Criminal law elements [Sixth edition.] 9780409347418, 0409347418

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CRIMINAL LAW ELEMENTS Sixth Edition

CRIMINAL LAW ELEMENTS Sixth Edition Penny Crofts BEc, LLB (Hons), LLM (Syd), MPhil (Criminology) (Cantab), PhD (Griffith) Associate Professor of Law, University of Technology Sydney LexisNexis Butterworths Australia 2018

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Author: Title: Edition: ISBN: Notes: Subjects:

Crofts, Penny. Criminal law elements. 6th edition. 9780409347401 (pbk). 9780409347418 (ebk). Includes index. Criminal law—Australia. Criminal law—Australia —Cases.

© 2018 Reed International Books Australia Pty Limited trading as LexisNexis. Essential Criminal Laws — 1st ed, 1997; 2nd ed, 2001; 3rd ed, 2005; Criminal Law Elements — 4th ed, 2011 (reprinted 2013). 5th ed, 2014 (reprinted 2014 and 2015). 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 MinionPro and MyriadPro. Printed by Griffin Press, Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Acknowledgements Much gratitude to my partner, family and friends for helping me complete the book and letting me use their names in the problem questions. Thanks also to the staff at LexisNexis Butterworths in developing the latest edition. I would also like to thank all the students who have contacted me to express their love of Criminal Law Elements.

Table of Cases References are to paragraph numbers A Akbulut v Grimshaw [1998] 3 VR 756 .… 10.4 Allen v United Carpet Mills Pty Ltd [1989] VR 323 .… 2.49 Anic, Stylian and Suleyman v R (1993) 68 A Crim R 313; [1993] SASC 4159 . … 9.5, 9.9 Arulthilakan v R (2003) 203 ALR 259 .… 3.25, 4.26 Astor v Hayes (1988) 38 A Crim R 219 .… 9.30 Attorney-General v Huber (1971) 2 SASR 142 .… 8.33 — v Whelan [1934] IR 518 .… 13.34 Attorney-General for Northern Ireland v Gallagher [1963] AC 349 .… 12.22, 13.4, 13.14 Attorney-General for South Australia v Brown [1960] AC 432 .… 12.20 Attorney-General’s Reference (No 1 of 1975), Re [1975] QB 773 .… 11.25, 11.29 Attorney-General’s Reference (No 1 of 1983), Re [1984] 3 All ER 369 .… 10.15 Attorney-General’s Reference (No 3 of 1994), Re [1998] AC 245 .… 3.7, 3.8, 4.39, 6.4, 6.7 Attorney-General’s Reference (No 3 of 1998), Re [1999] 3 All ER 40 .… 12.4 B Balcombe v De Simoni (1972) 126 CLR 576 .… 9.51, 9.54 Barker v R (1983) 47 ALR 1 .… 10.59, 10.60 Barton v Armstrong [1969] 2 NSWR 451 .… 7.14, 7.20, 7.65 — v — [1976] AC 104 .… 2.12 Boughey v R (1986) 161 CLR 10; 65 ALR 609 .… 4.13, 4.14, 4.45, 7.5, 7.6, 7.33 BP v R [2006] NSWCCA 172 .… 2.4 Bratty v Attorney-General (Northern Ireland) [1963] AC 386 .… 2.14, 2.17, 12.27

Britten v Alpogut [1987] VR 929 .… 11.78, 11.82 Brown v R (1986) 43 SASR 33 .… 13.35, 13.39 Burns v R (2012) 290 ALR 713 .… 3.41, 6.13, 6.20 C Callaghan v R (1952) 87 CLR 115 .… 6.13, 6.15 Chard v Wallis (1988) 12 NSWLR 453 .… 2.47 Chayna v R (1993) 66 A Crim R 178 .… 5.57 Chhay v R (1994) 72 A Crim R 1 .… 5.22, 5.41 Clayton v R; Hardwick v R; Hardwick v R (2006) 231 ALR 500 .… 11.2, 11.45 Coleman v R (1990) 19 NSWLR 467 .… 7.7 Collins v Wilcock [1984] 3 All ER 374 .… 7.31, 7.33 Condon v R (1995) 83 A Crim R 335 .… 9.32 CTM v R (2008) 247 ALR 1; [2008] HCA 25 .… 2.46, 2.47, 8.17, 13.20 D Davis v R (1998) 100 A Crim R 573; 73 ALJR 139 .… 5.22, 5.50 Day v R [2017] NSWCCA 192 .… 13.13 Director of Public Prosecutions v Brooks [1974] AC 862; (1974) 59 Cr App R 185 .… 9.6 — v Camplin [1978] QB 254 .… 5.30 — v Gomez [1993] AC 442 .… 10.13 — v JWH (unreported, NSWCCA, 17 October 1997) .… 7.31 — v Majewski [1977] AC 443 .… 13.3, 13.8, 13.10, 13.15 — v Morgan [1976] AC 182 .… 8.27, 8.29, 13.17 — v Ray [1974] AC 370 .… 9.61, 9.62, 10.46 — v Richardson [1998] 2 VR 188 .… 7.36 — v Smith [2006] EWHC 94 .… 7.50 — v Stonehouse [1978] AC 55 .… 11.80 — v Traynor (Ruling) [2012] VSC 100 .… 12.17 — v Williams [1993] VR 15 .… 7.63

— (NSW) v Bone (2005) 64 NSWLR 735 .… 2.47 Donoghue v Coombe (1987) 45 SASR 330 .… 9.4, 9.37 Douglas v R [2005] NSWCCA 419 .… 13.30 E Edwards v Baugh (1843) 152 ER 962 .… 9.66 — v R [1973] AC 648 .… 5.23 Elliot and Hitchins v R (1983) 9 A Crim R 238 .… 4.37 Ellis v Lawson (1987) 33 A Crim R 69 .… 9.8, 9.11 F Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 .… 2.51, 7.3, 7.13, 7.28, 7.29, 7.43, 13.44 Fitzgerald v Kennard (1995) 38 NSWLR 184 .… 8.33 Fowler v Padget (1798) 101 ER 1103 .… 2.7 Fry v R (1992) 58 SASR 424 .… 5.5 G Gall v R [2015] NSWCCA 69 .… 11.63, 11.66 Gardner v R (1989) 42 A Crim R 279 .… 5.17, 5.22 Gillard v R (2003) 219 CLR 1 .… 11.38 Giorgi and Romeo v R (1982) 31 SASR 299 .… 11.28 Giorgianni v R (1985) 156 CLR 473 .… 2.34, 11.22, 11.23, 11.24, 11.32, 11.33, 11.34, 11.35, 11.37, 11.47, 11.79 Gollins v Gollins [1964] AC 644 .… 4.6 Green v R (1997) 148 ALR 659 .… 5.26, 5.31, 5.32 Greene v R (1949) 79 CLR 353 .… 9.48 H Hadba v R (2004) 182 FLR 472 .… 13.12 Hamilton-Byrne, Re [1995] 1 VR 129 .… 11.77 Harris v Harrison [1963] Crim LR 497 .… 9.27 Haughton v Smith [1975] AC 476 .… 11.80

Hawi v R (2014) 244 A Crim R 169 .… 11.10 He Kaw Teh v R (1985) 157 CLR 523 .… 2.24, 2.25, 2.28, 2.41, 2.42, 2.43, 2.44, 2.45, 2.46, 2.49, 13.20 Helmhout v R (1980) 1 A Crim R 464 .… 5.46 Hibbert v McKiernan [1948] 2 KB 142 .… 9.7, 9.9, 9.37, 10.7 Hickling v Laneyrie (1991) 21 NSWLR 730 .… 2.49 Holman v R [1970] WAR 2 .… 8.15 Holmes v DPP [1946] AC 588 .… 5.10 Hudd v R [2013] NSWCCA 57 .… 4.37 Huynh v R (2013) 295 ALR 624 .… 11.2, 11.3, 11.10 Hyde v R [1990] 3 All ER 872 .… 11.42 I Ibrahim v R [2014] NSWCCA 160 .… 13.19 Ilich v R (1987) 162 CLR 110; [1987] HCA 1 .… 9.2, 9.17, 9.18, 9.19, 9.20, 9.35, 9.43, 9.78, 10.23, 11.82 J Jayasena v R [1970] AC 618 .… 1.24 Jewell and Crimes Compensation Tribunal, Re (unreported, VSC, 16 January 1987, Legoe J) .… 7.39 Jiminez v R (1992) 173 CLR 572; 106 ALR 162 .… 2.18, 2.44, 12.24 Johns v R (1980) 28 ALR 155 .… 11.38, 11.39, 11.82 Johnson v R (1976) 136 CLR 619 .… 5.6, 5.38 K Ka v R [2015] NSWCCA 111 .… 11.12 Kearon v Grant [1991] 1 VR 321 .… 2.49 Kennedy v R [1981] VR 565 .… 2.44 Kennison v Daire (1986) 160 CLR 1296; 4 ALR 17; [1986] HCA 4 .… 9.12, 9.50, 10.7, 10.43 Knight v R (1992) 175 CLR 495 .… 11.79 L

La Fontaine v R (1976) 136 CLR 62 .… 4.11, 4.13 Lawrence v Metropolitan Police Commissioner [1972] AC 626 .… 10.48 Lazarus v R (2016) NSWCCA 52 .… 8.29 Lee Chuen v R [1963] AC 220 .… 5.43 Likiadopoulos v R (2012) 247 CLR 265 .… 11.21 Lim Chin Aik v R [1963] AC 160 .… 2.45 Lipohar v R (1999) 200 CLR 485 .… 1.8 Low v Blease [1975] Crim LR 513; (1975) 119 Sol Jo 695 .… 9.4 Lowe v Hooker [1987] Tas R 153 .… 9.22 M Mabo v Queensland (No 2) (1992) 175 CLR 1 .… 1.4 McAuliffe and McAuliffe v R (1995) 183 CLR 108; 130 ALR 26 .… 3.39, 11.38, 11.82 McGhee v R (1995) 183 CLR 82 .… 5.5 Macklin & Murphy’s Case (1838) 2 Lew CC 225; 168 ER 1136 .… 11.7 MacLeod v R (2003) 197 ALR 333; 140 A Crim R 343 .… 9.32, 9.34 MacPherson v Brown (1975) 12 SASR 184 .… 7.4, 7.7, 7.8, 7.14, 7.22, 7.42, 7.65 Mamote-Kulang v R (1964) 111 CLR 62 .… 3.34 Mancini v DPP [1942] AC 1 .… 5.30 Martin v Puttick [1968] 2 QB 82 .… 9.12 — v R (No 2) (1996) 86 A Crim R 133 .… 3.6 Masciantonio v R (1995) 129 ALR 575 .… 5.31, 5.32, 5.35, 5.36, 5.40, 5.51 Matusevich v R (1977) 137 CLR 633; 15 ALR 117…. 11.2, 11.45 Meyers v R (1997) 147 ALR 440 .… 4.9 Miller v R (2016) (2016) 90 ALJR 918 .… 11.43 Minigall v McCammon [1970] SASR 82 .… 9.39 M’Naghten’s Case [1843–60] All ER Rep 229 .… 12.2, 12.15, 12.29 , 12.31 Moffa v R (1977) 138 CLR 601 .… 5.10, 5.12

Moors v Burke (1919) 26 CLR 265; [1919] HCA 32 .… 9.7, 9.9 Mraz v R (1955) 93 CLR 493 .… 4.29 Mulcahy (1868) LR 3 HL 306 .… 11.69 Mumford v R (1989) 95 FLR 358 .… 10.10 Munro v R (1981) 4 A Crim R 67 .… 4.25, 4.34 Murray v R (2002) 211 CLR 193 .… 3.14, 3.15, 3.18 Mutemeri v Cheesman [1998] 4 VR 484 .… 7.64 N Nielsen v R [1990] 2 Qd R 578 .… 5.57 Nuri v R [1990] VR 641 .… 7.63 Nydam v R [1977] VR 430 .… 2.38, 6.10, 6.11, 6.12, 6.13, 6.16, 6.19, 6.22 O O’Connor v Killian (1984) 38 SASR 327 .… 11.81 Osborne v Goddard (1978) 21 ALR 189 .… 13.36 Osland v R (1998) 197 CLR 316; 159 ALR 170 .… 11.2, 11.3, 11.8, 11.9, 11.11, 11.26, 11.82 Ostrowski v Palmer (2004) 218 CLR 493 .… 2.48, 13.18 O’Sullivan v R (2012) 233 A Crim R 449 .… 8.29 Oxford v Moss (1978) 68 Cr App R 183 .… 10.4 P Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 .… 7.36, 7.39 Parker v R (1963) 111 CLR 610 .… 5.22, 5.41 Parker (a Pseudonym) v R [2016] VSCA 101 .… 13.40 Parsons v R (1999) 195 CLR 619; [1999] HCA 1 .… 9.23 Pemble v R (1971) 124 CLR 107 .… 6.3, 7.14 Pereira v DPP (1988) 63 ALJR 217 .… 2.34 Peters v R (1998) 192 CLR 493; [1998] HCA 7 .… 9.32, 9.34, 9.58, 10.38 Pinkstone v R (2004) 219 CLR 444 .… 11.14 Police v Greaves [1964] NZLR 295 .… 7.25

— v Harrison [2017] SASC 18 .… 7.4 — v Wilson [2012] SASC 38 .… 7.42 Powell v R (1988) 36 A Crim R 1 .… 9.44, 9.45 Proudman v Dayman (1941) 67 CLR 536 .… 2.41, 2.46, 2.47, 2.48, 13.19 Q Question of Law (No 1 of 1993) (1993) 59 SASR 214 .… 8.8, 8.15 Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251 .… 12.5, 12.21 Question of Law Reserved (No 1 of 1997) [1997] SASC 644 .… 13.29 Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63 .… 11.17 R R v Abdul-Rasool (2008) 18 VR 586 .… 7.64 — v Abebe (2000) 1 VR 429 .… 5.17, 5.25, 5.32 — v Abraham (1998) 70 SASR 575 .… 8.5 — v Abusafiah (1991) 24 NSWLR 531 .… 13.36 — v Appleby (1940) 28 Cr App R 1 .… 11.36 — v Arden [1975] VR 449 .… 5.21 — v Ashman (1858) 1 F & F 88 .… 4.8 — v Ashwell (1885) 16 QBD 160 .… 9.16, 9.17, 9.18 — v Ayoub (1984) 10 A Crim R 312 .… 12.3 — v B, MA (2007) 99 SASR 384 .… 13.1, 13.8 — v Babic (unreported, VSCA, BC9702175, 25 February 1997) .… 5.37 — v Bailey [1924] QWN 38 .… 9.23 — v Bainbridge [1960] 1 KB 129 .… 11.33 — v Banditt [2005] HCA 80 .… 8.28 — v Barbouttis (unreported, NSWCCA, 15 February 1993) .… 11.74 — v Barenregt [2008] SADC 35 .… 7.58 — v Barker [1924] NZLR 865 .… 11.80 — v Barlow (1962) 79 WN (NSW) 756 .… 11.62

— v Baruday [1984] VR 685 .… 10.16, 10.18 — v Beck [1990] 1 Qd R 30 .… 11.28, 11.30 — v Bellamy (unreported, NSWCCA, 15 February 1993) .… 9.69 — v Benli [1998] 2 VR 149 .… 9.49 — v — [1998] 2 VR 157 .… 10.43 — v Bingapore (1975) 11 SASR 469 .… 3.33 — v Bedder [1954] 1 LLR 1119 .… 5.30 — v Besim (2004) 148 A Crim R 28 .… 6.5 — v Blaue [1975] 3 All ER 446 .… 3.35, 3.38, 7.14, 7.65 — v Bonner [1970] 2 All ER 97 .… 10.6 — v Bonollo [1981] VR 633 .… 10.37 — v Borkowski [2009] NSWCCA 102 .… 6.3 — v Boyle [1954] 2 QB 292 .… 9.76 — v Briggs (1987) 24 A Crim R 98 .… 11.14 — v Britten and Eger (1988) 49 SASR 47 .… 11.42 — v Brow [1981] VR 783 .… 10.37 — v Brown [1985] Crim LR 212 .… 10.57 — v — [1994] 1 AC 212 .… 7.36, 7.37, 7.38 — v Brown and Morley [1968] SASR 467 .… 13.35 — v Burfield [2005] SASC 438 .… 12.14 — v Burgess [1991] 2 WLR 1206 .… 12.12 — v Butcher [1986] VR 43 .… 4.23, 4.26 — v Buttle (1960) SR (NSW) 320 .… 9.35 — v Byrne [1960] 2 QB 396 .… 5.57 — v C, M [2014] SASCFC 116 .… 8.33 — v Cahill (No 2) [1999] 2 VR 387 .… 10.58 — v Calhaem [1985] 2 WLR 826 .… 11.29 — v Campbell [1981] 2 VR 585 .… 3.23

— v — (1997) 95 A Crim R 391 .… 7.63, 7.65 — v Cekic [2015] SASC 47 .… 7.61 — v Chai (2002) 187 ALR 436 .… 11.36 — v Chan Fook [1994] 2 All ER 552 .… 7.50 — v Chisser (1678) 83 ER 142; T Raym 275 .… 9.8 — v Clarence (1888) 22 QBD 23 .… 7.33 — v Clarke [1998] 1 Cr App R 157 .… 8.15 — v Clarkson and Carroll [1971] 3 All ER 344; [1971] 1 WLR 1402 .… 11.37 — v Clothier [2002] SASC 9 .… 13.29 — v Cockburn [1968] 1 All ER 466; (1968) 132 JP 166 .… 9.25 — v Cogan and Leak [1976] 1 QB 217 .… 11.15 — v Collingridge (1976) 16 SASR 117 .… 11.80 — v Conde (1867) 10 Cox CC 547 .… 4.42 — v Coney (1882) 8 QBD 534 .… 2.10 — v Conlon (1993) 69 A Crim R 92 .… 13.27 — v Cottle [1958] NZLR 999 .… 2.19, 12.23 — v Crabbe (1985) 156 CLR 464 .… 2.32, 2.33, 2.34, 4.10, 4.11, 4.12, 4.14, 4.15, 4.16, 4.45, 6.22 — v Cramp (1999) 30 MVR 9 .… 6.20 — v Croft [1981] 1 NSWLR 126 .… 5.19, 5.30, 5.39 — v Croton (1967) 117 CLR 326; [1968] HCA 48 .… 9.11 — v Cuong Quoc Lam (2005) 15 VR 574 .… 3.40 — v D [1984] 3 NSWLR 29 .… 7.10 — v Dalby [1982] 1 All ER 916 .… 4.34 — v Daly [1968] VR 257 .… 8.27 — v Dardovska (2003) 6 VR 628 .… 10.25 — v Dargin [2008] NSWSC 751 .… 12.31 — v Davidson [1969] VR 667 .… 3.9 — v Davies [1970] VR 27 .… 9.7, 9.11, 9.35, 9.43

— v Dawson and James (1976) 64 Cr App R 170 …. 10.1, 10.51 — v De Souza (1997) 41 NSWLR 656 .… 5.58 — v Dean (1995) 65 SASR 234 .… 11.66 — v Deane (1996) 88 A Crim R 36 .… 11.20 — v Donovan [1934] 2 KB 498 .… 7.50, 7.65 — v Doorey [1970] 3 NSWLR 351 .… 11.26 — v Douglas (1991) CCC (3d) 29 SCC .… 11.70 — v Dudley and Stephens (1884) 14 QBD 273 .… 13.42 — v Dunn (unreported, NSWCCA, 15 April 1992) .… 8.5 — v Duru [1973] 3 All ER 715; (1973) 58 Cr App R 151 .… 9.23, 10.28 — v Duvivier (1981) 29 SASR 217 .… 5.45 — v Dyson [1908] 2 KB 454 .… 3.11 — v Eagleton (1843–60) 169 ER 826 .… 11.80 — v Egan (1985) 15 A Crim R 20 .… 8.27 — v El Azizi [2001] NSWCCA 397 .… 11.74 — v Elliott and Hitchins (1983) 9 A Crim R 328 .… 5.55 — v Ellis [1899] 1 QB 230 .… 1.7 — v Emery (1975) 11 SASR 169 .… 9.73 — v Evans and Gardiner (No 2) [1976] VR 523 .… 3.25, 3.31 — v Everingham (1949) 66 WN (NSW) 122a .… 7.16 — v F (1996) 40 NSWLR 245 .… 3.6 — v Falconer (1990) 171 CLR 30 .… 2.14, 2.21, 3.13, 4.45, 6.22, 12.3, 12.23, 12.24, 12.26, 12.28, 12.31 — v Falla [1964] VR 78 .… 5.46 — v Faure [1999] 2 VR 537 .… 4.14 — v Feely [1973] QB 530; [1973] 1 All ER 341 .… 9.34, 10.35, 10.37, 10.38 — v Firth (1989) 91 Cr App R 217 .… 10.43 — v Flood (1869) 8 SCR (NSW) 299 .… 9.10 — v Foster (1967) 118 CLR 117; [1967] HCA 8 .… 9.21, 9.22, 9.25, 9.78

— v — (1995) 78 A Crim R 517 .… 4.27, 4.33, 10.53 — v Freeman [1981] 2 NSWLR 686 .… 9.48 — v Fuge (2001) 123 A Crim R 310; [2001] NSWCCA 208 .… 9.27 — v Galas; R v Mikhael (2007) 18 VR 205 .… 4.26 — v Gallienne [1964] NSWR 919 .… 8.12 — v Georgatsoulis (1994) 62 SASR 351 .… 5.31 — v George (2004) 149 A Crim R 38 .… 6.13, 6.16 — v Gerakiteys (1984) 58 ALJR 182 .… 11.76 — v Ghosh [1982] 1 QB 1053; (1984) 75 Cr App R 154 .… 9.34, 9.58, 10.35, 10.37, 10.38 — v Gilks [1972] 3 All ER 280 .… 10.15 — v Glenister [1980] 2 NSWLR 597; (1980) 3 A Crim R 210 .… 9.32, 9.34, 9.44 — v Gnosil (1824) 171 ER 1206 .… 9.73, 9.74 — v Gomez [1993] AC 442 .… 10.19 — v Greenberg [1972] Crim LR 331 .… 10.6 — v Hale (1978) 68 Cr App R 415 .… 10.53 — v Hall [1972] 2 All ER 1009 .… 10.10, 10.11 — v Hallett [1969] SASR 141 .… 3.25, 3.27 — v Hancock; R v Shankland [1986] AC 455 .… 4.41 — v Hansill (1849) 3 Cox CC 597 .… 11.60 — v Haines (1821) 168 All ER 892 .… 9.76 — v Hanias (1976) 14 SASR 137 .… 9.73 — v Harding [1976] VR 129 .… 13.35 — v Hasan [2005] UKHL 22 .… 13.37 — v Hawes (1994) 35 NSWLR 294 .… 13.21 — v Hawes [2009] SADC 127 .… 7.58 — v Hayward (1833) 172 ER 1118 .… 5.5 — v Heatley [2006] NSWSC 1199 .… 5.57

— v Henderson (1870) 11 Cox CC 593 .… 9.43 — v Hennessy [1989] 1 WLR 287 .… 12.11, 12.29 — v Hewitt [1997] 1 VR 301 .… 11.16, 11.21 — v Higgs (2011) 111 SASR 42 .… 8.29 — v Hinks [2001] 2 AC 241 .… 10.19 — v Holzer [1968] VR 481 .… 6.3 — v Hore [2005] NSWCCA 3 .… 11.4 — v Howe [1987] AC 417 .… 11.57, 13.34 — v Hudson [1971] 2 QB 202 .… 13.37 — v Hurley and Murray [1967] VR 526 .… 13.34, 13.36 — v Hutty [1953] VLR 338 .… 3.5 — v Iby [2005] NSWCCA 178 .… 3.5 — v IL [2016] NSWCCA 51 .… 4.33 — v Ireland; R v Burstow [1997] 4 All ER 225 .… 7.13, 7.21, 7.50 — v Irwin (2006) 94 SASR 480 .… 11.82 — v Jensen and Ward [1980] VicRp 24; [1980] VR 194 .… 11.46 — v Jogee; Ruddock [2016] UKPC 7 .… 11.43 — v John Bryan [1857] 169 ER 1002 .… 9.48 — v Jones (1986) 22 Cr App R 42 .… 5.60 — v Jordan (1956) 40 Cr App R 152 .… 3.32 — v K (1993) 118 ALR 596 .… 7.47 — v Kalajzich and Orrock (1989) 39 A Crim R 415 .… 11.76 — v Kastratovic (1985) 42 SASR 59; 19 A Crim R 28 .… 9.59, 13.18 — v Katarzynski [2002] NSWSC 613 .… 13.30, 13.32, 13.44 — v Kawicki (1995) 82 A Crim R 191 .… 11.59 — v Keane (1997) 95 A Crim R 593 .… 11.31 — v Keech (2002) 5 VR 312 .… 1.8 — v Kemp [1957] 1 QB 399 .… 12.7, 12.10, 12.15

— v Kennedy [1923] SASR 183 .… 13.18 — v Kenney [1983] 2 VR 470 .… 5.18 — v King (1978) 19 SASR 118 .… 9.76 — v — (2003) 59 NSWLR 472; [2003] NSWCCA 399 .… 2.35, 3.8, 4.39 — v Kingston [1994] 3 All ER 353 .… 13.5 — v Kitchener (1993) 29 NSWLR 696 .… 8.28 — v Konidaris [2014] VSC 89 .… 12.9 — v Kumar [2002] 5 VR 193 .… 5.10, 5.25, 5.26 — v L (1991) 15 Fam LR 122 .… 8.2 — v Langham (1984) 36 SASR 48; 12 A Crim R 391 .… 9.31, 9.72 — v Lapier (1784) 168 ER 263; [1784] Eng R 69 .… 9.3, 9.63, 9.68, 9.78 — v Lardner (unreported, NSWCCA, 10 September 1998) .… 7.50 — v Lavender (2005) 222 CLR 67 .… 6.10, 6.13, 6.18 — v Laverty [1970] 3 All ER 432 .… 10.44 — v Leach [2002] SASC 321 .… 1.20 — v Lenard (1992) 57 SASR 164 .… 10.62 — v Levy [1912] 1 KB 158 .… 11.59 — v Leonboyer [2001] VSCA 149 .… 5.10, 5.25 — v Lindsay (2004) 119 SASR 320 .… 5.31 — v Lipman [1970] 1 QB 152 .… 13.13 — v Lloyd [1967] 1 QB 175 .… 5.61 — v Lopatta (1983) 35 SASR 101; 10 A Crim R 447 .… 9.28, 9.29, 13.18 — v Loughnan [1981] VR 443 .… 13.43 — v Love (1989) 17 NSWLR 608; 44 A Crim R 416 .… 9.31, 9.32, 9.78, 13.18 — v Lovell (1881) 8 QBD 185 .… 9.13 — v Lowe (1850) 175 ER 489 .… 6.15 — v — [1973] 1 QB 702 .… 6.3 — v Lowery and King (No 2) [1972] VR 560 .… 11.8, 11.45

— v Lun and Welsh (1932) 32 SR (NSW) 363 .… 11.20 — v M (1977) 16 SASR 589 .… 2.3 — v Macaskill [2003] SASC 61 .… 6.21 — v McCarthy and Ryan (1993) 71 A Crim R 395 .… 11.28 — v McConnell [1977] 1 NSWLR 714 .… 11.57, 13.35 — v MacDonald [1983] 1 NSWLR 729 .… 9.4, 9.37, 9.38, 9.39 — v McDonald [1904] St R Qd 151 .… 11.2 — v — [2015] SASCFC 99 .… 4.9 — v McNamara [1954] VLR 291 .… 7.2 — v — [1963] VR 32 .… 5.4 — v — [1965] VR 372 .… 9.65 — v Mai (1991) 26 NSWLR 371 .… 11.82 — v Malcherek; R v Steel [1981] 2 All ER 422 .… 3.29 — v Martin (1881) 8 QBD 54 .… 4.5, 7.59 — v — (1984) 58 ALJR 217 .… 13.3 — v — (No 1) [2005] VSC 518 .… 12.22, 12.28, 12.31 — v Matthews (1873) 12 Cox CC 489 .… 9.38 — v Maurangi (2000) 80 SASR 295 .… 4.21, 4.26 — v Mazzara [2007] NSWCD 102 .… 9.72 — v Medland (1851) 5 Cox CC 292 .… 9.22 — v Meech [1974] QB 549 …. 10.10, 10.11 — v Meyrick (1929) 21 Cr App R 94 .… 11.70, 11.76 — v Middleton (1873) LR 2 CCR 38; 12 Cox CC 417 .… 9.16, 9.17, 9.18 — v Miller [1951] VLR 346 .… 4.3 — v Mitchell [1983] QB 741 .… 4.39, 6.4 — v Mobilio [1991] 1 VR 339 .… 8.13 — v Moffatt (2000) 112 A Crim R 201 .… 3.25 — v Moloney [1985] AC 905 .… 2.27, 4.4, 4.41

— v Morhall [1996] 1 AC 90 .… 5.39 — v Morris [1984] AC 320 .… 10.13, 10.20 — v Newman [1948] VLR 61 .… 5.46 — v NJA [2002] SASC 113 .… 4.21 — v N-T and C [2013] SASC 200 .… 6.22 — v Nundah (1916) 16 SR (NSW) 482; 33 WN (NSW) 196 .… 9.29 — v O’Brien (1955) 110 CCC 1 .… 11.73 — v O’Connor (1980) 146 CLR 64 .… 12.24, 12.31, 13.1, 13.3, 13.4, 13.5, 13.9, 13.15 — v O’Neill [1982] VR 150 .… 5.39 — v Page [1933] VLR 351 .… 11.81 — v Pagett (1983) 76 Cr App Rep 279 .… 3.28 — v Palazolf (1986) 43 SASR 99 .… 13.36 — v Papadimitropoulos (1957) 98 CLR 249; [1958] ALR 21 .… 8.3, 8.12, 8.15 — v Parsons [2000] 1 VR 161 .… 5.10, 5.26 — v Patton (1998) 1 VR 7 .… 7.1, 7.65, 13.44 — v Perks (1986) 41 SASR 335 .… 4.8, 4.30, 4.45, 5.47, 6.22, 7.51 — v Perry (1845) 174 ER 1008 .… 9.4 — v Phan (2001) 53 NSWLR 480 .… 11.30, 11.44 — v Phetheon (1840) Eng R 879 .… 9.22 — v Pollock [1967] 2 QB 195 .… 10.52 — v Porter (1933) 55 CLR 182 .… 1.20, 12.2, 12.8, 12.15, 12.17 — v Potisk (1973) 6 SASR 389 .… 9.4, 9.17, 9.18, 9.19, 9.78, 10.15, 10.23 — v Preddy [1996] AC 815 .… 10.48 — v Presley, Miller and Smith (2015) 122 SASR 476 .… 11.44 — v Quartly (1986) 11 NSWLR 332 .… 5.21, 5.50 — v Quick [1973] 1 QB 910 .… 12.11, 12.24, 12.29 — v R (1981) 28 SASR 321 .… 5.13, 5.15, 5.17, 5.21, 5.22, 5.41, 5.42 — v R (1995) 63 SASR 417 .… 11.41, 11.82

— v Radford (1985) 42 SASR 266 .… 12.30, 12.31 — v Reane (1794) 168 ER 410 .… 9.67 — v Reeves (1992) 29 NSWLR 109 .… 1.17 — v Reynhoudt (1962) 107 CLR 381 .… 7.47 — v Rich [1998] 4 VR 44 .… 7.64 — v Richards and Gregory [1998] 2 VR 1 .… 6.12 — v Riley (1853) 169 ER 674; Eng R 23 .… 9.19, 9.35, 9.39, 9.78 — v Robinson [1968] 1 SA 666 .… 11.42 — v Rodley [1913] 3 KB 468 .… 9.78 — v Rogerson (1992) 174 CLR 268 .… 11.69, 11.70 — v Rook [1993] 1 All ER 955 .… 11.53 — v Runjanjic and Kontinnen (1991) 56 SASR 114 .… 13.39 — v Russell [1933] VLR 59 .… 3.22, 6.15, 11.24, 11.28, 11.29, 11.30 — v Ryan and Walker [1966] VR 553 .… 4.2, 4.27 — v Salvo [1980] VR 401 .… 10.34, 10.37, 10.47, 10.54 — v Sancar [1999] NSWCCA 284 .… 4.4 — v Sanders (1991) 57 SASR 102 .… 9.59 — v Saragozza [1984] VR 187 .… 8.27, 8.29 — v Schaeffer (2005) 13 VR 337 .… 4.7 — v Schloss and Maguire (1897) 8 QLJ 21 .… 7.33 — v Schonewille (unreported, VSC, BC9707563, 18 December 1997) .… 4.7 — v Scriva [1951] VLR 290 .… 5.20 — v Segal (1926) 45 CCC 32 .… 11.73 — v Sharpe (1856) 169 ER 959; Dears & B 160 .… 9.4 — v Shields [1981] VR 717 .… 7.10, 7.64 — v Smith (1982) 7 A Crim R 437 .… 10.45 — v — (1827) 168 ER 1232 .… 9.76 — v — [1959] 2 QB 35 .… 3.30, 4.45

— v — [2001] 1 AC 146 .… 5.5, 5.25 — v Spartels [1953] VLR 194 .… 5.46 — v Stanley (unreported, NSWSC, 29 March 1995, Levine J) .… 7.40 — v Stein (2007) 18 VR 376 .… 7.38 — v Stone [1981] VR 737 .… 11.63, 11.66 — v Stone and Dobinson [1977] QB 354 .… 2.39, 6.15, 6.16, 6.22 — v Styman; R v Taber [2004] NSWCCA 245 .… 6.15, 6.20, 6.22 — v Sullivan [1984] 1 AC 156 .… 12.13 — v Taber (2002) 56 NSWLR 443 .… 3.12, 4.43 — v Taktak (1988) 14 NSWLR 226 .… 3.12, 6.13, 6.15, 6.18, 6.20, 6.22 — v Tangye (1997) 92 A Crim R 545 .… 11.9 — v Taplin (1780) 2 East PC 712 .… 9.67 — v Telford [2004] SASC 248 .… 12.21 — v Terry [1964] VR 248 .… 5.20 — v Tevendale [1955] VLR 95 .… 11.59, 11.63, 11.64 — v Thomas (1953) 37 Cr App R 169 .… 9.3 — v Thompson (1988) 36 A Crim R 223 .… 5.53 — v Thorpe [1998] VSCA 13 .… 5.23 — v — (No 2) [1999] 2 VR 719 .… 5.6, 5.31, 5.37 — v Thurbon (1849) 1 Den 387 .… 9.35, 9.38 — v Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438 .… 11.13, 11.46 — v Tolson (1889) 23 QBD 168; [1886–90] All ER Rep 26 .… 13.18, 13.19 — v Tuncay [1998] 2 VR 19 .… 5.25 — v Turner [1962] VR 30 .… 6.3 — v Turvey [1946] 2 All ER 60 .… 9.12 — v Trotter (1993) 68 A Crim R 536 .… 5.62 — v Tsigos [1964–65] NSWR 1607 .… 5.25 — v TY (2006) 12 VR 557 .… 4.17, 4.45

— v Tyrell [1894] 1 QB 710 .… 11.31 — v Vasic (2005) 11 VR 380 .… 9.55, 10.41 — v Venna [1976] QB 421 .… 2.27, 7.2, 7.3, 7.7, 7.65 — v Voukelatos [1990] VR 1 .… 5.19 — v Wacker [2003] QB 1207; [2003] 2 WLR 374 .… 1.9, 6.15 — v Waite [1892] 2 QB 600 .… 8.2 — v Wakeman (1912) 8 Cr App Rep 18 .… 9.43 — v Walker (1994) 35 NSWLR 384 .… 2.49 — v Walsh (1990) 52 A Crim R 80 .… 9.55 — v Ward (1938) 38 SR (NSW) 308 .… 9.42 — v Warner (1970) 55 Cr App 93 .… 10.29 — v Waterfall [1970] 1 QB 148 .… 10.41 — v Welker [1962] VR 244 .… 9.76 — v Wellgreen [2014] SADC 10 .… 11.30 — v Wells (1981) 28 SASR 63 .… 5.45 — v White (1987) 31 A Crim R 194 .… 13.42 — v — (1904) 4 SR (NSW) 379; 21 WN (NSW) 104 .… 9.4 — v Wilkinson (2008) 101 SASR 21 .… 7.58 — v Wills [1983] 2 VR 201 .… 6.5 — v Wilson [1997] QB 47 .… 7.38 — v — [2005] VSCA 78 .… 7.64 — v Windsor [1982] VR 89 .… 4.11 — v Wogandt (1983) 33 A Crim R 131 .… 12.24 — v Wood (1911) 7 Cr App R 56 .… 9.78 — v Woollin [1999] 1 AC 82; [1998] 4 All ER 103 .… 4.41 — v XHR [2012] NSWCCA 247 .… 8.24 — v Yasso [2004] VSCA 127 .… 5.23, 5.26 — v Young (1947) 48 SR (NSW) 46 .… 9.4

— v Young and Phipps (unreported, NSWCCA, 31 October 1995) .… 11.64 — v Zhen Fang (No 3) [2017] NSWCS 28 .… 12.31 Reeves v R (2013) 304 ALR 251 .… 7.5, 7.35 Reynolds v R [2015] NSWCCA 29 .… 3.25 Rhodes v R (1984) 14 A Crim R 124 .… 4.8, 6.22 Roffel v R [1985] VR 511 .… 10.1 , 10.18, 10.19 Rogers v Arnott [1960] 2 QB 244; [1960] 2 All ER 417 .… 9.43 Rose v Matt [1951] 1 KB 810 .… 9.10 Royall v R (1991) 172 CLR 378; 100 ALR 669 .… 3.19, 3.21, 3.23, 3.25, 3.36, 3.37, 3.38, 3.39, 4.21, 4.31, 4.40, 4.45, 6.22, 7.26, 7.59, 11.82 Rozsa v Samuels [1969] SASR 205 .… 7.25, 7.65 RP v R [2016] HCA 53 .… 2.5 Russell v Smith [1957] 2 All ER 796; [1958] 1 QB 27 .… 9.4, 9.18 Ryan v Kuhl [1979] VR 315 .… 7.14 — v R (1967) 121 CLR 205; [1967] ALR 577 .… 2.16, 2.18, 3.13, 3.14, 3.15, 3.16, 3.18, 4.21, 4.26, 4.32, 4.45, 6.22, 12.26 S Sharah v R (1992) 30 NSWLR 292 .… 11.40 Sharp v McCormick [1986] VR 869 .… 10.27, 10.29, 10.62 Shaw v R [1981] 2 NSWLR 648 .… 13.1 Shultz v Pettit (1980) 25 SASR 427 .… 11.20 Siracusa v R (1990) 90 Cr App R 340 .… 11.72 Smith v Desmond [1965] AC 960 .… 9.69, 9.70, 9.71, 11.82 Smyth v R (1957) 98 CLR 163 .… 4.7 Sodeman v R (1936) 55 CLR 192 .… 12.20 Solomon v R [1980] 1 NSWLR 321 .… 4.31 Stapleton v R (1952) 86 CLR 358 .… 12.17 State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721 .… 2.47

Stein v Henshall [1976] VR 612 .… 10.13 Stiles v R (1990) 50 A Crim R 13 .… 12.4 Stingel v R (1990) 171 CLR 312 .… 5.6, 5.8, 5.29, 5.30, 5.31, 5.32, 5.33, 5.34, 5.36, 5.51 Stokes and Difford (1990) 51 A Crim R 25 .… 9.57, 11.35 Stuart v R (1974) 134 CLR 426 .… 1.5 T Taber v R (2007) 170 A Crim R 427; [2007] NSWCCA 116 .… 4.43, 4.45 Taiapa v R (2009) 240 CLR 95 .… 13.38 Taikato v R (1996) 186 CLR 454 .… 13.26 Taktak v R (1988) 34 A Crim R 334 .… 4.43 Thabo Meli v R [1954] 1 All ER 373 .… 2.51, 4.45, 6.22 Thambiah v R [1966] AC 37 .… 11.27 Thomas Sam v R [2011] NSWCCA 36 .… 6.15 Toonen v Australia Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 .… 1.2 Tout v R (1987) 11 NSWLR 251 .… 7.13 Tuberville v Savage (1669) 86 ER 684 .… 7.24 Tumanako v R (1992) 64 A Crim R 149 .… 5.62 U Ugle v R (2002) 211 CLR 171; 189 ALR 22 .… 2.16, 3.15, 3.17, 3.18 V Vallance v R (1961) 108 CLR 56 .… 2.27, 7.52 Van den Hoek v R (1986) 161 CLR 158 .… 5.6, 5.40 Varley v R (1976) 12 ALR 347 .… 11.41 Von Lieven v Stewart (1990) 21 NSWLR 52 .… 11.34 W W (a child) v Woodrow [1988] VR 358 .… 10.14, 10.31 Walden v Hensler (1987) 163 CLR 561 .… 13.18

Wallis v Lane [1964] VR 293 .… 9.3 Westaway v R (1991) 52 A Crim R 336 .… 7.63 White v Ridley (1978) 140 CLR 342; [1978] HCA 38 .… 11.14, 11.46, 11.51 Willgoss v R (1960) 105 CLR 295 .… 12.19 Williams v Phillips (1957) 41 Cr App R 5 .… 10.7 Wilson v R (1992) 174 CLR 313 .… 6.2, 6.5, 6.8, 6.9, 6.19, 6.20 Woolmington v DPP [1935] AC 462; [1935] All ER Rep 1 .… 1.18, 1.24, 4.45, 5.7, 5.55, 6.22, 7.65, 9.2, 9.78, 10.62, 11.82, 12.2, 13.44 Z Zanker v Vartzokas (1988) 34 A Crim R 11 .… 7.18, 7.22, 7.27, 7.53, 7.55, 7.65 Zecevic v DPP (Vic) (1987) 162 CLR 645 .… 5.4, 13.21, 13.24, 13.25, 13.31, 13.33, 13.44

Table of Statutes References are to paragraph numbers Commonwealth Commonwealth Constitution .… 1.2 s 109 .… 1.3 Crimes Act 1914 .… 1.2 Criminal Code Act 1995 .… 1.2, 6.1 Customs Act 1901 .… 1.2 s 233B(1)(b) .… 2.41 s 233B(1)(c) .… 2.41 Human Rights (Sexual Conduct) Act 1994 .… 1.2, 7.38 Model Criminal Code .… 2.15, 2.28, 7.57, 11.54 s 202.2 .… 2.15 s 203.1 .… 2.28 New South Wales Children (Criminal Proceedings) Act 1987 s 5 .… 2.4 Crimes Act 1900 .… 1.4 Pt 1A .… 1.8 Div 8A .… 7.46 s 4 .… 3.8, 4.30, 4.39, 7.51, 9.54 s 4(1) .… 9.77 s 4B .… 9.34, 9.58 s 5 .… 4.29 s 10C(2) .… 1.8 s 17A .… 3.11 s 18 .… 1.5, 3.2, 4.28, 4.29, 4.31, 4.32, 4.38, 4.42, 4.43, 4.45, 6.22

s 18(1)(a) .… 4.32, 4.33 s 18(1)(b) .… 3.2, 5.1 s 18(2)(a) .… 4.29 s 20 .… 3.5 s 23 .… 5.3, 5.7, 5.8, 5.48, 5.49, 5.50 s 23(1) .… 5.48 s 23(2) .… 5.48, 5.50 s 23(2)(a) .… 5.17, 5.18, 5.20, 5.49 s 23(2)(b) .… 5.11, 5.14, 5.16, 5.28, 5.49 s 23(2)(d) .… 5.51 s 23(3) .… 5.48 s 23(3)(b) .… 5.24, 5.28 s 23(4) .… 5.6, 5.14, 5.41, 5.49 s 23(5) .… 5.39 s 23(6) .… 5.43, 5.52 s 23(7) .… 5.7, 5.48 s 23A .… 1.21, 5.3, 5.53, 5.56, 5.60 s 23A(1)(b) .… 5.56, 5.61 s 23A(3) .… 5.60 s 23A(4) .… 5.55 s 23A(8) .… 5.58, 5.59 s 25A .… 6.1, 6.9 s 25A(3) .… 6.9 s 25A(6)(b) .… 6.9 s 26 .… 11.69 s 27 .… 7.45 s 33 .… 3.8, 4.33, 7.35, 7.56 s 35 .… 7.56

s 35(b) .… 7.40 s 52A .… 2.18, 2.44 s 54 .… 2.38, 7.10, 7.56 s 58 .… 7.45, 7.46 s 59 .… 7.53, 7.55 s 60 .… 7.47 s 60(4) .… 7.47 s 60C .… 7.21 s 61 .… 2.9, 7.1, 7.65, 13.44 s 61H .… 8.1, 8.3 s 61H(1)(a) .… 8.3, 8.6 s 61H(1)(d) .… 8.4 s 61H(1A) .… 8.19 s 61H(4)–(6) .… 8.8 s 61HA(2) .… 8.8 s 61HA(3)(a) .… 8.23, 8.24 s 61HA(3)(b) .… 8.23, 8.26, 8.28 s 61HA(3)(b)–(c) .… 8.26 s 61HA(3)(c) .… 8.23, 8.28, 8.29, 8.31 s 61HA(3)(d) .… 8.28 s 61HA(4) .… 8.20 s 61HA(4)–(6) .… 8.10 s 61HA(4)(a) .… 8.19 s 61HA(4)(b) .… 8.9 s 61HA(4)(c) .… 8.15 s 61HA(5) .… 8.20, 8.25 s 61HA(5)(a) .… 8.12 s 61HA(5)(b) .… 8.12

s 61HA(5)(c) .… 8.13 s 61HA(6) .… 8.20 s 61HA(6)(a) .… 8.19 s 61HA(7) .… 8.15 s 61HA(8) .… 8.10 s 61I .… 8.1, 8.8, 8.9, 8.93 s 61L .… 8.33 s 61N .… 8.33 s 61R(2)(c) .… 8.15 s 66A .… 8.17 s 66C .… 8.17 s 66C(3) .… 8.17 s 80A .… 8.3 ss 82–83 .… 3.9 ss 89–90A .… 7.48 s 94 .… 11.82 ss 94–98 .… 7.48 s 94AA .… 9.7, 9.11 s 98 .… 4.33 ss 109–113 .… 9.75 s 110 .… 4.33 s 117 .… 9.2, 9.78 s 118 .… 9.22, 9.23, 9.25, 9.33, 9.35, 9.39, 9.60, 9.78 s 124 .… 9.18 s 125 .… 9.40 ss 126–32 .… 9.4 s 134 .… 9.4 s 155 .… 9.8

s 156 .… 9.8 s 161 .… 9.4 s 178A .… 9.46 s 178BA .… 9.46 s 179 .… 9.46, 9.48 s 180 .… 9.46 s 192B .… 9.48, 9.57 s 192B(1) .… 9.47 s 192B(1)(b) .… 9.50 s 192C .… 9.53 s 192C(2) .… 9.60 s 192C(3) .… 9.54 s 192C(4) .… 9.60 s 192D(2) .… 9.56 s 192E .… 9.14, 9.46, 9.47, 9.54, 9.59 s 269C .… 12.31 s 316 .… 11.61 s 344A .… 11.78 s 345 .… 11.17, 11.19 s 346 .… 11.17, 11.19 s 347 .… 11.2 s 351 .… 11.17, 11.19 s 418 .… 13.30, 13.44 s 418(2) .… 13.31 s 419 .… 13.22, 13.30 s 421 .… 5.4, 13.33 s 428A .… 13.11 s 428B .… 13.13

s 428C .… 13.13 s 428C(2) .… 13.14 s 428D(a) .… 13.13 s 428D(b) .… 13.13 s 428E .… 13.13 s 428F .… 13.32 s 428G .… 12.31 s 428G(1) .… 13.12 s 428G(2) .… 13.12 s 505 .… 9.4 s 506 .… 9.4 s 512 .… 9.4 s 527C .… 9.39 Crimes Amendment (Provocation) Act 2014 .… 5.7 Crimes (Domestic and Personal Violence) Act 2007 .… 7.21 Criminal Legislation Amendment Act 1996 .… 13.10 Criminal Procedure Act 1986 s 294 .… 8.21 s 294AA .… 8.21 Criminal Procedure Amendment (Indictable Offences) Act 1996 Ch 5 .… 1.14 Drug Misuse and Trafficking Act 1985 .… 4.34 s 33(3)(a) .… 4.33 Electricity Supply Act 1995 s 64 .… 9.4 Evidence Act 1995 ss 165A–165B .… 8.21 Human Tissue Act 1983

s 33 .… 3.10 Mental Health Act 2007 s 4 .… 12.9 Mental Health (Criminal Procedure) Act 1990 s 38 .… 12.6 s 39(2) .… 12.6 Mental Health (Forensic Provisions) Act 1990 .… 12.2 South Australia Criminal Law Consolidation Act 1935 .… 1.4, 10.1 Pt 1A .… 1.8 Pt 5 .… 10.1, 13.8 Pt 8 .… 13.7 Pt 8A .… 12.6 Div 7 .… 7.1 Div 7A .… 7.1, 7.58, 7.59 s 5 .… 8.3 s 5(1) .… 8.3, 8.6 s 5C .… 1.8 s 5C(2) .… 1.8 s 5C(2)(d) .… 1.8 s 5G .… 1.8 s 11 .… 2.9, 4.2, 4.45, 6.22, 13.8 s 12 .… 11.69 s 12A .… 4.2, 4.20, 4.21 s 13 .… 13.8 s 14 .… 6.10, 6.21, 6.22 s 14(1) .… 6.22 s 14(2) .… 6.22

s 15 .… 7.65, 13.22, 13.28, 13.29, 13.44 s 15(1) .… 13.28, 13.44 s 15(1)(a) .… 13.28 s 15(1)(b) .… 13.28 s 15(2) .… 5.4, 13.33 s 15A .… 13.28 s 15C .… 13.28 s 17 .… 7.65 s 18 .… 3.11, 7.65 s 19A .… 2.38 s 19AA .… 7.21 s 20 .… 7.1, 7.4, 7.6, 7.9, 7.15, 7.19, 7.32, 7.65, 13.8, 13.44 s 20(1) .… 7.42 s 20(1)(a)–(b) .… 7.30 s 20(1)(c) .… 7.4, 7.12, 7.15, 7.19, 7.65 s 20(1)(c)(i) .… 7.65 s 20(1)(c)(ii) .… 7.17, 7.65 s 20(1)(d) .… 7.42 s 20(1)(e) .… 7.42 s 20(2)(a) .… 7.34, 7.65 s 20(2)(b) .… 7.65 s 20(3) .… 7.65 s 20(4) .… 7.26, 7.65 s 21 .… 7.58, 7.59, 7.60, 7.65 s 22(1) .… 7.41 s 22(3) .… 7.41 s 22(4) .… 7.6, 7.41 s 22(5) .… 7.58

s 23 .… 7.61 s 23(1) .… 7.61 s 24 .… 7.61 s 29(a) .… 7.46 s 46 .… 8.3 s 46(2) .… 8.8 s 46(3) .… 8.8, 8.10 s 46(3)(a) .… 8.15 s 46(3)(a)(ii) .… 8.16 s 46(3)(b) .… 8.16 s 46(3)(c) .… 8.9 s 46(3)(d) .… 8.19 s 46(3)(e) .… 8.19 s 46(3)(g) .… 8.12 s 46(3)(h) .… 8.13 s 47 .… 8.26 s 47(a) .… 8.29 s 47(b) .… 8.29 s 48 .… 8.1, 8.3, 8.8, 8.9, 8.24, 13.8 s 48(1) .… 8.23, 8.26 s 48(1)(b) .… 8.4 s 48(2) .… 8.1, 8.7 s 49 .… 8.17 s 56 .… 8.33 s 58 .… 8.33 s 59 .… 7.48 s 81 .… 3.9 s 82 .… 3.9

s 82A .… 3.9 s 130 .… 10.3, 10.4, 10.5, 10.7, 10.8, 10.9, 10.10, 10.20, 10.39, 10.43, 10.62 s 131 .… 10.36 s 131(1) .… 10.36 s 131(4) .… 10.34, 10.36 s 131(5) .… 10.34, 10.36 s 131(6) .… 10.36, 10.62 s 132 .… 10.21 s 132(2) .… 10.21, 10.34 s 132(3) .… 10.20, 10.21, 10.22, 10.39 s 134 .… 10.5, 10.62, 11.82 s 134(1) .… 10.2 s 134(1)(c)(ii) .… 10.26 s 134(2) .… 10.25 s 134(2)(a) .… 10.29, 10.31 s 134(2)(b) .… 10.28, 10.29, 10.30 s 134(4) .… 10.36 s 135 .… 10.4 s 137 .… 7.48, 10.49, 10.51, 10.52, 10.54, 11.82, 13.8 s 137(1) .… 10.53 s 137(1)(a)(ii) .… 10.49 s 139 .… 10.20, 10.39, 10.41, 10.42, 10.43 ss 140–142 .… 10.42 s 168 .… 10.62 s 168(1) .… 10.56, 10.59 s 241 .… 11.2, 11.61 s 241(1) .… 11.59, 11.60, 11.67 s 241(2)(a) .… 11.66

s 267 .… 11.17, 11.18, 11.19, 11.20, 11.23 s 267A .… 13.2, 13.7 s 268 .… 13.2, 13.4 ss 268–269 .… 13.2 s 268(2) .… 13.8 s 268(3) .… 13.8 s 269 .… 13.1 s 269A .… 12.9, 12.21 s 269C .… 12.2, 12.6 s 269C(b) .… 12.16 s 269C(c) .… 12.21 s 269D .… 12.2 s 269D .… 1.20 s 269E .… 12.5 s 269E(1) .… 12.5 s 269E(2) .… 12.5 s 269F .… 12.5 s 269FA(3) .… 12.5 s 269FB .… 12.5 s 269G .… 12.5 s 269GA .… 12.5 s 269GB .… 12.5 s 269I .… 1.20, 12.2 s 269O .… 12.6 s 270A .… 11.78, 13.8 s 296C(a) .… 12.15 Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994 s 12A .… 4.20

Criminal Law (Sentencing) Act 1988 s 19 .… 1.12 Death (Definition) Act 1983 s 2 .… 3.10 Evidence Act 1929 ss 34L–34N .… 8.21 s 34N .… 8.15 Summary Procedure Act 1921 s 5 .… 1.14 Young Offenders Act 1993 s 5 .… 2.4 Tasmania Criminal Code (Amendment) Act 1997 .… 1.3 Victoria Abortion Law Reform Act 2008 .… 3.9 s 4 .… 3.9 s 5 .… 3.9 Children, Youth and Families Act 2005 s 344 .… 2.4 Crimes Act 1958 .… 1.4, 10.18 s 3 .… 2.9, 4.2, 4.45, 6.22 s 3A .… 4.2, 4.26 s 3A(1) .… 4.22 s 3A(2) .… 4.27 s 4A .… 6.6 s 6B .… 5.3 s 9 .… 1.8 s 9AA .… 3.11

s 9AI .… 11.57 s 9AG .… 13.40 s 15 .… 3.8, 7.63, 7.64, 7.65 ss 15–24 .… 7.1 s 15A .… 7.63 s 15B .… 7.63 s 16 .… 2.24, 7.63 s 17 .… 2.24, 7.63 s 18 .… 7.63, 7.65 s 20 .… 7.63, 7.65 s 21 .… 7.63 s 21A .… 1.8, 7.21 s 22 .… 7.64 ss 22-23 .… 7.64 s 24 .… 2.24, 2.38, 7.10, 7.64 ss 25–26 .… 7.64 ss 27–28 .… 7.64 s 29 .… 4.23 ss 29–30 .… 7.64 s 31 .… 7.64 s 31(1) .… 7.45 s 31(1)(b) .… 7.46 s 31(1)(c) .… 7.45 s 34(2) .… 8.12 s 34C .… 8.8, 8.10, 8.18 s 34C(1) .… 8.8 s 34C(2) .… 8.10 s 34C(2)(a)–(b) .… 8.16

s 34C(2)(a)–(c) .… 8.15 s 34C(2)(k) .… 8.18 s 34C(c) .… 8.16 s 34C(d) .… 8.9 s 34C(e) .… 8.19 s 34C(h) .… 8.12 s 34C(i) .… 8.13 s 34C(l) .… 8.4 s 35 .… 8.1 s 35(1) .… 8.6 s 36 .… 8.8, 8.18 s 36(2) .… 8.8 s 37A(a) .… 8.8 s 37C .… 8.6 s 37C(d)–(f) .… 8.4 s 37D .… 8.3 s 37G .… 8.31 s 37G(2) .… 8.18, 8.31 s 38 .… 8.1, 8.8, 11.79 s 38(1)(c) .… 8.23, 11.79 s 38(2) .… 8.9 s 38(3) .… 8.6 s 38C(a) .… 8.30 s 38C(c) .… 8.31 s 39 .… 7.1, 11.79, 8.1, 8.3, 8.7 s 39(1)(c) .… 11.79 s 40 .… 8.1, 8.33, 11.79 s 40(1) .… 8.33

s 40(1)(d) .… 11.79 s 41 .… 11.79 s 41(1)(d) .… 11.79 s 45 .… 8.17 s 45(4) .… 8.17 s 45(4)(b) .… 8.17 ss 50–52 .… 8.19 ss 55–56 .… 7.48 s 57(2) .… 8.12, 8.14 s 63A .… 4.23 s 65 .… 3.9 s 71 .… 10.62, 11.82 s 71(1) .… 10.3, 10.4 s 71(2) .… 10.5, 10.9 s 72 .… 10.13, 10.29, 10.62, 11.82 s 72(1) .… 10.2, 10.5, 10.7, 10.29 s 72(2) .… 1.5, 10.2 s 73(2) .… 10.35, 10.37, 10.47 s 73(2)(a) .… 10.34, 10.35, 10.54, 10.62 s 73(2)(b) .… 10.33, 10.34 s 73(2)(c) .… 10.34 s 73(3) .… 10.47 s 73(4) .… 10.12, 10.13, 10.62 s 73(6) .… 10.4 s 73(7) .… 10.4 s 73(8) .… 10.9 s 73(9) .… 10.10, 10.11 s 73(10) .… 10.15, 10.16

s 73(12) .… 10.25, 10.29, 10.62 s 73(13) .… 10.30, 10.31 s 73(14) .… 10.31 s 75 .… 4.23, 4.26, 7.48, 10.52, 11.82 s 75(1) .… 10.49, 10.51, 10.53, 11.82 s 75A .… 4.26 s 76 .… 7.1, 10.62 s 76(1) .… 10.56, 10.62 s 76(2) .… 10.58 s 77 .… 4.23 s 77(1) .… 4.26 s 80A .… 1.8 s 80A(2) .… 1.8 s 81 .… 10.16, 10.47 s 81(1) .… 10.39 s 81(2) .… 10.40 s 81(4) .… 10.43 s 82 .… 10.41, 10.43 s 321 .… 11.69, 11.77 s 321(3) .… 11.77 ss 321A–321F .… 11.69, 11.77 s 321M .… 11.78 s 321N .… 11.78, 11.79, 11.82 s 321N(1) .… 11.80 s 321S .… 11.78 ss 322J–322M .… 13.31 s 322K .… 13.31, 13.44 s 322K(2) .… 13.44

s 322O .… 13.35, 13.40 s 322O(2)(a) .… 13.40 s 322O(2)(b) .… 13.40 s 322O(3) .… 13.40 s 322R .… 13.44 s 322T .… 13.2, 13.9, 13.32 s 323 .… 11.23, 11.46, 11.82 ss 323–324C .… 11.6 s 323(1)(a) .… 11.47 s 323(1)(b) .… 11.47 s 323(1)(c) .… 11.47 s 323(1)(d) .… 11.82 s 323(2) .… 11.49 s 323(3)(a) .… 11.47 s 323(3)(b) .… 11.47 s 324 .… 11.46, 11.82 s 324(1) .… 11.47 s 324(2) .… 11.55 s 324 (3) .… 11.31 s 324B .… 11.50 s 324C .… 11.46, 11.55 s 325 .… 11.2, 11.19, 11.20, 11.46 s 325(1) .… 11.59, 11.60, 11.66, 11.67 s 326 .… 11.61 Crimes Amendment (Abolition of Defensive Homicide) Act 2014 .… 11.6 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 .… 12.6 s 20(1) .… 12.2, 12.9 s 20(1)(a) .… 12.15

s 20(1)(b) .… 12.16, 12.17 s 20(2) .… 12.6 s 20C(1) .… 12.31 s 21 .… 1.20, 12.2, 12.3 s 23(a) .… 12.17 s 25(1) .… 12.2 s 26(2)(b) .… 12.6 Crimes (Theft) Act 1973 .… 10.1 Criminal Procedure Act 2009 Pt 3.1 .… 1.13 s 28 .… 1.13 s 29 .… 1.13 Sch 2 .… 1.13 Human Tissue Act 1982 s 41 .… 3.10 Jury Directions Act 2015 Pt 5 .… 8.21 s 46(3)(c) .… 8.15 Western Australia Criminal Code s 371 .… 9.18 Overseas (alphabetical order) United Kingdom Coroners and Justice Act 2009 .… 5.27 Larceny Act 1916 s 1(1) .… 9.2, 9.78 Theft Act 1968 .… 10.1, 10.13 International

International Covenant on Civil and Political Rights (ICCPR) .… 1.2 Art 17 .… 7.38

Contents Acknowledgements Table of Cases Table of Statutes CHAPTER 1: INTRODUCTION Structure of criminal law in Australia Classification of offences The standard and burden of proof CHAPTER 2: ELEMENTS OF CRIMINAL LIABILITY Introduction Legal capacity Actus reus and mens rea Actus reus Mens rea Requirement of temporal coincidence CHAPTER 3: EXTERNAL ELEMENTS OF HOMICIDE Introduction Human being Year and a day rule Act or omission Voluntariness Causation CHAPTER 4: MURDER Introduction Common law murder: South Australia and Victoria Murder: New South Wales Miscellaneous aspects of murder

Temporal coincidence of mens rea and actus reus CHAPTER 5: VOLUNTARY MANSLAUGHTER Introduction Excessive force in self-defence Provocation: New South Wales and South Australia Substantial impairment of the mind: New South Wales CHAPTER 6: INVOLUNTARY MANSLAUGHTER Involuntary manslaughter Unlawful and dangerous act manslaughter Assault causing death: New South Wales and Victoria Manslaughter by criminal negligence Difference between manslaughter by criminal negligence and unlawful and dangerous act manslaughter Criminal liability for neglect where death or serious harm results from an unlawful act: South Australia CHAPTER 7: ASSAULT Introduction Common assault Battery Aggravated assaults in New South Wales, South Australia and Victoria Victorian approach to non-sexual offences against the person Defences to assaults CHAPTER 8: RAPE Introduction Sexual intercourse or sexual penetration Absence of consent Mens rea Aggravated rape Indecent assault

CHAPTER 9: PROPERTY OFFENCES: NEW SOUTH WALES Introduction Larceny Fraud Robbery Burglary CHAPTER 10: PROPERTY OFFENCES: VICTORIA AND SOUTH AUSTRALIA Introduction Theft Obtaining by deception Robbery Burglary CHAPTER 11: EXTENDING CRIMINAL LIABILITY: COMPLICITY, CONSPIRACY AND ATTEMPT Introduction Complicity Conspiracy Attempt CHAPTER 12: DEFENCES: MENTAL IMPAIRMENT AND AUTOMATISM Introduction Mental impairment Automatism CHAPTER 13: DEFENCES: INTOXICATION, MISTAKE OF FACT, SELFDEFENCE, DURESS AND NECESSITY Intoxication Defence of mistake of fact Self-defence Duress Necessity

Index

[page 1]

Chapter 1 Introduction Objectives After reading this chapter you should be familiar with the following: ▶ structure of criminal law in Australia ▶ classification of offences ▶ burden and standards of proof

STRUCTURE OF CRIMINAL LAW IN AUSTRALIA 1.1 There is no one set of criminal laws in Australia. Criminal laws at State and Commonwealth levels operate in parallel with each other.

Commonwealth criminal law 1.2 The Commonwealth can only make laws in relation to those powers given to it under the Constitution, therefore any criminal law made by the Commonwealth has to be justified under a specific power in the Constitution, eg, powers related to external affairs or to trade and commerce. The Federal Government does not have a specific power in the Constitution to make criminal laws for Australia. There is a body of Commonwealth criminal law, including the Commonwealth Crimes Act 1914. However, because the Commonwealth has the power to enact criminal legislation only in relation to specific constitutional areas, Commonwealth criminal law is spread over a number of pieces of legislation. For example, the Commonwealth provisions in relation to the import and export of drugs are found in the Customs Act 1901 (Cth). These provisions are based on the trade and commerce power in the Constitution. There is potential under the external affairs power for greater federal intervention in criminal law, as demonstrated by Toonen v Australia Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994). In that case, Toonen successfully argued that Australia was in breach of its international obligations under the International Covenant on Civil and Political Rights (ICCPR) because of Tasmanian legislation which criminalised

a range of private sexual activity between adult men, and both heterosexual and homosexual anal sex. As a consequence of the United Nations Human Rights Committee’s finding, the Commonwealth Government passed the Human Rights (Sexual Conduct) Act 1994 (Cth), overriding the Tasmanian legislation. [page 2] This case demonstrates the expansive potential for the Commonwealth to legislate on criminal issues through the external affairs power. The Criminal Code Act 1995 (Cth) substantially adopted the recommendations made by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General. This Act was intended to codify general principles of criminal responsibility to be applied when interpreting criminal law. The hope was that this legislation would be enacted in all jurisdictions across Australia to establish a national criminal code. However, this would only happen if all the States enacted it, as the Commonwealth has no specific power under the Constitution to enact criminal law for the States. Currently it seems unlikely that the States will implement the Model Criminal Code. Although the Model Criminal Code recommendations and the Criminal Code Act 1995 (Cth) are not law unless and until enacted by the individual States, the Code will, at times, be referred to in this book when enunciating general criminal law principles.

State criminal law 1.3 The restricted nature of the Commonwealth power to make criminal law has meant that the States are primarily responsible for criminal law. Where there is an inconsistency between Commonwealth and State criminal laws, the Commonwealth law prevails, and the State law is invalid to the extent of the inconsistency. For example, anyone prosecuted under the Tasmanian Criminal Code (as it was prior to 1997) for sexual acts in private between adult men would have been able to argue that the federal law ‘covers the field’ and is directly inconsistent with the State law. Thus, the federal law would prevail under s 109 of the Constitution. In May 1997 the Tasmanian Government enacted the Criminal Code (Amendment) Act 1997, repealing the inconsistent sections of the Tasmanian legislation. As each State enacts its own criminal legislation, this results in different criminal laws of different types in the different States. The major distinction

between State criminal laws is the difference between those based on common law and those based on codified law.

Common law States 1.4 Common law States rely extensively on the common law for criminal law, despite the existence of State criminal legislation. New South Wales (NSW), South Australia (SA) and Victoria (Vic) are recognised as common law jurisdictions. The common law is based on cases decided and administered in courts. It developed in England and was established in Australia at the time the colonies were established: see Mabo v Queensland (No 2) (1992) 175 CLR 1. Thus, the prevailing law in common law States is that originally introduced from England and later modified by the statutes of the State legislatures. While these States are not pure common law States, they are referred to as such because: ◆

they still use the common law as the source of some of their criminal law;

◆

many of their legislated criminal laws reflect the common law; [page 3]

◆

many defences are still established by the common law;

◆

fundamental elements of criminal responsibility are drawn from the common law.

In each common law State, the serious offences have been collected under a single statute: see Crimes Act 1900 (NSW); Criminal Law Consolidation Act 1935 (SA); Crimes Act 1958 (Vic). Unless alternative legislation is specified, sections cited in this book by State will refer to these Acts.

Code States 1.5 Code States have enacted criminal codes which operate to replace the common law. In these States, for an offence or defence to be established it must be in the code. These codes can also alter basic common law principles (such as the concept of mens rea). All criminal offences for the Australian Capital Territory, the Northern Territory, Queensland, Tasmania and Western Australia are collected under their respective codes. Legislation in these code States will not be dealt with in this book. The relationship between the common law and the criminal codes is not

one of complete replacement. For both historical and practical reasons, the codes reflect parts of the common law inherited from England. While it may not be correct to assume that the criminal codes were meant merely to codify the common law, it would be difficult to interpret fully many codified provisions without looking at the common law, as acknowledged in Stuart v R (1974) 134 CLR 426. Due to their different sources of law, decisions in code States will not always be of great value as a source of criminal law to common law States. However, cases in code States can, at times, be relevant to common law cases. Caution must be exercised when referring to code State decisions to ensure that the relevant law is comparable. Student tip The structure of criminal law in Australia has implications for students. In common law States it is advisable to refer to the statute first for a statement of law, and then to cases for definitions or applications of the law: see, eg, s 18 (NSW); s 72(2) (Vic). Some criminal offences and many criminal defences exist only at common law: see, eg, unlawful and dangerous act manslaughter. For those offences and defences, it is necessary to refer to cases directly for statements of law and their application. Additionally, caution must be exercised when reading or analysing a case to ensure that the decision is based on law that is currently applicable in the relevant State. Students need to be aware of legislative differences across States and over time.

Jurisdiction 1.6 Jurisdiction is the power to hear and decide a case. Jurisdiction to try criminal cases is generally territorially limited. That is, the power of a court to deal with a matter will be limited to offences that take place within, or are sufficiently connected with, the territory of the sovereign power. Thus, the State of South Australia exercises control over criminal matters occurring in South Australia. Therefore, a South Australian court could not try a murder committed in Victoria. [page 4] 1.7 Under common law, various tests can be relied upon to establish territorial jurisdiction: ◆

the ‘essential element’ test: ie, if the essential element of the offence took place within territorial limits: see R v Ellis [1899] 1 QB 230;

◆

the ‘terminatory’ test: ie, if the effect or result of the offence took place within territorial limits;

◆ ◆

the ‘initiatory’ test: ie, if the physical conduct constituting the offence charged was performed by the accused within territorial limits; the constitutional principle of ‘peace, welfare and good government’, where the conduct affects the prosecutorial State.

1.8 Increasingly, States are engaging with crimes that cross jurisdictions. For example, statutory reforms have substantially enlarged the jurisdiction of New South Wales and South Australian criminal courts by requiring merely a territorial connection between the State and at least one element of the offence: see Pt 1A (NSW); Pt 1A (SA). In New South Wales, a geographical connection is established where, under s 10C(2): (a) the offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or (b) the offence is committed wholly outside the State, but the offence has an effect in the State. In South Australia, Pt 1A was introduced from December 2002 to overcome the High Court decision in Lipohar v R (1999) 200 CLR 485. In that case, the High Court held that the (now repealed) s 5C of the South Australian Act did not apply to the common law offence of conspiracy. The new s 5G details the territorial requirements for the commission of an offence against the law of South Australia. Under s 5C(2), South Australia has jurisdiction where: ◆

a relevant act occurred wholly or partly within South Australia;

◆

the alleged offence caused harm or a threat of harm in South Australia; or

◆

‘the alleged offence is a conspiracy to commit, an attempt to commit, or in some other way preparatory to the commission of another offence for which the necessary territorial nexus would exist [if it was] committed as contemplated’ (s 5C(2)(d)).

Statute has also expanded the jurisdiction of Victorian criminal courts for specific offences such as murder and manslaughter (see s 9 (Vic)) and stalking (s 21A (Vic)). Victorian courts will have jurisdiction where V (the victim) dies in Victoria, or where V has been injured in Victoria and dies outside Victoria. There is also expanded jurisdiction for property offences under s 80A, provided:

(a) a significant part of the conduct or omission occurred in Victoria; or (b) where an act or omission occurred wholly outside Victoria, ‘the act or thing was done with the intention that substantial harmful effects arise in Victoria and such effects did arise’ (s 80A(2)). The Supreme Court of Victoria considered the requirement that there be ‘a real and substantial link’ between the relevant act or omission and the State of Victoria under s 80A in R v Keech (2002) 5 VR 312. In that case, D (the defendant) was convicted on [page 5] one count of obtaining a financial advantage by deception. D used a false invoice and statement in order to gain finance. The documents necessary for finance were executed by D in Victoria, but then dated and executed by the financier in New South Wales. D sought leave to appeal against conviction on the ground that the trial judge had erred in law in deciding that Victoria had jurisdiction. The Supreme Court refused leave, holding that the documents executed in Victoria were not merely part of the surrounding circumstances, but had causal significance and were an important part of the fraudulent scheme. As such, the connection with Victoria was ‘real and substantial’ for the purposes of s 80A of the Crimes Act. 1.9 The importance of jurisdiction was demonstrated in the English case of R v Wacker [2003] QB 1207. In that case D was charged with manslaughter. D was the driver of a refrigerated truck that smuggled people into the United Kingdom. While crossing the English Channel, the victims suffocated when the vent in the truck was closed. D argued that the case was outside English jurisdiction as the vent had been shut in Holland. The Court of Appeal held that the duty of care arose in Holland, but continued once the ferry had sailed. If the vent had been opened at any time while crossing the Channel, the victims would have been saved. Thus, the English Court had jurisdiction.

CLASSIFICATION OF OFFENCES 1.10 For fairly arbitrary historical reasons, some distinctions between various types of criminal offences have evolved. There is a wide range of offence classifications in each State, often reflecting perceived criminal justice needs at the time. Distinctions such as that between felonies and misdemeanours are of no importance now. The most important distinction (particularly for the accused) is between summary and indictable offences.

Summary and indictable offences 1.11 The distinction between summary and indictable offences relates primarily to the mode of trial. A person charged with an indictable offence: ◆

generally has a preliminary hearing or committal proceedings before trial;

◆

is tried by a judge and jury. The judge rules on questions of law and the jury rules on questions of fact.

Summary offences are: ◆

less serious offences;

◆

determined finally before a lower court;

◆

tried before a judicial officer who is also a trier of fact;

◆

only created by parliament, and cannot exist at common law.

There is a presumption that an offence is an indictable offence, unless it is explicitly made a summary offence in the statute. Generally, summary offences have a short limitation period. In most jurisdictions there will be a time limit ranging from six months to one year for the commencement of proceedings for summary offences. [page 6] The theory underlying the distinction between summary and indictable offences is that the more serious the accusation and the greater the potential punishment and deprivation of liberty, the greater the protection offered to the accused (in the form of committal proceedings and trial by jury). Theoretically at least, one of the themes structuring criminal law is the need to protect citizens from the arbitrary exercise of power by the State. Student tip When answering problem questions you are expected to know the law (as a judge would), but if the facts of a question are ambiguous, then you can state ‘this is a question of fact for the jury’. However, it is not sufficient to stop there. You would need to draw on decisions in cases with similar facts to argue what you think a jury is likely to decide, why, and what the implications would be. If the facts are particularly complex, you might cover both guilty and not guilty scenarios.

Indictable offences tried summarily 1.12 Some indictable offences may be tried either summarily or on

indictment. Indictable offences which may be tried summarily are those which are less serious, or where the damage or property involved is below a specified value. There is a great deal of legislation about when indictable offences may be tried summarily, as States balance the economy of running summary trials without juries and the concern for protecting the rights of an accused to a jury trial. Where the option is available, an accused will often elect to have an indictable offence tried summarily, as the maximum penalty will be substantially reduced: see, eg, the Criminal Law (Sentencing) Act 1988 (SA) s 19. This encourages the accused to choose simpler procedures, thus reducing delays in court processes. 1.13 Part 3.1 of the Criminal Procedure Act 2009 (Vic) details when an indictable offence can be tried summarily. Section 28 allows for the hearing in the Magistrates’ Court of any matter punishable by a maximum term of imprisonment of 10 years (level 5 imprisonment) or less, or a fine of $120,000 (level 5 fine) or less. Indictable offences with maximum penalties higher than those referred to in s 28 that can still be heard in the Magistrates’ Court are listed in Sch 2 of the Criminal Procedure Act. Section 29 allows certain indictable offences to be heard and determined summarily if the accused consents and the court considers that the charge is appropriate to be determined summarily, having regard to certain matters. 1.14 New South Wales has expanded summary jurisdiction under Ch 5 of the Criminal Procedure Amendment (Indictable Offences) Act 1996. Under the legislation, indictable offences fall into three categories: 1. indictable offences not triable summarily; 2. ‘Table 1’ indictable offences to be dealt with summarily unless the prosecuting authority or accused elects to have them dealt with on indictment; 3. ‘Table 2’ indictable offences (less serious than Table 1) to be dealt with summarily unless the prosecuting authority elects to have them dealt with on indictment. [page 7] Table 1 offences are more serious than Table 2 offences and this is why the accused may elect to have their charge heard on indictment. Decisions to elect are very important. Election would be influenced by the following factors: ◆

the maximum penalty in summary proceedings is less than in a higher court;

◆

summary proceedings are quicker and less formal; and

◆

perceived prospects of acquittal are greater before a jury than a magistrate, and there is the possibility that the jury will be hung.

In South Australia, under s 5 of the Summary Procedure Act 1921, a distinction is made between: ◆

summary offences;

◆

minor indictable offences; and

◆

major indictable offences.

These distinctions are made on the basis of maximum penalties and/or damage associated with the offence.

Felonies and misdemeanours 1.15 The distinction between felonies and misdemeanours arose at common law and has been abolished in all States. In broad terms, and with exceptions, the distinction was between more serious crimes (felonies) and less serious crimes (misdemeanours). Historically, this distinction had serious ramifications — a person convicted of a felony at common law received the death sentence and their property was forfeited to the Crown. However, capital punishment has been abolished and there are limited circumstances in which property is forfeited to the Crown. The distinction was described as ‘archaic’ in 1982: see New South Wales Law Reform Commission, Criminal Procedure, 1982.

THE STANDARD AND BURDEN OF PROOF 1.16 Mere accusation does not prove a crime. In order for a person to be convicted of a crime, the facts of the case must be established and then the appropriate rule of law applied. This separation of law and fact is enshrined in most textbooks, where the ‘facts’ of a case are summarised with students then discussing the law. This creates the false impression that facts are easily established, when often the real problem lies in determining the facts of a case. In the majority of cases the outcome will rest on which view of the facts is accepted. This decision will be made by the court in less serious cases and by the jury in more serious cases. There are rules that enable these decisions to be made. These rules are different for criminal and civil offences because of the

moral stigma and sanctions, eg potential loss of liberty, attached to a finding of criminality. Underlying the rules of proof is the ideal of protecting citizens from the arbitrary exercise of power by the State. [page 8]

Standard of proof 1.17 In criminal proceedings the prosecution must prove the guilt of the accused ‘beyond a reasonable doubt’. The standard of proof for criminal trials is higher than for civil trials, where the party initiating the hearing must prove their case on the ‘balance of probabilities’. The courts have made it clear that trial judges should not try to explain ‘beyond a reasonable doubt’ to juries: see, eg, R v Reeves (1992) 29 NSWLR 109.

Legal burden of proof 1.18 The legal burden in criminal trials rests on the prosecution. ‘Legal burden’ refers to the case which must be made by the prosecution in order to persuade the trier of fact that D is guilty. The prosecution must prove all the ingredients of a particular offence beyond a reasonable doubt. According to the ‘golden thread’ rule, it can be generally stated that the prosecution bears the burden of proving the guilt of the accused. The authority for this rule, Woolmington v DPP [1935] AC 462, held: Throughout the web of the English criminal law one golden thread is always to be seen — that it is the duty of the prosecution to prove the prisoner’s guilt … If at the end of, and on the whole of the case, there is a reasonable doubt, created by the evidence … as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal: at 481–2.

Thus, the rhetoric of the criminal law is that a person is presumed innocent until guilt is established beyond a reasonable doubt. In order to establish the guilt of the accused, the prosecution must prove beyond a reasonable doubt all of the components of the offence and disprove any defences raised (subject to limited exceptions).

Exceptions to the burden of proof resting on the prosecution 1.19 There are exceptions to the rule that the burden of proof to establish

criminal responsibility rests on the prosecution under both common law and statute. 1.20 Common law Under common law, a defendant (D) raising the defence of insanity must prove, on the balance of probabilities, that D was suffering mental impairment at the time of the act charged: see R v Porter (1933) 55 CLR 182. There is no adequate justification for placing the legal burden of establishing insanity on D, except perhaps by stating that every person is presumed to be sane. In South Australia and Victoria the common law rules regarding the burden of proof for the defence of insanity are enshrined in statute: see Criminal Law Consolidation Act 1935 (SA) ss 269D, 269I; R v Leach [2002] SASC 321; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 21. 1.21 Statute Certain statutory provisions expressly impose the burden of proof on D. Generally, these provisions require the prosecution to prove some facts beyond a reasonable doubt, against D, which will result in the conviction of D unless D can prove on the balance of probabilities some further facts. [page 9] An example of this is s 23A (NSW), which imposes the burden of proof on a defendant wishing to plead substantial impairment of the mind in cases of murder. The jury must consider whether: ◆

the prosecution has proven murder beyond a reasonable doubt; and

◆

the defence has proven the defence of substantial impairment of the mind on the balance of probabilities.

Drugs legislation is a controversial example of statutory reversal of the burden of proof.

Evidential burden 1.22 The evidential burden refers to the rules of evidence that a party to a case must satisfy for an issue to be legally raised. In other words, there must be a sufficient foundation of evidence for every issue alleged. If the judge determines that insufficient evidence has been presented, the judge will not allow the jury to consider that issue. For example, if the prosecution attempts to establish the offence of theft solely by providing evidence that D was found in possession of goods years

after they had been stolen, the judge would determine that this evidence did not satisfy the evidential burden and direct the jury to return a verdict of ‘not guilty’. If the defence attempts to argue that D was grossly intoxicated at the time of committing a crime, some evidence, such as presence at a pub, would be necessary for the judge to determine that the issue of intoxication had been raised satisfactorily.

Evidential burden and the prosecution 1.23 The evidential burden of constituent elements of the particular crime charged, excluding statutory exceptions, rests on the prosecution. For example, the prosecution would bear the evidential burden of laying a foundation for an assault charge, and, once these issues were raised, proving beyond a reasonable doubt that the accused caused unlawful bodily contact with the victim with the requisite intent. In practice it is unnecessary to refer to the evidential burden when discussing the prosecution’s burden of proof. This is because the evidential burden is necessarily subsumed within the prosecution’s legal burden of proving criminal responsibility beyond a reasonable doubt.

Evidential burden and the defence 1.24 The evidential burden for general defences (self-defence, duress, necessity, provocation, etc) is placed on the accused. The justification for placing the evidential burden upon the accused in relation to general defences is that it would be time consuming for the prosecution to negate all general defences in every case. The question of how much evidence is needed to satisfy the evidential burden is unclear. Where the burden rests on the accused, it has been suggested that it requires there be enough evidence, if believed and uncontradicted, to suggest a reasonable [page 10] doubt in the minds of a reasonable jury that the accused’s version might be true. That is, the evidence must be enough to ‘suggest a reasonable possibility’: see Jayasena v R [1970] AC 618. The evidential burden generally operates to require D to provide supporting evidence for any defences relied upon. It would be unwise for D to use the right to silence, and merely rely on the burden of proof resting on the

prosecution. D would be advised to offer defences or alternative readings of the facts. Student tip The shifting evidential burden The legal burden and evidential burden may shift in criminal trials. For example, on a murder charge, the prosecution must prove beyond a reasonable doubt that D voluntarily caused the death of V with sufficient intent. D may then rely on a defence of self-defence, arguing that D reasonably believed that what D did was necessary. If D has raised sufficient evidence to satisfy the evidential burden, then the burden of proof would shift back to the prosecution, who would have to prove beyond a reasonable doubt that D had not acted in self-defence. If the prosecution failed to prove that D had not acted in self-defence, then D would be acquitted, despite the prosecution having proved all the ingredients of murder.

Legal problem Max is charged with murder. He wishes to argue that he did not cause the death, and, if it is found that he did cause the death, that he acted in self-defence or was suffering mental impairment at the time. The prosecution would have to prove all the elements of the offence beyond a reasonable doubt — ie, the mens rea and actus reus for murder — whether Max exercised his right to silence or not. Thus, the prosecution would have to prove beyond a reasonable doubt that Max caused the death of the victim, regardless of whether or not Max argued a break in the chain of causation. To raise the defences of self-defence and insanity (or mental impairment) as an issue, Max would have to satisfy the evidential burden. If Max failed to provide evidence that these defences were a ‘reasonable possibility’, then the judge would exclude consideration of them. If Max did satisfy the evidential burden, the prosecution would then have to disprove selfdefence beyond a reasonable doubt. Max would have to prove all elements of the defence of mental impairment on the balance of probabilities (as an exception to the Woolmington principle: see 1.18 above).

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Chapter 2 Elements of Criminal Liability Objectives After reading this chapter you should be familiar with the following: ▶ elements of criminal liability ▶ legal capacity ▶ characteristics of actus reus ▶ characteristics of mens rea ▶ partial mens rea offences ▶ subjective standards ▶ objective standards ▶ crimes of strict liability ▶ crimes of absolute liability ▶ principle of coincidence of actus reus and mens rea

INTRODUCTION 2.1 There are four requirements for criminal liability: 1. a person must have legal capacity to commit a criminal offence; 2. that person must have committed the conduct elements of the offence, ie, the actus reus; 3. the fault elements, or the mens rea, which form part of the offence, must have been present at the time of the actus reus; and 4. the absence of any defences of excuse or justification which would negative liability. This section will consider legal capacity, and the actus reus and mens rea elements of an offence. Defences will be considered in Chapters 12 and 13.

