6). However, in Tomarchio v Pocock [2002] WASC 156 at [20]–[24], Pullin J held that self-defence also applies to noncode offences, including those prescribed by the Firearms Act 1973 (WA). 45. R v Pickering [2016] QCA 124 at [36], [47], where Fraser JA, with whom the other members of the court agreed, held that the exclusion clause in s 31(2) applies to the s 31(1) (c) defence. Manslaughter is not listed as an excluded offence; however, the defence is excluded where the accused’s acts ‘would constitute the crime of murder or an offence of which grievous bodily harm to the person of another … is an element’. His Honour therefore held that manslaughter is excluded where death is caused by the infliction of an injury that comes within the definition of grievous bodily harm. 46. A harmful act is defined as ‘an act that is an element of an offence under this Part other than Chapter XXXV’. A harmful act therefore includes a wide range of offences against the person, including sexual offences and offences against liberty, but does not include criminal defamation: see Criminal Code (WA) s 248(1). 47. Criminal Code (WA) s 248(4). See Goodwyn v Western Australia (2013) 45 WAR 328 at 341–2. 48. Criminal Code (Tas) s 46 (as amended); R v Walsh (1991) 60 A Crim R 419; McCullough v R [1982] Tas R 43; 6 A Crim R 274. See also Criminal Code (Tas) s 39 which states it is lawful to use force which the accused believed on reasonable grounds to be necessary to prevent a crime the commission of which would be likely to cause imminent and serious injury to any person or property. 49. Criminal Law Consolidation Act 1935 (SA) s 15(1), (3). 50. Criminal Code (Cth) s 10.4(2). 51. This formula is also used in New South Wales: see Crimes Act 1900 (NSW) s 418(2). The Territory Codes, however, state ‘only if’: see Criminal Code (ACT) s 42(2); Criminal Code (NT) ss 29(2), 43BD(2). The Victorian provision adopts less specific terminology in identifying the purposes for which defensive force can be used. The specified purposes are included in notes to the section and, unlike the other jurisdictions, the specified purposes identified do not comprise an exhaustive list: Crimes Act 1958 (Vic) s 322K. 52. Criminal Code (Cth) s 10.4(3). The Territory Codes exclude the defence for the same purposes if the accused intended to cause ‘death or serious harm’: Criminal Code (ACT) s 42(3); Criminal Code (NT) ss 29(3), 43BD(3). New South Wales also excludes the defence for the same purposes where the accused used force with the intention or being reckless as to the infliction of death: Crimes Act 1900 (NSW) s 420. In Victoria, the accused must

53.

54.

55. 56. 57.

58. 59.

60. 61.

62. 63. 64. 65.

66.

67. 68. 69.

have believed that it was necessary to defend against the infliction of death or really serious injury for self-defence to be successfully raised on a charge of murder: Crimes Act 1958 (Vic) s 322K(3). Criminal Code (ACT) s 42(2); Crimes Act 1900 (NSW) s 418(2); Criminal Code (NT) s 29(2); Crimes Act 1958 (Vic) s 322K. For transitional provisions, see Crimes Act 1958 (Vic) s 623; see also Judicial Commission of Victoria, Victorian Criminal Charge Book, 8.9.3.1. See I Leader-Elliott, The Commonwealth Criminal Code: A Guide for Practitioners, Commonwealth Attorney-General’s Department, Canberra, 2002, p 229. This adopts the English common law position under Beckford v R [1988] AC 130 (see 10.27). See Criminal Justice and Immigration Act 2008 (UK) s 76(10)(b); and Collins v The Secretary of State for Justice [2016] EWHC 33. [1967] 1 QB 63 at 67. [1967] 1 QB 63 at 67–8. In R v Chisam (1963) 47 Cr App R 130, the accused was charged with killing an intruder who gained entry to a house occupied by his wife and daughter. The court said, quoting from Halsbury’s Laws of England, vol 10, 3rd ed, p 721, para 1382: ‘Where a forcible and violent felony is attempted upon the person of another, the party assaulted, or his servant, or any other person present, is entitled to repel force by force, and, if necessary, to kill the aggressor. There must be a reasonable necessity for the killing, or at least an honest belief based upon reasonable grounds, that there is such a necessity’. See also R v Lane [1983] VR 449; R v Rose (1884) 5 Cox CC 540. R v Williams was approved by the Privy Council in Beckford v R [1988] 1 AC 130; [1987] 3 All ER 425 and by the House of Lords in B v DPP [2001] 1 All ER 833 at 838. Downs v R (1985) 18 A Crim R 75 at 89 per Lee J; R v Redman [1978] VR 178 (where self-defence was allowed when the accused feared that the deceased would kick his sister to death); Pearce v Hallett [1969] SASR 423; R v Spartels [1953] VLR 194. (2004) 148 A Crim R 282 at 292. Criminal Code (Cth) s 10.4(2)(a); Criminal Code (ACT) s 42(2)(a)(i); Crimes Act 1900 (NSW) s 418(2)(a); Criminal Code (NT) ss 29(2)(a)(i), 42(2)(a)(i); Criminal Code (WA) s 248(4)(a). The Western Australian defence of preventing violence by a mentally impaired person also extends to conduct directed at rescuing another: see Criminal Code (WA) s 243. Criminal Law Consolidation Act 1935 (SA) s 15(3). Criminal Code (Qld) s 273. R v Hoet [2016] QCA 230 at [35]. See Tomarchio v Pocock [2002] WASC 156 at [30]–[31], where Pullin J held that defence should have been considered by the magistrates in circumstances where the appellant did not resort to lethal force and it was not argued that lethal force was necessary. The pre2008 sections were, with the exception of the non-gender specific terminology, the same as the Queensland provision. Tomarchio v Pocock [2002] WASC 156 at [33]. It would also be the case that a person who used force to assert his or her authority would not be acting for the purpose of defending another. White v Conway (CCA(Qld), CA N0 37 of 1991, unreported). Criminal Code (Qld) ss 31(1)(c), 266. In R v Harb and Rogers [1999] VSCA 178, the trial judge doubted whether there was a doctrine of defence of property as such: see [61]. The Victorian Court of Appeal did not

70. 71.

72. 73. 74. 75. 76. 77. 78. 79. 80.

81. 82. 83. 84. 85.

86.

87. 88. 89. 90. 91. 92. 93. 94.

find it necessary to resolve the matter: see [84]. R v McKay [1957] VR 560 at 562 per Lowe J (Dean J concurring) (see 10.21). Criminal Code (Qld) s 274; Criminal Code (Tas) s 43; Criminal Code (WA) s 251. In R v Van Bao Nguyen (2002) 139 NTR 15, an intoxicated driver was held not to be in peaceable possession of ignition keys or vehicle so as to justify defence against a person attempting to remove the keys. Criminal Code (Qld) s 275; Criminal Code (Tas) s 44; Criminal Code (WA) s 252. Criminal Code (Qld) s 276; Criminal Code (Tas) s 45; Criminal Code (WA) s 253. Criminal Code (Qld) s 277; Criminal Code (Tas) s 41; Criminal Code (WA) s 254. Criminal Code (Qld) s 278; Criminal Code (Tas) s 42; Criminal Code (WA) s 255. Criminal Code (Qld) s 267; Criminal Code (Tas) s 40; Criminal Code (WA) s 244. Criminal Code (Qld) s 279; Criminal Code (WA) s 256. Criminal Code (Qld) s 267. See R v McMartin [2013] QCA 339. The Western Australian defences only apply to someone who acts by the authority of the person whose property or property rights are being protected and do not extend to someone lawfully assisting. For the defence of a dwelling, however, the Western Australian provisions apply to anyone who acts in good faith in aid of the occupier: Criminal Code (WA) s 244(4). For the defences that do not apply to people providing assistance, see Criminal Code (Qld) s 276; Criminal Code (Tas) s 45; Criminal Code (WA) s 253. Two defences prescribe that the force must have been necessary: see Criminal Code (Tas) ss 44, 45. Criminal Code (WA) ss 251, 253, 254. Criminal Code (WA) ss 252, 255, 256. Criminal Code (Cth) s 10.4(2); Criminal Code (ACT) s 42(2); Crimes Act 1900 (NSW) s 418(2); Criminal Code (NT) ss 29(2), 43BD(2). In the Criminal Code (Cth) s 10.4(3), the term ‘serious injury’ is not defined. The mainland Territory Codes exclude force intended to cause death or serious harm: Criminal Code (ACT) s 42(3); Criminal Code (NT) ss 29(3), 43BD(3). In New South Wales, force that is intended or reckless as to the infliction of death is excluded: Crimes Act 1900 (NSW) s 420. In Victoria, an accused cannot rely on the defence of property where the charge is one of murder: Crimes Act 1958 (Vic) s 322K(3). Criminal Code (Cth) s 10.4(4); Criminal Code (ACT) s 42(3)(b), (4); Crimes Act 1900 (NSW) s 422; Criminal Code (NT) ss 29(5)–(6), 43BD(3)(b)–(4); Crimes Act 1958 (Vic) s 322I. In each of the jurisdictions except for Victoria, the legislation provides that conduct is not lawful for this purpose merely because the person carrying it out was not criminally responsible for it. Crimes Act 1958 (Vic) s 322K. Criminal Law Consolidation Act 1935 (SA) s 15A; see R v Clothier [2002] SASC 9. Criminal Law Consolidation Act 1935 (SA) s 15C. The relevance of the human right obligation to protect life to self-defence is discussed in Collins v The Secretary of State for Justice [2016] EWHC 33 at 36–64. Criminal Code (Qld) s 267; Criminal Code (Tas) s 40. See Penn v R (1989) 44 A Crim R 131. Criminal Code (Qld) s 267; Criminal Code (Tas) s 40; see R v Cuskelly [2009] QCA 375 at [27]. Criminal Code (WA) s 244(1A).

95. Criminal Code (Cth) s 10.4(3); Criminal Code (ACT) s 42(3); Criminal Code (NT) ss 29(3), 43BD(3). 96. Crimes Act 1900 (NSW) s 420. 97. Crimes Act 1958 (Vic) s 322K(3). 98. Criminal Law Consolidation Act 1935 (SA) s 15A. 99. [1957] VR 560 at 562. His Honour took this proposition from R Cross and P Jones, An Introduction to Criminal Law, 3rd ed, Butterworths, London, 1953, p 245ff. 100. [1957] VR 560 at 571. 101. [1957] VR 560 at 573. 102. Crimes Act 1958 (Vic) s 459. 103. See Crimes Act 1958 (Vic) s 458 as amended. 104. See D Lanham, ‘Killing the Fleeing Offender’ (1977) 1 Criminal Law Journal 16 at 24. 105. Criminal Code (Tas) s 30; Criminal Code (WA) s 233. See also Criminal Code (Qld) s 258, which provides for lethal force to prevent the escape or rescue of a person arrested for an offence for which a warrant is not required. 106. Criminal Code (NT) s 27(b); Criminal Code (Qld) s 257; Criminal Code (Tas) s 31; Criminal Code (WA) s 235. 107. Criminal Code (NT) s 27(b); Criminal Code (Tas) s 32. 108. Criminal Code (Qld) s 258; Criminal Code (WA) s 235(2). 109. Execution of process: Criminal Code (NT) s 27(a); Criminal Code (Qld) s 248; Criminal Code (Tas) s 26; Criminal Code (WA) s 225. Execution of warrants: Criminal Code (NT) s 27(a); Criminal Code (Qld) s 249; Criminal Code (Tas) s 26; Criminal Code (WA) s 226. Arrest and assisting in arrest: Criminal Code (Qld) s 254; Criminal Code (Tas) s 26; Criminal Code (WA) s 231. Preventing escape from arrest: Criminal Code (Qld) ss 257, 258; Criminal Code (Tas) s 31; Criminal Code (WA) s 233. 110. Criminal Code (NT) s 27(c); Criminal Code (Qld) s 260; Criminal Investigation Act 2006 (WA) s 24(1)(c). 111. Criminal Code (NT) s 27(d); Criminal Code (Qld) s 261; Criminal Code (Tas) s 34; Criminal Code (WA) s 238. 112. Criminal Code (NT) s 27(e); Criminal Code (Qld) s 266; Criminal Code (Tas) s 39; Criminal Investigation Act 2006 (WA) s 24(1)(d). 113. Thus a person who used force to apprehend a person fleeing from arrest at Brisbane airport for importation of a prohibited substance could rely upon the provisions of the Queensland Criminal Code. 114. R v Kurtic (1996) 85 A Crim R 57; R v Falla [1964] VR 78 at 81; R v Yugovic [1971] VR 816; R v Train (1985) 18 A Crim R 353. 115. Zecevic v DPP (Vic) (1987) 162 CLR 645 at 661; 25 A Crim R 163; R v Portelli (2004) 148 A Crim R 282 at 294. 116. The court rejected an argument that a requirement of reasonable grounds for belief was inconsistent with the mens rea of homicide. The court examined the history of homicide in coming to this conclusion: see Sir Owen Dixon, ‘The Development of the Law of Homicide’ (1935) 9 Australian Law Journal (Supp) 64. 117. R v Dziduch (1990) 47 A Crim R 378 at 382–3; R v Conlon (1993) 69 A Crim R 92 at 98. 118. See R v Kurtic (1996) 85 A Crim R 57; R v Hendy [2008] VSC 231. 119. In Zecevic v DPP (Vic) (1987) 162 CLR 645; 25 A Crim R 163, Deane J was careful to distinguish between them: see at 673. 120. R v Dziduch (1990) 47 A Crim R 378 at 383. 121. See R v Slater (1987) 44 SASR 136; 31 A Crim R 155 at 165; R v Kincaid (1983) 33 SASR

122. 123.

124. 125. 126.

127. 128.

129. 130.

131. 132. 133. 134.

135. 136. 137. 138.

139.

552; Morgan v Coleman (1981) 27 SASR 334; 4 A Crim R 324. See also Viro v R (1978) 141 CLR 88 at 146; R v Dziduch (1990) 47 A Crim R 378 at 383. R v Wills [1983] 2 VR 201; R v Besim (2004) 148 A Crim R 28. Dal Cortivo v R (2010) 204 A Crim R 55 at 61–2; R v Katarzynski [2002] NSWSC 613; Ninness v Walker (1998) 143 FLR 239; R v Conlon (1993) 69 A Crim R 92 at 99, applying R v O’Connor (1980) 146 CLR 64; not following McCullough v R [1982] Tas R 43; (1982) 6 A Crim R 274. R v Grosser (1999) 73 SASR 584; 106 A Crim R 125; R v Walsh (1991) 60 A Crim R 419. R v Hawes (1994) 35 NSWLR 294 at 305; R v Portelli (2004) 148 A Crim R 282 at 297. Criminal Code (Cth) s 10.4(2); Criminal Code (ACT) s 42(2)(b); Crimes Act 1900 (NSW) s 418(2); Criminal Code (NT) ss 29(2)(b), 43BD(2)(b); Crimes Act 1958 (Vic) s 322K(2)(b). See also Criminal Law Consolidation Act 1935 (SA) s 15(1); Criminal Code (Tas) s 46; Criminal Code (WA) s 248(3)(b). R v Katarzynski [2002] NSWSC 613 at [22]–[23]; R v Oblach [2005] 65 NSWLR 75 at [50]–[54]; Abdallah v R [2016] NSWCCA 34 at [60]–[61]. However, the Criminal Code (Cth) s 7.3(7) and the Criminal Code (ACT) s 29(2) provide that evidence of delusions caused by mental impairment is only relevant as to the defence of mental impairment (disease of the mind). In Walsh v R [1993] TASSC 91 at [22], the Tasmanian Court of Criminal Appeal held that evidence of insane delusions was only relevant to the defence of insanity. However, see Tasmanian Law Reform Institute, Review of the Law Relating to Self-defence: Final Report No 20, 2015, pp 13–15. R v Katarzynski [2002] NSWSC 613 at [25]; R v Forbes [2005] NSWCCA 377 at [86]– [88]. R v Katarzynski [2002] NSWSC 613 at [26]–[27]. See Collins v The Secretary of State for Justice [2016] EWHC 33 at 30 where the High Court of Justice questioned, in the context of self-defence against a home invader, why self-induced intoxication is not relevant to an accused’s mistaken belief; and Tasmanian Law Reform Institute, above n 128, pp 16–18. Criminal Code (Qld) ss 31(1)(c), 266, 271(1), 274–279; Criminal Code (Tas) ss 44, 45 (the sections simply refer to conduct that is necessary); Criminal Code (WA) ss 251–256. Criminal Code (Qld) ss 266, 267, 271(2); Criminal Code (Tas) ss 39–43; Criminal Code (WA) s 244. Marwey v R (1977) 138 CLR 630 at 638; R v Gray (1998) 98 A Crim R 589 at 593; R v Dean [2009] QCA 309 at [33]. R v Julian (1998) 100 A Crim R 430 at 433–4, 438–9, 448; R v Gray (1998) 98 A Crim R 589 at 593; R v Greenwood [2002] QCA 360 at [20]–[21]. Consistently with the excuse of mistake of fact, evidence of intoxication is likely to be irrelevant to the assessment of the reasonableness of the accused belief: see R v Mrzljak [2005] 1 Qd R 308 at 310, 315, 321. Criminal Code (Qld) s 272(1); Criminal Code (WA) ss 243. (2013) 45 WAR 328 at 341–2. Zecevic v DPP (Vic) (1987) 162 CLR 645 at 662; 25 A Crim R 163; R v Portelli (2004) 148 A Crim R 282 at 297. This is also the position under the state codes. Proportionality is not a separate element; however, the Crown may rely on evidence that the response was disproportionate in order to prove that the accused did not believe that his or her response was necessary or that the response was not reasonably necessary or that the accused did not believe on reasonable grounds that it was necessary to act in self-defence. R v Lean and Aland (1993) 66 A Crim R 296 at 298.

140. (1986) 19 A Crim R 444 at 446. 141. Criminal Code (Cth) s 10.4(2)(e); Criminal Code (ACT) s 42(2)(b); Crimes Act 1900 (NSW) s 418(2); Criminal Code (NT) ss 29(2)(b), 43BD(2)(b); Criminal Law Consolidation Act 1935 (SA) s 15; Criminal Code (Tas) s 46. 142. R v Katarzynski [2002] NSWSC 613 at [22]–[23]; R v Oblach [2005] 65 NSWLR 75 at [50]–[54]; Abdallah v R [2016] NSWCCA 34 at [60]–[61]; Police v Lloyd (1998) SASR 271 at 277. 143. Given statutory expression in Criminal Law Consolidation Act 1935 (SA) s 15B. 144. Criminal Law Consolidation Act 1935 (SA) s 15C. 145. R v McKay [1957] VR 560 at 562–3. 146. See also R v Walsh (1991) 60 A Crim R 419. 147. Criminal Code (Qld) s 271(1). 148. Criminal Code (Qld) ss 271(2), 272(2). 149. R v Gray (1998) 98 A Crim R 589 at 593; R v Greenwood [2002] QCA 360 at [20]–[21]; R v Wilmot (2006) 165 A Crim R 14 at 16–17, 26; R v Graham [2015] QCA 137 at [30]. 150. See Criminal Code (Qld) ss 31(1)(c), 271(1), (2), 272(1). See also Criminal Code (Tas) s 46, which requires a belief in the necessity to use force given the circumstances that the accused believed to exist; and it must have been reasonable to use force. 151. Criminal Code (Qld) s 24; there is uncertainty as to the extent to which s 24 applies to the elements of the self-defence provisions. See Marwey v R (1977) 138 CLR 630 at 637; R v Allwood [1997] QCA 257 per McPherson JA and Williams J; Graham v R [2016] HCA 27 at [35]. 152. Criminal Code (WA) s 248(4)(a), (c); Goodwyn v Western Australia (2013) 45 WAR 328 at 341–2. 153. Criminal Code (Cth) s 10.4(2); Criminal Code (ACT) s 42(2); Crimes Act 1900 (NSW) s 418(2); Criminal Code (NT) ss 29(2), 43BD(2); Crimes Act 1958 (Vic) s 322K(2). The Criminal Law Consolidation Act 1935 (SA) s 15(1)(a) also includes a subjective requirement that the accused believed his or her conduct was necessary and reasonable for a defensive purpose (see 10.27 for the objective element). 154. R v Katarzynski [2002] NSWSC 613 at [28]; R v Oblach [2005] 65 NSWLR 75 at [50]– [54]; Abdallah v R [2016] NSWCCA 34 at [61]; R v Grosser (1999) 73 SASR 584 at 592– 2; R v Clothier [2002] SASC 9 at [96]. 155. (1987) 162 CLR 645 at 661; 25 A Crim R 163 at 174 per Wilson, Dawson and Toohey JJ. 156. Criminal Code (Qld) ss 271, 272. The excuse of resisting actual unlawful violence is limited in its application: see Criminal Code (Qld) s 31(2); R v Pickering [2016] QCA 124; see above n 45. 157. Criminal Code (Qld) s 267; Criminal Code (Tas) s 40. Other provisions that excuse defensive force in the protection of property limit the excusable force to that which does not cause grievous bodily harm; see Criminal Code (Qld) ss 274–279; Criminal Code (WA) s 252, 255, 256. 158. Criminal Code (Qld) s 271(1). 159. R v Prow [1990] 1 Qd R 64. See also R v Dean [2009] QCA 309 at [21], where Fraser JA commented that although public campaigns have increased awareness that one punch can kill, it does not mean that where death results from a punch that the force used was necessarily likely to cause death, therefore excluding s 271(1). Other than defensive force in protection of a dwelling, the same limitation applies to the Tasmanian provision on defensive force in the protection of property: Criminal Code (Tas) ss 41–45; Criminal Code

160. 161. 162. 163.

164.

165.

166. 167.

168. 169. 170.

171. 172.

173. 174.

(WA) ss 251, 253, 254. Criminal Code (Cth) s 10.4(3); Criminal Code (ACT) s 42(3); Crimes Act 1900 (NSW) s 420; Criminal Code (NT) ss 29(3), 43BD(3). Crimes Act 1958 (Vic) s 322K(3). Crimes Act 1958 (Vic) s 322H. The Criminal Law Consolidation Act 1935 (SA) self-defence provisions have been amended three times: in 1991, 1997 and most recently in 2003. See Criminal Law Consolidation (Self-Defence) Amendment Act 2003 (SA), which inserted a new s 15 into the principal Act. Criminal Law Consolidation Act 1935 (SA) s 15A(1). But see the partial defence that reduces murder to manslaughter in circumstances where the accused acted recklessly realising his or her conduct could result in death: s 15A(2). The doctrine of excessive force manslaughter was developed by the High Court in R v Howe (1958) 100 CLR 448 and refined by Mason J (as he then was) in Viro v R (1978) 141 CLR 88. For a more detailed treatment, see S Yeo, ‘The Demise of Excessive SelfDefence in Australia’ (1988) 37 International and Comparative Law Quarterly 348; P Fairall, ‘The Demise of Excessive Self-Defence Manslaughter in Australia: A Final Obituary?’ (1988) 12 Criminal Law Journal 24. (1987) 162 CLR 645; 25 A Crim R 163 at 175. Criminal Code (Qld) s 283. See R v Alekovski [1979] WAR 1; R v Johnson [1964] Qd R 1. The rule as to the unlawfulness of excessive force also applies in Western Australia, subject to the application of the partial defence: Criminal Code (WA) s 260. Criminal Code (Tas) s 52. See R v Masnec [1962] Tas SR 254; affirmed in McCullough v R [1982] Tas R 43; (1982) 6 A Crim R 274. See Criminal Code (NT) ss 27, 28. Criminal Law Consolidation (Self-Defence) Amendment Act 2003 (SA), which inserted a new s 15 into the principal Act: see s 15(2); Crimes Act 1900 (NSW) s 421, as amended by Crimes Amendment (Self-Defence) Act 2001 (NSW). See S Yeo, ‘Revisiting Excessive SelfDefence’ (2000) 12 Current Issues in Criminal Justice 39. As to sentencing under s 421, see R v Trevenna (2004) 149 A Crim R 505; R v Boyd [2004] NSWSC 263; R v Good [2010] NSWSC 402. Criminal Code (WA) s 248(3). However, see Tasmanian Law Reform Institute, above n 128, pp 50–1, which recommended against the introduction of a partial defence of excessive self-defence in Tasmania. For a New Zealand perspective, see the New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered Defendants, Report No 73, 2001. Crimes (Homicide) Act 2005 (Vic) s 6 inserted subdiv 1AA of Div 1 of Pt 1 into the Crimes Act 1958 (Vic), which included s 9AD (Defensive Homicide). Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) s 3; Department of Justice (Victoria), Defensive Homicide Proposals for Legislative Reform, Consultation Paper, 2013, Ch 2. See Department of Justice (Victoria), Review of the Offence of Defensive Homicide, Discussion Paper, Criminal Law — Justice Statement 2010. For criticism of the offence of defensive homicide, see K Toole, ‘Self-Defence and the Reasonable Woman: Equality Before the New Victorian Law’ (2012) 36(1) Melbourne University Law Review 250; K Toole, ‘Defensive Homicide on Trial in Victoria’ (2013) 39(2) Monash University Law Review 473; K Fitz-Gibbon and S Pickering, ‘Homicide Law Reform in Victoria Australia: From Provocation to Defensive Homicide and Beyond’ (2012) 52 British Journal of Criminology 159. See also M Ulbrich, A Flynn and D Tyson,

175. 176.

177.

178. 179.

180. 181. 182. 183. 184. 185.

186. 187. 188.

189. 190. 191. 192. 193.

‘The Abolition of Defensive Homicide: A Step towards Populist Positivism at the Expense of Mentally Impaired Offenders’ (2016) 40(1) Melbourne University Law Review 1, where the authors criticise the decision to abolish the offence, as it served a useful way of addressing the criminal responsibility of offenders whose mental malfunctioning does not come within the definition of a mental impairment (insanity). Department of Justice (Victoria), Defensive Homicide Proposals for Legislative Reform, Consultation Paper, 2013, Ch 2. Zecevic v DPP (Vic) (1987) 162 CLR 645 at 663; 25 A Crim R 163 at 175 per Wilson J, Dawson and Toohey JJ. See also R v Howe (1958) 100 CLR 448 at 462–4; [1958] HCA 38; Viro v R (1978) 141 CLR 88 at 115–16 per Gibbs J. See also R v CMM (2002) 81 SASR 300; [2002] SASC 21; R v Munro (2001) 51 NSWLR 540. The force is permissible to defend the dwelling and retreating would not achieve the objective. See R v Hussey (1924) 19 Cr App Rep 160 at 161; R v Cuskelly [2009] QCA 375 at [29]; Collins v The Secretary of State for Justice [2016] EWHC 33 at [30]. See R v Johnson [1964] Qd R 1. See also Randle v R (1995) 15 WAR 26; 81 A Crim R 113. Criminal Code (Qld) s 272. The section does not impose an obligation to retreat except where the circumstances specified in s 272(2) exist: see R v Muratovic [1967] Qd R 15 at 28; R v Wilmont [2006] QCA 91 at [49]. See R v PRFN [2002] NSWCCA 230, discussed at 10.42. Fagan v Metropolitan Police Commissioner [1969] 1 QB 439. See Criminal Code (WA) s 248(4)(a), which states that the threat of a harmful act need not be imminent. See R v Lane [1983] 2 VR 449 at 456; 8 A Crim R 182 at 189. See R v Collingburn (1985) 18 A Crim R 294 (defence of provocation succeeding; selfdefence rejected). See R v Secretary (1996) 86 A Crim R 119; 107 NTR 1; Hickey as noted in S Yeo, ‘Case and Comment’ (1992) 16 Criminal Law Journal 271; R v Whallen (CA(NSW), April 1991, unreported); R v Runjanjic and Kontinnen (1991) 56 SASR 114; 53 A Crim R 362. Lavallee v R (1990) 55 CCC (3d) 97; 4 WWR 1. Crimes Act 1958 (Vic) s 322J(2) defines family violence. Crimes Act 1958 (Vic) ss 322J and 322M(2) identify the type of evidence that may be relevant in cases involving allegations of family violence. The Jury Directions Act 2015 (Vic) Pt 6 sets out preliminary directions on family violence that the defence can request and which must be given unless there are good reasons not to so direct. Crimes Act 1958 (Vic) s 322M(1), which replicates the now repealed s 9AH(1) of the Crimes (Homicide) Act 2005 (Vic). (1996) 86 A Crim R 119 at 122; 107 NTR 1. (1996) 86 A Crim R 119 at 130; 107 NTR 1. R v Runjanjic and Kontinnen (1991) 56 SASR 114; 53 A Crim R 362; R v Wang [1990] 2 NZLR 529 where self-defence failed; R v R (1981) 20 SASR 321; 4 A Crim R 127 at 131. See Toole, 2012, above n 174, for the common law case of Claire MacDonald (unreported), who was acquitted of murder on the basis of self-defence in circumstances where she set a trap for her abusive husband, waiting in a tree for 90 minutes before killing him by firing six shots from a rifle. See also the Queensland case of Susan Falls (unreported), who was acquitted of murder on the basis of self-defence in circumstances where she placed sedatives in her abusive husband’s evening meal and then shot him while

194. 195.

196. 197. 198. 199. 200. 201.

202.

203. 204.

205.

206. 207. 208. 209. 210. 211. 212. 213.

he slept in a chair: H Douglas, ‘A Consideration of the Merits of Specialised Homicide Offences and Defences for Battered Women’ (2012) 45 Australian & New Zealand Journal of Criminology 367. [2000] NSWCCA 230 at [42]. R v Conlon (1993) 69 A Crim R 92 at 98 per Hunt J. For a case where the prosecution contended that D killed V in his sleep, and provocation under s 23 of the Crimes Act 1900 (NSW) was considered, see R v Chhay (1994) 72 A Crim R 1. Attorney-General for Northern Ireland’s Reference (No 1 of 1975) [1977] AC 105. R v Conlon (1993) 69 A Crim R 92 at 98; but see R v Munro (2001) 51 NSWLR 540; R v CMM (2002) 81 SASR 300. Lavallee v R (1990) 55 CCC (3d) 97; 4 WWR 1. R v Roba and Novosel [2002] VSCA 74 at [44]; R v Lyon [2002] VSCA 231; R v Kear [1997] 2 VR 555. Zecevic v DPP (Vic) (1987) 162 CLR 645; 25 A Crim R 163 at 175. See Criminal Code (Qld) s 268 for the meaning of provocation. See also R v Prow [1990] 1 Qd R 64; (1989) 42 A Crim R 343; R v Johnson [1964] Qd R 1; R v Kaporonovski [1972] Qd R 465 at 470; R v Muratovic [1967] Qd R 15 at 27. But see Gray v Smith [1997] 1 Qd R 485; 87 A Crim R 454. See also 11.47. The position was the same under the Tasmanian and Western Australian Codes. However, the distinction between self-defence in response to an unprovoked assault and self-defence in response to a provoked assault has been statutorily abolished: Criminal Code Amendment (Self Defence) Act 1987 (Tas), repealing ss 46–49 and inserting a new s 46; Criminal Law Amendment (Homicide) Act 2008 (WA), repealing ss 248–250 and inserting a new s 248. Criminal Code (Qld) s 272(1); R v Muratovic [1967] Qd R 15; Lean v R (1989) 42 A Crim R 149 at 152–3; R v Wilmot (2006) 165 A Crim R 14 at 19, 28. There has been some uncertainty as to whether the obligation to decline further conflict and retreat is a general obligation that applies to the defence or whether it only applies to the two circumstances where the defence would otherwise be excluded. It now seems to be settled that the latter interpretation applies: see R v Muratovic [1967] Qd R 15 at 28; R v Wilmot (2006) 165 A Crim R 14 at 28–9. For the contrary position, see R v Johnson [1964] QD R 1 at 14. Criminal Code (Cth) s 10.4(4); Criminal Code (ACT) s 42(3)(b); Criminal Code (NT) ss 29(5), 43BD(3)(b); Crimes Act 1958 (Vic) s 322I. See also Criminal Code (WA) s 248 (5)– (6). The qualification is not part of the Crimes Act 1958 (Vic). Crimes Act 1900 (NSW) s 422. (1987) 162 CLR 645 at 663; 25 A Crim R 163. This is consistent with allowing a mistaken belief as a basis for pleading self-defence: see Koerner v Bretherton (1995) 128 FLR 291; Viro v R (1978) 141 CLR 88 at 146. See R v Thomas (1993) 65 A Crim R 269. As to whether a mistake of law as to the lawfulness of the conduct may constitute a claim of right, see 3.19. See also R v Fennell [1971] 1 QB 428; R v Williams [1987] 3 All ER 411. See R v Gray (1998) 98 A Crim R 589 at 593; R v Wilmot (2006) 165 A Crim R 14; R v Messent [2011] QCA 125 at [31]. In R v Stevens [1989] 2 Qd R 386; (1989) 41 A Crim R 60, the Queensland Court of Criminal Appeal construed the expression ‘wrongful act or insult’ so that ‘wrongful’

214.

215. 216.

217. 218. 219. 220.

221. 222. 223. 224. 225. 226.

227. 228.

229. 230.

231. 232.

qualified both ‘act’ and ‘insult’. This construction was doubted, obiter, by the High Court in R v Stingel (1990) 171 CLR 312; 50 A Crim R 186 at 192. But see Gray v Smith [1997] 1 Qd R 485; 87 A Crim R 454. Zecevic v DPP (Vic) (1987) 162 CLR 645 at 655; 25 A Crim R 163 at 171; Woolmington v DPP [1935] AC 462; Police v Lloyd (1998) 72 SASR 271. See also Crimes Act 1900 (NSW) s 419. Lean v R (1993) 66 A Crim R 296 at 298 per Hunt CJ at CL. Graham v R [2016] HCA 27 at [9]; R v Dziduch (1990) 47 A Crim R 378 at 380–1; Steel v Western Australia [2010] WASCA 118 at [27]–[28]; Crimes Act 1900 (NSW) s 419; Criminal Law Consolidation Act 1935 (SA) s 15(5); Crimes Act 1958 (Vic) s 322I. Western Australia v Liyanage [2016] WASC 12 at [89]–[91]. See R v Stojkovic [2004] VSCA 84; Bonython v R (1984) 15 A Crim R 364; Western Australia v Liyanage [2016] WASC 12. See L Walker, The Battered Woman Syndrome, Springer Publications Co, New York, 1984. See Osland v R (1998) 197 CLR 316 at 371 for critical commentary by Kirby J; R v Runjanjic and Kontinnen (1991) 56 SASR 114; 53 A Crim R 362 (duress); Hickey, noted in Yeo, above n 185; R v Whallen (CA(NSW), April 1991, unreported); Western Australia v Carlino (No 2) [2014] WASC 404. R v Ahluwalia [1992] 4 All ER 901. Lavallee v R (1990) 55 CCC (3d) 97; 4 WWR 1. State of New Jersey v Kelly (1984) A 2d 364; People (New York) v Torres 488 NYS 357 (1985). Director of Public Prosecutions Reference (No 1 of 1991) (1992) 60 A Crim R 43 at 46. R v Pangilinan [2001] 1 Qd R 56. See R v Roba (No 2) (2000) 110 A Crim R 253; R v Pangilinan [2001] 1 Qd R 56; R v Munro (2001) 51 NSWLR 540. See also R v Imadonmwonyi [2004] VSC 361 as to the sufficiency of evidence of self-defence; R v Staszewski [2004] VSCA 176; Steel v Western Australia [2010] WASCA 118 at [29]. Stingel v R (1990) 171 CLR 312 at 334; Masciantonio v R (1995) 183 CLR 58 at 67–8; Steel v Western Australia [2010] WASCA 118 at [29]. There are many authorities supporting this rule: see R v Pangilinan [2001] 1 Qd R 56 at 61; R v Wardrope (1987) 29 A Crim R 198 at 199; R v Howe (1958) 100 CLR 448 at 459; Viro v R (1978) 141 CLR 88 at 117–18. See R v Kear [1997] 2 VR 555. R v Thorpe [1999] 1 VR 326; (1998) 102 A Crim R 278. See also Western Australia v Liyanage [2016] WASC 12 at [11] where Hall J comments on the difficulty of running the defence of non-insane automatism together with self-defence. See 10.36 for Victoria’s short-lived re-introduction of the doctrine; and the Criminal Code (WA) s 248(3) for the overly complex defence. R v Gray (1998) 98 A Crim R 589 at 592; R v Messent [2011] QCA 125 at [30]; R v Allwood [1997] QCA 257 per McPherson JA.

[page 291]

11 Provocation Introduction 11.1 During the 17th century, provocation emerged as a defence that distinguished a murderous act from one that constituted manslaughter.1 The avoidance of mandatory capital punishment provided the impetus for the defence. In recognising provocation as an excuse, the courts granted a concession to human frailty.2 The hallmark of provocation was a temporary loss of self-control, resulting in ‘frenzied’ behaviour induced by the conduct of the deceased. The early courts approached the question of what could amount to operative provocation (ie, sufficient to reduce a killing from murder to manslaughter) in an ad hoc manner. As a result, rules developed governing particular matters such as adultery, unlawful arrest, threats or acts of violence, trivial assaults, insulting or abusive behaviour, breach of contract, trespass to property, and so forth. Some of these rules remain important and will be considered below. The focus upon the intrinsic nature of the provocative conduct was apparent in earlier works and influenced later thinking about the defence.3 By the close of the 19th century, it was accepted that a killing ought not be reduced from murder to manslaughter unless the provocation offered by the deceased was sufficient to deprive a reasonable man of the powers of self-control. The position was stated by Keating J in the English case of R v Welsh (1869) 11 Cox CC 336:4 [T]here must exist such an amount of provocation as would be excited by the

circumstances in the mind of a reasonable man, and so as to lead the jury to ascribe the act to the influence of that passion.

The objective element, which morphed from a reasonable person to an ordinary person test, has characterised the defence of provocation ever since.5 The [page 292] Australian common law position appears to be that anything said or done by one person in the presence of another may constitute operative provocation if: (1) it could have deprived an ordinary person of self-control to such an extent as to form an intention to kill or cause grievous bodily harm; and (2) the provocative conduct did in fact deprive the person provoked of self-control. The objective and subjective elements of the defence are examined in detail below (see 11.6–11.8 and 11.11–11.15). 11.2 It is a commonly held view that provocation is a concession to human frailty that operates as a qualified defence to reduce what would otherwise be murder to manslaughter. An alternative view is that provocation actually demarcates between murderous acts and acts that constitute manslaughter. This view is based on murder being defined not only by reference to an intent to kill or to cause grievous bodily harm but also by the implicit element of malice aforethought which is more commonly known as a ‘degree of premeditation, describing at least a deliberate and calculated act’.6 The law has developed so that once it is established that the killing was intentional it is presumed that the accused possessed the requisite requirement of malice aforethought. The presumption can be rebutted by successfully raising the defence of provocation. This approach was endorsed by the High Court in Lindsay v R (2015) 255 CLR 272, [2015] HCA 16 where the plurality stated:7 Although it is common to describe the doctrine as a ‘partial defence’, the true position is that the unlawful intentional killing of another under provocation is not murder. The

malice that is implicit in the intention to kill or to do grievous bodily harm is denied in the case of a killing done under provocation.

On this basis it is difficult to justify commonly enacted exclusion clauses (see 11.34–11.35) which state that a provocation defence cannot be based on mere words, on non-violent sexual advances or on conduct that relates to the ending or changing of a domestic relationship except in circumstances that are most extreme and exceptional in character.8 Why should the implied element of malice be rebuttable in most circumstances but irrefutable (an accused is deemed to have malice) in a limited range of circumstances? 11.3 The partial defence of provocation has been, and continues to be, the most controversial and critiqued of the criminal defences. This controversy has led to the defence’s abolition in Tasmania, Victoria and Western Australia.9 It has also led to reform of the defence in most of the other jurisdictions. South Australia is the only jurisdiction where the common law continues to [page 293] apply unaffected by statute.10 The Criminal Code 1899 (Qld) included a partial defence of provocation; however, the terms of the defence are not defined and therefore the common law is relied on to determine the circumstances under which the defence applies.11 Recent statutory intervention in Queensland has resulted in the introduction of two exclusion clauses and the onus of proof has been reversed.12 The Australian Capital Territory has replaced the common law defence with a statutory defence which for the most part reflects the common law.13 The Northern Territory has recently replaced its previous statutory defence with a new defence which is also similar to the common law.14 The New South Wales recently enacted statutory defence of extreme provocation deviates more than defences in the other jurisdictions from the common law defence of provocation.15 The New South Wales defence includes a positive restriction clause which limits the defence to circumstances where the deceased provoked the accused by committing

a serious indictable offence. It also includes two exclusory clauses, and the gravity of the provocation is assessed objectively by reference to the nature of the deceased’s conduct alone and not by reference to its impact on a person in the accused’s circumstances.16 11.4 Evidence of provocation has exculpatory functions other than providing the basis for the partial defence to murder. Provocation may be relevant to the existence of a specific fault element such as the intention to kill or the intention to inflict serious injury17 (see 11.44). In Queensland and Western Australia, provocation can also operate as a complete defence to assault offences.18 The relevance of provocation may go beyond the trial to certain pre-trial issues, such as prosecutorial discretion and the magistrate’s decision to commit for trial.19 In jurisdictions which [page 294] allow a determinate (non-life) sentence for murder upon proof of mitigating circumstances,20 provocation may be relied upon at the sentencing stage even though, in those jurisdiction that retain the defence, the partial defence has been considered and rejected by the jury.21

Intentional killing 11.5 The existence of an intention to kill or cause grievous bodily harm at the time of the killing is not fatal to a defence of provocation.22 Indeed, it is the formation of that intention, and acting pursuant to it, which is excused by the defence. However, the murderous intent must have been occasioned by the provocation. Evidence of such intention formed prior to the commission of the act which was relied upon as constituting operative provocation would be evidence of premeditation. In Parker v R (1963) 111 CLR 610, a minority of the High Court construed the New South Wales provision on provocation which, in its

original form, excluded homicidal acts committed with intent to take life, as referring to premeditated intent only.23 A literal interpretation would have demolished the defence.

Actual loss of self-control 11.6 At common law and under statute, a temporary loss of selfcontrol lies at the heart of provocation.24 In the High Court decision of Pollock v R (2010) 242 CLR 233, the plurality stated:25 [page 295] Central to the concept of provocation is the distinction that the law draws between intentional killing in an uncontrolled emotional state induced by the deceased’s provocative conduct and an intentional killing (albeit, in this case, unplanned) induced by a desire for revenge.

The jury must consider whether the killing occurred in the heat of passion or whether passions had cooled. Anger is the most common emotion associated with provocation; however, a loss of control can result from fear or a mixture of emotions.26 In the New South Wales Court of Criminal Appeal case of R v Peisley (1990) 54 A Crim R 42, Wood J said:27 More is required than anger or loss of temper or building resentment. There must, in my view, be a loss of self-control which I understand to include a state in which the blood is boiling … or a state of fear or terror, in either case, to the point where reason has been temporarily suspended.

The courts have used metaphors such as ‘blood boiling’ and ‘reason losing its seat’ to describe loss of self-control, because much remains unknown about the workings of the human mind and ensuing emotions.28 It is not a state of total loss of control; however, the accused must have had an emotional response that differs from what can be described as a normal emotional response. The accused must have been so enraged and/or so fearful as to form a murderous intent and to act pursuant to that intent.29

11.7 The conventional view was that the accused’s loss of self-control must have occurred immediately after the provocative conduct. However, the courts have revised this stance in the light of research on human behaviour showing that some people, particularly those subjected to long-term domestic abuse, might respond to provocation by suffering a ‘slow-burn’ of anger, despair and fear which eventually erupts into the killing of the provoker. The following comment by Gleeson CJ in R v Chhay (1994) 72 A Crim R 1 is instructive:30 The law developed in days when men frequently wore arms, and fought duels, and when, at least between men, resort to sudden and serious violence in the heat of the moment was common. To extend the metaphor, the law’s concession seemed to be to the frailty of those whose blood was apt to boil, rather than those whose blood simmered, perhaps over a long period, and in circumstances at least worthy of compassion.

Accordingly, the precise mode of retaliation will be a function of personality, gender or other circumstances.31 A point may, however, be reached where no [page 296] reasonable jury could conclude that an ordinary person could have responded in such a delayed manner, in which case the judge may be justified in withdrawing provocation from the jury.32 11.8 When considering whether the accused actually lost self-control, all relevant personal characteristics of the accused should be considered.33 Thus, specific characteristics such as ethnic origin, intoxication,34 a history of domestic abuse,35 and temperament36 may be relevant to this stage of the inquiry. The sole exception is the recently enacted New South Wales defence of extreme provocation, which excludes consideration of self-induced intoxication when considering whether the accused lost self-control.37 Of course, these personal characteristics merely contribute to the reaction to the provocative conduct; it is the provocation itself which remains the primary cause of the loss of self-control.

Suddenness of the retaliation 11.9 The common law traditionally required the act of retaliation to be committed suddenly; shortly after the last provocative act and before the accused could regain control. However, as noted at 11.6, the law no longer requires the loss of self-control to have occurred within a short time after the last provocative incident or for the act that kills to have been committed immediately upon losing self-control.38 For example, in R v R (1981) 28 SASR 321, the South Australian Court of Criminal Appeal held that the defence of provocation was open to an abused spouse even though there was an interval of over 20 minutes, during which time her husband was asleep, before she killed him.39 Section 304 of the Criminal Code (Qld) states that the defence applies where the accused killed ‘in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool’. In Pollock v R (2010) 242 CLR 233, the High Court interpreted these words as reflecting the common law; they are an:40 … expression of a composite concept incorporating that the provocation is such as could cause an ordinary person to lose self-control and to act in a manner which encompasses the accused’s actions.

[page 297] Accordingly, the defence is not excluded by establishing that there was an interval between the last provocative act and the killing, as it is simply a question of whether the provocative conduct caused the accused to lose self-control and not whether the loss of control occurred immediately after the provocative conduct. In Pollock it was also held that provocation has only one objective test (see 11.11) and therefore a jury must not be instructed to consider whether there was sufficient time between the provocation and the killing to enable an ordinary person to regain his or her composure.41 11.10 The New South Wales, Australian Capital Territory and Northern Territory provisions all incorporate the contemporary

common law approach. The provisions state that the act causing death is not required to occur immediately after the provocative conduct.42 Hence, in all jurisdictions it is envisaged there may be cases where the defence could succeed even where a lengthy interval existed between the time an accused lost self-control and when he or she performed the homicidal act. Of course, the longer the time interval, the harder it may be for an accused to successfully raise the defence, and the easier it will be for the prosecution to prove that the killing was a premeditated act of revenge and not the result of a loss of self-control.43 The plurality in Pollock expressed the relevance of an interval in the following terms:44 The circumstance that an accused had time to reflect before reacting to provocation may show that the later killing was an intentional killing carried out from motives of revenge or punishment. The interval between the deceased’s provocative conduct and the killing may tend to show that the accused had regained control at the time of the killing. These are matters bearing on the determination of whether the killing was in fact caused by provocation and done at a time when the accused was in a state of temporary loss of selfcontrol.

Objective loss of self-control: a two-stage test 11.11 As stated at the outset, the Crown can negative the partial defence by proving that the provocation could not have deprived an ordinary person of the power of self-control to such an extent as to cause him or her to form an intention to kill or inflict grievous bodily harm upon the deceased.45 The leading High Court decision on the objective test is Stingel v R (1990) 171 CLR 312, which was concerned with the now repealed provocation provision of the Criminal Code 1924 (Tas).46 The appellant, aged 19 years, came upon his former girlfriend engaged in fellatio with a man in a parked car in the early hours of the morning. The man swore at the appellant whereupon the appellant fetched a butcher’s knife from his car and stabbed him to death. The relevant section referred to any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control. The trial judge refused to leave provocation [page 298]

to the jury, a decision upheld on appeal. Regarding the objective test, the High Court stated:47 The function of the ordinary person in s 160 is the same as that of the ordinary person of the common law of provocation. It is to provide an objective and uniform standard of the minimum powers of self-control which must be observed before one enters the area in which provocation can reduce what would otherwise be murder to manslaughter. While personal characteristics or attributes of the particular accused may be taken into account for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult, the ultimate question posed by the threshold objective test of s 160(2) relates to the possible effect of the wrongful act or insult, so understood and assessed, upon the powers of self-control of a truly hypothetical ‘ordinary person’. Subject to a qualification in relation to age … the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused. It will, however, be affected by contemporary conditions and attitudes …

11.12 The High Court’s analysis of the objective test in Stingel has been applied in other jurisdictions; however, recent statutory intervention in New South Wales and the Northern Territory has significantly modified how the gravity of the provocative conduct is evaluated (see 11.15).48 The objective test first requires the gravity of the provocation to be determined. Gravity is assessed by evaluating the content and extent of the provocation from the viewpoint of the accused. Characteristics (whether permanent or transitory) peculiar to the accused such as ‘age, race, physical features, personal attributes, personal relationships and past history’ may be taken into account in determining the gravity of the provocation relied upon.49 For example, the plurality of the High Court in the recent decision of Lindsay v R (2015) 255 CLR 272 stated that when assessing the gravity of unwanted homosexual advances:50 It was open … for the jury to consider that the sting of the provocation lay in the suggestion that, despite his earlier firm rejection of the deceased’s advance, the appellant was so lacking in integrity that he would have sex with the deceased in the presence of his family in his own home in return for money … [I]t was open to a reasonable jury to consider that an offer of money for sex made by a Caucasian man to an Aboriginal man in the Aboriginal man’s home and in the presence of his wife and family may have had a pungency that an uninvited invitation to have sex for money made by one man to another in other circumstances might not possess.

Personal characteristic such as ethnicity do not have to be the subject or target of the provocative conduct for them to be taken into account in

assessing the gravity of the provocation. [page 299] 11.13 Having determined the gravity of the provocative conduct, a jury must determine whether the Crown has proven that an ordinary person, faced with the same degree of provocation, could not have lost his or her self-control so as to do what the accused did. With the exception of an accused’s immature age, the accused’s personal characteristics are not relevant when considering the response of the ordinary person. There is a line of Northern Territory authority that supported the proposition that an accused’s status as an Indigenous Australian living beyond the mainstream of Australian society could also be attributed to the ordinary person for the purpose of assessing the objective test of provocation.51 This approach is inconsistent with the recently enacted Northern Territory defence of provocation (see 11.3), and in other jurisdictions the courts have rejected the attribution of an accused’s race or ethnic grouping, including his or her Aboriginality, to the ordinary person.52 However, as demonstrated by the decision of Lindsay v R, the subjectification of the gravity component mitigates against the rigidity of ordinary person test. 11.14 It may be useful to distinguish two processes of relevance to the objective component of the provocation test: contextualisation and personalisation. The former gives colour and meaning to the deceased’s conduct; the latter is a process of modifying the attributes of the ordinary person so as to vary the standard of expected self-control. Under Stingel, contextualisation embraces any and all relevant characteristics of the accused, the deceased and their relationship. By contrast, personalisation is limited to immature age. Earlier cases went further and allowed sex, colour, and ethnic origin under personalisation to modify the standard of self-control expected of the ordinary person.53 In Stingel, the High Court revitalised the objective test which will continue to play an important part in restricting the scope of provocation. But one should not overlook the criticism that has been

made of the test. In Moffa v R (1977) 138 CLR 601, Murphy J said:54 The objective test is not suitable even for a superficially homogeneous society, and the more heterogeneous our society becomes, the more inappropriate the test is. Behaviour is influenced by age, sex, ethnic origin, climatic and other living conditions,

[page 300] biorhythms, education, occupation and, above all, individual differences. It is impossible to construct a model of a reasonable or ordinary South Australian for the purpose of assessing emotional flashpoint, loss of self-control and capacity to kill under particular circumstances … The same considerations apply to cultural sub-groups such as migrants. The objective test should not be modified by establishing different standards for different groups in society. This would result in unequal treatment. … The objective test should be discarded. It has no place in a rational criminal jurisprudence.

Murphy J’s call for the objective test to be replaced by a purely subjective test of actual loss of self-control had the support of two Australian law reform bodies.55 A purely subjective test is also consistent with the High Court’s recent statement that provocation has the effect of rebutting the implied malice element of murder (see 11.2). However, the objective test continues to receive strong judicial and legislative support in all Australian jurisdictions that retain the defence. 11.15 The New South Wales and Northern Territory legislatures have bolstered the objective nature of the ordinary person test by depersonalising the test and restricting the relevant contextual information that can be considered.56 Section 23(2) of the Crimes Act 1900 (NSW) states that extreme provocation can only reduce murder to manslaughter ‘if and only if: (a) the conduct of the deceased could have caused an ordinary person to lose self-control …’. The effect of this clause and the similarly worded Northern Territory clause is that the gravity of the provocation is assessed by reference to the victim’s conduct and not by reference to the accused’s circumstances. Therefore, the accused’s characteristics and contextual information that is not related to the victim’s conduct cannot be considered by a jury when determining the gravity of the provocation. Accordingly, in Turnbull v R [2016] NSWCCA 109 the ordinary person test was described as a

‘purely objective test’.57 However, as the concept of the ordinary person has a well-understood common law meaning, in the absence of legislative indication to the contrary, the immature age of the accused will be ascribed to the ordinary person under the New South Wales and Northern Territory provisions.

The reasonable retaliation rule 11.16 The common law used to subscribe to the rule laid down in Mancini v DPP [1942] AC 1 that ‘the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter’.58 However, the courts have now relegated the rule to a factor which the jury may [page 301] consider when determining whether an ordinary person could have so lost self-control as to form a murderous intent and act as the accused did.59 The Australian Capital Territory and the Northern Territory provisions on provocation expressly reject the reasonable retaliation rule with the former stipulating that:60 [T]here is no rule of law that provocation is negatived if — there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission.

The provisions further omit all reference to the nature of the retaliation in its formulation of the ordinary person test other than to state that the retaliation need not occur suddenly and it can be accompanied by the intent to kill or the intent to cause grievous bodily harm/serious harm.61 The principle control on the type of retaliation that can be relied on is achieved through the requirement that the jury consider whether the conduct of the deceased ‘could have induced the ordinary person in the position of the accused to have so far lost self-control as to have formed

an intent to kill, or to inflict grievous bodily harm upon, the deceased’.62 While these provisions achieve their purpose, they have the unfortunate effect of doing away with the rule relating to the manner of killing, which is distinct from the reasonable retaliation rule.

The manner of killing 11.17 Australian courts had previously unreservedly adopted Viscount Simon’s ruling in Holmes v DPP [1946] AC 588 that the jury must form the view that an ordinary person ‘so provoked could be driven, through transport of passion and loss of self-control, to the degree and method and continuance of violence which produces death’.63 However, in Masciantonio v R (1995) 183 CLR 58, a majority of the High Court said:64 [T]he question whether an ordinary person could form an intention to kill or do grievous bodily harm is of greater significance than the question whether an ordinary person could adopt the means adopted by the accused to carry out the intention.

[page 302] It is unlikely that the High Court in Masciantonio meant to completely remove the rule pertaining to the mode of killing. At most, the case stands for the proposition that the accused’s mode of killing is of lesser significance than the need for an ordinary person to have formed a murderous intent. But the mode of killing continues to be given significance. In Pollock v R (2010) 242 CLR 233, the High Court gave weight to the mode of killing. The court said that the provocative conduct must have (emphasis added):65 … had the capacity to cause an ordinary person to lose self-control and form the intention to kill or to do grievous bodily harm and to act as the appellant acted.

11.18 The New South Wales, Australian Capital Territory and Northern Territory provisions on provocation have done away with the moral relevance of the manner of the accused’s physical response to the provocation. All that matters is whether the provocation was sufficient

to induce an ordinary person to have so far lost self-control as to have formed a murderous intent.66 11.19 It has been submitted that the moral evaluation of the accused’s mode of killing inevitably informs the jury as to whether an ordinary person might have reacted likewise when deprived of selfcontrol, and the legislative abrogation of this evaluation unduly undermines the moral underpinnings of the defence.67 In the words of James Fitzjames Stephen:68 The moral character of homicide must be judged of principally by the extent to which the circumstances of the case show, on the one hand, brutal ferocity, whether called into actions suddenly or otherwise, or on the other, inability to control natural anger excited by serious cause.

On this view, the defence should be denied to a parent who tramples his child to death or a person who had electrocuted his provoker by placing live electric wires into her mouth,69 or a husband who had stabbed his wife 48 times with a long-bladed kitchen knife, including eight times in the heart.70

Conduct amounting to provocation 11.20 Not every type of conduct can amount to provocation in law. The common law has devised many ad hoc rules over the years, some of which appear to be without strong foundation and could deny the operation of the defence in deserving cases. Legislation has occasionally been enacted to remove or modify these defective rules. The legislature has also introduced exclusory clauses which prevent specified types of behaviour from constituting provocation, which at common law could provide a foundation for the defence. A commonly [page 303] enacted exclusory clause prevents the defence from being based on nonviolent sexual advances (see 11.33–11.34). The Queensland Parliament

has also excluded conduct, except in circumstances which are of the most extreme and exceptional in character, done or believed to be done to end or change a domestic relationship or to indicate in any way that the relationship may, should or will end or change (see 11.35). The recently enacted New South Wales defence of extreme provocation goes further than other jurisdictions in limiting when the partial defence applies. Rather than listing circumstances which are excluded, the defence adopts a positive restrictive model which specifies that the partial defence only applies where the provocative conduct by the deceased constituted a serious indictable offence (see 11.22).

Unlawfulness 11.21 The common law does not require the deceased’s provocative conduct to have been unlawful.71 The defence of provocation is not founded upon a lawful retaliation to unlawful force, and such a requirement is no longer part of the law of self-defence, as the High Court has rejected the need to identify an ‘unlawful attack’ to raise selfdefence.72 Indeed, finding and killing a person in the act of adultery would appear to be within the terms of the defence, although adultery can no longer in any sense be regarded as an unlawful act.73 Therefore, it is clearly the case that the lawfulness of the deceased’s conduct does not automatically defeat a plea of provocation. This is consistent with the justifications for the defence being the absences of malice and a concession to human frailty. The common law position that lawful conduct can constitute provocative conduct is qualified by the fact that a lawful arrest cannot constitute provocative conduct.74 An arrest that is executed illegally can amount to provocation in circumstances where the accused is aware of the illegality.75 There is some suggestion that the exclusion is not restricted to lawful arrests but applies to any lawful act of a person who is in the course of discharging a legal duty.76 Although the Australian Capital Territory and Northern Territory provisions do not expressly adopt the common law, they seem to be consistent with it as provocative conduct can include ‘grossly insulting words or gestures’.77

[page 304] 11.22 The recently enacted New South Wales defence of extreme provocation departs from the common law. To constitute provocation, the deceased’s conduct must have constituted a ‘serious indictable offence’.78 The term ‘serious indictable offence’ is defined as any indictable offence that carries a maximum penalty of imprisonment for 5 years or more.79 Although the provision significantly limits the type of conduct capable of constituting provocation, the defence will still be available in a wide range of circumstances. For example, situations involving ongoing domestic violence will commonly include the commission of an assault occasioning bodily harm which is a serious indictable offence. Furthermore, where abuse is psychological rather than physical in nature it may amount to stalking or intimidation with the intent to cause fear of physical or mental harm, which is also a serious indictable offence.80 In Turnbull v R [2016] NSWCCA 109, the first, and at the time of writing the only, case where the defence of extreme provocation has been raised, the applicant was on trial for the murder of a Compliance and Regulation Officer of the Office of Environment and Heritage. The deceased had been involved in an investigation and subsequent prosecution of the applicant for illegal land-clearing. At trial it was argued that the deceased’s activities constituted extreme provocation in that he engaged in intimidation and harassment in breach of s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The Court of Criminal Appeal ruled that the deceased’s activities were within the bounds of his lawful duties and therefore could not be intimidating and harassing behaviour within the terms of s 13 of the Act. There was therefore no evidence of a serious indictable offence as required by the defence of extreme provocation.81

Cumulative provocation 11.23 The issue of cumulative provocation is an extension of that concerning sudden provocation. The common law is replete with case authorities that recognise that previous provocative incidents can

constitute provocation, and the law should not be construed as requiring a triggering provocative incident which caused the accused to lose self-control.82 Conduct that constitutes provocation may occur over an extended period of time.83 The New South Wales, Australian Capital Territory and Northern Territory provisions adopt this stance.84 For example, the Australian Capital Territory provision provides that the provocative conduct may have ‘occurred immediately before the act or omission or at any previous time’.85 The New South Wales Court of Criminal Appeal in Chhay held that the accused’s loss of self-control could be the result of cumulative instances [page 305] of domestic violence inflicted on her by the deceased, her husband.86 The final provocative incident could be something relatively trivial when considered in isolation; however, if viewed in context the provocative conduct must be such that an ordinary person could have lost their self-control.

Indirect provocation 11.24 Provocation need not be directed at the accused.87 The common law has always permitted certain forms of indirect provocation as a possible foundation for the plea.88 In the Victorian case of R v Terry [1964] VR 248, provocation was offered to the sister of the accused, who was the wife of the deceased. Pape J told the jury that the mere fact that the provocation was offered to the accused’s sister rather than the accused did not exclude the defence. Nor is it essential that there be some relationship of kinship or friendship between the accused and the person receiving ‘direct’ provocation,89 although evidence of such a relationship is relevant to the question whether the accused was in fact deprived of self-control by reason of the conduct of the deceased. The New South Wales, Australian Capital Territory and Northern Territory provisions on provocation include conduct ‘towards or

affecting’ the accused within the statutory definition of provocation.90 The word ‘affecting’ is broad enough to include indirect as well as direct provocation.

Misdirected provocation 11.25 If the accused kills someone who did not offer provocation, it is not a defence for the accused to say that he or she was provoked by a third party. Provocation must emanate from the deceased. The act of retaliation must be directed at the source of provocation.91 The killing of an innocent third party who did not provoke the accused is not within the scope of the defence.92 11.26 The rule that provocation must emanate from the deceased does not sit well with provocation being justified on the basis of the absence of malice necessary to convict of murder (see 11.2). It is, therefore, not surprising there are exceptions to the rule. First, where individuals are acting in concert,93 closely related94 or physically proximate,95 provocative conduct by one may be attributed to another independently of the excuse of reasonable mistake of fact. [page 306] Second (although not strictly an exception), retaliation aimed at the provoker which accidentally strikes an innocent party may, at common law, be treated as manslaughter under the doctrine of transferred malice.96 11.27 The New South Wales, Australian Capital Territory and Northern Territory provisions on provocation endorse the common law rule that the provocation must have emanated from the deceased since the provocation is described throughout the provisions as ‘the conduct of the deceased’.97 The provisions do not mention the first exception and it seems unlikely that it has any application.

Hearsay provocation 11.28 The common law requires the provocative conduct to have occurred in the presence of the accused.98 In fact, at common law the earlier cases stated that the accused must see the provocative conduct.99 This requirement has been modified to the limited extent that, when considering the gravity of the provocation that occurred in the accused’s presence, the jury can take into account hearsay reports to the accused from third parties about past provocative conduct of the victim.100 An explanation for this limitation is that it ensures that the accused had actual grounds for believing that the deceased had done something provocative. This limitation, known as ‘the rule against hearsay provocation’, does not apply to the New South Wales, Australian Capital Territory and Northern Territory provisions on provocation, which state that the accused’s loss of self-control must have been in response to conduct by the deceased ‘towards or affecting’ the accused.101 In Ziha v R [2013] NSWCCA 27, the court stated, in reference to the New South Wales provision:102 As it is sufficient under s 23(2)(a) that the loss of self-control was induced by conduct of the deceased ‘affecting’ the accused, it is unnecessary for the conduct to have been directed at or in the presence of the accused (although that it was not may well be relevant to an assessment of how an ordinary person might have reacted to the provocation).

