Hayes & Eburn criminal law and procedure in New South Wales [5th edition.] 9780409343779, 0409343773

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HAYES & EBURN

Criminal Law and Procedure in New South Wales Fifth edition Dr Michael Eburn BCom LLB (UNSW), BA (Hons) (NE), LLM (Newcastle), MPET (Deakin), PhD (Monash) Barrister Associate Professor, ANU College of Law

The Honorable Roderick N Howie QC BA, LLB, LLM (Hons) (Sydney) former Justice, Supreme Court of New South Wales

Paul Sattler BA (Hons), LLB (Hons) (NE), Grad Dip Legal Prac (College of Law) Solicitor Lecturer, School of Law, University of New England

Marissa Hood BA (Melb), LLB (NE) Graduate Diploma in Information Management (RMIT) Librarian, Australian Government Solicitor LexisNexis Butterworths Australia 2016

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

Eburn, Michael. Hayes & Eburn Criminal Law and Procedure in New South Wales. 5th edition.

ISBN: Notes: Subjects:

9780409343762 (pbk). 9780409343779 (ebk). Includes index. Criminal law — New South Wales. Criminal procedure — New South Wales. Other Authors/Contributors: Howie, R. N. (Roderick N.), Sattler, Paul, Hood, Marissa. Dewey Number: 345.944.

© 2016 Reed International Books Australia Pty Limited trading as LexisNexis. First edition 2002; Second edition 2006, reprinted 2008 (twice); Third edition 2009; Fourth edition 2014. 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 Helvetica Neue, Optima and Palatino. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface to the Fifth Edition The original authors of this book, Michael Eburn and the late Robert Hayes, then teachers of criminal law at the University of New England (UNE) in Armidale, NSW, decided to write a criminal law text with a particular purpose in mind. It was designed to fill a gap by providing a text for a one semester course that covered the subjects necessary to meet the learning objectives for criminal law prescribed by the Legal Profession Admission Rules. Its aim was not to discuss every facet of the criminal law, to cover the entire range of criminal offences operating in this state or to provide a critical analysis of the jurisprudence of the criminal law. Rather its purpose was, and continues to be, to assist students, early in their legal career, to identify the fundamental aspects of the criminal law, both theoretical and practical, and to understand how the laws that are passed by parliament are supplemented and interpreted by the courts and how they impact on the lives of ordinary citizens. Thus the book contains a mixture of discussion, reproductions of statutory provisions and case extracts dealing broadly with the operation of the criminal law by the police and the various courts. It deals with practical aspects of the course of criminal justice from investigation through to the appellate jurisdiction of the state’s criminal courts. It includes a consideration of the principles of criminal responsibility and evidentiary rules of significance in criminal trials. The authors of the fourth edition were: Michael Eburn of the Australian National University in Canberra; Rod Howie QC, a former NSW Supreme Court Judge; and Paul Sattler, a

solicitor and lecturer at UNE. They are joined for this edition by Marissa Hood who currently works as a librarian at Australian Government Solicitor. She has degrees in Arts, Law and Information Management. This edition notes some significant changes to the criminal law in this state since the book’s last publication. It considers the new defence of extreme provocation and examines the resultant changes to the defence of provocation, as it previously existed. There is a discussion of the new offence created where death occurs as the result of a punch thrown to the body of the victim. The Bail Act 2013, which is now in force, is examined in detail and there are references to the increasing impact of terrorist legislation. There are extracts from cases decided in 2015 and 2016. In order to acknowledge the significant contribution made by Robert Hayes to the teaching of law and his assistance to those less advantaged in the community, part of the proceeds from the sale of this book will go to the Robert Hayes Memorial Scholarship for Law that is available to support third or fourth year law students at the University of Western Sydney who have demonstrated a passion for and commitment to the law and who can demonstrate financial or other hardship or who are the first in their family to attend university. The book remains true to its original philosophy, providing a careful analysis of the legislation and case law as well as the provisions that govern criminal procedure. It states the law as at June 2016. The Honorable Roderick N Howie QC June 2016

Table of Flow Charts Flow chart 1-1: Discretion Flow chart 2-1: Murder and manslaughter Murder (Chapter 2) Voluntary manslaughter (Chapter 3) Involuntary manslaughter (Chapter 4) Flow chart 8-1: The defences for offences other than murder Flow chart 8-2: The defences for murder Flow chart 11-1: Overview of criminal procedure Flow chart 11-2: Show cause requirement Flow chart 11-3: Unacceptable risk test Flow chart 12-1: Steps to consider in the admissibility of admissions

Table of Cases References are to paragraphs; Bold numbers indicate case extract

A A v Director of Public Prosecutions [1992] Crim LR 34 …. 1.80 A (Children) (Conjoined Twins: surgical separation), Re [2000] 4 All ER 961 …. 8.5, 9.27 Abbassy v Commissioner of Police of the Metropolis [1990] 1 All ER 193 …. 11.41 Abbott v R [1977] AC 755 …. 9.6 Adams v Kennedy (2000) 49 NSWLR 78; [2000] NSWCA 152 …. 11.40, 11.56 Aguilar v Texas 378 US 108 (1964) …. 11.9 Ahern v R (1988) 165 CLR 87 …. 10.60 Airedale NHS Trust v Bland [1993] AC 789; [1993] 1 All ER 821 …. 2.8 Alderson v Booth [1969] 2 QB 216 …. 11.39 Alister v R (1984) 154 CLR 404; 51 ALR 480 …. 10.17 Al-Kateb v Godwin (2004) 219 CLR 562; 208 ALR 124 …. 1.47, 1.89 Alqudsi v R [2016] HCA 24 …. 12.5 Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 …. 11.9 Andrews v Director of Public Prosecutions [1937] AC 576 ….

4.2, 4.6, 4.14, 4.15 Anglim and Cooke v Thomas [1974] VR 363 …. 7.19 Anic v R (1993) 68 A Crim R 313 …. 7.14 Ansari v R (2007) 70 NSWLR 89 …. 10.30 — v — (2010) 241 CLR 299; 266 ALR 446 …. 10.31 Ansett Australia v Dale [2001] NSWCA 314 …. 2.17 AP v Switzerland (1997) 26 EHRR 541 …. 1.39 Arulthilakan v R (2003) 189 ALR 40 …. 2.11 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] EWCA Civ 1 …. 11.9 Astor v Hayes (1988) 38 A Crim R 219 …. 7.38 Attorney-General v Able [1984] 1 All ER 277; [1983] 3 WLR 845 …. 10.18 — v Whelan [1934] IR 518 …. 9.6 Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 …. 11.51, 11.71 — v Perpetual Trustee Co Ltd (1951–1952) 85 CLR 237 …. 2.17

B B v R (1958) 44 Crim App R 1 …. 1.80 Bales v Parmeter (1935) 35 SR (NSW) 182 …. 11.9, 11.49, 11.51, 11.52 Banditt v R (2005) 224 CLR 262; 223 ALR 633 …. 5.29, 6.20, 6.22 Baraghith v R (1991) 66 ALJR 212 …. 3.18 Barbaro v R (2014) 253 CLR 58; 305 ALR 323 …. 1.22 Barca v R (1975) 133 CLR 82 …. 8.45

Barker v R (1983) 153 CLR 338 …. 7.38 Barton v Armstrong [1969] 2 NSWR 451 …. 5.8 Beavan v R (1954) 92 CLR 660 …. 3.7 Bendix Autolite Corp v Midwesco Enterprises Inc 486 US 888 (1988) …. 12.132 Bergin v Stack (1953) 88 CLR 248 …. 1.88 Bernhard and Harris v Harrison [1963] Crim LR 497 …. 7.38 Binskin v Watson (1990) 48 A Crim R 33 …. 1.87 Blackmore v Linton [1961] VR 374 …. 10.18 Blackwell v R (2011) 81 NSWLR 119; 208 A Crim R 392; [2011] NSWCCA 93 …. 2.33, 5.29, 5.30 Boucher v R (1954) 110 CCC 263 …. 1.60 Boughey v R (1986) 161 CLR 10 …. 2.21, 5.31, 8.59 Brady v Schatzel [1911] St R Qd 206 …. 5.7, 5.31 Bratty v AG for Northern Ireland [1963] AC 386 …. 2.7, 6.10, 8.45 Britten v Alpogut [1987] VR 929; (1986) 23 A Crim R 254 …. 10.7, 10.8, 10.9, 10.10, 10.14 Broadhurst v R [1964] AC 441 …. 8.60 Brown v R (1913) 17 CLR 570 …. 1.50 — v — (1986) 160 CLR 171; 64 ALR 161 …. 12.5 Bryant v R (2011) 205 A Crim R 531; [2011] NSWCCA 26 …. 12.117, 12.127 Bunning v Cross (1978) 141 CLR 54 …. 12.102, 12.104, 12.137, 12.141 Burns v R (2012) 246 CLR 334; 290 ALR 713; [2012] HCA 35 …. 2.12, 4.5, 4.15, 10.67

Burut v Public Prosecutor [1995] 2 AC 579 …. 12.123

C C (A Minor) v Director of Public Prosecutions [1996] AC 1 …. 1.80 Cameron v Holt (1980) 142 CLR 342 …. 1.88 Campbell v R [1981] WAR 286 …. 2.13 Carlton v R (2008) 189 A Crim R 332; [2008] NSWCCA 244 …. 12.81 Carney v R; Cambey v R (2011) 217 A Crim R 201; [2011] NSWCCA 223 …. 12.80 Carr v R (1973) 172 CLR 662 …. 11.64 — v — (1988) 165 CLR 314; 81 ALR 236 …. 12.111, 12.112 — v Western Australia (2007) 232 CLR 138; [2007] HCA 47 …. 12.117, 12.120 Carroll v Mijovich (1991) 25 NSWLR 441 …. 11.20, 11.23 Caxton Publishing Co v Sutherland Publishing Co [1939] AC 178 …. 7.52 CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 …. 9.29, 9.30 Chamberlain v R (No 2) (1984) 153 CLR 521 …. 4.14 Chard v Wallis (1988) 12 NSWLR 453 …. 6.53 Chase Manhattan v Israel-British [1981] Ch 105 …. 7.52 Chen v R [2013] NSWCCA 116 …. 2.33 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; 201 ALR 1; [2003] HCA 49 …. 1.17, 1.18, 1.20, 1.21 Christie v Leachinsky [1947] UKHL 2; [1947] AC 573; [1947] 1 All ER 567 …. 11.39, 11.40, 11.43, 11.56

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 …. 1.44 Cioban v R [2003] NSWCCA 304 …. 9.49 Clarke v Bailey (1933) 33 SR (NSW) 303; [1933] NSWStRp 22 …. 11.52, 11.53, 11.54 Clayton v R (2006) 81 ALJR 439; 168 A Crim R 174; [2006] HCA 58 …. 10.64, 10.67 Cleland v R (1982) 151 CLR 1 …. 12.102, 12.149 Coco v R (1994) 179 CLR 427; [1994] HCA 15 …. 6.31, 11.65 Cole v Turner (1704) 6 Mod Rep 149; 90 ER 958 …. 5.21 Collins v R (1980) 31 ALR 257; [1980] FCA 72 …. 12.100, 12.123 — v Wilcock [1984] 3 All ER 374 …. 5.21 Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 …. 12.123 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476; [2015] HCA 46 …. 1.22 Condon v R (1995) 83 A Crim R 335 …. 7.29 Coomer v R (1989) 40 A Crim R 417 …. 4.2 Cooper v Phibbs (1867) LR 2 HL 149 …. 7.44 — v R (2012) 293 ALR 17; [2012] HCA 50 …. 12.80 Cornelius & Briggs v R (1988) 34 A Crim R 49 …. 7.29 Coward v Baddeley (1859) 4 H & N 478; [1859] 157 ER 927 …. 5.21 Crawford v R [2008] NSWCCA 166 …. 9.45 Croton v R (1967) 117 CLR 326 …. 7.13, 7.15, 7.16 Crowe v Graham (1969) 121 CLR 375 …. 6.46

Crowley v Murphy (1981) 34 ALR 496; [1981] FCA 31 …. 11.19 Crusius v R (1982) 5 A Crim R 427 …. 4.2 CTM v R (2008) 236 CLR 440; 247 ALR 1; [2008] HCA 25 …. 1.89, 1.90, 6.53

D Daemar v Corporate Affairs Commission (Supreme Court of NSW, CA, 4 September 1990, unreported) …. 11.32 Davis v R (1998) 73 ALJR 139 …. 3.25 Dawson v R (1961) 106 CLR 1 …. 1.50 De Gruchy v R (2002) 211 CLR 85; 190 ALR 441; [2002] HCA 33 …. 1.73 Dean v R (2006) 166 A Crim R 341; [2006] NSWCCA 341 …. 6.30 Dickson v Commissioner of Police (1999) 48 NSWLR 156 …. 11.61 Dietrich v R (1992) 177 CLR 292; 109 ALR 385 …. 1.36, 12.157 Dillon v O’Brien and Davis (1887) 20 LR Ir 300 …. 11.53 Director of Public Prosecutions v AM (2006) 161 A Crim R 219; [2006] NSWSC 348 …. 11.32 — v Beard [1920] AC 479 …. 8.59 — v Bell (1992) RTR 335 …. 9.24 — v Carr (2002) 127 A Crim R 151; [2002] NSWSC 194 …. 11.31, 11.32, 12.136 — v Daley [1980] AC 237 …. 2.10 — v Doot [1973] AC 807 …. 10.24 — v Jones (1990) RTR 33 …. 9.24

— v Majewski [1977] AC 443; [1976] 2 All ER 142 …. 8.51, 8.53, 8.59 — v Marijancevic, Preece and Preece (2011) 33 VR 440 …. 11.20 — v Mills [2000] NSWCA 236 …. 8.15 — v Morgan [1976] AC 182 …. 6.17, 6.21, 6.22 — v Newbury; Director of Public Prosecutions v Jones [1977] AC 500 …. 4.2, 4.4, 4.7 — v Nicholls (2001) 123 A Crim R 66 …. 11.70, 11.72 — v Nock [1978] AC 979; [1978] 2 All ER 654 …. 10.27, 10.31 — v Ping Lin [1976] AC 574 …. 12.123 — v Rogers [1953] 1 WLR 1017 …. 6.47 — v Smith [1961] AC 290; [1960] 3 All ER 161 …. 5.28, 8.59 — v Stonehouse [1978] AC 55 …. 10.11, 10.17 Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653; [1975] 1 All ER 913 …. 8.38, 9.6, 9.14, 9.17, 9.19 Director of Public Prosecutions (NSW) v CAD [2003] NSWSC 196 …. 11.32 Do v R [2001] NSWCCA 19 …. 4.9 Donaldson v Broomby (1982) 40 ALR 525 …. 11.28 Doney v R (1990) 171 CLR 207 …. 12.45 Douglas v R [2005] NSWCCA 419 …. 9.33 Driscoll v R (1977) 137 CLR 517; 15 ALR 47 …. 12.110 Duffield v Police (No 2) [1971] NZLR 710 …. 11.64 Duke v R (1989) 180 CLR 508; 83 ALR 650 …. 12.111, 12.112 Duong Hai Nguyen v R; ATCN v R; Khanh Hoang Nguyen

v R; Minh Thy Huynh v R [2007] NSWCCA 363 …. 10.68 Dziduch v R (1990) 47 A Crim R 378 …. 9.41

E Edwards v R [1973] AC 648 …. 3.27 Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302 …. 7.67, 7.68 Ellis v Lawson (1987) 33 A Crim R 69 …. 7.19, 7.22, 7.63 Em v R (2007) 232 CLR 67; 239 ALR 204; [2007] HCA 46 …. 12.149 Engel v Netherlands (No 1) (1976) 1 EHRR 647 …. 1.39 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; 118 ALR 392 …. 1.82 Esso Australia Resources Australia Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 …. 2.17 Evans v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82 …. 7.55 — v New South Wales (2008) 168 FCR 576; 250 ALR 33 …. 1.7, 1.8, 1.9, 1.10 — v Powell [2012] NSWSC 1384 …. 12.96

F Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; [1968] 3 All ER 442 …. 5.6, 5.7, 5.9, 5.31 Fairclough v Whipp (1951) 35 Cr App R 138 …. 6.47 Fardon v Attorney-General (Qld) (2004) 223 CLR 575; 210 ALR 50; [2004] HCA 46 …. 1.28, 1.43, 1.44, 1.45 Ferguson v Weaving [1951] 1 KB 814 …. 10.18, 10.41 Fitzgerald v Kennard (1995) 38 NSWLR 184 …. 6.6, 6.49, 6.50

Fleet v District Court [1999] NSWCA 363 …. 11.32 Foster v R (1967) 118 CLR 117 …. 7.21, 7.22, 7.23, 7.67 — v — (1993) 67 ALJR 550 …. 11.56, 12.104, 12.149 Fox v UK (1991) 13 EHRR 157; [1990] ECHR 18 …. 11.41 Fullerton v Commissioner of Police (1984) 1 NSWLR 159 …. 11.64

G Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1; [1984] 2 All ER 503; [1984] 3 WLR 437 …. 1.88 Gapes v Commercial Bank of Australia Ltd (No 2) (1979) 27 ALR 87 …. 1.12, 1.16, 1.40 Garrett v R (1977) 139 CLR 437 …. 12.88 George v Rockett (1990) 170 CLR 104; 93 ALR 483 …. 11.7, 11.9, 11.21 Gerakiteys v R (1984) 153 CLR 317; 51 ALR 417 …. 10.24, 10.25, 10.29, 10.31 Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 …. 8.28 Gilham v R (2007) 178 A Crim R 72 …. 12.91 Gillard v R (2003) 219 CLR 1 …. 10.62, 10.64 Giorgianni v R (1985) 156 CLR 473; 58 ALR 641 …. 7.38, 10.18, 10.29, 10.31, 10.32, 10.41, 10.45, 10.55 Gould & Co v Houghton [1921] 1 KB 509 …. 10.18 Gray v Barr [1971] 2 QB 554 …. 4.2 Grdic v R [1985] 1 SCR 810 …. 12.88 Green v R (1971) 126 CLR 28; [1972] ALR 524 …. 1.50 — v — (1997) 191 CLR 334; 148 ALR 659 …. 3.18, 3.23, 3.29,

3.30

H Habib v Commonwealth of Australia [2008] FCA 1494 …. 12.123 — v Nationwide News Pty Ltd (2009) 76 NSWLR 299; [2010] NSWCA 34 …. 12.123 Halliday v Nevill (1984) 15 CLR 155 …. 11.21, 11.22, 11.45 Hamod v State of NSW [2011] NSWCA 375 …. 11.42 Han v Commissioners of Customs and Excise [2001] 4 All ER 687 …. 1.39 Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 …. 6.31 Hatzinikolaou v Snape (1989) 97 FLR 86 …. 11.39 Haughton v Smith [1975] AC 476 …. 10.7, 10.10, 10.14, 10.27 He Kaw Teh v R (1985) 157 CLR 523; 60 ALR 449 …. 1.14, 1.83, 1.85, 1.88, 1.89, 6.10, 6.25, 6.52, 7.44 Hibbert v McKiernan [1948] 2 KB 142 …. 7.45 Higgins v R [2007] NSWCCA 56 …. 12.123 Holland, Application of [2008] NSWSC 251 …. 12.85 Holmes v DPP [1946] AC 588 …. 3.29 House v R (1936) 55 CLR 499 …. 12.46 Hussien v Chong Fook Kam [1970] AC 942 …. 11.7 Hyder v The Commonwealth (2012) 217 A Crim R 517; [2012] NSWCA 336 …. 11.9