LEGAL CAPACITY 2.2 Generally, people are presumed to be responsible for their actions. The two major exceptions are those who suffer from mental impairment (see Chapter 12) and children.

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Children 2.3 At common law, children under the age of seven years are not criminally responsible for a criminal act. The doctrine of doli incapax applies to children between the ages of seven and 14 years. Doli incapax is a Latin term which means ‘incapable of wrong’. It gives rise to a rebuttable presumption that the child does not have the mental capacity to understand that what he or she was doing was wrong: see R v M (1977) 16 SASR 589. They are presumed incapable of committing the crime due to lack of mens rea. According to this doctrine, the prosecution needs to prove not only all the elements of an offence, but also that the child had the mental capacity to understand that what he or she was doing was wrong. 2.4 All of the common law jurisdictions have lifted the minimum age of criminal responsibility from seven years to 10 years of age: see Children (Criminal Proceedings) Act 1987 (NSW) s 5; Young Offenders Act 1993 (SA) s 5; Children, Youth and Families Act 2005 (Vic) s 344. Between the ages of 10 and 14 years the common law provides for a rebuttable presumption that a child cannot possess the necessary knowledge to have mens rea. To rebut the presumption, the prosecution must prove beyond a reasonable doubt not only that the child had committed the act with necessary mens rea, but also that the child knew what he or she was doing was seriously wrong: BP v R [2006] NSWCCA 172. 2.5 The High Court considered the presumption of doli incapax in RP v R [2016] HCA 53. The majority confirmed that between the ages of 10 and 14 years, the presumption may be rebutted by evidence that the child knew that it was morally wrong to engage in the conduct that constitutes the physical element or elements of the offence. Knowledge of the moral wrongness of an act or omission is to be distinguished from the child’s awareness that his or her conduct is merely naughty or mischievous. This distinction may be captured by stating the requirement in terms of proof that the child knew the conduct was ‘seriously wrong’ or ‘gravely wrong’ (at [9]). To rebut the presumption, the prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child’s development is such that he or she knew that it was morally wrong to engage in the conduct. This directs attention to the child’s education and the environment in which the child was raised (at [9]). Evidence of the requisite knowledge may include

answers given in the course of a police interview. Evidence of the child’s progress at school and of the child’s home life will be required (at [12]).

Corporations 2.6 A corporation is a legal person and may be convicted of crime. Currently, a corporation will be liable for the criminal acts of its officers or employees if it can be proven that those acts were, in reality, the acts of the corporation. Issues arise for the criminal law in terms of corporate crime for a variety of reasons. For example, usually there is a separation of actus reus and mens rea. In addition, punishment options are limited because corporations cannot be imprisoned. Corporations can be fined or their licence may be revoked. [page 13]

ACTUS REUS AND MENS REA 2.7 The traditional assumption in criminal law is that a person shall not be held liable for an act unless the act was done with a guilty mind (actus non facit reum nisi mens sit rea): see Fowler v Padget (1798) 101 ER 1103. The division of criminal responsibility into two broad categories, the actus reus and the mens rea, reflects the modernist splitting of mind and body. The philosopher Descartes’ expression, ‘I think, therefore I am’, captures the sense in which the mind is perceived as the most important element. This is reflected in the criminal justice system’s traditional focus on mens rea. Thus, the difference between murder and manslaughter is not dictated by D’s actions, or the result of death, but by the state of mind of D at the time of the killing. Generally, the prosecution must prove beyond a reasonable doubt that D fulfilled the actus reus requirements and had the necessary mens rea at the time of the offence. While the division between actus reus and mens rea elements can be unclear, these terms are still common in New South Wales, South Australia and Victoria.

ACTUS REUS 2.8 The definition of the actus reus is elusive and controversial. The most accurate definition is that the actus reus is everything that the mens rea is not.

The actus reus of an offence identifies the conduct that the criminal law prohibits. Generally, the actus reus will involve doing or not doing something, and may include reference to consequences or circumstances. The actus reus has also been referred to as the ‘external’ events or ‘physical’ element of a crime. 2.9 Different offences can have different actus reus requirements. This section makes some generalisations about the actus reus, and then considers the concept of voluntariness, a component of the actus reus for every offence. Regarding the elements of an offence: ◆

these may be specified in provisions; or

◆

legislation may enumerate the offence and prescribe its punishments. The elements of the offence are then determined by reference to the common law. Examples include the offence of murder in s 11 (SA) and s 3 (Vic), and the offence of assault in s 61 (NSW).

The actus reus may consist of conduct that is not a positive act 2.10 Generally, criminal liability will be attached to positive acts, not to omissions. The common law was reluctant to hold people responsible for an omission. Under common law tradition, a person could not be liable for failure to prevent harm, even where a person had the power to prevent that harm: ‘It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder’ (R v Coney (1882) 8 QBD 534 at 557–8 per Hawkins J). Certain offences cannot be committed by an omission (eg, rape, theft and assault). It is necessary to look at the definition of each offence to determine whether or not a person can be held liable for an omission. In addition, in order for criminal liability for [page 14] an omission to be established, a legal duty, and not just a moral duty, must be proven. A person is only required to act if they have a legal duty to do so. The person must act reasonably and in accordance with that duty. Criminal responsibility for omissions will be explored further in Chapter 6 when considering the offence of manslaughter by criminal negligence.

The actus reus may involve neither a positive act nor an

omission 2.11 D may be incriminated by reference to a state of affairs. These offences are called ‘situational offences’, as D is charged by reference to D’s relationship with a situation. For example, if D is the licensee of a pub, and an underaged person is found drinking alcohol there, D is guilty of an offence. Such offences tend to be of a minor type, and are not dependent on D’s state of mind at the time of the offence.

The actus reus may include mental elements 2.12 States of mind can be part of the actus reus, rather than the mens rea. It should be emphasised that this aspect of the actus reus focuses on the state of mind of V. Thus, one of the actus reus elements of the offence of (psychic) assault is that V feared imminent unlawful contact. The state of mind of V is thus central to the offence of assault. The weight of authority holds that if V did not feel fear, then the charge of (psychic) assault is not made out: see Barton v Armstrong [1976] AC 104.

Voluntariness 2.13 All criminal offences require that D’s conduct was voluntary. If D has not acted voluntarily, then the actus reus requirements of the offence will not be satisfied, and D will be found not guilty. 2.14 The concept is traditionally understood as requiring that an act is a conscious or willed by D: see R v Falconer (1990) 171 CLR 30. In Bratty v Attorney-General (Northern Ireland) [1963] AC 386, Lord Denning defined voluntariness as follows: An involuntary act … means an act which is done by the muscles without any control of the mind, such as a spasm, a reflex action, or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleepwalking: at 409.

Under the traditional conception of voluntariness, the only requirement is that the conduct be caused by the conscious exercise of powers of choice. There is no requirement that D understand the consequence of what D was doing. That is, a person may voluntarily choose an act that causes injury or death, without realising those consequences could follow. 2.15 The Model Criminal Code emphasises the requirement that conduct may only be a physical element of an offence if it is voluntary: see s 202.2 of the Code. This is elaborated:

202.2.1 Conduct is only voluntary if it is the product of the will of the person who carries it out. Conduct that is not voluntary includes: •

a spasm, convulsion or other unwilled bodily movement;

•

an act performed during sleep or unconsciousness;

[page 15] •

an act performed during impaired consciousness depriving the person of the will to act;

•

an act performed under gross intoxication depriving the person of the will to act.

202.2.2 An omission to perform an act is only voluntary if the act omitted to be performed is one which the person is capable of performing.

Types of involuntary or unwilled conduct 2.16 A spasm, convulsion or unwilled bodily movement A convulsion or muscular spasm may cause a physical movement that is not willed by the person, even though the person is conscious of what is happening. Where an accused has argued that an action was involuntary due to a muscular spasm the courts have dealt with the question of voluntariness by taking a broad commonsense view considering the ‘relevant act’. For example, in Ryan v R (1967) 121 CLR 205, D held a loaded rifle against V’s head. He claimed that V moved suddenly and that D pulled the trigger reflexively, thus involuntarily killing V. The High Court focused not upon the pulling of the trigger, but upon the pointing of the loaded, cocked rifle at V. It was up to the jury to determine which act or acts caused V’s death, and whether these acts were voluntary. It was held that it was open to the jury to decide that the act of pointing a loaded rifle at V was the substantial and operating cause of death, and this act was clearly voluntary. See also Ugle v R (2002) 189 ALR 22. Circumstances may remove the physical opportunity for a person to choose to behave in a different way. For example, where D pushes a third person against V, D’s actions are voluntary but the third person’s actions are involuntary, so far as V is concerned. 2.17 An act performed during sleep or unconsciousness An act performed during sleep or unconsciousness may also be regarded as an involuntary act. D can be said to be in a state of automatism if performing acts while asleep or concussed. Automatism is defined as an act ‘done by the muscles without any control of the mind’: see Bratty v Attorney-General (Northern Ireland) [1963] AC 386. 2.18 In Jiminez v R (1992) 173 CLR 572, D was charged with culpable driving, contrary to s 52A (NSW). D fell asleep while driving, collided with a tree and killed one of his passengers. The High Court held that:

… while he was asleep his actions were not conscious or voluntary (an act committed while unconscious is necessarily involuntary) and he could not be criminally responsible for driving the car in a manner dangerous to the public: at 577 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron JJ.

The High Court then applied the principles from Ryan to Jiminez’s actions. The Court considered the period of driving immediately preceding D falling asleep: It follows that for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition, that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public. Various matters will be relevant in reaching such a conclusion. The period of driving, the lighting conditions (including whether it was night or day) and the heating or ventilation of the vehicle are all relevant considerations. And, of course, it will be necessary to consider how tired the driver was. If there was a warning as to the onset of sleep, that may be some evidence of the degree of tiredness. And the period of driving before the accident, and the amount of sleep

[page 16] that he had earlier had, will also bear on the degree of his tiredness. But so far as ‘driving in a manner dangerous’ is concerned, the issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that, in the circumstances, his driving was a danger to the public: at 579.

Thus, the High Court looked to whether, at the time prior to falling asleep, D’s driving was objectively dangerous. 2.19 An act performed during impaired consciousness depriving the person of the will to act The condition of automatism may occur, where an unconscious or semi-conscious person may act without being aware of doing anything at all. Automatism has been defined as ‘a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements’: see R v Cottle [1958] NZLR 999 at 1007 per Gresson P. Automatism is a species of involuntariness around which a body of law has developed. 2.20 Automatism may occur due to: ◆

an external cause, such as a blow to the head, or an intoxicating substance; or

◆

an internal pathology or weakness.

2.21 Where automatism has occurred due to an internal pathology, this is governed by special rules of insanity, considered in Chapter 12. Automatism due to intoxication can also be governed by special rules. Otherwise, where automatism occurs, D can claim that an action was unwilled or involuntary. The High Court considered automatism at length in R v Falconer (1990)

171 CLR 30. The High Court stated that: The requirement of a willed act imports no intention or desire to effect the result by the doing of the act, but merely a choice, consciously made, to do an act of the kind done. In this case, a choice to discharge a gun: at 40 per Mason CJ, Brennan and McHugh JJ.

Automatism is discussed in detail in Chapter 12. Student tip Acts under duress of threats or extreme circumstances are still regarded by the law as voluntary. D has made a conscious choice to act, albeit in circumstances where D’s choices were limited.

Burden of proof Where involuntariness is claimed, evidence must support the claim. That is, D must satisfy the evidential burden. This is due to the principle that the prosecution is entitled to presume that the acts of D are voluntary: see Falconer at 83. Excluding the exception of insane automatism, once D has satisfied the evidential burden, the prosecution must prove beyond a reasonable doubt that the acts of D were voluntary. If this is not proved beyond a reasonable doubt, then D is not guilty.

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Involuntariness: excuse or defence? 2.22 Involuntariness is often referred to as a defence, but this is inaccurate and misleading. Rather, a claim of involuntariness (with the exception of insane automatism) is a failure by the prosecution to prove its case.

MENS REA 2.23 The mens rea of an offence specifies the mental state required for a person to be criminally responsible for that offence. Mens rea can also be referred to as the fault component or the guilty mind of an offence. There is some conflict about whether mens rea includes only D’s actual state of mind, or whether it can also incorporate comparison with the state of mind of a reasonable person. If an expansive definition of mens rea is adopted, mens rea can include intention, recklessness and negligence. Mens rea for offences differs, and different states of mind can result in greater culpability: see, eg, the mens rea for murder and involuntary manslaughter. 2.24 Mens rea can be determined under: ◆

statute, with words prescribing fault elements for specific offences. For example, in Victoria there are separate offences, with increasing penalties, for committing serious offences ‘negligently’, ‘recklessly’

and ‘intentionally’: see ss 24, 17, 16 (Vic); ◆

common law, relying on general principles to assign mens rea to common law offences, or to imply mens rea for statutory offences. For example, in He Kaw Teh v R (1985) 157 CLR 523, the High Court implied a requirement that an offence of importing narcotics should be committed knowingly or intentionally. The statute provision was ‘read in the light of the general principles of common law which govern criminal responsibility’: at 528 per Gibbs CJ.

Subjective or objective? 2.25 Mens rea elements of offences can be either subjective or objective. A subjective fault element refers to the state of mind of D. An objective fault element refers to the state of mind of the hypothetical reasonable or ordinary person. Subjective fault elements criminalise the person for what they actually thought at the time of the prohibited act. An objective standard punishes a person for their failure to act or think as a reasonable or ordinary person would in particular circumstances. At common law, the majority of offences have subjective mens rea requirements. That is, the focus is on what D actually intended or knew. Intention and recklessness are the major examples of subjective mens rea requirements. The High Court has restated the common law presumption that every offence requires a guilty mind or subjective fault component: see He Kaw Teh at 528–9 per Gibbs CJ; at 565–7 per Brennan J. There are objective mens rea requirements for some statutory and common law offences. Negligence, strict and absolute liability offences are examples of offences where D is judged according to D’s actions, rather than D’s state of mind. Some fault elements and many defences can involve a combination of subjective and objective components, eg, the defence of self-defence. [page 18] Student tip References to the ‘ordinary’ or ‘reasonable’ person, or what D should have known, impose an objective test.

2.26 Mens rea varies from offence to offence. While it is necessary to look at the mens rea requirements for each offence separately, it is possible to make some generalisations about mens rea.

Subjective standards Intention 2.27 Intention is central to common law doctrine on the fault elements of offences and is perceived as the most culpable fault component. Intention is a subjective standard. Thus, where intention is a required element of an offence, the prosecution must prove that D actually had intention, not that a reasonable person would have had the requisite intention. The concept of intention can be used in: ◆

a narrower sense, with ‘intention’ conveying the notion of choosing or meaning to commit the conduct elements of the offence. This conception of intention excludes recklessness, eg, R v Venna [1976] QB 421; or

◆

a broader sense, which utilises ‘intention’ as a synonym for subjective fault. This would include recklessness, eg, Vallance v R (1961) 108 CLR 56. For example, stating D had the necessary criminal intent would be the same as stating D had the necessary mens rea.

The contemporary conception of intention complies with the narrower sense and this is the way criminal intent will be referred to throughout this book. Intention is a central concept to criminal law; however, the weight of authority is against providing a definition for the concept, arguing that intention should be given its current meaning in ordinary language: see, eg, R v Moloney [1985] AC 905. Student tip There is no need to define‘intention’. It should be given its current meaning in ordinary language.

2.28 The difficulty then arises as to what actually constitutes intention. The Model Criminal Code defines D as intending to act if D means to engage in that act. D intends to bring about a consequence if D: ◆

means to bring it about; or

◆

is aware that it will occur in the ordinary course of events: see s 203.1 of the Code. In other words, if a consequence is virtually certain, then D has intended that consequence, even if D may not

have wanted it. [page 19] The language of judges when discussing intention provides some guidance; they often use words such as ‘wanting’, ‘wishing’, ‘aiming at’ or ‘desiring’ the prohibited result as similes for intention. Brennan J stated: Intent, in one form, connotes a decision to bring about a situation so far as it is possible to do so — to bring about an act of a particular kind or a particular result. Such a decision implies a desire or wish to do such an act, or to bring about such a result: He Kaw Teh at 569.

Thus in cases of murder, saying ‘I wanted to kill’ would be sufficient to amount to intention to kill. Difficulty may arise in cases where D does not confess to a particular state of mind. In these circumstances, the jury may be compelled to infer from objective circumstances what D’s state of mind may have been at the time of the criminal act. For example, where D has shot a machine gun at a person at point-blank range, a jury could infer an intention to kill in the absence of a confession. 2.29 For the purposes of establishing mens rea at criminal law, it is irrelevant whether D’s intent to act was premeditated or formed a split second before acting. In either case, D has the necessary mens rea at the time of the offence. 2.30 It should also be noted that the criminal law determines intent separately from the outcome. For example, in attempt offences, the accused is criminalised for intending to commit a crime and going beyond mere preparation. Just because D intended a particular result, does not mean that D actually achieved it or that it was even achievable. Thus, if D wished to kill V with a pea gun, the intention to kill would be established, even though (as far as is known) it is impossible to kill someone with a pea gun. If D actually shot at V with a pea gun with the intention to kill, D could be charged with attempted murder.

Recklessness 2.31 Recklessness is implied as the mens rea requirement for many offences in the absence of explicit statutory statement. Recklessness is generally used in the subjective sense, ie, D must have actually recognised a risk and carried on regardless. The level of knowledge required by D varies for different offences. Student tip Recklessness differs from intention, in that intention can be established where D wants a

particular outcome or recognises that it is virtually certain. In contrast, recklessness occurs where D is aware of a risk that a prohibited outcome will occur and continues to act regardless. Recklessness differs from negligence, in that negligence is the failure to recognise an obvious risk, while recklessness is recognition of a risk, but the decision to continue regardless.

2.32 Indifference to risk In R v Crabbe (1985) 156 CLR 464 at 470, it was held that indifference to risk is not an element of recklessness: ‘It is not the offender’s indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element.’ Thus, if D does not want a perceived [page 20] risk to result, but recognises that the risk may well result, then D would still have behaved recklessly. 2.33 Social utility or purpose The social utility of an act has consequences for whether or not D’s actions are labelled reckless. This has been noted in Crabbe: Of course, not every fatal act done with the knowledge that death or grievous bodily harm will probably result is murder. The act may be lawful, that is, justified or excused by law. A surgeon who competently performs a hazardous but necessary operation is not criminally liable if his patient dies, even if the surgeon foresaw that his death was probable. Academic writers have pointed out that in deciding whether an act is justifiable, its social purpose or social utility is important: at 469–70 per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ.

Questions of social utility tend to be resolved outside of the courtroom by police and prosecuting authorities. Examples include surgery and dangerous exhibitions.

Wilful blindness 2.34 Wilful blindness occurs where: ◆

there are suspicious circumstances and a failure to make inquiry: see Pereira v DPP (1988) 63 ALJR 217;

◆

D deliberately refrains from making inquiry to avoid discovering an unwanted truth: see Crabbe.

There is some ambiguity about the position of wilful blindness in Australian law. The correct position currently is that wilful blindness has an evidentiary role, but is not a substitute for intention or recklessness. The High Court has stated that wilful blindness is not a substitute for intention or recklessness as mens rea for an offence. References to wilful blindness in this context should be avoided: see Giorgianni v R (1985) 156

CLR 473 at 505, 508 per Wilson, Deane and Dawson JJ; Crabbe at 471; Pereira at 219–20 per Mason, Deane, Dawson, Toohey and Gaudron JJ. However, wilful blindness may provide evidence from which the jury may surmise that D had the necessary mens rea. The High Court stated: … a combination of suspicious circumstances and failure to make an inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter: Pereira at 219.

Thus, wilful blindness is not a substitute for mens rea requirements, but may provide evidence that D may have had the necessary mens rea in the form of intention or knowledge.

Transferred malice 2.35 The doctrine of transferred malice applies to hold D responsible where D has the mens rea for a particular offence, but brings about the actus reus for the same offence in relation to a different person or thing: see R v King [2003] NSWCCA 399. Thus, if D shoots at A with the intention to kill, but misses and kills V, D is guilty of the murder of V (and the attempted murder of A). The doctrine of transferred malice is discussed in more detail at 3.3, regarding the beginning of life. [page 21]

Objective standards 2.36 Despite the primacy that the criminal law gives to the state of mind of the accused at the time of committing an offence, there are some offences that depart from this principle: ◆

offences where negligence is the fault component;

◆

strict liability offences;

◆

absolute liability offences.

Negligence offences 2.37 Negligence can suffice as the fault element for some offences. Negligent conduct is conduct that is below the standard a reasonable person would observe when engaging in the relevant activity. A person engaged in negligent conduct may or may not advert to a risk of harm that a reasonable person would have appreciated. Where negligence is specified as a fault component, the prosecution need only prove objective or inadvertent

negligence. Thus, offences with negligence as a component may be completely objective offences. 2.38 The concept of negligence can be relevant in two areas: 1. express statutory provisions, generally in areas of offences involving injury to another person: eg, s 54 (NSW); s 19A (SA); s 24 (Vic); 2. ‘criminal’ negligence as the fault component for manslaughter: see Nydam v R [1977] VR 430 at 455. Criminal law requires a high degree of negligence, sometimes denoted as ‘criminal negligence’ or ‘gross negligence’. In Nydam the fault component for negligent manslaughter was stated as follows: The requisite mens rea is … an intent to do the act which, in fact, caused the death of the victim, but to do that act in circumstances where the doing of it involves a great falling short of the standard of care required of a reasonable man in the circumstances, and a high degree of risk, or likelihood of the occurrence of death or serious bodily harm, if that standard of care was not observed; that is to say, such a falling short and such a risk as to warrant punishment under the criminal law: at 455.

2.39 Critique of negligence The current lack of flexibility in the standard of the reasonable person may mean that a person of below average intelligence or capabilities may be held culpable for failing to meet an unattainable standard. In R v Stone and Dobinson [1977] QB 354, Stone was partially deaf, almost totally blind, lacking in a sense of smell and of below-average intelligence. Dobinson, who lived with Stone and his son, was described as ineffectual and quite inadequate. Stone’s sister, F, was ill and came to stay with them. Her condition began to deteriorate and she was unwilling and unable to leave her bed. A neighbour offered to help clean her and advised Dobinson to contact a social worker. A social worker visited Stone’s son at the house, but no attempt was made to advise her of F’s condition. Stone and Dobinson were unable to use the phone and made no other attempt to contact doctors. Dobinson supplied F with any food she requested, but F refused to eat. She died as a result of toxaemia, prolonged immobilisation and lack of food. It was held that Stone and Dobinson were guilty of manslaughter by criminal negligence. This was despite their [page 22] inability to recognise any risks, and their inability to meet the required standard. This case demonstrates a strict application of an objective standard to determine criminal liability. In its report Homicide (1991), the Victorian Law Reform Commission recommended that, where the accused presents evidence that he or she is

incapable of meeting reasonable standards due to physical or mental deficiency, the prosecution should have to prove beyond a reasonable doubt that the accused is capable of meeting those standards.

Strict liability offences 2.40 While there is a common law presumption that offences have a subjective fault element, there are statutory offences with no mens rea requirements: strict and absolute liability offences. Determination of whether offences are strict or absolute involves statutory interpretation to ascertain parliament’s intention. 2.41 Strict liability offences require nothing more than the perpetration of the actus reus. That is, strict liability offences lack a mens rea component. Until He Kaw Teh the courts had an increasing tendency to interpret statutory offences as strict or absolute liability offences. In that case, the High Court considered general criminal justice principles and rules of interpretation. D was convicted at first instance of importation and possession of heroin, contrary to the Customs Act 1901 (Cth) s 233B(1)(b) and (c). D had flown into Melbourne with two-and-a-half kilograms of heroin in the false bottom of his suitcase. The trial judge stated that, as there was no specific mention of knowledge requirements in the relevant legislation, the prosecution did not have to prove that D knew the heroin was in his suitcase. The prosecution only had to prove that the heroin was there. The High Court considered general guiding principles when interpreting legislation and stated that all legislation must be read in the light of the common law presumption that all offences require a subjective fault element. This presumption in favour of mens rea will be sustained unless and until it is displaced. As a consequence of He Kaw Teh, statutory criminal offences fall into three categories for the purposes of mens rea: 1. those in which there is an obligation on the prosecution to prove mens rea; 2. strict liability offences, where the Proudman v Dayman (1941) 67 CLR 536 defence is available (see 2.46 below); 3. absolute liability offences. 2.42 Principles of interpretation Gibbs CJ outlined the principles applied in determining whether the presumption of mens rea is displaced, resulting in a strict liability offence, in He Kaw Teh: In deciding whether the presumption [of mens rea] has been displaced … there are a number of

matters to be considered. First, of course, one must have regard to the words of the statute creating the offence … The second matter to be considered is the subject matter with which the statute deals … A third consideration is [justice in enforcement] … It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations … it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim: at 529–30.

[page 23] 2.43 Words of the statute When considering whether the common law presumption in favour of mens rea has been displaced, the primary matter to be considered is the wording of the statute. If there is a clear intention expressed by parliament to create a strict liability offence, then no further analysis is required. In the absence of clear language regarding fault elements, further analysis will be required. The courts may look to the specific language of the statute. For example, in He Kaw Teh Gibbs CJ stated that the word ‘possession’ implicitly imported a requirement of knowledge: Where a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence (‘in his possession’) themselves necessarily import a mental element: at 529.

Where there is ambiguity in the language of the statute, the judiciary may need to go beyond the wording of the statute. 2.44 Subject matter with which the statute deals The subject matter of the statute can offer guidance as to the intention of parliament. Considerations of subject matter include the gravity of the social problem to which the offence is directed, the severity of the punishment, and the associated stigma. In general, strict liability offences are limited to less serious offences, such as breaches of traffic and health regulations: see He Kaw Teh at 595 per Dawson J. However, some serious offences have been interpreted as strict liability offences: see, eg, culpable driving in New South Wales (s 52A (NSW); Jiminez: see 2.18 above). There is some authority suggesting that the more serious the social evil, the more likely it is that the offence will be one of strict liability: see Kennedy v R [1981] VR 565. However, the bulk of modern cases take the view that the greater the social stigma and potential penalty, the greater the likelihood that parliament intended the requirement of a subjective fault element. Thus, in He Kaw Teh the High Court considered: ◆

the gravity of the social problems associated with the consumption

of narcotics, but stated that this was insufficient to rebut the common law presumption of subjective blameworthiness: at 529– 30, 596; ◆

the more serious the sanctions applied to a convicted person, the greater the requirement for fault elements. In this case it was considered that, as the maximum penalty was life imprisonment, the offence would have to be committed knowingly or intentionally: [A] convicted offender is exposed to obloquy and disgrace and becomes liable to the highest penalty that may be imposed under the law. It is unlikely that Parliament intended that the consequences of committing an offence so serious should be visited on a person who had no intention to do anything wrong, and no knowledge that he was doing so: at 530.

This notion that the more serious the offence, the greater the protection the accused will need, is informed by the ideal of protecting citizens from the arbitrary exercise of power by the State. The greater the potential threat to the liberty of the accused, the greater the need for safeguards. The requirement that the prosecution prove mens rea is a [page 24] form of protection for the accused. For example, in illicit drugs cases, it is easier for the prosecution to prove the accused had the drugs, but more difficult to prove the accused knew about the presence of the drugs. 2.45 Utility of imposing strict liability In He Kaw Teh, the High Court stated that the court will consider whether imposing strict liability will assist in the enforcement of regulations: at 529–30 per Gibbs CJ. Courts may refer to second-reading speeches and explanatory memorandums in determining the intention of parliament. The issue would then be whether a subjective fault requirement would render the legislation ineffective. The purpose of the legislation must be to compel persons to take preventative measures to avoid committing the offence. The court would consider whether persons can do anything to avoid committing an offence, or whether the legislation creates a class of ‘luckless victims’: see Lim Chin Aik v R [1963] AC 160 at 174. In He Kaw Teh, the High Court held that a person bringing baggage into a country can exercise some care to ensure that no drugs are contained in it. Public interest requires that such care be taken. This would support an argument that parliament intended to penalise importation that was careless. However, no purpose would be served by criminalising a person who had

taken reasonable care, but had unknowingly been an innocent agent to import narcotics. 2.46 The defence of honest and reasonable mistake of fact The defence of honest and reasonable mistake of fact, also known as the Proudman v Dayman defence, is available in strict liability offences: As a general rule an honest and reasonable belief in the 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: Proudman v Dayman (1941) 67 CLR 536 at 540.

Burden of proof As with other general defences, D carries the evidential burden — once D has put the defence in issue, the Crown must disprove the defence of honest and reasonable mistake of fact beyond a reasonable doubt: see He Kaw Teh; CTM v R (2008) 247 ALR 1.

2.47 The defence of honest and reasonable mistake of fact requires an honest belief — ignorance and inadvertence are not enough: see State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721 at 724–5. If, on the facts as D believed them to be, another offence may have been committed, then mistaken belief may not lead to acquittal. That is, the mistake must be such that, if the facts were as D believed them to be, the conduct would have been ‘innocent’: see Proudman v Dayman; Chard v Wallis (1988) 12 NSWLR 453; CTM v R (2008) 247 ALR 1. ‘Innocent’ in this context has been interpreted as innocent according to law: DPP (NSW) v Bone (2005) 64 NSWLR 735. 2.48 The High Court considered the defence of honest and reasonable mistake of fact in Ostrowski v Palmer (2004) 218 CLR 493. In that case, Palmer was charged with fishing for rock lobsters in a prohibited area while holding a commercial fishing licence. Palmer had made inquiries at the relevant government department prior to fishing, [page 25] and believed he had been provided with a complete set of the relevant regulations. Consequently, Palmer was unaware that he was fishing in an area prohibited by law. The major issue in this case was whether Palmer’s mistake could be characterised as a mistake of fact or law. The High Court noted that ignorance of the law does not afford any excuse for an act which would otherwise constitute an offence. The offence consisted of three elements, all of which Palmer fulfilled: 1. being the holder of a commercial fishing licence;

2. fishing for rock lobsters; and 3. fishing in a prohibited area. Palmer had made no mistake about any of these elements of the offence. His only mistake was that he did not know of the regulation prohibiting fishing in the area. It was held that Palmer’s mistake was a mistake of law: ‘he erroneously believed that no law prohibited him from fishing for rock lobster in that area. It is irrelevant that his belief was induced by the conduct of a Fisheries WA employee’: at [16] per McHugh J. Accordingly, Palmer could not rely on a defence of honest and reasonable mistake of fact. The policy reason behind the refusal to accept a mistake of law as going toward the Proudman v Dayman defence was articulated by Callinan and Heydon JJ: A mockery would be made of the criminal law if accused persons could rely on, for example, erroneous legal advice, or their own self-serving understanding of the law as an excuse for breaking it, however relevant such matters might be to penalty when a discretion, unlike here, in relation to it might be exercised: at [85].

Palmer was found guilty and accordingly fined the mandatory penalty of $27,600. Callinan and Heydon JJ noted that this case provides an example of the way in which mandatory penalties can operate harshly and unfairly, and generate time-consuming and expensive appellate litigation.

Absolute liability offences 2.49 Absolute liability offences require only the perpetration of the actus reus, and exclude the defence of honest and reasonable mistake of fact. Liability is thus absolute. The common law has generally been reluctant to interpret an offence as being one of absolute liability. Thus, even when an offence has been interpreted as one of strict liability, there is a further presumption that the defence of honest and reasonable mistake of fact is available, unless excluded expressly or by necessary implication: see He Kaw Teh. When interpreting the mens rea requirements of an offence the court would first apply the principles stated in He Kaw Teh to determine whether the offence had a subjective fault component or was a strict liability offence. If the offence were interpreted as having no subjective fault component, there would then be a presumption that the defence of honest and reasonable mistake of fact would apply. The court would then reapply the principles from He Kaw Teh to determine whether this presumption was rebutted, and the offence was

an absolute liability offence: see Lee Allen v United Carpet Mills Pty Ltd [1989] VR 323. [page 26] Absolute liability offences are generally regulatory: see, eg, exceeding the speed limit (Kearon v Grant [1991] 1 VR 321); refusing to submit to a breath analysis (R v Walker (1994) 35 NSWLR 384); and selling liquor to underage persons (Hickling v Laneyrie (1991) 21 NSWLR 730). It should be noted that, in absolute liability offences, general defences such as necessity and duress are available unless expressly excluded.

REQUIREMENT OF TEMPORAL COINCIDENCE 2.50 The requirement of temporal coincidence means that generally, mens rea elements for the offence must co-exist with the actus reus. Criminal liability requires not only that the actus reus and mens rea exist, but that they are present at the same time. Thus, forming the intention to hit another, and then later accidentally doing so, will not amount to assault. 2.51 This principle is clear; however, there have been cases where, although the actus reus and mens rea did not co-exist precisely, the courts have thought a conviction justified. The device utilised to extend liability is to perceive a series of incidents as forming a ‘continuing act’ or a ‘series of acts’. The device of a continuing act was used in Fagan v Metropolitan Police Commissioner [1969] 1 QB 439. Fagan had parked a car on a police officer’s foot, possibly by accident, and then refused to move it. Fagan was charged with assaulting the police officer. The problem was that, while intention at the time of parking the car on the police officer’s foot could not be proved, the intention to remain on the officer’s foot was manifest, but this was due to an omission, rather than an act. The Court restated the principle that an assault can only be committed with an act, not an omission. However, Fagan was convicted on the grounds that the parking of the car, and the maintaining of the car on the officer’s foot, should not be viewed in isolation, but rather as a continuing act. This meant that the intention to apply force was superimposed at the time of the refusal to move the car. The decision on the facts of this case has received a great deal of criticism. However, the concept of a ‘series of acts’ has been correctly applied in other cases, such as Thabo Meli v R [1954] 1 All ER 373.

[page 27]

Chapter 3 External Elements of Homicide Objectives After reading this chapter you should be familiar with the following: ▶ actus reus of homicide ▶ concept of a human being ▶ requirement of voluntariness ▶ principles of causation

INTRODUCTION 3.1 Homicide is the killing of a human being. Some homicides may be lawful, eg, killing excused or justified by the law, or during war. An unlawful homicide is a killing that is not excused by law. A broad distinction is made within the category of unlawful homicide between manslaughter and murder. This distinction is based on the level of culpability, and this often turns upon the level or type of mens rea (discussed in Chapters 4, 5 and 6). The distinction is based on the conception that there are different levels of blameworthiness, and this should be reflected in different charges. 3.2 Historically, the distinction between murder and manslaughter mattered a great deal as courts had no discretion in sentencing for murder. Previously the penalty for murder was death, and more recently this shifted to mandatory life imprisonment. Currently the courts have a great deal of discretion in sentencing, in recognition that there are different levels of culpability in the category of murder. The continued distinction between murder and manslaughter has been subject to criticism; however, it is likely to be maintained due to: ◆

the belief that there is greater stigma attached to a conviction of murder than one of manslaughter;

◆

the circumstance that the abolition of mandatory life imprisonment has removed the impetus for reform. [page 28]

The distinction between murder and manslaughter continues to be

maintained, and in South Australia and Victoria continues in common law form. Sir Edward Coke described murder as: … when a man of sound memory and of age of discretion unlawfully kills any reasonable creature in being, and under the King’s peace, with malice aforethought, either express or implied by the law, the death taking place within year and a day: 3 Co Inst 47.

New South Wales has replaced the common law offence of murder with s 18 (NSW), which differs from murder at common law: see 4.27. The common law doctrine of manslaughter survives in New South Wales under s 18(1)(b), which provides that ‘every other punishable homicide shall be taken to be manslaughter’. 3.3 This chapter will consider the actus reus for unlawful homicide, which is the same for both murder and manslaughter. Burden of proof The prosecution must prove beyond a reasonable doubt that: •

a person was killed (ie, death of a human being);

•

the conduct was voluntary; and

•

the accused caused the death of the victim.

HUMAN BEING 3.4 There is no homicide unless D kills a human being. This requirement is expressed at common law as ‘a reasonable creature in being’. For the purposes of homicide, a human being is one who has been born and who has not died. This means that the courts have had to determine when a life begins, and when a person is dead, for the purposes of homicide. Student tip In most fact situations, students can assume that the victim was a human being who has been born and who has not died.

Beginning of life 3.5 Under common law the general rule is that a child must have left the womb for it to be regarded legally as a person. This was elaborated further by Barry J in R v Hutty [1953] VLR 338: … legally a person is not in being until he or she is fully born in a living state. A baby is fully and completely born when it is completely delivered from the body of its mother, and it has a separate and independent existence in the sense that it does not derive its power of living from

its mother. It is not material that the child may still be attached to its mother by the umbilical cord; that does not prevent it from having a separate existence. But it

[page 29] is required, before the child can be victim of manslaughter or infanticide, that the child should have an existence separate from and independent of its mother, and that occurs when the child is fully extruded from the mother’s body and is living by virtue of the functioning of its own organs: at 339.

Thus, the killing of a foetus in the womb is not homicide at common law, nor is the killing of a child-foetus that has not wholly emerged from the womb. South Australia and Victoria maintain the common law definition of the beginning of life. New South Wales has introduced a statutory definition of the beginning of human life to the same effect as the common law. Section 20 (NSW) states that, for the purposes of murder, a ‘child shall be held to be born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not’. In New South Wales, for cases of manslaughter, the principles of the common law apply regarding the commencement of human life. See R v Iby [2005] NSWCCA 178 for an analysis of the relevance of the ‘born alive’ rule in contemporary Australia. 3.6 Although the killing of a child in utero cannot amount to murder or manslaughter, D may still be liable for either of these offences where D caused injury to the child while in utero, provided that the child is born alive and later dies. Thus, in Martin v R (No 2) (1996) 86 A Crim R 133, D assaulted a woman while she was pregnant. This resulted in harm to the foetus and the death of the baby seven months after it was born. It was held that even though D performed the actus reus for unlawful homicide while the foetus was not a legal human being, he could be held responsible for the baby’s death once it was a human being. Clearly, the baby was a human being at the time that she died: see also R v F (1996) 40 NSWLR 245. 3.7 The issues relating to the beginning of human life have been explored at length in two cases. In the English case of Re Attorney-General’s Reference (No 3 of 1994) [1998] AC 245, D stabbed his girlfriend who he knew was pregnant with his child. Stab wounds penetrated the uterus and the foetus. The child was born grossly premature and survived for around 120 days. D was charged with the murder of the child. The House of Lords held that the foetus was a ‘unique organism’, a separate being from the mother. In order to charge D with murder, the prosecution had to establish the

necessary mens rea. The House of Lords held that while D had the necessary mens rea in relation to the mother, there was no mens rea for the actual victim’s death. It was considered that the doctrine of transferred malice (see 2.35) should not apply because otherwise the case involved a ‘double transfer of intent, first from the mother to the foetus and then from the foetus to the child as yet unborn’: at 261–2 per Lord Mustill. However, the House of Lords considered that D could be held liable for manslaughter — D had committed an unlawful act (the stabbing) that was objectively dangerous and had caused death (manslaughter will be considered in Chapters 5 and 6). 3.8 Issues relating to the beginning of human life were raised again in the New South Wales case of R v King (2003) 59 NSWLR 472. This case is definitely worth reading, as it details international responses to the thorny issue of how the criminal law should respond to cases involving harm to foetuses. In King, D and V had sexual intercourse once, resulting in V’s pregnancy. D requested V have an abortion and when she refused [page 30] to comply, he kicked her in the stomach and stomped on her stomach half a dozen times. As a consequence, the foetus died and was delivered stillborn three days later. Among other offences, D was charged with the intentional infliction of grievous bodily harm: see s 33 (NSW). The Crown relied on the death of the foetus and the abruption of the placenta as constituting grievous bodily harm to V. Section 33 required the infliction of grievous bodily harm to ‘any person’. The New South Wales Court of Criminal Appeal held, in accordance with existing authorities, that the infliction of harm to a foetus will not constitute an offence against the foetus unless that foetus is born alive. Thus, the central issue in this case was whether or not the death of the foetus was sufficient to constitute grievous bodily harm to the mother. Spigelman CJ stated that for the purposes of assault, the foetus is part of the mother due to the close physical bond: at [96]. Consequently, harm to the foetus could constitute an injury to the mother. The Court also considered the application of transferred malice. It was held that the common law doctrine of transferred malice could apply to s 33. This is because s 33 refers to an intention to inflict grievous bodily harm on ‘any person’. Thus, the offence is made out if, while intending to inflict grievous bodily harm on one particular person, the results of the actions are to in fact inflict harm on another person: at [85] per Spigelman CJ.

The New South Wales Court of Criminal Appeal noted that the decision in Re Attorney-General’s Reference (No 3 of 1994) [1998] AC 245 applied to the law of homicide. Spigelman CJ stated that it was not necessary to consider whether that decision applied in Australia with respect to the law of homicide, as King did not raise that issue. Both Victoria and New South Wales have introduced statutory reforms that reflect the decision in King. Under s 15 (Vic) the definition of ‘serious injury’ has been expanded to encompass the destruction of the foetus of a pregnant woman, other than in the course of a medical procedure and whether or not the woman suffers any other harm. Similarly, s 4 (NSW) defines ‘grievous bodily harm’ (GBH) as including ‘the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm’. At the time of writing, the New South Wales Upper House is considering the Crimes Amendment (Zoe’s Law) Bill 2017. The Bill proposes to remove the part of the definition of GBH that includes ‘the destruction of the foetus of a pregnant woman…’ and create a new offence of harm or destruction to a child in utero. This proposed offence would not apply to medical procedures or anything done with the consent of the mother of the child in utero. Under the reasoning of Spigelman CJ in King and the existing definition of GBH in s 4 (NSW), this proposed Bill is unnecessary, as harm to a foetus is already recognised as grievous bodily harm to the mother. Critics of the Bill fear that it has the potential to threaten access to abortion, because it uses the words ‘child in utero’ rather than ‘foetus’.

Abortion 3.9 One of the reasons why the definition of the beginning of human life is so important is because it affects access to abortion. In New South Wales and South Australia, where the mother or another person destroys the foetus in the womb, they may be guilty of procuring an abortion: see ss 82–83 (NSW); s 81 (SA). These sections all [page 31] speak of ‘unlawfully’ administering abortifacients or ‘unlawfully’ using an instrument. Thus, acts done by medical practitioners for the purpose of preserving the life or good health of the mother are not unlawfully done. The landmark decision regarding abortion is R v Davidson [1969] VR 667, where Menhennitt J considered that the defence of necessity was relevant to determining whether or not an abortion was unlawful. Accordingly, a person

who performs an abortion will be acting lawfully if that person honestly believes on reasonable grounds that the act was: (a) necessary to preserve the woman from a serious danger to her life or her physical or mental health … which the continuance of the pregnancy would entail; and (b) in the circumstances not out of proportion to the danger to be averted: at 672.

In South Australia, s 82A details when a medical termination of a pregnancy is permitted in terms that are broadly consistent with the decision in R v Davidson: (1) Notwithstanding anything contained in sections 81 or 82, but subject to this section, a person shall not be guilty of an offence under either of those sections — (a) if the pregnancy of a woman is terminated by a legally qualified medical practitioner in a case where he and one other legally qualified medical practitioner are of the opinion, formed in good faith after both have personally examined the woman — (i) that the continuance of the pregnancy would involve greater risk to the life of the pregnant woman, or greater risk of injury to the physical or mental health of the pregnant woman, than if the pregnancy were terminated; or (ii) that there is a substantial risk that, if the pregnancy were not terminated and the child were born to the pregnant woman, the child would suffer from such physical or mental abnormalities as to be seriously handicapped, and where the treatment for the termination of the pregnancy is carried out in a hospital, or a hospital of a class, declared by regulation to be a prescribed hospital, or a hospital of a prescribed class, for the purposes of this section; or (b) if the pregnancy of a woman is terminated by a legally qualified medical practitioner in a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life, or to prevent grave injury to the physical or mental health, of the pregnant woman.

The position in Victoria is substantially different due to the Abortion Law Reform Act 2008. In Victoria an abortion may be lawfully performed by a registered medical practitioner upon a woman who is ‘not more than 24 weeks pregnant’: s 4. Abortions may be performed on women who are more than 24 weeks pregnant where the doctor ‘reasonably believes that the abortion is appropriate in all the circumstances’, and has consulted another doctor who is of the same belief: s 5. The performance of an abortion by an unqualified person is a serious crime under s 65 of the Crimes Act 1958 (Vic).

When is a person legally dead? 3.10 D cannot kill a dead person. Definitions of when a person is dead have become increasingly important with the development of medical technology. For example, issues arise with regard to the cessation of life support systems in cases of major brain damage, or other trauma, and the transplants of vital organs. If a doctor disconnects a

[page 32] life support machine to bring an end to life, could this amount to murder? Legislation has been introduced to clarify the position and protect doctors from criminal and civil liability: see Human Tissue Act 1983 (NSW) s 33; Death (Definition) Act 1983 (SA) s 2; Human Tissue Act 1982 (Vic) s 41. Under this legislation, a person has died when there has occurred: ◆

irreversible cessation of all function of the person’s brain; or

◆

irreversible cessation of all circulation of blood in the person’s body.

YEAR AND A DAY RULE 3.11 Under common law the prosecution had to prove that death resulted within a year and a day after the act causing the injury. The year and a day rule was a common law attempt to resolve the issue of causation in times when medical science was imprecise. In effect, the rule operated to exclude, as causal elements, injuries where death resulted after a year and a day from the injurious act. Thus, where D beat a baby when it was three months old, and the baby died more than a year and a day after these causal acts, D could not be charged with unlawful homicide: see R v Dyson [1908] 2 KB 454. Legislation has abolished the year and a day rule in all common law States: see (NSW) s 17A; (SA) s 18; (Vic) s 9AA.

ACT OR OMISSION 3.12 Excluding manslaughter by unlawful and dangerous act, D can be responsible for causing the death of V with an act or an omission. Only manslaughter by unlawful and dangerous act cannot be committed with an omission. In order to be responsible for an omission, D must have a legal duty to act, rather than a moral duty: see R v Taktak (1988) 14 NSWLR 226. The most common type of homicide case involving omissions is manslaughter by criminal negligence. However, in R v Taber (2002) 56 NSWLR 443, D was found guilty of murder for an omission at first instance; on appeal it was found that D lacked the mens rea for murder. This issue is discussed in more detail in Chapters 4 and 6.

VOLUNTARINESS

3.13 The act causing death must be voluntary. The prosecution is entitled to presume that D’s actions were voluntary, ie, ‘conscious’ or ‘willed’: see Ryan v R (1967) 121 CLR 205; R v Falconer (1990) 171 CLR 30. Burden of proof The prosecution is entitled to presume voluntariness. This means that, if D wishes to raise voluntariness as an issue, D must satisfy the evidential burden. If D suggests that there is a reasonable possibility that D’s act was involuntary, then (leaving aside insane automatism) the prosecution must then prove voluntariness beyond a reasonable doubt: see Falconer.

[page 33] 3.14 Issues of voluntariness and causation can be interrelated, as it is necessary to identify the relevant act that caused death, and whether this act was voluntary. It is for the jury to identify what act or acts were done by the accused and whether any of these caused death. Thus the question of whether a reflex action is a voluntary act will be a question for the jury: see Murray v R (2002) 211 CLR 193; Ryan. Student tip Students need to be consistent when identifying the relevant act or omission. The prosecution will have to prove that this relevant act and/or omission was voluntary, caused the death of V, and that D had the necessary mens rea at the time of the relevant act and/or omission.

3.15 Involuntariness may particularly be argued where offences have no mens rea or limited mens rea, eg, in constructive murder (see 4.18) and manslaughter by criminal negligence cases (see 6.10). In most cases of homicide where the defence raises this issue, involuntariness tends to be characterised as automatism, ie, where D acts without any control of the mind. Automatism is considered in Chapter 12. We will now look at three High Court cases which reinforced the fundamental requirement of a voluntary act. Ryan, Ugle v R (2002) 211 CLR 171 and Murray all involved an argument that D’s actions were unwilled bodily movements or spasms. 3.16 The Ryan case provides an example of involuntariness due to a reflexive action. In Ryan, D entered a service station intending to commit robbery. He pointed a rifle at the attendant, V, and demanded money. The rifle was loaded, cocked and the safety catch was off. D tied V’s hands behind his back with one hand, while holding the rifle against V’s head with the other hand. V ‘crouched down and swung around’. D claimed that he pulled the trigger in a reflexive movement, resulting in V’s death. Police evidence

supported D’s claims that the pulling of the trigger was reflexive. D was convicted of murder, and one ground of appeal was that the act causing the death of V was involuntary. The High Court upheld his conviction. Barwick CJ reiterated that there: … must be a ‘willed’, a voluntary act which has caused the death charged. It is the act which must be willed though its consequences may not be intended … an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act: at 216.

The High Court focused, not upon the pulling of the trigger, but upon the pointing of the loaded, cocked rifle at the victim. It was up to the jury to determine which act or acts caused the death of the victim, and whether these acts were voluntary. It was held that it was open to the jury to decide that the act of pointing a loaded rifle at the victim was the substantial and operating cause of death, and this act was clearly voluntary. 3.17 The next two High Court cases demonstrate some of the difficulties that can confront the courts when determining whether or not an act was willed. When reading [page 34] these cases, students should be aware that these offences occurred in code States, so there are some differences in legislation. However, the High Court considerations regarding voluntariness are relevant to common law States. In Ugle, D was charged with the stabbing murder of V. D claimed that his action was involuntary and/or an act of self-defence. D and his friend, A, had got into a fight with V at V’s house, resulting in V chasing D and A away with a cricket bat. D and A returned to V’s house later that day. D armed himself with a knife and A brought a brick. D and A were once again confronted by V with the cricket bat. D claimed that V hit him with the cricket bat causing D to lose his balance. D raised his arm to stop V from hitting him with the bat again. D said that he then ran away. When he got back to his home, he washed the knife because it had blood on it. D stated that he had not had any intention of using the knife to stab V. Among other issues, the High Court considered whether or not D’s act could be classed as voluntary. Gummow and Hayne JJ held that the jury should have been directed to consider the issue of voluntariness. The question was ‘whether the knife had entered the body of the deceased independently of the exercise of the will of the appellant. Did the appellant put the knife in the body of the deceased, or did the deceased impale himself on the knife the

appellant was holding?’: at [30]. As a consequence, a retrial was ordered. It was open to the jury to find that the stabbing was involuntary. 3.18 In Murray, D was charged with the murder of V. D and V had been drinking at a pub before returning to D’s home. D claimed that while he was in the lavatory he heard V threatening to fight him. D ran into his bedroom and grabbed a shotgun from under the bed before running into the lounge room. D claimed that V: … sort of turned around to the side and about side on as he was getting up, and his arm shot out and hit me — something hit me in the head. I had the gun; as he was starting to get up, I lifted it, I think, and it was about waist height I’d say when I got hit in the head and the gun went off: at [32].

D claimed that he took the gun with him to frighten V so that V would leave his house. D denied wanting to shoot V, but admitted that his finger was probably somewhere near the trigger. D said that he had not deliberately shot V. One of the issues considered by the High Court was whether or not D’s actions were voluntary. Gummow and Hayne JJ applied Ryan by focusing on the ‘relevant act causing death’. They stated that it was better to avoid overrefinement: Once it is recognised that the act is the act of discharging the loaded shotgun it can be seen that the act comprises a number of movements by the appellant that can be identified as separate movements. He loaded the gun; he cocked it; he presented it; he fired it. Some of these steps may be steps to which the appellant would say that he had turned his mind; others may not have been accompanied by conscious thought. It is by no means unknown for someone to carry out a task (like, eg, loading a weapon) without thinking about it, if it is a task the person has undertaken repeatedly. In some circumstances, the trained marksman may respond to a threat by firing at the source of that threat as soon as the threat is perceived, and may do so without hesitating to think. But in neither example could it be said that the act (of loading or firing the weapon) was an unwilled act. Similarly, once it is recognised that the relevant act in this case is the act of discharging the loaded

[page 35] shotgun, it can be seen that whether or not particular elements of that composite set of movements (load, cock, present, fire) were the subject of conscious consideration by the appellant, there is no basis for concluding that the set of movements, taken as a whole, was not willed. There was no suggestion of disease or natural mental infirmity; there was no suggestion of sleep walking, epilepsy, concussion, hypoglycaemia or dissociative state: at [53], original emphasis.

As a consequence, it was considered that the jury had determined that the relevant act causing death was voluntary. This is because, as in Ryan, it was open to the jury to regard the relevant act causing death broadly. The High Court contrasted the facts in Murray with those in Ugle. It was noted that, in

Ugle, there was a question as to whether D had stabbed V, or whether V had impaled himself with the knife.

CAUSATION 3.19 The principle of causation requires that D’s act or omission must cause the death of V. This is often referred to as ‘proving the chain of causation’. Causation is one method for determining whether D should be held responsible for a death. That is, is the link sufficient such that D should be held criminally responsible? The issue of causation requires that there is a sufficient link between the act or omission of the accused and the prohibited death. The issue of causation is objective, and is related to the physical consequences of a crime, ie, the actus reus and not the mens rea. Thus, the mental state of D at the time of the crime charged is irrelevant to the assessment of whether there was a causal connection between D’s act and the death. Usually, causation will not be an issue in homicide cases, as proving that D caused the death of V will be straightforward. Thus, where D shot V in the head resulting instantly in death, it is clear that D caused the death of V. Difficulties arise where there are multiple causes of death, and in determining whether D’s acts were sufficiently causally connected to V’s death. Where causation does arise as an issue, the matter must be fully explained to the jury and the acts relied upon by the prosecution as causing the death of V identified: see Royall v R (1991) 172 CLR 378. This is particularly important where there are issues relating to voluntariness or to the contemporaneity of the act and mens rea. There is no sole test available for resolving questions of causation. The common law is a source of general principles of causation; however, these principles are imprecise and no one rule is always applicable.

Factual causation 3.20 Where causation is relatively straightforward, two broad tests have been proposed: 1. the ‘but for’ test;

2. the ‘common sense’ test. Each of these will be considered in turn. [page 36]

‘But for’ test for causation 3.21 In straightforward cases, causation can be determined by asking whether the consequence would not have happened ‘but for’ the actions of D: see Royall at [99] per McHugh J. If the answer is negative, ie, the harm would not have occurred without D’s conduct, then causation is established for legal purposes. If the answer is positive, ie, the harm would have occurred anyway, there is no causation for legal purposes.

Limits to the ‘but for’ test 3.22 There are some exceptions to the ‘but for’ test, where: ◆

causation is recognised, despite not being established under the ‘but for’ test, ie, where the consequences would have occurred even without the actions of D. Such a case occurs where two or more persons act in ways that would cause a particular result, so that only one needed to act, but their contributions cannot be separated. So, where A and B independently inflict fatal wounds on V, it is usually concluded that both caused the death;

◆

causal connections established under the ‘but for’ test are ignored. Examples include: ◆

under the doctrine of innocent agency, where A is used by D to achieve a criminal purpose, but A is not held criminally responsible for the result because, eg, A is a child whom the law deems incapable of committing a criminal offence. In these cases, D will be held to have caused the prohibited death under the doctrine of innocent agency;

◆

an omission, where the consequence may have been prevented if D had acted. D can generally only be held responsible if D had a legal duty to act. For example, in R v Russell [1933] VLR 59, D watched his wife drown their two children and herself. It was held that his failure to do something actually caused the deaths of his wife and children.

‘Common sense’ test for causation

3.23 The ‘common sense’ approach has also been proposed as a way for determining causal links. This test leaves the question of causation to juries, by encouraging them to apply their common sense to the facts, and reminding them of the seriousness of their determination: see R v Campbell [1981] 2 VR 585; approved in Royall at 387–8, 411, 426.

Legal causation 3.24 Legal causation comprises two elements: 1. D’s conduct must be an operating and substantial cause of the death of V; and 2. the immediate cause of death must not have been an intervening act or event (novus actus interveniens).

‘Operating and substantial cause’ test 3.25 The basic test used in all criminal jurisdictions for determining causation is the ‘operating and substantial cause’ test. This focuses upon whether the act of D was [page 37] an operating and substantial cause of the death of V. Authorities are clear that the ‘operating and substantial cause’ test should be applied to determine whether or not causation can be established: see R v Hallett [1969] SASR 141 at 149; R v Evans and Gardiner (No 2) [1976] VR 523 at 528 per Deane and Dawson JJ; Royall at 423 per Toohey and Gaudron JJ, 441–3 per McHugh J: The question to be asked is whether an act or series of acts … consciously performed by the accused, is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect, which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event. It does not matter on the question of causation whether or not the accused, after the commission of his act, fails to appreciate or takes unavailing steps to avoid its probable consequences, or mistakenly thinks that he has taken such steps or fails to take such steps through some supervening factor, unless that supervening factor so interrupts the effect of the original act as to prevent that original act from being in the eyes of the law the cause of death: Hallett at 149.

Accordingly, D’s conduct need not be the sole cause of death, but must be a substantial and operating cause. In Arulthilakan v R (2003) 203 ALR 259, the High Court approved the language of ‘substantial cause’ and applied the decision in Royall. This was demonstrated in R v Moffatt (2000) 112 A Crim R 201, where D was charged with murder. D and V had been drinking a mix of moselle with methylated spirits and had an argument, during which D hit V

with a hammer and strangled him. The autopsy was unable to isolate a cause of death, suggesting it could be any one or a combination of: ◆

advanced cardiac disease;

◆

acute alcohol toxicity;

◆

actions of D.

It was held by the New South Wales Supreme Court of Criminal Appeal that it was incorrect to search for a principal cause of death. If a contribution by D is present, it is irrelevant that there is more than one possible cause of death. Where the precise mechanism of death is ‘obscure’, the question is whether, approaching the question in a commonsense way, D accelerated the death of V in that his actions were a substantial contribution to the death of V. It was held that D’s actions were a substantial and operating cause of the death of V. Instructions to the jury about causation were considered in the case of Reynolds v R [2015] NSWCCA 29. The case upheld the test as requiring that D’s actions were a ‘significant’ or ‘substantial’ cause of death.

Intervening acts 3.26 Once it is held that D’s acts are an operating and substantial cause of death, the next question is whether there was any intervening act or event (novus actus interveniens) that broke the chain of causation. The proposed tests are quite vague and do not provide definitive answers in cases where complicated questions of causation arise. In particular, difficulties arise in determining whether or not the chain of causation has been broken by intervening acts or events that have occurred separately from D’s actions. The courts must consider whether an act has supervened and become the dominant cause of death. Where [page 38] this act amounts to a novus actus interveniens (ie, a new or intervening act or event), then the causal nexus is displaced. This section details the courts’ various responses to specific factual situations raising the issue of novus actus interveniens. It is stressed that the operating and substantial cause test is still applied; these cases indicate the outcomes of particular factual scenarios.

Ordinary hazard

3.27 A novus actus interveniens that functions to rupture the causal chain must be an event or act which is unexpected or unpredictable. For example, in Hallett, D injured V and left V unconscious on the water’s edge; V died by drowning when the tide rose. It was held that this was not a novus actus interveniens, as the rising of the tide is a predictable and ordinary event. D’s actions were the operating and substantial cause of V’s death. The causal chain would have been ruptured if there had been a tidal wave. Extraordinary natural phenomena, such as earthquakes, bolts of lightning or tidal waves, may sever the chain of causation: see Hallett.

Voluntary act by independent third party 3.28 The voluntary act of an independent third party may operate to sever the chain of causation. In R v Pagett (1983) 76 Cr App Rep 279, it was held that: … although an act of the accused constitutes a … necessary condition for … the death of the victim, nevertheless intervention by a third person may be regarded as the sole cause of the victim’s death, thereby relieving the accused of criminal responsibility. Such intervention, if it has such an effect, has often been described by lawyers as a novus actus interveniens: at 288.

In Pagett, D was found guilty of manslaughter for the death of V. D used V as a shield in front of him and then shot at police who were trying to arrest him. A police officer, returning fire, shot V dead. D argued that he did not cause the death of V, rather it was the police officer who had caused the death. The English Court of Appeal considered the facts of the case and held that D was still causally responsible for V’s death. It was held that a reasonable act, performed for self-preservation, does not amount to an intervening act if it is caused by D’s conduct. Consequently, the police officer’s act did not sever the chain of causation, because the officer was acting in self-defence.

Medical treatment 3.29 V may die after receiving medical treatment following an injury inflicted by D. Where the medical treatment is competent, and does no more than delay a death that has been made inevitable by the actions of D, that medical intervention is not a cause of death. For example, in R v Malcherek; R v Steel [1981] 2 All ER 422, the doctors disconnected the life support machine of two Vs attacked by D. V1’s brain was irretrievably damaged, and V2’s brain had ceased to function. It was held that the injuries inflicted by D were the continuing, operating and substantial causes of the Vs’ deaths. (Note that V2 would be regarded as already dead under legislation in each State.) Where medical treatment is incompetent and death follows, but it can be

said that V would have died anyway as a result of D’s actions, then the chain of causation is not ruptured. [page 39] Where death is not inevitable, but could have been averted with competent medical treatment, and V dies, questions of causation do arise. Generally, however, it can be stated that medical treatment, even bad medical treatment, will not rupture the causal chain, ie, D will be held to have caused the death of V. 3.30 The leading decision on this issue is R v Smith [1959] 2 QB 35, where V had received two bayonet wounds in the course of a fight at an army barracks. While being carried to the medical station he was dropped twice. At the medical station, medical staff failed to recognise the severity of his injuries and administered incorrect treatment. Medical evidence suggested that a wound of this kind would have tended to heal of its own accord, and V would have survived. It was held that, although the medical treatment was harmful, death still resulted from the stab wound received two hours earlier. Thus D would not be held to be causally responsible: … only if the second cause is so overwhelming as to make the original wound merely part of the history, can it be said that the death does not flow from the wound: at 42–3.

3.31 The case of R v Evans and Gardiner (No 2) [1976] VR 523 also demonstrates the principle that, generally, medical treatment will not break the chain of causation unless the treatment is so palpably wrong as to make the original wound merely part of the history. In that case V died almost one year after being stabbed by D. After the stabbing, a bowel resection operation was successfully performed. V was thought to have completely recovered, but 11 months later, died of a condition which was not an uncommon sequel to bowel resections. Medical evidence was presented that V’s condition should have been diagnosed and treatment would have rectified the condition. It was held that D still caused the death of V, as the original stabbing was the operating and substantial cause of death. 3.32 The exceptional case of R v Jordan (1956) 40 Cr App R 152 demonstrates that where medical treatment is ‘palpably wrong’, the causal chain may be ruptured. V had been stabbed by D and had almost healed when the doctors administered an antibiotic to which he was allergic. The medication was stopped upon observing his intolerance; however, due to inadvertence, he was administered the antibiotic again. He died as a result of this intolerance. It was held that the ‘palpably wrong’ medical treatment had ruptured the causal chain.

In cases like this, whether the medical treatment had ruptured the chain of causation would be a question of fact for the jury. It should be noted that the bulk of authority in this area is in favour of poor medical treatment not breaking the chain of causation.

Contributory negligence by victim 3.33 D’s acts need not be the sole or even dominant cause of death under the ‘operating and substantial cause’ test. Thus, D cannot escape responsibility merely because V’s actions also amounted to a substantial cause of death. D may still be causally responsible for V’s death, even though the injury might not have resulted in V’s death if V had refrained from conduct that made the injury worse, or had taken an obvious precautionary measure. For example, in R v Bingapore (1975) 11 SASR 469, D injured V in the head. V then left the hospital against advice from doctors. The next day, V was [page 40] brought back to the hospital needing urgent medical treatment, but subsequently died. It was held that D caused V’s death. This is because the acts of V were not the cause of death. Rather, V died as a result of the original injuries inflicted by D, notwithstanding V’s failure to obtain medical treatment.

Pre-existing condition 3.34 A general principle is that assailants must take their victims as they find them — the ‘eggshell skull’ principle. Under this principle, if one person attacks another, then it is said to be immaterial that an injury would not have resulted but for some antecedent condition of the victim. This has been applied to physical conditions such as in Mamote-Kulang v R (1964) 111 CLR 62, where a role in the cause of death was an enlarged spleen. In that case, Windeyer J stated at 84 that ‘a killing is not less a crime because the victim was frail and easily killed’. 3.35 The role of antecedent psychological conditions is less certain. However, in R v Blaue [1975] 3 All ER 446, the ‘eggshell skull’ principle was applied. In Blaue, V, a Jehovah’s Witness, refused a blood transfusion on the grounds of religious beliefs. The Court of Appeal upheld the conviction of D for manslaughter, stating that the principle that an assailant takes the victim as found applies to ‘the whole man, not just the physical man’: It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This, in our judgment, means the whole man, not just the physical

man. It does not lie in the mouth of the assailant to say that his victim’s religious belief, which inhibited her from accepting certain kinds of treatment, was unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about, did not break the causal connection between the act and death: at 450 per Lawton J.

The ‘eggshell skull’ principle performs the role of clarification of causal responsibility. The principle eliminates one causal factor, the antecedent condition, from considerations of causation. Thus, if V has a pre-existing condition that makes him or her particularly susceptible to injuries, D cannot argue that the causal chain is severed due to this pre-existing weakness: see Blaue.

Final fatal step by the victim 3.36 In a number of cases D has been found to cause the death of V where D frightened V, with the consequence that: ◆

V died; eg, due to a heart attack;

◆

D’s action led to V’s death; eg, V took steps to escape D, resulting in V’s death.

While D’s actions need not be the sole cause, the connection between D’s conduct and the death must be sufficiently strong to justify causal responsibility: see Royall v R (1991) 100 ALR 669. Where V takes a final fatal step, the issue of causation will arise, as it is uncertain whether this will rupture the causal chain as a novus actus interveniens. That is, has V’s reaction broken the chain of causation? 3.37 The foremost case in this area is Royall. In that case, D was charged with the murder of V who had fallen from the bathroom window of the sixthfloor flat where [page 41] they had lived together. They had had a violent quarrel, and D admitted to assaulting V. One of the hypotheses advanced by the prosecution was that V had jumped from the bathroom window in order to escape D. The High Court attempted to outline a test for causation. It is possible to generalise and summarise the four different tests proposed by the seven justices in the five different judgments: (a) ‘Common sense’ test A majority of the justices (Mason CJ, Toohey and Gaudron JJ, McHugh J, Deane and Dawson JJ) stated that, generally, it will be

sufficient to advise juries to consider whether or not causation can be established by using their common sense. However, all of the justices recognised that this test will not provide sufficient guidance in more complicated causal situations. (b) ‘Substantial and operating cause’ test Deane and Dawson JJ (at 693), Toohey and Gaudron JJ (at 702), Brennan J (at 683) and McHugh J (at 715) held that the ‘substantial and operating cause’ test should be applied to determine questions of causation. (c) ‘Natural consequences’ test Mason CJ stated: … where the conduct of the accused induces in the victim a well founded apprehension of physical harm, such as to make it a natural consequence (or reasonable) that the victim would seek to escape, and the victim is injured in the course of escaping, the injury is caused by the accused’s conduct: at 676.

That is, for D’s act to have caused V’s death, V must have apprehended physical harm. Additionally, there is an objective component requiring this fear to be well founded. When considering whether V’s fear was well founded, juries should be reminded that persons under pressure do not always have time to make a rational decision. (d) ‘Reasonable foreseeability’ test Brennan J (at 683–4) stated that D would be criminally responsible for the death of V where the death has been caused by a final fatal step of V, where: ◆

the reaction of V was reasonable or proportionate; or

◆

the harm was reasonably foreseeable on an objective view.

McHugh J (at 720–1) considered that D should not be held liable unless: ◆

D’s conduct induced V to take the step which resulted in the harm; and

◆

D intended the harm; or

◆

the harm was objectively a reasonably foreseeable consequence of D’s act.

The majority of the Court appears to have endorsed the ‘common sense’ and ‘operating and substantial cause’ tests, which are recognised to leave a

substantial amount of discretion to jurors. Deane, Dawson, Toohey and Gaudron JJ endorsed the ‘common sense’ test for issues of causation. Toohey and Gaudron JJ suggested that this test would encourage jurors to consider whether D had made a substantial contribution to the result: at 702. Deane and Dawson JJ stated that the ‘substantial cause’ test may be [page 42] supplemented by encouraging jurors to use their common sense: at 693. At a minimum, either or both the ‘common sense’ and ‘substantial cause’ tests should be applied when considering the issue of causation where V has taken the final fatal step. The High Court did not expressly reject the test of reasonable foreseeability. However, Gaudron and Toohey JJ agreed with Mason CJ and Deane and Dawson JJ that ‘members of a jury are less likely to be confused if foreseeability is not introduced into the direction on causation’: at 703. 3.38 The minority’s ‘reasonable foreseeability’ test in Royall is problematic, due to the reliance on ‘reasonable’ reactions by V. This principle appears to conflict with the traditional common law rule of taking the victim as found: see, eg, Blaue. The justices in Royall considered that the circumstances would be taken into account, and there was a recognition that ‘persons fearful for their own safety, forced to react on the spur of the moment, will not always make a sound or sensible judgment and may act irrationally’: at 390 per Mason CJ. However, a judgment of the reaction of the victim would still be measured in terms of its reasonableness. The problem raised by these principles could be a reflection of the facts of the case, where V had only one possible escape route. The justices did not need to consider the issue of causation in a case where V had several possible escape routes and chose poorly, ie, where the death of V resulted from taking unreasonable means to escape from a reasonable apprehension of danger from D. 3.39 The New South Wales Court of Criminal Appeal considered causation in McAuliffe and McAuliffe v R (1995) 183 CLR 108. In that case, D attacked and bashed V near the edge of a cliff, leaving him seriously injured and dazed, with the result that he fell over the cliff to his death. The Court considered the High Court judgment in Royall and the issue of whether foreseeability should be raised in considering causation. However, the Court determined that in this case there was ‘no question of an overreaction on the part of the deceased such as might, on some views, call for the introduction of notions of foreseeability’: at 307.

3.40 R v Cuong Quoc Lam (2005) 15 VR 574 considered the question of causation. In that case, D1 and D2 were charged with the murder of V1 and V2. The prosecution asserted that D1 and D2 were acting in concert and had chased V1 and V2 who, in order to escape, had jumped into the Yarra River where they had both drowned. The prosecution submitted that it did not have to prove that D1 and D2 had chased the Vs all the way to the river. The prosecution argued that even if the jury found that D1 and D2 had only chased the Vs to a bus stop some hundreds of metres from the river, but then had stopped to attack a third victim, it was still open to the jury to find that D1 and D2 had caused the Vs to flee and had thus caused their deaths, even if other individuals had then chased the victims from the bus stop to the river. It was held that D1 and D2 would not be responsible for the deaths in such circumstances. Causal responsibility could not be assigned to D1 and D2 if the jury found that their behaviour had not extended beyond the immediate vicinity of the bus stop. In those circumstances, it would be the conduct of the third parties that had caused the deaths of the Vs. 3.41 A drug supplier does not cause the death of a user who voluntarily takes a drug: Burns v R (2012) 290 ALR 713. The act of the user in voluntarily and knowingly taking the drug is a novus actus interveniens.

[page 43]

Chapter 4 Murder Objectives After reading this chapter you should be familiar with the following: ▶ common law murder in South Australia and Victoria ▶ intentional murder ▶ reckless murder ▶ constructive murder ▶ murder in New South Wales under statute ▶ responsibility for omissions ▶ contemporaneity of mens rea and actus reus

INTRODUCTION 4.1 The offences of murder and manslaughter evolved at common law. The main distinction between murder and (involuntary) manslaughter at common law was and is whether D had killed with ‘malice aforethought’. Malice aforethought can be expressed as the mens rea or the ‘fault’ element of murder. In South Australia murder is still purely a common law offence. In Victoria murder continues in its common law form, excluding the felony murder rule which has been replaced by legislation that is closely related to the common law. Statute has replaced the common law offence of murder in New South Wales. Additionally, each State has constructive murder offences. In South Australia and Victoria the common law ‘resisting arrest murder’ rule continues to apply. The common law murder requirements will be considered first. The extent to which the New South Wales legislation differs from the common law will then be outlined. [page 44]

Elements On a charge of murder the prosecution must prove beyond a reasonable doubt: •

•

•

actus reus: •

voluntary act or omission (if D has satisfied the evidential burden);

•

caused the death of V

with mens rea: •

intention to kill; or

•

intention to inflict grievous bodily harm (GBH); or

•

reckless indifference to human life; or

•

reckless indifference to GBH (South Australia and Victoria only)

actus reus and mens rea at the same time.

COMMON LAW MURDER: SOUTH AUSTRALIA AND VICTORIA 4.2 Both South Australia and Victoria continue to rely upon the common law for the offence of murder. The relevant sections criminalising murder do not provide a definition of the necessary components: see s 3 (Vic); s 11 (SA). For example, s 11 (SA) states: Any person who commits murder shall be guilty of an offence and shall be imprisoned for life.

[page 45] As a consequence it is necessary to refer to common law murder. Coke defined murder as: … when a man of sound memory and of age of discretion unlawfully kills any reasonable creature in being, and under the King’s peace, with malice aforethought, either express or implied by the law, the death taking place within year and a day: 3 Inst 47.

While malice aforethought has a complicated history, the modern view is that it can be found to have existed when D’s act or omission causing death: (a) was accompanied by an intention to kill; (b) was accompanied by an intention to inflict GBH; (c) was accompanied by reckless indifference to death; (d) was accompanied by reckless indifference to GBH (South Australia and Victoria only); (e) (i) was an intentional act of violence in the course of a major indictable offence punishable by at least 10 years imprisonment (South Australia only: s 12A (SA)); (ii) was a foundational offence ‘the necessary elements of which include violence’ punishable by at least 10 years imprisonment (Victoria only: s 3A (Vic)); or (f) was committed while D knowingly sought to resist, prevent, or escape from lawful arrest: R v Ryan and Walker [1966] VR 553.

Points (a) to (d) are normally referred to as examples of express malice. Points (e) and (f) are examples of implied or constructive malice. Each of these heads of murder — intentional murder, reckless murder, constructive murder and resisting arrest murder — will be considered in turn.

Intentional murder 4.3 Intentional murder occurs when D does an act causing death, while simultaneously intending to cause death or GBH: see R v Miller [1951] VLR 346 at 255. In all jurisdictions the intention to kill or inflict GBH are heads of murder.

Intention 4.4 There is some controversy regarding what directions should be given to juries regarding intention, with some believing that ‘intention’ need not be explained (eg, R v Moloney [1985] AC 905); and others arguing that this results in an imprecise concept. Generally, it can be said that ‘intent’ does not need to be explained to the jury, as it is given its everyday meaning. A person may intend to do something when: ◆

the purpose of acting is to make something occur; or

◆

its occurrence is a virtually certain consequence. An example of this is when D wishes to blow up a plane mid-flight to collect insurance. D may realise that the deaths of all the people on the plane are a virtually certain consequence, but bombs the plane anyway. Thus, it would be held that D intended to kill the plane passengers, even though D may have preferred not to kill them: see R v Sancar [1999] NSWCCA 284. [page 46] Student tip

There is no need to define intention.

Intention to kill 4.5 D’s intention must be to kill a person. Thus, if D shoots into a crowd of people and kills V, D would be liable for the murder of V if D had the intention to kill, even if D had no particular person in mind: see R v Martin (1881) 8 QBD 54. If D intended to kill V1 but actually kills V2, D is still liable for the murder of V2 and the attempted murder of V1. At common law, this is termed the doctrine of transferred malice and is discussed at 4.38ff. 4.6 Subjective standard The prosecution must prove that D actually possessed the intention to kill, rather than the state of mind of an ‘ordinary person’. From the 19th century onwards, many cases stated ‘one normally intends the consequences of one’s act’ (or words to that effect). This phrase may not be misleading when referring to someone aiming a gun at someone and pulling a trigger. But, the phrase can be problematic. In Gollins v Gollins [1964] AC 644 Lord Read explained: In fact people quite often intend something quite different from what they know to be the natural and probable result of what they are doing. To take a trivial example, if I say I intend to reach the green, people will believe me although we all know that the odds are ten to one against my succeeding; and no one but a lawyer would say I must be presumed to have intended to put my ball in the bunker because that was the natural and probable result of my shot: at 664.

4.7 It has been held that the statement ‘one normally intends the consequences of one’s act’ should not be used when directing juries as to mens rea: see Smyth v R (1957) 98 CLR 163. This principle was reiterated and explained in R v Schonewille (unreported, VSC, BC9707563, 18 December 1997, Vincent J). In that case, D (a school student) stabbed a woman to death. D admitted his part in the homicide but denied any intention to kill or do serious injury. On the morning of the killing D had prepared himself for

school but, instead of going there, had cycled to V’s nursery. D took a small knife with him, which belonged to his uncle. He went to the nursery with the intention of stealing money if the opportunity presented itself. He saw V leave the office and made his way to the office. D was looking for money when V returned and saw him. V screamed and attempted to hit D with a piece of wood. V then picked up a phone, and D, fearing he was about to be exposed, grabbed the phone and struggled with V. In the process, his knife tumbled from his pocket. He grabbed the knife and in the heat of the moment struck V one blow in the back. D claimed that he did not intend to kill V, but rather to stun her. The only issue at trial was the intent with which D stabbed V. The Crown relied upon the obvious planning, the taking of the knife, the motive, the desire not to be identified, and the nature of the act which caused death, to argue that D had the intention to kill. D claimed that he lacked mens rea for murder. The trial [page 47] judge directed the jury that ‘one normally intends the consequences of one’s act’. On appeal, the Supreme Court held that this statement was inappropriate: Courts in this country have consistently said that, in cases where specific intent is an ingredient of the crime alleged, it is wrong for trial judges to tell juries that there is a presumption that a person intends the consequences of his or her acts.

The direction by the trial judge was problematic because it suggested to the jury that they might rely upon an objective test in determining the actual intent of D: It was but part of a direction which, in its essence, was calculated to invite the jury to have resort to a tenet of general human behaviour, rather than determining whether this accused, on the evidence in this case, had been shown beyond a reasonable doubt to have harboured the relevant intent.

The prosecution must prove that the accused had the necessary intent at the time of the relevant act. A new trial was ordered. See also R v Schaeffer (2005) 13 VR 337. Student tip The prosecution must prove D’s actual state of mind at the time of the act or omission causing death — not what an ordinary or reasonable person would have thought.

Intention to inflict grievous bodily harm 4.8 ‘Grievous bodily harm’ means ‘really serious bodily harm’: see R v Perks

(1986) 41 SASR 335. It is not necessary that the harm is either permanent or dangerous: see R v Ashman (1858) 1 F & F 88. The issue of GBH arose for consideration in Perks, where a husband was convicted of murder after strangling his wife in the course of a violent struggle. On appeal, it was held that the trial judge’s direction that murder was committed if D intended to inflict ‘serious bodily harm’ was insufficient. This was because the lack of a weapon raised doubts about the level of contemplated harm. Thus the phrases ‘grievous bodily harm’ and ‘really serious bodily harm’ should have been used: at 347. Whether D intended to cause grievous bodily harm is a question of fact for the jury. In Rhodes v R (1984) 14 A Crim R 124, D stated that he did not intend to kill the victim or cause GBH when he held a pillow over V’s face, but rather intended to render her unconscious. It was held that it was open to the jury to determine that the intention to render V unconscious amounted to an intention to inflict GBH. 4.9 The High Court considered GBH in Meyers v R (1997) 147 ALR 440. D had a loud and long quarrel with his girlfriend, V. The neighbours heard screams and yelling, thumps or bangs, and other sounds of violence. V sustained injuries to various parts of her body, particularly on virtually every part of her head. She died from cranial injuries that would have required at least two or three hits on the head. The major issue for the jury was whether D had the necessary intention to cause really serious injury to V at the time when he inflicted the blows that caused her death. [page 48] The Victorian Court of Criminal Appeal and the High Court held that it was necessary to look at the whole altercation, rather than the fatal injury in isolation, when determining whether D had the necessary intention to inflict GBH. The Victorian Court stated that: The infliction of injuries other than the fatal injuries was to be taken into account by the jury in determining intent: at 440.

The High Court emphasised that the prosecution must prove that D had the necessary intent at the time of inflicting the injuries that caused V’s death. It was not enough for the prosecution to prove that some acts were done with the necessary intent, while being unable to prove that the relevant acts were done with intent. This issue was relevant because D claimed that, at some stages of the fight, he had responded to V in self-defence and merely pushed her away, without intending to cause serious injury. D claimed that V had hit her head against a table when he pushed her away, and hence the relevant fatal

injury was not caused with intent to inflict GBH. However, the High Court held that it was open to the jury to reject D’s story, given that V’s injuries were not consistent with his claims. The High Court then stated that it was open to the jury to consider the sequence of events when determining D’s mens rea at the time of causing V’s death: The question is whether evidence of this sequence of events provided a sufficient foundation of fact for a reasonable jury to be satisfied that the act or acts which caused the death of Tracey McNamara was or were done with the intent to cause her really serious injury … The jury were entitled to reach the conclusion that the appellant had repeatedly banged the deceased’s head against a flat surface — wall, table or floor — with the intent to do her really serious injury: at 442.

D’s conviction for murder was upheld. See also R v McDonald [2015] SASCFC 99 at [26]. Student tip Be careful when reading English cases in this area, as England has developed different rules for the mens rea of murder.

Reckless murder 4.10 D commits reckless murder where D foresees, while committing the act, that it will probably cause death or GBH, although D does not intend that this consequence should occur. The common law definition of recklessness only applies in South Australia and Victoria. Definition Reckless indifference in murder is defined as recognition of the probability of death or GBH in Victoria and South Australia: see R v Crabbe (1985) 156 CLR 464.

[page 49] 4.11 The current authoritative case is Crabbe. In that case, after D was ejected from a pub, he drove his truck through the pub wall, resulting in the deaths of five people, with many more injured. The High Court held that: It should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results. It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result: at 469–70.

Thus, if the jury determines that D recognised only the possibility of death,

then D will not be guilty of reckless murder, but may be guilty of manslaughter. In La Fontaine v R (1976) 136 CLR 62, the High Court held that the issue of recklessness should only be left to the jury when it arises as a real possibility on the facts of the case. The High Court also held that the word ‘reckless’ should not be used when directing the jury as to murder. In R v Windsor [1982] VR 89, it was held that it was appropriate to leave the issue of recklessness to the jury, because D had denied mens rea. In that case, D had fired seven shots, five of which had passed through the door of V’s flat. D argued that he lacked the intention to kill or inflict GBH, but that he had wanted to frighten V, who he believed was holding a gun. D would be guilty of murder if he had the intention to kill or inflict GBH, or recognised the probability of death or GBH.

Emotional state of D 4.12 The emotional state of D is immaterial to the head of reckless murder. The majority in Crabbe made it clear that the key element is knowledge of the probability of death, rather than indifference to the risk. This means that, on the facts of Crabbe, the prosecution need only prove recognition of the probability of death or GBH. The prosecution need not prove indifference to causing death. Thus, if D hopes that he or she will not cause death or GBH, while recognising that he or she probably will, D will be recklessly indifferent.

Probability 4.13 The word ‘probable’ need not be explained to the jury, and it appears to be sufficient to use the words ‘likely’ and ‘probable’ in the correct context: see Boughey v R (1986) 161 CLR 10 at 19. Judges are not to direct juries in terms of ‘a more than 50 per cent chance’ or ‘an odds-on chance’: see La Fontaine at 99 per Jacobs J. In Boughey, Mason, Wilson and Deane JJ stated that ‘likely to cause death’ did not require that the risk had to be more probable than not, but rather that the risk had to be ‘real and not remote’. The justices stated that it was inappropriate to talk in mathematical terms of probability: In the ordinary case where an accused well knows that it is probable or likely that his acts will cause death or grievous bodily harm, he will not have the occasion to consider, let alone to calculate, the degree of probability that death or grievous bodily harm will in fact result: at 19– 20.

[page 50]

4.14 The refusal to talk in mathematical terms is also based on the consideration that to do so may exclude from liability a defendant who causes death in the situation where D was aware of creating a risk of death, but this risk was less than 50 per cent. R v Faure [1999] 2 VR 537 raised this issue. In this case D was charged with murder after shooting and killing V. D’s defence was that they had both been drinking and had played a form of Russian roulette. D stated they had played with a six-shot revolver loaded with one round of ammunition, and they had by agreement twice pulled the trigger while pointing the gun at the other. D appealed successfully on the ground of inadequate direction as to intoxication. Brooking J also considered recklessness: When text writers describe a game like Russian roulette as dangerous they are not gainsaying the role of the jury. They are seeking to convey that a reasonable jury, properly instructed, should find that the necessary element of danger existed in such a case. To make the process of reasoning more explicit, they are asserting a proposition of law, namely that ‘probable’ as contrasted with ‘possible but not likely’ (R v Crabbe (1985) 156 CLR 464 at 469–70) means a substantial, or real and not remote, chance, whether or not it is more than 50 per cent (Boughey at 21 per Mason, Wilson and Dawson JJ) and saying that accordingly in the case put a reasonable jury should regard the chance as substantial: at [551].

Thus, Brooking J considered: In my own view it is dangerous in the necessary sense to fire once with one round in a six-round chamber: at [549].

Social utility 4.15 The term ‘recklessness’ in criminal law is based on a notion of unjustified risk. Hence there have been suggestions that where D engages in risk-producing conduct, D will not incur liability where those actions have social utility: see Crabbe. Social utility arguments would be measured against the standards of reasonable people in order to justify the risk. A classic example is where a doctor recognises the need to operate, knowing that V will almost certainly die without the operation, but lacks medical facilities due to the urgency of the situation, thus risking the death of V. In these circumstances, the doctor would not be reckless and would lack malice.