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Self-induced provocation 11.29 It is a well-established common law rule that the defence of provocation will be denied to a person who sought the provocation as an excuse to kill or harm the deceased.103 In such a case, the accused has not killed as a result of losing self-control and the malice necessary to establish murder is present. This rule is contained in the recently enacted New South Wales partial defence, which states that conduct of the deceased is not extreme provocation if ‘the accused incited the conduct in order to provide an excuse to use violence against the

deceased’.104 The Australian Capital Territory and Northern Territory provisions do not include an incitement exclusion clause. However, the sections require the accused to have been ‘induced by any conduct of the deceased’ to lose his or her self-control.105 Conceivably, where the accused sought the provocation, the loss of self-control would have been induced by the conduct of the accused and not by that of the deceased. Cases of self-induced provocation are differentiated from those where the accused had merely risked being provoked by doing something which he or she knew might provoke the deceased into an attack, but which the accused had not deliberately done to solicit such a response. The courts have adopted the Privy Council ruling in Edwards v R [1973] AC 648 (on appeal from Hong Kong) that the defence is unavailable to a person who had lost self-control in the face of reasonably predictable results of his or her own conduct but is available where the response to his or her conduct was unpredictable.106 The recently enacted New South Wales clause excluding self-induced provocation is consistent with the ruling in Edwards.

Verbal provocation 11.30 There is common law authority recognising that words alone in certain circumstances can amount to provocation in law.107 In Holmes v DPP [1946] AC 588, Viscount Simon, with whom the other members of the House of Lords agreed, states that a judge must inform a jury:108 … that a confession of adultery without more is never sufficient to reduce an offence which would otherwise be murder to manslaughter, and that in no case could words alone, save in circumstances of a most extreme and exceptional character so reduce the crime. When words alone are relied upon in extenuation, the duty rests on the judge to

[page 308] consider whether they are of this violently provocative character, and if he is satisfied that they cannot reasonably be so regarded, to direct the jury accordingly.

11.31

The High Court in Moffa v R (1977) 138 CLR 601 adopted

the House of Lords approach, with the majority stating that words of a violently provocative character would constitute a sufficient basis to raise the defence of provocation.109 The majority of the High Court did not indorse the statement that a sudden confession of adultery could never be the basis of a defence of provocation. Barwick CJ stated that such a rule was ‘hardly consonant with the “benignity of the law” in its concession to “human infirmity”’.110 On the other hand, Stephen J agreed with the statement that a sudden confession of adultery would never suffice to raise the defence;111 and Mason J stated that the question as to the sufficiency of a sudden confession of adultery could be put to one side because on the facts of the case the victim’s words went well beyond a simple confession of adultery.112 In those rare cases where words are the only basis for the provocation or in the more usual circumstance where provocation is primarily or partly based on words, a proper evaluation of provocative words will require the courts to consider what ideas and stereotypes the words invoke, and their significance as understood by reference to history, community attitudes, and the characteristics of the person to whom the words are addressed.113 Following the High Court’s decision in Moffa, a degree of divergence has prevailed in the use of language used to describe the type of words that are capable of forming the basis of the defence of provocation. Some judgments have emphasised the need for words of an extreme and exceptional character,114 others have emphasised the need for words that are violently provocative in character,115 and others simply refer to words without any additional epithet.116 What adjectives, if any, are used to describe the types of words sufficient to raise the defence is probably of little relevance. The purpose of using such adjectives is simply to reinforce that the words must be sufficiently provocative that a jury can conclude that the Crown had failed to prove that an ordinary person could not have responded to the words by losing self-control, forming the intent to kill, and acting as the accused had done.117 On this basis, there is no compelling reason why, given the right circumstances, sudden confession of adultery could not raise the defence of provocation.118

[page 309] 11.32 The issue of verbal provocation has been addressed in four of the five jurisdictions that retain the partial defence. As a result of the 2014 amendments to the Crimes Act 1900 (NSW), provocation cannot be based on words alone as the defence of extreme provocation only arises when the deceased has committed a serious indictable offence (see 11.22).119 In 2011, the Queensland Parliament amended the partial defence of provocation so that words alone are incapable of being the basis of the defence except ‘in circumstances of a most extreme and exceptional character’.120 The Criminal Code (Qld) states that in determining whether circumstances were of the most extreme and exceptional character, the jury may have regard to any relevant history of violence.121 The legislative response followed a number of cases where the defendant successfully relied on the defence in circumstances where he killed his partner in the course of a breakdown of their relationship. The provocation relied on consisted largely, but not exclusively, of words. The words attributed to each of the deceased could be described as unexceptional and typical of the types of statements that are uttered in such circumstances.122 For example, in R v Auberson [1996] QCA 321 the deceased left the family home which she shared with her partner and their child, taking their 18-month-old child with her. Fifteen days later, at the request of the accused, the deceased returned to the home to discuss their relationship. The provocative statements relied on were the deceased’s admission that she had a new boyfriend and that she was going to go after as much of the accused’s money as possible, including the funds he had accumulated in his superannuation account. The accused responded by strangling his wife, beating her on the head with bathroom scales and cutting her throat with a Stanley knife. The case stands in contrast to the decision of R v Mills [2008] QCA 146, where the relevant statements might satisfy the extreme and exceptional requirement. In the heat of an argument involving allegations of infidelity, the deceased is alleged to have stated: ‘I’ve given you a gift too. You should have AIDS by now’.123 In the Australian Capital Territory and the Northern

Territory, the statutory defences state that provocative conduct can include ‘grossly insulting words or gestures’.124 The adjective ‘grossly’ merely reflects the common law pronouncement in Holmes and Moffa that the words have to be sufficiently violently provocative in character. The use of the term ‘insult’, however, raises the more difficult question as to whether words which carry information, in a non-insulting way, can be relied upon as provocation.125 In allowing insults as a possible basis for pleading provocation, it is highly unlikely that the legislature intended to exclude words used as a means of conveying non-insulting information. [page 310]

Non-violent sexual advances 11.33 Over the past 30 years, the availability of provocation based on a non-violent sexual (more specifically homosexual) advance has been a highly controversial issue.126 The controversy is principally concerned with whether evidence of a non-violent homosexual advance without more is sufficient to raise the possibility that an ordinary person faced with such conduct could lose his or her self-control and kill the individual responsible for the amorous advance. The significance, if any, that can be given to the accused’s negativity towards or hatred of homosexuality is also controversial. It is in the assessment of the gravity of the conduct that such homophobic attitudes can be considered (see 11.11). In effect, the question is whether the accused’s distain or hatred of a minority group should be considered when applying the partial defence of provocation. The defence of provocation in the circumstances of a non-violent homosexual advance first came before the High Court in the decision of Green v R (1997) 191 CLR 334.127 The principle ground of appeal was whether a potential miscarriage of justice had occurred because of the trial judge’s direction that the appellant’s sensitivity to sexual abuse resulting from a family history of such abuse was of no relevance to the defence of provocation. The

majority of the court held that the trial judge had erroneously excluded the evidence, resulting in a possible substantial miscarriage of justice.128 Only Brennan CJ accepted that evidence of a non-violent homosexual advance was sufficient to raise the defence of provocation and that the appellant’s attitude to homosexuality is relevant to the question of gravity.129 However, Brennan CJ’s judgment has been followed by the High Court in Lindsay v R (2015) 255 CLR 272. In that case, the deceased made two non-violent homosexual advances towards the appellant. On the first occasion, the appellant simply rejected the advance and remonstrated with the deceased; however, on the subsequent occasion the appellant lost his self-control and punched and stabbed the deceased multiple times. The Court of Criminal Appeal of South Australia held the trial judge had misdirected the jury on provocation, but upheld the murder conviction on the basis that no jury could have reasonably concluded that, faced with the provocation that confronted the appellant, an ordinary person could [page 311] have lost his or her self-control and acted upon his or her intention to kill. The High Court overturned the conviction. The plurality judgment stated:130 There is an evident need for caution before a court determines as a matter of law that contemporary attitudes to sexual relations are such that conduct is incapable of constituting provocation. The partial defence recognises human frailty and requires that the gravity of the provocation be assessed from the standpoint of the accused, taking into account his or her history and attributes. Assessment of the response of the ordinary person to the outrage which the provocative conduct might have engendered in the accused will usually depend upon a range of possible findings. It is this recognition that informed the majority’s conclusion in Green that a reasonable jury could have entertained a reasonable doubt that the prosecution had negatived provocation.

The High Court’s statements are consistent with earlier authority that homosexual acts (even those that are consensual) are in certain circumstances capable of provoking a person to kill another. In R v Terry [1964] VR 248 Pape J stated:131 If a father see a person in the act of committing an unnatural offence with his son, and

instantly kill him (probably) it is only manslaughter; but if he only hear of it, and go in search of the offender-and that with a deadly weapon-and kill him, it will be murder.

11.34 In his dissenting judgment in Green, Kirby J adopted the contrary position. His Honour quoted a statement from a government discussion paper that a murderous reaction towards a non-violent homosexual advance ‘should not be regarded as ordinary behaviour but as an exceptional characteristic of the accused’.132 Kirby J went on to hold that:133 For the law to accept that a non-violent sexual advance, without more, by a man to a man could induce in an ordinary person such a reduction in self-control as to occasion the formation of an intent to kill, or to inflict grievous bodily harm, would sit ill with contemporary legal, educative, and policing efforts designed to remove such violent responses from society, grounded as they are in irrational hatred and fear.

His Honour’s observation, and pressure from interested parties, has resulted in legislative intervention, with three jurisdictions enacting a non-violent sexual advance exception. The Northern Territory and the Australian Capital Territory provisions, which are in almost identical terms, state:134 [C]onduct of the deceased consisting of a non-violent sexual advance (or advances) towards the accused … is taken not to be sufficient, by itself, to be conduct [amounting to provocation] … but may be taken into account together with other conduct of the deceased in deciding whether [the accused was provoked].

[page 312] The impact of these provisions is minimal. As demonstrated by the facts in Lindsay, most cases that come before the courts involving a nonsexual advance will also include other conduct upon which the plea of provocation is based. Where the provocation is based on a non-violent sexual advance alone, it will almost inevitably be the case that the Crown will prove that an ordinary person could not have lost selfcontrol and killed in such circumstances. The New South Wales defence also includes an exclusion clause which states that a non-violent sexual advance alone does not constitute extreme provocation. The scope of the New South Wales exclusion clause is unknown. It could have no

application other than to state that a non-violent sexual advance is not a serious indictable offence and therefore cannot be the basis of a provocation defence.135 Alternatively, it could qualify the threshold requirement that serious indictable offences are capable of constituting provocative conduct. On this basis, for example, even though the deceased’s conduct constituted an indecent assault, it could not be the basis of an extreme provocation defence if the indecent assault was nonviolent and intended as a sexual advance.

Domestic context 11.35 Concerns about domestic violence, and specifically about men relying on the defence of provocation in circumstances where they kill in response to a breakdown of or changes to their intimate relationship, have been a significant factor leading to the abolition of the defence in Tasmania, Victoria and Western Australia.136 Coldrey J in R v Yasso (2002) 6 VR 239 expressed those concerns succinctly:137 In our modern society persons frequently leave relationships and form new ones. Whilst this behaviour may cause a former partner to feel hurt, disappointment and anger, there is nothing abnormal about it. What is abnormal is the reaction to this conduct in a small percentage of instances where that former partner (almost inevitably a male) loses selfcontrol and perpetuates fatal violence with an intention to kill or to cause serious bodily injury. In my view, this will rarely, if ever, be a response which might be induced in an ordinary person in the twenty-first century. Significant additional provocative factors would normally be required before the ordinary person test could be met.

Queensland has legislated to address the concerns expressed by Coldrey J and others. In 2011, the Queensland Parliament responded to recommendations by the Queensland Law Reform Commission and introduced a clause that excludes provocation, except in the most extreme and exceptional circumstances, being [page 313] based on anything done by the deceased or believed to be done by the deceased to end or change a domestic relationship or to indicate that the relationship may, should or will end or change.138

The limited application of exclusion clauses 11.36 The commonly enacted exclusion clauses are symbolically important in terms of the message they convey. However, they have limited practical significance. The clauses themselves are expressed so as not to exclude all circumstances based on words alone, involving a sexual advance, or based on a change to a relationship. Grossly insulting words or words that are extreme and exceptional, things done or believed to have been done to change or end a relationship in extreme or exceptional circumstances, and violent sexual advances are all capable of raising the defence. The exclusion clauses therefore do little, if anything, to change the common law as words that are not grossly insulting or in the most extreme and exceptional circumstances, a sexual advance that is not violent in character, or a change to a relationship that is not in the most extreme or exceptional circumstance would seem unlikely to satisfy provocation’s objective requirement (see 11.11). The clauses also either expressly or impliedly apply where the relevant subject is the only basis of the provocation; that is, there is no other conduct that impacts in a cumulative way to constitute the provocative conduct. The characterisation of the facts is therefore important in determining whether an exclusion clause applies. This is well illustrated by the English decision of R v Clinton Parker & Evans [2013] QB 1. In that case, the appellant and the deceased had been experiencing marital problems. Upon looking at the deceased’s Facebook page, the appellant became aware that the deceased had been unfaithful to him. When confronted by the appellant, the deceased detailed her sexual activities with her other partners. In the course of the confrontation, the deceased derided the appellant about a suggestion that he would commit suicide, stating that he didn’t have ‘the fucking bollocks … it would have been easier if you had, for all of us’. She also expressed her disinterest in their two children. The appellant became enraged; he killed her by bashing her with a wooden baton, strangling her with a belt and tying a rope around her neck. At his trial for murder, the judge excluded the partial defence of loss of self-control which requires a qualifying trigger but excludes certain conduct from

constituting a qualifying trigger, including ‘facts or things said that constitute sexual infidelity’.139 The trial judge reached the conclusion that once the evidence relating to the sexual infidelity was disregarded, there was an insufficient basis to raise the defence. The trial judge’s decision was overturned on appeal. The Court of Appeal ruled that although the appellant could not rely on his wife’s sexual infidelity as the [page 314] basis for the excuse of loss of self-control, the evidence of sexual infidelity was relevant in that it provided the context for other potential qualifying triggers.140 The Court of Appeal stated:141 Our approach has … been influenced by the simple reality that in relation to the day to day working of the criminal justice system events cannot be isolated from their context.

The Court of Appeal’s decision simply gives effect to the principle that provocative conduct must be viewed in context. The relevance or otherwise of conduct is not determined by viewing it in isolation.

Provocation and mistake of fact 11.37 In Queensland, provocation may be pleaded where the accused wrongly believes that the deceased has committed an act which amounts to provocation. The operative mistake only has exculpatory force if it is held on reasonable grounds.142 It was also the case in the Northern Territory that mistake of fact was relevant to a plea of provocation.143 The enactment of Pt IIAA of the Criminal Code 1983 (NT) means that mistake of fact no longer has a role to play, as the relevant statutory defence only applies to offences that have a conduct element but do not have a fault element.144 Nor can the common law defence of mistake of fact be relied on in combination with provocation, as mistake of fact only applies in circumstances where the mistaken belief, if true, would make the defendant’s acts innocent (see 2.36–2.38).145

Provocation and insanity 11.38 Since provocation involves loss of self-control — which is a form of mental malfunctioning — there may be occasions when evidence of provocation might also constitute evidence of insanity. It was this potential overlap which prompted Windeyer J, in Parker v R (1963) 111 CLR 610, to draw the following distinction:146 The law is concerned with an irresistible impulse as ordinarily understood only when it is a manifestation of the insanity of an insane man. It is concerned with an act done under provocation only when it is the act of a sane man. What is insisted upon, if provocation is to avail as a defence, is that the action of the accused should be a normal reaction of an ordinary man. It may be that, on psychological analysis, the impulsive act of a sane man and an insane impulse are similar, in that in each case there is an act done, without deliberation or volition, in immediate reaction on the presentation of a situation. But the law looks at them differently, whether or not it is psychologically proper to do so.

[page 315]

Provocation and diminished responsibility 11.39 In cases where provocation and diminished responsibility are raised simultaneously, judges have sometimes directed juries that if they find provocation they should return a verdict of manslaughter without considering diminished responsibility at all. This is a doubtful practice. In R v Low (1991) 57 A Crim R 8, the New South Wales Court of Criminal Appeal adopted the English practice of requiring juries to be told that in cases where provocation and diminished responsibility are raised together, the foreperson should indicate the basis upon which manslaughter was found.147 However, Low was overturned by R v Isaacs (1997) 90 A Crim R 587, where the New South Wales Court of Appeal held that although a trial judge has a discretion to ask a jury its basis for reaching a manslaughter verdict, it is a discretion that trial judges should be discouraged from exercising except in extreme circumstances (see 15.34–15.35).148

Provocation and constructive murder 11.40 The term ‘constructive murder’ is used to signify that form of murder which does not require proof of intention or foresight with respect to death or grievous bodily harm. In the Victorian case of R v Scriva (No 2) [1951] VLR 298, the accused killed the deceased in the course of resisting a lawful restraint imposed by the deceased in an attempt to prevent the accused from committing a felony. Under these circumstances, the accused was liable to be convicted for murder even though he did not intend to kill or wound the deceased and did not foresee that he was likely to do so. Smith J held that provocation could not be relied upon as a defence. In Queensland and South Australia, the partial defence of provocation applies to all forms of murder, including constructive murder.149 The language of the recently enacted New South Wales partial defence of extreme provocation also suggests that the defence applies to all forms of murder. However, it would be in extremely unusual circumstances where a deceased commits a serious indictable offence in response to an accused or his or her accomplice committing, attempting to commit or having committed a crime punishable by 25 years’ imprisonment, and the accused kills the deceased in circumstances where he or she was not recklessly indifferent to human life and did not intend to kill or inflict grievous bodily harm upon the deceased.150 The Australian Capital Territory and the Northern Territory have both abolished the offence of constructive murder.

Force to prevent repetition of provocation 11.41 The Griffith Code provides a complete defence to a person who uses force to prevent the repetition of an act or insult which constitutes sufficient provocation for the accused to respond by way of an assault. Under s 270 (Western Australia: s 247), the force must have been reasonably necessary to prevent the provocation being repeated. Although there must be evidence of a provocative act

[page 316] or insult, it is not necessary to raise evidence that the victim had done anything to repeat or further the initial act or insult.151 However, the Crown can negative the excuse by proving beyond reasonable doubt that there was no reasonable possibility of a repetition of the provocative conduct.152 Should the force used be disproportionate to the provocation, it would also mean that it would be disproportionate to prevent a repetition of that provocation.153 Accordingly, the defence must fail because the force used was not reasonably necessary in the circumstances. The defence will also fail if the force used was intended or was likely to cause death or grievous bodily harm.154 In R v Major [2015] 2 Qd R 307; [2013] QCA 114, the Queensland Court of Appeal held that s 270 was available as a defence to manslaughter,155 as long as the force used was neither intended to cause death or grievous bodily harm, nor likely to do so.156 The defence is not available in relation to any offence where an intention to cause death or grievous bodily harm is an element.157

Provocation and non-homicide offences 11.42 The Griffith Code allows provocation as a complete defence to certain non-fatal assault offences (see 11.47).158 When Samuel Griffith drafted the Code, he was probably influenced by the fact that, during the 19th century, provocation was allowed as a defence to some charges other than murder (such as attempted murder) and various statutory variations of that crime (such as wounding with intent to murder159 or wounding with intent to cause grievous bodily harm160). Some of the decisions can be explained by reference to a statutory provision excluding liability if the offender would not have been guilty of murder had death ensued.161 This would necessarily raise questions relating to provocation. However, in some cases provocation appears to have been successfully relied upon in the absence of any such proviso.162 This was allowed presumably because between 1803 and 1861,

[page 317] certain forms of attempted murder (involving the infliction of actual bodily harm or the administration of poison) were capital and the judge had no discretion to return a lesser sentence.163 It would have been strange to punish the wounding more harshly than the killing. After 1861, this consideration was no longer important as from that date all attempts to murder were made non-capital.164 The relative benignity of the law in relation to provocation is undoubtedly a product of capital punishment. The introduction of flexible sentencing powers in cases of murder tended to undercut the rationale for allowing provocation as a defence at all, let alone expanding it to non-fatal assaults.165 But only in the 20th century did provocation come to be seen as a qualified defence operating exclusively in relation to murder. In modern times, English courts have rejected provocation as relevant to malicious wounding166 and attempted murder.167

Provocation and attempted murder 11.43 Assault is not an element of attempted murder and therefore the complete defence of provocation is not a defence to attempted murder under the Griffith Code (see 11.47).168 Nor is the partial defence of provocation available as a defence to attempted murder under the Queensland Code as the partial defence of provocation expressly only applies to reduce murder to manslaughter and the offence of attempted manslaughter does not exist.169 In South Australia, attempted murder may be reduced to attempted manslaughter (punishable by up to 12 years imprisonment) where the accused would, if the attempt had been carried to completion, have been guilty of manslaughter rather than murder.170 Presumably, the effect of this provision is to permit provocation as a qualified defence to a charge of attempted murder.171 The other jurisdictions that retain the partial defence of provocation do not have a specific offence of attempted

manslaughter.172 The arguments against extending provocation to attempted murder were canvassed in an earlier edition of this work.173 Provocation may, of course, be relevant to sentencing on a conviction of attempted murder.174 [page 318]

Provocation and denial of offence elements 11.44 Loss of self-control induced by the victim’s conduct may be relied upon as a basis for negativing a mental element regardless of the nature of the offence. This follows directly from the principle that a person cannot be convicted of a crime requiring proof of a particular mental element unless the jury is satisfied beyond reasonable doubt as to the existence of that element. Loss of self-control, however it is caused, is relevant to any inquiry concerning a person’s actual mental condition. The presumption that a person intends the natural and probable consequence of her or his actions is not part of Australian law. Therefore, evidence relevant to the defence of provocation may be tendered in support of a denial of a mental element.175 It should be said that evidence of a loss of self-control will not always help the accused. Indeed, a jury may well conclude that evidence of a loss of self-control tends to suggest the presence of the requisite mental element. 11.45 Where loss of self-control is complete, it may form the basis for negativing voluntariness, irrespective of the nature of the offence. While the accused may be conscious of what he or she is doing, his or her conduct may still be regarded as involuntary since lack of control comprises the essence of involuntariness in the criminal law: see 14.5. Provided the lack of control did not stem from a disease of the mind so as to attract the defence of insanity, the accused will receive an unqualified acquittal. 11.46 The preceding analysis suggests that, on a charge of murder, evidence of provocation may have a twofold function. It may provide a

foundation for a denial of intent or voluntariness; and, in the event that a positive finding is made by the jury with respect to those elements, it may, in the jurisdictions that retain the defence, operate as a factor capable of reducing murder to manslaughter. This, apparently, was the approach adopted by the trial judge in the New South Wales case of R v Smith (CCA(NSW), Street CJ, No 164/1981, 3 September 1981, unreported). Street CJ observed that the trial judge included a specific direction to the effect that provocation was to be taken into account in determining intent. A direction of that kind is consistent with the analysis suggested here. However, the jury should be clearly instructed that the presence of an intention to kill or cause grievous bodily harm is not fatal to a defence of provocation reducing murder to manslaughter. Were it so, the defence of provocation would rarely operate.

Provocation and assault offences under the Griffith Code 11.47 Under the Griffith Code, provocation may also provide a complete defence to assault offences.176 The relevant statutory provisions not only give effect to a complete defence to assault offences, but they also define provocation for the purpose of the defence of preventing a repetition of an act or insult [page 319] (see 11.41); and in Queensland, provocation, as statutorily defined, determines which, if either, of the self-defence provisions apply (see 10.10).177 Although there are some important differences, most of the elements of the complete defence are either expressly the same as those of the partial defence or the sections have been interpreted consistent with the partial defence of provocation.178 A threshold question is whether the offence charged ‘includes an assault’. The term ‘includes an assault’ has been interpreted narrowly. In Kaporonovski v R (1973) 133

CLR 209, the High Court by majority held that s 269 provides no defence to a charge under s 320 of unlawfully doing grievous bodily harm. The expression ‘offence of which an assault is an element’ in s 268 refers only to offences which by definition require an assault as a necessary element. It does not refer to offences which might include an assault as a factual ingredient, such as murder, manslaughter, unlawfully doing grievous bodily harm or causing death by dangerous driving. Thus, provocation was not available on a charge laid under s 320.179 As the definition contained in s 268 only applies to offences that have assault as an expressed element it has no application to the partial defence of provocation contained in s 304 which, as discussed above (see 11.3), is governed by the common law.180 The defences also state that when applying the force that constitutes the assault, the accused must not have intended to cause death or grievous bodily harm and the force used must not have been likely to have caused death or grievous bodily harm.181 The sections also state that the force used must not be disproportionate to the provocation. However, it is unnecessary to raise evidence of proportionality as the requirement has been absorbed by the ordinary person test. Proportionality is not, therefore, a separate element.182 The conduct capable of constituting provocation is defined by the sections as any wrongful act or insult,183 with the result that a wrongful act may constitute provocation but a lawful act will not. The Queensland Court of Appeal in R v Stevens [1989] 2 Qd R 386 construed the word ‘wrongful’ as qualifying both the act and the insult. The High Court in Stingel v R (1990) 171 CLR 312 at 322, disapproved of this view in relation to the Tasmanian Code provision [page 320] on the basis that the term ‘insult’ implies a degree of offensiveness without additionally requiring it to be described as wrongful. In Hart v R (2003) 139 A Crim R 520, the Western Australian Court of Criminal Appeal adopted this interpretation,184 and it is likely that the

Queensland courts will follow suit when the issue next presents itself. Whether conduct comes within the definition of a wrongful act or insult seems to be determined objectively rather than by how it is perceived by the accused. For example, in Doust v Meyer [2009] WASCA 65 the complainant, a lawyer, while outside the Magistrates Court, held up his hand to the appellant and in reference to his clients stated, ‘Leave these people alone’. Without reference to how the appellant perceived the conduct, the Western Australian Court of Appeal held that the complainant’s conduct was not a wrongful act or insult so as to constitute provocation.185 The Queensland and Western Australian courts have diverged on the meaning of the term ‘wrongful’. While the Queensland Court of Appeal in Stevens gave it a narrow construction, its Western Australian counterpart held in Roche v R [1988] WAR 278 that the term covers morally wrong and reprehensible conduct.186 The wrongful act or insult must be done to or offered to the accused or done to or offered, in the presence of the accused, to a person who comes within one of the identified relationships with the accused.187 The requirement that the provocation occur in the accused’s presence gives statutory effect to the hearsay rule (see 11.28).188 The hearsay rule does not exclude provocation in all cases where the act or insult is not viewed or heard by the accused. For example, in R v Major [2015] 2 Qd R 307, the appellant’s sister informed the appellant that the victim had grabbed her by the throat. The Court of Appeal held that the provocative conduct of grabbing the sister by the throat had occurred in the appellant’s presence as he was standing nearby when it occurred even though he did not see the incident. In reaching its conclusion, the Court of Appeal placed some importance on the fact that the victim was present when the sister informed the appellant of the assault, and was therefore less concerned that the loss of self-control was simply in response to a belief that the provocative conduct occurred.189 11.48 Consistent with the partial defence, the complete defences require the accused to have lost self-control in response to the provocation190 and the provocation must be such that an ordinary person would likely be deprived of

[page 321] self-control and be induced to assault the person who was responsible for the provocation.191 A notable difference between the complete defences and the partial defence is that the former requires the provocation to be likely to deprive the ordinary person of self-control while for the latter the provocation must be such that it could deprive the ordinary person of self-control. Although not expressly provided for in the Queensland and Western Australian Code provisions, it has been held that the issue relating to the gravity of the provocation is determined as it is in applying the partial defence of provocation (see 11.12). It has also been accepted that the only characteristic of the accused that can be attributed to the ordinary person is his or her age.192 In Doust v Meyer [2009] WASC 65, the ordinary person was a 56-year-old who was the same age as the appellant at the time of the offence.193 Consistent with the partial defence, the Queensland and Western Australian Code provisions also state that self-induced provocation is no provocation and that an arrest may be a provocative act if it is illegal and the illegality is known to the accused.194

Onus of proof 11.49 In each jurisdiction, except for Queensland, the onus of proof rests upon the prosecution to negative the partial defence of provocation beyond reasonable doubt.195 This onus may be discharged by: • disproving, to the criminal standard, the existence of provocative conduct; • showing that the intention to kill or cause grievous bodily harm arose independently of the provocation offered;196 • showing that the accused did not lose self-control;197 or • showing that the provocation, if it existed, was not sufficient to deprive an ordinary person of self-control to such an extent as to cause him or her to form an intention to kill or inflict grievous

bodily harm.198 In relation to the objective test, the question is not whether an ordinary person would have killed the deceased, but whether the ordinary person could (or might) have done so.199 To negate the proposition that an ordinary person placed in the same circumstances of the accused could have reacted in the manner of the accused, the jury must be satisfied beyond reasonable doubt that an ordinary [page 322] person would not have done what the accused did.200 The expression ‘might not’ has obvious deficiencies and should not be used. 11.50 If there is evidence capable of raising the defence, the trial judge must err on the side of caution and instruct the jury as to the relevance of provocation. However, the courts have acknowledged that it is notoriously difficult to explain to a jury that provocation is not an affirmative defence but something which the prosecution must negate. In Lindsay v R (2015) 255 CLR 272; [2015] HCA 16, the plurality stated:201 Dixon J pointed out in Packett that it may be open to entertain a reasonable doubt concerning provocation although it would be unreasonable to find affirmatively that provocation existed and was sufficient, a consideration which illustrates the need for caution before deciding to take the partial defence away from the jury. The need for that caution has particular force in a case where, as here, there was evidence capable of supporting the subjective limb of the partial defence.

One approach is for a judge to direct the jury that the prosecution must prove beyond reasonable doubt either that the accused did not lose selfcontrol or that an ordinary person could not have done so. Another is to tell the jury that they must not acquit the accused if there is a reasonable possibility both that the accused lost control and that an ordinary person might have done so.202 11.51 The onus of proof also rests upon the prosecution to negative the Griffith Code’s complete provocation defences beyond reasonable doubt.203 However, in 2011 the Queensland Parliament reversed the

onus of proof for the partial defence of provocation.204 The defence is now required to make out the partial defence on the balance of probabilities. Precisely what evidence will suffice to prove provocation remains unresolved. Where the probative burden of proof rests upon the defence, the practical effect in nearly every case is to require the defendant to give evidence in support of the affirmative defence. The point will be assumed against the defendant although it may in some cases be possible to identify some evidence in the prosecution case in support of the affirmative defence.

Function of judge and jury 11.52 As a preliminary matter, the trial judge has to decide as a question of law whether, on the version of events most favourable to the accused as suggested by the evidence, the jury might fail to be satisfied beyond a reasonable doubt that the killing was unprovoked.205 Only if the judge answers this question in the [page 323] affirmative might the defence be left to the jury.206 Whether or not provocation is relied on by the defence, the judge has a duty to leave the issue of provocation to the jury if, at the end of the trial, there is evidence suggesting that the killing may have occurred while the accused was deprived of self-control.207 Where there is evidence to support a finding that a killing may have been provoked, the trial judge has a duty to put the issue to the jury regardless of objections by the defence that to do so will damage the defences of self-defence or automatism relied upon by the accused.208 While the trial judge is empowered to decline to leave provocation to the jury because he or she regards the evidence as incapable of satisfying any of the essential elements of the defence, this power should be exercised with caution209 and not exercised to usurp the function of the jury. The judicial discretion to withdraw the defence has engendered considerable

criticism. As one commentator has remarked:210 Though few would challenge that the judge should be able to withdraw the defence from the jury where the only evidence of provocation is ‘utterly trivial’ for example that the accused was jostled in the street, judicial discretion may both represent a very questionable substitute for legal definition and be exercised to subvert the ‘real question’, ie that it should be for the jury to judge the accused by what it regards as reasonable.

11.53 What amounts to actual loss of self-control, and whether the accused had experienced it, are matters of fact for the jury. In particular, the judge must not direct the jury to regard proportionality of the force to the provocation offered when determining whether the accused had actually lost his or her power of self-control.211 Furthermore, it is for the jury, and not for the judge, to decide whether the provocation was sufficient to deprive an ordinary person of the power of self-control to the extent of forming a murderous intent and acting on that intent.212 In Lindsay v R (2015) 255 CLR 272, the plurality expressed the roles of the judge and jury in the following terms:213 Where provocation is raised by the evidence, the determination of whether it has been negatived is for the jury. Whether the subjective limb is negatived is a question of fact. Whether the objective limb is satisfied is a question of opinion or, to adopt Glanville Williams’ classification, it is a question of ‘evaluative fact’. The threshold question of law is whether there is material in the evidence which sufficiently raises the issue to leave the partial defence for the jury’s consideration.

The gendered nature of provocation 11.54 The most significant criticism of provocation is that it is gender biased in both nature and application. This criticism, above all others, has been the most [page 324] influential in the legislative abolition or reform of the defence. The issue of gender bias has therefore been extensively addressed both in academic commentary214 and by every major Australian law reform

inquiry into the defence.215 There are two central arguments to the gender bias criticism of the defence. First, the elements of the defence of provocation have developed in response to patterns of male aggression. Consequently, the defence operates primarily to excuse male anger and therefore women who kill find it difficult to successfully raise the defence. The Tasmanian Minister for Justice when introducing the Bill to abolish the defence, expressed the argument in the following terms:216 [T]he defence of provocation is gender biased and unjust. The suddenness element of the defence is more reflective of male patterns of aggressive behaviour. The defence was not designed for women and it is argued that it is not an appropriate defence for those who fall into the ‘battered women syndrome’. While Australian courts and laws have not been sensitive to this issue, it is better to abolish the defence than to try to make a fictitious attempt to distort its operation to accommodate the gender-behavioural differences.

As acknowledged by the former minister, many of the changes to the defence brought about by legislative intervention and the decisions of the courts have redressed this criticism. These include removing the requirements of suddenness and the need for a triggering incident, recognising cumulative provocation, and admitting expert evidence of battered person syndrome to inform juries of the heightened perception of danger and helplessness of oppressed individuals in a domestic relationship, the majority of whom are women.217 These changes enable the defence to operate in favour of battered persons whose anger had intensified rather than diminished with time. The changes also contextualise the provocative incident by reference to the history of long-standing physical, mental and emotional abuse suffered by the typically female defendant at the hands of [page 325] her batterer.218 The second and more compelling argument that provocation is a gendered defence is based on the very different circumstances that typify when men rely on the defence compared to when women typically rely on the defence.

11.55 Men typically lose self-control and kill out of anger. When the victim is their intimate partner the killing is in response to infidelity or a change to the relationship and is motivated by jealousy, a sense of inadequacy or a need to assert control. By contrast, women who kill in response to domestic violence typically do so after years of abuse and out of fear of the danger posed by their male abuser rather than through loss of self-control. As Graeme Coss states:219 If a man successfully claims provocation when he kills a woman who has rejected him, then that one instance is proof of gender-bias. Full stop. The success for women who kill (defending themselves) becomes irrelevant.

Recent legislative interventions in New South Wales and Queensland have to some extent addressed this criticism by limiting the circumstances in which an accused can rely on the defence in the context of a breakdown of or changes to a domestic relationship. Queensland has also introduced a new defence for victims of domestic abuse who kill their abuser.220 In New South Wales, only the commission of a serious indictable offence by the deceased is capable of constituting extreme provocation. Therefore, infidelity or action taken to change the nature of a relationship cannot provide the basis for the defence. However, physical or psychological abuses, which are the hallmarks of domestic abuse, may amount to a serious indictable offence (see 11.35). The 2011 Queensland amendment to the defence of provocation provides that anything done or believed to be done to end or change a domestic relationship or to indicate in any way that the relationship may, should or will end or change is not capable of constituting provocative conduct except in the most extreme and exceptional circumstances (see 11.35). In 2010, the Queensland Parliament also enacted a partial defence that reduces murder to manslaughter where the victim of an abusive domestic relationship kills his or her abuser.221 To raise the defence there must be evidence that the deceased committed serious domestic violence against the accused in the context of an abusive domestic relationship. The accused must have formed the belief that the act that caused death was necessary to save himself or herself from death or grievous bodily harm and the accused’s belief that it was necessary to take the relevant action must have been

held on reasonable grounds. In determining whether there were reasonable grounds for the belief, consideration must be given [page 326] to the character of the abusive relationship and to all the relevant circumstances.222 The partial defence is likely to have limited application as in most cases where the Crown is unable to exclude the partial defence the Crown will also be unable to exclude self-defence (see Chapter 10).223

Reforming the law 11.56 The arguments in favour of abolishing or reforming the defence of provocation have been fully canvassed in numerous reports.224 Three Australian jurisdictions have acted upon the arguments to abolish the defence while four jurisdictions have acted upon the arguments for reform. The Queensland Government has indicated its intention to further reform provocation so as to exclude non-violent sexual advances as a possible basis for the defence. South Australia is the only jurisdiction to retain the common law defence unaltered by legislation; however, the defence is currently the subject of an enquiry by the State Parliamentary Legislative Review Committee. A common argument advanced in favour of abolishing the defence is that, in the absence of mandatory sentencing for murder, evidence of provocation can be taken into account by a judge when sentencing.225 The argument supports putting the offence of murder on the same footing as other offences. Evidence of provocation is relevant to whether the mental element and voluntariness have been proven (see 11.4); however, it will only be in exceptionally rare circumstances that evidence of provocation will play a divisive role in determining whether either of these elements are established.226 More commonly, the primary function of provocation is as a sentencing consideration. Those jurisdictions that have abolished the partial defence of provocation all have some flexibility in terms of

the sentence that can be imposed for murder.227 However, to treat provocation as primarily a matter for judicial [page 327] discretion at the sentencing stage simply transfers consideration of the relevant evidence from one stage of the judicial process to another. In so doing, the judge in murder trials is deprived of the benefit of jury determination, and it invites further issues about the process of substantiating factors relevant to sentence. Deprived of the potential benefit of a manslaughter verdict, the accused may, as a matter of strategy, decline to provide evidence relevant to provocation, for fear that such evidence may self-incriminate. Such evidence, if led subsequently at the sentencing stage, may indicate a lack of remorse. On balance, there is considerable benefit in retaining jury evaluations of provocation rather than abdicating the matter exclusively to the trial judge.228 11.57 Of the various reforms implemented, the decision by the Queensland Government to reverse the onus of proof is the most regressive. The Queensland Law Reform Commission in its 2008 report presented a number of arguments in favour of reversing the onus of proof which individually and collectively are far from compelling.229 The commission argued that the reversal of the onus can be justified as all the elements of the offence of murder are established and provocation is a defence based on mitigation rather than a defence that negates an element of the offence. This argument is inconsistent with the plurality judgment in Lindsey v R (2015) 255 CLR 272 which justified provocation on the basis that it is a denial of the element of malice implicit in the act of murder (see 11.2). Furthermore, it ignores the fact that some complete defences such as self-defence are not based on the denial of an offence element and yet the onus of proof for those defences is not reversed. The commission also argued that the reversal can be justified on the basis that the prosecution will in many cases find it difficult to disprove provocation, as usually the only witness other

than the accused is dead. Again, this argument is not exclusive in its application to the defence of provocation and could apply to justify the reversal for other defences. Furthermore, the argument that the Crown faces difficulty in disproving provocation is not supported by the Queensland Attorney-General’s empirical research presented to the commission. The Attorney-General analysed 80 murder trials that occurred between the years 2002 and 2007. The partial defence was raised in 25 of those trials; however, in only four trials could the jury’s manslaughter conviction result from its acceptance of the defence of provocation.230 Further arguments advanced in favour of revering the onus are that it compels the defence to more clearly articulate its reliance on the partial defence and it enhances the trial judge’s gatekeeping role in preventing unmeritorious claims of provocation being left to the jury. These arguments ignore the relevance of evidence of provocation to the mental element of murder and to the proof of voluntariness. It is also unclear whether the change in proof requirement will result in trial judges taking a more interventionist approach. Finally, the commission justified the reversal of onus on the basis that the partial defence of provocation is strongly analogous to the [page 328] partial defence of diminished responsibility, the latter of which is subject to a reversal of onus. However, other law reform commissions have acknowledged that the two defences are significantly different. Diminished responsibility is typically established by reference to expert evidence whereas the defence of provocation is not based on such evidence.231 Furthermore, this argument in favour of reversing the onus of proof has, arguably, been undermined by the Queensland Government’s introduction of the new partial defence of killing for preservation in an abusive domestic relationship, which is not subject to a reversal of onus.232 It is strongly advocated by the authors of this work that other jurisdictions should not follow the Queensland lead and reverse the onus of proof for the partial defence of provocation.233

1. 2. 3.

4. 5.

6. 7. 8. 9.

10.

11. 12. 13.

14.

15.

16.

17. 18. 19.

Royley’s case (1612) Cro Jac 296; 79 ER 254; R v Mawgridge (1707) Kel J119; 84 ER 1107. Re Curtis (1756) Fost 137; 168 ER 67 at 68. See W Hawkins, A Treatise of the Pleas of the Crown, Elizabeth Nutt & R Gosling, London, 1716–21, Chs 30–32; E H East, Pleas of the Crown (1803 ed), Professional Books, London, 1972, p 232ff; Stephen, Digest of Criminal Law, 3rd ed, Macmillan, London, 1883, article 224. For the history of provocation, see Parker v R (1963) 111 CLR 610 at 626–8, 650–1; R v Smith (Morgan) (2000) UKHL 49. (1869) 11 Cox CC 336 at 338. In R v Shiers (2003) 7 VR 174; [2003] VSCA 179 at [25] the Victorian Court of Criminal Appeal said that the ‘defence of provocation is based on acceptance that situations can arise where, in consequence of the perceived provocative behaviour of another, even a person of ordinary firmness of mind and emotional self-control might lose that control and commit the otherwise extraordinary act of killing the person considered responsible’. Parker v R (1963) 111 CLR 610 at 630, 650–1. (2015) 255 CLR 272 at 278. The New South Wales positive restriction clause (see 11.22) also does not sit well with the justification for the defence. See Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas); Crimes (Homicide) Act 2005 (Vic) s 3B; Criminal Law Amendment (Homicide) Act 2008 (WA) s 12. The defence is, however, currently the subject of a parliamentary review: see Parliament of South Australia, Interim Report of the Review of the Report of the Legislative Review Committee into the Partial Defence of Provocation: Second Session, 2016. See R v Herlihy [1956] St R Qd 18; R v Johnson [1964] Qd R 1; R v Pangilinan [2001] 1 Qd R 56; Pollock v R (2010) 242 CLR 233. See Criminal Code and Other Legislation Amendment Act 2011 (Qld) s 5. See Crimes Act 1900 (ACT) s 13. The statutory defence differs from the common law in that it includes two exclusion clauses and states that the accused need not be present when the provocative conduct occurs. See Criminal Code (NT) s 158. Like the Australian Capital Territory defence, the Northern Territory defence includes two exclusion clauses and states that the accused need not be present when the provocative conduct occurs. However, it departs further from the common law in that the jury is not required to consider the impact of the provocation from the accused’s perspective. See Crimes Act 1900 (NSW) s 23. Prior to the amendments introduced in the Crimes Amendment (Provocation) Act 2014 (NSW), the defence was almost identical to the current Australian Capital Territory defence. Consistent with the Australian Capital Territory and Northern Territory defences, the recently enacted defence of extreme provocation also states that the accused need not be present when the provocative conduct occurs. In most jurisdictions, serious injury is referred to as grievous bodily harm; see, for example, the Crimes Act 1900 (NSW) s 33; Criminal Code (Qld) s 317; Criminal Code (Tas) s 170. Criminal Code (Qld) ss 268, 269; Criminal Code 1913 (WA) ss 245, 246. See 11.42. The fact that the opening words of the provision on provocation in the Crimes Acts of New South Wales and the Australian Capital Territory refer to the ‘trial’ of a person for murder does not confine the issue of provocation exclusively to the trial: see Crimes Act

20. 21.

22. 23.

24.

25. 26. 27. 28.

29.

30. 31. 32.

33.

34.

1900 (ACT) s 13; Crimes Act 1900 (NSW) s 23. Provocation may be explored as a pre-trial issue relevant to the charging or committing of a person for manslaughter: Kolalich v Director of Public Prosecutions (NSW) (1991) 57 A Crim R 237. Crimes Act 1900 (NSW) s 19A; Crimes Act 1958 (Vic) s 3. Each case must, of course, be looked at in terms of its own special circumstances. See Wicks v R (1989) 3 WAR 372; 44 A Crim R 147 (killing in a drunken frenzy without intention to kill or cause grievous bodily harm may produce a less harsh sentence than intentional killing under provocation). See also R v Hoang Van Truang (1987) 35 A Crim R 57; R v Monreal (1984) 16 A Crim R 361; R v Stevens [1989] 1 Qd R 386; (1989) 41 A Crim R 60. See Crimes Act 1900 (ACT) s 13(4)(c); Crimes Act 1900 (NSW) s 23(6); Criminal Code (NT) s 158(6)(c). Parker v R (1963) 111 CLR 610 at 630 per Dixon CJ; at 659 per Windeyer J. At that time, s 23(2)(c) of the Crimes Act 1900 (NSW) stated ‘[t]hat the act causing death was done suddenly, in the heat of passion caused by such provocation, without intent to take life’. Criminal Code 2002 (ACT) s 13(2)(a); Crimes Act 1900 (NSW) s 23 (2)(c); Criminal Code (NT) s 158(2)(a). The United Kingdom Law Commission in 2004 recommended reforming the defence by abolishing the loss of self-control requirement and instead focusing on the nature of the provocative act. The recommendation was rejected: see Coroners and Justices Act 2009 (UK) s 54(1). The New South Wales Parliament Select Committee on the Partial Defence of Provocation, in its recent report on provocation, also recommended that the element of loss of self-control be removed (see The Partial Defence of Provocation, 2013, [7.73]–[7.78], [9.15]–[9.20]); however, that recommendation was also rejected. (2010) 242 CLR 233 at 241. Van den Hoek v R (1986) 161 CLR 158 at 176; Masciantonio v R (1995) 183 CLR 58 at 68. (1990) 54 A Crim R 42 at 48. R v Chhay (1994) 72 A Crim R 1 at 9; R v Hajistassi (2010) 107 SASR 67 at [99]–[102], where Kourakis J addressed scientific studies into the part of the brain that is responsible for inhibition and self-control. See A Reilly, ‘Loss of Self-Control in Provocation’ (1997) 21 Criminal Law Journal 320. See R v Croft (1981) 3 A Crim R 307 at 321 per O’Brien J, and discussed in S Yeo, Unrestrained Killings and the Law; A Comparative Analysis of the Laws of Provocation and Excessive Self-Defence in India, England and Australia, Oxford University Press, New Delhi, 1998, pp 48–9. (1994) 72 A Crim R 1 at 11. (1994) 72 A Crim R 1 at 11; R v Ahluwalia [1992] 4 All ER 889; R v Thornton [1992] 1 All ER 306; Attorney-General’s Reference (No 1 of 1992) (1993) 67 A Crim A 415. R v Hayward (1833) 6 Car and P157; 172 ER 1188; R v Lynch (1832) 5 Car and P 324; 172 ER 995; R v Kirkham (1837) 8 Car and P 115; 173 ER 422; R v Eagle (1862) 2 F and F 827; 175 ER 1305. In Johnson v R (1976) 136 CLR 619 at 634, Barwick CJ noted that the importance of the fatal act having been done in the heat of passion is related not only to the issue of premeditation but also to the application of the objective test. G Orchard, ‘Provocation — The Subjective Element’ (1987) New Zealand Law Journal 77 at 78, citing Mancini v DPP [1942] AC 1; B Brown, ‘The Subjective Element in Provocation’ (1959) 1 University of Malaya Law Review 288 at 290–1. R v Thomas (1837) 7 Car and P 817; 73 ER 356; Barton v R [1977] 1 NZLR 95; R v Letenock (1917) 12 Cr App R 221; R v Cooke (1985) 39 SASR 225; Censori v R [1983]

35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48.

49.

50. 51. 52.

53.

54.

WAR 89; (1983) 13 A Crim R 263. However, the defence is denied if the loss of selfcontrol was the result of intoxication rather than provocation: see R v Perks (1986) 41 SASR 335 at 340–4 per White J. Osland v R (1998) 197 CLR 316. R v Curzon (2000) 1 VR 416; 114 A Crim R 472. Crimes Act 1900 (NSW) s 23(5). Parker v R (1963) 111 CLR 610 at 630. See also R v Chhay (1994) 72 A Crim R 1. (2010) 242 CLR 233 at 251. (2010) 242 CLR 233 at 250. Crimes Act 1900 (ACT) s 13(4)(b); Crimes Act 1900 (NSW) s 23(4); Criminal Code (NT) s 158(6)(b). R v Chhay (1994) 72 A Crim R 1 at 13; Masciantonio v R (1995) 183 CLR 80. Pollock v R (2010) 242 CLR 233 at 250. Masciantonio v R (1995) 183 CLR 58 at 66. The High Court states that its pronouncements on the ordinary person test in this case are equally pertinent to the common law. (1990) 171 CLR 312 at 327. South Australia: R v Fry (1992) 58 SASR 424; 63 A Crim R 263. Queensland: R v Buttigieg (1993) 69 A Crim R 21; R v Pangilinan [2001] 1 Qd R 56; R v Vidler (2000) 110 A Crim R 77; but compare R v Seminara (2002) 128 A Crim R 567, which distinguished the concept of the ordinary person in the law of provocation from the one found in the plea of accident under Criminal Code (Qld) s 23(1)(b). The test also applied in New South Wales prior to the recent amendments: see Green v R (1997) 191 CLR 334; and in Victoria and Western Australia prior to the abolition of the defence: see Masciantonio v R (1995) 183 CLR 58; Hart v R (2003) 139 A Crim R 520. Stingel v R (1990) 171 CLR 312 at 326; Lindsay v R (2015) 255 CLR 272 at 284. See also R v Mankotia (2001) 120 A Crim R 492; Abebe v Director of Public Prosecutions (2000) 114 A Crim R 398; Verhoeven v Ninyette (1998) 101 A Crim R 24. (2015) 255 CLR 272 at 287. R v Mungatopi (1991) 2 NTLR 1; 57 A Crim R 341; Jabarula v Poore (1989) 68 NTR 26; 42 A Crim R 479; Doolan v Edgington (1999) 110 A Crim R 19. Masciantonio v R (1995) 183 CLR 58 at 66–70; R v Mankotia (2001) 120 A Crim R 492; R v Miller [2009] QCA 11 at [53]. See also I Leader-Elliott, ‘Sex, Race and Provocation: In Defence of Stingel’ (1996) 20 Criminal Law Journal 72; S Bronitt, ‘Cultural Blindness: Criminal law in Multicultural Australia’ (1996) 21 Alternative Law Journal 58; S Yeo, ‘Sex, Ethnicity, Power of Self-Control and Provocation Revisited’ (1996) 18 Sydney Law Review 304. R v Croft [1981] 1 NSWLR 126; R v Baraghith (1991) 54 A Crim R 240; Moffa v R (1977) 138 CLR 601 at 625–6 per Murphy J; R v Romano (1984) 36 SASR 283 at 287; 14 A Crim R 168; R v Dutton (1979) 21 SASR 356; R v Griffin (1980) 23 SASR 264; R v Webb (1977) 16 SASR 309; R v Dincer [1983] 1 VR 460; Bedelph v R (1980) 1 A Crim R 445; Jeffrey v R [1982] Tas R 199; 7 A Crim R 55; Hodge v R (1984) 13 A Crim R 458 at 465; R v O’Neill [1982] VR 150; R v Newell (1980) 71 Cr App R 331; Director of Public Prosecutions v Camplin [1978] AC 705; [1978] 2 All ER 168; R v McCarthy [1954] 2 QB 105; Mancini [1942] AC 1; R v Lesbini [1914] 3 KB 1116. (1977) 138 CLR 601 at 626. The reasoning of his Honour was adopted by the Irish Court of Appeal in The People v MacEoin (1978) 112 ILTR 53, where the objective test was

55.

56. 57. 58. 59. 60.

61. 62. 63. 64.

65. 66.

67. 68. 69. 70.

71. 72. 73. 74.

abandoned. See also Straker (1977) 15 ALR 103 at 116 per Murphy J. See The Criminal Law and Penal Methods Reform Committee of South Australia, Fourth Report, The Substantive Criminal Law, 1977; Victorian Law Reform Commission, Provocation and Diminished Responsibility as Defences to Murder, Report No 12, 1982. Subsequently, the Victorian Law Reform Commission, Defences to Homicide Final Report, 2004, at [2.92]–[2.103] recommended that the defence be abolished. It also seems unlikely that the pending review of provocation in South Australia would recommend a purely subjective test: see Parliament of South Australia, Legislative Review Committee Review into the Partial Defence of Provocation, 2014. Crimes Act 1900 (NSW) s 23(2); Criminal Code (NT) s 158(2). [2016] NSWCCA 109 at [17]. [1942] AC 1 at 9 per Viscount Simon LC. Johnson v R (1976) 136 CLR 619. Crimes Act 1900 (ACT) s 13(4)(a). See also Criminal Code (NT) s 158(6)(a). The New South Wales defence was identical to that of the Australian Capital Territory prior to it being replaced by the partial defence of extreme provocation by the Crimes Amendment (Provocation) Act 2014 (NSW). Under the new defence only the commission of a serious indictable offence is capable of satisfying the requirement of extreme provocation. Therefore, there will inevitably be some degree of proportionality between the provocative conduct and the response. Crimes Act 1900 (ACT) s 14 (4)(b)–(c); Criminal Code (NT) s 158(6)(b)–(c) is serious harm, not grievous bodily harm. Crimes Act 1900 (ACT) s 13(2)(b), which also includes reckless indifference to the probability of causing death; Criminal Code (NT) s 158(2)(b). Holmes v DPP [1946] AC 588 at 597; and approved in Moffa v R (1977) 138 CLR 601 at 613; Stingel v R (1990) 171 CLR 312 at 325. Masciantonio v R (1995) 183 CLR 58 at 70 per Brennan, Deane, Dawson and Gaudron JJ. In support of this ruling, the majority relied on a statement by Barwick CJ in Johnson v R (1976) 136 CLR 619 at 639 that ‘it is the induced intent to kill rather than the induced fatal act which is the critical consideration’. McHugh J alone (at 611) gave unqualified support to the Holmes ruling. (2010) 242 CLR 233 at 251; Lindsay v R (2015) 255 CLR 272 at 278. Crimes Act 1900 (ACT) s 13(2)(b); Crimes Act 1900 (NSW) 23(2)(d); Criminal Code (NT) s 158(2)(b). The Australian Capital Territory provision additionally covers reckless indifference to the probability of causing the deceased’s death. Yeo, above n 29, p 111. J F Stephen, A History of the Criminal Law of England, vol III, 1883, Macmillan, London, p 171. Clarke [1991] Crim LR 383. R v Parsons [2000] VSCA 15; (2000) 1 VR 161 at 166–7, where Brooking JA said that ‘to hold that provocation arose in this case would be to encourage savagery at the expense of civilised behaviour’. R v R (1981) 28 SASR 321 at 327 per King CJ. Zecevic v DPP (Vic) (1987) 162 CLR 645; Lawson v R (1985) 18 A Crim R 360; Fry v R (1992) 58 SASR 424. But see Stevens v R [1989] 2 Qd R 386; 41 A Crim R 60. R v Scriva (No 2) [1951] VLR 298 at 305. For the contrary position, see R v R (1981) 28

75. 76. 77.

78. 79. 80. 81. 82. 83. 84. 85.

86. 87. 88. 89. 90. 91. 92. 93. 94. 95.

96.

SASR 321 at 339, where Zelling J, in dissent, stated that if provocative conduct need not be unlawful then a lawful arrest could be the basis for the defence. Fry v R (1992) 58 SASR 424 at 443, 445. R v R (1981) 28 SASR 321 at 327, 339 per Zelling J, who did not confine his comment to lawful arrests but to all types of lawful acts. Crimes Act 1900 (ACT) s 13(2)(a); Criminal Code (NT) s 158(3). The provisions do not indicate whether the common law exception of excluding a lawful arrest from constituting provocation also applies. Section 1 of the Criminal Code (NT) states: ‘wrongful act and like terms mean an act that is wrong by the ordinary standards of the community, a lawful act may be a wrongful act, but any act expressly declared to be lawful cannot be a wrongful act’. However, the Northern Territory provocation provision does not use the term ’wrongful act’ or any like term. Crimes Act 1900 (NSW) s 23(2)(b). Crimes Act 1900 (NSW) s 4. See Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13. [2016] NSWCCA 109 at [15]. For example, Parker v R (1963) 111 CLR 610 at 630; R v Jeffrey [1967] VR 467 at 484; Pollock v R (2010) 242 CLR 233 at 240–1, 247. R v R (1981) 4 A Crim R 127 at 178. Crimes Act 1900 (ACT) s 13(2); Crimes Act 1900 (NSW) s 23(4); Criminal Code (NT) s 158(4). Crimes Act 1900 (ACT) s 13(2). Prior to the recent amendments, the New South Wales provision was in the same terms. The current provision has the same effect but simply states that the provocative conduct need not have occurred immediately before the victim was killed. R v Chhay (1994) 72 A Crim R 1 at 13–14 per Gleeson CJ. See R O’Regan, ‘Indirect Provocation and Misdirected Retaliation’ (1968) Criminal Law Review 319. Mawgridge (1707) Kel J 119; 84 ER 1107; Harrington (1866) 10 Cox CC 370. But see Allen (1867) 17 LT(NS) 222; Mouers (1920) 57 DLR 569. Crimes Act 1900 (ACT) s 13(2)(a); Crimes Act 1900 (NSW) s 23(2)(a); Criminal Code (NT) s 158(2)(a). See R v Duffy [1949] 1 All ER 932; Simpson (1915) 11 Cr App R 218; R v Scriva (No 2) [1951] VLR 298. R v Kenney [1983] 2 VR 470 at 473; R v Tumanako (1992) 64 A Crim R 149 at 155; R v Peisley (1990) 54 A Crim R 42 at 50. R v Dimond (2000) 118 A Crim R 188. R v Tumanako (1992) 64 A Crim R 149 at 155. See R v Gardner (1989) 42 A Crim R 279. V1 was sleeping in a bedroom adjacent to V2, who was alleged to have taunted D with, among other things, claims that she (V2) had engaged in sexual activities with V1. See also Roche v R [1988] WAR 278; (1987) 29 A Crim R 168; R v Pangilinan [2001] 1 Qd R 56 at 65. R v Kenney [1983] 2 VR 470 at 472 per Brooking J; Brown (1776) 1 Leach 148; 168 ER 177; R v Gross (1913) 23 Cox CC 455; R v Porritt [1961] 3 All ER 463. See also East, above n 3, p 245 and the cases cited. Whether this is so under the Griffith Code, however, may be doubted: see Criminal Code (Qld) s 302; Criminal Code (WA) s 279. Where the accused intends to kill, it is immaterial that he or she did not intend to hurt the particular

97. 98.

99.

100. 101. 102.

103. 104. 105. 106.

107.

108. 109. 110. 111. 112. 113. 114. 115. 116. 117. 118.

119. 120.

person who is killed. Crimes Act 1900 (ACT) s 13; Crimes Act 1900 (NSW) s 23; Criminal Code (NT) s 158. R v Arden [1975] VR 449; R v Terry [1964] VR 248. For arguments for and against the rule, see New South Wales Parliament Select Committee, above n 24, at 6.137–6.145. See R v Major [2015] 2 Qd R 307 at 314–15, where the rule is questioned, at least in its application to certain statutory defences. R v Fisher (1837) 8 C & P 182, quoted in R v Terry [1964] VR 248 at 249. This position does not sit well with the common law’s acceptance that words may constitute provocation. R v R (1981) 28 SASR 321 at 323–5 per King CJ. Crimes Act 1900 (ACT) s 13(2)(a); Crimes Act 1900 (NSW) s 23(2)(a); Criminal Code (NT) s 158(2)(a), (3). [2013] NSWCCA 27 at [43]. The court’s statements are in reference to s 23 prior to its recent amendments; however, the relevant parts of the section were expressed in identical terms to the current provision. R v Newman [1948] VLR 61 at 66; R v Allwood (1975) 18 A Crim R 120. Crimes Act 1900 (NSW) s 23(3)(b). Crimes Act 1900 (ACT) s 13(2)(a); Criminal Code (NT) s 158(2)(a). R v Radford (1985) 20 A Crim R 388 at 401; R v Allwood (1975) 18 A Crim R 120 at 133; R v Yasso (No 2) (2004) 148 A Crim R 369 at [43] and [49]; R v Hartwick (2005) 159 A Crim R 1 at 57. Compare R v Voukelatos [1990] VR 1 at 19 which regarded Edwards as a case involving seeking, as opposed to risking, the provocation. Moffa v R (1977) 138 CLR 601; R v Webb (1977) 16 SASR 309; R v Dutton (1979) 21 SASR 356; R v R (1981) 4 A Crim R 168 at 131 per King CJ; DPP v Leonboyer (1999) 109 A Crim R 168; Lindsay v R (2015) 255 CLR 272 at 279–80. See also R v Lee (1999) NSWCCA 301 at [37] where, in reference to the now repealed defence of provocation in New South Wales, it was accepted that words alone could be that bases of provocation. [1946] AC 588 at 600. (1977) 138 CLR 601 at 605 per Barwick CJ, 617 per Gibbs J (in dissent), 620 per Mason J. (1977) 138 CLR 601 at 605. (1977) 138 CLR 601 at 610. (1977) 138 CLR 601 at 620. Verhoeven v Ninyette (1998) 101 A Crim R 24 at 30–1 per Wheeler J. See also R v Machin (No 2) (1997) 69 SASR 403. See R v Buttigieg (1993) 69 A Crim R 21 at 37. See R v Kumar (2002) 5 VR 193 at 259–63, 283–4. See R v Dutton (1979) SASR 356 at 357, 376; R v R (1981) 4 A Crim R 127 at 131; Pollock v R (2010) 242 CLR 233 at 242. See Moffa v R (1977) 138 CLR 601 at 621. In Queensland, a sudden confession of adultery may, depending on the facts, be subject to 304(3)(c). of the Criminal Code (Qld), which states that except in extreme and exceptional circumstances, provocation cannot be in response to anything done or believed to have been done to end or change a domestic relationship or to indicate in any way that the relationship may, should or will end or change. Crimes Amendment (Provocation) Act 2014 (NSW) Sch 1. Criminal Code and Other Legislation Amendment Act 2011 (Qld) s 5. As stated at 11.35,

121. 122. 123. 124. 125. 126.

127.

128.

129. 130. 131. 132. 133.