I Iannella v French (1968) 119 CLR 84 …. 1.88

Ibbs v R (1987) 163 CLR 447; [1987] HCA 46 …. 12.73 Ilich v R (1987) 162 CLR 110; 69 ALR 231; [1987] HCA 1 …. 7.5, 7.7, 7.51, 7.52, 7.53, 7.54, 7.55 International Finance Trust Co Ltd v New South Wales Crime Commission (2008) 189 A Crim R 559; [2008] NSWCA 291 …. 11.9 — v — (2009) 240 CLR 319; [2009] HCA 49 …. 11.9

J Jago v District Court of New South Wales (1989) 168 CLR 23; 87 ALR 577 …. 1.53 JBH and JH (Minors) v O’Connell [1981] Crim LR 632 …. 1.80 Jiminez v R (1992) 173 CLR 572; 106 ALR 162 …. 1.84, 3.28 Johns v R (1980) 143 CLR 108; 28 ALR 155 …. 10.18, 10.44, 10.52, 10.53, 10.55, 10.64, 10.67 Johnson v R (1976) 136 CLR 619; 11 ALR 23 …. 3.18 — v Reeves (2004) 13 Tas R 150; [2004] TASSC 110 …. 11.43 — v Youden [1950] 1 KB 544 …. 10.18 Johnstone v State of New South Wales (2010) 202 A Crim R 422 …. 11.41, 11.42 Jones v United States of America 308 F 2d 307 (1962) …. 4.14 Justins v R (2010) 79 NSWLR 544 …. 2.12

K K v Minister for Youth and Community Services [1982] 1 NSWLR 311 …. 9.29 Kable v DPP (1995) 36 NSWLR 374 …. 1.27, 1.28, 1.32, 1.47, 5.11 — v — (1997) 189 CLR 51; 138 ALR 577 …. 1.28, 1.42, 1.43,

1.44 Kalajzich & Orrock v R (1989) 39 A Crim R 415 …. 2.27 Kelly v R (1923) 32 CLR 509 …. 4.14 — v — (2004) 218 CLR 216; 205 ALR 274; 78 ALJR 538; [2004] HCA 12 …. 12.117, 12.119, 12.127 Kennison v Daire (1986) 160 CLR 129; [1986] HCA 4 …. 7.16, 7.17, 7.54, 7.67, 7.69, 7.70 Kesavarajah v R (1994) 181 CLR 230; 123 ALR 463 …. 8.32 King v R (2012) 245 CLR 588; 288 ALR 565; [2012] HCA 24 …. 4.9 Kolosque v Miyazaki (17 February 1995, unreported) …. 7.18 Kuru v State of New South Wales (2008) 236 CLR 1; 246 ALR 260; [2008] HCA 26 …. 11.22

L La Fontaine v R (1976) 136 CLR 62 …. 2.20 Lacis v Cashmarts [1969] 2 QB 400 …. 7.52 Lackenby v Kirkman [2006] WASC 164 …. 11.64 Lake v Dobson (Supreme Court of NSW, CA, 19 December 1980, unreported) …. 11.32 Lancashire and Yorkshire Railway Co v MacNicoll (1918) 88 LJ (KB) 601 …. 7.52 Langham v R (1984) 36 SASR 48 …. 7.38, 7.41 Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39 …. 5.33 Lee Chun-Chuen v R [1963] AC 220 …. 3.29 Lenard v R (1992) 58 A Crim R 123 …. 7.38

Licciardello v R (2012) 6 ACTLR 233; 219 A Crim R 445; [2012] ACTCA 16 …. 11.39 Likiardopoulos v R (2012) 247 CLR 265; 291 ALR 1; [2012] HCA 37 …. 1.53, 10.58 Lim Chin Aik v R [1963] AC 160 …. 1.88 Lindsay v R (2015) 255 CLR 272; 319 ALR 207 …. 3.29 Lippl v Haines (1989) 18 NSWLR 620 …. 11.22, 11.45, 11.46 Luc Thiet Thuan v R [1997] AC 131 …. 3.18

M Macleod v R (2003) 214 CLR 230; 197 ALR 333; [2003] HCA 24 …. 7.25, 7.31, 7.32, 7.38, 7.44, 7.49 MacPherson v Brown (1975) 12 SASR 184 …. 5.9, 5.31 Maguire v Beaton (2005) 162 A Crim R 22 …. 11.65 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 …. 2.10 Makrynikos v R [2006] NSWCCA 170 …. 9.9, 9.11 Mamote-Kulang v R (1964) 111 CLR 62 …. 2.7, 2.13, 4.2 Mancini v DPP [1942] AC 1 …. 8.45 Markarian v R (2005) 228 CLR 357; 215 ALR 213; [2005] HCA 25 …. 12.46, 12.47, 12.48, 12.70 Markby v R (1978) 140 CLR 108 …. 10.57 Masciantonio v R (1995) 183 CLR 58; 129 ALR 575 …. 3.18, 3.28 Masnec v R [1962] Tas SR 254 …. 2.21 Matusevich v R (1977) 137 CLR 633 …. 10.57 MBF Australia Ltd v Malouf [2008] NSWCA 214 …. 7.55

McAuliffe v R (1995) 183 CLR 108; 130 ALR 26 …. 2.29, 10.44, 10.55, 10.56, 10.61, 10.64, 10.67 McCullough v R [1982] Tas R 43 …. 9.41 McDermott v R (1948) 76 CLR 501; [1948] HCA 23 …. 12.100, 12.104, 12.123 McGhee v R (1995) 183 CLR 82 …. 9.52 McGowan v Langmuir [1931] SC (J) 10 …. 6.47 McGrath v R (2010) 199 A Crim R 527; [2010] NSWCCA 48 …. 6.29 McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305 …. 3.23 McKinney v R (1991) 171 CLR 468; 98 ALR 577 …. 12.112 Meissner v R (1995) 184 CLR 132 …. 12.12 Merritt and Roso v R (1985) 19 A Crim R 360 …. 12.139 Meyers v R (1997) 147 ALR 440 …. 1.76 Michaels v R (1995) 184 CLR 117 …. 11.52 Miller v R [2016] HCATrans 106 …. 10.65 — v Race (1758) 1 Burr 452; 97 ER 398 …. 7.52 Mills v R (1986) 68 ALR 455 …. 10.53 Miranda v Arizona 384 US 436 (1966) …. 11.99 Moffa v R (1977) 138 CLR 601; 13 ALR 225 …. 3.18, 8.45 Mohan v R [1967] 2 AC 187 …. 10.41, 10.60, 10.61 Moloney v Mercer [1971] 2 NSWLR 207 …. 6.47 Morris v R (1987) 163 CLR 454 …. 4.14 Moss v Brown [1979] 1 NSWLR 114 …. 1.60 Mousell Brothers Ltd v London and North-Western Railway Co [1917] 2 KB 836 …. 1.81

Mraz v R (1955) 93 CLR 493 …. 2.33 Mulcahy v R (1868) LR 3 HL 306 …. 10.22, 10.29, 10.31 Muldrock v R (2011) 244 CLR 120; 281 ALR 652; [2011] HCA 39 …. 12.70 Mullins v Lillyman (2007) 70 NSWLR 26; [2007] NSWSC 407 …. 11.65 Murray v R (2002) 211 CLR 193; 189 ALR 40 …. 2.7, 8.39, 8.40

N Nasr v State of New South Wales (2007) 170 A Crim R 78; [2007] NSWCA 101 …. 11.52, 11.71 National Coal Board v Gamble [1959] 1 QB 11 …. 10.18 Neal v R (1982) 149 CLR 305; 42 ALR 609 …. 12.77 — v — (2011) 32 VR 454; 213 A Crim R 190; [2011] VSCA 172 …. 5.41 New South Wales Crime Commission v Vu [2009] NSWCA 349 …. 11.9 Nicholls v R; Coates v R (2005) 219 CLR 196; 213 ALR 1; [2005] HCA 1 …. 12.117, 12.119 Nydam v R [1977] VR 430 …. 2.20, 4.2, 4.3, 4.8, 4.9, 4.11

O O’Connell v R (1844) 11 Cl & F 155; 8 ER 1061 …. 10.24 Okafor v R [2007] NSWCCA 147 …. 11.3 Onourah v R (2009) 76 NSWLR 1; 260 ALR 126 …. 10.16 Orban v Bayliss [2004] NSWSC 428 …. 11.63, 11.65 Osland v R (1998) 197 CLR 316; 159 ALR 170 …. 2.13, 2.29, 10.57 Ostrowski v Palmer (2004) 218 CLR 493; 206 ALR 422 …. 1.85,

1.86 Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388 …. 2.10 Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617 …. 2.10

P Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 …. 5.32 Papadimitropoulos v R (1957) 98 CLR 249 …. 6.38 Pappajohn v R (1980) 14 CR (3d) 243 …. 1.88 Parker v R (1963) 111 CLR 610 …. 2.27, 3.15, 3.18, 4.11, 8.45 — v — (1964) 111 CLR 665 …. 3.29 Parsons v R (1999) 195 CLR 619; 160 ALR 531 …. 7.11 Peacock v R (1911) 13 CLR 618 …. 8.45 Pearce v R (1998) 194 CLR 610; 156 ALR 684; [1998] HCA 57 …. 12.86, 12.87 Pemble v R (1971) 124 CLR 107 …. 1.89, 2.20, 2.21, 4.2, 4.4, 4.6, 7.38 People v Beardsley 113 NW 1 128 (1907) …. 2.9, 4.14 Perka v R (1985) 13 DLR (4th) 1 …. 9.24 Peters v R (1998) 192 CLR 493; 151 ALR 51; [1998] HCA 7 …. 7.29, 7.30, 7.31, 7.32, 7.44, 7.49, 7.66, 10.19, 10.24, 10.29, 10.31 Petty and Maiden v R (1991) 173 CLR 95 …. 12.150 Plenty v Dillon (1991) 171 CLR 635 …. 11.22, 11.46 Plomp v R (1963) 110 CLR 234 …. 1.73 PNJ v R (2009) 252 ALR 612; 193 A Crim R 54; [2009] HCA 6 …. 12.87

Pointer v United States 151 US 396 (1894) …. 1.73 Pollock v R (2010) 242 CLR 233; 271 ALR 219 …. 3.16 Pommell v R [1995] EWCA Crim 7; [1995] 2 Cr App Rep 607 …. 9.24, 9.27 Potts v R [2012] NSWCCA 229 …. 8.28 PR v R [2015] NSWCCA 215 …. 12.80 Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241; 67 ACSR 692; [2008] NSWCA 204 …. 1.81 Proprietary Articles Trade Association v AG (Canada) [1931] AC 310 …. 1.2, 1.11 Proudman v Dayman (1941) 67 CLR 536 …. 1.88, 6.52 Purves v Inglis (1915) 34 NZLR 1051 …. 6.46

Q Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; [1966] HCA 21 …. 11.7, 11.9 Question of Law (No 1 of 1993) (1993) 59 SASR 214 …. 6.6, 6.38

R R v AB [1941] 1 KB 454; (1941) 65 LT 382 …. 7.12 — v Abdul-Hussain [1998] EWCA Crim 3528; [1999] Crim L R 570 …. 9.10, 9.27 — v Abusafiah (1991) 24 NSWLR 531 …. 9.2, 9.6, 9.7, 9.8, 9.9, 9.11, 9.15, 9.16 — v Ahluwalia (1993) 96 Cr App R 133 …. 3.15 — v Aiken (2005) 63 NSWLR 719; [2005] NSWCCA 328 …. 6.38, 6.39, 6.40

— v Ainsworth (1991) 57 A Crim R 174 …. 11.56, 11.71 — v AJS (2005) 12 VR 563; [2005] VSCA 288 …. 6.10 — v Al-Abodi (District Court, 20 July 2005, 04/21/3379, Goldring DCJ) …. 6.53 — v Anthony [1965] 2 QB 189 …. 10.24 — v Antonelli and Barberi (1905) 70 JP 4 …. 10.18 — v Armstrong [2010] NSWSC 483 …. 12.117 — v Ashwell (1885) 16 QBD 190 …. 7.50, 7.51, 7.52 — v Aston and Burnell (1987) 44 SASR 436 …. 7.29 — v Ayoub [1984] 2 NSWLR 511 …. 3.35, 8.19 — v Azar (1991) 56 A Crim R 414 …. 9.49 — v Bainbridge [1960] 1 QB 129 …. 10.18 — v Banditt (2004) 151 A Crim R 215; [2004] NSWCCA 208 …. 6.19 — v Barbouttis, Dale and Single (1995) 37 NSWLR 256; 82 A Crim R 432 …. 10.27 — v Barlow and Maguire (1962) 79 WN (NSW) 756 …. 10.73 — v Barrass [2005] NSWCCA 131 …. 6.47 — v Bedford [2007] SASC 276 …. 7.41 — v Bellchambers [2008] NSWCCA 235 …. 8.61 — v Bernhard [1938] 2 QB 264 …. 7.38 — v Bertrand (2008) 20 VR 222; [2008] VSCA 182 …. 12.123 — v Beserick (1993) 30 NSWLR 510 …. 6.6 — v Bingapam (1975) 11 SASR 469 …. 2.13 — v Blacklidge (CCA, 12 December 1995, unreported) …. 9.49

— v Blayney (2003) 87 SASR 354; [2003] SASC 405 …. 6.6, 6.33, 6.36 — v Boden (1844) 1 C & K 395 …. 7.38 — v Bonollo [1981] VR 633 …. 7.29 — v Bonora (1994) 35 NSWLR 74 …. 6.48 — v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 …. 4.6 — v Bourne [1938] 3 All ER 615; [1939] 1 KB 687 …. 9.27 — v Bowen [1996] EWCA Crim 1792; [1996] 2 Cr App R 157 …. 9.11 — v Brisac and Scott (1803) 4 East 164; 102 ER 792 …. 10.37 — v Brougham (1986) 43 SASR 187 …. 10.66 — v Brow [1981] VR 783 …. 7.29 — v Brown (1984) 58 ACTR 33 …. 4.2 — v — [1993] 2 All ER 75; [1993] 2 WLR 556 …. 3.23, 5.31, 5.32, 5.33, 5.34, 5.36, 5.38, 5.39, 5.41, 5.45 — v — [1994] 1 AC 212 …. 5.31, 5.32, 5.33, 5.34, 5.36, 5.38, 5.39, 5.41, 5.45 — v Bruce (1847) 2 Cox CC 262 …. 5.32 — v Buckett (1995) 79 A Crim R 302 …. 7.38 — v Bugg [1978] VR 251 …. 10.7 — v Bull and Schmidt (1845) 1 Cox CC 281 …. 10.37 — v Bullock (1868) LR 1 CCR 115 …. 5.27 — v Burgess; R v Saunders [2005] NSWCCA 52 …. 9.42 — v Burke [1983] 2 NSWLR 93 …. 2.29 — v Butcher [1986] VR 43 …. 2.13 — v Butt (1884) 15 Cox CC 564 …. 10.37

— v Button (2002) 54 NSWLR 455 …. 10.66 — v Cairns [1999] 2 Cr App Rep 137; [1999] EWCA Crim 468 …. 9.26 — v Caldwell [1982] AC 341 …. 6.17 — v Camplin (1845) 1 Cox CC 220 …. 6.36 — v Carr (1972) 1 NSWLR 608 …. 11.64 — v Carroll [2001] QCA 394 …. 12.90 — v — (2002) 213 CLR 635; 194 ALR 1; [2002] HCA 55 …. 1.53, 12.88, 12.90, 12.92 — v Carter [1959] VR 105 …. 8.63 — v Cato [1976] 1 WLR 110 …. 2.12, 2.13 — v Catt [2005] NSWCCA 279 …. 12.82 — v Chai (2002) 76 ALJR 628; 128 A Crim R 101 …. 4.17 — v Chan-Fook [1994] 1 WLR 691 …. 3.23 — v Chant (NSWCCA, 12 June 1988, unreported) …. 6.33, 6.34 — v Charlotte Smith (1865) 10 Cox CC 82; Le & Ca 607; 169 ER 1533 …. 4.14 — v Chayna (1993) 66 A Crim R 178 …. 8.17 — v Cheatham [2000] NSWCCA 282 …. 8.16, 8.18, 8.24 — v — (No 2) [2002] NSWCCA 360 …. 8.25 — v Chhay (1994) 72 A Crim R 1 …. 3.15, 3.16 — v Chonka [2000] NSWCCA 466 …. 6.47 — v Christov [2006] NSWSC 972 …. 8.24, 8.26, 8.27 — v Church [1966] 1 QB 59 …. 4.2 — v Churchill [1967] 2 AC 224 …. 10.18, 10.31

— v Cioban [2002] NSWSC 972 …. 9.49 — v Clarence [1886–90] All ER Rep 133; (1888) 22 QBD 23 …. 5.32, 5.40, 6.38 — v Clark (NSWCCA, 17 April 1998, unreported) …. 6.6, 6.12, 6.13 — v Clarke [1959] VR 645 …. 4.14 — v — (1997) 97 A Crim R 414 …. 12.148 — v CLD [2015] NSWCCA 114 …. 10.67 — v Clough (1992) 28 NSWLR 396 …. 10.56, 10.61 — v Cole [1994] Crim LR 582 …. 9.27 — v Coleman (1990) 19 NSWLR 467 …. 2.33, 5.29, 5.31, 8.45, 8.60 — v Collins (2002) 127 A Crim R 95 …. 11.75 — v Conde (1867) 10 Cox CC 547 …. 2.9, 4.14 — v Coney (1882) 8 QBD 534 …. 5.32 — v Conlon (1993) 69 A Crim R 92 …. 9.41, 9.44 — v Conway (1989) 88 Cr App Rep 159 …. 9.24 — v Cooke (1985) 16 A Crim R 304 …. 3.22 — v Cornelissen [2004] NSWCCA 449 …. 4.4 — v Coslet (1782) 1 Leach 236; 168 ER 220 …. 7.8 — v Coulstock (1998) 99 A Crim R 143 …. 12.138 — v Court [1989] 1 AC 28 …. 6.46 — v Coventry (1938) 59 CLR 633 …. 5.9, 10.18 — v Cowan [1955] VLR 18 …. 4.14 — v Crabbe (1985) 156 CLR 464; 58 ALR 417; 16 A Crim R 19; [1985] HCA 22 …. 1.71, 2.7, 2.20, 2.21, 2.22, 5.23, 5.29, 5.43, 5.44, 6.16, 8.59, 10.18

— v Craig (Abadee J, 14 April 1993, unreported) …. 12.73 — v CRH (18 December 1996, unreported) …. 1.80 — v Croft [1944] KB 295 …. 10.69 — v Crofts (Grove J, 6 December 1996, unreported) …. 12.73 — v Cullum (1873) LR 2 CCR 28 …. 7.64 — v Cunningham [1957] 2 QB 396 …. 2.33, 5.29 — v Cuthbertson [1981] AC 470 …. 10.24 — v Dalby [1982] 1 All ER 916 …. 2.12, 4.4 — v Daley (1879) 2 SCR (NS) (NSW) 151 …. 7.9, 7.12 — v Dalley (2002) 132 A Crim R 169 …. 11.55 — v Daly [1968] VR 257 …. 6.19 — v Darby (1982) 148 CLR 668 …. 10.29 — v Davenport [1954] 1 All ER 602; [1954] 1 WLR 569 …. 7.13 — v Davidson [1969] VR 667 …. 9.29 — v Davis (1998) 100 A Crim R 573 …. 3.25 — v Dee (1884) 14 LR Ir 468 …. 6.38 — v Demirian [1989] VR 97; 33 A Crim R 441 …. 2.10, 10.67 — v Derbin [2000] NSWCCA 361 …. 8.63 — v Dib (2002) 134 A Crim R 329 …. 3.28 — v Dillon (1878) 1 SCR (NS) (NSW) 159 …. 7.38 — v DMC (2002) 137 A Crim R 246 …. 5.22 — v Donovan [1934] 2 KB 498; [1934] All ER Rep 207 …. 3.23, 5.32 — v Douglas [1958] VR 721 …. 6.53 — v Downs (1985) 3 NSWLR 312 …. 2.29, 3.7