Wilful blindness 4.16 The High Court considered wilful blindness in Crabbe to be irrelevant where the question is one of murder by recklessness.

Directions to the jury 4.17 In R v TY (2006) 12 VR 557, D was a member of a group that became

involved in an altercation with another group. D struck V twice in the head with the steel tip of an umbrella, causing V’s death. The judge directed the jury on reckless murder and manslaughter by unlawful and dangerous act. D was convicted of murder. On a successful appeal, the Victorian Supreme Court held that the directions of the judge were deficient in that the judge had failed to distinguish expressly between the mental elements of reckless murder and manslaughter by unlawful and dangerous act. It is important that the jury be warned ‘not to conclude that [the accused] [page 51] foresaw the probability of death or really serious injury because they thought a reasonable man would have appreciated the same danger’ (at [17] per Warren CJ). Warren CJ stated at [2]: … a jury … should be directed that they must be satisfied beyond reasonable doubt that: 1. The accused caused the death of the deceased. 2. The accused ought and must have foreseen the consequences of the act contemplated; and further that, 3. In assessing foresight, what a reasonable person might have foreseen is relevant but the accused’s actual state of mind is critically important and they should not treat what they think a reasonable person’s reaction would be in the circumstances as decisive of the accused’s state of mind. 4. In assessing the accused’s state of mind the accused’s circumstances are relevant (such as age, background, educational and social circumstances, emotional state and state of sobriety).

Constructive murder 4.18 The constructive murder rule is based on the old common law rule that it was murder to cause death in the course of committing any unlawful act (felony murder). The head of felony murder is based on the grounds that those involved in violent crimes should reap what they sow. Related to this is the desire to encourage those engaged in violent crimes to temper the quantum of violence used. Felony murder can be described as constructive murder, as there is only the requirement that D has caused the death voluntarily in furtherance of a felony. Thus the prosecution need not prove the mens rea for murder. As a consequence of abolishing the distinction between felonies and misdemeanours, both Victoria and South Australia have introduced statutory forms of constructive murder. Felony or constructive murder applies in circumstances where D did not possess the mens rea for murder. The mens rea is imputed to D because D kills V during the commission of specific serious offences, or in the course of resisting arrest.

4.19 This doctrine has been criticised due to the possibility of liability for the most serious of crimes being based only on mens rea for the foundational crime. The Criminal Law and Penal Methods Reform Committee of South Australia (Fourth Report, 1977) and the Victorian Law Reform Commission (Homicide, 1991) have recommended the complete abolition of the felony murder rule and the resisting arrest murder rule. In 1957, England abolished the felony murder and resisting arrest murder rules with the Homicide Act.

South Australia 4.20 In 1994, the Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act (SA) inserted s 12A into the Criminal Law Consolidation Act 1935 (SA): A person who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for 10 years or more (other than abortion) and thus causes the death of another, is guilty of murder.

[page 52] Elements Section 12A requires the prosecution to prove beyond a reasonable doubt: •

a major indictable offence punishable by at least 10 years imprisonment — this means that the prosecution will have to prove the mens rea and actus reus of the foundational offence;

•

an intentional act of violence in the course of or in furtherance of the offence; and

•

this voluntary act of violence caused the death of V.

4.21 Constructive murder was considered in R v NJA [2002] SASC 113 where D, with four other men, agreed to rob V of his mobile phone. The men were armed with knives and other weapons. One man, E, presented a knife at the beginning of the robbery, demanding the phone. When V refused, E stabbed him, causing V’s death. With regard to the elements listed above: 1. A major indictable offence D committed the major indictable offence of robbery with wounding, punishable by at least 10 years imprisonment. 2. An intentional act of violence in the course of or in furtherance of the offence Section 12A confines constructive murder to ‘intentional’ acts of violence. What is an ‘act of violence’ is a question of fact for the jury. Examples include presenting a knife for the purpose of threatening or intimidating someone (see NJA); and the intentional and menacing pointing of a loaded and cocked gun at close range: see R v Maurangi

(2000) 80 SASR 295. D argued that E had become aggressive, and his action of stabbing V was separate from the robbery and the initial presentation of the knife. It was held that the stabbing was in the course of the offence. 3. This voluntary act of violence caused the death of V D argued that E’s act of aggression broke the causal chain, as E’s actions were outside the contemplation of D. It was held that it was correct to apply Royall v R (1991) 172 CLR 378 (see 3.37) and Ryan v R (1967) 121 CLR 205 (see 3.16). The trial judge should identify the earliest possible act that could possibly be identified as causing the death of V, in this case, the presentation of the knife by E. It would then be left to the jury to determine, using their common sense, whether the men’s actions were a substantial and operating cause of death. It was inappropriate to attempt to isolate the cause of death to the stabbing.

Victoria 4.22 Victoria has replaced the common law offence of felony murder with s 3A(1) of the Crimes Act 1958 (Vic): A person who unintentionally causes the death of another person by an act of violence done in the course of or furtherance of a crime, the necessary elements of which include violence for which a person on first conviction may, under or by virtue of any enactment, be sentenced to life imprisonment or imprisonment for 10 years or more, shall be liable to be convicted of murder as though he had killed that person intentionally.

[page 53] Section 3A(1) creates an offence of constructive murder which parallels the common law offence of felony murder. There is no requirement that D had the necessary mens rea for murder. Elements In order to establish constructive murder in Victoria, the prosecution must prove the following beyond a reasonable doubt: •

a foundational offence, ‘the necessary elements of which include violence’, punishable by at least 10 years imprisonment;

•

D caused the death of V;

•

in the course of or furtherance of the foundational offence; and

•

with a voluntary act of violence.

Each of the requirements of constructive murder in Victoria will be considered in turn.

4.23 A foundational offence,‘the necessary elements of which include violence’ The major difference between the common law definition of felony murder and the Victorian definition of constructive murder is the requirement that the killing occurred in the course of or furtherance of a crime, ‘the necessary elements of which include violence’. This phrase was inserted as an amendment to the Bill during its passage through parliament. The amendment makes it clear that a crime does not form the basis for the new constructive murder rule merely because it is committed in circumstances of violence. Rather, for the constructive murder rule to operate, the crime must be one ‘the necessary elements of which include violence’. This wording is more restrictive than the common law requirement of a felony committed with violence. That is, the common law felony murder applied to the manner with which a felony was committed, while the Victorian statute focuses upon the components of the offence. The intent of the amendment was to limit the operation of the felony murder rule, as it was perceived as offending against ‘basic concepts of justice’: see Hansard Vol 358, Col 8688, 6 May 1981. One crime which would have attracted the operation of the felony murder rule, but would not be within the Victorian statutory reforms, is kidnapping: see s 63A (Vic). This is because kidnapping can take place without violence, eg, where V is enticed or detained by deception. Therefore, kidnapping would not satisfy the requirement of ‘the necessary elements of which include violence’. It is questionable whether rape would fall within the ambit of the constructive murder rule. In R v Butcher [1986] VR 43 the Supreme Court of Victoria spoke of rape and robberies as felonies ‘intrinsically involving violence’. However, rape can be committed without what would be defined strictly as an act of violence, eg, in cases where V is mistaken as to D’s physical identity. [page 54] Crimes which may attract the operation of the constructive murder rule in Victoria include robbery (s 75), armed robbery (s 75A), aggravated burglary (s 77) and using a firearm to resist arrest (s 29). The prosecution must prove the mens rea and actus reus for the relevant foundational offence. 4.24 D caused the death of V This requirement raises issues of causation,

which are discussed in Chapter 3. It can cover situations where D causes the death of V without intending to do so. 4.25 In the course of or furtherance of the foundational offence The death must be related to the foundational offence, but the foundational offence need not have caused the death: see Munro v R (1981) 4 A Crim R 67. 4.26 With a voluntary act of violence This requires that the act of D was voluntary. The lack of mens rea required for the offence of constructive murder means that voluntariness can be very important in avoiding criminal liability: see, eg, R v Butcher [1986] VR 43; Ryan v R (1967) 121 CLR 205. The courts have looked at what will constitute an ‘act of violence’. In Butcher, the Supreme Court of Victoria stated that examples include: an act of violence; or putting someone in fear, or seeking to put them in fear, including threatening physical force, injury to property or injury to reputation. In R v Galas; R v Mikhael (2007) 18 VR 205 it was held that the act of holding a loaded gun in one hand at the same time as attempting to restrain a person by tying his hands behind his back was ‘capable of being found to be an act of violence’. In R v Maurangi and Rivett (2000) 80 SASR 295, Matheson AJ approved Butcher. The High Court held in Arulthilakan v R (2003) 203 ALR 259 that it is for the jury, not the judge, to determine whether an act is an act of violence. Example The Full Court of the Supreme Court of Victoria considered the Victorian definition of constructive murder in Butcher. In that case, D was charged with murder. D borrowed a knife from a friend ‘to get some money’ and entered a milk bar, taking the knife with him ‘just to scare the owner of the shop’. D threatened V, the owner of the shop, and pulled the knife out and held it in front of him. D was standing about three or four feet away from V. V ran at D and the knife went into his stomach. V died as a result of the wound. The four requirements for constructive murder will be applied to the facts of the case. 1. A foundational offence, ‘the necessary elements of which include violence’ The foundational offence in Butcher was armed robbery. The knife was an offensive weapon within the meaning of s 77(1) (Vic). D argued that the definitions of armed robbery in ss 75 and 75A (Vic) did not include the word ‘violence’. Hence, the constructive murder rule as defined under s 3A (Vic) would not apply, as violence was not a necessary element of the statutory definition of armed robbery. The Full Court [page 55] threats to induce fear and intimidate, and not simply the use of physical violence. It was held that robbery is an offence ‘the necessary elements of which include violence’. 2. D caused the death of V The Court referred to Ryan, stating that it was inappropriate to isolate the forward movement of

V and to conclude that it was this movement alone that caused V’s death. It was open to the jury to find that: … exhibiting the knife, pointing it at the stomach of his victim when he was only a few feet away, whilst at the same time demanding his money, was ‘an act of violence’ which caused the death of V: at 59. 3. In the course of or furtherance of the foundational offence The stabbing was during the course of the foundational offence. 4. With a voluntary act of violence Voluntariness was raised as an issue because V ran at D. The Court applied the reasoning in Ryan, asserting that the relevant act was not the stabbing. Rather, the relevant act commenced with holding out the knife, which was a voluntary, willed act. The Supreme Court held that holding a knife out and threatening V was an act of violence. D stated that he had intended not to stab V, but merely to scare him into handing over money. Consequently, D argued that a threat of force was not violence. It was held that violence included intimidation by the exhibition of physical force or menaces.

Resisting lawful arrest 4.27 At common law, it is murder to cause death by a violent act while knowingly resisting, preventing or escaping from lawful arrest: see R v Ryan and Walker [1966] VR 553. This rule continues to apply in South Australia and Victoria (note that s 3A(2) (Vic) only abolished the felony murder rule). In New South Wales, no separate resisting lawful arrest rule exists: see R v Foster (1995) 78 A Crim R 517. The resisting lawful arrest rule applies to all lawful arrests, whether undertaken by police or private citizens, and also applies to the conduct of persons lawfully assisting another to effect arrest. The prosecution must establish: ◆

death occurred by a voluntary and intentional act of violence; and

◆

at the time of inflicting the violence, D was aware of the facts that amount in law to the resisting, preventing or escape from, lawful arrest.

MURDER: NEW SOUTH WALES 4.28 The common law offence of murder has been replaced by statutory provision in New South Wales. To a large degree, s 18 (NSW) reflects common law murder, but with marginal differences (set out in the discussion that follows): (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by

him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately

[page 56] after the commission, by the accused or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. … (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.

Malice 4.29 Section 18(2)(a) imports a requirement of malice for liability. It has been held that this requirement adds nothing to the fault elements of murder, due to the breadth of the definition of ‘malice’ under the since repealed s 5. Under s 5, malice was defined as: … every act done of malice … with indifference to human life or suffering, or with intent to injure … without lawful cause or excuse, or done recklessly or wantonly.

Clearly, where D has the intention to cause death or GBH, or acts with reckless indifference to human life, D will necessarily satisfy the requirement of malice. In cases of constructive murder it has been held that D will satisfy s 18(2)(a) where D has acted with the appropriate mens rea for the foundational offence: see Mraz v R (1955) 93 CLR 493. In Mraz, D was charged with constructive murder of a woman. She had died during or immediately after an alleged rape. The trial judge held that unless there was some malice in D’s actions, then there was no constructive murder. The trial judge directed the jury that ‘rape did not necessarily connote an intention to injure, and if … they considered that the accused had acted toward the gratification of his own lust, and not to injure the deceased’, then he had not acted maliciously: quoted at [4] by Fullagar J. The New South Wales Court of Criminal Appeal and the High Court rejected the trial judge’s formulation of malice. It was held that: ◆

a separate discussion of malice in this context was not necessary;

◆

the very fact that the acts done were associated with rape was enough to establish the malice required for s 18;

◆

once the serious foundational crime is established, there is no need to look separately at the requirement of malice for s 18.

As a consequence, the courts have treated the requirement of malice in s 18(2)(a) as redundant. Student tip There is no need in New South Wales to refer to s 18(2)(a) when stating the offence components of murder.

Intentional murder 4.30 The intentional causing of death or GBH category of murder is identical with intentional murder at common law. The common law position regarding intentional murder is outlined at 4.3 above. [page 57] The only difference is that New South Wales has a statutory definition of GBH as including (s 4): (a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).

As a consequence of the inclusive statutory definition of GBH, the common law definition of GBH continues to be applicable in New South Wales. Unless there are specific facts of the case raising the statutory definition, the practice tends to be to ask juries to apply the common law definition of GBH, ie, ‘really serious bodily injury’: R v Perks (1986) 41 SASR 335.

Reckless murder 4.31 The head of reckless murder under s 18 differs from the common law in one major way, as s 18 has been construed as limiting the mens rea for reckless murder to knowledge of the probability of death: see Solomon v R [1980] 1 NSWLR 321; Royall v R (1991) 172 CLR 378 at 395, 417, 431, 455. In Solomon, the New South Wales Court of Criminal Appeal held that recklessness had a limited operation in murder due to the operation of s 18. It was held that s 18 requires ‘reckless indifference to human life, not merely reckless indifference to whether serious harm might be caused’: at [48]. The common law mens rea for reckless murder includes recognition of the probability of death or GBH. Under s 18, where D acts with the knowledge or the foresight that GBH is a probable result of his or her actions, D will not

have committed reckless murder. D would incur liability for manslaughter only. Thus, in New South Wales, the prosecution must prove D recognised the probability of death in order to establish reckless indifference to human life. Definition In New South Wales reckless indifference to human life is defined as the recognition of the probability of death: see Royall.

Constructive murder 4.32 The constructive head of murder under s 18(1)(a) is similar to common law constructive (felony) murder. Like the common law, the mens rea for constructive murder under s 18(1)(a) is limited to a requirement that D possess the mens rea for the foundational crime. The act causing death must have been performed voluntarily: see Ryan. The major differences between the New South Wales statutory definition of constructive murder and the common law requirements for felony murder are that: ◆

New South Wales requires a foundational offence punishable by at least 25 years in prison, while the common law merely requires a felony committed with violence; and [page 58]

◆

New South Wales requires the act causing death to be done ‘in an attempt to commit, or during or immediately after’ a 25-year foundational offence, while the common law requires the death to have been caused ‘in the course or furtherance of ’ a specified offence.

Elements Under s 18 the prosecution must prove the following elements to establish constructive murder in New South Wales: •

a 25-year foundational offence;

•

D caused the death of V;

•

with a voluntary act; and

•

in an attempt to commit, or during or immediately after the foundational offence.

Each of the requirements of constructive murder in New South Wales will be considered in turn.

A 25-year foundational offence 4.33 Foundational offences under s 18(1)(a) are limited to only the most serious offences, ie, those punishable by imprisonment for life or for 25 years. Most of these foundational offences will include at least the mens rea for common assault. Examples include: ◆

assault offences with intent to do GBH: s 33;

◆

breaking and entering a house and, while therein, inflicting GBH: s 110.

In R v Foster (1995) 78 A Crim R 517, D contended that he had not produced a knife until after he had stolen amphetamines from V. He had then stabbed V when V had lunged at him. It was held that if the show of force did not take place until after the theft, the offence of armed robbery (s 98, NSW) had not been committed and therefore could not form the basis of a constructive murder case. In R v IL [2016] NSWCCA 51, it was confirmed that the foundational offence for constructive murder can be based on joint criminal enterprise (see Chapter 11). In that case, a fatal house fire was caused by a ring burner that was being used to cook methamphetamine. D was charged with the foundational offence of joint criminal enterprise to manufacture a quantity of methamphetamine, punishable by life imprisonment under s 33(3)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). The prosecution argued that D was engaged in a joint criminal enterprise of a 25-year foundational offence, which resulted in the ignition of the fire, which in turn caused the death of V. It was held that the trial judge had incorrectly directed an acquittal on the murder (and manslaughter) charge, on the basis that D had not foreseen the possibility of the death of V. On appeal it was held that all that was required was that D foresaw the act that would cause the death. That is, that the burner would be ignited as part of D and V’s common purpose to carry out the foundational offence, and that the death had occurred during the (attempt to) commit the foundational offence (ie, drug manufacturing). [page 59]

D caused the death of V 4.34 The principles of causation have already been outlined (see Chapter 3). In the case of Munro v R (1981) 4 A Crim R 67, D argued that the death of V was not the result of any ingredient in the foundational felony. D was

charged with the old offence of robbery and striking, or corporal violence which ‘thereby wounds any person’. D argued that the actual wounding, which was an ingredient in the felony, had not caused the death. V had died from being dropped on the floor, not from being struck. D’s argument was rejected. It was held that D could be charged with felony murder as long as: ◆

D was charged with a felony which had a maximum penalty of 25 years or more in prison; and

◆

D’s actions had resulted in the death of V, ie, D satisfied the causal requirements.

Therefore, there is no requirement that V’s death be in furtherance of the foundational crime. Under the Drug Misuse and Trafficking Act 1985 (NSW) the offence of supplying a ‘large commercial quantity’ of cocaine is punishable by life imprisonment. Potentially, therefore, D could be liable under the constructive murder rule if charged with this offence. However, death due to a drug overdose raises issues of causation. In R v Dalby [1982] 1 All ER 916, the Court of Appeal (UK) considered issues of causation where D unlawfully supplied a drug to V, and the latter injected himself with it, resulting in his death. It was held that the chain of causation had been broken by the voluntary act of V. Consequently, D could not be charged with unlawful and dangerous act manslaughter.

With a voluntary act 4.35 The act of the accused causing the death of the victim must be ‘willed’ and ‘conscious’: see Ryan. This is discussed at 3.13–3.18. 4.36 In an attempt to commit, or during or immediately after the foundational offence The only link required under statute between the foundational crime and the death is that the death occur: ◆

during an attempt to commit the offence;

◆

during the offence; or

◆

immediately after the offence.

4.37 ‘Immediately after’ The phrase ‘immediately after’ appears broader than the common law requirement of ‘in the course or furtherance of ’. The phrase ‘immediately after’ appears to accept that the act may be committed immediately after the offence, whereas ‘in the furtherance of ’ requires that the offence is not complete at the time. The question of how far ‘immediately

after’ extends was considered in Elliot and Hitchins v R (1983) 9 A Crim R 238. In that case, a taxi driver was robbed at knife point (the foundational crime). He was then taken to another location and stabbed some 45 minutes after the robbery. The question was whether the stabbing had taken place ‘immediately after’ the robbery. [page 60] It was held that, although 45 minutes had passed, the killing was still ‘immediately after’ the commission of the foundational crime. ‘Immediately’ had to be considered in context and did not necessarily need to be seconds or minutes after the foundational crime. It was considered that an integral part of the plan to rob the driver was the stabbing, and as such it could be viewed as occurring ‘immediately after’ the commission of the crime. Thus, ‘immediately after’ will be a question of fact to be considered in the circumstances. See Hudd v R [2013] NSWCCA 57 for a discussion of the phrase ‘during or immediately after’.

MISCELLANEOUS ASPECTS OF MURDER Transferred malice 4.38 Transferred malice is a concept of ancient origin: … if he strike at one and missing him kills another, whom he did not intend, this is felony and homicide, and not casualty per infortunium: Hale, 1 PC 38.

Under this doctrine, D may kill a person other than the person that D intended to kill. For example, D may shoot a gun at V1, intending to cause death, but miss and kill V2. D will be held liable for the death of the person other than the person in D’s contemplation, by several methods: 1. s 18 (NSW) does not require that D kill the intended V — the section is drafted to allow for a different victim to the one intended; 2. the common law heads of murder are similarly non-prescriptive; 3. the doctrine of transferred malice may also be relied upon. 4.39 R v Mitchell [1983] QB 741 provides a good example of causation issues and the operation of transferred malice. D applied force to X, as a result of which X fell against V. V suffered a broken femur which later caused a

pulmonary embolism due to thrombosis, leading to V’s death. It was held that V’s death was a direct and immediate consequence of D’s actions. That is, D caused V’s death. The Court also held that D’s intentions for X could be transferred to V. The House of Lords considered the doctrine of transferred malice in Re Attorney-General’s Reference (No 3 of 1994) [1998] AC 245. In that case, D stabbed a woman who he knew to be pregnant. As a result, the woman gave birth prematurely to V, who was born alive and then died. The question was whether D could be liable for murder of V. If the doctrine of transferred malice applied, then D could be liable for the murder of V, provided he had the intention to kill or inflict GBH on the mother at the time of the act causing death. The House of Lords stated that it was inappropriate to extend the doctrine of transferred malice to V, as this death was too removed from D’s initial intent. This case is examined in more detail in Chapter 3. The New South Wales Court of Criminal Appeal has left unresolved the reach of the doctrine of transferred malice in murder cases involving foetuses that are born alive but then die as a result of D’s actions: see R v King [2003] NSWCCA 399. There is no [page 61] persuasive reason why the doctrine of transferred malice should not be extended to these situations. The definition of ‘grievous bodily harm’ in s 4 (NSW) includes ‘the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm’. If D kicked or hit a pregnant woman in the body with the intention of destroying the foetus, then under the statutory definition, D would have an intention to inflict GBH. If the pregnant woman died as a consequence of D’s actions, then D would be guilty of murder. If the foetus was born alive and then died as a consequence of D’s actions, then D would be guilty of murder.

Unexpected cause of death 4.40 In Royall the High Court held that provided the mens rea for murder was present and the test for causation was satisfied, it did not matter that death did not occur in the precise manner intended by D. For example, D may have intended to kill V by bashing her with an ashtray, but V instead died while seeking to escape D. Thus the prosecution need only prove the relevant

mens rea at the time of the act causing death, and that D caused the death of V.

English approach to mens rea for murder 4.41 The English approach to mens rea for murder is different from the Australian position. The English authorities have held that recklessness is not a separate category of malice aforethought in murder: see R v Moloney [1985] AC 905; R v Hancock; R v Shankland [1986] AC 455; R v Woollin [1999] 1 AC 82; [1998] 4 All ER 103. A restricted concept of recklessness is only relevant toward establishing constructive intention. In Hancock and Shankland, the Ds pushed a concrete block from a bridge above a road on which a taxi was driving a strike breaker to work. The concrete block hit the taxi, resulting in the death of V, the taxi driver. The Ds said they never intended to hurt anyone. The House of Lords held that recklessness is not a separate category of malice aforethought for murder. Therefore, knowledge of probability would only be relevant where the jury could infer intent. The jury should be directed that they are not entitled to find the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty as a result of D’s actions, and D knew this was the case. This approach was confirmed in R v Woollin, where D threw his threemonth-old son onto a hard surface. Student tip The English concept of mens rea for murder is different from the Australian approach. Thus, it is necessary to be very cautious when using English authorities in this area.

Omissions 4.42 Under common law, murder and manslaughter can be committed by omission. Section 18 (NSW) expressly provides for the possibility of committing murder by an [page 62] omission to act. However, cases of murder by omission rarely arise, as usually, if D has the necessary mens rea for murder and has caused the death of V, then D will have done something to fulfil their intention. In R v Conde (1867) 10 Cox CC 547, the Ds withheld food from their child,

V, resulting in V dying of starvation. It was held that the Ds’ omission to feed V caused death, and they had the necessary mens rea for murder. The basic principles of governing criminal liability for omissions are applicable: ◆

D must have been under a legal duty to act to forestall the causation of death;

◆

D must have failed to fulfil this legal duty;

◆

D must have concurrently possessed mens rea.

4.43 In R v Taber (2002) 56 NSWLR 443, D was found guilty of murder in the New South Wales Supreme Court. On appeal to the New South Wales Court of Criminal Appeal (Taber v R (2007) 170 A Crim R 427; [2007] NSWCCA 116), it was held that there should be a retrial on charges of manslaughter. These judgments provide a good overview of the law of homicide and its application to omissions. Example In Taber, D bound and gagged V, leaving her abandoned. D rang emergency services and supplied some information regarding V’s situation, but the call was not acted upon. D made no further effort to rescue V. Nine to 11 days after the phone call, V died of dehydration. In order to establish murder the prosecution had to prove: 1. A legal duty to act The Supreme Court noted that the prosecution had to establish that D had a legal duty, rather than just a moral duty, to act. Common law authorities established that voluntary conduct may convert a moral obligation into a legal duty: see Taktak v R (1988) 34 A Crim R 334. The Court held that any person who puts another in danger comes under a legal duty to take steps to remove that danger. Any failure to take those steps may constitute an omission causing death. 2. D failed to fulfil this legal duty D failed to take sufficient steps to remove V from danger. 3. D’s omission caused V’s death One issue considered by the Supreme Court was whether V’s death was due to an act, an omission, or a combination of the two. The Court preferred to identify this case as involving an omission from the time of the phone call, because this was in accordance with common sense, and also because of D’s duty to rescue V from danger. The Supreme Court identified the relevant cause of death broadly, ranging from attacking and tying up V to the omission to seek to rescue her from danger. Thus, a series of acts and omission were the substantial and operating cause of death. D argued that the failure of emergency services to respond to the call broke the causal chain. It was held this was not relevant to causation. The cause of death was D attacking V, tying her up and failing to provide relief. [page 63]

On appeal, the Court of Criminal Appeal stated that V would not have died ‘but for’ the omission of D to remove her from danger after the 000 call. The Court of Criminal Appeal thus identified the omission as the relevant cause of death. 4. D had the necessary mens rea for murder D could be responsible for murder provided the prosecution could establish mens rea. In the Supreme Court, the prosecution established that the accused had recognised the probability of death, ie, reckless indifference to human life. On appeal to the Court of Criminal Appeal it was held that the failure of emergency services to respond to the call was relevant as to whether D had the necessary mens rea or not. D had believed that the 000 call would be acted upon, and thus did not have mens rea for murder from the time of the call. [Note: A question that arises is whether or not D would have had mens rea in the common law jurisdictions of South Australia and Victoria. The prosecution could not establish a recognition of the probability of death that is required in New South Wales law under s 18. However, in South Australia and Victoria the common law applies, and the prosecution might have been able to prove a recognition of the probability of very serious injury, ie, reckless indifference to GBH, due to the circumstances and age of victim (who was 71).] 5. Contemporaneity of mens rea and actus reus The Supreme Court identified this as a continuous act. It was stated that D need only have mens rea at some time either during the commencement of the act or during the period of omission. The Court of Criminal Appeal also identified a broad relevant act, but started this from the time of leaving V tied up. It was held that D did not have mens rea from this time onwards, and thus did not satisfy the requirement of actus reus and mens rea at the same time (see below). Accordingly, the Court of Criminal Appeal held that there should be a retrial for the charge of manslaughter.

TEMPORAL COINCIDENCE OF MENS REA AND ACTUS REUS 4.44 A general principle of common law requires that, where an offence requires mens rea, D must possess mens rea at the time of committing the actus reus. As stated in Chapter 2, the courts have created the concept of an actus reus that continues through time. Under this principle, it is sufficient if D has the necessary mens rea at any time during the actus reus. This principle applies to murder and manslaughter. The issue of whether the series of acts were part of one transaction is a question of fact to be left to the jury. 4.45 The case of Thabo Meli v R [1954] 1 All ER 373 provides an example of the concept of a continuing actus reus. In accordance with a preconceived plan, the Ds struck V, intending to kill him, and then, believing V was dead, rolled him down a cliff to make it look like he had died by accident. V subsequently died of exposure. The Ds were convicted of murder, and appealed on the grounds that, while they had mens rea at the time of striking

V, they lacked the necessary mens rea while committing the act that caused V’s death. The Privy Council held that the Ds’ conduct of striking [page 64] and then rolling V down a cliff was one transaction for the purpose of criminal law. As they possessed mens rea at one point during the ‘series of acts’, this was sufficient to found liability. In summary, it is necessary that mens rea is present at the time of the act causing death. This may require clear identification of the relevant act causing death relied upon by the prosecution. The relevant act may be a ‘series of acts’, and it is only required that D had the necessary mens rea at some stage during this transaction: see Thabo Meli. See also Taber, discussed at 4.43. Student tip Make sure that in problem questions you clearly identify the ‘relevant act’. The prosecution must prove that the ‘relevant act’ was voluntary (if the evidential burden has been satisfied), caused the death of V, and that the mens rea coincided with the ‘relevant act’.

Legal Problem David had been standing in a queue for concert tickets for hours. Elyse had not been waiting, but decided to queue-jump and pushed in front of David. David had a steel-tipped umbrella and stabbed it twice into Elyse’s neck. Elyse collapsed and a bystander called an ambulance. The ambulance took more than an hour to get to Elyse, because the queues were causing traffic chaos. Elyse died on her way to the hospital. Discuss David’s liability for the death of Elyse. Answer Introduction David could be charged with murder under s 18 (NSW), s 11 (SA) or s 3 (Vic). [Comment: You only need to cite the section for the jurisdiction in which you are studying.] The prosecution must prove all elements of the offence beyond a reasonable doubt: see Woolmington v DPP [1935] All ER Rep 1. [Comment: The introduction should be brief, stating the relevant charge and the burden of proof.] Actus reus The actus reus of homicide requires a voluntary act or omission that caused the death of the victim. Voluntariness: The act causing death must be voluntary: see Ryan v R (1967) 121 CLR 205. The prosecution is entitled to presume voluntariness: see Ryan; R v Falconer (1990) 171 CLR 30. There is nothing on the facts to suggest that David’s act of stabbing Elyse with the umbrella twice was not ‘willed’ or ‘conscious’: see Ryan. [Comment: This sentence demonstrates knowledge of the law, while applying it to the specific facts of the problem question.] Causation: David’s act of stabbing must have caused the death of Elyse: see (NSW) s 18; Royall v R (1991) 172 CLR 378. ‘But for’ David’s actions, Elyse would not have died. David may attempt to argue that the delay of the ambulance broke the chain of causation, and that it was this which caused the death of Elyse. However, authorities are clear that medical negligence does not necessarily break the chain of causation:

[page 65] see R v Smith [1959] 2 QB 35. In this case, the prosecution would have no difficulty in establishing that the stabbing of Elyse was the ‘operating and substantial’ (Royall) cause of her death. The prosecution would be able to prove the actus reus for murder beyond a reasonable doubt. Mens rea SA and Vic: The prosecution must prove that David caused the death with malice aforethought. This is satisfied by an intention to kill or inflict GBH, or reckless indifference to death or GBH: see R v Crabbe (1985) 156 CLR 464. NSW: The prosecution must prove that David caused the death with either an intention to kill or inflict GBH, or with reckless indifference to human life: see s 18 (NSW). The prosecution would attempt to argue that David intended to kill or inflict GBH upon Elyse. GBH is defined as ‘really serious bodily harm’ (R v Perks (1986) 41 SASR 335), and the use of a steel-tipped umbrella and the repeated stabbing into the neck suggests an intention to cause really serious bodily harm, if not to kill. This would be a question of fact for the jury and it would be likely that the prosecution would succeed. If the prosecution did not succeed in proving intention, they could argue that David was reckless. SA and Vic: The common law definition of recklessness is the recognition of the probability of death or GBH: see Crabbe. Even if the prosecution could not prove a recognition that death was ‘likely’ (Boughey v R (1986) 161 CLR 10), they would have a strong case in arguing that intentionally stabbing someone in the neck twice would lead to a recognition of the probability of really serious bodily harm. NSW: In New South Wales, reckless indifference to human life requires the recognition of the probability of death: see Royall. The prosecution may have difficulty in proving that David foresaw that his actions would cause the death of Elyse. He may have recognised the probability of serious harm, but in New South Wales this would not be sufficient mens rea for murder. This case parallels R v TY (2006) 12 VR 557, in which the appellate court stressed that the jury must be carefully instructed that the prosecution must prove the state of mind of the accused, rather than what they ought to have known or foreseen. Actus reus and mens rea at the same time If the prosecution is able to establish one of the heads of murder above, then they would have no difficulty in proving that the actus reus of stabbing coincided with the mens rea. Conclusion The prosecution would have no difficulty establishing the actus reus for murder. They may have difficulty, however, proving the necessary mens rea for murder. David’s actions indicate that he intended to cause really serious bodily harm, but this would be a question of fact for the jury. [Comment: Even though this answer concludes by stating ‘it is a question of fact for the jury’, it does provide an indication of what the jury would be likely to determine, given past cases and prior reasoning.]

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Chapter 5 Voluntary Manslaughter Objectives After reading this chapter you should be familiar with the following: ▶ voluntary manslaughter ▶ partial defence of excessive force in self-defence (NSW and SA) ▶ partial defence of provocation (NSW and SA) ▶ partial defence of substantial impairment of the mind (NSW only)

INTRODUCTION 5.1 Under the common law, unlawful homicides are divided into murder and manslaughter. These offences have the same actus reus. However, manslaughter is perceived as less blameworthy, because either D lacked the mens rea for murder, or mitigating circumstances were present. Manslaughter is divided into two categories: 1. voluntary manslaughter: where D has the necessary mens rea for murder, but D’s liability is reduced due to the presence of recognised mitigating factors; 2. involuntary manslaughter: where D commits an unlawful homicide, but lacks the necessary mens rea for murder. Involuntary manslaughter is discussed in Chapter 6. In all jurisdictions, all unlawful killings that do not amount to murder may lead to charges of manslaughter: see common law in South Australia and Victoria; s 18(1)(b) (NSW). 5.2 Voluntary manslaughter includes unlawful homicides where D has the necessary mens rea for murder, but the jury determines that mitigating circumstances are present, so that D is considered less culpable. Voluntary manslaughter is thus a midway category between murder and lawful homicide (where D is able to rely on a complete defence, eg, self-defence, to avoid liability completely). 5.3 The States have taken different approaches to voluntary manslaughter in recent years. In Victoria, voluntary manslaughter is no longer available (with the exception of survival of a suicide pact: s 6B). In New South Wales

and South Australia, the defence of excessive force in self-defence (see 5.4) is available to reduce murder to manslaughter (Victoria abolished the equivalent defence of defensive homicide in 2014). In South Australia, the defence of provocation is available at common law, and in New South Wales the defence of extreme provocation is available under statute: see s 23 [page 67] and 5.5 below. In contrast, Victoria abolished the defence of provocation on the basis that it reflected outdated notions of male behaviour that no longer have community acceptance: Victorian Law Reform Commission, Defences to Homicide: Final Report, 2004, 56. In New South Wales the defence of substantial impairment of the mind is available under statute: see s 23A and 5.53 below.

EXCESSIVE FORCE IN SELF-DEFENCE 5.4 Historically, at common law use of excessive force in self-defence could reduce murder to manslaughter. D had to honestly believe that the use of force was necessary in self-defence, but, on an objective test, the use of force was greater than a reasonable person in that situation would have used: see R v McNamara [1963] VR 32. In Zecevic v DPP (Vic) (1987) 162 CLR 645 the High Court stated that, if D uses more force than was reasonably necessary, then D has not acted in self-defence. Thus at common law, in the absence of statutory reform, the partial defence of excessive force is not available. More recently, New South Wales and South Australia have reintroduced the partial defence of excessive force: see s 421 (NSW); s 15(2) (SA). For example, s 15(2) (SA) provides: It is a partial defence to a charge of murder (reducing the offence to manslaughter) if — (a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but (b) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.

Victoria had reintroduced a defence broadly equivalent to excessive selfdefence by creation of a new offence of defensive manslaughter, but these offences were abolished in 2014. Accordingly, in Victoria D cannot argue excessive force in self-defence. Self-defence is considered in more detail in Chapter 13.

PROVOCATION: NEW SOUTH WALES AND SOUTH

AUSTRALIA 5.5 The defence of provocation evolved at common law, and offers a partial defence to murder, resulting in a charge of voluntary manslaughter. The defence was created ‘in compassion to human infirmity’: see R v Hayward (1833) 172 ER 1118 at 1189. In McGhee v R (1995) 183 CLR 82, Brennan J held: Provocation does not negative the existence of the specific intent or recklessness that is essential to establish the crime of murder but, because that intent or recklessness is a product of provocation the crime, the elements of which are otherwise made out, should be reduced to manslaughter: at 147.

The history of provocation is outlined by Lord Hoffmann in the English case R v Smith [2001] 1 AC 146. Provocation is a partial defence to murder, including constructive murder: see Fry v R (1992) 58 SASR 424. The common law doctrine continues to be applied in South Australia. New South Wales has enacted a statutory defence of provocation, which has changed the common law significantly. Victoria has abolished the defence of provocation. [page 68]

Burden of proof 5.6 Before the defence of provocation may be put before the jury, there must be sufficient evidence to satisfy the evidential burden: see Johnson v R (1976) 136 CLR 619; s 23(4) (NSW). Whether provocation should be left to the jury is determined by: … whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond a reasonable doubt that the killing was unprovoked in the relevant sense: Stingel v R (1990) 171 CLR 312 at 334 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

D need not raise the defence of provocation, as the trial judge may leave provocation to the jury if there is evidence on which a jury, acting reasonably, could find manslaughter as a result of provocation: see Van den Hoek v R (1986) 161 CLR 158. D may not wish to raise the defence of provocation (eg, because D wishes to argue the complete defence of self-defence), but the trial judge must still leave the issue of provocation to the jury if there is evidence to suggest D may have acted under provocation: see R v Thorpe (No 2) [1999] 2 VR 719. Once the defence has been raised, the prosecution must negate it beyond a

reasonable doubt. Student tip When answering a problem question, be careful to state that the prosecution must disprove the defence of provocation. It is incorrect to state that the defence must prove provocation.

5.7 In 2014, New South Wales passed the Crimes Amendment (Provocation) Act, which inserted the current s 23. This reform requires ‘extreme provocation’ for D to argue the defence of provocation. This will have an impact on the common law ‘conduct amounting to provocation’, considered below at 5.9. South Australia is also considering reforms to remove the defence of provocation from people who take umbrage at nonviolent sexual advances. Under these reforms, a judge would not allow a jury to consider the defence of provocation in cases of non-violent sexual advance or jealous rage. Student tip The reforms in New South Wales have replaced the defence of provocation with the defence of extreme provocation. These reforms greatly restrict the availability of the defence. Make sure that the cases you refer to are consistent with these reforms.

Burden of proof To raise the defence of provocation the accused must satisfy the evidential burden. If this is discharged, then the prosecution must negate provocation beyond a reasonable doubt: see Woolmington v DPP [1935] AC 462; s 23(7) (NSW).

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Common law provocation and the New South Wales statutory reforms 5.8 Provocation operates to reduce what would otherwise be murder to manslaughter. Elements The defence requires that: •

V’s conduct must be recognised as provocation in law;

•

an ordinary person in the position of D could have lost self-control and formed an intention to kill or inflict grievous bodily harm (GBH);

•

D must have lost self-control to kill V: see Stingel v R (1990) 171 CLR 312.

The law of provocation in New South Wales is based upon the common law with some differences. The common law will be outlined and any differences

in New South Wales due to s 23 will be considered throughout. These differences will then be summarised at 5.48. Section 23 now radically reduces the availability of the defence of provocation by limiting what will be recognised as ‘extreme provocation’ at law: 23 Trial for murder—partial defence of extreme provocation (1) If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter. (2) An act is done in response to extreme provocation if and only if: (a) the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and (b) the conduct of the deceased was a serious indictable offence, and (c) the conduct of the deceased caused the accused to lose self-control, and (d) the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased. (3) Conduct of the deceased does not constitute extreme provocation if: (a) the conduct was only a non-violent sexual advance to the accused, or (b) the accused incited the conduct in order to provide an excuse to use violence against the deceased. (4) Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death. (5) For the purpose of determining whether an act causing death was in response to extreme provocation, evidence of self-induced intoxication of the accused (within the meaning of Part 11A) cannot be taken into account. (6) For the purpose of determining whether an act causing death was in response to extreme provocation, provocation is not negatived merely because the act causing death was done with intent to kill or inflict grievous bodily harm. (7) If, on the trial of a person for murder, there is any evidence that the act causing death was in response to extreme provocation, the onus is on the prosecution to prove beyond reasonable doubt that the act causing death was not in response to extreme provocation.

[page 70] (8) This section does not exclude or limit any defence to a charge of murder. (9) The substitution of this section by the Crimes Amendment (Provocation) Act 2014 does not apply to the trial of a person for murder that was allegedly committed before the commencement of that Act. (10) In this section: ‘act’ includes an omission to act.

Conduct amounting to provocation 5.9 In order for D to plead the defence of provocation, V’s conduct must amount to provocation at law. If the conduct of V does not amount to

provocation, then the defence will not be available to D. Historically, the common law limited the parameters of behaviour that was considered as provocation. The modern trend in the courts until recently has been to be flexible regarding the requirement of what amounts to provocative conduct at law. In contrast, under the 2014 reforms, New South Wales has strictly limited when provocation will be available.

Words 5.10 Historically, the courts accepted that physical actions could amount to provocation, but were more sceptical about the status of words. A distinction was made between ‘mere words’ which were insulting, and words which conveyed information of a fact or alleged fact: see Holmes v DPP [1946] AC 588. Mere words could not amount to provocation, while words which conveyed information could. The High Court held that words can amount to provocation at common law provided they are ‘violently provocative’ or of an ‘exceptional character’: Moffa v R (1977) 138 CLR 601 at 616. Mason J held in Moffa that: There is no absolute rule against words founding a case of provocation. The existence of such an absolute rule would draw an arbitrary distinction between words and conduct which is insupportable in logic. No doubt provocative acts justifying the reduction of murder to manslaughter are more readily imagined and more frequently encountered than provocative words which justify the same result. Violent acts, rather than violent words, are more likely to induce an ordinary person to lose his self-control. And a case of provocation by words may be more easily invented than a case of provocation by conduct, particularly where the victim was the wife of the accused. There is, therefore, an element of public policy as well as common sense in requiring the close scrutiny of claims of provocation found in words, rather than conduct: at 620–1.

In Moffa, V, who was D’s wife, told D that she was leaving him, did not love him and was ‘screwing’ everyone in the street. She then showed him some photographs of her nude, and threw a telephone at him. The High Court held that her words were of a sufficiently violent character, and D’s murder conviction was overturned. The courts have found confessions of adultery, insults and taunts as to sexual adequacy, and racist taunts to amount to sufficient provocation. In R v Leonboyer [2001] VSCA 149, R v Parsons [2000] 1 VR 161 and R v Kumar [2002] 5 VR 193 the Supreme Court of Victoria considered whether ‘mere words’ could amount to provocation. In Kumar it was held that words could amount to provocation provided they were violently provocative. It was stressed that, rather than removing provocation from jury consideration on the basis of absence of provocative conduct, it

[page 71] was more appropriate to remove the defence on the grounds that the provocation was such that an ordinary person could not have lost self-control. For example, in Parsons D was involved in a longstanding dispute with V, his estranged de facto wife, over custody of their children. During an adjournment at the Family Court, D stabbed V 48 times, killing her. D stated V had smiled and laughed at D immediately before the attack and said she could do what she liked with the children. Brooking J stated: I doubt very much whether the words — and smile and laugh — attributed by the applicant to the victim … could be viewed as ‘provocation’ and so I doubt very much whether one is required to consider the possible response of the ordinary person. I am content, however, to deal with the case by simply asking whether the ‘provocation’ alleged to have been offered by the victim just before she was killed could in the view of a reasonable jury have met the ordinary person test. I have no doubt that the answer is that it could not: at 167.

5.11 In New South Wales, words will not constitute ‘extreme provocation’, as s 23(2)(b) requires that the provocative conduct was a ‘serious indictable offence’.

History of provocative conduct 5.12 The courts have held that provocation must be seen in context and not necessarily as an isolated event. This principle has led to an easing of historical requirements regarding the definition of provocative conduct. As a consequence, relatively innocuous statements can be perceived as provocative in context. Under this principle, D needs to establish that there was a ‘trigger’ incident, but the trigger incident or incidents need not be capable individually of grounding the defence. The court thus looks at the cumulative effect of these incidents: see Moffa at 616. 5.13 In R v R (1981) 28 SASR 321, D killed V, her husband, with an axe while he was sleeping. There was a background of horrific violence and abuse, and, earlier that day, D had discovered that her husband had been sexually abusing her daughters. One of the daughters had told D that evening that V had tried to rape her again. Two of the daughters had already left home, and another two planned to leave. The ‘trigger incident’ was V stroking D’s arm and saying that they were going to be ‘one big happy family’ and that the daughters would not be leaving. It was held that when considering V’s reaction to this act of provocation, the history of the relationship must be taken into account. This would include the background of brutality, sexual assault, intimidation and manipulation.

This approach greatly dilutes the requirement that the provocation take place in the presence of the accused: see 5.21. When taking into account the history of a relationship, much of the provocative conduct could have taken place in the absence of D. This approach also dilutes the principle that ‘mere words’ cannot amount to provocation. V’s words in R v R were not ‘violently’ provocative when taken at face value; it was only when contextualised that these words took on a different meaning. 5.14 It appears that this reasoning applies in New South Wales under the 2014 reforms. Section 23(2)(b) requires a serious indictable offence for ‘extreme provocation’. A history of domestic violence and sexual assault would amount to serious indictable offences; thus, provided the common law reasoning of a ‘trigger incident’ continued to [page 72] apply, a defendant in the position of R would be able to argue ‘extreme provocation’. Section 23(4) states: Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death.

This would support the argument that a defendant in a violent relationship could rely on the defence of ‘extreme provocation’. It would be contrary to the intention of the law reforms if battered women were no longer able to argue the defence of provocation.

Unlawfulness 5.15 There is no requirement that the provocative conduct be unlawful at common law: R v R. Thus, provocative conduct can be based upon any conduct, including grossly insulting words. 5.16 New South Wales now requires that the provocative conduct was unlawful: s 23(2)(b).

Must provocation emanate from the deceased? 5.17 The traditional rule was that the provocation must emanate from the deceased. However, this rule has been interpreted expansively. The correct statement is that V must either offer provocation to D, or be implicated in or connected to the provocation: see R v R; s 23(2)(a) (NSW). It is not necessary that V intended to provoke D. For example, in Gardner v R (1989) 42 A Crim R 279, it was held that V2 was sufficiently implicated in or connected to the provocation, for D to rely upon provocation with regard to

V2 as well as V1. In that case, D killed his wife, V1 (Marino), and her lover, V2 (Shears). D stated that V1 had taunted him, using abusive language, telling him she was having an affair with V2 and denigrating D’s sexual capacity. V2 had not said anything provocative, but: The circumstances that Marino’s provocative words implicated Shears in a sexual orgy and Shears’ proximity to Marino’s bedroom, clearly were matters the jury were entitled to take into account, in my opinion, in considering the defence of provocation in relation to the killing of Shears. There was a sufficient nexus between Marino’s provocative words and the death of Shears by the proximity of Shears in a bed nearby: at 284 per O’Bryan J.

It was held by the Victorian Court of Criminal Appeal that provocation should have been left to the jury in relation to the death of V2 as well as V1. This case is an example of the problems associated with the old defence of provocation. D and V1 were separated at the time of the murder, with a history of domestic violence committed by D. In addition, the only witness to V1’s taunting of D was D himself. V1 had asked V2 to stay to protect her from D. Where V adopts or accepts the conduct of another party who is acting in such a way as to provoke D, then the provocative words or actions of the third party can be taken into account in considering the defence of provocation on the grounds that both were participants: see R v Abebe (2000) 1 VR 429. In Abebe, D claimed his ex-wife said to him, in the presence of V, that she and V were lovers and were going to live together, and that V smiled at D in an arrogant or condescending manner shortly before D attacked V. It was held that provocation could be left to the jury. [page 73] The defence of provocation is slightly different in New South Wales, as V’s conduct must be ‘towards or affecting’ D: see s 23(2)(a) (NSW).

Mistaken killing 5.18 At common law in South Australia, there is an exception to the requirement that provocation must emanate from V. The common law recognises ‘misdirected retaliation’, ie, a situation where D is provoked by X and, while attempting to strike a blow against X, mistakenly kills V. It has been held that D can rely on provocation in relation to V’s death. In R v Kenney [1983] 2 VR 470, it was held that provocation was available in this situation due to the doctrine of transferred malice: … what would have been only manslaughter if the intended victim had been killed [assuming that the provocation would have grounded the defence] can only be manslaughter if a third person is accidentally killed, the malice to be transferred having been, so to speak, expurgated by the provocation: at 472 per Brooking J.

In New South Wales, the mistaken killing exception may not be available, as provocation must be ‘towards or affecting’ D: s 23(2)(a).

Delusionary belief 5.19 If D mistakenly believes V committed a provocative act, this may suffice to raise the defence of provocation: see R v Croft [1981] 1 NSWLR 126. But the doctrine does not ‘extend to self-generated or entirely imaginary circumstances which cause a loss of self-control’: see R v Voukelatos [1990] VR 1 at 26 per Hampel J.

Conduct not aimed at D 5.20 At common law, there is no requirement that V’s provocative conduct be aimed at D. It may be aimed at a third party. In R v Terry [1964] VR 248 Pape J held that: … the mere fact that the provocation was not offered by the deceased to the accused, but was offered to the deceased’s wife and the accused’s sister, does not prevent the operation of the principle that provocation will reduce murder to manslaughter, provided that the provocation was offered in the presence of the accused, and provided all the other elements of provocation are present: at 250–1.

What is crucial is that D was present. V need not be aware of D’s presence. For example, in R v Scriva [1951] VLR 290, the Full Court of the Victorian Supreme Court held that provocation was available where D saw his daughter run down and killed by V’s reckless driving. In New South Wales, the provocative conduct must be ‘towards or affecting’ D: see s 23(2)(a) (NSW), which may cover the above fact situation.

Provocation in the presence of D 5.21 At common law, provocation must take place in the presence of D, ie, within sight or hearing of D: see R v R at 326 per King CJ; R v Arden [1975] VR 449 at 451 per Menhennitt J; R v Quartly (1986) 11 NSWLR 332 at 338 per Lee J. ‘Presence’ means within the sight or hearing of D. Where D has heard of provocative conduct on the [page 74] part of V from a third party, this is sometimes referred to as ‘hearsay provocation’. At common law, hearsay provocation will not amount to provocative conduct for the purposes of the defence of provocation. In Arden, D clubbed V to death after being told by his pregnant de facto wife that V had raped her. Menhennitt J held:

… the law is that it is not sufficient to constitute provocation, for the accused person to be informed by another that such conduct as the raping of her when pregnant has taken place … [Rather] there must be some conduct on the part of the deceased person in order to establish provocation in law … The rationale of this rule appears to me to be as follows. If a person actually sees conduct taking place in respect of a third person, and he is provoked thereby, it is understandable that he may be provoked to the extent of taking the other person’s life … Where, however, all that happens is that the accused is told something by a third person, there enters immediately the element of belief, and there is nothing tangible upon which the accused can be said to have acted: at 451–2.

Similarly, in Quartly, D had previously been in a relationship with J, who then formed a relationship with V. The relationship between J and V involved some violence, and D had heard that V used heroin and supplied it to J. A friend told D a week before the killing that V had raped J. On the day of the killing, D advised J to stay away from V, saying that she would get into trouble if she stayed with V. J confirmed the rape and also that V was supplying her with drugs. J then returned to V and spent several hours with him in a motel. D and V had no contact during this time. D followed V and J when they left the motel and then killed V. It was held that there was no evidence of loss of self-control by D. However, the Court also considered the issue of hearsay provocation, and held that there was no provocative conduct at law on the part of V, because it was not conduct on the part of V, but merely statements by persons other than V, that D was raising as provocative conduct. It was held that the provocative conduct on the part of V must occur within the sight or hearing of D. 5.22 This principle has been interpreted expansively, according to the trend in judgments of considering the provocation in context: see 5.12. Thus, the ‘presence’ requirement has not been interpreted strictly: see, eg, Parker v R (1963) 111 CLR 610; Gardner v R (1989) 42 A Crim R 279; Chhay v R (1994) 72 A Crim R 1. The influence of the contextualisation principle on the ‘presence’ requirement was demonstrated in R v R: see 5.13. In that case, D was not present for a series of provocative acts by V, where he sexually abused her daughters. While the sexual abuse could not constitute provocative conduct, it formed an important context in which the actual provocative conduct occurred: Moreover, the history of incest occurring in the absence of the appellant cannot amount to provocation, even though recounted to her later. Words or conduct cannot amount to provocation unless they are spoken or done to or in the presence of the killer … although, of course, such words or conduct may be important as part of the background against which what is said or done by the deceased to the killer is to be assessed: at 326 per King CJ.

In Davis v R (1998) 100 A Crim R 573; (1998) 73 ALJR 139 the New South Wales Court of Criminal Appeal considered the issue of hearsay provocation,

resulting in the potential for slight differences from the common law. This will be outlined at 5.50. [page 75]

Self-induced provocation 5.23 The general policy is that D cannot rely on self-induced provocation. In the case of Edwards v R [1973] AC 648, D was blackmailing V. V swore at him and attacked him with a knife, causing D to lose self-control, resulting in D killing V. It was held that a blackmailer cannot rely on the predictable results of his own blackmailing as constituting provocation, eg, a hostile reaction and vituperative words or blows with a fist. ‘[But] if the hostile reaction by the person sought to be blackmailed goes to extreme lengths, it might constitute sufficient provocation’: at 658 It was held that D could rely on the defence of provocation in this case, due to the extreme reaction of V. Therefore, where V’s reaction was of an extreme, unpredictable character, D may be able to rely on self-induced provocation to constitute the defence. The issue of self-induced provocation was considered by the Victorian Supreme Court in R v Thorpe [1998] VSCA 13. In that case, D had an argument with V and V’s friend earlier on the day of the killing. The Crown contended that the defence of provocation was not available to D because the provocation had been self-induced by D, by his acts of aggression against V and V’s friend earlier. The Court stated that it was unnecessary to consider whether self-induced provocation ceases to be provocation for the purposes of providing a defence to murder. It was held that even if self-induced provocation did cease to be a defence, it was open to the jury on the facts to conclude that D’s earlier provocative conduct had ceased to be relevant by the time V was killed. Thus the defence of provocation should have been left to the jury. The Victorian Supreme Court of Appeal considered self-induced provocation in R v Yasso [2004] VSCA 127. It was noted that the question of whether conduct which risks causing, or in fact causes, a victim to act in a provocative way should prevent provocation being available is undecided. In Yasso, D approached V, his estranged wife, with a knife in contravention of an intervention order. D claimed that he had the knife to protect himself against V’s brother and that D needed to see V to get his passport and jewellery back. D said that V agreed to meet him the next day to give him his things, but when D asked her to give him her mobile phone as assurance that she would return, V spat on him and refused to give it to him. D then stabbed her repeatedly. The Court accepted that D had not acted with any premeditation

or actual foresight of what occurred. Accordingly, the defence of provocation was available. See also 5.26 below. 5.24 In New South Wales, the 2014 reforms appear to be in line with the common law regarding self-induced provocation. Section 23(3)(b) introduces a new paragraph: (3) Conduct of the deceased does not constitute extreme provocation if: … (b) the accused incited the conduct in order to provide an excuse to use violence against the deceased.

This appears to be a narrow restatement of the common law rule about selfinduced provocation.

Relationship between provocative conduct and the objective test 5.25 Historically, the defence of provocation could be removed from consideration by the jury on the basis that the conduct relied upon was not provocative conduct at law, [page 76] eg, it was mere words: see 5.10. More recently, the defence has been removed from jury consideration on the basis that the provocative conduct fails to meet the objective test: see R v Tuncay [1998] 2 VR 19; R v Kumar [2002] 5 VR 193; R v Tsigos [1964–65] NSWR 1607. That is, the conduct relied upon by D was such that no ordinary person could lose self-control and form the intention to kill. In other cases it has been held that this withdrawal of provocation from jury consideration was incorrect: see R v Leonboyer [2001] VSCA 149; R v Abebe (2000) 1 VR 429. In Tuncay, D was convicted of the murder of V, his wife. D and V were immigrants from Turkey. V was a strict Muslim and had objected to D’s drinking of alcohol. V had previously left D, and had later reconciled with him on the basis that D agree to abstain from alcohol and fighting with her. The day of the killing was a religious festival, and D had drunk alcohol before coming home. V said D had been drinking and had broken his promise to her, and that she would leave. D begged her not to, saying that he loved her and the children. V said next time she would marry a more religious man. D said he could not live without her and would commit suicide, and she said ‘gebher’. This was translated as ‘I would be free of you that way’, or as something you would say to someone if you wanted to see them dead. D claimed that when V said this there was an explosion in his head and he attacked her.

The trial judge expressed doubt as to whether or not mere words could be relied upon to found provocation at law. On appeal, the Victorian Court of Appeal found it unnecessary to resolve whether words alone can constitute provocation, as the focus should be on whether or not D’s self-control fell below that expected of an ordinary person. The Court held that provocation should not have been left to the jury: No reasonable jury, even taking the case at its highest in terms of the evidence that might be thought to be in support of the provocation, could have concluded that any incident of the behaviour by words or conduct of the deceased could have caused an ordinary person to form an intention to inflict serious bodily harm or death: at 30 per Hedigan AJA.

Provocation was also removed from jury consideration in Leonboyer. In that case, Charles JA cited a passage of the judgment of Lord Hoffmann in R v Smith [2001] 1 AC 146 with approval: … male possessiveness and jealousy should not today be an acceptable reason for loss of selfcontrol leading to homicide, whether inflicted upon the woman herself or her new lover: Leonboyer at 169.

5.26 It has been suggested that the power of judges to withdraw provocation from jury consideration, on the basis that the trial judge believes that an ordinary person could not have acted as D did, should be removed. In R v Parsons [2000] 1 VR 161, provocation was removed from the jury on the ground that the circumstances were not such as to satisfy the objective test. Special leave to appeal was refused by the High Court on the ground that the appeal was unlikely to succeed. The High Court did not address counsel’s argument that since the objective test was framed in terms of the likely reaction of the ordinary person, provocation could no longer be taken from the jury on the ground that the facts did not satisfy the objective test, because the question of how the ordinary person could react was specifically a question for the jury and not a preliminary question of law to be determined by the judge. [page 77] In Kumar, the Victorian Court of Appeal considered the issue of withdrawing provocation from jury consideration. Eames J in dissent stated: It is tempting to conclude that if the opinions of judges vary so much as to what might or might not constitute provocation the question should be left entirely to the jury. However, although attitudes may change within the community on such matters it has been a constant feature of the law of provocation that a measure of self-control has been required to be exercised by the ordinary person, for reasons of legal policy, and notions of fairness and justice, and that it is the task of trial judges to ensure that appropriate standards of self-control are maintained: at 99.

The controversy continued in Yasso, where the Victorian Court of Appeal considered in detail the issue of withdrawing provocation from jury

consideration. The majority (Charles J, with Batt J agreeing) held that the trial judge was incorrect in withdrawing provocation from the jury on the grounds that the provocative conduct was insufficient to cause an ordinary person to lose self-control and form an intention to kill. D had stabbed V, his ex-wife, 20 times after she refused to give him her phone and spat on him: see 5.23. D (incorrectly) believed that V was having an affair with another man, X. D, V and X were all members of the Chaldean Christian movement. D and V had recently moved from Iraq to Melbourne. There was evidence that D had experienced humiliation in the Chaldean community due to rumours about V and X. Evidence was presented that, in Chaldean tradition, marital fidelity is of paramount importance, to the extent that divorce and remarriage are not allowed. There was also evidence that a wife spitting on a husband is almost an unthinkable insult of such gravity that a wife could be beaten, if not killed, by her husband or her family. The majority held that this was relevant to the defence of provocation. The majority noted that D may have downplayed the effect of the alleged affair in his record of interview due to his humiliation. In contrast, Vincent J in dissent stated that the evidence regarding cheating and spitting was not sufficient provocation for someone of D’s cultural background, and thus the defence of provocation should not be left to the jury. One of the difficulties that arises is that the power to withdraw the defence of provocation from the jury treats what essentially is a matter of opinion as a question of law. The potential for difference of opinion in this area is demonstrated powerfully in Green v R (1997) 148 ALR 659, discussed at 5.32. Similarly, in Kumar, the majority held that V’s conduct in refusing D (her 20year-old former partner) entry to her unit, and also refusing to give him food when he asked for it, could not be regarded by the jury, acting reasonably, as provocative conduct. V was simply exercising her right to deny entry to her residence to someone who had no right of legal entry. Eames JA, in the minority, held that there was a possibility the jury might consider that an ordinary person who was 20 years of age could have lost self-control and formed the intent to kill. The 2014 reforms in New South Wales require and define ‘extreme provocation’. This removes much of the discretion from judges as it provides clear guidelines about what will and will not amount to provocative conduct. 5.27 As already stated, Victoria has abolished the defence of provocation as a partial defence to murder in accordance with recommendations by the

Victorian Law Reform Commission in its Defences to Homicide: Final Report, 2004. The Commission stated: [page 78] The continued existence of provocation as a separate partial defence to murder partly legitimates killings committed in anger. It suggests there are circumstances in which we, as a community, do not expect a person to control their impulses to kill or to seriously injure a person. This is of particular concern when this behaviour is in response to a person who is exercising his or her personal rights, for instance, to leave a relationship or to start a new relationship with another person. In our view, anger and a loss of self-control, regardless of whether such anger may be understandable, is no longer a legitimate excuse for the use of lethal violence: at 56.

England also abolished the defence of provocation and introduced a new partial defence of loss of self-control: Coroners and Justice Act 2009 (UK). 5.28 The 2014 law reforms in New South Wales and the law reforms in South Australia suggested by the South Australian Law Reform Institute are a way of keeping the defence of provocation while removing some of its most controversial aspects. The most important restriction in New South Wales is the requirement that the ‘extreme provocation’ was a ‘serious indictable offence’: s 23(2)(b) (NSW). This radically limits the reach of the defence of provocation. In addition, the legislation specifies that a non-violent sexual advance will not amount to ‘extreme provocation’: s 23(3)(b) (NSW). This means that the defence would not be available and could not be considered by the jury.

The objective test 5.29 There is an objective test in the defence of provocation. This test requires that the provocation must have been such that a hypothetical ordinary person, placed in the position of the accused, might have been similarly provoked into losing his or her self-control to such an extent as to form the intent to kill or inflict GBH on V. Arguably, this test forms a parameter around the defence of provocation, so that D is entitled to rely on the defence of provocation only where D has a minimum power of selfcontrol necessary to interact in society. The courts have paid a great deal of attention to the objective test in provocation over the last few years. The authoritative case on this test is Stingel v R (1990) 171 CLR 312. The parameters of the objective test are very important as they have implications for what juries may and may not take into account when considering the provocation. 5.30 Prior to Stingel, one approach to the objective test was to construct an

extremely narrow ordinary person, with only the sex of D attributed to the ordinary person (man). No characteristics of D, not even those which were relevant to D’s power of self-control in the circumstances alleged, were to be attributed to D. Thus, in R v Bedder [1954] 1 LLR 1119, D killed V, a prostitute, after her jeers of impotence. D’s actual impotence was not attributed to the ordinary person (as, according to the judges, the ordinary person is not impotent). The objective test was so narrow that the ‘sting’ of the provocative conduct could not be understood if D departed from (assumed) majority attributes and characteristics. An alternative approach, following the case of DPP v Camplin [1978] QB 254, was to have an objective test that was so wide as to virtually exclude any objective standard. Under this formulation of the test, the hypothetical person was to have the characteristics of D attributed to him or her for the purpose of the objective test. There were two exceptions to this principle: [page 79] 1. Intoxication was not to be attributed to the ordinary person: see R v Croft [1981] 1 NSWLR 126. 2. If D had the nature of an ‘unusually excitable or pugnacious individual’, this was not to be attributed to the ordinary person: see Mancini v DPP [1942] AC 1 at 9. 5.31 The test in Stingel is an attempt to find a balance between an approach which took all of D’s characteristics into account, and one which made no reference to any of D’s characteristics. Stingel seeks to formulate a test that requires a basic minimum of self-control. In a joint decision of all seven justices of the High Court, a restrictive application of the objective test was proposed in a two-stage approach that applies in South Australia and New South Wales (including the slight modifications developed in Masciantonio v R (1995) 129 ALR 575). Elements The objective test under Stingel as modified by Masciantonio requires the following: •

contextualisation to determine the gravity of the provocation; and

•

whether that degree of gravity could cause an ordinary person to lose self-control and form an intention to kill or inflict GBH.

The prosecution needs to negate only one of these elements beyond a reasonable doubt.

It is clear that the Stingel formulation of the objective test applies to the common law defence of provocation: see Masciantonio; R v Thorpe (No 2)

[1999] 2 VR 719; R v Georgatsoulis (1994) 62 SASR 351; R v Lindsay (2004) 119 SASR 320. Similarly, Stingel has been applied in New South Wales: see Green v R (1997) 148 ALR 659, discussed at 5.32 below.

Contextualisation to determine the gravity of the provocation 5.32 The first tier of the objective test permits the jury to take into account any relevant characteristics of D in determining the gravity of the provocation. D’s ‘age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity’ of the provocative conduct. Any ‘mental instability or weakness of an accused … in the determination of the content and implications of particular conduct’ could also be relevant: Stingel at 326. This test has since been applied by the High Court in Masciantonio and Green. In Masciantonio, D was an Italian immigrant with little formal education, and a head injury which led to a disposition to fall into a dissociative state when stressed. D confronted V, his son-in-law, about V’s treatment of D’s daughter. V insulted D and physically attacked him. D took a knife from his car and stabbed V many times, and when V fell, D continued to stab him. The majority of the High Court stated: … the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct that might not be insulting or

[page 80] hurtful to one person might be extremely so to another, because of that person’s age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history: at 582 per Brennan, Deane, Dawson and Gaudron JJ.

The provocation was considered to be very grave. V had insulted and pushed D, and D also had a longstanding concern for his daughter. D was both angry at, and afraid of, V. The case of Green demonstrates some of the difficulties associated with the objective test in provocation. In that case, D killed V after alleged homosexual advances made by V towards D. D claimed to be very sensitive to sexual abuse as a result of his belief that D’s father had sexually abused D’s sisters. The trial judge directed the jury that D’s sensitivity to sexual interference and his family background were not relevant to provocation. On appeal to the High Court, the justices applied Stingel, but with different results. A majority of the Court held that the evidence of D’s special sensitivity to sexual interference was a relevant characteristic when considering the gravity of the provocation, as it tended to make it more likely that D was severely provoked by V’s sexual advances:

The real sting of the provocation could have been found not in the force used by the deceased, but in his attempt to violate the sexual integrity of a man who had trusted him as a friend and father figure; in the deceased’s persistent homosexual advances after the appellant had said, ‘I’m not like this’; and in the evoking of the appellant’s recollection of the abuse of trust on the part of his father. These were matters for the jury to evaluate in determining the degree of provocation experienced by the appellant: at 665 per Brennan CJ.

Gummow J, in the minority, agreed that D’s special sensitivity to sexual interference was relevant, but said that it did not increase the gravity of the provocation. In contrast, Kirby J, also in the minority, did not agree that D’s special sensitivity was relevant to either tier of the objective test. Kirby J’s judgment in Green demonstrates the interaction of the first tier of the objective test with the second tier. Kirby J strongly argued against D’s reliance upon provocation in this case. Kirby J provided context to the particular decision in Green, by highlighting that this was part of a general trend of cases where defendants successfully argued that they were acting in self-defence or under provocation as a result of a homosexual advance. Kirby contended: … a non-violent homosexual advance should not, in law, be found to constitute sufficient provocation to incite an ordinary person to lose self-control … In my view, the ‘ordinary person’ in Australian society today is not so homophobic as to respond to a non-violent sexual advance by a homosexual person as to form an intent to kill or to inflict grievous bodily harm. He or she might, depending on the circumstances, be embarrassed; treat it at first as a bad joke; be hurt; insulted. He or she might react with the strong language of protest; might use as much physical force as was necessary to effect an escape; and where absolutely necessary assault the persistent perpetrator to secure escape. But the notion that an ordinary 22 year old male (the age of the accused) in Australia today would so lose self-control as to form an intent to kill or grievously injure the deceased because of a non-violent sexual advance by a homosexual person is unconvincing. It should not be accepted by this Court as an objective standard applicable in contemporary Australia: at 714–15.

Kirby J also noted that the application of provocation to a homosexual advance was only available to men in relation to other men. If every woman who was the subject of a ‘gentle’ but ‘persistent’ sexual advance could respond with brutal violence, and provocation was available, he said, ‘the law of provocation would be sorely tested and [page 81] extended’: at 719. Acceptance of a homosexual advance as sufficient provocation was thus unequal. Thus in Green, the different judgments were not a result of disagreements about the law, but rather were about an interpretation of the facts, in particular, the way the sexual advance was characterised. Stingel was also applied in Abebe, where D killed V, his ex-wife’s lover. Both

D and V were Ethiopian, and Coldrey JA stated that the jury were entitled ‘in considering the gravity of the alleged conduct’ to take into account the ethnicity of D, the evidence of the relationship between the ex-wife of D and V, the existence of rumours in the Ethiopian community as to this relationship, and the shame and humiliation felt by D having regard to Ethiopian cultural values and mores.

Whether that degree of gravity could cause an ordinary person to lose self-control, etc 5.33 The second tier of the objective test considers whether the gravity of provocation to D could have caused an ordinary person to lose self-control and kill or cause GBH. Unlike the first tier of the test, only the age of D will be taken into account in determining the level of self-control expected of an ordinary person: Subject to the qualification in relation to age … the extent of power of self-control of that hypothetical person is unaffected by the personal characteristics or attributes of the particular accused. It will, however, be affected by contemporary conditions and attitudes: Stingel at 327.

The age of D will be taken into account to determine the maturity of an ordinary person of the age of D where D is a teenager or in their early 20s. This stage of the test is purely objective, with personal characteristics of D treated as irrelevant. The High Court justified the age qualification by stating that ‘the process of development from childhood to maturity is something which, being common to us all, is an aspect of ordinariness’: Stingel at 330. Stingel is an attempt by the High Court to establish the lowest level of selfcontrol expected of all members of the community. 5.34 In Stingel, D, aged 19, killed V while V was sitting in a car with D’s exgirlfriend. V and D’s ex-girlfriend had been having sex, and V had told D to ‘piss off ’. D stabbed V to death, arguing that V’s acts amounted to provocation. The High Court applied the two-stage test and found that D’s reaction fell far below the minimum limits of the range of power of selfcontrol that must be attributed to any hypothetical 19-year-old. Thus, provocation was not left to the jury.

Ethnicity in the second stage of the objective test? 5.35 In Masciantonio, McHugh J (in dissent) was critical of the majority’s test of the ordinary person. He argued that the objective test would not become meaningless if it incorporated: … the general characteristics of an ordinary person of the same age, race, culture and background as the accused on the self-control issue. Without incorporating those characteristics,

the law of provocation is likely to result in discrimination and injustice. In a multicultural society such as Australia, the notion of an ordinary person is a pure fiction. Worse still, its invocation in cases heard by juries of predominantly Anglo-Saxon-Celtic

[page 82] origin almost certainly results in the accused being judged by the standard of self-control attributed to a middle class Australian of Anglo-Saxon-Celtic heritage, that being the stereotype of the ordinary person with which the juries are most familiar. Real equality before the law cannot exist when ethnic or cultural minorities are convicted or acquitted of murder according to a standard that reflects those values of the dominant class, but does not reflect the values of those minorities: at 587–8.

McHugh J thus argued that ethnicity should be taken into account in the second stage of the objective test, as well as in the first. A strong argument against this is that ethnic stereotypes would then be relied upon in terms of which races were ‘hot-blooded’ or ‘cold-blooded’. What kind of evidence could be admitted to establish the levels of self-control of particular nationalities or ethnicities? In summary, ethnicity is taken into account when determining the first stage of the objective test — the ‘sting’ of the provocation — the particular gravity that the provocative conduct had for D. But ethnicity is not taken into account in the second stage when considering the level of self-control we would expect of an ordinary person when confronted with such gravity of provocation. Student tip •

Ethnicity is taken into account in the first stage of the objective test when determining the gravity of the provocation, but is not relevant to the second stage of the objective test.

‘Form an intention to kill or inflict grievous bodily harm’ 5.36 In Stingel the High Court formulated the second tier of the objective test as whether an ordinary person could have lost self-control and ‘do what the accused did’. In Masciantonio, the High Court clarified this, and stated that the test should be whether an ordinary person could form an intention to kill or inflict GBH. This overturns the requirement in Stingel that the ordinary person could have responded ‘to the degree and method of continuation of violence which produces the death’: Stingel at 325. The requirement that the provocation be sufficient for an ordinary person to form the intention to kill or inflict GBH is correct, as it reflects the principle that disproportionate retaliation by D in the form of a frenzied attack may denote loss of selfcontrol on D’s behalf. For example, in Masciantonio, D attacked V, was stopped by bystanders,

and then broke away and continued to stab V. The ferocity of D’s actions assisted in establishing that he had lost self-control (ie, the subjective test considered at 5.40). However, under the Stingel formulation, D had difficulty in meeting the objective test — as jury members had to consider whether an ordinary person could do what D did. Thus the ferocity relied upon to meet the subjective test would militate against the objective standard. Consequently, the High Court clarified the test: The question is not whether an ordinary person, having lost his self-control, would have regained his composure sooner than the accused, nor is it whether he would have inflicted

[page 83] a lesser number of wounds. It is whether an ordinary person could have lost self-control to the extent that the accused did. That is to say, the question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it: Masciantonio at 584 per Brennan, Deane, Dawson and Gaudron JJ.

The High Court held that while an ordinary person would not have repeatedly stabbed V to the extent that D had, this did not in itself preclude reliance upon the defence of provocation. Accordingly, the test is whether an ordinary person could have so far lost self-control, as a result of the provocation, as to form the intention to kill or cause GBH: see Masciantonio.

Could, not would 5.37 It is clear that the second tier of the objective test requires jury consideration of whether an ordinary person could have lost self-control. This issue was considered in R v Thorpe (No 2) [1999] 2 VR 719: It is notoriously difficult to explain to a jury that provocation is not an affirmative defence but something that the Crown must negate … without inadvertently suggesting that an onus, however limited, lies on the accused … The objective test is whether the provocative conduct … could have caused an ordinary person to lose self-control … In directing a jury, it is acceptable to use ‘might’ rather than ‘could’… Experience shows that there is less chance of the judge’s accidentally transposing ‘would’ and ‘might’ …: at 16.

In R v Babic (unreported, VSCA, BC9702175, 25 February 1997) a new trial was ordered on the grounds that the trial judge’s directions to the jury repeatedly used the word ‘would’.

Ordinary person, not reasonable person 5.38 The defence of provocation has traditionally referred to the ‘ordinary’ person rather than the ‘reasonable’ person. This is because a person acting in hot blood due to provocation may be ‘ordinary’ or ‘average’ but not

‘reasonable’: see Johnson v R (1976) 136 CLR 619 per Barwick CJ. A reasonable person would not lose self-control.

Intoxication and the objective test 5.39 The ordinary person is not intoxicated: see R v Croft [1981] 1 NSWLR 126; R v O’Neill [1982] VR 150; s 23(5) (NSW). In the second stage of the objective test (the self-control of the ordinary person), no characteristics apart from age will be taken into account, thus clearly, intoxication will be irrelevant. Generally, intoxication will also be excluded from the first stage of the objective test. Thus, when determining the gravity of the provocation, intoxication will not be taken into account. However, in some cases intoxication may be taken into account at the first stage of the objective test if the provocative conduct is closely related to D’s intoxication. For example, if the provocation consists in part of V taunting D regarding an addiction to glue sniffing, then the fact that D is addicted to glue sniffing would be relevant in assessing the gravity of the provocation: see R v Morhall [1996] 1 AC 90. [page 84]

The subjective test: loss of self-control 5.40 Once the objective test has been satisfied, the next question is whether D actually lost self-control as a result of the provocation: … provocation must actually cause the accused to lose self-control and the accused must act, whilst deprived of self-control, before he has had the opportunity to regain his composure: Masciantonio at 66.

The defence of provocation requires that D actually lost self-control under the influence of provocation, and that, as a result of this loss of self-control, D killed V. The defence is not available where D’s intent was due to intoxication rather than provocation. When determining whether D actually lost self-control, the courts will have regard to all relevant circumstances including the time elapsed between the provocative conduct and the act causing death, D’s ethnicity, state of intoxication, etc. A frenzied attack has frequently been relied upon by D to point to loss of self-control: see, eg, Masciantonio. Traditionally, the loss of self-control was attributed to anger, while fear was associated with the defence of self-defence; but in contemporary law loss of

self-control may be due to a combination of emotions: see Van den Hoek v R (1986) 161 CLR 158; Masciantonio.

Sudden loss of self-control 5.41 Historically, there was a requirement at common law that D’s ‘blood be boiling’ or that the loss of self-control be sudden. The ‘boiling blood’ requirement attempted to ensure that D would not have had the intention to kill, but for the provocation. The formation of intent had to have been spontaneous, and based on authentic, spontaneous loss of self-control: see R v R at 345. There is no longer a requirement that D suddenly lose self-control: see Parker v R (1963) 111 CLR 610; s 23(4) (NSW). The case of Parker expanded the common law requirement of sudden loss of self-control. The Privy Council stated: Though there was an interval of time between the moment when the appellant’s wife and the deceased went away, and the moment when the appellant overtook them and then caused the death of the deceased, the jury might well consider, and would be entitled to consider, that the appellant’s whole conduct was such as might ‘heat the blood’ to a proportionable degree of resentment and keep it boiling to the moment of the fact: at 679.

This expansion is consistent with the common law and statutory recognition that provocation should be contextualised. This is particularly relevant in cases where a history of violence in a relationship is alleged: see Chhay v R (1994) 72 A Crim R 1. 5.42 The requirement that the ‘blood be boiling’ can be fulfilled, even where there has been a time gap between the ‘trigger incident’ amounting to provocation and the act causing death. Under this formulation, an interval between the trigger incident and the act causing death will not preclude D from relying on the defence. Rather, this interval will raise issues of proof as to whether D actually lost self-control. Clearly, the longer the interval of time, the less credible the claim of provocation will appear. The focus will be upon whether D was acting without self-control as a result of the provocation, rather than upon whether D acted suddenly: see R v R. [page 85]

Mens rea for murder 5.43 D will not be precluded from the defence of provocation, even though D possessed the intention to kill or inflict GBH: see Lee Chuen v R [1963] AC 220 at 227; s 23(6) (NSW). D must have the mens rea for murder in order to

rely upon provocation. If D lacks the mens rea for murder, then D has not committed murder, and the defence of provocation will not be available. Subject to fulfilling other requirements of the defence, D will be able to rely on the defence of provocation where D has the mens rea for murder. However, D must have formed this mens rea while under the influence of provocation, and not independently.

Provocation and offences other than murder 5.44 Traditionally, the defence of provocation has been confined to charges of murder; however, there is authority for extending the defence.

Provocation and attempted murder 5.45 The argument for extending the defence of provocation to attempted murder is that D cannot incur liability for attempting to commit an offence where D’s actions would not have amounted to that offence if D had succeeded in committing the attempted offence. There are authorities in Australia for extending the defence to attempted murder (see, eg, R v Duvivier (1981) 29 SASR 217) and against such an extension (see, eg, R v Wells (1981) 28 SASR 63). Those authorities in favour of extending the defence differ as to whether a successful defence would lead to a complete acquittal or a conviction for attempted manslaughter.

Provocation and serious assaults 5.46 There is general agreement that provocation cannot be pleaded to charges of assaults not involving an intent to murder or kill. Thus, provocation cannot be raised as a defence to a charge of wounding with intent to inflict GBH: see Helmhout v R (1980) 1 A Crim R 464. The authorities are divided as to whether provocation can be raised as a defence to assaults with an intent to kill or to murder. Those cases in favour of allowing the plea include R v Newman [1948] VLR 61 and R v Spartels [1953] VLR 194. A successful plea could result in conviction for a lesser offence, or a complete acquittal where conviction is impossible. Authorities against extending the plea include R v Falla [1964] VR 78 and Helmhout.

Provocation and other defences 5.47 D may rely on the defences of provocation and self-defence concurrently: see R v Perks (1986) 41 SASR 335.

Intoxication may be relevant with regard to provocative conduct and the subjective test; however, it will be excluded from the objective test. Intoxication may raise the issue of whether the loss of self-control was caused by the provocation (which would permit the defence) or intoxication (which would exclude the defence): see Perks. [page 86]

Extreme provocation in New South Wales 5.48 The defence of extreme provocation in New South Wales has been provided for by s 23. To a large extent, s 23 reflects the common law (excluding the limits on what amounts to ‘extreme provocation’ considered above): ◆

The statutory defence reduces liability for murder to manslaughter: s 23(1).

◆

Under s 23(7), the burden of proof remains the same, with the evidential burden resting on D, and, where D satisfactorily raises the issue, shifting to the prosecution to prove beyond a reasonable doubt that ‘the act or omission causing death was not done or omitted under provocation’.

◆

There must be an act or acts of extreme provocation: s 23(2); s 23(3).

◆

The defence is divided into objective and subjective tests. Student tip

The objective and subjective tests of provocation have not changed under the 2014 law reforms, but the subsection numbers have changed. Make sure you refer to the correct subsections.

Conduct amounting to extreme provocation 5.49 Section 23 requires there to be ‘extreme provocative’ conduct which causes the loss of self-control. As noted above, the 2014 reforms strictly limit what will amount to ‘extreme provocation’ at law: ◆

The most important difference is that ‘extreme provocation’ must be an indictable offence, punishable by five years imprisonment or more: s 23(2)(b); s 4. This alters many of the common law rules considered above.

◆ ◆

The position with regard to words is no longer the same as the common law. The common law requirement that the provocation emanate from the deceased is incorporated in s 23(2)(a), as is the requirement that the conduct is ‘towards or affecting the accused’.

Provocation in the presence of D: hearsay provocation 5.50 There is no explicit requirement that the provocative conduct take place in the presence of D; however, in R v Quartly (1986) 11 NSWLR 332 the New South Wales Court of Criminal Appeal construed s 23 as requiring this based on the common law. The reforms in 2014 have not affected this reasoning. In the case of Davis v R (1998) 100 A Crim R 573; (1998) 73 ALJR 139, the issue of hearsay provocation was considered again. In that case, D had lived with a woman for almost a year, and had become close to her three-year-old daughter. The child complained of pain in the genital area and told D that V had sexually assaulted her. D became very angry and drank to excess over the next few days. He also discovered that V had sexually assaulted V’s five-yearold niece. These allegations were reported to the police, resulting in an investigation. D threatened to kill V, whereupon V took out an apprehended violence order against him. On the evening of the killing, D had been at a party where he had been drinking alcohol and went over to V’s [page 87] house where V was sleeping. D hit V with a tree branch a number of times, causing his death. D then turned around and went back to the party. The trial judge held that provocation could not be left to the jury and D was convicted of murder. On appeal to the New South Wales Court of Criminal Appeal it was noted that this was a weak case of provocation because there was no evidence that D had lost self-control. Dunford J (with whom Bell JA agreed) affirmed the rule that hearsay provocation will not amount to provocation. Dunford J stated that otherwise, D may be justified in taking an innocent person’s life in circumstances where there was no truth whatsoever in what D had been told. Additionally, Dunford J noted that s 23(2) requires that the loss of self-control by D must be induced by the conduct of V towards or affecting D. Dunford J stated that it was not strictly the conduct of V that had affected D, but rather the words of D’s step-daughter. Accordingly the appeal was dismissed.

Although Simpson J agreed with the majority, she expressed some uneasiness, stating ‘a gloss appears to have been placed upon the words of s 23 of the Crimes Act — that being that the conduct of the deceased with which the section is concerned must have taken place in the presence of the accused. These words simply do not appear in the section’: at [12]. She went on: What the section is directed to is conduct on the part of the deceased. Conduct is a fact, whether it takes place in the presence of the accused or not. It is true that, if the accused was not present at the time of the alleged conduct he or she has not certain knowledge that it in fact occurred — but the section does not concern itself with the accused’s knowledge or means of knowledge. I cannot accept that an accused who kills following a report of particular conduct of a deceased person is provoked, not by the conduct reported, but by the words describing the conduct. What in fact provokes the accused is the belief that the conduct occurred. If that belief is erroneous, obviously there was no conduct within the meaning of the section, and the fundamental test imposed by the section cannot be met and there can be no successful defence of provocation. But where the belief is, ultimately, shown to have been well founded, then it would not, in my opinion, be correct to say that the killer was provoked by the report of the conduct. The truth is the killing was provoked by the deceased’s conduct, conduct which the accused correctly believed had occurred: at [12].