134. 135. 136.

the extreme and exceptional character qualifier also applies to anything done or believed to have been done to end or change a domestic relationship or to indicate in any way that the relationship may, should or will end or change. Criminal Code (Qld) s 304(6). The subsection simply restates the more general principle that provocative conduct is not considered in isolation (see 11.23). See R v Auberson [1996] QCA 321; R v Schubling; Ex parte A-G [2004] QCA 318; R v Sebo; Ex parte A-G [2007] QCA 425. As is common with circumstances involving a breakdown of a relationship, it was also alleged that the deceased engaged in acts of violence. Crimes Act 1900 (ACT) s 13(2)(a); Criminal Code (NT) s 158(3). See, for example, R v Lukins (1902) 19 WN (NSW) 9. See New South Wales Attorney-General’s Department, Discussion Paper, Review of the ‘Homosexual Advance Defence”, Sydney, 1996; A Howe, ‘More Folk Provoke Their Own Demise (Homophobic Violence and Sexed Excuses — Rejoining the Provocation Law Debate, Courtesy of the Homosexual Advance Defence)’ (1997) 19 Sydney Law Review 336; N Hodge, ‘Transgressive Sexualities and the Homosexual Advance’ (1998) 23(1) Alternative Law Journal 20 (which discuss the 13 New South Wales cases heard between 1993 and 1998 in which unwanted homosexual advances were alleged). The decision was concerned with the New South Wales statutory defence of provocation which has subsequently been repealed and replaced with the defence of extreme provocation. (1997) 191 CLR 334 at 346 per Brennan CJ, at 357–9 per Toohey J, at 370–2 per McHugh J; in dissent, Gummow J (at 380) and Kirby J (at 414–16) also found that the trial judge incorrectly excluded the evidence, but their Honours held that there was no risk of a miscarriage of justice. (1997) 191 CLR 334 at 345–6. See also R Bradfield, ‘Green v The Queen’ (1998) 22 Criminal Law Journal 296. (2015) 255 CLR 272 at 284. The plurality judgment and Nettle J at 300 emphasised that there was more to the provocation than a non-violent sexual advance by the deceased. (2015) 255 CLR 272 at 249; R v Fisher (1837) 9 C & P 182 at 185. Note that these statements were made at a time when consensual homosexual acts were a criminal offence. New South Wales Attorney-General’s Department, above n 126, para 57. (1997) 191 CLR 334 at 408. See, further, S De-Pasquale, ‘Provocation and the Homosexual Advance Defence: The Deployment of Culture as a Defence Strategy’ (2002) 26 Melbourne University Law Review 110; J Sewell, ‘”I just bashed somebody up. Don’t worry about it Mum, he’s only a poof”: The “Homosexual Advance Defence” and Discursive Constructions of the “Gay” Victim’ (2001) 5 Southern Cross University Law Review 47. Crimes Act 1900 (ACT) s 13(3); Criminal Code (NT) s 158(5). See the background document that accompanied the Draft Crimes Amendment (Provocation) Bill 2013 (NSW). Victorian Law Reform Commission, 2004, above n 55, at xxv, xxviii, 56; Law Reform Commission of Western Australia, Review of the Laws of Homicide: Final Report, 2007, p 214. See also the New South Wales Parliament Select Committee, above n 24, at 19–21; G Coss, ‘Provocation, Law Reform and the Medea Syndrome’ (2004) 28 Criminal Law Journal 133; G Coss, The Defence of Provocation: An Acrimonious Divorce from Reality’ (2006–07) 18 Current Issues in Criminal Justice 51.

137. (2002) 6 VR 239 at 243–4. For cases where men have killed in the context of a relationship breakdown, see, for example, R v Sebo; Ex parte Attorney-General (Qld) (2007) 179 A Crim R 24; R v Schubring [2004] QCA 418; R v Auberson [1996] QCA 321; R v Ramage [2004] VSC 508; R v Butay [2001] VSC 417; R v Hamoui [2005] NSWSC 279. 138. Criminal Code (Qld) s 304(3). Section 304(6) of the code states that when determining whether the circumstances were the most extreme and exceptional in character the jury may have regard to any relevant history of violence. The New South Wales Parliament Select Committee, above n 24, at 6.119 expressed support for a domestic context exclusion clause modeled on the Queensland approach. 139. In the United Kingdom, the partial defence of provocation has been replaced by the partial defence of ‘loss of self-control’: see Coroners and Justice Act 2009 (UK) ss 54, 55. 140. [2013] QB 1 at [34]–[44]. 141. [2013] QB 1 at [39]. 142. Criminal Code (Qld) s 24. 143. See Jabarula v Poore (1989) 68 NTR 26; 42 A Crim R 479 at 485 per Kearney J, and affirmed in Shearn v Rowbottam [2003] NTSC 78 at [19] per Riley J. 144. Criminal Code (NT) s 43AW. 145. R v Dib (2002) 134 A Crim R 329 at 338. 146. (1963) 111 CLR 610 at 653, and approved of in Green v R (1997) 191 CLR 334 at 402–3 per Kirby J. 147. Low’s decision is consistent with Stephen J’s approach in Veen v R (1979) 143 CLR 458. See also R McKay, ‘Pleading Provocation and Diminished Responsibility Together’ (1988) Criminal Law Review 411 at 417. 148. (1997) 90 A Crim R 587 at 591. 149. Johnson v R (1976) 136 CLR 619; R v Fry (1992) 58 SASR 424. 150. Crimes Act 1900 (NSW) s 18(1). 151. R v Major [2015] 2 Qd R 307 at 313; [2013] QCA 114. 152. R v Major [2015] 2 Qd R 307 at 309 per Fraser JA; [2013] QCA 114. 153. R v Johnstone [2003] QCA 559. 154. R v Major [2015] 2 Qd R 307 at 312; [2013] QCA 114. 155. R v Major [2015] 2 Qd R 307 at 308, 311–12; [2013] QCA 114; R v Sleep [1966] Qd R 47 at 54; R v Prow [1990] 1 Qd R 64 at 75. 156. In the Western Australian context, this may seem anomalous given the abolition of the partial defence of provocation: see 11.3. There is, however, an important distinction between provocation as an excuse for murder, and an unintentional death caused by the lawful application of force to restrain provocative conduct. 157. For example, some offences under Criminal Code (Qld) s 317; Criminal Code (WA) s 294. For further consideration of s 270 in the context of non-fatal assaults, see Shaw v Dunham [2014] QDC 44. 158. Although historically the provocation defence set out in s 246 of the Criminal Code (WA) only applied to non-fatal offences, it probably also applies to the recently enacted offence of unlawful assault causing death. 159. R v Thompson (1825) 1 Mood 80; 168 ER 1193; R v Bourne (1831) 5 Car and P 120; ER 903: R v Thomas (1837) 7 Car and P 816; 173 ER 356; R v Patience (1837) 7 Car and P 775; 173 ER 338; R v Hagan (1837) 8 Car and P 167; 173 ER 445. 160. R v Patience (1837) 7 Car and P 775; 173 ER 338; R v Hagan (1837) 8 Car and P 167; 173 ER 445; R v Beeson (1835) 7 Car and P 142; 173 ER 63.

161. Malicious Shooting or Stabbing Act (1803) 43 Geo 3 c 58; (1828) 9 Geo IV c 31, s 12. 162. R v Bourne (1831) 5 Car and P 120; 172 ER 903; R v Patience (1837) 7 Car and P 775; ER 338; R v Hagan (1837) 8 Car and P 167; 173 ER 445. 163. Compare Stephen, above n 68, pp 114–15. 164. 24 and 25 Vict 100. 165. However, the ‘truth in sentence’ philosophy, which defines life imprisonment as imprisonment for the term of the prisoner’s natural life, may reverse this trend: Crimes Act 1900 (NSW) s 19A(2). 166. R v Cunningham [1959] 1 QB 288. 167. R v Bruzas [1972] Crim LR 367. 168. Roche v R [1988] WAR 278; (1987) 29 A Crim R 168. 169. McGhee v R (1995) 183 CLR 82. 170. Criminal Law Consolidation Act 1935 (SA) s 270AB. See also R v Duvivier (1982) 29 SASR 217; R v Wells (1981) 28 SASR 63; 3 A Crim R 453. 171. R v Wells (1981) 28 SASR 63; 3 A Crim R 453; R v Duvivier (1982) 29 SASR 217; 5 A Crim R 89. 172. Section 344A(2) of the Crimes Act 1900 (NSW) provides that ‘[w]here a person is convicted of an attempt to commit an offence and the offence concerned is a serious indictable offence the person shall be deemed to have been convicted of a serious indictable offence’. 173. D O’Connor and P Fairall, Criminal Defences, 2nd ed, Butterworths, Sydney, 1988, p 201. 174. R v Pearce (1983) 9 A Crim R 146; R v Campbell (1984) 12 A Crim R 272; R v Reynolds (1983) 10 A Crim R 30. 175. See also Hawkins v R (1994) 179 CLR 500, which held that evidence relevant to a defence (insanity) can be relied on to negate a mental element. 176. Criminal Code (Qld) ss 268, 269; Criminal Code (WA) ss 245, 246. Previously the sections were described as applying to non-fatal assault offences; however, the Western Australian provisions probably apply to the recently enacted offence of assault causing death: Criminal Code (WA) s 281. 177. R v Prow [1990] 1 Qd R 64 at 86, 88; R v Dean [2009] QCA 304 at [25]; R v Major [2015] 2 Qd R 307. Where self-defence for an unprovoked assault is relied on it is not always necessary that the jury be directed as to the meaning of the term ‘provocation’ as defined by s 268 of the Criminal Code (Qld). See also R v Crothers [2010] QCA 334 at [223]–[224]. 178. The definition of provocation as expressed in s 245 of the Criminal Code (WA) applied to both the complete defence and to the partial defence of provocation as it existed prior to its abolition. By contrast, s 268 of the Criminal Code (Qld) is confined in its application to offences of which assault is an element. Accordingly, in relation to a murder charge under Queensland law, the meaning of provocation is to be found in the common law as it is expounded from time to time. 179. Similarly, Criminal Code (Qld) ss 268 and 269 have no relevance to a charge of unlawful wounding with intent to do grievous bodily harm (s 317(1)); or unlawful wounding (s 323(1)): R v Williams [1971] Qd R 414. 180. R v Herlihy [1956] St R Qd 18; R v Young [1957] St R Qd 599; R v Johnson [1964] Qd R 1; R v Callope [1965] Qd R 456. 181. Criminal Code (Qld) s 269(1); Criminal Code (WA) s 246. 182. Hart v R (2003) 27 WAR 441 at [67]; Doust v Meyer [2009] WASCA 56 at [80].

183. Criminal Code (Qld) s 268(1); Criminal Code (WA) s 245. 184. Hart v R (2003) 139 A Crim R 520 at 530 per Steytler J; Doust v Meyer [2009] WASCA 65 at [66]. 185. [2009] WASCA 65 at [68]. 186. See also R v Williams (1996) 15 WAR 559. 187. The sections identify the relevant relationships as where the person is under the immediate care of the accused or where the accused and the person share a conjugal, parental, filial or fraternal relationship: see Criminal Code (Qld) s 268(1); Criminal Code (WA) s 245. 188. Tough v Kay (1996) 87 A Crim R 278 at 282. 189. [2015] 2 Qd R 307 at 315. Contrast the decision in Major with the criminal injury compensation case of McDavitt v McDavitt [2013] WADC 22, where it was held that the provocative insults were not in the appellant’s presence, even though the appellant heard the insults, as she was inside the house and the respondent was in the backyard when he uttered the insults. 190. In Doust v Meyer [2009] WASC 65 at [77] the court held that one of the reasons the defence was not available was because the appellant had lost self-control prior to the complainant committing the conduct that was allegedly provocative. 191. See Hart v R (2003) 27 WAR 441 at [49]; R v AAP (2013) 1 Qd R 344 at 247–8; Doust v Meyer [2009] WASC 65 at [70]–[76]. 192. In Rodrigues v Ainsworth [2014] WASC 101 at [31], it was held that the trial judge in reference to the objective element incorrectly referred to the ‘powers of self-control of a bouncer who is required to maintain equilibrium and good grace in the face of difficult circumstances’. 193. [2009] WASC 65 at [77]. 194. Criminal Code (Qld) s 268(4)–(5). 195. Moffa v R (1977) 138 CLR 601 at 609 per Barwick CJ; Van Den Hoek v R (1986) 161 CLR 158; Masciantonio v R (1995) 183 CLR 58; Stingel v R (1990) 171 CLR 312. See also Crimes Act 1900 (NSW) s 23(4). 196. Parker v R (1964) 111 CLR 665 at 681–2. 197. Masciantonio v R (1995) 183 CLR 58. 198. Johnson v R (1976) 136 CLR 619 at 641. 199. R v Dincer [1983] 1 VR 460 at 466–8; R v Palazoff (1986) 43 SASR 99 at 108; Masciantonio v R (1995) 183 CLR 58 at 67. 200. R v Thorpe (No 2) [1999] 2 VR 719 at 724; R v Shiers (2003) 7 VR 174; [2003] VSCA 179 at [30]. 201. (2015) 255 CLR 272 at 237; [2015] HCA 16 at [38]. 202. See R v Anderson (1997) 94 A Crim R 335. 203. Hart v R (2003) 27 WAR 441 at 459; R v Major [2015] 2 Qd R 307 at 312. 204. Criminal Code and Other Legislation Amendment Act 2011 (Qld) s 5(7). 205. Stingel v R (1990) 171 CLR 312 at 334; Masciantonio v R (1995) 183 CLR 58 at 67–8; Lindsay v R (2015) 255 CLR 272 at 283. The recent amendments to the partial defence of provocation in Queensland have the effect that the judge has to decide as a question of law whether, on the version of events most favourable to the accused as suggested by the evidence, the jury might fail to be satisfied on the balance of probabilities that the killing was provoked. 206. Stingel v R (1990) 171 CLR 312 at 334; Masciantonio v R (1995) 183 CLR 58 at 67–8; R v Tuncay [1998] 2 VR 19. 207. Da Costa v R (1968) 118 CLR 186 at 214 per Owen J, citing Holmes v DPP [1946] AC

208. 209. 210. 211. 212. 213. 214.

215.

216. 217.

218.

219.

220. 221. 222. 223.

488 at 597 per Viscount Simon; R v Pangilinan [2001] 1 Qd R 56. R v Thorpe [1999] 1 VR 326; (1998) 102 A Crim R 278; [1998] VSCA 13. Parker v R (1963) 111 CLR 610 at 616 per Dixon CJ; Stingel v R (1990) 171 CLR 312 at 334; R v Parsons [2000] 1 VR 161 at 164; R v Bikic (2000) 112 A Crim R 300. S Prevezer, ‘Criminal Homicides other than Murder’ (1980) Criminal Law Review 530 at 536–7. R v Petroff (1980) 2 A Crim R 101 at 132. Johnson v R (1976) 136 CLR 619 at 644; R v Telford (1996) 86 A Crim R 427. (2015) 255 CLR 272 at 279. See C Forell, ‘Gender Equality, Social Values and Provocation Law in the United States, Canada and Australia’ (2006) 14 American University Journal of Gender, Social Policy and the Law 27; D Tyson, ‘“Asking for it”: an Anatomy of Provocation’ (1999) 13 Australian Feminist Law Journal 66; A Howe ‘Reforming Provocation (More or Less)’ (1999) 12 Australian Feminist Law Journal 127 at 130; B Hocking, ‘Limited (and Gendered?) Concessions to Human Frailty: Frightened Women, Angry Men and the Law of Provocation’ (1999) 6 Psychiatry, Psychology and Law 57 at 58; G Coss, ‘Provocation, Law Reform and the Medea Syndrome’ (2004) 28 Criminal Law Journal 133; J Morgan, ‘Provocation Law and Facts: Dead women tell no tales, tales are told about them’ (1997) 21 Melbourne University Law Review 237 at 255. See Victorian Law Reform Commission, 2004, above n 55, pp 27–30; Law Reform Commission of Western Australia, above n 136, pp 214–16; Queensland Law Reform Commission, A Review of the Excuse of Accident and the Defence of Provocation, 2008, pp 337–48; New South Wales Parliament Select Committee, above n 24, pp 33–45; Parliament of South Australia, above n 55, pp 27–8. Tasmania, House of Assembly, Parliamentary Debates, 20 March 2003, 60 (Judy Jackson, Minister for Justice). Runjanjic and Kontinnen (1991) 56 SASR 114; 53 A Crim R 362, and affirmed in Osland v R (1998) 197 CLR 316. Victims of domestic abuse include males in heterosexual and homosexual relationships and children; however, numerically it is typically women who are subject to such abuse. See G Mackenzie and E Colvin, Homicide in Abusive Relationships: A Report on Defences, prepared for the Attorney- General and Minister for Industrial Relations, 2009, at 2.2–2.5. The Victorian Law Reform Commission, 2004, above n 55, at p 28 argues that notwithstanding changes in the law, women still face difficulty in successfully raising the defence. However, empirical research suggests that women are more likely to successfully raise the defence than are men: see Judicial Commission of New South Wales, Research Monograph 28 — Partial Defences to Murder 1990– 2004, 2006, pp 42–5. Coss, 2004, above n 136, at 136. See also Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, ‘Chapter 5: Fatal Offences Against the Person’ in Discussion Paper, Draft Model Criminal Code, 1998, p 91; Victorian Law Reform Commission, 2004, above n 55, pp 29–30; Law Reform Commission of Western Australia, above n 136, pp 214–16. Criminal Code (Qld) s 304B. Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Act 2010 (Qld) s 3. Criminal Code (Qld) s 304B. H Douglas, ‘A Consideration of the Merits of Specialised Homicide Offences and Defences

224.

225. 226. 227.

228. 229. 230. 231. 232. 233.

for Battered Women’ (2012) 45(3) Australian & New Zealand Journal of Criminology 367 at 375–7. The partial defence has been raised in only two decisions that have resulted in a jury verdict and in both cases the accused was acquitted on the basis of self-defence. See Model Criminal Code Officers Committee of the Standing Committee of AttorneysGeneral, above n 219, pp 87–101; Victorian Law Reform Commission, 2004, above n 55, pp 27–30; Law Reform Commission of Western Australia, above n 136, pp 214–16; which favour abolition of the defence. See also Queensland Law Reform Commission, above n 215, pp 468–500; New South Wales Parliament Select Committee, above n 24, Chs 4, 5; Parliament of South Australia, above n 10, pp 27–44; which favour the reforming the defence. Victorian Law Reform Commission, 2004, above n 55, pp 33; Law Reform Commission of Western Australia, above n 136, pp 216–17. The relevance of the partial defence of provocation is predicated on the Crown establishing both the mental element and voluntariness. Of the abolitionist jurisdictions, Western Australia has the most restrictive sentencing laws for murder. It abolished mandatory sentencing for murder and replaced it with a presumptive life sentence which must be imposed unless such a sentence would be clearly unjust in the circumstances, in which case the person is liable to imprisonment for 20 years and must receive a sentence of at least 15 years if the killing occurred in the course of a home invasion. If the court determines that a life sentence is clearly unjust, it must give written reasons why life imprisonment is not being imposed: see Criminal Code (WA) s 279(4), (6). New Zealand has also abolished the defence of provocation and has a presumptive life imprisonment sentence for murder: see Sentencing Act 2002 (NZ) s 102. See F Stewart and A Freiberg, ‘Provocation in Sentencing: A Culpability-Based Framework’ (2008) 19(3) Current Issues in Criminal Justice 283. Queensland Law Reform Commission, above n 215, pp 491–7. Department of Justice and Attorney General, Discussion Paper Audit of Defences of Homicide: Accident and Provocation, October 2007. New South Wales Law Reform Commission, Partial Defences to Murder: Diminished Responsibility, Report 82, 1997, at 3.107–3.108. Criminal Code (Qld) s 304B. See New South Wales Parliament Select Committee, above n 24, at 8.67–8.101, where the committee addresses the arguments for and against a reversal of onus and concludes by refusing to recommend a reversal of onus of proof in the absence of a wider review of the potential impact of such a measure on other aspects of the criminal law.

[page 329]

12 Intoxication Introduction 12.1 The law relating to intoxication varies significantly between Australian jurisdictions, and this is a source of great confusion for the transnational criminal lawyer.1 There are four separate sets of rules: • the modern common law as contained in the leading decision of the High Court in R v O’Connor (1980) 146 CLR 64 and applied in Victoria: see 12.7; • the position under the Griffith Code and in New South Wales2 and South Australia3 (modelled in substance on the modern English common law as expounded by the House of Lords in Director of Public Prosecutions v Majewski [1977] AC 443; [1975] 3 All ER 2964); • the rules contained in the Criminal Codes of the Commonwealth, the Australian Capital Territory and Tasmania (see 12.14); and • the idiosyncratic rules contained in the Northern Territory Criminal Code (not including the provisions in Pt IIAA of the Criminal Code (NT) (see 12.7)). In all states except Victoria the common law has been replaced by statutory provisions designed to negate or modify the O’Connor decision. For example, South Australia has by legislation substantially restricted the application of the common law, at least in relation to selfinduced intoxication: see 12.16.

[page 330] 12.2 From a broad perspective, there are two contrasting views when it comes to the relevance of intoxication to criminal responsibility. One proceeds from the generality of the principles of mens rea and actus reus; the other pursues a policy of containment that seeks to limit the exculpatory force of intoxication to certain (usually serious) crimes. In general, it is true to assert that legislative provisions relating to intoxication are aimed at limiting its exculpatory force. The first view regards intoxication as an altered state of mind which is morally neutral such that an accused’s intoxication is a factor to be considered when determining whether he or she possessed the mens rea of a particular offence, or had performed the actus reus, or had met the requirements of a particular defence.5 Conversely, the second view holds people who commit crimes under the influence of self-induced intoxication as morally accountable, and criminally responsible for becoming dangerously intoxicated.6 The ensuing discussion categorises and discusses the law according to these two views. 12.3 Self-induced intoxication is not of itself a defence to a criminal charge in any jurisdiction.7 Indeed, evidence of intoxication may be extremely damaging to the defence by providing a basis for an inference of intent or motive which would otherwise be difficult to draw, alcohol being a well-known disinhibitor.8 As Murphy J, in O’Connor, noted:9 The inferences to be drawn from intoxication are not all one way: evidence of intoxication may result in absence of proof beyond reasonable doubt of mens rea, or in a more ready acceptance that mens rea exists on the supposition that intoxication reduces inhibitions.

Intoxication may be relevant to a conduct element of the offence charged, such as a given state of intoxication or, more generally, negligence. In the former case, drunkenness is the gist of the offence and forms part of the actus reus.10 In the latter case, a state of self-induced intoxication may point to a culpable lack of care. For tactical reasons, defence counsel may therefore wish to play down or diminish the importance of intoxication.

12.4 Nevertheless, evidence of self-induced intoxication may have exculpatory force. There are three discrete purposes for which evidence of self-induced intoxication may be relied upon at a criminal trial: (1) as a basis for negating a mental element such as intention; (2) as a basis for negating voluntariness; and (3) as relevant to some element of a criminal defence. [page 331] The relevance of self-induced intoxication at a criminal trial may encompass one or more of the above purposes.11 Moreover, evidence of non-self-induced intoxication may, in some jurisdictions, be allowed as a complete defence.12 For completeness, we note that evidence of intoxication may be relevant to sentence.13

Intoxication as a basis for negating intention 12.5 In all jurisdictions, evidence of intoxication (whether selfinduced or not) may be relied upon as raising a reasonable doubt as to the existence of intention. This applies to a limited range of offences, identified at common law as specific intent offences and under the Griffith Code as offences that include an element of intent to cause a specific result. There are, of course, many offences which do not require proof of intent, and the relevance, if any, of evidence of intoxication to such offences has been and continues to be problematic both at common law and under the Code: see 12.10. In all jurisdictions, except for Tasmania, evidence of partial or complete intoxication is taken into account when determining whether the accused actually had the requisite intent; it is not a question of whether the accused lacked the capacity to form the intent. The Criminal Code 1924 (Tas), by contrast, is concerned with complete intoxication such as to deny the accused the capacity to form intent.14 The Tasmanian provision is modelled on the common law as

expressed by Lord Birkenhead in Director of Public Prosecutions v Beard [1920] AC 479; [1920] All ER 21:15 That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.

12.6 In Director of Public Prosecutions v Majewski [1977] AC 443; [1975] 3 All ER 296, the House of Lords reaffirmed the specific intent rule.16 Evidence of [page 332] self-induced intoxication (whether by alcohol or drugs) could be taken into account by the jury in deciding whether the accused actually formed a specific intent.17 Such evidence could not be considered for the purpose of raising a reasonable doubt with respect to the intention to do the act constituting the offence (so-called basic or general intent). For good measure, their Lordships added that evidence of self-induced intoxication could negate voluntariness only if the crime charged was a specific intent offence. Therefore, self-induced intoxication leading to automatism would not be a defence to a charge of basic intent offences such as assault or manslaughter.18

O’Connor and the Australian common law 12.7 Until 1980, Australian courts mostly applied the exclusionary Majewski rule to non-specific intent crimes. In the Code states, the rule applied by virtue of the Codes. Victorian practice appears to have been different, allowing evidence of intoxication to be considered regardless of the nature of the offence.19 In 1980, the High Court considered the matter in O’Connor, on appeal from the Supreme Court of Victoria. The High Court approved the Victorian cases and disapproved Majewski.20 In a majority decision,21 the court held that evidence of self-induced intoxication may be used to negative mens rea and voluntariness whenever intent and voluntariness are constituent

elements of the offence charged, provided that the evidence is ‘capable’ of raising a reasonable doubt as to either of these essential elements. Barwick CJ stated:22 [E]vidence of the state of the body and mind of an accused tendered to assist in raising a doubt as to the voluntary character of the physical act involved in the crime charged is admissible on the trial of an accused for any criminal offence, whether an offence at common law or by statute. Further, in my opinion, such evidence tendered to raise a doubt as to the actual intention with which the physical act involved in the crime charged, if done, was done, is admissible on the trial of an accused for any offence, whether at common law or by statute, with the exception of such statutory offences as do not require the existence of an actual intent, the so-called absolute offences.

[page 333] Barwick CJ did not find it necessary to consider the relationship between self-induced intoxication and recklessness, and specifically rejected the notion that self-induced intoxication was a species of recklessness sufficient to ground liability for any non-specific intent crime. Furthermore, the majority in O’Connor held that evidence of intoxication may be used to negate recklessness, since actual foresight of consequences is required for recklessness.23 The majority ruling in O’Connor initially governed the law of intoxication in all common law states and territories. Subsequent legislative intervention (see 12.10–12.16) means that in relation to self-induced intoxication it applies only in Victoria and Tasmania, the latter only in relation to summary offences where there is no parallel offence under the Criminal Code (Tas).24 The O’Connor approach has also been legislatively adopted in the Northern Territory; however, it only applies to offences governed by Pt II of the Criminal Code (NT).25 The Northern Territory Code does not expressly state that intoxication may negative the mental element of a crime. However, the mental element is emphasised in s 2 as crucial to the committing of an offence, and s 31(1) of Pt II identifies the general mental element that applies to all offences. The section states that a person is excused from criminal responsibility for an act, omission or event unless it was intended or foreseen by him or her as a possible consequence of his or her conduct. Subject to the two

evidentiary presumptions in s 7, intoxication is taken into account when considering whether the Crown has established that the act, omission or even was intended or foreseen.26 12.8 In O’Connor, the judgments of the majority contain a sustained critique of Majewski. Three important points emerge. First, the distinction between specific and nonspecific intent (also called ‘basic’ or ‘ulterior’ intent) was illogical and in many cases difficult to apply.27 To take one example, an attempt was necessarily a crime of specific intent because the prosecution had to prove that the purpose of the attempt was to consummate a criminal deed.28 This was so even though the completed crime might be a crime of basic intent. It was absurd that intoxication [page 334] could provide a defence for the attempt but not for the full crime. Moreover, the identification of non-specific intent crimes was not clearcut;29 for example, identifying the status of crimes such as rape and arson has proven to be difficult.30 Second, the majority rejected the argument that an accused’s selfinduced intoxication can be regarded as a species of mens rea. Two variants of this theory were considered: the recklessness theory and the moral blame theory. The notion that mens rea in the form of recklessness could itself be inferred from the fact of self-induced intoxication so that, far from being inadmissible, such evidence might be led by the prosecution, was unacceptable to the majority and could not be justified on grounds of policy. Recklessness required indifference to foreseen consequences. The recklessness or ‘wantonness’ involved in a person becoming intoxicated was legally remote from the performance of the act charged as a crime. Under Majewski, the jury would not be asked to determine whether the accused actually foresaw the possibility of harm resulting from excessive alcohol or drug consumption.31 Similarly, the moral blame theory was flawed. It said that the mind of a

person affected by self-induced intoxication was ‘as wrongful as’ that of a person who foresees and intends the natural consequences of his or her acts. This was a dangerous move into objective fault and could not be justified. Barwick CJ held that although an accused cannot be punished for an offence in circumstances where elements of the offence cannot be established due to evidence of intoxication, his Honour went on to state that it would make good sense to punish such individuals for an offence of allowing himself or herself to get intoxicated to the point of not being responsible for his or her acts. It is the responsibility of parliament, and not the courts, to give effect to such an offence of becoming dangerously intoxicated.32 Third, Majewski could be seen as a policy decision of doubtful utility which was inconsistent with important principles of criminal responsibility. There was no evidence that people would be deterred from becoming intoxicated by the knowledge that their state of intoxication could not be relied on if they committed a crime of basic intent. Stephen J, for the majority in O’Connor, noted that protection from violent crime was not achieved by drawing an arbitrary distinction which led to the rejection of basic principles of criminal liability and did not:33 [page 335] … reflect or give effect to any coherent attitude either as to the relative wrongfulness of particular conduct or the degree of social mischief which that conduct is thought to involve …

Furthermore, there was no evidence to suggest that social order would be compromised by juries being too willing to acquit based on evidence of self-induced intoxication. Barwick CJ stated:34 In my opinion, properly instructed jurors would be scrupulous and not indulgent in deciding an issue of voluntariness or of intention. Indeed, I am inclined to think that they may tend to think that an accused who had taken alcohol and particularly other drugs to the point of extreme intoxication had brought on himself what flowed from that state of intoxication.

12.9

The decision in O’Connor may be derived from two basic

principles of the criminal law. The first is that the burden of establishing beyond reasonable doubt each essential element of the crime charged (including the necessary mens rea and voluntariness) rests upon the prosecution.35 The second is that the persuasive burden carried by the prosecution cannot be discharged by relying on an irrebuttable presumption that a person intends the natural and probable consequences of her or his action.36 These rules taken together imply that evidence of a state of intoxication (whether or not self-induced) should be taken into account by the jury in reaching a state of satisfaction beyond reasonable doubt that the accused acted voluntarily (in the sense that his or her act was willed) and with the mens rea required by the charge. The jury is entitled to draw such inferences from the evidence of intoxication as appear proper in the circumstances.37 Intent or other mental states required for a particular offence should be determined by reference to all available information pertaining to the actual state of the accused’s mind. The exclusion of non-specific intent crimes obviously violates this rule.

Statutory formulations 12.10 Up until recently, the impact of O’Connor on the Code states has been minimal.38 Courts in Queensland39 and Western Australia40 have specifically rejected O’Connor as an authority under the respective Codes, although with some expressions of regret in the latter case.41 Section 28(3) of the Griffith Code states:42 [page 336] When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.

The significant implication from s 28 is said to be an exclusionary one — the section is described as ‘covering the field’ as to the exculpatory force of intoxication.43 According to this rule, evidence of intoxication is only relevant if it comes within the terms of s 28. Pursuant to s 28(3)

where the offence does not require proof of an intention to cause a specific result, evidence of intoxication is irrelevant to guilt. (For the defence of involuntary intoxication (s 28(1)), see 12.32; for comorbidity (s 28(2)), see 12.44–12.47.) Under this rule, on a charge of wounding, which does not require proof of a subjective fault element,44 evidence of intoxication is irrelevant;45 but on a charge of stealing, evidence of intoxication is relevant to the mental element of intention to permanently deprive.46 While evidence of intoxication is relevant to offences such as stealing, murder and intending to cause grievous bodily harm, identifying the exact scope of s 28(3) has proven problematic. One possible interpretation of s 28(3) is to limit the relevance of evidence of intoxication to offences which expressly include an element of intent to cause a specific result.47 Although support for this approach can be found in the wording of s 23(2) of the Griffith Code48 and from the court’s interpretation of analogous phrases,49 it is not an approach that has gained judicial support. Section 28(3) could alternatively be interpreted as adopting the common law distinction between basic and specific intent offences. On this basis, the words an ‘intention to cause a specific result is an element of an offence’ would be synonymous with the common law classification of specific intent offences. While some judges have adopted the common law terminology of specific intent in reference to s 28(3),50 principles of code interpretation make it difficult to justify adopting the common [page 337] law concept.51 Furthermore some offences such as rape are classified as specific intent offences at common law but under the Codes the same offences do not come within the terms of s 28(3).52 The third approach, which is supported by recent Queensland Court of Appeal decisions, is that evidence of intoxication is relevant to any offence which either includes intent as an expressed element or which has been held to include intent as an element.53

12.11 In R v Hayes [2008] QCA 371, the appellant was convicted of several offences including ‘wilfully’ setting fire to a house.54 The Queensland Code does not define the term ‘wilful’ but it is held to mean that the accused either intended the consequence or he or she foresaw the likely consequence and proceeded regardless.55 McMurdo P took the view that s 28(3) applies to arson even though the offences makes no specific reference to an intent to cause a specific result being an element.56 McMurdo P stated that if the Crown’s case is based on the accused intending the consequence then intoxication is relevant in deciding whether the fault element of wilful has been established.57 However, pursuant to s 28(3), evidence of intoxication is irrelevant if the Crown’s case is based on the accused having foreseen the consequence and preceded regardless. In R v George [2013] 2 Qd R 150, the Court of Appeal adopted a similar approach in respect to the offence of constructive murder. Under the Griffith Code, constructive murder is established by proof that the accused killed the victim in circumstances where the accused’s lethal act was done in the pursuit of an unlawful purpose and the act was of such a nature as to be likely to endanger human life.58 In George, the Court of Appeal held, first, that the term ‘unlawful purpose’ was synonymous with criminal offence;59 and, second, where the criminal offence particularised as being pursued includes an element of intent, evidence of intoxication is relevant as to whether that intent existed.60 On the facts, the Crown case was that the victim had died at the [page 338] hands of the appellant while the appellant was committing burglary. The offence of burglary is established by proof that the accused entered the dwelling with the intent to commit an indictable offence; therefore, the trial judge incorrectly failed to instruct the jury as to the relevance of intoxication. On the basis of the third approach, evidence of intoxication is not only relevant to offences where intent is an expressed element but also to all party offences,61 conspiracy charges and,

depending on the prosecution’s case, offences that prescribe wilfulness as the fault element. However, s 28(3) has no application to offences that do not have a subjective fault element or where the subjective fault element is knowledge or belief.62 An undesirable outcome of this third approach is that the relevance of intoxication to constructive murder or to offences that have wilfulness as the fault element will depend on how the prosecution particularises its case. For example, s 28(3) could have been excluded on facts similar to those in Hayes had the prosecution proceeded on the basis that the accused foresaw the likelihood of setting fire to the house; and s 28(3) could have been excluded on facts similar to those in George by the prosecutor particularising a non-intent offence such as rape as the unlawful purpose. In such cases, it is unsatisfactory that the relevance, or otherwise, of intoxication depends on how the prosecution exercises its discretion. 12.12 Although s 28 has been described as ‘covering the field’ as to the relevance of evidence of intoxication, a number of recent decisions seem to challenge the exclusionary nature of the section and in so doing have moved the law away from the strict adherence to the Majewskitype approach. In R v Eustance [2009] QCA 28, the Court of Appeal, without reference to s 28 of the Code, ruled that evidence of intoxication is relevant when determining whether the accused wilfully set fire to a house. Although the prosecution had based its case on the accused having intentionally set fire to the house, the court’s decision does not seem to be limited to the particularised basis for establishing wilfulness. The court stated that it was (emphasis added):63 … unable to conclude beyond reasonable doubt that the appellant, in his inebriated and drug-affected state, foresaw the likely consequences of his conduct.

The decision is arguably consistent with the earlier decision of R v Box [2001] QCA 272. In that case one of the grounds of appeal concerned the trial judge’s failure to direct the jury as to the relevance of intoxication to the proof of an aider’s knowledge or awareness of the principal’s intent. McMurdo P stated:64 It is self-evident that ‘knowledge’ is subjective and in determining each appellant’s knowledge the jury would of course consider all relevant facts found by them, including each appellant’s state of intoxication; …

[page 339] Dutney J, with whom Moynihan J agreed, reached the same conclusion. His Honour stated that a trial judge is not required to direct the jury as to the relevance of intoxication because ‘[t]he effect of intoxication on awareness is a matter of common experience and well within the ordinary knowledge of a jury’.65 If these decisions are followed, evidence of intoxication would be relevant to proof of any subjective fault element; however, a trial judge would not be required to direct a jury on the significance of intoxication unless the offence is one that comes within the terms of s 28(3). However, even though a trial judge is not required to direct a jury as to the relevance of intoxication to subjective fault elements other than intent, a jury’s decision will be overturned if, due to evidence of intoxication, the appellant court finds that there was insufficient evidence that the accused acted with the requisite mental state. On this approach the significance of evidence of intoxication to proof of subjective fault would be broadly consistent with the approach taken in Tasmania and under the model Criminal Code (see 12.13–12.14). 12.13 The Tasmanian courts have also refused to follow O’Connor.66 The Tasmanian approach is similar to the Griffith Code approach, with two important distinctions. First, the Tasmanian courts have unambiguously determined that evidence of intoxication is relevant to offences that include a mental element of knowledge. The Tasmanian Court of Criminal Appeal in Attorney-General’s Reference No 1 of 1996; Re Weiderman (1998) 7 Tas R 293; 99 A Crim R 386 ruled that s 17 of the Criminal Code (Tas), which provides that intoxication is only admissible to disprove specific intent, does not ‘cover the field.’ The majority of the court ruled that the trial judge correctly directed the jury that evidence of intoxication was relevant in determining whether the accused knew that his act was likely to cause death as prescribed by the first limb of s 157(1)(c).67 Consequently, evidence of intoxication may be admitted in respect of a broader range of mens rea offences than that contemplated by Majewski.68 Second, unlike the position in

Queensland and Western Australia, s 17(2) of the Code states that the jury must decide whether, due to intoxication, the accused did not have the capacity to form the specific intent: see 12.5. However, the question of capacity is not relevant to mental elements other than specific intent. For example, if knowledge is the relevant mental element, the jury must consider whether evidence of intoxication, whether partial or complete, prevented the Crown from proving that the accused knew of the relevant facts.69 [page 340] 12.14 The Commonwealth Code, the Australian Capital Territory Code and the Northern Territory Code as it applies to Sch 1 offences are also closely akin to the Majewski ruling, although similar to the Tasmania Code and possibly the Griffith Code, evidence of intoxication has a somewhat wider application. The relevant provisions specify that evidence of self-induced intoxication cannot be considered in determining whether basic intent existed.70 The provisions define ‘basic intent’ as an intention to commit the physical element where the physical element consists only of conduct.71 Although the Codes do not expressly use the term ‘specific intent’, that concept may be deduced from the reference to basic intent in the provisions. Hence, under the Codes, evidence of intoxication, whether or not self-induced, can be considered when determining a mental state of intent, knowledge or recklessness relating to an incriminating circumstance or consequence. 12.15 The law in New South Wales followed O’Connor until it was replaced in 1996 by Pt 11A of the Crimes Act 1900 (NSW).72 The legislation adopts the Majewski approach of categorising crimes into offences of specific intent and all other offences (which are termed basic intent offences under Majewski but are not so described in Pt 11A). Offences of specific intent are defined in s 428B(1) as offences which include an intent to cause a specific result is an element. Section 428B(2) includes a non-exhaustive list of specific intent offences such as murder and assault with intent to have sexual intercourse.73 Section 428C

stipulates that evidence of intoxication, whether self-induced or not, may be taken into account in determining whether the accused had the intention to cause the specific result. Section 428C goes on to provide that only intoxication that is not self-induced is relevant in respect of the mens rea of any other kind of offence. For example, rape, under the Crimes Act, is a basic intent offence; therefore, evidence of involuntary but not voluntary intoxication is relevant as to whether an accused knowingly or recklessly had sexual intercourse without consent.74 Classifying subjective fault offences as basic intent offences is inconsistent with principles of criminal responsibility. The inconsistency is well-illustrated by Berman DCJ’s statement in reference to the fault element of rape:75 [page 341] It follows that the jury must perform a rather artificial exercise. They must take the accused as he was, except they must pretend — and I use the word ‘pretend’ after consideration — that the accused was perfectly sober.

In the New South Wales Court of Criminal Appeal case of R v Grant (2002) 131 A Crim R 523, the prosecution contended that murder by reckless indifference under s 18 of the Crimes Act 1900 (NSW) is not a specific ‘intent offence’, with the result that s 428C did not apply. The prosecution’s case was that the provision was confined to the ‘intent to kill or to inflict grievous bodily harm’ forms of mens rea for murder under s 18 of the Act. The court rejected this contention on the ground that s 428B classifies murder, without qualification, as an offence of ‘specific intent’. Consequently, it held that the form of felony murder prescribed in s 18 was also subject to s 428C.76 The court also observed that the ruling by Lord Birkenhead LC in Director of Public Prosecutions v Beard (1920) AC 479,77 upon which Majewski was premised, was that malice aforethought constituted ‘specific intent’. The learned Lord Chancellor did not say that intent to kill or to inflict grievous bodily harm (the only two forms of murder recognised under English common law) constituted such intent.

12.16 The law in South Australia was amended in 2004 to abolish the so-called ‘drunk’s defence’.78 The South Australian provision is consistent with the approach taken in the model Criminal Codes. Evidence of self-induced intoxication cannot be relied on to challenge the presumption that the accused’s conduct was voluntary and intentional.79 With the exception of the offence of rape, evidence of selfinduced intoxication is relevant to offences which require proof that the accused foresaw the consequences of his or her conduct or the accused was aware of the surrounding circumstances to his or her conduct.80 Although the Act does not use the terms basic and specific intent, the South Australian legislation is similar in effect to the Majewski approach.

Intoxication as a denial of voluntariness 12.17 Voluntariness is a basic requisite of criminal responsibility at common law and under the Codes. In the High Court case of Ryan v R (1967) 121 CLR 205, Barwick CJ stated that where voluntariness is not conceded and the evidence provides a substantial basis for doubting voluntariness, the jury’s attention must be specifically drawn to the necessity of finding voluntariness beyond reasonable doubt.81 If the act was involuntary and there was no question of insanity, the accused would be entitled to a complete acquittal. The meaning of the term [page 342] ‘voluntary or willed act’82 was addressed by Mason CJ, Brennan and McHugh JJ in R v Falconer (1990) 171 CLR 30, where their Honours stated:83 The notion of ‘will’ imports a consciousness in the actor of the nature of the act and a chose to do an act of that nature.

An act is involuntary if the mind does not direct the body to act. For example, an involuntary act includes a spastic movement, a reflex

action resulting from a painful stimulus, a movement that occurs when a person is in an automatistic state or a movement that occurs because the person slips, falls or is pushed. A number of state and territory decisions have extended the range of involuntary acts beyond those where the mind was not directing the body to act. An act is also involuntary if the accused did not know the nature of the conduct in which he or she engaged. The cases involve charges of wounding or homicide in circumstances where the accused injures or kills the victim while holding a glass or knife.84 The courts in such cases regard a blow with a fist or hand as different in nature to that of a glass or knife. Therefore, to establish that the act was voluntary the Crown must prove that the accused was aware that he or she was holding the glass or knife.85 The South Australian Court of Criminal Appeal in R v Bond [2009] SASC 256 was not willing to extend the principle to an accused who knew he was holding a hard object but, due to the effects of intoxication, may not have been aware that it was a pair of scissors. The court correctly held that a blow with a pair of scissors could not be distinguished from a blow with a hard object.86

Common law: intoxication and voluntariness 12.18 O’Connor confirms the common law position that evidence of intoxication (whether self-induced or not) may support a denial of voluntariness, whether or not the crime charged requires proof of a specific intent.87 As stated above, the O’Connor position only applies in Victoria, to summary offences with no Code equivalent in Tasmania88 and to the offences that are subject to Pt II of the Criminal Code (NT).89 Where the crime charged requires proof of a specific intent, there is probably no need for a separate direction dealing with intoxication and voluntariness. It will usually suffice to direct the jury in relation to intoxication and specific intent:90 [page 343] If intent is proved, voluntariness is proved ipso facto … In all such cases a direction as to

the effect of alcohol on the existence of volition is unnecessary and could well confuse the jury.

Conversely, if intent is not proved, a verdict of not guilty results irrespective of voluntariness. 12.19 However, when dealing with non-specific intent crimes, the jury must be told how to relate evidence of intoxication to basic intent and voluntariness. Basic intent is the bare intention to commit the conduct involved in the crime charged, without reference to the consequences or results of the act. For example, on a charge of unlawful wounding, the intention to use the knife is a basic intent. Basic intent has been described, like voluntariness, as indispensable for criminal liability.91 12.20 In some cases, a distinction has been drawn between total and partial intoxication. The former refers to severe intoxication causing total incapacity to perform any criminal act, while the latter refers to lesser states of intoxication.92 Evidence of total intoxication is clearly relevant to voluntariness. Partial intoxication may also be relevant to voluntariness.93 The effect of partial intoxication may be one of several discrete factors (eg, epilepsy, concussion, or nervous shock) put forward by way of explanation for the accused’s involuntary conduct. Such factors should be viewed collectively and not in isolation. The jury should be directed to take into account any evidence of intoxication (whether partial or total) in deciding whether the act was willed. Evidence of partial intoxication is also relevant to the extended meaning of involuntariness addressed above (see 12.17). The accused may be aware that he or she is striking the victim but, due to partial or complete intoxication, unaware that he or she is holding a knife or glass.94 In such cases, the jury should be directed to take into account evidence of intoxication when deciding whether the accused knew that he or she was holding a glass, knife or some other hard object.95 A statement to the effect that total intoxication is relevant to voluntariness and partial intoxication is relevant to specific intent is specious and liable to confuse. Moreover, when dealing with a non-specific intent crime, it is a serious error to ignore the effect of partial intoxication upon basic intent. Failure to direct upon basic intent may wrongly

suggest to the jury that the only relevance of intoxication is to volition.96 [page 344] 12.21 In summary, where the crime requires proof of a specific intent, the jury should not be troubled with the difficult distinction between intention and volition. They should be asked to decide whether, in the light of all the evidence, including the evidence of intoxication (whether partial or total), the accused had the necessary intention. Where no specific intent is required, intoxication may be raised in relation to voluntariness and basic intent, and a separate direction is called for in either case, especially where the accused relies upon partial intoxication.97 Ultimately, the question for the jury is whether they are satisfied beyond reasonable doubt that the accused acted voluntarily and with the intent required by the definition of the crime.

Statute: intoxication and voluntariness 12.22 The Griffith Code, the Tasmanian Code and the model Criminal Codes enshrine the principle that a person is not criminally responsible for an involuntary act.98 However, self-induced intoxication provides an exception to the rule. While the state Codes do not say so explicitly, the rule has been judicially endorsed in these jurisdictions.99 It has been held that evidence of self-induced intoxication cannot provide a foundation for a plea of involuntariness.100 12.23 In Snow v R [1962] Tas SR 271, a majority of the Tasmanian Court of Appeal ruled that self-induced intoxication is irrelevant insofar as s 13(1) of the Criminal Code (Tas) is concerned.101 Crawford J dissented,102 stating that evidence of self-induced intoxication might, in rare cases, be relevant to the question of whether the accused’s acts were voluntary and intentional. He instanced the case of R v Egan (1897) 23 VLR 159, in which the accused rolled over in her drunken sleep and suffocated the child sleeping next to her. She was acquitted of

manslaughter. As a further example he considered the case of an intoxicated person who lost consciousness or equilibrium and fell while holding a glass. If another person was wounded by the glass it would be necessary to direct the jury in terms [page 345] of s 13 as to the requirement of a voluntary and intentional act.103 However, the position of the majority in Snow has been endorsed by the Tasmanian Court of Appeal on several occasions.104 12.24 In R v Kusu (1980) 4 A Crim R 72, a majority of the Queensland Court of Criminal Appeal held that where, due to intoxication, an accused did not know what he or she was doing they cannot rely on the excuse of unwilled act. Macrossan J, in dissent, observed that drunken people, like others, have accidents, and they should not be deprived of a possible excuse under s 23 merely because the relevant non-operation of the will was due to intoxication. His Honour made the general point that an act which the jury are disposed to regard as unwilled or accidental may be more satisfactorily appraised if they are permitted to know the extent of any intoxication of the accused person.105 A number of decisions from the Queensland and Western Australian courts have subsequently either cited with approval or applied the majority position in Kusu.106 However, for the most part the endorsements by the courts have been expressed in limited terms that are consistent with involuntariness not being based on or resulting from intoxication alone or not being based on intoxication in combination with a mental disease (see 12.44–12.47 for comorbidity).107 Furthermore, recent decisions from the Queensland Court of Appeal are consistent with the dissenting judgments of Crawford J and Macrossan J. In R v Cuskelly [2009] QCA 375, the appellant was at home drinking wine with his wife when he began to argue with the deceased, who was drinking alcohol in an adjacent park. The pursuant exchange of insults continued as the deceased approached and climbed the stairs leading to the appellant’s unit. As the deceased

approached, the appellant armed himself with a knife. A struggle broke out and the knife being held by the appellant penetrated the deceased’s heart. The appeal against the conviction for murder was upheld on the ground that the trial judges failed to instruct the jury that it must be satisfied beyond reasonable doubt that the stabbing did not occur independently of the accused’s will. Keane JA, with whom the other members of the court agreed, stated:108 [page 346] The evidentiary basis on which a defence under s 23 is said to be raised is, it must be said, quite slim. … Nevertheless, the pathologist who gave evidence for the Crown could not exclude the possibility that the deceased fell onto the knife held by the appellant. It is also the fact that both the appellant and the deceased had been drinking, and there was a scuffle on the stairway in which the entry of the knife into the body of the deceased might possibly have occurred without a voluntary act on the appellant’s part.

12.25 In R v Duckworth [2016] QCA 30, the appellant was convicted of rape in circumstances where he penetrated the victim, who was asleep and significantly affected by intoxication. The appellant, who, at the time of penetration, was also highly intoxicated, subsequently made statements to police which denied any awareness of the act of penetration. Witnesses’ evidence suggested that the appellant might have been asleep at the time he penetrated the victim. The Court of Appeal approved the trial judge’s direction to the jury that a ‘drunken decision to penetrate would still be a willed act’; however, to convict the appellant, the jury had to be satisfied beyond reasonable doubt that he was not asleep at the time of penetration.109 Burns J, with whom the other members of the Court of Appeal agreed, stated:110 The possibility that the appellant may have unwittingly penetrated the complainant whilst he was sleeping would be difficult for any jury to accept but, given the appellant’s answers in his interview, it is understandable why the trial judge considered it necessary to direct the jury regarding s 23.

Engaging in sexual acts while asleep is known as sexomnia. Uncertainty remains as to the causes of sexomnia; however, research suggests that alcohol is an important trigger.111 On the assumption that the appellant

was asleep when he engaged in the sexual act, the Court of Appeal’s decision in Duckworth ignored the role that alcohol may have played in triggering this sexual act. The Cuskelly and Duckworth decisions suggest that, while evidence of intoxication cannot be the basis for an involuntariness excuse, it can be when it combines with other factors to result in involuntariness.112 12.26 The Commonwealth and Australian Capital Territory Codes, the Northern Territory Code as it applies to Sch 1 offences, the Crimes Act 1900 (NSW) and the Criminal Law Consolidation Act 1935 (SA) expressly state that evidence of self-induced intoxication cannot be considered when an accused claims that his or her conduct was involuntary.113 This rule applies irrespective of the type of crime with which the accused is charged. [page 347]

Involuntary intoxication 12.27 Involuntary114 or non-self-induced intoxication115 embraces a wide number of circumstances, such as intoxication produced by: • trickery or fraud; • duress or coercion; • the unforeseen side-effects of a drug; or • unwitting inhalation of fumes or gas. There are two opposing views as to the appropriate effect of involuntary intoxication on criminal responsibility. The first contends that involuntary intoxication should have no greater exculpatory force than self-induced intoxication except where the basis for liability is negligence. Although less moral blame attaches to one who becomes intoxicated without fault, the fact that the accused was disinhibited by drink may be a factor relevant in mitigation of penalty, but not a basis for excluding responsibility for intentional criminal conduct. This view finds support in the common law.116 The second view contends that

involuntary intoxication should operate as a true defence so as to acquit the accused even though the prosecution may have proven voluntary commission of the physical elements of the offence and the fault elements, if any, required for conviction. This view finds expression in some of the legislative provisions in Australia as discussed below.117

Involuntary intoxication at common law 12.28 The common law stance on involuntary intoxication is exemplified in the English case of R v Kingston [1995] 2 AC 355.118 The accused, a homosexual with paedophiliac tendencies, was charged with one other of indecently assaulting a 15-year-old youth. The accused’s co-defendant was alleged to have surreptitiously administered a soporific drug to both the victim and the accused, in an attempt to obtain compromising photographs of the accused. The drug apparently put the victim to sleep during which time he was indecently assaulted by the accused. Evidence was given that the drug could have brought about a temporary change in the accused’s personality and a lowering of his ability to resist temptation in relation to the sleeping boy. The trial judge directed the jury as to the requirements [page 348] for an indecent assault including a specific intent to act indecently. The jury were also instructed to consider the evidence of intoxication in relation to the issue of intention. However, the learned trial judge intimated that ‘a drugged intent is still an intent’. The Court of Appeal quashed the conviction, stating:119 [T]he law recognises that, exceptionally, an accused person may be entitled to be acquitted if there is a possibility that although his act was intentional, the intent itself arose out of circumstances for which he bears no blame.

The House of Lords rejected this proposition, holding that no such principle existed or, until the present case, had never in modern times been thought to exist. In the words of Lord Muskill:120

[T]o assume that contemporary moral judgments affect the criminality of the act, as distinct from the punishment appropriate to the crime once proved, is to be misled by the expression of ‘mens rea’ the ambiguity of which has been the subject of complaint for more than a century.

Lord Mustill’s judgment proceeds on the assumption that the common law did not recognise a defence of involuntary intoxication. His Lordship did not think it appropriate to create this as a new defence, although he exhorted the Law Commission to consider whether a merciful, realistic and intellectually sustainable solution could be created by statute. 12.29 There are no Australian common law authorities which have directly considered the issue. The approach taken by the High Court in O’Connor strongly suggests that the House of Lords decision in Kingston also represents the Australian common law. This is because the court confined its ruling to cases where evidence of intoxication, whether self-induced or not, negated the mens rea of the crime charged.121 The court did not rule further that such evidence could also result in an acquittal if the intoxication had the effect of reducing the accused’s self-restraint. Thus, in a case such as Kingston where the evidence establishes merely that the accused was less inhibited than he or she might otherwise have been but was otherwise conscious and aware, the common law would require a direction on basic intent. 12.30 In Victoria and South Australia, accidental or involuntary intoxication are governed by the common law. Consistent with the decision in O’Connor, evidence of involuntary intoxication can be relied on to negative any mental element and to negative voluntariness; however, there are no separate defences of involuntary intoxication. The law in New South Wales is similar to that of the model Criminal Code jurisdictions (see 12.34). Section 438G of the Crimes Act 1900 (NSW) provides that a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced.

Involuntary intoxication under the Codes

12.31 The Criminal Code (Tas) draws no distinction between selfinduced and involuntary intoxication. In the Tasmanian Court of Criminal Appeal case of Snow v R [1962] Tas SR 271, the joint judgment of Burbury CJ and Cox J suggested that a common law defence of involuntary intoxication may operate by virtue of s 8, which preserves common law defences not excluded or altered [page 349] by the Code.122 However, as noted above, the matter has been authoritatively settled in Kingston insofar as English common law is concerned. Therefore, based on O’Connor, evidence of involuntary intoxication can be relied on to negative any mental element and to negative voluntariness; however, it is unlikely that Australian common law recognises a separate defence of involuntary intoxication. 12.32 The position is different under the Griffith Code. In the first part of s 28(1), the Code refers to ‘a person whose mind is disordered by intoxication or stupefaction caused without intention on his or her part’ by drugs or intoxicating liquor or by any other means, and states that the provisions of s 27 (unsoundness of mind) may operate in such a case to avoid criminal responsibility. The defence is established by proof that the accused was unintentionally intoxicated or stupefied to the extent that he or she was deprived of one of the three capacities specified in s 27.123 The phrase ‘intoxication or stupefaction caused without intention’ may suggest that a person who voluntarily consumed alcohol or drugs without the intention of becoming intoxicated may have a defence if his or her mind is thereby disordered in the manner required by s 27. Based on this interpretation, the words ‘intoxication’ and ‘stupefaction’ would be a reference to a state of intoxication or stupefaction. The alternative interpretation is that the words refer to unintentionally coming under the influence of drugs or alcohol. Based on this interpretation, the defence only applies in circumstances where the accused did not intentionally contribute to his or her state of intoxication or stupefaction. Although there is some support for the

former interpretation,124 the weight of judicial support,125 and amendments to s 28(2) of the Criminal Code 1899 (Qld)126 support the latter interpretation. Furthermore, the amendments to s 28(2) make it clear that the defence is not available where the accused’s mind is disordered in the manner required by s 27 where the mental state is caused by the intentional consumption of drugs or alcohol in combination with some ‘other agent’.127 12.33 The Northern Territory defence of involuntary intoxication, as it applies to offences not included in Sch 1, is similar to the Griffith Code defence. The defence must prove that the accused was involuntarily intoxicated and that he or she was therefore deprived of one of the three capacities specified in s 43C of the [page 350] Code.128 An accused found not guilty because of involuntary intoxication may at the court’s discretion be released unconditionally or be subjected to a supervision order.129 12.34 The Commonwealth Code, the Australian Capital Territory Code and the Northern Territory Code as it applies to Sch 1 offences, all recognise involuntary intoxication as a defence which has effect independently of the mental impairment defence. The relevant sections provide that an accused is not criminally responsible for an offence if his or her ‘conduct constituting the offence was a result of intoxication that was not self-induced’.130 This provision is based on the English Court of Appeal decision in Kingston (see 12.28). It has been suggested that, in practice, the defence is confined to cases involving impulsive acts of violence and the destruction or appropriation of property.131

Intoxication and criminal defences 12.35 Most criminal defences require evidence of a belief which prompted the accused to engage in the conduct comprising the basis for

the charge. Additionally, many defences require the belief to be true or, if mistaken, that the mistake was based on reasonable grounds. Clearly, the accused’s belief may have been influenced by intoxication, whether self-induced or not. Yet, as the following discussion will show, whether evidence of intoxication will be relevant depends on the particular defence in question, as well as the jurisdiction in which the case is being heard. The defences not requiring evidence of a belief generally require evidence of mental malfunction.132 Insanity is the only mental malfunction defence of general application, and its interrelationship with intoxication is both common in practise and legally complex.

Mistake of fact 12.36 Mistake of fact is considered in Chapter 2. The plea involves an accused claiming that he or she was operating under an honest and reasonable mistake of fact in relation to an offence that does not include a mental element (strict liability). Evidence of intoxication is relevant as to whether an accused held an honest or actual belief.133 However, evidence of self-induced intoxication cannot be taken into account in an exculpatory capacity when considering the reasonableness of the accused’s belief. Whether the accused held a belief on reasonable grounds must [page 351] be determined by reference to what he or she would have reasonably believed had he or she been sober.134 A mistaken belief occasioned by self-induced intoxication will not generally be reasonably held. Nevertheless, it is conceivable, though rare, for an intoxicated person to hold a reasonable but mistaken belief and thereby be acquitted. More commonly, evidence of intoxication may in fact incriminate an accused as it will tend to undermine the assertion that the belief was reasonably held. Failure to adequately direct a jury as to the differing relevance of self-induced intoxication as between the subjective and

subjective/objective elements of the mistake of fact may provide grounds for overturning a conviction.135 12.37 Where the mistake was associated with involuntary intoxication, the accused’s lack of fault in his or her intoxication justifies taking into account the level of intoxication when determining whether his or her belief was held on reasonable grounds. This was the outcome of the New Zealand High Court case of Rooke v Auckland City Council [1980] 1 NZLR 680. The accused was charged, under s 58(1)(b) of the Transport Act 1962 (NZ), of driving with excess bloodalcohol. He presented evidence that his state of intoxication was produced by the inhalation of paint fumes. The clinical evidence to that effect was uncontradicted. He had consumed three glasses of beer, but it was accepted at the trial that his blood-alcohol level could not have reached the prescribed limit because of the beer alone. Under those circumstances, the court quashed his conviction because the intoxicated condition was due to a reasonable mistake of fact or lack of knowledge as to the amount of alcohol in his blood.136 The Commonwealth, Australian Capital Territory and Northern Territory Codes would support this finding since they contain provisions stipulating that, in cases of involuntary intoxication, the reasonableness of an accused’s belief is determined according to the standard of a reasonable person intoxicated to the same extent as the accused.137 These provisions are not limited in their application to mistake of fact but apply to defences generally that include a requirement that the accused belief be reasonably held.138

Claim of right 12.38 Claim of right is considered in Chapter 4. The law recognises that such a claim can be based on an unreasonable belief in the existence of a right to [page 352]

possession or ownership of property. Evidence of intoxication will clearly be relevant to such a plea since a person’s intoxicated condition could significantly affect their belief concerning their legal rights.139

Self-defence 12.39 Self-defence is considered in Chapter 10. Evidence of intoxication may be directed to justifying the accused’s belief that an occasion for the use of force had arisen, and that the use of force was necessary. In general, the fact that the accused was affected by alcohol should be treated as a relevant factor in determining the appropriateness and proportionality of the response.140 At common law, evidence of self-induced intoxication is relevant to all elements of the defence, including the requirement that the accused had reasonable grounds for his or her belief that it was necessary to act in self-defence.141 This view was articulated in the New South Wales Supreme Court case of R v Conlon (1993) 69 A Crim R 92 by Hunt J, who applied the decision of Mason J in Viro v R (1978) 141 CLR 88 at 146 where the latter held that the reasonable grounds requirement imposed a mixed subjective/objective element.142 According to the common law, which has been the subject of statutory intervention in each of the Australian jurisdictions, whether an accused held a belief on reasonable grounds cannot be realistically assessed without taking into account the accused’s actual circumstances — including, where appropriate, his or her state of intoxication.143 The Code states have taken a contrary approach. While evidence of self-induced intoxication is relevant to the existence of a subjective requirement, it has no exculpatory force in respect to objective elements such as reasonableness or to subjective/objective elements such as a belief on reasonable grounds. In the words of the Tasmanian Court of Criminal Appeal in McCullough v R [1982] Tas R 43; (1982) 6 A Crim R 274:144 … in our view it would be incongruous and wrong to contemplate the proposition that a person’s exercise of judgment might be unreasonable if he was sober, but reasonable because he was drunk.

This stance has been adopted by the model Criminal Code jurisdictions, New South Wales and Victoria. In each of the jurisdictions the

definition of self-defence [page 353] requires that the accused have a belief that his or her conduct is necessary and the conduct must be a reasonable response in the circumstances as the accused perceives them to exist.145 Evidence of intoxication is relevant to the subjective requirement of the defence. However, in R v Katarzynski [2002] NSWSC 613 it was held that the reasonableness of the accused’s response is determined by reference to the standards of a sober person.146 This is given expression in the Victorian legislation, which stipulates that, should any part of a defence require a reasonable response, in deciding whether the accused’s response was reasonable, regard must be had to the standard of a reasonable sober person.147 The Victorian legislation also states that if the intoxication was not self-induced, the reasonableness of the response will be determined by regard to the standard of a reasonable person intoxicated to the same extent as the accused.148 The statutory defence in South Australia also includes subjective and objective elements, with evidence of intoxication being relevant to the subjective elements but not the objective element.149 While there are policy reasons to justify these limits on intoxication’s exculpatory role in circumstances where the accused was affected by alcohol or drugs in a public place, it is difficult to justify why the limits should also apply where an accused, affected by alcohol or drugs, acts to protect his or her dwelling from an intruder. As the court in Collins v The Secretary of State for Justice [2016] EWHC 33 stated:150 There is much to be said for the proposition that those who go about in public (or anywhere outside their own homes) must take responsibility for their level of intoxication: thus … a defendant cannot rely on any mistaken belief attributable to intoxication that was voluntarily induced. Why that should be so in the defendant’s own home in circumstances where he is not anticipating any interaction with a trespasser is, perhaps, a more open question but that remains part of the test even in a householder case.