— v Dudley and Stephens (1884) 14 QBD 273 …. 9.17, 9.24, 9.27 — v Duke [2000] SASC 254 …. 9.49 — v Dungay (2001) 126 A Crim R 216; [2001] NSWCCA 443 …. 11.56 — v Duong (1992) 61 A Crim R 140 …. 4.17 — v Duru & Asghar [1974] 1 WLR 2 …. 7.68 — v Dykyj (1993) 29 NSWLR 672 …. 1.71 — v Eagleton (1855) Dears CC 515 …. 10.7, 10.11 — v Edwards [1988] VR 481 …. 7.29 — v El Azzi (2001) 125 A Crim R 113 …. 10.21, 10.27 — v — [2004] NSWCCA 455 …. 10.27 — v Ellis (2003) 58 NSWLR 700 …. 12.95 — v Emmet [1999] EWCA Crim 1710 …. 5.34, 5.35, 5.38, 5.39 — v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27 …. 12.96 — v Evans and Gardiner (No 2) [1976] VR 523 …. 2.13 — v F (1996) 40 NSWLR 245 …. 2.17 — v Falconer (1990) 171 CLR 30 …. 8.6, 8.9, 8.39, 8.43, 8.44, 8.45, 8.46 — v Farrar (1991) 53 A Crim R 387 …. 9.52 — v Feely [1973] QB 530 …. 7.27, 7.28, 7.29, 7.66 — v Fernando (1997) 95 A Crim R 533 …. 12.73 — v Flattery (1877) 2 QBD 410 …. 6.38 — v Francis (1988) 88 Cr App R 127 …. 6.45, 6.47 — v — [1993] 2 Qd R 300 …. 6.33, 6.35, 6.36

— v Franklin (1883) 15 Cox CC 163 …. 4.2 — v Fraser [2005] NSWCCA 77 …. 12.72 — v Fuge (2001) 123 A Crim R 310; [2001] NSWCCA 208 …. 7.38, 7.40, 7.41, 7.42 — v Fulling [1987] QB 426; [1987] EWCA Crim 4 …. 12.123 — v G [2005] NSWCCA 291 …. 11.65 — v Garforth [1964] Crim LR 936 …. 4.2 — v — (NSWCCA, 23 May 1994, unreported) …. 12.73 — v Gazdovic [2002] VSC 588 …. 9.49 — v Ghosh [1982] QB 1053; [1982] EWCA Crim 2 …. 7.27, 7.28, 7.29, 7.32, 7.33, 7.66 — v Gibbins and Proctor (1918) 13 Cr App R 134 …. 2.8, 2.9, 4.14 — v Gieselmann (CCA, 12 November 1996, unreported) …. 8.25 — v Gill [1963] 1 WLR 841 …. 8.45 — v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21 …. 6.45, 6.47 — v Glenister [1980] 2 NSWLR 597 …. 7.22, 7.26, 7.35 — v Gorrie (1918) 83 JP 136 …. 1.80 — v Gotts [1992] 2 AC 412 …. 9.21, 9.22 — v Grant (2002) 55 NSWLR 80; 131 A Crim R 510 …. 2.21, 8.59 — v Greenstein [1975] 1 WLR 1353 …. 7.29 — v Gregory (1867) LR 1 CCR 77 …. 7.38 — v Griffiths [1966] 1 QB 589 …. 10.24 — v Grimes and Lee (1894) 15 NSWR 209 …. 2.10

— v Grondkowski [1946] KB 369 …. 1.60 — v Gunn (1930) 30 SR (NSW) 336 …. 10.19 — v Hall (1828) 3 C & P 409; 172 ER 477 …. 7.37 — v — (1961) 45 Cr App R 366 …. 4.2 — v — [2001] NSWCCA 202 …. 3.26 — v Hallett [1969] SASR 141 …. 2.13, 2.20 — v Halliday (1889) 61 LT 701 …. 2.10 — v Hancock [1986] AC 455 …. 8.59 — v Hands (1887) 16 Cox CC 188 …. 7.16 — v Harkin (1989) 38 A Crim R 296 …. 6.45, 6.46 — v Harris (Vic CA, 13 February 1997, unreported) …. 7.29 — v — (2000) 50 NSWLR 409; [2000] NSWCCA 469 …. 12.73 — v Hasan [2005] 2 Crim App 314 …. 9.9 — v Hawes (1994) 35 NSWLR 294 …. 9.41 — v Hawi (No 10) [2011] NSWSC 1656 …. 12.42 — v Hempstead (1818) Russ & RyCroCas 344; 168 ER 837 …. 10.24 — v Hemsley (1988) 36 A Crim R 334 …. 5.23, 6.12, 6.16, 6.17, 6.19 — v Hennigan [1971] 3 All ER 133 …. 2.13 — v Henning (NSWCCA, 11 May 1990, unreported) …. 6.6, 6.17 — v Higgins (1801) 2 East 5; 102 ER 269 …. 10.7 — v Hill (1980) 3 A Crim R 397 …. 3.15 — v — [1986] 1 SCR 313; (1986) 25 CCC (3d) 322 …. 3.18 — v Hoar [1965] NSWR 1167 …. 11.39

— v Holzer [1968] VR 481 …. 4.2 — v Hore; R v Fyffe [2005] NSWCCA 3 …. 10.60 — v Horsey (1862) 3 F & F 287; 176 ER 129 …. 2.29 — v Horton (1998) 45 NSWLR 426; 104 A Crim R 306 …. 12.96, 12.117 — v Howarth (1828) 1 Mood 207 …. 11.40 — v Howe (1958) 100 CLR 448; [1958] ALR 753 …. 11.48 — v Howe; R v Bannister; R v Burke; R v Clarkson [1987] AC 417 …. 7.38, 9.17, 9.21, 9.22, 9.27 — v Howes (1971) 2 SASR 293 …. 10.24 — v Howlett [1968] Crim LR 222 …. 7.9 — v Hucker [2002] NSWSC 1068 …. 8.28 — v Hudson; R v Taylor [1971] 2 QB 202 …. 9.6 — v Hurley and Murray [1967] VR 526 …. 9.6, 9.7 — v Hurst [1995] 1 Cr App Rep 82 …. 9.27 — v Hutty [1953] VR 338 …. 2.14, 2.15, 2.17 — v Hyam [1975] AC 55 …. 2.20, 6.16 — v Iannazzone [1983] 1 VR 649 …. 3.28 — v Iby (2005) 63 NSWLR 278; [2005] NSWCCA 178 …. 2.15, 2.17, 2.18 — v IL [2016] NSWCCA 51 …. 2.30, 2.33, 4.13, 10.67 — v Instan [1893] 1 QB 450 …. 2.9, 4.14 — v Inwood [1973] 2 All ER 645 …. 11.38 — v Irani [2001] NSWSC 475 …. 12.73 — v Ireland (1970) 126 CLR 321 …. 11.65, 12.104, 12.140, 12.141

— v Jacobs and Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462 …. 2.29, 10.66 — v Jakac [1961] VR 367 …. 2.20 — v Janceski (2005) 64 NSWLR 10 …. 11.65, 12.44 — v Jenkins (1963) 64 SR(NSW) 20 …. 8.63 — v Jogee [2016] UKSC 8; [2016] WLR(D) 84 …. 10.65 — v Johns [1978] 1 NSWLR 282 …. 10.51, 10.52, 10.55 — v Jones (1988) 144 LSJS 58 …. 4.2 — v — (1995) 38 NSWLR 652 …. 4.7 — v — [2000] NSWCCA 186 …. 10.19, 10.26 — v Joukhadar (NSWCCA, 13 June 1975, unreported) …. 2.9, 4.14 — v JS (2007) 230 FLR 276; 175 A Crim R 108; [2007] NSWCCA 272 …. 12.92 — v Kaewklom (No 1) [2012] NSWSC 1103 …. 12.32 — v Kaldor (2004) 150 A Crim R 271 …. 10.40 — v Kanaan [2005] NSWCCA 385 …. 10.62, 10.68 — v Kane [2001] NSWCCA 150 …. 11.40, 11.56 — v — (2004) 144 A Crim R 496 …. 11.66 — v Kastratovic (1985) 19 A Crim R 28 …. 7.38 — v Katarzynski [2002] NSWSC 613 …. 9.39, 9.41, 9.43, 9.44, 9.45, 9.46 — v — [2005] NSWCCA 72 …. 2.7, 8.38, 8.39, 9.42 — v Keir (2000) NSWSC 111 …. 12.73 — v Kelly [1923] VLR 704 …. 4.14 — v Kemp [1957] 1 QB 399 …. 8.63

— v Kennedy (No 2) [2008] AC 269 …. 2.12, 10.67 — v Kenney [1983] 2 VR 470 …. 3.26, 3.27 — v Khazaal (2012) 289 ALR 586; [2012] HCA 26 …. 10.4 — v Khouzame [2000] NSWCCA 505 …. 12.119 — v Kimber [1983] 3 All ER 316; [1983] 1 WLR 1118 …. 6.6, 6.17, 6.48 — v King (2003) 59 NSWLR 472; [2003] NSWCCA 339 …. 2.15, 5.28 — v Kirshaw (1902) 18 TLR 357 …. 1.80 — v Kitchener (1993) 29 NSWLR 696 …. 6.6, 6.17, 6.19, 6.49 — v Knight (1988) 35 A Crim R 314 …. 5.8, 5.31 — v — (aka Black) (2001) 120 A Crim R 381 …. 11.61 — v Kumar (2002) 5 VR 193; 133 A Crim R 245 …. 3.29 — v Kurtic (1996) 85 A Crim R 57 …. 9.46 — v L (1991) 174 CLR 379; 103 ALR 577 …. 6.5 — v Lainson (21 June 1995, unreported) …. 8.15, 8.46 — v Lamb [1967] 2 QB 981 …. 4.6 — v Landy [1981] 1 WLR 355 …. 7.29 — v Lang (1975) 62 Cr App R 50 …. 6.36 — v Larkin [1943] 1 All ER 217; [1943] KB 174; (1942) 29 Cr App R 18 …. 4.2, 4.6 — v Lavallee (1990) 76 CR (3d) 329 …. 3.15 — v Lavender (2005) 222 CLR 67; 218 ALR 521; [2005] HCA 37 …. 2.4, 2.12, 4.11, 4.12 — v Lawford (1993) 61 SASR 542 …. 2.9 — v Lawrence [1980] 1 NSWLR 122 …. 8.45, 9.6

— v — [1982] AC 510 …. 6.17 — v — [1997] 1 VR 459 …. 7.29, 7.44 — v Lee (1950) 82 CLR 133 …. 12.100, 12.149 — v — [2006] NZCA 60 …. 5.36, 5.37, 5.39, 5.41 — v Leoni [1999] NSWCCA 14 …. 10.66 — v Levy [1912] 1 KB 158 …. 10.73 — v LK; R v RK (2010) 241 CLR 177; 266 ALR 399 …. 10.31, 12.92 — v Lockyer (1996) 89 A Crim R 457 …. 12.129 — v Lopatta (1983) 35 SASR 101 …. 7.38 — v Loughnan [1981] VR 443 …. 9.25, 9.27 — v Love (1989) 17 NSWLR 608 …. 7.27, 7.28, 7.29, 7.38 — v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 …. 4.18 — v Lowe (1850) 4 Cox CC 449; 3 Car & Kir 123; 175 ER 489 …. 2.9, 4.14 — v — [1973] QB 702 …. 4.14 — v Lowery & King (No 2) [1972] VR 560 …. 10.55, 10.56, 10.57 — v Lynsey [1995] 3 All ER 654 …. 5.3 — v M (1977) 16 SASR 589 …. 1.80 — v MacDonald [1983] 1 NSWLR 729 …. 7.14, 7.22, 7.45 — v Mack [1988] 2 SCR 903 …. 12.137 — v Macleod (2001) 52 NSWLR 389 …. 7.44 — v Maher [1987] 1 Qd R 171 …. 7.29 — v Mai (1992) 26 NSWLR 371 …. 10.8, 10.9, 10.10, 10.11, 10.14

— v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 …. 8.31 — v Majdalawi (2000) 113 A Crim R 241; [2000] NSWCCA 240 …. 8.28 — v Majewski [1977] AC 443 …. 8.54, 8.55 — v Makisi [2004] NSWCCA 333 …. 8.60, 8.61 — v Malone [1998] 2 Cr App R 447 …. 6.36 — v Manson (NSWCCA, 17 February 1993, unreported) …. 6.46 — v Markarian (2003) 137 A Crim R 497 …. 12.46 — v Marriott (1838) 8 Car & P 425; 173 ER 559 …. 2.9, 4.14 — v Martyr [1962] Qd R 398 …. 4.2 — v Masters (1992) 26 NSWLR 450 …. 10.20 — v Matheson [1958] 1 WLR 474 …. 8.63 — v Mawgridge (1706) Kel 119; 84 ER 1107 …. 3.15 — v Maxwell [1978] 1 WLR 1350; [1978] 3 All ER 1140 …. 10.18 — v Mayers (1872) 12 Cox CC 311 …. 6.36 — v McCallum [1969] Tas SR …. 4.2 — v McEwan [1979] 2 NSWLR 926 …. 6.16, 6.22 — v McIvor [1982] 1 WLR 409 …. 7.29 — v McKay [1957] VR 560; [1957] ALR 648 …. 11.48 — v McPhail (1988) 36 A Crim R 390 …. 11.64 — v Meddings [1966] VR 306 …. 8.63 — v Merritt [2002] NSWCCA 368 …. 11.47 — v — (2004) 59 NSWLR 557; [2004] NSWCCA 19 …. 12.73

— v Middleton (1873) LR 2 CCR 38 …. 7.50, 7.51, 7.52 — v Milhailovic, Howard, Morgan and Young (BadgeryParker J, 15 April 1991, unreported) …. 12.73 — v M’Naghten (1843) 10 Cl & F 200; [1843–60] All ER Rep 229 …. 8.9, 8.10, 8.12, 8.13, 8.14, 8.15, 8.16, 8.30, 8.35, 8.45, 8.46, 8.47, 8.63 — v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174 …. 2.13 — v Mohan [1967] AC 187 …. 2.29 — v — [1976] QB 1 …. 10.17 — v Moloney [1985] AC 905 …. 8.59 — v Moore [2015] NSWDC 315 …. 7.17, 7.69, 7.71, 7.72 — v Morgan [1970] VR 337 …. 6.6, 6.16 — v — (1993) 30 NSWLR 543 …. 8.59 — v Morris (1840) 9 C & P 349; 173 ER 864 …. 7.12 — v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97 …. 5.8 — v MSK and MAK (2004) 61 NSWLR 204; [2004] NSWCCA 308 …. 6.55 — v Mueller (2005) 62 NSWLR 476; [2005] NSWCCA 479 …. 6.6, 6.11, 6.12, 6.13, 6.15, 6.16, 6.17, 6.50 — v Murphy (1837) 8 Car & P 297; 173 ER 502 …. 10.24 — v Naa (2009) 76 NSWLR 271; 197 A Crim R 192; [2009] NSWSC 851 …. 12.117, 12.118 — v Newman [1948] VLR 61; (1948) 1 ALR 109 …. 5.27, 9.52 — v Nguyen [2001] NSWCCA 132 …. 10.8, 10.14 — v — [2002] NSWSC 536 …. 9.49 — v Nicholls (1874) 13 Cox CC 75 …. 2.9, 4.14

— v Nundah (1916) 16 SR (NSW) 482 …. 7.38 — v Nuri [1990] VicRp 55; [1990] VR 641 …. 5.29 — v O’Brien [2003] NSWCCA 121 …. 9.9, 9.13 — v O’Connor (1980) 146 CLR 64 …. 8.45, 8.53, 8.55, 8.57, 8.59 — v O’Donnell [2002] SASC 183 …. 9.49 — v O’Donoghue (1988) 34 A Crim R 397 …. 11.39, 12.119 — v Olugboja [1982] QB 320 …. 6.38 — v O’Neill [1996] 2 Qd R 326 …. 12.104 — v — (2001) 122 A Crim R 510 …. 11.46 — v Orsos (1997) 95 A Crim R 457 …. 6.47 — v Owen Stolpe (NSWCCA, 30 October 1996, unreported) …. 7.68 — v Page [1933] VLR 351 …. 10.11 — v Palmer and Hudson (1804) 1 Bos & Pul 96; 127 ER 395 …. 10.37 — v Peckover (2002) 135 A Crim R 401 …. 10.15 — v Perera [1907] VLR 240 …. 10.7 — v Perks (1986) 41 SASR 335 …. 4.2 — v Perry (1845) 1 Car & Kir 726; 174 ER 1008 …. 7.12 — v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29 …. 10.41, 10.43, 10.61 — v Phillips (1971) 45 ALJR 467 …. 5.7, 5.31 — v Pimentel [1999] NSWCCA 401 …. 9.8, 9.9 — v Pocock (1851) 5 Cox CC 172 …. 4.14 — v Porter (1933) 55 CLR 182 …. 8.9, 8.13, 8.14, 8.16, 8.29, 8.35, 8.63

— v Potisk (1973) 6 SASR 389 …. 7.51, 7.52 — v Prasad (1979) 23 SASR 161 …. 12.45 — v Presser [1958] VR 45 …. 8.31, 8.32 — v Priestley (1965) 51 Cr App R 1 …. 12.123 — v Prince (1868) LR 1 CCR 150 …. 7.52 — v Prochilo [2003] NSWCCA 265 …. 10.59 — v Puckeridge (1999) 74 ALJR 373 …. 2.13 — v Pullman (1991) 25 NSWLR 89; 58 A Crim R 222 …. 1.14, 4.6 — v Quartly (1986) 11 NSWLR 332 …. 3.25, 3.28 — v Quick [1973] QB 910 …. 8.63 — v Radford (1985) 42 SASR 266; 20 A Crim R 388 …. 8.41, 8.45, 8.46 — v Ragen (1964) 81 WN (Pt 1) (NSW) 572 …. 12.109 — v Rau [1972] Tas SR 59 …. 4.6 — v Rees [2001] NSWCCA 23 …. 4.17 — v Reid [1992] 1 WLR 793 …. 5.43, 6.17 — v Richards (1877) 2 QBD 311 …. 10.74 — v — [1974] QB 776 …. 7.38 — v Rivkin (2004) 59 NSWLR 284 …. 8.32 — v Robert Millar Ltd [1970] 2 QB 54 …. 10.18 — v Rogers (1996) 86 A Crim R 542 …. 9.9, 9.25 — v Rogerson (1992) 174 CLR 268; 107 ALR 225 …. 10.22 — v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 …. 11.8, 11.9, 12.145 — v Rooke (NSWCCA, 2 September 1997, unreported) ….