Despite her reasoning, Simpson J agreed with the majority due to the weight of authority excluding ‘hearsay provocation’ and the absence of any legislative intention to remove the exclusion of ‘hearsay provocation’. The case went on appeal to the High Court. McHugh and Hayne JJ did not grant special leave to appeal because of the time that had elapsed between D hearing the allegations and the killing. In other words, there was no evidence that D had lost self-control. But they did state: The applicant seeks special leave to appeal against his conviction for murder to raise the question of whether provocation is available to reduce murder to manslaughter where the provocation is not committed in the presence of the accused but is reported to him. The learned trial judge, following the decision in The Queen v Quartly (1986) 11 NSWLR 332 held that it was not. We think that there is a strong case for saying that Quartly was wrongly decided on this point. Having regard to the terms of the statute it would seem sufficient for the accused to show that there was provocation on the part of the deceased and that it induced the accused to lose his or her self-control: (1998) 73 ALJR 139 at 139.

[page 88] Consequently, this decision leaves the possibility of reliance upon hearsay provocation open in New South Wales. The High Court appeared to agree with Simpson J’s arguments that D could only rely upon hearsay provocation if V in fact had acted in the way alleged. This would then require evidence that D’s beliefs regarding V were correct. The New South Wales Law Reform Commission considered hearsay provocation in Partial Defences to Murder: Provocation and Infanticide (Report 83), 1997, recommending:

The legislation should be amended to make it clear that the defence of provocation may apply to provocative conduct occurring outside the accused’s presence. Where the accused loses selfcontrol as a result of a belief in provocative conduct, which provocative conduct the accused does not witness personally, then the accused’s belief in the conduct must be based on reasonable grounds …: at 56.

The objective test 5.51 The objective test is incorporated under s 23(2)(d), and appears to be broadly the same as the objective test under the common law. Thus, Stingel (modified by Masciantonio: see 5.36) is the current governing authority.

The subjective test 5.52 The statutory defence parallels the common law defence in its requirement that D genuinely lose self-control as a result of the provocation, and this loss of self-control results in D killing the person offering the provocation. As with the common law, it is not inconsistent with the defence that D form the intent to kill or inflict GBH: see s 23(6).

SUBSTANTIAL IMPAIRMENT OF THE MIND: NEW SOUTH WALES 5.53 The defence of substantial impairment of the mind is available under s 23A in New South Wales. It is not available in South Australia or Victoria. The defence of substantial impairment of the mind can only be pleaded in relation to charges of murder. It is a partial defence, and, if successful, reduces liability for what would otherwise be murder (including constructive murder: see R v Thompson (1988) 36 A Crim R 223) to manslaughter. The idea behind this partial defence is that there should be reduced culpability attached to a killing if it was done in circumstances where some abnormality of the mind substantially impaired the killer’s mental responsibility for the killing.

Substantial impairment of the mind and insanity 5.54 The defence of substantial impairment of the mind was enacted in recognition of the limited reach of the defence of insanity. Substantial impairment of the mind differs from insanity in several ways, in that: ◆

substantial impairment of the mind can only be relied upon for murder, while the defence of insanity is available for any charges;

◆

substantial impairment of the mind is only a partial defence, while insanity is a complete defence; [page 89]

◆

the test for substantial impairment of the mind is wider than insanity, covering a wider range of mental disorders.

Burden of proof 5.55 The civil burden of proof rests on D, ie, D must prove substantial impairment of the mind at the time of the act causing death, on the balance of probabilities: see s 23A(4); R v Elliott and Hitchins (1983) 9 A Crim R 328. Hence, this is an example of a statutory provision overriding the ‘golden thread’ rule in Woolmington v DPP [1935] AC 462: see 1.18. As a consequence, the jury must first consider whether the prosecution has proven all requirements for murder beyond a reasonable doubt. The jury would then assess whether D satisfied all requirements of the defence of substantial impairment of the mind on the balance of probabilities. Burden of proof D must satisfy the evidential burden to raise the defence of substantial impairment of the mind. If the evidential burden is discharged, D must prove all elements of the defence on the balance of probabilities: see s 23A(4).

Statutory basis 5.56 The defence of substantial impairment of the mind is found in s 23A: (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of the mind arising from an underlying condition; and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

The section clarifies the earlier defence of diminished responsibility in New South Wales. Elements To prove the defence of substantial impairment of the mind D must establish three main elements: •

at the time of the act or omission, D was suffering from an ‘abnormality of the mind’;

•

the abnormality of the mind arose from an underlying condition; and

•

the abnormality of the mind substantially impaired D’s capacity to understand events, or to judge whether D’s actions were right or wrong, or to control himself or herself.

[page 90] Section 23A(1)(b) makes the underlying rationale of the defence of substantial impairment of the mind clear: ‘the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.’

Abnormality of the mind 5.57 The defence requires that D suffered from an abnormality of the mind at the time of acts or omissions causing the death charged. The approved definition of an abnormality of the mind was stated in R v Byrne [1960] 2 QB 396 as: … a state of mind so different from that of ordinary human beings that a 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: at 403 per Lord Parker CJ.

This definition is not particularly clear, and does not necessarily accord with medical definitions of abnormalities of the mind. Examples of abnormality of the mind include major depressive illness (Chayna v R (1993) 66 A Crim R 178), post-traumatic stress disorder (Nielsen v R [1990] 2 Qd R 578) and psychotic disorder (R v Heatley [2006] NSWSC 1199). The defence of substantial impairment of the mind may also form the basis of a partial defence for persons suffering from personality disorders: see Byrne.

Underlying condition 5.58 In New South Wales, the abnormality of the mind must have arisen from an underlying condition. Section 23A(8) defines this as a ‘pre-existing mental or physiological condition other than a condition of a transitory kind’. The main purpose of this subsection is to exclude ephemeral causes (especially intoxication) from the defence. In R v De Souza (1997) 41 NSWLR 656 it was held that abnormal behaviour due to the use of steroids was not within the scope of the section. 5.59 The New South Wales Law Reform Commission has noted that s 23A(8) can lead to confusion and has recommended that the words ‘abnormality of the mind arising from an underlying condition’ be replaced

by ‘mental health or cognitive impairment’: People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences (Report 138), 2013.

Relevance of intoxication 5.60 Intoxication in and of itself will not amount to an abnormality of the mind under s 23A(3) (NSW). In R v Jones (1986) 22 Cr App R 42, it was held that an underlying mild condition could not be ‘topped up’ by alcohol. D drank a great deal, fought with a man in a pub, left to get a gun, and then returned and shot and killed V. D was convicted of murder and appealed on the grounds that substantial impairment of the mind should have been left [page 91] to the jury. Medical evidence stated that D had slight brain damage and hypoglycaemic disease, and that the combination of the disease and alcohol may have resulted in an abnormality of the mind. It was held that temporary intoxication does not fall within the old s 23A. The previous conditions alone would not have been sufficient to be classified as ‘inherent causes induced by disease or injury’ and the alcohol consumption did not change this. The result would be the same under the reformed s 23A, as the substantial impairment was due to the transitory effect of alcohol. Alcoholism in advanced stages can amount to a relevant abnormality of the mind.

Substantially impaired mental responsibility 5.61 In New South Wales, the abnormality of the mind must have substantially impaired D’s capacity to: ◆

understand what he or she was doing;

◆

control his or her actions; or

◆

judge whether his or her actions were right or wrong.

In R v Lloyd [1967] 1 QB 175, the requirement of substantially impaired responsibility was defined as follows: … ‘substantial’ need not mean totally impaired, so to speak, destroyed altogether. At the other end of the scale substantial does not mean trivial or minimal. It is something in between, and Parliament has left it to you and other juries to say on the evidence, ‘Was the mental responsibility impaired, and if so, was it substantially impaired?’: at 178.

In Lloyd, it was held that D suffered from mental abnormality; however, this did not substantially impair his mental responsibility. The definition of ‘substantial’ is unclear and will be left to the jury as a question of fact. The New South Wales statutory construction of the defence emphasises that the jury must determine whether the impairment of the mind was ‘so substantial as to warrant liability for murder being reduced to manslaughter’: see s 23A(1)(b).

Medical and psychiatric evidence 5.62 Ultimately, substantial impairment of the mind is a matter for the jury. In Tumanako v R (1992) 64 A Crim R 149, the position of medical evidence was discussed. It was held that: ◆

there is no legal requirement for medical evidence, but as a matter of practicality there will usually have to be medical evidence presented;

◆

arguably the cause of the abnormality of the mind may need to be established on expert evidence;

◆

juries can decide on the evidence. Where there is only one expert, the jury is encouraged to accept that evidence, but is not required to do so.

In R v Trotter (1993) 68 A Crim R 536, it was noted that whether the defence of substantial impairment of the mind has been made out is a question of fact, and will [page 92] involve a broad, commonsense, non-medical approach, requiring a combination of a range of facts including: the medical evidence; any history of mental abnormality; the nature of the killing; and the accused’s conduct before, during and after the killing. Expert opinion evidence is inadmissible on the question of whether D’s impairment of the mind was sufficient to justify murder being reduced to manslaughter. This is a question of fact for the jury.

[page 93]

Chapter 6 Involuntary Manslaughter Objectives After reading this chapter you should be familiar with the following: ▶ involuntary manslaughter ▶ unlawful and dangerous act manslaughter ▶ assault/single punch causing death (NSW and Vic) ▶ manslaughter by criminal negligence ▶ criminal liability for neglect where death results (SA)

INVOLUNTARY MANSLAUGHTER 6.1 The difference between involuntary manslaughter and murder is based on mens rea requirements. Involuntary manslaughter can be charged where D lacks the mens rea for murder, and even where D has no mens rea at all. New South Wales, South Australia and Victoria are covered by the common law, with two heads of involuntary manslaughter: 1. unlawful and dangerous act manslaughter; and 2. manslaughter by criminal negligence. There are also statutory involuntary manslaughter offences, eg, the offence of causing death by culpable driving: see, eg, s 52A (NSW). The prosecution may charge D with manslaughter, with the prosecution free to argue liability under either head. There is a great deal of overlap between the heads of involuntary manslaughter. New South Wales and Victoria have introduced ‘one punch’ legislation, and this will be considered at 6.6 and 6.9. In 2005 South Australia introduced the offence of neglect where death or serious harm results from an unlawful act. This will be considered at 6.20. People are more likely to die from occupational ‘accidents’ or industrial diseases as from homicide. Corporations may be prosecuted with common law manslaughter offences (particularly by criminal negligence), although this is very rare. Some legislatures, such [page 94]

as the UK, have passed specific legislation to cover corporate manslaughter offences. The Criminal Code Act 1995 (Cth) expressly attributes criminal liability to corporations under Pt 2.5. Victoria attempted unsuccessfully to introduce a corporate manslaughter offence based on criminal negligence in 2001. However, currently, there are no specific criminal manslaughter offences responding to industrial deaths in New South Wales, Victoria or South Australia.

UNLAWFUL AND DANGEROUS ACT MANSLAUGHTER 6.2 Under the common law, D can be liable for manslaughter where D kills V by an act that is both unlawful and dangerous. The current authority regarding constructive manslaughter is Wilson v R (1992) 174 CLR 313. According to the joint judgment by Mason CJ, Toohey, Gaudron and McHugh JJ, the act causing death must: ◆

be itself unlawful; and

◆

create ‘an appreciable risk of serious injury’.

The reasoning of Brennan, Deane and Dawson JJ in their joint judgment is substantially the same, but not in identical terms. According to them, the act causing death must be: ◆

‘contrary to criminal law’; and

◆

objectively dangerous. However, the term ‘dangerous’ was not

defined, other than to note that the test was ‘no more than whether there is a sufficient likelihood or risk of sufficient injury to enable the act to be characterised as dangerous’: at 322–3. [page 95] Elements Based on Wilson the prosecution must prove the following: •

an unlawful act (including the actus reus and mens rea of a criminal offence);

•

caused the death of V; and

•

created an appreciable risk of serious injury.

Unlawfulness 6.3 Case law requires that the act breach criminal law; a breach of civil law is insufficient: see Pemble v R (1971) 124 CLR 107. Even a minor breach of criminal law, such as running a red traffic light, could satisfy this requirement. The idea of a breach of traffic laws forming the basis for a conviction of unlawful and dangerous act manslaughter was considered (but not resolved) by Simpson J in R v Borkowski [2009] NSWCCA 102, who stated (at [3]): I am unable to see why such a breach could not form the basis of the ‘unlawfulness’ of an act necessary for a conviction for manslaughter by unlawful and dangerous act. That is a composite concept, and it is not every breach of traffic laws that would qualify — the act must also be dangerous, and sufficiently dangerous to justify the application of the criminal law.

The most usual breach of criminal law for the purposes of unlawful and dangerous act manslaughter is common assault: see R v Holzer [1968] VR 481. Omissions cannot form the basis of an unlawful act: see R v Lowe [1973] 1 QB 702. Where V dies as a result of D’s failure to fulfil a legal duty, D may be liable for negligent manslaughter. The prosecution must prove all components of the foundational offence. Thus, if D is able to justify the foundational act, eg, through self-defence or necessity, then the act does not constitute an unlawful act for the purposes of unlawful and dangerous act manslaughter: see R v Turner [1962] VR 30. This requirement has led to some creativity in the courtroom when trying to find an unlawful act for the purposes of the offence: see Pemble.

Causation 6.4 Not only must D have caused V’s death, but also the unlawful and dangerous act by D must have caused V’s death. If V’s death was due to the

unlawful and dangerous act, it does not matter that the act was not aimed at V: see R v Mitchell [1983] QB 741; Re Attorney-General’s Reference (No 3 of 1994) [1998] AC 245.

Dangerousness 6.5 The test of dangerousness in constructive manslaughter is unanimously accepted as objective, and the jury must assess whether the act was such that a ‘reasonable person would realise that it was exposing others to an appreciable risk of serious injury’: [page 96] see Wilson at 335 per Mason CJ, Toohey, Gaudron and McHugh JJ. It is not necessary that D was aware that the act was dangerous. Under this formulation, the hypothetical reasonable person is not attributed ‘anything personal to [D] which … may affect his reasoning and his judgment on the question of whether the act is dangerous or not’: R v Wills [1983] 2 VR 201 at 214 per Fullagar J. This would preclude consideration of D’s intoxication. In the same case, Lush J stated: It is sufficient for the present case to say that the circumstances relevant to the question whether a reasonable man would appreciate the danger include the physical features of the situation and the action of the accused man involved. I would not, for my part, include the idiosyncrasies of the accused man or his ephemeral emotional or mental state. They are matters peculiar to him which would affect his judgment of danger but the relevant judgment must be, by definition, the judgment of a reasonable man: at 212.

Consequently, the question for the jury is whether a reasonable person, in the position of D and performing the same act, would have realised that he or she was exposing another to an appreciable risk of serious injury: see R v Besim (2004) 148 A Crim R 28, where the cases are reviewed. See also the discussion at 6.6 and 6.9 below about how recent reforms in New South Wales and Victoria have circumvented the requirement of dangerousness in certain cases. 6.6 As a result of deaths caused by so-called ‘coward punches’, both New South Wales and Victoria introduced reforms in 2014. The reforms in Victoria changed the objective element of ‘dangerous’ in unlawful and dangerous act manslaughter. Under s 4A of the Crimes Act 1958 (Vic), a punch that caused death will be deemed to be a dangerous act for the purposes of the law relating to manslaughter by unlawful and dangerous act. 4A Manslaughter — single punch or strike taken to be dangerous act (1) This section applies to a single punch or strike that —

(a) is delivered to any part of a person’s head or neck; and (b) by itself causes an injury to the head or neck. (2) A single punch or strike is to be taken to be a dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act. (3) For the purposes of subsection (2), it is irrelevant that the single punch or strike is one of a series of punches or strikes. (4) A single punch or strike may be the cause of a person’s death even if the injury from which the person dies is not the injury that the punch or strike itself caused to the person’s head or neck but another injury resulting from an impact to the person’s head or neck, or to another part of the person’s body, caused by the punch or strike. Example If a person punches another person to the head, and that other person falls, hits their head on the road, and dies from the injury resulting from their head hitting the road, the punch may be the cause of their death. (5) Nothing in this section limits the circumstances in which a punch or strike may be an unlawful and dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act.

[page 97] (6) In this section — ‘injury’ has the same meaning as in Subdivision (4); ‘strike’ means a strike delivered with any part of the body.

This means that in Victoria, the prosecution is required only to prove that there was a punch to the head or neck that caused the death of V in order to establish unlawful and dangerous act manslaughter. These reforms return Victoria to an offence similar to battery manslaughter, which was rejected by the High Court (see 6.8 below). The New South Wales reforms in response to so-called ‘coward punches’ will be considered at 6.9 below. 6.7 The defence of mistake of fact may be available where this mistake is such that, if the facts had been such as D believed them to be, the act would not have been dangerous. This is because mistake of fact as a defence going toward the actus reus is generally available in criminal law. Example In Re Attorney-General’s Reference (No 3 of 1994), D stabbed a pregnant woman, intending harm to the woman and not to the foetus. As a consequence of the stabbing, the foetus was born grossly premature but alive, but then died as a consequence of D’s actions. D was charged with murder of the child. As detailed in Chapter 4, the House of Lords held that the doctrine of transferred malice would not apply to support a charge of murder. However, D could be liable for manslaughter. The prosecution had to prove:

•

an unlawful act: the intentional wounding of the mother;

•

caused the death of V: the foetus was born alive and then died as a consequence of D’s acts. If V’s death was due to the unlawful and dangerous act, it does not matter that the act was not aimed at V. Thus, D’s unlawful act caused death. The House of Lords noted that it was irrelevant whether D knew the woman was pregnant or not;

•

created an appreciable risk of serious injury: a reasonable person in the position of D would have recognised an appreciable risk of serious injury from stabbing someone.

Consequently, D was found guilty of unlawful and dangerous act manslaughter.

Battery manslaughter 6.8 The High Court explicitly rejected the existence of a common law offence of battery manslaughter in Wilson, on the grounds ‘that there should be a close correlation between moral culpability and legal responsibility’: at 332 per Mason CJ, Toohey, Gaudron, McHugh JJ. Under the old common law offence, all that was required was that D committed a battery that caused the death of V. In contrast, under unlawful and dangerous act manslaughter, D will not automatically commit manslaughter if D assaults V and V dies as a result. In order to ground manslaughter, the assault must be: ◆

unlawful (which assault is by definition); and

◆

objectively dangerous: see 6.5 above. [page 98]

Note that Victoria does not require that a single punch is objectively dangerous under the recent reforms: see 6.6 above.

ASSAULT CAUSING DEATH: NEW SOUTH WALES AND VICTORIA 6.9 As a consequence of a series of so-called ‘coward punches’ causing death in New South Wales and Victoria, both governments introduced reforms in 2014 (for Victoria, see 6.6 above). In Victoria, legislation deems single punches to be dangerous for the purposes of unlawful and dangerous act manslaughter. In contrast, in New South Wales, the government created a new offence of assault causing death: s 25A: 25A Assault causing death (1) A person is guilty of an offence under this subsection if: (a) the person assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person, and (b) the assault is not authorised or excused by law, and

(c) the assault causes the death of the other person. Maximum penalty: Imprisonment for 20 years. (2) A person who is of or above the age of 18 years is guilty of an offence under this subsection if the person commits an offence under subsection (1) when the person is intoxicated. Maximum penalty: Imprisonment for 25 years.

The New South Wales legislative reforms are highly problematic and unnecessary. The existing offences of murder (where D had the necessary mens rea) and unlawful and dangerous act manslaughter already covered ‘coward punch’ homicides. In New South Wales, the government attempted to put parameters around the offence to ensure that it did not reinstate the old battery manslaughter offence which was rejected by the High Court in Wilson. However, in attempting to do this, the government created new problems. The prosecution must prove: 1. an assault ‘by intentionally hitting’ V with any part of D’s body or with an object held by D; 2. that the assault was unlawful; and 3. that the assault caused the death of V. Given that the offence is relatively new, there is lack of significant judicial interpretation. However, some preliminary comments can be made. The first requirement departs from classic assault law and limits assaults to ‘intentionally hitting’ V. This excludes reckless assault. It also narrows how the force is applied to ‘hitting’ V. Questions are thus raised as to whether this would include, eg, kicking, throttling, gouging, pushing and tripping. Moreover, it clearly does not include assaults where D throws something at V, such as a barstool or rock. Shooting would also be excluded. [page 99] In addition, by limiting the offence to ‘hitting’, this excludes psychic assault — where D intentionally creates an apprehension in V, who then, in seeking to escape, may die. The requirement of ‘intentionally hitting’ V could also possibly exclude the operation of the historic doctrine of transferred malice: see 4.37. That is, cases where D intends to hit X, but accidentally hits V. The third requirement, of causation, also departs from existing doctrine. Causation is defined in s 25A(3): For the purposes of this section, an assault causes the death of a person whether the person is

killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault.

This subsection defines causation differently from the common law ‘substantial and operating’ cause: see 3.25. As stated above, by limiting the offence to ‘hitting’, if D hits V and then throws a barstool, and it is the barstool that kills V, then D cannot be charged under s 25A. Leaving aside all the problems associated with mandatory sentencing, the offence also creates an aggravated offence when D was intoxicated. Intoxication is defined in s 25A(6)(b) as follows: the accused is conclusively presumed to be intoxicated by alcohol if the prosecution proves … that there was present in the accused’s breath or blood a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood.

This shifts away from existing rules of intoxication: see Chapter 13. When considering the question of intoxication in relation to other offences in New South Wales, the jury does not ask the quantity of the drugs/alcohol, but whether D was so impaired that D lacked mens rea or that the act was involuntary. While there are limited opportunities to argue intoxication in New South Wales, when does apply, it operates as an exculpatory factor. In contrast, the new offence regards intoxication as an aggravating factor.

MANSLAUGHTER BY CRIMINAL NEGLIGENCE 6.10 In all jurisdictions, it is manslaughter for D to kill V by an act or omission done with a very high degree of negligence. Liability for negligent manslaughter is based on causing death by an act or omission which falls so far short of the standard of care required of a reasonable person that it is worthy of criminal punishment: see Nydam v R [1977] VR 430; R v Lavender (2005) 222 CLR 67. South Australia has introduced a statutory offence of criminal negligence which would cover many of the cases discussed below, except that it has the additional requirement that D caused death ‘as a result of an unlawful act’: see s 14 (SA); 6.20 below.

By an act 6.11 The elements of negligent manslaughter by an act are specified by Nydam. [page 100]

Elements The prosecution must establish the following: •

that D’s actions were voluntary (see Chapter 3);

•

that D’s acts caused V’s death (see Chapter 3);

•

the standard of care required (see 6.12 below); and

•

that there has been a gross departure from the standard of care amounting to criminal negligence (see 6.13 below).

Standard of care 6.12 This is an objective test, with the standard being that of a ‘reasonable person’ in the same position as D: see Nydam. While the reasonable person is in the position of D, the personal characteristics and circumstances of D are not attributed to the reasonable person. Thus, a person of limited capacity will be judged according to the standard of the reasonable person — D’s physical and mental limitations will not be taken into account. For example, Winneke P in R v Richards and Gregory [1998] 2 VR 1 stated the crime of manslaughter by negligence is: One which requires an objective comparison to be made between the conduct of the accused and the conduct to be expected of the reasonable person. The objectivity which marks out the crimes does not permit, in its commission, any distinction to be drawn between the intelligent and the handicapped or the appreciative and the ignorant. That is why one finds, over the years, that those distinctions have been drawn in the range of penalties imposed for the crime: at 9.

Gross departure from the standard of care amounting to criminal negligence 6.13 The criminal law requires a high degree of negligence before criminal sanctions are applied. D’s conduct must amount to a gross departure from the standard of care expected, such that the application of criminal sanctions is warranted. In Nydam it was held that negligent manslaughter is not a mens rea offence, ie, the assessment of D’s behaviour is a purely objective determination of whether it was risk-producing. Negligent manslaughter was defined by the Victorian Full Court as follows: In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm, but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised, and which involved such a high risk that death or grievous bodily harm would follow, that the doing of the act merited criminal punishment: at 445.

In Nydam, D entered a hairdressing salon with a petrol container. On one

version of the facts, D stumbled and spilt the petrol, and lightly drew a match across the box, not intending that it should light. Two women died as a result of his actions. It was held that D lacked the necessary mens rea for reckless murder; however, he was found guilty of negligent manslaughter. [page 101] The Australian authorities have favoured the Victorian approach that negligent manslaughter is not an offence of mens rea. The offence will be proven upon proof of risk-producing behaviour on behalf of D that can be characterised as ‘grossly negligent’ or ‘wickedly’ negligent: see Callaghan v R (1952) 87 CLR 115; R v Taktak (1988) 14 NSWLR 226; R v George (2004) 149 A Crim R 38; R v Lavender (2005) 222 CLR 67.

By omission 6.14 Negligent manslaughter by omission is essentially a subcategory of negligent manslaughter. Generally, D will not incur liability for an omission, even where D was in a position to prevent the harm, unless a legal duty, rather than a moral duty, can be established. D can only be charged with negligent manslaughter by omission if a legal duty is established. In Burns v R (2012) 290 ALR 713, Gummow, Hayne, Crennan, Kiefel and Bell JJ said of criminal liability due to an omission to act: Criminal liability does not fasten on the omission to act, save in the case of an omission to do something that a person is under a legal obligation to do. As a general proposition, the law does not impose an obligation on individuals to rescue or otherwise to act to preserve human life. Such an obligation may be imposed by statute or contract or because of the relationship between individuals. The relationships of parent and child, and doctor and patient, are recognised as imposing a duty of this kind. A person may voluntarily assume an obligation to care for a helpless person and thereby become subject to such a duty. Outside limited exceptions, a person remains at liberty in law to refuse to hold out her hand to the person drowning in the shallow pool: at [97].

Elements The test for negligent manslaughter by omission is as follows: •

legal duty to act: D must be under a legally recognised duty to act;

•

breach of duty: D must have omitted to fulfil this duty in a way which exhibited a great degree of negligence, as required by the doctrine of negligent manslaughter;

•

causation: as a result of this omission, V died.

Each of these elements will be considered in turn.

Legal duty to act

6.15 At common law, legal duties to act have been found in: ◆

parent–child relationships: see R v Russell [1933] VLR 59; Thomas Sam v R [2011] NSWCCA 36;

◆

voluntary employment in an occupation which bears upon public safety: see R v Lowe (1850) 175 ER 489;

◆

voluntary assumption of care for helpless persons: see Taktak; R v Stone and Dobinson [1977] QB 354;

◆

situations where D has created a situation of danger by dealing with dangerous things or doing dangerous acts: see Callaghan; R v Styman; R v Taber [2004] NSWCCA 245. [page 102]

At times the duty to act may arise due to a combination of duties. For example, in R v Wacker [2003] 2 WLR 374, the vent to a refrigerated van smuggling immigrants was shut for the crossing of the English Channel, with the result that most of them suffocated. The Court of Appeal held that: … by continuing with the unlawful enterprise in the way that he did, [the defendant was] shouldering the duty to take care for their safety in this regard … [W]e have no difficulty in concluding that in these circumstances the defendant did voluntarily assume the duty of care for the Chinese in this regard. He was aware that no one’s actions other than his own could realistically prevent the Chinese from suffocating to death and if he failed to act reasonably in fulfilling this duty to an extent that could be characterised as criminal, he was guilty of manslaughter if death resulted: at [38].

Breach of duty 6.16 The standard of care expected is the same as for negligent manslaughter by an act. Thus, the prosecution must prove: … circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised, and which involved such a high risk that death or grievous bodily harm would follow, that the doing of the act merited criminal punishment: Nydam at 445.

D is judged by the same standard as the reasonable person, even if D is incapable of meeting that standard. The application of the objective standard was demonstrated in Stone and Dobinson. In that case, D1 and D2 were charged with the manslaughter of V, one of D1’s sisters. D1 was partially deaf, almost blind, with no appreciable sense of smell, and of low average intelligence. D2 was described as ‘ineffectual and inadequate’. V came to lodge with them and became helplessly ill after starving herself for extended periods. D2 attempted to wash

V and feed her, but V refused all assistance. A neighbour suggested they get a doctor, but the Ds were unable to find the doctor and were unable to use a telephone. V died, more than three weeks after the last attempt to wash her, from toxaemia due to bedsores and lack of food. Medical evidence suggested she would probably have survived if medical assistance had been obtained during those three weeks. The Court of Appeal held that the Ds had a duty of care to V as she was their lodger, a blood relative, and they had undertaken the duty by attempting to feed and wash her. It was held that it was open to the jury to find that the Ds were grossly negligent in regard to that duty of care, given that they were aware of V’s poor condition. The fact that the Ds were incapable of meeting the reasonable person standard would not be taken into account. See also R v George (2004) 149 A Crim R 38, where D’s mild form of Asperger’s syndrome was not relevant to criminal responsibility.

Causation 6.17 D’s breach of duty must have caused V’s death. Causation has been discussed in Chapter 3.

Example of manslaughter by criminal negligence 6.18 The three-stage test was applied in Taktak. In that case, D, a heroin addict, was rung up by his dealer, who requested that D come and pick up a prostitute, V, from a party. D arrived at the party and found V moaning and unable to speak. He took her [page 103] back to the dealer’s house and tried to revive her. The next morning the dealer returned home and, upon being unable to revive V, went to a doctor. D arrived at the surgery shortly after him. By the time the doctor went to see V, she was already dead of a heroin overdose. D was charged with manslaughter. The New South Wales Court of Appeal applied the test: ◆

Legal duty to act It was held that when D took V home he assumed a legal duty of care, because he had removed her from any potential medical assistance that she might have obtained from others: … the complexity of modern society is such that the duty of care cannot be confined to specific categories of legal relationships such as husband and wife, parent and child; the duty will also arise where one person has voluntarily assumed the care of another who is helpless, through whatever cause: at 250 per Carruthers J.

◆

Breach of duty

The Court stated that ‘mere negligence and mere inadvertence is not enough’. It was noted that D had no medical knowledge and was a heroin addict himself. There was no evidence that V knew that she was about to die. D was negligent, but not criminally negligent. Note that Yeldham J included some subjective elements in his proposed test of the reasonable person. This has not been approved in R v Lavender (2005) 222 CLR 67. ◆

Causation It was held that there was unsatisfactory medical evidence as to when V died, and whether her death could have been prevented by the administration of Narcan.

D’s conviction for manslaughter was quashed.

DIFFERENCE BETWEEN MANSLAUGHTER BY CRIMINAL NEGLIGENCE AND UNLAWFUL AND DANGEROUS ACT MANSLAUGHTER 6.19 In order to establish manslaughter by unlawful and dangerous act, the prosecution must prove a reasonable person would have recognised an ‘appreciable risk of serious injury’: see Wilson. In contrast, for manslaughter by criminal negligence, the prosecution must prove a ‘high risk of death or grievous bodily harm’: see Nydam. Thus, manslaughter by criminal negligence has a higher standard for the prosecution to prove. Presumably, this difference would be based on the assumption that a person involved in an unlawful act already has some moral culpability. Consequently, where an unlawful act can be established, it will be easier for the prosecution to establish manslaughter by unlawful and dangerous act than by negligence. 6.20 A jury does not have to be unanimous in its finding as to the basis for a verdict of involuntary manslaughter provided it is unanimous that D is guilty of manslaughter: R v Cramp (1999) 30 MVR 9; Burns (see below). The same set of facts may give rise to liability under either head of involuntary manslaughter. Thus in R v Taber [2004] [page 104] NSWCCA 245, it was open to the jury to find D guilty of manslaughter by criminal negligence or manslaughter by unlawful and dangerous act. Example

In the New South Wales case of Burns, the High Court considered whether supply by D of methadone was capable of supporting a conviction for manslaughter by unlawful and dangerous act or criminal negligence. In that case, D and her husband supplied methadone to V, who died as a result of the combined effect of the methadone and a prescription drug. The prosecution case was left to the jury on two bases: 1. the supply of methadone was an unlawful and dangerous act which caused the death of V (unlawful and dangerous act manslaughter); or 2. D’s failure to seek medical attention for V was a grossly negligent cause of V’s death (manslaughter by criminal negligence). D was convicted of the manslaughter of V. D appealed to the Court of Criminal Appeal and then the High Court. The issues for the High Court to determine were: 1. whether the alleged supply of methadone to V was an unlawful act that was capable of supporting D’s conviction for manslaughter by unlawful and dangerous act; and 2. whether a new trial should be ordered in respect of manslaughter by gross negligence. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ applied Wilson, holding that manslaughter by unlawful and dangerous act requires that the unlawful act causing death by an objectively dangerous act. A dangerous act is one that a reasonable person would realise exposes another to an appreciable risk of serious injury. The quality of dangerousness inheres in the unlawful act. The unlawful act must be the cause of death: at [75]. To supply drugs to another may be an unlawful act but it is not in itself a dangerous act. Any danger lies in ingesting what is supplied: at [76]. V’s informed and voluntary act to ingest the drugs broke the chain of causation: The supply of the methadone was not an act that carried an appreciable risk of serious injury. That risk arose when the drug was consumed. The cause of the death of the deceased in law was the consumption of the methadone and not the anterior act of supply of the drug: at [88]. The High Court was also clear that D did not owe V a duty of care. French CJ applied the taxonomy of relevant legal duties from Taktak and stated there was no statutory duty, no duty arising from a status relationship, and no duty arising from contract. D could not be said to have voluntarily assumed care of V. Nor could it be said that D had secluded V so as to prevent others from rendering assistance. French CJ also rejected the prosecution argument that D was subject to a duty to act because she had caused the dangerous situation. By taking the drugs, V had created the danger to himself: While Mrs Burns may well have been under a strong moral duty to take positive steps to dissuade him from leaving until medical assistance could be called, there was, in the circumstances, no legal duty, breach of which would support a finding of criminal negligence: at [48]. There is no general duty on suppliers of prohibited drugs to take reasonable steps to preserve the life of their customers: at [106]. French CJ (Gummow, Hayne, Crennan, Kiefel and Bell JJ agreeing) allowed the appeal and entered a verdict of acquittal.

[page 105]

CRIMINAL LIABILITY FOR NEGLECT WHERE DEATH

OR SERIOUS HARM RESULTS FROM AN UNLAWFUL ACT: SOUTH AUSTRALIA 6.21 South Australia enacted s 14 in 2005 as a consequence of the case of R v Macaskill [2003] SASC 61. In that case, D was charged with the manslaughter of V, her three-month-old daughter. It was accepted that V had died of non-accidental injuries and the mother and father were the only people present at the time the injuries were suffered. Neither mother nor father admitted causing the injuries. D was convicted of manslaughter by a jury. On appeal, the conviction was quashed because it could not be ruled out as a reasonable possibility that the father had inflicted the injuries. 6.22 The aim of the offence was to impose liability on parents and carers where a child (under the age of 16) or a vulnerable adult (a person with significant impairment through physical or mental disability, illness or impairment) dies or suffers serious harm as a result of an unlawful act while in their care, but the person who committed the fatal or harmful act cannot be identified. Section 14 states: (1) A person (the ‘defendant’) is guilty of the offence of criminal neglect if — (a) a child or a vulnerable adult (the ‘victim’) dies or suffers serious harm as a result of an unlawful act; and (b) the defendant had, at the time of the act, a duty of care to the victim; and (c) the defendant was, or ought to have been, aware that there was an appreciable risk that serious harm would be caused to the victim by the unlawful act; and (d) the defendant failed to take steps that he or she could reasonably be expected to have taken in the circumstances to protect the victim from harm and the defendant’s failure to do so was, in the circumstances, so serious that a criminal penalty is warranted. (2) If a jury considering a charge of criminal neglect against a defendant finds that — (a) there is reasonable doubt as to the identity of the person who committed the unlawful act that caused the victim’s death or serious harm; but (b) the unlawful act can only have been the act of the defendant or some other person who, on the evidence, may have committed the unlawful act, the jury may find the defendant guilty of the charge of criminal neglect even though of the opinion that the unlawful act may have been the act of the defendant.

The prosecution must prove all the elements in s 14(1) beyond a reasonable doubt. Section 14(2) applies both where D is not suspected of causing the death, and where D is suspected of causing the death but cannot be positively proved as having done so. It establishes liability for the death in the absence of proof of causation against either party, and in the absence of proof of complicity

between them. See R v N-T and C [2013] SASC 200 for an example of a neglect case. [page 106] Legal Problem Molly was on holidays with her friend Ahmed. Molly was an experienced scuba diver while Ahmed was a beginner. Molly volunteered to be Ahmed’s diving ‘buddy’ and ensure that he was safe. Molly and Ahmed went diving and stayed underwater for some time. Molly surfaced on her own and said that Ahmed was underwater and in trouble. The diving supervisor went looking for Ahmed, but by the time he found him Ahmed was no longer breathing. He took Ahmed to the surface but was unable to resuscitate him. Molly claimed that she had come to the surface as quickly as possible to get help when it was apparent that Ahmed was having breathing difficulties. Scientific analysis revealed that Molly had taken several times longer to surface (once she had noted Ahmed’s difficulties) than the supervisor had taken in going to get Ahmed and returning. Also, diving etiquette requires a buddy to stay below and share their oxygen with someone having breathing difficulties. Discuss Molly’s criminal liability. Answer Molly could be charged with murder or manslaughter: s 18 (NSW); s 11 (SA); s 3 (Vic). The prosecution must prove all elements of the crime beyond a reasonable doubt: Woolmington v DPP [1935] AC 462. [Comment: This is a complex question because the prosecution would seek to argue that Molly’s failure to act caused Ahmed’s death. This means that the prosecution must establish a legal duty to act, which has an impact on the structure of the answer.] MURDER Actus reus The act or omission causing death must be voluntary: Ryan v R [1967] ALR 577. The prosecution would seek to argue that Molly’s failure to act — to provide oxygen to Ahmed and bring him to the surface — caused his death. Voluntariness The prosecution is entitled to presume that the relevant act or omission is voluntary: R v Falconer (1990) 171 CLR 30. There is nothing on the facts to suggest that Molly’s leaving Ahmed underwater was anything other than ‘willed’ and ‘conscious’. [Comment: This sentence identifies the relevant act/omission and also defines voluntariness.] Legal duty of care It is not enough for the prosecution to argue that Molly had a moral duty to act; the prosecution must prove that Molly had a legal duty, and failed to fulfil this duty. The prosecution might argue that Molly had voluntarily assumed care of a helpless person, particularly when she volunteered to be Ahmed’s ‘buddy’ and took him underwater and out of reach of other assistance. Ahmed was completely dependent upon Molly. This argument may not be accepted, so the prosecution may also argue that Molly had a duty because she had created a dangerous situation: R v Taber [2004] NSWCCA 245. It is uncertain whether or not there is a legal duty of care in this situation. If there is not, then Molly would not be guilty of murder or manslaughter by criminal negligence.

[page 107] Causation The accused must have caused the death of the victim: s 18 (NSW); Royall v R (1991) 172 CLR 378. The facts state that Ahmed had had trouble breathing and Molly had left him and taken some time to rise to the surface. The prosecution would have to prove that Molly’s failure to render aid and the length of time that she took rising to the surface was a ‘substantial and operating cause’ of Ahmed’s death: Royall. The defence may argue that Ahmed’s equipment was faulty and that it was this that caused his death. However, the prosecution would only have to prove that Molly was a cause, not the cause of death to satisfy this requirement. It is likely that a jury would find that Molly’s failure to render aid and the time that she took in rising to the surface was a ‘substantial and operating cause’ of Ahmed’s death. Conclusion The prosecution should not have difficulty in proving the causation for murder, but may have difficulties in establishing that Molly had a legal duty to act. Mens rea The prosecution will attempt to prove that D had the necessary mens rea for murder (specified in s 18 (NSW) or at common law as malice aforethought: R v Crabbe (1985) 156 CLR 464). Intention to kill or inflict grievous bodily harm (GBH) The prosecution may argue that Molly intended to kill or inflict GBH when she left Ahmed behind, knowing that he was having trouble breathing. It could be argued that she intended to cause ‘really serious bodily harm’ (R v Perks (1986) 41 SASR 335) when she left Ahmed underwater. This might be compared to the case of R v Rhodes (1984) 14 A Crim R 124, where D claimed that he had not wanted to kill V, just to render her unconscious. The Court held that it was open to the jury to find that this amounted to an intention to inflict GBH. The prosecution would point to the length of time that Molly took in coming to the surface to demonstrate an intention to kill or inflict GBH. However, the defence may argue that, if Molly had wished to kill or inflict GBH, she would have actively inflicted harm, rather than just allowing it to happen. Reckless indifference In South Australia and Victoria ‘recklessness’ is defined as the recognition of probability of death or GBH: Crabbe. In these States, the prosecution would have a strong argument that Molly recognised the probability of really serious bodily harm — including unconsciousness or damage due to lack of oxygen — when she left Ahmed underwater. Molly was an experienced diver and knew the risks involved with diving. In New South Wales, reckless indifference to human life requires a recognition of the probability of death: Royall. The prosecution may still be able to satisfy this higher standard, arguing that because of Molly’s experience a jury might find that she would have known that Ahmed could die underwater. The prosecution would not have to argue that Molly wanted him to die, only that she recognised the probability that he would die. Conclusion The prosecution may be able to prove mens rea for murder, but this would be a question of fact for the jury. [page 108] Actus reus and mens rea at the same time If the prosecution was able to establish mens rea for murder, it would also have to prove that Molly had the necessary mens rea at the time of the act or omission causing death: Thabo Meli v R [1954] 1 All ER 373. In this case, the relevant omission would have started at the time when Molly left Ahmed and during the time that she took to get to the surface and seek help.

Provided she had mens rea at some stage during this time, she would be guilty of murder: R v Styman; R v Taber [2004] NSWCCA 245. INVOLUNTARY MANSLAUGHTER If the prosecution could prove a legal duty of care, but could not prove the mens rea for murder, then Molly may still be guilty of involuntary manslaughter. [Comment: This is an example of signposting — explaining what you are doing and why.] Molly could not be charged with manslaughter by unlawful and dangerous act as there is no unlawful act. The prosecution would seek to find Molly guilty of manslaughter by criminal negligence. As argued above, the primary cause of death was the failure to help; as such, this would be treated as manslaughter by omission: Taber. There are three stages that the prosecution must prove: R v Stone and Dobinson [1977] QB 354. I will deal with each in turn. The prosecution would have to prove that Molly had a legal duty to act: R v Taktak (1988) 14 NSWLR 226; Stone and Dobinson. I have argued above that the prosecution may have difficulties in establishing a legal duty of care. If the prosecution could not establish a legal duty, then Molly would be acquitted. The prosecution would also have to prove that this breach of duty caused the death of Ahmed. I have argued above that the prosecution would not have difficulties establishing causation. If the prosecution was able to establish a duty to act, they would then have to prove that Molly breached this duty in ‘circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised, and which involved such a high risk that death or grievous bodily harm would follow, that the doing of the act merited criminal punishment’: Nydam v R [1977] VR 430 at 445. This is an objective test and the prosecution would consider what a reasonable person would do in this situation. It is likely that the court would take evidence as to the expectations of reasonable divers — with evidence presented that in situations like this a person would be expected to share their oxygen and rise to the surface quickly. It is likely that a jury would find that Molly’s failure to share oxygen and rise to the surface promptly enough was criminally negligent. Conclusion Molly may be found guilty of murder. However, the prosecution may have difficulty establishing a legal duty and mens rea. If the prosecution could not prove that Molly had a legal duty, then she would not be guilty of murder or manslaughter. The most likely head of murder is reckless indifference to human life or GBH (Victoria and South Australia only). If the prosecution does not prove Molly’s guilt for murder, she may be liable for manslaughter by criminal negligence, depending on whether or not the prosecution could prove a legal duty to act.

[page 109]

Chapter 7 Assault Objectives After reading this chapter you should be familiar with the following: ▶ common assault ▶ components of (psychic) assault ▶ components of battery assault ▶ examples of aggravated assault ▶ New South Wales statutory approach to offences causing harm ▶ South Australian statutory approach to offences causing harm ▶ Victorian statutory approaches to offences causing harm ▶ Victorian approach to non-sexual offences against the person ▶ defences to assault

INTRODUCTION 7.1 The common law offence of assault was defined by E East in A Treatise of the Pleas of the Crown: An assault is any attempt or offer with force and violence to do a corporal hurt to another, whether from malice or wantonness, as by striking him, or even by holding up one’s fist at him in a threatening or insulting manner, or with such other circumstances as denote at the time an intention, coupled with a present ability of using actual violence against the person; as by pointing a weapon at him within the reach of it. Where the injury is actually inflicted, it amounts to a battery (which includes an assault) and this, however small it may be; as by spitting in a man’s face, or any way touching him in anger without any lawful occasion. But if the occasion were merely accidental or undesigned, or if it were lawful … ; it is no assault or battery in the law … : Vol 1, p 406.

In New South Wales, the penalty for assault is prescribed in statute: see s 61 (NSW). However, the definition of assault continues to be found at common law. In Victoria, the common law definition of assault applies to the extent that the common law offence continues to exist: see R v Patton (1998) 1 VR 7. In 1985, Victoria replaced the traditional assault offences with ss 15–24 (Vic). These provisions are similar [page 110] in structure to common law assault offences, with some alterations in relation

to the sub-classifications of assaults under common law. The common law offence of assault was not abolished and thus continues to exist in Victoria. It is triable on indictment and carries a maximum of five years imprisonment: see Patton. For example, assault continues to be relevant to unlawful and dangerous act manslaughter, indecent assault (see s 39) and burglary (see s 76). Students and practitioners must be familiar with the common law concepts of assault in Victoria. The major differences from common law associated with the Victorian legislation are discussed at 7.65. In South Australia, s 20 (SA), which was inserted in 2005, creates a statutory offence of assault that is based upon and is similar in most respects to the prior common law offence: (1) A person commits an assault if the person, without the consent of another person (the ‘victim’) — (a) intentionally applies force (directly or indirectly) to the victim; or (b) intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or (c) threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that — (i) the person who makes the threat is in a position to carry out the threat and intends to do so; or (ii) there is a real possibility that the person will carry out the threat; or (d) does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or (e) accosts or impedes another in a threatening manner. (2) However — (a) conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault; and (b) conduct that is justified or excused by law cannot amount to an assault.

These statutory offences are intended to replace the common law notion of assault. As a matter of statutory construction, Divs 7 (‘Assault’) and 7A (‘Causing physical or mental harm’) take priority over the common law. Students should exercise caution when using cases from before 2006, when the South Australian legislation changed. Throughout this chapter any differences between the South Australian definition of assault and the common law will be identified. All three jurisdictions have introduced statutory reforms for aggravated assaults. These will be considered in turn from 7.44 below.

COMMON ASSAULT 7.2 Common assault is the most basic kind of assault, and can be tried either on indictment or summarily. Historically, a distinction was drawn between assault and battery. Assaults covered non-physical interference, while battery incorporated actual [page 111] application of force. This distinction is no longer applicable, and the term ‘assault’ currently denotes the historical conception of assault and battery. The current concept of common assault incorporates two historical offences of assault: (a) (psychic) assault: D intentionally or recklessly puts V in fear of imminent unlawful contact or physical harm: see R v McNamara [1954] VLR 291; and (b) battery: D intentionally or recklessly applies unlawful physical force or contact against V’s person: see R v Venna [1976] QB 421. D will generally be charged with assault, whether D has committed a (psychic) assault or a battery, with the consequence that the word ‘battery’ is rarely used. Throughout this chapter, where relevant, psychic assaults and battery assaults will be considered separately. This is because (psychic) assaults and battery assaults have different mens rea and actus reus components. Student tip It is very important to distinguish between whether an assault is ‘psychic’ or a ‘battery’ as, although the offence is the same, the law is different. A (psychic) assault involves no contact but creates fear, while a battery requires unlawful contact.

Mens rea 7.3 The mens rea for assault is specified at common law. Elements The mens rea of common assault is intentionally or recklessly: •

creating an apprehension of imminent unlawful contact ((psychic) assault); or

•

effecting unlawful contact (battery): see Fagan v Metropolitan Police Commissioner [1969] 1 QB 439; R v Venna [1976] QB 421.

Each of these elements will be considered in turn.

Intentional assault 7.4 It is clear that an assault can be committed intentionally: see MacPherson v Brown (1975) 12 SASR 184; s 20 (SA). Section 20(1)(c) (SA) requires proof of an intention to cause V to apprehend violence or a real possibility of violence: Police v Harrison [2017] SASC 18.

Is hostility essential? 7.5 It is unnecessary that the intentional application of force be accompanied by hostility. [page 112] In Boughey v R (1986) 65 ALR 609, D was a doctor who applied manual pressure to V’s carotid arteries. He had not intended to cause V injury, but to increase V’s sexual excitement for the purpose of sexual activities they were engaged in at the time. D was charged with murder when this practice resulted in V’s death. He argued that he had intended no injury. It was held that hostile intent is not an ingredient to the offence of battery at common law where force is intentionally applied to V. See also Reeves v R (2013) 304 ALR 251. The Court noted that hostile intent could convert what would otherwise not be a battery into a battery: It has never … been the common law that actual hostility or hostile intent towards the person against whom force is intentionally applied is a necessary ingredient of an unlawful battery. Where the existence of hostility or hostile intent may be of decisive importance is in a case [in] which … that hostility or hostile intent may convert what would otherwise be unobjectionable as an ordinary incident of social intercourse into battery at common law … Apart from such cases, however, the absence of such hostility or hostile intent towards the person to whom force is applied neither precludes the intentional application of force to the person of another from constituting battery at common law … nor, of itself, constitutes a justification or excuse for it: Boughey at 620.

An example of this would be the difference between accidentally bumping into someone on a bus (which would not be an assault) and doing so deliberately (which would be converted into an assault due to the hostile intent). 7.6 South Australia In South Australia, s 20 is in accordance with the reasoning above that hostile intent is not required for battery, specifying only that D must ‘intentionally’ apply force or threaten to apply force. Moreover, s 22(4) states that: If a defendant’s conduct lies within the limits of what would be generally accepted in the

community as normal incidents of social interaction or community life, this Division does not apply to the conduct unless it is established that the defendant intended to cause harm.

This is broadly consistent with the notion expressed in Boughey that hostile intent can convert what would otherwise not be an assault into an assault.

Reckless assault 7.7 D can commit an assault where D indulges in conduct that D knows could possibly: ◆

give V (reasonable) grounds for apprehending imminent unlawful contact ((psychic) assault); or

◆

effect unlawful contact (battery).

The weight of authorities is clear that the standard for reckless assault is that of ‘possibility’ rather than ‘probability’: see MacPherson v Brown; Coleman v R (1990) 19 NSWLR 467. For example, in R v Venna [1976] QB 421, D lashed out at police officers seeking to arrest him, resulting in D fracturing one police officer’s hand. D was charged with assault occasioning actual bodily harm (ABH). D stated he had not intended to hit V, but was kicking in an attempt to get off the ground. It was held that if he recognised the possibility of unlawful contact, he had mens rea for assault. D was found guilty. [page 113]

Must be subjective 7.8 The case of MacPherson v Brown stresses that D must subjectively recognise the riskiness of D’s behaviour. D is not to be judged by an objective standard of what a reasonable person would have foreseen. In that case, V, university lecturer, was surrounded by 30 students following a protest, including D. V asked the group several times to be let through, later saying that he was in fear of physical danger from the group. The confrontation lasted for 15 minutes. The trial judge held that, while he doubted that D was aware that V would be frightened by his conduct, D had been reckless and ought to have known that his conduct would give reasonable grounds for creating fear in V. He found D guilty of assault. On appeal, the trial judge’s decision was overturned. The word ‘reckless’ should be confined to action where the relevant consequences are adverted to, even if not desired. Bray CJ in the Full Court stated: It is contrary to fundamental principles and the whole tenor of modern thought, to judge a man in a criminal court, except under statutory compulsion, not by his actual intention, knowledge or

foresight, but by what a reasonable prudent man would have intended, known or foreseen in the circumstances: at 188.

7.9 South Australia It appears that South Australia has moved away from the common law with regard to mens rea. In South Australia, recklessness will not be sufficient for an offence under s 20.

Negligence 7.10 A common assault cannot be committed negligently. However, sections have been introduced to cover cases where D has negligently caused V an injury: see, eg, s 54 (NSW); s 24 (Vic). In such cases, the prosecution must prove D’s level of negligence was criminal: see R v D [1984] 3 NSWLR 29. In Victoria, s 24 requires that the jury should be directed that: … the act or omission must have taken place in circumstances which involved such a great falling short of the standard of care which a reasonable person would have exercised, and which involved such a high risk that grievous bodily injury would follow, that the act or omission merits punishment under the criminal law: R v Shields [1981] VR 717 at 723.

Actus reus 7.11 The actus reus for assault is specified at common law. Elements D must: •

act so as to create an apprehension by V of imminent unlawful contact ((psychic) assault);

•

apply unlawful contact against the person of another (battery).

[page 114]

Psychic assault 7.12 In South Australia, the statutory provisions for the equivalent of the common law (psychic) assault are found in s 20(1)(c). These provisions broadly mirror the common law. Any differences will be noted below.

Positive act 7.13 An omission to act does not constitute an assault: see Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 at 444 per James CJ. The courts have a broad definition of what constitutes a positive act, including silent phone calls: see R v Ireland; R v Burstow [1997] 4 All ER 225 at 236–7 per Lord Steyn. The use of words has also been held to constitute a

positive act in all common law jurisdictions: see, eg, Tout v R (1987) 11 NSWLR 251 at 256–7 per Lee J; R v Knight (1988) 35 A Crim R 314.

State of mind of the victim 7.14 V must actually have been put in fear of imminent unlawful contact: see Barton v Armstrong [1969] 2 NSWR 451; MacPherson v Brown. As a consequence, V must be aware of the threat of imminent unlawful contact. If V is unconscious or asleep, then a (psychic) assault cannot be committed. For example, in Pemble v R (1971) 124 CLR 107, V was unaware that D was pointing a rifle at her back. Menzies J therefore held that D had not committed an assault on V. In Ryan v Kuhl [1979] VR 315, D and V were in neighbouring cubicles in a public toilet. D thrust a carving knife through a hole in the partition between the cubicles in order to stop V annoying him. V testified that he was not frightened, because he knew that D could not harm him, as long as he remained in the cubicle. It was held that, as D’s conduct did not cause fear of harm in V, there was no case to answer in the charge of assault. It has been suggested that V’s fear must be reasonable, in the sense that a reasonable person would have also been in fear, ie, D’s liability is limited by an objective test: see Barton v Armstrong at 455 per Taylor J. However, this is contrary to common law principles that the victim should be taken as found: see R v Blaue [1975] 3 All ER 446. Where V is exceptionally cowardly, D may escape conviction on the grounds of lack of mens rea. The question is more likely to revolve around whether D had the necessary mens rea to create an apprehension of imminent unlawful contact than whether V’s fear was reasonable. This is because authorities are clear that where D knows that V is of unusual timidity, then the unreasonableness of the fear may not prevent conviction: see MacPherson v Brown at 187. Where V’s fear is unreasonable, and D has no knowledge of this timidity, then clearly D will not have mens rea. 7.15 South Australia In South Australia, s 20(1)(c) requires that there ‘are reasonable grounds for the victim to believe’: (i) the person who makes the threat is in a position to carry out the threat and intends to do so; or (ii) there is a real possibility that the person will carry out the threat.

[page 115] It would appear that the legislation departs from the common law in this

respect. Thus, in South Australia, if D knew that V was exceptionally timid and intended to frighten V, this would not be an assault, because V’s fear was unreasonable. It is arguable that s 20 does not require that V felt fear, only that it was reasonable for V to feel fear. This would be a departure from a basic requirement of common law that the essence of (psychic) assault is that V felt fear.

Ability to execute threat 7.16 D need not be able to execute D’s threat, as the essence of the offence is the effect that is created in V’s mind. Thus, where D points a harmless toy pistol at V, who believes that the pistol is real, D can be charged with assault: see R v Everingham (1949) 66 WN (NSW) 122a. D need not intend to fulfil the threat. The only mens rea required is to intentionally or recklessly create the apprehension of imminent unlawful contact. 7.17 South Australia In South Australia, s 20(1)(c)(ii) is in accordance with this requirement, stating that there must be reasonable grounds for V to believe that ‘there is a real possibility that the person will carry out the threat’.

Imminence 7.18 At common law, V must apprehend ‘imminent’ or ‘immediate’ unlawful violence: see Zanker v Vartzokas (1988) 34 A Crim R 11. Thus, generally, threats of future violence should not amount to an assault: see R v Knight (1988) 35 A Crim R 314. 7.19 South Australia In South Australia, s 20 makes no mention that a threat must be of imminent or immediate unlawful violence. It appears to be sufficient to threaten ‘(by words or conduct) to apply force’: s 20(1)(c).

Threats made over the telephone 7.20 Threats made over the telephone have raised questions of imminence, and the courts have continued to grapple with this issue. In Barton v Armstrong, D made threats over the telephone. It was held that D could be guilty of assault, provided that the threats were sufficient to ground a fear of imminent violence in V’s mind: Threats which put a reasonable person in fear of physical violence have always been abhorrent to the law as an interference with personal freedom and integrity, and the right of a person to be free from fear of insult. If the threat produces the fear or apprehension of physical violence, then

I am of the opinion that the law is breached, although the victim does not know when that physical violence may be breached: at 455 per Taylor J.

In Knight, D had been convicted of assaulting a bus driver. He then made a series of threatening phone calls to the arresting police officer, the magistrate who convicted him, and the judge who rejected his first appeal. The phone calls threatened death or injury, but the language suggested a lack of imminence — it comprised either comments as to the past or threats for the indefinite future. At first instance D [page 116] was found guilty of assault, but on appeal, his convictions were quashed. Barton v Armstrong was critically considered, with Lee J stating: I do not regard the decision in Barton v Armstrong as absolutely requiring the view that his Honour has finally held, that fear of immediate violence has other than its ordinary literal import: Knight at 316.

7.21 The House of Lords considered the issue of whether silent phone calls can constitute an assault in R v Ireland; R v Burstow. In that case the Court considered two separate appeals involving two defendants. D1 made repeated phone calls to V1 over a three-month period and was charged with assault occasioning ABH. The calls tended to involve silence or heavy breathing and were at night. D2 harassed V2, when their relationship finished, with silent and abusive phone calls, distributing offensive cards in the street where she lived, turning up frequently and unnecessarily at her work and home, and sending photos of her friends and family with a menacing note. A psychologist stated that V2 was suffering from a severe depressive illness. D2 was charged with maliciously inflicting grievous bodily harm (GBH). The House of Lords dismissed both appeals. Lord Steyn (with whom the other members agreed) considered whether making silent phone calls causing psychiatric injury can constitute an assault. He noted that silent phone calls could not constitute a battery and then continued: That brings me to the critical question whether a silent caller may be guilty of an assault. The answer to this question seems to me to be ‘Yes, depending on the facts’. It involves questions of fact within the province of the jury. After all, there is no reason why a telephone caller who says to a woman in a menacing way ‘I will be at your door in a minute or two’ may not be guilty of an assault if he causes his victim to apprehend imminent personal violence. Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty as to his intentions. Fear may dominate her emotions, and it may be the fear that the caller’s arrival at her door may be imminent. She may fear the possibility of immediate personal violence. As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstance and in particular on the impact of the caller’s potentially menacing call or calls on the victim … And a trial judge may, depending on the circumstances, put a common sense consideration before the jury, namely what, if not the possibility of imminent personal violence, was the victim terrified about? I conclude that an

assault may be committed in the particular factual circumstances which I have envisaged. For this reason I reject the submission that as a matter of law a silent telephone caller cannot ever be guilty of an [assault]: at 236.

Ireland and Burstow has been the subject of much critical comment. The major difficulty raised by this case is the reach of the offence of assault, particularly in terms of how immediate the threat is perceived to be. This difficulty in cases of ongoing harassment has led jurisdictions to introduce stalking legislation to cover situations where there is a lack of imminence to the threats: see s 60C (NSW); Crimes (Domestic and Personal Violence) Act 2007 (NSW); s 19AA (SA); s 21A (Vic).

‘Immediate and continuing fear’ 7.22 The requirement of imminence or immediacy can create some difficulties in establishing assault. However, the courts have used the concept of ‘immediate and [page 117] continuing fear’ to interpret the requirement of ‘imminence’ in a way which is sympathetic to the plight of V. This principle was exemplified in Zanker v Vartzokas. In that case, V accepted a lift from D. D offered her money for sexual favours. She rejected his offer. He persisted. She demanded that he stop to allow her to get out, but he accelerated the van. She threatened to jump out, and he accelerated further. D then said, ‘I am going to take you to my mate’s house. He will really fix you up.’ V felt such fear that she opened the van door and jumped out. V suffered some injuries. The magistrate dismissed the charge of assault against D due to the lack of imminence in the threats. White J allowed the appeal, and held that the concept of a continuing threat should be applied: The young woman was in immediate and continuing fear so long as she was imprisoned by the defendant. Unlike the ‘threat’ and fear in MacPherson’s case, this defendant’s threat of violence was explicit, namely, that when they arrived at ‘his mate’s house’, ‘he will really fix you up’. The threat was, it is true, to be carried out in the future, but there was no indication by the defendant whether the ‘mate’s house’ was around the next corner, or several or more streets away in the suburban area. A present fear of relatively immediate imminent violence was instilled in her mind from the moment the words were uttered, and that fear was kept alive in her mind, in the continuing present, by continuing progress with her as prisoner, towards the house where the feared sexual violence was to occur. … There was no escape, no reasonable possibility of a novus actus interveniens to break the causal link between the threat and the expected infliction of harm: at 14.

Conditional threats 7.23 Conditional threats are threats where D imposes some condition upon

V, which if V does not meet, D will inflict some violence. Conditional threats raise the issue of imminence, because, if V meets D’s condition, then there would be no need to apprehend imminent unlawful contact. The requirement of imminent infliction of physical harm is the ultimate factor in determining liability. The courts have approached conditional threats in two ways, by: 1. looking at the words of the threat; and 2. considering whether D had the right to impose the condition. Each of these approaches will be considered in turn. 7.24 Words of the threat The courts will look first at the words of D to determine whether or not there are any grounds for V to fear imminent unlawful contact. In Tuberville v Savage (1669) 86 ER 684, where D laid his hand on his sword and said to V, ‘If it were not assize time I would not take such language’, it was held that this did not amount to an assault, for clearly these words, though threatening, were such as to suggest that D would not attack V. 7.25 Does D have a right to impose the condition? If the words of the threat suggest imminent violence, the courts will then consider whether D had a right to impose that condition. In Police v Greaves [1964] NZLR 295, D told V, a police officer, that he would stab V if V came closer. Although there was no occasion for V to suppose a threat of imminent attack, the threat nevertheless constituted an assault. This is [page 118] because D subjected V to intimidation by threatening to apply force, in the event of non-compliance by V, to a condition that D had no right to impose. In Rozsa v Samuels [1969] SASR 205, D was a taxi driver who drove his taxi to the front of the taxi queue. V, another taxi driver, remonstrated with D, who said ‘I am here and I’m staying here’. V said he would punch D in the head, and D responded by pulling out a knife and saying ‘I’ll cut you to pieces if you try it’. D tried to get out of his taxi but was stopped by V slamming the taxi door. D was charged with assault. The Court held that it was necessary to look at the terms of the condition and whether D had any right to impose that threat. One ground for imposing a condition of this kind is in self-defence. For example, if A tried to enter D’s house and D prevented A by saying ‘If you attempt to enter I will knock you down’, this would not be an assault, because D had a right to impose this condition. Thus, in Rozsa v Samuels it was

necessary to ask the question: if V had attempted to hit D, would D have been justified in using a table knife? If yes, this would not be an assault. However, D threatened excessive force which would have precluded reliance upon selfdefence. As a consequence, D was guilty of assault. Student tip A classic example of a (psychic) assault involving a conditional threat is a robber pointing a gun at V saying ‘Your money or your life’. This is a conditional threat, and arguably does not satisfy the requirement of imminence, because if V just did what the robber said, then force would not be applied. However, the courts would look at whether or not D had the right to impose the condition. In this case, D would not have the right to impose that condition on V, and thus the statement itself would be an assault.

Infliction of harm as a result of (psychic) assault 7.26 D can be charged with an assault occasioning ABH if D’s (psychic) assault causes V to act in such a way as to inflict ABH. The mens rea for assault occasioning ABH is the same as that for common assault. Student tip For the offence of assault occasioning ABH (NSW) or assault causing harm (SA), the prosecution only needs to prove the mens rea for a basic assault, and does not need to prove any mens rea in relation to the harm inflicted.

The prosecution must establish that: ◆

D committed an assault;

◆

V suffered ABH;

◆

D caused these injuries. [page 119]

In South Australia, s 20(4) frames this as ‘an assault that causes harm to another’ — which is consistent with the common law definition of assault occasioning ABH. The offence of causing harm to another under s 20(4) draws upon the common law definition of causation. This same issue of causation can arise in homicide cases, with Royall v R (1991) 172 CLR 378 the leading authority, in cases where D frightens V into fatal self-injury. This is discussed in Chapter 3. The general test is whether D was a substantial and operating cause of V’s injury. V’s action will not rupture the causal chain if V’s action was not a perverse reaction to D’s threats. Whether or not D will be charged with an aggravated assault will depend on the mens rea requirements for that offence.

7.27 In Zanker v Vartzokas, D threatened V while driving her in a van. The van was travelling at 60 km/h; V was put in such fear that she opened the van door and leapt out. She suffered some bodily injury. The Court held that D had committed an assault, as V was in immediate and continuing fear so long as she was imprisoned by D, and her fear was explicit. V suffered injuries that could be classified as ABH. D’s actions were the substantial and operating cause of these injuries, as they were caused by V seeking to escape D. Thus, D was found guilty of assault occasioning ABH, and it made no difference whether D foresaw that V would jump out of the van and injure herself. It was only required that D intentionally or recklessly caused V to fear imminent unlawful contact.

BATTERY 7.28 The actus reus for common assault consists of the application of unlawful contact to V’s person: Fagan v Metropolitan Police Commissioner.

Mere omission to act cannot amount to an assault 7.29 In Fagan, it was held that a mere omission cannot amount to an assault. In that case, D reversed his car onto the foot of V, a police officer. D then turned off the car engine. D only reluctantly turned on the car engine, after several requests, and reversed it off V’s foot. There was doubt as to whether D intentionally parked the car on V’s foot, but it was beyond a reasonable doubt that D allowed the car to remain unnecessarily on V’s foot. The defence argued that there was no act by D, merely an omission or failure to remove the wheel immediately. It was held that D had acted by switching off the car engine and maintaining the wheel of the car in its position on V’s foot, and this constituted the actus reus of the offence. This reading of the facts of the case is quite problematic, and stretches the meaning of term ‘act’. However, the principle from Fagan is sound. 7.30 South Australia The South Australian legislation is clearly framed in terms consistent with the common law requirement that an assault consists of an act, not an omission. The common law authorities are unclear, but s 20(1) (a)–(b) extend assault to include indirect application of force. This would include, eg, calling someone to a dangerous cliff edge. [page 120]

Mere touching can amount to an assault 7.31 Mere touching of V by D can amount to an assault: see Collins v Wilcock [1984] 3 All ER 374 at 378. For this reason, the requirement of battery will be framed as unlawful contact rather than unlawful force. D may be relieved of liability on grounds such as: ◆

lack of mens rea;

◆

implied consent, eg, contact during ordinary social intercourse;

◆

use of lawful force, such as self-defence.

It is also clear that spitting can amount to unlawful contact for the purposes of battery. In DPP v JWH (unreported, NSWCCA, 17 October 1997), D spat on two arresting police officers. The trial judge held that there was no battery due to the absence of force, and there was no (psychic) assault due to the absence of any apprehension on the part of the Vs prior to the spitting. On appeal, it was held that spitting could amount to an assault. This is because a battery can consist of any unlawful contact, be it ever so small. 7.32 South Australia Section 20 does not specify a minimum level of unlawful contact or force. This is consistent with the common law.

Consent 7.33 The application of force is unlawful unless V has consented. That is, the prosecution must prove that V did not, expressly or impliedly, consent to the assault: see R v Clarence (1888) 22 QBD 23 at 36–7. In R v Schloss and Maguire (1897) 8 QLJ 21, it was stated that: ‘The term assault of itself involves the notion of a want of consent. An assault with consent is not an assault at all’: at 23. Consent may be express or implied: see Collins v Wilcock [1984] 3 All ER 374. A great deal of contact in society is assumed to have implied consent. The High Court recognised this in Boughey v R (1986) 65 ALR 609: ‘commonplace, intentional, but non-hostile acts such as patting another on the shoulder to attract attention, or pushing between others to alight from a crowded bus’ are excluded from assault, as V has given implied consent: at [23]. 7.34 South Australia In South Australia, the legislation expresses this in s 20(2)(a): ‘conduct that lies within limits of what would be generally accepted

in the community as normal incidents of social interaction or community life cannot amount to an assault’. 7.35 The issue of consent to medical procedures to negative the offence of battery was considered by the High Court in Reeves v R (2013) 304 ALR 251. In that case, V had been referred to D for a removal of a lesion and surrounding tissue on her labia. Instead, D performed a medical procedure on V which involved removing her external genitals. The prosecution case was that the surgery D had performed was excessive and that D did not honestly believe V had consented to the surgery. D was convicted of the malicious infliction of GBH (s 33, NSW) and unsuccessfully appealed to the High Court. The High Court stated that in order to negate the offence of battery it is sufficient if the patient consents to the procedure, having been advised in broad [page 121] terms of its nature: at [35]. Thus, if V had been informed that the surgery involved the removal of her labia and clitoris, then D would have had a lawful cause or excuse for performing it. This would be so regardless of any failure to inform V of its possible major consequences or any alternative treatments. A failure in either of these respects might be a breach of D’s common law duty of care, exposing D to liability in negligence, but it would not vitiate consent to the surgery.

Vitiated consent 7.36 V’s consent may be vitiated, ie, treated as though it was not present, in specific situations: ◆

consent which is obtained by force or threats of force is not relevant, as the use of force or threats would constitute assault;

◆

consent is no defence to certain sexual offences: see Chapter 8;

◆

fraud may sometimes negative consent: see Chapter 8.

This issue of fraud was considered in DPP v Richardson [1998] 2 VR 188, where D, a dentist, continued to treat patients after she had been suspended from practising. D was charged with assault occasioning ABH. The trial judge directed that V’s consent to treatment had been vitiated by fraud (ie, the belief that D was allowed to practise), and D pleaded guilty. On appeal, the United Kingdom Court of Appeal held that, under criminal law, only fraud as to the nature of the act or the physical identity of the person will vitiate consent. In

this case, V consented to dentistry by D, and the fact that V was misled as to D’s social identity did not vitiate consent. Thus, D was not guilty of assault. At common law, V’s consent is not a defence to assault occasioning ABH: see Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331; R v Brown [1994] 1 AC 212. 7.37 The English case of Brown provides an illustration of the common law rule that V cannot consent to ABH or more, unless D’s actions were within lawfully recognised exceptions, such as surgery, boxing, ‘contact’ sports, lawful correction, dangerous exhibitions and ‘manly diversions’. In Brown, the Ds and Vs had consensually practised sado-masochistic activities in private locations for over 10 years. The passive partners consented to injuries such as genital torture, but no permanent injuries were inflicted. No victim had complained. The Ds were charged with a number of counts of unlawful and malicious wounding and assault occasioning ABH. The House of Lords held that a ‘victim’ cannot consent to assault occasioning ABH, unless it falls within one of the prescribed exceptions or there is a justification. The majority could find no public interest that would justify the creation of a further exception in this case. The dissenting judges, Lords Mustill and Slynn, argued that these practices were private sexual relations and matters of personal morality with which the law should not be concerned. 7.38 In R v Wilson [1997] QB 47, the question of V’s ability to consent to ABH or more, for the purposes of sado-masochism, was considered by the English Court of Appeal. This case involved a husband (D) branding his initials on the buttocks of his wife (V) with a hot knife, at her instigation. The scars were reported to the police by V’s [page 122] doctor. It was held that D’s conviction for assault occasioning ABH should be quashed, on the basis that what D did was no more dangerous or painful than tattooing, which, if carried out with the consent of an adult, is not a criminal offence. The majority also emphasised that consensual activity between a husband and wife, in the privacy of their matrimonial home, should not be the subject of criminal investigation or prosecution. Given the requirements of specific training and licensing of tattoo artists and the increasing legislative attention to violence in domestic relationships, it is difficult to justify the different results in Brown and Wilson. Additionally, it

is hard to find a rationale for permitting sport, horseplay, ‘manly diversions’ and ornamentation, but prohibiting sexual fulfilment. In Australia, the defendants in Brown would not have been charged with assault, due to the Human Rights (Sexual Conduct) Act 1994 (Cth). The Act’s one substantive clause states: 4 (1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy, within the meaning of Art 17 of the International Covenant on Civil and Political Rights. (2) For the purpose of this section, an adult is a person who is 18 years old or more.

However, see the Victorian unlawful and dangerous act manslaughter case R v Stein (2007) 18 VR 376.

Exceptions to the rule that V cannot consent to ABH 7.39 There are a number of exceptions recognised at common law to the rule that consent is no defence where ABH is inflicted. These exceptions are based on notions of public interest, or where there is general social approval. For example, surgery performed with the informed consent of a patient is not an assault, even where GBH is inflicted. Many sports involve body contact that can lead to injuries of ABH or more, such as boxing, football, netball and hockey. In Pallante v Stadiums Pty Ltd (No 1), it was held that D is relieved from criminal liability for injury inflicted upon sporting opponents, provided that: ◆

D keeps within the recognised and reasonable rules of the game;

◆

the application of force by D against V is in a sporting spirit, and not due to hostility or anger; and

◆

the application of force by D is no more than is ordinarily and reasonably to be contemplated as incidental to the game: at 343 per McInerney J.

However, the courts have acknowledged that, in many sports, it is expected that there will be numerous breaches of the rules. In Re Jewell and Crimes Compensation Tribunal (unreported, VSC, 16 January 1987, Legoe J), it was held that, even though V was harmed during an Australian Rules football match when D broke the rules of the game, this did not amount to a breach of criminal law. Legoe J said: ‘A player cannot [page 123] expect, nor is he entitled to expect, that every player will play strictly

according to the rules.’ Legoe J continued: We think that the test to apply is one of reasonableness having regard to the rules of the game and the generally accepted risks accepted by reasonable players as inherent in it. In our view the particular incident was within the reasonable contemplation of players of Australian Rules football despite the fact that the blow to the head was in breach of the rules. We would have come to a different conclusion if the contact had not been by a sweeping arm action with a fist unclenched but rather by a solid and deliberate punch. Such an action in our view, whether on the ball or behind the play, would not be of a kind in fact consented to by players of the game nor as a matter of policy should it be deemed so by a Tribunal administering the Act. By playing the game the applicant consented to run the risk of injury from an incident of the kind which occurred and he had the lawful capacity to do so.

7.40 In R v Stanley (unreported, NSWSC, 29 March 1995, Levine J), D was found guilty of maliciously inflicting GBH: see s 35(b) (NSW). D was a rugby league player who raised his elbow in a tackle and fractured the jaw of V, an opposing player. D argued he had been trying to effect a shoulder charge tackle and he had not intended to harm V. However, the majority of the witnesses, including the match referee, testified to the contrary. The trial judge found that D had intentionally struck V with his elbow. On appeal, Levine J stated: In an organised game of rugby league the players consent to acts of violence and acts of substantial violence, and the risks of injury, from the minor to the serious, flowing therefrom, provided that those acts occurred during the course of play in accordance with the rules and usages of the game. Players are not to be taken as consenting to the malicious use of violence intended or recklessly to cause grievous bodily harm. The policy of the law will not permit the mere occasion of a rugby league match to render innocent or otherwise excuse conduct which can discretely be found beyond reasonable doubt, to constitute a criminal offence.

7.41 South Australia Section 22(1) restates the common law rule that an assault is not committed where ‘the victim lawfully consented to the act causing harm’. The limits of the rules of consent are expressed in s 22(3): ‘A person may consent to harm (including serious harm) if the nature of the harm and the purpose for which it is inflicted fall within limits that are generally accepted in the community.’ Examples in s 22(3) of socially approved pastimes include harms for religious purposes (excepting female circumcision), harms for therapeutic purposes, and participating in sporting or recreational activity where participants may ‘consent to harm arising from a risk inherent in the nature of the activity’. Section 22(4) also specifies that: If a defendant’s conduct lies within the limits of what would be generally accepted in the community as normal incidents of social interaction or community life, this Division does not apply to the conduct unless it is established that the defendant intended to cause harm.

This is similar to the hostile intent argument expressed above. Where D

engages in a socially approved pastime for which the law assumes consent, this consent is vitiated if [page 124] D had hostile intent, where ‘the defendant’s primary purpose was to cause such harm’. This imports a requirement that the sole or significant motivation for D’s actions was to cause harm.

Additional South Australian offences 7.42 Section 20(1) (SA) creates two additional assault types. Those are where D: (d) does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or (e) accosts or impedes another in a threatening manner.

Section 20(1)(d) is comparable to an attempted assault. An example might be where D tried to hit V with D’s handbag, but missed because V ducked. D would be guilty of assault under s 20(1)(d). See also Police v Wilson [2012] SASC 38, where D threw a chair at V, but missed. In that case, Vanstone J noted that under s 20(1)(d), ‘the relevant intention relates to the act done, rather than the consequence of it’: at [19]. Section 20(1)(e) provides it is an assault where V is accosted or impeded by D in a threatening manner. This would cover the case of MacPherson v Brown, where V claimed that he had been blocked by D and other angry students. D was found not guilty because he claimed that he had not realised that V would feel fear. D would be guilty under the offence in s 20(1)(e).

Contemporaneity of actus reus and mens rea 7.43 Fagan v Metropolitan Police Commissioner stresses the importance of contemporaneity of the actus reus and mens rea requirements. This case relied on the notion of a ‘continuing act’ and held that, as D possessed the mens rea at one stage in the continuing act, this was sufficient to ground liability.

AGGRAVATED ASSAULTS IN NEW SOUTH WALES, SOUTH AUSTRALIA AND VICTORIA 7.44 Common law distinctions between aggravated assaults and common assaults are maintained in each jurisdiction. Aggravated assaults are

considered aggravated due to the presence of additional or aggravating factors. Despite statutory reforms, the bulk of the common law analysis below continues to be applicable to Victoria. It is possible to broadly divide aggravated assaults into four classes: ◆

assaults with further specific intent: see 7.45;

◆

assaults on victims with special status: see 7.46;

◆

assaults in combination with other offences: see 7.48;

◆

assaults with particular injuries: see 7.49 (New South Wales); 7.57 (South Australia and Victoria). [page 125]

Each will be considered in turn. It should be noted that not all the statutory offences considered below are actually assaults; however, the term ‘aggravated assault’ is used generically to cover these offences.

Assaults with further specific intent 7.45 These offences require that D not only had the necessary mens rea for common assault, but also either that: (a) D intended some greater level of harm to V, eg, assault with intent to kill (see s 27 (NSW)) or assault with intent to commit an indictable offence (see s 31(1) (Vic)); or (b) the assault be part of another crime, eg, assault with intent to resist lawful arrest: see s 58 (NSW); s 31(1)(c) (Vic).

Assaults on victims with special status 7.46 Assaults on victims of specially protected status are regarded as more serious and deserving of higher penalties. Of particular importance are assaults on police officers and other similar officials: see Div 8A and s 58 (NSW); s 29(a) (SA); s 31(1)(b) (Vic).

Police officers 7.47 All jurisdictions criminalise assaulting a police officer in the execution of his or her duty. D does not need to be aware that the person assaulted was a police officer. Thus in R v Reynhoudt (1962) 107 CLR 381, it was held that there was no requirement that D be aware that V was a police officer, nor that D be aware that V was acting in the course of duty. Establishing the status of

V as a police officer is a matter for the actus reus. If V is not acting in the course of duty when assaulted, then D does not commit the aggravated offence (but see s 60(4) (NSW)). Dixon CJ (in dissent) disagreed with the absence of mens rea for the aggravated component: The offence is an aggravated assault, aggravated by the fact that the person assaulted is a policeman and is in the execution of his duty. That is a compound offence, and I think that the guilty mind should go to the elements of which it is composed: at 387.

In all States, the prosecution must establish that V was acting in the course of duty when assaulted. The scope of a police officer’s duty has been broadly construed as including anything that can fairly and reasonably be regarded as a carrying out of a police officer’s duty: Reynhoudt. In R v K (1993) 118 ALR 596, the Federal Court held that: … a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty, so as to cease to be acting therein: at 601 per Gallop, Spender and Burchett JJ.

In New South Wales, s 60 goes beyond assaults to cover a person who ‘assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer’. [page 126]

Assaults in combination with other offences 7.48 Assaults committed in combination with other offences are aggravated, eg: ◆

robbery: assault plus larceny: see ss 94–98 (NSW); s 75 (Vic); s 137 (SA);

◆

abducting: assault plus false imprisonment: see ss 89–90A (NSW); ss 55–56 (Vic); s 59 (SA).

Assaults with particular injuries: New South Wales 7.49 There is no requirement of harm in common assault. Thus, where harm is caused in the form of actual injury to V, this may constitute an aggravated assault with a higher available penalty. A number of terms arise in these aggravated offences and these will be outlined below. In addition,

committing these offences in company is an aggravating element in New South Wales. Victoria and South Australia have altered the terminology of aggravated assaults with particular injuries, and this will be considered from 7.57 onwards.

Terminology Actual Bodily Harm (ABH) 7.50 ABH has been defined as including ‘any hurt or injury calculated to interfere with the health or comfort of V. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient or trifling’: see R v Donovan [1934] 2 KB 498 at 509. As there is no requirement of permanence of injury, ABH can include recognisable short-term psychiatric illnesses: see R v Ireland; R v Burstow; R v Chan Fook [1994] 2 All ER 552; R v Lardner (unreported, NSWCCA, 10 September 1998). ABH will not include emotions such as fear or panic or other states of mind which are not themselves evidence of some clinical condition. ABH can include cutting a person’s hair: DPP v Smith [2006] EWHC 94.

Grievous Bodily Harm (GBH) 7.51 GBH has been defined as a ‘really serious bodily harm’: see R v Perks (1986) 41 SASR 335. It is for the jury to determine whether an injury amounts to GBH, eg, a fracture to the skull or strangulation to the point of unconsciousness. GBH has also been defined under s 4 in New South Wales to include: (a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).

These statutory definitions are inclusive, so the common law definition continues to apply. [page 127]

Wound 7.52 A wound is an injury which breaks through the whole skin, ie, both

the inner and outer skin: see Vallance v R (1961) 108 CLR 56. This may range from a minor cut to serious, deep knife wounds.

‘Occasioning’ 7.53 Many aggravated offences refer to D ‘occasioning’ a particular level of injury: see, eg, assault occasioning ABH (s 59 (NSW)). The term ‘occasioning’ can be defined as requiring causation. Thus the offence of assault occasioning ABH is nothing more than a common assault which happens to cause bodily harm. Consequently, the mens rea for the offence is identical to that of common assault: see Zanker v Vartzokas.

‘Causing’ 7.54 ‘Causing’ injury has been held to require that D committed an act or omission that substantially caused V to suffer the injury. There is no requirement of direct or indirect application of force, provided D’s causal responsibility can be established.

Elements of aggravated offences in New South Wales Assault occasioning ABH 7.55 D can be charged with assault occasioning ABH: see s 59. The prosecution must prove that D intentionally or recklessly committed a (psychic) assault or battery assault, that V suffered ABH, and that D’s actions were a substantial and operating cause of these injuries: see Zanker v Vartzokas.

Causing GBH and/or wounding 7.56 There are several different charges for offences causing GBH, and D’s culpability will revolve around his or her mens rea. The most serious offence requires that D intended to wound or cause GBH to any person: see s 33. The prosecution must prove intention to inflict GBH; that V’s injuries amounted to GBH or a wound; and that D caused this. Under s 35 D can be charged with reckless GBH or wounding. This requires that D recognised the possibility of ABH (not necessarily GBH or wounding); that V suffered GBH or wounding; and that D caused this. In addition, s 54 provides an offence for causing GBH by any unlawful act or omission.

Assaults with particular injuries: South Australia and Victoria 7.57 The Model Criminal Code Officers Committee recommended the replacement of the common law terms of ‘actual bodily harm’, ‘grievous bodily harm’ and ‘wounding’ with the terms ‘harm’ and ‘serious harm’. These recommendations appear in the Model Criminal Code (Cth) as follows: 5.1.1 Harm (1) In this Part, harm means physical harm or harm to a person’s mental health whether temporary or permanent.

[page 128] (2) Physical harm includes unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that a person might reasonably object to in the circumstances (whether or not the person was aware of it at the time). (3) Harm to a person’s mental health includes significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger … 5.1.2 Serious Harm In this Part, serious harm means any harm (including the cumulative effect of more than one harm): (a) that endangers or is likely to endanger a person’s life: or (b) that is or is likely to be significant and longstanding.

Both South Australia and Victoria have introduced offences causing harm that follow these recommendations.

Offences causing harm in South Australia 7.58 In South Australia, s 21 defines ‘harm’ and ‘serious harm’ as follows: ‘harm’ means physical or mental harm (whether temporary or permanent); and includes unconsciousness, pain, disfigurement, and infection with a disease. ‘mental harm’ means psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm; ‘physical harm’ includes — (a) unconsciousness; (b) pain; (c) disfigurement; (d) infection with a disease; ‘serious harm’ means harm that endangers a person’s life or harm that consists of, or results in, serious and protracted impairment of physical or mental function or results in serious disfigurement.