However, in each of the Australian jurisdictions the reasonableness of

an accused’s response to a home invader is assessed from the perspective of a reasonably sober person.151

Necessity 12.40 Necessity is considered in Chapter 6. The common law’s acceptance that intoxication is relevant to the subjective/objective criterion of self-defence is potentially also applicable to the common law defence of necessity, at least in New [page 354] South Wales. This is due to the ruling of the New South Wales Court of Criminal Appeal in Rogers v R (1996) 86 A Crim R 542, which reformulated the defence to include the subjective/objective element, consistent with that applied to self-defence at common law. Arguably, therefore, Hunt J’s approach in R v Conlon (1993) 69 A Crim R 92 is applicable to the defence of necessity. Hunt J noted in Conlon that a material difference exists between an accused’s reasonable belief and the belief of a reasonable person in the accused’s position.152 In Victoria, the Court of Criminal Appeal adopted a different definition of necessity than that adopted in New South Wales. According to the court in R v Loughnan [1981] VR 443,153 the test was whether a reasonable person in the position of the accused would have considered that he or she had no alternative to doing what he or she did to avoid peril.154 Therefore, as the definition imposed a purely objective criterion, evidence of intoxication was of relevance. In 2014, the Victorian Parliament abolished the common law defence of necessity and replaced it with the defence of sudden and extraordinary emergency.155 The legislation states that the objective elements of the defence are considered by reference to what a reasonable sober person would have believed and how a reasonable sober person would have responded in the circumstances.156 The other Australian jurisdictions have also either adopted a purely objective criterion or have rejected the position that

evidence of intoxication has any exculpatory capacity when assessing whether an accused’s belief was reasonably held.157

Duress 12.41 Duress is considered in Chapter 8. At common law, the defence of duress requires evidence that the accused reasonably believed that the threatener would inflict physical violence on the accused or some other person if the accused refused to carry out the threatener’s orders.158 Again, at least in New South Wales, the approach taken by Hunt J in Conlon is material so that evidence of intoxication will be relevant when determining the reasonableness of the accused’s belief.159 The defence of duress also [page 355] requires that the accused’s response be measured against that of ‘a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused’.160 There are no case authorities on the defence of duress which have expressly considered whether evidence of intoxication is relevant for the purpose of this comparison. However, judging from the case law on provocation, considered below, it is very likely that the ‘ordinary person’ will be regarded by the courts as sober.161

Provocation 12.42 Provocation is considered in Chapter 11. Provocation contains a subjective and an objective element; intoxication is relevant to the subjective question and it may also be relevant to one aspect of the objective test. Intoxication (whether self-induced or not) may have made the accused more susceptible to losing self-control and is therefore relevant to the question whether the accused actually lost control.162 However, should an intoxicated accused in fact have lost self-control,

the jury should consider whether that loss of self-control was caused by the deceased’s provocation or ‘solely by the inflammatory effects of drink or drugs’.163 There are two aspects of the objective test in provocation. The first concerns the gravity of the provocation offered by the deceased. Any of the accused’s personal characteristics which have a bearing on the gravity of the provocation will be relevant. What this means is that, while being called a drunk might be relevant in determining the gravity of the provocation, the effect of intoxication on the accused in terms of his or her perception of the victim’s conduct will not be relevant.164 The second aspect of the objective test concerns the power of self-control of an ordinary person. In determining whether such a person could have lost control and reacted in the way the accused did as a result of the victim’s provocation, the jury must discount evidence of intoxication.165 In New South Wales, the recently enacted partial defence of extreme provocation expressly excludes any reference to evidence of self-induced intoxication.166 Therefore, evidence of self-induced intoxication is of no relevance to the subjective and objective tests of provocation.167 Evidence of involuntary intoxication is of relevance to the subjective test but not the objective test.168 [page 356]

Insanity 12.43 Insanity is considered in Chapter 13. In all jurisdictions a temporary derangement of mental faculties caused by self-induced consumption of drugs or alcohol is not a disease of the mind for the purpose of the defence of insanity.169 Therefore, a psychotic episode resulting from the consumption of drugs and/or alcohol, where the person has an otherwise normal brain and the psychosis ceases once the effects of the substance/s have dissipated, is not a mental illness.170 For example, in the English decision of Coley v R [2013] EWCA Crim 223, the appellant, a 17-year-old male, was convicted of attempted murder in circumstances where he entered a neighbour’s home late at night and

inflicted multiple stab wounds on his neighbour with a ‘Rambo’ knife. Prior to the attack the appellant had consumed a large number of cannabis cigarettes and watched an action movie. The psychiatrist’s reports stated that it was likely the appellant’s actions occurred during a ‘brief psychotic episode’ which was trigged by his cannabis consumption. One of the reports also stated that he might have been delusional and acting out the role of a character from a video game. In rejecting insanity as a possible defence, the Court of Appeal agreed with the trial judge’s conclusion that not every defect of reasoning is classified by law as a disease of the mind. Lord Justice Hughes stated:171 The precise line between the law of voluntary intoxication and the law of insanity may, we do not doubt, be difficult to identify in some borderline cases. But the present case falls comfortably on the side of the line covered by voluntary intoxication.

In most jurisdictions, a mental disease may result from excessive alcohol consumption or drug-taking over an extended period of time, in which case, insanity rather than intoxication would be the appropriate defence.172 The general rule was expressed by Lord Birkenhead LC in the House of Lords case of Director of Public Prosecutions v Beard [1920] AC 479:173 The law takes no note of the cause of the insanity. If actual insanity supervenes, as a result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause.

South Australia is the only jurisdiction where it is uncertain whether the ‘mental impairment’ (insanity) defence applies to an individual who has developed a mental illness caused by substance abuse but who is not intoxicated at the time of the offence.174 The language of the relevant South Australian provision supports the conclusion that the defence is available if the mental impairment resulting from substance abuse continued for an extended period of time but not if the mental impairment only existed over the short term.175 [page 357]

12.44 Co-morbidity, in the sense of the coexistence of a mental illness and substance abuse at the time of the offence, causes the greatest demarcation difficulties for criminal law. Co-morbidity can take one of two forms. The first is where the accused has a quiescent mental disease which is triggered by substance abuse. The courts in New South Wales and Victoria have applied the defence of insanity where the accused had a quiescent mental condition such as epilepsy, schizophrenia or psychosis which is trigged by an intoxicant.176 Although the focus is on whether the accused had what can be characterised as a disease of the mind at the time of the offence, a common feature of all the decisions in this area is the pre-existence of the mental disturbance prior to the consumption of the intoxicant, with some decisions also placing weight on the continued existence of the mental disturbance after the effects of the illicit drugs have abated.177 The fact that the self-induced intoxication contributed to the accused’s state of mind does not exclude reliance on the defence of insanity. The rule which excludes ‘external factors’ such as alcohol or drugs as possible causes of ‘mental disease’ does not apply in such a case.178 In R v Stones (1955) 56 SR(NSW) 25, the court stated:179 … insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged. The law takes no account of the cause of insanity. If actual insanity, permanent or temporary, in fact supervenes as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause.

12.45 In Queensland, Western Australia and South Australia, the relevant statutory provisions focus on the contributory role of intoxication to the accused’s disturbed state.180 In those jurisdictions the insanity defence is not available if the accused’s mental impairment or disease of the mind was contributed to or triggered by the consumption of alcohol. Section 28(2) of the Criminal Code (Qld) states that the defence of insanity: … [does] not apply to the case of a person who has, to any extent intentionally caused himself or herself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not and whether his or her mind is disordered by the intoxication alone or in combination with some other agent.

12.46 In R v Clough (2010) 200 A Crim R 140, the appellant, while experiencing a psychotic episode, murdered his wife who he believed

was about to kill him and his mother. The appellant had a long history of mental illness and drug abuse. His ongoing delusional beliefs included that people were in his ceiling spraying acid on him, that people were in his mattress trying to harm him, that people were shining lights into his home, that salami wrappers contained hidden codes, and more generally that people were trying to harm him. In the 3 [page 358] weeks prior to the murder his mental wellbeing significantly deteriorated and 1 or 2 days prior to the murder he consumed large amounts of methylamphetmine and cannabis. Based on the evidence presented at trial it was established that, at the time of the murder, the accused suffered from a mental disease and that he was deprived of the capacity to know that he ought not to kill his wife. However, psychiatrists also gave evidence that in the absence of the residual effects of methylamphetmine, Clough’s mental disease alone was insufficient to deprive him of the capacity to know that he ought not to kill his wife. Therefore, the Court of Appeal agreed with the trial judge, that in accordance with s 28(2) of the Queensland Code, the defence of insanity is not available where self-induced intoxication played any contributing part in the deprivation of the accused’s relevant capacity. Significantly, the court found that the term ‘intoxication’ not only included the immediate euphoric effects associated with drugs and alcohol, but also included the secondary effects which, depending on the relevant substance, may continue to affect the mind for many days after consumption. In the South Australian decision of Police v Hellyer [2002] SASC 61, the court reached a similar conclusion. It held that the defence of insanity was not available to the accused as his mental impairment was triggered by the consumption of alcohol, cannabis and LSD. 12.47 The second form of co-morbidity is where the accused’s state of intoxication was caused by his or her mental illness. This is illustrated in the New South Wales case of R v Weeks (1993) 66 A Crim

R 466, where the defence of insanity was applied. The accused, the driver of a car, was involved in a fatal motor accident under circumstances amounting to negligent manslaughter. Psychiatric evidence indicated that he suffered from hypomania, a severe mental illness, and was grossly intoxicated at the time of the accident. Hypomanic illness is associated with inappropriate, incongruous and dangerous behaviour as well as the uninhibited use of alcohol and drugs.181 The court found that the accused’s intoxication was caused by his mental illness and that, by reason of his disordered state, he did not know that what he was doing was wrong. A special verdict under s 38 of the Mental Health (Criminal Procedure) Act 1990 (NSW) was returned. Although there is limited authority, it seems likely that the same jurisdictional divide exists as with the first form of co-morbidity addressed above. In New South Wales, Victoria, Tasmania and the model Criminal Code jurisdictions, the insanity defence would apply where the accused’s intoxicated state was caused by his or her mental illness. In Queensland, Western Australia and South Australia, insanity would not be available if the intoxication contributed in such a way as to bring the accused’s state within the definition of a mental disease or mental impairment or where the accused would not have been deprived of one of the capacities if it were not for the intoxication. 12.48 As discussed above (see 12.32), mental unsoundness caused by involuntary intoxication is covered by the combined operation of ss 27 and 28 of the Griffith Code; the same position is adopted by the Criminal Code (NT), with the term ‘mental impairment’ being defined to include ‘involuntary intoxication’: see ss 43A, 43C. [page 359]

Diminished responsibility 12.49 Diminished responsibility is considered in Chapter 15. Under the Criminal Code (Qld) and Crimes Act 1900 (ACT), no express reference is made to the effect of intoxication on an abnormality of

mind.182 However, the courts have held that a temporary state of intoxication does not constitute an abnormality of mind for the purpose of the defence of diminished responsibility.183 The courts have also held that, for the purposes of the defence, intoxication cannot be regarded as one of the contributing causes that produce an abnormality of the mind.184 In New South Wales and the Northern Territory, evidence of the effects of self-induced intoxication is explicitly excluded from consideration.185 However, self-induced intoxication can be the trigger that produces a mental disturbance that can be the basis for a defence of diminished responsibility provided that the mental disturbance is not transitory in that it remains after the effects of the intoxicant has worn off.186 As the New South Wales and Northern Territory provisions expressly exclude consideration of the effects of self-induced intoxication, involuntary intoxication may be considered for the purposes of the defence. However, in New South Wales that outcome is rendered unclear by s 23A(1) and (8) of the Crimes Act, which stipulates that an abnormality of mind must be caused by an ‘underlying condition’ which comprises ‘a preexisting mental or physiological condition, other than a condition of a transitory kind’. A state of intoxication, even if involuntarily caused, is transitory and not pre-existing.187

Intoxication as an aspect of offence elements 12.50 Evidence of intoxication can be a double-edged sword. Instead of disproving mens rea, such evidence may provide the motive for committing the crime charged. Alcohol and other similar drugs can remove normal restraints, produce aggression and impair judgement, all of which may assist in establishing the requisite mental state for the crime. It is also a well-established rule that a person who becomes intoxicated in order to gain courage to commit an offence will be convicted of that offence on the basis of his or her prior criminal intent. Furthermore, there are certain offences where intoxication is an ingredient of the offence, for example, drunk driving. A victim’s state of intoxication is also relevant where the offence is predicated on the

absence of consent (see Chapter 5). For offences ranging from common assault through to sexual assault (rape), the offence will be established if it is proved that the victim did not consent or did not have the capacity to consent due to his or her state of intoxication. Although relatively unusual, some statutory offences prescribe that the victim’s intoxication [page 360] is an element of the offence. For example, in South Australia it is an offence to perform body piercing or body modification on a person who is intoxicated.188

Prior criminal intent 12.51 Where an accused takes alcohol or drugs in order to obtain courage for some unlawful purpose, he or she cannot deny mens rea or voluntariness with respect to crimes falling within the scope of the original purpose.189 As Stephen J noted in the High Court case of R v O’Connor (1980) 146 CLR 64, evidence that an accused foresaw that which occurred as a possible outcome of his or her drinking may be evidence of recklessness, or indeed, intention:190 An accused’s tendency to violent crime when intoxicated, known to him when he takes the fatal drink or drugs, would be evidence of recklessness sufficient on conventional principles to involve mens rea.

This principle appears in some of the legislative provisions on intoxication.191

Intoxication as part of the actus reus 12.52 Where the accused’s intoxication is an ingredient of the crime charged, a complete acquittal cannot be obtained by reference to involuntariness caused by intoxication, whether self-induced or not. In such a case, it would be an act of extreme bravery or desperation to

base a defence upon acute alcoholic intoxication. There are dicta in some cases which suggest that an apparent act of driving may be deprived of its voluntary character by, for example, automatism or unconsciousness.192 But where intoxication is the gist of the offence, the legal position appears to be that intoxication causing automatism should not be allowed to operate by way of defence.193 12.53 In the South Australian case of August v Fingleton [1964] SASR 22, the accused was charged under s 47 of the Road Traffic Act 1961 (SA) of driving a vehicle while under the influence of intoxicating liquor or drugs to such an extent as to be incapable of exercising effective control of the vehicle. The accused was [page 361] a diabetic and experienced a hypoglycaemic episode while driving his car. The court held it was not necessary for the prosecution to prove mens rea, nor could the accused meet the charge by pleading a nonnegligent state of ignorance (as a result of the effect of the intoxicating liquor or drugs) as to his capacity to exercise control over the vehicle.194 In the Victorian case of Barker v Burke [1970] VR 884, the accused was charged with the offences of driving under the influence of intoxicating liquor and driving with a blood alcohol level above the prescribed limit. He claimed that his beer had been ‘spiked’ with brandy. The court rejected that argument, ruling that if the accused was in a state of alcoholic automatism, that would not be a defence under either section.195 12.54 The decision of the New South Wales Court of Criminal Appeal in Edwards v MaCrae (1991) 14 MVR 193196 goes against August v Fingleton and Barker v Burke. The court there held that the accused could argue automatism based on intoxication, whether selfinduced or not, in answer to a charge of drunk driving under s 4E of the Motor Traffic Act 1909–1986 (NSW). It based this ruling on account of the ‘presumption that, although Parliament may by clear words provide

to the contrary, the criminal law only punishes conduct which is voluntary’.197 Edwards v MaCrae was decided before the enactment of Pt 11A of the Crimes Act 1900 (NSW), s 428G(1) of which denies automatism being pleaded in all cases in which it was caused by selfinduced intoxication, regardless of the type of offence.198 However, s 428G(2) permits automatism caused by involuntary intoxication to be pleaded in respect of any type of offence. Conceivably, Edwards v MaCrae remains good law in New South Wales only insofar as cases of involuntary intoxication are concerned.

Intoxication and manslaughter 12.55 The rule that evidence of intoxication (whether or not selfinduced), is relevant whenever it is necessary to prove voluntariness (see 12.18 for the jurisdictions where intoxication is relevant to the question of voluntariness) applies to manslaughter no less than other crimes. As Hale stated:199 [T]he Crown is required to prove in manslaughter, no less than in other crimes, that the actions of the accused upon which it relies were at least voluntary, since manslaughter is not only the Pleas of the unlawful, but also the voluntary, killing of another without malice.

Intoxication may also be relevant in relation to proving the fault element of manslaughter. Traditionally, manslaughter has been categorised into voluntary manslaughter and involuntary manslaughter. By definition, voluntary manslaughter [page 362] implies intentional or, at common law, reckless200 conduct causing death which would amount to murder but for circumstances of provocation or diminished responsibility.201 The relevance, if any, of intoxication to the defences of provocation and diminished responsibility has been considered previously: see 12.42 and 12.49. With regard to involuntary manslaughter, there are two types: killing by

gross negligence; and killing by unlawful and dangerous act.202 12.56 In relation to negligent manslaughter, as with any crime of negligence, self-induced intoxication has two functions. The prosecution is entitled to point to self-induced intoxication as evidence of gross negligence. The reasonable person is sober and the jury may find that the risk taken by the accused is not one that a person unaffected by alcohol or drugs would take. The defence may, in anticipation of this, play down the role of alcohol or drugs.203 However, in those jurisdictions where intoxication is relevant to basic intent and voluntariness, it may have exculpatory force because:204 [I]ntention is a necessary ingredient in the actual formation of a negligent act before criminal responsibility arises under the related doctrine of criminal negligence … the underlying acts or omissions must usually have some intentional element to be culpable to the necessary degree.

[page 363] Hence, an accused is entitled to lead evidence of intoxication in order to raise doubt concerning voluntariness or basic intent, even in relation to a killing by gross negligence.205 If a proper foundation has been laid by the evidence, a direction should be given dealing with intoxication, voluntariness and basic intent. Where there is evidence that the intoxication was involuntary, such evidence may demonstrate an absence of negligence.206 With regard to unlawful and dangerous act manslaughter, the element of unlawfulness may be negated by evidence of intoxication. 12.57 The Crimes Act 1900 (NSW) contains a provision specifically dealing with intoxication and involuntary manslaughter. Section 428E(a) provides that, where intoxication was self-induced, evidence of that intoxication cannot be considered in determining whether the accused had the requisite mens rea for involuntary manslaughter. However, in cases of involuntary intoxication, s 428E(b) provides that such intoxication may be taken into account.207 A similar position in respect of negligent manslaughter is embodied in the model Criminal

Codes. The relevant sections provide that, in cases of self-induced intoxication and offences based on negligence, the standard of a sober reasonable person applies.208 However, in respect of involuntary intoxication, the sections declare the standard to be that of a reasonable person intoxicated to the same extent as the accused.209 In practice, it is likely that such a compromised standard will be difficult to articulate. It has been suggested that the need to apply the ‘reasonable drunk standard’ will rarely arise because a reasonable person who is intoxicated will simply desist from activity which requires care if he or she can possibly do so.210 Accordingly, an accused who persists with the activity will breach the standard.

Functions of judge and jury 12.58 The question as to whether the evidence at trial warrants a direction on intoxication is a matter for the trial judge. There are two aspects of this rule. First, a judge is obliged to direct the jury on the relevance of intoxication even though intoxication is eschewed by the defence.211 Second, the trial judge may decline to direct on intoxication although it is specifically raised by the defence. It is not the law that a bare assertion on the part of the accused that he or she was in a state of [page 364] intoxication at the relevant time will as a matter of course call for a direction by the trial judge as to the legal significance of evidence of intoxication. The evidence must be ‘capable’212 of raising a reasonable doubt with respect to the relevant mental element or, as the case may be, voluntariness. That is a question for the trial judge. Evidence which suggests merely that the accused was influenced in what he or she did by a state of insobriety would not warrant leaving this specific issue to the jury. In such a case, the trial judge is entitled to withdraw the issue of intoxication from the jury which, in practical terms, means that in summing up there would be no positive duty to draw the attention of

the jury to the evidence of intoxication and the relationship of that evidence to the mental element or voluntariness. It is submitted that in such a case it would not be a misdirection for the trial judge to direct the jury to ignore the evidence of intoxication.213 12.59 Logically, a distinction can be drawn between the question of whether particular items of evidence are relevant to guilt (and therefore admissible) and the question of whether such evidence is sufficient to raise a reasonable doubt with respect to some particular issue.214 In general, the first question is for the judge, the second for the jury. However, in the case of intoxication, it appears that the second question has to some extent been subsumed within the first so that evidence which in the view of the trial judge is not capable of raising a reasonable doubt with respect to the mental element or voluntariness is treated as inadmissible. If the power to withdraw evidence of intoxication ranges over matters such as the veracity of witnesses and the possible effect of specific intoxicants, the exclusive fact-finding role of the jury is undermined. The judicial role is to determine and explain the legal significance of admissible evidence capable of being accepted by a reasonable jury. A decision not to direct on intoxication should be based upon a view of the evidence most favourable to the accused. Instances where appellate courts have upheld a decision by a trial judge not to leave evidence of intoxication to the jury have been cases where the evidence of intoxication was so scanty that it did not warrant a direction at all, or there had been a complete absence of any evidence presented at the trial as to the effect which the accused’s intoxicated condition may have had on his or her ability to act voluntarily or rationally.215 Thus, in the New South Wales Court of Criminal Appeal case of R v Sullivan (1981) 6 A Crim R 259, the only evidence bearing upon the question was a statement made by the appellant to the jury in which he said that he had been drinking. Under those circumstances, the court ruled:216 [I]t is not the law that whenever an accused person makes reference to having consumed an unspecified quantity of alcohol at some time antecedent to the act charged, with no evidence as to the extent to which it may have been eliminated from the bloodstream and

no evidence that it was capable of affecting or did affect his volition or powers of

[page 365] reasoning, that a special direction is nevertheless called for. To give such a direction in those cases is to confuse and mislead a jury and invite a verdict which is contrary to the evidence.

The nature of the mental element required for criminal liability may be so defined that evidence of the consumption of small quantities of alcohol may be sufficient to raise doubt on the issue. 12.60 South Australian legislation, introduced in 1999 and notified in 2004, provides that the trial judge only has to direct a jury on the issue of intoxication where the accused or prosecution had specifically requested the trial judge to direct the jury on that issue.217 The purpose of this procedural enactment is to prevent defence counsel raising evidence of intoxication but making little of it and subsequently appealing a conviction should the trial judge fail to fully instruct the jury on intoxication. However, the section does not prevent a trial judge from directing a jury on the relevance of evidence of intoxication in circumstances where it is not raised by counsel and therefore it has not prevented appeals in such circumstances. In R v B, MA (2007) 177 A Crim R 268, the defence argued that the trial judge had incorrectly failed to direct the jury as to the relevance of evidence of intoxication in circumstances where counsel had not raised it at trial. The Crown argued that as it had not been raised, the trial judge was prevented from directing the jury as to the significance of the evidence. The majority of the South Australian Court of Criminal Appeal held that as a trial judge has a common law obligation to ensure a fair trial, he or she can direct the jury as to the significance of evidence of intoxication even though it has not been raised by counsel.218 In Victoria, for the requirement that the defence counsel must seek a direction on a defence, see 1.83.

Expert testimony and the ultimate issue rule

12.61 According to the ultimate issue rule, a witness may not be asked whether the accused acted with the necessary intention or volition because this is the ‘ultimate issue’ which the jury must decide. Relaxation of this rule would strike at the administration of justice and would tend to transfer the determination of guilt or innocence of an accused from the jury to a so-called ‘expert’ witness.219 Thus, in the Victorian case of R v Darrington and McGauley [1980] VR 353, Anderson J was led to say:220 [T]he question whether a man held a particular intention, or had the capacity to form it, is, in this context, not yet a question for an expert witness but for the jury and …

[page 366] if and whenever it becomes a matter of expert evidence, the administration of criminal justice by trial by jury will become to a high degree even more absurdly difficult than it is today.

The trier of fact is expected to form its own opinion as to the likely or possible effects of common intoxicating substances (such as alcohol) upon the accused without the assistance of an expert, whose evidence on such matters will normally be excluded.221 However, in the case of esoteric drugs (or more common drugs used in combination with alcohol) which are not part of the common experience of humankind, the evidence of an expert may be sought as to the possible effect of any such substance upon a normal healthy individual.222

Onus and standard of proof 12.62 As noted above, the exculpatory force of evidence of intoxication derives from a basic principle of criminal law that the prosecution must prove beyond reasonable doubt each essential element of the crime charged, including the necessary intent. Where there is a basis for doubting voluntariness, the jury’s attention should be drawn to that issue with a specific instruction to exclude reasonable doubt with respect to that element. The defence only carries an evidential burden

with respect to evidence of intoxication. The legal burden of proving intention and voluntariness rests with the prosecution according to the criminal standard. 12.63 In Queensland, it has been held that the onus of proving involuntary intoxication rests upon the defence,223 and that the successful raising of the defence must lead to an acquittal on the ground of insanity under s 647 of the Griffith Code.224 These rulings have been criticised.225 It does seem both unjust and pointless to detain a person in a mental hospital at the Governor’s pleasure if mental unsoundness was produced solely by alcohol or drugs or other ‘external factors’. A temporary disturbance of consciousness caused by such transitory factors would not amount to a mental disease within the meaning of the insanity defence, whether under the Codes or at common law.226 It is against the policy of the law to detain a person as a criminal lunatic if he or she is not insane. Section 647 of the Griffith Code should be interpreted in such a way that ‘unsoundness of mind’ does not include a temporary disturbance of mental capacity caused by intoxication or stupefaction from alcohol, drugs or other means. [page 367] As to the onus of proof, the persuasive burden of establishing unsoundness of mind by reason of mental disease or natural mental infirmity rests upon the accused by virtue of s 26, which creates a presumption of sanity. That presumption has no relevance where the defence of mental unsoundness under s 27 is based on intoxication rather than insanity. In such a case, it is not contended that the accused is insane, but that he or she was sane but involuntarily intoxicated. Although contrary to the weight of authority, it is argued that the better view is that the Griffith Code only imposes an evidential burden of putting forward evidence in support of the plea that the accused was involuntary intoxicated to the point of being deprived of one of the three capacities specified in s 27 of the Code. The legal burden of disproving that plea should be discharged by the prosecution.227

Reforming the law 12.64 As may be deduced from the preceding discussion, the law on intoxication is in a complex and confusing state. This is because the relevance or otherwise of intoxication depends on a host of distinctions such as whether the offence involved specific or basic intent or negligence, whether the intoxication was self-induced or involuntary, and whether the intoxication was partial or total. The same state of affairs applies to the relationship between intoxication and criminal defences. Depending on which defence is considered, intoxication may be relevant to some element of the defence but not to other elements of the same defence. The difficulty of identifying coherent and consistent principles to explain many of these legal developments has led one commentator to conclude:228 There seems to be little by way of rhyme or reason for these multiple differences in treatment. Much appears to have depended on the attitude of the legal decision-maker who happened to be shaping the principle in relation to any aspect of criminal liability, towards the role that intoxication should play in establishing criminal liability.

Legislative efforts at pronouncing the law of intoxication (notably, the model Criminal Code, legislation in South Australia and the New South Wales Crimes Act) have generally been unsuccessful in bringing coherence and simplicity to the law. Based on review of the laws on intoxication by law reform bodies, it seems that disagreements over the appropriate form which the law of intoxication should take will continue for some time to come.229 The main reason for this is that there is no clear-cut answer to the question whether the law should regard becoming intoxicated as morally neutral or blameworthy.

1.

See J Quilter, L McNamara, K Seear and R Room, ‘The Definition and Significance of “Intoxication” in Australian Criminal Law: A Case Study of Queensland’s “Safe Night Out” Legislation’ (2016) 16(2) Queensland University of Technology Law Review 42; J Tolmie, ‘Alcoholism and Criminal Responsibility’ (2001) Modern Law Review 688 for a discussion of the role of alcoholism in the construction of criminal responsibility, and whether or not alcoholism is a disease or a habit. The criminal law does not distinguish between alcohol-induced intoxication and intoxication by other drugs. For the view that there should be such a distinction, see S Rajaratnam, J Redman and M Lenne, ‘Intoxication and Criminal Responsibility’ (2000) 7 Psychiatry, Psychology and Law 59.

2. 3. 4. 5. 6. 7. 8. 9.

10. 11. 12. 13.

14. 15. 16. 17. 18.

19.

The Criminal Legislation Amendment Act 1996 (NSW), inserting new Pt 11A, replaced the common law as declared in O’Connor with provisions modelled on Majewski. See Criminal Law Consolidation (Intoxication) Amendment Act 2004 (SA). See also Director of Public Prosecutions v Beard [1920] AC 479; [1920] All ER 21; R v Doherty (1887) 16 Cox CC 306 at 308 per Stephen J. See, for example, R v O’Connor (1980) 146 CLR 64 at 72 per Barwick CJ; B Fisse, Howard’s Criminal Law, 5th ed, Law Book Co, 1990, pp 439–47. See, for example, R v O’Connor (1980) 146 CLR 64 at 93 per Gibbs J. See A Simester, ‘Intoxication is Never a Defence’ (2009) 1 Crim LR 3. Owens v R (1987) 30 A Crim R 59; O’Leary v Daire (1984) 13 A Crim R 404; R v Ainsworth (1994) 76 A Crim R 127; R v Kingston [1994] 3 WLR 519. (1980) 146 CLR 64 at 114 per Murphy J. See also 12.51; R v Smith [1984] 2 Qd R 69; (1984) 10 A Crim R 322; Owens v R (1987) 30 A Crim R 59; R v Stokes (1990) 51 A Crim R 25 at 33 per Hunt J; R v Hamilton (1985) 31 A Crim R 167; R v Perks (1986) 41 SASR 335; 20 A Crim R 201; Leaf-Milham v R (1987) 47 SASR 499; 30 A Crim R 68; R v Hubert (1993) 67 A Crim R 181. R v Guthrie (1981) 40 ACTR 27; 52 FLR 171; 2 A Crim R 248; R v McBride [1962] 2 QB 167; [1961] 3 All ER 6. See 12.27–12.34. Sometimes called, somewhat inelegantly, ‘non-self-induced intoxication’: see 12.27–12.34 n 114. Bedi v R (1993) 61 SASR 269; 68 A Crim R 539 at 543. Evidence of self-induced intoxication will generally not mitigate a sentence: R v Lane (1990) 53 SASR 480 at 485–6; R v Redenback (1991) 52 A Crim R 95 at 99; R v Rosenberger; Ex parte Attorney-General (Qld) [1995] 1 Qd R 677 at 678; R v Dwyer [2008] QCA 117 at [2]; Hasan v R (2010) 222 A Crim R 306 at [20]–[24]; Director of Public Prosecutions (Acting) v Morgan [2015] TASCCA 11 at [27]. Only in exceptional circumstances where the accused’s state of intoxication is whole or partly excused will evidence of alcohol or drug consumption mitigate the penalty; R v Sewell (1981) 29 SASR 12 at 15; R v Coleman (1990) 19 NSWLR 467 at [25]–[33]; Rogers v R (1989) 44 A Crim R 301 at 315 per Wallace J. For the relevance of foetal alcohol spectrum disorder on sentencing, see LCM v The State of Western Australia [2016] WASC 164. In some cases, self-induced intoxication may lead to an aggravation of the penalty: see Baumer v R (1988) 35 A Crim R 340; (1987) 48 NTR 1; 27 A Crim R 143; R v Ireland (1987) 29 A Crim R 353: R v Mitchell (1994) 72 A Crim R 200. There may also be a statutory rule leading to an increase in penalty: see, for example, Criminal Code (NT) s 154(4). Criminal Code (Tas) s 17(2). [1920] AC 479 at 502. See also R v Doherty (1887) 16 Cox CC 306. A Dashwood, ‘Logic and the Lords in Majewski’ (1977) Criminal Law Review 532; G Orchard, ‘Drunkenness as a “Defence” to Crime’ (1977) 1 Criminal Law Journal 59. Director of Public Prosecutions v Beard [1920] AC 479; Reg v Sheehan [1975] 2 All ER 960. Thus, in England, voluntariness may be excluded by evidence of self-induced intoxication so as to obtain a complete acquittal only in the case of crimes of specific intent: R v Lipman [1970] 1 QB 152; R v Quick (1973) 57 Cr App R 722 at 735; R v Hardie [1984] 3 All ER 848. R v Keogh [1964] VR 400; R v Haywood [1971] VR 755; R v Tait [1973] VR 151; R v Bugg [1978] VR 251.

20. P Fairall, ‘Majewski Banished’ (1979) Criminal Law Journal 211; P Fairall, ‘Majewski in Retreat’ (1980) 4 Criminal Law Journal 264; G Orchard, ‘Criminal Responsibility and Intoxication — The Australian Rejection of Majewski’ (1980) New Zealand Law Journal 532; G Smith, ‘Footnote to O’Connor’s Case’ (1981) 5 Criminal Law Journal 270; G Walker, ‘Voluntary Intoxication: The Australian Response to Majewski’s Case’ (1979) 3 Criminal Law Journal 13. 21. For the majority, Barwick CJ, Stephen, Murphy and Aickin JJ; dissenting, Gibbs, Mason and Wilson JJ. 22. R v O’Connor (1980) 146 CLR 64 at 87–8. See further R v Stones (1956) SR (NSW) 25 at 33; Pemble v R (1971) 124 CLR 107; R v Ball, Bunce and Callis (1991) 56 SASR 126; 53 A Crim R 461. 23. R v O’Connor (1980) 146 CLR 64 at 85. For the effect of intoxication on reckless murder at common law, see R v Peterkin (1982) 6 A Crim R 351; R v Faure [1999] 2 VR 537. 24. Criminal Code Act 1924 (Tas) s 4(3): Gow v Davies (1992) 1 Tas R 1; 61 A Crim R 282; Tasmania Law Reform Institute, Intoxication and Criminal Responsibility, Report No 7, 2006, p 7. 25. Blacker v R (2011) 211 A Crim R 250 at 258. See 12.14 for the law as it applies to Pt 11AA of the Criminal Code (NT). 26. See Charlie v R (1999) 1999 CLR 387. Note that the Criminal Code (NT) s 318 states that a person who is not guilty of an offence against the person because of evidence of intoxication may be convicted of the alternative offences set out in ss 174C–174FA. Section 318 does not apply to murder or manslaughter which are subject to the Pt IIAA regime (see 12.14). 27. See Law Commission for England and Wales, Intoxication and Criminal Liability, Law Com No 214, 2009, [2.22], where the distinction between basic and specific intent is describes as ‘ambiguous, misleading and confusing’. 28. But even this is not certain: see R v Kahn [1990] 2 All ER 783. Attempted rape is a specific intent crime in Australia: see Attorney-General’s Reference No 1 of 1977 [1979] WAR 45; W O v DPP [2009] NSWCCA 275 at [77]. Section 14A(2) of the Criminal Code (Tas) is an example of legislative intervention which excludes consideration of intoxication if an accused is charged with certain attempted offences of a sexual nature. 29. The most important basic intent crimes would appear to be manslaughter, unlawful wounding, unlawfully causing grievous bodily harm, and assault. The most important specific intent crimes are murder (including constructive murder: see R v Stone (1956) 56 SR (NSW) 25 at 34; R v Grant (2002) 131 A Crim R 523 at 534–45), stealing and larceny, robbery, unlawfully entering premises, and inchoate offences such as attempts and conspiracy. 30. At common law the offence of rape does not require proof of intent to produce a specific result but rather intent to have intercourse without consent. However, rape is classified as a specific intent crime (Murray v R [1980] 2 NSWLR 526; but see R v Hornbuckle [1945] VLR 281, where the trial judge ruled otherwise) but not under the Codes: Holman v R [1970] WAR 2; R v Thompson [1961] Qd R 50 at 516 (comparing rape and attempted rape); Snow v R [1962] Tas SR 271. See also R v Daviault (1994) 93 CCC (3d) 21. See R v Tatton [2015] SCC 33, where the trial judges ruled that the statutory offence of ‘intentionally or recklessly causing damage by fire’ was a crime of specific intent. The decision was upheld by the Ontario Court of Appeal but overturned by the Supreme Court of Canada, which held that the offence was one of basic intent.

31. 32. 33. 34. 35. 36. 37. 38.

39.

40. 41. 42.

43.

44. 45. 46.

47. 48.

49. 50. 51. 52.

(1980) 146 CLR 64 at 85. (1980) 146 CLR 64 at 87. (1980) 146 CLR 64 at 104 per Stephen J. (1980) 146 CLR 64 at 79. Woolmington v DPP [1935] AC 462. Parker v R (1963) 111 CLR 610 at 632; Hawkins v R (1994) 179 CLR 500 at 513. R v Kamipeli [1975] 2 NZLR 610. In some cases, the evolution of the common law has affected the interpretation of the Code provisions: see Snow v R [1962] Tas SR 271 at 288–9, for the impact of Smyth v R (1957) 98 CLR 163 at 166 in construing s 17(3) of the Criminal Code (Tas). R v Kusu [1981] Qd R 136; (1980) 4 A Crim R 72; R v Miers [1985] 2 Qd R 138. In Kusu, the Queensland Court of Criminal Appeal suggested that the words ‘an intention to cause a specific result’ under s 28 should be interpreted literally. This would mean a slight divergence from Majewski. Cameron v R (1990) 47 A Crim R 397 at 410; Haggie v Meredith (1993) 9 WAR 206. Duffy v R [1981] WAR 72; R v Kaminski [1975] WAR 143 at 147 per Wickham J; Cameron v R (1990) 47 A Crim R 397 at 408 per Malcolm CJ. The jury must consider whether or not the accused actually had the requisite specific intent rather than whether or not he or she had capacity to form the intent. See Cutter v R (1997) 143 ALR 498; 94 A Crim R 152; R v Middleton [2003] QCA 431; Dodd v R [1978] WAR 209. The common law position is no different: see R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27. R v Kusu [1981] Qd R 136 at 140; R v Miers [1985] 2 Qd R 138 at 142; R v Mrzljak [2005] 1 Qd R 308 at 316. The use of the term may have derived from the Tasmanian decision of Snow v R [1962] Tas SR 271 at 283 where it was stated that s 17 of the Criminal Code (Tas) covers the field in respect to the relevance of intoxication. It has since been held that s 17 does not cover the field in respect to the relevance of intoxication: see Attorney-General’s Reference No 1 of 1996; Re Weiderman (1998) 7 Tas R 293. Criminal Code (Qld) s 323(1); Criminal Code 1913 (WA) s 301(1). Under the Codes, the excuses of accident is the substitute fault element for consequence offences such as wounding, grievous bodily harm and manslaughter. Criminal Code (Qld) ss 302(1)(a), 391(2); Criminal Code (WA) ss 279(1)(a)–(b), 371(2); R v O’Regan [1961] Qd R 78 at 88; Dodd v R [1978] WAR 209; R v Kusu [1981] Qd R 136; R v George [2013] 2 Qd R 150. See R O’Regan, Essays on the Australian Criminal Code, Law Book Co, Sydney, 1979, p 82. Section 23(2) of the Code (Qld) and s 23(1) of the Code (WA) are provisions of general application which state: ‘Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial’. See Kaporonovski v R (1973) 133 CLR 209 at 238 for the interpretation of the definition of provocation in s 268 of the Criminal Code (Qld). See, for example, R v Kusu [1981] Qd R 136 at 141, 142. See Brennan v R (1936) 55 CLR 253 for the principles of code interpretation. R v Thompson [1961] Qd R 503; Holman v R [1970] WAR 2; R v Kusu [1981] Qd R 136. There is uncertainty as to whether the concept of basic intent applies to the Code. The fault element for consequence crimes, such as manslaughter and wounding, is accident (Criminal Code (Qld) s 23(1)(b); Criminal Code (WA) s 23(B)). The fault element for circumstances

53.

54. 55. 56. 57. 58. 59. 60.

61.

62. 63. 64. 65. 66.

67.

68.

offences, such as rape and assault, is mistake of fact (s 24 of the Griffith Code). Therefore, it would seem unnecessary to impose a basic intent element to those offences that are defined by reference to conduct alone. However, basic intent has been held to be an element of the offence of assault even though the offence is defined by reference to conduct alone; see R v McIver (1928) 22 QJPR 173; Hall v Fonceca [1983] WAR 309 at 311; Murphy v Spencer [2013] WASC 256. Offences where the intent is not directed at a consequence or a result are possible exceptions. Under the Codes, such offences are rare but arguably include offences of unlawful stalking and obstructing railways (Criminal Code (Qld) ss 359B, 477) and taking part in an unlawful assembly and failing to disperse from an unlawful assembly (Criminal Code (WA) ss 63, 64). Criminal Code (Qld) s 461. R v Lockwood; Ex parte A-G [1981] Qd R 209 at 217, 221–2, 223. [2008] QCA 371 at [4]–[6]. See also R v Eustance [2009] QCA 28 at [18]. Criminal Code (Qld) s 302(1)(b); Criminal Code (WA) s 279(1)(b). [2013] 2 Qd R 150 at 160–1. The court’s decision has the potential to cause considerable confusion for juries as a murder trial may be prosecuted on the basis that there are multiple ways to find guilt. It may proceed on the basis that the accused intended to cause death or grievous bodily harm; or alternatively that the accused caused death while prosecuting one of a number of alternative unlawful purposes/offences. If one or more of the alternative unlawful purposes requires proof of intent while one or more has no fault element, a trial judge will face significant difficulty instructing the jury as to which offences evidence of intoxication is and is not relevant. See R v George [2013] 2 Qd R 150 at 157; R v Hayes [2008] QCA 371 at [77]. Intent is an element of all forms of accessorial liability; however, it is only expressed to be an element of the common purpose principle. See Criminal Code (Qld) ss 7–10; Criminal Code (WA) ss 7–10; R v Beck [1990] 1 Qd R 30, 34–5. R v O’Regan [1961] Qd R 78 at 85, 89; R v Kusu [1981] Qd R 136. [2009] QCA 28 at [24]. [2001] QCA 272 at [4]. [2001] QCA 272 at [49]. R v Palmer [1985] Tas R 138 at 154; (1985) 21 A Crim R 1 at 10; R v Bennett (1989) 45 A Crim R 45 at 47, 48; Attorney-General’s Reference No 1 of 1996; Re Weiderman (1998) 7 Tas R 293 at 297, 315, 317, 337; 99 A Crim R 386 at 389, 401, 409, 420. The majority ruled that the trial judge had incorrectly ruled that evidence of intoxication was relevant to the second limb of s 157(1)(c). Under the second limb, murder is established by reference to an objective standard that the accused ought to have known that his or her act was likely to cause death (also see Riley v Tasmania [2007] TASSC 61). For a critique of the decision, see R Bradfield, ‘Attorney-General’s Reference No 1 of 1996 Re Weiderman’ (1999) 23 Criminal Law Journal 41. Although the courts are yet to definitively determine whether evidence of intoxication can be relied on to raise doubts as to the existence of other mental states such as recklessness, the argument of the majority in Attorney-General’s Reference No 1 of 1996, Re; Weiderman supports the conclusion that such evidence is of relevance to all subjective fault elements. See Tasmania Law Reform Institute, 2006, above n 24, at 44–5.

69. Attorney-General’s Reference No 1 of 1996; Re Weiderman (1998) 7 Tas R 293 at 315, 319–20, 323 and 336. 70. Criminal Code 1995 (Cth) s 8.2(1); Criminal Code 2002 (ACT) s 31(1); Criminal Code (NT) s 34AS(1). These sections are subject to two exceptions. Evidence of self-induced intoxication can be considered when determining whether conduct was accidental and when determining whether the accused held a mistaken belief of fact. See Criminal Code (Cth) s 8.2(3)–(4); Criminal Code (ACT) s 31(2)–(3); Criminal Code (NT) s 43AS(2)–(3). For a detailed evaluation, see I Leader-Elliott, The Commonwealth Criminal Code: Guidelines for Practitioners, Commonwealth Attorney-General’s Department, Canberra, 2002, pp 145–51. 71. Criminal Code (Cth) s 8.2(2); Criminal Code (ACT) s 30(1); Criminal Code (NT) s 1. 72. For a critical evaluation, see J Tolmie, ‘Intoxication and Criminal Liability in New South Wales: A Random Patchwork?’ (1999) 23 Criminal Law Journal 218 at 220–2. 73. In Harkins v R [2015] NSWCCA 263 at [39]–[40] the court held that if an offence is defined so that intent only applies to a limited number of elements, evidence of intoxication is only relevant to that or those element/s to which intent applies. The distinction has little practical impact as unless the offence is defined to include alternative elements, the Crown must prove all elements of an offence. 74. Crimes Act 1900 (NSW) ss 61I, 61L; see R v DJB [2007] NSWCCA 209. 75. R v Petersen [2008] NSWDC 9 at [32]. 76. R v Grant (2002) 131 A Crim R 532 at 545; SW v R [2012] NSWCCA 103 at [73]. 77. Director of Public Prosecutions v Beard (1920) AC 479 at 504; and referred to in R v Grant (2002) 131 A Crim R 532 at [78]. 78. Criminal Law Consolidation Act 1935 (SA) s 268. 79. Criminal Law Consolidation Act 1935 (SA) s 268(2). 80. Criminal Law Consolidation Act 1935 (SA) s 268(3). Section 268(4) and (5) provides that where the physical elements of an offence against the person can be established but the fault element cannot be proven due to intoxication, the accused can be convicted of criminal negligence for causing death or for causing serious harm. 81. Ryan v R (1967) 121 CLR 205 at 217. 82. The common law’s term ‘voluntary’ and the state Code’s term ‘willed’ are in effect identical in meaning: see R v Falconer (1990) 171 CLR 30 at 40. 83. (1990) 171 CLR 30 at 39. 84. See Duffy v R (1980) 3 A Crim R 1; R v Williamson (No 1) (1996) 92 A Crim R 24; Blacker v R (2011) 211 A Crim R 250; R v Thurlow [2015] QCA 89. 85. Duffy v R (1980) 3 A Crim R 1 at 9, 13; R v Williamson (No 1) (1996) 92 A Crim R 24 at 29, 39–40, 49; Blacker v R (2011) 211 A Crim R 250 at 256, 260; R v Thurlow [2015] QCA 89 at [31]. 86. [2009] SASC 256 at [16]. 87. For offences governed by Pt II of the Criminal Code (NT), see Blacker v R (2011) 211 A Crim R 250 at 258. In England, self-induced automatism caused by intoxication is a defence to crimes of specific intent only: Director of Public Prosecutions v Majewski [1977] AC 443. 88. Acts Interpretation Act 1931 (Tas) s 36. 89. The relevance of intoxication to voluntariness was accepted in Victorian courts prior to the High Court decision in O’Connor: see R v Keogh [1964] VR 400; R v Haywood [1971] VR 755. 90. Tucker v R (1984) 13 A Crim R 447 at 450–1 per King CJ.

91. ‘[A]n intent to do the physical act involved in the crime charged is indispensable to criminal responsibility’: R v O’Connor (1980) 146 CLR 64 at 76 per Barwick CJ. See also Egan v R (1985) 15 A Crim R 20 at 41 per White J. 92. Martin v R (1983) 9 A Crim R 376 at 401 per White J. See also R v O’Connor (1980) 146 CLR 64 at 71–2 per Barwick CJ: ‘It is not to be assumed … that such expressions [total and partial intoxication] will have any particular meaning for a jury’. See also Cooke v R (1985) 39 SASR 225; 16 A Crim R 304 at 314, 316. 93. Martin v R (1983) 9 A Crim R 376 at 404. 94. See R v Williamson (No 1) (1996) 92 A Crim R 24; Blacker v R (2011) 211 A Crim R 250 at 258. The cases do not distinguish between total and partial intoxication; however, it would be unnecessary to consider what the accused knew of the nature of his or her act if the evidence was of total intoxication. In such circumstances, the mind would not be directing the body. 95. R v Williamson (No 1) (1996) 92 A Crim R 24 at 29, 42–3; Blacker v R (2011) 211 A Crim R 250 at 257–8, 264. 96. R v Williamson (No 1) (1996) 92 A Crim R 24 at 28. 97. Egan v R (1985) 15 A Crim R 20 at 41; see also R v Curtis (1991) 55 A Crim R 209 at 219. 98. Criminal Code (Cth) s 4.2(6); Criminal Code (ACT) s 15(5); Criminal Code (NT) s 43AF; Criminal Code (Qld) s 23; Criminal Code (Tas) s 13; Criminal Code (WA) s 23A. For offences governed by Pt II of the Criminal Code (NT), the requirement of voluntariness is derived from case law: see Blacker v R (2011) 211 A Crim R 250 at 258, n 11. 99. Queensland: Kaporonovski v R (1973) 133 CLR 209 at 227; R v Kusu [1981] Qd R 136; R v Miers [1985] 2 Qd R 138; Re Bromage [1991] 1 Qd R 1 at 5; Western Australia: Cameron v R (1990) 47 A Crim R 397 at 410; R v Battle (1993) 8 WAR 449; Haggie v Meredith (1993) 9 WAR 206; Tasmania: Snow v R [1962] Tas SR 271; R v Martin [1979] Tas R 211; 1 A Crim R 85 at 87; Arnol v R (1981) 7 A Crim R 291; R v Palmer [1985] Tas R 138; (1985) 21 A Crim R 1; R v Bennett (1989) 45 A Crim R 45. 100. Thereby adopting the stance taken in Majewski: see 12.6. 101. [1962] Tas SR 271 at 284. The provision reads: ‘No person shall be criminally responsible for an act, unless it is voluntary and intentional, nor, except as hereafter expressly provided for, an event which occurs by chance’. 102. His Honour expressed reservations again, 27 years later, in R v Bennett (1989) 45 A Crim R 45 at 48. 103. The Criminal Code (Cth) s 8.2(3) and the Criminal Code (ACT) s 31(2) allow evidence of self-induced intoxication to be taken into account in determining whether conduct was accidental. 104. Arnol v R [1981] Tas R 157; 7 A Crim R 291; R v Hodgson [1985] Tas R 75; R v Palmer [1985] Tas SR 138; (1985) 21 A Crim R 1; R v Bennett (1989) 45 A Crim R 45. 105. See also Duffy v R (1980) 3 A Crim R 1 at 9–10, where Wallace J suggests that evidence of intoxication can be considered when determining whether an accused knew of the nature of his or her conduct. His Honour’s statement was not supported by the other members of the court; the statement was based on the incorrect assertion that the decision of R v O’Connor (1980) 146 CLR 64 is of application to the Criminal Code. 106. See Re Bromage [1991] 1 Qd R 1 at 5; Haggie v Meredith (1993) 9 WAR 206 at 213; Battle v R (1993) 8 WAR 449 at 464. In Cameron v R (1990) 47 A Crim R 397 at 412–13, Malcolm CJ expressed sympathy for Macrossan J’s view, while noting that it was against

107. 108.

109. 110. 111. 112.

113.

114.

115. 116.

117. 118.

119. 120. 121. 122. 123.

124. 125.

126.

the weight of authority. Haggie v Meredith (1993) 9 WAR 206 at 213; Re Bromage [1991] 1 Qd R 1 at 5; Battle v R (1993) 8 WAR 449 at 464; R v Arnold; Ex parte A-G (Qld) [2002] QCA 357 at [60]. [2009] QCA 375 at [37]. See also R v Murray (2002) 211 CLR 193, were the majority held that unwilled act was open as an excuse in circumstances where the appellant had shot and killed the victim following a drinking session. The members of the High Court did not refer to the possible role that intoxication played in contributing to the pulling of the trigger which may have been a reflex response or a response to being hit on the head. [2016] QCA 30 at [75]. [2016] QCA 30 at [111]. See C Davis, ‘Sexomnia — Excusable or Just Insane’ (2015) 39 Criminal Law Journal 21; Henri Daviault v R (1994) 3 SCR 63; R v Luedecke [2008] ONCA 716. This position is supported by s 28(2) of the Criminal Code (Qld), which only excludes consideration of the contributory role of intoxication in circumstances where the defence is that of insanity (see 12.45). Criminal Code (Cth) s 4.2(6); Criminal Code (ACT) s 15(5); Criminal Code (NT) s 43AF(5); Crimes Act 1900 (NSW) s 428G(1); Criminal Law Consolidation Act 1935 (SA) s 268(2). See Blacker v R (2011) 211 A Crim R 250 at 264. The term ‘involuntary’ does not correspond in meaning with the concept of involuntariness discussed at 12.17. With this caveat, the term will be used here for convenience, being more succinct than the expression ‘non self-induced’. For a definition of non-self-induced intoxication, see Criminal Code (Cth) s 4.2(7); Criminal Code (ACT) s 30(2); Criminal Code (NT) s 43AR(1). It is submitted that Parks J’s assertion in Pearson’s case (1835) 2 Lewin 144; 168 ER 1108 that ‘[i]f a party be made drunk by stratagem, or by the fraud of another he is not responsible’ does not represent the modern law in Australia: see R v O’Connor (1980) 146 CLR 64 at 72 per Barwick CJ. In R v Kingston [1994] 3 WLR 519 at 528, Lord Mustill said that the dictum could not be relied upon as a foundation for a modern law of intoxication. See 12.31–12.34. See J Smith, ‘Case and Comment: R v Kingston’ [1993] Crim LR 784 (Ct App); [1994] Crim LR 846 (HL); S Gardiner, ‘Uncontrollable Intention in Criminal Law’ (1994) 110 Law Quarterly Review 8; A Sullivan, ‘Involuntary Intoxication and Beyond’ (1994) Criminal Law Review 272. [1994] QB 81 at 87. [1995] 2 AC 355 at 365 per Lord Mustill. R v O’Connor (1980) 146 CLR 64 at 72 per Barwick CJ. [1962] Tas SR 271 at 278 per Crawford J. See Re Bromage [1991] 1 Qd R 1 at 8, where it was held that the effect of s 28 is that s 27 applies to three different states of mind: a mental disease; a natural mental infirmity; and a mind disturbed by unintentional intoxication or stupefaction. See R v Corbett [1903] St R Qd 246 at 249 per Griffith CJ; Haggie v Meredith (1993) 9 WAR 206 at 210. See R v Doyle [1971] WAR 110 at 111; Re Bromage [1991] 1 Qd R 1 at 11; Battle v R (1992) 8 WAR 449 at 456; R v Hubert (1993) 67 A Crim R 181 at 199; Re Pitt [2000] QCA 30 at [3]. The Criminal Law Amendment Act 1997 (Qld) amended s 28(2) so that the defence of

127.

128.

129. 130. 131. 132. 133. 134.

135. 136.

137. 138.

139. 140.

141. 142. 143.

involuntary intoxication does not apply if the accused ‘to any extent intentionally caused himself or herself to become intoxicated or stupefied …’ (emphasis added). The term ‘other agent’ has been interpreted broadly to not only include a toxic substance but also ‘a state or condition which operates to produce an effect’: see R v Clough (2010) 200 A Crim R 140 at 147. Involuntary intoxication is defined in s 1 of the Code. Section 7 has the effect that intoxication is presumed to be voluntary unless it is proven on the balance of probability to be involuntary. Section 43A defines mental impairment to include involuntary intoxication. An accused has a defence under s 43C of lack of mental impairment when it is proven that he or she was involuntarily intoxicated and that he or she was deprived of one of the capacities specified in the section. Criminal Code (NT) s 43I. Criminal Code (Cth) s 8.5; Criminal Code (ACT) s 34; Criminal Code (NT) s 43AV. Leader-Elliott, above n 70, p 167. See also Hadba v R (2004) 146 A Crim R 291; [2004] ACTSC 62. An exception is the defence of accident which does not require evidence of a belief or of a mental malfunction: see Criminal Code (Qld) s 23(1)(b); Criminal Code (WA) s 23B. Daniels v R (1989) 1 WAR 435 at 445; McCullough v R [1982] Tas R 43 at 53; Criminal Code (Cth) s 8.4(1); Criminal Code (ACT) s 33(1); Criminal Code (NT) s 43AU(1). Daniels v R (1989) 1 WAR 435 at 445; McCullough v R [1982] Tas R 43 at 53 (in the context of a subsequently repealed self-defence provision); R v Mrzljak [2005] 1 Qd R 308 at 315, 321; Aubertin v Western Australia (2006) 33 WAR 87 at 96; R v O’Lounghlin [2011] QCA 123 at [33]–[34]; Criminal Code (Cth) s 8.4(2); Criminal Code (ACT) s 33(3); Criminal Code (NT) s 43AU(3). See R v O’Lounghlin [2011] QCA 123 at [33]–[41]. See also Harmer v Grace [1980] Qd R 395; Pascoe v Christie [1984] 1 Qd R 464 at 466; Flyger v Auckland City Council [1979] 1 NZLR 161. The courts approach could not apply under the Griffith Code: see Criminal Code (Qld) s 28(2); Criminal Code (WA) s 28(2); Re Bromage [1991] 1 Qd R 1; R v Clough (2010) 200 A Crim R 140. Criminal Code (Cth) s 8.4(3); Criminal Code (ACT) s 33(4); Criminal Code (NT) s 43AU(4). See also Crimes Act 1958 (Vic) s 322T(4), which similarly states that in the case of nonself-induced intoxication the reasonableness of an accused belief or response is assessed by reference to the standards of a reasonable person intoxicated to the same extent as the accused. The Victorian provision only applies to self-defence, duress and sudden or extraordinary emergency. See R v Williams [1988] 1 Qd R 289, which indirectly considered this issue. Patterson v R (1982) 6 A Crim R 331; Jaggard v Dickinson [1981] QB 527; Gow v Davies (1992) 61 A Crim R 282; McCullough v R [1982] Tas R 43; (1982) 6 A Crim R 274; R v Helmhout (1980) 30 ACTR 1; 1 A Crim R 103; Beckford v R [1988] AC 130; [1987] 3 All ER 425; [1987] 3 WLR 611. The term the ‘accused [had] reasonable grounds’ is derived from the High Court decision of Zecevic v DPP (Vic) (1987) 162 CLR 645; 25 A Crim R 163. Conlon was decided before Pt 11A of the Crimes Act 1900 (NSW) came into force: see 12.15. See also R v Kurtic (1996) 85 A Crim R 57; R v Katarzynski [2002] NSWSC 613 at [7]– [10].

144. [1982] Tas R 43; (1982) 6 A Crim R 274 at 281 (per curiam). These comments were addressed to s 46(2) of the Criminal Code (Tas), which has since been replaced: see 10.5; R v Walsh (1991) 60 A Crim R 419. The Tasmania Law Reform Institute in Review of the Law Relating to Self-defence, Final Report No 20, 2015, at [2.3.7] stated that the relevance of intoxication to the current self-defence provision remains unresolved: see 12.36 for the Griffith Code position in the context of mistake of fact. 145. Criminal Code (Cth) s 10.4(2); Criminal Code (ACT) s 42(2); Crimes Act 1900 (NSW) s 418(2); Criminal Code (NT) ss 43BD(2), 29(2); Crimes Act 1958 (Vic) s 322K(2). 146. [2002] NSWSC 613 at [26]–[27]. 147. Criminal Code (Cth) s 8.4(2); Criminal Code (ACT) s 33(3); Criminal Code (NT) s 43AU(3); Crimes Act 1958 (Vic) s 233T(3); Dal Cortivo v R (2010) 204 A Crim R 55 at 62. For a detailed analysis of this provision, see Leader-Elliott, above n 70, pp 161–5. 148. Crimes Act 1958 (Vic) s 233T(4). 149. Criminal Law Consolidation Act 1935 (SA) s 15(1); Bedi v R (1993) 61 SASR 269 at 273; R v Clothier [2002] SASC 9 at [96]. 150. [2016] EWHC 33 at [30]. 151. See Criminal Code (Cth) s 10.4; Criminal Code (ACT) s 43; Crimes Act 1900 (NSW) s 418; Criminal Code (NT) ss 29, 438D; Criminal Code (Qld) s 267; Criminal Code (Tas) s 40; Crimes Act 1958 (Vic) ss 322K, 322T; Criminal Code (WA) s 244. However, see Criminal Law Consolidation Act 1935 (SA) ss 15A, 15C for a defence for conduct against a home invader that is not reasonably proportionate (the defence does not apply if the accused was substantially affected by illicit drugs. 152. (1993) 69 A Crim R 92 at 98. See also Viro v R (1978) 141 CLR 88 at 146 per Mason J. 153. This position has recently been given statutory effect in Victoria: see Crimes Act 1958 (Vic) s 322T. 154. [1981] VR 443 at 448. 155. Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic); see Crimes Act 1958 (Vic) ss 322R, 322S. 156. Crimes Act 1958 (Vic) s 322T(2), (3). 157. Criminal Code (Cth) ss 10.3, 8.4(2); Criminal Code (ACT) ss 41, 33(3); Criminal Code (NT) ss 33, 43BC, 43AU(3); Criminal Code (Qld) s 25; Criminal Code (WA) s 25 (3)(b), (c); Bayley v Police (2007) 99 SASR 413 at 427–8. 158. Under the model Criminal Codes, the definition of duress imposes a purely objective test, therefore the personal characteristics of the accused are not considered when determining whether he or she held a ‘reasonable belief ’: see Oblach v R (2005) 158 A Crim R 586 at 596, 602. By contrast, Tasmania is the only jurisdiction where the defence does not include an objective criterion: see Criminal Code (Tas) s 20. 159. In Victoria, evidence of intoxication is not to be taken into consideration; see Crimes Act 1958 (Vic) ss 322O, 322T(2), (3). The same approach applies in most other jurisdictions: see R v Mrzljak [2005] 1 Qd R 308 at 315, 321; Criminal Code (Cth) ss 10.2, 8.4(2); Criminal Code (ACT) ss 40, 33(3); Criminal Code (NT) ss 40(1)(c), 43BB, 43AU(3); Criminal Code (Qld) s 31(d)(ii), (iii); Criminal Code (WA) s 32(b); Oblach v R (2005) 158 A Crim R 586 at 596, 602. 160. R v Abusafiah (1991) 24 NSWLR 531 at 545 per Hunt J. 161. But see Hunt J’s opinion in R v Abusafiah (1991) 24 NSWLR 531 at 540–1 that it was impermissible to apply the law of provocation to the law of duress because the two defences were materially different.