12.125, 12.139 — v Royle [1971] 1 WLR 1764 …. 7.29 — v Runjanjic (1991) 56 SASR 114; 53 A Crim R 362 …. 9.9, 9.13 — v Rushworth (1992) 95 Cr App R 252 …. 2.33 — v Russell [1933] VLR 59 …. 4.14, 10.18, 10.41, 10.51 — v Ryan (1995) 90 A Crim R 191 …. 8.25, 8.28 — v S [1979] 2 NSWLR 1 …. 8.45 — v SA, DD and ES [2011] NSWCCA 60 …. 11.64 — v Safwan (1986) 8 NSWLR 97 …. 2.33 — v Salvo [1980] VR 401 …. 7.27, 7.29, 7.38 — v Sanders (1991) 57 SASR 102 …. 7.38 — v Sault Ste Marie [1978] 2 SCR 1299 …. 1.88 — v Savage; R v Parmenter [1992] 1 AC 699 …. 5.3 — v Saylor [1963] QWN 14 …. 10.69 — v Schneidas (No 2) (1981) 4 A Crim R 101 …. 3.7 — v Scofield (1784) Cald Mag Cas 397 …. 10.7 — v Scott [1975] AC 819 …. 7.29 — v See Lun & Welsh (1932) 32 SR (NSW) 363 …. 7.38 — v Senior [1899] 1 QB 283 …. 4.14 — v Sergi [1974] VR 1 …. 2.20, 2.25 — v Serratore (1999) 48 NSWLR 101 …. 12.129 — v Sew Hoy [1994] 1 NZLR 257 …. 10.27 — v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 …. 12.132 — v Sharma (2002) 54 NSWLR 300 …. 12.46, 12.50

— v Sharmpal Singh [1962] AC 188 …. 4.2 — v Sharp (2003) 143 A Crim R 344; [2003] NSWSC 1117 …. 12.117 — v Shepherd (1862) Le & Ca 147; 169 ER 1340 …. 2.9, 4.14 — v — [2003] NSWCCA 351 …. 5.27 — v Sheppard [1981] AC 394 …. 4.14 — v Shivpuri [1987] AC 1; [1986] 2 All ER 334; [1986] 2 WLR 988 …. 10.7, 10.27 — v Singh-Bal (1997) 92 A Crim R 397 …. 12.129 — v Sloane (1990) 49 A Crim R 270 …. 12.137 — v Smart [1983] 1 VR 265 …. 7.29 — v Smith (1837) 8 Carrington & Payne 173 …. 5.27 — v — [1959] 2 QB 35 …. 2.13 — v Smith (Sydney) (1845) 1 Cox CC 260 …. 1.80 — v Snow (1915) 20 CLR 315 …. 12.92 — v Solomon [1979] 1 NSWLR 321 …. 2.22 — v Sperotto (1970) 71 SR (NSW) 334 …. 6.16, 6.19, 6.22 — v St George (1840) 9 C & P 483 …. 5.6 — v Stanley [1965] 2 QB 327 …. 6.47 — v Stokes and Difford (1990) 51 A Crim R 25 …. 2.27, 4.7, 7.38, 10.41, 10.43, 10.56, 10.61 — v Stone [1977] QB 354; [1977] 2 All ER 341 …. 2.8, 4.14 — v — [1981] VR 737 …. 10.74, 10.75 — v Stones (1955) 56 SR (NSW) 25 …. 8.63 — v Sullivan [1984] AC 156 …. 8.45 — v Swaffield; Pavic v R (1998) 192 CLR 159; [1998] HCA 1

…. 12.104, 12.105, 12.122, 12.123, 12.138, 12.139, 12.146, 12.148, 12.149 — v Szabo [2000] NSWCCA 226 …. 3.30 — v Taber; R v Styman [2002] NSWSC 1329 …. 2.9 — v Taktak (1988) 14 NSWLR 226 …. 2.9, 4.14, 4.15 — v Tangye (1997) 92 A Crim R 545 …. 10.48, 10.56, 10.57, 10.59 — v Taouk (1992) 65 A Crim R 307 …. 10.15 — v — (2005) 154 A Crim R 69; [2005] NSWCCA 155 …. 12.117, 12.119, 12.121 — v Taufahema (2007) 228 CLR 232; 234 ALR 1 …. 10.64, 10.65 — v Tevendale [1955] VLR 95 …. 10.74 — v Thomas (2006) 14 VR 475; [2006] VSCA 165 …. 12.99, 12.100, 12.123 — v Thompson (1825) 1 Mood CC 78; 168 ER 1192 …. 7.8, 12.100 — v Thomson (2000) 49 NSWLR 383 …. 12.49 — v Thurborn (1849) 1 Den 387; 169 ER 293 …. 7.45 — v Thurston [2004] NSWCCA 98 …. 2.30 — v Tillett; Newton, Ex parte (1969) 14 FLR 101 …. 11.9, 11.21 — v Tinkler (1859) 1 F & F 513; 175 ER 832 …. 7.42 — v Tofilau (No 2) (2006) 13 VR 28 …. 12.100 — v Tolmie (1995) 37 NSWLR 660 …. 6.6, 6.12, 6.16, 6.17, 6.18, 6.19, 6.49 — v Tolson (1889) 23 QBD 168 …. 1.88, 1.89, 6.10, 7.44, 8.45 — v Trevenna (2004) 149 A Crim R 505; [2004] NSWCCA 43 …. 9.49

— v Trilloe (1842) Car & M 650; 175 ER 674 …. 2.17 — v Trindall (2002) 133 A Crim R 119 …. 12.57 — v Tripodina (1988) 35 A Crim R 183 …. 6.34, 7.38 — v Trotter (1993) 35 NSWLR 428; 68 A Crim R 536 …. 8.22, 8.28 — v Truong (NSWCCA, 22 June 1998, unreported) …. 10.70 — v Tsigos [1964–5] NSWR 1607 …. 8.45 — v Turnbull (1943) 44 SR (NSW) 108 …. 1.85, 1.88 — v Turner [1962] VR 30 …. 11.48 — v Twala (4 November 1994, unreported) …. 12.73 — v Ul-Haque (2007) 177 A Crim R 348; [2007] NSWSC 1251 …. 12.123 — v Venna [1976] QB 421; [1975] 3 All ER 788 …. 5.9, 5.23 — v Wade (1869) 11 Cox CC 549 …. 7.38 — v Wakefield (1958) 75 WN (NSW) 66 …. 8.41 — v Wald (1971) 3 DCR (NSW) 25 …. 9.29, 9.30 — v Walsh and Harney [1984] VR 474 …. 7.29 — v Ward (1938) 38 SR (NSW) 30 …. 7.73 — v Warner [1969] 2 AC 256 …. 1.88 — v Waterfall [1970] 1 QB 148 …. 7.29 — v Watson (1959) 43 Cr App R 111 …. 4.14 — v Way (2004) 60 NSWLR 168 …. 12.70 — v Welsh (1995) 101 CCC (3d) 216 …. 5.45 — v Whelan [1973] VR 268 …. 6.48 — v White [2005] NSWSC 60 …. 11.66 — v White, Eaves and Parker (1989) 17 NSWLR 195 …. 2.20

— v Whitfield [2002] NSWCCA 501 …. 8.40 — v Willer (1986) 83 Cr App R 225 …. 9.24 — v Williams [1923] 1 KB 340 …. 6.38 — v — [1965] Qd R 86 …. 10.11 — v — (1990) 50 A Crim R 213 …. 5.23, 5.25 — v — (1997) 97 A Crim R 119 …. 9.9 — v Williamson [1972] 2 NSWLR 281 …. 9.6 — v Willmot (No 2) [1985] 2 Qd R 413 …. 1.75, 5.43 — v Wills [1983] 2 VR 201 …. 4.2 — v Wilson (1874) 12 SCR (NSW) 258 …. 7.9 — v — (1991) 53 A Crim R 281 …. 4.2, 4.3, 4.8 — v — (NSWCCA, 12 August 1994, unreported) …. 10.21 — v — [1996] 3 WLR 125; [1996] 2 Cr App R 241 …. 5.34, 5.38, 5.39, 5.45 — v Windsor [1982] VR 89 …. 2.20 — v Wybrow (1951) 35 Cr App R 141 …. 10.17 — v Young (1947) 48 SR (NSW) 46; 64 WN (NSW) 193 …. 7.9 — v Youssef (1990) 50 A Crim R 1 …. 8.6, 8.45, 8.46 — v Zhang [2000] NSWSC 1099 …. 12.123, 12.126 — v Zorad [1979] 2 NSWLR 764 …. 6.19, 6.31, 8.62 — v — (1990) 19 NSWLR 91; 47 A Crim R 211 …. 11.51 R (A Child) v Whitty (1993) 66 A Crim R 462 …. 1.80 R and The Minister for Customs v Australasian Films (1921) 29 CLR 195 …. 1.81 Rawlings v Till (1837) 3 M & W 28; 150 ER 1042 …. 5.21 Revell v R (NSWCCA, 17 December 1976, unreported) ….

5.23 Rice v McDonald (2000) 113 A Crim R 75 …. 9.9 — v Tricouris (2000) 110 A Crim R 86 …. 12.137 Richards v Kerrison [2013] ACTMC 15 …. 7.40 Ridgeway v R (1995) 184 CLR 19; 129 ALR 41 …. 1.53, 12.104, 12.137 Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426 …. 12.137 Rogers v R (1994) 181 CLR 251 …. 12.88 Roper v Taylor’s Central Garages (Exeter) Ltd [1951] 2 TLR 284 …. 10.18 Royall v R (1991) 172 CLR 378; 100 ALR 669; [1991] HCA 27 …. 2.7, 2.10, 2.11, 2.12, 2.13, 2.21, 2.33, 4.2 Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 …. 11.9 Russell v Smith [1958] 1 QB 27 …. 7.52 Ryan v R (1967) 121 CLR 205 …. 2.7, 2.29, 2.30, 4.11, 6.10, 8.38, 8.39, 8.45

S Saffron v DPP (1989) 16 NSWLR 397 …. 12.23 Saraswati v R (1990–91) 172 CLR 1 …. 6.47 Semayne’s Case (1604) 5 Co Rep 919; 77 ER 194 …. 11.19, 11.45 Shaw v Donaldson (1988) 78 ACTR 1 …. 11.71 Sherras v De Rutzen [1895] 1 QB 918 …. 1.88 Shields v New South Wales Crime Commission [2007] NSWCA 309 …. 7.53, 7.54, 7.55, 7.70 — v Westpac Banking Corp [2008] NSWCA 268 …. 7.53, 7.55

Sinclair v Brougham [1914] AC 398 …. 7.52 Skondin v R [2005] NSWCCA 417 …. 12.32 Smithers v R (1977) 34 CCC (2d) 427 …. 2.13 Smyth v R (1957) 98 CLR 163 …. 2.27, 8.45, 8.59 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 …. 12.20 South v R [2007] NSWCCA 117 …. 6.22 Southwark LBC v Williams [1971] 1 Ch 734 …. 9.25, 9.27 Stanton v R (2003) 198 ALR 1 …. 3.7 Stapleton v R (1952) 86 CLR 358 …. 2.27, 8.45, 8.59 State of New South Wales v Corbett (2007) 230 CLR 606; 237 ALR 39; [2007] HCA 32 …. 11.21 — v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303 …. 11.40, 11.41, 11.42 —v McCarthy [2015] NSWCA 153 …. 11.44 State of Wisconsin v Cornelius 152 WIS.2d 272 (1989) …. 2.17 Stingel v R (1990) 171 CLR 312; 97 ALR 1 …. 3.15, 3.18, 3.19, 3.20, 3.28, 9.9 Sweet v Parsley [1970] AC 132 …. 1.88

T Taber v R; Styman v R (2007) 170 A Crim R 427 …. 2.9 Tan v R [2010] NSWCCA 207 …. 12.73 Taufahema v R [2006] NSWCCA 152 …. 4.17, 10.62, 10.64, 10.68 Taylor v Chief Constable of Thames Valley Police [2004] 1 WLR 3155; [2004] EWCA Civ 858 …. 11.40, 11.41 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 …. 1.81

Thomas v Mowbray (2007) 233 CLR 307 …. 1.46 — v R (1960) 102 CLR 584; [1960] HCA 2 …. 1.50, 1.89, 2.27, 4.7, 6.10, 6.30, 8.45 Tietie v R (1988) 34 A Crim R 438 …. 10.70 Timbu Kolian v R (1968) 119 CLR 47 …. 2.7, 8.39 Tims v John Lewis & Co Ltd [1951] 2 KB 459 …. 11.39, 11.43 Trade Practices Commission v CSR Ltd …. 1.22 Trainer v R (1906) 4 CLR 126 …. 7.45 Trevitt v NSW TAFE Commission [2001] NSWCA 363 …. 5.31 Trudgeon v R(1988) 39 A Crim R 252 …. 10.26 Tuberville v Savage (1669) 1 Mod Rep 3; 86 ER 684 …. 5.21 Tuckiar v R (1934) 52 CLR 335 …. 1.62 Tumanako v R (1992) 64 A Crim R 149 …. 3.26 Turner v Campbell (1987) 88 FLR 410 …. 7.29

U United States v Bailey 444 US 394 (1979) …. 9.25 United States ex rel Marcus v Hess 317 US 537 (1943) …. 1.12

V Vallance v R (1961) 108 CLR 56 …. 2.20, 2.21, 5.9 Van Den Hoek v R (1986) 161 CLR 158 …. 3.15 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 …. 12.73 Veivers v Connolly (1994) Aust Torts Reports 81–309 …. 9.29 Vella v R; Siskos v R [2015] NSWCCA 148 …. 7.32 Viro v R (1978) 141 CLR 88 …. 8.60, 8.61, 9.35, 9.37, 9.38, 9.49,

9.50

W Walden v Hensler (1987) 163 CLR 561 …. 7.37, 7.38, 7.41, 7.42, 7.44 Walker v Budgen (2005) 155 A Crim R 416 …. 11.65 Wallis v Lane [1964] VR 293 …. 7.8, 7.18 Walsh v R (1990) 52 A Crim R 80 …. 7.68 Walton v Gardiner (1993) 177 CLR 378; 112 ALR 289 …. 1.53 Ward v R [1972] WAR 36 …. 4.2 — v — [2013] NSWCCA 46 …. 8.61 Webley v Buxton [1977] 2 QB 481 …. 10.7 Weiss v R (2005) 224 CLR 300; 223 ALR 662; [2005] HCA 81 …. 12.79, 12.80, 12.81 Welham v Director of Public Prosecutions [1961] AC 103 …. 7.68 Wheatley v Lodge [1971] 1 All ER 173; [1971] 1 WLR 29 …. 11.39 Whelan v R [2012] NSWCCA 147 …. 2.18 White v Ridley (1978) 140 CLR 342 …. 10.37, 10.38, 10.69, 10.70 Whitehorn v R (1983) 152 CLR 657 …. 1.60 Wiffin v Kincard (1807) 2 Bos & PNR 471; 127 ER 713 …. 5.21 Wilde v R (1988) 164 CLR 365 …. 8.25 Williams v R (1986) 161 CLR 278; 66 ALR 385 …. 11.5, 11.9, 11.50, 11.52, 11.53, 11.55, 11.56, 11.57 — v — (1986) 21 A Crim R 460 …. 7.38 — v — [2006] NSWCCA 26 …. 7.42

Wilson v Chief Constable of the Lancashire Constabulary [2000] All ER (D) 1949 …. 11.41 — v Dobra (1955) 57 WALR 95 …. 10.18 — v New South Wales (2010) 278 ALR 74; [2010] NSWCA 333 …. 11.39 — v R (1992) 174 CLR 313; 107 ALR 257 …. 2.12, 4.2, 4.4, 4.7, 4.9, 4.11, 4.20 WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 …. 6.31, 8.62 Wong v DPP (NSW) (2005) 155 A Crim R 37 …. 12.12 Woodley v Boyd [2001] NSWCA 35 …. 11.39 Woolmington v Director of Public Prosecutions [1935] AC 462 …. 1.48, 1.50, 1.51, 3.37, 6.10, 8.39, 8.43, 8.45, 10.51, 10.52

Y Yip Chiu-Cheung v R (1994) 99 Cr App R 406 …. 10.21

Z Zaburoni v R [2016] HCA 12 …. 1.75, 5.42, 5.43, 5.44 Zanker v Vartzokas (1988) 34 A Crim R 11 …. 5.7, 5.8, 5.31 Zecevic v DPP (1987) 162 CLR 645; 71 ALR 641 …. 3.28, 3.40, 8.45, 9.34, 9.35, 9.36, 9.37, 9.38, 9.39, 9.41, 9.49, 9.50

Table of Statutes References are to paragraphs

Commonwealth Acts Interpretation Act 1901 s 41 …. 1.12 Australian Security Intelligence Organisation Act 1979 Div 3 …. 1.46 ss 25A–27 …. 11.10, 11.24 ss 34A–34ZZ …. 11.24 Bankruptcy Act 1924 s 95(4) …. 11.7 Conciliation and Arbitration Act 1904 …. 1.12 s 5(1) …. 1.12 s 5(1A) …. 1.12 s 5(2) …. 1.12 s 27(5) …. 1.12 s 42(2) …. 1.12 s 42A(3) …. 1.12 s 46 …. 1.12 s 111 …. 1.12 s 119 …. 1.12 s 122 …. 1.12

Constitution …. 1.7, 1.31, 1.42, 1.43, 1.44, 1.53, 12.92 Ch III …. 1.28, 1.42, 1.44 s 75(v) …. 1.53 s 80 …. 12.5, 12.92 Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 s 33 …. 11.24 Crimes Act 1914 …. 12.92 s 10 …. 11.19 s 29D …. 7.29 s 81(1) …. 7.29 s 85S …. 1.27 s 86(1)(e) …. 7.29 s 86A …. 7.29 Criminal Code Act 1995 …. 1.46, 1.66, 1.72, 1.83, 7.66, 10.23, 10.31, 10.38, 10.50 Ch 2 …. 1.67 Pt 2.2 Div 6 …. 1.83 Pt 2.3 Div 7 …. 1.79 Pt 2.5 …. 1.81 s 5.4 …. 1.71, 10.31 s 5.6 …. 1.72 s 5.6(1) …. 10.31 s 11.1 …. 10.12 s 11.1(2) …. 10.12 s 11.1(4)(a) …. 10.16

s 11.2 …. 10.40 s 11.2A …. 10.50 s 11.3 …. 10.38 s 11.5 …. 10.19, 10.31 s 11.5(1) …. 10.31 s 11.5(2) …. 10.31 s 11.5(2)(b) …. 10.31 s 11.5(7A) …. 10.31 s 101.2 …. 10.3 s 101.5 …. 10.4 s 130.3 …. 7.32 s 131.1 …. 1.83 s 400.3 …. 10.31 s 400.3(2) …. 10.31 s 400.3(2)(b)(i) …. 10.31 Customs Act 1901 …. 1.17, 1.18 s 5 …. 1.17 s 33(1) …. 1.17 s 212 …. 11.52 s 233B(1) …. 10.7 s 233B(1)(a) …. 1.88 s 233B(1)(b) …. 1.88 s 233B(1)(c) …. 1.88 s 233B(1)(ca) …. 1.88 s 233B(1)(d) …. 1.88

s 241 …. 1.81 s 247 …. 1.18 Evidence Act 1995 …. 12.104 Pt 3.11 …. 12.104 s 90 …. 12.104 s 138(1) …. 12.104 Excise Act 1901 …. 1.17 Judiciary Act 1903 s 68(2) …. 12.92 Telecommunications (Interception and Access) Act 1979 Pts 2–5 …. 11.10 Trade Practices Act 1974 …. 1.22 Pt IV …. 1.22 s 76 …. 1.22