These definitions are broadly consistent with the Model Criminal Code, replacing the common law terms of ABH and GBH. With regard to ‘mental harm’, s 22(5) provides that any offence in Div 7A, such as causing harm or serious harm, does not apply unless D’s conduct

either gave rise to a situation in which V’s life or physical safety was endangered and the mental harm arose out of that situation, or D’s primary purpose was to cause such mental harm. Section 22(5) mirrors the common law and was intended to limit the scope of criminal liability for causing mental harm. The term ‘serious harm’ was considered in R v Wilkinson (2008) 101 SASR 21 at [18]. In that case, D’s ‘brutal attack’ on his de facto had caused ‘serious and protracted impairment to both physical and mental function’. The Court took into account that this lasted for ‘some months, leaving permanent damage to the nose and teeth … ongoing amnesia … long-term psychological suffering … It is evident that this disfigurement continued for some time, although ultimately healing has occurred. The statutory provision does not suggest that the disfigurement must be permanent disfigurement’: at [18]. [page 129] The idea that ‘serious harm’ does not require permanent harm was confirmed in R v Hawes [2009] SADC 127, where Chivell DCJ held that the loss of full functionality to V’s hand after being stabbed amounted to ‘serious harm’, despite V making a full recovery 12 months after the incident. Chivell DCJ suggested that the word ‘protracted’ in s 21 meant something less than permanent: ‘it means to prolong (time) so as to cause delay’; ‘to cause to last longer’; ‘to prolong’: at [27]. Endangerment to life needs to actually endanger life, ie, the prosecution must prove the injuries were life-threatening: R v Barenregt [2008] SADC 35.

Causation 7.59 Section 21 also states that ‘a person causes harm if the person’s conduct is the sole cause of the harm or substantially contributes to the harm’ or took part in acts in the same incident that caused serious harm. This provision restates the long-established common law notion of substantial causation: see eg Royall v R (1991) 172 CLR 378. The aim was to provide clarity and simplicity to the term ‘cause’. The term ‘cause’ is wide. In Div 7A there does not need to be any application of force to V. All that is required is that D caused the harm. Thus, if D intentionally caused panic and injury in a crowded theatre by extinguishing lights and blocking doors and calling ‘fire’, although this would not amount to a common law assault, D would be responsible under Div 7A for any injuries caused (based on the old common law case of R v Martin (1881) 8 QBD 54).

Causation and multiple attackers

7.60 In relation to causation, s 21 provides: If a victim suffers serious harm as a result of multiple acts of harm and those acts occur in the course of the same incident, or together constitute a single course of conduct, a person who commits any of the acts causing harm is taken to cause serious harm even though the harm caused by the act might not, if considered in isolation, amount to serious harm.

This means that if D causes various individual injuries, which alone would not amount to serious harm but together do amount to serious harm, then serious harm is established. In addition, if there are multiple attackers, then all who join in the attack are equally liable (providing they possess the necessary mens rea, or it is a joint criminal enterprise: see Chapter 11) for all injuries, even if it cannot be shown who inflicted what injury. All attackers are equally liable for all the consequences. 7.61 Sections 23 and 24 extend liability to include not only actions, but also omissions. Section 23 criminalises a person who causes serious harm to another either intentionally or recklessly. The elements of s 23(1) — of causing serious harm with intent to cause serious harm — were summarised by Kourakis CJ in R v Cekic [2015] SASC 47 as follows: (1) that D caused harm to the alleged V; (2) that such harm is serious harm; (3) that D acted deliberately as opposed to accidentally; (4) that D acted unlawfully; and (5) at the time, D intended to cause serious harm: at [6]. Section 24 criminalises a person who causes harm to another, either recklessly or intentionally. Harms caused intentionally are more serious than harms inflicted recklessly. [page 130] 7.62 The South Australian definition of recklessness in s 21 is in accordance with the common law, requiring that D ‘is aware of a substantial risk that his or her conduct could result in harm … and engages in the conduct despite the risk and without adequate justification’. This emphasis upon ‘could’ (not ‘would’) suggests that South Australia’s concept of recklessness would be consistent with the common law requirement of recognition of the possibility of the prohibited outcome.

Offences causing injury in Victoria 7.63 In Victoria, s 15 includes the following definitions: ◆

injury means ‘physical injury’ or ‘harm to mental health — whether temporary or permanent’;

◆

serious injury means an injury (including the cumulative effect of

more than one injury) that ‘endangers life’ or ‘is substantial and protracted’ or ‘the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm’; ◆

harm to mental health includes ‘psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm’;

◆

physical injury includes ‘unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function’.

Section 15 was amended in 2013 to provide detailed definitions of injury and serious injury. Serious injury may be regarded as equating with GBH at common law: DPP v Williams [1993] VR 15 per Hedigan J. Section 16 criminalises ‘a person who, without lawful excuse, intentionally causes serious injury to another person’. The prosecution must prove that D caused serious injury to V; D intended to cause serious injury, and did not merely intend to do an act which in fact caused serious injury; and the injury was caused without lawful excuse: see Westaway v R (1991) 52 A Crim R 336. Recklessness will not be sufficient. Section 17 criminalises causing ‘serious injury recklessly’, with s 18 criminalising causing injury intentionally or recklessly. It should be noted that the Victorian definition of ‘recklessness’ in offences against the person differs from the common law definition of recklessness. In Victoria, conduct is ‘reckless’ if ‘there is foresight on the part of an accused of the probable consequences of his actions and he displays indifference as to whether or not those consequences occur’: see Nuri v R [1990] VR 641 at 643 per Young CJ, Crockett and Nathan JJ. In R v Campbell (1997) 95 A Crim R 391 the Court of Appeal held that the word ‘recklessly’ in the sections was used in the subjective sense as referring to a state of mind of a person who foresees a result of his or her actions as being likely or probable. In addition, ss 15A and 15B create offences of causing injury in circumstances of ‘gross violence’. These are aggravated offences where D planned in advance to cause serious injury, acted in company with two or more people, had an offensive weapon, and continued to cause injury to V after V was incapacitated. [page 131]

VICTORIAN APPROACH TO NON-SEXUAL OFFENCES AGAINST THE PERSON 7.64 In 1985, Victoria reformed the categories of assaults and introduced new provisions. The common law offence of assault and battery was not abolished and therefore continues to exist. Thus, the outline at the beginning of this chapter on common law assault continues to be relevant in Victoria. The statutory provisions have created different offences that can usefully be divided into five categories, as follows: 1. Offences involving the infliction of harm: see 7.63; 2. Offences involving a threat: s 20 criminalises threats to kill and s 21 criminalises threats to inflict serious injury. Both offences require that D either intended, or was reckless as to whether or not, the person would fear the threat would be carried out. Threats may be constituted by words or by conduct or both: see R v Rich [1998] 4 VR 44. 3. Offences involving endangerment: ss 22–23 criminalise conduct endangering life and persons recklessly (respectively). In order to establish an offence under s 22 the prosecution must prove the following: (1) The accused engaged in conduct; and (2) That conduct placed a person in danger (ie conduct that carried with it an appreciable risk) of death; (the actus reus) (3) The accused engaged in that conduct voluntarily; (4) A reasonable person in the position of the accused, engaging in the very conduct in which the accused engaged and in the same circumstances, would have realised that they had placed another in danger of death; (the objective mental element) and (5) The accused engaged in that conduct recklessly in that they foresaw that placing another in danger of death was a probable consequence of their conduct in the surrounding circumstances (the subjective mental element): R v Abdul-Rasool (2008) 18 VR 586 at [19] per Redlich JA. See also R v Wilson [2005] VSCA 78; Mutemeri v Cheesman [1998] 4 VR 484.

4. Negligent infliction of harm: s 24 criminalises negligent infliction of serious injury. The jury should be directed that the act or omission took place in circumstances which involved such a great falling short of the standard of care which a reasonable person would have exercised and which involved such a high risk that serious injury would follow, that the act or omission merits punishment under the criminal law: see R v Shields [1981] VR 717. 5. In combination with other offences: see ss 25–26 (other offences

include setting traps to kill or cause serious injury); ss 27–28 (extortion); ss 29–30 (offences to prevent arrest); s 31 (assault with intent to commit an indictable offence). These categories are not any clearer than existing common law classifications, and statutory interpretation of offences requires the common law for meaning. For example, ‘injury’ or ‘harm’ is only partially defined in s 15 (Vic). Other elements of offences (such as ‘intentionally’, ‘recklessly’, ‘negligently’ and ‘without lawful cause’) are left undefined by statute, with the result that many of the difficulties arising at common law continue to arise in these statutory provisions. [page 132]

DEFENCES TO ASSAULTS 7.65 D will not be liable for what would otherwise be an assault if D’s resort to force is lawful: see, eg, self-defence, discussed in Chapter 13. Force is lawful where: ◆

the law recognises the situation as one where force can lawfully be resorted to;

◆

the decision to use force is reasonable (objective test);

◆

the quantum of force is reasonable (objective test); and

◆

D believes that the use and quantum of force is reasonable (subjective test).

The defence of provocation may be available as a defence to an assault requiring proof of the mens rea for murder in New South Wales and South Australia: see Chapter 5. Legal problem 1 Malcolm and Andrew were abseiling together. Andrew was working his way down a sheer cliff, completely dependent on the rope that Malcolm was holding at the top of the cliff. Malcolm called down to Andrew: ‘Tell me who is sleeping with my wife or I will let go of this rope.’ Andrew was sleeping with Malcolm’s wife and panicked, thinking that Malcolm already knew, so he let go of the rope, falling to the bottom of the cliff. Andrew suffered from a broken leg. Discuss Malcolm’s criminal liability. Answer: New South Wales and Victoria Assault Malcolm could be charged with an assault, potentially with aggravated elements: see s 61 (NSW); R v Patton (1998) 1 VR 7. The prosecution must prove all elements of the offence beyond

a reasonable doubt: see Woolmington v DPP [1935] AC 462. This is a (psychic) assault which requires intentional or reckless creation of the apprehension of imminent unlawful contact: see MacPherson v Brown (1975) 12 SASR 184. Actus reus The prosecution must prove several elements to establish Malcolm’s criminal liability. An essential element of the offence is that Andrew was in fear of imminent unlawful contact: see MacPherson v Brown. The facts clearly state that Andrew panicked, satisfying the requirement of fear. However, the requirement of fear of imminent unlawful contact may be difficult to establish because Malcolm’s threat is conditional: he will only let go of the rope if Andrew does not answer Malcolm’s question. This means that if Andrew met Malcolm’s request, then Andrew would have nothing to fear. The common law approaches conditional threats by considering whether or not the words of the threat suggest imminence. Given that Andrew was completely at Malcolm’s mercy, the prosecution would argue that this was an immediate and continuing fear: see Zanker v Vartzokas (1988) 34 A Crim R 11. The court would then look at whether or not Malcolm had the right to impose that condition: see Rozsa v Samuels [1969] SASR 205. Malcolm had no legal right to threaten to apply force or cause harm in the event of non-compliance, thus the words of Malcolm constituted an assault. [page 133] The prosecution would be able to establish the actus reus of assault. Mens rea The prosecution must also prove that Malcolm intentionally or recklessly created an apprehension of imminent unlawful contact: see R v Venna [1976] QB 421. The words and circumstances of the threat suggest that Malcolm intentionally frightened Andrew so that he would tell him the truth. Actus reus and mens rea at the same time It is clear that at the time that Malcolm made the threat he intended to and did frighten Andrew. Aggravated assault [Comment: This section could also be considered under the actus reus of assault.] The prosecution would seek to argue that this is an aggravated offence in light of the injuries inflicted. The broken leg would be at least actual bodily harm, as it is an injury that interferes with the health and comfort of Andrew, and is more than merely transient and trifling: see R v Donovan [1934] 2 KB 498. The prosecution would also have to prove that Malcolm caused Andrew to break his leg. Malcolm might argue that Andrew’s letting go of the rope caused the injury, not Malcolm’s words. This case is similar to Zanker v Vartzokas, where D’s (psychic) assault caused V to jump out of a van to escape from D’s threats. It was held in that case that D was a substantial and operating cause of V’s injuries. The same reasoning would apply to Malcolm’s liability. Conclusion Malcolm would in all likelihood be found guilty of assault occasioning actual bodily harm. Victoria Malcolm could also be charged under s 18 with causing injury intentionally or recklessly, or possibly under s 17 for causing serious injury recklessly. The prosecution must prove all elements of the offence beyond a reasonable doubt: see Woolmington.

The prosecution would be able to prove that a broken leg meets the statutory definition of injury as ‘physical injury’, and may further be able to prove that D caused a ‘serious injury’, as a broken leg is ‘substantial and protracted’: see s 15. The prosecution would have to prove that Malcolm caused the broken leg (see the reasoning above). The prosecution may have difficulty in proving the mens rea of the offence. They would have to prove that Malcolm intended to cause, or recklessly caused, injury to Andrew. The facts do not suggest that Malcolm intended to injure Andrew; in fact, his words suggest otherwise. The prosecution would have to prove that Malcolm recognised the probability that Andrew would be injured: see R v Campbell (1997) 95 A Crim R 391. It is unlikely that a jury would accept beyond a reasonable doubt that Malcolm recognised the probability at the time of the threat that Andrew would be injured. Therefore the prosecution would not be able to establish that Andrew was guilty under s 17 or s 18, due to his lack of mens rea. Answer: South Australia Malcolm could be charged with assault causing harm: see s 20. The prosecution must prove all elements of the offence beyond a reasonable doubt: see Woolmington. [page 134] Actus reus Under s 20, the prosecution must prove that Malcolm ‘threaten[ed] (by words or conduct) to apply force (directly or indirectly) to the victim’. Malcolm’s threat that he would let go of the rope would satisfy this requirement as a threat of indirect force: see s 20(1)(c). Moreover, he would have been able to carry out the threat, as Andrew was completely dependent upon him: see s 20(1)(c)(i). The prosecution may also establish that Andrew reasonably believed that Malcolm might carry out the threat (see s 20(1) (c)(ii)), but this would not be a necessary element. This conduct was not within the limits of what would be generally accepted in the community as normal incidents of social interaction: see s 20(2)(a). Harm is defined as physical harm which includes ‘pain’, and a broken leg would satisfy this requirement: see s 21. The prosecution would also have to prove that Malcolm caused the harm: see s 20(4). This is defined as ‘substantially contributes to the harm’: see s 21. Although Malcolm did not force Andrew to let go of the rope, his threat was a substantial and operating cause of Andrew’s reaction and the prosecution would be able to establish this element. The prosecution would have no difficulty in establishing the actus reus. Mens rea Section 20 does not explicitly specify the mens rea for assaults by threats: see s 20(3). However, the prosecution would be able to establish that Malcolm intended to threaten Andrew. Mens rea and actus reus at the same time The prosecution would have no difficulty in establishing that Malcolm intended to make the threats. Conclusion Malcolm would be guilty of assault causing harm: see s 20(4).

Legal Problem 2 Georgia was a waitress at a restaurant. Although Georgia and Max had broken up, Max kept

coming to Georgia’s restaurant with his friends. They would order one dish and then stay and be loud and demanding. When Georgia told Max to leave he said, ‘I want you back and if I can’t have you, no one can.’ Georgia felt afraid and was also annoyed at Max. She responded: ‘If you keep hanging around I will put peanuts into your food.’ Georgia knew that Max was violently allergic to peanuts and could go into life-threatening anaphylactic shock if he even came into contact with them. Max was so terrified that Georgia had put peanuts on his food that he ran out of the restaurant and slipped down the stairs of the porch in his hurry. As a result, Max sprained his ankle. Discuss Georgia’s liability, if any. [page 135] Answer: New South Wales and Victoria Assault Georgia could be charged with an assault, potentially with aggravated elements: see s 61 (NSW); R v Patton (1998) 1 VR 7. The prosecution must prove all elements of the offence beyond a reasonable doubt: see Woolmington v DPP [1935] AC 462. This is a (psychic) assault which requires intentional or reckless creation of the apprehension of imminent unlawful contact: see MacPherson v Brown (1975) 12 SASR 184. Actus reus The prosecution must prove several elements to establish Georgia’s criminal liability. An essential element of the offence is that Max was in fear of imminent unlawful contact: see MacPherson v Brown. The facts clearly state that Max was terrified, satisfying the requirement of fear. [Comment: Note how the answer uses specific words from the problem question like ‘terrified’ to demonstrate how the facts satisfy the legal requirements.] It has been suggested that V’s fear must be reasonable, in the sense that a reasonable person would have also been in fear, ie, D’s liability is limited by an objective test: see Barton v Armstrong at 455 per Taylor J. However, this is contrary to common law principles that the victim should be taken as found: see R v Blaue [1975] 3 All ER 446. Clearly, it was reasonable for Max to feel fear in response to Georgia’s threat. Moreover, as argued below, Georgia knew that Max was allergic, and this was why she made a threat that would not frighten anyone who was not allergic. [Comment: This paragraph engages with an area of law that is open to some dispute about whether or not the fear of the victim needs to be reasonable. It draws on the facts of the question as well as legal precedent to make a strong argument.] However, the requirement of fear of imminent unlawful contact may be difficult to establish because Georgia’s threat is conditional: she will only put peanuts in the food if Max keeps hanging around. This means that if Max met Georgia’s request, then Max would have nothing to fear. The common law approaches conditional threats by considering whether or not the words of the threat suggest imminence. The common law would then look at whether or not Georgia had the right to impose that condition: see Rozsa v Samuels [1969] SASR 205. Georgia has no right to ban Max from the restaurant, but she might argue that her threat was in selfdefence. In Rozsa v Samuels, the Court held that one ground for imposing a condition of this kind is in self-defence. For example, if A tried to enter D’s house and D prevented A by saying ‘If you attempt to enter I will knock you down’, this would not be an assault, because D had a right to impose this condition. Thus, based on Rozsa v Samuels it would be necessary to ask the question: if Max was annoying Georgia and had also threatened her, would Georgia have been justified in using peanuts? If yes, this would not be an assault. In Rozsa it was held that D had threatened excessive force which would have precluded reliance upon self-defence and, as a consequence, D was guilty of assault. In Georgia’s case the prosecution would argue that Georgia’s threat was life-threatening and clearly excessive. However, the defence might argue that Max’s statement ‘if I can’t have you, no one can’ could be regarded as life-threatening. It

would be up to the jury to determine whether or not Georgia’s threat was excessive or proportionate. If it was excessive, then this element of the actus reus would be satisfied. Subject to the question of fact as to whether or not Georgia’s threat was excessive, the prosecution would be able to establish the actus reus of assault. [page 136] Mens rea The prosecution must also prove that Georgia intentionally or recklessly created an apprehension of imminent unlawful contact: see R v Venna [1976] QB 421. The words and circumstances of the threat show that Georgia intentionally frightened Max so that he would leave her alone. Actus reus and mens rea at the same time It is clear that at the time that Georgia made the threat she intended to and did frighten Max. Aggravated assault [Comment: This section could also be considered under the actus reus of assault.] The prosecution would seek to argue that this is an aggravated offence in light of the injuries inflicted. The sprained ankle might be actual bodily harm, as it is an injury that interferes with the health and comfort of Max. It would depend on how severe the sprain was as to whether it was more than merely transient and trifling: see R v Donovan [1934] 2 KB 498. The prosecution would also have to prove that Georgia caused Max to sprain his ankle. This case is similar to Zanker v Vartzokas, where D’s (psychic) assault caused V to jump out of a van to escape from D’s threats. It was held in that case that D was a substantial and operating cause of V’s injuries. The same reasoning would apply to Georgia’s liability. Conclusion Subject to the prosecution proving that a sprained ankle was actual bodily harm, Georgia might be found guilty of assault occasioning actual bodily harm. The main question raised is whether her threat was sufficiently excessive in the circumstances to amount to an assault. Victoria Georgia could also be charged under s 18 with causing injury intentionally or recklessly, or under s 20 with threats to kill. The prosecution must prove all elements of the offence beyond a reasonable doubt: see Woolmington. Section 18: The prosecution would be able to prove that a sprained ankle meets the statutory definition of injury as ‘physical injury’: see s 15. The prosecution would have to prove that Georgia caused the broken leg (see the reasoning above). The prosecution may have difficulty in proving the mens rea of the offence. They would have to prove that Georgia intended to cause, or recklessly caused, injury to Max. The facts do not suggest that Georgia intended to injure Max; in fact, her words suggest otherwise. The prosecution would have to prove that Georgia recognised the probability that Max would be injured: see R v Campbell (1997) 95 A Crim R 391. It is unlikely that a jury would accept beyond a reasonable doubt that Georgia recognised the probability at the time of the threat that Max would be injured. Therefore the prosecution would not be able to establish that Georgia was guilty under s 18 due to his lack of mens rea. Section 20: Georgia could be charged with making threats to kill under s 20. That section requires that a person makes threats without a lawful excuse to kill a person. Clearly Georgia’s threat to give peanuts to Max was life-threatening given his allergy. [page 137]

Georgia might argue that her threat was lawfully excused due to self-defence. The reasoning detailed above in relation to Rozsa v Samuels and conditional threats would apply. The prosecution would also have to prove that she either intended that Max feared her threat to kill would be carried out, or was reckless as whether or not Max would fear the threat. The prosecution would not have difficulty in proving the necessary mens rea. Thus, Georgia could be guilty under s 20 (Vic), subject to the prosecution proving that she did not have a lawful excuse. Answer: South Australia Georgia could be charged with assault causing harm: see s 20. The prosecution must prove all elements of the offence beyond a reasonable doubt: see Woolmington. Actus reus Under s 20, the prosecution must prove that Georgia ‘threaten[ed] (by words or conduct) to apply force (directly or indirectly) to the victim’. Georgia’s threat that she would put peanuts in Max’s food would satisfy this requirement as a threat of indirect force: see s 20(1)(c). Moreover, she would have been able to carry out the threat as Max ordered food from the restaurant: see s 20(1)(c)(i). The prosecution may also establish that Max reasonably believed that Georgia might carry out the threat (see s 20(1)(c) (ii)), but this would not be a necessary element. This conduct was not within the limits of what would be generally accepted in the community as normal incidents of social interaction: see s 20(2)(a). However, Georgia might argue that the conduct was excused by law s 20(2)(b). She would seek to argue that her threat was based on self-defence — see the application of Rozsa v Samuels above. The key question would be whether or not her threat was disproportionate to Max’s behaviour and comments. Harm is defined as physical harm which includes ‘pain’, and a sprained ankle would satisfy this requirement: see s 21. The prosecution would also have to prove that Georgia caused the harm: see s 20(4). This is defined as ‘substantially contributes to the harm’: see s 21. Although Georgia did not trip Max over, her threat was an operating and substantial cause of Max’s reaction and the prosecution would be able to establish this element. The prosecution would have no difficulty in establishing the actus reus, except for the open question of whether or not Georgia’s threat was excessive or excused as self-defence. Mens rea Section 20 does not explicitly specify the mens rea for assaults by threats: see s 20(3). However, the prosecution would be able to establish that Georgia intended to threaten Max. Mens rea and actus reus at the same time The prosecution would have no difficulty in establishing that Georgia intended to make the threats. Conclusion There some doubt as to whether or not a jury would find that Georgia’s threat was disproportionate and thus an assault. Provided the jury found her threat was not excused by law, Georgia would be guilty of assault causing harm: see s 20(4).

[page 138]

Chapter 8 Rape Objectives After reading this chapter you should be familiar with the following: ▶ common law rape ▶ statutory rape or sexual assault ▶ definition of ‘sexual intercourse’ ▶ requirement of non-consent ▶ vitiation of consent ▶ mens rea for rape ▶ indecent assault

INTRODUCTION 8.1 Statutory provisions in each jurisdiction are provided for rape. The traditional common law offence of rape consisted of the penile penetration of a woman by a man who knew that the woman was not consenting, or realised that she might not be. Under current legislation, offences in each jurisdiction: ◆

have widened beyond the traditional act of rape as penetration of a vagina by a penis, to comprise of ‘sexual intercourse’ without the consent of V, or ‘sexual penetration’ without V’s consent;

◆

can be committed by a person of either sex against a person of any sex: s 61H (NSW); s 48 (SA); s 35 (Vic).

South Australia and Victoria have retained the term ‘rape’: s 48 (SA); s 38 (Vic). In New South Wales, the statutory equivalent to rape is ‘sexual assault’: s 61I (NSW). The term ‘rape’ will be used in this chapter to include the New South Wales offence. Rape law has been the subject of ongoing law reform, with reforms in all the jurisdictions, and comprehensive reforms in Victoria. From 2015 onwards, in Victoria rape is defined in s 38 as follows: (1) A person (A) commits rape if — (a) A intentionally sexually penetrates another person (B); and

(b) B does not consent to the penetration; and (c) A does not reasonably believe that B consents to the penetration.

[page 139] In addition, Victoria has introduced an offence of compelling sexual penetration: s 39. Victoria has also created a ‘sexual assault’ offence (s 40), which is similar to the old offence of indecent assault (but should not be confused with the New South Wales offence of ‘sexual assault’). Criminal elements for Victoria The actus reus of rape is sexual penetration without the consent of V. The mens rea requires that D intentionally sexually penetrated V without reasonable belief that V consented.

As a consequence of reforms in 2008, in South Australia rape is defined in s 48 as follows: (1) A person (the ‘offender’) is guilty of the offence of rape if he or she engages, or continues to engage, in sexual intercourse with another person who — (a) does not consent to engaging in sexual intercourse; or (b) has withdrawn consent to the sexual intercourse, and the offender knows, or is recklessly indifferent to, the fact that the other person does not so consent or has so withdrawn consent (as the case may be).

Section 48(2) (SA) also criminalises compelling a person to engage in sexual intercourse with another, self-penetration or bestiality. In New South Wales, sexual assault is defined in s 61I: Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

Criminal elements for New South Wales and South Australia The actus reus requires that sexual intercourse took place without the consent of V. The mens rea component requires that D knew V was not consenting or D was reckless as to consent. In addition, both New South Wales and South Australia have introduced provisions requiring that D had reasonable grounds or took reasonable steps to ascertain whether or not V consented.

Student tip In all the jurisdictions there has been a great deal of ongoing development in the area of rape law reform. Students should ensure that the cases and legislation that they are referring to are current.

Common law rules 8.2 As many statutory reforms were introduced as a consequence of old

common law rules, the statutory rules cannot be understood without an appreciation of the [page 140] common law offence of rape. Several common law rules have been altered by statute or judgment: ◆

At common law, if D was married to V, then he could not be charged with the rape of V. The doctrine of marital immunity has been abolished under statute and at common law: R v L (1991) 15 Fam LR 122.

◆

At common law, a male under the age of 14 was irrebuttably presumed to be impotent, and thus incapable of committing the offence of rape: R v Waite [1892] 2 QB 600. This presumption has been abolished under statute in each jurisdiction.

◆

The common law offence of rape required penile penetration of V’s vagina. Thus, the offence of rape could only be committed by men against women. Additionally, other non-consensual acts of sexual penetration, such as sodomy, the use of objects and fellatio, would not result in rape charges. All jurisdictions now have broad definitions of sexual intercourse or penetration.

◆

Additionally, there have been widespread reforms to the special evidentiary and procedural rules in rape cases, eg, corroboration, sexual history and recent complaint. These procedural reforms are beyond the scope of this book, but are highly significant.

Elements Essential elements of the offence of rape that the prosecution must prove beyond a reasonable doubt are: •

sexual intercourse (New South Wales and South Australia) or sexual penetration (Victoria);

•

without consent; and

•

requisite mens rea.

Each of these requirements will be considered in turn.

SEXUAL INTERCOURSE OR SEXUAL PENETRATION 8.3 Definitions of sexual intercourse or penetration are contained in s 61H (NSW); ss 46 and 5 (SA); and s 37(D) (Vic). The definitions of sexual intercourse or penetration in each jurisdiction are broad and include:

◆

penile penetration of the vagina/labia majora, anus or mouth;

◆

penetration of the vagina or anus by any other part of the body, or by an object; and

◆

cunnilingus.

This means that the most serious and degrading sexual acts may be prosecuted as rape. Minor sexual touching would be covered under the offence of indecent assault. Sections 61H(1)(a) (NSW), 37(D) (Vic) and 5(1) (SA) include any parts of the female genitalia that are external to the vagina. [page 141] Only the slightest penetration is necessary in order to establish that sexual intercourse took place: R v Papadimitropoulos (1957) 98 CLR 249; [1958] ALR 21. In all jurisdictions there is also an offence of rape by forced selfmanipulation: s 80A (NSW); s 48 (SA); s 39 (Vic).

Continuing act 8.4 Sexual intercourse is a continuing act. Thus, if V withdraws consent at any time, but D does not stop, then D commits non-consensual sexual intercourse: s 61H(1)(d) (NSW); ss 37C(d)–(f) and 34C(l) (Vic); s 48(1)(b) (SA).

Touching does not have to be sexual 8.5 The prosecution is not required to prove that ‘sexual intercourse’ or ‘sexual penetration’ involves activity of a sexual nature. In R v Abraham (1998) 70 SASR 575, V was an inmate of a women’s prison. V was held down by fellow inmates and her vagina was digitally penetrated during a search for drugs. The South Australian Court of Criminal Appeal held that such penetration fell within the definition of sexual intercourse and thus was within the definition of rape. See also R v Dunn (unreported, NSWCCA, 15 April 1992).

D and V of any sex 8.6 Rape or sexual assault may be committed by persons of any sex against

victims of any sex. Due to the broad definition of sexual intercourse, where a victim is forced to sexually penetrate a woman or man, this would amount to rape or sexual assault in all jurisdictions. In 2000, Victoria introduced statutory reforms that clearly state that a male can be a victim of rape: s 38(3). Sections 61H(1)(a) (NSW), 5(1) (SA) and 37C (Vic) include a female-born male who has undergone a sex reassignment operation and has a surgically constructed vagina. This means that transgender people can be victims of rape. Section 35(1) (Vic) defines ‘vagina’ to include — (a) the external genitalia; and (b) a surgically constructed vagina.

Compelling offences in South Australia and Victoria 8.7 Sections 48(2) (SA) and 39 (Vic) introduce offences of compelled sexual acts. Prior to reforms, the offence of rape required that D engaged in sexual intercourse with V. Under ss 48(2) (SA) and 39 (Vic), D can now be guilty of rape where D has compelled V to engage in sexual intercourse with D, V, a third person or an animal. In New South Wales, in this situation D would either be an accessory or the rules of innocent agency could apply (see Chapter 11). [page 142] The non-consent and mens rea elements of these offences are identical to rape. In addition, the prosecution must prove that D compelled V to engage in a specific act of sexual intercourse.

ABSENCE OF CONSENT 8.8 The prosecution must prove that the act of sexual intercourse took place without V’s consent: s 61I (NSW); s 48 (SA); s 38 (Vic). At common law there has been some factual difficulty in determining what amounts to consent, with some ambiguity about the scope of the term ‘consent’. It has been defined as ‘free and voluntary engagement’ at common law: Question of Law (No 1 of 1993) (1993) 59 SASR 214. Consent is usually to be a question of fact rather than law. The statutory and common law provisions have tended to focus on cases where consent will be vitiated. All the States have now introduced statutory definitions of consent that go

beyond common law definitions. Victoria introduced s 34C in 2014, which amended the former definition of consent under the old s 36. Consent is defined as ‘free agreement’ (s 34C(1)). Section 36(2) then provides an inclusive list of circumstances in which a person does not consent to an act. These include submission due to force or threats of force, and mistaken belief as to the nature or identity of the act or that the act is for medical purposes. It is important that this list is inclusive as it does not list circumstances where an act is induced by fraud. Given the common law authorities in this area, it is likely that the legislature intended to leave the law in this area unchanged. Moreover, the words ‘but are not limited to’ are an invitation to the judiciary to expand the range of circumstances in which V may be found not to have ‘freely agreed’. New South Wales and South Australia have also defined consent as where a person ‘freely and voluntarily agrees to the sexual intercourse’: s 61HA(2) (NSW); s 46(2) (SA). In addition, New South Wales and South Australia have introduced a statutory formulation of negation of consent: s 61H(4)–(6) (NSW); s 46(3) (SA). Statutory formulations in each jurisdiction that go beyond approaches to common law will be considered separately below. The emphasis of legislation in this area is on consent as an expression of sexual autonomy. Section 37A(a) (Vic) states that the purpose of the statute in this area is ‘to uphold the fundamental right of every person to make decisions about his or her sexual behaviour and to choose not to engage in sexual activity’.

Without consent 8.9 The operative words are ‘without consent’, rather than ‘against the wishes of V’: s 61I (NSW); s 48 (SA); s 38(2) (Vic). Thus, if D sexually penetrates V while V is sleeping, D commits the actus reus for the offence: s 61HA(4)(b) (NSW); s 46(3)(c)(SA); s 34C (d) (Vic);.

Vitiated consent 8.10 The courts have tended to focus on situations where V’s consent may be vitiated, ie, invalid or having no effect. All the jurisdictions have a nonexhaustive list of situations where consent will be vitiated: s 61HA(4)–(6) (NSW); s 46(3) (SA); s 34C (Vic). [page 143]

In addition, common law situations of vitiation of consent continue to apply in New South Wales and Victoria: s 61HA(8) (NSW); s 34C(2) (Vic). For example, this would permit the common law principle that V does not consent where V does not know the nature and quality of the act in New South Wales; or where V’s consent was induced by fraud in Victoria. In all jurisdictions, consent due to mistake or consent obtained by threats may result in vitiation of consent. Many of the legislative provisions in this area were introduced in response to perceived injustice in common law decisions.

Mistake 8.11 At common law, where V consented due to a mistake, vitiation of consent was limited to situations where V was mistaken as to the identity of D or the nature of the act.

Identity of D 8.12 Where V consents to sexual intercourse with D due to a mistake as to D’s identity, then V is taken not to consent: s 61HA(5)(a) (NSW); s 46(3)(g) (SA); s 34C(h) (Vic); R v Gallienne [1964] NSWR 919. The High Court had held that mistakes as to the identity of D are limited to the physical identity of D, rather than his or her social status: R v Papadimitropoulos (1957) 98 CLR 249; [1958] ALR 21. In that case, V, a young migrant woman, was duped by D into believing they were married. Due to this mistaken belief, V had sexual intercourse with D. The High Court held that this was not a fundamental mistake, but a mistake as to social identity: D’s status as husband. Thus, it was held that V had consented to the physical act with the D. The common law and statutory provisions would cover the case of Gallienne, where V was in bed, and believed that D, who climbed into the bed in the dark, was her husband, leading her to consent to sexual intercourse. It was held that her consent was vitiated, as this was a mistake as to identity of a very basic type. In New South Wales, Papadimitropoulos has been overturned by statute. V’s consent to sexual intercourse, due to V’s mistaken belief that V and D are married, will vitiate V’s consent under s 61HA(5)(b) (NSW). In Victoria, the list of defined consent-negating circumstances in s 34(2) does not include V having a mistaken belief that V is married to D. However, this situation would

be covered by the offence of procuring sexual penetration by fraud, if D fraudulently misrepresented the situation to V: s 57(2) (Vic).

Nature of the act 8.13 Where V was mistaken as to the nature of the act, a distinction has been drawn between understanding what is being done, and understanding why it is being done. For example, in R v Mobilio [1991] 1 VR 339, D, a radiographer, introduced an ultrasound transducer into the vagina of women for the purposes of sexual gratification. It was held that the Vs had consented, on the grounds that they were aware of the nature and quality of the act D was performing. The nature and quality of the act did not change because D had secret sexual motives. The act to which they consented was the act which D performed, and thus their consent was valid. [page 144] The effects of this decision have been overturned in all jurisdictions. Under these provisions, where V consents to sexual intercourse under a mistaken belief that it is for medical or hygienic purposes, V’s consent will be vitiated: s 61HA(5)(c) (NSW); s 46(3)(h) (SA); s 34C(i) (Vic).

Sexual intercourse by fraud 8.14 Victoria has introduced a statutory offence of procuring sexual intercourse by fraud which covers those cases that cannot be treated as rape: s 57(2) (Vic).

Threats and violence 8.15 Consent obtained by threats of a physical and non-physical kind will be vitiated: Papadimitropoulos; s 61HA(4)(c) (NSW); s 46(3)(a) (SA); s 34C(2) (a)–(c) (Vic). There is no need for V to physically resist in order to show lack of consent: Papadimitropoulos; s 61HA(7) (NSW); Evidence Act 1929 (SA) s 34N; Jury Directions Act 2015 (Vic) s 46(3)(c). In Question of Law (No 1 of 1993) (1993) 59 SASR 214, D was acquitted on charges of rape and attempted rape of his wife. The DPP reserved two questions of law to the South Australian Supreme Court, one of which included the correctness of the trial judge’s direction to the jury that a husband may attempt to persuade his wife to consent to intercourse with ‘a measure of rougher than usual handling’. The Court noted that the trial judge, Bollen J, had stated that submission is not consent. It was noted that Bollen J’s

statement could convey the impression that consent might be induced by force, against the will of the victim, and this was incorrect. Consequently, the direction involved an error of law. The issue of consent was also considered in R v Clarke [1998] 1 Cr App R 157. V, a 19-year-old, alleged he had been sexually assaulted by a fellow prisoner. V stated that he had gone to D’s cell, and D had told him that there were six people in prison who ‘wanted’ him. D said that if V would have sexual intercourse with him, then D would protect him. D then pushed V on the bed and had sexual intercourse with him. One issue on appeal was that the trial judge should have directed the jury in accordance with Holman v R [1970] WAR 2 at 6: that consent may be ‘hesitant, reluctant, grudging’ but still constitute consent. Simpson J noted that the Holman direction would no longer be appropriate in its state of origin (Western Australia), nor in New South Wales: ‘Consent’ for the purposes of NSW law … means consent freely and voluntarily given … There was, in my view, no error constituted by the failure of the judge to give a Holman direction, nor can the absence of the direction ‘enhance’ any danger created by the trial judge’s other directions … In my opinion there was evidence before the jury from the appellant himself on which they could have found that the complainant’s consent was not freely and voluntarily given. There was evidence from the same source on which the jury could find that the complainant submitted to sexual intercourse with the appellant as a result of threats of terror, his consent thereby being vitiated as a result of s 61R(2)(c) [repealed and replaced by s 61HA(4)(c)]. That sub-paragraph does not require that the threats or terror emanate directly from the person with whom sexual intercourse takes place. A simple example will illustrate the point.

[page 145] If A holds V at gunpoint demanding that V have sexual intercourse with B, B could not succeed in a defence of consent to a charge of sexual intercourse without consent. On the appellant’s account, he knowing of the complainant’s fear of others in the prison, took advantage of that fear to secure the complaint’s consent to sexual intercourse with him. The jury should, in my view, have been given a three stranded direction in relation to this evidence. Firstly, they should have been directed that the offence was committed if the Crown had proved, to the requisite standard, that the complainant did not consent to sexual intercourse … Secondly, they should have been directed that consent is not consent unless it is freely and voluntarily given. Thirdly, they should have been directed that, if the complainant, to the knowledge of the appellant, submitted to sexual intercourse with the appellant as the result of threats or terror, even if those threats or terror emanated from persons other than the appellant, then the complainant was to be regarded as not consenting to the sexual intercourse: Clarke at 10–12.

8.16 South Australia extends vitiation of consent to cases where a person has agreed to sexual intercourse because of ‘an express or implied threat to degrade, humiliate, disgrace or harass the person or some other person’: s 46(3)(a)(ii) (SA). Victoria has similar broad provisions: s 34C(2)(a)–(b) (Vic).

Consent will also be vitiated where V has agreed due to unlawful detention: s 46(3)(b) (SA); s 34C(c) (Vic).

Age of consent 8.17 There are a series of statutory provisions protecting young persons in relation to sexual offences. At common law, a female under the age of 10 was presumed to be incapable of consenting to sexual intercourse, so any sexual interaction with her, even with her consent, was rape. All jurisdictions have introduced statutory legislation to the same effect. In New South Wales, a child under the age of 10 is presumed incapable of consenting to sexual intercourse: s 66A (NSW). In South Australia the age is 14 and in Victoria the age is 12: s 49 (SA); s 45 (Vic). Sexual intercourse with people under the age of 16 has also been criminalised in New South Wales and Victoria: s 66C (NSW); s 45 (Vic). In those States, consent is no defence in respect of offences committed upon persons under the age of 16 years. However, in Victoria, provided there was consent and V was aged 12 or over, if D can establish on the balance of probabilities that D honestly believed on reasonable grounds that V was older than 16, then D will be acquitted: s 45(4) (Vic). In New South Wales, D can rely on the defence of honest and reasonable mistake of fact concerning the age V for a s 66C(3) offence. D would have to raise the defence by satisfying the evidential burden that V was aged 14 years or over and that D honestly and reasonably believed that V was 16 or older, and the prosecution would then have to negate the defence beyond a reasonable doubt: CTM v R [2008] HCA 25. In Victoria, where the child consents and is aged between 10 and 16 years, it is a defence that D is not more than two years older than V and V consented: s 45(4)(b) (Vic). This has the advantage of allowing consensual sexual activity between young adolescents. In South Australia the age of consent is 17: s 49 (SA). Where V was 16 years or older there are two defences to a charge under s 49: [page 146] 1. D was under the age of 17 at the time of the offence; or 2. D honestly believed on reasonable grounds that V was 17 or older. Until 2003, the age of consent for homosexual intercourse between males was 18 in New South Wales. All special sections relating to the criminalisation

and different treatment of homosexual sexual relations have now been abolished in New South Wales.

Victorian approaches to consent 8.18 The New South Wales, South Australian and Victorian approaches to consent have developed from the common law. All the jurisdictions now provide a positive definition of consent of free agreement, and specify circumstances where there is no consent. In addition, there has been a series of reforms to rape law in Victoria. Section 34C (Vic) came into operation on 1 July 2015 and replaced the former s 36. 34C Consent (1) For the purposes of Subdivisions (8A) to (8D), consent means free agreement. (2) Circumstances in which a person does not consent to an act include, but are not limited to, the following — (a) the person submits to the act because of force or the fear of force, whether to that person or someone else; (b) the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal; (c) the person submits to the act because the person is unlawfully detained; (d) the person is asleep or unconscious; (e) the person is so affected by alcohol or another drug as to be incapable of consenting to the act; (f) the person is incapable of understanding the sexual nature of the act; (g) the person is mistaken about the sexual nature of the act; (h) the person is mistaken about the identity of any other person involved in the act; (i) the person mistakenly believes that the act is for medical or hygienic purposes; (j) if the act involves an animal, the person mistakenly believes that the act is for veterinary, agricultural or scientific research purposes. (k) the person does not say or do anything to indicate consent to the act; (l) having initially given consent to the act, the person later withdraws consent to the act taking place or continuing.

A significant amendment is s 34C(2)(k), which states that a person does not consent if ‘the person does not say or do anything to indicate consent to the act’. This is based on a communicative model of consent that requires active communication. If there has been no active communication, then there can be no agreement and hence no consent. This puts a positive requirement on D to point to behaviour on the part of V that indicated consent, in the absence of which, V will be taken to have not consented. Further, s 37G(2) provides that

in determining whether D reasonably believed V was consenting, the relevant circumstances that could affect such a decision include any [page 147] steps which D took to find out if V was consenting: see 8.31 below. This reiterates the communicative model of consent.

Miscellaneous 8.19 Other situations where V’s consent may be vitiated include the following: ◆

where consent is given due to a state of intoxication, such that the person is incapable of freely agreeing: s 61HA(6)(a) (NSW); s 46(3) (d) (SA); s 34C(e) (Vic);

◆

where the complainant has an intellectual disability or cognitive impairment: ss 61HA(4)(a) and 61H(1A) (NSW); s 46(3)(e) (SA); ss 50–52 (Vic).

In these situations, juries are to consider whether or not V was capable of giving consent. 8.20 New South Wales In addition to the common law approaches to consent detailed above, which are broadly mirrored in s 61HA(4) and (5) where consent is negated, New South Wales has introduced categories where consent may be negated in s 61HA(6). The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or (b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve the threat of force, or (c) if the person has sexual intercourse because of the abuse of a position of authority or trust.

Paragraphs (b) and (c) would cover a situation where a manager threatens V’s job if V does not have sex with the manager (or someone else). 8.21 Each State has also passed legislation clarifying the instructions a trial judge can give a jury in relation to sexual offence trials: Criminal Procedure Act 1986 (NSW) ss 294, 294AA; Evidence Act 1995 (NSW) ss 165A–165B; Evidence Act 1929 (SA) ss 34L–34N; Jury Directions Act 2015 (Vic) Pt 5. 8.22 While much of rape legislation historically was guided and shaped by the fear of false allegation of rape, there is no evidence to support the myth that rape complaints are disproportionately false. In addition, it has been

feared that reforms such as those in New South Wales, South Australia and Victoria will lead to large numbers of innocent young men being found guilty of rape. So far, none of these fears have been realised. Rape continues to be under-reported, and for the limited number who do report rapes to police, successful prosecution rates remain low.

MENS REA 8.23 In New South Wales and South Australia, the prosecution must prove that D had sexual intercourse knowing, or recklessly indifferent to, the fact that the V did not consent to that sexual intercourse. In addition, in New South Wales, the prosecution [page 148] must prove that D had no reasonable grounds to believe that V consented. In Victoria, the prosecution must prove that D did not reasonably believe that V consented. Elements The basic mens rea for the offence of rape is where D: •

intentionally engages in non-consensual sexual intercourse with V: s 61HA(3)(a) (NSW); s 48(1) (SA); or

•

is reckless as to whether V consents to sexual intercourse: s 61HA(3)(b) (NSW); s 48(1) (SA); or

•

has no reasonable grounds for believing that V consents to the sexual intercourse: s 61 HA(3)(c) (NSW), s 38(1)(c) (Vic).

Each jurisdiction has specific ways of defining the particular mens rea issues. The law for New South Wales and South Australia will be considered first (see 8.24), and then the mens rea for Victoria, introduced in 2015, will be outlined (see 8.30).

New South Wales and South Australia Intention to engage in non-consensual sexual intercourse 8.24 The mens rea for rape will be established if D intends to have sexual intercourse with V, knowing that V does not consent: s 61HA(3)(a) (NSW); s 48 (SA). This requires D’s subjective awareness, ie, the prosecution must prove that D knew of V’s lack of consent. Even where V has not explicitly said ‘no’, the prosecution may still be able to prove that D knew V was not consenting. It is possible for D to know V is not consenting without explicit

refusal: see R v XHR [2012] NSWCCA 247. The requirement of knowledge has implications where D claims to be mistaken as to V’s consent.

Consent due to mistake 8.25 Where V’s consent has been vitiated due to a relevant mistake, it is sufficient if D knows that V consents due to a mistake, or is reckless as to the reasons for V’s consent: s 61HA(5) (NSW).

Recklessness as to consent 8.26 If the prosecution is unable to establish intentional non-consensual sexual intercourse, an alternative basis for responsibility is that D was reckless as to non-consent: s 61HA(3)(b) (NSW); s 48(1) (SA). Both jurisdictions have different approaches to this issue of recklessness. In New South Wales, s 61HA(3)(b)–(c) specifies that a person knows the other person does not consent to the sexual intercourse if: (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

[page 149] In South Australia, reforms were introduced in 2008 to define reckless indifference. Section 47 defines reckless indifference to non-consent where D: (a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or (b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or (c) does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.

Advertence to the possibility of non-consent 8.27 New South Wales and South Australia have thus retained the common law conception of recklessness as the recognition of the possibility of non-consent. Recklessness will be established where D has sexual intercourse with V: ◆

knowing that V ‘might’ not be consenting: R v Daly [1968] VR 257; or

◆

with the knowledge of the possibility of non-consent: see, eg, R v Saragozza [1984] VR 187.

Any recognition of the risk that V might not consent is enough, so long as it is not minimal or fanciful: R v Egan (1985) 15 A Crim R 20. Thus, proof that D realised that V might not consent, and despite that realisation recklessly carried on with intercourse without resolving doubt, will amount to rape. It is generally accepted that this aspect requires subjective advertence to the possibility that V was not consenting: DPP v Morgan [1976] AC 182.

Non-advertent recklessness 8.28 South Australia has also explicitly introduced what has been termed ‘non-advertent recklessness’ — where D fails to give any thought to whether the person may or may not be consenting. Criminal law theorists are split as to whether non-advertence can be characterised as: ◆

an objective standard, ie, D should have considered the issue of consent; or

◆

a subjective standard, ie, D’s failure to consider consent is a culpable state of mind reflecting D’s practical indifference to V.

This idea of non-advertent recklessness was developed in New South Wales prior to the most recent reforms, and was considered by the New South Wales Court of Criminal Appeal in R v Kitchener (1993) 29 NSWLR 696. The issue was whether recklessness was only actual advertence to the possibility of nonconsent, or whether the concept could be extended to a failure to advert at all to the possibility of non-consent. The Court held that D could be reckless if D failed to advert at all to the possibility of non-consent: To criminalise conscious advertence to the possibility of non-consent, but to excuse the reckless failure of the accused to give a moment’s thought to that possibility, is self-evidently unacceptable. In the hierarchy of wrongdoing, such total indifference to the consent of a person to have sexual intercourse is plainly reckless, at least in our society today: at 698 per Kirby P.

[page 150] Thus, D will be reckless ‘not only where the accused adverts to the possibility of consent, but ignores it; but also where the accused is so bent on gratification and indifferent to the rights of the victim as to ignore completely the requirement of consent’: Kitchener at 698 per Kirby P. See also R v Banditt [2005] HCA 80. It appears likely that the standard of recklessness in New South Wales could include not only advertence, but also non-advertence under the legislative reforms in that State: s 61HA(3)(b). However, given paragraphs 61HA (3)(c) and (d), this non-advertent recklessness is unlikely to receive much judicial development in New South Wales.

Mistaken belief in consent 8.29 Historically, at common law, if D honestly believed V was consenting, then D would lack mens rea for rape, even if this belief was unreasonable: DPP v Morgan [1976] AC 182. In that case, the four Ds appealed against convictions for rape, and aiding and abetting rape. Morgan invited the three co-defendants to have sex with his wife and told them she was ‘kinky’, and if she struggled, it was to get ‘turned on’. The House of Lords held that where D honestly believes V is consenting, even if D’s belief is unreasonable, mens rea will not be established. The reasonableness or otherwise of the belief will be a factual matter for the jury in determining whether D actually had that belief. Thus in DPP v Morgan, the jury did not accept that the three co-defendants actually believed V was consenting. They were thus found guilty of rape. The decision in DPP v Morgan was affirmed in R v Saragozza [1984] VR 187: Once it is accepted that it is an element of the crime of rape that the accused either was aware that the woman was not consenting, or else realised that she might not be and determined to have sexual intercourse whether she was consenting or not, the conclusion is inescapable that a man who believes that the woman is consenting cannot be guilty of the offence; for the existence of this belief is inconsistent with the presence of the mental element of the crime. Logic then insists that the reasonableness of the belief bears only on whether the accused in fact held it: at 193 per Starke, Kaye and Brooking JJ.

New South Wales and South Australia have now engaged with this doctrine in various ways, and require D to point to reasonable grounds for his or her belief in consent. It is submitted that this approach is preferable. Many of the judgments appear to be based on the idea that it is extremely difficult to ascertain whether or not a sexual partner is consenting, while in reality it is usually very apparent if someone is consenting or not. In South Australia, D will be recklessly indifferent if he or she is aware of the possibility of non-consent and ‘fails to take reasonable steps to ascertain whether the other person does in fact consent’: s 47(b). In R v Higgs (2011) 111 SASR 42, David J and Doyle CJ stated in obiter: If it has been proved that a defendant is aware of the possibility that the other person might not be consenting and then takes steps in order to find out whether in fact the other person was consenting or not, then there is an objective test imposed as to whether those steps which that person did take were reasonable. That is to be contrasted to s 47(a) where the person who was aware of the possibility that the other person might not be consenting takes no steps but proceeds regardless: at 51.

Accordingly, the South Australian provisions still require a belief in the possibility of non-consent — which need not be reasonable. It is only once this belief is established

[page 151] that a jury will then consider whether or not D took reasonable steps to resolve uncertainty about consent. The reforms in New South Wales clearly overturn DPP v Morgan. D is deemed to know that V is not consenting if D ‘has no reasonable grounds for believing that the other person consents to the sexual intercourse’: s 61HA(3) (c). For application of this section, see O’Sullivan v R (2012) 233 A Crim R 449; Lazarus v R (2016) NSWCCA 52.

Victoria 8.30 In Victoria, the prosecution must prove intentional sexual penetration: s 38C(a). It is difficult to think of a situation where the prosecution would have problems with establishing intentional sexual penetration. An example might be sexual penetration during sleepwalking, but this would then be a case of involuntariness. 8.31 The prosecution must also prove that D did not reasonably believe that V consented to the penetration: s 38C(c). This is the primary mens rea element in Victoria. Section 38C(c) introduces an objective fault element into rape which is similar to s 61HA(3)(c) (NSW). The difference is that in New South Wales, the prosecution can also argue recklessness or intentional sexual intercourse without consent, whereas in Victoria this is the only fault element with respect to absence of consent. The Victorian offence requires ‘no reasonable belief ’, which is a combination of an objective standard of ‘reasonable’ and a subjective state of mind of ‘belief ’. Section 37G (Vic) provides that reasonableness of belief in consent ‘depends on the circumstances’. Section 37G(2) augments this by stating that ‘the circumstances include any steps that the person has taken to find out whether the other person consents’. This reiterates the approach of Victoria of requiring communicative consent.

AGGRAVATED RAPE 8.32 Legislation for aggravated rape exists in each jurisdiction.

INDECENT ASSAULT 8.33 New South Wales and South Australia have retained the common law

offences of indecent assault (s 61L (NSW); s 56 (SA)) and act of indecency (s 61N (NSW); s 58 (SA)). Victoria has created an equivalent statutory offence (confusingly) called sexual assault: s 40 (Vic). The common law offence of indecent assault required an assault accompanied by indecency. There is no need for separate acts of assault and indecency. Any assault which in itself could constitute an indecent act will suffice: Fitzgerald v Kennard (1995) 38 NSWLR 184. Examples could include the laying on of hands without the consent or against the will of the victim. The indecent assault must have some sexual connotation which may be derived by the part of D’s body used to do the touching or from the body area where V has been touched. For example, the touching of a girl’s breast or genitalia would be sufficient. Indecency is that which offends against currently accepted [page 152] standards of decency: Attorney-General v Huber (1971) 2 SASR 142. An offence of indecent assault: requires an element of sexual lewdness — often referred to as ‘a sexual connotation’ — whereas an offence of indecent language may be satisfied by language that does not have that sexual connotation’: R v C, M [2014] SASCFC 116 at [19].

The mens rea for the offence is either intention or recklessness. Thus intentionally touching someone in an indecent way either knowing or recognising the possibility that they were not consenting would be sufficient mens rea: Fitzgerald v Kennard. In addition, non-advertant recklessness would apply. So if D did not turn his or her mind to the question of whether or not V consented, then this would be sufficient mens rea. The Victorian offence of ‘sexual assault’ in s 40(1) simplifies and clarifies the common law offence of indecent assault: A person (A) commits an offence if — (a) A intentionally touches another person (B); and (b) the touching is sexual; and (c) B does not consent to the touching; and (d) A does not reasonably believe that B consents to the touching.

[page 153]

Chapter 9 Property Offences: New South Wales Objectives After reading this chapter you should be familiar with the following: ▶ the common law offence of larceny ▶ property capable of being stolen ▶ intent to deprive permanently ▶ conditional return ▶ fungibles ▶ bona fide claim of right ▶ larceny as a bailee ▶ the offence of fraud ▶ the offence of robbery ▶ the offence of burglary

INTRODUCTION 9.1 New South Wales is the sole State that has retained the common law relating to offences against property; however, these principles have been substantially added to and modified under statute. This chapter considers the offences of larceny, fraud, robbery and burglary.

LARCENY 9.2 Larceny is the basic property offence at common law and is colloquially known as ‘theft’ or ‘stealing’. The offence developed in the Middle Ages and was a simple crime designed to meet the needs of an agricultural society. Essential to the offence was a trespass against possession. That is, the taking of property without the consent of the person in possession. Over time, new offences developed at common law to cover more complicated situations, in particular, cheats and con artists who tricked owners into handing over property with consent. Additionally, statutory reforms have been introduced to extend the ambit of property offences and fill perceived gaps.

Consequently, there is a complicated range of offences that have developed at common law. [page 154] The offence of simple larceny exists at common law and under statute: s 117 (NSW). The New South Wales provisions do not contain a definition of larceny, thus it is necessary to rely upon the common law definition. The definition of larceny was found in the now repealed s 1(1) of the Larceny Act 1916 (UK), and was approved by Wilson and Dawson JJ in Ilich v R (1987) 162 CLR 110; [1987] HCA 1. It stated: A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof.

Elements The actus reus of the offence of larceny is that D: •

took and carried away;

•

property capable of being stolen;

•

which belonged to another; and

•

without the consent of the person in possession.

The mens rea of the offence of larceny is that, at the time of taking, D acted: •

with the intention of permanently depriving the person in possession;

•

without a claim of right; and

•

fraudulently.

The accused must have mens rea at the time of the actus reus.

Burden of proof In order to establish the offence of larceny, the prosecution must prove all elements of the offence beyond a reasonable doubt: Woolmington v DPP [1935] AC 462.

Student tip The elements of larceny are based on a long history of common law and at times have complex meanings and applications. Take the time to learn the meanings of the terms and their implications in decided cases.

Each of the elements of larceny will now be considered in turn.

Actus reus of larceny Took and carried away 9.3 The prosecution must prove that D took and carried away the property.

For larceny to be committed, there must be asportation, ie, physical removal of the property said to be stolen. The slightest movement is enough to satisfy the ‘carrying off’ requirement, but there must be some movement. Attempting to steal an earring, [page 155] and moving it to the point where the earring became entangled in V’s hair, was held to be sufficient asportation: R v Lapier (1784) 168 ER 263; [1784] Eng R 69. See also Wallis v Lane [1964] VR 293. Mere passive retention of the property by D will not be sufficient for larceny. There must be a positive act on the part of D: R v Thomas (1953) 37 Cr App R 169.

Property capable of being stolen 9.4 The prosecution must establish that the property was capable of being stolen. This results in a series of requirements in relation to the property stolen: ◆

The property must be of some value; even the slightest value will be sufficient: R v Perry (1845) 174 ER 1008.

◆

The property must be moveable (due to the requirement of asportation); it is not possible to steal land: R v Young (1947) 48 SR (NSW) 46.

◆

Previously under common law, D could only steal tangible property: R v White (1904) 4 SR (NSW) 379; 21 WN (NSW) 104. Thus under common law, if D stole a security — eg, a bill of exchange — D could be charged only with stealing the document itself, but not with the chose in action that the security represented: R v Potisk (1973) 6 SASR 389. Statute has altered this position, so that it is now possible to be punished for larceny in cases involving valuable securities: s 134.

◆

Previously under common law, electricity previously could not be stolen (Low v Blease [1975] Crim LR 513; (1975) 119 Sol Jo 695), but theft of electricity is now punishable as larceny: Electricity Supply Act 1995 (NSW) s 64.

◆

Only the slightest substantiality is necessary. D could be charged with stealing gas under common law: Low v Blease.

◆

At common law, a corpse is not property and cannot be stolen: R v

Sharpe (1856) 169 ER 959; Dears & B 160. ◆

Documents of title to land could not be stolen under common law. Under statute, these can be the subject of larceny: s 134.

◆

The prosecution need not prove which precise objects have been stolen. It is possible to charge D with stealing a portion of a larger whole: Russell v Smith [1957] 2 All ER 796; [1958] 1 QB 27. Where the charges involve a clerk or servant stealing money, the prosecution need only prove a general deficiency in the accounts: s 161.

◆

Special statutory provisions exist in relation to the stealing of animals: ss 126–32, 505, 506, 512.

◆

Property must have an owner. Thus, things which cannot have an owner or be possessed cannot be stolen, eg, wild animals. Additionally, abandoned property cannot be stolen: R v MacDonald [1983] 1 NSWLR 729. Abandonment occurs where the owner has intentionally given up any interest in the property: Donoghue v Coombe (1987) 45 SASR 330.

Which belonged to another 9.5 Larceny was developed as an offence against possession, but has been extended to include offences against ownership and control. The concept of ‘possession’ will be outlined first, followed by a discussion of ‘control’ and ‘ownership’. [page 156] Property may simultaneously belong to more than one person, as ownership, possession and control are not mutually exclusive: Duyo John Anic v R [1993] SASC 4159. Thus, property may be stolen from more than one person, even if one of those persons is in possession or control of the property unlawfully.

Possession 9.6 In the ordinary use of the word ‘possession’, one has in one’s possession whatever is, to one’s knowledge, physically in one’s custody or under one’s physical control: DPP v Brooks [1974] AC 862; (1974) 59 Cr App R 185 at 186. Possession has proved to be a very flexible (and somewhat vexed) concept in the criminal law. It is possible to divide possession into actual possession and constructive possession.

9.7 Actual possession Actual possession is where the person has present physical custody of the property or has it in such a place that the person alone has the right or power to place his or her hands upon it and take custody of it: Moors v Burke (1919) 26 CLR 265; [1919] HCA 32. Thus, for the purposes of larceny, a person has actual possession of property if: ◆

the person intends to possess the property; and

◆

the person had some degree of physical control over the property at some stage.

There is no requirement that the person in possession is aware of the existence of the property. Thus, it has been held that a golf club possesses the golf balls lost by members in its grounds, even if it does not know how many there are. The golf club has some degree of physical control over the balls by its intention to exclude others from interfering with the land. Thus, the golf balls could be stolen from the club: Hibbert v McKiernan [1948] 2 KB 142: … every householder or occupier of land means or intends to exclude thieves and wrongdoers from the property occupied by him, and this confers on him a special property in goods found on his land sufficient to support an indictment if the goods are taken therefrom, not under a claim of right, but with a felonious intent: at 148.

A person may be in possession notwithstanding that the person’s possession is unlawful. Thus, where D purchases a car and is unaware that it is stolen, a subsequent dishonest conversion (see 9.43) will not alter the original innocent purchase to larceny. That is, if D does not realise that he or she is buying stolen property at the time, it cannot be larceny, even if later D does realise and keeps the property or sells it to someone else: The voluntary passing of possession will not found a larceny, no matter what the taker may do thereafter or what intention he may form thereafter. There must be a taking of possession against the will of the person from whom possession is taken. The taking must also amount to an act of trespass against the person from whom possession is taken; it is not sufficient that it is without the consent of some other person who is the true owner or that it involves a conversion of his property: R v Davies [1970] VR 27 at 30.

In New South Wales, Davies has been reversed by statute: s 94AA. 9.8 Constructive possession Property that is the subject of constructive possession can be the object of larceny charges. Constructive possession is where the person does [page 157] not have actual possession of the property, but has the legal right to assume possession whenever that person wishes to do so. For example, in employer–

employee situations, even if an employee has physical custody over property, the employer is regarded as being in possession by law. In Ellis v Lawson (1987) 33 A Crim R 69, a shop assistant with physical custody over a radio consented to her friend, D, taking the radio, knowing that the owner did not consent to this, and in the absence of payment. It was held that D was guilty of larceny. This was because the owner had remained in constructive possession of the goods, and had not consented to D’s removal of the property. Cases of larceny by servants are now covered by statute: ss 155, 156. Questions of whether a person has maintained constructive possession when handing over physical custody are a matter of fact and degree. Thus, where D came into a shop and was given physical custody of linen for the purposes of showing D the linen, it was held that the shopkeeper had maintained constructive possession of the linen. The linen could therefore be the object of larceny, as the shopkeeper had only given D physical custody, not possession of the property: R v Chisser (1678) 83 ER 142; T Raym 275.

Control 9.9 Property can be stolen from someone who is merely in control of the property, rather than having possession of it. This is so even in cases where the person in control is not aware of the existence of the property: see Hibbert above. A person is in control of property where he or she has ‘manual custody’ of it, or has it ‘where he alone has the exclusive right or power to place his hands on it, and so have manual custody when he wishes’: Moors v Burke (1919) 26 CLR 265 at 274. For example, a person has control over property when it is on his or her own person. For the purposes of larceny, control not amounting to possession may be sufficient. For example, in Anic, Stylian and Suleyman v R (1993) 68 A Crim R 313, the Ds were convicted at first instance of housebreaking with intent to steal and rob when they broke into a house in the mistaken belief that it contained cannabis. On appeal, the Ds argued it was not possible to steal property from a person who had it unlawfully in his or her possession. Bollen J disagreed and held that a person can be convicted of stealing illicit drugs from another person.

Ownership 9.10 Property can be stolen from an owner who is not in possession or

control of property. This is demonstrated in larceny by ‘finding’ cases (see 9.36): R v Flood (1869) 8 SCR (NSW) 299. Additionally, an owner of property can be guilty of larceny if the owner takes the property from the person who is lawfully in possession of it: Rose v Matt [1951] 1 KB 810.

Without the consent of the person in possession 9.11 The taking of the property must amount to a trespass in order for larceny to be committed: Ellis v Lawson (1987) 33 A Crim R 69. That is, the property must have been [page 158] taken without the consent of the person in possession: R v Croton (1967) 117 CLR 326; [1968] HCA 48. A trespass is defined as unprivileged interference with a possession of another. A trespassory taking will occur when property is taken against the will of the person in possession: Davies. Section 94AA overrides the requirement of a trespassory taking in relation to stolen goods.

Facilitation and consent Student tip If the person in possession gave consent to the taking, there is no larceny. If, however, the possessor merely facilitated or helped, but did not consent to the taking, then this element of the actus reus will be made out. The difference between mere facilitation and consent will be a matter of degree.

9.12 Where an owner facilitates or allows property to be taken away, this will not necessarily amount to consent. The distinction between facilitation and consent will be a question of fact, and appears to have little relation to the blameworthiness of D, as shown by the following examples. In Kennison v Daire (1986) 64 ALR 17; [1986] HCA 4, D closed his bank account, and then used his old card to withdraw $200 from an automatic teller machine. He was convicted of larceny. It was held that even though the computer program had permitted the withdrawal, this did not amount to consent by the bank. The machine could not give the bank’s consent. The High Court stated: The proper inference to be drawn from the facts is that the bank consented to the withdrawal of up to $200 by a cardholder who presented his card and supplied his personal identification

number, only if the cardholder had an account that was valid. It would be quite unreal to infer that the bank consented to the withdrawal by a cardholder whose account had been closed: at 18.

The High Court has not considered what the position would be where an account existed and was current, but had insufficient funds to cover the withdrawal. In R v Turvey [1946] 2 All ER 60, D planned to steal property from his employer. D’s co-conspirator told D’s boss, who advised the co-conspirator to go along with the plot and hand the property over to D to entrap him. It was held that D was not guilty of larceny: He did not carry away the goods against the will of the owner, but because the owner was willing that he should have the goods and gave them to him: at 62.

Where property is delivered personally, or at the owner’s direction, the owner cannot deny consent. [page 159] Turvey can be compared with Martin v Puttick [1968] 2 QB 82. In that case, D stole some chops at a supermarket and put them in her shopping bag. She purchased other goods and then gave the manager her bag, to help her pack her purchases. After she had gone through the checkout point he arrested her for stealing the chops. It was held that D had stolen the chops. When D had handed her shopping bag over to the manager, she did not give up her constructive possession of the bag. Thus his handing the loaded bag back to her did not amount to consent, but merely facilitation.

Threats 9.13 Consent due to threats or intimidation may be vitiated: R v Lovell (1881) 8 QBD 185.

Consent due to fraud or trickery 9.14 Consent obtained due to fraud or trickery is covered by the offence of fraud: s 192E; and see 9.46 below.

Consent due to a mistake 9.15 Problems occur when D has received property due to mistaken consent by the owner. The issue is whether or not D should be criminally liable for doing no more than taking advantage of another’s mistake. There are two types of mistake: 1. unilateral: where D obtains property due to a mistake, and D is aware

of the mistake at the time; and 2. mutual: where D obtains property due to a mistake and only subsequently becomes aware of the mistake. In both types of mistake, the property has been handed over with consent; consequently a crucial aspect of the actus reus has not been established. Additionally, where there has been a mutual mistake, D will also lack mens rea at the time of taking. 9.16 Historical approach The historical approach to mistaken consent cases was to find D guilty of larceny on the basis that consent was vitiated due to the mistake. In R v Middleton (1873) LR 2 CCR 38; 12 Cox CC 417, D was given extra money at the post office by mistake. At the time of the handing over, D was aware of the mistake. It was held that D was guilty of larceny as the mistake vitiated consent. In R v Ashwell (1885) 16 QBD 160, D asked V, his friend, to lend him a shilling. V mistakenly handed over a sovereign. D only discovered the mistake sometime later. D was found guilty on the basis that mistake vitiated consent. To circumvent the problem that D did not have mens rea at the time of taking, the Court held that D was not in possession of the coin until he knew what it was. 9.17 Contemporary approach Two cases, R v Potisk (1973) 6 SASR 389 and Ilich, have looked at the issue of mistaken consent. Potisk, which was decided prior to Ilich, criticised the existing authorities in relation to larceny by mistake. This case goes further than Ilich, but it should be noted that the reasoning of Potisk, while persuasive, is only at the Supreme Court level. The High Court in Ilich described the reasoning in Potisk as ‘cogent’. [page 160] In Potisk Bray CJ criticised Ashwell, stating that the decision that D had not obtained possession of the coin until he realised its value was incorrect: Keogh did not hand over the coin merely for some limited or temporary purpose. He did not expect to get the identical coin back. He expected only to be repaid a shilling, not the same shilling … he parted with not only possession, but also the ownership of the coin: at 397.

Bray CJ stated (at 398) that, where something more valuable than intended is handed over by the owner, and D takes the property in good faith and in ignorance, D should not be guilty upon formation of a subsequent guilty intention.

Bray CJ also criticised Middleton, arguing that the mistake was not induced by the fraud of D, and hence did not amount to larceny by trick. Even if the clerk did not intend to give D what did not belong to him, he intended to do the act he did; thus, there was consent on the part of the clerk, and no element of fraud to vitiate the consent. Thus, D should not be charged with larceny. In Potisk, a bank teller applied the wrong exchange rate to D’s travellers’ cheques. D took the extra money, but did not realise the mistake until he had left the bank. It was held that D was not guilty of larceny. Bray CJ argued that the law should be rationalised in this area, drawing a distinction between: … dishonesty of the kind in question here, where the accused merely takes advantage of someone else’s self-induced mistake, and the open and forcible violation of the rights of property involved in the typical case of larceny. Legal fictions and hair-splitting tend to bring the law into disrepute, especially in the criminal field: Potisk at 403.

Consequently, the reasoning in Potisk suggests that where V consented to handing over property due to a mistake, this will not amount to larceny because the handing over was with consent. 9.18 In Ilich, the High Court came to a similar conclusion as the Supreme Court in Potisk, subject to some qualifications. The High Court held that where D obtains property due to a mistake, and D is aware of the mistake at the time (unilateral), or subsequently becomes aware of the mistake (mutual), and then converts the property, D can be charged with larceny only where the mistake is so fundamental as to prevent ownership from passing. It should be noted that in Ilich the High Court was focusing on the offence of stealing under s 371 of the Criminal Code (WA). This section does not require absence of consent on the part of the owner. Despite the differences in law, the decision provides some indication of how the High Court may decide a case based on the common law offence of larceny. This case is particularly persuasive, given that the High Court considered mistaken consent cases at common law. In Ilich, D was overpaid by an employer for work. D had not returned the excess, but had put it aside while deciding what to do with it. The High Court quashed his conviction, holding that the mistaken payment had not prevented the property passing to D. The consent had not been induced by the fraud of D, nor was the mistake of [page 161] a relevant fundamental type. D could not be charged with subsequent

fraudulent conversion (see 9.43), as D cannot take or convert what is already D’s. In Ilich, three types of mistake were held to be sufficiently fundamental to negate consent and to prevent ownership from passing: 1. mistake as to the identity of the person to whom the property is given: Middleton. In that case, D was given extra money at the post office and he was aware of the mistake when he took the money. It was held that this amounted to larceny, despite the presence of consent. The High Court in Ilich stated that this was a case of mistaken identity of the person, although the judgment in the case itself was not based on this reasoning; 2. mistake as to the identity of that which is handed over: Ashwell. In that case, D received a sovereign rather than a shilling, and only discovered this mistake later. It was held that this amounted to larceny; 3. where an excess quantity of goods is delivered: Russell v Smith. The High Court in Ilich did not overturn Ashwell and Middleton, but stated that the reasoning in these cases was only applicable where there has been a fundamental mistake. This is an indication that if the High Court were to consider the common law relating to mistaken consent, the scope of the historical cases would be strictly limited, though they might still have some application. In Ilich, the High Court expressly excluded excess money from the concept of fundamental mistake. That is, if D received too much money due to V’s mistaken consent, D cannot be guilty of larceny. This is because ownership of money in the form of currency passes when the person in possession hands it to another intending him to be the owner. A mistake merely as to amount was not a fundamental mistake: If it were otherwise, the customer who counts the change after coming home from the supermarket would be guilty of stealing any excess received if, on discovering the excess, the customer resolves to spend that money and to refund the excess when shopping next week: at 254.

It should be noted that, in Ilich, D would not be guilty of fraudulent appropriation under s 124. This is because ownership of the money had passed to D by the time he formed the necessary mens rea. D cannot appropriate his own money. Thus s 124 is only applicable in cases where there is a unilateral mistake. 9.19 Summary The issue of consent of V due to a mistake remains

unresolved. The better answer is that where V has consented to the handing over of the property due to a mistake, there is no trespassory taking and thus the actus reus for larceny is absent. Hence the question of mens rea will be irrelevant. In cases where there has been a mutual mistake, there will be no mens rea at the time of the taking: see 9.35. In summary, when considering mistaken consent cases it is necessary to apply both Potisk and Ilich. ◆

In Potisk, mistaken consent is still consent, thus a vital aspect of the actus reus will be missing. Under Potisk, D will not be found guilty of larceny where the property was handed over with consent due to a mistake. [page 162]

◆

When applying Ilich, where D has received property due to mistaken consent, this will not amount to larceny unless V has made a fundamental mistake as to: ◆

identity of the person;

◆

identity of the thing; or

◆

excess quantity of goods.

Where a fundamental mistake has been made and D only subsequently becomes aware of the error and decides to keep the property, it will be necessary to apply the Riley principle (R v Riley (1853) 169 ER 674; Eng R 23) to overcome the difficulty of an absence of mens rea at the time of taking. That is, once a fundamental error has been established, so that the consent is vitiated, the original taking will be trespassory. Under the Riley principle, this original trespassory taking will extend unless and until D forms the necessary mens rea. ◆

These fundamental errors will not apply to cases where the mistake has resulted in excess money being handed over.

Mens rea of larceny 9.20 The mens rea for larceny is specified in Ilich. Elements Larceny is not committed unless, at the time of taking the property: •

D intends to permanently deprive the owner of the property; and

•

D does not have a claim of right made in good faith; and

•

there is an element of fraud.

With the intention of permanently depriving the owner 9.21 Larceny is not committed unless, at the time of taking, D intends to deprive the owner of the property permanently: R v Foster (1967) 118 CLR 117; [1967] HCA 8.

Conditional return 9.22 Difficulties arise where D takes the goods of another with the intention of returning them at a later time, subject to specific conditions. For example, D takes property on a Monday to pawn it, with the intention of redeeming and returning the property on Thursday when D gets paid. Historically, under common law, D would be entitled to an acquittal where D had a reasonable chance of fulfilling the intention to return the property: R v Medland (1851) 5 Cox CC 292; R v Phetheon (1840) Eng R 879. If, however, D had taken the property with the intention of returning it when D won the lottery, D would have the necessary mens rea at common law, as D would not have a reasonable chance of winning. In New South Wales, s 118 has altered the common law position: Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to the accused’s own use, or for the accused’s own benefit, or that of [page 163] another, but intended eventually to restore the same, or in the case of money to return an equivalent amount, such person shall not by reason only thereof be entitled to acquittal.

Thus, where D takes the property, an intention to return the property is not a defence to the charge of larceny if D has appropriated the property for D’s own use or benefit, or for another’s use or benefit. This is despite the reasonableness of D’s intention to reclaim the property and return it to its owner: Foster. Consequently, the focus is on exercising ownership, rather than the reasonableness of the intention to return. In Foster, the High Court read s 118 narrowly, as dealing ‘with the case where an accused has appropriated the property, and not of an accused who has only assumed possession of it’: at 122. Barwick CJ stated: Larceny … being undefined, is as under the common law. It involved an intention on the part of [D] to assume ownership of the gun, to deprive [V] permanently of it, to deprive him of the property in it. I use these three expressions, which are several ways of establishing the same essential element of larceny, namely, the intention to appropriate the goods to himself. To intend to deprive the true owner permanently of the possession of the goods is one form of the requisite intention. An intention to deprive him of his property in the goods is another, that is, an

intention to appropriate the goods as distinct from merely to assume possession of them … Thus, if the intention is to deprive the true owner of possession for a limited time, larceny is not made out. But if the intention of the taker is to exercise ownership of the goods, to deal with them as his own, an intention later to restore the property in the goods will not prevent the original taking being larcenous: at 121.

In Foster, D borrowed V’s pistol to show to his parents. V complained to the police, and D was questioned on the same day. He claimed that he had intended to return the property that same evening. It was held that his actions did not amount to larceny under common law and under s 118. Pawning of another’s property would definitely amount to exercising ownership, and thus would satisfy s 118. Section 118 would also cover socalled ‘refund fraud’ — where D steals property from a store with the intention of then attempting to return the property to get a refund: Lowe v Hooker [1987] Tas R 153.

Altered condition 9.23 Where D intends to return the property to the owner, but in a substantially altered condition or with reduced value, larceny can be charged: R v Duru (1973) 58 Cr App R 151. In Duru, the Ds were charged with offences of obtaining cheques from a local council by deception; a component of the offence was the intention permanently to deprive the owner of the property. The Ds argued that they did not have this intention, as when the cheques were cashed they would be returned to the council, via the council bank. Their convictions were upheld as the council was to be deprived of the cheques in substance. Similarly, in Parsons v R (1999) 195 CLR 619; [1999] HCA 1, the High Court held that D had intended permanently to deprive V of a cheque because once cheques were cashed, they were ‘spent and deprived of those characteristics which led or significantly contributed to their classification as property’: at [278]. In R v Bailey [1924] QWN 38, D had taken a car and used all the petrol. It was held that the change in the property must be substantial, and not that which would occur by [page 164] normal use of the property. Thus, D could not be convicted of stealing the car, but only the petrol. It is likely that this would now also be covered by s 118, as driving a car could be regarded as exercising ownership.

Illegal use of motor vehicles 9.24 Under common law, the requirement of an intent permanently to

deprive effectively excluded some offences associated with the use of motor vehicles, particularly ‘joyriding’. Joyriding is the unauthorised ‘borrowing’ of a car with the intention of returning or abandoning it. This position has been changed by s 154A, which does not require permanent intent to deprive in relation to the illegal use of motor vehicles, only lack of consent.

Fungibles 9.25 The distinction between fungibles and non-interchangeable property has affected the position of D in relation to mens rea. Fungibles are objects that are interchangeable, eg, money, eggs, sugar, etc. In everyday life, we treat these goods as interchangeable. Thus, if someone borrows a cup of sugar or some money, we would not expect the same sugar or particular notes and coins back. We are happy to accept the equivalent in value in return. However, the law does not treat fungibles in the same way. The law sees the particular notes, coins, sugar, etc as unique. The focus is on the specific object, rather than any object of equivalence. This has implications for the mens rea and actus reus of common law larceny offences. In relation to mens rea, if D borrows $20 from V, with the intention of repaying V later in the week the equivalent of $20 in different notes, the law would characterise this as an intention permanently to deprive V of that specific $20 note. The distinction has little to do with the subjective blameworthiness of D: ◆

Where D takes money from a till, and intends to return that money the next day, and has a reasonable expectation of doing so, D can be charged with larceny: R v Cockburn [1968] 1 All ER 466; (1968) 132 JP 166. This is because D intends to permanently deprive the owner of those particular notes, intending only to return money of equal value.

◆

If D takes an antique chair, with the intention of returning the chair the next day, then the focus in New South Wales would be on whether or not D ‘appropriated’ the chair: Foster, applying s 118. Student tip

Where D borrows money from V, in most cases D will intend permanently to deprive V of the money, because D will usually have no intention of returning exactly the same notes to V.

9.26 The approach to fungibles also affects the actus reus of property offences, in particular the offences of larceny by a trick and larceny by a bailee

(see 9.40). D can be found responsible for larceny by a trick or larceny by a bailee only in cases where V [page 165] intended to hand over mere physical possession of the property. Where V intended to pass ownership in the property, D cannot be guilty of these common law offences, but may be guilty of fraud. Where V has handed over a fungible, it is highly likely that V has intended to hand over physical possession and ownership. For example, V may ‘loan’ D $50 due to some fraud by D. V will expect to be repaid, but not with the same note. Thus, the law would characterise this as an intention by V to hand over the ownership of that particular $50 note. Consequently, D could not be guilty of larceny by a trick, as physical possession and ownership in the $50 note has passed.

Without a claim of right made in good faith 9.27 Belief in a claim of legal right to property is inconsistent with larceny. However, a claim of moral right to the property will be insufficient to negative a charge of larceny: Harris v Harrison [1963] Crim LR 497. In R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, Wood CJ clearly outlined the authorities in relation to claim of right.

Mistake of law and fact 9.28 The belief in a claim of right may arise due to a mistake of fact or law. Where the belief is due to a mistake of law, this mistake may negative charges of larceny if the mistake prevented D from forming the necessary mens rea for the offence: R v Lopatta (1983) 35 SASR 101; 10 A Crim R 447.

Belief does not have to be reasonable 9.29 The belief does not have to be reasonable. In Lopatta, D was convicted of larceny for taking 20 large drums of oil from his former employer’s warehouse. D took these drums, worth about $5000, in the belief that this money was owed him by his employer. It was held that the defence of claim of right was available to D. The jury needed only to determine whether the prosecution had excluded, beyond a reasonable doubt, the possibility of D honestly believing in a claim of right at the time of taking the property. There was no need for the mistake to be reasonable. Nor was there any need for D to demonstrate a belief in the right to enforce the claim. See also R v Nundah (1916) 16 SR (NSW) 482; 33 WN (NSW) 196. While at law the belief need not be reasonable, the reasonableness or

otherwise of the belief will have an evidentiary role to play. Thus, if D claims to have held a completely unreasonable belief in a claim of right, then the jury may not believe D actually held this belief.

Claim of right to the entire property 9.30 D cannot argue a legal claim of right if D took more than D believed himself or herself entitled to. For example, in Astor v Hayes (1988) 38 A Crim R 219, D took a bag and its contents, believing he had a legal claim of right to the bag. However, as there was no evidence that he intended to return the contents of the bag, his belief in a legal claim of right to the bag was insufficient to negate his dishonesty.

Belief in a legal right to the property 9.31 D need only have a belief in a legal right to the property, rather than a belief in the legal right to employ the means in question to recover it: R v Love (1989) 17 NSWLR 608; [page 166] 44 A Crim R 416; R v Langham (1984) 36 SASR 48; 12 A Crim R 391. In other words, D can employ dishonest means to reclaim property to which D honestly believes he or she has a legal claim of right.

Fraudulently 9.32 Older definitions of larceny all stressed the necessity for a taking which was morally wrongful. The requirement that D act fraudulently fulfils this function. ‘Fraudulently’ has ‘a meaning interchangeable with “dishonestly”’: R v Glenister [1980] 2 NSWLR 597 at 604; (1980) 3 A Crim R 210. See also Love; Condon v R (1995) 83 A Crim R 335; Peters v R (1998) 192 CLR 493; [1998] HCA 7; MacLeod v R (2003) 197 ALR 333; 140 A Crim R 343. In the majority of cases, the requirement that D acts fraudulently adds little to the mens rea requirements for the offence of larceny. Where D acts with the intention to deprive permanently and without a bona fide claim of right, D will act fraudulently. Where D has a belief in a legal claim of right this will mean D is not acting fraudulently: Love. 9.33 The requirement that D act fraudulently may be important: ◆

due to s 118, which forgoes the requirement that D intends to deprive V of the property permanently;

◆

in cases where fungibles are involved; and

◆

in ‘larceny by finding’ cases: see 9.36.

Arguably, an intention to return the property would not fulfil the requirement of moral dishonour associated with ‘fraudulent’ intent. Although D intends to permanently deprive V of the specific property without a claim of right, D’s intention to return the equivalent would suggest that D’s behaviour was not dishonest. 9.34 The meaning of ‘fraudulence’ or ‘dishonesty’ has been considered in a series of cases. The United Kingdom Court of Appeal Criminal Division considered the requirement of dishonesty in the case of R v Feely [1973] 1 All ER 341; QB 530. It was held that the question of dishonesty was for the jury, and, as ‘dishonesty’ was a word in ordinary use, it was unnecessary for the trial judge to explain what it meant. Additionally, it was said that it was for the jury to decide whether the act involved was dishonest by application of the ‘current standards of ordinary decent people’: at 538. Lawton LJ used an example of a case where D may intend to deprive V permanently of property without their consent, but act without the necessary dishonesty: It is possible to imagine a case of taking by an employee in breach of instructions to which no one would, or could reasonably, attach moral obloquy; for example, that of a manager of a shop, who having being told that under no circumstances was he to take money from the till for his own purposes, took 40p from it, having no small change himself, to pay for a taxi hired by his wife who had arrived at the shop saying that she only had a £5 note which the cabby could not change. To hold that such a man was a thief and to say that his intention to put the money back in the till when he acquired some change was at the most a matter of mitigation would tend to bring the law into contempt. In our judgment a taking to which no moral obloquy can reasonably attach is not within the concept of stealing … at common law : at 538.