162. See, for example, R v Copeland (1997) 194 LSJS 1. 163. See R v Cooke (1985) 16 A Crim R 304 at 314; Censori v R [1983] WAR 89; (1983) 13 A Crim R 263 at 274. 164. R v Georgatsoulis (1994) 62 SASR 351. 165. Stingel v R (1990) 171 CLR 312; R v Perks (1986) 41 SASR 335; 20 A Crim R 201; R v Cooke (1985) 39 SASR 225; 16 A Crim R 304; Censori v R [1983] WAR 89; (1983) 13 A Crim R 263; R v O’Neill (1981) 4 A Crim R 404; R v Webb (1977) 16 SASR 309; R v Croft [1981] 1 NSWLR 126; (1981) 3 A Crim R 307. 166. Crimes Act 1900 (NSW) s 23(5). 167. In the Northern Territory, evidence of intoxication is relevant to the subjective test of provocation but not the objective test, as the Criminal Code (NT) s 158 gives expression to an entirely objective ordinary person test. 168. The accused’s personal characteristics are of no relevance to the objective test under s 23(2) (d) of the Crimes Act 1900 (NSW); therefore, evidence of involuntary intoxication is only relevant to whether the accused lost his or her self-control. 169. See Criminal Code (Cth) s 7.3(9); Criminal Code (ACT) s 27(2); Criminal Code (NT) s 43; Criminal Code (Qld) s 28(2); Criminal Code (WA) s 28(2); R v Falconer (1990) 171 CLR 30 at 53; R v Martin (No 1) (2005) 159 A Crim R 314 at 317. 170. See, for example, R v Martin (No 1) (2005) 159 A Crim R 314. 171. [2013] EWCA Crim 223 at [18]. 172. Lucas v R (1970) 120 CLR 171; R v Connolly (1959) 76 WN 184; Attorney-General for Northern Ireland v Gallagher [1963] AC 349; Dearnley v R [1947] St R Qd 51 at 61 per Philp J. 173. [1920] AC 479 at 500. 174. Sentencing Advisory Council, Mental impairment and the Law: A Report on the Operation of Part 8A of the Criminal Law Consolidation Act 1935 (SA), 2014, p 80. 175. Criminal Law Consolidation Act 1935 (SA) s 269A. 176. R v Meddings [1966] VR 306; R v Derbin [2000] NSWCCA 361; DPP v Whelan [2006] VSC 319; R v Doolan [2010] NSWSC 147. This may also be the position in Tasmania, which adopts the common law (see 12.31), and under in the model Criminal Codes. 177. Director of Public Prosecutions v Whelan [2006] VSC 319; R v Jennings [2005] NSWSC 789 (in the context of diminished responsibility). 178. R v Porter (1933) 55 CLR 182; Jeffrey v R [1982] Tas R 199; R v Quick; R v Paddison [1973] QB 910. 179. (1955) 56 SR(NSW) 25 at 29. 180. Criminal Code (Qld) s 28(2); Criminal Law Consolidation Act 1935 (SA) s 269A (definition of the term ‘mental impairment’); Criminal Code (WA) s 28(2). 181. R v Weeks (1993) 66 A Crim R 466 at 474 per Nash DCJ. 182. Criminal Code (Qld) s 304A; Likewise, s 14 of the Crimes Act 1900 (ACT) and the former s 23A of the Crimes Act 1900 (NSW) do not expressly refer to intoxication. 183. R v Whitworth [1989] 1 Qd R 437 at 445; R v Nielsen [1990] 2 Qd R 578; R v Miers [1985] 2 Qd R 138. The courts interpreting the former s 23A of the Crimes Act 1900 (NSW) did the same: see R v De Souza (1997) 41 NSWLR 656; R v Jones (1986) 22 A Crim R 42. 184. R v Whitworth [1989] 1 Qd R 437 at 446; R v Cannon [1997] QCA 334; Re Clough [2007] QMHC 002. 185. Crimes Act 1900 (NSW) s 23A(3); Criminal Code (NT) s 159(3).

186. R v Jennings [2005] NSWSC 789. 187. See Editorial, ‘An Integrated Approach to Self-induced Intoxication’ (1998) 22 Criminal Law Journal 137. 188. Summary Offences Act 1953 (SA) s 21Q. The Act does not define the term intoxication other than to say it is by way of alcohol or other substance or a combination of both. It is a defence to prove on the balance of probabilities that the accused believed on reasonable grounds that the person was not intoxicated. 189. Attorney-General for Northern Ireland v Gallagher [1963] AC 349. The rule is consistent with the leading decision on contemporaneity involving a single transaction where the mental state is divorced from the actus reus: Thabo Meli v R [1954] 1 All ER 373. 190. (1980) 146 CLR 64 at 103 per Stephen J. 191. Criminal Code (Cth) s 8.2(5); Criminal Code (ACT) s 31(4); Crimes Act 1900 (NSW) s 428C; Criminal Code (NT) s 43AS(4); Criminal Law Consolidation Act 1935 (SA) s 268(1). 192. Jiminez v R (1992) 173 CLR 572; 59 A Crim R 308; Kroon v R (1990) 55 SASR 476; 52 A Crim R 15. Impaired, reduced or partial control would not establish automatism on a charge of driving without awareness: see Attorney-General’s Reference (No 2 of 1992) [1993] 3 WLR 982; and see R v Hennessy [1989] 2 All ER 9; [1989] 1 WLR 287; R v Smith [1979] 3 All ER 605 at 611; Watmore v Jenkins [1962] 2 QB 572; Hill v Baxter [1958] 1 QB 277 at 285; [1968] 1 All ER 193. 193. [1964] SASR 22; Barker v Burke [1970] VR 884; Missingham v Rogers; Ex parte Missingham (1985) 2 MVR 367; R v Penno [1990] 2 SCR 865 at 899; Ministry of Transport v Strong [1987] 2 NZLR 295 at 303. 194. See also Ainsworth v O’Sullivan [1955] SASR 323; R v Doyle [1971] WAR 110; R v Hennessy [1989] 2 All ER 9; [1989] 1 WLR 287. 195. In Missingham v Rogers; Ex parte Missingham (1985) 2 MVR 367, intoxicated automatism was held not to be a defence under s 23 of the Criminal Code (Qld) to a charge of driving under the influence of intoxicating liquor. 196. Discussed in Tolmie, above n 72, at 224. 197. Edwards v MaCrae (1991) 14 MVR 193; Edwards was approved in Director of Public Prosecutions v Dover and The County Court of Victoria [2013] VSCA 233 at [38]–[39] and referred to in Hadba v R (2004) 146 A Crim R 291; [2004] ACTSC 62. 198. However, see Aslan v R [2015] NSWDC 185 at [37]. 199. Hale, Pleas of the Crown, vol 1, Professional Books, London, 1972, p 466. See also R v Martin (1984) 16 A Crim R 87 at 89; Tajber v R (1986) 23 A Crim R 189. 200. Victoria and South Australia apply the common law; see also Crimes Act 1900 (ACT) s 12(1)(a), (b), (c); Crimes Act 1900 (NSW) s 18(a), (c). Under the Griffith Code and the Northern Territory Code, the fault element for murder is intent: see Criminal Code (NT) s 156(1)(c): Criminal Code (Qld) s 302(1)(a); Criminal Code (WA) s 279(a), (b). The fault elements for murder in Tasmania are intent to cause death or intent to cause bodily harm in circumstances where the accused knew that death was likely to be caused or ought to have known that the conduct or omission was likely to cause death: see Criminal Code Act 1924 (Tas) s 157(1)(a), (b), (c). 201. New South Wales, Queensland, the Australia Capital Territory and the Northern Territory all have partial defences of provocation and diminished responsibility. Queensland also has a partial defence of killing for preservation in an abusive domestic relationship. South Australia has a partial defence of provocation. The other jurisdictions have neither a partial

202.

203. 204. 205.

206. 207.

208. 209. 210. 211.

212. 213. 214. 215. 216.

defence of provocation nor diminished responsibility. Wilson v R (1992) 174 CLR 313; 61 A Crim R 63. All Australian jurisdictions have negligent manslaughter. Queensland, Western Australia and the Northern Territory do not define the second form of manslaughter by reference to an unlawful dangerous act. In Queensland and Western Australia, it is referred to as ‘Chapter 28 manslaughter’, the unlawful causing of another’s death that does not amount to murder. The fault element of Chapter 28 manslaughter is established by proof that the event was intended or foreseen or was foreseeable: see Criminal Code (Qld) s 23(1)(b); Criminal Code (WA) s 23B. The Criminal Code (NT) defines manslaughter as conduct engaged in by the assessed where the accused recklessly or negligently causes death of another (s 160). Evidence of intoxication is irrelevant as to whether the accused voluntarily and intentionally engaged in the conduct that caused death (see Criminal Code (NT) ss 43AF(5), 43AS(1)). However, evidence of intoxication is relevant where the Crown’s case is based on the subjective fault element of recklessness or where the conduct was accidental (see Criminal Code (NT) s 43AS(2)). The relevance of intoxication where the Crown’s case is based on negligence is determined by reference to Criminal Code (NT) s 43AT. This dual effect of intoxication is relevant in other cases: see R v Egan (1985) 15 A Crim R 20 at 41 per White J. R v Martin (1983) 9 A Crim R 376 at 406–7 per White J; Tajber v R (1986) 23 A Crim R 189. This is not the case under the Griffith Code, which states that evidence that the act was unwilled has no application to an offence based on negligence: see Criminal Code (Qld) s 23(1); Criminal Code (WA) s 23A(1). R v Guthrie (1981) 40 ACTR 27; 2 A Crim R 248. But see Barker v Burke [1970] VR 884. But see Crimes Act 1900 (NSW) s 428F, which provides that, where it is necessary to compare the accused’s mental state with that of a reasonable person, the comparison is to be made between the accused’s mental state and that of a sober reasonable person. Arguably, the specific rule in s 428E(b) should be viewed as an exception to the general rule in s 428F. Criminal Code (Cth) s 8.3(1); Criminal Code (ACT) s 32(1); Criminal Code (NT) s 43ST(1). Criminal Code (Cth) s 8.3(2); Criminal Code (ACT) s 32(2); Criminal Code (NT) s 43ST(2). See Leader-Elliott, above n 70, pp 155–7. See Bedi v R (1993) 61 SASR 269; 68 A Crim R 539 at 542; R v Perks (1986) 41 SASR 335; 20 A Crim R 201; Stokes and Difford v R (1990) 51 A Crim R 25 at 32 per Hunt J; R v Hayes [2008] QCA 371 at [6], [63]–[67]. R v O’Connor (1980) 146 CLR 64 at 87 per Barwick CJ; Le Broc (2000) 2 VR 43. See also 12.64. R v O’Connor (1980) 146 CLR 64 at 466; Viro v R (1978) 141 CLR 88 at 112 per Gibbs J; R v Shaw [1981] 2 NSWLR 648; R v Summers (1986) 22 A Crim R 47 at 60. Director of Public Prosecutions v Majewski [1977] AC 443; [1976] 2 All ER 142 at 151 per Lord Elwyn-Jones LC. R v Munro (1981) 4 A Crim R 67; Murray and Manton v R [1980] 2 NSWLR 526; (1980) 2 A Crim R 418; R v Shaw [1981] 2 NSWLR 648. (1981) 6 A Crim R 259 at 263 per Reynolds JA. See also R v Wilson (1986) 22 A Crim R 130 at 138.

217. Criminal Law Consolidation (Intoxication) Amendment Act 2004 (SA) s 269; and see R v Mallett [2003] SASC 332 at [9] per Doyle CJ. 218. (2007) 177 A Crim R 268 at 286. The appeal was dismissed on the grounds that the failure to direct the jury as to the relevance of intoxication had not resulted in a miscarriage of justice. 219. R v Haidley [1984] VR 229; (1983) 10 A Crim R 1 at 8; R v Carn (1982) 5 A Crim R 466; R v Fowler (1985) 39 SASR 440; 17 A Crim R 16 at 27; R Pattenden, ‘Conflicting Approaches to Psychiatric Evidence in Criminal Trials: England, Canada and Australia’ (1986) Criminal Law Review 92; B Selinger, ‘Expert Evidence and the Ultimate Question’ (1986) 10 Criminal Law Journal 246. 220. [1980] VR 353 at 363. See also R v Carn (1982) 5 A Crim R 466; R v Haidley [1984] VR 229. 221. R v Honner [1977] Tas SR 1; Schultz v R [1982] WAR 171. 222. Haggie v Meredith (1993) 9 WAR 206 at 213 per Scott J. 223. Section 7 of the Criminal Code (NT) creates a presumption that intoxication was selfinduced and therefore the defence must prove on the balance of probabilities that it was involuntary: see above n 128. 224. Dearnley v R [1947] St R Qd 51 at 62; R v Arnold; Ex parte A-G (Qld) [2002] QCA 357 at [44]; R v Clough (2010) 200 A Crim R 140 at 142, where the Court of Appeal failed to criticise the trial judge’s direction that the defence must prove on the balance of probabilities that involuntary intoxication deprived him or her of one of the capacities identified in s 27 of the Criminal Code. 225. See O’Regan, above n 47, pp 74–5. 226. R v Quick; R v Paddison [1973] QB 910; R v Carter [1959] VR 105; Cooper v McKenna; Ex parte Cooper [1960] Qd R 406; Jeffrey v R [1982] Tas R 199; 7 A Crim R 55. 227. Dearnley v R [1947] St R Qd 51 at 62 per Philp J. 228. Tolmie, above n 72, at 237, criticising the New South Wales law on intoxication. 229. See Tasmania Law Reform Institute, 2006, above n 24; The Law Commission, Intoxication and Criminal Liability, Report No 314, 2009. Law reform bodies have also addressed the specific issue of the relationship between intoxication and mental impairment: see New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Diversion, Report 135, 2012, 5.94–5.102; People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report No 138, 2013, 4.86–4.89; Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Report No 27, 2014, 4.70–4.80; Sentencing Advisory Council, above n 174, 2.232–2.317.

[page 369]

13 The Defence of Insanity Introduction 13.1 Recognition of mental illness as a basis for excluding criminal responsibility is of long standing at common law,1 and the defence of insanity (howsoever called) is well established in all Australian jurisdictions. The defence goes by a variety of labels: the defence of ‘mental illness’ in New South Wales;2 ‘mental incompetence’ in South Australia;3 and ‘mental impairment’ in Victoria,4 a term used by the newer criminal codes as well,5 while the older codes retain the archaic reference to ‘insanity’.6 In deference to history, the term ‘insanity’ is used in a generic sense throughout this chapter.7 13.2 The defence of mental illness is raised with surprising frequency, given that the outcome of a successful plea is that the defendant will become a forensic patient.8 Although all jurisdictions now have regular review processes,9 a forensic patient does not have a fixed term of detention and may be detained indefinitely.10 [page 370] 13.3 Many people who come into contact with the criminal justice system suffer from a range of mental health problems,11 the symptoms of which may have relevance to criminal responsibility in cases where

charges are laid.12 Severe affective disorders and schizophrenia in particular may, if uncontrolled by medication, produce serious cognitive and emotional disturbances and bizarre dysfunctional behaviour.13 An additional problem is the potential for confusion between those with some form of cognitive impairment and those suffering a mental illness. 13.4 One moral justification for the defence of insanity is that a person severely affected by mental illness or cognitively impaired is simply not responsible, or not fully responsible, for his or her actions, and therefore not deserving of punishment, regardless of any social purpose that may be served, such as general deterrence.14 Another moral justification is that there is little if any social purpose [page 371] to be served by punishing someone who is beyond the control of the law by reason of mental illness at the time of committing the offence.15 The combined effect of these arguments is that the usual purposes of punishment, namely deterrence and retribution, lose traction when dealing with the mentally ill. In some cases, clinical intervention for therapeutic reasons or social protection is called for — but clearly for social defence, not punishment. The extent to which moral responsibility for wrongful conduct is diminished by mental illness is a difficult issue.16 Of course, legal responsibility is not coterminous with moral responsibility but, for serious crimes, they are inextricably related. 13.5 Mental illness or cognitive impairment generally has relevance at various stages in the criminal trial process: first, in determining whether the defendant is mentally competent to plead to the charge; second, in deciding whether a person regarded as fit to plead has become mentally incompetent during the trial; third, as a defence to the charge leading to a special verdict;17 and, finally, in mitigation of penalty.18 In all jurisdictions there are statutory provisions governing the

[page 372] insanity defence and fitness to plead.19 This chapter focuses on the relevance of mental illness as a defence to a criminal charge.20 13.6 In all states and territories there are statutes dealing with the treatment of those suffering from mental illness.21 The various statutes contain definitions of mental illness in similar, but not identical, terms. For present purposes, it is important to appreciate that these statutory definitions relate to the statutory purpose of the legislation, and do not determine the scope or meaning of the insanity defence. The definitions are not determinative of the criminal responsibility standard contained within the insanity defence. Statements suggesting that ‘disease of the mind’ or ‘mental unsoundness’ are equivalent to ‘mental illness’ should not be taken to restrict the criminal responsibility standard to the statutory therapeutic meaning.22 In some cases, this is obvious; for example, the Western Australian Criminal Code offers a separate definition of ‘mental illness’, namely, ‘an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.’ It is not suggested that the civil definitions have no relevance within the criminal trial. It would be odd if there was no connection between the insanity defence and the concept of mental illness recognised for therapeutic purposes. But it is inappropriate to apply the statutory definitions contained in the mental health legislation as the test of insanity where insanity is raised at a criminal trial.23 [page 373] 13.7 At the risk of oversimplification, in South Australia, ‘mental illness means any illness or disorder of the mind’.24 In Victoria, it is a ‘medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’.25 In Queensland, it is ‘a

condition characterised by a clinically significant disturbance of thought, mood, perception or memory’.26 In New South Wales, it is ‘a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: (a) delusions, (b) hallucinations, (c) serious disorder of thought form, (d) a severe disturbance of mood, (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d)’.27 In Tasmania, a person is taken, for the purposes of the Act, to have a mental illness if he or she experiences, temporarily, repeatedly or continually, a serious impairment of thought (which may include delusions); or a serious impairment of mood, volition, perception or cognition.28 In Western Australia, a person has a mental illness if the person has a condition that is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; and it significantly impairs (temporarily or permanently) the person’s judgment or behaviour.29 Some of the statutory expositions seek to reassure that certain factors do not per se indicate mental illness; for example, holding or refusing to hold a particular religious, cultural, philosophical or political belief or opinion, or being a member of a particular racial group, or having a particular sexual preference or sexual orientation.30 In the Northern Territory, a person is not to be taken to have a mental illness merely because he or she has a personality disorder.31 13.8 In order to raise a defence of insanity to a criminal charge, it must be shown that, by reason of mental illness, the accused was deprived, at the time of committing the relevant act or omission, of the minimal mental functioning required for criminal responsibility. The fact that the defendant suffered from a mental illness at the time of the relevant act or omission with which he or she is charged is not a sufficient condition for a successful plea of insanity, although of course it is a necessary condition. 13.9 In all jurisdictions there is a presumption of sanity.32 Insanity is not a matter of proof for the prosecution, although in some jurisdictions evidence of mental

[page 374] illness may be raised by the prosecution as part of its initial case.33 A defence of insanity must be established on the balance of probabilities. Given the dispositional outcome of a successful plea of insanity,34 especially the possibility of long periods of detention, it can be argued that the rule runs counter to the presumption of innocence. Despite being subject to much comment and criticism,35 the rule is well entrenched. Indeed, the trend has been for law reform bodies to recommend retention of the rule.36 The argument that the burden carried by the defence is merely evidential has been rejected by the courts.37

The logical structure of the insanity defence 13.10 When the question of insanity is raised in a criminal trial there is a four- stage process leading to a determination of criminal responsibility: (1) identifying the clinical nature of the specific disorder attributed to the accused; (2) determining whether the particular mental illness or condition ascribed to the accused falls within the scope of the insanity defence; (3) determining whether the defendant actually suffered from the identified mental illness at the relevant time; and (4) determining the actual — not just the potential38 — effect of that illness on the defendant’s reasoning, comprehension and selfcontrol at the time of committing the offence.39 13.11 The first issue is essentially a matter for psychiatric determination based on medically accepted diagnostic classifications; the second is a matter of law determined by the judge;40 and the third and fourth are complex amalgams of fact

[page 375] and medical opinion.41 These discrete issues involve matters of evaluation and it is practically impossible to answer them without psychiatric evidence. Inevitably some degree of intelligent guesswork is required, especially for the psychiatrists involved, if only because the accused may not have been known to mental health authorities prior to the event, and may not have been seen by a qualified expert until sometime afterwards.

The scientific underpinnings of the insanity defence 13.12 The brain is a complex and marvellous computer — wider than the sky in the words of Emily Dickinson.42 It has astonishing computational power. It supports thoughts and emotions and the remarkable evolutionary achievement of self-awareness. Given the complexity of the system as a whole, it is not surprising that disordered ways of thinking and false perceptions should occasionally occur.43 Within the life sciences progress towards understanding the causes of major mental illness has been and is painstakingly slow. The underlying causes and mechanisms of mental illnesses, such as bipolar disorder and schizophrenia, are not well understood.44 A lack of scientific understanding exists about many major disorders, especially those which do not have a specific physical cause. This gives rise to profound disagreements within psychiatry about fundamental questions — such as the very criteria for admission as a mental illness45 or mental disorder,46 or whether [page 376] personality disorders are properly conceptualised as a form of mental illness.47 Where the underlying causal mechanisms are poorly understood, it is perhaps not surprising that diagnostic boundaries are

difficult to define.48 At the deepest level of causal explanation, some cause for hope may be found in the field of genetics, which carries great promise of illuminating the complexities of human behaviour.49 Whether this will ease the forensic or jurisprudential burden remains to be seen.

The role of the expert witness 13.13 Psychiatry is regarded as a distinct body of specialist knowledge beyond common knowledge, and therefore psychiatric evidence is relevant and admissible to rebut the presumption of mental soundness.50 Indeed, more can be said. Medical evidence is invariably required to unseat the presumption of mental soundness and establish a defence of mental illness.51 Medical evidence is required lest the jury be invited to engage in baseless or groundless speculation or fanciful supposition.52 Conversely, no specialist evidence is required to support the presumption of mental soundness, upon which the prosecution is entitled to rely. The propensities and behavioural characteristics of ‘ordinary’ human beings are not a matter for expert opinion, as they fall within the common experience of mankind.53 Nevertheless, there may be idiosyncrasies about the accused’s mental capacity which invite expert testimony.54 13.14 The defence of mental illness focuses on the time of the act or omission giving rise to the criminal charge. This poses an obvious challenge for the expert witness — psychiatrists or psychologists or community worker — and for the court [page 377] itself. Psychiatric assessments prepared for trial are inevitably made after, sometimes long after, the relevant events. The expert witness is required to express opinions about events which are remote not merely in psychological but in temporal terms. In some cases, the offender will

be known and have a psychiatric record, but that is by no means the norm. At a practical level, many disorders manifest in symptoms that are intrinsically private, transitory, episodic, variable in degree and impact, or out of character, and such epiphenomena are especially difficult to observe, diagnose and categorise. The challenges for forensic psychiatry are formidable. Moreover, the perspectives of psychiatry and law are quite different — the former focused on causality and therapies for patient management, and the latter concerned with individual accountability and moral responsibility, and community safety.55 The potential for error and uncertainty abound — but such is the nature of the Herculean task before the expert witness and the judge. 13.15 In cases where the prosecution and defence agree that the accused was not criminally responsible by reason of mental illness, psychiatric evidence may be called by the prosecution as part of its initial case. Where the prosecution and defence do not agree that the accused is not criminally responsible, the prosecution is permitted to call evidence in rebuttal of psychiatric evidence adduced by the defence.56 This is not regarded as ‘splitting’ the Crown case.57 13.16 There is a long-standing principle that a jury is not required to decide a case in conformity with expert evidence, even when that evidence is uncontradicted: see Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 at 645.58 However, unchallenged evidence by a competent psychiatrist will usually and should be accepted.59 Indeed, one court has stated that unanimous evidence of mental illness ‘cannot be rejected’ by a tribunal of fact in the absence of ‘other material which casts some doubt on it’, and that the judge (in a judge-alone trial) was obliged to find insanity where the psychiatrists unanimously agreed that the [page 378] mental illness defence was available.60 This approach is not inconsistent with the approach of the English Court of Criminal Appeal in Brennan

v R [2014] EWCA Crim 2387; [2014] WLR (D) 502 in relation to diminished responsibility. 13.17 It is a question of law whether the particular mental illness or condition ascribed to the accused falls within the scope of the insanity defence,61 but a question of fact whether the accused experienced the symptoms of that illness to the requisite degree. Psychiatric evidence may be relevant to both issues, but they are not determined by it. 13.18 Where the evidence is contested, and the experts disagree, the trial judge is required to evaluate the evidence according to the legal standard of responsibility.62 This task is not completed by a simple head count.63 Clinical experts do not decide whether an accused person is guilty or not, but criminal responsibility is inextricably connected with scientific understanding of the causes of mental illness, and the value judgements of psychiatry. This is illustrated by contrasting two cases leading to very different outcomes, both involving psychiatric evidence, although in one case the evidence was uncontested: R v Hewitt [2004] VSC 487 and R v Johnson [2013] NSWDC 40. 13.19 In Hewitt, the accused killed his 87-year-old mother, for whom he was the sole carer, while in a state of intoxication and after she had criticised his drinking. He throttled her to death. There was no evidence that he had lost his temper on any previous occasion. Consumed by remorse, he pleaded guilty to murder. He was 53 years of age and, although one of three brothers, he provided sole care for his mother. On one occasion prior to the killing he had acted strangely, talking to himself and removing his T-shirt in front of others. There was some evidence of cyclothymia, a mild variant of bipolar mood disorder, but not sufficient to warrant a clear psychiatric diagnosis. There was evidence of poor neuropsychological performance, reflected in a significant discrepancy between a verbal IQ of 101 and a performance IQ of 74. There was also the possibility of some developmental disorder, but an MRI scan revealed no macroscopic abnormality of the brain. Scientific studies available at the time revealed a possible connection between poor neuropsychological performance and low impulse control. In such a state of evidence, the court accepted the

guilty plea and sentenced the accused (reluctantly, one discerns) to 13 years’ imprisonment with a non-parole period of 10 years, towards the lower range for murder. 13.20 In R v Johnson [2013] NSWDC 40, a female defendant in her early forties employed as a ‘house mother’ at a boarding school was charged with some 21 sexual offences committed against a number of young boys in her care over a period of time. Three psychiatrists were called, two of whom considered that the defendant suffered from bipolar disorder. The remaining psychiatrist did not. The learned judge heard the case sitting alone, an increasingly common [page 379] practice where mental illness is raised. The judge concluded, despite the evidence of an eminent psychiatrist that the defendant was not mentally ill, that she suffered from various traits to the point where she could not reason with a ‘moderate degree of calmness’ about the moral quality of the act. She was therefore not criminally responsible. This decision followed a previous trial in which the defendant was sentenced to a total effective term of imprisonment of 8 years with a non-parole period of 5 years. That sentence and conviction were overturned because, in the opinion of the appeal court, the trial judge had erred in his assessment of the psychiatrist testimony.

The role of the judge 13.21 A significant development in the modern law is the much greater use of judges sitting alone to determine matters pertaining to mental illness, including guilt. Judges are increasingly empowered to act alone as both judge and fact finder, and, unlike juries, are required to give reasons for their decision.64 Judge- alone trials, together with a broader range of dispositional options, are likely to significantly alter the manner and use of the insanity defence. There is already a

substantial and growing body of judge-alone case law.65 In Queensland a specialist court has been established — the Mental Health Court — and is empowered to make determinations as to fitness and unsoundness of mind.66 Determinations are made by a judge sitting alone. In New South Wales, an order for judge-only trial must be made if both parties agree and may be made over objection by the prosecution if it is in the interests of justice to do so, but cannot be made against the objections of the defence.67 In Western Australia, an application for [page 380] trial by judge alone must be made before the identity of the judge is known to the parties.68 13.22 Whether in a conventional trial before a jury or sitting alone, the trial judge determines whether or not there is sufficient evidence that a particular mental condition amounts to a ‘disease of the mind’ or its statutory equivalent, such that the issue of insanity is fit to go to the jury.69 The judge is also duty- bound to put the defence of insanity to the jury if there is sufficient evidence to support it, whether or not the accused is relying on the defence or it is being contested by the prosecution. Such evidence could be introduced into the trial by defence witnesses or by cross-examination of prosecution witnesses concerning the accused’s mental state at the time of the alleged offence, and it is immaterial that the evidence tendered was for some purpose other than to raise the defence of insanity.70 In deciding whether or not to leave the issue of insanity to the jury in cases where it is disclaimed by the defence, the trial judge has to consider two competing considerations.71 The first is the unfairness of imposing a defence on an accused which he or she did not advance and which, if affirmed by the jury, may result in indefinite confinement upon a verdict which is not appealable. As against this, there is the public interest in preventing an accused from receiving an outright acquittal when the lack of culpability relates to a mental illness which has the potential to recur.

13.23 The abstract classification of certain psychological or physiological conditions as falling within or outside the insanity defence should be resisted. The inquiry should always be relevant to the specific case under consideration. Illnesses resulting in psychotic experiences72 are readily capable of generating an insanity defence although there are some limitations: for example, a psychotic condition induced by selfinduced drug taking will usually fall outside the scope of the insanity defence, although not automatically so (see 12.44–12.47).73 Nonpsychotic illnesses such as depression may provide some foundation, providing the incapacities articulated within the defence are established.74 But one can accept that only severe clinical manifestations are likely to result in a special verdict [page 381] of not guilty by reason of insanity without going so far as to exclude particular recognised mental illnesses as a matter of law. 13.24 As to whether the trial judge should inform the jury of the consequences of a verdict of not guilty on the ground of insanity, there has been a fundamental shift of view. The High Court previously held that it was, in general, unnecessary and undesirable for the trial judge to do so.75 The only question for the jury was whether the accused was criminally responsible — the consequences of a special verdict were seen as the subject of impermissible speculation. The Queensland Court of Criminal Appeal in R v Maloney [2001] 2 Qd R 678 observed that to tell the jury that a person might be released soon after the verdict might unduly alarm them or stimulate guesswork as to the likely result of a particular verdict.76 Indeed, the possibility of early release might colour the jury’s deliberations. 13.25 More recently, some jurisdictions, including New South Wales and Victoria, have legislatively prescribed a duty on the trial judge to explain to the jury the findings which may be made when the defence of insanity is an issue, and the legal consequences of those findings.77 In R

v Fitchett [2009] VSCA 150, a conviction for murder was set aside when the trial judge failed to explain in sufficient detail the effect of a special verdict. There was ‘no set formulation’ as to what should have been said, but the court noted the charge by Osborne J in a previous case78 which was said to adequately provide the type of information sought:79 If you find the accused guilty, then there will be a further hearing before me and I will have to determine how he should be sentenced. If you find him not guilty, that is completely not guilty, he will be discharged and be free to walk away from the court. If you find him not guilty because of mental impairment, then there are two options open to me. The first is to declare that he is liable to a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act (1997) and the second is to order that he be released unconditionally. I would have to form a view on evidence as to what was the appropriate course to be followed. A Supervision order, which is the first option that would be open to me, may commit the person to custody, or release the person on conditions decided by the court and specified in the Order. So you can see that those are the different legal consequences that follow from the different verdicts available to you. And you can see, as I have told you, that a verdict of not guilty because of mental impairment, has quite different consequences from a verdict of not guilty … 13.26 In New South Wales, the judge is required to inform the jury that an accused person found not guilty by reason of insanity will be dealt with by a mental health review tribunal which may make an order for release only if satisfied, on the evidence available to it, that the safety of the person or any member of the public

[page 382] will not be seriously endangered by his or her release. The judge is not required to speculate what the decision of the mental health review authority might be.80

Special hearings in cases involving mental impairment 13.27 In all jurisdictions, special procedures apply where there is reason to believe that the accused is unfit to plead or may have available a mental impairment defence. The first such procedures were introduced

in 1990 in New South Wales,81 and broadly similar legislation exists in the Australian Capital Territory,82 the Northern Territory,83 Queensland,84 South Australia,85 Victoria,86 Western Australia,87 and the Commonwealth.88 13.28 One interesting aspect of the South Australian legislation is that it confers an express discretion on the trial judge to decide whether to proceed first with the trial of mental competence or the ‘objective’ elements of the offence.89 The Act defines ‘objective element of an offence’ to mean an element of an offence that is not a subjective element; ‘subjective element of an offence’ is defined to mean voluntariness, intention, knowledge or some other mental state that is an element of the offence. In Question of Law Reserved (No 1 of 1997) [1997] SASC 6444, the Full Court of the South Australian Supreme Court held that self-defence is a subjective ‘element of the offence’. The trend appears to be to consider mental competence first.90 13.29 In some jurisdictions, specialist courts or tribunals are established to determine issues of fitness and the availability of a mental illness defence, with the possibility of diversionary procedures. An important concept in cases involving unfitness to be tried is that of a ‘limiting term’ to ensure that a person who is unfit is not detained longer than the period that would have been served for the offence committed by the accused on the assumption that he or she was criminally responsible.91 It has been noted that the process of setting a limiting term involves [page 383] a degree of artificiality, but its purpose is entirely beneficent.92 This approach has, however, not been adopted in all jurisdictions.93

The special verdict and disposition 13.30

An acquittal by reason of mental insanity is referred to as a

special verdict. It is an acquittal only in the sense that it implies that the person was not criminally responsible for a prohibited act or omission, but it does not of itself entitle the acquitted person to be released automatically into the community.94 Previously, for the most part, a person acquitted by reason of insanity was liable to detention at the ’governor’s pleasure, usually in a secure ward in prison. 13.31 Detention in prison still occurs in some jurisdictions. The inadequacy of psychiatric facilities for forensic patients is especially problematic in Western Australia and the Northern Territory.95 13.32 An important aspect of the modern law is that a positive finding of mental impairment now triggers a range of dispositional options rather than indefinite detention at the ‘Governor’s pleasure’.96 In New South Wales, the court may order detention of persons acquitted by reason of mental illness ‘in such place and in such manner as the Court thinks fit’, and make such other [page 384] order as it considers appropriate, ‘including an order releasing the person from custody, either unconditionally or subject to conditions’. A person is not released from custody unless the court is satisfied, ‘on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person’s release’.97 Queensland legislation provides for a diversionary scheme under which judges may refer persons charged with indictable offences to the Mental Health Court.98 The court, comprising a Supreme Court judge sitting alone with the assistance of two psychiatrists, has jurisdiction to determine whether an accused was suffering from unsoundness of mind when the offence was committed. The scheme enables the criminal responsibility of an accused to be determined without interfering with the due process of the criminal law. In South Australia, a person subject to supervision may be released unconditionally or committed to detention or released on licence on condition.99 In Victoria, a trial judge

is required to determine whether there is evidence of mental illness and, if so, to make appropriate dispositional orders, and, if not, to direct the accused for trial.100 The Victorian Act provides that the court must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.101 13.33 In all jurisdictions, detention is subject to periodic review. Traditionally, the decision to release is made by the executive in the form of the relevant Minister. In New South Wales, an order for release may be made by the Mental Health Review Tribunal, constituted as the Forensic Division of the Tribunal, which requires at least one member to be a judge or former judge.102 In Queensland, a decision to revoke, continue or amend the terms of a custodial order is made by the Mental Health Court.103 In Victoria and South Australia, the decision to release a forensic patient is made by a court.104 A person acquitted by reason of mental illness of a federal offence may be released by the Commonwealth Attorney-General.105

Summary offences 13.34 The defence of insanity is available in relation to summary offences, and, in the absence of specific detention provisions, a person acquitted by reason of insanity is entitled to be discharged unconditionally. The defence of insanity operates to dismiss the charge.106 In some jurisdictions, such as New South Wales and Western Australia, a magistrate is empowered to dismiss the charge or discharge the accused unconditionally or conditionally.107 Magistrates in New South Wales may discharge an [page 385] accused found to be mentally ill and order that he or she be detained in a hospital — but for assessment purposes alone.108 In Victoria, the power to make supervision orders is confined to the Supreme and

County courts.109 In Queensland, the Mental Health Act 2016 provides that a magistrate has the power to dismiss a complaint for a simple offence if the court is reasonably satisfied, on the balance of probabilities, that the person charged with the offence was, or appears to have been, of unsound mind when the offence was allegedly committed or is unfit for trial. The magistrate also has powers to order examination by an authorised officer with a view to making a treatment authority.110 There is also Commonwealth legislation which empowers a magistrate presiding over a case involving a federal offence, who believes the accused to be suffering from mental illness, to dismiss the charge and discharge the accused into the care of a responsible person, either conditionally or unconditionally, for a specified period not exceeding three years.111 In Kelly v Saadat-Talab (2008) 72 NSWLR 305, the New South Wales Court of Appeal held that the federal provision applied and the state provision did not.112

The test of insanity — the M’Naghten Rules 13.35 It is somewhat surprising that the genesis of the common law relating to insanity lies in a procedure that does not form part of the usual process for judicial law-making — an extra curial pronouncement, or, essentially, an advisory opinion. The M’Naghten Rules113 were formulated by judges of the Queen’s Bench in response to a series of questions put to them by the House of Lords, following the acquittal, on the ground of insanity, of Daniel M’Naghten for the murder of the Prime Minister’s secretary. There was considerable disquiet with the verdict, which was seen as being dangerous and too lenient. In answer to the question: ‘In what terms ought the question [of insanity] be left to the jury as to the prisoner’s state of mind at the time when the act was committed?’, the judges of the Queen’s Bench replied: The jurors ought to be told in all cases that every man is to be presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary be proved to their satisfaction, and that to establish a defence on the ground of insanity it must be clearly proved that, at the time of the committing of the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature of the act he was doing, or, if he did know it, that he did not know he was

doing what was wrong.

13.36 In most Australian jurisdictions, the M’Naghten test has been replaced by statutory formulations that follow the logical structure of the original defence, albeit [page 386] with some modification.114 In New South Wales, it has been held that the scope of the mental illness defence is determined in accordance with the original common law standard contained within the M’Naghten Rules discussed below.115 In Victoria, the common law defence has been codified by the Crimes (Mental Impairment and Fitness to be Tried) Act 1997 (Vic)116 and the term ‘mental impairment’ is synonymous with ‘disease of the mind’.117 All jurisdictions but New South Wales and Victoria now recognise volitional disorders — that is, an inability to exercise control by reason of mental illness.118 A disorder of the will (so-called irresistible impulse) was not recognised at common law unless associated with cognitive or affective disorders.119 And, perhaps more surprisingly, the Commonwealth and Australian Capital Territory Codes recognise severe personality disorder (APD) as being relevant to criminal responsibility (see also 13.44).120

Disease of the mind 13.37 The expression ‘disease of the mind’ might be taken to suggest some underlying physical condition, although it is now well accepted that disease of the mind does not mean disease of the brain or indeed any physical disease at all — it simply means ‘mental illness.’121 In R v Radford (1985) 42 SASR 266, King CJ said:122 The expression ‘disease of the mind’ is synonymous, in my opinion, with ‘mental illness’ … The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called ‘defect of reason’ in the M’Naghten Rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli.

This statement was subsequently approved by the High Court in R v Falconer (1990) 171 CLR 30. The expression ‘disease of the mind’ is not to be narrowly [page 387] construed or restricted to psychotic disturbances. In Woodbridge v R [2010] NSWCCA 185, Davies J said:123 The expression encompasses a temporary mental disorder or disturbance prone to recur. The dichotomy is not between a mind affected by psychotic disturbances and a mind affected by less serious ailments but between those minds which are healthy and those suffering from an underlying pathological infirmity.

13.38 Where a transient mental dysfunction is caused by some external factor that is unlikely to recur, and constitutes the ‘reaction of a healthy mind to extraordinary external stimuli’, a special verdict is not justified.124 The reaction of an otherwise ‘normal’ individual to some extraordinary stimuli, such as witnessing a calamitous natural disaster or the murder of a loved one, will not generally be regarded as falling within the defence of insanity, whether or not some counselling or other clinical intervention would be desirable for the person concerned. Ongoing symptoms may be indicative of an underlying pathology and therefore cannot be discounted. Although a healthy person may suffer a malfunction that, considered alone, would be regarded as not amounting to legal insanity, evidence of subsequent ongoing difficulties may provide evidence of an underlying ‘infirmity of the mind’.125 The extent to which subsequent behaviours may be considered in categorising the underlying condition is unclear, given that a person may be legally insane within the M’Naghten Rules even though the mental malfunction is not or was not of a continuing nature. The M’Naghten Rules require only that the defect of reason be present at the time of the act.126 Where the mental malfunctioning is due to the fault of the accused, or is in some sense caused by the accused, the defence of mental illness is unlikely to be available.127 Sir Owen Dixon remarked that:128

The reason why it is required that the defect of reason should be ‘from disease of the mind’, in the classic phrase used by Sir Nicholas Tindal, seems to me no more than to exclude drunkenness, conditions of intense passion and other transient states attributable either to the fault or to the nature of man.

[page 388] 13.39 The question whether a person was suffering from a ‘disease of the mind’ at a certain time is, however, a question of fact for the jury, to be decided in the light of the clinical evidence (if any) on the basis of the direction given by the judge as to the meaning of the expression ‘mental disease’. The term ‘disease of the mind’ or its variations is a legal term with a clinical component, but it is, finally, the responsibility of the jury to determine its application in any particular case. The trial judge has a duty to explain to the jury the intricacies of the clinical evidence and the relevance of such evidence to the requirements of the insanity defence. This is because expressions used by clinical experts would be unfamiliar to many jurors and the evidence would not be of the type which an ordinary juror could readily evaluate. It is therefore important not to leave juries to evaluate the clinical evidence simply on the basis of the competing contentions of counsel.129

The nature and quality of the act 13.40 The meaning of ‘nature and quality’ was not explained in the M’Naghten Rules. A narrow interpretation would confine it to mistakes about the fundamental nature of the act, such as cutting a person’s throat in the belief that one was slicing a loaf of bread, placing a baby on the fire thinking it to be a log of wood or stabbing a person believing him or her to be a demon or witch. In these illustrations, assuming the accused to have been delusional as a result of mental illness (rather than, say, by self-induced intoxication), insanity as a defence would be available.130 Clearly, if a person does not comprehend that the log of wood is a human being, it is meaningless to ask whether he or she understood the significance of the ‘act’. The case is more complicated

where the accused may, according to the evidence, have had some understanding of what was done (ie, putting a baby on the fire), but not its inevitable consequences. For example, D may have believed that the baby was impervious to fire if not possessed by demons, and that the killing of a baby possessed by demons was a moral duty and excused by the law. The fact that the accused knew the ‘nature and quality’ of the act in a narrow sense (putting a baby on a fire) should not defeat the insanity defence in such a case. In R v Porter (1933) 55 CLR 182 Dixon J (as he then was) instructed the jury to acquit the defendant on the ground of insanity if they concluded that his mental disorder ‘was such that he could not appreciate the physical thing he was doing and its consequences’.131 Thus, if the jury concluded that the accused had appreciated his physical act but not the consequences of that act, he should receive the benefit of the defence. In the later High Court case of Sodeman v R (1936) 55 CLR 192, Dixon J said [page 389] that the phrase meant ‘the capacity to comprehend the significance of the act of killing and of the acts by means of which it was done.’132 The term ‘significance’ is somewhat ambiguous but it does suggest that the accused knew the basic character of what he or she is doing.133 The term ‘quality’ does not import a moral element. It is fair to say that most modern cases proceed under the right– wrong limb of the insanity test, to which we now turn.134

The right–wrong test 13.41 The most famous expansion of the right–wrong test was given by Dixon J (as he then was) in R v Porter (1933) 55 CLR 182. His Honour instructed the jury that if the accused could not reason with a moderate degree of sense and composure about his actions, then it could be said that he did not know that what he was doing was wrong in the relevant sense. His Honour stated:135

We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by ‘wrong’? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.

13.42 Australian courts have, for many years, interpreted ‘wrong’ in the M’Naghten Rules to mean ‘morally wrong’ and not ‘contrary to law’ — the latter test having been adopted by the English Court of Criminal Appeal in R v Windle.136 In Stapleton v R (1952) 86 CLR 358, the High Court declined to follow the English cases.137 In most serious crimes, the fact that the conduct was contrary to law would be enough to show that the accused knew that it was wrong, and, in a practical sense, there would be little difference between the two standards:138 But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong (his insane judgment even treating the act as one of inexorable obligation or inescapable necessity) he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.

13.43 A person who has a strong unyielding belief that his or her conduct is morally justified despite some awareness that it is illegal is perhaps capable of [page 390] responding to sanctions — but cases of ‘inexorable obligation’ or ‘inescapable necessity’ perhaps do not admit of rational judgement.139 In the case of R v McDermott [2003] ACTSC 1, the accused, who suffered from schizophrenia, was charged with attempting to kill the 11-year-old friend of his 10-year-old son during a sleepover at the family home. When interviewed after the incident the accused said that he believed that he and his family were to be tortured and killed by a bikie gang living at the end of his street. In order to avoid this terrible

fate, he decided to kill his children. He sharpened a knife and attacked his son’s friend, stabbing him in the neck, fortunately not fatally. He was restrained and his wife called emergency services. Higgins J referred to the Bible’s Genesis 22: 1-12:140 ‘The legitimacy of such reasoning is not self-evidently contrary to ordinary moral standards … Was Abraham wrong to obey God and prepare to kill his only son Isaac as a sacrifice?’. The accused said he knew it was wrong to kill but he thought it the lesser of two evils. The trial judge held that the accused was not guilty of attempted murder by reason of mental impairment.

Personality disorders 13.44 Sir Owen Dixon’s dictum that the term ‘disease of the mind’ excluded transient states attributable ‘either to the fault or to the nature of man’ raises an important question about so-called personality disorders. The DSM provides that the ‘essential features of a personality disorder are impairments in personality (self and interpersonal) functioning and the presence of pathological personality traits’. The DSM identifies seven types of personality disorder: antisocial, avoidant, borderline, narcissistic, obsessive compulsive, schizotypal, and nonspecific. Various combinations of impairments and traits support a particular diagnosis. For example, antisocial personality disorder (ASPD) may involve: ego-centrism, a lack of empathy, and an incapacity for mutually intimate relationships; pathological personality traits such as manipulativeness, deceitfulness, callousness and hostility; and various disinhibiting traits such as irresponsibility, impulsivity and risk-taking. These traits must be ‘relatively stable across time and consistent across situations’, and not better understood as ‘normative for individual’s development stage or socio-cultural environment’, and not solely due to ‘direct physiological effects of a substance’ or a general medical condition; and the individual must be at least 18 years old. One difficulty is that personality disorders are often associated with other traits, such as depression or drug dependency.141 13.45 As noted above, the Commonwealth and Australian Capital Territory Codes recognise that the defence of mental impairment can be

based on severe personality disorder.142 This has not elsewhere been recognised as falling within [page 391] the insanity defence.143 In Western Australia, it has been held that ASPD is a mental illness when accompanied by or caused by abnormal changes in the brain. In Western Australia v Brown [No 3] [2013] WASC 349, Jenkins J at [504] distinguished R v Hodges (1986) 19 A Crim R 129 as turning on distinct statutory provisions.144 In the earlier case, the trial judge had held that ASPD did not amount to ‘mental disease or natural mental infirmity’, a decision upheld on appeal.145 In those jurisdictions that allow diminished responsibility as a partial defence to murder, there is some authority for the proposition that personality disorders may be regarded as an abnormality of mind.146

Volitional defects — lack of capacity or ability for selfcontrol 13.46 Neither New South Wales nor Victoria explicitly includes volitional disorder as a basis for pleading insanity,147 but presumably there is still room for a Brown type argument (considered at 13.48).148 Interestingly, the code jurisdictions make express reference to the ability or capacity to exercise control in relation to the prohibited act or omission. The Criminal Code 1913 (WA) refers to the accused being in such a state of mental impairment (in the case of the Queensland legislation, in such a state of mental disease or natural mental infirmity) as to deprive him of ‘capacity’ to control his or her actions. The South Australian legislation is similar to the Commonwealth Criminal Code149 and refers to being [page 392]

‘unable to control the conduct’ as a consequence of mental impairment.150 The Northern Territory legislation refers to ‘not able to control’151 and the Australian Capital Territory Code refers to ‘could not control’.152 The Tasmanian Criminal Code is somewhat different, referring to an act or omission done or made under an impulse which, by reason of mental disease, the person was, in substance, ‘deprived of any power to resist’. The Code then, interestingly, provides that the fact that a person was, at the time at which he or she is alleged to have done an act or made an omission, incapable of controlling his or her conduct generally, is relevant to the question whether the person did such act or made such omission under an impulse which, by reason of mental disease, he or she was in substance deprived of any power to resist.153 The statutory formulations require something akin to physical impossibility. 13.47 So-called ‘irresistible impulse’ — an impulse that cannot be resisted, even with full awareness of the wrongfulness of the conduct — was not explicitly recognised by the M’Naghten Rules as an independent ground for pleading insanity. The inability to resist or exercise self-control may provide some evidence that a person is unable to reason with a ‘moderate sense and composure’ about the act and whether it was right or wrong. In Sodeman v R (1936) 55 CLR 192 the accused appealed on the ground that the trial judge had erred in failing to direct the jury that the defence of insanity applied to a person who was deprived by mental disease of all capacity to control his actions in relation to the crime charged. Dixon J said:154 It is one thing to say that, if he is able to understand the nature of his act and to know that the act is wrong, an incapacity through disease of the mind to control his actions affords no excuse and leaves the prisoner criminally responsible. It is another thing to suppose that inability through a disease of the mind to control conduct is in opposition to an incapacity to understand the quality of an act and its moral character. Indeed, it is important to bear steadily in mind that if through disorder of the faculties a prisoner is incapable of controlling his relevant acts, this may afford the strongest reason for supposing that he is incapable of forming a judgment that they are wrong, and in some cases even of understanding their nature.

13.48 The High Court affirmed this approach in Brown v AttorneyGeneral for South Australia [1959] ALR 808 at 814, setting aside a murder conviction upon a direction from the trial judge that

‘uncontrollable impulse’ was not a defence in law. The prosecution appealed successfully to the Privy Council.155 The Judicial Committee was critical of the passage cited above, which could be read as suggesting that a person suffering from irresistible impulse caused by mental disease was, as a matter of law and in the absence of medical evidence to that [page 393] effect, incapable of knowing that what he or she was doing was wrong. The Privy Council expressly recognised that an irresistible impulse to do the act charged as a crime may be symptomatic of insanity within the literal scope of the M’Naghten Rules. But it was a question of evidence (which would invariably mean clinical evidence) as to whether irresistible impulse was a symptom of the particular mental disease from which the prisoner was alleged to be suffering and that the effect of such a disease was to prevent the prisoner from knowing the nature of his or her acts or that they were wrong. It is however unlikely that medical science will throw much light on this area. There is unlikely to be any reliable scientific or medical test as to whether an un-resisted impulse was irresistible.156 It was, said one judge, like trying to distinguish twilight from dusk.157

Insane delusions 13.49 Under the M’Naghten Rules, the criminal responsibility of a person suffering from insane delusions is tested by reference to the legal consequences of the false belief. This is a very strange test for criminal responsibility. It requires an examination of the legal consequences on a non-existent state of affairs imagined only in the mind of a person who is probably mentally ill. It requires the jury to ‘subject the warped reasoning of the mentally afflicted to the same critical examination as if he were “sane”’.158 The implication that a mental illness producing delusional beliefs should be exculpatory according to the legal

consequences of the delusion itself lacks a moral basis. It seems that ‘you are allowed to be insane … but have a care how you manifest your insanity’.159 In truth, a specific rule concerning delusions is redundant, because an operative insane delusion will invariably impair the capacity to reason about the rightness or wrongness of the act in question. 13.50 The old codes (Queensland, Western Australia and Tasmania) contain similar provisions dealing with delusions. Section 27(2) of the Criminal Code (WA) provides: A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.

Section 27(2) of the Criminal Code 1899 (Qld) provides: A person whose mind, at the time of the person’s doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist.

[page 394] The Criminal Code 1924 (Tas) s 16(3) provides: A person whose mind at the time of his doing an act or making an omission is affected by a delusion on some specific matter, but who is not otherwise exempted from criminal responsibility under the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the fact which he was induced by such delusion to believe to exist really existed.

13.51 In R v Walsh (1991) 60 A Crim R 419, the accused was charged with murdering the deceased with a rifle. The defence was that he shot the deceased under the delusional belief that he was under attack from a North Korean soldier. Defence counsel sought to call clinical evidence in support of these claims, relevant to self-defence under s 46 of the Tasmanian Criminal Code. The defendant was indeed a war veteran, having been severely wounded in Korea some days before the armistice, and there was evidence that, at the time of the

shooting, he was suffering from a post-traumatic stress disorder. A manifestation of that disorder can be ‘the sudden acting or feeling as if the traumatic event were occurring, including a sense of reliving the experience, illusions, hallucinations and dissociative flash-back episodes’.160 The defence of insanity under s 16 was not relied upon. The Tasmanian Supreme Court held that the evidence was relevant both to self-defence under s 46 and insanity under s 16(3).161 Slicer J ruled that if the jury rejected insanity on the balance of probabilities under s 16(2), then s 16(3) could provide a basis for pleading self- defence under s 46. It would then be for the Crown to prove beyond reasonable doubt that the accused was not justified in using such force as he did. The court apparently accepted that the delusion could sustain a defence under the section, leading to an outright acquittal. In these circumstances, the accused was acquitted by reason of self-defence, not on the ground of insanity.162 13.52 It is hard to fault the logic of this interpretation of the Code but the implications are strange indeed. Consider the case of R v McDermott [2003] ACTSC 1, previously mentioned at 13.43. The accused’s (delusional) belief that he and his family were to be tortured and killed by the Rebel bikies would not provide a basis for killing his children — even to save them from torture. Such a belief might however provide some justification for the use of force by way of pre-emptive self-defence against some person believed to be a bikie. The fact that killing the children would not fall within the insanity plea, whereas killing the neighbour might, highlights the absurdities of this rule.163 13.53 In Western Australia the relationship between insane delusions and self- defence was explored in State of Western Australia v McDonald [No 2] [2010] WASC 355 and Garrett v R [1999] WASCA 169. In McDonald, Hall J stated:164 Clearly, as was pointed out by Lord Tindal CJ in M’Naghten’s Case, what is critical in determining whether the accused is criminally culpable is the precise nature of the

[page 395]

delusion. In the present case for the reasons I have given earlier, I accept that the accused was suffering a delusion, but that delusion did not include at the relevant time a belief that Mr Petersen was threatening his life with a hammer. The nature of the delusion was as described by Dr Brett, that is, that he believed Mr Petersen was a person who would do him harm in the long term by supplying him with adulterated drugs. Even if true, such a belief would not excuse the accused’s conduct in killing Mr Petersen because the circumstances as he believed them to be, provided no necessity for the action he took. Accordingly, I am not satisfied on the balance of probabilities that the accused had a delusion at the relevant time that would, if true, have excused his conduct. That is not, of course, to say that the delusional disorder that the accused undoubtedly did have would not be relevant to sentencing; clearly it would be.

In Garrett the appellant had killed a person living in the flat below with a knife after a confrontation. Although there was some evidence that the appellant suffered from a paranoid belief that the occupants living below were intending to cause him harm, unlike Walsh there was no relevant delusional belief such as might, if true, generate a defence of self-defence, and Walsh was therefore distinguished.165 13.54

Section 7.3(7) of the Criminal Code 1995 (Cth) provides that:

[I]f the tribunal of fact is satisfied that a person carried out conduct as a result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as a defence.

The Criminal Code (ACT) 2002 borrows the Commonwealth provision but adds ex abundanti cautela that ‘the person may rely on the mental impairment to deny criminal responsibility’: s 29(2). Under the statutory formulations of the M’Naghten Rules adopted in Queensland, Western Australia and Tasmania, there is an argument that specific delusions may exempt from criminal responsibility even though they are not caused by mental illness.166 In R v Conlon (1993) 69 A Crim R 92, the New South Wales Supreme Court held that subjective factors, such as marijuana and alcoholic intoxication acting in combination with a schizoid personality disorder, were relevant to the accused’s appreciation of the appropriateness of his response to an assault upon his property and person.167 In R v Voukelatos [1990] VR 1, the Victorian Court of Criminal Appeal held that evidence of a specific delusion (based upon a ‘delusional disorder’ relating to his wife’s supposed infidelity) could in principle provide a basis for pleading provocation.168 This was despite the requirement of an act by the

deceased inducing a loss of self-control.169 The process of logic [page 396] which led to this conclusion caused two members of the court to call for the abolition of provocation itself.170

Mental illness and the fault element 13.55 The relationship of mental illness to the fault element in crime has caused some difficulty. Case law would appear to support the following propositions: first, the defence of insanity does not operate only by negating fault elements such as intention or voluntariness; second, leaving aside for the moment the element of voluntariness, a failure by the prosecution to establish as against the accused the objective elements of the crime must result in an outright acquittal even if there is some evidence of mental impairment; and third, in some cases, evidence of mental impairment may be used to negate a fault element outside the insanity plea so as to result in a complete acquittal. The first and second propositions are relatively straightforward but the third is much more complex, as shown below. 13.56 Mental illness may undoubtedly negate intention and voluntariness, but the defence of insanity also operates as an independent exculpatory ground of excuse. A person who acts with deliberate intent (and therefore voluntarily) is not thereby precluded from raising insanity as a defence. One consequence is that insanity may be pleaded to an offence of strict liability, or indeed to an offence of negligence, where conduct rather than intentionality is the critical factor.171 13.57 The prosecution must prove the objective elements of the offence beyond reasonable doubt whether or not there is evidence of legal insanity.172 Where evidence connecting the defendant to the criminal offence is wanting, perhaps say because of uncertainties as to

identity, a person should not be subject to the possibility of ongoing detention as a forensic patient.173 A criminal prosecution which fails to connect the accused to the crime should not be used as the occasion for involuntary detention — even if there is cogent evidence of mental illness capable of activating the insanity defence. A person charged with sexual assault should not be detained as a forensic patient if there is no evidence that an assault took place, or that the accused was the assailant.174 An accused charged with discharging a loaded firearm should not be detained on such grounds if the jury fails to be satisfied beyond reasonable doubt that the gun [page 397] was loaded or that the accused fired the shot. In such cases, the special verdict is not appropriate — even if the evidence is capable of supporting insanity in the accused on the balance of probabilities. 13.58 The position is complicated where mental states relate both to criminal responsibility and, potentially, to insanity. The defence may seek to adduce evidence suggestive of mental illness for the purpose of raising a reasonable doubt with regard to voluntariness, or intent generally, or some element of specific intent, without wishing to raise insanity as a defence, with its somewhat broad and unpredictable dispositional consequences. Evidence of this sort may be directed towards showing that the accused acted under a mistaken belief, or without deliberate intent, or that the accused should not be regarded as having acted at all, on the basis that the relevant act was not accompanied by awareness or consciousness.175 The defence may wish to call an expert to testify that the accused had some medical or mental condition (eg, a well-documented history of sleep-apnoea, somnambulism, epilepsy, illness or drug-induced hallucinations) tending to show that the natural inferences that might ordinarily be drawn from particular behaviours should be seen in a different light. In a case of arson, the medical evidence may cast doubt on whether D acted intentionally or recklessly, but be insufficient to prove mental

impairment on the balance of probabilities.176 Evidence of mental malfunction at the relevant time may provide some foundation for raising a doubt as to the elements of voluntariness and, of course, intention, and may simultaneously raise the real possibility that D was suffering from a mental illness.177 These examples raise the question: To what extent can psychiatric or medical evidence suggestive of mental illness or impairment be admitted for some collateral purpose at a criminal trial, that is, independently of the insanity plea? 13.59 There are indeed some decisions which show that evidence of mental illness falling short of insanity may be relied upon for some collateral purpose going to guilt, without invoking insanity as a defence. In R v Adam [2012] SADC 119 the accused became lost in the Adelaide Hills and according to his evidence lit a signal fire without adverting to the possibility that it might cause a bush fire. He was charged with intentionally or recklessly causing a bushfire. He was diagnosed by two psychiatrists as suffering from bipolar disorder and a combination of fear, panic and stress, with the possibility of entering a regressed psychotic state. The evidence of the psychiatrists that he was mentally impaired within the relevant standard was rejected by the trial judge sitting alone. Nevertheless, in determining beyond reasonable doubt whether the necessary intention or foresight existed, the trial judge took into account the psychiatric evidence — even though the evidence had fallen short of establishing the mental impairment defence. The accused was acquitted of intentionally or recklessly lighting a bushfire. In Parish v Director of Public Prosecutions [2007] VSC 494, evidence that the accused suffered from Asperger’s Syndrome was tendered in order to raise doubt with regard to the element of intention to use violence [page 398] against the complainant without her consent. There was no suggestion that such evidence was only to be considered within the context of insanity.178 Moreover, decisions under the Queensland Criminal Code have held that the impact of mental disabilities, such as chronic

paranoid schizophrenia179 or mild mental retardation,180 may be relevant to the assessment of a mistaken belief held by the accused, and whether it was held on reasonable grounds.181 An older decision of the English Court of Appeal in R v Clarke [1972] 1 All ER 219 may also be referred to. The court allowed an appeal against a conviction for shoplifting on the ground that the trial judge erred in ruling that evidence of mental illness causing chronic absent-mindedness could not be used as a basis for raising doubt as to mens rea, but could only be directed to establishing insanity on the balance of probabilities. The accused pleaded guilty in response to that ruling. The court held that the M’Naghten Rules did not apply to such a case. The evidence did not indicate that the accused was suffering from such a ‘defect of reason’ that she was prevented from knowing the nature and quality of the act or that it was wrong. 13.60 Insanity is an exception to the general rule in criminal trials requiring proof beyond reasonable doubt, and insanity must be proved on the balance of probabilities.182 This generates a conundrum. What is the correct verdict if the jury (or judge, as the case may be), after considering all the evidence including evidence of mental illness, is not satisfied beyond reasonable doubt that the criminal acts were voluntary or intentional nor satisfied that insanity is established on the balance of probabilities? Given the rejection of insanity on the balance of probabilities, there would seem to be only two choices: to convict or to acquit. A verdict of guilt conflicts with the negative finding on intention or volition. An acquittal is problematic if a principal reason for entertaining a reasonable doubt as to voluntariness or intent conflicts with the presumption of mental soundness, which remains operational in the absence of a positive finding of insanity. This important problem arises because of the burden of proof issue. One solution is simply to refuse that it can arise — to say that the jury cannot entertain a reasonable doubt as to voluntariness and intent on the basis of evidence pointing to insanity if the evidence is not accepted on the balance of probabilities.183 But this artificial solution tends to force a conviction in cases where as a matter of fact there is a reasonable doubt as to intent. The New Zealand Court of Appeal did not adopt this approach in R v

Cottle [page 399] [1958] NZLR 999, where it is said that ‘an accused cannot be denied a general unqualified acquittal if the jury chooses to negative insanity but uphold absence of intent’. This was so, said the court, ‘[e]ven where the case is susceptible of a verdict of “Not Guilty” because of insanity’:184 There is recognized in criminal law what Devlin J called in Hill v Baxter [1958] 1 QB 277 a lighter burden which the accused can discharge by producing some evidence of mental dissociation at the time the alleged offence was committed rendering him not responsible. It may not amount to insanity in a legal sense; it may not have been pleaded as such or submitted to the jury by the Judge to be pronounced upon. But it may be operative in so far as it prevents adequate proof by the prosecution of intent.185

13.61 There are thus two opposing perspectives: on one hand, the hypothesis that persons suffering from mental illness should not be deprived of the opportunity to raise a reasonable doubt with respect to the specific ingredient of intent that defines the crime charged (eg, the intent to kill in a case of homicide); and, on the other hand, the proposition that evidence of mental illness capable of supporting a reasonable doubt with respect to the existence of key mental aspects of behaviour can only be considered within the context of the insanity defence established on the balance of probabilities. To illustrate the practical implications of these opposing theories, consider the accused who claims that she picked up the wrong handbag from the floor beneath the table, and there is independent evidence that two identical handbags had been placed alongside each other on the floor; or the person who strikes a fatal blow, but the evidence is that he was responding to a vicious attack. The defence of mistake (excluding any intention to steal) and self-defence respectively should be considered before the defence of insanity.186 But any such instruction must be based on evidence supporting an independent defence rather than pure logic — in other words:187 what the defence cannot do, in the absence of a witness whose evidence raises the defence, is to suggest to the jury that the defendant may have acted under a mistake, or

by accident, or in self-defence, and to submit that the jury should acquit unless the prosecution satisfies them that there is no reasonable possibility that that suggestion is correct. I consider that the same approach is to be taken if defence counsel wishes to advance the defence that the defendant, in law, did not do the “act” because his action was involuntary, as when a man kicks out and strikes another in the course of an uncontrollable fit brought about by a medical condition. In such a case there would have to be evidence that the defendant suffered from the condition.