Australian Capital Territory Crimes Act 1900 s 352(1)(a) …. 11.39 Criminal Code 2002 s 38 …. 7.40, 7.41 s 38(3) …. 7.41 Criminal Code Amendment Regulation 2013 (No 1) …. 7.41 Human Rights Act 2004 …. 1.41 s 22 …. 1.41 s 32 …. 1.41

New South Wales

Anti-Terrorism Act (No 2) 2005 …. 10.4 Bail Act 2013 …. 11.77 s 4 …. 11.81, 11.91 s 6 …. 11.91 s 8 …. 11.80, 11.81 s 9 …. 11.80 s 10 …. 11.81 s 16 …. 11.82 s 16B …. 11.83 s 17(3)(b) …. 11.86 s 18 …. 11.52, 11.85, 11.92 s 18(2) …. 11.86 s 21 …. 11.79 s 21(4) …. 11.79 s 25 …. 11.87 s 26 …. 11.87 s 27 …. 11.87 s 28 …. 11.87 s 30 …. 11.87 s 31 …. 11.88 s 32 …. 11.88 s 41 …. 11.89 s 43 …. 11.80 s 44 …. 11.80 s 49 …. 11.93

s 50 …. 11.93 s 51 …. 11.93 s 52 …. 11.94 s 55 …. 11.90 s 57 …. 11.94 s 58 …. 11.94 s 68 …. 11.94 s 69 …. 11.94 s 70 …. 11.94 s 77 …. 11.95 s 78 …. 11.95 s 79 …. 11.96, 12.10 Children (Criminal Proceedings) Act 1987 …. 1.89 s 5 …. 1.79, 1.80 s 8 …. 11.32 Civil Liability Act 2002 s 54(2) …. 1.81 Community Protection Act 1994 …. 1.27, 1.28, 1.42 s 24 …. 1.42 Crimes Act 1900 …. 1.14, 1.81, 1.89, 2.4, 2.7, 2.15, 2.20, 2.29, 3.6, 3.9, 3.39, 4.11, 4.12, 5.4, 5.27, 5.29, 6.3, 6.5, 6.12, 6.17, 6.38, 7.2, 7.3, 7.4, 7.9, 7.10, 7.21, 7.22, 7.26, 7.33, 7.34, 7.57, 7.64, 7.65, 7.66, 7.73, 7.74, 9.29, 9.49, 10.6, 10.66 Pt 1 …. 4.11 Pt 3 Div 1 …. 4.11 Pt 4 Divs 1–4 …. 7.74

Pt 4 Div 5 …. 7.4 Pt 4AA …. 7.7, 7.10, 7.22, 7.35, 7.65, 7.66, 7.72 Pt 4AA Div 2 …. 7.44 Pt 7 …. 12.89 Pt 10 …. 11.64 Pt 10A …. 11.52, 11.56, 12.117, 12.144, 12.145 Pt 11 Div 3 …. 9.41, 9.45, 9.49 Pt 11A …. 3.21, 8.50, 8.55, 8.57, 8.58, 9.41, 9.46 Pt 15A …. 5.31 s 4 …. 1.81, 2.25, 3.23, 5.28, 5.40, 7.9, 7.10, 7.32, 7.58, 10.71, 12.152 s 4(1)(c) …. 5.42 s 4A …. 1.71, 2.33, 6.18 s 4B …. 7.26, 7.33, 7.35, 7.43, 7.65, 7.72 s 5 …. 2.33, 4.11, 4.12, 4.13 s 7(4) …. 8.63 s 12 …. 12.25 s 13 …. 4.11 ss 17A–24 …. 4.11 s 17A …. 4.11 s 18 …. 1.71, 2.3, 2.4, 2.5, 2.10, 2.14, 2.19, 2.22, 2.29, 2.33, 3.6, 4.11, 4.14, 9.18 s 18(1) …. 2.31, 4.11 s 18(1)(a) …. 2.29, 2.33, 4.11 s 18(1)(b) …. 3.6, 4.11 s 18(2)(a) …. 2.31, 2.33, 4.10, 4.11

s 18(2)(b) …. 2.6 s 19 …. 4.11 s 19A …. 4.11, 8.59, 12.25 s 20 …. 2.15, 4.11 s 21 …. 2.15, 4.11 s 22 …. 4.11 s 22A …. 3.45, 4.11 s 22A(1) …. 3.43 s 23 …. 3.9, 3.10, 3.15, 3.18, 3.20, 3.22, 3.23, 3.28, 3.30, 4.11 s 23(2) …. 3.15 s 23(2)(a) …. 3.18, 3.30 s 23(2)(b) …. 3.17, 3.18, 3.28, 3.30 s 23(2)(d) …. 3.17 s 23(3)(a) …. 3.18, 3.30 s 23(3)(b) …. 3.15, 3.27 s 23(3)(c) …. 3.30 s 23(4) …. 3.15 s 23(5) …. 3.21 s 23A …. 3.36, 4.11, 8.16, 8.20, 8.25, 8.28 s 23A(1) …. 8.21, 8.25, 8.26, 8.28 s 23A(1)(b) …. 8.28 s 23A(3) …. 8.26 s 23A(4) …. 3.37, 8.28 s 23A(8) …. 8.28 s 24 …. 3.6, 4.11, 9.49

s 25A …. 2.1, 3.4, 4.1, 4.18, 4.19, 4.20 s 25A(2) …. 4.19, 4.22, 4.23, 8.22, 8.27, 8.28 s 25A(7) …. 4.23 s 25B …. 4.19 s 26 …. 10.19 s 27 …. 10.6, 10.9 s 32 …. 5.4 s 33 …. 2.33, 5.4, 5.29, 5.40, 5.42, 5.44, 12.86 s 33(1)(b) …. 5.29 s 33A …. 1.92, 5.4 s 33B …. 5.4 s 35 …. 2.36, 5.4, 5.29, 5.30, 5.40, 5.42 s 35(2) …. 5.29 s 35A …. 5.4 s 37 …. 5.4 s 38 …. 5.4 s 38A …. 5.4 s 39 …. 5.4 s 41 …. 5.4 s 41A …. 5.4 s 42 …. 5.4 s 43 …. 5.4 s 43A …. 5.4 s 44 …. 5.4 s 45 …. 5.4, 6.4

s 45A …. 6.4 s 46 …. 2.36, 5.4 s 47 …. 5.4 s 48 …. 5.4 s 49 …. 5.4 s 49A …. 5.4 s 51A …. 5.4 s 52A …. 1.84, 4.9, 4.24, 10.18 s 52A(1)(a) …. 8.48 s 52A(3) …. 5.4 s 52A(4) …. 5.4 s 52AB …. 5.4 s 52B …. 4.24 s 52B(3) …. 5.4 s 52B(4) …. 5.4 s 53 …. 5.4 s 54 …. 4.6, 5.4 s 55 …. 5.4 s 56 …. 5.4 s 57 …. 5.4 s 58 …. 5.4 s 59 …. 1.81, 3.23, 5.4, 5.23, 5.24 s 59A …. 5.4 s 60 …. 5.4, 5.24, 5.30 s 60A …. 5.4, 5.24, 5.30

s 60B …. 5.4 s 60E …. 5.4, 5.30 s 61 …. 1.81, 5.4, 5.5, 5.8, 5.24 s 61(1) …. 12.73 s 61AA …. 9.52 s 61D …. 6.16 s 61D(1) …. 6.16 s 61D(2) …. 6.6, 6.16, 6.49 s 61E(1) …. 6.45, 6.48 s 61F(5) …. 6.54 s 61H …. 6.9 s 61HA …. 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.22, 6.31, 6.38, 8.62 s 61HA(1) …. 6.12, 6.13, 6.31 s 61HA(2) …. 6.12 s 61HA(2)(c) …. 6.13 s 61HA(3) …. 6.12, 6.14, 6.31, 8.62 s 61HA(3)(b) …. 6.12, 6.15 s 61HA(3)(c) …. 6.12, 6.23, 6.24 s 61HA(3)(e) …. 6.31, 8.62 s 61HA(4) …. 6.12, 6.27, 6.31 s 61HA(4)(a) …. 6.27 s 61HA(4)(c) …. 6.13, 6.38 s 61HA(5) …. 6.12 s 61HA(5)(a) …. 6.38

s 61HA(5)(b) …. 6.38 s 61HA(5)(c) …. 6.38 s 61HA(6) …. 6.12, 6.32, 6.34, 6.37, 6.41 s 61HA(6)(a) …. 6.33 s 61HA(6)(b) …. 6.38, 6.41 s 61HA(7) …. 6.12 s 61HA(8) …. 6.12 s 61I …. 6.3, 6.6, 6.7, 6.11, 6.12, 6.16, 6.19, 6.20, 6.31, 6.38, 8.62 ss 61I–61O …. 8.62 s 61J …. 1.89, 6.6, 6.11, 6.12, 6.28, 6.29, 6.31, 6.38 s 61J(2)(a) …. 6.3 s 61J(2)(d) …. 6.3 s 61J(3) …. 6.11 s 61JA …. 6.3, 6.6, 6.11, 6.12, 6.31, 6.38 s 61K …. 6.3 s 61L …. 6.3, 6.15, 6.38, 6.43, 6.48, 6.49 s 61M …. 6.6, 6.15 s 61M(2) …. 6.29 s 61N …. 6.3, 6.4, 6.43, 6.44, 6.45, 6.46, 6.47 s 61O …. 6.44, 6.47 s 61O(2) …. 6.47 s 61P …. 6.31, 8.62 s 61R …. 6.6, 6.13, 6.17, 6.19, 6.38, 6.39 s 61R(1) …. 6.6, 6.13, 6.20

s 61R(2) …. 6.13 s 61R(2)(a)(i) …. 6.38 s 61R(2)(a)(ii) …. 6.38 s 61R(2)(c) …. 6.13, 6.38 s 61R(2)(d) …. 6.13 s 61S …. 6.5 s 61T …. 6.5 s 65 …. 6.38 s 65A …. 6.40, 6.41 s 65HA …. 6.38 s 65HA(4)(c) …. 6.39 ss 66A–77 …. 6.51 s 66A …. 6.29 s 66C …. 1.89, 6.29 s 66C(3) …. 1.89, 6.52 s 66C(4) …. 1.89 s 66D …. 10.6 s 66F(7)(a)(i) …. 6.54 s 76A …. 6.47 s 77 …. 6.3, 6.27, 6.28, 6.52 s 77(2) …. 1.89 s 80A …. 6.4 ss 82–84 …. 9.28 ss 82–85 …. 2.15 s 83 …. 9.29

s 91E …. 10.76 s 95 …. 8.60 s 96 …. 2.30 s 97(2) …. 8.64 s 98 …. 2.30, 8.40 s 105A …. 5.30 s 110 …. 12.86 s 112(1) …. 9.9 s 117 …. 7.4 s 118 …. 7.20, 7.21 s 120 …. 7.73 s 124 …. 7.62 s 125 …. 7.10, 7.61 s 134 …. 7.10 s 139 …. 7.10 s 140 …. 7.10 s 154 …. 7.10 s 154A …. 7.22 s 157 …. 7.10, 7.63, 7.64, 7.67 s 158 …. 7.65, 7.67 ss 165–186 …. 7.65 s 173 …. 7.22, 7.26, 7.44 s 176 …. 7.67 s 178AB …. 7.68 s 178BA …. 7.28, 7.29, 7.68

s 178BB …. 7.67, 7.68 s 180 …. 7.59 s 189A …. 7.21 s 189A(2) …. 7.21 s 189A(3) …. 7.21 ss 192B–192H …. 7.10 s 192B …. 7.17, 7.67 s 192B(2) …. 7.67 s 192C …. 7.23, 7.67 s 192C(2) …. 7.67 s 192C(3) …. 7.6 s 192C(4) …. 7.67 s 192D …. 7.67 ss 192E–192H …. 7.67 s 192E …. 7.28, 7.34, 7.58, 7.59, 7.67, 7.68, 7.73 s 192E(1)(a) …. 7.57 s 192E(1)(b) …. 7.32, 7.69, 7.71 ss 192F–192H …. 7.67 s 192F …. 7.67 s 192G …. 7.67 s 192H …. 7.67 s 195 …. 10.6, 10.76 s 200 …. 10.6 s 316 …. 10.75 s 344A …. 6.31, 10.6, 10.76

ss 345–347 …. 10.18 ss 345–351B …. 10.35 s 346 …. 9.9, 10.51 s 347 …. 10.71 s 351 …. 10.18 s 352 …. 11.45, 11.52, 11.53, 11.56 s 352(1) …. 11.56 s 352(2) …. 11.9, 11.40 s 352(2)(a) …. 11.9 s 353(1) …. 4.2 s 353A …. 11.53 s 353A(2) …. 11.61 s 353A(3) …. 11.64 s 356B(1)(a) …. 11.56 s 356C(1) …. 11.56 s 356C(2) …. 11.56 s 357E …. 11.8 s 357F–357I …. 11.22 s 357F …. 11.22 s 393 …. 10.24 ss 418–423 …. 9.34, 9.39, 9.40, 9.41, 9.46 s 418 …. 9.41, 9.49 s 418(2) …. 9.41, 9.45 s 418(2)(a) …. 9.51 s 418(2)(c) …. 9.51

s 419 …. 9.33 s 420 …. 9.51 s 421 …. 3.41, 9.41, 9.47, 9.49 s 421(1) …. 3.41 s 421(1)(b) …. 3.41 s 421(2) …. 9.48 s 422 …. 9.50 s 424A …. 12.119 s 428A …. 3.21, 8.27 s 428B …. 6.31, 8.60 s 428B(1) …. 8.56, 8.59 s 428B(2) …. 8.56, 8.59, 8.62 s 428C …. 6.31, 8.59, 8.62 s 428C(1) …. 8.58 s 428C(2)(a) …. 8.58 s 428C(2)(b) …. 8.58 s 428D …. 6.31, 8.62 s 428D(a) …. 8.58 s 428D(b) …. 8.58 s 428E …. 8.59 s 428E(2) …. 4.20 s 428F …. 3.22, 8.58, 9.41 s 428G(1) …. 8.58 s 428G(2) …. 8.58 s 428H …. 8.59

s 476 …. 6.47 s 527 …. 7.65 s 527A …. 7.65 s 527B …. 7.65 s 527C(2) …. 1.51 s 528 …. 7.65 s 545A …. 7.65 s 546C …. 10.62 s 547A …. 7.65 s 580E …. 10.18 Crimes (Administration of Sentences) Act 1999 …. 12.67 Pt 4A …. 12.63 Pt 6 …. 12.67 s 132 …. 12.67 Crimes (Administration of Sentences) Regulation 2014 reg 186 …. 12.65 reg 187 …. 12.65 Crimes Amendment Act 2007 …. 2.33, 4.12 Sch 1 cl 2 …. 2.33 Sch 11 …. 2.33 Sch 11 cl 5 …. 2.33 Sch 11 cl 65 …. 2.33 Crimes Amendment (Consent — Sexual Assault Offences) Act 2007 …. 6.12 Crimes Amendment (Diminished Responsibility) Act 1997

s 23A …. 8.16 Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 …. 7.3, 7.23, 7.33, 7.34, 7.65 Crimes Amendment (Provocation) Act 2014 …. 3.9 Crimes Amendment (Reckless Infliction of Harm) Act 2012 …. 5.30 Crimes Amendment (Self-Defence) Act 2001 …. 9.38, 9.39, 9.49 Crimes (Appeal and Review) Act 2001 …. 2.33, 12.90, 12.92, 12.93 Pt 3 …. 12.75 Pt 7 …. 12.82, 12.85, 12.89 s 6 …. 10.26 s 17 …. 12.75 s 18 …. 12.75 s 18(2) …. 12.75 s 52 …. 12.75 s 53 …. 12.75 s 77 …. 12.82 s 78 …. 12.85 s 79 …. 12.83, 12.85 s 79(1)(a) …. 12.85 s 79(1)(b) …. 12.85 s 79(2) …. 12.85 s 79(3)(a)(ii) …. 12.85 s 81 …. 12.84

s 82 …. 12.84 s 100 …. 12.89 s 101 …. 12.89 s 102(2) …. 12.93 s 103 …. 12.89 s 107 …. 12.92 s 107(2) …. 2.33, 10.67 s 107(5) …. 2.33 s 107(6) …. 2.33 Crimes (Domestic and Personal Violence) Act 2007 s 4 …. 5.15 s 8 …. 5.17 s 13 …. 5.10 s 14 …. 5.18 s 16 …. 5.13, 5.14 s 16(3) …. 5.17 s 19 …. 5.13, 5.14 s 19(3) …. 5.17 s 35(1) …. 5.18 Crimes (Forensic Procedures) Act 2000 …. 11.62, 11.63, 11.64, 11.66 Pt 3 …. 11.66 Pt 4 …. 11.66 Pt 5 …. 11.66 s 3 …. 11.63, 11.64, 11.65, 11.66

s 5 …. 11.62 s 22 …. 11.10 s 44 …. 11.65 s 47 …. 11.65 s 82 …. 11.66 s 82(1)(a) …. 11.66 s 82(4) …. 11.66 s 82(5) …. 11.66 s 84(4)(b) …. 11.66 s 112 …. 11.64 Crimes (High Risk Offenders) Act 2006 …. 1.45 s 21 …. 1.45 Crimes (Sentencing Procedure) Act 1999 …. 12.45, 12.46, 12.47 Pt 4 …. 12.66 Pt 4 Div 1A …. 12.70 Pt 5 …. 12.65 Pt 6 …. 12.64 Pt 8 …. 12.53 s 5 …. 12.66 s 5(1) …. 12.66 s 5A …. 12.63 s 6 …. 12.64 s 7 …. 12.65 s 8 …. 12.52

s 9 …. 12.53, 12.55 s 10 …. 12.55 s 10(1)(b) …. 12.55 s 10(3) …. 12.54 s 10A …. 12.56 s 11 …. 12.57 s 12 …. 12.60 s 15 …. 12.58 s 15(2) …. 12.58 s 16 …. 1.81 s 17 …. 5.19, 12.58 s 21 …. 12.48, 12.72 s 21(1) …. 12.71 s 21A …. 12.48, 12.70 s 21A(3)(c) …. 8.5 s 21A(3)(k) …. 12.49 s 21A(3)(m) …. 12.49 s 22 …. 12.49 s 23 …. 12.49 s 24 …. 12.50 s 25 …. 12.17 s 44(1) …. 12.67 s 44(2) …. 12.67 s 45 …. 12.68 s 46 …. 12.68

s 47 …. 12.69 s 48 …. 12.69 ss 54A–54D …. 12.70 s 54A(2) …. 12.70 s 54B …. 12.70 s 54B(2) …. 12.70 s 54B(3) …. 12.70 s 54B(4) …. 12.70 s 54C(1) …. 12.70 s 61 …. 12.71 s 61(1) …. 12.72, 12.73 s 76 …. 12.64 s 77 …. 12.64 s 82 …. 12.64 s 86 …. 12.52 s 88 …. 12.52 s 89 …. 12.52 Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 …. 12.70 Criminal Appeal Act 1912 …. 12.76, 12.82, 12.83, 12.85 s 5 …. 12.76, 12.77 s 5B …. 6.47, 7.68 ss 5D–5DB …. 12.77 s 5D …. 9.49, 12.46 s 5F …. 1.60, 6.31