[page 167] The approach in Feely was applied in the New South Wales case of R v Glenister [1980] 2 NSWLR 597; (1980) 3 A Crim R 210, and by the High Court in Peters v R (1998) 192 CLR 493; [1998] HCA 7 and MacLeod v R (2003) 197 ALR 333; 140 A Crim R 343. Peters concerned charges of conspiracy to defraud the Commonwealth. Toohey and Gaudron JJ said that, ordinarily, fraud involves … the intentional creation of a situation in which one person deprives another of money or property or puts the money or property of that other person at risk or prejudicially affects that person in relation to some lawful right, interest, opportunity or advantage, knowing that he or she has no right to deprive that person of that money or property or to prejudice his or her interests: at 508, emphasis added.

Their Honours stated that the term ‘dishonestly’ in a statutory offence may be used in its ordinary sense or in some special way. The line of authorities

concerning the statutory offence of obtaining property by deception provides an illustration of the latter. Toohey and Gaudron JJ stated: The proper course is for the trial judge to identify 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. However, if ‘dishonest’ is used in some special sense in legislation creating an offence, it will ordinarily be necessary for the jury to be told what is or, perhaps, more usually, what is not meant by that word. Certainly, it will be necessary for the jury to be instructed as to that meaning if there is an issue whether the act in question is properly characterised as dishonest: at 504.

Their Honours rejected any further requirement, derived from R v Ghosh [1982] 1 QB 1053; 75 Cr App R 154, that D must have realised that the act was dishonest by those standards. ‘Dishonest’ is defined in s 4B as ‘dishonest according to the standards of ordinary people and known by the defendant to be dishonest to the standards of ordinary people’. At this stage, this statutory definition of ‘dishonest’ does not apply to the common law requirement of ‘fraudulent’ in the offence of larceny. This means that fraud and larceny offences have different definitions of fraud/dishonesty.

Temporal coincidence of the mens rea and actus reus 9.35 Generally, for D to be guilty of larceny, D must have had fraudulent intent at the time of taking: R v Thurbon (1849) 1 Den 387. There are a number of exceptions to this requirement, including: ◆

a charge of larceny as a bailee (see 9.40) requires that D formed the intent subsequently to taking possession of the goods;

◆

an honest but trespassory taking, and the development of a subsequent fraudulent intent, may amount to larceny under the Riley principle (see 9.19). [page 168]

The Riley principle, or the doctrine of ‘continuing trespass’, was developed to cover situations where D innocently acquires property, and later forms the intention permanently to deprive the owner of the property. Under the Riley

principle, where an original taking is trespassory, a subsequent fraudulent intention will ground a charge of larceny. R v Buttle (1960) SR (NSW) 320 applied the Riley principle. In this case D was driving a flock of sheep along a road when some lambs joined the flock. D knew that the lambs were not his own, but drove them to his house anyway, later killing and skinning the lambs. D lacked the necessary mens rea at the time of taking the lambs. However, the original taking was trespassory (without the consent of the owner). Thus, the subsequent formation of fraudulent intent allowed a charge of larceny to be laid. In Davies, D purchased a car, not realising it was stolen. When he discovered it was stolen, he decided to keep the car anyway. If D’s original taking had been trespassory, ie, without the consent of the person in possession, then the Riley principle would apply, and D could be guilty of larceny. However, as D had the consent of the person in possession, he had not committed a trespass and the doctrine of continuing trespass could not apply, so D would not be guilty of larceny. The Riley principle is particularly important in ‘larceny by finding’ cases, where D picks up property belonging to another without any specific intent regarding the property. If D later forms the necessary mens rea for larceny, the Riley principle will apply so that D may be guilty of larceny, as the original taking was trespassory. Additionally, the Riley principle may apply in mistaken consent cases if Ilich applies: see 9.18. If D is given property as a result of mistaken identity by V, this will be an original trespassory taking because the mistake as to identity was fundamental and thus vitiated consent. If D later forms the intention to keep or to use the property (under s 118), then the Riley principle will apply to ground a charge in larceny. Student tip These variants of larceny are worth learning and understanding because they give insight into the basic offence of larceny.

Larceny by finding 9.36 Larceny by finding occurs when V loses property, and D finds it and dishonestly appropriates it. Larceny by finding has the same requirements as simple larceny, but there is an emphasis on fraudulence in the mens rea requirements.

Actus reus 9.37 The actus reus of larceny by finding is that D: ◆

took and carried away (as for simple larceny);

◆

property capable of being stolen (as for simple larceny);

◆

which belonged to another: [page 169]

◆

property which is found cannot be stolen unless, at the time, the property was owned, possessed or under the physical control of another. Abandonment may be an issue in ‘larceny by finding’ cases;

◆

if goods have been abandoned, then those goods cannot be the subject of larceny. Abandonment is narrowly defined as the intentional giving up of ownership and possession: Hibbert v McKiernan [1948] 2 KB 142;

◆

abandonment ‘will not lightly be inferred’: Donoghue v Coombe (1987) 45 SASR 330;

◆

without the consent of the owner: ◆

if D picks up property with the intention of finding the owner, then the owner’s consent is assumed and the taking is not trespassory: R v MacDonald [1983] 1 NSWLR 729. If D picks up property without any intention with regard to the owner, or with the intention of keeping the property, then the taking is without the consent of the owner: MacDonald. This is consistent with a commonsense approach to property loss. If we lose property, we tend to retrace our steps in an attempt to find it. Thus, we would only consent to another picking up our lost property if they had the specific intention of finding us.

Mens rea 9.38 The mens rea of larceny by finding is that D: ◆

has the intention to permanently deprive (see simple larceny);

◆

without a claim of right (see simple larceny);

◆

fraudulently.

The requirement that D act fraudulently is emphasised in ‘larceny by

finding’ cases. If D honestly believes that the property has been abandoned, or that the owner cannot be found, then D will not be guilty of larceny by finding because D has not acted fraudulently. Where D finds and appropriates lost property, D’s state of mind at the time of finding is the primary issue in determining whether D has committed larceny or not. If D finds property which is lost or reasonably supposed by D to be lost, and D has the intention of keeping the property at the time of the finding in the belief that the owner cannot be found, then D cannot be guilty of larceny: R v Thurbon (1849) 1 Den 387. In Thurbon, D found a banknote on the highway, and believed that there was no possibility of finding the owner. D took the note with the intention of appropriating it for his own use. The following day D was informed who the owner was, but decided to keep the note anyway. It was held that D could not be guilty of larceny. At the time of taking the property, D had acted innocently as he had believed that the owner could not be found. When D learned the identity of the owner, D was already in lawful possession of the note, and thus could not commit larceny at that point of time. In MacDonald, D found a camera hanging on a paling fence. He asked a man next door if the camera was his; upon receiving a negative reply, D took the camera and kept it. It was held that D’s failure to make any inquiries, or contact the owner of the house or the police, demonstrated a fraudulent intention to keep the property as it showed D’s belief that the owner could be found. He acted in a way that showed his dishonesty. The New South Wales Court of Criminal Appeal stated: ‘regard may be had not only to what the [page 170] finder does in relation to the goods but also what he does not do that might reasonably be regarded as consistent with the actions of an honest man finding goods’: at 732. If D finds property which is lost or reasonably supposed by D to be lost, with the intention of returning the property to the owner, D will not be guilty of larceny if D subsequently fraudulently appropriates the property: R v Matthews (1873) 12 Cox CC 489.

Actus reus and mens rea at the same time 9.39 There is a general requirement that D has a guilty mind at the time of committing the external act. However, this requirement can be overridden in larceny by applying the Riley principle, outlined at 9.35. The Riley principle is particularly important in cases of larceny by finding.

Thus, if D finds a camera and does not form any intention with regard to the camera immediately, but subsequently determines to keep it or use it (s 118), this will ground a charge of larceny, as the original taking was trespassory: Minigall v McCammon [1970] SASR 82. However, if D finds a camera, and intends to return the camera to the owner, but later determines to keep the camera, D will not be guilty of larceny. This is because the original taking was not trespassory, because it has been held that an owner would consent to D retrieving the property with the intention of finding the owner: see MacDonald. Where an original taking is not trespassory, a subsequent fraudulent intention will not ground a charge of larceny. However, in New South Wales the offence of being unlawfully in possession of property has been created to cover cases where there was no trespassory taking and D later develops mens rea: s 527C.

Larceny by a bailee 9.40 Bailment is an exception to the requirement in larceny of contemporaneous actus reus and mens rea. Larceny by a bailee is criminalised in New South Wales under s 125: Whosoever, being a bailee of any property, fraudulently takes, or converts, the same, or any part thereof, or any property into or for which it has been converted, or exchanged, to his or her own use, or the use of any person other than the owner thereof, although he or she does not break bulk, or otherwise determine the bailment, shall be deemed to be guilty of larceny and liable to be indicted for that offence. The accused shall be taken to be a bailee within the meaning of this section, although he or she may not have contracted to restore, or deliver, the specific property received by him or her, or may only have contracted to restore, or deliver, the property specifically.

Elements In order to establish larceny by a bailee, the prosecution must prove that: •

D was in possession of the property as a bailee;

•

D took or converted the property; and

•

D acted fraudulently.

[page 171]

Bailment 9.41 A bailment occurs when: ◆

a specific object is delivered from one person to another;

◆

the object remains the property of the bailor;

◆

the object, or something into which it is converted, should be returned to the bailor.

The essence of larceny as a bailee is that it is ‘genuine’, ie, D intends to form a bailment, and forms the guilty mind subsequently. Consequently, if D has no intention of fulfilling the terms of the bailment at the time of the taking, then this will not ground a charge of larceny by a bailee. Rather, D could be charged with fraud. Examples of where a bailment will exist include situations where goods are: ◆

lent to another for that other’s benefit;

◆

pawned or pledged;

◆

delivered to another who is to keep them or deal with them for the benefit of the bailor;

◆

leased.

Physical possession v ownership 9.42 Where D obtains property as well as possession, the offence of larceny by a bailee will not occur: R v Ward (1938) 38 SR (NSW) 308. D could, however, be charged with fraudulent conversion (see below). The distinction between the passing of mere possession and the passing of ownership can be difficult when dealing with money and other fungibles. When dealing with money, for example, it will be a question of fact as to whether: ◆

a bailment has occurred, ie, possession has passed, but the true owner has retained property in those particular notes and coins; or

◆

transfer of ownership and possession has occurred, so that the original owner expects the equivalent value.

Ward demonstrates the difficulties in making this distinction between possession and ownership in cases of fungibles. D received a £50 cheque from V to use for a deposit on a property that V wished to buy. Inquiries revealed that D had used the money for his own purposes. As D had received the money with the consent of V, the situation did not fit the requirements of simple larceny. One of the possible charges against D was larceny by a bailee. If D had received the money innocently, and did not form the intention to misappropriate the money until later, then a subsequent fraudulent

misappropriation by him could amount to larceny, if possession rather than ownership had passed. It was held that, given the length of time between receipt of money and fulfilment of the contract, there was no bailment. Possession and property had passed to D.

Conversion or taking 9.43 For larceny as a bailee to be charged, it is essential that the bailee fraudulently take or convert the property. ‘Taking’ requires physical carrying away. [page 172] The legislation explicitly includes ‘conversion’ to avoid the requirement of establishing the ‘taking’ of someone else’s possession. Conversion occurs where D deals with goods in a manner inconsistent with the intention of the true owner, provided that D has the intention to: ◆

deny the owner’s right; or

◆

assert a right that is inconsistent with the owner’s right: Ilich.

Examples of conversion include: ◆

an unauthorised sale of the property: Davies;

◆

an unauthorised attempt to sell the property: Rogers v Arnott [1960] 2 QB 244; 2 All ER 417;

◆

an unauthorised pawning of the property: R v Henderson (1870) 11 Cox CC 593;

◆

a refusal to return the property: R v Wakeman (1912) 8 Cr App Rep 18.

The New South Wales legislation includes not only property originally bailed, but also property into or for which it has been converted or exchanged.

Fraudulently 9.44 ‘Fraudulently’ means ‘dishonestly’: R v Glenister [1980] 2 NSWLR 597. A belief in a legal claim of right will negate an intention to defraud: see 9.27. Under statute. there is no requirement that D intend permanently to deprive the owner of the goods.

Example of larceny by a bailee: Powell v R 9.45 Powell v R (1988) 36 A Crim R 1 provides an example of the

requirements that must be proven for a charge of larceny as a bailee. In that case, D took his sister’s car, using the keys that she had loaned him, drove the car to another State and sold it. It was held that in order to establish larceny as a bailee, the prosecution must establish: ◆

a bailment: did D’s sister give him the car keys, and had she intended to keep ownership in the car while D had possession? Also, D and his sister must have intended a genuine bailment at the time of handing over the keys, and D must have formed the fraudulent intention later;

◆

the terms of the bailment: the jury must determine the terms of the bailment in order to determine which specific acts amounted to conversion, and whether the accused had the fraudulent intent at the time of conversion. In other words, did D have his sister’s permission to drive the car interstate, to sell the car, etc?

◆

intent to defraud: D claimed he believed his sister owed him money and that therefore he was entitled to the car. It was held that if he honestly believed he had a legal claim of right to the car, then D had not acted fraudulently, and therefore, D could not be guilty of larceny.

The jury was unable to determine which acts amounted to conversion, and thus D was found not guilty of larceny as a bailee. [page 173]

FRAUD 9.46 In 2010, new provisions came into effect with the aim of modernising and simplifying existing fraud and forgery provisions in the Crimes Act 1900 (NSW). These reforms were aimed at removing obsolete and redundant provisions, many of which overlapped. They also created offences addressing identity crime. The provisions created a new broad and general fraud offence that replaced many prior offences, including those in ss 178A, 178BA, 179 and 180. The new offence of fraud under s 192E is: (1) A person who, by any deception, dishonestly: (a) obtains property belonging to another, or (b) obtains any financial advantage or causes any financial disadvantage, is guilty of fraud. (2) A person’s obtaining of property belonging to another may be dishonest even if the person is

willing to pay for the property. (3) A person may be convicted of the offence of fraud involving all or any part of a general deficiency of money or other property even though the deficiency is made up of any number of particular sums of money or items of other property that were obtained over a period of time. (4) A conviction for the offence of fraud is an alternative verdict to a charge for the offence of larceny, or any offence that includes larceny, and a conviction for the offence of larceny, or any offence that includes larceny, is an alternative verdict to a charge for the offence of fraud.

These reforms are too recent to be able to examine in detail their interpretation and application. However, some preliminary comments can be made. Elements The actus reus of the offence of fraud is: •

deception; and

•

that this deception caused an obtaining of property, financial advantage or disadvantage.

The mens rea of the offence of fraud is that: •

the actions of D were intentionally or recklessly deceptive; and

•

it was dishonest to cause that consequence. If D had a claim of right, then they will not be dishonest.

The prosecution is required to prove an additional mens rea requirement of an intention to permanently deprive if D has been charged with the prohibited consequence of obtaining property. At the time of the actus reus, D must have the necessary mens rea.

Each of these requirements will be considered in turn. [page 174]

Actus reus Deception 9.47 All forms of fraud in s 192E must be committed by D engaging in deception. Section 192B(1) defines the actus reus element of deception: (1) In this Part, deception means any deception, by words or other conduct, as to fact or as to law, including: (a) a deception as to the intentions of the person using the deception or any other person, or (b) conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.

9.48 This broad definition of deception incorporates earlier common law definitions. For example, at common law, exaggeration will not amount to a deception, and it will be a question of fact for the jury to determine the

distinction: R v John Bryan [1857] 169 ER 1002. In R v Freeman [1981] 2 NSWLR 686, D appealed against conviction for a range of offences including several charges under the now repealed s 179. While selling a franchise, D had falsely presented profits as actual profits earned by the franchise, when in fact they were based on assumptions regarding profits. Additionally, D promised franchisees they would earn that level of profit. Glass J stated: The submission put for the appellants was that a promise that a franchisee will earn not less than a stipulated amount per week depends for its performance on many factors outside the control of the promisor, such as the patronage of the motoring public, and that a promise which the promisor is unable to perform is not a promise within the meaning of the section … Promise is a term of art which has been elaborated in the law of contract. The basis of the decision in Greene (1949) 79 CLR 353 was that a promise cannot be a pretence because a pretence relates to the past or present and a promise relates to the future. But a contracted promise as to the future is not limited to the conduct of the promisor but may relate to the conduct of other persons or to a future state of affairs not dependent on human conduct … A vendor of a machine can be held liable on a promise that it will perform in a particular way … I see no reason why the term promise used as an element in the description of a statutory offence should not bear its established meaning in the law of contract. Accordingly, I am of the opinion that a promise, the fulfilment of which lies outside the power of the promisor, is within the statutory description. The evidence must, of course, establish that the promise was a wilfully false one when made. The evidence here that the appellants had compiled a document based upon mere speculation and were representing both that it showed the profits being made by existing franchisees and also the profits that would be made by intending franchisees was capable of supporting a conclusion that they were not only making a false promise as to the past which was to their knowledge false, but also a promise for the future which was wilfully false: at 60–1.

Accordingly, both defendants were found guilty of offences under the now repealed s 179. This kind of false promise would also be covered under s 192B. Accordingly, deception under s 192B will include deceptions as to the past, present and future. [page 175] 9.49 Conduct without words can amount to deception. For example, in R v Benli [1998] 2 VR 149, D was a driving instructor who continued to provide lessons and obtain fees, despite having had his driver’s licence suspended, and therefore his licence to instruct suspended. He was charged with obtaining property by deception. It was held that although there was no express representation that he was a licensed instructor, this was implied by his conduct. 9.50 Section 192B(1)(b) also extends deception to include machines. This would cover situations such as that in Kennison v Daire (1986) 64 ALR 17; [1986] HCA 4, where D used his bankcard without sufficient funds in his account. The deception was that he had the authority to use the card and was operating the account in accordance with the terms and conditions of use.

Obtained by deception: causation 9.51 The prosecution must prove that D ‘obtained by deception’, ie, that the deception caused the handing over or payment of the valuable thing. This builds on a common law requirement explored in Balcombe v De Simoni (1972) 126 CLR 576. Thus, if V is aware that D is trying to trick V into giving D money, but V gives D money anyway out of pity, this will not be a fraud offence. However, D could be charged with attempted fraud.

The consequences of the fraud 9.52 The prosecution must prove one of three consequences of the fraud: 1. obtaining property from another; 2. obtaining a financial advantage; or 3. causing a financial disadvantage. 9.53 ‘Obtaining’ is now broadly defined under s 192C as ownership, possession or control for D or another person. This means that the new fraud offence covers the territory from larceny by trick, where V hands over mere possession, to situations where D induces V to hand over more than possession. 9.54 Property is defined in s 4, and s 192C(3) defines property belonging to a person as where a person has possession, control, a proprietary right or an interest in the property. Balcombe v De Simoni is based on the old offence of obtaining by deception, but would also be covered by s 192E. In Balcombe v De Simoni, D was a door-to-door book seller. To improve sales, D pretended to be a student who had been selected to represent Australia overseas on a ‘goodwill’ tour. There was no misrepresentation as to the quality of the books, or the use to which the money would be put when paid over. It was held that D had an intent to defraud, as this required no more than proof of an intent to deprive another of property by deceit. There was no need to prove that D had intended to use the money for purposes different from those for which V understood D would use it. It was also irrelevant that the books would be delivered. Gibbs J stated: [page 176] Therefore, if a beggar obtains money by pretending to be blind, and with the intention that the person to whom the pretence is made should be induced by that pretence to give him alms, the offence is committed notwithstanding that the money is used exactly as the person who gave it intended that it should be used, for the relief of the beggar. Similarly, if a man, by pretending to

hold a certain position, or to possess certain assets, intentionally induces another to lend him money which he would not otherwise have lent, the former has an intent to defraud, notwithstanding that he intends to use the money for the very purpose for which he says he wants to borrow it: at 596.

D therefore obtained property as a result of a pretence she knew to be false. It was held that the prosecution had to establish that D made the false pretence with the intention of inducing another person to part with the property. 9.55 Victoria has a similar offence of ‘obtaining a financial advantage’: see 10.41. It has been held that the term ‘financial advantage’ should be given its plain meaning and should have the broadest scope possible: R v Vasic (2005) 11 VR 380. A financial advantage can be obtained even though there is no financial disadvantage to be suffered by V: R v Walsh (1990) 52 A Crim R 80. 9.56 Historically, one issue that has caused difficulty for the interpretation of financial advantage offences is where D attempts to evade a debt. It has been questioned whether this amounts to gaining a financial advantage for D or whether there is no advantage. Section 192D(2) (on causing a financial disadvantage) overcomes these difficulties. In cases where D seeks to evade a debt, the question of liability will now turn on the disadvantage to the creditor by dishonest failure to repay, rather than whether D accrued an advantage. Section 192D(2) will also cover situations where D receives no advantage, but aims solely to cause financial disadvantage to V.

Mens rea Intentionally or recklessly deceptive 9.57 Section 192B requires that the deception be intentional or reckless. An example of reckless deception would be where D thought the cheques against which D drew ‘might be worthless’. At this stage it is likely that the test of recklessness will be whether D recognised the possibility that the behaviour is deceptive: Stokes and Difford (1990) 51 A Crim R 25 at 40.

Dishonesty 9.58 Dishonesty is now defined under s 4B as ‘dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people’. This definition imports a subjective requirement (that D recognises he or she is being dishonest) and an objective element (the standards of ordinary people). This definition of dishonesty reflects the English test of dishonesty articulated in Ghosh and

rejects the test propounded by the High Court in Peters (discussed above at 9.32). 9.59 It is likely that the defence of claim of right will continue under s 192E. In relation to the now repealed offences, it was held that where D has a bona fide belief in a claim [page 177] of legal right, this will negative an intention to defraud: R v Kastratovic (1985) 42 SASR 59; 19 A Crim R 28. This is because an intention to defraud: … connotes the intention to produce a consequence that is in some sense detrimental to a lawful right, interest, opportunity or advantage of the person to be defrauded, and is an intention distinct from and additional to the intention to use the forbidden means: at 62–3 per King CJ.

As a consequence: … an intent to do no more than procure the payment of a debt which is presently due and payable to the accused, or which the accused believes to be presently due and payable by the alleged victim, is not an intent to defraud, and is not converted into an intent to defraud by the employment of dishonest means: at 65 per King CJ.

The issue is whether or not D believed D had a legal right to obtain the property, not whether there was a belief in a legal right to employ deception to get it. See also R v Sanders (1991) 57 SASR 102.

Intention to permanently deprive 9.60 If the prohibited consequence of the offence is the first limb, obtaining property (see 9.52 above), s 192C(2) requires an additional mens rea element of intention to permanently deprive: A person does not commit an offence under this Part by obtaining or intending to obtain property belonging to another unless the person intends to permanently deprive the other of the property.

This mirrors the common law requirement of mens rea for the offence of larceny. The meaning of ‘intention to permanently deprive’ is complicated by s 192C(4): A person obtaining property belonging to another without meaning the other permanently to lose the thing itself has, nevertheless, the intention of permanently depriving the other of it if the person’s intention is to treat the thing as his or her own to dispose of regardless of the other’s rights. A borrowing or lending of the property may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

This subsection appears to mirror the common law interpretation of s 118.

Temporal coincidence

9.61 The requirement that the deception is either intentional or reckless imports a requirement that the accused had the necessary mens rea at the time of the deception. This is also considered in DPP v Ray [1974] AC 370, which imports a requirement of temporal coincidence. 9.62 English cases demonstrate the minimal actus reus requirement of ‘deception’. The primary focus in evaluations of deception is upon the mens rea of the D. For example, in Ray, D had ordered a meal in a restaurant with the intention of borrowing money from one of his companions to pay for it. However, at the end of the meal he and his companions decided to run away from the restaurant without paying. D was [page 178] charged with dishonestly obtaining a pecuniary advantage by deception. D was not charged with obtaining property or services by deception presumably because the prosecution accepted that at the time the meal was obtained, there was no deception being practised by D. The House of Lords held that, in ordering the meal, D had, by his conduct, represented that he would pay for it. Although that was an honest representation at the time, by sitting at the table some time after making his decision not to pay, his conduct created the dishonest deception that he was an ordinary customer still intending to pay. Lord Morris held: By ordering his meal and by his conduct in assuming the role of an ordinary customer the respondent had shown that it was his intention to pay. By continuing in the same role and behaving just as before he was representing that his previous intention continued. That was a deception because his intention, unknown to the waiter had become quite otherwise. The dishonest cause of intention was not likely to produce the result that the waiter would be told of it. The essence of the deception was that the waiter should not know of it or be given any sort of clue that it (the change of intention) had come about. Had the waiter suspected that by a change of intention a secret exodus was being planned, it is obvious that he would have taken action to prevent its being achieved: at 386.

Lord MacDermott stated that the representation covered ‘the whole transaction up to and including payment and must therefore be covered … as continuing and still active at the time of the change of mind.’: at 382. In dissent, Lord Reid stated: So the respondent, after he changed his mind, must have done something intended to induce the waiter to believe that he still intended to pay before he left. Deception, to my mind, implies something positive. It is quite true that a man intending to deceive can build up a situation in which his silence is as eloquent as an express statement. But what did the accused do here to create such a situation? He merely sat still: at 379–80.

ROBBERY

9.63 The offence of robbery is an aggravated form of larceny, committed where D steals property from V by the use of force or threats of force: R v Lapier (1784) 168 ER 263; [1784] Eng R 69. The common law concept of robbery is imported into the statutory provisions relating to robbery and related offences (ss 94–98) and is considered below. Elements In addition to the elements of larceny, the prosecution must prove: •

the use or threat of violence (actus reus); and

•

an intention to extort (mens rea).

Actus reus 9.64 The actus reus for the offence of robbery is the application of force or threatened application of force against V, the person possessing or in custody of the property, to [page 179] effect the larcenous removal of the property. D must use force or threaten force, either prior to, or during, the taking.

Use or threat of violence 9.65 D must either apply violence or threaten violence against V, the person in possession or with custody of the property: R v McNamara [1965] VR 372.

Applying violence 9.66 Generally, D must have committed at least a common assault (see Chapter 7) to satisfy this requirement, but committing a common assault while attempting to take property will not necessarily amount to a robbery. The violence must have been applied in order to overcome the resistance of V to the taking away. Accidentally cutting V while trying to cut a string securing her basket to a cart, in order to steal the basket, will not amount to robbery: Edwards v Baugh (1843) 152 ER 962. D must have intended to use the violence to overcome V’s resistance.

Threatening violence 9.67 Any threat of bodily harm, whether express or implied, will be sufficient if it caused V to hand over the property to D: R v Taplin (1780) 2

East PC 712. This is provided that D acted with the necessary mens rea, ie, with an intention of inducing the handing over due to the threat. Threats of harm need not be aimed at V personally: R v Reane (1794) 168 ER 410.

Taking and carrying away 9.68 Robbery is an aggravated offence of larceny, thus the taking required for robbery is the same as the taking required for larceny: R v Lapier (1784) 168 ER 263; [1784] Eng R 69.

Possession and custody 9.69 It is not necessary for V to own the property. The offence of robbery can be committed against a victim who has possession or custody of the property, or where the property is under V’s control. Thus, robbery can be committed against a nightwatchperson who was custodian of the property stolen: Smith v Desmond [1965] AC 960. Robbery can also be committed against a person who was minding the premises, although not an employee, and who was forced to hand over the keys of the safe and withdraw money: R v Bellamy (unreported, NSWCCA, 15 February 1993).

Presence 9.70 To amount to robbery, the property taken must have been in V’s presence or on V’s person at the time the violence was applied or the threat made: ◆

Property will be on V’s person when the property is in V’s manual custody.

◆

Property will be in V’s presence when it is within V’s hearing and sight.

◆

The courts have also recognised constructive presence, where V is not necessarily within hearing and sight of the property, but the property is under V’s care and [page 180] protection. Smith v Desmond applied this broad conception of presence. The Vs, a nightwatchperson and another employee at a bakery, were overpowered, tied up and taken to a room by the Ds. The Ds then stole money from another room. The House of Lords held that V1 was constructively present, ie, the goods were ‘in his

immediate and personal care’. The nightwatchperson had the property under his immediate and personal care. ◆

The relevant time for determining the question of presence is when V was actually assaulted, rather than when the property was taken: Smith v Desmond. This principle is logical, as V may be removed from the presence of the property before the property is taken.

Mens rea 9.71 The mens rea for robbery is specified in Smith v Desmond. Elements The prosecution must prove two mens rea requirements for robbery: •

the same mens rea as for larceny; and

•

D’s intentional use of violence to extort property.

The same mens rea as for larceny 9.72 D lacked the mens rea for larceny due to an honest belief in claim of right (see 9.27), then D cannot be charged with robbery: R v Langham (1984) 36 SASR 48. In that case, D believed he had a right to a refund on property he had purchased, and threatened V with a gun he purchased from the store to obtain this money. His conviction of robbery was quashed due to the bona fide claim of right. See also R v Mazzara [2007] NSWCD 102.

D’s intentional use of violence to extort property 9.73 Intentional use of violence includes threats of violence to obtain property from V, or ease the taking of property from V, by overcoming V’s resistance. Thus, if D accidentally hurts V while taking property, D does not commit robbery: R v Gnosil (1824) 171 ER 1206. D must possess the intention to take property at the time of the use of violence or threats of violence. Thus, if D assaults V, and then later decides to take V’s property, D cannot be charged with robbery: R v Emery (1975) 11 SASR 169. Nor is it robbery where D threatens violence after committing larceny: R v Hanias (1976) 14 SASR 137.

Temporal coincidence of actus reus and mens rea 9.74 At the time of applying force, or threatening to apply force, D must possess the mens rea for robbery: Gnosil.

[page 181]

BURGLARY 9.75 The common law felony of burglary and related crimes has been provided for under statute: ss 109–113. Under common law, burglary occurred when D broke and entered into the dwelling-house of another at night with intent to commit a felony. It was not required that D actually succeed in committing the intended felony. The basic elements of the statutory offences of burglary and housebreaking will now be considered.

Actus reus Breaking and entering 9.76 Breaking and entering is a requirement under most of the legislation. To amount to entry for the purposes of the legislation, the entry must be an ‘effective and substantial entry’ by D. Any part of D’s body or equipment entering the building will be sufficient. This is so whether the entry occurs for the purpose of committing the intended crime or for the purpose of effecting entry: R v Welker [1962] VR 244. What amounts to breaking has been considered under common law: ◆

Opening a door or window, even if it is unlocked, will amount to breaking: R v Haines (1821) 168 All ER 892.

◆

Where a door or window is open, even if D must widen the opening to gain entry, this will not amount to breaking, unless D tampers with some latch, key or fastening device: R v Smith (1827) 168 ER 1232.

◆

D may commit the breaking once he or she has already entered the premises. For example, D may enter a building through an open window. However, if D then opens a closed inner door, that will be a breaking sufficient for the offence: R v King (1978) 19 SASR 118.

◆

The use of trickery or intimidation to gain entry may amount to constructive breaking: R v Boyle [1954] 2 QB 292. An example would be if D pretended to be a pizza delivery person.

Dwelling-house

9.77 A large part of the legislation applies only to cases where D enters a ‘dwelling-house’. ‘Dwelling-house’ is defined in s 4(1).

Mens rea 9.78 The mens rea for the majority of offences is the intention to commit larceny or an assault. It must be shown that D intended to commit the relevant offence at the time of entry: R v Rodley [1913] 3 KB 468. Mens rea may be inferred from the surrounding circumstances. For example, the accused’s unexplained presence in a building may provide strong evidence of the requisite intention: R v Wood (1911) 7 Cr App R 56. The defence of legal claim of right continues to operate where the requisite intention for an offence is intention to steal. [page 182] Legal Problem Zac went to pick up some old clothes that his friend Tyson was planning to give to charity. Tyson gave Zac a bag of clothes. Neither Tyson nor Zac realised at the time that Tyson had mistakenly given Zac a bag of clothes, including suits, that were meant to go to the dry cleaner. When Zac got home, he realised Tyson had made a mistake and thought he would just wait and see if Tyson noticed. In the meantime, Zac wore one of the suits to a party that night. Discuss Zac’s criminal liability, if any. Answer Introduction Zac could be charged with larceny under s 117 (NSW). The prosecution would have to prove all elements of the crime beyond a reasonable doubt: Woolmington v DPP [1935] AC 462. The elements of larceny are not defined under statute, but in Ilich v R (1987) 162 CLR 110; [1987] HCA 1, the High Court approved a definition of larceny found in the now repealed s 1(1) of the Larceny Act 1916 (UK): A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof. I will deal with each element in turn. Actus reus Taking and carrying away The actus reus of larceny requires that Zac took and carried away the property. It is clear from the facts that Zac took the bag of clothes home, satisfying the requirement of asportation. Any movement will be sufficient: R v Lapier (1784) 168 ER 263; [1784] Eng R 69. Property capable of being stolen The prosecution must prove that the property was capable of being stolen. The clothes were tangible and of value, and the prosecution would have no problem with this aspect.

Property which belonged to another The property must have belonged to another person. It is clear that Tyson was the owner of these clothes, and he was also in possession of the clothes. Taking without consent [Comment: This is the major issue of this question. A good answer would spend time considering the different authorities and their different results on the facts.] The property must be taken without the consent of the person in possession: Ilich. The difficulty for the prosecution in this case is that Tyson handed the property over to Zac with consent; he just made a mistake as to which property he was handing over. [Comment: This identifies why mistaken consent is an issue on the facts.] The authorities as to mistaken consent are divided. In R v Potisk (1973) 6 SASR 389, Bray CJ held that mistaken consent is still consent. He noted that the accused had not caused the owner to hand over the property through dishonesty, but had merely taken advantage of a mistake. [page 183] This same reasoning could be applied to Zac. He did not trick Tyson into handing over the wrong bag of clothes; he merely took advantage of this mistake. If Potisk was applied, then the prosecution would not be able to establish this requirement that the taking was without consent. However, in the case of Ilich, the High Court also considered the issue of mistaken consent and developed alternative principles. In that case, the High Court held that mistaken consent would still be consent unless the owner had made a fundamental mistake that negated consent. The High Court stated that one of these fundamental mistakes was as to the identity of the thing handed over. This would clearly apply to Tyson’s handing over of the wrong bag of clothes. Thus, according to Ilich, Tyson’s handing over of these clothes would have been without consent because of the fundamental mistake as to what he was handing over. It is uncertain which authority would be applied. While Ilich is a High Court decision, the case was decided in the code State of Western Australia, which does not require absence of consent. In contrast, Potisk is a decision based on the comparable offence in the common law State of South Australia, and the reasoning is more persuasive. Accordingly, if Ilich is applied, the prosecution would be able to establish a trespassory taking, whereas if Potisk is applied, this element would not be satisfied. [Comment: This paragraph explains the different values of the different authorities, and why there is uncertainty as to which would be applied.] It is uncertain whether or not the prosecution would be able to prove the actus reus of larceny, due to the lack of decisive authority on the issue of mistaken consent. If Potisk is applied, then Zac would not be guilty of larceny. If Ilich is applied then the prosecution would go on to establish mens rea. [Comment: This explains the implications of the application of different authorities.] Mens rea The prosecution must prove three elements: Ilich. Intention to permanently deprive The facts do not indicate that Zac intended to deprive Tyson permanently of the clothes, as he seems to be undecided. However, the facts do state that Zac wore one of the suits to a party. Under s 118, if D treats the property as his own, then this will equate with an intention to deprive permanently. Accordingly, the prosecution would be able to satisfy this element of the offence, at least in relation to the suit that Zac wore to the party: R v Foster (1967) 118 CLR 117; [1967] HCA 8. Without a claim of right

There is nothing on the facts to suggest that Zac believed that he was legally entitled to the clothes. Fraudulently Given that Zac knew that he was not entitled to the property and yet exercised ownership, this is dishonest behaviour that would satisfy the requirement of fraudulence: R v Love (1989) 17 NSWLR 608; 44 A Crim R 416. Actus reus and mens rea at the same time The prosecution must also prove that at the time of taking, Zac had the mens rea for larceny. [page 184] This would be a problem for the prosecution, because Zac was not aware that he was taking the wrong property until later. The prosecution would seek to apply the Riley principle (see R v Riley (1853) 169 ER 674; Eng R 23), which was developed to cover situations where there was an original trespassory taking, and D later formed a fraudulent intention. If Potisk is applied, then there was no original trespassory taking, as the property was handed over by Tyson with consent. Accordingly, the prosecution would not be able to satisfy the requirement that the actus reus and mens rea occur at the same time. However, if Ilich is applied, and Tyson’s consent is negated because it was due to a fundamental mistake, then Zac’s taking was an original trespassory taking. The prosecution would be able to apply the Riley principle and the requirement of temporal coincidence would be satisfied. Conclusion Whether or not Zac is guilty of larceny will depend on which authority is applied. If Potisk is applied, then Zac will be not guilty, as he has not fulfilled the actus reus requirement of a trespassory taking, nor the requirement of a temporal coincidence of the actus reus and mens rea. However, if Ilich is applied, then Zac would be guilty of larceny, as Tyson’s consent would be negated by the fundamental mistake, and the Riley principle would apply.

[page 185]

Chapter 10 Property Offences: Victoria and South Australia Objectives After reading this chapter you should be familiar with the following: ▶ the concept of theft ▶ the requirement that property belongs to another ▶ appropriation ▶ mens rea requirements for theft ▶ the offence of obtaining by deception ▶ robbery ▶ burglary

INTRODUCTION 10.1 In 1968 sweeping reforms were enacted in England to remove the existing myriad of common law and statutory property offences. In 1973, Victoria enacted the Crimes (Theft) Act largely based on the English reforms. South Australia introduced new theft offences in 2002. The South Australian provisions were incorporated in the body of the Criminal Law Consolidation Act 1935 as Pt 5: ‘Offences of dishonesty’, and were intended to do away with the technicalities of the old law of larceny, discussed in R v Dawson and James (1976) 64 Cr App R 170. While these statutory reforms are less complex than the common law property offences discussed in Chapter 9, some complications still arise. Young CJ commented in R v Roffel [1985] VR 511: The essential reason why things have not worked out as some evidently hoped they would is that the Act is couched in vague and imprecise language and it is left to the courts to work out some consistent interpretation … [I]t is important to avoid reasoning from the proposition that A is plainly a thief according to common sense to the conclusion that he must therefore be guilty of the theft charged. If the criminal law is to be couched in vague and imprecise language and interpreted according to common sense without adherence to legal principle great uncertainty and injustice might result: at 513.

[page 186] The Model Criminal Code Officers Committee has recommended that

Australian jurisdictions adopt a version of the law of theft based on the Theft Act 1968 (UK) model. This chapter considers the basic offence of theft, followed by the offences of obtaining by deception, robbery and burglary. The offence of theft is important because it is a fundamental component of the offences of obtaining by deception and robbery. Part 5 of the South Australian Act is modelled on the Victorian legislation, although it incorporates some significant differences. The focus of this chapter is on the Victorian provisions, with significant differences in the South Australian legislation noted.

THEFT 10.2 A person who steals is guilty of theft: s 72(2) (Vic). Under s 72(1): A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

In South Australia, under s 134(1): A person is guilty of theft if the person deals with the property: (a) dishonestly; and (b) without the owner’s consent; and (c) intending (i) to deprive the owner permanently of the property; or (ii) to make a serious encroachment of the owner’s proprietary rights.

Elements To establish the crime of theft, the prosecution must prove the following beyond a reasonable doubt (s 72(1) (Vic); s 134(1) (SA)): Actus reus •

The object of the alleged theft was ‘property belonging to another’.

•

D ‘appropriated’ the property (Vic) or ‘dealt with’ the property (SA).

•

D appropriated the property ‘without the person’s consent’ (SA).

Mens rea •

D appropriated the property with the ‘intention of permanently depriving the other of it’ (Vic/SA) or with the ‘intention of making a serious encroachment on the owner’s proprietary rights’ (SA).

•

D appropriated the property ‘dishonestly’ (Vic/SA).

Each of these requirements will be considered in turn. [page 187]

‘Property belonging to another’ Property 10.3 The prosecution must prove that D stole ‘property’. ‘Property’ is a loose concept that has been broadly interpreted by the courts. The definition of property under statute is wider than at common law, and includes money, and personal and real property, as well as intangible property, eg, a debt, copyright or trademark: s 71(1) (Vic); s 130 (SA). Section 71(1) (Vic) defines property as including: … money, and all other property real or personal, including things in action and other intangible property.

The majority of property is covered by this broad definition. 10.4 Situations that might not be included in the broad definition of ‘property’ include the following: ◆

Electricity In Victoria it is unclear whether or not electricity could be regarded as property. Given the broad definition of property in s 71(1) (Vic), there is no reason why electricity could not be regarded as ‘intangible’ property, which could be appropriated by flicking on a switch. Electricity is explicitly regarded as property in s 130 (SA).

◆

Copies of confidential information In Oxford v Moss (1978) 68 Cr App R 183, D was an undergraduate who dishonestly obtained a copy of an examination to be held at his university. After reading its contents, he returned the paper to where he had obtained it. D was charged with theft of confidential information by the university. It was held that the confidential information obtained by D did not fall within the definition of ‘intangible’ property: s 71(1) (Vic). D was therefore found not guilty.

◆

Unauthorised phone calls The making of unauthorised phone calls cannot amount to theft because there is no dishonest ‘appropriation’ of property belonging to the owner. The phone calls do not exist prior to being made, hence D may have an obligation to the owner to pay for the phone call, but does not deprive V of property: Akbulut v Grimshaw [1998] 3 VR 756.

Additionally, s 73(6) (Vic) and s 135 (SA) specify the limited ways in which

land can be stolen, and an approach to wild animals is detailed in s 73(7) (Vic) and s 130 (SA).

Belonging to another 10.5 The property must belong to another in order to be capable of being stolen: s 72(1) (Vic); s 134 (SA). ‘Belonging to another’ is defined under s 71(2) (Vic): … property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest…

[page 188] Thus, in s 71(2) (Vic) the definition of belonging to another is wide, encompassing: ◆

possession of the property;

◆

control of the property; or

◆

proprietary right or interest in the property.

In South Australia, s 130 defines ‘owner of property’ consistently, but in more detail. If property does not belong to another in any of these ways, it cannot be stolen. The concepts of control and possession are discussed at 9.5. 10.6 A proprietary right or interest in property is a question of property law. Proprietary interests include ownership, equitable interests and legal interests. Property that is the subject of a trust can be stolen from both the beneficiary of the trust (equitable interest) and the trustee (legal interest): R v Bonner [1970] 2 All ER 97. The wide definition of ‘belonging to another’ means that D may steal from several people with one act, eg, from a person in possession of the property and the owner of the property. Thus, where V1 lends V2 a lamp and D steals the lamp, D has stolen from the owner, V1, and the person in possession, V2. D cannot steal property over which D personally has ownership, possession or control at the time of appropriation, as the property does not ‘belong to another’. In R v Greenberg [1972] Crim LR 331, D was charged with theft from a petrol station. D had filled his tank and entered the cashier’s office with the intention of paying for the petrol. However, the cashier was busy serving another customer and D decided not to pay for the petrol. D drove off without

paying. It was held D could not be guilty of theft. At the time of the appropriation, D was not acting dishonestly as he had intended to pay for the petrol. When D later dishonestly left without paying, the petrol no longer belonged to the petrol station owners as D had full proprietary interest in the petrol along with possession and control of it. This gap in law only applies to fungibles (interchangeable items), such as money, bread, sugar and petrol.

Abandonment 10.7 As with the common law, property that has been abandoned — in the sense that the owner has intentionally forgone rights of ownership in the property — cannot be stolen: Hibbert v McKiernan [1948] 2 KB 142. The legislation specifies that in order for property to be capable of being stolen, it must ‘belong’ to another: s 72(1) (Vic); s 130 (SA). The concept of abandonment is interpreted strictly. For example, in Williams v Phillips (1957) 41 Cr App R 5, D was convicted of theft of rubbish that had been left out for collection. D argued that the property had been abandoned by V and therefore could not be stolen. This argument was rejected by the Court on the grounds that the property had been left out for the purpose of collection by the garbage collection company. V retained property in the garbage until it was collected; the property then passed to the collection company. Property may belong to another without that person being aware of its existence: Kennison v Daire (1986) 160 CLR 129. [page 189]

Special situations 10.8 The legislation deals with special cases which otherwise would not be covered by the expression ‘property belonging to another’. In South Australia, these special cases are incorporated under the broad definition of ‘owner of property’ in s 130. In contrast, Victoria has created special subsections to cover these situations. 10.9 Purpose trusts Ordinary cases of appropriation of trust property are covered by the definition of ‘belonging to another’: s 71(2) (Vic); s 130 (SA). Thus, where V is a beneficiary under a trust, if the trust money is regarded as belonging to V, V has an equitable proprietary interest. However, there are cases where there may be no ascertainable beneficiary. This commonly arises in ‘purpose trusts’, where money is held in trust for a specific purpose, whether charitable or private. Thus, money may be stolen from the trustee,

but if D is the trustee, D may argue that the property belongs to no one. This situation is covered by s 73(8) (Vic) and s 130 (SA), which treat the property as if it belonged to the person who is entitled to enforce the trust. An intention to defeat a trust is regarded as an intention to deprive a beneficiary of his or her property. 10.10 Fiduciary ownership A person may have received money or other property under an obligation — either to the person from whom it is received or to some other person — to deal with that property in a particular way. The recipient may obtain legal or equitable interest in the property as well as possession and control, yet hold it subject to a fiduciary obligation to deal with it or its proceeds in a particular way. If the recipient deals with the property inconsistently with that obligation, but for the specific legislation, he or she would not commit theft as the property does not ‘belong to another’. This situation is covered by s 130 (SA), which defines ‘owner’, and s 73(9) (Vic), which is as follows: Where a person receives property from another or on account of another, and is under an obligation to the other to retain and deal with that property, or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to another.

Under these sections, the courts are required to ascertain whether D has a legal obligation: R v Meech [1974] QB 549. The obligation must be a legal obligation with regard to that specific property or its proceeds: R v Hall [1972] 2 All ER 1009. It must be established that the property is entrusted to D on terms which create a fiduciary relationship: Mumford v R (1989) 95 FLR 358. There may be some difficulties in determining whether a person who receives property is under an obligation to retain and deal with it in a particular way: Hall. 10.11 In Hall, D was a travel agent who received money from clients as deposits and payments for trips to America. The funds were paid into D’s firm’s general account. The trips did not eventuate, but the money was not refunded. D was convicted of theft in respect of the money received. On appeal, D’s convictions for theft were quashed. D was under a contractual obligation, but this obligation did not relate to dealing with the specific money or its proceeds in a particular way. The obligation had been of a general nature to provide tickets and documents. There was no specific obligation on D to use the money or its proceeds in a particular way. The Court of Appeal considered that a specific obligation could have arisen in this context if the clients had imposed on D an instruction to use the money or its proceeds on the purchase of an airline ticket.

[page 190] In Meech, V obtained a cheque for £1450 from a finance company by fraud. D knew nothing of the fraud and agreed to cash the cheque for Vand to keep £40 which V owed him. D deposited the cheque into his own account so he could withdraw the cash once the cheque had cleared. D learned of the fraud after he had deposited the cheque. Two days later, D withdrew £1410. D then arranged with P and J to stage a robbery, whereby P and J would take the money from D, leaving him the apparent victim. Thus D would not have to repay V the money. The robbery went ahead, and was reported to the police, who then discovered the true facts. Apart from s 73(9) (Vic), D could not have been convicted of theft from the finance company, because he had not stolen the original cheque and, at the time of appropriating the cheque by paying it into his account, D was unaware that it had been acquired dishonestly. Additionally, apart from s 73(9) (Vic), D could not be convicted of theft from V, as V had never gained possession or control of the money, and upon receiving it from the bank, D had obtained the full proprietary interest. D, P and J were charged and convicted of theft on the basis that the proceeds of the cheque were to be treated as ‘belonging to’ V under s 73(9). D, P and J appealed on the grounds that D was not under a legal obligation (s 73(9) (Vic)) to V to retain and deal with the cheque or its proceeds in a particular way since V, having obtained the cheque by fraud, would have been unable to enforce the performance of that obligation in a civil action. It was held that the matter had to be regarded from D’s point of view, not V. At the time when D had obtained the cheque, he had been ignorant of the fraud, and had assumed an ‘obligation’ to V which, on the facts then known to him, he remained obliged to fulfil. The section looked at the time of the creation of his obligation rather than the time of his performance, and accordingly his obligation did not change when D found out about the fraud. Thus, since D had received the cheque from V under the initial obligation to deal with it in accordance with V’s instructions, for the purposes of the law of theft the cheque and its proceeds were deemed to be V’s property. The convictions were upheld.

‘Appropriated’ or ‘dealt with’ the property’ 10.12 The statutory concept of theft replaces the common law requirement of ‘taking and carrying away’ (asportation) with ‘appropriation’ in Victoria, or

‘dealing with property’ in South Australia. The concept of ‘appropriation’ has raised some issues of interpretation. The South Australian approach incorporates and extends the concept of appropriation in ‘deals with’. The Victorian approach is detailed below, with differences in the South Australian approach highlighted. Student tip The definition of ‘appropriates’ in s 73(4) (Vic) covers all ordinary cases of theft, but still gives rise to issues of interpretation in more complex cases.

[page 191]

Appropriation (Vic) 10.13 Section 72 (Vic) requires that D appropriates the property. This means that the focus is on the end result — the deprivation of property — rather than how D comes by the property. Despite the apparent clarity of the concept of appropriation, some differences and difficulties have arisen. Section 73(4) (Vic) states: Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

Under this subsection, D need not have assumed all the rights of an owner. Stein v Henshall [1976] VR 612 defines the assumption of the rights of the owner, and thus appropriation, as occurring when a person takes ‘on one’s self the right to do something which the owner has the right to do by virtue of his ownership’: at 615. This would include situations where D: ◆

takes property belonging to another;

◆

uses property belonging to another;

◆

pledges or sells the property;

◆

offers to sell property belonging to another;

◆

destroys or damages the property;

◆

retains the property and refuses to return it; or

◆

lends property belonging to another.

The definition of appropriation is very broad, with the consequence that virtually all cases involving deception can be prosecuted as theft: DPP v Gomez [1993] AC 442. Thus the offence of theft covers the old common law

offences of larceny, larceny by a bailee, embezzlement and fraudulent conversion. There is no reason why a series of acts in relation to a particular item of property cannot each constitute an appropriation. Thus, if D takes property and later destroys it, D has committed two acts of appropriation in respect of that property. Section 73(4) (Vic) defines appropriation as including situations where D has received property without stealing it and later assumes ‘a right to it by keeping or dealing with it as owner’. For example, in R v Morris [1984] AC 320, D removed items from shelves in a store and attached price labels from cheaper articles over the correct price labels. D was convicted of theft on the basis that the act of changing the labels amounted to appropriation. The House of Lords confirmed the conviction, holding that the substitution of a lesser price on goods for one showing a greater price amounted to a dishonest appropriation for the purposes of the Theft Act 1968 (UK). The price switching adversely interfered with or usurped the right of the owner of the goods to ensure that they were sold and paid for at the proper prices. If D had then paid the lesser amount for the goods at the checkout, D could also have been charged with a further offence of obtaining by deception: see 10.39. [page 192]

Appropriation of stolen property (Vic) 10.14 In Stein v Henshall [1976] VR 612, D drove a car he knew to have been stolen. It was unclear whether the thief had given D the car or merely loaned it to him. D argued he had merely borrowed the car, so he had not assumed all of the rights of ownership. This argument was rejected. To prove an appropriation, the prosecution is not required to establish that D had intended to exclude all others. Rather, there will be an appropriation if D has acted in relation to the property in a way in which the owner would have the right to act. By driving the car, D had exercised one of the rights of ownership, and hence had appropriated the car. It has been held that if D accepts a ride in a car that D knows to be stolen, this will amount to theft. Travelling in a car amounts to a usurpation of the owner’s rights, even if D remained in the rear seat of the car throughout: W (a child) v Woodrow [1988] VR 358.

Mistaken consent and appropriation (Vic)

10.15 Mistaken consent cases have generated some difficulties at common law: see 9.15. In particular, one difficulty that arises is where V has mistakenly given consent to D taking the property. At common law, where D only later becomes aware of the mistake and then dishonestly decides to appropriate the property, D cannot be guilty of larceny at common law, as there was no mens rea at the time of taking: R v Potisk (1973) 6 SASR 389. Later, when mens rea was formed, D was already in possession of the property. The legislative reforms in Victoria overcome many of these problems. Section 73(10) (Vic) specifies: Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.

Thus, where D obtains property by the mistake of another and is under an obligation to make restoration, the property is deemed, to the extent of the obligation, to belong to the person entitled to restoration. The crucial issue then becomes whether D was acting dishonestly at the time of appropriation. For example, in R v Gilks [1972] 3 All ER 280, D was overpaid money by V, a bookmaker, and decided to keep the money. D was aware of V’s mistake, but did nothing. It was held that, at the time of payment, the property belonged to the bookmaker. D had dishonestly appropriated the money, as he had been aware of the mistake at the time of the taking. If D had not become aware of the mistaken overpayment until later, a dishonest intention not to repay V would not have rendered him guilty of theft. The person must be under a legal obligation to restore the property or proceeds; a moral obligation is insufficient: Gilks. There is no requirement that the property be physically transferred. Thus, where D is overpaid via a direct debit system, and D discovers the overpayment and does nothing [page 193] about it, D can be charged with theft: Attorney-General’s Reference (No 1 of 1983) [1984] 3 All ER 369. In that case, proof that D had intended not to make restoration was notionally to be regarded as evidence of an intention to deprive V, her employer, of the property which notionally belonged to him. 10.16 Many other types of mistakes are covered by the legislation independently of s 73(10) (Vic), such as where the mistake was induced by a deception by D or an accomplice: s 81 (Vic).

Generally, where the owner actually consents to the appropriation there will be no dishonesty, provided the owner had full knowledge of the facts. No matter how dishonest D’s intention, D will not commit an appropriation where D does no more than is authorised by the owner. Where consent has been obtained as a consequence of D’s deception, the consent will be vitiated: R v Baruday [1984] VR 685.

Consent and appropriation Victoria 10.17 The relevance of consent to the issue of appropriation has been contentious and there has been a divergence of opinion between English and Victorian courts. 10.18 The current approach in Victoria is that there will be no appropriation where the owner has expressly or impliedly consented to the taking, but that consent must be given with full knowledge of the facts: Baruday. In Baruday, D, an insurance broker, sent out false accounts to his clients for extra premiums. D was convicted of theft of the cheques paid to him in payment of those accounts. It was held that the cheques had been paid in response to false accounts issued by D. Thus, the consent of the owner was not valid, as it was obtained by fraud. In Roffel v R [1985] VR 511, D was convicted of stealing property belonging to a company of which he and his wife were the sole shareholders and directors. D was the sole day-to-day manager of the business. D drew cheques on the company’s account with the intent to defraud the company’s creditors, and used the proceeds for his own purposes. D’s appeal was successful. It was held that ‘by reason of its very acquiescence in the drawing of the cheque on its funds the company was not acting so that it could be said the applicant was adversely interfering with or usurping some right of ownership possessed by it’: at 523. Consequently, D had not appropriated the cheques within the meaning of the Crimes Act 1958 (Vic).

England 10.19 In England, the House of Lords has narrowly restricted the effect of consent on the scope of the offence. Any action beyond those which D was authorised to perform may constitute an appropriation. Additionally, any deception on the part of D to induce V’s consent may be sufficient to vitiate consent. In the case of R v Gomez [1993] AC 442, it was held that the issue of

consent is more appropriately considered in the context of whether D has acted dishonestly, rather than in the context of appropriation. In Gomez, D was an assistant manager of an electrical goods store. D was approached by an acquaintance who asked to be [page 194] supplied with electrical goods in exchange for two stolen cheques. D knew that these cheques were worthless, but obtained the approval of the manager of the store by advising him that the cheques were ‘as good as cash’. The House of Lords held that this was an appropriation, despite the express or implied authorisation by the owner. D had appropriated the property within the meaning of the legislation, and he had induced the owner to hand over the property through fraud. The House of Lords held that it was not necessary for the prosecution to prove that the taking had been without the consent of the owner to amount to appropriation. In Gomez, Lord Brown-Wilkinson expressed his disapproval of Roffel: Whether or not those controlling the company consented or purported to consent to the abstraction of the company’s property by the accused, he will have appropriated the property of the company. The question will be whether the other necessary elements are present, viz. was such appropriation dishonest and was it done with the intention of permanently depriving the company of such property?: Gomez at 486.

Under Gomez, virtually all cases of obtaining by deception could be prosecuted as theft. See also R v Hinks [2001] 2 AC 241. The Model Criminal Code Officers Committee has rejected the approach taken in Gomez and recommended the retention of the distinction between theft and obtaining by deception. Appropriation should be confined to situations where the person to whom the property belongs does not consent to D’s assumption of rights to ownership, possession or control.

‘Deals with’ property (SA) 10.20 In South Australia, s 130 defines ‘deal’ as follows: … a person deals with property if the person — (a) takes, obtains or receives the property; or (b) retains the property; or (c) converts or disposes of the property; or (d) deals with the property in any other way.

This definition of ‘deal’ does not contain the type of limitation envisaged by Morris: see 10.13.

Section 132(3) provides that a person who knows that another’s consent was obtained by dishonest deception is taken to act without consent. This means that there is substantial overlap between the offences of theft and deception: s 139.

Without consent (SA) 10.21 Section 132 (SA) defines consent of the owner as follows: (1) A reference to the consent of the owner of property extends to — (a) the implied consent of the owner (or owners); or (b) the actual or implied consent of a person who has actual or implied authority to consent on behalf of the owner (or owners).

[page 195] (2) A person is taken to have the implied consent of another if the person honestly believes, from the words or conduct of the other, that he or she has the other’s consent. (3) However, a person who knows that another’s consent was obtained by dishonest deception is taken to act without consent.

This reflects the common law approach to consent. Where D obtained consent by deception, the consent will be vitiated: s 132(3). Section 132(2) could simply reflect the requirement that D acted dishonestly. Where D believes V has consented, D will not be acting dishonestly. 10.22 The South Australian Act does not include rules about mistake and consent in the offence of theft, where V mistakenly consents to D ‘dealing with’ property. It is essential that D does not induce the mistaken consent by trickery (which would be covered by s 132(3)). Examples of mistaken consent would include where D pays for a purchase and V gives D too much change. In this situation, D may know V is making a mistake (unilateral mistake) or D may also be unaware of the mistake until later (mutual mistake). Where there is a mutual mistake, the handing over will not only be with consent, D will also lack mens rea for theft. 10.23 In the absence of statutory provisions, the common law rules would apply. These rules are considered in the previous chapter at 9.17. In summary, mistaken consent is still consent, thus the prosecution will not be able to prove absence of consent: Potisk; Ilich v R (1987) 162 CLR 110. However, the High Court in Ilich held that if a mistake was fundamental, then consent will be vitiated (said not to exist). Fundamental mistakes which negate consent are: ◆

mistake as to the identity of the person;

◆

mistake as to the identity of the thing that has been handed over;

and ◆

where an excess quantity of goods is delivered (ownership of the excess does not pass to the owner).

The High Court in Ilich was clear that fundamental mistake would not apply to cases involving money. It is a shame that the South Australian statute did not follow the Victorian approach and clarify the law with regard to mistaken consent.

Mens rea 10.24 The broad definition of ‘appropriation’ and ‘deals with’ means that there is a heavy focus on D’s mens rea, particularly dishonesty, in determining culpability. The mens rea consists of two aspects: 1. intention to deprive permanently; and 2. dishonesty.

‘Intention of permanently depriving’ (Vic/SA) and ‘intention of making a serious encroachment on the owner’s proprietary rights’ (SA) 10.25 To establish a charge of theft, the prosecution must prove that D had the intention to deprive the owner of the property at the time of taking: R v Dardovska (2003) 6 VR 628. Thus, an intention to deprive the owner of property only temporarily (eg, borrowing) will be insufficient, as will a postponement of a decision of what to [page 196] do with the property (but see s 134(2) (SA) and s 73(12) (Vic), below). The intention permanently to deprive is a common law concept: see 9.21. 10.26 South Australia has supplemented this mens rea requirement with an alternative head of intending to ‘make a serious encroachment on the owner’s proprietary rights’: s 134(1)(c)(ii). This head of mens rea is covered in Victoria under a broad interpretation of intention to deprive permanently. 10.27 In Sharp v McCormick [1986] VR 869, D took a car coil from his employer dishonestly and without his permission. D stated he had intended to try fitting it to his car. If the coil did not fit, he would have returned it to the owner. D was charged with theft and the magistrate held that as there was nothing more than a conditional intention, there was no case to answer. On

appeal, Murray J held that it was necessary to focus upon the intention of D at the time he appropriated the coil: The evidence establishes that his intention at that time was to take the coil and see whether it fitted his motor car in which case to retain it and otherwise to return it to his employer. To say that his intention to return it to his employer if it did not fit his motor car was an intention to have regard to the rights of his employer is in my opinion little short of an abuse of language. When the respondent took the coil he was quite clearly treating the coil as his own to dispose of as he saw fit and he was paying no regard to the rights of the true owner. His stated intention of returning if it did not fit his car was simply a matter of choice on his part which he may or may not have carried out when the time came. The rights of his employer were completely ignored at the time of the appropriation: at 873.

Consequently, where D forms an intention permanently to deprive V of V’s property, the fact that D leaves open the possibility of deciding to return the property later will be sufficient for the prosecution to establish an intention to deprive permanently.

Substantial deprivation of value 10.28 An intention to deprive permanently will be found where D intends to return property to the owner substantially deprived of value: see R v Duru [1973] 3 All ER 715. Additionally, the intention relates to the actual property, not the equivalent property. Thus, if D borrows money and intends to return an equivalent amount, D will intend to deprive V permanently of the money. This is explicitly covered under s 134(2)(b) (SA). 10.29 Where D intends to treat the property as D’s own, D may be treated as having an intention to deprive permanently: s 73(12) (Vic); s 134(2)(a) (SA). Section 73(12) has been interpreted narrowly: R v Warner (1970) 55 Cr App 93. In that case, D took a box of tools belonging to another. He claimed that he had intended to return them in an hour or so. At first instance, the trial judge suggested to the jury that an intention to deprive for a limited but indefinite period of time would satisfy s 73(12) and justify a conviction for theft. D successfully appealed to the Court of Appeal against his conviction. Lord Justice Edmund-Davies stated: There is no statutory definition of the words ‘intention of permanently depriving’, but s 73(12) seeks to clarify their meaning in certain respects. Its object is in no wise to cut down the definition of ‘theft’ contained in s 72. It is always dangerous to paraphrase a statutory enactment, but its apparent aim is to prevent specious pleas of a kind which have succeeded in the past by providing, in effect, that it is no excuse for the accused person to plead absence of the necessary intention if it is clear that he appropriated another’s [page 197] property intending to treat it as his own, regardless of the owner’s rights. Section 73(12) thus gives illustrations, as it were, of what can amount to the dishonest intention demanded by s 72(1). But it is a misconception to interpret it as watering down s 72: at 96–7.

In Sharp v McCormick [1986] VR 869, it was held that, as well as amounting to an intention permanently to deprive V of his property, D’s taking of the coil would fall within s 73(12) (Vic) (s 134(2)(a) (SA)). Sections 73(12) (Vic) and 134(2)(b) (SA) cover situations where D takes property intending to return it to V only after the property is substantially deprived of value.

Conditional return 10.30 Section 73(13) (Vic) provides: … where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights.

Section 134(2)(b) (SA) provides that a person intends to make a serious encroachment on an owner’s proprietary rights if the person intends: (b) to deal with the property in a way that creates a substantial risk (of which the person is aware) — (i) that the owner will not get it back; or (ii) that, when the owner gets it back, its value will be substantially impaired.

These subsections cover the situation where D uses V’s property as security for a loan. D may argue that D’s intention was to discharge the debt, and thus D lacked the intention to deprive permanently. However, the focus of this section is on the possibility that D may be unable to perform the condition of return, rather than D’s intention. Consequently, if there is a possibility of nonperformance, this section is satisfied.

Joyriding and the intention to deprive permanently 10.31 The difficulty with joyriding is that D lacks the intention to deprive V permanently of the car, as D intends to abandon the car or return it to V. Joyriding is covered by statute. As stated in 10.14, in Woodrow, it was held that D could be convicted of theft for riding in a car he knew to be stolen. Even though D remained as a passenger for the entire journey, it was held that this was appropriation, as travelling in another’s car without the owner’s consent amounts to a use of the car for one of its ordinary purposes and involves an assumption and usurpation of one of the owner’s rights. In terms of establishing mens rea, the prosecution can rely on s 73(13) (Vic) and s 134(2)(a) (SA), as D has used the property as D’s own. Alternatively, s 73(14) (Vic) states that proof that D took

or used a car or aircraft without the consent of the owner or person in lawful possession is conclusive evidence of an intention to deprive permanently.

Fungibles 10.32 As discussed at 9.25, the concept of fungibles (interchangeable items) is relevant to the establishment of an intention to deprive permanently. [page 198] In relation to mens rea, if D borrows $20 from V, with the intention of repaying V later in the week the equivalent of $20 in different notes, the law would characterise this as an intention permanently to deprive V of that specific $20 note. The distinction has little to do with the subjective blameworthiness of D. 10.33 In South Australia, D may evade criminal responsibility relating to the non-consensual ‘borrowing’ of fungibles due to an absence of any dishonesty in the taking. That is, where D honestly and reasonably intends to return the equivalent value of the money, D may not be acting dishonestly. This would depend on the meaning of ‘dishonestly’, discussed below. Alternatively, D may satisfy s 73(2)(b) (Vic), where D may believe that the owner would consent to the appropriation if the owner knew what D was doing.

‘Dishonestly’ 10.34 The appropriation must be dishonest at the time at which it occurs. Elements The legislation specifies that a person’s appropriation of property is not dishonest where: •

D believes in a bona fide claim of right: s 73(2)(a) (Vic); s 131(5) (SA). This belief need not be reasonable, but reasonableness will serve an evidentiary purpose: R v Salvo [1980] VR 401. This is a common law concept that is analysed in detail at 9.27.

•

D believes that he or she would have the consent of the owner for the appropriation, if the owner knew what D was doing: s 73(2)(b) (Vic); s 132(2) (SA).

•

D believes that the owner cannot be found by taking reasonable steps: s 73(2)(c) (Vic); s 131(4) (SA).

10.35 The requirement of dishonesty has caused many problems of interpretation. The English approach to ‘dishonesty’ or ‘fraudulence’ is discussed in detail at 9.32. The English approach is that cases covered by the equivalent of s 73(2) (Vic) require that the meaning of the word ‘dishonesty’ is to be determined by the jury expressing the moral standards of the ordinary person: R v Feely [1973] 1 All ER 341. In R v Ghosh [1982] 1 QB 1053, it was

held that D must be shown personally to have realised that his or her conduct was, by those standards, dishonest. 10.36 South Australia has adopted the English approach, defining D’s conduct as dishonest in s 131(1) (SA) if D ‘acts dishonestly according to the standards of ordinary people and knows that he or she is so acting’. This is a question of fact for the jury. Section 131 (SA) contains four defences or exceptions that qualify the basic definition of dishonesty: ◆

Claim of right conduct (s 131(5)) Conduct is not dishonest if D honestly but mistakenly believes that D has a legal or equitable right to act that way.

◆

Claim of right to property (s 131(6)) If D honestly believes that D has a legal or equitable right to property then D’s assertion will not be dishonest. [page 199]

◆

Finder’s exemption (s 131(4)) Where D finds property, D will not be dishonest if D acts in the belief that V cannot be found by taking reasonable steps and there is no legal or equitable obligation on D to return or give up the property.

◆

Honest acquisition of property (s 134(4)) Where D acquires property in the honest but mistaken belief that D acquired good title, D cannot be guilty of theft as a consequence of any subsequent dealing with the property. Student tip

Refer to common law cases of claim of right to understand the requirement of dishonesty: see 9.27.

10.37 In Victoria, it has been held that Feely and Ghosh do not represent the law: R v Salvo [1980] VR 401; R v Brow [1981] VR 783; R v Bonollo [1981] VR 633. These cases held that the word ‘dishonesty’ possesses no meaning or scope beyond the cases referred to in s 73(2): I am respectfully of the opinion that the question was not whether a juror needed the help of a judge to tell him what amounts to dishonesty, but whether a juror should be given some assistance as to what was the necessary element in the new criminal offence which the Crown had to prove and which was imported by the word ‘dishonestly’ in the context in which it was found in the statute. I think that no juror would be in a position intuitively to know the answer to that question. The proposition, that every juror knows what dishonesty is, is in my opinion too imprecise to be true or false, and it obscures two truths, first that what matters is a point of

statutory construction and secondly that jurors, like judges and magistrates and other people, differ very markedly in their views as to whether particular conduct in particular circumstances is dishonest or is conduct to which moral obloquy attaches: Salvo at 427–8 per Fullagar J.

10.38 It has been suggested that the authority of the Victorian cases may be uncertain in light of the High Court decision in Peters v R (1998) 192 CLR 493. This case is discussed at 9.34. In summary, it concerned dishonesty in the statutory offence of conspiracy to defraud. It was held that in determining dishonesty, the Feely/ Ghosh approach should be followed. According to Peters, the court is not obliged to direct the jury regarding the meaning of dishonesty in other than exceptional cases. However, in Peters, their Honours were content to distinguish the Victorian trilogy of cases, holding that they should be confined in their application to theft legislation. Accordingly, the Victorian authorities are likely to continue to apply to theft offences in Victoria. However, there is at least one good reason for going beyond the Victorian trilogy of cases — that of fungibles. There is no good reason why D should be guilty of theft if D ‘borrows’ a fungible without V’s permission, with the intention of repaying the equivalent value of the property, while if D intended to return the exact same notes, D would be acquitted. [page 200]

OBTAINING BY DECEPTION 10.39 South Australia has introduced an offence of deception (s 139) which is far more general and expansive in scope that its precursor. The offences of obtaining by deception and theft have considerable crossover in South Australia. This is because of the wide definition of ‘dealing in property’ (s 130), and the provision in s 132(3) that a person who knows that another person’s consent was obtained by dishonest deception is taken to act without consent. Thus many cases of what are obtaining property by deception offences in Victoria are regarded as theft in South Australia. Victoria has a separate offence of obtaining by deception, where a person dishonestly obtains property with the intent of permanently depriving another person of the property: s 81(1) (Vic). To establish the crime of obtaining property by deception (s 81(1) (Vic)), the prosecution must prove beyond a reasonable doubt that: (a) D engaged in a deception; (b) D did so dishonestly;

(c) as a result of the deception, D — (i) obtained ownership, possession or control of property; or (ii) obtained for another, or enabled another to obtain or to retain, the ownership, possession or control of the property; (d) the property in question belonged to a third party; and (e) the intention with which the property was so obtained or retained was that of permanently depriving the third party of that property.

Actus reus Obtains (Vic) 10.40 The word ‘obtains’ is very broad, and covers any form of interest that D could acquire through deception. Under s 81(2) (Vic): … a person is to be treated as obtaining property if he obtains ownership, possession or control of it, and ‘obtain’ includes obtaining for another or enabling another to obtain or retain.

Obtains credit or services 10.41 Special offences have been introduced to cover cases of obtaining a financial advantage by deception where D obtains credit or services by deception: s 82 (Vic); s 139 (SA). This is because in these cases, there is no obtaining of ‘property’, thus the offences of theft and obtaining property by deception are not committed: R v Waterfall [1970] 1 QB 148.

Obtains a financial advantage (Vic) Section 82 (Vic) creates an offence of obtaining a financial advantage by deception to cover those cases where there is a dishonest obtaining of credit or services by [page 201] deception, but the offence of theft or obtaining property by deception are not committed because there is no obtaining of ‘property’: see R v Vasic (2005) 11 VR 380. In that case, D wrote a cheque for $32,701 in pretended payment for a debt, knowing that the cheque would be dishonoured. D was charged under s 82, but argued that he had not obtained a financial advantage. The Court of Appeal disagreed and found that at the very least, D gained a financial advantage of more time in which to find another source of finance.

Obtains a benefit or causes detriment (SA)

10.42 Section 139 (SA) broadly defines the offence of deception: A person who deceives another and, by doing so — (a) dishonestly benefits him/herself or a third person; or (b) dishonestly causes a detriment to the person subjected to the deception or a third person, is guilty of an offence.

Section 130 (SA) broadly defines ‘benefit’ as meaning a benefit of a proprietary nature; or a financial advantage; or a benefit by exercise of a public duty. ‘Detriment’ means a detriment of a proprietary nature; or a financial disadvantage; or loss of an opportunity to gain a benefit; or a detriment by exercise of a public duty. This means that the offence is no longer limited to obtaining property. It extends to benefit or causing a detriment. See also ss 140–142.

Deception 10.43 ‘Deception’ is defined widely under s 81(4) (Vic), and ss 130 and 139 (SA), and includes deception by words or conduct, and an act or omission with the intention of causing a computer system or machine to do an unauthorised act. This would resolve the case of Kennison v Daire. In that case, D had closed his bank account and used his old card to withdraw $200 from an automatic teller machine. He was convicted of larceny. It was held that even though the computer program had permitted this withdrawal, this did not amount to consent by the bank. The machine could not give the bank’s consent. This case would now be covered by statute in Victoria and South Australia. Deception includes misrepresentations about the past, present or future, and misrepresentations of law and/or intention. For example, if D received a shoe shine from V and did not pay, D could not be charged with theft because the shoe shine was not property. However, D could be charged with deception, as D had obtained a financial advantage (s 130 (SA)) or a service (s 82 (Vic)). A jury would find an implied deception, as when D requested a service of V, this would amount to an implied deception both as to D’s capacity and D’s intention to pay. Action alone can constitute a deception. Thus a ‘driving instructor’ whose driving licence has been cancelled and whose driving instructor licence has also automatically been cancelled, but who continues to act as a driving instructor and receives payment from his pupils, thereby obtains property by deception: R v Benli [1998] 2 VR 157. [page 202]

All the pupils in that case stated that they would not have used D’s services if they had known he did not have a licence: It is implicit in this evidence that the pupils were aware that by law a professional driving instructor required to be licensed as such. There was no challenge to this evidence, and it was this evidence, coupled with the pupils’ evidence of the acts done by the applicant as a driving instructor, which had the result that it was open to the jury to find that the deception alleged had been practised and that by means of the deception the applicant had obtained cash from his pupils: at 160 per Brooking JA.

Silence can also amount to a deception. For example, if D had a duty to provide information to a body such as a hospital, and failed to provide that information, which would result in no charge being made for a service given, then this could amount to an act of deception: R v Firth (1989) 91 Cr App R 217.

Connection between the deception and obtaining 10.44 There must be a causal connection between the deception and obtaining. Thus, if V is aware that D is lying and is therefore not deceived, the offence has not been committed: R v Laverty [1970] 3 All ER 432. This same requirement exists in New South Wales and is discussed in 9.51.

Mens rea 10.45 Deception can be deliberate or reckless. D would be considered to satisfy the requirement of recklessness if D either knew or recognised that there was a substantial risk that statements made by D might turn out to be untrue: R v Smith (1982) 7 A Crim R 437.

Continuing representation 10.46 A representation can be continuing, such that it is only necessary to prove mens rea at some time in the transaction. In DPP v Ray [1974] AC 370, D ate a meal at a restaurant, fully intending to pay. At the end of the meal, D and his friends decided not to pay, and left the restaurant while the waiter was absent. It was held that D had made an implicit representation at the beginning of the meal of the intention to pay. This was a ‘continuing representation, which remained alive and operative and had already resulted in the respondent and his defaulting companions being taken on trust and treated as ordinary, honest customers’: at 386. The representation covered the whole transaction until payment. Thus, D had practised a deception.

Dishonesty 10.47 The property must be obtained dishonestly. Dishonesty is a mens rea requirement in Victoria and South Australia. Generally, the fact that there has been a deception will indicate dishonesty, although this will not always be the case. The meaning of the word dishonesty is discussed at 10.34 in relation to theft. It has been held that the word ‘dishonestly’ in s 81 (Vic) should not be limited or inhibited by s 73(2) and (3) (Vic): R v Salvo [1980] VR 401. [page 203] A legal claim of right is a complete defence. Where D has an honest belief in a legal claim to property, and uses dishonesty to obtain it, D will not be guilty of the offence: R v Salvo [1980] VR 401.

Relationship between theft and obtaining by deception 10.48 In most cases where D obtains property by deception, this will amount to appropriation for the purposes of a charge of theft: Lawrence v Metropolitan Police Commissioner [1972] AC 626; R v Preddy [1996] AC 815. The exception to this is land, as, in Victoria and South Australia, land may not be stolen, but can be obtained by false pretences. Student tip In Victoria there is such an overlap between theft and fraud offences, that where D has obtained property by deception, the situation is also likely to involve the offence of theft.

ROBBERY 10.49 Robbery is a form of aggravated theft. Section 75(1) (Vic) states: A person is guilty of robbery if he steals, and immediately before or at the time of doing so, he uses force on any person or puts or seeks to put any person in fear that he or another person will be then and there subjected to force.

Section 137 (SA) provides a similar definition. Elements The actus reus for robbery is: •

the actus reus for theft; and

•

either the use of force on any person; or

•

putting or seeking to put any person in fear that he or she or another person would then and there be subjected to force; and

•

the use or threat of force must occur immediately before or at the time of committing the theft.

South Australia has an additional alternative if D uses force, or threatens force ‘in order to escape from the scene of the offence’: s 137(1)(a)(ii). The mens rea for robbery is: •

the mens rea for theft; and

•

an intention to use force or the threat of force in order to steal.

[page 204]

Actus reus Theft 10.50 The prosecution must establish a theft, the requirements for which are discussed above. If a theft cannot be established, D cannot be charged with robbery. However, D may be convicted of alternative offences such as assault.

Use of force 10.51 Victoria and South Australia require that D used or threatened force. ‘Force’ is an ordinary word and it is for the jury to determine whether force has been used by D, such as to constitute a robbery: R v Dawson and James (1976) 64 Cr App R 170. The statutes use the word ‘force’ and not ‘violence’. Hence, the jostling of V to such an extent that V has difficulty balancing in the course of a theft may amount to robbery: Dawson. The force need not be aimed at the owner of the goods, provided it was utilised or threatened in order to steal: s 75(1) (Vic); s 137 (SA). The force or the threat of force must be for the purpose of stealing.

Putting or seeking to put any person in fear of force 10.52 D does not need to use any force, but may instead seek to put V in fear of force. There is no need that V actually felt fear; rather, it will be sufficient if D sought to put V in fear. The threat must be that V or another person will then and there be subject to force. It will not be sufficient for D to threaten the use of force at some time in the future. Additionally, the threat must be against V’s person or the person of another, not against property. The statutory offence of robbery is narrower than the common law offence. At common law, a demand for money under threat of accusing V of sodomy would be robbery: R v Pollock [1967] 2 QB 195. Under s 75 (Vic) and s 137

(SA), this would not amount to robbery as there has been no threat of force. However, this may well amount to blackmail.

Immediately before or at the time of committing the theft 10.53 The use of force, or threat of force, must occur immediately before, or at the time of stealing: s 75(1) (Vic); s 137(1) (SA). In South Australia the offence can also be established if D used force or threatened force in order to escape from the scene of the offence. Thus, in Victoria if the theft has been completed prior to the use of force, D cannot be charged with robbery: R v Foster (1995) 78 A Crim R 517. If D tied up, gagged and threatened V immediately after D had taken V’s jewellery box, the jury is entitled to find that the force was used at the time of stealing: R v Hale (1978) 68 Cr App R 415.

Mens rea Mens rea for theft 10.54 The prosecution must establish that D had the mens rea for theft. The mens rea requirements for theft are discussed at 10.24 above. Where D has a belief in an [page 205] honest claim of right in the property, there is no theft and thus D cannot be charged with robbery: s 73(2)(a) (Vic); s 137 (SA); R v Salvo [1980] VR 401. The belief of legal entitlement need only extend to the property; there is no requirement that D believe the use of force to be legal.

Intention to use force or threat of force in order to steal 10.55 The prosecution must establish that D used or threatened force with the intention to steal. Thus, the fact that V is frightened by D’s actions will be insufficient. D must have the requisite intent.

BURGLARY 10.56 Under s 76(1) (Vic), D is guilty of burglary if D enters any building or part of a building as a trespasser with intent: ◆

to steal; or

◆

to commit an offence involving an assault to a person in the

building, or any damage to the building or property, which is punishable for a term of five years or more. South Australia has created a similar offence of serious criminal trespass, which extends to include situations where D ‘remains’ in a place: s 168(1). Elements The actus reus for the offence of burglary (Vic) or serious criminal trespass (SA) requires the prosecution to prove that: •

there has been an entry;

•

of any building or part of a building;

•

as a trespasser.

The mens rea for the offence of burglary requires the prosecution to prove that at the time D entered, D: •

was knowingly or recklessly a trespasser; and

•

had an intention to steal or commit a prescribed offence.

Actus reus Entry 10.57 There must be an ‘effective and substantial’ entry by D to amount to an entry for the purposes of the legislation: R v Brown [1985] Crim LR 212. This does not mean that D’s entire body must be in the building; rather, an effective entry is one which enables D to commit a further offence, eg, D is able to steal goods from that position. The broad reading of ‘entry’ means that police are not required to wait until D carries out the further specified intent. [page 206]

Building or part of building 10.58 D must enter a building or part of a building. ‘Building’ is largely not defined, and whether a structure is a building or part of a building will be a question of fact for the jury. The jury would take into account factors such as permanence and size. Thus, a garage might be considered a building, while a tent would not. In R v Cahill (No 2) [1999] 2 VR 387, D had been on the porch of a building. The Court of Appeal held: Whether the applicant entered the building was a question of fact to be determined by the jury. There was no dispute at the trial as to the primary facts relating to the porch. Its construction and the relationship it bore to the house were common ground. However, that was not the end of the fact finding task. It remained to appraise all the facts to determine whether the porch

could fairly be regarded as part of the building or whether it was a space remaining outside the building: at 394 per Buchanan JA.

Section 76(2) (Vic) defines ‘building’ as including an inhabited vehicle or vessel, whether or not such vehicle is inhabited at the relevant time. D may also have committed a burglary for entering part of a building. This is significant where D has permission to enter one part of a building but not another.

As a trespasser 10.59 D must make an effective and substantial entry as a trespasser. Whether D is trespassing will be a question of tort law. D is trespassing where D makes an entry without legal right or authority. There will therefore be no trespass where D has permission to enter a building. Where D has been granted permission to enter a building, it is essential to determine the scope of the licence to enter, and any express or implied limitations. Where D enters the building outside the express or implied limitations, D will enter as a trespasser. For example, in Barker v R (1983) 47 ALR 1, D had been asked by V, his neighbour, to look after V’s house in V’s absence. D had authority to enter the house in case of emergency, but no express authority to remove any goods. D was convicted of burglary when he removed some goods from V’s house. It was held that D’s entry was trespassory, as he had entered the building with the intention of stealing, and he knew that this intention was outside the authority given to him. In South Australia, this kind of situation is covered by the notion that a trespass includes situations where D ‘remains in a place (other than a place that is open to the public) as a trespasser with the intention of committing an offence …’: s 168(1).

Mens rea 10.60 In Victoria, D must have the necessary mens rea at the time of entry: Barker. In South Australia, the mens rea can be formed if D remains on the property without consent.

Knowingly or recklessly a trespasser 10.61 The prosecution must prove beyond a reasonable doubt that D entered knowingly or recklessly as a trespasser. Thus, if D enters a building believing that he or

[page 207] she has a right to do so, then there will be no burglary, even if D intended to steal. D’s belief need only be honest, not reasonable.

Intention to steal or commit a prescribed offence 10.62 The prosecution must prove that D intended to steal or commit one of the prescribed offences. There is no need to prove that D actually stole or committed the prescribed offence. What is required is that D entered the building as a trespasser with the requisite intention. In Victoria, it will not be burglary where D enters the building without the requisite intention, but forms the intention once inside the building. In South Australia, it will be burglary for D to remain in a building once D has formed the requisite intention to steal or commit a prescribed offence: s 168. Legal Problem Annabelle borrowed $500 from Georgia and promised to pay it back as soon as she could. A fortnight later, Georgia urgently needed some money. She asked Annabelle to pay back the money she had borrowed, but Annabelle refused. Georgia broke into Annabelle’s home and took her stereo and television, with the plan of pawning them to get back the $500 that Annabelle owed her. She planned to retrieve the goods once Annabelle had paid her back the money. Discuss Georgia’s criminal liability. Answer Georgia could be charged with theft (s 72 (Vic); s 134 (SA)) and burglary (s 76(1) (Vic)) or serious criminal trespass: s 168 (SA). The prosecution would have to prove all elements of the offence beyond a reasonable doubt: Woolmington v DPP [1935] AC 462. With regard to burglary or serious criminal trespass: •

Section 76 (Vic)/s 168 (SA) specifies that an accused must enter a building as a trespasser with an intention of committing a theft.

With regard to theft: •

Victoria: s 72 requires that the prosecution proves that Georgia dishonestly appropriated property belonging to Annabelle with the intention of permanently depriving her of it.