13.62 In Hawkins v R (1994) 179 CLR 500, the relationship between insanity and intent came before the High Court of Australia in a case decided under the Tasmanian Criminal Code. A 16-year-old boy shot and killed his father. It was conceded that the killing was unlawful but counsel for the defence indicated that he wished to call psychiatric evidence relevant to the issue of intention, but, importantly, neither raised insanity nor wished it to [page 400] be considered by the jury. The admissibility of the psychiatric evidence for this purpose was canvassed on a voir dire. The psychiatric evidence was that Hawkins suffered from a diagnosable mental illness — either adolescent identity disorder or adolescent adjustment disorder — associated with confusional mental breakdown under stress. It was suggested that this was relevant to the question of intention at the time the rifle was discharged. This evidence was supported by an unsworn statement made by Hawkins at his second trial, which suggested he had originally intended to take his own life in front of his father and changed his mind at the last moment. The trial judge ruled that the psychiatric evidence was admissible only on the issue of insanity. An appeal to the Tasmanian Court of Criminal Appeal was dismissed by majority. The High Court set aside the conviction and remitted the case to the Court of Criminal Appeal. The High Court held unanimously that, where the accused is charged with an offence requiring proof of a specific intention, and there is evidence of mental illness incapable of supporting a finding of insanity, such evidence is relevant to and admissible on the issue of the formation of a specific intent, but is

inadmissible on, and must be taken to be irrelevant to, the issue whether the act was ‘voluntary and intentional’ under s 13 of the Criminal Code (Tas).188 In Hawkins the court said:189 In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved (the latter by reference either to s.13 or to s.16) before there is any issue of the specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused’s mental condition at the time when the incriminated act was done fell short of insanity under s.16.

13.63 The practical effect of Hawkins may be summarised as follows. Evidence of mental illness may be led for the purpose of supporting a plea of insanity established on the balance of probabilities but may not be considered for the purpose of raising a reasonable doubt with respect to voluntariness or ‘general’ intent so as to lead to an outright acquittal. However, evidence of mental illness may be given for the purpose of raising a reasonable doubt with respect to some element of ‘specific’ intent required by the offence charged — such as a specific intent to cause grievous bodily harm — separate from and without thereby invoking the insanity plea.190 The importance of Hawkins does not appear to have been immediately appreciated by appellate courts outside Tasmania.191 In New South Wales, courts continued to apply the decision of the NSW Court of Appeal decision in R v S [1979] 2 NSWLR 1, in which no such distinction was drawn. Indeed, the application of Hawkins outside the confines of the Tasmanian [page 401] Criminal Code may have been thought to occasion some difficulty.192 But the Hawkins approach is now entrenched in New South Wales, and has been noted in Queensland,193 Victoria194 and Western Australia.195 13.64 In R v Minani [2005] NSWCCA 226; 63 NSWLR 490; 154 A Crim R 349, the New South Wales Court of Criminal Appeal applied the reasoning in Hawkins to a case of malicious wounding with intent

to inflict grievous bodily harm under the Crimes Act 1900 (NSW).196 In R v Waszczuk [2012] NSWSC 1080, the court stated the order in which the issues should be determined in a murder case involving mental illness: (1) Has the Crown proved beyond a reasonable doubt that the accused’s act of stabbing his father was a voluntary act? (2) If so, has it been established that the accused was not criminally responsible for doing that act? (3) If not, was the act done with the specific intention required?’.

Reforming the law 13.65 There has been much progressive work done by law reform bodies and legislators to improve procedures relating to mental illness and cognitive impairment in the criminal justice system.197 The humane treatment of those who are so impaired is a mark of a civilised society. It is evident that courts and legislators are seeking to strike a balance between compassion and community protection. There is a widespread social unease about the criminal propensities of those suffering from mental illness, no doubt arising from the natural tendency to fear that which is strange or unpredictable, especially where there is potential [page 402] for violence.198 Benign cases attract scant publicity, whereas violence adores the spotlight, thus perpetuating a severe social stigma upon those unfortunate enough to suffer from mental illness or cognitive impairment.199 This complex dynamic is unlikely to disappear from the criminal justice system, despite the best efforts of well-intentioned lawyers and lawmakers.

1. 2. 3.

See M’Naghten’s Case (1843) 10 Cl and Fin 200; 8 ER 718). Mental Health (Forensic Provisions) Act 1990 (NSW) s 38; Mental Health Act 2007 (NSW). Criminal Law Consolidation Act 1935 (SA) Pt 8A.

4. 5. 6.

7.

8.

9. 10. 11.

12.

13.

14.

Crimes (Mental Impairment and Fitness to be Tried) Act 1997 (Vic). The common law defence is abrogated by s 25. Criminal Code (Cth) s 7.3; Criminal Code (ACT) s 27; Criminal Code (NT) s 43C. Criminal Code (Qld) s 27; Criminal Code (Tas) s 16; Criminal Code (WA) s 27. The 2007 recommendation of the Law Reform Commission of Western Australia to change the term to ‘mental impairment’ has not been acted upon. See Review of the Law of Homicide, Final Report, 2007 at 238. It is of interest to note that some continental countries do not have an insanity defence at all, or, if a defence exists, lack a standard by which to judge criminal responsibility: see Radovic et al, ‘Introducing a Standard of Legal Insanity: The Case of Sweden Compared to The Netherlands’ (2015) 40 International Journal of Law and Psychiatry 43. See New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report 138, 2013 at [3.9]. See, for example, NOM v DPP [2012] VSCA 198. 10. See 13.32. See 13.32. See B Stokes, Review of the Admission or Referral to and the Discharge and Transfer Practices of Public Mental Health Facilities/Services in Western Australia, Government of Western Australia, Perth, July 2012 at [3.11]: ‘Mentally ill individuals are over-represented in the criminal justice system at all levels’, available at . A Parliament of Victoria Research Brief (No 1, February 2010) noted (at 6): ‘An international study published in The Lancet in 2002 systematically reviewed sixty-two prisoner mental health surveys conducted between 1966 and 2001 involving 23,000 prisoners in twelve countries. The results showed that prisoners were several times more likely to have major depression and psychosis, and about ten times more likely to have antisocial personality disorder, than the general population’. Available at (accessed 21 October 2014). The paper cited is S Fazel and J Danesh, ‘Serious Mental Disorder in 23,000 Prisoners: A Systematic Review of 62 Surveys’ (2002) 359 The Lancet 545–50. New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Diversion, Report 135, 2012; E Baldry, L Dowse and M Clarence, ‘People with Mental and Cognitive Disabilities: Pathways into Prison’, Background Paper for Outlaws to Inclusion Conference, 2012,

at 14–15. It is not, of course, suggested that antisocial or criminal propensity is the inevitable outcome of mental illness: see P Mullen, ‘Mental Health and Criminal Justice: A Review of the Relationship between Mental Disorders and Offending Behaviours and on the Management of Mentally Abnormal Offenders in the Health and Criminal Justice Services’, research paper, Criminology Research Council, 2001, p 6. Available at (accessed 23 August 2014). Some judges have likened the actions of the mentally ill individual to a natural force, not amendable to moral judgement or punishment. The mourning relatives of one victim were told that his death was ‘much like a catastrophic and unavoidable accident’. The deceased ‘was, through no fault of his own, in the wrong place at the wrong time, just as much as if he had perished in a natural disaster’. Harrison J used these phrases in R v Wilson (No 3) [2013] NSWSC 1684 at [93] and again in R v Grant [2009] NSWSC 833 at [36]. See also

15.

16.

17. 18.

19.

20.

21.

22. 23.

the sentencing comments by Neilson DCJ in R v Valahulu [2011] NSWDC 64, relating to a person who was ‘clearly’ mentally ill and who received a reduced sentence on a plea of guilty; and R v Sandoval [2010] NSWDC 255 at [60] where Berman DCJ noted that the basis of the insanity defence is a lack of moral blame. In that case, insanity was raised successfully on a charge of dangerous driving. See also R v Gemmill [2004] VSC 30 (impact of diagnosed depressive illness) and R v Gemmill [2004] VSCA 72. The ‘wrong place argument’ is often cold comfort. R v Porter (1933) 55 CLR 182 at 187 per Dixon J; see also R v Bux (2002) 132 A Crim R 395. More than a century before M’Naghten’s Case, Hawkins commenced his famous work with the observation: ‘The Guilt of offending against any law whatsoever, necessarily supposing a wilful disobedience, can never justly be imputed to those who are either incapable of understanding it, or of conforming themselves to it’: W Hawkins, A Treatise of the Pleas of the Crown, Elizabeth Butt & Gosling, London, UK, 1716–21, p 251. The legal conception of insanity is somewhat inflexible — a person is either criminally responsible or not. This has resulted, in some jurisdictions, in a qualified defence of diminished responsibility — at least in relation to homicide. The qualified defence recognises borderline conditions falling outside the insanity defence, thus converting what would otherwise be murder to manslaughter: see Chapter 15. As to ‘special verdict’, see 13.30. Psychiatric evidence of mental impairment may be relevant by way of mitigation of penalty even if the insanity plea is eschewed by the defence, raised unsuccessfully or not raised at all: see Skelton v R [2015] NSWCCA 320; Pym v R [2014] NSWCCA 182; McLaren v R [2012] NSWCCA 284 at [27]–[29]; Elturk v R [2014] NSWCCA 61; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1; Zhang v Western Australia [2013] WASCA 121; Mueller [2015] NSWCCA 292. Even if the person is unfit to be tried, in most jurisdictions an upper limit (or limiting term of imprisonment) is set to ensure a person who is unfit is not incarcerated for longer periods than a person who has sufficient mental capacity to be tried. In New South Wales a special hearing may be held subsequent to a fitness hearing: see R v Wilson (No 3) [2013] NSWSC 1684. See also S M v R [2013] VSCA 342. However, self-induced psychosis has been held to be devoid of mitigatory effect: see Zwerus v Western Australia [2015] WASCA 174. Crimes Act 1900 (ACT) Pt 13; Mental Health (Forensic Provisions) Act 1990 (NSW) s 38; Mental Health Act 2007 (NSW); Criminal Code Act (NT) Pt IIA; Mental Health Act 2000 (Qld) ss 270, 288; Criminal Law Consolidation Act 1935 (SA) Pt 8A; Criminal Justice (Mental Impairment) Act 1999 (Tas) s 21; Crimes (Mental Impairment and Fitness to be Tried) Act 1997 (Vic); Criminal Law (Mentally Impaired Accused) Act 1996 (WA). The related topics of fitness to plead and incapacitation during trial are important topics in their own right — which may be regarded as an instance of the fundamental right to a fair trial. Mental Health Act 2015 (ACT); Mental Health Act 2007 (NSW); Mental Health and Related Services Act 1998 (NT); Mental Health Act 2000 (Qld) s 12; Mental Health Act 2016 (Qld) s 10; Mental Health Act 2009 (SA) s 3; Mental Health Act 2013 (Tas); Mental Health Act 2014 (Vic); Mental Health Act 2014 (WA). At the time of writing, the Mental Health Act 2016 (Qld) is due to come into force in March 2017. See, for example, R v Radford (1985) 42 SASR 266 at 274 per King CJ, considered at 14.33. Clarity is not assisted by poor drafting. For example, s 20BJ of the Crimes Act 1914 (Cth)

24. 25. 26. 27. 28. 29. 30. 31. 32.

33. 34. 35.

36.

37.

38. 39.

40. 41.

refers to a person acquitted of a federal offence because of ‘mental illness’ at the time of the offence, but in federal law mental illness is not the only basis for raising a defence of mental impairment. Section 7.3.8 of the Criminal Code (Cth) provides that ‘mental impairment’ includes senility, intellectual disability, mental illness, brain damage and severe personality disorder. Section 7.3.9 of the Criminal Code (Cth) provides: ‘The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.’ Mental Health Act 2009 (SA) s 3. Mental Health Act 2014 (Vic) s 4. Mental Health Act 2000 (Qld) s 12; Mental Health Act 2016 (Qld) s 10. Mental Health Act 2007 (NSW) s 4. Mental Health Act 2013 (Tas) s 4(1). Mental Health Act 2014 (WA) s 6. See, for example, Mental Health Act 2000 (Qld) s 12; Mental Health Act 2016 (Qld) s 10(2). See Mental Health and Related Services Act 1998 (NT) s 6(3)(g). M’Naghten’s Case (1843) 10 Cl and Fin 200; 8 ER 718; Woolmington v DPP [1935] AC 462; Taylor v R (1978) 45 FLR 343; (1978) 22 ALR 599; Criminal Code (ACT) 2002 s 28(4); Criminal Code (NT) s 43D (presumption of competence and burden of proof); Criminal Code (Qld) s 26 (presumption of sanity); Criminal Law Consolidation Act 1935 (SA) s 269D (presumption of mental competence); Criminal Code Act (Tas) 1924 s 15 (presumption of sanity); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 21(1); Criminal Code (WA) s 26 (presumption of sanity). R v Fitchett [2009] VSCA 150 (CA) at [53]. See 13.32. For example, see R v Youssef (1990) 50 A Crim R 1 at 12 per Hunt CJ at CL; Donovan v R (1989) 39 A Crim R 150; [1990] WAR 112 at 115–16; Chaulk v R (1990) 62 CCC (3d) 193 at 240–55 per Wilson J. For example, see the Law Reform Commission of Western Australia, Criminal Process and Persons Suffering from Mental Disorder, Project 69, 1991 at 21; Victorian Law Reform Commission, Mental Malfunction and Criminal Responsibility, Report 34, 1990 at 24; Model Criminal Code Officers Committee, ’General Principles of Criminal Responsibility’, Ch 2, Model Criminal Code, Commonwealth Attorney- General’s Department, Canberra, 1992, p 43. For example, see R v S [1979] 2 NSWLR 1 at 61 per O’Brien J; R v Ayoub (1984) 10 A Crim R 312 at 316 per Street CJ. For discussion of burden of proof in the context of periodic review of a non-custodial supervision order: see NOM v DPP [2012] VSCA 198. The question is one of actuality, not capacity: Duval-Smith v R [2013] NZCA 492. It can be seen that the last two matters focus on the accused’s mental state at the time of the offence — not on the time of trial. The accused’s mental state at the time of trial is critical to fitness to plead but not to criminal responsibility. Woodbridge v R [2010] NSWCCA 185 at [86] per Davies J; R v Boyle [2009] VSCA 289 at [50], [58]; R v Clarke (1995) 78 A Crim R 226. The problems of diagnosis are apparent in many cases: see, for example, R v McGuckin

42. 43.

44.

45.

46.

47. 48.

49.

50. 51.

[2014] ACTSC 242. Emily Dickinson put it poetically, ‘The Brain is wider than the Sky, for put them side by side, the one the other will contain with ease, and you beside’. Francis describes the brain as the most complex thing in the known universe and remarkable for its reliability and effortless efficiency; see A Francis, Saving Normal: An Insider’s Revolt against Out-of-Control Psychiatric Diagnosis, DSM-5, Big Pharmacies, and the Medicalization of Ordinary Life, Harper Collins, New York, 2013, p 10. ‘[T]he pathobiological mechanisms underlying these disorders are still largely unknown’: see O Andreassen et al, ‘Genetic Pleiotropy between Multiple Sclerosis and Schizophrenia but not Bipolar Disorder: Differential Involvement of Immune- Related Gene Loci’ (2015) 20(2) Molecular Psychiatry 207 at 207. The major categories of mental illness are classified in diagnostic manuals, such as Diagnostic and Statistical Manual of Mental Disorders, 5th ed, American Psychiatric Association, Arlington, VA, 2013 (‘DSM-5’); and International Classification of Diseases, 10th revision, World Health Organization, Geneva (‘ICD-10’). See also Francis, above n 43, p 10. Francis chaired the DSM IV Taskforce and is highly critical of the medicalisation of everyday maladies, such as grief and old age, evident in DSM-5. See the useful comments by Williams J in R v Johnson [2013] NSWDC 40 regarding the limitations and controversies associated with these diagnostic manuals, drawing heavily on the work of psychiatrist P Shea, Psychiatry in Court: The Use(fulness) of Psychiatric Reports and Psychiatric Reports in Court Proceedings, 2nd ed, The Federation Press, Sydney, 1996. Under ICD-10, the term ‘disorder’ is not an exact term, but used ‘… to imply the existence of a clinically recognizable set of symptoms or behaviour associated in most cases with distress and with interference with personal functioning’: ICD-10 at p 5. ‘Social deviance or conflict alone, without personal dysfunction’ is excluded from the definition. See World Health Organization’s International Classification of Diseases, 10th ed (ICD) (WHO, 1988) p 5. For a philosophical perspective of the concept of mental disorder, see D Bolton, ‘Problems in the Definition of Mental Disorder’ (2001) 51 Philosophical Quarterly at 182. See 13.44. The Psychiatric Genomics Consortium (PGC) was formed in 2007 to undertake metaanalyses of genome-wide association studies (GWAS) for psychiatric disorders, specifically schizophrenia, bipolar disorder, major depressive disorder, attention deficit–hyperactivity disorder and autism spectrum disorders. See Cross-Disorder Group of the Psychiatric Genomics Consortium, ‘Identification of Risk Loci with Shared Effects on Five Major Psychiatric Disorders: A Genome-Wide Analysis’ (2013) 381(9875) The Lancet 1371–9, (accessed 25 September 2014). An editorial in Nature, while acknowledging the ‘crudity of current psychiatric diagnoses’, expresses the optimistic thought that the genetics and molecular biology may usher in ‘a scientific phase more penetratingly insightful than has hitherto been possible’: ‘A Decade for Psychiatric Disorders’ (2010) 463 Nature 9, editorial, (accessed 25 September 2014). S Chang et al, ‘BDgene: A Genetic Database for Bipolar Disorder and Its Overlap with Schizophrenia and Major Depressive Disorder’, (accessed 25 September 2014). See R v Dastagir [2013] SASCFC 109. Cvetkovic v R [2010] NSWCCA 329 at [137] per Campbell JA, referring to R v Falconer

52. 53. 54. 55. 56. 57.

58.

59.

60. 61.

62. 63. 64.

65.

(1990) 171 CLR 30. Woodbridge v R [2010] NSWCCA 185 at [70]; R v Boyle [2009] VSCA 289 at [50], [58]; R v Clarke (1995) 78 A Crim R 226. R v Turner [1975] QB 834; [1975] 1 All ER 70 (CA). See the cases referred to at 13.19–13.20. A point well illustrated by R v Howe [2004] TASSC 61. R v Fitchett [2009] VSCA 150. In R v Heuer [2013] QSC 357 at [12], Wilson J noted: ‘Generally, where a defendant relies on insanity as a defence and calls psychiatric evidence in support of that defence, the Crown may adduce psychiatric evidence in rebuttal. Generally, the Crown may do so even where its psychiatric evidence is relevant to intent as well as to insanity’.’ R v Barker [2014] ACTSC 153 at [168] per Refshauge J; R v Adam [2012] SADC 119 at [29]; see R v Zilic [2010] SASC 70 at [90] per Nyland J, referring to Samuels v Flavel [1970] SASR 256 at 258, where Bray CJ said: ‘[N]o court should abdicate its own judgment in favour of an expert or refuse to give proper weight to other evidence in the case, even non-expert evidence, which is contrary to the expert’s opinion’. See also R v Adam [2012] SADC 119; Brennan v R [2015] 1 WLR 2060. See Walton v R [1978] AC 788; 66 Cr App R 25. In Kosian v R [2013] VSCA 357, the Victorian Court of Appeal set aside a jury conviction of murder where insanity was raised as an issue. The trial judge erred in failing to give a direction sought by counsel for the accused, that uncontradicted expert testimony should only be rejected if there was a good reason for doing so: Redlich JA at [52]. The court considered the circumstances under which a jury might reject expert testimony supporting a finding of mental illness, even in the face of minor discrepancies between the expert witnesses. See also R v Klamo [2008] VSCA 75; R v Dgl [2004] NSWSC 414; Hone v Western Australia [2007] WASCA 283; Taylor v R (1978) 45 FLR 343; [1978] 22 ALR 599; Anderson v R [1972] AC 100; Hksar v Nancy Ann Kissel [2013] HKCA 622. R v Brindley [2014] NSWSC 1274 at [179] per Bellew J, referring to R v Afele [2014] NSWSC 366 at [68] and other authorities. R v Falconer [1990] HCA 49; (1990) 171 CLR 30 at 60 per Deane and Dawson JJ: ‘The definition of what constitutes a mental disease or natural mental infirmity is a matter of law’; see also at 49, 74, 84. Woodbridge v R [2010] NSWCCA 185 at [86] per Davies J. See CJ v Regina [2012] NSWCCA 258. DAR v DPP (Qld) [2008] QCA 309 at [63] per Keane JA. It is, however, somewhat troubling that, in a majority of cases studied over a period in South Australia, judges did not provide the basis for a finding of mental incompetence in terms of the illness involved or the incapacity caused: see Sentencing Advisory Council, A Discussion Paper Considering the Operation of Part 8A of the Criminal Law Consolidation Act 1935 (SA), Attorney-General’s Department, South Australia, 2013, , p 5. See R v Barker [2014] ACTSC 153; R v McGuckin [2014] ACTSC 242; R v Steurer [2009] ACTSC 150; R v Ardler [2004] ACTCA 4; R v Settree (No 2) [2016] NSWSC 1079; R v Dgl; R v Clements [2016] NSWSC 1021; R v Zahab [2014] NSWSC 1197; R v Lopez [2014] NSWSC 287; R v Wilson (No 3) [2013] NSWSC 1684; R v Loughrey [2011] NSWSC 1456; R v Fernando [2011] NSWSC 1556; R v Tarantello [2011] NSWSC 383 at [66]–[73]; R v Adam [2010] NSWSC 1162; R v Coleman [2010] NSWSC 177 at [68]–[79];

66. 67.

68. 69. 70. 71. 72.

73.

74. 75. 76. 77. 78. 79. 80. 81. 82.

83. 84. 85. 86.

R v Fili [2010] NSWSC 712; R v Doolan [2010] NSWSC 147; R v Pratt [2009] NSWSC 1108; R v Nguyen [2009] NSWSC 918; R v Gill [2009] NSWDC 229 (DC); R v Konidaris [2014] VSC 89; C L (a minor) v Lee [2010] VSC 517; R v N C T [2009] VSCA 240; Director of Public Prosecutions v Taleski [2007] VSC 183; R v Cox [2006] SASC 188; R v Telford [2004] SASC 248; Western Australia v Iley [2006] WASC 107; Hone v Western Australia [2007] WASCA 283; Western Australia v Brown [No 3] [2013] WASC 349. Mental Health Act 2016 (Qld) s 638(1), (2) (see 13.32). Criminal Procedure Act 1986 (NSW) s 132. See R v Robert Bretherton [2013] NSWSC 1036 for a case where an application for a judge-alone trial was successfully opposed by the prosecution. See also Supreme Court Act 1933 (ACT) s 68B. Criminal Procedure Act 2004 (WA) s 118(2); see Western Australia v Brown [No 3] [2013] WASC 349; Chiha v Western Australia [No 2] [2015] WASC 147. R v Falconer (1990) 171 CLR 30 at 48–9 per Mason CJ, Brennan and McHugh JJ; Re Bromage [1991] 1 Qd 1 at 6 per McPherson J. R v Joyce [1970] SASR 184 at 188 per Bray CJ, Walters and Zelling JJ; R v Tsigos [1964– 65] NSWR 1607 at 1629 per Moffit J; R v Jeffrey [1967] VR 467 at 473 per Barry J. R v Cottle [1958] NZLR 999 at 1013. ICD-10 retains the word ‘psychotic’ ‘as a convenient descriptive term’ that ‘simply indicates the presence of hallucinations, delusions, or a limited number of severe abnormalities of behaviour, such as gross excitement and overactivity, marked psychomotor retardation, and catatonic behaviour’. The ICD-10 Classification of Mental and Behavioural Disorders, Clinical descriptions and diagnostic guidelines, , p 10. For example, see R v McGuckin [2014] ACTSC 242; R v Martin [2007] VSCA 291. Where self-induced psychosis is concerned, questions of foresight or recklessness may well arise even if the mental breakdown was induced by drink or drugs: see R v Tsiaras [1996] 1 VR 398; R v Verdins [2007] VSCA 102 at [23]–[26]. See R v Bober (No 3) [2010] SASC 31; R v Fitchett [2009] VSCA 150. Lucas v R (1970) 120 CLR 171 at 175 per Barwick CJ, Owen and Walsh JJ, rejecting the approach taken by Barry J in R v Weise [1969] VR 953 at 965–6. [2001] 2 Qd R 678 at 679; special leave to appeal to the High Court dismissed; see Maloney v R B14/2002 [2003] HCATrans 633. See, for example, Mental Health (Criminal Procedure) Act 1990 (NSW) s 37; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 22(2)(a). See Transcript of Proceedings, charge, R v Gemmill (Supreme Court of Victoria, Osborn J, 12 November 2003); cited in R v Fitchett [2009] VSCA 150 at [39] fn 21. [2009] VSCA 150 at [39]. R v Hilder (1997) 97 A Crim R 70 at 81. Mental Health (Forensic Provisions) Act 1990 (NSW). Crimes Act 1900 (ACT) Pt 13 (Unfitness to Plead and Mental Impairment). For a useful comparison between the ACT and NSW provisions, see R v Steurer [2009] ACTSC 150 at [88] per Penfold J. Criminal Code Act (NT) Pt IIA (Mental Impairment and Unfitness to be Tried). Mental Health Act 2000 (Qld); Mental Health Act 2016 (Qld). See Criminal Law Consolidation Act 1935 (SA) Pt 8A, introduced in the Criminal Law Consolidation (Mental Impairment) Amendment Bill 1994 (SA). Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) Pt 5.

87. 88. 89. 90.

91.

92.

93.

94. 95.

96.

97. 98. 99. 100. 101. 102. 103.

Criminal Law (Mentally Impaired Accused) Act 1996 (WA). Crimes Act 1914 (Cth) ss 20B–20BH. See Criminal Law Consolidation Act 1935 (SA) s 269E(2). See R v Colella [2016] SASC 31 per Nicholson J; R v Bayley [2013] SADC 103 (DC); R v Hamlyn [2012] SADC 158; R v Steele [2012] SASC 55 per Gray J; R v Zilic [2010] SASC 70; R v Kakavand [2010] SASC 350; R v Milka [2010] SASC 250 per Kelly J; R v Murphy [2009] SASC 2 per Gray J; R v Cardillo [2007] SADC 82; but for a case where the objective elements were considered first, see R v Adam [2012] SADC 119. Under s 23(1)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) the limiting term is the ‘best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence’. See also Crimes Act 1900 (ACT) s 301. R v Bober (No 3) [2010] SASC 31 at [41] per Gray J: ‘[It] is intended to provide a more humane method of dealing with the mentally ill who come into contact with the criminal justice system, than the imposition of “detention at the pleasure of Her Majesty”’. See also R v Ardler [2004] ACTCA 4 at [48]. Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 19(5) merely requires certain matters to be taken into account, such as the strength of the evidence, the accused’s character and the public interest. In fact, the special verdict may be treated as equivalent to a conviction in certain cases: see Criminal Code (NT) s 406(2). See Stokes, above n 11; see also P Keyser and P McGee, ‘Aboriginal People Like Rosie Fulton Deserve Better’, The Drum, updated 27 June 2014, (accessed 7 December 2014); Office of the Inspector of Custodial Services, Mentally Impaired Accused on ‘Custody Orders’: Not Guilty, but Incarcerated Indefinitely, Government of Western Australia, April 2014, . As to the NT, see Report of the Australian Human Rights Commission: KA, KB, KC and KD v Commonwealth of Australia [2014] Aus HRC 80. See R v Fox [2011] SASC 224 for a case where a person found not guilty by reason of mental incompetence was detained in prison due to his subsequent violent behaviour; see also R v V, T [2013] SADC 171. Crimes Act 1914 (Cth) ss 20B–20BH; Crimes Act 1900 (ACT) Pt 13 (Unfitness to Plead and Mental Impairment) ss 43I, 43Z and 43ZA; Mental Health (Forensic Provisions) Act 1900 (NSW) ss 33(1)(a), 39; Mental Health Act 2007 (NSW); Criminal Code (Qld) s 647; Criminal Code Act (NT) Pt IIA (Mental Impairment and Unfitness to be Tried) s 43ZA(2); Mental Health Act 2000 (Qld), ss 58, 64 and 288; Criminal Law Consolidation Act 1935 (SA) Pt 8A; Criminal Justice (Mental Impairment) Act 1999 (Tas) s 21; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) Pt 5 ss 23, 24(3); Criminal Law (Mentally Impaired Accused) Act 1996 (WA). Mental Health (Forensic Provisions) Act 1990 (NSW) s 39(2). See, for example, Attorney-General for the State of Queensland v Austin [2014] QCA 97. Criminal Law Consolidation Act 1935 (SA) s 269O. See Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) Pt 5; R v Konidaris [2014] VSC 89. See Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 24(3), 26(4). Mental Health (Forensic Provisions) Act 1990 (NSW) s 73(3). See, for example, Re CMX [2014] QMHC 4.

104. 105. 106. 107. 108. 109. 110. 111. 112.

113. 114.

115.

116. 117. 118.

119. 120. 121. 122.

123. 124. 125.

See, for example, NOM v DPP [2012] VSCA 198. Crimes Act 1914 (Cth) s 20BL. Lynch v Hennicke [1985] Tas R (NC 5) 175; Medlin v Samuels [1971] SASR 223. Mental Health (Criminal Procedure) Act 1990 (NSW) s 32(1); Criminal Law (Mentally Impaired Accused) Act 1996 (WA) ss 20, 22. Mental Health (Criminal Procedure) Act 1990 (NSW) s 33(1)(a). Crimes (Mental Impairment and Fitness to be Tried) Act 1997 (Vic) s 26. Mental Health Act 2016 s 22(1). As to the limits of the present Mental Health Act 2000 (Qld), see R v AAM; Ex parte A-G (Qld) [2010] QCA 305. Crimes Act 1914 (Cth) s 20BQ. Section 20BQ impliedly repealed the state law which had been picked up and applied as federal law. The High Court refused special leave to appeal: see [2009] HCA Trans 175. See also Commonwealth Director of Public Prosecutions, Federal Sentencing in Victoria, 2015, p 7, (accessed 31 March 2016). See M’Naghten’s Case (1843) 10 Cl and Fin 200; 8 ER 718. Criminal Code 1995 (Cth) s 7.3; Criminal Code 2002 (ACT) s 28; Criminal Code Act (NT) s 43C; Criminal Code (Qld) s 27; Criminal Law Consolidation Act 1935 (SA) s 269C; Criminal Code 1913 (WA) s 27. See Skelton v R [2015] NSWCCA 320 at [103] per Beazley P and Davies J; R v Zahab [2014] NSWSC 1197 at [118] per Garling J; CJ v R [2012] NSWCCA 258 (CCA) at [16] per Hall J; R v Pratt [2009] NSWSC 1108 per R A Hulme J; The Mental Health (Forensic Provisions) Act (1990) NSW provides that the term ‘mentally ill person’ has the same meaning as that provided in the Mental Health Act 2007 (NSW), but the term ‘mental illness’ is not defined in the former Act. Section 25 abrogates the defence of insanity and provides that a jury is not entitled in any criminal trial to return a verdict of not guilty on account of insanity. R v Konidaris [2014] VSC 89 at [29] per Forrest J; Director of Public Prosecutions v Taleski [2007] VSC 183; R v Martin [2005] VSC 518; R v Sebalj [2003] VSC 181. Criminal Code 1995 (Cth) s 7.3(1)(c); Criminal Code 2002 (ACT) s 28(1)(c); Criminal Code Act (NT) s 43C(1)(c); Criminal Code (Qld) s 27(1); Criminal Law Consolidation Act 1935 (SA) s 269C(c); Criminal Code 1913 (WA) s 27(1). Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20(1)(b). Criminal Code (Cth) s 7.3(8); Criminal Code (ACT) s 27(1). R v Falconer (1990) 171 CLR 30; R v Radford (1985) 42 SASR 266 at 274; (1985) 20 A Crim R 388; R v Adam [2012] SADC 119. (1985) 42 SASR 266 at 274; compare R v Foy [1960] Qd R 225 at 243 per Philp J, who described ‘mental disease’ as ‘an abnormal mental state, no matter how caused or how transient’. [2010] NSWCCA 185 at [92]. See R v Carter [1959] VR 105 at 110; R v Cottle [1958] NZLR 999 at 1015 per Gresson P. See Woodbridge v R [2010] NSWCCA 185 at [92] per Davies J. Lord Denning went so far as to say that ‘any mental disorder which has manifested itself in violence and is prone to recur’ should be regarded as being within the insanity defence, but it is suggested that periodic outbursts of violence alone would not be a sufficient marker of mental illness. His Lordship’s comment that, ‘At any rate, it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal’, shows concern with the

126. 127.

128.

129. 130.

131.

132. 133. 134. 135.

136. 137.

138. 139. 140. 141. 142.

safety of the community: Bratty v Attorney General (Northern Ireland) [1963] AC 386 at 412. R v Kemp [1957] 1 QB 399; [1956] 3 All ER 249. In the Victorian Supreme Court case of R v Carter [1959] VR 105 at 110, Sholl J refused to apply the M’Naghten Rules to a temporary mental malfunction due only to such outside agencies as alcohol, drugs or applied violence with trauma. It was quite beyond the policy of the law to commit a person to a psychiatric institution when there was no reason to fear any repetition and no evidence of brain damage or disease. In R v Cottle [1958] NZLR 999, the New Zealand Court of Appeal stated obiter that the transitory effects of physical violence, narcotics, alcohol and hypnotism could not be described as resulting from ‘disease’. O Dixon, ‘A Legacy of Hadfield, M’Naghten and Maclean’ (1957) 31 Australian Law Journal 255 at 260. The law is well summarised by RA Holmes J in R v Pratt [2009] NSWSC 1108 at [19]–[21]; see also R v Adam [2012] SADC 119. RPS v R (2000) 199 CLR 620; 113 A Crim R 341; R v Mogg (2000) 112 A Crim R 417; R v Lock [2002] 1 Qd R 512. In Attorney-General for Northern Ireland v Gallagher [1963] AC 349; [1961] 3 All ER 299 where, in the context of severe intoxication, Lord Denning referred to some journalistic accounts: ‘as where, at a christening, a drunken nurse put the baby behind a large fire, taking it for a log of wood (18 Gentleman’s Magazine, 1748, p 570); and where a drunken man thought his friend (lying in his bed) was a theatrical dummy placed there and stabbed him to death (“The Times” 13 January 1951)’. (1933) 55 CLR 182 at 189; Sodeman v R (1936) 55 CLR 192 at 215. See also the Supreme Court of Canada cases of R v Cooper (1980) 51 CCC (2d) 129; Kjeldsen v R (1981) 24 CR (3d) 289. (1936) 55 CLR 192 at 215. R v Weeks (1993) 66 A Crim R 466 at 482 per Nash J citing Codere v R (1916) 12 Cr App R 21; Willgoss v R (1960) 105 CLR 295 at 300. See, for example, R v Zahab [2014] NSWSC 1197. (1933) 55 CLR 182 at 189. The Commonwealth Criminal Code s 7.3(1)(b) and the Northern Territory Criminal Code s 43C(1)(b) explicitly adopt the Dixon formulation. It has been read into the Criminal Code (ACT) s 28(2): see R v McGuckin [2014] ACTSC 242. [1952] 2 QB 826 at 832 per Lord Goddard CJ. See also Skelton v R [2015] NSWCCA 320; Windle has also been rejected in New Zealand: see Duval-Smith v R [2013] NZCA 492; R v Dixon [2007] NZCA 398; [2008] 2 NZLR 617; R v MacMillan [1966] NZLR 616 (CA). (1952) 86 CLR 358 at 375 per Dixon CJ, Webb and Kitto JJ. Re Bosanquet [2011] QMHC 24; Evans v Western Australia [2010] WASCA 34; contrary to the English approach: R v Balaban (1953) SASR 282 at 288. [2003] ACTSC 1 at [30]–[31]. R v JGA [2013] QMHC 3. Criminal Code (Cth) s 7.3(8); Criminal Code (ACT) s 27(1). The significance of the word ‘severe’ as a qualifier is somewhat unclear. It raises the question whether the DSMidentified personality disorders may be ranked according to severity (leading perhaps to the conclusion that a ‘borderline’ or ‘non-specific’ personality disorder would be not severe, or at any rate less severe than the other forms). Alternatively, ‘severe’ might be seen as simply qualifying the traits defining the disorder within any of the categories.

143. For arguments for and against the inclusion of personality disorders within the defence of insanity, see Victorian Law Reform Commission, Defences to Homicide, Options Paper, 2003, at [5.95]–[5.96]. 144. Due to legislative amendments in 1997, the words ‘mental disease or natural infirmity’ were replaced by ‘mental impairment’ and the latter was defined to mean ‘intellectual disability, mental illness, brain damage or senility’: see Criminal Code (WA) ss 1, 27. 145. P Fairall and P Johnston, ‘Anti-Social Personality Disorder and the Insanity Defence’ (1987) 11 Criminal Law Journal 78. A case such as Norrie v R [2008] NSWCCA 185 where the accused admitted that he enjoyed killing people ‘more than sex’ raises challenging questions about the desirability of extending a ‘defence’ of insanity to include severe ASPD. 146. In McDermott v The Director of Mental Health; Ex parte A-G (Qld) [2007] QCA 51, the Queensland Court of Appeal noted that a personality disorder may cause an abnormality of mind within s 304A of the Criminal Code (Qld). See Fryberg J’s extended discussion of personality disorder within the context of the diminished responsibility defence, at [115]– [116]. In the earlier case of Re GMB (2002) 130 A Crim R 187, Chesterman J, sitting as the Mental Health Tribunal, held that ASPD did not amount to an ‘abnormality of mind’ for the purposes of s 304A of the Criminal Code, which defines the defence of diminished responsibility. See also R v Moffatt [No 3] [1999] NSWSC 233; R v Adams [2002] NSWCCA 448; R v Byrne [1960] 2 QB 396; R v Turnbull (1977) 65 Crim App R 242. 147. Mental Health (Forensic Provisions) Act 1990 (NSW) s 38; Mental Health Act 2007 (NSW); Crimes (Mental Impairment and Fitness to be Tried) Act 1997 (Vic). 148. See, for example, CJ v Regina [2012] NSWCCA 258. 149. Criminal Code (Cth) s 7.3(1)(c). 150. Criminal Law Consolidation Act 1935 (SA) Pt 8A s 269C(c). In R v Zilic [2010] SASC 70 at [80], Nyland J stated: ‘In my opinion the law requires there to be a total lack of control in order for a defendant to avail him/herself of a defence pursuant to s 269C(c) CLCA’. 151. Criminal Code (NT) s 43C. 152. Criminal Code (ACT) s 28(1)(c). 153. Criminal Code (Tas) s 16. 154. (1936) 55 CLR 192 at 214–15, and reaffirmed by the High Court in Brown v A-G for South Australia [1959] ALR 808 at 814. 155. C Forsyth, ‘Brown v The Queen; Attorney-General for the State of South Australia v Brown (Irresistible Impulse)’ (1960) 2(4) Melbourne University Law Review 538. 156. This was recognised by the English Court of Appeal in R v Byrne [1960] 2 QB 396 at 403. 157. See Western Australia v Brown [No 3] [2013] WASC 349; R v Johnson [2013] NSWDC 40. 158. Glanville Williams gives some amusing examples to demonstrate the absurdities of the rule: see G Williams, Criminal Law: The General Part, 2nd ed, Stevens, London, 1961, p 502. 159. Williams, above n 158, p 504. 160. (1991) 60 A Crim R 419 at 422. 161. Section 46 provides that a person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use. 162. Criminal Code (Tas) s 381. 163. Fortunately, McDermott was not disposed of by reference to the rule concerning delusions. 164. [2010] WASC 355 at [159]. 165. [1999] WASCA 169 at [79]–[81] per Murray J.

166. Neither s 16(3) of the Tasmanian Code nor s 27 of the Queensland and Western Australian Codes limits delusions to those which are produced by ‘disease of the mind’ or mental illness (although s 27 is headed ‘Insanity’). By contrast, the relevant M’Naghten Rule refers explicitly to insane delusions. Likewise, see s 7.3(7) of the Criminal Code (Cth), which refers explicitly to a delusion caused by mental impairment. 167. See also R v Wang [1990] 2 NZLR 529. 168. The court held that the circumstances of the case did not warrant consideration of provocation. 169. The conclusion that provocation can be raised even in the absence of any act by the accused immediately prior to the accused’s loss of self-control has been achieved in some jurisdictions by statutory amendment, for example: R v Chhay (1994) 72 A Crim R 1; Crimes Act (NSW) s 23. The effect of the High Court decision in Stingel v R (1990) 171 CLR 312 upon Voukelatos is unclear. 170. [1990] VR 1 at 20 per Murphy J; at 26 per Hampel J. Provocation as a partial defence to murder has been abolished in Victoria. 171. R v Sandoval [2010] NSWDC 255 per Berman DCJ, dealing with Crimes Act s 52 (dangerous driving causing grievous bodily harm or death). 172. In New South Wales, according to s 38(1) of the Mental Health (Forensic Procedures) Act 1990 (NSW), the special verdict must be based on a finding that the accused ‘did the act or made the omission charged’. The Mental Health Act 2000 (Qld) provides in s 268 that the court must not make a finding that the defendant was of unsound mind when the offence was committed or, in a murder case, that the person had diminished responsibility ‘if the court is satisfied there is a reasonable doubt the person committed the alleged offence’ — but may do so ‘if the doubt the person committed the disputed offence exists only as a consequence of the person’s mental condition’. 173. Worters v R [2014] NZCA 371. 174. See R v Ardler [2004] ACTCA 4 at [24]. 175. For decades the law has accepted as axiomatic the principle that a person is not criminally responsible for an involuntary act, such as that performed by way of reflex action or in a state of somnambulism or sleepwalking: Ryan v R [1967] HCA 2; (1967) 121 CLR 205. This is the basis for the defence of automatism: see Chapter 14. 176. R v Adam [2012] SADC 119. 177. As with the case of R v Hewitt [2004] VSC 487, for example; see 13.19. 178. See I Freckleton, ‘Medical Issues: Asperger’s Disorder and the Criminal Law’ (2011) 18 Journal of Law and Medicine 677. 179. R v Dunrobin [2008] QCA 116. 180. R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420. In relation to s 24 ‘mistake of fact’ under the Criminal Code (Qld), the majority held that the appropriate question is not what a reasonable person may have believed, but what the accused believed and whether that belief was, for him or her, a reasonable belief. McMurdo P, although not in dissent, disagreed with the majority. Her Honour noted that to allow psychiatric evidence of mental disability to be taken into account in determining whether the accused’s belief was held on reasonable grounds would produce ‘startling results’: at [25]. 181. See Aubertin v Western Australia (2006) 167 A Crim R 1; [2006] WASCA 229 at [43] per McLure JA, the question whether the accused’s belief is characterised as reasonable is not entirely objective but a mixture of objective and subjective factors. See 2.35 (mistake of fact).

182. 183. 184. 185. 186.

187. 188.

189. 190.

191. 192.

193. 194. 195.

196.

197.

198.

See 13.9. Bratty v Attorney General (Northern Ireland) [1963] AC 386. [1958] NZLR 999 at 1021. [1958] NZLR 999 at 1021. ‘If there is objective evidence which raises the issue of mistake or accident or self- defence, then the jury should not find that the defendant did the “act” unless it is satisfied beyond reasonable doubt on all the evidence that the prosecution has negatived that defence.’ See R v Antoine [2000] UKHL 20; [2001] 1 AC 340 at 376–7 H–D per Lord Hutton. R v Antoine [2001] 1 AC 340 at 377 per Lord Hutton. Intention in this context is no more than an element of voluntariness: R v Williams [1978] Tas SR 98 at 101 per Neasey J; Hawkins v R (1994) 179 CLR 500; 72 A Crim R 288 at 292. (1994) 179 CLR 500 at [18]. Hawkins v R (1994) 179 CLR 500. The decision recalls the common law rule relating to self-induced intoxication: see R v O’Connor [1980] HCA 17; (1980) 146 CLR 64. See also R v Ardler [2004] ACTCA 4 at [74]. R v Stables [2014] NSWSC 697 at [32] per Hidden J. To the extent that it turns on a distinction between so-called ‘specific’ intents and other mental states, including voluntariness, it suffers from the same defect as the pre- O’Connor treatment of self-induced intoxication, and may ultimately suffer the same fate: see R v O’Connor [1980] HCA 17; (1980) 146 CLR 64; P Fairall, ‘Majewski Banished’ (1980) 4 Criminal Law Journal 264. See also R v Arnold; Ex parte A-G (Qld) [2002] QCA 357; R v Wilson [1997] QCA 244; R v Barnes [1995] QCA 11. R v Alford [2005] VSC 405; R v R [2003] VSC 187. Western Australia v Elliott [2012] WASC 174; Cooley v Western Australia [2005] WASCA 160; Simms v R [2004] WASCA 237; Ward v R [2000] WASCA 413; (2000) 23 WAR 254; Garrett v R [1999] WASCA 169; Middleton v R [1998] WASCA 96. See also R v Brindley [2014] NSWSC 1274; R v Azbaa [2014] NSWSC 1228; R v Opie [2014] NSWSC 814; R v Stables [2014] NSWSC 697; R v Crispe (No 2) [2014] NSWDC 201; R v Krbavac [2013] NSWSC 1671; R v Lancaster [2013] NSWSC 322; R v Mitchell [2012] NSWSC 1404; R v Newbury [2012] NSWSC 1361; Cvetkovic v R [2010] NSWCCA 329 at [413]. There have been many comprehensive reviews. See, for example, Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Report 28, 2014; also Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Consultation Paper, 2013; New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report 138, 2013; Sentencing Advisory Council, A Report on the Operation of Part 8A of the Criminal Law Consolidation Act 1935 (SA), Attorney- General’s Department, South Australia, 2014. Hunter Area Health Service v Presland [2005] NSWCA 33, where the Court of Appeal by majority set aside an award of damages for negligence against a mental health authority and treating psychiatrist for failing to schedule the plaintiff. The plaintiff had presented with psychotic symptoms but was discharged a few hours later and, within six hours of release, killed his brother’s fiancée: see ‘The Case of Kevin Presland’, Law Report, ABC

Radio National, 14 June 2005, (accessed 29 December 2014). 199. The stigma associated with mental illness is hard to eradicate: see ‘A Decade for Psychiatric Disorders’ (2010) 463 Nature 9, editorial, . Whether there has been any general improvement of community attitudes towards those suffering from mental illness is debatable, although perhaps illnesses such as depression are perhaps more sympathetically disposed of than heretofore.

[page 403]

14 Automatism Introduction 14.1 The word ‘automatism’ is used by health professionals1 to refer to simple or complex movements of the body, ranging from spasms of the voluntary musculature2 to highly complex behaviour3 where a person has little if any conscious awareness of what is being done. The term ‘automatism’ has overlapping meanings in law, medicine4 and philosophy.5 14.2 Common causes of automatism include various types of epilepsy,6 some specific neurological7 or physical ailments,8 concussion,9 acute stress reactions [page 404] (so-called psychological blow automatism),10 acute intoxication by drugs or alcohol,11 post-traumatic stress disorder,12 sleep deprivation13 and sleep disorders.14 Sleepwalking is a prime example and perhaps the most commonplace.15 Early definitions of automatism, such as that of Gresson P in R v Cottle [1958] NZLR 999 tended to equate automatism with the lack of conscious volition:16 ‘Automatism, which strictly means action without conscious volition, has been adopted in criminal law as a term to denote conduct of which the doer is not conscious — in

short doing something without knowledge of it, and without memory afterwards of having done it — a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements. In such a case, the action is one in which the mind in its normal functioning does not control’.

14.3 Automatism is sometimes, but not always, associated with significantly diminished consciousness.17 A complete lack of consciousness is not, however, a defining characteristic of the medical conception of automatism. When a doctor taps the knee of a healthy patient with a small rubber hammer (or plexor) the neuromuscular system should, if it is functioning properly, cause the knee to move in a reflexive movement. Movements such as this, along with blinking and swallowing, are ‘pure’ involuntary movements, sometimes [page 405] called ‘automatisms’. The sudden ejaculation of the nasal passages involved in sneezing may also qualify, although sneezing may be more controllable than swallowing or blinking.18 A slightly different candidate perhaps is the panicky swatting movements of a person under attack by a swarm of bees: such protective measures are instinctive or reflexive — although perhaps not entirely involuntary, which is why magistrates have often demanded a stoic response from the driver who experiences such a mishap.19 By contrast, no simple stoicism can impede the sneeze, swallow or ‘plexor response’. 14.4 The contrast between ‘pure’ involuntary actions and more complex, seemingly goal-directed behaviour does, however, generate very substantial forensic difficulties. Automatism as a medical concept may comprehend not only cases where there is a complete absence of control (such as in the plexor response) but cases where the capacity for autonomous action is degraded in some degree but not entirely destroyed. The mind may function to an extent that it permits certain learned responses (such as walking or driving) while lacking the degree of focal awareness associated with normal consciousness. As a legal concept, there is a temptation to limit the exculpatory aspects of

automatism to those cases where there is a complete loss of control. 14.5 Although the term ‘automatism’ is not used or defined in the various Australian Criminal Codes, it has a legal significance both under the Codes and at common law. Although automatism is sometimes described as a ‘legal’ concept constituting a ‘defence’, it is suggested that, like self-induced intoxication, automatism is not an independent exculpatory defence.20 Rather, evidence of a state of automatism has the potential to negate key ingredients of criminal responsibility.21 The essence of a claim of automatism is that the accused was deprived of the capacity for autonomous or self-directed action, and therefore that any movement of the body leading to an event for which the Crown seeks to impute criminal responsibility occurred independently of the exercise of the [page 406] will. It was not a ‘voluntary act’;22 a fortiori, neither was it an intentional act. Automatism in this sense has been recognised for the past century as being relevant to criminal responsibility.23

Automatism as a criminal defence 14.6 The concept of automatism as a defence to crime has since its inception been greeted with deep suspicion and scepticism.24 One Canadian judge remarked:25 Automatism (is) a defense which in a true and proper case may be the only one open to an honest man, but it may just as readily be the last refuge of a scoundrel.

Nevertheless, it is submitted that evidence of a state of automatism may be relevant to criminal responsibility in at least three ways: (1) where the crime charged requires proof of some element of intention or belief, evidence of a state of automatism may provide some material from which a jury may infer that the requisite element of intent or foresight was absent;26

[page 407] (2) perhaps more fundamentally, evidence of a state of automatism may provide a basis for doubting whether the relevant act or omission involved an exercise of the will;27 and (3) automatism caused by some inherent pathology forming part of the accused’s make-up may be relevant to the insanity defence. It may also be noted that, as for intoxication, a foreseeable state of automatism may be relevant to a criminal charge, such as manslaughter, based on gross negligence.28 In this last context, automatism may operate by way of inculpation rather than exculpation. 14.7 It is a basic proposition of criminal law that, where the crime charged involves some mental element such as intention or foresight, the jury should be invited to consider as a question of fact all relevant evidence bearing upon that mental element. An altered or diminished state of consciousness — let alone a complete absence of consciousness — provides some evidential material from which the jury may infer that the accused did not act with the requisite intent or foresight. Such evidence should be allowed on the issue of intent despite the rule of evidence that disallows expert evidence on the ‘ultimate issue’.29 14.8 The question of voluntariness arises as a ‘separate and prior’ matter to that of intention in criminal cases.30 The reference to a ‘prior’ matter implies that the issue of voluntariness is embedded in the very notion of accountability that underpins criminal responsibility at common law. This is well captured by the proposition penned by Griffith that a person is not criminally responsible for an act or omission that occurs independently of the exercise of will.31 Thus, if automatism is defined purely in terms of unwilled involuntary action, any movements that occur in a state of automatism are independent of the will and cannot attract criminal sanctions.32 14.9 The ‘separate and prior’ question of voluntariness may generate difficult questions about the relationship of the will to consciousness. Indeed, it is

[page 408] sometimes said that voluntariness rather than consciousness is the key legal element of automatism.33 This approach is consistent with a conception of automatism based on a lack of control.34 14.10 There is no significant difference between the operation of automatism under the Codes and at common law, except in relation to automatism caused by self-induced intoxication:35 see 14.39–14.41. It is, however, accepted that, subject to the special position of self-induced intoxication, automatism has the same scope at common law as under the Griffith Code.36 14.11 Under the Griffith Code, a person is exempt from criminal responsibility for those acts which occur independently of the exercise of the will.37 Moreover, unless the intention to cause a particular result is an express element of the offence charged, the intention with which the accused acts is immaterial.38 Therefore, in order for automatism to have relevance to non-specific result crimes (such as assault, wounding and manslaughter), it must be related to the requirement of will.39 14.12 The Commonwealth and Australian Capital Territory Codes require all crimes to have a ‘physical element’ comprising conduct, a result of conduct, or circumstances in which such conduct occurs.40 The Code provisions go on to stipulate that the ‘conduct’ is required to be voluntary, by which is meant ‘a product of the will of the person whose conduct it is’.41 It follows that an accused person is exempt from criminal responsibility if his or her conduct was unwilled.42 As for the Northern Territory Criminal Code, automatism has been assumed to be part of the law.43 [page 409]

Automatism and consciousness

14.13 Given the vagueness and imprecision of the concept of ‘will’, it is tempting to link the absence of will in the relevant sense to a lack of consciousness.44 ‘The notion of “will” imports a consciousness in the actor of the nature of the act and a choice to do an act of that nature.’45 One then posits that, in order for an act or omission to be uncoupled from human agency and accountability, there must be a complete lack of awareness or consciousness at the time of the relevant behaviour. From this safe harbour one might say that automatism is exculpatory only to the extent that it implies unconscious unwilled action. It is argued that this line of reasoning is flawed. The linking of automatism to unconsciousness in this linear fashion is problematic. First, it is accepted that involuntary action may occur in a state of full consciousness. Simple muscular reflex may be associated with both normal and abnormal mental functioning. Second, it is surely a matter of medical science as to the nature and extent of consciousness during more complex episodes of involuntary action. It seems to be accepted by modern psychiatry that complex behaviours may occur in a state of diminished awareness although the subject is incapable of exercising control.46 14.14 Consciousness is an extremely difficult concept to define. Psychiatrists speak of varying degrees of consciousness, from full focal awareness to peripheral awareness to subliminal awareness. The idea that any degree of consciousness is inimical to a defence of automatism is arguably a form of constructive liability. Of course, it is open for the courts to define automatism in a particular way; for example, by reference to an absence of consciousness. But given that the purpose [page 410] of recognising automatism in the first place is to support the basic principle of criminal responsibility or accountability, it is questionable to ignore the scientific evidence. Moreover, as Toohey J noted perceptively in R v Falconer (1990) 171 CLR 30 it is an exercise in circularity to define a term extrinsic to the Code in a particular way so

as to provide a solution to a question of interpretation arising under the Code.47 14.15 It is not hard however to find legal authority for the proposition that any degree of consciousness is inimical to a plea of automatism and will result in the defence being withdrawn from the jury.48 Although the matter is not free from doubt, it is suggested that the mere presence of some degree of consciousness should not be taken to imply that the act was not involuntary.49 Conversely, and perhaps more safely, it can be said that consciousness does not of itself create responsibility if there was no will to act. 14.16 It is perhaps unfortunate that the term automatism developed as a synonym for involuntary actions, thus embracing actions as diverse as reflex actions (discussed at 14.2 and 14.12) and more complex states of mental dissociation. Where there is an assertion that a particular muscular movement causing or constituting criminal harm was involuntary (such as a particular movement causing a weapon to discharge with fatal consequences), the term ‘automatism’ is as Barwick CJ noted merely convenient shorthand for the absence of voluntary conduct:50 [I]t is important … not to regard [automatism] as of the essence of the discussion, however convenient an expression automatism may be to comprehend involuntary deeds where the lack of concomitant or controlling will to act is due to diverse causes. It is that lack which is the relevant determinant … It is of course the absence of the will to act or, perhaps, more precisely, of its exercise rather than lack of knowledge or consciousness which decides criminal liability.

This statement was made in the course of a defence claim that the shot that killed the deceased was discharged without any exercise of the conscious will of the accused, and that the relevant cause was either an involuntary movement of the trigger finger, or a sudden movement of the weapon which caused it to discharge.51 14.17 In more complex cases, the medical evidence may point to a degraded capacity for autonomous movement while allowing for some residual consciousness or awareness of critical events. Psychiatrists sometimes refer to a ‘dissociated’

[page 411] or ‘dreamy’ or ‘fugue’ state.52 These are difficult cases, where the medical evidence is often opaque and highly contested. The quality and insightfulness of the medical evidence will be vital and specifically the degree of conformity or agreement between the psychiatric or medical experts. It is submitted that the critical question is not whether the accused was in some sense aware of his or her actions, but whether the capacity for controlling his or her actions was sufficiently degraded that it could be said that he or she was incapable of exercising control. 14.18 The question for the jury should be simply whether the act or omission constituting the criminal offence was produced by an exercise of the will — even if there was some residual awareness of what was being done — although one should recognise that the degree of mental awareness will be a critical issue at trial.53 The notion that a person may be fully cognisant of a particular behaviour but be unable to resist carrying it out is often described as irresistible impulse. Irresistible impulse has no status as a defence outside the scope of insanity.54 It is distinct from the sort of subliminal automatism described here, although, as for consciousness, the distinction involves shades of grey. The leading case is that of R v Falconer (1990) 171 CLR 30, to which we now turn.

Psychological blow automatism 14.19 The High Court decision in R v Falconer (1990) 171 CLR 30; [1990] HCA 49 is the leading Australian case on psychological blow automatism. The appellant, a 50-year-old woman, was charged with the murder of her husband. It was not disputed that she shot him. The main issue at the trial was whether or not she intended to kill. At trial, counsel sought to raise an issue of involuntariness based upon noninsane automatism.55 Evidence was presented upon a voir dire from two psychiatrists. Both testified that the appellant was sane at the time of the killing, although subject to a profound mental disturbance produced

by psychological shock caused by recent discoveries about her husband’s sexual misbehaviour with a young girl in her foster care. The trial court ruled that the evidence was insufficient to raise an issue of sane automatism under s 23 of the Criminal Code 1913 (WA).56 The evidence did not disclose any external factor at the time of the killing leading to a psychological conflict and causing the accused to dissociate.57 The court relied upon R v Hennessey [1989] 2 All ER 9; [1989] 1 WLR 287, where the English Court of Appeal said:58 [page 412] [S]tress, anxiety and depression can no doubt be the result of the operation of external factors, but they are not, it seems to us, in themselves separately or together external factors of the kind capable in law of causing or contributing to a state of automatism. They constitute a state of mind which is prone to recur. They lack the feature of novelty or accident.

14.20 The clinical evidence was therefore not considered by the jury. The Full Court of Western Australia allowed an appeal based upon the trial court’s refusal to allow the clinical evidence to be considered by the jury on the question of voluntariness and intent. Malcolm CJ referred to a number of decisions in which the issue of sane automatism induced by psychological disturbance or stress had been left to the jury.59 The High Court dismissed an appeal by the prosecution. The court was unanimously of the view that the psychiatric evidence was wrongly excluded. It was relevant and admissible on the issue of voluntariness and intention. Dissociation (or automatism) caused by depression, tension, anxiety and fear was capable of giving rise to a complete defence and did not necessarily raise a question of insanity. A psychological blow could provide the foundation for a plea of sane automatism leading to a complete acquittal.60 The difficulty was to distinguish sane from insane automatism in the field of psychological blow automatism. 14.21 Mason CJ, Brennan and McHugh JJ in Falconer adopted the view that, in cases of psychological blow automatism, the borderline between sane and insane automatism is marked by the likely response of

the ordinary person, as it is in the defence of provocation.61 If the mind’s strength to resist the psychological trauma is below the standard of an ‘ordinary’ person, the mind is infirm; if at or above that standard, it is sound or sane. Support for the objective standard may be found in the other judgments and elsewhere.62 14.22 The introduction of an objective standard creates several difficulties. It is not clear why mental and physical blow automatism should be treated differently. If a person with an eggshell-thin skull suffers a physical blow resulting in automatism, he or she is not criminally responsible for acts performed in that state regardless of whether a person with normal skull thickness would have lost consciousness or volition.63 14.23 Moreover, the analogy with the ordinary person test in the defence of provocation is unsound. Provocation and automatism are quite distinct defences [page 413] relating to quite different impairments of the will. It is not unreasonable to withhold the law’s compassion from a person lacking in ordinary self-control, and the ordinary person test performs this function. One starts from the position that the person pleading provocation is guilty of homicide, and the only question is whether the appropriate verdict is murder or manslaughter.64 A loss of self-control (as in provocation) does not imply a loss of the capacity for self-control (as in automatism). 14.24 It is submitted that the introduction of an objective standard must lead to the greater complication of jury trials. It requires a distinction to be drawn between evidence relevant to whether automatism occurred, and evidence relevant to whether an ordinary person would65 have experienced such a state. The personality, historical antecedents and state of mind of the accused prior to the state of automatism are relevant to the first issue, but not to the second. In Falconer, for example, the accused’s psychological, neurotic or

emotional state, her feelings of fear, depression and emotional disturbance, and her stress upon discovering her husband’s sexual misconduct were all irrelevant to an assessment of the reactions of an ordinary person because the ordinary person ‘is assumed to be a person of normal temperament and self-control’.66 But some of the objective circumstances of the relationship would be relevant to the objective test, because only by considering those circumstances could the jury determine whether an ordinary person would have experienced a mental malfunction akin to that experienced by the accused. Some of the factors relevant to the ordinary person test would be relevant to the question of automatism in fact.

Raising a proper foundation 14.25 The law does not recognise a legal presumption that an act done by a conscious person is done voluntarily in the same way as there is a legal presumption of sanity.67 An inference of voluntariness may (not ‘must’) be drawn as a matter of fact in the case of a person who appears to be conscious of their actions. An accused person who claims that his or her conduct was involuntary due to a state of automatism must however produce evidence from which it can be inferred that this was the case.68 It will then be for the prosecution to remove reasonable doubt on this issue by establishing that the conduct was voluntary. However, where there is no admissible evidence before the court that the accused [page 414] was acting involuntarily, it is unnecessary for the jury to consider that issue or for the trial judge to direct on voluntariness.69 As noted in a joint judgment in R v Falconer [1990] HCA 49; (1990) 171 CLR 30:70 When an act is done by an apparently conscious actor, an inference that the act is willed must be drawn — not as a matter of law but as a matter of fact — unless it be shown that the actor, being of sound mind, has been deprived of the capacity to control his

actions by some extraordinary event or unless the actor, being of unsound mind, has thereby lost the capacity to control his actions. The accused bears no ultimate onus of proving that his act was not willed, but he bears the evidential onus of rebutting the inference that his act was willed, and there is no occasion for the jury to consider the possibility of an unwilled act unless that evidential onus is discharged. The inference that an act is willed is thus supported by the presumption that all persons have the capacity to control their actions unless they be of unsound mind, and an accused bears an ultimate onus of proving that he was of unsound mind if he chooses to raise that issue.