s 6 …. 12.78 s 6(1) …. 12.79, 12.81 Criminal Appeal Rules 1952 r 4 …. 6.30, 7.38, 8.25, 10.62, 12.119 r 5 …. 12.76 Criminal Assets Recovery Act 1990 s 10 …. 11.9 Criminal Law Amendment Act 1883 …. 2.22, 2.29, 4.11 s 9 …. 2.22, 2.29 Criminal Procedure Act 1986 …. 12.1, 12.6, 12.10, 12.14, 12.114 s 3 …. 12.42 s 8 …. 12.117 s 8(2)(a) …. 12.117 s 8(2)(b)–(d) …. 12.117 s 8(3)(a)–(d) …. 12.117 s 10 …. 12.45 s 16 …. 12.44 s 19 …. 12.44 s 22 …. 12.45 s 32 …. 8.46 s 42 …. 12.45 s 46 …. 12.25 s 47 …. 12.9 s 62 …. 12.22

s 62(1) …. 12.21 s 62(2) …. 12.21 s 63 …. 12.22 s 63(1) …. 12.22 s 64 …. 12.22 s 66 …. 12.23 s 74 …. 12.24 s 91 …. 12.24 s 93 …. 12.24 s 126 …. 12.44 s 132 …. 12.5 s 137 …. 12.37 s 139 …. 12.39 s 140 …. 12.39 s 142 …. 12.33 s 143(1) …. 12.35 s 143(2) …. 12.36 s 144 …. 12.37 s 146 …. 12.40 s 146(1) …. 12.42 s 146A …. 12.41 s 147 …. 12.38 s 149A …. 12.34 s 150 …. 12.29, 12.30, 12.32 s 150(2) …. 12.32

s 150(8) …. 12.32 s 151 …. 12.29, 12.31, 12.32 s 153 …. 12.26 s 154 …. 12.26, 12.28 s 155 …. 12.26 s 156 …. 12.26 s 159 …. 12.45 s 162 …. 10.6 s 175 …. 12.9 s 175(3) …. 11.27 s 175(3)(d) …. 12.9 s 177 …. 12.9 s 181 …. 11.34, 12.9 s 181(2) …. 11.34 s 181(3A) …. 11.34 s 182 …. 12.10, 12.11 s 183 …. 12.13 s 184 …. 12.13 s 187 …. 12.13 s 191 …. 12.19 s 192 …. 12.19 s 192(1) …. 12.20 s 192(2) …. 12.20 s 192(3) …. 12.20 s 193 …. 12.11

s 194 …. 12.19 s 194(2) …. 12.20 s 195 …. 12.19, 12.20 s 196 …. 12.16 s 198 …. 12.16 s 199 …. 12.16 s 200 …. 12.16 s 201 …. 12.15 s 202(2) …. 12.20 s 203 …. 12.20 s 204(1) …. 12.20 s 236 …. 11.35 s 236(2) …. 11.35 s 238 …. 11.36 s 267 …. 12.6 s 268 …. 12.6 s 281 …. 12.114, 12.115, 12.117, 12.118, 12.119 s 281(1)(a) …. 12.119 s 281(1)(b) …. 12.115 s 281(1)(c) …. 12.115 s 281(4) …. 12.116, 12.120 s 293 …. 6.55 s 294 …. 6.55 s 294A …. 6.55 ss 332–344A …. 12.3

s 338 …. 12.4 s 340 …. 12.4 ss 345–352 …. 12.59 Sch 1 …. 12.6, 12.115 Sch 1 Table 1 …. 12.7 Sch 1 Table 2 …. 12.7 Sch 3 cl 21 …. 10.24 Criminal Procedure Regulation 2010 …. 12.10 Pt 6 …. 12.59 Pt 7 …. 12.59 Pt 8 …. 12.59 reg 21 …. 12.13 reg 22 …. 12.13 reg 103 …. 12.25 Sch 3 …. 12.3 Crown Prosecutors Act 1986 …. 12.45 s 5(b) …. 12.25 Director of Public Prosecutions Act 1986 s 7 …. 12.25 Drug Court Act 1988 …. 12.63 Drug Misuse and Trafficking Act 1985 s 3(1) …. 10.26 s 5(a) …. 10.28 s 24(2) …. 10.27 s 25 …. 10.59

s 25(2) …. 10.26 s 26 …. 10.26, 10.27 s 33(2) …. 12.46 s 33(3)(a) …. 10.67 Evidence Act 1995 …. 12.95, 12.96, 12.97, 12.104, 12.114, 12.122, 12.123, 12.137, 12.149, 12.151 Pt 3.11 …. 12.104 s 4 …. 12.95 s 4(1)(a) …. 12.95 s 4(1)(d) …. 12.95 s 9 …. 12.137 s 11(2) …. 12.137 s 59 …. 12.97 s 81 …. 12.97 s 84 …. 12.114, 12.122, 12.123, 12.137, 12.149 s 84(1) …. 12.123 s 84(1)(a) …. 12.123 s 84(2) …. 12.123 s 85 …. 12.114, 12.123, 12.124, 12.125, 12.126, 12.127, 12.137, 12.149 s 85(3) …. 12.124 s 86 …. 12.115, 12.121 s 89 …. 12.150, 12.153 s 89A …. 12.151 s 90 …. 12.104, 12.114, 12.137, 12.146, 12.147, 12.149 s 137 …. 12.114, 12.128, 12.129, 12.132, 12.147, 12.149

s 138 …. 12.114, 12.125, 12.134, 12.135, 12.137, 12.138, 12.139, 12.141, 12.142, 12.145, 12.149, 12.153 s 138(1) …. 11.32, 12.104, 12.137, 12.139 s 138(1)(b) …. 11.32 s 138(2) …. 12.137 s 138(3) …. 12.114, 12.141 s 139 …. 12.114, 12.134, 12.142, 12.143, 12.150, 12.153 s 139(5) …. 12.142 s 141(1) …. 1.49 s 141(2) …. 1.51 Dictionary …. 12.96, 12.129 Evidence Amendment (Evidence of Silence) Act 2013 …. 12.151 Firearms Act 1989 …. 11.21 s 5(a) …. 11.21 Firearms Act 1996 …. 11.21 s 7 …. 11.21 s 11(5)(b) …. 12.56 Sch 3 item 12 …. 11.21 Firearms Regulation 1990 …. 11.21 Human Tissue Act 1983 …. 2.17 s 33 …. 2.16, 2.17 Interpretation Act 1987 s 21 …. 1.81 s 33 …. 8.59 Judiciary Act 1903–1932

s 30B …. 8.13 Jury Act 1977 …. 12.45 s 19 …. 12.45 s 55B …. 4.7 s 55F …. 12.45 s 55F(4) …. 12.45 Law Enforcement (Powers and Responsibilities) Act 2002 …. 11.5, 11.45, 11.64 Pt 5 …. 11.11 Pt 9 …. 11.55, 11.56, 11.57, 11.59, 11.67, 12.117, 12.143, 12.144 s 9 …. 11.5, 11.22, 11.44 s 10 …. 11.5, 11.44 s 11 …. 11.5 s 13A …. 11.5 s 14 …. 11.5 s 21 …. 11.5 s 22 …. 11.13 s 23 …. 11.54 s 24 …. 11.54, 11.60 s 26 …. 11.5 s 30 …. 11.60 s 31 …. 11.60 s 36 …. 11.5, 11.8 ss 46–80 …. 11.11 s 46A …. 11.12, 11.17

s 46B …. 11.17 s 46C …. 11.16 s 47 …. 11.10, 11.11 s 47A(2) …. 11.18 s 48 …. 11.12, 11.16 s 49 …. 11.13 s 50 …. 11.13 s 67 …. 11.14 s 67A …. 11.18 s 68(1) …. 11.14 s 68(2) …. 11.15, 11.18 s 69 …. 11.14 s 70 …. 11.14 s 72 …. 11.14, 11.23 ss 82–87 …. 11.22 s 82 …. 11.22 s 83 …. 11.10 ss 90–95 …. 11.5 s 94 …. 11.10 s 99 …. 11.29, 11.30, 11.31, 11.39, 11.52 s 100 …. 11.30, 11.31 s 105 …. 11.72 s 110(4) …. 11.59 s 113(1) …. 11.56 s 114 …. 11.70

s 115 …. 11.57 s 115(2) …. 11.57 s 116 …. 11.57 s 117 …. 11.57 s 118 …. 11.58 s 122 …. 12.117, 12.150 s 122(1) …. 12.143 s 122(2) …. 12.143 s 123 …. 11.67, 11.69 s 123(1)(a) …. 11.69 s 123(1)(b) …. 11.69 s 123(5) …. 11.69 s 123(6) …. 11.69 s 123(8) …. 11.68 s 124 …. 11.67 s 124(6) …. 11.68 s 125 …. 11.69 s 126 …. 11.67 s 127 …. 11.67 s 128 …. 11.67 s 129 …. 11.67 s 130 …. 11.67 s 133 …. 11.64 s 138 …. 11.61 s 148 …. 11.5

s 196 …. 11.5 s 201 …. 11.44 s 201(1) …. 11.44 s 201(2) …. 11.44 s 201(2)(b) …. 11.44 s 201(3) …. 11.44 s 202 …. 11.44, 11.45 s 202(1) …. 11.44 s 202(2)(a) …. 11.44 s 230 …. 11.14, 11.44 s 231 …. 11.44, 11.48 Law Society Solicitors’ Rules 2013 r 20 …. 1.63 r 29 …. 1.61 Legal Profession Act 1987 …. 1.61 Listening Devices Act 1984 …. 12.149 Local Court Rules 2009 r 3.3 …. 12.22 Mental Health Act 2007 …. 8.30 s 4 …. 8.9 Mental Health (Criminal Procedure) Act 1990 s 39 …. 8.46, 8.63 Mental Health (Forensic Provisions) Act 1990 …. 8.8 s 38 …. 8.7 s 39 …. 8.8

s 39(1) …. 3.35 Motor Traffic Regulations …. 4.6 Occupational Health and Safety Act 2000 s 8 …. 1.92 Police Act 1990 s 6 …. 11.22 s 6(3) …. 11.22 s 13 …. 11.22 s 201 …. 11.22 Police Regulation 2000 reg 8 …. 11.22 reg 9 …. 11.22 reg 9(1) …. 11.22 Public Health Act 1991 …. 12.137 Road Rules 2014 …. 1.14 Road Transport Act 2013 …. 12.2 Pt 5.2 …. 12.55 s 114 …. 11.5 s 175 …. 11.5 Sch 3 …. 11.5 Road Transport (General) Regulation 2013 Sch 5 …. 12.2 Road Transport (Safety and Traffic Management) Act 1999 s 12 …. 1.92 Search Warrants Act 1985

s 5 …. 11.21 Seat of Government Supreme Court Act 1933 …. 8.13 Summary Offences Act 1970 s 11 …. 6.47 s 12 …. 6.47 Summary Offences Act 1988 …. 11.79 Surveillance Devices Act 2007 Pt 3 …. 11.10 Taxation Administration Act 1996 …. 1.11 ss 26–33 …. 1.11 ss 96–97 …. 1.11 Terrorism (Police Powers) Amendment (Investigative Detention) Act 2016 …. 11.24 s 25E …. 11.24 s 25I …. 11.24 Transport Administration (Railway Offences) Regulation 1994 …. 11.41 World Youth Day Act 2006 …. 1.7 s 7 …. 1.7 s 58 …. 1.7 World Youth Day Regulation 2008 …. 1.7 cl 7 …. 1.7 cl 7(1)(b) …. 1.7 Young Offenders Act 1997 Pt 5 …. 11.79

Northern Territory

Criminal Code Act 1983 …. 2.20, 6.2

Queensland Bail Act 1980 …. 1.44, 6.2 Corrective Services Act 2000 …. 1.44 Criminal Code 1899 …. 1.75, 1.89, 3.16, 5.43 Ch V …. 1.89 s 23 …. 2.7, 8.39 s 23(1) …. 2.6, 2.7, 8.39 s 23(1)(a) …. 2.7 s 24 …. 1.89 s 317 …. 5.43, 5.44 s 317(b) …. 1.75, 5.43 s 320 …. 5.43 Dangerous Prisoners (Sexual Offenders) Act 2003 …. 1.43, 1.44 s 8 …. 1.44 s 8(2)(a) …. 1.44 s 11(2) …. 1.44 s 13 …. 1.44 Evidence Act 1977 …. 1.18 Transplantation and Anatomy Act 1979 …. 2.17

South Australia Controlled Substances Act 1984 …. 1.15 Criminal Law Consolidation Act 1935 s 20 …. 5.3

Tasmania Criminal Code Act 1924 …. 6.2, 8.39, 11.43, 11.50 s 13 …. 5.9 s 160(2) …. 3.18 s 303(1) …. 11.52 Justices Act 1959 s 34a(1) …. 11.52

Victoria Abortion Law Reform Act 2008 …. 9.31 Charter of Human Rights Act 2006 …. 1.41 s 25 …. 1.41 s 36 …. 1.41 Crimes Act 1958 …. 3.32, 7.11, 7.29 s 3B …. 3.32 s 4 …. 3.42 s 4A …. 4.21 s 81(1) …. 7.29 s 82 …. 7.68 s 459 …. 11.48 s 568 …. 6.10 s 568(1) …. 12.79 Crimes (Amendment) Act 1985 …. 5.3 Crimes (Homicide) Act 2005 …. 3.32 Crimes (Powers of Arrest) Act 1972 …. 11.45 s 458 …. 11.45

s 459 …. 11.45 Drugs, Poisons and Controlled Substances Act 1981 …. 11.20

Western Australia Criminal Code 1913 …. 6.2, 7.52, 8.43, 10.18 s 23 …. 8.39 s 23(1) …. 8.39 s 26 …. 8.43 s 295 …. 5.3 s 570D …. 12.119 s 653 …. 8.43 Health Act 1911 s 334 …. 9.30 Police Act 1892–2004 s 50AA(1) …. 11.64

Brunei Criminal Procedure Code s 117 …. 12.123 s 117(2) …. 12.123

International European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 …. 1.39, 1.47, 9.27 Art 5(2) …. 11.41 Art 6 …. 1.39 Art 8(2) …. 5.33 International Covenant on Civil and Political Rights …. 1.44

United Kingdom Abortion Act 1967 …. 9.27 s 1(1) …. 9.27 s 1(1)(d) …. 9.27 Aviation Security Act 1982 s 1 …. 9.27 Children and Young Persons Act 1933 …. 4.14 Constitutions of Clarendon 1164 …. 1.44 Criminal Damage Act 1971 s 1(2) …. 6.17 Criminal Law Act 1977 s 1 …. 10.31 s 1(2) …. 10.31 Crown and Government Security Act 2010 …. 10.31 Indecency With Children Act 1990 s 1(1) …. 6.45 Infant Life Preservation Act 1929 s 1(1) …. 9.27 Offences against the Person Act 1861 …. 5.3, 5.32 s 18 …. 5.32 s 20 …. 5.32 s 47 …. 5.32 s 58 …. 9.27 Police and Criminal Evidence Act 1984 …. 12.123 s 76 …. 12.123

s 76(2)(a) …. 12.123 s 76(8) …. 12.123 Prevention of Cruelty to Children Act 1894 …. 4.14 Road Traffic Act 1972 s 1 …. 6.17 Sexual Offences Act 1956 …. 5.32 s 1 …. 6.21 s 1(1) …. 6.21 Sexual Offences Act 2003 s 74 …. 6.26 s 75 …. 6.26 s 76 …. 6.26 Statute of Westminster the First 1275 …. 11.75 Theft Act 1968 …. 7.2, 7.29 s 1 …. 7.29 s 15(1) …. 7.68 s 24(3) …. 10.7

United States of America Constitution of the United States 1787 …. 1.44, 11.21, 12.86

Contents Preface to the Fifth Edition Table of Flow Charts Table of Cases Table of Statutes

1

General principles Definition of crime Role of criminal law Restraining the state Bill of rights Burden of proof Discretion Role of lawyers Elements of a crime Introduction Physical elements Fault elements Motive Coincidence of physical and fault elements Special defendants Introduction Children

Corporate defendants Conclusion Strict and absolute liability Conclusion Discussion questions

2

Murder Introduction MCCOC on murder and manslaughter Murder in New South Wales Elements of murder Physical elements Act or omission Culpable omissions Causation Intervening acts and events Voluntary act of the deceased Pre-existing susceptibility Death of a living person Fault elements Reckless indifference to human life Intention to kill Intention to cause grievous bodily harm Constructive murder The fault element in constructive murder The requirement of malice

Conclusion Discussion questions

3

Voluntary manslaughter Introduction Extreme provocation Introduction The two-part test Loss of control after sustained period of abuse Ordinary person test Intoxication and extreme provocation Words as provocative conduct Presence of the accused Third party conduct Self-induced provocation Mistake Withholding provocation from the jury Proportionality not required Abolition of provocation Substantial impairment by abnormality of mind Excessive self-defence Infanticide Discussion questions

4

Involuntary manslaughter Introduction Two forms of involuntary manslaughter

Unlawful and dangerous act manslaughter Elements of unlawful and dangerous act manslaughter Unlawful and dangerous act Unlawful otherwise than as breach of statutory or regulatory provision Burden on Crown to prove death caused by unlawful act Manslaughter by criminal negligence Manslaughter by negligent act Manslaughter and malice Manslaughter by negligent omission Where there is an unexpected incident in carrying out a common design Assault causing death Culpable killing Discussion questions

5

Non-fatal offences against the person Introduction Assault Elements of assault Physical elements of assault Fault element of assault Stalking, intimidation and domestic violence Battery Physical elements of battery

Fault element of battery Aggravated assaults Wounding Grievous bodily harm Assault and battery summarised Consent Limits of consent Sexually transmitted diseases and consent Consent reviewed Discussion questions

6

Sexual offences Introduction Statutory and common law framework Statutory framework Intention and recklessness, capacity and consent, knowledge and mistake Sexual assault Introduction Physical elements Act of sexual intercourse Without consent Fault elements Knowledge of and recklessness as to consent Non-advertent recklessness Advertent recklessness

Honest but unreasonable belief in consent Negation of consent Consent in relation to offences of attempted sexual assault Grounds to establish absence of consent Indecent assault and act of indecency Indecent assault Act of indecency Act of indecency as an element of indecent assault and as a separate crime Act of indecency towards another person Fault element for indecent assault Child sexual assault Special evidentiary and procedural rules applying in sexual assault trials Discussion questions

7

Stealing and other property offences Introduction History of larceny Larceny Punishment under the Crimes Act Elements of larceny Concept of property Physical elements of larceny Taking and carrying away Something capable of being stolen

In someone’s possession whether or not the owner Without the consent of the person in possession Fault elements of larceny Intention to deprive the owner of property in the thing Fraudulently and without honest claim of right Finding and larceny Mistake and the requirement of coincidence between physical and fault elements Larceny by a trick Statutory offences Introduction Larceny by bailee Fraudulent appropriation Embezzlement Statutory fraud offences of Part 4AA Alternative verdicts in cases of dishonest acquisition Other property offence categories Discussion questions

8

Mental illness, voluntariness, automatism and intoxication Introduction Mental illness M’Naghten’s Rules Substantial impairment by abnormality of mind Fitness to be tried