•

South Australia: s 134 requires the prosecution to prove that Georgia dealt with property dishonestly, without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights.

I will deal with each element in turn. Burglary/serious criminal trespass: s 76 (Vic); s 168 (SA) The prosecution would be able to prove that Georgia entered Annabelle’s property without consent. The facts of the question state that she ‘broke into’Annabelle’s home. Georgia knowingly entered Annabelle’s home without her consent, accordingly the requirement of a

trespassory entry into a building would be satisfied. The prosecution would also have to prove that Georgia entered the building with an intention of committing a crime — in this case, theft. [page 208] I will deal with the issue of theft in detail, but, as I argue below, the prosecution will have difficulty proving Georgia’s culpability because of her belief in a legal claim of right. Theft The prosecution must prove that Georgia stole property — in this case, she took a stereo and television — property that was of value, tangible and owned by Annabelle. The prosecution would have no difficulty establishing this aspect: s 71 (Vic); s 130 (SA). The prosecution must prove that Georgia appropriated (s 72 (Vic)) or dealt with the property (s 134 (SA)). In Victoria, appropriation is defined as including ‘any assumption of the rights of an owner’: s 73(4). In South Australia, ‘dealing with’ the property includes taking or disposing of the property (s 130). Taking the goods from Annabelle’s home would satisfy the requirement of appropriation/dealing with. In addition, pawning the goods would also satisfy the requirement of assuming the rights of the owner. The prosecution may have difficulty establishing that Georgia had an intention of permanently depriving Annabelle of the property, as Georgia stated that she intended to return the goods once Annabelle had paid her back. However, in Victoria, pawning the goods would amount to treating the property as Georgia’s own, and under statute this would be treated as having an intention to permanently deprive: s 73(12) (Vic); Sharp v McCormick [1986] VR 869. In South Australia, this would probably satisfy the requirement of an intention to make a serious encroachment on the owner’s proprietary rights. Accordingly, the prosecution should be able to satisfy this mens rea requirement. The prosecution may have difficulty proving that Georgia was dishonest. This is because she honestly believed that she was entitled to the property because Annabelle owed her money. An honest belief in a legal claim of right will negate dishonesty: s 73(2)(a) (Vic); s 131(6) (SA). These statutory provisions reflect the common law principle of legal claim of right. Georgia’s actions parallel the case of R v Lenard (1992) 57 SASR 164, where D took property from V as collateral for an unpaid debt. In that case, D made little effort to assist V to redeem the property, and sold it the next day. The Supreme Court of South Australia held that D’s conviction was affirmed. D’s intention to sell the property as quickly as possible tainted the claim of right and meant that his actions were fraudulent. In contrast, Georgia had every intention of assisting Annabelle in recovering the property. She did not sell the property, she only pawned it. Accordingly, the prosecution would not be able to prove that Georgia’s actions were dishonest. The fact that she took the property using dishonest means would not hamper this argument, as the focus here is upon Georgia’s honest belief in legal claim of right. [Comment: This paragraph refers to common law to demonstrate understanding of the belief in legal claim of right. The argument is further strengthened by the use of facts from a decided case, highlighting commonalities and differences.] Conclusion Georgia would not be guilty of theft due to her honest belief in legal claim of right. As a consequence, the prosecution would also not be able to establish burglary/serious criminal trespass, as Georgia lacked the essential mens rea of an intention to commit theft, as she believed that she was entitled to the goods.

[page 209]

Chapter 11 Extending Criminal Liability: Complicity, Conspiracy and Attempt Objectives After reading this chapter you should be familiar with the following: ▶ doctrine of complicity ▶ technical distinctions within the doctrine of complicity ▶ joint criminal enterprise ▶ doctrine of innocent agency ▶ actus reus requirements for accessorial liability ▶ mens rea requirements for accessorial liability ▶ doctrine of common purpose ▶ conspiracy ▶ principles of attempt ▶ impossibility and attempt

INTRODUCTION 11.1 Certain legal principles extend liability beyond the physical perpetrator of a crime. The law relating to attempt and conspiracy criminalises conduct that occurs prior to a crime. Principles of conspiracy and complicity extend criminal liability to groups of people engaged in criminal activity. [page 210]

COMPLICITY Technical distinctions 11.2 Most of the chapters in this book have been concerned with the principal offender — the person who committed the crime — represented as ‘D’. For the purposes of clarity, in this chapter the principal offender (or principal in the first degree) will henceforth be represented as ‘P1’. The principles of complicity criminalise joint participation in a given crime.

Broadly speaking, it is possible to jointly participate in a crime in several ways: ◆

◆

◆

Where two or more persons agree to commit a crime and one or all of the participants carry out the necessary actus reus, all will be held liable for the crime as P1s according to the rules of joint criminal enterprise. The principles of joint criminal enterprise can occur in two types of cases: ◆

first, if two or more persons play a part in performing the acts that go to constitute a crime — eg, if a number of individuals attack V intending to kill V, and their actions combined together cause the death of V — then each D will be a P1: R v McDonald [1904] St R Qd 151; and

◆

second, even if only one person performed the acts constituting the crime, each will be guilty as P1s if the acts were in the presence of all and pursuant to a preconceived plan. In this case, the parties are ‘acting in concert’: Osland v R (1998) 197 CLR 316; 159 ALR 170.

Accessorial liability applies where a person aids, abets, counsels or procures the commission of the crime by another person (P1). At common law: ◆

if D was present at the scene of crime aiding and abetting P1, then D would be the principal offender in the second degree: ‘P2’;

◆

if D counselled or procured the commission of the crime, without actual presence at the scene of the crime, then D would be regarded as an accessory before the fact;

◆

if D assisted a person who committed a crime after the offence, then D would be regarded as an accessory after the fact: see also s 347 (NSW); s 241 (SA); s 325 (Vic).

Where, during the commission of a joint criminal enterprise, one or more members of the enterprise commit an additional crime that was not the subject of the original agreement, the other members of the group may also be liable for that additional crime according to the doctrine of common purpose.

The operation of these three sets of rules is confusing — not only for students, but also for lawyers and judges. The language in judgments can be a little loose, which is confusing. This is further exacerbated by prosecutors often relying on more than one of the sets of complicity rules in order to

support the conviction ofindividuals involved in an offence: see, eg, Clayton v R (2006) 231 ALR 500. Prosecutors may also rely on different sets of rules when it is unclear which person actually carried out the main part of the actus reus: see, eg, Huynh v R (2013) 295 ALR 624. In addition, the prosecution has also relied upon the doctrine of innocent agency in combination with other sets of complicity rules: see, eg, Matusevich v R (1977) 137 CLR 633. [page 211] 11.3 Until recently, students would usually learn the rules of accessorial liability first, as accessorial liability was the primary focus of common law development and was primarily relied upon by the prosecution. However, since the High Court decision in Osland articulated the rules of joint criminal enterprise, accessorial liability now tends to be secondary to joint criminal enterprise. Thus in Huynh, the High Court questioned why the prosecution had run a ‘secondary’ accessorial liability argument when it had a viable ‘primary’ case based on joint criminal enterprise: at [34]. 11.4 As noted above, depending on the facts the prosecution will often advance a combination of joint criminal enterprise, accessorial liability and the doctrine of innocent agency as alternative paths to conviction. This is particularly the case where it is unclear which set of rules would best fit the facts. Smart JA explained the prosecution’s approach in R v Hore [2005] NSWCCA 3: In a case such as this the Crown is in substance saying … [w]e do not know whether the true analysis is one of acts committed pursuant to a joint enterprise or whether it is one of accessorial liability but it must be one or the other and in either case the accused is guilty of the offence charged … The true question to be asked is whether, on the facts of which the jury is satisfied beyond a reasonable doubt, what happened must have been either an instance of joint enterprise liability or accessorial liability. If on the facts proven it must have been one or the other the accused is guilty of the offence charged at [81].

11.5 As a consequence of these developments in the various rules extending criminal liability, this chapter will consider in order: 1. joint criminal enterprise 2. doctrine of innocent agency 3. accessorial liability 4. doctrine of common purpose (or extended joint criminal enterprise). 11.6 In 2014 the law governing complicity in Victoria was overhauled and simplified by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic). The common law relating to complicity was largely abolished and

replaced with a simple set of legislative provisions: ss 323–324C. These will be covered separately at 11.46.

Joint criminal enterprise 11.7 One type of joint participation is where there is more than one P1. The language in the judgments is a little loose, but this doctrine has been labelled either joint criminal enterprise or joint principals in the first degree. A joint criminal enterprise can occur where more than one person may have performed the actus reus of the crime: Macklin & Murphy’s Case (1838) 2 Lew CC 225; 168 ER 1136. An example of this is where several Ds agree to attack and do attack V, intending to kill V. All the Ds may be regarded as P1s. Alternatively, the Ds may be regarded as acting in concert. This doctrine would apply where the accused have agreed to attack V, intending to kill V, but even though all the Ds are present, not all of them perform the actus reus: see Osland. The concept of acting in concert has received High Court attention and will now be considered in some detail. [page 212] Elements D can be guilty as a P1 if the prosecution proves beyond a reasonable doubt: •

D agreed to commit the crime in concert;

•

acts were committed by parties to the agreement;

•

D was present at the crime (although some dissent about this); and

•

D had the mens rea for the offence: Osland.

Agreement to act in concert 11.8 There may be only one person who performs the acts constituting the crime, but others will be regarded as P1s if they were present and were acting according to a preconceived plan: R v Lowery and King (No 2) [1972] VR 560: The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or the other of them does, or they do between them, in accordance with their understanding or arrangement, all things that are necessary to constitute the crime, they are equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime: at 560 per Smith J.

Consequently, the liability of a participant acting in joint criminal enterprise is not derivative, it is primary. This means that even if another P1 is found not

guilty, D can still be held liable. This was highlighted in the High Court case of Osland. The prosecution case was that D and her son, A, had agreed to kill V, who was D’s husband and A’s step-father. They dug a grave earlier in the day, and then D placed sedatives in V’s meal. When V had fallen asleep, A fatally hit V over the head with a pipe in the presence of D. D and A admitted they had killed V, but argued self-defence or provocation on the grounds of V’s violent abuse over many years. A was found not guilty, presumably on the grounds of self-defence. D was found guilty of murder, and one of the grounds of appeal to the High Court was that her conviction was inconsistent with A’s acquittal. Osland details the principles regarding acting in concert or joint criminal enterprise. McHugh J stated: Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime: at 196–7.

[page 213] 11.9 In Osland, McHugh J approved the New South Wales Court of Criminal Appeal’s statement of principles in R v Tangye (1997) 92 A Crim R 545 regarding acting in concert. That court adopted a broad definition of ‘agreement’: (1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of a joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or agreement need not be express, and its existence may be inferred in all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed: Tangye at 556–7.

Consequently, it was held that D could be guilty of murder, even though the other D was found not guilty.

11.10 In Huynh, it was held that it was open to the jury to infer whether or not an agreement was made and when this agreement was made. It did not matter if the agreement was made prior to the criminal act or at the time of the offence. However, in some cases, the courts have expressed doubt that D had time to make an agreement: Hawi v R (2014) 244 A Crim R 169. Student tip Joint criminal enterprise and conspiracy both focus on an agreement. The difference is that in joint criminal enterprise, an agreement is the basis for the extension of liability for the completed offence to all parties to the agreement, irrespective of who performed the conduct elements of the offence. In contrast, in conspiracy cases, the agreement is itself the crime.

Presence 11.11 In Osland, McHugh J emphasised that, in order to be responsible as a P1 in a case of joint criminal enterprise, the parties to the agreement had to be present at the scene. Gaudron and Gummow JJ questioned this emphasis on presence: Principle dictates the conclusion that those who form a common purpose to commit a crime together are liable as principals if they are present when the crime, or any other crime within the scope of the common purpose … is committed by one or more of them. The crime having been committed in accordance with the continuing understanding or arrangement, all are equally guilty as principals regardless of the part played by each … Indeed, that reasoning would appear not to require presence at the scene of all parties to

[page 214] the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied: at 179.

11.12 In Ka v R [2015] NSWCCA 111 (at [61]) Simpson J summarised the principles of joint criminal enterprise. One of the principles is that: a person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit the crime: at [61].

Accordingly, presence (provided it is accompanied by the necessary agreement and mens rea) will be sufficient actus reus for joint criminal enterprise.

Withdrawal 11.13 Strict rules of withdrawal operate under the doctrine of complicity, considered at 11.51. These rules also apply in cases of joint criminal enterprise: R v Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438.

Innocent agency 11.14 Cases may occur where D encourages, instigates or assists P1 to perpetrate the actus reus of the crime, but P1 is an innocent agent. This may occur in situations where P1 is: ◆

unaware of what he or she is doing, eg, where P1 administers poison believing it to be harmless; or

◆

aware of what he or she is doing, but not amenable to criminal law, eg, due to age, insanity, duress, etc.

Under the principles discussed above, D would also escape liability, because: ◆

P1 lacks mens rea and thus has not committed a crime as principal; and

◆

D has not committed the crime, because D has not performed the actus reus.

The doctrine of innocent agency deals with the situation where P1 escapes liability by deeming D to be the principal offender, where D has the relevant guilty mind. This doctrine is particularly applicable where children are used as instruments for D’s purposes: White v Ridley (1978) 140 CLR 342; Pinkstone v R (2004) 219 CLR 444. Where the doctrine applies, D is liable as a P1: White v Ridley. Elements The doctrine requires the prosecution: •

to prove that D caused the innocent agent to perform the actus reus of the offence: R v Briggs (1987) 24 A Crim R 98. The prosecution is not required to establish that D specifically instructed the innocent agent to commit the actus reus; thus D may have used deception to cause the innocent agent to act; and

•

to establish that the conduct of the innocent agent was such that, if committed by D, it would have constituted an offence.

[page 215] 11.15 In R v Cogan and Leak [1976] 1 QB 217, the Court of Appeal considered whether the doctrine of innocent agency could apply in situations where D could not have committed the offence independently of the operation of the doctrine. In Cogan and Leak, Leak and Cogan were convicted of the rape of V, Leak’s wife. Leak was charged as an accessory because, under the doctrine of marital immunity, men could not rape their wives. V submitted to sexual intercourse with Cogan due to her fear of Leak. Leak was

aware that V was not consenting. Cogan’s conviction for rape was overturned and Leak argued that he could not be liable as an accessory as there was no principal offence. The Court of Appeal applied the doctrine of innocent agency to Leak. It was held that Leak had procured Cogan to commit the act of rape, and that Leak had the necessary mens rea for the offence. Consequently, Leak was liable as P1 and not as an accessory. Leak could not rely upon the doctrine of marital immunity, because the presumption did not extend to a situation where a husband procured another person to have sex with his wife. Thus, under the doctrine of innocent agency, D may be liable for an offence which D could not commit as P1. 11.16 The doctrine of innocent agency was considered in R v Hewitt [1997] 1 VR 301. In that case, D and X, his co-accused, were charged on three counts of rape. D arranged to meet V, and then drove her to an isolated spot, picking X up on the way. While X was not present, D insisted to V that she have sexual intercourse with X. X then had sexual intercourse with V. D did not engage in sexual intercourse. The prosecution claimed that X and D had acted in concert. At first instance, the trial judge raised the possibility that D had used X as an innocent agent. The trial judge directed the jury that they could acquit X but convict D, on the basis that D had set up the situation, taken V to the isolated spot and insisted she have sex with X, knowing that it would be non-consensual. The jury found X not guilty and D guilty. On appeal, it was held that D could be guilty as P1 under the doctrine of innocent agency. Winneke P stated that: … what has to be demonstrated in order to support a conviction on this basis is that the accused wanted and intended the act of intercourse by ‘the agent’ to take place and, by his conduct, caused the act to occur when he knew that the victim was not consenting: at 312.

Accessorial liability 11.17 Accessorial liability has existed at common law for centuries. The common law continues to be applied in New South Wales: ss 345, 346, 351. In South Australia, the law of complicity is found in statute (s 267) but continues to reflect the common law: Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63. For example, s 267 (SA) states: A person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender.

11.18 Historically, the law differentiated between types of accessories:

◆

aiding or abetting someone at the scene of a crime: P2; [page 216]

◆

counselling or procuring the commission of a crime without actual presence: accessory before the fact; and

◆

assisting a person who has committed a crime after the offence: accessory after the fact.

These technical distinctions have been largely abolished. The major distinction between accessories before the fact and principal offenders is that in the latter case, the offender is present, while accessories before the fact are absent from the scene of the crime. In South Australia the distinction between P2s and accessories before the fact has been abolished and subsumed into a single category of abettors: s 267 (SA). It is therefore possible to divide offenders into three categories: 1. P1s; 2. abettors: encompassing accessories before the fact and P2s; and 3. accessories after the fact. 11.19 Being an accessory is not an offence in itself. The accessory is regarded as being party to the principal offence, and may be tried for that offence as a P1: ss 345, 346, 351 (NSW); s 267 (SA); s 325 (Vic).

The principal offence 11.20 D cannot be convicted as an accessory to an offence unless the jury is satisfied on the evidence against D that the principal offence was actually committed: s 267 (SA); s 325 (Vic). That is, D’s liability as an accessory is derivative not primary. There is no requirement that P1 must have actually been convicted. For example, P1 may never have been identified, been acquitted, or never stood trial: Shultz v Pettit (1980) 25 SASR 427. The jury need only be satisfied beyond a reasonable doubt that: ◆

the principal offence was committed by some person;

◆

D was involved in aiding, abetting, counselling or procuring the offence: see R v Lun and Welsh (1932) 32 SR (NSW) 363; R v Deane (1996) 88 A Crim R 36.

11.21 In Hewitt, Winneke P noted the ‘growing body of authority to

support the view that, in some circumstances, an accused can be convicted of aiding and abetting when the principal offender has been acquitted’: at 311. Winneke P expressed reservations, as he had: … some conceptual difficulty in supporting the proposition that a person can be convicted as an aider and abettor when the principal offender has been acquitted. The proposition appears to have been justified on the basis that if the principal offender’s act has been wrongful but excusable (eg on the grounds of insanity or duress or status or mistaken belief) a conviction of a co-accused as an aider and abettor is nonetheless supportable provided that the aider and abettor has the requisite mens rea … However, it seems to me that the principle so espoused runs counter to the basic proposition of the common law that the liability of the accessory is derivative from the liability of the principal offender. The general rule is, and so far as I am aware, always has been unless there is a perpetrator of a crime, there cannot be an accessory: at 311.

[page 217] An abettor can be guilty of a higher crime than P1. For example, P1 may act while under some provocation or substantial impairment of the mind when killing V, reducing a charge of murder to manslaughter. P2, who was present at the time of the killing offering encouragement and keeping watch, may be liable to a charge of murder. See Likiadopoulos v R (2012) 247 CLR 265: ‘The moral culpability of the accessory will sometimes be greater than that of the principal offender’: at [39].

Accessories before the fact and P2s 11.22 The elements of being an accessory are specified in Giorgianni v R (1985) 156 CLR 473. Elements The prosecution must prove beyond a reasonable doubt: •

actus reus: D did aid, abet, counsel or procure; and

•

mens rea: (a) D knew all the essential facts which made what was done a crime; and (b) D intentionally aided, abetted, counselled or procured the acts of tP1.

Actus reus 11.23 The actus reus for being an accessory or abettor is most commonly expressed as occurring where D ‘aids, abets, counsels or procures’ the commission of the principal offence: Giorgianni; s 267 (SA); s 323 (Vic). 11.24 The words ‘aids, abets, counsels or procures’ are not mutually exclusive, and D can satisfy more than one category. These words are overlapping but alternative ways of committing the offence of secondary

participation in crime: Giorgianni. Although each word has a specific meaning, they are all: … instances of one general idea, that the person charged is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission: R v Russell [1933] VLR 59 at 67 per Cussen CJ.

Given that the distinction between accessories before the fact and P2s has been subsumed into a single category in South Australia, the difficulties that arose at common law in distinguishing between whether or not D was present at the commission of the crime have largely dissipated. In New South Wales, the distinction is maintained but is no longer of importance. The prosecution need only establish one of the four elements (aids, abets, counsels or procures) to establish the necessary actus reus. Student tip Only the actus reus element of ‘procuring’ has a technical element of requiring causation.

[page 218] 11.25 Counselling or procuring The phrase ‘counselling or procuring’ has traditionally been applied where D is absent (accessory before the fact at common law). ◆

‘Counselling’ refers to encouragement or advice prior to the commission of the offence.

◆

‘Procuring’ means to ‘produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening’: Re Attorney-General’s Reference (No 1 of 1975) [1975] QB 773. Student tip

An example of procuring would be where D paid someone to commit an offence, such as where D hired a hit person to kill V.

11.26 Aiding or abetting The phrase ‘aiding or abetting’ has traditionally been applied where D was present at the commission of the crime (P2 at common law). In Osland, McHugh J described a P2 as a person who was present at the commission of the crime, ‘encouraging but not participating physically, or whose acts were not a substantial cause of death’: at 189. A person may be actually present or constructively present at the scene of the crime. A person is actually present if the person is physically within sight and sound of the crime, while a person may be constructively present if he or

she is ‘able readily to come to the assistance’ of the principal: R v Doorey [1970] 3 NSWLR 351. For example, D would be a P2 if D kept watch while P1 performed a break and enter. 11.27 ‘Presence’ has been broadly interpreted. In Thambiah v R [1966] AC 37, P2 helped P1 open a bank account by fraudulent means. P1 later forged a cheque and paid it into the account. P2 was convicted of aiding and abetting P1 in the fraudulent use of a cheque. P2 knew at the time the account was opened that P1 would be using it for forged cheques. Despite the fact that the forged cheque was not in existence at the time P2 helped P1 open the account, P2’s conviction was upheld. Lord Pearce stated: One man may abet another by helping to set the stage even before the victim has been found. If a man helps another in preparation for crimes of a certain nature with the intention that the other shall commit crimes of that nature he may abet those crimes when committed. Moreover, in the present case at the time the cheque was fraudulently used the account still owed not only its origin but also its maintained existence to the appellant: at 46.

11.28 In R v McCarthy and Ryan (1993) 71 A Crim R 395, the prosecution alleged that R had aided and abetted M in the commission of various offences. V had placed an advertisement in the newspapers offering babysitting services. M contacted V and V agreed to babysit for him later that day. M and R went to pick up V. V went with M and R in their van. M then drove to an isolated spot and told R to leave. R left, and during this time, M raped V. R arrived back during the course of the attack and was told by M to ‘take a walk’. When the assault finished, M and R drove V home. On appeal, R argued she had not aided and assisted M because she was not present at the time of the rape. The Court of Criminal Appeal disagreed and held it was not necessary to prove that [page 219] an accessory was ‘by the side’ of P1 throughout the period of the commission of the offence. Hunt CJ stated: The concept of being ‘present’ is somewhat elastic; an accessory may be actually present (in the sense of being within the sight and sound of the crime) or constructively present (in the sense of being sufficiently near as to be able readily to go to assistance of the principal offender, should the occasion arise): at 409, original emphasis.

The courts have held that the word ‘aiding’ is given its natural meaning: to ‘give support to — help, assist’: R v Beck [1990] 1 Qd R 30. The essential feature of ‘abetting’ is that D was present at the commission of the principal offence and encouraged the commission of that offence. To ‘abet’ means to incite, instigate or encourage, and it is only necessary to prove

encouragement under abetting and not under aiding: Giorgi and Romeo v R (1982) 31 SASR 299 at 311. There are some cases where mere presence can actually amount to an act of encouragement or assistance capable of founding liability as an accessory. In R v Russell [1933] VLR 59, D stood by and watched his wife drown his children and then herself. He was found guilty of manslaughter. It was held that the absence of any dissent by D showed some sort of assent to the acts of his wife. This was enough to amount to encouragement and could form the basis of a charge of being an accessory. In summary, virtually any act of encouragement, assistance or instigation to a P1 to commit a crime will fulfil the conduct requirements for liability. This can be mere words, or even the simple fact of presence, so long as this amounts to some sort of encouragement or assistance. 11.29 Causation D’s act need only support or promote the commission of crime; it need not be said that it wholly or partly caused the crime: Russell. In R v Calhaem [1985] 2 WLR 826, D counselled P1 to murder V. P1 pleaded guilty and gave evidence for the prosecution, stating that he had decided not to kill V, but had then lost self-control and done so. D was convicted on the grounds that, so long as the principal offence is the one counselled, and so long as P1 is acting within the scope of the counselling, the offence is committed. There is no requirement that there be a substantial causal connection between the acts of the counsellor and the commission of the offence. The exception to this is where the prosecution asserts that D has procured an offence. When asserting this, the prosecution must prove that there is a causal connection between D’s conduct and the commission of the offence: Re Attorney-General’s Reference (No 1 of 1975). This is because the essence of ‘procuring’ is that D ‘causes’ or ‘brings about’ the commission of the offence. For example, in Attorney-General’s Reference (No 1 of 1975), D laced his friend’s drinks, with the result that his friend was charged with driving with excess alcohol in his blood. It was held that D had procured the offence and was an accessory. 11.30 Omissions Generally, the common law has been reluctant to criminalise D’s failure to act. This principle applies to secondary liability. However, in appropriate circumstances, D’s failure to act can amount to participation in the criminal offence. D may be liable for an omission where D has a duty to act: see, eg, R v Russell.

[page 220] Additionally, D may be criminalised due to mere presence at the commission of the principal offence: R v Phan (2001) 53 NSWLR 480. This is because D’s presence at the commission of a crime may encourage P1 or discourage V: The fortuitous and passive presence of a mere spectator can be an irrelevance so far as an active offender is concerned. But, on the other hand, a calculated presence, or a presence from which opportunity is taken, can project positive encouragement and support to a principal offender: Beck at 39.

The authorities in this area emphasise that while the actus reus may be relatively easy to establish in mere presence cases, the prosecution is still required to prove mens rea, ie, knowledge and intention beyond a reasonable doubt: R v Wellgreen [2014] SADC 10. Student tip While the actus reus may be relatively easy to establish, the focus in mere presence cases will be on whether or not D had mens rea. This will be more difficult for the prosecution to establish.

11.31 Can a beneficiary of the law be charged as an abettor? One issue that has arisen is whether or not D can be charged as an abettor in breaking a law of which he or she is a beneficiary. Historically, the common law position was that D could not be charged in such a situation. For example, in R v Tyrell [1894] 1 QB 710, D, a girl under the age of 16, was charged with aiding and abetting the P1 to have unlawful sexual intercourse with her. It was held that D could not be guilty of abetting a crime aimed at protecting girls from sexual intercourse. In more recent cases, however, the party for whose benefit an apprehended violence order was made has been convicted of aiding and abetting the criminal offence of breaching such an order: see, eg, R v Keane (1997) 95 A Crim R 593. Law reforms in Victoria have made it clear that the law of complicity is not to apply to those who are meant to be protected by the offence in question: s 324(3).

Mens rea 11.32 The mens rea requirements for liability as an accessory are specific, in order to guard against the possibility that D is held liable for innocent or inadvertent acts. In Giorgianni, Gibbs J stated: No one may be convicted of aiding, abetting, counselling or procuring the commission of an

offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender: at 487–8.

There are two major mens rea components: 1. knowledge of all the essential matters which made the principal offence a crime; and 2. with that knowledge, D intentionally aided, abetted, counselled or procured the acts of P1. [page 221] Student tip Actus reus requirements in abettor liability are not particularly difficult for the prosecution to establish. It is the mens rea requirements in which culpability for the offence is established.

11.33 Knowledge of all the essential matters that made the principal offence a crime D must have actual knowledge that the crime is being committed, or will be committed, in circumstances revealing its criminal nature. Mere recklessness will be insufficient: Giorgianni. This does not mean that D must know that P1’s conduct amounts to a criminal offence, otherwise D could evade criminal liability due to ignorance. D must contemplate the commission of a crime of the same type or kind as that which is actually committed. It is not enough that D know that some illegal act is to be committed, but neither is it required that D know the precise crime. In R v Bainbridge [1960] 1 KB 129, D bought some oxy-acetylene cutting equipment on behalf of another. The prosecution argued that D knew that the equipment was to be used for a break and enter. It was held that the prosecution must prove that: ◆

D knew that a felony of some kind was intended; and

◆

with this knowledge, D did something to assist P1.

Actual knowledge is required, even if the principal offence has no such mens rea requirement. 11.34 In Giorgianni, P1 was charged with a strict liability offence: culpable driving causing death or grievous bodily harm (GBH). It was held that, even though the principal offence was a statutory offence that did not require mens rea, the common law required mens rea for being an accessory. In Giorgianni, D had directed P1, his employee, to drive a truck which had defective brakes. As the offence was one of strict liability, the prosecution did

not have to establish that P1 knew that the brakes were defective. However, the High Court held that to establish D’s liability as an accessory, the prosecution had to prove that D had directed P1 to drive the truck, knowing that the brakes were defective. Giorgianni underlined that cases of strict liability make the requirement of D’s guilty mind particularly clear. D must have actual knowledge or constructive knowledge, rather than mere suspicion, that all the facts constituting the offence are to be or are being committed. Mere recklessness is insufficient. However, wilful blindness could provide the evidential foundation for a finding of actual knowledge. Giorgianni has been criticised due to the anomalous results it yields. If P1 drives a truck suspecting its machinery to be defective, and an accident occurs, then P1 can be charged with culpable driving causing death or GBH. But, if P1’s employer also suspects the brakes to be defective, but allows P1 to drive, and an accident occurs, then P1 incurs no liability. [page 222] In Von Lieven v Stewart (1990) 21 NSWLR 52, the Court of Appeal applied Giorgianni to the mens rea requirements of accessorial liability for companies. Student tip Giorgianni highlights the strict mens rea requirements for accessorial liability. Even when D is charged as an accessory to a strict liability offence, the prosecution must still prove knowledge and intention.

11.35 What are the‘essential matters’for specific offences? Although Giorgianni has clarified the mens rea requirements for accessorial liability, questions still remain. One of these is: what exactly are the ‘essential matters’ for specific offences? Giorgianni was applied in R v Stokes and Difford (1990) 51 A Crim R 25. In that case, P1 was convicted of maliciously inflicting GBH while intending to inflict GBH. D was convicted as an accessory to the lesser offence of maliciously inflicting GBH. It was held that the prosecution not only had to prove that D had the knowledge of the physical acts done by P1, but also that D was aware that P1 performed the acts with the requisite state of mind for that offence. Thus, Hunt J held (at 41–2) that the Crown had to prove: 1. that D knew (or was aware): (a) of the intention of P1 to hit V, and (b) that P1: (i) intended thereby to inflict some physical injury upon V, or

(ii) realised the possibility that some such injury might result but he nevertheless intended to go ahead and hit V; and 2. that, with that knowledge, D intentionally assisted and encouraged P1 to commit the crime of maliciously inflicting GBH upon V.

11.36 In offences of constructive liability, the accessory is only required to have the same level of knowledge as the P1. For example, in the case of constructive murder, the accessory is required only to have the same knowledge as P1 regarding the foundational offence: R v Appleby (1940) 28 Cr App R 1. In R v Chai (2002) 187 ALR 436, the High Court held: If a person procures another to commit an unlawful act, which is objectively dangerous and (unintended) death results, then the first person will be guilty of manslaughter: at [17].

11.37 D intentionally aided, abetted, counselled or procured The prosecution must establish that, with the essential knowledge of the principal offence, D intentionally aided, abetted, counselled or procured the commission of the principal offence. Recklessness will not be sufficient: Giorgianni. D’s encouragement, assistance or instigation must be wilful. In R v Clarkson and Carroll [1971] 1 WLR 1402; [1971] 3 All ER 344, the Ds stood by and watched as V was gang raped at a party. They did not say or do anything. It was held that the mere presence of the Ds may actually have encouraged the crime; however, this encouragement had to be wilful. In this case, the Ds were drunk, and may not have been aware that their [page 223] presence might encourage the rapists. It was held that, even if they had encouraged the rapists by their mere presence, this encouragement was not wilful, and hence, grounded no liability. Student tip There has been a great deal of development in the law recently extending the legal doctrine of complicity. Make sure you understand the basics of accessorial liability. Then move on to the more complex areas where the courts have sought to extend the reach of the criminal justice system in cases where there is more than one participant.

Common purpose (or extended joint criminal enterprise) 11.38 The analysis above deals with standard cases of complicity, where it is alleged that two or more parties have participated in the commission of a particular offence. The major issue has been whether P2 had the necessary

mental state of mind. In the standard cases of complicity considered above, there is no need for the prosecution to prove common purpose or agreement. The only requirement is that P2 has knowledge of the essential components of the principal offence, and with that knowledge intends to aid, abet, counsel or procure the commission of the offence. The doctrine of common purpose deals with another issue that arises in complicity: where the defendants have been in agreement to commit a crime and P1 commits an additional crime that is incidental to the foundational crime. The High Court considered the doctrine of common purpose in McAuliffe and McAuliffe v R (1995) 183 CLR 108; 130 ALR 26: … the doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common design … Such a common purpose arises where a person reaches an understanding or arrangement, amounting to an agreement, between that person and another or others that they will commit a crime. The understanding or arrangement need not be express, and may be inferred from the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime, regardless of the part played by each in its commission: per Brennan CJ, Deane, Dawson, Toohey and Gummow JJ: at 113–14.

The doctrine of common purpose can be applied where an offence was intended to be committed as part of a common purpose or ‘joint enterprise’. But it can also be utilised to extend liability to P2s for ‘incidental’ crimes which they did not intend to commit. The High Court approved the following description by Street CJ of the doctrine of common purpose in Johns v R (1980) 28 ALR 155. An accessory bears: … a criminal liability for an act which was within the contemplation of both himself and the principal in the first degree, as an act which might be done in the course of carrying out the primary criminal intention — an act contemplated as a possible incident of the originally planned particular venture: McAuliffe at 163.

The High Court has since approved these principles in Gillard v R (2003) 219 CLR 1. [page 224] 11.39 In Johns, J, W and D agreed to rob M. J knew that W always carried a pistol, and expected it to be loaded. J also knew that W was quick-tempered. J was advised to wait in his car while W and D committed the robbery, and to then hide the stolen goods. After a short while, W and D returned, informed J that the robbery had gone badly, and told him to leave. In fact, M had had no money, and had been shot dead. The doctrine of common purpose was applied and it was held that there was no reason why J could not be held as responsible as the other participants

simply because he remained an accessory before the fact and did not actively participate in the crime agreed upon. J was found to be responsible for the acts done within the ambit of the enterprise of common design. The only mens rea requirement under this doctrine was that J foresaw a possibility that another member of the group would commit the additional offence: In the present case there was ample evidence from which the jury could infer that the applicant gave his assent to a criminal enterprise which involved the use, that is the discharge, of a loaded gun, in the event that Morris resisted or sought to summon assistance … The jury could therefore conclude that the common purpose involved resorting to violence of this kind, should the occasion arise, and that the violence contemplated amounted to grievous bodily harm or homicide: at 174–5.

Elements The prosecution must prove beyond a reasonable doubt: •

D must have formed a common intention to prosecute an unlawful purpose;

•

the principal offence must have been committed in the pursuance of, in furtherance of, or for the purpose of, the common design;

•

D need only contemplate the incidental crime as no more than a possible incident of the joint enterprise: Johns. The test is thus not particularly demanding, requiring only that D foresee the possibility, rather than the probability, of the incidental crime.

Recognition of the possibility of the incidental crime 11.40 All that is required is that D recognise the possibility of the incidental crime, whether it is within the common purpose or outside the common purpose. In Sharah v R (1992) 30 NSWLR 292, S and A were convicted of armed robbery and murder. S had left the shop which S and A had robbed, when A became involved in a struggle with V. A fired a gun he was carrying and killed V. S was found guilty of murder under the doctrine of common purpose. S appealed against his murder conviction on the grounds that the trial judge should have directed the jury that the Crown had to prove S knew or contemplated as a possibility that the gun was loaded and had authorised its use if necessary. The New South Wales Court of Criminal Appeal disagreed, holding that: … it was sufficient for the Crown to prove common purpose murder if the appellant participated in the unlawful common purpose realising (without agreeing to such conduct being used) that A may kill or inflict serious injury with the loaded gun: at 301.

[page 225] There was no need to prove S had actually authorised the use of the gun if the need arose during the robbery. 11.41 The breadth of the reach of the doctrine of common purpose is demonstrated in R v R (1995) 63 SASR 417. In that case, A and B agreed to

rob a restaurant, armed with knives. In the course of a struggle, B fatally stabbed V. B was found guilty of felony murder, and A was convicted of murder under the doctrine of common purpose. The trial judge had directed the jury that A would also be guilty of felony murder if he was party to a joint criminal enterprise to commit an offence that involved violence and danger to life, and that death occurred during or in the furtherance of that felony. A appealed on the grounds that he neither believed that the knives would be used nor considered the possibility of violence taking place. On appeal, the conviction was affirmed. Given that the policy underlying constructive murder was to hold a perpetrator responsible for the unintended consequences of his or her actions in the course of an offence, there was no reason why this policy should not be extended to other participants in the felony. It may be difficult to ascertain what is an unforeseen consequence but incidental to the common purpose, and what is not authorised and is different from the criminal enterprise altogether. For example, in Varley v R (1976) 12 ALR 347, D was charged with murder for his involvement with two police officers who had gone to V’s house to beat him up in order to compel him to pay over some money. A baton was in the police officers’ car, and this baton was used to kill V. D argued that the use of the baton was beyond the scope of the criminal enterprise, and, as such, D should not be criminally liable for the consequences of such use. The High Court rejected this submission, holding that, while the use of the baton may not actually have been contemplated by D, it was clearly a likely means of carrying out the plan of beating up V and was obviously within the scope of the plan. 11.42 In R v Robinson [1968] 1 SA 666, V conspired with A, B and C that V be shot because of dire financial distress. A was to shoot V ‘no matter what happens’. At the last moment, V withdrew his consent, but A still shot and killed him. A, B and C were convicted of murder. On appeal, it was held that A had acted outside the common purpose as the murder was to be with the consent of V. Consequently, B and C could not be guilty of common purpose murder, but could be guilty of attempted murder (they had gone beyond mere preparation and had the intention to kill). It is arguable that the doctrine of common purpose extends liability too far. The rationale was stated in R v Britten and Eger (1988) 49 SASR 47: … by participating in the enterprise, each participant impliedly authorises all criminal acts which are in his contemplation as being part of the common design, or as being a substantial risk associated with its implementation: at 49.

In Hyde v R [1990] 3 All ER 872, Lord Lane CJ outlined the policy reasons for

the doctrine of common purpose: If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture. As Professor Smith points out,

[page 226] B has in those circumstances lent himself to the enterprise and by doing so he had given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder: at [139].

Critique of the doctrine of common purpose and extended joint criminal enterprise 11.43 The doctrine of common purpose or extended joint criminal enterprise has been the subject of much academic criticism. The Privy Council in R v Jogee; Ruddock [2016] UKPC 7 reversed the doctrine of common purpose (or ‘parasitic accessorial liability’, as it is known in the United Kingdom). In Miller v R (2016) (2016) 90 ALJR 918 the majority of the High Court held that the doctrine of common purpose should remain part of the common law. Gageler J dissented, noting the doctrine’s inconsistency with prior Australian authority; its disconnection of criminal liability from moral culpability; and the anomaly it creates between the mens rea requirements of P1 and P2. There is a great deal of confusion and dissatisfaction in this area of law, not least because of the different labels applied to the various sets of rules. Students need to be aware of this, and hopefully this chapter has assisted in clarifying the area.

The relationship between common purpose and joint criminal enterprise 11.44 In R v Phan (2001) 53 NSWLR 480, Wood CJ noted: The distinction between ‘common purpose’ and ‘joint criminal enterprise’ is not always respected, having regard to the way in which these terms, and the related terms ‘common design’ and ‘concert’ are very often used interchangeably: at [64].

Wood CJ continued that a case of common purpose is one in which it is alleged that ‘the parties agreed to commit a particular crime but had in contemplation some further crime, as a possible incident of its commission’: at [65]. In contrast, a case involving common enterprise is one in which the parties to the enterprise are: … each active participants and hence liable as principals in the first degree, or one where the crown being unable to prove which of several persons, present at the scene of a crime, committed the particular act giving rise to the offence, nevertheless was able to establish that

each was assisting the other, in which event it was properly left as one of principal and accessory’: at [65].

The distinction was explained by the Supreme Court of South Australia in R v Presley, Miller and Smith (2015) 122 SASR 476: Joint Enterprise — General Principles In its simplest application, a joint criminal enterprise exists when a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime and participate together in pursuance of that agreement. The understanding or arrangement need not be express and its existence may be inferred from all the circumstances. Participation may involve committing the agreed crime itself or being present at the time when the crime is committed and by intentionally assisting or encouraging another participant to commit the crime. If one or another of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty regardless of the part played by each of them.

[page 227] Extended Joint Enterprise [doctrine of common purpose] — General principles If a person reaches an agreement to commit a crime and foresees as a possible incident that another crime might be committed and continues to participate in the agreed crime knowing of that possibility, then that person is as much a party to the crime that he has foreseen as he is a party to the agreed crime. For any party to be guilty of murder through extended joint enterprise they must foresee as a possible incident of their arrangement that another party to the agreement might act with intent to kill or inflict grievous bodily harm: at [61]–[63].

The distinction is important, as where D acts in concert with P1 (or in a joint criminal enterprise), D’s liability is primary and is not derived from that of P1. Where the doctrine of common purpose is applied, D’s liability as an abettor depends on the guilt of P1 being established. Student tip The language of the judgments is not always consistent or clear. To avoid confusion, refer to doctrines of common purpose and joint criminal enterprise consistently.

The relationship between the different sets of rules of complicity 11.45 Matusevich v R (1977) 15 ALR 117 provides an example of the potential intersection of the different rules of complicity. D and T were charged with the murder of V. D, T and V were in the same ward in prison, where V was killed by blows inflicted with an axe. T stated that his memory was vague, but he remembered losing control and hitting V on the head with an axe. At the trial, the main issues concerned which of the two defendants

struck the blows which killed V and whether there had been concert between them in the commission of the crime. T’s counsel attempted to suggest D was solely responsible for the killing, but D made no significant concessions on the stand. Evidence was brought to show that T was insane at the time of the killing. D gave evidence in which he said that he was locked up in the ward with a madman, T, who not only killed V but threatened to kill D if he gave the alarm. The trial judge stated that insanity was not relevant to whether D and T had acted in concert. The trial judge stated that if the jury should find T not guilty on the ground of insanity, they could not then find D guilty of aiding and abetting; this did not apply to acting in concert. T and D were found guilty of murder and appealed to the Victorian Court of Criminal Appeal. It was held that the jury had not been properly instructed on the issue of insanity, and the verdict against T should be set aside and a new trial ordered. At a new trial, T was found not guilty on the ground of insanity. D then appealed to the High Court on the ground that it was not possible to act in concert with an insane person in the commission of a crime. Gibbs ACJ quoted principles of acting in concert from R v Lowery and King (No 2) [1972] VR 560: The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement

[page 228] is still on foot and has not been called off, they are both present at the scene of the crime and one or the other of them does, or they do between them, in accordance with their understanding of the arrangement, all the things necessary to constitute the crime, they are all equally guilty of that crime regardless of what part they played in its commission: Matusevich at 120.

The question of whether the persons have entered into an agreement is one of fact. The circumstance that one of the persons concerned is insane is relevant to that issue; but insanity sufficient to amount to a defence to a criminal charge does not necessarily render the person whose mind is diseased incapable of making an agreement or arrangement or reaching an understanding with another. 1. If T did not know the nature and quality of the act (due to insanity), then there could be no acting in concert of the two accused. However, if D incited T to kill V, D would be guilty of murder, since T, if insane, would be treated as D’s innocent agent. 2. If there was no preconcert between T and D, but D was present and assisted T when the latter struck the blows, then D could still be convicted as P2. That is, D aided and abetted T, knowing the essential elements of the offence and intending to aid and abet while T was hitting V.

3. Even if T is insane, T and D could still act in concert. For example, D decides that he wants V dead and procures T. Consequently, insanity will not automatically exclude the possibility of agreement; rather, it will be a question of fact for the jury.

The High Court case of Clayton v R; Hardwick v R; Hardwick v R (2006) 231 ALR 500 provides another example of the intersection of common purpose and joint criminal enterprise. Student tip Where the prosecution has asserted joint criminal enterprise, it is not necessary to invoke the doctrine of innocent agency to ensure the conviction of one participant where the other is acquitted. Where there is an agreement between the parties to commit the offence, the liability of each participant is primary, not derivative.

The new law of complicity in Victoria 11.46 The common law of complicity has been largely abolished in Victoria and replaced with statute: see ss 323, 324, below. Section 324C abolishes the law of complicity at common law in relation to aiding, abetting, counselling or procuring, and the doctrines of ‘acting in concert, joint criminal enterprise and common purpose’. The common law regarding withdrawal has not been abolished (see 11.51) and the statutory offence of accessory after the fact (s 325) remains the same (see 11.58). 323 Interpretation (1) For the purposes of this Subdivision, a person is involved in the commission of an offence if the person — (a) intentionally assists, encourages or directs the commission of the offence; or [page 229] (b) intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence; or (c) enters into an agreement, arrangement or understanding with another person to commit the offence; or (d) enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence. (2) In determining whether a person has encouraged the commission of an offence, it is irrelevant whether or not the person who committed the offence in fact was encouraged to commit the offence. Note A person who committed an offence may include 2 or more persons who entered into an agreement, arrangement or understanding to commit the offence. (3) A person may be involved in the commission of an offence, by act or omission —

even if the person is not physically present when the offence, or an element of the (a) offence, is committed; and (b) whether or not the person realises that the facts constitute an offence. 324 Person involved in commission of offence taken to have committed the offence (1) Subject to subsection (3), if an offence (whether indictable or summary) is committed, a person who is involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence. (2) Despite subsection (1), a person is not taken to have committed an offence if the person withdraws from the offence. Note The common law recognises that in certain circumstances a person may withdraw from an offence in which the person would otherwise be complicit: for example, White v Ridley [1978] HCA 38; (1978) 140 CLR 342; R v Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438; R v Jensen and Ward [1980] VicRp 24; [1980] VR 194. (3) Nothing in this section imposes liability on a person for an offence that, as a matter of policy, is intended to benefit or protect that person.

11.47 Section 324(1) provides that if an offence is committed, a person who is involved in the commission of that offence is taken to have committed that offence. Under s 324(1) a person is thus a P1 if they were ‘involved in’ the commission of that offence. There are two basic ways of ‘being involved in the commission of an offence’, both supplemented by a form of recklessness. 1. The first form of involvement is where D ‘intentionally assists, encourages or directs the commission of the offence’: s 323(1)(a). This essentially covers the same conduct that was previously covered by the common law actus reus for accessories who ‘aid, abet, counsel or procure’. The idea behind using the words ‘assists, encourages, or directs’ is that they are simpler and more clearly cover distinct types of involvement. This form of complicity is focused on the kind of

[page 230] conduct the person engages in to help bring about the offence. The mens rea is consistent with the common law requirement of Giorgianni: that D must intend to assist, encourage or direct the conduct that amounts to commission of the offence. However, under s 323(3)(b), D need not be aware that he or she was assisting, encouraging or directing a criminal offence. This is consistent with the principle that ignorance of the law is no excuse. 2. The second form of involvement is where the person ‘enters into an agreement, arrangement or understanding with another person to commit the offence’: s 323(1)(c). This paragraph applies to the kinds of group activities targeted by acting in concert and joint criminal enterprise. The focus of s 323(1)(c) is upon entering into an ‘agreement, arrangement or understanding’. 3. In addition, both these basic ways of being involved in the commission of an offence are supplemented by a form of recklessness. D will be involved in the commission of an additional offence if D ‘was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence’: s 323(1)(b). This paragraph simplifies the common law doctrine of common purpose in relation to situations where an offence additional to the original plan occurs. Whether D intentionally ‘assists,

encourages or directs the commission of another offence’ or ‘enters into an agreement, arrangement or understanding with another person’, the prosecution must prove that D ‘was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence’. Thus if D agreed with P1 to commit a robbery and in the course of the robbery P1 killed V, the prosecution would have to prove that D was aware that it was probable that a murder would be committed in the course of the robbery.

11.48 The legislation is clear that physical presence at the scene of the crime is not an essential part of being involved: s 323(3)(a). This is appropriate in the age of telecommunications and cybercrime. 11.49 In s 323(2), the legislation clarifies the meaning of ‘encourages’, stating ‘it is irrelevant whether or not the person who committed the offence in fact was encouraged to commit the offence’. This is consistent with the common law principle that there was no causal requirement for accessorial liability, unless the prosecution asserted that D had procured the offence. 11.50 Under s 324B, the offender’s precise role need not be determined. As noted above in relation to the New South Wales and South Australian cases (see 11.4), there can be situations where it is not clear who did what — it is only clear that D was involved. In those States, this has led to the prosecution running cases based on several sets of principles: the doctrines of common purpose, joint criminal enterprise, accessorial liability and/or innocent agency. Under s 324B (Vic), the prosecution need only establish that a crime was committed and D was either ‘the person who committed the offence or … a person involved in the commission of the offence’.

Withdrawal 11.51 D may escape liability as an accessory if, before the offence was committed, D terminated his or her involvement and took all reasonable steps to prevent [page 231] the commission of the offence. D is required to neutralise any impact of his or her involvement. In White v Ridley (1978) 140 CLR 342 Gibbs J said: It seems entirely reasonable to insist that a person who has counselled or procured another to commit a crime, or who has conspired with others to commit a crime, should accompany his countermand or withdrawal with such action as he can reasonably take to undo the effect of his previous encouragement or participation: at 350.

The requirements of withdrawal have been applied strictly by the courts. The countermand must be timely, and ‘will not have been timely if it was given when it was too late to stop the train of events which was started by his

request’: White v Ridley at 350–1 per Gibbs J. D’s actions need to be reasonable in the circumstances. 11.52 In Tietie, Tulele and Bolamatu, D argued that he had withdrawn from a joint criminal enterprise before it escalated into a more violent, and ultimately fatal, attack on V. Lee J said: To effectively withdraw from a common enterprise upon which he has embarked he must withdraw completely. It must be timely. He must make it known to the others that he was withdrawing and he must, by such act and words as may be appropriate, do what he reasonably can to dissuade others from continuing with the unlawful purpose. An accused must have said or done whatever is reasonably possible to countermand the effect of his earlier encouragement and participation. The countermand will not be timely if it was given when it was too late to stop the train of events which his presence and actions has encouraged: at 455–6.

11.53 In R v Rook [1993] 1 All ER 955, D had agreed with A, B and C to kill A’s wife in return for A paying them £20,000. The plan was that they would meet up and kill V the next day, but D did not turn up. Despite his absence, A, B and C killed V, and all four were charged with murder. D asserted that he had never intended V to be killed, but had hoped to get some money up front from A and then disappear. He had deliberately absented himself on the day of the killing because he had thought the others would not continue without him. D was found guilty of murder and, on appeal, the Court applied the law relating to withdrawal: In the present case the appellant never told the others that he was not going ahead with the crime. His absence on the day could not possibly amount to ‘unequivocal communication’ of his withdrawal. In his evidence-in-chief … he said that he made it quite clear to himself that he did not want to be there on the day. But he did not make it clear to the others. So the minimum necessary for withdrawal from the crime was not established on the facts: at 963, original emphasis.

D’s appeal was dismissed. 11.54 The Model Criminal Code (Cth) is broadly reflective of the common law: 11.2(4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person: (a) terminated his or her involvement; and (b) took all reasonable steps to prevent the commission of the offence.

[page 232] Examples suggested include discouraging P1, alerting V, withdrawing the goods necessary for committing the crime, and/or giving timely warning to an appropriate law enforcement authority.

11.55 The reforms in Victoria maintain the common law rules of withdrawal: ss 324(2), 324C.

Defences available to accessories 11.56 D can rely upon standard defences such as intoxication, duress, necessity and self-defence.

Duress as a defence to murder 11.57 It is unclear whether D can rely upon duress in cases where P1 has committed murder. The House of Lords held in R v Howe [1987] AC 417 that duress is not available as a defence to a charge of murder for P1s or P2s. This is no longer the case in Victoria due to reforms introduced in 2005: see s 9AI. In R v McConnell [1977] 1 NSWLR 714, the New South Wales Supreme Court held that duress was available as a defence to a P2. It remains unclear whether Howe will have any effect on the law in Australia.

Accessories after the fact 11.58 The offence of being an accessory after the fact is an independent offence against justice. The offence requires that D perform an act after the commission of a felony that assists the felon to escape justice. Accessories after the fact are generally subject to a lower penalty than P1s or accessories before the fact. Elements At common law, the prosecution must prove: •

P1 has committed an offence;

•

D did an act with the purpose of helping P1;

•

D knew an offence had been committed; and

•

with that knowledge, D intended to assist P1 escape justice.

As a result of legislative reforms in South Australia and Victoria, the mens rea requirements for accessories after the fact are now less strict. This will be discussed after the common law requirements of accessories after the fact have been considered.

Actus reus 11.59 D did an act with the purpose of helping P1There must be an act by D that helps P1 to escape justice. This requirement is broadly applied, and can

include any act. The actus reus is not limited to harbouring the felon, and can include disposal or alteration of the evidence. Thus, if D altered the engine number of a stolen car, and painted it [page 233] so that it was not recognisable, this would amount to assistance: R v Tevendale [1955] VLR 95. Removing incriminating evidence after P1 has been arrested will be sufficient to make D an accessory: R v Levy [1912] 1 KB 158. This is because such an action will impede the conviction and punishment of P1. Lending money to an escaped prisoner will also be sufficient assistance, as the money will help P1 live in the community: R v Kawicki (1995) 82 A Crim R 191. This requirement is continued in legislative reforms in South Australia (s 241(1) and Victoria (s 325(1). For example, the Victorian legislation refers to ‘any act with the purpose of impeding the apprehension, prosecution, conviction or punishment of the principal offender’: s 325(1) (Vic). 11.60 Effectiveness of the help There is no requirement of effectiveness, ie, the attempt to help P1 need not actually succeed. The actus reus of the offence will be satisfied if the act of D has the potential to help P1 evade justice: R v Hansill (1849) 3 Cox CC 597. This requirement is stressed in the South Australian and Victorian legislation — D is criminalised by doing an act with the intention of helping, irrespective of the effectiveness of D’s actions: s 241(1) (SA); s 325(1) (Vic). 11.61 Omissions An omission to act is generally insufficient. However, this may give rise to other offences, such as concealing a serious offence (s 316 (NSW); s 326 (Vic)), or impeding the investigation of an offence (s 241 (SA)). 11.62 Enjoyment of proceeds Merely enjoying the proceeds of another’s crime is not sufficient. For example, where D accepts a lift in a car that D believes to be stolen, D will not be an accessory after the fact: R v Barlow (1962) 79 WN (NSW) 756. D may, however, incur liability for another offence, such as joyriding.

Mens rea New South Wales 11.63 Knowledge of the essential elements of the crime There must be knowledge that a felony has been committed: Tevendale. In Tevendale, the Supreme Court of Victoria held that D must know the precise felony that has

been committed. It should be noted that the facts of the case were such that it was unnecessary to consider whether lesser knowledge would be satisfactory. In cases where D believes P1 has committed murder, but P1is later charged with manslaughter, this knowledge has been held to be sufficiently precise: R v Stone [1981] VR 737. This is based on the principle that the more serious crime of murder includes the lesser crime of manslaughter. However, in a trial of an accessory after the fact to murder, D must know that the offence committed was murder, and not simply an unlawful killing: Gall v R [2015] NSWCCA 69. In that case, the jury had to be instructed that D knew P1 had shot V with an intent to kill or inflict GBH and was not acting in self-defence. Stone demonstrates the strict knowledge requirements to accessories after the fact in common law jurisdictions. In that case, D drove his friend, P1, to a town where P1 was more likely to hitch a ride, in the belief that P1 had murdered his ex-wife and her lover. In fact, P1 had killed his ex-wife, but only wounded the lover. [page 234] It was held that D: ◆ could not be found guilty of being an accessory to the wounding of the lover, because D’s knowledge was too imprecise; and ◆ could be an accessory after the fact to the killing of the ex-wife. D could have inferred that P1 had voluntarily shot and killed his wife, and that he had done this with the necessary intent. Thus, he had the necessary knowledge that P1 had committed an unlawful homicide.

Thus, at common law, D can only be convicted as an accessory after the fact if the prosecution can establish that D had knowledge of all the relevant facts and acts of the offence for which D is an accessory. 11.64 With that knowledge, an intention to assist D must act with the intention to assist P1 escape arrest or conviction, even if D was motivated by a desire to benefit personally: R v Young and Phipps (unreported, NSWCCA, 31 October 1995); Tevendale. For example, D may sell stolen property that P1 asked D to dispose of.

South Australia and Victoria 11.65 Legislative reforms have broadened the mens rea requirements for accessories after the fact in South Australia and Victoria. 11.66 Awareness of the type of crime In South Australia and Victoria, the prosecution is no longer required to prove that D was aware of the precise

crime committed by P1. This legislation effectively overturns the strict common law approach detailed above in Stone and Gall. Section 241(2)(a) (SA) requires that D knows or believes that P1 committed the same offence or ‘some other offence committed in the same, or partly in the same, circumstances’. The Victorian provision is broader than the South Australian, requiring D know or believe ‘the principal offender to be guilty of the principal offence or some other serious indictable offence’: s 325(1) (Vic). In R v Dean (1995) 65 SASR 234, it was noted that a person can have a belief while having a degree of doubt about it. However, it must be more than mere suspicion. 11.67 Intention to impede justice The South Australian and Victorian legislation is clear that D must act, with that knowledge, ‘with the intention of ’ impeding justice (s 241(1) (SA)) or ‘with the purpose of ’ impeding justice (s 325(1) (Vic)).

Derivative offences 11.68 D can incur liability for possessing the purpose to commit a substantive criminal offence, where D’s conduct has the potential to result in this harm. Criminalising preliminary conduct is justified by its preventative effect, reducing the likelihood that a substantive crime will be committed. [page 235]

CONSPIRACY 11.69 The crime of conspiracy exists at common law in New South Wales and South Australia. Specific conspiracy offences are outlined by statute, eg, conspiracy to murder: s 26 (NSW); s 12 (SA). In Victoria, the common law offence has been abolished and replaced by a statutory offence of conspiracy: ss 321, 321A–321F. These provisions broadly follow the common law, and any differences will be discussed at the end of this section: see 11.77. Conspiracy is frequently charged in Australia, particularly in relation to drug offences, and tax, corporate and social security fraud. Trials are generally complicated and time consuming. The offence of conspiracy is formulated in vague and wide terms. It is

beyond the scope of this text to provide full details regarding the law of conspiracy. Hence, this section will provide a brief and necessarily incomplete outline of the law. The courts have been concerned about the potential for creating new offences without the approval of the legislature. For example, in R v Rogerson (1992) 174 CLR 268, McHugh J stated that ‘courts are no longer able to create criminal offences’. The classic description of the crime of conspiracy at common law is that it consists of an agreement to do an unlawful act or a lawful act by unlawful means: Mulcahy (1868) LR 3 HL 306 at 317. The agreement itself constitutes the offence. The mens rea of the offence is the intention to do the unlawful act: the actus reus of the offence is the fact of agreement: at 298.

Elements In order for D to be found guilty of the crime of conspiracy, the prosecution must prove beyond a reasonable doubt: •

D entered into an agreement with other persons;

•

the agreement related to:

•

•

the commission of an offence (common law and Victoria); or

•

a lawful object, but the means to be used was unlawful (common law); or

•

the object of doing injury to a third party or a class, where the wrong to be effected would, if carried out, be a wrong but not a crime (common law); and

D and at least one other party to the agreement intended that the offence should be committed.

Agreement 11.70 The actus reus of the offence of conspiracy is the agreement to do an unlawful act. The prosecution must prove the existence of an agreement. The physical acts by which the conspirators form the agreement are the relevant acts. Once the agreement is formed, the crime is committed. [page 236] The prosecution need not prove that there was agreement regarding the way in which the unlawful act was to be performed, only that there was agreement to perform the unlawful act: R v Douglas (1991) CCC (3d) 29 SCC. It is unnecessary for the prosecution to prove that any overt acts towards completion of the agreement were committed, as the agreement is the offence: Rogerson. However, any overt acts will have evidentiary significance in terms of proving the existence of an agreement. Conspiracy is generally proved by reference to overt acts and any direct evidence of the formation of the agreement.

Where the conspirators maintain the agreement, the crime of conspiracy can continue through time. The agreement can also change and develop over time. There are various ways of forming agreements, and these highlight the principle that each party need not speak to all the other parties. They include: ◆

wheel conspiracies — ‘one person … round whom the rest revolve’: R v Meyrick (1929) 21 Cr App R 94; and

◆

chain conspiracies — ‘A communicates with B, B with C, C with D, and so on to the end of the list of conspirators’: Meyrick.

The issue in conspiracies will be whether D was part of the overall plan.

Mens rea 11.71 The prosecution must prove a community of purpose: ◆

the intent to perform an unlawful act; and

◆

the intent to agree with one or more members of the group.

Intention 11.72 The mens rea for conspiracy is similar to that for attempt, in that anything less than intent to perform an unlawful act will be insufficient. Thus, recklessness will not ground liability: Siracusa v R (1990) 90 Cr App R 340.

Genuine consensus 11.73 It will be insufficient for the prosecution to prove that D knew of the agreement, or was considering joining the agreement. The prosecution must prove beyond a reasonable doubt that D entered into a genuine agreement with at least one other person to commit an act. The consensus must be genuine: ◆

D will not be liable for a sham agreement where there was only one sincere party and one pretend conspirator: R v O’Brien (1955) 110 CCC 1;

◆

D will not be liable where only one party intends the act to be committed in incriminating circumstances: R v Segal (1926) 45 CCC 32.

11.74 Impossibility The law relating to conspiracy to commit the impossible is the same as that detailed for attempting the impossible: see

11.82. Thus, the defence of impossibility will not allow D to avoid liability. The defence of impossibility will often arise in relation to police undercover operations, eg, where D believes he or she is [page 237] acquiring heroin from a drug dealer, when D is actually receiving plaster of Paris from an undercover police officer: R v Barbouttis (unreported, NSWCCA, 15 February 1993). Refusal to criminalise conspiracy to commit the impossible would undermine police operations in this area. In R v El Azizi [2001] NSWCCA 397, it was held that a charge of conspiracy to manufacture a prohibited drug was valid despite the fact that D could not have made the drug with the ingredients he had planned to use. As with attempt, impossibility at law will be a good defence. Thus in Barbouttis it was held that there must be an agreement to commit an unlawful act. If D had agreed to an act that would not in fact be illegal, D could not be guilty of conspiracy. 11.75 Multiple object agreements Problems can arise in multiple object agreements, where there are agreements for the commission of at least two overt acts. The prosecution must prove: ◆ a conspiracy with regard to the particular terms of each of the unlawful acts; and ◆ that D agreed to the commission of all of the objects in the conspiracy charged. Where the prosecution can only prove D’s agreement with regard to some of the overt acts, then D could be charged in relation to the agreement that has been proved.

11.76 The scope of the agreement There may be a number of coconspirators, with several unlawful acts occurring over a period of time. The prosecution must prove the scope of the alleged agreements before it can be proved that these agreements exist. The prosecution may seek to establish: ◆ several small conspiracies: see, eg, R v Gerakiteys (1984) 58 ALJR 182; or ◆ one big conspiracy: see, eg, Meyrick, where the owners of some nightclubs paid police not to enforce existing licensing laws. One big conspiracy to prevent the enforcement of liquor laws was found.

The overall intention of the conspirators is relevant, rather than the conspirators’ relation to each individual overt act relied upon: R v Kalajzich and Orrock (1989) 39 A Crim R 415.

Victorian reforms to the law of conspiracy

11.77 In Victoria, the common law offence has been abolished and replaced by a statutory offence of conspiracy: ss 321, 321A–321F. Common law conspiracy continues to exist in Victoria only in relation to conspiracy to cheat and defraud, and conspiracy to defraud: Re Hamilton-Byrne [1995] 1 VR 129. Elements Under the legislative reforms in Victoria, the prosecution must prove that: •

D entered into an agreement with other persons;

•

the agreement related to the commission of an offence; [page 238]

•

D and at least one other party to the agreement intended that the offence should be committed; and

•

D and at least one other party to the agreement intended or believed that when the conduct constituting the offence was to take place, the facts or circumstances necessary to constitute an offence would exist.

The Act limits the traditional common law reach of conspiracy to agreements to commit a criminal offence: s 321. Section 321(3) reflects the common law position regarding conspiring to commit the impossible: A person may be guilty under subsection (1) 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.

ATTEMPT 11.78 D can incur liability for attempting to commit a crime under the common law in New South Wales and South Australia. Provisions in these jurisdictions relating to attempt rely on common law principles: s 344A (NSW); s 270A (SA). Victoria has abolished the offence of attempt under common law (s 321S), and relies upon statutory provisions: ss 321M, 321N. The legislation is incomplete, and common law cases are still relevant. The offence is limited to attempts to commit indictable offences, and the offence itself is an indictable offence: s 321M. Broadly, an attempt is an act that goes beyond mere preparation, and goes close to committing the substantive crime planned. A charge of attempt must specify the substantive offence that D was attempting to commit. D is punished for trying to commit a criminal offence.

Student tip Attempt problem questions are relatively straightforward. Where students tend to have problems is correctly identifying that the facts raise the offence of attempt, rather than a completed offence.

The offence has been defined at common law in Britten v Alpogut [1987] VR 929: … 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 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 at 938 per Murphy J.

[page 239] Elements The prosecution must prove beyond a reasonable doubt: •

D intended to commit a crime; and

•

D went beyond mere preparation: Britten v Alpogut.

Mens rea 11.79 Clearly, the offence of attempt relies heavily upon proof of a guilty mind. The prosecution must prove beyond a reasonable doubt that D had the intention to commit the substantive offence. Recklessness will be insufficient: Giorgianni. Intention is required, even where recklessness would be sufficient mens rea for the substantive offence. D must intend the specific harm associated with the offence. In Knight v R (1992) 175 CLR 495, it was held that the prosecution must prove beyond a reasonable doubt that D had the intention to kill for a charge of attempted murder. Intention to inflict GBH would be insufficient for a charge of attempted murder. This is because the mens rea for attempt is the intention to commit the completed offence. The mens rea for this offence in Victoria is the same as at common law (s 321N): (2) For a person to be guilty of attempting to commit an offence, the person must — (a) intend that the offence the subject of the attempt be committed; and (b) intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time the offence is to take place. (2A) For the purposes of subsection (2)(b), in the case of an attempt to commit an offence against section 38 (rape), section 39 (rape by compelling sexual penetration), section 40 (sexual

assault) or section 41 (sexual assault by compelling sexual touching), instead of the element of the offence referred to in section 38(1)(c), 39(1)(c), 40(1)(d) or 41(1)(d), it must be proved that at the time of the attempt the person (A) does not reasonably believe that the person against whom the offence is to be committed (B) would consent to the penetration or the touching (as the case requires).

Actus reus 11.80 There is no precise definition of the actus reus of the offence of attempt. This is because there have been difficulties in formulating a precise standard, due to the complexity of determining the extent to which D’s actions must reveal the potential to cause specific harm, in order to warrant punishment. A broad definition is that D’s actions must go beyond mere preparation, and go close to the commission of the intended crime: R v Collingridge (1976) 16 SASR 117. It will be a question of fact for the jury as to whether or not D has gone beyond mere preparation. D’s actions are assessed according to objective standards, but based upon the belief that D had the intent to commit the substantive offence. [page 240] Several tests have been proposed to distinguish between mere preparation and attempt: ◆

Proximity test Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are: R v Eagleton (1843–60) 169 ER 826.

◆

Last act test An attempt is found only where the last act before completion has been performed: Eagleton.

◆

Series of acts test Would an offence have been committed if this series of acts had not been interrupted? Haughton v Smith [1975] AC 476.

◆

Unequivocal test An attempt only occurs where the conduct unequivocally indicates an intention to commit the offence: R v Barker [1924] NZLR 865.

In DPP v Stonehouse [1978] AC 55, the House of Lords held that these tests should be used only as guidelines to drawing a distinction between mere

preparation, and conduct going close to the commission of the offence. Ultimately it will depend on the facts of the case as to whether the conduct is considered to amount to attempt. The actus reus of the statutory offence of attempt in Victoria is the same as the common law offence: s 321N(1). This provision requires conduct that is ‘more than merely preparatory to the commission of the offence’ and ‘immediately and not remotely connected with the commission of the offence’. This is a twofold test which does not add anything to the common law.

Voluntary desistance 11.81 D may attempt to commit a crime, and then voluntarily desist before its completion. So long as D’s acts are sufficiently proximate to constitute an attempt, voluntary desistance by D will not provide a defence to a charge of attempt. D’s motivation — whether due to genuine remorse or fear of capture — will be irrelevant (but may influence sentencing): O’Connor v Killian (1984) 38 SASR 327. In R v Page [1933] VLR 351, the Supreme Court of Victoria considered a case where D and X had planned to break into a shop. D was to keep watch while X broke in. X was in position to lever open a window when he decided not to continue with the job. The Court held that D and X had the intention to break and enter and had gone beyond mere preparation. The fact that they had desisted and their reasons for doing so were irrelevant, as otherwise ‘it would seem to involve the necessity in almost every case of an unsuccessful attempt to commit a crime, of determining whether the accused desisted from sudden alarm, from a sense of wrongdoing, from a failure of resolution, or from any other cause’: at 353. [page 241]

Impossibility 11.82 Cases have arisen where D has attempted the impossible. In New South Wales, South Australia and Victoria, a distinction is made between factual impossibility and legal impossibility: R v Mai (1991) 26 NSWLR 371; R v Irwin (2006) 94 SASR 480; s 321N (Vic). Where D is incapable of fulfilling an offence by reason of factual matters, it is immaterial to a charge of attempt that, by reason of circumstances

unknown to D, it is impossible to commit the offence: Britten v Alpogut; s 321N (Vic). Where D attempts to commit an offence which is unknown to law, then D will not be liable for that conduct: Britten v Alpogut. For example, if D incorrectly believes that adultery is a criminal offence, D cannot be charged with attempted adultery. In Britten v Alpogut, D believed that he was importing a prohibited import, cannabis, into Australia. The substance was concealed at the bottom of a suitcase which D had collected at the airport. He did not declare the substance, and it was found during a customs examination. The substance turned out to be a licit substance. It was held that there was a case to answer at law: If the facts had been as the accused had believed them to be, he would have committed the intended crime … He is punishable, not because of any harm that he has actually done by his conduct, but because of his evil mind, accompanied by acts manifesting that intent: at 936.

In cases where D attempts the impossible, the ultimate issue will be whether D’s actions are sufficiently proximate to the commission of the intended offence. Thus, physical impossibility will not save D from conduct that would otherwise amount to an attempt. The focus in these cases is on D’s mens rea: Did D have the intention to commit an offence? Legal Problem Coby was walking down the street after going to the pub. Russell and Dinah agreed to beat him up with the intention of getting some money. Russell went after Coby, and Dinah stayed behind to keep watch. Russell came back after five minutes saying that Coby only had $50 anyway. Russell did not tell Dinah that he had stabbed Coby and killed him. Dinah knew that Russell usually carried a knife, although she was not sure that he had a knife with him that night. Dinah also knew that Russell had a temper, and could be violent when he was angry. Discuss Dinah’s criminal liability. Answer Introduction: New South Wales and South Australia Dinah could be charged as a principal in the first degree for the robbery under the doctrine of joint criminal enterprise: Osland v R (1998) 197 CLR 316; 159 ALR 170. Dinah could also be charged with the murder of Coby under the doctrine of common purpose. The prosecution would have to prove all elements of the offence beyond a reasonable doubt: Woolmington v DPP [1935] AC 462. [Comment: This is quite a [page 242] complex problem question, so the focus of the suggested response is primarily on structure.] Introduction: Victoria Dinah could be charged as the perpetrator of the robbery under s 324 (Vic). Dinah could also be charged with the murder of Coby under s 323(1)(d) (Vic).

The robbery: New South Wales, South Australia and Victoria The prosecution may seek to argue that Dinah is a principal in the first degree for the robbery of Coby in New South Wales and South Australia. The elements of this doctrine have been detailed by the High Court in Osland. Under s 324 (Vic) a person who is ‘involved’ in the commission of an offence is taken to have committed the offence. The prosecution must prove that the accused agreed to commit the crime in concert (or was ‘involved’ in the crime: s 323 Vic). The facts state that Russell and Dinah agreed to beat Coby up with the intention of getting some money. This is an agreement to commit a robbery. The prosecution must prove that the actus reus of the crime was committed by parties to the agreement. This would require proving the actus reus of robbery was committed by Russell: s 94 (NSW); s 137 (SA); s 75(1) (Vic). This requires the prosecution to prove theft (South Australia and Victoria) or larceny (New South Wales). In New South Wales, this requires that Russell took and carried away property, capable of being stolen, which belonged to another, without the consent of the owner: Ilich v R (1987) 69 ALR 231. In South Australia and Victoria, this requires dishonest appropriation of property belonging to another: s 134 (SA); s 72 (Vic). The prosecution would have no difficulties proving these elements as Russell took Coby’s $50 without his consent. The actus reus of robbery also requires that an accused used or threatened violence to commit the theft: Smith v Desmond [1965] AC 960; s 137 (SA); s 75 (Vic). The prosecution would have no difficulty in establishing that Russell used force in order to get money — the facts state that Russell and Dinah planned to beat up Coby with the intention of getting money. The prosecution must also establish that Dinah had the mens rea for the offence of robbery. In New South Wales, the prosecution must prove that Dinah intended to deprive Coby permanently of the property without a claim of right and fraudulently: Ilich. In South Australia and Victoria, the prosecution must prove dishonest appropriation of the property with an intention of permanently depriving the owner of it: s 134 (SA); s 71 (Vic). Russell and Dinah planned to take money from Coby that they were not entitled to. There is no suggestion on the facts that they intended to return the money. Given their lack of entitlement to the money, their conduct would be regarded as fraudulent or dishonest. Accordingly, Dinah had the necessary mens rea for larceny/theft. In addition, in New South Wales the prosecution must prove that Dinah intended to use violence to obtain property from Coby: Smith v Desmond. In South Australia and Victoria, the prosecution must prove that Dinah intended to use force or put any person in fear that they will be subjected to force: s 137 (SA); s 75 (Vic). The prosecution [page 243] would have no difficulty in proving that Dinah and Russell had agreed to use force in order to get money from Coby. This element of mens rea would be satisfied. Accordingly, Dinah could be guilty under the doctrine of joint criminal enterprise for the robbery of Coby. The murder: New South Wales and South Australia Dinah could be liable for the murder of Coby under the doctrine of common purpose: McAuliffe and McAuliffe v R (1995) 130 ALR 26. This requires that the prosecution establish that Dinah and Russell had a common intention to prosecute an unlawful purpose: Johns v R (1980) 28 ALR 155. I have argued above that the prosecution would be able to establish that Dinah and Russell agreed to commit a robbery.

The prosecution would also have to establish that the principal offence was committed in the pursuance of, in furtherance of, or for the purpose of, the common design: Johns. This would involve proving that Russell committed the murder in the pursuance of the robbery. The facts state that Russell killed Coby, satisfying the requirement that the accused cause the death of the victim: Royall v R (1991) 172 CLR 378. It is not clear on the facts whether or not Russell had the mens rea for murder. The prosecution would have to establish that Dinah contemplated the incidental crime as a possible incident of the joint enterprise: Johns. The facts state that Dinah was aware that Russell usually carried a knife and that he had a temper. This is similar to the case of Johns, where the accused knew that the principal in the first degree was quick-tempered and always carried a pistol. It was held that the accused could be held responsible for the murder, provided he recognised the possibility that a member of the group would commit the additional offence. The only difference in this case is that Dinah was not sure if Russell had the knife that night, but she knew that he usually carried a knife. This aspect has been broadly interpreted: R v R (1995) 63 SASR 417. Thus it is likely that the prosecution would be able to establish the necessary mens rea for the doctrine of common purpose. [Comment: This paragraph demonstrates knowledge of decided cases. It makes arguments considering commonalities and differences on the facts, and how this might influence outcome.] Accordingly, Dinah would be guilty of the crimes of robbery under the doctrine of joint criminal enterprise, and of the murder under the doctrine of common purpose. The murder: Victoria Dinah could be charged with the murder of Coby under s 323(1)(d) (Vic). Dinah agreed to commit a robbery on Coby with Russell. The prosecution would have to prove that she was aware that it was probable that the murder charged would be committed in the course of carrying out the other offence. It would be a question for the jury whether or not the prosecution established that, given Dinah’s knowledge that Russell usually carried a knife and that he had a temper, she recognised the probability of murder.

[page 244]

Chapter 12 Defences: Mental Impairment and Automatism Objectives After reading this chapter you should be familiar with the following: ▶ defence of insanity at common law ▶ the burden of proof for the defence of mental impairment ▶ the M’Naghten rules ▶ the legal concept of a disease of the mind ▶ limits to the scope of the defence of mental impairment ▶ doctrine of automatism ▶ automatism and mental impairment

INTRODUCTION 12.1 Ascription of criminal responsibility is based on the presumption that individuals have the capacity to choose rationally when acting. D is considered blameworthy if D performed a criminal act voluntarily and intentionally, and understood the nature of his or her act. Some mental states may impair the ability of individuals to act voluntarily or rationally. The law recognises some of these mental states when determining liability for criminal acts. In all Australian jurisdictions, mentally impaired persons have a defence to any criminal charges brought against them. Historically, the name of this defence was insanity. All jurisdictions have sought to move away from the stigmatising label of ‘insanity’. In New South Wales it is now known as ‘mental illness’, in South Australia it is ‘mental incompetence’ and in Victoria ‘mental impairment’. The chapter will use the term ‘mental impairment’ to cover all jurisdictions. This chapter considers the defence of mental impairment and the related ‘defence’ of automatism. Automatism can be broadly defined as a state in which D’s mind or will does not accompany his or her actions. [page 245]

MENTAL IMPAIRMENT 12.2 The law of mental impairment derives from M’Naghten’s Case [1843– 60] All ER Rep 229. The so-called M’Naghten rules state that jurors ought to be told that: … every man is 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 to not know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong: at 233.

Elements For the defence of mental impairment to succeed, it must be proved, on the balance of probabilities, that at the time of the act, D was labouring under such defect of reason, owing to a disease of the mind, that: •

D did not know the nature and quality of his or her act; or

•

if D did know it, that D did not know that what he or she was doing was wrong

The defence is still a common law defence in New South Wales, although statutory provisions in relation to it exist: Mental Health (Forensic Provisions) Act 1990. In South Australia and Victoria the common law defence of insanity is largely reflected by statutory provisions. In Victoria, the common law defence has been abrogated by s 25(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and replaced with the defence of ‘mental impairment’ under s 20(1) of the same Act. In this chapter, all references to Victorian legislation will be to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The defence in Victoria is similar to the common law in many respects. Under s 20(1), a person may be found not guilty on the grounds of mental impairment if: … at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that — (a) he or she did not know the nature and quality of the conduct; or (b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

Under s 269C (SA), the defence of ‘mental incompetence’ is broader than the common law defence of insanity: A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment:

(a) does not know the nature and quality of the conduct; or (b) does not know that the conduct is wrong; or (c) is unable to control the conduct.

[page 246] Burden of proof The prosecution is entitled to presume that every person is mentally competent. To raise the issue of mental impairment, the evidential burden of suggesting that there is a reasonable possibility D was mentally impaired must be satisfied. The party raising the issue of mental impairment bears the burden of proving mental impairment on the balance of probabilities: R v Porter (1933) 55 CLR 182; ss 269D, 269I (SA); s 21 (Vic). Mental impairment is thus an exception to the Woolmington v DPP [1935] AC 462 ‘golden thread’ rule: see Chapter 1.

Raising the issue of mental impairment 12.3 Generally, the defence will raise the issue of mental impairment. However, in exceptional circumstances, the prosecution can do so: R v Ayoub (1984) 10 A Crim R 312; s 21 (Vic). Where D raises the issue of his or her state of mind (eg, relating to impairment of the mind or automatism), then the trial judge may leave the defence of mental impairment to the jury. In Ayoub, D was charged with the murder of his father. He raised the defence of diminished responsibility. D did not raise the insanity defence, but the prosecution did. D was found not guilty on the ground of mental illness. It was held that, whether the defence or prosecution raised the defence, the burden of proof was the same, ie, on the balance of probabilities. The High Court approved this position in R v Falconer (1990) 171 CLR 30.

Finding of not guilty on the ground of mental impairment or mental illness 12.4 In New South Wales and Victoria, theoretically the issue of mental impairment arises only where the jury is satisfied beyond a reasonable doubt that, if D were mentally competent, he or she would be guilty of the offence charged: The jury in the first place must consider whether the offence is proved. If it is not, the accused should be acquitted, not found not guilty on the ground of insanity. The accused must not lose a chance of acquittal of the offence charged by reason of being insane: Stiles v R (1990) 50 A Crim R 13 at 22.

The elements of the offence which have to be proved by the prosecution when

the defence of mental impairment is established have been examined in England. In Re Attorney-General’s Reference (No 3 of 1998) [1999] 3 All ER 40, D had broken into a house and assaulted the occupants in the belief that he was Jesus Christ. Both the prosecution and defence agreed that D was legally insane. The Court of Appeal held that: … assuming insanity … the Crown is required to prove the ingredients which constitute the actus reus of the crime … the Crown is not required to prove the mens rea of the crime alleged, and apart from insanity, the defendant’s state of mind ceases to be relevant: at 49.

12.5 In South Australia, reforms have separated the defence of mental impairment from the question of whether D committed the offence. These reforms were introduced [page 247] because the conflation of questions of mental competence and guilt had the potential to confuse juries due to shifting burdens of proof between parties. Under s 269E (SA), the question of D’s mental competence must be separated from the remainder of the trial. Section 269E(1) provides that if either D or the court raises a question as to mental competence, then this will be determined separately from the elements of the offence. Whether the issue of mental competence or the elements of the offence are heard first is determined at the trial judge’s discretion: s 269E(2). Question of Law Reserved No 1 of 1997 (1997) 70 SASR 251 provides a flow chart of the steps involved. Section 269F provides the procedure if the court decides to address mental competence first. This requires that D prove on the balance of probabilities that D was not mentally competent at the time of the offence. If the court is not satisfied, the finding that the presumption of mental competence has not been displaced must be recorded, and the trial will proceed in the normal way: s 269FA(3). If the court finds that the presumption has been displaced, then this finding must be recorded and the trial will commence according to s 269FB. If the court is not satisfied that the objective elements of the offence are established (eg, causation), D will be found not guilty of the offence. If the court is satisfied that the objective elements of the offence are made out, a record of this finding must be made. If this is the finding, then D is still found not guilty, but D will be declared liable to supervision: s 269GA. Section 269G provides the procedure if the court decides to address the objective elements first. If the objective elements are not established, then D will be found not guilty. If the objective elements are satisfied, then the trial will move to the issue of D’s mental competence under s 269GB. If the court finds on the balance of probabilities that D was mentally impaired at the time

of the offence, then D will be found not guilty but liable to supervision. If the court finds that the presumption that D was mentally competent was not displaced, then the court will consider the subjective elements of the offence, ie, the mens rea. 12.6 Where the defence of mental impairment is established, a special finding of not guilty by reason of ‘mental illness’ results in New South Wales (s 38 of the Mental Health (Criminal Procedure) Act 1990 (NSW)); and by reason of ‘mental impairment’ in Victoria (s 20(2)) and South Australia (s 269C). New South Wales continues to operate in a way similar to the old common law. In New South Wales, D is detained in strict custody for an indefinite period as a forensic patient. Generally, D will be detained until D is no longer perceived as a danger to society, or to himself or herselv: s 39(2) of the Mental Health (Criminal Procedure) Act 1990 (NSW). Because D will be confined indefinitely, mental impairment tends only to be raised in the most serious cases. In South Australia, Pt 8A provides for the penalty regime that applies to a D found not guilty by reason of mental impairment. The court can impose a supervision order or release D on licence: s 269O. In Victoria, a new system of disposition was introduced by the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Where D is found not guilty because of mental impairment, the court can impose either a custodial supervision order or a non-custodial supervision order: s 26(2)(b). [page 248] Student tip Mental impairment is not a popular defence. It is difficult to prove and can result in the defendant being detained indefinitely.

The mental impairment defence Disease of the mind 12.7 The common law defence of insanity will only be available if the defect of reason is due to a ‘disease of the mind’. The existence of a disease of the mind must be proved on the balance of probabilities. ‘Disease of the mind’ is a legal term, rather than a medical term. Whether or not there is sufficient evidence of the existence of a disease of the mind for

the issue to go to the jury is a question of law for the judge to determine: R v Kemp [1957] 1 QB 399. It is irrelevant whether a disease of the mind is temporary or permanent, curable or incurable. Thus, temporary mental impairment will be sufficient to ground the defence. It is up to the jury to determine whether or not D was mentally impaired at the time of committing the criminal act. Generally, this will be a mixture of fact and law, involving a consideration of expert and other evidence, and whether these establish the existence of a disease of the mind. 12.8 R v Porter (1933) 55 CLR 182 is a major High Court case considering the defence of insanity. In that case, D had separated from his wife and had made desperate attempts at reconciliation. D took a cocktail of drugs and drove in circumstances which suggested he had not slept for three nights. The evidence suggested he showed symptoms of a nervous breakdown. His ex-wife told him she wanted nothing to do with D or their 11-month-old child. D told his ex-wife that he would poison himself and the child, and left. The ex-wife called the police, who found D sobbing. He had just given strychnine to the child, who died, and was about to take it himself. In Porter, Dixon J gave a wide definition of ‘disease of the mind’, stating: [D’s] state of mind must have been one of disease, disorder or disturbance. Mere excitability of a normal man, passion — even stupidity, obtuseness, lack of self-control, and impulsiveness — are quite different from what I have attempted to describe as a state of disease or disorder or mental disturbance, arising from some infirmity, temporary or of long standing. If that existed, it must then have been of such a character as to prevent him from knowing the physical nature of the act he was doing, or of knowing that what he was doing was wrong: at 189–90.