In R v Boyle [2009] VSCA 289, Coghlan JA said:71 We doubt whether it is strictly correct, as a matter of law, to speak of an ‘evidential burden’ resting upon an accused in relation to a matter such as voluntariness, though the matter is perhaps semantic. It might be more accurate to say that voluntariness is an element of the offence that must be proved in every case, and that there is no onus of any kind resting upon an accused in relation to that element.

Automatism and clinical evidence 14.26 Given the rarity of automatism, it is not surprising that the courts are unlikely to entertain it as a defence plea in the absence of medical evidence. In Falconer, Gaudron J observed:72 In practical terms a claim of involuntariness which is not based on mental illness is almost certain to be treated as frivolous unless supported by medical evidence that identifies a mental state in which acts can occur independently of the will, assigns a causative explanation for that state and postulates that the accused did or may have experienced that state.

In Hill v Baxter [1958] 1 QB 277; [1958] 1 All ER 193, Devlin J said:73 I do not doubt that there are genuine cases of automatism and the like, but I do not see how the layman can safely attempt without the help of some medical or scientific evidence to distinguish the genuine from the fraudulent.

In the leading decision of Bratty v Attorney-General for Northern Ireland [1963] AC 386; [1961] 3 All ER 523, Lord Denning cautioned that evidence ‘of the accused herself or himself will rarely be sufficient unless it is supported by clinical evidence which points to the cause of the mental malfunctioning’.74 Lord Morris did however accept that non-clinical evidence could support a plea of automatism. Similarly, in the New South Wales case of R v Tsigos [1964–65] NSWR 1607,

[page 415] Moffit J emphasised that a proper foundation should be laid for a defence of automatism, which would in most cases require ‘qualified scientific opinion’.75 One exception might be those cases where the explanation for an alleged episode of involuntary conduct relates to matters of common knowledge, such as sneezing.76 14.27 As against these statements, Gresson P’s comment in the New Zealand Court of Appeal case of R v Cottle [1958] 77 NZLR 999 should be noted:77 A jury is not likely readily to accept a plea of automatism or unconsciousness by the accused of his actions when it rests substantially on the assertion of the accused himself, who has a powerful motive to feign or to exaggerate a condition incapable of objective test. But, however insufficient or unconvincing the evidence of absence of intent by reason of automatism is, if it is asserted as a defence, it must be put to the jury; it is for the jury to judge whether it raises enough doubt to result in the Crown not having discharged its onus of proof.

In this respect, lack of faith in the jury should never be a reason for withdrawing some particular defence from its consideration.78

Insane automatism 14.28 A primary concern of the criminal courts is the safety of the public. Persons who do not have control of their behaviour, for whatever reason, constitute an obvious threat to public safety. To that end, cases of automatism have been divided into two categories: those that suggest an ongoing underlying medical problem (whether treatable or not) that may recur, and those that do not. More technically, this is put as a distinction between so-called ‘insane’ and ‘sane’ automatism according to whether the episode was caused by mental illness.79 This distinction is highly significant because insane automatism is governed by the rules relating to the insanity defence. A successful plea of insane automatism leads not to a complete acquittal but to a special verdict.80

By contrast, the successful raising of sane automatism may result in an unqualified acquittal. It is noticeable that, in many cases, the expert witnesses are permitted to structure their evidence in terms of their understanding of the concepts of ‘sane’ and ‘insane’ automatism.81 The problem, however, has been to devise appropriate tests for a disease of the mind.82 Two important tests are the continuing danger test and the internal–external factor test, to which we now turn.

The continuing danger test 14.29 The continuing danger test holds that, where bouts of automatism are associated with an enduring underlying condition, the case should be treated as insane automatism if the symptoms are likely to recur. Thus, in the Victorian [page 416] Supreme Court case of R v Meddings [1966] VR 306, Sholl J noted that the potential for repetition was important and a possible basis for distinguishing between sane and insane automatism. 14.30 However, predictions of future dangerousness are fraught with uncertainty and notoriously err on the side of over-prediction. Recurrence of the clinical symptoms does not necessarily present a danger to society. It would be absurd to detain an otherwise healthy individual as criminally insane if his or her condition were controllable by simple medication.83 This test has also been criticised on the ground that, if it was conclusively determinative of disease of the mind, a serious mental disorder could be excluded simply because it was unlikely to recur.84 Acknowledging the strength of this criticism, the Canadian Supreme Court in R v Stone [1999] 2 SCR 290; (1999) 134 CCC (3d) 353 has held that the test ‘must be qualified to recognise that while a continuing danger suggests a disease of the mind, a finding of no continuing danger does not preclude a finding of a disease of the mind’.85

The internal–external factor test 14.31 The internal–external test draws a distinction between a mental malfunctioning arising from a source primarily internal to the accused (such as his or her psychological makeup or organic pathology), and a malfunctioning produced by some specific external factor (such as intoxication or concussion).86 This distinction has been relied upon in so-called hysterical dissociation87 or psychological blow cases.88 However, it had been trenchantly criticised as leading to unjust and irrational outcomes, most recently by the English Law Commission.89 [page 417] 14.32 In the Canadian case of R v Rabey (1977) 37 CCC (2d) 461, the accused pleaded automatism caused by the ‘emotional shock’ of the discovery that the victim, a young woman to whom the prisoner was emotionally attached, thought of him not as a lover but as ‘just a friend’. The trial judge permitted the defence to go to the jury as a possible basis upon which a complete acquittal might be returned, if, in light of the evidence, the jury were not satisfied that the prisoner’s acts were voluntary and intentional. The Ontario Court of Appeal upheld an appeal by the prosecutor against this ruling. The emotional shock suffered by the prisoner was not an ‘external factor’ and the state of dissociative automatism (if it existed) could only be regarded as having its source primarily in the prisoner’s psychological or physiological make-up. In general, the court said:90 [T]he ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause constituting an explanation for a malfunctioning of the mind which takes it out of the category of a ‘disease of the mind’.

The court accepted that emotional shock might, under extreme circumstances, produce a state of unconscious involuntary behaviour which would not warrant a special verdict, such as seeing a loved one murdered or seriously assaulted, or being the victim of a murderous attack with an uplifted knife. Such ‘extraordinary external events’ might

be presumed to affect even the normal, average person. In the instant case, the evidence of emotional shock was only relevant to establishing the defence of insanity on the balance of probabilities, and was not relevant to a plea of ‘sane’ automatism leading to a complete acquittal. Any mental disorder or malfunction having its source primarily in some subjective condition or weakness of the accused could be a disease of the mind and lead to irresponsibility under the M’Naghten Rules if it prevented the accused from knowing what he or she was doing. 14.33 In the South Australian Court of Criminal Appeal case of R v Radford (1985) 42 SASR 266; 20 A Crim R 388, King CJ noted that a state of dissociation or depersonalisation caused by external factors could lead to an outright acquittal.91 He said:92 There is no reason in principle for making a distinction between disturbance of the mental faculties by reason of stress caused by external factors and disturbance of the mental faculties caused by the effects of physical trauma or somnambulism. The significant distinction is between the reaction of an unsound mind to its own delusions or to external stimuli on the one hand and the reaction of a sound mind to external stimuli, including stress producing factors, on the other hand. I appreciate that if it is true that a state of depersonalisation or disassociation is not itself a disease of the mind, although it may result from mental illness, the result may be that certain cases of unwilled acts which would formerly have been treated as the result of temporary insanity and would have founded verdicts of not guilty on the ground of insanity, will now result in outright acquittals. I do not see any reason to shrink from that consequence.

14.34 What if the state of automatism has a cause external to the accused but acting upon internal factors? This question arose in R v Meddings [1966] [page 418] VR 306. The accused shot his best friend after a bout of drinking and without apparent motive. He raised a plea of epileptic automatism. The question arose whether an epileptic fit induced by the intake of alcohol fell within the M’Naghten Rules. His counsel argued that if the underlying pathology was such that there had to be some ‘trigger’ in the nature of alcohol to induce an attack, the malfunction was not properly described as a defect of reason from disease of the mind. He contended

that transient causes such as alcohol or anger alone did not produce insanity within the meaning of the M’Naghten Rules. The court declined to accept this contention:93 If a man is liable to an epileptic attack by reason of a predisposition, whether resulting from injury or from some other idiopathic cause, then I think it can properly be said he has a disease of the mind within the meaning of that phrase [defect of reason from disease of the mind] … There is a predisposition to, with the potentiality for repetition of, violent outbursts, and whether the trigger is alcohol or whether it is a set of surrounding circumstances, whether it is a provocative word or some object which arouses recollection or emotion, does not seem to me to matter.

14.35 The internal–external factor test has been criticised for creating arbitrary distinctions. For instance, hyperglycemia (an excess in blood sugar) has been treated as an internal cause leading to mental disorder automatism,94 whereas hypoglycemia (a deficiency in blood sugar) has been regarded as a cause of sane automatism.95 Likewise, cases of somnambulism raise unique problems which cannot be resolved by the internal–external factor test.96 This led Toohey J to say that the application of the test was ‘artificial’ and paid insufficient regard to the subtleties surrounding the notion of mental disease.97 Likewise, the Canadian Supreme Court in R v Stone (1999) 134 CCC (3d) 353 recognised that the test was not ‘a universal classificatory scheme for “disease of the mind” [because there are cases in which] the dichotomy between internal and external causes becomes blurred’.98 14.36 Given these reservations over the continuing danger and internal-external factor tests, the Canadian Supreme Court in Stone thought it necessary to clarify the way these tests should be applied by trial judges. The court held that the tests [page 419] should not be treated as exclusive and conclusive approaches to determining the issue of disease of the mind such as may be expected of a theory. Rather, the tests should be regarded as interconnected and flexible factors which may be combined to help decide whether an accused was suffering from a disease of the mind. In the words of

Bastarache J, who delivered the leading majority judgment:99 I emphasize that the continuing danger factor should not be viewed as an alternative or mutually exclusive approach to the internal cause factor. Although different, both of these approaches are relevant factors in the disease of the mind inquiry. As such, in any given case, a trial judge may find one, the other or both of these approaches of assistance. To reflect this unified, holistic approach to the disease of the mind question, it is therefore more appropriate to refer to the internal cause factor and the continuing danger factor, rather than the internal cause theory and the continuing danger theory.

14.37 Regardless of analytical flaws, the continuing danger and internal– external factor tests may be viewed as tools devised to meet the primary objective of societal protection. In line with this, the Canadian Supreme Court in Stone was open to recognising other tests, besides internal cause and continuing danger, to help determine whether the accused’s automatistic state stemmed from a disease of mind. As Bastarache J said:100 In any given automatism case, a trial judge may identify a policy factor which [the Supreme Court] has not expressly recognized. Any such valid policy concern can be considered by the trial judge in order to determine whether the condition the accused claims to have suffered from is a disease of the mind. In determining this issue, policy concerns assist trial judges in answering the fundamental question of mixed law and fact which is at the centre of the disease of the mind inquiry: whether society requires protection from the accused and, consequently, whether the accused should be subject to evaluation under the regime contained in Part XX.1 of the [Criminal] Code.

14.38 In practical terms, it is submitted that trial judges should not be overly focussed on whether or not a particular test has been satisfied. The continuing danger and internal–external factor tests merely attest to an accused’s need for clinical treatment for the protection of the community. This translates into ensuring that expert evidence should be sought which will help the triers of fact to decide whether there is such a need.

Automatism and intoxication 14.39 Acute intoxication by alcohol or drugs may as a matter of fact produce a state of automatism.101 At common law, a person cannot be convicted of a crime requiring proof of a voluntary act while in such a state.102 The element of voluntariness cannot be supplied by the

accused’s fault in reducing herself or himself to a state of alcoholic automatism, whether or not the intoxicated state was self-induced. However, where negligence is a basis for liability, the court may find the necessary degree of criminal negligence in the act of becoming intoxicated. [page 420] Prior negligence may have a bearing upon criminal liability for criminal harm caused in a state of automatism.103 Where recklessness is a sufficient fault element for the crime charged, a person should not be convicted without foresight of consequences unless the incapacitation was deliberately contrived to achieve a criminal objective.104 In general, recklessness will not be found in the mere fact that the state of automatism was self-induced.105 14.40 The Commonwealth and Australian Capital Territory Criminal Codes, as well as the New South Wales Crimes Act 1900, stipulate that evidence of self-induced intoxication cannot be considered in deciding whether the accused’s conduct was voluntary.106 However, only the Commonwealth Criminal Code (s 8.5) and Australian Capital Territory Criminal Code (s 34) recognise a defence of involuntary intoxication which, being a true defence, places the evidential burden on the accused: see also 12.34. 14.41 Under the Griffith and Tasmanian Codes, evidence of selfinduced intoxication caused by alcohol or drugs has a limited application. Such evidence is admissible only where the offence charged requires proof of an intention to cause a specific result, unless the state of intoxication was caused ‘without intention’ on the accused’s part.107 Thus, in R v Kusu [1981] Qd R 136; (1980) 4 A Crim R 72, the Queensland Court of Criminal Appeal held that self-induced intoxication cannot be relied upon to exempt from criminal responsibility for an offence which does not involve proof of an intention to cause a specific result. R v O’Connor (1980) 146 CLR 64;

4 A Crim R 348 was not an authority under the Queensland Criminal Code.108 The combined effect of s 23 (the main provision on voluntariness: see 14.11) and s 28 (the provision on intoxication: see 12.10) of the Griffith Code is that, in relation to crimes which do not require proof of an intention to cause a specific result, it is not possible to obtain a complete acquittal by reference to automatism occasioned by self-induced intoxication under s 23 unless the state of intoxication was unintentional: see also 12.31.

Raising insanity and automatism together 14.42 The anomalous rule which casts the burden of proving insanity upon the accused has been considered in Chapter 13. Given the overlap between insanity and automatism, conflict between the general principle that the prosecution must prove guilt and the insanity rule is inevitable. Indeed, Sir Owen Dixon noted [page 421] the possibility in his seminal 1957 paper, in the early days of automatism.109 Insane automatism is treated, as regards onus and burden of proof, as a plea of insanity. But sane automatism does not require any modification of the ordinary criminal burden of proof. In R v Falconer (1990) 171 CLR 30; 50 A Crim R 244, a majority of the High Court held that the prosecution must disprove sane automatism (whether by psychological blow or otherwise) beyond reasonable doubt.110 Deane and Dawson JJ said:111 The important thing is that an accused is entitled to an acquittal if the prosecution fails to prove that his acts were voluntary. When, on the evidence, an accused’s acts can only have been involuntary if he was suffering from a mental disease or natural mental infirmity, the prosecution is entitled to rely upon the presumption that every person is of sound mind. That means that a defence of insane automatism can only succeed if it is established on the balance of probabilities. But if on the evidence an accused’s acts may have been involuntary as a result of the operation of events upon a sound mind — as a result of automatism — then a reasonable doubt about the voluntariness of those acts

will be sufficient to entitle him to acquittal. In such a case there will be a reasonable hypothesis consistent with both innocence and a sane mind and we do not conceive it to be the policy of the law that in that event there should be either a conviction or indefinite committal to an institution for the criminally insane.

14.43 In principle, the defences of sane automatism and insanity may be raised together, provided that a proper foundation is laid for each plea.112 But the difficulties that may arise should not be underestimated. The precise cause or proper characterisation of alleged dissociation may be disputed.113 The statement [page 422] by Deane and Dawson JJ that there be a ‘reasonable hypothesis consistent with both innocence and a sane mind’ offers a reasonable solution to this conundrum. The implication is that even if there is some evidence which points to mental illness, if there is a reasonable hypothesis consistent with innocence and a sane mind, the accused should be acquitted. In the New South Wales Court of Criminal Appeal case of R v Youssef (1990) 50 A Crim R 1, Hunt J referred to the situation where the jury is unable to conclude one way or another how to characterise the evidence:114 If the evidence falls short of establishing that the accused did not know what he was doing (and thus of establishing the defence of mental illness leading to the special verdict of not guilty on the ground of mental illness), the same evidence may nevertheless create a reasonable doubt that the accused did know what he was doing (and thus a reasonable doubt that his act was voluntary, leading to an outright acquittal). That is also an odd result.

14.44 The problem of competing inferences was also considered in R v Stewart (1988) 36 A Crim R 13, where the Queensland Court of Criminal Appeal noted that it was for the jury to determine the primary facts and the inferences to be drawn from them, and the fact that there existed some hypothesis consistent with innocence did not necessitate an acquittal if there existed evidence from which guilt was capable of being inferred. Therefore, the judge was not obliged to direct in favour of an acquittal in such a case. Stewart and the cases on which it is based115 do

not, however, govern the situation where rival explanations are put forward for a state of automatism and the issue (provided the burden of proof has been properly dealt with) relates essentially to disposition rather than to guilt. The result of Falconer and Radford is that an accused is not liable to be detained as a special patient if there exists some hypothesis consistent with his or her involuntary conduct being the product of a sane mind even if there exists a basis for an inference to suggest that it was the product of an insane mind.116 14.45 The statements by the High Court in Falconer demonstrate an acceptance of the anomalous burden-of-proof rule in relation to insanity. This is regrettable because criminal trials could be made fairer and simpler by bringing insanity into line with other mental condition defences in terms of onus and standard of proof. As Hunt J said in Youssef, the fact that the accused bears an onus of establishing insanity has long been regarded as an oddity and Viscount Sankey’s famous ‘golden thread’ statement in Woolmington v DPP [1935] AC 462 did not explain why insanity should be treated differently from other states of mind.117 His Honour called for legislative reform. [page 423]

Reforming the law 14.46 The problems generated by the defence of automatism have been considered by various reform agencies in Australia, England and New Zealand.118 No consensus for fundamental change has emerged. Perhaps because the concept of automatism is based on a bedrock theory of fault in which punishment presupposes the capacity to choose to engage in, or abstain from, criminal wrongdoing. Practical problems arise because some instances of automatism are associated with, or caused by, mental illness. In a state of automatism induced by mental illness, a person is not capable of controlling his or her conduct; indeed, he or she is not capable of reasoning with a moderate degree of sense and composure and is therefore immune from criminal responsibility. A

person acquitted on this ground is liable to be detained subject to a special verdict. It is, however, recognised that automatism may occur without any manifestation of mental illness, such as in the case of a healthy person who receives a blow to the head, or who is sleepwalking or hypnotised. A person is not criminally responsible for acts performed in such a state, provided that he or she is without fault in inducing that state. 14.47 The borderline between sane and insane automatism is clear in theory but can be blurred in practice. It is, however, doubtful whether it is feasible to develop a detailed taxonomy of all forms of sane and insane automatism. The most important consideration is whether the accused is in need of psychiatric treatment for a recurrent condition, in order to avoid further episodes of automatism. 14.48 Cases of psychological blow automatism create especial difficulties. There is little appetite for applying an objective standard in such cases. There are, in addition, other friction points; for example, the extent to which conscious awareness is inimical to automatism as an exculpatory defence; and perhaps the most fruitful area for reform, the removal of the burden of proof in relation to automatism where there is some evidence of symptomatic insanity. But this is part of a broader question; namely, whether the cardinal principle which places the onus and burden of proof firmly upon the Crown should apply to insanity. Law reform in this direction is unlikely.

1.

2. 3. 4.

It is sometimes said that automatism is a legal concept. The implication that automatism has no psychiatric or medical authenticity is misleading. More accurately, automatism is an experiential phenomenon known to medical science and which may bear upon criminal responsibility. For example, fluttering the eyelids, lip-smacking and other purposeless repetitive movements. For example, driving a car or playing a game of football: see R v Kingston [2008] NSWDC 86. See K Rix, ‘The Common Law Defence of Automatism: A Quagmire for the Psychiatrist’ (2015) 21(4) British Journal of Psychiatric Advances 242; R McKay, ‘An anatomy of automatism’ (2015) 55 Medicine, Science and the Law 150; R McCaldon, ‘Automatism’ (1964) 91 Canadian Medical Association Journal 914; R Beran, ‘Automatism: Comparison of Common Law and Civil Law Approaches’ (2002) 10 Journal of Law and Medicine 61.

5. 6.

7. 8.

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11. 12. 13.

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A note under the heading ‘Automatism’ in the British Journal of Psychiatry in 1875 references a case reported in a French medical journal that apparently occurred during the Battle of Bazeilles. A French soldier received a blow and attacked his Prussian adversary, not knowing what he was doing at the time and not remembering it afterwards. The reviewer draws a comparison between this case and epileptic somnambulism. S Foltz, ‘Automatism’ (1912) 22 The Monist 91. R v Banhelyi [2012] QCA 357; R v Youssef (1990) 50 A Crim R 1; Bratty v AttorneyGeneral for Northern Ireland [1963] AC 386; R v Cottle [1958] NZLR 999; R v Sullivan [1984] AC 156; [1983] 2 All ER 673. Police v Bannin [1991] 2 NZLR 237; (1991) 7 CRNZ 55 (Klein-Levin syndrome); R v Hughes (1989) 42 A Crim R 270 (myotonia). R v Hall (1988) 36 A Crim R 368 (swelling of the brain — cerebral oedema); Burnskey v Police (1992) 8 CRNZ 582 (brain injury at birth); R v Hennessey [1989] 2 All ER 9; [1989] 1 WLR 287 (diabetes); Charlson v R [1955] 1 All ER 859; (1955) 39 Cr App R 37 (cerebral tumour); Kemp v R [1957] 1 QB 399 (arteriosclerosis); Ahadizad v Emerton [2002] ACTSC 20 (sneezing). See P McCrory, ‘The Medicolegal Aspects of Automatism in Mild Head Injury’ (2001) 35 British Journal of Sports Medicine 288. See also R v Low (1992) 57 A Crim R 8; Wogandt v R (1988) 33 A Crim R 31; Cooper v McKenna; Ex parte Cooper [1960] Qd R 406; R v Scott [1967] VR 276; R v Carter [1959] VR 105; Wakefield v R (1957) 75 WN (NSW) 66; Ziems v The Prothonotary of the Supreme Court (1957) 97 CLR 279; Coates v R (1957) 96 CLR 353; Stripp v R (1978) 69 Cr App R 318; Re Budd [1962] Crim LR 49. R v Falconer (1990) 171 CLR 30; 50 A Crim R 244; R v Radford (1985) 42 SASR 266; 20 A Crim R 388; R v Rabey (1977) 37 CCC (2d) 461; Ericsson v Police (1993) 10 CRNZ 110; R v Tsigos [1964–65] NSWR 1607; R v Leonboyer [2001] VSCA 149 (Court of Appeal). Coley v R [2013] EWCA Crim 223. R v Radford (1985) 42 SASR 266; 20 A Crim R 388; R v T [1990] Crim LR 256. See, for example, R v Kingston [2008] NSWDC 86; see also Tasmania Law Reform Institute, Criminal Liability of Drivers Who Fall Asleep Causing Motor Vehicle Crashes Resulting in Death or Other Serious Injury: Jiminez, Final Report No 13, 2010, (accessed 25 December 2015). TI v Queen R [2015] ACTCA 62; The State of Western Australia v Silich [2011] WASCA 135; R v Kingston [2008] NSWDC 86; Jiminez v R (1992) 173 CLR 572; 53 A Crim R 56; Kroon v R (1990) 52 A Crim R 15; Burgess v R [1991] 2 QB 92; [1991] 2 All ER 769; Parks v R (1992) 15 CR (4th) 289; and see R v Tolson (1889) 23 QBD 168 at 187; R v Pobar, unreported, Supreme Court of Northern Territory, 9–12 February 2010 at 17; referred to in Northern Territory Law Reform Committee, Report on: Defendants Submitting to Psychiatric or Other Medical Examination, Report No 36, June 2012. See M Thorpy and G Plazzi (eds), The Parasomnias and Other Sleep-Related Movement Disorders, Cambridge University Press, Cambridge, UK, 2010; S Pandi-Perumal and M Kramer (eds), Sleep and Mental Illness, Cambridge University Press, Cambridge, UK, 2010. [1958] NZLR 999 at 1007. See D Blair, ‘The Medicolegal Aspects of Automatism’ (1977) 17 Medicine, Science and The Law 167 at 167: ‘In medical terms automatism refers to a syndrome of symptoms which occurs in various conditions that involve a disturbance of consciousness’, quoted by Toohey J in R v Falconer (1990) 171 CLR 30; [1990] HCA 49 at [14].

18. R v Woolley [1998] Current Law Yearbook (UK) 914; where a lorry driver who suffered a bout of sneezing prior to a collision was held not responsible by reason of automatism. But see the factually similar case of Ahadizad v Emerton [2002] ACTSC 20, where there was evidence before the magistrate that the accused had suffered a bout of sneezing before losing control of the car. In dismissing the appeal against conviction, Miles CJ noted at [6] that ‘all cases depend on the circumstances. The effect of a sneezing attack is not absolute. Even during rapid and severe sneezing one still has a modicum of control. In the present case the degree of sneezing was such that it was open to the Magistrate to find that the appellant could and should have applied the footbrake’. The appeal against conviction was dismissed. 19. See, for example, Scholz v Standish [1961] SASR 123 (attack by bees). 20. Ryan v R (1967) 121 CLR 205; R v Falconer (1990) 171 CLR 30; 50 A Crim R 244; Edwards v Macrae (1991) 14 MVR 193 at 198–9; Murray v R [2002] HCA 26; 211 CLR 193; 189 ALR 40; 76 ALJR 899; Ugle v R [2002] HCA 25. 21. Cvetkovic v R [2010] NSWCCA 329 at [3] per Campbell JA, where the learned judge said: ‘There are no substantive rules of law relating to the manner in which automatism bears upon whether a person is guilty of a crime. Rather, whether an accused was in a state of automatism at the time of committing an alleged offence is a question of fact, that bears upon whether the act in question was performed voluntarily, and whether it was performed with any specific intention that constitutes an element of the crime’. R v Alexopoulos [2009] VSCA 269; see also Hall v R (1988) 36 A Crim R 368 at 371–2 per Roden J. 22. One should, of course, distinguish between physical involuntariness (discussed here) and so-called moral involuntariness, which is of a quite different nature and connotes deliberate decision-making under circumstances of necessity. See, for example, Bayley v Police [2007] SASC 411 at [51] per Gray J, referring to the Canadian Supreme Court decision in R v Ruzic [2001] 1 SCR 687; [2001] SCC 24 in relation to moral involuntariness. For a critical account of the voluntariness requirement, see I Elliott, ‘Regina v Jekyll, sub nom Hyde: Metaphors of the Divided Self in Criminal Responsibility’ (1984) 14(3) Melbourne University Law Review 368 at 400ff. See Chapter 6. 23. The earliest reported case was probably Chetwynd heard at the Derby Assizes in 1912. It is reported under the title ‘Automatism — A Novel Defence?’ (1912) 76 Justice of the Peace 544. The accused took a car belonging to his girlfriend and was charged with stealing. He claimed not to have any recollections of events from some weeks before the alleged offence to some days afterwards. A specialist described his condition as one of mental automatism, ‘a state midway between somnambulism and epilepsy’. See also the report in New Zealand newspaper, The Colonist, Vol LV, Issue 13605, 21 December 1912, p 8,

(accessed 20 December 2015). 24. In 1910, Charles Pilgrim, Medical Superintendent of the Hudson River State Hospital, wrote that ‘it is extremely difficult to make the lay, or even the legal mind, understand that apparently rational, natural and even complicated acts may be performed by alcoholics when suffering from such a condition of amnesia as to make them utterly unconscious of what they are doing, completely oblivious of the results of their acts, and absolutely without remembrance of what they have done while in this dreamlike state’: C Pilgrim, ‘Alcoholic Amnesia and Automatism’ (1910) 67(1) The American Journal of Psychiatry 109 at 109. 25. R v Szymusiak (1972) 3 OR 602; 8 CCC (2d) 407 (CA) at 608 per Schroeder J.

26. It is now well established that evidence of automatism may be tendered in order to negate some element of specific intent so as to provide a defence to a charge for which such an intention is required: see Hawkins v R (1994) 179 CLR 500. See 13.62. This is so even if the supporting evidence in favour of automatism is also capable of supporting a defence of insanity on the balance of probabilities. If the jury fails to be satisfied of insanity on the balance of probabilities the accused may be acquitted if reasonable doubt exists with respect to some element of specific intent. 27. See R v Piper [2005] NSWCCA 134; R v Kingston [2008] NSWDC 86. One consequence of relating automatism to voluntariness is to retain its potency as a defence where proof of discrete mental elements is dispensed with — in cases of strict liability. 28. A good example is that of a parent co-sleeping with an infant. Leaving aside unavoidable circumstances, questions of negligence may arise where a sleeping parent crushes a child causing death or injury, especially if the parent has been warned of the dangers of roll-over fatalities while co-sleeping. Cases of this kind are reported from time to time. See, for example, S Farberov, ‘“It’s Looks Like Just a Horrible, Horrible Accident”: Newborn Baby Boy Suffocates to Death after Mother Rolls Over Him in Her Sleep’, Daily Mail, 28 June 2012, (accessed 2 January 2016). 29. Schwark v Police [2011] SASC 212 at [20] per Gray J; R v Huni [2014] QCA 324. 30. See Director of Public Prosecutions v Dover and The County Court of Victoria [2013] VSCA 233 at [18] per Tate JA. 31. Criminal Code (Qld) s 23(1)(a); Criminal Code (WA) s 23A(2). 32. The actions are unwilled not in the sense that one did not want to do that which was done, but in the sense that what was done was not something that one did. The imprecision and ambiguity of language is a real hazard to clarity in any discussion of the will. 33. R v Stone (1999) 134 CCC (3d) 353 at 421 per L’Heureux-Dubé, Gonthier, Cory and McLachlin JJ concurring: ‘Voluntariness, rather than consciousness, is the key legal element of automatistic behaviour since the defence of automatism amounts to a denial of the voluntariness component of the actus reus’. See G Glancy, J Bradford and L Fedak, ‘A Comparison of R. v. Stone with R. v. Parks: Two Cases of Automatism’ (2002) 30 Journal of the American Academy of Psychiatry and the Law 541. 34. See S Yeo, ‘Putting Voluntariness Back into Automatism’ (2001) 32 Victoria University of Wellington Law Review 387, for the application of this proposition to certain New Zealand cases. 35. Automatism produced by ‘involuntary’ intoxication (such as a mixture of alcohol and prescription medication) may generate a defence to a charge of driving under the influence: see JL v Queensland Police Service [2014] QCAT 623 at [17]; Re Franklin [2011] QMHC 28. 36. R v Falconer (1990) 171 CLR 30; 50 A Crim R 244. See The State of Western Australia v Chiha [2015] WASC 138. 37. Criminal Code (Qld) s 23(1)(a); Criminal Code (WA) s 23A(2). In Murray v R [2002] HCA 26; 211 CLR 193; 189 ALR 40; 76 ALJR 899, the High Court held that s 23(1)(a) of the Criminal Code (Qld) is available if the prosecution was unable to prove that the act was unwilled, whether or not the absence of will could be traced to a clinical condition. 38. Criminal Code (Qld) s 23(2); Criminal Code (WA) s 23(1). 39. This consideration does not apply under s 13 of the Criminal Code (Tas), which requires an act to be ‘voluntary and intentional’ in order to attract criminal responsibility. 40. Criminal Code (Cth) s 3.2, read with s 4.1; Criminal Code (ACT) s 12, read with s 14.

41. Criminal Code (Cth) s 4.2(2); Criminal Code (ACT) s 15(2). 42. The Commonwealth and Australian Capital Territory Criminal Codes include acts performed during sleep or unconsciousness (ie, automatism) as examples of conduct that is not voluntary: see Criminal Code (Cth) s 4.2(3)(b) and Criminal Code (ACT) s 15(2). 43. Attorney-General v Warrabadlumba (1990) 74 NTR 5 at 12 per Angel J; Kruger v Kidson [2004] NTSC 24; Stuart Axtell Davis v Zachariah Ray Mason [2010] NTMC 5. 44. See Hawkins v R (1994) 179 CLR 500; R v Joyce [1970] SASR 184; Burr v R [1969] NZLR 734; Broome v Perkins (1987) 85 Cr App R 321; Isitt v R (1977) 67 Cr App R 44; Haynes v MOT (1988) 3 CRNZ 587. In Rabey v R (1981) 54 CCC (2d) 1, Dickson J also stated (at 26) that ‘[t]he first principle, fundamental to our criminal law, which governs this appeal is that no act can be a criminal offence unless it is done voluntarily’. However, he went on to say immediately thereafter that ‘consciousness is a sine qua non to criminal liability’, and declared (at 31) that ‘the defence of automatism should be available whenever there is evidence of unconsciousness throughout the commission of the crime’. Ritchie J agreed that the concept of automatism involved ‘unconscious, involuntary behaviour, the state of a person who, though capable of action is not conscious of what he is doing’: Rabey v R (1981) 54 CCC (2d) 1 at 6, citing the Ontario High Court of Justice in R v K (1970) 3 CCC (2d) 84 at 84. See now R v Graveline [2006] 1 SCR 609; (2006) SCC 16 (sane automatism — wife shot husband while asleep, verdict of acquittal restored by court). 45. R v Falconer (1990) 171 CLR 30; [1990] HCA 49 at [8] per Mason CJ, Brennan and McHugh JJ. 46. Intriguing case reports can be found outside the law reports. A medical physician who suffered from epilepsy is reported to have conducted a clinical examination while in a ‘dreamy state’. He even made clinical notes. He had no recall of conducting the examination and, out of medical curiosity, conducted a further examination, which accorded with the notes he had previously made. There were no criminal proceedings and no obvious motive for misreporting the experience: see R Hogan and K Kaiboriboon, ‘The “Dreamy State”: John Hughlings-Jackson’s Ideas of Epilepsy and Consciousness’ (2003) 160(10) American Journal of Psychiatry 1740; also J Mann and A Cavanna, ‘What Does Epilepsy Tell Us about the Neural Correlates of Consciousness?’ (2011) 23(4) The Journal of Neuropsychiatry and Clinical Neurosciences 375. 47. (1990) 171 CLR 30 at [14]. In Falconer the question was whether a form of automatism described in the medical evidence could only be considered in relation to s 27 (insanity), or whether such a state was relevant to a plea of involuntariness under s 23 of the Code. That question was to be resolved by interpretation of the Code, rather than by applying a preconceived definition of automatism. 48. See Woodbridge v R [2010] NSWCCA 185; R v King [2004] ACTSC 82. 49. See the discussion in R v Leonboyer [2001] VSCA 149 at [92] per Phillips CJ, and in dissent Callaway JA at [153]. 50. Ryan v R (1967) 121 CLR 205 at 214, 217 per Barwick CJ; R v Falconer (1990) 171 CLR 30; 50 A Crim R 244; R v Pantelic (1973) 1 ACTR 1 at 3 per Fox J. 51. In Murray v R [2002] HCA 26; 211 CLR 193; 189 ALR 40; 76 ALJR 899, the High Court held that s 23(1)(a) of the Criminal Code (Qld) is available if the prosecution was unable to prove that the act was unwilled, whether or not the absence of will could be traced to a clinical condition. See also Ugle v R (2002) 211 CLR 171; [2002] HCA 25 (regarding the same issue but on the Criminal Code (WA)). 52. See R v Joyce [2005] NSWDC 13.

53. See the discussion by Gray J in R v King [2004] ACTSC 82 at [46]ff. 54. P Fairall, ‘Irresistible Impulse, Automatism, and Mental Disease’ [1981] 5 Criminal Law Journal 136. 55. The term ‘non-insane’ automatism is potentially confusing, so the term ‘sane automatism’ will be used throughout this chapter. 56. Section 23 provides that ‘a person is not responsible for an act or omission which occurs independently of the exercise of the will, or for an event which occurs by accident’. 57. The learned trial commissioner relied on a number of authorities for the proposition that evidence of stress, anxiety and depression were not capable in law of causing or contributing to a state of automatism: R v Tsigos [1964–65] NSWR 1607; R v Joyce [1970] SASR 184; R v Isitt (1978) Cr App R 44; R v Sullivan [1984] AC 156; [1983] 2 All ER 673; R v Hennessy [1989] 2 All ER 9; [1989] 2 WLR 287. He declined to rely upon the briefly reported decision of R v Wiseman (1972) 46 ALJ 412 in which automatism was left to the jury where the evidence was of a series of shattering emotional experiences. 58. [1989] 2 All ER 9 at 14. 59. (1989) 66 A Crim R 83 at 89. See R v K (1970) 3 CCC (2d) 84; Wiseman v R (1972) 46 ALJ 412; R v Pantelic (1973) 1 ACTR 1; R v Sproule (1975) 26 CCC (2d) 92. 60. People experiencing psychological blow automatism often forget what they have done but this does not mean that their conduct, while experiencing the dissociation, was involuntary: see the comments of Professor Mullen in R v Leonboyer [2001] VSCA 149 at [49]. 61. (1990) 171 CLR 30 at 55 per Mason CJ, Brennan and McHugh JJ, who said: ‘[T]he law must postulate a standard of mental strength which, in the face of a given level of psychological trauma, is capable of protecting the mind from malfunction to the extent prescribed in the respective definitions of insanity’. 62. ‘Dissociation caused by a low stress threshold and surrender to anxiety cannot fairly be said to result from a psychological blow’: Rabey v R (1981) 54 CCC (2d) 30 at per Dickson J, quoted with approval by Toohey J in R v Falconer (1990) 171 CLR at 80. 63. R v Falconer (1990) 171 CLR 30 at 54–5 per Mason CJ, Brennan and McHugh JJ. And see Milloy v R (1991) 54 A Crim R 340. 64. It is true that under the Griffith Code provocation is available as a complete defence in relation to certain non-fatal assaults: Criminal Code (Qld) ss 268, 269; Criminal Code (WA) ss 245, 246; Kaporonovski v R (1973) 133 CLR 209. Even so, a person who loses self-control as a result of things done or said by another and who deliberately assaults that other person can hardly complain if his or her conduct is tested by reference to a community-based standard of expected self-control. 65. The joint judgment uses ‘would’ rather than ‘could’. In provocation, the relevant test is could rather than would; in other words, possibility rather than probability. It is uncertain whether a different standard was intended here. See Chapter 11. 66. (1990) 171 CLR 30 at 58 per Mason CJ, Brennan and McHugh JJ. 67. Middleton v R (2000) 114 A Crim R 258 at 272 per Anderson J. 68. R v Youssef (1990) 50 A Crim R 1 at 4 per Hunt J; Director of Public Prosecutions v Olcer (2003) 143 A Crim R 337; R v Clarke (1995) 78 A Crim R 226; R v Boyle [2009] VSCA 289 at [44]; Woodbridge v R [2010] NSWCCA 185 at [71] per Davies JA. 69. McLeod v R (1991) 56 A Crim R 320. 70. (1990) 171 CLR 30 at 43 per Mason CJ, Brennan and McHugh JJ. 71. [2009] VSCA 289 at [49]. As to the duty of the trial judge to put to the jury any defence where there is an evidential foundation for it, see R v Cinous (2002) SCC 29; [2002] 2 SCR

72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83.

84.

85. 86. 87.

88.

89.

90. 91. 92.

93.

3 (Canadian Supreme Court); R v Fontaine [2004] SCC 27. (1990) 171 CLR 30 at 83. [1958] 1 QB 277 at 285. [1963] AC 386 at 413, 418. [1964–65] NSWR 1607 at 1629. See, for example, R v Woolley [1998] Current Law Yearbook (UK) 914, above n 18. [1958] 77 NZLR 999 at 1015. Thomas v R (1937) 59 CLR 279 at 309 per Dixon CJ. Rich v Attorney-General (Vic) (1999) 103 A Crim R 261. As to the consequences of a special verdict, see 13.30–13.33. See, for example, Woodbridge v R [2010] NSWCCA 185 at [62] per Davies J. P Fenwick, ‘Automatism, Medicine and the Law’ (1990) 17 Psychological Medicine Monograph Supplement 1. A case of sleepwalking arguably falls into this category: Burgess v R [1991] 2 QB 92; [1991] 2 All ER 769. Compare Parks v R (1992) 15 CR (4th) 289. See also R v Sullivan [1984] AC 156; [1983] 2 All ER 673 (epilepsy); R v Hennessey [1989] 2 All ER 9; [1989] 2 WLR 287 (diabetes). Rabey v R (1981) 54 CCC (2d) 1 at 17 per Dickson J; Parks v R (1992) 75 CCC (3d) 287 at 309–10 per La Forest J. See also B McSherry, ‘It’s a Man’s World: Claims of Provocation and Automatism in “Intimate” Homicides’ (2005) 29(3) Melbourne University Law Review 905. (1999) 134 CCC (3d) 353 at 438 per Bastarache J. R v Rabey (1977) 37 CCC (2d) 461 at 477 per Martin JA and approved by a majority of the Supreme Court of Canada in Rabey v R (1981) 54 CCC (2d) 1. A dissociative reaction has been described as a situation in which ‘certain aspects or activities of the personality escape from control of the individual; become separated from normal consciousness and, thus segregated, function as a unitary whole’: R McCaldon, ‘Automatism’, (1964) 91 Canadian Medical Association Journal 914 at 917. See also generally, M Steinberg, Handbook for the Assessment of Dissociation: A Clinical Guide, American Psychiatric Press Inc, Washington, DC, 1995. J Gunn and P Taylor (eds), Forensic Psychiatry: Clinical, Legal and Ethical Issues, 2nd ed, CRC Press, Boca Raton, FL, 2014, See, for example, R v Leonboyer [2001] VSCA 149 at [53] per Phillips CJ on dissociation. See English Law Commission, Criminal Liability: Insanity and Automatism, discussion paper, 2013, at [5.38]–[5.124], , accessed 16 September 2016. (1977) 37 CCC (2d) 461 at 482 per Martin JA. But see Isitt v R (1977) 67 Cr App R 44. (1985) 42 SASR 266 at 276 per Malcolm CJ who also referred to R v Hall (1988) 36 A Crim R 368 at 371–2 and Schultz v R [1982] WAR 171 at 174. See J Thomson, ‘Post Traumatic Stress Disorder and Criminal Defences’ (1991) 21(2) University of Western Australia Law Review 279. [1966] VR 306 at 310. In Re Bromage [1991] 1 Qd R 1; (1990) 48 A Crim R 79 at 87, the Queensland Court of Appeal upheld a finding of mental unsoundness by the Mental Health Tribunal where the state of mind was produced by the voluntary ingestion of alcohol and the unwitting ingestion of organophoshates. The relevant legislation was subsequently amended to prevent future decisions similar to Re Bromage. See Re Pitt [2002] QCA 30 at

94. 95. 96. 97.

98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108.

109. 110.

111. 112.

113.

[16] (Pitt’s ‘natural impairment aggravated by alcohol …. robbed her of more – in effect more IQ points than she could afford to lose’). R v Hennessey [1989] 2 All ER 9; [1989] 1 WLR 287. R v Quick and Paddison [1973] 1 QB 910 (CA); [1973] 3 WLR 26. See V Marks, ‘Insulin and the law’, Annals of Clinical Biochemistry 2015, vol 52 (Pt 6), pp 696–8. See Parks v R (1992) 75 CCC (3d) 287. R v Falconer (1990) 171 CLR 30 at 75–6; 50 A Crim R 244 at 277. See also Re Bromage [1991] 1 Qd R 1; (1990) 48 A Crim R 79. This is an insane automatism case which has been effectively overturned by legislation. Furthermore, it does not state the law as it applied to the Criminal Code at the time but rather as it applied under the Mental Health Act 1974 (Qld). (1999) 134 CCC (3d) 353 at 434 per Bastarache J, citing La Forest J in Parks v R (1992) 75 CCC (3d) 287 at 309–10. (1999) 134 CCC (3d) 353 at 439. (1999) 134 CCC (3d) 353 at 440–1. Woodbridge v R [2010] NSWCCA 185 at [60]ff per Davies J; R v O’Connor (1980) 146 CLR 64; 4 A Crim R 348; Haywood v R [1971] VR 755; Dodd v R (1974) 7 SASR 151. R v O’Connor (1980) 146 CLR 64; 4 A Crim R 348, not following Director of Public Prosecutions v Majewski [1977] AC 443. See Chapter 12. Jiminez v R (1992) 173 CLR 572; Kroon v R (1992) 52 A Crim R 15. Attorney-General for Northern Ireland v Gallagher [1963] AC 349; [1961] 3 All ER 299. The position is otherwise in England: see Director of Public Prosecutions v Majewski [1977] AC 443; Bailey v R [1983] 2 All ER 503; Hardie v R [1984] 3 All ER 848. Criminal Code (Cth) 1995 s 4.2(6); Criminal Code (ACT) 2002 s 15(5); Crimes Act 1900 (NSW) s 428G; Criminal Law Consolidation Act 1935 (SA) s 268. See 12.32. However, in Cameron v R (1990) 47 A Crim R 397 at 412–13, Malcolm CJ noted the attractiveness of Macrossan J’s dissenting judgment in R v Kusu [1981] Qd R 136; (1980) 4 A Crim R 72, while conceding that the weight of authority rested with the majority view. See also Bennett v R (1989) 45 A Crim R 45 affirming Snow v R [1962] Tas SR 271. O Dixon, ‘A Legacy of Hadfield, M’Naghten and Maclean’ (1957) 31 Australian Law Journal 255. (1990) 171 CLR 30 at 63 per Deane and Dawson JJ; at 77 per Toohey J; at 86 per Gaudron J. A minority (Mason CJ, Brennan and McHugh JJ) expressed the view that the burden of proving sane automatism by psychological blow rested with the accused: at 262. The Canadian Supreme Court, by a majority, adopted this view in R v Stone (1999) 134 CCC (3d) 353. For criticisms of the ruling in Stone, see R Delisle, ‘Stone: Judicial Activism Gone Awry to Presume Guilt’ (1999) 24 Criminal Reports (5th) 91; D Paciocco, ‘Death by Stone-ing: The Demise of the Defence of Simple Automatism’ (1999) 26 Criminal Reports (5th) 273. (1990) 171 CLR 30 at 63. In R v Radford (1985) 42 SASR 266; 20 A Crim R 388, the South Australian Court of Appeal stressed that only where there is no independent evidentiary foundation for a plea of involuntariness is the accused precluded of the possibility of an outright acquittal by reference to evidence of mental dysfunction. See also Bratty v Attorney- General for Northern Ireland [1963] AC 386; [1961] 3 All ER 523. A finding that the accused was dissociated due to epilepsy induced by shock or alcohol may

114. 115. 116.

117. 118.

have different legal consequences from a finding of concussion due to a head blow. There may be some evidence of both possibilities. A driver with high blood alcohol who suffers occasional epilepsy (more so when intoxicated) may be involved in a shocking motor accident in which he sustains a blow to the head. If the driver were charged with leaving the scene of the accident, the jury would have to consider whether the accused may have been in a state of automatism, the possible causes of such a state, and how to characterise any such state. See the case of Jonathan Murphy (dangerous driving causing death): A Banks, ‘Driver Had “No Memory” of Car Crash that Killed Motorcyclist’, The West Australian, 4 April 2016, ; A Banks, ‘Driver Who Had Epileptic Seizure Not Guilty of Crash Death Charges’, The West Australian, 8 April 2016, . (1990) 50 A Crim R 1 at 11. See also Milloy v R (1991) 54 A Crim R 340 at 341. Plomp v R (1963) 110 CLR 234; A-G’s Reference (No 1 of 1983) [1983] 2 VR 410. The case of R v Joyce [2003] NSWCCA 280 is illustrative. In that case, the accused was a medical doctor. He was charged with dangerous driving occasioning grievous bodily harm. There was some evidence that he suffered from bipolar disorder. Psychiatric evidence was called as to the consequence of driving after a 12-hour shift. The trial judge directed the jury on automatism caused by fatigue as well as automatism caused by a combination of fatigue and bipolar disorder. The jury failed to agree. The matter was set down for retrial. The appellant unsuccessfully sought a permanent stay, arguing that a second jury was also unlikely to agree. R v Youssef (1990) 50 A Crim R 1 at 9. See New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences: Report 138 (2013) 3.46; ‘Defendants Submitting to Psychiatric or other Medical Examination’ [2012] NTLRC 36; Law Reform Commissioner of Tasmania, Insanity, Intoxication and Automatism (Report 61, 1989); Criminal Liability of Drivers Who Fall Asleep Causing Motor Vehicle Crashes Resulting in Death or Other Serious Injury: Jiminez [2007] TASLRIIP 12; Sentencing Advisory Council, A Report on the Operation of Part 8A of the Criminal Law Consolidation Act 1935 (SA), Attorney-General’s Department, South Australia, 2014; Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Report 28, 2014; Victorian Law Reform Commission, Defences to Homicide, Final Report (2004); Final Report, Law Reform Commission of Western Australia, Review of the Law of Homicide, Project 97, September 2007, ; Law Commission, Criminal Liability: Insanity and Automatism (2013), at [5.38]–[5.124]; , accessed 16 September 2016.

[page 425]

15 Diminished Responsibility and Substantial Impairment Introduction 15.1 The doctrine of diminished responsibility emerged in Scotland in the 19th century as a basis for reducing what would otherwise be capital murder to non- capital culpable homicide. It was common for juries of that period to recommend mercy in capital cases where the accused was, at the time of the killing, in a state of diminished mental capacity, albeit not insane according to law. This was a rational and humane response to the narrowness of the defence of insanity. This practice led to a distinctive Scottish doctrine under which some forms of mental abnormality falling short of legal insanity could be relevant to the sentence and transformative of the nature of the offence itself.1 As to the circumstances which might invoke the defence, Lord Alness famously said that it was ‘difficult to put in a phrase’ but suggested the following:2 there must be aberration or weakness of mind; that there must be some form of mental unsoundness; that there must be a state of mind which is bordering on, though not amounting to, insanity; that there must be a mind so affected that responsibility is diminished from full responsibility to partial responsibility — in other words, the prisoner in question must be only partially accountable for his actions. And I think one can see running through the cases that there is implied … that there must be some form

of mental disease.

15.2 Diminished responsibility was never recognised as part of the common law of Australia, despite the acceptance of partial defences to murder in other contexts.3 [page 426] It is therefore not part of the law of Victoria4 or South Australia.5 Statutory forms of the defence were however introduced in England and Wales in 1957, and thereafter in Queensland (1961),6 New South Wales (1974),7 the Northern Territory (1983),8 and the Australian Capital Territory (1990).9 The Australian provisions by and large followed s 2 of the Homicide Act 1957 (UK).10 Curiously, the defence was not adopted in Western Australia;11 nor incorporated into the Commonwealth Criminal Code in 1995.12 A statutory provision was enacted in Ireland in 200613 and by Scotland in 2010.14 However, neither Canada nor New Zealand adopted the defence.15 [page 427] 15.3 The numerous non-adopters reflect a degree of modern ambivalence about diminished responsibility as a qualified defence to murder, a crime no longer punishable by mandatory life imprisonment, let alone capital punishment. Indeed, diminished responsibility has survived many calls for abolition.16 Arguably, the advent of diminished responsibility has paved the way for the medicalisation of certain kinds of homicide trials — those involving bizarre or aberrant behaviour beyond the ‘normal’ range encountered in homicide (given that any unlawful killing is, by definition, abnormal), and challenging both law and medicine to define the proper limits of each.17 15.4 There has been much soul-searching about the defence. The New South Wales provision was amended quite significantly as a result

of recommendations of the New South Wales Law Reform Commission in 1997.18 The commission noted that the expression ‘mental responsibility’ was troublesome.19 It was ambiguous and circular and caused confusion among juries and clinical experts. The proposed solution was to drop the term and invite the jury to proceed directly to whether the incapacitation caused by an ‘underlying condition’ was so substantial as to warrant reducing murder to manslaughter. This approach also justified a renaming of the defence to ‘substantial impairment’. The reference to an ‘underlying condition’ defined to mean ‘a pre-existing mental or physiological condition, other than a condition of a transitory kind’, obviated the need for a list of ‘included’ causes.20 It was thought that this change would diminish the problem of nominating unambiguously the origin of a condition with a high degree of certainty. These recommendations were adopted.21 The commission returned to the subject in 201322 and again favoured keeping the defence, albeit with some important modifications.23 [page 428]

The elements of the defence 15.5 Under the original formulation of the defence contained in both England and New South Wales, satisfying the test of diminished responsibility required a positive response to three questions — a threshold question and two ancillary steps: (1) Was the accused suffering from an abnormality of mind? (2) Did such abnormality of mind arise from arrested or retarded development of mind, any inherent cause, or was it induced by disease or injury? and, finally, and crucially: (3) Did the abnormality of mind substantially impair the accused’s mental responsibility for the act or omission? The third question, unlike the first and second, involved an explicitly

normative judgement rather than a factual determination, or the application of facts to the law. 15.6 Lord Parker CJ described the concept of mental abnormality in R v Byrne [1960] 2 QB 396 as follows:24 ‘Abnormality of mind’, which is to be contrasted with the time-honoured expression in the M’Naghten Rules ‘defect of reason’, means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment.

As with the original UK provision, the relevant Queensland provision refers to the abnormality of mind being associated with ‘arrested or retarded development of mind’,25 ‘inherent causes’ and ‘disease or injury’.26 15.7 ‘Inherent cause’ implies a wider area of causation than that implied by ‘natural mental infirmity’ in s 27 of the Criminal Code 1899 (Qld).27 An ‘inherent cause’ is one which is natural to the person’s mind and originating from within it, whether or not from birth.28 ‘Inherent’ does not mean ‘present from the outset’. It is neither a necessary nor a sufficient condition for being an inherent cause that the factor is inherited.29 Innate causes are natural attributes of the mind existing from birth or developing by reason of innate disposition, or natural deterioration resulting from age or other degenerative processes. An inherent cause implies a degree of permanence although it need not be permanently manifested.30 An inherent cause is no less inherent because its origin can be traced to some discrete external event, such as witnessing or experiencing tragic or traumatic events.31 External factors may produce [page 429] a permanent underlying pathology. In such cases it may be difficult to decide whether a cause is ‘inherent’. A reduced tolerance to stress or

reduced powers of self-control may be caused by some specific trauma or set of traumas and come to be regarded as inherent.32 In some cases, the abnormality of mind appears to merge with its alleged inherent cause so as to result in an ‘inherent abnormality of mind’. This has been criticised for requiring the jury to draw unduly difficult and fine distinctions.33 15.8 ‘Disease’ or ‘injury’ includes organic disorders, such as physical harm or physical deterioration of the brain,34 dementia and delusional disorder,35 epilepsy,36 delirium from fever;37 and functional disorders, such as neurosis38 and psychosis.39 Stress may cause injury such as posttraumatic stress disorder. Longstanding substance abuse, such as prolonged intoxication, may cause a disease in the form of delirium tremens or alcoholic dementia. In England, it has been held that the toxic effects of drinking alcohol may amount to an injury or a disease if it has reached the level at which the brain has been injured by the repeated insult from intoxicants so that there is impairment of judgement and emotional response, or if the drinking had become involuntary.40 Chronic alcoholism involving some deterioration of the brain, and a craving for alcohol, may qualify as a ‘disease or injury’. 15.9 The Australian case law reveals a wide spectrum of mental abnormality tendered in support of a defence of diminished responsibility: depressive disorders;41 various delusional disorders;42 various forms of brain injury or disease;43 conditions associated with alcohol abuse;44 and some forms of personality disorder.45 [page 430] The defence of diminished responsibility extends to volitional defects manifested in a lack of self-control — unlike common law insanity, it is not restricted to defects of understanding or cognition. 15.10 The challenge posed by the defence of diminished responsibility is formidable: almost by definition any intentional (non-negligent) killing is committed by a person in an abnormal mental state —

homicidal intent is not normal. The existence of the qualified defence provides the jury with a structured means of examining the underlying causes of any mental impairment. The defence is designed to support ‘the harassed and the incapable, and [deny] it to the wicked and the callous’.46 A fair (if somewhat circular) approach is to consider whether the culpability of the accused is diminished by the abnormal mental state. Those mental states associated with ‘normal’ propensities, such as jealousy, anger, temper, particular prejudices and attitudes or religious beliefs and drunkenness, should be and are excluded as a matter of policy. Weak but common or ‘base’ personality traits, such as quick anger or bad temper, jealousy or lack of discipline, cannot be regarded as ‘causes’ of mental abnormality. The viewpoint of the law, and the frame of reference of diminished responsibility, is that such personal characteristics are in theory, or perhaps even in some evangelical sense, capable of modification by the accused and should therefore be excluded. The same is true of extreme prejudice derived from religious, political or partisan influences.47 Evidence of a diagnosed or recognised personality order is probably not of itself capable of supporting a defence of diminished responsibility.48 More clearly, the transient and disinhibiting effects of intoxication are excluded from consideration.49 15.11 Challenging situations arise where the psychiatric evidence suggests that excluded factors, such as self-induced intoxication, are inextricably linked with other factors, such as brain damage or personality disorders. Where prescribed and excluded factors are identified, the success of diminished responsibility depends upon linking the abnormal mental state to the prescribed factor or factors without taking any excluded factor into account. This can lead to artificiality and great complexity.

Complicity 15.12 In the Australian Capital Territory and New South Wales, there are express provisions under which it is open for an accessory to raise diminished

[page 431] responsibility as a defence to murder;50 and, conversely, an accessory may be convicted of murder even though the accessory is guilty only of manslaughter by reason of diminished responsibility.51 The position in the other two jurisdictions is less certain. Under the Northern Territory provision there is no specific rule for accessories in the context of diminished responsibility. The question is whether ‘the defendant’s mental capacity was substantially impaired at the time of the conduct causing death’.52 The reference to ‘defendant’ in this provision may well include a secondary party who did not do the act causing death but was present as an accessory, and ‘the conduct’ could refer to conduct by the principal offender, thus allowing diminished responsibility to an accessory. The Queensland provision appears to apply only to the person who ‘unlawfully kills another’ and, where an accessory has not taken part in the act which causes death, it is doubtful whether the defendant accessory could rely on the provision.53 Given the potential for prejudice it will often be prudent for separate trials to be held where a party does not give evidence but seeks to adduce psychiatric evidence in support of diminished responsibility based on self-serving statements that implicate the other party.54

Onus and burden of proof 15.13 The Australian provisions place the burden of proving diminished responsibility upon the accused.55 The standard of proof is on the balance of probabilities whether the defence is relied on by the defence or the prosecution.56 It has been held in England that where the prosecution raises insanity to rebut a defence of diminished responsibility, the prosecution bears the burden of proving insanity beyond a reasonable doubt.57 Where the defence is raised by the prosecution and disclaimed by the defence, it is appropriate to place the burden of proof on the prosecution.58

Role of the judge 15.14 The trial judge should decide whether the evidence is capable of proving an abnormality of mind and that such abnormality was due to one or more of the specified causes. Should there be sufficient evidence the trial judge should leave the jury to decide whether the accused’s criminal responsibility was so substantially [page 432] impaired as to warrant reducing the murder charge to manslaughter.59 It is immaterial that the trial judge is of the view that the accused was not deserving of such a reduction of the charge.60 The judge should direct the jury to consider the defence of diminished responsibility when there is sufficient evidence of it, even though the matter is not raised by the defence.61 The judge should also explain to the jury the scope of the defence, review the clinical evidence in detail and relate the evidence to the terms of the legislation.62 In those jurisdictions which stipulate a list of specified causes, if the defence relies on more than one of those causes then the trial judge must ensure that each cause is evaluated and subject to appropriate directions.63 In exceptional cases where all the elements of the defence are established by unchallenged and uncontradicted evidence, the trial judge has the power to direct the jury to acquit of murder but convict of manslaughter.64 15.15 The preceding comments are directed to classical jury trials. The increasing frequency of judge-alone trials has been noted in relation to the defence of insanity: see 13.21. In a judge-alone trial, the trial judge is required to make factual findings and apply the applicable law. A judge is required to give reasons for his or her decisions, and this involves a transparent reasoning process, not an easy task when dealing with psychiatric evidence. Where there are opposing psychiatric accounts of aberrant behaviour, judges have a particularly difficult task; indeed, even where the psychiatric evidence points in one direction the matter is not without difficulty — especially in relation to the

application of community standards. In New South Wales, the fact that the defence is overtly based on community standards may see some slowing of the trend towards judge-alone trials where diminished responsibility is likely to be raised.65 In R v Bretherton, [2013] NSWSC 1036 Harrison J noted that community values are embedded in the substantial impairment defence. This was a relevant factor in determining whether the interests of justice required that a request for a judge-alone trial should be granted.66

Role of the jury 15.16 It has been held that what constitutes an abnormality of mind is not for expert witnesses to decide, but a matter for jurors representing ordinary people, the [page 433] test being whether the alleged abnormality of mind (or behaviour) was ‘definitely’ beyond the limits marked out by varied types of people met day by day, taking account of the diversity of human behaviour and personality.67 It is within the sole province of the jury to determine whether the accused’s criminal responsibility for murder had been so substantially impaired by an abnormality of mind as to warrant a reduction of the offence to manslaughter.68 When carrying out this exercise, the jury must consider not only the expert evidence but the evidence upon the whole facts and circumstances of the case and any history of mental abnormality.69 Where there is conflicting expert opinion on the cause of the mental abnormality, the jury will be called upon to decide, based on a proper direction.70 15.17 The judgement of the jury as to whether an accused person’s criminal responsibility for murder was so substantially affected by the abnormality of mind as to warrant reducing the offence to manslaughter comprises a moral judgement made by the jury as

representatives of the community.71 It is not a medical question. It is ‘an issue which is quintessentially one for the determination of a jury’.72 15.18 In Queensland, where a person is charged with murder and pleads diminished responsibility or insanity, the case may be referred to the Mental Health Court,73 consisting of a judge and usually two psychiatrists.74 The proceedings for the offence alleged to have been committed are suspended pending the decision of the court.75 If the court determines that diminished responsibility did not exist, it can still be raised at trial and evidence of the court’s determination is not admissible.76 The New South Wales Law Reform Commission considered the Queensland model77 but ultimately rejected it because, in the commission’s view, the defence of diminished responsibility requires value judgements which should be determined within the criminal trial process by the jury and not by a specialist panel of experts.78 In Queensland, a finding that the abnormality of mind was such as to substantially incapacitate the accused in a relevant way is sufficient to find manslaughter, but in New South Wales there is a further requirement that the impairment was substantial enough ‘to warrant liability for murder being reduced to manslaughter’.79 [page 434]

Role of expert witnesses 15.19 Expert opinion is crucial in characterising the nature of the mental abnormality the accused was allegedly suffering at the time of the killing, and in explaining the nexus with the underlying cause.80 The nexus between an alleged incapacity and an underlying condition must be clearly identified. 15.20 It is unnecessary for the abnormality of mind to be established by the expert evidence standing alone. Such evidence may be combined with evidence from the accused as to his or her mental condition when the killing occurred to prove that the abnormality was then present.81

The extent to which expert evidence can be relied upon depends on whether the factual assumptions on which the expert witnesses based their opinions are made out. Where those assumptions are inconsistent with the accused’s conduct at the time of the killing, it is open to the jury to reject the expert evidence.82 15.21 Where the defence relies upon a combination of causal factors (such as a psychological blow or injury along with a physical injury), the trial judge must then ensure that each factor is evaluated and subject to appropriate directions.83 However, the revised New South Wales provision may render a Whitworth direction otiose.84 15.22 The defence will not be withdrawn merely because the expert is unwilling to describe the alleged cause in the terms specified by the provision.85 The same is probably true under the revised New South Wales provision which requires the abnormality of mind to have been caused by an underlying condition. 15.23 Expert opinion must be sought on the question whether one of the specified capacities (eg, the capacity to understand events) was substantially impaired by an abnormality of mind arising from an underlying condition. A psychiatrist may be asked to explain how the mental abnormality induced by the underlying condition affected the relevant capacity, and whether the impact was substantial. Furthermore, it is sufficient for any one of the relevant incapacities to have been substantially impaired and it is for the jury (or judge, in the case of a judge-alone trial) rather than the clinical experts to say whether the evidence supports the claim of substantial impairment: see 15.16. 15.24 The relevant questions for the psychiatrist are: (1) Was the accused’s suffering from a mental abnormality at the time of the offence? (2) If so, was it induced by an underlying condition? (3) If so, was the relevant capacity substantially impaired? The psychiatrist should not be asked to say simply whether the underlying condition ‘caused’ the killing. It is submitted that this is so under both Queensland

[page 435] and New South Wales provisions.86 The question for the psychiatrist is whether one of the relevant capacities was substantially impaired at the time of the killing, not whether the impairment, if it existed, had led to the killing. 15.25 The distinction between causing the killing and causing the mentally abnormal state with associated incapacities at the time of the killing is perhaps a fine one but it is submitted that it should be maintained. This distinction was significant in a case where one of the psychiatrists thought that auditory hallucinations may have triggered a mental abnormality whereas the other psychiatrist considered that, even if the accused had heard voices, the psychiatrist was not persuaded that the killing was related to this particular factor. Under s 23A(1)(b), the jury must consider whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter; and, in that context, the jury may well consider the causal connection between killing and mental abnormality in deciding whether to classify the offender as murderer or manslaughter, but on that key issue expert testimony is inadmissible.87 15.26 In Potts v R [2012] NSWCCA 229; 227 A Crim R 217 the Court of Criminal Appeal appears not to have followed this approach. In that case, the trial judge had permitted the psychiatrist to speculate as to whether the abnormal mental condition was ‘the cause’ of the killing. On appeal, Johnson J said at [116] that ‘the primary issue was whether the requisite nexus had been demonstrated between the Appellant’s condition and his offending behavior’.88 Having reviewed the expert testimony his Honour concluded at [119]: ‘It was clearly open to the jury on the evidence not to be satisfied, on the balance of probabilities, that there was a causal link between the Appellant’s offending conduct and any abnormality of mind’. It is respectfully submitted that the primary question was whether an underlying condition had caused a mental abnormality in which one of the capacities was substantially impaired at the time of the offence. The secondary question was then

whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

Sentencing considerations 15.27 The successful invocation of diminished responsibility or substantial impairment engages a sentencing discretion by the trial judge. Sentencing matters are for the most part beyond the scope of this book. However, it is worth noting that evidence tendered in support of a failed defence of diminished responsibility may nevertheless have relevance to the sentencing process.89 [page 436]

Contrast with other mental condition defences 15.28 The factual situation giving rise to a plea of diminished responsibility may reveal evidence relevant to other exculpatory pleas, such as insanity, sane automatism, involuntary intoxication, and provocation. Such pleas may overlap factually with diminished responsibility, but it is important to consider diminished responsibility by reason of mental abnormality as quite distinct.