Voluntariness and automatism Introduction Voluntary act Non-insane automatism Commentary on automatism Intoxication Introduction Common law background Part 11A of the Crimes Act Intoxication and attempted offences of specific intent Intoxication and mental illness Discussion questions

9

Duress, necessity and self-defence Introduction Duress Introduction Elements of duress Would a reasonable person have acted as the accused did? Is an act done under duress a ‘voluntary’ act? Duress, murder and constructive murder Necessity Elements of necessity Necessity and murder

Necessity and abortion Self-defence Common law background Legislative statement of self-defence Elements of self-defence Excessive force that inflicts death Response to lawful conduct or non-criminal conduct Defence of others and defence of property Defences to non-fatal offences Discussion questions

10 Attempt, conspiracy and complicity Introduction Inchoate terrorism crimes Attempt Introduction Common law on attempt Elements of attempt Physical element of attempt Impossibility Fault element for attempt Conspiracy Introduction Physical and fault elements for conspiracy Agreement

Impossibility of carrying out the agreement Fault element of agreement Intention that an offence be committed Conspiracy to commit a crime of recklessness Complicity Introduction Statutory provisions relating to complicity Principal in the first degree Joint criminal enterprise Innocent agents Principal in the second degree Accessory before the fact Joint criminal enterprise Introduction Scope and application of joint criminal enterprise Extended common purpose Constructive murder and joint criminal enterprise Manslaughter from participation in a joint criminal enterprise Withdrawal from complicity Requirements for withdrawal Accessory after the fact Introduction Physical element for accessory after the fact Fault element for accessory after the fact

Misprision of felony Discussion questions

11 Criminal procedure and evidence — Part 1 Investigation, arrest and bail Introduction Overview of criminal procedure Detecting the offence Investigating an alleged offence — power to stop and search without warrant Reasonable suspicion Investigation with warrant Search warrants Issuing a warrant Powers and responsibilities under a warrant Nature of search warrants and obligations of issuing justice Entry for investigation without warrant Expanding powers Commencing proceedings Arrest without warrant Arrest with warrant Definition of arrest Statement of reason for arrest Entry into premises to effect an arrest Force used against a person to effect an arrest Purpose of arrest

Search incidental to arrest Detention for further investigation after arrest Search, identification and collection of forensic examples after arrest Search Medical examinations Collection of forensic samples Fingerprints and photographs Rights of accused Protections at the police station Release or bail Bail Nature of bail Bail Act 2013 Making bail decisions Considerations for bail (Bail Act 2013 (NSW) s 16)) Bail conditions Refusing bail or bail conditions cannot be met Period of bail Varying bail Failure to comply Conclusion Discussion questions

12 Criminal procedure and evidence — Part 2 Trial, admissions, sentence and appeal

Introduction Penalty notice matters Court hearings Summary matters Return first date Plea of guilty Plea of not guilty — brief to be served Ex parte hearings Hearing of the matter Indictable matters Committal proceedings Presentation of the indictment Plea Pre-trial disclosure Arraignment Criminal trial Sentencing Principles Statutory framework Maximum penalties Non-custodial options Community service orders Good behaviour bonds Find the offence proved but take no action Deferral of sentence for rehabilitation

Fines Diversion of offenders Suspended sentence Custodial orders Compulsory drug treatment detention Home detention Intensive correction Full-time custody and parole Life sentence Appeals Appeal against sentence Power of the Court of Criminal Appeal Petition to the Governor based upon fresh evidence following final appeal Rule against double jeopardy — autrefois convict and autrefois acquit Aspects of evidence Evidence Act 1995 (NSW) Admissions and confessions Illegally or improperly obtained admissions Fabricated confessions — common law Modern statutory scheme Criminal Procedure Act 1986 s 281 and Evidence Act 1995 s 86 Evidence Act 1995 s 84 Evidence Act 1995 s 85

Evidence Act 1995 s 137 Discretionary exclusion Evidence Act 1995 ss 138 and 139 Evidence Act 1995 s 90 Right to silence Conclusion Discussion questions Index

[page 1]

1 General principles DEFINITION OF CRIME 1.1 What conduct should be made criminal? Should conduct be made criminal where there is no victim; for example, consensual sex between adult males? What are the consequences of a legal wrong being classified as a crime? For example, it is a legal wrong to negligently cause an injury, or to fail to honour a promise made, but these are not criminal. Why are they not crimes? The reader is invited to address these questions after studying the cases and materials that follow. At this stage a few introductory observations might be made. 1.2 A vast and growing range of conduct, extending from using offensive language in a public place and avoiding obligations to pay tax, through to the deliberate killing of another, is classified as criminal. What is it that the many and varied instances of criminal conduct have in common? Is there some single factor that applies so that we can say that they are crimes? Lord Aitken, in Proprietary Articles Trade Association v AG (Canada), said the only thing that made conduct criminal was that the state had prohibited it and had provided that a person who engaged in that conduct was to be punished.

Proprietary Articles Trade Association v AG (Canada) [1931] AC 310 Privy Council Lord Aitken: … Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard, but one: Is the act prohibited with penal consequences? Morality and criminality are far from coextensive; nor is the sphere of criminality necessarily part of a more extensive field covered by morality — unless the moral code necessarily [page 2] disapproves all acts prohibited by the State, in which case the argument moves in a circle. It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the domain of ‘criminal jurisprudence’; for the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished.

1.3 Under Lord Aitken’s approach we can identify what is criminal by looking at the common law and statutes prohibiting various forms of behaviour and asking whether the two essential characteristics of a crime are present, namely: 1.

Is the conduct prohibited?

2.

Is the consequence of engaging in the prohibited conduct punishment?

This simple definition is not without its critics. This type of definition (that is, a crime is whatever the legislature says is a crime) forces commentators to accept ‘the official version of what was [or is] right and wrong’.1 This definition adds nothing to the analysis of why something is considered a

crime or why conduct that may be thought of as ‘wrong’ is not a crime. 1.4 As Bronitt and McSherry note, much theorising about the criminal law:2 … has been concerned with determining the legitimate conditions, in both moral and political terms, of criminal liability and punishment … As a consequence, much theoretical debate has been concerned with exploring the conditions under which individuals should be held morally and legally responsible for their conduct.

1.5 This debate, about the proper reach of the criminal law and when people should be held criminally responsible for their conduct, is not pursued in detail here. The aim of this text is to explore the principles of the criminal law as they exist today. In a textbook for legal practitioners who may be called upon to advise a client, as well as students of law, it is appropriate that we work with the ‘criminal law definition’.3 Neither a defence lawyer nor a prosecutor has the luxury of arguing that some conduct should or should not be a crime or that, for philosophical reasons, the assumption that people are in control of their actions and free to make choices should be rejected. 1.6 Apart from the philosophical issue of when it is appropriate to label people criminal, there is also a question of what sort of conduct should be criminal. The reach of the criminal law is constantly increasing. Criminal law is not only concerned with rape, murder and mayhem. The time devoted to criminal cases by the judicial system is weighted heavily towards minor offences dealt with in the Local Court. [page 3] 1.7 In anticipation of the Catholic Church’s World Youth Day, the New South Wales Government sought to extend the reach of the criminal law by using its power to make

regulations under the World Youth Day Act 2006 (NSW) to prevent conduct causing ‘annoyance or inconvenience’ to pilgrims (World Youth Day Regulation 2008 (NSW) cl 7). Failure to comply with a direction by police or an authorised person was a criminal offence punishable by a fine of up to $5500. In Evans v New South Wales (2008) 168 FCR 576; 250 ALR 33 the applicants intended to engage in conduct that would involve handing out material such as condoms and talking to pilgrims about the teachings of the Catholic Church on issues such as abortion and homosexuality. They sought a declaration that the laws were invalid, as they infringed their rights under the Australian Constitution to engage in free political speech. (The constitutional issue meant that it was the Federal Court, rather than the NSW Supreme Court, that had the jurisdiction to determine the matter.) The Court held that this: … class of regulation … requires that there be some rational relationship between the regulation and the powers, obligations and liabilities created by the Act. … Conduct which may attract a direction under cl 7(1)(b) is conduct which “causes annoyance … to participants in a World Youth Day event”. That is to say it is conduct which actually results in its observers being ruffled, troubled, vexed, disturbed, displeased or slightly irritated. These are responses which depend very much on the individuals concerned. Some may find protests of the kind which are proposed by the applicants mildly amusing. Others may be practising Catholics or Christians who agree with some of the protestors’ points and are not troubled by them. There may be others who find the protests irritating and who are, in the relevant sense, annoyed by them. Annoyance to “participants” within the meaning of the Regulation may be annoyance to many or a few. There is no objective criterion to assist the judgment of “an authorised person” in deciding whether to issue a direction under cl 7. There may be circumstances in which it would be difficult if not impossible

for a person to whom a direction is given to know whether his or her conduct was such as to authorise the giving of the direction. It is little consolation to the person affected by a direction that he or she could argue the point later in a prosecution in a court of law as the State suggested. … In our opinion the conduct regulated by cl 7(1)(b) so far as it relates to “annoyance” may extend to expressions of opinion which neither disrupt nor interfere with the freedoms of others, nor are objectively offensive in the sense traditionally used in State criminal statutes. Breach of this provision as drafted affects freedom of speech in a way that, in our opinion, is not supported by the statutory power conferred by s 58 properly construed. Moreover there is no intelligible boundary within which the “causes annoyance” limb of s 7 can be read down to save it as a valid expression of the regulating power.

1.8 Evans was a situation where potentially affected citizens were able to argue that the reach of the criminal law had been impermissibly extended. The court found that the term ‘annoyance’ was too wide and struck down that part of the regulation, meaning that a person could be directed to cease conduct that was a risk to safety or inconvenient or caused an obstruction, but not conduct that was merely annoying. Although this was a case where a regulation was struck down for ‘going too far’, the ability of a court to so rule will seldom arise. It is important to note that the law here was a regulation, that is, delegated legislation, rather than an Act of Parliament. The court had to consider whether the regulation was authorised [page 4] by the Act that authorised the Governor to make the regulation. The court did not deny that the legislature could make laws that infringed the principle of freedom of speech, but required that it clearly do so. It is unclear whether the result would have been the same if the rule had been established by an Act of Parliament rather than delegated legislation.

1.9 Although Evans is an example of the limited capacity of the courts to strike down criminal legislation, it remains the case that there is usually little value in arguing before a judge that the matter before the court should not be a crime if the legislature has said that the alleged conduct is a crime. And obviously, a prosecutor cannot bring charges on the basis that what the accused did should be illegal if, in law, it is not. 1.10 Notwithstanding the decision in Evans, for the purposes of this text we will accept that, although morally and intellectually unsatisfying, a crime is a crime when the legislature or the common law has determined that such conduct is prohibited and the consequence of engaging in that conduct is punishment, as opposed to another legal remedy such as an obligation to make good the damage incurred from failing to specifically perform one’s obligations. 1.11 A criticism of Lord Aitken’s definition in Proprietary Articles Trade Association v AG (Canada) (see 1.2) is that it fails to take into account the growing range of conduct which, on the face of it, looks criminal but is only ‘punished’ by what is classified as a civil penalty. The civil penalty process is one where a person can be ordered to pay a penalty without being classified as having been convicted of a crime. For example, under the Taxation Administration Act 1996 (NSW) the Chief Commissioner of State Revenue can determine if a person is in default of his or her obligations to pay tax and may impose a penalty by way of ‘penalty tax’. It is then for the Chief Commissioner to determine the amount of penalty tax that is to be paid, an amount which can be decreased if the taxpayer makes appropriate disclosures, or increased if the taxpayer deliberately conceals information (Taxation Administration Act 1996 (NSW) ss 26–33). Tax, including penalty tax, is a debt due to the Chief Commissioner of State Revenue and can be recovered in the civil courts. Here is an example of a penalty being applied for a failure to do

something required under state tax legislation, but the failure is not a criminal offence. Because it is not a criminal offence the general rules of criminal procedure (see Chapter 11) do not apply. The default of the taxpayer does not have to be proved beyond reasonable doubt, and the penalty is applied in effect by the person alleging the default. Any review of the Chief Commissioner’s decision is undertaken by the Administrative Decisions Tribunal or the Supreme Court, but not in its criminal jurisdiction (Taxation Administration Act 1996 (NSW) ss 96–97). 1.12 The distinction between civil and criminal matters is unclear and, as Frankfurter J put it:4 Punitive ends may be pursued in civil proceedings, and, conversely, the criminal process is frequently employed to attain remedial rather than punitive ends.

[page 5] What then distinguishes a civil penalty from a criminal punishment? In Gapes v Commercial Bank of Australia Ltd (No 2), below, the Federal Court of Australia had to consider whether s 119 of the Conciliation and Arbitration Act 1904 (Cth) provided for a criminal or a civil penalty. The section provided that where an employer had failed to pay wages in accordance with an award, certain prescribed persons could ‘sue’ for a penalty to be applied. Gapes v Commercial Bank of Australia Ltd (No 2) (1979) 27 ALR 87 Federal Court of Australia — Industrial Division Deane J: … In the absence of express statutory direction, the question whether proceedings for a statutory penalty are criminal in character can be assimilated to the question whether the act or acts in respect of which the proceedings are brought constitute a criminal offence. The answer to neither question is determined by the mere fact that the consequence of the act or acts is liability to a

penalty: ‘The recovery of a penalty, if that is the only consequence, does not make the prohibited act a crime. If it did, it seems to me that that distinction which has been well known and established in law for many years between a penal statute and a criminal enactment would fall to the ground, for every penal statute would involve a crime, and would be a criminal enactment’. … The answer to both questions must be determined by reference to the legislative intent appearing from the provisions of the relevant statute. Section 119 of the Conciliation and Arbitration Act 1904 (the Act) does not, in terms, impose any statutory obligation or prohibition. It provides that where any organization or person bound by an order or award has committed a breach or nonobservance of a term of the order or award, a penalty may be imposed at the suit of certain bodies or persons. It matters not, for the purposes of s 119, whether the relevant breach or nonobservance of s 119 of the Act be wilful or accidental. In these respects, the provisions of s 119 of the Act are to be contrasted with the provisions of s 122 which expressly provide that no person ‘shall wilfully make default in compliance with any order or award’ and which set out, at the foot of the section, a pecuniary penalty of $40 in the manner indicated by s 41 of the Acts Interpretation Act 1901 [since repealed] as appropriate for indicating that contravention of a section or a sub-section shall constitute an offence against the Act. Other sections of the Act demonstrate that the form used in s 122 is the form which the legislature has ordinarily used when it was intended that failure to comply with a provision of the Act should constitute an offence (see for example, among the preceding sections, ss 5(1), (1A) and (2), 27(5), 42(2), 42A(3), 46, 111). While all of the courts, in which proceedings for recovery of the statutory penalty might be instituted, possessed civil jurisdiction at the time the provisions of the section were first enacted, some of them did not possess criminal jurisdiction. In my view, the form and content of s 119 in its context in the Act indicate that the legislative intent was neither that breach or non-observance of any order or award should constitute a criminal offence, regardless of whether it was wilful or accidental nor that proceedings under s 119 for a penalty for such a breach should be criminal proceedings. …

1.13 With respect to Deane J, this analysis is not very helpful. To decide whether something is criminal in character by reference to whether it creates a criminal offence provides no assistance in determining in a particular case whether or not a [page 6] criminal offence has been created. If we accept that any provision that provides a penalty for engaging in prohibited conduct, or failing to engage in required conduct, is criminal, then we would readily know what was ‘criminal in character’, even if the statute that imposed the penalty did not use traditional words such as ‘offence’. 1.14 It is possible to try to distinguish ‘criminal’ offences from other, non-criminal offences because the latter are ‘not criminal in any real sense but are acts which in the public interest are prohibited under a penalty’, whereas the former are ‘truly criminal’ (see He Kaw Teh v R (1985) 157 CLR 523, extracted at 1.88). It is possible to try to define offences that are unlawful in themselves, that is, ‘unlawful otherwise than by reason of the fact that [they infringe] some statutory prohibition’ (see R v Pullman (1991) 25 NSWLR 89). But do such endeavours help in defining when a statute creates a criminal offence and when it does not? These days nearly all criminal offences are found in statutes, whether they are minor offences, such as those in the Australian Road Rules, or the most serious offences in the criminal calendar, found in the Crimes Act 1900 (NSW) (‘the Crimes Act’). To argue that something is criminal because it is criminal in itself is circular and gives us no further guidance as to whether a breach of the road traffic rules is ‘criminal’ or something else (though what else it could be is not clear). 1.15 Even ‘decriminalising’ some conduct does not take the conduct outside the criminal law. For example, in South Australia a person may be given an ‘expiation notice’ with

respect to various offences, for example, a simple cannabis offence (ie, possession of small amounts of cannabis or cannabis resin). The offender may pay the ‘fee’ due on the notice and thereby avoid prosecution. If the person does not pay the fee, he or she is deemed to be convicted of the offence alleged and fined the amount of the fee due. If the offender pays the fee, there is no conviction but the offender is, of course, out of pocket for the amount of the fee. Is possession of a small amount of cannabis in South Australia still criminal? It is popular to use a phrase such as ‘decriminalised’ to suggest that possession of small amounts of cannabis is no longer a criminal offence, that it is now something different, perhaps conduct that only attracts a ‘civil’ (rather than a criminal) penalty. The reality is, however, that possession of cannabis remains an offence under the Controlled Substances Act 1984 (SA) and a person who wishes to dispute the allegation may elect to be prosecuted rather than pay the expiation fee. Presumably, in any prosecution, the Crown will have to prove its case beyond reasonable doubt using admissible evidence, and the ‘normal’ range of penalties will apply. If a person does not pay the fee he or she is convicted by default. The use of an ‘expiation notice’ (like a traffic infringement notice) is a simple administrative arrangement. It makes no sense to say that the possession of cannabis is not a criminal offence, even in South Australia. 1.16 So when is a penalty not a ‘criminal’ penalty? Deane J stated in Gapes (see 1.12) that this is a matter to be resolved by statutory interpretation. It would seem that where the legislature uses words such as ‘offence’ and provides that any penalty is to be imposed only after ‘normal’ criminal processes, the offence is a criminal offence, but it is open to the legislature to provide for penalties that are determined by other means and these are not criminal penalties. [page 7]

1.17 The High Court of Australia had cause to consider whether or not an action for breaching the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth) was civil or criminal in nature in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd, below. Gummow J said: Section 33(1) of the Customs Act imposes a prohibition upon the moving of goods subject to the control of Customs. At the relevant time, at the foot thereof a sum was stated beside the term “Penalty”. Section 5 of the Customs Act states that, where a penalty is set out at the foot of a sub-section, this indicates that a contravention of the sub-section is “an offence against this Act, punishable upon conviction by a penalty not exceeding the penalty so set out”.

1.18 Notwithstanding what appears to be a clear indication that a traditional criminal offence is intended, the Chief Executive Officer of Customs argued that the burden of proof required was the civil standard (ie, ‘on the balance of probabilities’) rather than the criminal standard of ‘beyond reasonable doubt’ (the standard of proof is discussed in more detail at 1.50). There was also debate about whether provisions of the Evidence Act 1977 (Qld) that applied in civil cases could be used by the defendant in defending the allegations against it. The problem was that, although the relevant legislation provided that there was a penalty to be applied and used the word ‘conviction’, the Customs Act provided that proceedings in a state court were to be ‘proceeded with … in accordance with the usual practice and procedure of the Court in civil cases’.5 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; 201 ALR 1; [2003] HCA 49 High Court of Australia [Gleeson CJ and McHugh J agreed with Hayne J, as did Gummow J in a separate judgment. Kirby J in a separate judgment partially agreed with Hayne J. See 1.19.]