It was held that D was suffering from a disease of the mind or disorder due to the cocktail of drugs, the sleeplessness and the nervous breakdown. One major factor in determining whether a disease of the mind exists, is the likelihood of recurrence. This is based on policy considerations related to community safety, rather than medical conceptions of diseases of the mind. [page 249] 12.9 In South Australia and Victoria, different terms are used, but the statutory definitions suggest the concepts are the same. In South Australia, a ‘mental impairment’ is required. Under s 269A, this includes mental illness, an intellectual disability, or a disability or impairment of the mind resulting from senility, but does not include intoxication. ‘Mental illness’ is defined in s 269A as ‘a pathological infirmity of the mind’. These

provisions are likely to be interpreted consistently with the common law ‘disease of the mind’. The Victorian term ‘mental impairment’ (s 20(1)) is not defined, and may be interpreted more broadly than the common law term ‘disease of the mind’: see R v Konidaris [2014] VSC 89. In New South Wales, ‘mental illness’ is defined under the Mental Health Act 2007 in s 4: Mental illness means 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).

Examples of diseases of the mind 12.10 Arteriosclerosis This has been regarded as a disease of the mind because the hardening of the arteries affects the mind, even though it largely affects the body: Kemp. 12.11 Hyperglycaemia In R v Hennessy [1989] 1 WLR 287, D (a diabetic) failed to take his insulin, and then stole a conveyance. It was held that this amounted to insanity, as his ability and awareness of what was going on were impaired, and this was caused by an inherent defect or disease, rather than an external factor. This can be compared to R v Quick [1973] 1 QB 910, where D (also a diabetic) gave evidence that he had injected himself with insulin, drunk alcohol and eaten little, so that at the time of the attack he was suffering from hypoglycaemia (low blood sugar). It was held that the malfunctioning of his mind was not due to his diabetes, but due to the insulin. This was an external factor, rather than a disease of the mind, and thus the defence of sane automatism was available: see 12.23. 12.12 Sleepwalking In R v Burgess [1991] 2 WLR 1206, D adduced medical evidence that at the time of wounding V, D was sleepwalking. It was held that this amounted to an abnormality or disease of the mind which, although transitory, was due to an internal factor which could lead to a recurrence of the behaviour. 12.13 Epilepsy In R v Sullivan [1984] 1 AC 156, during a grand mal

seizure, D kicked V, causing injuries serious enough to require hospital treatment. D argued sane automatism (see 12.26 below), and both medical experts agreed that epilepsy did not amount to a disease of the mind. It was held that, by legal definition, a disease of [page 250] the mind included purely temporary and intermittent suspension of mental faculties of reason, memory and understanding, resulting from the occurrence of an epileptic fit. 12.14 Schizophrenia In R v Burfield [2005] SASC 438, D was charged with the attempted murder of his mother and wounding with intent to cause grievous bodily harm. D stabbed his mother eight times with a kitchen knife and afterwards hit and kicked her severely. The Court held that, at the time of the offence, D was suffering from chronic schizophrenia and was severely psychotic, believing he was protecting himself from his mother who he believed was trying to kill him. Accordingly, D knew the nature and quality of his act — he knew he was harming his mother. However, he did not know the conduct was wrong, as he believed his life was in danger. D was found not guilty by reason of mental impairment.

Nature and quality of the act 12.15 Under the first limb of the M’Naghten rules, it is a defence if it can be proved that as a result of a disease of the mind, D did not understand the nature and quality of the act by D that attracted the charge. This is successfully raised only rarely, as the limb has been interpreted narrowly. It is expressly included in s 296C(a) (SA) and s 20(1)(a) (Vic). ‘Nature and quality of the act’ has been defined as referring to the physical nature and consequences of the act, rather than to its moral aspects. In Porter, it was explained as occurring where D: … is prevented by mental disorder from knowing the physical nature of the act he is doing … In a case where a man intentionally destroys life, he may have so little capacity for understanding the nature of life and the destruction of life, that to him it is no more than breaking a twig, or destroying an inanimate object. In such a case, he would not know the physical nature of what he was doing. He would not know the implications and what it really amounted to: at 190.

In Porter, it was held that the evidence suggested D knew the nature and quality of the act — he knew he was killing a child with poison and planned to do the same to himself. Rare cases where the first limb is satisfied may arise in insane automatism cases (see 12.26). In Kemp, it was held that D did not know the nature and

quality of his act. While suffering from arteriosclerosis, D had hit his wife with a hammer, and was not conscious of what he was doing.

Knowledge of wrongfulness 12.16 Even where D knew the nature and quality of his or her act, D may secure an acquittal if D proves, on the balance of probabilities, that he or she did not know that the act was wrong, due to a disease of the mind. The main question is whether or not D was able to reason with a moderate degree of sense and composure. If D was unable to so reason, then it could be said that D could not know that he or she was doing wrong. This limb is expressly included in s 269C(b) (SA) and s 20(1)(b) (Vic). 12.17 ‘Wrong’ means wrong according to the principles of ordinary people: Porter. It does not mean wrong in the sense of being contrary to law. In Stapleton v R (1952) 86 CLR 358, D was charged with the murder of a police officer whom he had shot and [page 251] killed. He pleaded mental impairment at the time of the commission of the offence. The High Court held that the appropriate standard was whether D appreciated that ‘his act was wrong, according to the ordinary standards adopted by reasonable men’: at 358. A retrial was ordered, as the trial judge had directed the jury, incorrectly, to consider whether D was aware that his actions were wrong according to law. The High Court recognised that, generally, this will make little difference; however, there may be cases where D was incapable of reasoning as to right or wrong, but was aware that his or her actions were punishable by law. In Victoria, s 20(1)(b) reflects the common law: he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

For example, in DPP v Traynor (Ruling) [2012] VSC 100, D had thrown methylated spirits onto her father and set him alight using a cigarette lighter. She was charged with intentionally causing serious injury and successfully pleaded mental impairment due to significant psychotic symptoms: Whilst I am not satisfied that the accused at the time did not know the nature and the quality of her conduct, nevertheless I am well satisfied on the balance of probabilities that she did not know that her conduct was wrong, that is that she could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong. Accordingly, I am prepared to make, and do make, a declaration under s 23(a): at [30] per Kaye J.

Scope of the defence 12.18 The defence of mental impairment has been criticised due to its narrowness. The defence may exclude the psychopath and someone suffering from irresistible impulse. The common law position will be discussed first, and then the impact of legislative reforms in specific jurisdictions will be considered.

Psychopathy 12.19 Antisocial personality disorder, or psychopathy, does not of itself amount to a disease of the mind. A psychopath may lack an emotional appreciation of the wrongness of an act; but if a psychopath has an intellectual comprehension of the wrongness of an act, then the psychopath cannot rely on the defence. Thus, a psychopath may know rationally that what he or she does is wrong, but will not care. According to the law, this means a psychopath cannot assert mental impairment, as the psychopath knows that what he or she is doing is wrong. In Willgoss v R (1960) 105 CLR 295, evidence was given by two psychiatrists that D was a ‘gross psychopath’, due to his gross lack of self-control and his gross diminution of emotional feeling, which involved a gross diminution of conscience. The High Court upheld D’s conviction of murder, rejecting D’s argument that: … a mere intellectual apprehension on the prisoner’s part of the wrongness of the act would not, or might not amount to knowledge, unless it was accompanied by some sufficient appreciation of, or feeling about, the effect of his act upon other people; perhaps some

[page 252] moral appreciation. The law provides no foundation for such a complaint. It is enough to say that it is an attempt to refine upon what amounts to knowledge of the wrongness of the act which is not countenanced by law: at 301.

Irresistible impulse in Victoria and at common law in New South Wales 12.20 Irresistible impulse occurs where D is unable to control his or her actions. In and of itself, irresistible impulse is not a defence: Attorney-General for South Australia v Brown [1960] AC 432. Thus the defence will not apply where D was aware that his or her actions were wrong, but was incapable, owing to a disease of the mind, of preventing those actions: Sodeman v R (1936) 55 CLR 192. Irresistible impulse does not exclude the operation of the defence of mental

impairment. It can provide evidence of mental impairment, so long as the irresistible impulse is based on a disease of the mind. Irresistible impulse might disturb D’s understanding to such an extent that D is incapable of reasoning, as stated in Sodeman: … overpowering obsession, arising from mental infirmity, provides strong reason for inferring the requisite lack of capacity to know that the act is wrong, or to understand its nature or quality: at 215.

Victorian legislation reflects the common law and does not include irresistible impulse as grounds for the defence of mental impairment.

Irresistible impulse in South Australia 12.21 South Australia has gone beyond the common law, and includes irresistible impulse as grounds for the defence of mental impairment: s 269C(c). The issue was considered by the South Australian Supreme Court in Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251. It is very difficult to establish this aspect of mental impairment. In R v Telford [2004] SASC 248, D was charged with fraudulently appropriating property, forgery and falsification of accounts. He misappropriated $22,447,500 to support his gambling addiction. Expert witnesses provided evidence to indicate D suffered from a pathological gambling disorder, which was found by the Court to meet the legal definition of mental illness as stated in s 269A (SA). However, the Court stated that D’s impulse control related to his gambling, and not specifically to his offending behaviour. That is, he was in control when he was stealing and forging documents. It was his gambling that he could not control, not his crimes. He was found guilty.

Self-induced mental impairment 12.22 If a defect of reason is self-induced to provide the impetus to kill, D cannot rely on mental impairment at the time of the act, if D was responsible when the intent to kill was formed: Attorney-General for Northern Ireland v Gallagher [1963] AC 349. Thus, if D forms the intent to kill, and drinks alcohol in order to have Dutch courage, then D cannot rely upon the defence of mental impairment. [page 253] Intoxication, in and of itself, will not permit the defence of mental impairment, as it will not amount to a disease of the mind. It is only if the intoxicant acts as a trigger to an underlying disease of the mind, eg, delirium tremens, that the rules of the defence may be satisfied: Attorney-General AGv Gallagher. In R v Martin (No 1) [2005] VSC 518, Bongiorno J rejected an

argument that D should be acquitted on the grounds of mental impairment due to cannabis-induced psychosis. Bongiorno J asserted that the condition was ‘a temporary disorder or disturbance of an otherwise healthy mind caused by external factors, that is to say caused by the ingestion of cannabis and no other cause’: at [18].

AUTOMATISM 12.23 The doctrine of automatism exonerates from liability a person who did not control or direct his or her actions. Under this doctrine, a person is not responsible for an involuntary act. Although automatism is colloquially referred to as a defence, it is probably more appropriate to think of it as a negativing factor. Automatism goes further than mere restatement of the actus reus requirement of voluntariness, as a system of rules and principles have been developed around this requirement, limiting the adducing of evidence of automatism and its effect. In R v Cottle [1958] NZLR 999, Gresson P defined automatism: 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 which the mind in its own normal functioning does not control: at 1007.

Burden of proof The prosecution is entitled to presume that D had sufficient mental capacity to act according to an exercise of will: Falconer. In order to raise automatism as an issue, D must satisfy the evidential burden, ie, raise the possibility that D’s actions were not voluntary. Once the issue of (sane) automatism (see 12.26) has been raised, the prosecution must prove, beyond a reasonable doubt, that D’s actions were voluntary.

Examples of states of automatism 12.24 States of automatism have been caused by: ◆

concussion from a blow to the head: R v Wogandt (1983) 33 A Crim R 131;

◆

sleepwalking: Jiminez v R (1992) 106 ALR 162;

◆

consumption of alcohol and drugs: R v O’Connor (1980) 146 CLR 64;

◆

hypoglycaemia: Quick;

◆

dissociation due to external stress: Falconer. [page 254]

Mental impairment and automatism 12.25 The defence of automatism is confined to sane automatism. The defence of mental impairment may subsume automatism if the involuntary act was caused by a disease of the mind. Burden of proof There will be a different burden of proof depending upon whether D is regarded as relying on insane or sane automatism: •

sane automatism results in complete acquittal. D bears only the evidential burden, and the onus is on the prosecution to negate automatism beyond a reasonable doubt;

•

insane automatism results in a verdict of not guilty by reason of mental impairment. D bears the burden of proving mental impairment on the balance of probabilities.

This may result in complex directions to the jury when sane automatism and insane automatism are issues.

Sane and insane automatism 12.26 There is a distinction: … between an unwilled act and a willed act the product of a diseased mind which knows not the nature or quality of the willed act. To express it with what may well be technical inexactitude, it may be said that in the latter case the act is willed by a diseased will in contra-distinction to the act which is not willed at all: Ryan v R (1967) 121 CLR 205 at 215 per Barwick CJ.

The distinction between sane and insane automatism will often rest on the policy consideration of whether the dangerous behaviour is likely to recur. Three tests have been developed by the courts to distinguish sane and insane automatism: the recurrence test, the internal/external test and the unsound/sound mind test. However, these tests are to be considered as guidelines only: Falconer. Student tip The courts are attempting to distinguish between a sane mind reacting to extreme circumstances (sane automatism), and an abnormal mind reacting to ordinary pressures (insane automatism)

Recurrence test

12.27 If the mental condition is prone to recur, it should be considered a disease of the mind: Bratty v Attorny-General (Northern Ireland) [1963] AC 386.

Internal/external test 12.28 If the mental state is internal to D, as opposed to arising from an external cause, then it should be defined as a disease of the mind: Falconer. [page 255] In Falconer, D was convicted of wilful murder of V, her husband, with a shotgun fired by D. She gave evidence of a violent marriage and the discovery that V had sexually interfered with their daughters. On the day of his death, V had come to the house and sexually assaulted D. D remembered nothing from that point until she found herself on the floor with the gun by her, and V dead on the floor beside her. The High Court upheld D’s acquittal. It determined that the objective facts adduced by D were pertinent circumstances upon which the jury could rely in determining whether ‘an ordinary person would have succumbed to a state of dissociation similar to that which Mrs Falconer claims overtook her that day’: at 58. The standard to be applied is: … the standard of the ordinary person; if the mind’s strength is below that standard, the mind is infirm; if it is of or above that standard the mind is sound or sane … [and the] malfunction cannot be attributed to mental infirmity but to ‘the nature of man’; that is to say, malfunction which is transient and not prone to recur and to which the mind of an ordinary person would be subject if exposed to the same psychological trauma is neither a mental disease nor a natural mental infirmity. It is neither an instance of unsoundness of mind … nor an instance of insanity at common law: at 55.

The question was whether: … an ordinary woman of Mrs Falconer’s age and circumstances, who had been subjected to the history of violence which she alleged, who had recently discovered that her husband had sexually assaulted their daughters, who knew that criminal charges had been laid against her husband in respect of these matters, and who was separated from her husband as a result of his relationship with another woman, would have entered a state of dissociation as the result of the incidents which occurred on the day of the shooting: at 55.

The Court was thus attempting to postulate an objective standard as to D’s strength of mind: … if the mind’s strength is below that stated standard, the mind is infirm; if it is of or above that standard, the mind is sound or sane. This is the objective standard which corresponds with the objective standard imported for the purpose of determining provocation: at 55.

The ordinary person does not possess any of the particular emotional features of D at the time of the offence. For example, at the time of the

homicide in Falconer, D was suffering from depression. This would not be taken into account in determining how the ordinary person would have reacted, as the ordinary person is not suffering from depression. However, objective factors would be taken into account, such as the history of violence and abuse of the children. The internal/external test was also applied in Martin, where Bongiorno J held that D’s cannabis-induced psychosis was caused by external factors. 12.29 The arbitrary distinction between internal and external causes is demonstrated in Quick and Hennessy. In Quick, D was charged with assaulting V, and he raised the defence of automatism. D (a diabetic) gave evidence he had injected himself with insulin, drunk large quantities or alcohol and not eaten, so that at the time of the assault he was suffering from hypoglycaemia (low blood sugar). It was held that the malfunctioning of his mind was not due to diabetes, but due to his use of insulin. As such, D was entitled to have his defence of automatism left to the jury. [page 256] In contrast, in Hennessy, D had stolen a car and argued automatism. D (also a diabetic) claimed that at the time of the theft he was suffering from hyperglycaemia (high blood sugar) as he had failed to take his insulin. The Court of Appeal confirmed the trial judge’s ruling that D’s evidence raised a defence of mental impairment. Unlike Quick, the condition in this case was caused by an inherent defect or disease and as such would fall within the M’Naghten rules.

Unsound/sound mind test 12.30 This is a more sophisticated version of the internal/external test, which has been used to categorise ‘dissociative states’. A disease of the mind is considered, on this test, to be evidenced by the reaction of an unsound mind to its own delusions or external stimuli: R v Radford (1985) 42 SASR 266. Student tip Students would be advised to apply all three tests in a problem question when considering whether D is arguing sane or insane automatism.

Automatism and intoxication 12.31 In R v O’Connor (1980) 146 CLR 64, the High Court determined that the defence of intoxication could be raised in relation to any other defence.

Thus, intoxication could be raised to negative any mens rea and actus reus elements that the prosecution is required to prove. The defence could thus be raised that D was so intoxicated as to have been incapable of acting voluntarily. In New South Wales, under s 428G, self-induced intoxication cannot be raised in relation to an argument of automatism. Legal Problem Peter stabbed Juliana, causing her death. He stated that at the time, he believed God had told him to kill her. Peter had been using methylamphetamine (‘ice’) for more than a year prior to the killing. Psychiatrists supported Peter’s claim that he was suffering from a delusion due to a drug-induced psychosis at the time of the killing. Psychiatrists noted that his psychosis was due to ingesting ice prior to the killing, and that he did not suffer psychosis when he stopped using ice. Peter seeks to argue the defence of mental impairment of the mind. Is this defence likely to succeed? [Comment: Usually, problem questions will require students to establish that D committed the actus reus of the offence with the appropriate mens rea, before proceeding to argue the strengths and weaknesses of the defence. However, this problem question is clearly focused solely on whether the defence of mental impairment is available to D.] Answer For the defence of mental impairment to succeed, it must be proved, on the balance of probabilities, that at the time of the act, D was labouring under such defect of reason, owing to a disease of the mind, that: [page 257] •

D did not know the nature and quality of his or her act; or

•

if D did know it, that D did not know that what she or he was doing was wrong (M’Naghten’s Case [1843–60] All ER Rep 229 (NSW); s 269C (SA); s 20C(1) (Vic).

[Comment: Use the citation and statement of law that is appropriate for your jurisdiction.] In order to argue the defence of mental impairment, Peter would have to satisfy the evidential burden. It is questionable whether Peter would be able to satisfy this burden due to the difficulty of establishing that he was suffering from a disease of the mind. It is clear from the facts that Peter was suffering from a ‘defect of reason’, as he was hallucinating and in a drug-induced psychosis at the time of the slaying. The difficulty for Peter would be in establishing that he was suffering from a pre-existing disease of the mind. In R v Martin (No 1) [2005] VSC 518, it was held that a ‘disease of the mind’was not demonstrated where there was a drug-induced psychosis only. The condition may be triggered by drug use, but there must be an underlying ‘disease of the mind’: R v Dargin [2008] NSWSC 751. In Martin, Bongiorno J rejected cannabis-induced psychosis as a disease of the mind: ‘It was a temporary disorder or disturbance of an otherwise healthy mind caused by external factors, that is to say by the ingestion of cannabis and no other cause’: at [18]. The same argument can be made in relation to Peter’s psychosis. The psychiatrists are clear that his delusions were due to taking the drug ice, and thus due to an external rather than internal cause: R v Radford (1985) 42 SASR 266. Accordingly, Peter would not be able to establish that he was suffering from a disease of the mind. Peter would be able to satisfy the other element of the offence. Peter would have known the nature and quality of his act, because he knew that he was ‘killing’ Juliana. However, it is likely

that he would be able to establish on the balance of probabilities that he did not know that what he was doing was wrong. This is because if he believed that God had told him to kill Juliana, then it could not be wrong. [Comment: This paragraph is not necessary given that the defence would fail, but it gives an opportunity to show knowledge and understanding of the defence].

Conclusion Whether or not Peter was suffering from a disease of the mind is a question of law, not fact: R v Falconer (1990) 171 CLR 30 at 49. Peter’s delusions were due to taking the drug ice rather than a disease of the mind. Accordingly, a judge would in all likelihood refuse to put the defence of mental impairment to the jury. [Comment: This problem question is based on the case of R v Zhen Fang (No 3) [2017] NSWCS 28.]

[page 258]

Chapter 13 Defences: Intoxication, Mistake of Fact, Self-Defence, Duress and Necessity Objectives After reading this chapter you should be familiar with the following: ▶ intoxication as a negativing factor ▶ defence of mistake of fact ▶ principles of self-defence ▶ defence of duress ▶ defence of necessity

INTOXICATION 13.1 Intoxication is not a defence to a criminal charge, but may negate certain elements of a crime if it causes a condition that is inconsistent with criminal responsibility. Intoxication may form the basis of: ◆

a plea of automatism: going to the actus reus, arguing involuntariness (see Chapter 12);

◆

a defence of mental impairment: where an intoxicant has triggered an underlying disease of the mind (see Chapter 12); or

◆

a denial that D had the necessary mens rea.

In each jurisdiction, the defence of intoxication has been placed on a statutory footing. In New South Wales statutory reforms have replaced the common law approach. [page 259] Burden of proof D will bear the evidential burden of raising the issue of intoxication as it relates to involuntariness or mental impairment. Generally, D’s evidence of intoxication will have to be reasonably persuasive before it is determined that the issue can be left to the jury: Shaw v R

[1981] 2 NSWLR 648; s 269 (SA); R v B, MA (2007) 99 SASR 384. This evidence will be related to the fact of ingesting an intoxicant and the degree of intoxication: •

where D raises the intoxication in relation to a defence of (sane) automatism or involuntariness, D will bear only the evidential burden. The prosecution will then be required to prove voluntariness or mens rea beyond a reasonable doubt;

•

where D raises intoxication in relation to mental impairment, D must prove mental impairment on the balance of probabilities.

The High Court has noted that juries tend to be sceptical of a defence based on self-induced intoxication: R v O’Connor (1980) 146 CLR 64.

The common law position in Victoria and South Australia 13.2 Victoria still follows the common law in relation to liability for offences, but a new provision modifies the relevance of intoxication in relation to defences involving a ‘reasonable’ belief or response: s 322T (Vic). South Australia has introduced statutoryprovisions which are consistent with the common law approach to intoxication: ss 268–269 (SA). In addition, parliament introduced reforms in 2004 to mitigate the effects of the common law and the so-called ‘drunk’s defence’. This led to some departures from the common law under ss 267A and 268 (SA). Where South Australia and Victoria have departed from the common law, this will be dealt with below. 13.3 The current common law position was stated in R v O’Connor (1980) 146 CLR 64, where the High Court ruled that evidence of intoxication may be adduced to cast doubt upon the prosecution case at the level of actus reus and mens rea. See also R v Martin (1984) 58 ALJR 217. In O’Connor, D was charged with stealing and wounding with intent to resist arrest. He was found guilty of the alternative charge of unlawful wounding. D was observed pilfering from a car owned by V, a police officer. V was notified, and came to the car. By that time, D had removed a knife and a map-holder from the car. V asked D why he had removed the map-holder, and D attempted to run away. V caught up with D, and D stabbed V while he arrested him. D said: ‘I don’t know anything, I wasn’t there.’ D gave evidence that he had been taking a particular drug and drinking alcohol all day, and could not remember what had occurred. Medical evidence stated that the drug could have had an hallucinatory effect and, in association with alcohol, could have rendered D incapable of reasoning and of forming an intent to steal or wound. Relying on DPP v Majewski [1977] AC 443, the trial judge in O’Connor had

directed the jury that intoxication was relevant for considering the charges of wounding with intent to resist arrest, and theft, but not for unlawful wounding. This is because, under Majewski, lack of mens rea due to selfinduced intoxication could not be relied upon as an answer to charges of basic intent. [page 260] The High Court rejected Majewski, and held that intoxication was relevant to any offence. Barwick CJ stated: In my opinion, evidence of the state of 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: at 87.

At common law, the jury must determine whether D was so intoxicated at the time of the offence that his or her acts were not the product of D’s will, so that he or she lacked mens rea. The issue is not whether D was so intoxicated as to be incapable of forming mens rea generally, but whether or not D formed the mens rea required.

‘Dutch courage’ 13.4 At common law, where D forms the intent to commit a crime and becomes intoxicated to give himself or herself ‘Dutch courage’ and then commits the crime, D will have no defence no matter how intoxicated he or she was at the time: My Lords, I think the law on this point should take a clear stand. If a man, whilst sane and sober, forms an intention to kill and makes preparation for it knowing it is a wrong thing to do, and then gets himself drunk so as to give himself Dutch courage to do the killing, and whilst drunk carries out his intention, he cannot rely on this self-induced drunkenness as a defence to a charge of murder, nor even as reducing it to manslaughter. He cannot say he got himself into such a stupid sate that he was incapable of intent to kill. So also, when he is a psychopath, he cannot by drinking rely on his self-induced defect of reason as a defence of insanity. A wickedness of his mind before he got drunk is enough to condemn him, coupled with the act which he intended to do and did so: Attorney-General for Northern Ireland v Gallagher [1963] AC 349 at 382 per Lord Denning.

This was also approved by the High Court in O’Connor. South Australia has sustained this approach to ‘Dutch courage’: s 268.

Involuntary consumption 13.5 At common law, the approach to the issue of intoxication is the same

whether or not D’s intoxication was voluntary: O’Connor. If D has the necessary mens rea and acted voluntarily, D will be guilty of the offence charged. The fact that D was affected by involuntary intoxication and would not have performed the acts otherwise would be a matter to be taken into account in sentencing. This approach was confirmed by the House of Lords in R v Kingston [1994] 3 All ER 353. In that case, D had paedophiliac tendencies and had been drugged by X for the purposes of blackmailing him. While under the influence of drugs, D sexually abused V, a 15-year-old boy, and was photographed doing so. D stated that his drink had been laced and he would not have sexually abused V, but for the disinhibiting effects of the drug. The House of Lords upheld D’s conviction, stating that if the necessary act was committed with the necessary intent, D would be guilty of the offence. Loss of [page 261] self-control due to a third party does not constitute a defence, although it can act as a mitigating element. A drugged intent was still an intent.

Intoxication and murder and manslaughter 13.6 In criminal law, the reasonable person is always sober. This means, in cases where D’s actions are assessed according to the ‘reasonable person’ standard, D’s intoxication will not be taken into account. This in turn means that, while D may be acquitted of murder due to lack of mens rea because of intoxication, D will still be liable for (involuntary) manslaughter. This is because both offences of unlawful and dangerous act manslaughter and manslaughter by criminal negligence assess D’s behaviour according to the standard of the reasonable person. The non-intoxicated reasonable person is highly likely to regard D’s actions as objectively dangerous or negligent. Student tip It is not enough for D to be drunk. D must be so intoxicated that D either acts involuntarily or is unable to form the mens rea for an offence.

Self-induced intoxication in South Australia 13.7 Unlike the common law, South Australia has introduced provisions under Pt 8: Intoxication that differentiate between self-induced and involuntary intoxication. Part 8 only applies in cases where criminal conduct is associated with self-induced intoxication.

Section 267A provides: (1) … ‘recreational use’ of a drug — consumption of a drug is to be regarded as recreational use of the drug unless — (a) the drug is administered against the will, or without the knowledge, of the person who consumes it; or (b) the consumption occurs accidentally; or (c) the person who consumes the drug does so under duress, or as a result of fraud or reasonable mistake; or (d) the consumption is therapeutic; … ‘therapeutic’ — the consumption of a drug is to be regarded as therapeutic if — (a) the drug is prescribed by, and consumed in accordance with the directions of, a medical practitioner; or (b) the drug — (i) is a drug of a kind available, without prescription, from registered pharmacists; and (ii) is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer’s instructions.

[page 262] (2) Intoxication resulting from the recreational use of a drug is to be regarded as selfinduced. (3) If a person becomes intoxicated as a result of the combined effect of the therapeutic consumption of a drug and the recreational use of the same or another drug, the intoxication is to be regarded as self-induced even though in part attributable to therapeutic consumption.

13.8 Section 268(2) modifies the common law by deeming voluntariness or intention, even where D lacked voluntariness or intention due to self-induced intoxication. This in effect follows Majewski (considered at 13.3 above). However, s 268(2) is qualified by s 268(3). Subsections (2) and (3) state: (2) If the objective elements of an alleged offence are established against a defendant but the defendant’s consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if the defendant would, if his or her conduct had been voluntary and intended, have been guilty of the offence. (3) However, subsection (2) does not extend to — (a) a case in which it is necessary to establish that the defendant foresaw the consequences of his or her conduct; or (b) except where the alleged offence is an offence against section 48 (rape) — a case in which it is necessary to establish that the defendant was aware of the circumstances surrounding his or her conduct.

This means that s 268(2) has no application to offences where it is necessary

to establish that D foresaw the results of D’s conduct; or was aware of the circumstances surrounding D’s conduct (excluding in cases of rape). In R v B, MA (2007) 99 SASR 384 at 394 it was held that s 268(2) and (3) address offences of basic intent. Basic intent offences are those where the mens rea is ‘the intent to do the physical act constituting the actus reus of the offence’: 387. Crimes of specific intent require proof of an intention to produce the result — proof of a ‘purposive element’: Majewski at 480. The distinction between basic and specific intent offences is not clear. However, manslaughter (s 13) and assault (s 20) would be basic intent offences. Specific intent offences include murder (s 11), rape (s 48), offences of dishonesty (Pt 5), robbery (s 137) and attempts (s 270A). This means that s 268(2) has very limited operation. Arguably it attempts to ensure a balance so that D is not convicted of more serious offences where D was so intoxicated that he or she lacked mens rea or voluntariness, but D is not acquitted entirely, and is instead found guilty of basic offences.

Intoxication in Victoria 13.9 Section 322T (Vic) modifies the relevance of intoxication for all offences, but only in relation to any defence involving a ‘reasonable’ belief or response. It does not affect the common law about intoxication, as stated in O’Connor (see 13.3 above), [page 263] in relation to any other issue, such as its effect on involuntariness or mens rea. Section 322(T) provides: (1) In this section — ‘defence’ includes self-defence, duress and sudden or extraordinary emergency; ‘intoxication’ means intoxication because of the influence of alcohol, a drug or any other substance. (2) If any part of a defence to an offence relies on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated. (3) If any part of a defence to an offence relies on reasonable response, in determining whether that response was reasonable, regard must be had to the standard of a reasonable person who is not intoxicated. (4) If a person’s intoxication is not self-induced, in determining whether any part of a defence to an offence relying on reasonable belief or reasonable response exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned. (5) For the purposes of this section, intoxication is self-induced unless it came about —

(a) involuntarily; or (b) because of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or (c) from the use of a drug for which a prescription is required and that was used in accordance with the directions of the person who prescribed it; or (ca) from the use of a medicinal cannabis product in accordance with a patient medicinal cannabis access authorisation; or (d) from the use of a drug for which no prescription is required (other than a medicinal cannabis product) and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer. (6) Despite subsection (5), intoxication is self-induced in the circumstances referred to in subsection (5)(c), (ca) or (d) if the person using the drug knew, or had reason to believe, when the person took the drug that the drug would significantly impair the person’s judgment or control.

Intoxication in New South Wales 13.10 Under the Criminal Legislation Amendment Act 1996, New South Wales has adopted a position that parallels the English common law position under Majewski.

Self-induced v involuntary intoxication 13.11 Unlike the common law, and like South Australia, New South Wales differentiates between self-induced and involuntary intoxication. Intoxication is taken to be self-induced unless it was involuntary; results from ‘fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force’; or results from a prescription or non-prescription drug was that taken in accordance with instructions: s 428A. [page 264]

Actus reus 13.12 Self-induced intoxication will not be available for a defence of involuntariness: s 428G(1); Hadba v R (2004) 182 FLR 472. The defence of involuntariness continues to be available if D’s intoxication was not selfinduced: s 428G(2).

Mens rea 13.13 A distinction is drawn between crimes of ‘specific’ intent and crimes of ‘basic’ or ‘general’ intent. The line between crimes of specific and basic intent can be arbitrary, but is specified in the legislation under s 428B.

Offences of specific intent are offences of which an intent to cause a specific result is an element. Intoxication may be pleaded in relation to specific intent crimes, whether the intoxication is self-induced or not: s 428C. In relation to offences other than those of specific intent, where D raises intoxication as a negativing factor of mens rea: ◆

if intoxication was self-induced, then it cannot be taken into account: s 428D(a); R v Lipman [1970] 1 QB 152; Day v R [2017] NSWCCA 192;

◆

if intoxication was not self-induced, then it may be taken into account: s 428D(b).

Specific rules are created in relation to intoxication and murder. If D’s intoxication was self-induced, then murder can only be reduced to manslaughter. If it was not self-induced, then D may be acquitted: s 428E. Student tip Students need to read the sections regarding intoxication in New South Wales carefully, particularly those relating to specific and basic intent offences.

’Dutch courage’ 13.14 Section 428C(2) accords with the common law rule that D cannot rely on intoxication where D became intoxicated for ‘Dutch courage’: Attorney-General for Northern Ireland v Gallagher [1963] AC 349.

Critique 13.15 The High Court specifically disapproved of Majewski in O’Connor; however, the position in Majewski has been reinstated in New South Wales. The majority in O’Connor objected to Majewski on the grounds that D can incur liability even where D does not have the necessary mens rea or actus reus for the crime: It seems to me to be completely inconsistent with the principles of the common law, that a man should be conclusively presumed to have an intent which, in fact, he does not have, or to have done an act which, in truth, he did not do: O’Connor at 87 per Barwick CJ.

Thus, D can incur liability under the New South Wales legislation, while lacking vital elements for the offence, due to the culpability of becoming intoxicated. [page 265]

DEFENCE OF MISTAKE OF FACT 13.16 D may escape liability for a criminal act by adducing evidence of a mistake of fact. Mistake of fact can arise in relation to mens rea, or as an independent defence.

Mistake: mens rea 13.17 D may have made a mistake which may result in a lack of mens rea for the offence charged. A relevant mistake can refute the prosecution’s fundamental case regarding mens rea. This mistake need only be honest, not reasonable. A mistake of fact may be a defence of lack of some subjective element, such as intention or recklessness, whether the mistake was reasonable or not. Thus, mistake of fact affords a defence because it is inconsistent with the state of mind the Crown is required to prove. For example, in DPP v Morgan [1976] AC 182, a sexual assault case, it was held that if D honestly believes that V is consenting, then D will be found not guilty, no matter how unreasonable the belief. In Morgan, the Ds stated that they honestly believed that V had consented to sexual intercourse, despite her cries and screams to the contrary. This was because V’s husband had told them she was ‘kinky’. It was held that it was unnecessary that their belief was reasonable, as long as it was honest. The unreasonable nature of the belief will have evidentiary significance. Thus, in this case, the jury did not believe that the Ds had not known that V was not consenting. This defence in sexual assault cases has now been overturned by statute in each of the States. 13.18 Mistakes about legal elements are rejected as a defence, due to the legal principle that ignorance of the law is no excuse. Thus, mistake of law will not generally afford a defence. This includes mistakes about the legal characterisation of a person, substance or being. Accordingly, in R v Kennedy [1923] SASR 183, it was held immaterial to a charge of bigamy that D mistakenly believed his earlier marriage to be invalid: this was a mistake of law. In R v Tolson (1889) 23 QBD 168; [1886–90] All ER Rep 26, D mistakenly believed that her first husband was dead. It was held that this was a valid defence to a bigamy charge, as it was a mistake of fact. In limited situations, a mistake of law may result in D lacking mens rea for an offence. This is demonstrated particularly in the operation of claim of right in property offences (see Chapter 10). In common law offences, a claim of right negatives the mens rea for offences such as larceny, robbery (R v Lopatta

(1983) 35 SASR 101), criminal damage (Walden v Hensler (1987) 163 CLR 561) and false pretences: R v Kastratovic (1985) 42 SASR 59. Statutory offences of acting ‘fraudulently’ or ‘dishonestly’ allow the defence of claim of right. Examples are using a forged instrument to demand money with the intent to defraud (Kastratovic) and dishonestly obtaining money by deception (R v Love (1989) 17 NSWLR 608). A belief in a claim of right need only be honest: it need not be reasonable: Lopatta. The claim must be based on a belief in a legal right, not a moral belief: Lopatta. [page 266] Student tip The courts have at times had difficulty distinguishing between whether D has made a mistake of fact or of law, or a mixture of the two: see, eg, Ostrowski v Palmer (2004) 218 CLR 493.

Mistake: independent defence 13.19 Mistake as an independent defence may be raised to escape liability where all elements of an offence have been proved: Proudman v Dayman (1941) 67 CLR 536. The relevant mistake must be both honest and reasonable, as stated by Cave J in R v Tolson (1889) 23 QBD 168; [1886–90] All ER Rep 26: At common law, an honest and reasonable belief in the existence of circumstances which, if true, would make the act with which D is charged an innocent act, has always been held to be a good defence.

Australian courts have been reluctant to remove the objective component of the defence, ie, the requirement that the belief be reasonable. In order to rely on the defence of honest and reasonable mistake of fact, D must actually have a positive belief, that if true, would lead to acquittal: Ibrahim v R [2014] NSWCCA 160. 13.20 The defence of mistake of fact is available for all offences, excluding absolute liability offences, and offences where the defence is explicitly excluded: He Kaw Teh v R (1985) 157 CLR 523. Mistake of fact tends to be raised in relation to strict liability offences, where D argues that had the facts been as D mistakenly believed them to be, D’s conduct would have been innocent: CTM v R (2008) 247 ALR 1. Burden of proof D must satisfy the evidential burden before the issue of honest and reasonable mistake of fact

is raised. Once the defence has been raised, the prosecution must negate the defence beyond a reasonable doubt: He Kaw Teh.

Mistake of fact and formal defences 13.21 Mistake of fact can arise in relation to formal defences, ie, if the facts were as D believed them to be, then D could rely upon a formal defence. The High Court has held that, if the mistake relates to a matter of selfdefence, then the person who acted in self-defence must act in a manner which is objectively and subjectively reasonable: Zecevic v DPP (Vic) (1987) 162 CLR 645. The reasonableness of D’s subjective belief is determined on the basis of the circumstances as D believed them to be at the time, and not what a reasonable person would have believed: It is the belief of the accused, based upon the circumstances as the accused perceived them to be, which has to be reasonable, and not that of the hypothetical reasonable person in the position of the accused: R v Hawes (1994) 35 NSWLR 294 at 305.

[page 267] For example, consider the situation where D mistakenly believes that V is armed with a gun, and therefore uses lethal force in self-defence. If the jury considers that D honestly held that belief, then clearly D’s mistaken belief would be relevant to D’s decision as to the necessity of resorting to force. The reasonableness of D’s belief would be considered on the basis that what D believed was true. That is, if V was armed, was D’s decision to resort to force reasonable, even if an ordinary person might not have held the belief that V was armed?

SELF-DEFENCE Common law self-defence 13.22 In all the States, legislative provisions have displaced some or all of the common law principles relating to self-defence. The law has recognised that a person is justified in using some level of force in self-defence. To act in self-defence is to act lawfully, resulting in a complete acquittal of D. The principles of self-defence apply to defence of self, defence of other persons, prevention of a serious crime, defence of property and effecting a lawful arrest.

Burden of proof Under the common law, the evidential burden rests on D to raise the issue, and then the prosecution must prove beyond a reasonable doubt that self-defence was not present. The position is the same in South Australia under s 15 and in New South Wales under s 419.

13.23 Despite statutory reforms, the common law defence of self-defence informs or contributes to the contemporary defence. 13.24 At common law, for D to rely on self-defence, the resort to force must have been reasonable from both an objective and a subjective perspective: … 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 acquittal: Zecevic at 661.

D must fulfil both components of the defence. Thus, it will be insufficient if it was objectively necessary for D to resort to force, if D did not subjectively believe that it was necessary. The test can be further divided into: ◆

the decision to resort to force; and

◆

the quantum of force used.

D must satisfy both the objective and subjective tests in relation to both of these components. Generally, this will be satisfied by asking whether D believed, on [page 268] reasonable grounds, that it was necessary in self-defence to do, on reasonable grounds, what D did: Zecevic. The courts will make allowance for the fact that D made the decision to resort to force in stressful circumstances: Zecevic. 13.25 In Zecevic, after an altercation with his neighbour, V, D followed V to his apartment and broke the glass on the door when he knocked. V stabbed D in the chest, and said he would blow D’s head off. D ran to his apartment. D believed V had kept the knife with him, and that he had a shotgun in his car. D got a gun, loaded it, and ran after V, who was moving towards his car. D believed that V would kill him. D shot V and killed him. V was a boxer, a black belt in karate, and kept ‘something for protection’ in his car. Wilson, Dawson and Toohey JJ stated: The question to be asked in the end is quite simple. It is whether the accused believed upon

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 the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal: at 661.

The justices noted that the issue of self-defence had been raised. There was evidence that: ◆

D had been stabbed;

◆

V had threatened to blow D’s head off;

◆

D believed V might have had a gun in the car;

◆

D believed that it was necessary to act in order to defend himself.

The jury would have to determine if they believed D, and if they considered that D had no longer needed to act in self-defence when he returned to his apartment to get his gun. 13.26 In order to rely on self-defence, D must respond to a threat, where there is a ‘reasonable apprehension of imminent attack or imminent danger’: Taikato v R (1996) 186 CLR 454. Broadly, when determining whether or not D’s response was necessary, the focus will be on the imminence of the threat and whether or not D’s response was proportionate to this threat.

Self-defence and mistake 13.27 When D asserts an honest but mistaken belief as to the circumstances in which D resorted to force, the courts have determined that the facts are to be taken as D perceived them to be: … the mixed objective and subjective nature of the assessment as to whether the accused’s belief was based on reasonable grounds, means that account must be taken of those personal characteristics of this particular accused which might affect his appreciation of the gravity of the threat which he faced, and as to the reasonableness of his response to that danger: R v Conlon (1993) 69 A Crim R 92 at 98–9.

[page 269] At common law where the mistake has been influenced by a state of intoxication, the intoxication can be taken into account: … in so far as it may have affected either his appreciation of the gravity of the threat which he faced, or the reasonableness of his response to that danger: Conlon at 99.

Self-defence in South Australia 13.28 Section 15 has replaced the common law principles of self-defence. The test for acquittal will be more demanding in arrest and protection of

property cases than in personal protection situations: ss 15A; 15C. Section 15(1) provides: It is a defence to a charge of an offence if — (a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and (b) the conduct was, in the circumstances, reasonably proportionate to the threat that the defendant genuinely believed to exist.

Thus s 15 is in accordance with the common law. D must satisfy an objective test (s 15(1)(b)) and a subjective test (s 15(1)(a)). The threat that is faced by D and the surrounding circumstances are to be assessed subjectively, ie, the threat as D believed it to be. This means if D believed that V was armed, then D’s reaction to the threat of V is assessed on that basis. Did D subjectively believe it was necessary and reasonable to respond to the threat of an armed person? And was D’s response reasonably proportionate if V was armed? 13.29 The subjective nature of the test of self-defence under s 15 means that intoxication will be taken into account in assessing D’s perceptions. Intoxication may be relevant to D’s perception of whether self-defence was reasonable or necessary: R v Clothier [2002] SASC 9. Self-defence can also be made on the basis of delusion: Question of Law Reserved (No 1 of 1997) [1997] SASC 644.

Self-defence in New South Wales 13.30 Section 418 replaces the common law approach to self-defence: (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person; or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them to be.

[page 270] Consequently, the jury must consider:

1. whether there is a reasonable possibility that D believed his or her conduct was necessary in order to defend himself or herself; and 2. if there was, whether there is also a reasonable possibility that what D did in those circumstances was a reasonable response to those circumstances as D perceived them to be: R v Katarzynski [2002] NSWSC 613. Burden of proof D must satisfy the evidential burden to raise the defence of self-defence, and if satisfied, the prosecution must then negate the defence beyond a reasonable doubt: s 419 (NSW); Douglas v R [2005] NSWCCA 419.

Self-defence in Victoria 13.31 In 2014, Victoria created a new statutory version of self-defence. The reforms provide that there is one self-defence test that is applicable to all criminal offences. Section 322K provides: (1) A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if — (a) the person believes that the conduct is necessary in self-defence; and (b) the conduct is a reasonable response in the circumstances as the person perceives them.

The first limb of the defence is based on the common law test articulated in Zecevic. The second limb follows s 418(2) (NSW). Unlike the common law test, which focused on reasonable grounds for a belief in the necessity of acting in self-defence, the statutory test focuses on whether the conduct was reasonable. Sections 322J–322M introduce self-defence provisions in relation to family violence.

Intoxication 13.32 In New South Wales and Victoria, D cannot rely on self-defence in circumstances where D was mistaken as a result of self-induced intoxication: s 428F (NSW); s 322T (Vic). Where, for the purposes of determining whether D is guilty of an offence, it is necessary to compare the state of mind of D with that of a reasonable person, the comparison must be made between the conduct or state of mind of D, and that of a reasonable person who is not intoxicated: Katarzynski; s 322T.

Murder and self-defence 13.33 Self-defence is available as a complete defence for murder. In addition, New South Wales and South Australia have introduced specific provisions for murder and self-defence. At common law, in Zecevic, the High Court overturned the rule that D could rely on a partial defence of excessive force to reduce murder to [page 271] manslaughter, where D subjectively acted reasonably, but objectively used excessive force. New South Wales and South Australia have now reintroduced the defence of excessive force for murder: s 421 (NSW); s 15(2) (SA). If D believed the use of force was necessary, but this use of force was excessive in the circumstances as D believed them to be, D will be found guilty of manslaughter. Unlike New South Wales and South Australia, Victoria has not reintroduced the defence of excessive force. This means that if D is charged with murder and sincerely believes that his or her conduct was necessary in self-defence, but the response was not reasonable, D would be guilty of murder and not the lesser offence of manslaughter.

DURESS 13.34 The defence of duress comprises a plea by D that he or she committed the crime under a threat of physical harm to D, or to some other person, should D refuse to comply with the threatener’s wishes: R v Hurley and Murray [1967] VR 526. The defence is established at common law: Threats of immediate death or serious personal violence, so great as to overbear the ordinary power of human resistance, should be accepted as a justification for acts which would otherwise be criminal … Where the exercise of duress is applicable, it must be clearly shown that the overpowering of the will was operative at the time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats: Attorney-General v Whelan [1934] IR 518 at 526 per Murnaghan J.

The rationale of the defence is based on the law’s compassion towards an accused who is faced with the choice of two evils: harm due to a threat, or committing the crime charged: R v Howe [1987] AC 417. If D succeeds in the defence of duress, then D is exonerated of all liability for the charges. Victoria has wholly replaced the common law defence with a statutory

defence of duress. The common law defence will be considered first, followed by the Victorian statutory version. Burden of proof D must satisfy the evidential burden, but, once this is satisfied, the prosecution must negate the defence beyond a reasonable doubt.

Scope of the defence 13.35 The defence is available for most offences, including manslaughter. At common law, the defence of duress is not available for the offences of: ◆

murder: Brown v R (1986) 43 SASR 33;

◆

attempted murder. [page 272]

In South Australia and Victoria, an accessory to murder cannot rely upon duress: R v Brown and Morley [1968] SASR 467; R v Harding [1976] VR 129. In New South Wales, in R v McConnell [1977] 1 NSWLR 714, it was stated obiter that an accessory to murder could rely upon duress. Victoria has departed from the common law, and, under s 322O, duress is available in homicide cases ‘if the person believes that the threat is to inflict death or really serious injury’.

Elements of the defence Threat 13.36 Not all threats are recognised for the purposes of duress. Those which have been recognised are threats of: ◆

death and grievous bodily harm: R v Hurley and Murray [1967] VR 526;

◆

a lawful nature, eg, where the threatener could plead insanity or is a child;

◆

imprisonment: R v Lawrence [1980] 1 NSWLR 122;

◆

torture causing intense pain, but without residual injury: Osborne v Goddard (1978) 21 ALR 189;

◆

harm to a third party: R v Abusafiah (1991) 24 NSWLR 531.

The threat must have been such as to overbear D’s will, so that D was incapable of acting independently: R v Palazolf (1986) 43 SASR 99.

Threat must be present and continuing 13.37 Generally, a threat must be present and continuing for D to rely upon the defence. This requirement has been interpreted realistically, recognising that a threat may be present even if the threatener has no direct physical control over D at the time that D commits the crime. Thus, where D perjures himself or herself in court due to the presence of the threatener in the public gallery, D will still be able to rely upon the defence: R v Hudson [1971] 2 QB 202. This decision has since been criticised in R v Hasan [2005] UKHL 22 for weakening the requirement of immediacy.

Objective test 13.38 In R v Lawrence [1980] 1 NSWLR 122, the objective test was stated as comprising two elements: 1. ‘an average person of ordinary firmness of mind, of a like age and sex, in like circumstances, would have done the acts’ (Lawrence at 125); and 2. there was no reasonable way of avoiding the threat: see Taiapa v R (2009) 240 CLR 95. 13.39 In R v Runjanjic and Kontinnen (1991) 56 SASR 114, expert evidence was adduced as to the effect that battered woman syndrome would have had on D. This evidence was relevant to both the subjective and objective tests. The objective component, requiring that D had no reasonable way of avoiding the threat, has been interpreted in favour of D in battered women’s cases. Thus, the courts [page 273] will take into account all the circumstances in which D finds herself, keeping in mind the age of D and any risks associated with avoidance. Failure to seek police protection, due to the reasonable belief that such aid would be ineffectual, will not necessarily exclude the defence: Brown v R (1986) 43 SASR 33.

The defence of duress in Victoria 13.40 In 2014, Victoria abolished the common law defence of duress and

replaced it with a statutory defence. This defence was based on the earlier statutory defence in s 9AG, which only applied to homicide cases. Section 322O provides: (1) A person is not guilty of an offence in respect of conduct carried out by the person under duress. (2) A person carries out conduct under duress if — (a) the person reasonably believes that — (i) subject to subsection (3), a threat of harm has been made that will be carried out unless an offence is committed; and (ii) carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and (b) the conduct is a reasonable response to the threat. (3) A person does not carry out conduct under duress if the threat is made by or on behalf of a person with whom the person is voluntarily associating for the purpose of carrying out violent conduct.

As with the common law defence, the statutory defence of duress has subjective and objective elements. D must have actually held the relevant belief and it must have been reasonably held. Moreover, the response must have been reasonable. In determining whether a person reasonably believes the matters set out in s 322O(2)(a) and (b), the reasonableness of the belief is to be determined by reference to ‘a reasonable person possessing the personal characteristics … that might have affected the accused’s appreciation of the circumstances’. In considering the matters set out in these paragraphs, the court is to give consideration to the ‘circumstances as a reasonable person, possessing the personal characteristics of the accused, would have perceived them to be’: see Parker (a Pseudonym) v R [2016] VSCA 101; BC201603357 at [8]. The statutory defence also retains the common law requirement that in order to rely on the defence, D cannot have been voluntarily involved in violent conduct: s 322O(3).

NECESSITY 13.41 The defence of necessity is based on the notion that a person should not be held culpable for criminal acts where they are compelled due to sudden or extraordinary emergency. Duress is a particular form of necessity. Necessity is a complete defence. Thus where D successfully argues the defence of necessity, D will be acquitted of all charges. [page 274]

Scope of the defence 13.42 The defence of necessity exists at common law (R v White (1987) 31 A Crim R 194), where it is available for every offence except murder: R v Dudley and Stephens (1884) 14 QBD 273. Burden of proof D must satisfy the evidential burden to raise the defence of necessity. If successful, the prosecution must then negate the defence beyond a reasonable doubt.

Elements of the defence 13.43 The elements of the defence have been outlined in R v Loughnan [1981] VR 443. In that case, D pleaded necessity on a charge of escaping from prison. He argued that he had been threatened with death by some prisoners and had to escape in order to save his life. His conviction was affirmed. However, the Court outlined the applicable principles. Elements According to Loughnan, the prosecution must negate the following beyond a reasonable doubt: •

The act must have been done in order to avoid consequences that would have inflicted irreparable harm on D, or those he or she was bound to protect. Threats of death, serious physical harm, sexual assault and suicide have been recognised at common law; however, these threats are not exhaustive. There is no requirement that the threats be unlawful.

•

The threat must have exerted immense pressure on D due to:

•

•

the imminence of the threat occurring; or

•

the gravity of the threatened harm, without any urgency involved.

D must honestly believe on reasonable grounds that there is a threat of imminent peril. The threat can be: •

real, in that it was capable of being demonstrated objectively to have existed; or

•

imaginary, ie, honestly and reasonably, but mistakenly believed by D to exist.

•

The threat must be such that an ordinary person must be capable of yielding in the way that D did.

•

Acts done to avoid the peril must not be out of proportion to the peril avoided. The defence will fail where D would have committed the offence independently of the threat.

•

The response must be reasonable, necessary conduct, ie, D had no alternative, other than the response adopted by him or her, to avoid the threat.

[page 275]

Sudden or extraordinary emergency in Victoria

13.44 In Victoria, the defence of necessity has been abolished and replaced with the defence of sudden or extraordinary emergency. Section 322R provides: (1) A person is not guilty of an offence in respect of conduct that is carried out in circumstances of sudden or extraordinary emergency. (2) This section applies if — (a) the person reasonably believes that — (i) circumstances of sudden emergency exist; and (ii) the conduct is the only reasonable way to deal with the emergency; and (b) the conduct is a reasonable response to the emergency. (3) This section only applies in the case of murder if the person believes that the emergency involves a risk of death or really serious injury.

The statutory defence broadly follows the common law defence, but in simpler terms. In addition, unlike the common law, the defence of necessity is available to a defence of murder in Victoria. Legal Problem Luca was walking home late at night from a party. He saw a large man walking towards him very fast. He looked like he was carrying a knife in one of his hands. When the man came towards Luca, he started moving the knife, and Luca thought he was going to attack him, so Luca kicked him in the groin twice and then ran away. It turned out that the man, Archie, was not carrying a knife, but a cigarette lighter. Archie suffered some serious bruising to his groin. Discuss Luca’s criminal liability. Answer Luca could be charged with assault (R v Patton (1998) 1 VR 7; s 61 (NSW); s 20 (SA)), but would argue self-defence: Zecevic v DPP (Vic) (1987) 162 CLR 645; s 418 (NSW); s 15 (SA); s 322K (Vic). The prosecution must prove all elements of assault and disprove self-defence beyond a reasonable doubt: Woolmington v DPP [1935] AC 462. The prosecution would seek to prove that Luca was guilty of assault. This requires intentional infliction of unlawful contact (in New South Wales and Victoria): Fagan v Metropolitan Police Commissioner [1969] 1 QB 439; or intentional applying of force to the victim (in South Australia): s 20 (SA). The facts of the question state that Luca kicked Archie twice. The prosecution would have no difficulty in establishing that his use of force against Archie was intentional — particularly as he did it twice. In the absence of defences, Luca would be guilty of assault. [Comment: When considering defences proper, such as self-defence, duress, necessity and insanity, you must first consider the offence. Defences proper are only necessary and available where D would otherwise be found guilty of an offence.] However, Luca would seek to raise the defence of self-defence. This would require that Luca satisfy the evidential burden, by suggesting that there was a reasonable possibility that he acted in self-defence. Given the factual circumstances — that it was night time and he claimed that he was scared — he would satisfy the evidential [page 276] burden. The burden would then be on the prosecution to negate the defence of self-defence beyond a reasonable doubt: Woolmington; s 418 (NSW); s 15 (SA).

Victorian statement of law For Luca to rely on self-defence, the resort to force must have been reasonable from both an objective and a subjective perspective. Under s 322K(2): A person carries out conduct in self-defence if — (a) the person believes that the conduct is necessary in self-defence; and (b) the conduct is a reasonable response in the circumstances as the person perceives them.

South Australian statement of law South Australia specifies that self-defence is a complete defence under s 15(1), where: (a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and (b) the conduct was, in the circumstances …, reasonably proportionate to the threat that the defendant genuinely believed to exist.

New South Wales statement of law Under s 418, as applied in R v Katarzynski [2002] NSWSC 613, a jury must consider: 1. whether there was a reasonable possibility that D believed his or her conduct was necessary in order to defend himself or herself; and 2. if there was, whether there is also a reasonable possibility that what D did in those circumstances was a reasonable response to those circumstances as D perceived them to be.

Application of law to facts All three States have a subjective and objective element to the defence of self-defence. The facts suggest that Luca believed that he needed to use force because he believed that Archie was coming towards him with a knife. The prosecution would have difficulty negating this subjective test. However, the prosecution may have more chance of negating that Luca ‘believed on reasonable grounds that it was necessary in self-defence to do what he did’: Zecevic. The courts are clear that when applying the objective test, Luca’s response will be analysed in terms of the situation as he perceived it to be. This means that his belief that Archie was carrying a knife, though mistaken, would be the basis for considering his response. [Comment: There are several ways in which courts determine the reasonableness of a response based on common law. These include the proportionality of the response and the imminence of the threat.] The prosecution would look at the quantum of force used by Luca; two kicks in response to a knife appear to be proportionate. In addition, the imminence of the threat would be taken into account. Luca was responding to an imminent threat — it was night time and there was no one else around. The courts will make allowance for the fact that Luca made the decision to resort to force in stressful circumstances: Zecevic. Luca’s choice of making a pre-emptive strike in these circumstances may well be understandable.

Conclusion It appears likely that while Luca may be charged with assault, his defence of self-defence would be successful, as the courts would analyse whether his response was reasonable or not based on his belief that Archie was carrying a knife. Thus Luca would be found not guilty.

Index References are to paragraph numbers

A Actus Reus accessorial liability aiding or abetting .… 11.26 ‘aids, abets, counsel or procures’ .… 11.24 causation .… 11.29 counselling or procuring .… 11.25 omissions .… 11.30 procuring .… 11.25 accessory after the fact .… 11.59–11.62 attempt .… 11.80 battery consent (See subhead: consent) South Australia .… 7.30–7.32 burglary New South Wales .… 9.76–9.77 South Australia and Victoria .… 10.57–10.59 Victoria and South Australia .… 10.57–10.59 common assault battery (See subhead: battery) elements .… 7.11 psychic assault (See subhead: psychic assault) consent South Australia .… 7.34; 7.41 V cannot consent to ABH, exception to rule that .… 7.39–7.41

vitiated (See subhead: vitiated consent) contemporaneity of mens rea and actus reus .… 7.43 deception fraud .… 9.47–9.50 Victoria and South Australia .… 10.40–10.44 finding, larceny by .… 9.37; 9.39 fraud consequences .… 9.52–9.56 deception .… 9.47–9.50; 9.51 temporal coincidence .… 9.61–9.62 involuntariness .… 2.22 larceny belonged to another .… 9.5–9.10 consent of person in possession .… 9.11–9.19 property capable of being stolen .… 9.4 temporal coincidence .… 9.35 took and carried away .… 9.3 liability, criminal .… 2.7; 2.8–2.22 defined .… 2.8 involuntariness .… 2.22 temporal coincidence .… 2.50–2.51 voluntariness (See subhead: voluntariness) psychic assault ABH, assault occasioning .… 7.26–7.27 conditional threat .… 7.23–7.25 harm, infliction of .… 7.26–7.27 ‘immediately and continuing fear’ .… 7.22 imminence .… 7.18–7.19

positive act .… 7.13 state of mind of the victim defined .… 7.14 South Australia .… 7.15 threat, ability to execute .… 7.16–7.17 threats over telephone .… 7.20–7.21 robbery New South Wales .… 9.64–9.70 South Australia .… 10.51–10.53 Victoria and South Australia .… 10.51–10.53 self-induced versus involuntary intoxication .… 13.12 Criminal Law Elements indecent assault .… 8.33 temporal coincidence of mens rea and .… 4.44–4.45 theft appropriation of property .… 10.12–10.19 consent .… 10.17–10–19 consent .… 10.17–10–19; 10.21–10–23 ‘deals with’ property .… 10.20 ‘property belonging to another’ .… 10.3–10.11 property defined .… 10.3–10.4 vitiated consent defined .… 7.36 voluntariness defined .… 2.13–2.15 involuntary or unwilled conduct impaired consciousness depriving person to act .… 2.19–2.21 sleep or unconsciousness, act performed during .… 2.17–2.18

spasm, convulsion or unwilled bodily movement .… 2.16 unconsciousness .… 2.17–2.18 Model Criminal Code, section 202.2 of .… 2.15 Assault aggravated assault classes .… 7.44 combined with other offences .… 7.48 New South Wales .… 7.55–7.57 particular injuries .… 7.49; 7.57 South Australia, offences causing harm in .… 7.58–7.62 special status, victims with .… 7.46–7.47 specific intent, with further .… 7.45 terminologies (See subhead: terminologies) Victoria, offences causing injury in .… 7.63 common assault actus reus (See Actus reus, subhead: common assault) defined .… 7.2 mens rea (See Mens rea, subhead: common assault) defences .… 7.65 defined .… 7.1 indecent assault .… 8.33 non-sexual offences against person, Victorian approach to .… 7.64 South Australian offences .… 7.42 terminologies ABH .… 7.50 ‘causing’ .… 7.54 GBH .… 7.51 ‘occasioning’ .… 7.53

wound .… 7.52 Attempt actus reus .… 11.80 common law .… 11.78 defined .… 11.78 impossibility .… 11.82 mens rea .… 11.79 voluntary desistance .… 11.81 Automatism defined .… 12.23 insane automatism distinguished with sane .… 12.26 intoxication in relation with .… 12.31 mentail impairment in relation with .… 12.25 recurrence test external or internal test .… 12.28–12.29 internal or external test .… 12.28–12.29 sound or unsound mind test .… 12.30 unsound or sound mind test .… 12.30 sane automatism distinguished with insane .… 12.26 states of automatism .… 12.24

B Burglary New South Wales actus reus .… 9.76–9.77 common law .… 9.75 mens rea .… 9.78 South Australia and Victoria (See subhead: Victoria and South Australia) Victoria and South Australia

actus reus .… 10.57–10.59 defined .… 10.56 elements .… 10.56 mens rea .… 10.60–10.62

C Complicity accessorial liability accessories before the fact and P2s .… 11.22 actus reus (See Actus reus, subhead: accessorial liability) common law .… 11.17 historical background .… 11.18 mens rea (See Mens rea, subhead: accessorial liability) principal offence .… 11.20–11.21 accessory after the fact actus reus .… 11.59–11.62 elements .… 11.58 mens rea (See Mens rea, subhead: accessory after the fact) common purpose critique of doctrine .… 11.43 defined .… 11.38 incidental crime, possibility of .… 11.40–11.42 joint criminal enterprise distinguished with .… 11.44 defences available to accessories .… 11.56 derivative offences .… 11.68 duress as defence to murder .… 11.57 extended joint criminal enterprise (See subhead: common purpose) innocent agency .… 11.14–11.16 joint criminal enterprise

act in concert .… 11.8–11.10 common purpose distinguished with .… 11.44 defined .… 11.7 presence .… 11.11–11.12 withdrawal .… 11.13 rules of .… 11.45 technical distinctions .… 11.2–11.6 Victoria, new law in .… 11.46–11.50 withdrawal .… 11.13; 11.51–11.55 Conspiracy agreement .… 11.70 common law .… 11.69 elements .… 11.69 mens rea .… 11.71–11.76 Victorian reforms to conspiracy .… 11.77 Criminal Law assault (See Assault) code States .… 1.5 common law States .… 1.4 Commonwealth criminal law .… 1.2 evidential burden defence .… 1.24 defined .… 1.22 prosecution, resting on .… 1.23 homicide (See Homicide) indictable offences summary offences distinguished with .… 1.11 tried summarily .… 1.12–1.14

jurisdiction defined .… 1.6 geographical connection between State and offence .… 1.8 statutory reforms .… 1.8 territorial .… 1.7 legal burden of proof defined .… 1.18 ‘golden thread’ rule .… 1.18 prosecution, exceptions to burden resting on .… 1.19 common law .… 1.20 statute .… 1.21 liability, criminal (See Liability, criminal) manslaughter (See Manslaughter) murder (See Murder) offences, classification of .… 1.10–1.15 developments .… 1.10 felonies and misdemeanours .… 1.15 indictable and summary offences .… 1.11 misdemeanours and felonies .… 1.15 summary and indictable offences .… 1.11 property offences (See Property offences) rape (See Rape) standard of proof .… 1.16; 1.17 State Criminal Law .… 1.3 code States .… 1.5 common law States .… 1.4 structure .… 1.1–1.9 Commonwealth criminal law .… 1.2

State Criminal Law .… 1.3 summary and indictable offences .… 1.11

D Deception actus reus .… 10.40–10.44 defined .… 10.43 historical background .… 10.39 mens rea .… 10.45–10.47 theft in relation with .… 10.48 Defences automatism (See Automatism) duress (See Duress) intoxication (See Intoxication) mental impairment (See Mental impairment) mistake of fact (See Mistake of fact) necessity (See Necessity) self-defence (See Self-defence) Duress elements .… 13.36–13.39 rationale .… 13.34 scope .… 13.35 Victoria .… 13.40

F Fraud actus reus (See Actus reus, subhead: fraud) elements .… 9.46 historical background .… 9.46 mens rea (See Mens rea, subhead: fraud)

reforms .… 9.46

H Homicide abortion .… 3.9 act or omission .… 3.12 beginning of life abortion .… 3.9 common law .… 3.5 causation defined .… 3.19 factual causation ‘but for’ test .… 3.21; 3.22 ‘common sense’ test .… 3.23 legal causation (See subhead: legal causation) defined .… 3.1 factual causation ‘but for’ test .… 3.21; 3.22 ‘common sense’ test .… 3.23 final fatal step by victim historical background .… 3.2 human being beginning of life (See subhead: beginning of life) defined .… 3.4 intervening acts (See subhead: novus actus interveniens) legal causation elements .… 3.24 intervening acts (See subhead: novus actus interveniens) novus actus interveniens (See subhead: novus actus interveniens)

‘operating and substantial cause’ test .… 3.25 legally dead person .… 3.10 novus actus interveniens .… 3.26–3.41 contributory negligence .… 3.33 final fatal step by victim (See subhead: final fatal step by victim) independent third party, voluntary act by .… 3.28 medical treatment .… 3.29–3.32 ordinary hazard .… 3.27 pre-existing condition .… 3.34–3.35 omission or act .… 3.12 voluntariness .… 3.13–3.18 year and a day rule .… 3.11

I Intoxication automatism in relation with .… 12.31 common law .… 13.2–13.6 defined .… 13.1 ‘Dutch courage’ .… 13.4; 13.14 impairment of the mind, substantial .… 5.60 involuntary consumption .… 13.5 manslaughter in relation with .… 13.6 murder in relation with .… 13.6 New South Wales (See New South Wales, subhead: intoxication) self-defence .… 13.32 self-induced involuntary intoxication versus (See New South Wales, subhead: selfinduced versus involuntary intoxication) South Australia .… 13.7–13.8

South Australia (See South Australia, subhead: intoxication) Victoria common law .… 13.2–13.6 section 322T .… 13.9 Involuntary Manslaughter assault or single punch causing death .… 6.9 ‘coward punches’ .… 6.9 criminal negligence act, by elements .… 6.11 gross departure from standard of care .… 6.13 standard of care .… 6.12 defined .… 6.10 examples .… 6.18 omission, by breach of duty .… 6.16 causation .… 6.17 defined .… 6.14 legal duty to act .… 6.15 unlawful and dangerous act, distinguished with .… 6.19–6.20 defined .… 6.1 neglect where death results .… 6.21–6.22 single punch causing death .… 6.9 unlawful and dangerous act battery manslaughter .… 6.8 causation .… 6.4 ‘coward punches’ .… 6.6 criminal negligence distinguished with .… 6.19–6.20 dangerousness .… 6.5–6.7

elements .… 6.2 mistake of fact .… 6.7 unlawfulness .… 6.3

L Larceny actus reus (See Actus reus, subhead: larceny) bailee, larceny by bailment .… 9.41 conversion or taking .… 9.43 defined .… 9.40 fraudulently defined .… 9.44 ownership versus physical possession .… 9.42 physical possession versus ownership .… 9.42 taking or conversion .… 9.43 common law .… 9.2 elements .… 9.2 finding, larceny by actus reus .… 9.37; 9.39 defined .… 9.36 mens rea .… 9.38; 9.39 mens rea (See Mens rea, subhead: larceny) Riley principle .… 9.35; 9.39 robbery (See Robbery) types bailee, larceny by (See subhead: bailee, larceny by) finding, larceny by (See subhead: finding, larceny by) Liability, Criminal

attempt (See Attempt) children common law .… 2.3 doli incapax, doctrine of .… 2.3; 2.5 responsibility, criminal .… 2.4 complicity (See Complicity) conspiracy (See Conspiracy) continuing act, device of .… 2.50–2.51 defences (See Defences) legal capacity children (See subhead: children) corporations .… 2.6 requisites actus reus (See Actus reus, subhead: liability, criminal) legal capacity children (See subhead: children) corporations .… 2.6 mens rea (See Mens rea, subhead: liability, criminal) temporal coincidence .… 2.50–2.51

M Manslaughter common law .… 5.1 intoxication in relation with .… 13.6 involuntary (See Involuntary manslaughter) voluntary (See Voluntary manslaughter) Mens Rea absolute liability offences .… 2.49 accessorial liability

aiding, abetting, counselling or procuring, intentional .… 11.37 defined .… 11.32 Giorgianni .… 11.32–11.35 knowledge of all essential matters .… 11.33–11.34 accessory after the fact New South Wales .… 11.63–11.64 South Australia .… 11.65–11.67 Tevendale .… 11.63 Victoria .… 11.65–11.67 attempt .… 11.79 burglary New South Wales .… 9.78 South Australia and Victoria .… 10.60–10.62 Victoria and South Australia .… 10.60–10.62 common assault elements .… 7.3 intentional assault (See subhead: intentional assault) negligence .… 7.10 reckless assault (See subhead: reckless assault) conspiracy .… 11.71–11.76 contemporaneity of mens rea and actus reus .… 7.43 deception .… 10.45–10.47 finding, larceny by .… 9.38; 9.39 fraud intentionally or recklessly deceptive .… 9.57–9.59 permanently deprive, intention to .… 9.60 recklessly or intentionally deceptive .… 9.57–9.59 temporal coincidence .… 9.61–9.62

intentional assault hostility essential .… 7.5 South Australia .… 7.6 larceny claim of right in good faith .… 9.27–9.31 depriving the owner of property, permanently .… 9.21–9.26 elements .… 9.20 fraudulently .… 9.32–9.34 good faith, claim of right in .… 9.27–9.31 temporal coincidence .… 9.35 liability, criminal .… 2.7; 2.23–2.49 defined .… 2.23–26 objective standards (See subhead: objective standards) subjective standards (See subhead: subjective standards) temporal coincidence .… 2.50–2.51 mistake of fact .… 13.17–13.18 murder English approach to mens rea .… 4.41 provocation .… 5.43 temporal coincidence .… 4.44–4.45 negligence offences .… 2.37–2–39 ciritique .… 2.39 defined .… 2.38 objective standards defined .… 2.25 negligence offences (See subhead: negligence offences) strict liability offences (See subhead: strict liability offences) rape

elements .… 8.23 indecent assault .… 8.33 New South Wales .… 8.24–8.29 South Australia .… 8.24–8.29 Victoria .… 8.30–8.31 reckless assault defined .… 7.7 South Australia .… 7.9 subjective, must be .… 7.8–7.9 robbery New South Wales .… 9.71–9.73; 9.74 South Australia and Victoria .… 10.54–10.55 Victoria and South Australia .… 10.54–10.55 self-induced versus involuntary intoxication .… 13.13 strict liability offences .… 2.40–2.48 imposing strict liability, utility of .… 2.45 interpretation, principles of .… 2.42–2.44 mistake of fact, honest and reasonable .… 2.46–2.48 subjective standards defined .… 2.25 indifference to risk .… 2.32 intention .… 2.27–2.30 recklessness .… 2.31 social utility or purpose .… 2.33 transferred malice .… 2.35 wilful blindness .… 2.34 theft depriving, intention of permanently .… 10.25–10.33

dishonestly .… 10.34–10.38 elements .… 10.24 encroachment of owner’s proprietary rights .… 10.25–10.33 fungibles .… 10.32–10–33 Mental Impairment automatism in relation with .… 12.25 disease of the mind .… 12.7–12.14 arteriosclerosis .… 12.10 epilepsy .… 12.13 examples .… 12.10–12.14 hyperglycaemia .… 12.11 schizophrenia .… 12.14 sleepwalking .… 12.12 elements .… 12.2 M’Naghten rules .… 12.2; 12.15 ‘nature and quality of act’ .… 12.15 Not guilty, finding of .… 12.4–12.6 responsibility, criminal .… 12.1 scope of defence .… 12.18–12.21 irresistible impulse .… 12.20–12.21 psychopathy .… 12.19 self-induced .… 12.22 wrongfulness, knowledge of .… 12.16–12.17 Mistake of Fact defined .… 13.16 formal defences in relation with .… 13.21 independent defence .… 13.19–13.20 mens rea .… 13.17–13.18

Murder common law constructive murder (See subhead: constructive murder) intentional murder (See subhead: intentional murder) reckless murder (See subhead: reckless murder) resisting unlawful arrest .… 4.27 South Australia .… 4.1; 4.2 Victoria .… 4.1; 4.2 constructive murder common law .… 4.18–4.19 New South Wales (See New South Wales, subhead: constructive murder) South Australia .… 4.20–4.21 Victoria (See Victoria, subhead: constructive murder) defined .… 4.2 duress as defence to murder .… 11.57 grievous bodily harm defined .… 4.8 intentional murder defined .… 4.3 grievous bodily harm, inflict (See subhead: grievous bodily harm) ‘intention’ defined .… 4.4 kill, intention to .… 4.5–4.7 New South Wales .… 4.30 intoxication in relation with .… 13.6 mens rea (See Mens rea, subhead: murder) miscellaneous aspects cause of death, unexpected .… 4.40 English approach to mens rea .… 4.41

omissions (See subhead: omissions) transferred malice (See subhead: transferred malice) New South Wales (See New South Wales, subhead: murder) omissions New South Wales .… 4.42 reckless murder defined .… 4.10 emotional state of D .… 4.12 jury, directions to .… 4.17 New South Wales .… 4.31 probability .… 4.13–4.14 social utility .… 4.15 wilful blindness .… 4.16 resisting unlawful arrest .… 4.27 self-defence .… 13.33 South Australia (See South Australia, subhead: murder) temporal coincidence of mens rea and actus reus .… 4.44–4.45 transferred malice defined .… 4.38 New South Wales .… 4.39 Victoria (See Victoria, subhead: murder)

N Necessity defined .… 13.41 elements .… 13.43 extraordinary emergency .… 13.44 scope .… 13.42 sudden or extraordinary emergency .… 13.44

New South Wales accessory after the fact .… 11.63–11.64 assault aggravated assaults elements .… 7.55–7.57 particular injuries, with .… 7.49 common law .… 7.1 death, assault causing .… 6.9 indecent assault .… 8.33 burglary (See Burglary, subhead: New South Wales) constructive murder 25-year foundational offence .… 4.33 D caused the death of V .… 4.34 defined .… 4.32 elements .… 4.32 voluntary act defined .… 4.35 ‘immediately after’ .… 4.37 extreme provocation .… 5.48–5.49 fraud (See Fraud) geographical connection between State and offence .… 1.8 indecent assault .… 8.33 indictable offences .… 1.14 intoxication Criminal Legislation Amendment Act 1996 .… 13.10 critique .… 13.15 ‘Dutch courage’ .… 13.14 involuntary intoxication versus

self-induced (See subhead: self-induced versus involuntary intoxication) sef-defence .… 13.32 self-induced versus involuntary (See subhead: self-induced versus involuntary intoxication) larceny (See Larceny) mental impairment common law .… 12.20 Mental Health (Criminal Procedure) Act 1990 .… 12.6 murder common law replaced by statutory provision .… 4.28 constructive murder (See subhead: constructive murder) intentional murder .… 4.30 malice .… 4.29 omissions .… 4.42 reckless murder .… 4.31 self-defence .… 13.33 statutory provision replaced common law .… 4.28 transferred malice .… 4.39 property offences burglary (See Burglary, subhead: New South Wales) developments .… 9.1 fraud (See Fraud) larceny (See Larceny) robbery (See Robbery, subhead: New South Wales) rape mens rea .… 8.24–8.29 vitiated consent .… 8.20 robbery (See Robbery, subhead: New South Wales)

self-defence common law, reforms to .… 13.30 excessive force in .… 5.4 intoxication .… 13.32 murder .… 13.33 self-induced versus involuntary intoxication actus reus .… 13.12 common law .… 13.11 mens rea .… 13.13 substantial impairment of mind abnormality of mind .… 5.57 burden of proof .… 5.55 defined .… 5.53 insanity distinguished with .… 5.54 intoxication .… 5.60 medical and psychiatric evidence .… 5.62 psychiatric evidence .… 5.62 statutory basis .… 5.56 underlying condition .… 5.58–5.59 transferred malice .… 4.39 voluntary manslaughter extreme provocation .… 5.48–5.49 historical background .… 5.3 provocation (See Voluntary manslaughter, subhead: provocation) self-defence, excessive force in .… 5.4 substantail impairment of mind (See subhead: substantial impairment of mind)

P

Property Offences burglary (See Burglary) deception (See Deception) developments .… 9.1; 10.1 fraud (See Fraud) larceny (See Larceny) robbery (See Robbery) theft (See Theft)

R Rape aggravated rape .… 8.32 common law .… 8.2 consent, absence of age of consent .… 8.17 defined .… 8.8 Victorian approaches to consent .… 8.18 vitiated consent (See subhead: vitiated consent) ‘without consent’ .… 8.9 elements consent, absence of (See subhead: consent, absence of) intercourse or penetration, sexual (See subhead: intercourse or sexual penetration) mens rea (See Mens rea, subhead: rape) indecent assault .… 8.33 intercourse or sexual penetration compelling offences .… 8.7 continuing act .… 8.4 defined .… 8.3

gender .… 8.6 touching need not be sexual .… 8.5 mens rea (See Mens rea, subhead: rape) statutory provisions .… 8.1 vitiated consent common law .… 8.10 miscellaneous .… 8.19–8.22 mistake common law .… 8.11 fraud, sexual intercouse by .… 8.14 identity of D .… 8.12 nature of act .… 8.13 threats and violence .… 8.15–8.16 violence and threats .… 8.15–8.16 Robbery New South Wales actus reus .… 9.64–9.70 defined .… 9.63 elements .… 9.63 mens rea .… 9.71–9.73; 9.74 South Australia (See subhead: Victoria and South Australia) temporal coincidence of actus reus and mens rea .… 9.74 Victoria and South Australia actus reus .… 10.50–10.53 elements .… 10.49 mens rea .… 10.54–10.55 theft, aggravated .… 10.49

S

Self-Defence common law .… 13.22–13.27 intoxication .… 13.32 mistake in relation with .… 13.27 murder .… 13.33 New South Wales (See New South Wales, subhead: self-defence) South Australia common law .… 13.28–13.29 murder .… 13.33 Victoria (See Victoria, subhead: self-defence) South Australia actus reus battery .… 7.30; 7.32 consent .… 7.34; 7.41 psychic assault .… 7.15 assault aggravated assault harm, offeces causing .… 7.58–7.62 particular injuries, with .… 7.57 common law .… 7.1 burglary (See Burglary, subhead: Victoria and South Australia) geographical connection between State and offence .… 1.8 intoxication common law .… 13.2–13.6 ‘Dutch courage’ .… 13.4 self–induced .… 13.7–13.8 irrestible impulse .… 12.21 mens rea

accessory after the fact .… 11.65–11.67 intentional assault .… 7.6 reckless assault .… 7.9 murder common law .… 4.1; 4.2 constructive murder .… 4.20–4.21 self-defence .… 13.33 neglect where death results .… 6.21–6.22 property offences burglary (See Burglary, subhead: Victoria and South Australia) robbery (See Robbery, subhead: Victoria and South Australia) robbery (See Robbery, subhead: Victoria and South Australia) self-defence common law .… 13.28–13.29 excessive force in .… 5.4 murder .… 13.33

T Temporal Coincidence fraud .… 9.61–9.62 larceny .… 9.35 liability, criminal .… 2.50–2.51 murder .… 4.44–4.45 robbery .… 9.74 Theft actus reus (See Actus reus, subhead: theft) deception in relation with .… 10.48 defined .… 10.2 elements .… 10.2

mens rea (See Mens rea, subhead: theft)

V Victoria accessory after the fact .… 11.65–11.67 assault aggravated assault injury, offence causing .… 7.63 particular injuries, with .… 7.57 common law .… 7.1 non-sexual offences against persons .… 7.64 burglary (See burglary, subhead: Victoria and South Australia) complicity, new law of .… 11.46–11.50 conspiracy, legilative reforms to .… 11.77 constructive murder Crimes Act 1958, s 3A(1) of .… 4.22 D caused death of V .… 4.24 elements .… 4.22 foundational offence .… 4.23; 4.25 ‘the necessary elements of which include violence’ .… 4.23 voluntary act of violence .… 4.26 deception (See Deception) duress .… 13.40 extraordinary emergency .… 13.44 indictable offences .… 1.13 intoxication common law .… 13.2–13.6 section 322T .… 13.9 mental impairment

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 .… 12.6 irresistible impulse .… 12.20 murder common law .… 4.1; 4.2 constructive murder (See subhead: constructive murder) self-defence .… 13.33 property offences burglary (See burglary, subhead: Victoria and South Australia) deception (See Deception) historical background .… 10.1 robbery (See robbery, subhead: Victoria and South Australia) theft (See Theft) rape compelling offences .… 8.7 consent .… 8.18 indecent assault .… 8.33 mens rea .… 8.24–8.29; 8.30–8.31 vitiated consent .… 8.16 robbery (See robbery, subhead: Victoria and South Australia) self-defence excessive force in .… 5.4 intoxication .… 13.32 murder .… 13.33 statutory reforms .… 13.31 single punch causing death .… 6.9 sudden or extraordinary emergency .… 13.44 theft (See Theft) voluntary manslaughter

historical background .… 5.3 provocation (See Voluntary manslaughter, subhead: provocation) provocation, abolished defence of .… 5.27 self-defence, excessive force in .… 5.4 Voluntary Manslaughter common law provocation conduct amounting to provocation (See subhead: provocative conduct) defined .… 5.8 elements .… 5.8 defined .… 5.2 extreme provocation .… 5.48–5.49 hearsay provocation .… 5.50 historical background .… 5.3 New South Wales (See New South Wales, subhead: voluntary manslaughter) provocation .… 5.5–5.52 burden of proof .… 5.6–5.7 common law (See subhead: common law provocation) Crimes Amendment (Provocation) Act, s 23 of .… 5.7; 5.8; 5.48 defences .… 5.47 extreme provocation .… 5.48–5.49 hearsay .… 5.50 mens rea for murder .… 5.43 offences other than murder .… 5.44–5.46 Victorian Law Reform Commission .… 5.27 provocative conduct .… 5.9–5.24 deceased, provocation emanates from .… 5.17 delusionary delief .… 5.19

historical background .… 5.12–5.14 mistaken killing .… 5.18 objective test relationship with historical background .… 5.25–5.28 intoxication .… 5.39 self-induced provocation .… 5.23–5.24 subjective test ‘blood be boiling’ .… 5.42 self-control, loss of .… 5.40–5.41 unlawfulness .… 5.15–5.16 self-defence, excessive force in .… 5.4 subtantial impairment of mind (See New South Wales, subhead: substantial impairment of mind)

Related LexisNexis Titles Arenson & Bagaric, Criminal Processes and Investigative Procedures: Victoria and Commonwealth, 3rd ed, 2015 Caruso, Buth, Heath, Leader-Elliott, Leader-Elliott, Naffine, Plater, Toole, South Australian Criminal Law and Procedure, 2nd ed, 2017 Crofts, Crofts, Gray, Kirchengast, Naylor & Tudor, Waller & Williams Criminal Law Text and Cases, 13th ed, 2016 Eburn, Howie, Sattler & Hood, Hayes & Eburn, Criminal Law & Procedure in New South Wales, 5th ed, 2016 Fairall & Barrett, Criminal Defences in Australia, 5th ed, 2017 Feld, Hemming & Anthony, Criminal Procedure in Australia, 2015 Finlay & Kirchengast, Criminal Law in Australia, 2015 Hemming, LexisNexis Glance Card Criminal Law at a Glance, 2015 Hemming & Braun, LexisNexis Questions and Answers: Criminal Procedure, 2016 Hickie & Lloyd, LexisNexis Questions and Answers Criminal Law for Common Law States, 2nd ed, 2014 Howie & Johnson, LNAA Annotated Criminal Legislation New South Wales, 2016–2017 Nash, LNAA Annotated Criminal Legislation Victoria, 2016–2017