Insanity 15.29 In cases where it applies — namely, cases of murder — issues relating to diminished responsibility and insanity may arise together. The distinction between them is sufficiently material to avoid potentially confusing descriptors of diminished responsibility such as ‘partial’ insanity and ‘borderline’ insanity.90 The theoretical difference between the two defences is plain; in practice, the boundaries may be blurred. Diminished responsibility requires a substantial impairment of the capacities whereas, in insanity, there is a complete impairment. As noted in Chapter 13, the inability to exercise self-control (so-called

volitional defects) is not a recognised form of insanity in New South Wales, but it may be covered by diminished responsibility: see Crimes Act 1900 (NSW) s 23A(1)(a). In Queensland, volitional defects were provided for under the original codified formula of insanity under s 27, and are provided for under s 304A(1) — so, in that jurisdiction, the distinction between the two defences is largely as to the extent of the impairment.91 The distinction is therefore one of degree only. 15.30 The prospect of detention in a forensic facility (either in prison or a secure ward within a psychiatric institution) may be less appealing to the accused than a determinate sentence for the crime of manslaughter. His or her counsel may therefore eschew insanity and plead diminished responsibility. What if the evidence discloses a clear case of insanity? 15.31 In Queensland, on a reference to the Mental Health Court, the court is required under s 26792 to decide whether the person the subject of the reference was of unsound mind when the alleged offence was committed; and, if the person is alleged to have committed the offence of murder and the court decides the person was not of unsound mind when the alleged offence was committed, then to decide whether the person was of diminished responsibility when the alleged offence was committed. In logical terms, the exclusion of unsoundness of mind should occur before considering the question of diminished responsibility. Section 405(1) of the Mental Health Act 2000 (Qld) provides that, in proceedings [under the Act], no party bears the onus of proof on any matter. Section 405(2) provides that a matter to be decided by the Mental Health Court must be decided on the balance of probabilities.93 15.32 It sometimes occurs that the defence concedes that the accused was of sound mind, and then contends that he or she was suffering from a mental abnormality such as to convert what would otherwise be murder to manslaughter. [page 437]

This approach appears to consider the choice between insanity and diminished responsibility without regard to issues relating to burden of proof: see Re Suda [2013] QMHC 18. 15.33 It is submitted that the court does have the theoretical power to decline to accept what is, in effect, a plea of guilty to manslaughter if the evidence discloses that the defendant was not criminally responsible by reason of insanity. If the evidence does establish insanity, a verdict of manslaughter by diminished responsibility would not be appropriate.94 Establishing the preconditions for a finding of murder is a prerequisite to a verdict of manslaughter by diminished responsibility. A jury cannot find murder if the accused was insane at the time of the act.

Automatism 15.34 The concept of automatism refers to involuntary movements of the musculature in which apparently purposive action occurs without the influence of a controlling mind or will. The concept is puzzling for laypersons because the lack of consciousness clearly contradicts the apparently purposive and complex nature of the conduct. The common law and Code provisions support the proposition that involuntary conduct, where it exists, is not capable of involving criminal responsibility. However, the defence has the difficult burden of displacing the natural scepticism which attends this particular plea, not in theory, but in practice. There has, from the outset, been considerable scepticism about the so-called defence of automatism, which is simply a plea of involuntariness. It may be a matter of degree as to whether a defence of diminished responsibility based upon an inability to exercise control, is far removed from a plea of automatism.95 The major point of distinction is simply the presence of consciousness. This matter is explored more fully in Chapter 14.

Self-induced intoxication 15.35

A state of self-induced intoxication does not of itself provide a

basis for the defence of diminished responsibility because it does not fall within any of the specified causes of abnormality of mind.96 But the evidence may show that the accused was suffering from some preexisting condition, such as substantial brain damage arising from protracted substance abuse. The impairment of capacity may be the result of an underlying permanent disease or injury rather than the transient effect of temporary intoxication.97 If so, then diminished responsibility may be available. This is of course a difficult question, drawing upon both factual [page 438] and opinion evidence. The decision-maker, whether judge or jury, is required to determine whether any alleged impairment was related to an underlying pathology associated with alcoholism, of which the list is very long, or caused primarily by the consumption of alcohol prior to the killing. Would the loss of capacity have occurred but for the consumption of alcohol on this particular occasion? If not, then diminished responsibility cannot succeed. Another way of asking the same question is whether the loss of capacity could be explained by the underlying alcoholism standing alone and without reference to any selfinduced intoxication. So, for example, in R v Goodridge [2012] NSWSC 378 in a judge-alone trial, Adamson J said:98 For the foregoing reasons … I accept that his capacity at the relevant time to understand events, judge whether his actions were right or wrong or to control himself was, to some extent, impaired. However, in my view, his substantial impairment came from his consumption of excessive quantities of alcohol which I find to have been not involuntary, and therefore self-induced, and, by reason of s 23A(3) of the Act, to be disregarded.

The reformulated New South Wales provision removes any requirement to identify the cause of the impairment, and has a specific subsection that expressly excludes self-induced intoxication from the definition of diminished responsibility. Section 23A(3) provides that if a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication, then the effects of that self-induced intoxication are to be disregarded for the

purpose of determining whether the person is not liable to be convicted of murder.99

Provocation 15.36 In each of the jurisdictions which recognise diminished responsibility (or substantial impairment) as a partial defence to murder, provocation is also available.100 These defences may be raised simultaneously but they are quite different concepts, even though the mental state of someone in the throes of homicidal violence is by definition abnormal. The key difference between them is that provocation focuses upon the deceased’s conduct in relation to the selfcontrol of the accused, whereas diminished responsibility focuses on the mental state of the accused and its effect on his or her powers of cognition and self- control. Provocation is based on the notion that the degree of provocation to [page 439] which the accused was subject prior to the killing could have caused an ‘ordinary’ person to lose self-control, form an intention to kill and act on that intention. It is assumed that the loss of self-control is temporary, its cause is external to the accused, and that it is not likely to reoccur. In cases where provocation and diminished responsibility are raised together, the basis for the verdict should be disclosed by the jury. Indeed, where diminished responsibility is relied upon, either alone or in conjunction with a defence of provocation, the jury should be told that the foreperson may be asked to inform the judge as to the basis of a verdict of manslaughter.101

Domestic violence 15.37 The defence of diminished responsibility, in company with selfdefence and provocation, is a frequent traveller in the grim world of

family violence.102 It is a jurisprudential challenge to size up the most appropriate defence when the victim of domestic abuse dispatches his or her tormentor with fatal force. Certainly, the law should consider the experiences of those suffering from domestic violence, the claims of legitimate defensive action, and react with compassion to those who lose self-control in the face of sustained abuse, or sink into mental dysfunction affecting basic capacities for reason or self-control. These are the consequences of domestic violence. However, recent laudable efforts to mould the various defences to support victims of domestic violence by changing essential elements have not been conspicuously successful. The various changes to self-defence provisions to accommodate victims of domestic violence are considered at 10.39–10.43 and 11.54–11.55. 15.38 The New Zealand Law Commission recommended against the introduction of diminished responsibility, and specifically did not think that it was an appropriate ‘remedy’ for women in the domestic violence context.103 Yet, a defence of diminished responsibility may be entirely consistent with a history of long abuse at the hands of a violent partner. The victim of violence may well develop and be suffering from an abnormality of mind at the time of the killing. Diminished responsibility should be considered as one possible defence option, mindful of the fact that it involves essentially a plea of guilty to manslaughter. It is a question of strategy whether to focus on the externalities pointing to domestic violence and legitimate self-defence, or the impaired capacities of the accused resulting from a long history of abuse.104 Self-defence may, depending on circumstances, be more appropriate, if only because it provides a complete defence, unlike the partial defence of diminished responsibility. Moreover, the latter may divert attention from the external circumstances leading to a [page 440] person’s disturbed condition.105 A 2001 New South Wales study revealed that diminished responsibility was not the defence of choice for

women charged with murdering their partners.106 Women apparently relied more frequently on the defence of provocation.107

Reforming the law 15.39 Diminished responsibility has many detractors.108 Some see it as an anachronism of a time when a murder conviction attracted a mandatory sentence of death or life imprisonment.109 The alternative is to treat mental abnormality as a relevant sentencing factor, as is the practice in those jurisdictions which have never recognised the defence. It may also be said that it is preferable to redefine and broaden the defence of insanity rather than create a ‘back-door’ excuse for people who do not fit into the rather narrow tests required by the current defence of insanity. These were the main reasons which persuaded the Model Criminal Code Officers Committee to recommend against recognising a defence of diminished responsibility for murder.110 15.40 It is however noteworthy that the New South Wales Law Reform Commission has, on both occasions on which it has considered the matter, [page 441] recommended retention of diminished responsibility subject to certain revisions. One of the main reasons given by the commission for retaining the defence was that it was essential in order to enable the community (as represented by juries) to participate in a meaningful way in the process of assessing culpability in cases of this kind.111 Another reason was that the defence accorded with the fundamental principle of criminal justice requiring culpability for serious offences to be measured according to an accused’s mental state in committing the offence. Accordingly, it is essential that factors which significantly affect that mental state should be taken into account when determining degrees of culpability as opposed to the sentence. As for the risk of fabrication of

evidence, the commission noted that such evidence could be tested within the trial process, with the accused bearing the burden of proving that the defence of diminished responsibility had been established. With regard to tampering with the defence of insanity, the commission’s response was that ‘diminished responsibility provides the flexibility to determine responsibility according to degrees of mental impairment, rather than according to a strict contrast between sanity and insanity’.112 The defence is therefore required for offenders whose mental impairment was not so severe as to warrant an acquittal and ensuing indefinite hospitalisation, but whose mental condition was nonetheless such that they should not be convicted of murder. 15.41 As with some other controversial criminal law defences (such as provocation and insanity), the viability of the defence depends upon ongoing community acceptance, which in turn depends upon the ability of juries to apply the prescribed legal and clinical standards with fairness and common sense. On balance, it is submitted that a strong case can be made for retaining the defence of diminished responsibility,113 with the revised New South Wales provision holding up as a sound model. 15.42 If the defence is to be retained, should it be extended to cover attempted murder and other offences?114 In favour of doing so, it seems illogical to restrict the defence to murder when offenders who attempt murder or commit other crimes may likewise be acting under impaired mental capacity. The New South Wales Law Reform Commission considered this issue and recommended against extending the scope of the defence for several reasons.115 First, the other offences do not carry the same stigma as does a conviction for murder. Second, it was not evident how diminished responsibility could reduce culpability in respect of offences other than murder. Unlike unlawful homicide, which is divided into murder and manslaughter, other offences cannot be readily divided into [page 442]

categories which reflect degrees of culpability. Extending the scope of the defence would require redefining offences or creating new ones, or else permitting an accused person to receive a complete acquittal. Third, the commission warned that extending the scope of diminished responsibility could have an adverse impact on the efficiency of court administration and court time. The commission concluded that the defence should remain confined to murder and that an accused’s mental impairment in relation to other offences could appropriately be left to the sentencing stage. This recommendation was subsequently adopted by the New South Wales legislature. The reasons against extending the scope of the defence seem to be sufficiently persuasive to justify confining diminished responsibility to murder.

1.

2. 3.

4.

5.

6. 7. 8.

9.

See A Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, Oxford University Press, 2012, p 227; G H Gordon, The Criminal Law of Scotland, W Green, Edinburgh, 2000, p 453; N Walker, Crime and Insanity in England (Vol 1: The Historical Perspective), Edinburgh University Press, Edinburgh, 1968, p 142. HM Advocate v Savage [1923] SLT 659 at 660–6; 1923 JC 49 at 51 per Lord Alness. See, for example, in the context of excessive self-defence: Viro v R [1978] HCA 9; (1978) 141 CLR 88; Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645. In 2004, the Victorian Law Reform Commission recommended that diminished responsibility not be introduced in Victoria (Victorian Law Reform Commission, Defences to Homicide, Final Report, 2004 at [5.127]), and the question was not revisited in the commission’s 2014 report: Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Report 28, 2014. A major review of the mental impairment defence in South Australia did not consider the possible introduction of diminished responsibility: Sentencing Advisory Council, A Discussion Paper Considering the Operation of Part 8A of the Criminal Law Consolidation Act 1935 (SA), Consultation Paper, Attorney-General’s Department, South Australia, 2013; A Report on the Operation of Part 8A of the Criminal Law Consolidation Act 1935 (SA), Attorney-General’s Department, South Australia, 2014. See also Criminal Law and Penal Methods Reform Committee of South Australia, The Substantive Criminal Law, Fourth Report, 1977, pp 44–6. Criminal Code (Qld) s 304A. Crimes Act 1900 (NSW) s 23A. See also the discussion at 15.4. Criminal Code (NT) s 159, as amended in 2006. The new formulation replaced s 37 of the Criminal Code 1983, which adopted the Queensland provision: see McDermott v The Director of Mental Health; Ex parte A-G (Qld) [2007] QCA 51. Crimes Act 1900 (ACT) s 14(1) as inserted by the Crimes (Amendment) No 2 Act 1990 (ACT).

10. The modern statutory formulation in England and Wales is governed by s 2 of the Homicide Act 1957, as amended by ss 52 and 53 respectively of the Coroners and Justice Act 2009. See L Kennefick, ‘Introducing a New Diminished Responsibility Defence for England and Wales’ (2011) 74 Modern Law Review 750. 11. In 2007, the Law Reform Commission of Western Australia also recommended against introduction of the defence: see Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report, 2007, Recommendation 39. 12. The relevant committee of the Standing Committee of Attorneys-General rejected the defence on the basis that it was fundamentally flawed: see Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General Model Criminal Code: Ch 5 Fatal Offences Against the Person, Discussion Paper, 1998 at 123. 13. Criminal Law (Insanity) Act 2006 (Ireland). 14. An important judicial modernisation occurred in 2002: see Galbraith v HM Advocate 2002 JC 1 (excluding psychopathic mental disorder and intoxication); Carraher v HM Advocate [1946] SLT 225; HM Advocate v Braithwaite [1945] SLT 209. In 2010, following recommendations of the Scottish Law Commission, the doctrine was reduced to a statutory form: see Scottish Law Commission, Insanity and Diminished Responsibility, Final Report, 2004, Ch 3.1. The commission recommended abolition of the common law defence in place of a statutory defence. See now Criminal Procedure (Scotland) Act 1995 s 51B, as amended by Criminal Justice and Licensing (Scotland) Act 2010 s 168. 15. A Reed and M Bohlander, Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives, Ashgate, UK, 2011. 16. A Hemming, ‘It’s Time to Abolish Diminished Responsibility, the Coach and Horses’ Defence through Criminal Responsibility for Murder’ (2008) 10 University of Notre Dame Australia Law Review 1; S Dell, Murder into Manslaughter: The Diminished Responsibility Defence in Practice, Oxford University Press, 1984; D Fraser, ‘Still Crazy after All These Years: A Critique of Diminished Responsibility’ at 112; J Hunter and J Bargen, ‘Diminished Responsibility; “Abnormal” Minds, Abnormal Murderers and What the Doctor Said’ at 125, both in S Yeo (ed), Partial Excuses to Murder, Federation Press, Sydney, 1990. 17. See A Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law, Oxford University Press, 2012, p 233. 18. New South Wales Law Reform Commission, Partial Defences to Murder: The Defence of Diminished Responsibility, Report 82, 1997. 19. See, for example, the tortured analysis of the term in R v Cheatham [2002] NSWCCA 360; also R v Ryan (1995) 90 A Crim R 191 at 195 Hunt CJ at CL. 20. Crimes Act 1900 (NSW) s 23A(8). This approach was also adopted in the Northern Territory provision. 21. New South Wales Law Reform Commission, above n 18, at [3.39]. See also Judicial Commission of New South Wales, Partial Defences to Murder in NSW 1990–2004, Research Monograph 28, 2006. 22. In 2013, the commission made further recommendations, including dropping the reference to ‘abnormality of mind arising from an underlying condition’ in favour of ‘mental health or cognitive impairment’. The commission provided complex definitions for these terms. These 2013 recommendations have not been acted upon. 23. New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences,

24. 25. 26. 27. 28. 29. 30. 31.

32. 33. 34. 35. 36. 37. 38. 39. 40. 41.

42. 43.

44.

45.

46. 47. 48.

Report 138, 2013, at [4.77]. [1960] 2 QB 396 at 403 per Lord Parker CJ. ‘Arrested or retarded development of mind’ embraces natural mental infirmity as used in s 27 of the Criminal Code (Qld). Criminal Code (Qld) s 304A(1). See Rolph v R [1962] Qd R 262 at 271 per Mansfield CJ. R v Whitworth [1989] 1 Qd R 437 at 454 per Derrington J. McGarvie v R (1986) 5 NSWLR 270 at 272 per Street CJ. McGarvie v R (1986) 5 NSWLR 270 at 272 per Street CJ. R v Whitworth [1989] 1 Qd R 437 at 453. See also R O’Regan, ‘Diminished Responsibility under the Queensland Criminal Code’ (1978) 2 Criminal Law Journal 183 at 186–7. In Tumanako v R (1992) 64 A Crim R 149 at 162, the New South Wales Court of Criminal Appeal stated that an inherent cause must have ‘the quality of permanence or endurance’. R v Whitworth [1989] 1 Qd R 437 at 455 per Derrington J. Tumanako v R (1992) 64 A Crim R 149 at 167 per Badgery-Parker J. R v Sullivan [2010] NSWSC 755; R v Whitworth [1989] 1 Qd R 437 at 457 per Derrington J; Jones v R (1986) 22 A Crim R 42 at 43–4 per Street CJ. R v Paddock [2009] NSWSC 369. Dick v R [1966] Qd R 301; Campbell v R (1987) 84 Cr App R 255. R v Whitworth [1989] 1 Qd 437 at 450 per Derrington J. Biess v R [1967] Qd R 470; R v Ford [1972] QWN 8. R v Corry [1966] QWN 40. Tandy v R [1989] 1 All ER 267. Re Suda [2013] QMHC 18; R v Morgan; Ex parte A-G [1987] 2 Qd R 627; (1986) 24 A Crim R 342 (combined with attention deficit syndrome and brain damage caused by anoxia at birth); R v Mathers [2011] NSWSC 339; R v Singh [1999] ACTSC 32 (combined with personality disorder); Chayna v R (1993) 66 A Crim R 178; Nielsen v R [1990] 2 Qd R 578 (including alcoholism and post-traumatic stress disorder caused by war experiences); Hinze v R (1986) 24 A Crim R 185; R v Ford [1972] QWN 5 (including delirium due to high fever). R v Cheatham [2002] NSWCCA 360 (hypochondriacal delusion); R v Richards [2002] NSWSC 415 (delusional disorder). R v Whitworth [1989] 1 Qd R 437; (1987) 31 A Crim R 453 (right frontal lobe dysfunction and psychosocial factors); Chester v R (1981) 5 A Crim R 296 (frontal lobe brain damage and personality disorder); Rolph v R [1962] Qd R 262 (brain disease caused by encephalitis and poliomyelitis); R v Mawson [2007] NSWSC 1473 (chronic and longestablished post-traumatic stress disorder with acquired brain injury). Morris v R [1987] HCA 50; (1987) 163 CLR 454 (chronic alcoholism); Gillespie v R (1988) 36 A Crim R 235 (Korsakoff’s psychosis, and related amnestic syndrome arising from alcohol abuse). Miers v R [1985] 2 Qd R 138 (personality disorder associated with alcoholism, homosexuality and self-induced intoxication); Biess v R [1967] Qd R 470 (neurotic personality disorder). R v Whitworth [1989] 1 Qd R 437 at 447 per Thomas J. R v Whitworth [1989] 1 Qd R 437 at 446 per Thomas J. The extent to which personality disorders are relevant to the defence of diminished responsibility is uncertain. In McDermott v The Director of Mental Health; Ex parte A-G (Qld) [2007] QCA 51, the Queensland Court of Appeal by majority held that a personality

49.

50. 51. 52. 53. 54. 55. 56. 57.

58. 59. 60. 61.

62. 63. 64. 65. 66.

67. 68. 69.

disorder may cause an abnormality of mind within s 304A of the Criminal Code (Fryberg J dissenting at [115]-[116]). In Re GMB (2002) 130 A Crim R 187, Chesterman J, sitting as the Mental Health Tribunal, held that an antisocial personality disorder did not amount to an ‘abnormality of mind’ for the purposes of s 304A of the Criminal Code. Interestingly, R v Byrne [1960] 2 QB 396 (see 15.6) itself involved a case of sexual psychopathy: see also Walton v R [1978] AC 788; Turnbull v R (1977) 65 Cr App R 242. R v Whitworth [1989] 1 Qd R 437 at 451 per Derrington J at 451; Jones v R (1986) 22 A Crim R 42 at 44 per Street CJ; Miers v R [1985] 2 Qd R 138; Kuzmenko v R [1968] QWN 49; Di Duca v R (1959) 43 Cr App R 167; R v Fenton (1975) 61 Cr App R 261; Tandy v R [1989] 1 All ER 267. Crimes Act 1900 (ACT) s 14(3); Crimes Act 1900 (NSW) s 23A(5). Crimes Act 1900 (ACT) s 14(4); Crimes Act 1900 (NSW) s 23A(6). Criminal Code (NT) s 159(1)(a). Criminal Code (Qld) s 304A(1). R v Allen and Bradford [1992] QCA 222. Crimes Act 1900 (ACT) s 14(2); Crimes Act 1900 (NSW) s 23A(4); Criminal Code (NT) s 159(4); Criminal Code (Qld) s 304A(2). R v Ayoub [1984] 2 NSWLR 511 at 515 per Street CJ. Bastian v R [1958] 1 All ER 568; Grant v R [1960] Crim LR 424. See R v Walsh [1991] TASSC 30. Some Australian jurisdictions have a similar ruling in relation to the issue of fitness to plead: see Donovan v R (1989) 39 A Crim R 150; R v P (1991) 57 A Crim R 211. See also Scottish Law Commission, Insanity and Diminished Responsibility, Final Report, 2004, at [5.2]–[5.28], (accessed 26 August 2015). R v Ayoub [1984] 2 NSWLR 511. Purdy v R [1982] 2 NSWLR 964 at 966; Tumanako v R (1992) 64 A Crim R 149 at 160. Maxwell v R (1996) 184 CLR 501. R v Corry [1966] QWN 40. But compare English law, where the trial judge cannot direct the jury on the defence unless it has been raised by the accused: see R v Kooken (1981) 74 Cr App R 30; Campbell v R (1987) 84 Cr App R 255. This issue has been commented upon by the Law Commission of England and Wales: Law Commission, Unfitness to Plead, Consultation Paper 197, 2010 at [2.80]–[2.87]; see also New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report 138, 2013 at [2.31]. R v Lock [2002] 1 Qd R 512; (2001) 121 A Crim R 219. R v Whitworth [1989] 1 Qd R 437. R v Bowman (1987) 49 NTR45; 87 FLR 469; R v Sanders (1991) 93 Cr App R 245. R v Aller (No 2) [2015] NSWSC 402; R v Bretherton [2013] NSWSC 1036; R v Goodridge [2012] NSWSC 378. [2013] NSWSC 1036 at [25]. See also R v Goodridge [2012] NSWSC 378 at [106]. This logic cannot of course apply to special hearings. See, for example, MB (No 2) [2014] NSWSC 1755, discussed at 16.13. Rolph v R [1962] Qd R 262 at 288 per Hanger J. Tumanako v R (1992) 64 A Crim R 149; R v Ryan (1995) 90 A Crim R 191; R v Majdalawi (2000) 113 A Crim R 241. See also Crimes Act 1900 (NSW) s 23A(2). Walton v R [1978] AC 788 at 793, and approved in Chester v R [1982] Qd R 252 at 256

70. 71. 72. 73. 74. 75. 76. 77.

78. 79. 80. 81. 82. 83. 84. 85. 86. 87.

88. 89. 90. 91. 92. 93. 94.

95. 96.

97.

per Campbell J; R v Trotter (1993) 35 NSWLR 428 at 431 per Hunt J. A history of mental illness involving the commission of other offences may trigger the need for a propensity evidence warning: see Potts v R [2012] NSWCCA 229. Sodo v R (1975) 61 Cr App R 131; R v Jennion (1962) 46 Cr App R 212. See Potts v R [2012] NSWCCA 229 at [33]; R v Trotter (1993) 35 NSWLR 428 at 431. R v Hucker [2002] NSWSC 1068 at [2]. Mental Health Act 2000 (Qld) s 257; Mental Health Act 2016 (Qld) s 181. Mental Health Act 2000 (Qld) s 382; Mental Health Act 2016 (Qld) s 638. Mental Health Act 2000 (Qld) s 259; Mental Health Act 2016 (Qld) s 183. Mental Health Act 2000 (Qld) s 317; Mental Health Act 2016 (Qld) s 159. More precisely, the New South Wales Law Reform Commission considered the model under the Mental Health Act 1974 (Qld), which has since been replaced by a similar model under the Mental Health Act 2000 (Qld). New South Wales Law Reform Commission, above n 18, at [3.84]. In New South Wales, evidence of an opinion that any impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. R v Whitworth [1989] 1 Qd 437; Tumanako (1992) 64 A Crim R 149. Purdy v R [1982] 2 NSWLR 964 at 966; Elliott and Hitchins v R (1983) 9 A Crim R 238 at 244. R v Majdalawi (2000) 113 A Crim R 241 at 245 per Spigelman CJ. R v Whitworth [1989] 1 Qd R 437. Ziha v R [2013] NSWCCA 27 at [55] per Macfarlan JA. Purdy v R [1982] 2 NSWLR 964 at 966 per Glass JA. Unlike the modern UK provision, s 23A(1)(a) does not require any explicit causal connection between the abnormal mental condition and the offence. In the revised UK statutory formulation, there is an additional element that the abnormality of mental functioning provides an explanation for the defendant’s conduct in the sense that if it causes, or is a significant contributing factor in causing the defendant to carry out the conduct: see s 2 of the Homicide Act 1957 (UK), as amended by ss 52 and 53 of the Coroners and Justice Act 2009 (UK). There is a question as to the extent to which these additional elements are implicit within the standard formulation [2012] NSWCCA 229; 227 A Crim R 217 at [116]. R v Valiukas [2009] NSWSC 808 at [6] per Hulme J. Rose v R [1961] AC 496 at 507 per Lord Tucker. Rolph v R [1962] Qd R 262 at 271–2. See Mental Health Act 2016 (Qld) s 181. See Mental Health Act 2016 (Qld) s 685 See Maxwell v R [1996] HCA 56; 184 CLR 501; R v Dib [2002] NSWSC 934 in the context of the judge’s discretion not to accept a plea of guilty based on provocation where there is insufficient evidence to support that plea. By parity of reasoning, this would apply equally to diminished responsibility. See R v King [2004] ACTSC 82 at [58] per Gray J. In the absence of permanent brain damage caused by the prolonged effects of intoxication, the accused’s condition is neither an ‘injury’ nor an ‘inherent cause’ within the meaning of the provision: R v Fenton (1975) 61 Cr App R 261; Jones v R (1986) 22 A Crim R 42; R v De Souza (1997) 41 NSWLR 656. Jones v R (1986) 22 A Crim R 42 at 44; Ryan v R (1995) 90 A Crim R 191 at 196 per

98. 99.

100.

101. 102.

103. 104. 105.

106.

107.

108.

Hunt J; R v Whitworth [1989] 1 Qd R 437 at 457 per Derrington J. [2012] NSWSC 378 at [102] See Ward v R [2013] NSWCCA 46. In England, the defence has been made available to an accused person whose craving for alcohol or other drug was so great as to be described as ‘involuntary’ and thereby constituting a ‘disease’. Crimes Act 1900 (ACT) ss 13 (provocation), 14(1) (diminished responsibility), inserted by Crimes (Amendment) No 2 Act 1990 (ACT); Crimes Act 1900 (NSW) s 23 (defence of extreme provocation), as amended by Crimes Amendment (Provocation) Act 2014 (NSW); Crimes Act 1900 (NSW) s 23A (substantial impairment by abnormality of mind); see Criminal Code (NT) ss 158 (partial defence of provocation), 159 (partial defence of diminished responsibility), as amended in 2006; Criminal Code (Qld) ss 304 (as amended by Criminal Code and Other Legislation Amendment Act 2011 (Qld) s 5), 304A (diminished responsibility). For completeness, neither provocation nor diminished responsibility is available in Victoria, Western Australia and Tasmania. South Australia retains the common law concept of provocation but has not introduced diminished responsibility: see 11.3. R v Low (1991) 57 A Crim R 8 at 15; Veen v R (1979) 143 CLR 458 at 465; 23 ALR 281; Rolph v R [1962] Qd R 262; Matheson v R [1958] 1 WLR 474 at 479. See Australian Law Reform Commission, Family Violence — A National Legal Response, Report 114, 2010; New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered Defendants, Report 73, 2001, Ch 6, . See the discussion at 11.43. New Zealand Law Commission, above n 102. J Tolmie, ‘Provocation or Self-Defence for Battered Women Who Kill?’ in Yeo, above n 16, pp 63–4. See Victorian Law Reform Commission, Defences to Homicide, Issues Paper, 2002 at [7.32], where the commission asked whether it was ‘appropriate to claim that such killings are the result of an “abnormality of mind”, or would it be better to instead create a new defence to cover such circumstances?’. See also Victorian Law Reform Commission, 2004, above n 4, at [5.116]. R Bradfield, ‘Women Who Kill: Lack of Intent and Diminished Responsibility as the Other “Defences” to Spousal Homicide’ (2001) 13 Current Issues in Criminal Justice 143. This may be contrasted with an English study which found that the defence was successfully relied on most frequently by women who were convicted of manslaughter for killing their spouses: see W Chan, Women, Murder and Justice, Palgrave, Hampshire, UK, 2001, p 53. See also L Bartels and P Easteal, ‘Mothers Who Kill: The Forensic Use and Judicial Reception of Evidence of Postnatal Depression and Other Psychiatric Disorders in Australian Filicide Cases’ (2013) 37(2) Melbourne University Law Review 297, especially in relation to the acceptance of a plea of guilty in cases where the evidence discloses evidence of insanity or diminished responsibility. A likely explanation is the greater flexibility afforded by the defence of provocation under s 23 of the Crimes Act 1900 (NSW) due to the removal of the requirement of suddenness, abrogation of the need for an isolated triggering event and recognition of cumulative provocation. The psychological, philosophical and moral assumptions underlying diminished responsibility are controversial. For the most trenchant critique of diminished responsibility see B Wootton, ‘Diminished Responsibility: A Layman’s View’ (1960) 76 Law Quarterly

109.

110. 111.

112. 113.

114.

115.

Review 224. See also Victorian Law Reform Commission, Mental Malfunction and Criminal Responsibility, Discussion Paper 14, 1988; Victorian Law Reform Commission, Provocation and Diminished Responsibility as Defences to Murder, Report 12, 1982. For a stimulating discussion see D Fraser, ‘Still Crazy After All These Years: A Critique of Diminished Responsibility’, in Yeo, above n 16, p 112. For a fuller discussion of the reasons for abolishing the defence, see New South Wales Law Reform Commission, above n 18, at [3.10]–[3.20]; the Model Criminal Code Officers Committee, above n 12, pp 123–9; and the Victorian Law Reform Commission, 2004, above n 4, [5.115]–[5.124]. Model Criminal Code Officers Committee, above n 12, p 131. Many cases involving a plea of diminished responsibility will not go to a jury on account of the prosecution accepting a plea of guilty of manslaughter without trial: see J Dawson, ‘Diminished Responsibility: The Difference It Makes’ (2003) 11 Journal of Law and Medicine 103 at 109. New South Wales Law Reform Commission, above n 18, at [3.19]. The English Law Commission reached the same conclusion pending any full consideration of the law of murder: see Law Commission, Partial Defences to Murder, Report 290, 2004 at [5.86]. Apparently not: see R v Richards [2002] NSWSC 415 at [45]; R v Campbell [1997] Crim LR 495. In R v Islam [2011] ACTSC 32 at [73] the question was left open. Diminished responsibility may be pleaded as a partial defence to constructive murder: see Thompson v R (1988) 36 A Crim R 223. New South Wales Law Reform Commission, above n 18, at [3.77].

[page 443]

16 Infanticide Introduction 16.1 Infanticide refers to the deliberate killing by a mother of her young child1 while suffering from a mental disturbance caused by that child’s birth or lactation.2 ‘Neonaticide’ refers to the killing of a newborn within hours of its birth, and is not a specific legal category distinct from infanticide. In New South Wales, Tasmania and Victoria, infanticide is a statutory offence,3 as well as being an alternative verdict available to a jury on a charge of murder.4 This dual character is an unusual aspect of infanticide. As an offence, infanticide has discrete elements and may be charged in its own right.5 It is also available as an alternative verdict where murder is pressed by the Crown, and in this sense infanticide operates as a partial defence. The existing Australian provisions are modelled on the Infanticide Act 1922 (UK) as amended in 1938,6 and the New South Wales version retains its original form.7 In Victoria, the law was significantly amended in 2005,8 Infanticide [page 444] is recognised in New Zealand and Canada,9 but not under the Commonwealth Criminal Code. Infanticide was abolished in Western Australia in 2008 as a distinct legal category.10 In those Australian

jurisdictions (Australian Capital Territory, Northern Territory, Queensland, South Australia and Western Australia) which do not recognise infanticide as a special category, the deliberate killing of an infant while suffering from a mental disorder arising from childbirth may amount to either murder or manslaughter, and defences of mental illness and automatism may arise.11 In modern times, charges or pleas of infanticide are rare, but this says little about the frequency of infanticide, especially neonaticide, in the community. The killing of a child during or shortly after birth may be significantly under-reported.12 Sentencing practices tend towards the merciful.13 16.2 A factor leading to the introduction of infanticide as a distinctive crime was the reluctance of juries to convict the mother on the capital charge of murder. The rate of conviction for abandonment and infanticide in Sydney in the late 1800s was indeed very low.14 The statutory recognition of infanticide in 1922 might well be regarded as socially progressive and benevolent. By downgrading the offence seriousness type, it was hoped to restore integrity to the judicial process; arguably, culpable driving causing death was separated from manslaughter for similar reasons. Another factor was the ending of the ‘black cap farce’ according to which the judge would pass upon the terrified mother a sentence of death for the murder [page 445] of her child prior to the inevitable commutation.15 The wellspring for the new law was pity and compassion for the mother. Protection for a vulnerable infant was accordingly a secondary consideration. Undoubtedly, such pity was deserved. Until fairly recent times, social and economic conditions were not conducive to having children out of wedlock. Social conditions were harsh and unyielding.16 The stigma of illegitimacy, the loss of family support and employment and the resulting grinding poverty could easily overwhelm any person, let alone a young frightened mother. This could lead to either abandonment of the child17 or infanticide. However, to excuse solely by reference to

harsh social factors was regarded as too indulgent when weighed against the taking of innocent life and the abnegation of basic maternal instincts. Psychological instability caused by childbirth itself was a more compelling reason, whether or not grounded in reality. While the Infanticide Bill 1936 (UK) referred to the mother being ‘in such distress and despair arising from solicitude for her child or extreme poverty or other causes’, the final version relied on a clinical model to drive the moral basis for infanticide, with the very questionable effect of lactation being relied upon to enable protection to extend beyond the first few weeks of the infant’s life. In modern Australia, the case for recognising infanticide has weakened, as both social circumstances and sentencing options, including mental health disposition laws, have broadened to provide more flexible and humane dispositional options.

A preliminary question 16.3 The inclusion of infanticide in this book is justified by its status as an alternative verdict to murder, insofar as it operates as a partial defence to murder. But partial defences, such as provocation, excessive self-defence or diminished responsibility, ‘reduce’ what would otherwise be murder to manslaughter. Is this the case with infanticide? There is some English authority for the proposition that conviction of the statutory offence of infanticide does not depend upon there being proof of all elements of murder.18 A preliminary question therefore concerns the relationship between the offence of infanticide and the offence of homicide. Is a conviction for infanticide available if the elements of murder are not present? Is the fault element for murder a necessary ingredient of the offence of infanticide? [page 446] 16.4 The Infanticide Act 1938 (UK) contains two subsections: • s 1(1) defines infanticide as an offence; and • s 1(2) provides an alternative verdict of infanticide on an

indictment charging murder. This form is replicated in the current New South Wales provision; and in the Victorian provision until it was replaced: see 16.21. In short, the elements of infanticide as an offence relate to maternity, causation, age of child, a wilful act, and a contemporaneous mental disturbance relating to child birth. If those elements are present, the accused ‘shall’ be guilty of infanticide ‘notwithstanding that the circumstances were such that but for this Act the offence would have amounted to murder’. In that case, she ‘may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child’.19 Section 1(2) creates an alternative verdict of infanticide where the primary charge is murder. The jury ‘may, notwithstanding that the circumstances were such that but for the provisions of this Act they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide …’.20 16.5 The question posed is whether a person can be convicted of infanticide (either on a primary charge or as an alternative verdict) if the elements of murder are absent, including of course an intention to kill or foresight of the probability of death or grievous bodily harm. 16.6 An answer to the question is determined by the meaning of the somewhat ambiguous wording in s 1(2) — for ‘notwithstanding’ can mean ‘even if ’ or ‘despite the fact’ or ‘provided that’, each of which would point to a particular resolution of the present question. The question is not unimportant. It arose in a somewhat unusual manner in R v Gore (dec’d) [2007] EWCA Crim 2789. This was a referral by the Criminal Cases Review Commission to the Court of Appeal. In 1996, the appellant pleaded guilty to infanticide. She was ably represented. She was sentenced to community service. She accepted the sentence and at no point expressed any desire to appeal. In 2003, she died from cancer. Her case was investigated as part of a review undertaken by the Attorney-General’s department into child killings. The matter was then referred by the commission to the Court of Appeal. One basis put forward for setting aside the conviction was that the plea was in response to an indictment that was defective in that it failed to aver the

mental requirements for murder. The court dismissed this ground of appeal on the basis that the appellant had emphatically rejected any defence based on her mental state. But the court went on to say:21 In our view, there is no requirement that all the ingredients of murder be proved before a defendant can be convicted under section 1(1) of the Infanticide Act. We are satisfied that Parliament intended to create a new offence of infanticide which covered situations much wider than offences that would otherwise be murder. If the criteria in subsection (1) are fulfilled, the mother who kills her child does not have to face an indictment for murder. She faces a lower grade criminal charge, namely infanticide.

The court was at pains to state that the alternative view (that homicide was a prerequisite to a finding of infanticide) had a great potential to prejudice [page 447] women. But it is difficult to see how this is so. It is ironic that the price to be paid for avoiding a murder conviction is that a mother is liable to conviction for a serious indictable offence where her conduct, though ‘wilful’ in the sense of being deliberate, falls well short of amounting to murder, or even manslaughter. Not surprisingly, the matter having been laid bare so clearly, there was a call for change, which led to a small but significant statutory amendment — and ‘notwithstanding’ was changed to ‘if ’ and manslaughter was included alongside murder.22 The operative provision in the English provision now reads: … then the jury may, if the circumstances were such that but for the provisions of this Act they might have returned a verdict of murder or manslaughter, return in lieu thereof a verdict of infanticide.

It follows that, if the circumstances were such that but for the infanticide provision itself the jury could not have returned a verdict even of manslaughter, let alone murder, then a verdict of infanticide is not available. Under such circumstances a person is entitled to a complete acquittal.23 As to the explicit inclusion of manslaughter, it is logical that if the facts disclose a case of manslaughter, then the additional facts relating to mental disturbance should result in reclassification of the offence to infanticide.

16.7 This excursion into the English law is important given that the New South Wales provision is still in the original form, and thus R v Gore (dec’d) may have some persuasive force in that jurisdiction. By contrast, the Crimes Act 1958 (Vic) was amended in 2005 and s 6 now reads: (1) If a woman carries out conduct that causes the death of her child in circumstances that would constitute murder and, at the time of carrying out the conduct, the balance of her mind was disturbed because of— (a) her not having fully recovered from the effect of giving birth to that child within the preceding 2 years; or (b) a disorder consequent on her giving birth to that child within the preceding 2 years— she is guilty of infanticide, and not of murder, and liable to level 6 imprisonment (5 years maximum). (2) On an indictment for murder, a woman found not guilty of murder may be found guilty of infanticide. (3) Nothing in this Act affects the power of the jury on a charge of murder of a child to return a verdict of not guilty because of mental impairment.

16.8 This formulation implies that the jury cannot find infanticide on the basis of the elements contained in either (a) or (b) unless the relevant conduct ‘would constitute murder’. It is not sufficient if the conduct would amount merely to manslaughter. A fortiori, it is not sufficient if the conduct did not amount to any form of homicide. [page 448] It therefore follows that if, say, a new mother drops her new baby accidentally, she is not guilty of infanticide simply because she was suffering from a contemporaneous disturbance to the ‘balance of her mind’ caused by the birth. Take the case of a young mother who is recovering from an unexpected and shocking birthing experience. She smothers her child while attempting to keep it quiet so as not to disturb others in the house. She has no intention to harm the child. She makes a fatal mistake but without malicious intent. Taking account of all the circumstances, including the mother’s distressed mental state, such a case may fall short of establishing even gross negligence manslaughter. The death is simply accidental.

16.9 Such a case arose in R v ZZMM [2015] VSC 524. The agreed facts were that the mother did not intend to kill the child.24 Yet she pleaded guilty to a charge of infanticide. In sentencing her to community service, Rush J said:25 In the early hours on Wednesday 26 February 2014, you gave birth to a baby daughter … You were not aware that you were pregnant prior to commencing labour. You gave birth alone in your bedroom at your father’s house. You informed police that your daughter, immediately after birth, was moving and made a soft noise. You put your hand over her mouth so as to not wake up your family. You did this for a period of 30–60 seconds believing that she would be able to breathe through her nose. The medical evidence before me supports that belief. You then realised that the baby was no longer breathing. You cut the umbilical cord in the hope this would make her breathe. The baby was deceased.

The case is troubling. The agreed facts did not support a possible finding of murder. It is doubtful whether the young woman was guilty even of manslaughter on the agreed facts especially in light of her age and state of distress. The element of wilfulness is conspicuously lacking. This line was not taken in her defence due perhaps to the potential hazards of a trial for murder, the discount for an early plea, the lenience of the likely sentence and, of course, a desire to get the matter over with. A sentencing hearing pursuant to a guilty plea based on agreed facts should proceed on the basis that the accused would be guilty of murder but for the circumstances defining infanticide. Arguably, it is not appropriate to convict or sentence a person for infanticide if there is some doubt as to whether the death was caused deliberately, or whether on the agreed facts the accused would be, at most, guilty of manslaughter. A plea of guilty is taken to amount to an admission of all the essential elements of the crime and, therefore, in the case of infanticide, this should include the requisite fault element for murder. The plea of guilty implied that the killing was wilful or intentional, but this is inconsistent with the sentencing facts.26 Infanticide should not be construed essentially as a strict liability offence flowing inevitably from causation coupled with a contemporaneous upset to the balance of mind.

The elements of infanticide

16.10 A finding of infanticide is available where the death of an infant is caused by the child’s natural mother under circumstances amounting to murder. Infanticide is not available as a primary charge or alternative finding if the child is older than 12 months, in New South Wales and Tasmania, or 24 months in [page 449] Victoria. The offence of infanticide requires that the mother experienced some degree of mental disturbance or disorder as a result of giving birth. This requires proof that the balance of the accused’s mind was disturbed as a consequence of childbirth, although in New South Wales this may be based on the effect of lactation. In Victoria and Tasmania, the linkage between lactation and mental disturbance has been abandoned as being poor or questionable science.27 16.11 For infanticide to be established, the prosecution must prove beyond a reasonable doubt that: (1) the accused was the natural mother of the deceased child; (2) the accused caused the child’s death by an act or omission; (3) the child was under the age of 12 months (or 24 months in Victoria); (4) the accused’s act or omission causing death was ‘wilful’ (in New South Wales and Tasmania); and (5) the accused’s balance of mind was disturbed by the process of giving birth to the child. The first three elements are simple matters of fact. The reference to ‘wilful’ comprises the fault element, but this word has an uncertain meaning, sitting somewhere between ‘deliberate’ and ‘blameworthy’. The fifth element is properly analysed as part of the circumstances of the offence, even though it refers to the state of the accused’s ‘balance of mind’. This is not a scientific term and has an uncertain meaning. It does, however, suggest a lack of agency, rather than the active engagement associated with fault elements such as intention and

foresight. Each of the five elements will now be dealt with in turn.

The accused must be the natural mother of the deceased 16.12 The clinical basis of infanticide dictates that it is available only to natural mothers who have experienced mental disturbances caused by childbirth or lactation. Accordingly, it does not apply to other persons, such as adoptive mothers, fathers either natural or adoptive, or other primary carers of children. This runs counter to a ‘social’ model of infanticide in which the most likely cause of mental disturbance is not biological but due to economic and social pressures.28 Since adoptive mothers, fathers and primary carers may be equally susceptible to these pressures, there is an argument that infanticide should be extended to such persons. Conversely, it has been argued that removal of the biological connection will create arbitrary and discriminatory outcomes, and that severe stress should not by itself provide a defence to killing.29 Furthermore, some commentators have supported the present gender-based restriction, arguing that, in general, women are less culpable and kill children because they cannot cope with the extreme stress [page 450] of child-caring, while men act out of revenge or retribution.30 While it will be rare for a mother to be an accomplice in a killing of her child by a third person31 one law reform body found no sound reason for excluding the mother from the operation of the defence. Accordingly, it recommended extending the concept of infanticide to cover the mother who is an accomplice to the murder of her child.32

Causation 16.13 The accused must have caused the death of her child by an act or omission.33 It is suggested that the standard test for causation in

homicide cases apply, in particular, the requirement that the accused’s conduct must have substantially contributed to her child’s death.34 There is a suggestion in the case law that the causal issue relates not only to the fact of death, but whether the effect of childbirth provides a sole explanation for the killing. Thus, in R v MB (No 2) [2014] NSWSC 1755, the defendant mother was found unfit to plead to a charge of murder. On a special hearing, Bellew J found that she committed the offence of murder with which she was charged by deliberately drowning her six-month-old child. His Honour rejected infanticide on the basis that her conduct was not caused solely by her not having recovered from the process of giving birth.

The age of the child 16.14 The Australian infanticide provisions originally followed their English counterpart by restricting the concept to cases where the child victim was less than 12 months of age. In 2005, the Victorian provision was amended to 24 months. As the history of the development of infanticide shows, the 12-month age limit is controversial, with the age at which children can be victims of infanticide varying at different times. Under the original Infanticide Act 1922 (UK), the child had to be ‘newly born’.35 This was followed by a proposal to set the age limit at eight years,36 but the 12-months period eventually prevailed, based on the questionable notion of ‘lactational insanity’ in order to make the provision ‘plausible’.37 In New Zealand, the age limit is 10 years: see Crimes Act 1961 (NZ) s 178. It is difficult to see the moral justification for extending the scope of infanticide this far. [page 451]

The accused’s act or omission was ‘wilful’ 16.15 The requirement that the act or omission be ‘wilful’ has been deleted from the Victorian provision, but it is still part of the law in New South Wales and Tasmania. The expression ‘wilful’ appears in

some offence definitions in the Crimes Act 1900 (NSW) but has a variable and opaque meaning. Context is important and there are dangers in extrapolating from one to another, but a common thread is that there must have been knowledge or advertence to the consequences, as well as intent to do the act or refrain from doing the act. Although ‘wilful’ suggests some degree of culpability, it does not necessarily equate to the fault element required for murder. It may mean simply ‘non-accidental or deliberate’. It can be argued that infanticide should mirror the fault element required for homicide, or, at the very least, that required for manslaughter.38 A contrary argument is that infanticide is a discrete and lower form of culpable homicide. 16.16 An answer must depend on whether the statutory offence is construed as a distinct offence having a distinctive fault element falling short of the fault element associated with murder, or whether infanticide is simply a subset of murder with a lesser penalty by reason of mitigating circumstances. As noted above (at 16.6), in R v Gore (dec’d) [2007] EWCA Crim 2789, the English Court of Appeal favoured the former approach. This important matter is unresolved. The prosecution tendency to charge murder rather than infanticide in the first instance will inevitably result in a lack of analysis as to the elements of infanticide: see 16.23.

The accused’s mental balance was disturbed 16.17 Infanticide requires the accused’s balance of mind to have been disturbed at the time of the killing, either by the effect of childbirth or, except in Tasmania, the effect of lactation consequent on the birth of the child.39 Post-puerperal psychosis, which is the specific mental illness occasioned by the effect of giving birth, is uncommon, and the clinical basis for ‘lactational insanity’ is highly suspect.40 It has been held that the mental disturbance from these biological causes includes emotional as well as psychiatric and psychological forms of imbalance.41 Some overseas studies suggest that infanticide may be established without requiring proof of a severe psychiatric disorder, in contrast to other

[page 452] defences of mental disorder such as insanity and diminished responsibility.42 It is insufficient that the imbalance stemmed from socioeconomic pressures, such as unemployment, poverty, domestic violence, the death or illness of some family member or the lack of support from the accused’s family or the child’s father. In practice, however, non-biological pressures play a dominant role in infanticide cases,43 leading some law reform agencies to recommend the abandonment of lactation so that the focus is on mental disturbance associated with giving birth or circumstances following the birth.44 16.18 Under the present law, there is a tenuous connection between the accused’s mental imbalance and her criminal responsibility for the killing of her child. It is sufficient merely to show that the accused’s mind was disturbed at the time of the killing. The law does not require proof that the act or omission causing death was the product of the mental imbalance.45 Moreover, unlike other criminal defences based on mental disorder, it is unnecessary to establish that the accused suffered from an impaired capacity to know what she was doing, to know that it was wrong or to exercise self-control.

Alternative offences: child homicide 16.19 Infanticide is an offence in its own right and serves as an alternative to a charge of murder. Where a woman is charged with the murder of her child and the evidence supports a finding of murder and infanticide, the accused should be convicted only of infanticide.46 However, in New South Wales and Victoria, where a woman is charged with murdering her child, the power of the jury to return a verdict of manslaughter or of not guilty on the ground of insanity (or, in New South Wales, of concealment of birth) is not affected by the provisions relating to infanticide. 16.20

In New South Wales, there is a curious and possibly archaic

provision entitled ‘child murder by mother’ which operates where the jury acquits a mother of the murder of her child, ‘and specially find that she has in any manner wilfully contributed to the death of such child, whether during delivery, or at or after its birth, or has wilfully caused any violence, the mark of which has been found on its body’.47 In that case she is guilty of ‘child murder’ and liable to imprisonment for 10 years. It is seriously problematic to define the offence of ‘child murder’ in terms of a precondition that the woman has been acquitted of murdering the [page 453] child. The provisions seem to operate where there is no evidence that the mother was affected mentally or physically by the birth but, in that sense, it is difficult to see any justification for an offence by that name whatsoever. 16.21 In Victoria, the offence of child homicide was introduced in 2008, ostensibly to redress lenient sentencing practices in cases of child homicide.48 Section 5A of the Crimes Act 1958 (Vic) provides: A person who, by his or her conduct, kills a child who is under the age of 6 years in circumstances that, but for this section, would constitute manslaughter is guilty of child homicide, and not of manslaughter, and liable to level 3 imprisonment (20 years maximum).

In R v Hughes [2015] VSC 312 Croucher J held that the effect of s 5A was to oust manslaughter as an available offence where the victim was under the age of six years. He opined that those convicted post 2008 of manslaughter may have grounds to appeal where the victim was less than six years old.49 16.22 In Tasmania, where a woman is charged with infanticide, she may be convicted instead of the alternative offences of killing an unborn child or concealing the birth of a child.50 In New South Wales, the offence of concealment of birth under s 85 of the Crimes Act is an alternative verdict on a charge of murder.51

The role of the prosecution 16.23 Although the prosecution may charge an accused with infanticide rather than murder, this is rarely done.52 The prosecutorial practice is to charge the accused with murder and, from that superior bargaining position, negotiate a guilty plea to the lesser offence of infanticide.53 This practice runs counter to the judicial instruction to select infanticide as the appropriate charge, instead of murder, when the evidence warrants it.54 Besides the prosecutorial advantage in regard to plea negotiation, the current practice may be explained by the fact that, for a charge of infanticide, the prosecution must establish that the accused suffered from a disturbance of the mind, failing which the accused will be acquitted.55 [page 454]

Onus and burden of proof 16.24 Where a woman is charged with murder, and infanticide arises as an alternative verdict, the legislative provisions are silent as to the burden of proof with respect to the issue of mental imbalance. Mental condition defences, such as insanity and diminished responsibility, place the onus of proof on the accused and the burden is the balance of probabilities. It might be argued that the same rule should apply to infanticide where it operates as a partial defence.56 However, the better view is that infanticide arises as a live issue (ie, as a possible alternative verdict) only if there is evidence that: (a) the infant victim is under the threshold age in the relevant jurisdiction; and (b) the female accused was suffering from a mental imbalance with the required provenance. It is submitted that, once the defence has discharged an evidential burden with respect to these issues, the prosecution must disprove one or both of them beyond reasonable doubt in order to secure a

conviction for murder. There is indeed some judicial authority which holds that the prosecution should bear the burden of disproving infanticide if it is raised as a defence.57 Although, as noted above (see 16.23), infanticide is rarely charged at the outset as the primary offence, where this occurs it is submitted that the burden of proof rests on the prosecution to establish the elements of infanticide beyond reasonable doubt.58

The role of expert witnesses 16.25 The element of mental disturbance in infanticide effectively means that expert evidence plays a significant role in the decisionmaking process. Studies have found that, in many cases, the expert evidence has not been restricted to clinical matters, as strictly required by the rules of evidence, but has also addressed matters relating to culpability.59 Additionally, it has been suggested that clinical experts are often forced to distort their diagnosis in order to conform to the law’s insistence on the accused’s mental imbalance being caused by the effect of childbirth or lactation.60 These inconsistencies and problems have been largely blamed on the unsoundness of the clinical principles on which infanticide rests.61 [page 455]

Reforming the law 16.26 Writing in November 1982, a few days after the jury returned a guilty verdict in the Azaria Chamberlain case, and years before that fatally flawed verdict was set aside, the Honourable Justice Michael Kirby, then Chairman of the Australian Law Reform Commission, presented a paper at a conference in Victoria dealing with child abuse and infanticide. He concluded with the words:62 This is a sad subject. The miracle of birth is often presented as a fairy story. Unfortunately, these are fairy stories without happy endings. We cannot turn our back

on them. Nor can we shrug them off. Nor should we allow the law insensitively to operate, without regard to the incurable human tragedies involved.

16.27 Law reform bodies recently considering infanticide have, in the main, proposed two options. The first is to retain the concept of infanticide but to alter its definition to accommodate the criticisms that the concept is clinically outmoded and fails to specify a fault element as well as the degree of mental disturbance. The second option is to abolish the concept of infanticide altogether and subsume it under the defence of diminished responsibility or take it into account in sentencing. 16.28 In R v Kai-Whitewind [2005] EWCA Crim 1092, the English Court of Appeal, Criminal Division, stated that ‘[t]he law relating to infanticide is unsatisfactory and outdated’.63 Hallett CJ referred to comments from the Butler Committee Report in 1975 which questioned the theoretical basis of infanticide. The learned Lord Justice quoted from para 19.23 of the report: [T]he medical principles on which the Infanticide Act is based may no longer be relevant. The theory behind the Act was that childbirth produced an hormonal disorder which caused mental illness … [T]he operative factors in child-killing are often the stress of having to care for the infant, who may be unwanted or difficult, and personality problems … The disturbance of the ‘balance of mind’ that the Act requires can rarely be said to arise directly from incomplete recovery from the effects of childbirth, and even less so from the effects of lactation … A combination of environmental stress and personality disorder … are the usual aetiological factors … and the relationship to ‘incomplete recovery from the effects of childbirth or lactation’ specified in the Infanticide Act is often somewhat remote.

The moral (as opposed to the scientific) debate concerning infanticide is inconclusive. There are several factors involved, such as mercy and compassion for the non-coping mother, the need to provide effective protection against child abuse, the desirability of medicalising ‘nonmaternal’ behaviour, and issues of gender equality.64 [page 456] 16.29

The last (in the sense of most recent) word on this subject may

be found in the 2013 Report of the New South Wales Law Reform Commission.65 The commission recommended changing the infanticide provisions by requiring that, at the time of the conduct causing the death of the child, the defendant had a ‘mental health impairment consequent on or exacerbated by her having given birth to that child’.66 The commission held that although the arguments were ‘finely balanced’, it favoured retention, endorsing the views of the Victorian Law Reform Commission rather than those expressed by the Western Australian Law Reform Commission. In its view, infanticide afforded an appropriate and compassionate criminal law response to the complex and tragic circumstances that may result in a mother killing her infant. The commission noted that stakeholder opinion was strongly in favour of retention, and infanticide provisions respond appropriately to a particular set of circumstances that may not, in all cases, be adequately dealt with by the partial defence of substantial impairment. It is however regrettable that, as in so many other areas of the criminal law, fundamental questions of law and morality are dealt with so differently across jurisdictional lines.

1. 2. 3. 4. 5.

6.

7. 8.

Crimes Act 1900 (NSW) s 22A(1) (child under 12 months); Criminal Code (Tas) s 165A (child under 12 months); Crimes Act 1958 (Vic) s 6(1) (child under 24 months). P Fairall, Homicide — The Laws of Australia, Thomson Reuters, Pyrmont, NSW, 2012 at [10.1.1700]. Crimes Act 1900 (NSW) s 22A(1) (child under 12 months); Criminal Code (Tas) s 165A (child under 12 months); Crimes Act 1958 (Vic) s 6(1) (child under 24 months). Crimes Act 1900 (NSW) s 22A(2); Criminal Code (Tas) s 333(d); Crimes Act 1958 (Vic) s 6(2). It is not uncommon for the police to lay a charge of murder which is then reduced after committal to a charge of infanticide: see, for example, Director of Public Prosecutions v Q P X [2014] VSC 189 at [11]. Infanticide Act 1922 12 & 13 Geo 5 c 18 (UK); Infanticide Act 1938 1 & 2 Geo 6 c 36 (UK) (extended to encompass children younger than 12 months). See now Coroners and Justice Act 2009 (UK) s 57. Infanticide was introduced in New South Wales in 1951: see Crimes (Amendment) Act 1951 (NSW) s 2(d). The Victorian provision was amended in line with recommendations of the Victorian Law Reform Commission: see Defences to Homicide, Final Report, 2004, recommendation 47. In 2013, the New South Wales Law Reform Commission made similar recommendations which have not, at the time of writing, been acted upon: see New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal

9. 10.

11.

12.

13. 14.

15. 16.

17.

18.

Justice System: Criminal Responsibility and Consequences, Report 138, 2013, recommendation 5.1. Previously, in 1997, the commission recommended repealing infanticide altogether: see Partial Defences to Murder: Provocation and Infanticide, Report 83, 1997, recommendation 3. Crimes Act 1961 (NZ) s 178 (child under 10 years); Canadian Criminal Code 1985 ss 233, 662. See Criminal Law Amendment (Homicide) Act 2008 (WA) s 13, repealing s 281A(1) following recommendations of the Law Reform Commission of Western Australia: see Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report, Project 97, 2007 at 104 (recommendation 13). As well as diminished responsibility in Queensland: see Crime and Misconduct Commission Queensland, Vulnerable Victims: Child Homicide by Parents, Research and Issues Paper 10, 2013. Even in infanticide jurisdictions there are other relevant provisions which may have some relevance to infanticide See 16.19. As noted by the New South Wales Law Reform Commission, the ease of concealment of a newly born infant and the exercise of prosecutorial discretion may conceal the true extent of neonaticide in the community: New South Wales Law Reform Commission, 2013, above n 8, at [5.16]. Only four cases are reported in New South Wales between 2001 and 2011, at [5.15]. For example, Director of Public Prosecutions v Q P X [2014] VSC 189. Kirby J, ‘Child Abuse: Infanticide and Law Reform’, conference proceedings, Child Maltreatment and the Law, Victorian Child Maltreatment Conference, Department of Community Welfare Services, College of Nursing, Melbourne, 5 November 1982,