Hayne J: [His Honour considered the history of actions by the Crown to recover money due as well as the history of Australian Customs and Excise legislation, and continued] … Arguments founded on classification of the proceedings as “civil” or “criminal” as determinative of the standard of proof, must fail. As reference to the historical matters mentioned earlier reveals, the classification proposed is, at best, unstable. It seeks to divide the litigious world into only two parts when, in truth, that world is more complex and varied than such a classification acknowledges. There are proceedings with both civil and criminal characteristics: for example, proceedings for a civil penalty under companies and trade practices legislation. The purposes of those proceedings include purposes of deterrence, and the consequences can be large and punishing. In any event, this chain of reasoning, from an a priori classification to a conclusion about standard of proof, treats the relevant Acts as providing no more than background information when, in truth, it is with the terms of the Acts that the inquiry must begin. (For the same reason, decisions about the operation of other statutory provisions offer little assistance.) … [page 8] What does the common law require? Where what is sought is conviction of the defendant for an offence against a law of the Commonwealth, it must be strongly arguable that nothing short of proof beyond reasonable doubt will do. If no conviction is sought, but other relief is (as, for example, a declaration that the defendant contravened identified provisions of the relevant Act coupled with orders for payment of monetary penalties), it must be strongly arguable that, in proceedings conducted according to civil procedures, proof to the civil standard will suffice. No doubt, in accordance with well-established principle, if the civil standard were to be applied, “the nature of the issue [would] necessarily [affect] the process by which reasonable satisfaction is attained” and “exactness of proof [would be] expected”. Those tentative conclusions do not depend upon attributing a description of “civil” or “criminal” to the proceedings as a whole or seeking to identify some “essential character” of the proceedings. (By what process of distillation the “essential character” of

proceedings could be revealed is not apparent.) Rather, the conclusions proposed focus upon, and attach significance to, the kinds of orders which the proceedings seek. In particular, proceedings are distinguished according to whether or not they seek the conviction of the defendant for an offence. … Seeking to obtain the conviction of a person accused of contravening written or unwritten law lies at the heart of the criminal process. The fact of conviction is an important criterion for the operation of constitutional provisions and the operation of federal and State legislation. Absent statutory provision to the contrary, a conviction should not be recorded except where the requisite elements of the contravening conduct are established beyond reasonable doubt. … Other criteria which might be used to distinguish between cases in which proof beyond reasonable doubt is necessary, and those in which it is not, are unhelpful. Apart from attempting to classify proceedings as “civil” or “criminal”, the only other possible criterion advanced for consideration focused upon the penal consequences of Customs and Excise prosecutions. But penal consequences (in the form of punitive damages) can follow from proceedings which, in all other respects, would ordinarily be referred to as civil proceedings and it has not hitherto been suggested that proof beyond reasonable doubt is necessary before that kind of relief is ordered. Further, both federal and State companies legislation has provided for recovery of what are described as “civil penalties” on proof of the requisite matter to the civil standard of proof but the operation of those provisions did not, and does not, extend to proceedings for an offence. Characterising particular forms of relief sought in proceedings as “penal” offers little or no assistance in deciding what standard of proof should be applied. … [The court ordered in part that the orders of the Queensland Court of Appeal be varied by answering certain questions posed for the Court to the effect that, in order to obtain a conviction of the offences against both the Customs Act and the Excise Act, the elements of the offences must be proved beyond reasonable doubt and that the provisions of the Evidence Act 1977 (Qld), which would be applied by the Supreme Court in civil proceedings, be applied at the trial.]

1.19 Kirby J, in a separate judgment, only partially agreed with Hayne J (see 1.18). His Honour said: There remains one matter upon which I would depart from the reasons of Hayne J. This relates to the view stated concerning the significance of the penal consequences of customs and excise prosecutions for the classification of such proceedings. His Honour concludes that characterising the particular forms of relief sought

[page 9] in particular proceedings as “penal” offers little or no assistance in deciding what standard of proof is to be applied. I accept that statutory penalties exist that represent a kind of hybrid, lying somewhere between compensation, restitution and restoration (the usual business of civil process) and punishment and public denunciation (the usual business of criminal process). However, where the remedy provided envisages a public “conviction” of an “offence” and the imposition of a “penalty”, which in some circumstances in the case of a natural person is backed up by the possibility of imprisonment, it is easier than otherwise to come to a conclusion that the proper classification of the proceedings is criminal.

1.20 The effect of this discussion is to remind the reader that the distinction between civil and criminal is not clear, so that it is still possible to have discussions about whether or not what is being considered is a criminal offence. The key factor in Hayne J’s opinion in Labrador Liquor is whether or not the defendant is to be subject to a conviction (though what that term means is itself not clear), and it is the words used by the legislature in how they describe the offence that are most determinative. Kirby J placed greater weight on whether or not the consequences could be described as ‘penal’. 1.21 Labrador Liquor also shows that, regardless of how a statutory provision is classified, the standard protections of

the criminal law can be abrogated by parliament if it so chooses. In this case the court found that the various pieces of intersecting legislation did not affect the issue of the burden of proof and so Customs had to prove their case beyond reasonable doubt. There was no doubt in the opinions of the judges that if parliament had wanted to clearly provide that proof could be established on the lower, civil standard, then it could have done so. Merely describing an offence as a ‘criminal offence’ does not guarantee the protections of the criminal law if parliament chooses to abrogate those protections. 1.22 The High Court considered the difference between criminal sentencing proceedings and civil proceedings involving monetary penalties in determining whether a practice that the court had laid down for sentencing in criminal matters should also apply in proceedings for determining civil penalties. In doing so they made comments as to the difference between the purposes of proceedings for civil penalties and sentencing for criminal offences. Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476; [2015] HCA 46 High Court of Australia [In Barbaro v R (2014) 253 CLR 58; 305 ALR 323 the High Court limited the submissions that could be made by the Crown in sentencing proceedings and ruled that it was wrong in principle for the Crown to indicate a quantified range of sentences that the Crown believed it was open for the court to impose. The question arose whether that same rule applied to the prosecutor in proceedings for civil penalties.] French CJ, Kiefel, Bell, Nettle and Gordon JJ: [footnotes omitted] … [page 10] [51] Contrary to the Full Court’s reasoning, there are basic

differences between a criminal prosecution and civil penalty proceedings and it is they that provide the “principled basis” for excluding the application of Barbaro from civil penalty proceedings. [52] A criminal prosecution is an accusatorial proceeding which is governed by the fundamental principle that the burden lies in all things upon the Crown to establish the guilt of the accused beyond reasonable doubt and by the companion rule that the accused cannot be required to assist in proof of the offence charged. [53] Civil penalty proceedings are civil proceedings and therefore an adversarial contest in which the issues and scope of possible relief are largely framed and limited as the parties may choose, the standard of proof is upon the balance of probabilities and the respondent is denied most of the procedural protections of an accused in criminal proceedings. [54] Granted, both kinds of proceeding are or may be instituted by an agent of the state in order to establish a contravention of the general law and in order to obtain the imposition of an appropriate penalty. But a criminal prosecution is aimed at securing, and may result in, a criminal conviction. By contrast, a civil penalty proceeding is precisely calculated to avoid the notion of criminality as such. [55] No less importantly, whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance: Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. … The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to

deter repetition by the contravenor and by others who might be tempted to contravene the Act. [56] Moreover, in criminal proceedings the imposition of punishment is a uniquely judicial exercise of intuitive or instinctive synthesis of the sentencing facts as found by the sentencing judge (consistently with the jury’s verdict) and the judge’s relative weighting and application of relevant sentencing considerations in accordance with established sentencing principle. There is no room in an exercise of that nature for the judge to take account of the Crown’s opinion as to an appropriate length of sentence. For the purposes of imposing a criminal sentence, the question is what the judge considers to be the appropriate sentence. Nor can there be any question of a sentencing judge being persuaded by the Crown’s opinion as to the range of sentences open to be imposed. As was observed in Barbaro, apart from the conceptually indeterminate boundaries of the available range of sentences and systemic problems which would likely result from a criminal sentencing judge being seen to be influenced by the Crown’s opinion as to the available range of sentences, the Crown’s opinion would in all probability be informed by an assessment of the facts and relative weighting of pertinent sentencing considerations different from the judge’s assessment. That is why it was held in Barbaro that it is inconsistent with the nature of criminal sentencing proceedings for a sentencing judge to receive a submission from the Crown as to the appropriate sentence or even as to the available range of sentences. [57] In contrast, in civil proceedings there is generally very considerable scope for the parties to agree on the facts and upon consequences. There is also very considerable scope for them to agree upon the appropriate remedy and for the court to be persuaded that it is an appropriate remedy. Accordingly, settlements of civil proceedings are [page 11] commonplace and orders by consent for the payment of damages and other relief are unremarkable. So are court-approved compromises of proceedings on behalf of infants and persons otherwise lacking capacity, court-approved custody and property settlements, court-approved compromises in group proceedings

and court-approved schemes of arrangement. More generally, it is entirely consistent with the nature of civil proceedings for a court to make orders by consent and to approve a compromise of proceedings on terms proposed by the parties, provided the court is persuaded that what is proposed is appropriate. [58] Possibly, there are exceptions to the general rule. There is, however, no reason in principle or practice why civil penalty proceedings should be treated as an exception. Subject to the court being sufficiently persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties’ proposal and therefore impose the proposed penalty. To do so is no different in principle or practice from approving an infant’s compromise, a custody or property compromise, a group proceeding settlement or a scheme of arrangement.

1.23 At this stage of our discussion we have seen that clearly identifying when something is criminal and when it is not is not always easy. The discussion so far has left us with perhaps the unsatisfying conclusion that a crime is whatever parliament chooses to criminalise. Many crimes are well established and are accepted as examples of behaviour that should be prohibited and punished by the state where they occur. What we have seen, however, is that the state can punish other conduct without relying on the criminal law, for example, by imposing civil penalties, and the reach of the criminal law is not subject to very real or practical restraints. Parliament can choose to make merely ‘inconvenient’ conduct criminal. 1.24 Notwithstanding these realities, the standards of the criminal law are not dispensed with lightly and the state devotes a great many resources to maintaining a criminal justice system. Why, then, do we need a system of criminal laws and criminal legal processes?

ROLE OF CRIMINAL LAW 1.25 In the 2000 Boyer Lectures delivered on ABC Radio National, the Chief Justice of Australia, the Hon Murray Gleeson AC QC, argued that justice and liberty survive only in a community where there is respect for the principle that ‘we are ruled by laws and not by people’.6 He identified the role of the law as being to limit power, not just of individuals but also of governments and the state. The criminal law is one particular example of the law operating to regulate the relationship between the state and the individual, particularly as the consequences for the individual of abuse of power by the state can be as significant as deprivation of freedom and liberty. [page 12] 1.26 The Chief Justice also identified a purpose of the criminal law as being ‘to keep the peace, so that people can lead their lives, and go about their affairs, in reasonable security’.7 The criminal law does this to a limited extent by attempting to control the behaviour of individuals for the protection of all. The criminal law is used to prohibit conduct, such as deliberate killing, driving in excess of the speed limit, or failing to lodge a tax return, and threatens punishment for those who fail to obey these legal commands. This legal prohibition and threat of punishment means that our liberty to do what we like is, to some extent at least, restrained by the criminal law, but this is accepted as it promotes a safer environment where most people can go about their business protected from interference from others. 1.27 Perhaps in recognition of the limited ability of the criminal law to control aberrant human behaviour, the New South Wales Parliament passed the Community Protection Act 1994. This was an Act designed to give the Supreme

Court of New South Wales the power to order that one individual, Gregory Kable, be detained in prison, not for what he had done, but for what he might do. If the court was satisfied that Kable was ‘more likely than not’ to commit an act of violence, he could be detained in prison for up to six months. When considering whether or not the Act was a valid law, Mahoney JA identified the problem that the criminal justice system has with preventing crime. Kable v DPP (1995) 36 NSWLR 374 NSW Court of Appeal Mahoney JA: … One of the essential purposes of the criminal law, if not its fundamental purpose, is to protect men and women against violence. There is, it has been suggested, a gap in the protection which traditionally the criminal law affords. The gap lies in the prevention of violence, as distinct from the punishment of violence after it has been committed. If it be clear to demonstration that A proposes tomorrow to murder B, the law does not authorise the arrest or detention of A to prevent him doing so. A may, of course, be watched. He may, if his intention becomes a threat or an attempt, be arrested to answer the charge that he has so threatened or attempted to murder. But he may not be arrested or detained merely because he intends murder. In view of what has been said about the Community Protection Act, it is proper to examine further what I mean by such a gap. If it be clear that A intends to murder or to do violence to B, it is possible to bring A before a court on summons and to bind him over to keep the peace; at least, it is asserted that this may be done. A may be summoned to appear before a magistrate and, if his intent be proved, it may be that an order can now be made against him under the apprehended violence legislation. If he makes threats in a particular form, for example, by writing through the postal service or otherwise within the Crimes Act 1914 (Cth), s 85S, he may be charged with such an offence and arrested. To an extent, these provisions and provisions of this kind provide safeguards against A doing violence to B in the sense that, if his violence be sufficiently apprehended, he may be arrested and held

in custody to answer such charges. But it is, I think, accepted that in principle the fact that A firmly intends to murder or to do violence to B tomorrow does not provide a basis as such for the arrest and detention of A so as to prevent that violence being done.

[page 13] 1.28 The Court of Appeal found in Kable that the Community Protection Act 1994 (NSW) was a valid law of New South Wales. This decision was overturned by the High Court of Australia which found, by majority, that the law infringed the doctrine of separation of powers contained in Chapter III of the Constitution (see Kable v DPP (1997) 189 CLR 51; 138 ALR 577). The ruling by the High Court was based on how the legislation was to operate and the role given to the state Supreme Court. The court did not say that similar legislation could not be validly made in the future. Similar legislation was passed in Queensland and considered by the High Court in Fardon v Attorney-General (Qld) and will be discussed in detail at 1.44. 1.29 The criminal law is a blunt instrument when it comes to restraining the behaviour of individuals. Although some conduct that merely threatens violence, for example, assault (see 5.5), is, without more, a crime and can lead to a person being arrested and perhaps imprisoned, the criminal law can usually apply only after the violence or other damage has been perpetrated. Because of this, the ability of the criminal law to stop people committing crimes depends on an individual’s appreciation that his or her conduct is criminal, the likelihood of detection and prosecution, the person’s fear of possible punishment, and his or her own socialisation into the values that the law is purporting to uphold. But most people who are in prison are there because they commit the same kind of crime over and over again.8

Restraining the state

1.30 The ineffectiveness of the criminal law in addressing the factors which keep the crime rate in our society more or less constant9 does not mean that the criminal law is ineffective in protecting the liberty of the citizen. The criminal law and the law of criminal procedure stand between the citizen and the state to ensure that the state (the police and the government) does not take action against or impose a punishment on a citizen, except according to law. The law, including the criminal law, ‘provides a shield for individuals from arbitrary state action’.10 1.31 Subject to the above discussion about civil penalties, it is a fundamental tenet of our system of justice according to law that no person is to be found ‘guilty’ of a crime and subject to punishment unless that guilt is based upon the law. This principle has been handed down since at least 1215, when Magna Carta11 provided that: (39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

[page 14] (40) To no one will we sell, to no one deny or delay right or justice.

In the United States, the Fifth Amendment to the Constitution states: No person shall … be deprived of life, liberty, or property, without due process of law.

1.32 It is a fundamental principle that guilt or innocence is determined by law, not by moral outrage, likes or dislikes. As Mahoney JA said in Kable v DPP (1995) 36 NSWLR 374 at 378: Laws which provide for criminal sanctions should be in plain

terms; the conduct for which punishment is imposed should be able clearly to be identified and proved; and, as far as may be, that which is to be punished should not depend upon assessments, value judgments, or the like, whether they are made by courts or law enforcement authorities.

1.33 The criminal law and the processes of the criminal courts stand between the state and the citizen to ensure that these rules are observed. Nicholas Cowdery QC, writing as the NSW Director of Public Prosecutions (DPP) and hence the person then responsible for the prosecution of offences in New South Wales, saw the restraint of state power as a fundamental part of the criminal law. Getting Justice Wrong Nicholas Cowdery QC Allen and Unwin, Sydney, 2001, pp 1–6 Crime is everywhere and nobody is immune from it. Since humankind first ordered its society by setting rules there have been rule-breakers and there always will be. While a crimefree society is a worthy goal, history and common experience teach us that it is unattainable. The best we can hope to achieve is an acceptable level of crime control, balancing police measures against the freedom to be enjoyed in an open society. And while crime continues, all of us are at some risk of being affected by it. That is an unavoidable fact and we must all learn to live with it — and, if we can, to minimise our risk. … Those with knowledge of the criminal justice process and of its place in society protest against this simplified picture. They also have an interest in informing the public, but as fully and accurately as possible. That is difficult to do in the era of the sound bite and shortened attention spans. Their arguments are not simple, and not black and white, because they know that is not the nature of the problem, the issues or the solutions. They do their best in a measured, considered and detailed way, but such attempts get little exposure. Ignorance boosts the ratings and the circulation figures. Those who know find it difficult to compete against those who apparently do not. So what is there to know? How is it, for example, that our

present system has come about? Over centuries society has put rules in place and established ways of dealing with the rule-breakers. Those methods have been modified by experience, by trial and error. As the responsibility for law enforcement passed to the state — the sovereign or executive government — an imbalance of power was created. The state, with all its resources, prosecuting in its own courts, brings its full weight against (usually) an individual of limited power and means. Without procedural safeguards — checks in place at all stages of proceedings against an individual — there is the potential for injustice to occur. [page 15] As our numbers have grown and the structure of our community and its institutions and its activities have become more complex, the systems and processes — and the safeguards — have also had to become more complex and detailed. They have also had to respond to standards set internationally by bodies such as the United Nations. The first and most important safeguard of the rights of you, the individual, against any misuse of the power of the state, is the existence of the third arm of government — an independent judiciary. The three separate arms of government are the legislature (the Parliament which makes the laws), the executive (the ministers and the government departments under their administration) and the judiciary (the courts, comprising judges and magistrates). In our system of government the three arms are intended to be independent of each other, not subject to inappropriate influence by another. For example, the executive (including ministers and bureaucrats) cannot tell the courts (the judges) how to decide cases. Nor can the Parliament. This separation is demonstrated within the courtroom. In criminal cases the executive power is the prosecutor. The prosecutor cannot also be the judge: you cannot have somebody making allegations and also deciding if those allegations are true. There are rules to ensure that the judiciary exists and acts independently of the executive. It also acts independently of the

legislature (Parliament), the lawfulness of whose conduct it sometimes has to judge in cases brought before the courts. Another example of this separation of powers in practice is that the courts, not the Parliament (the legislature), must impose penalties for criminal offending — although they do so within ranges set by the legislature. … Another safeguard for the individual is the presumption of innocence. An accused person is presumed to be innocent unless and until proven guilty in court. We have an adversarial system in this country where the state is one party in contest against another party, the individual accused person. They are adversaries. The dice would be loaded unfairly if the accused was presumed to be guilty and had to prove innocence. Operational and procedural safeguards for the individual apply to the police (and other investigative agencies, which are part of the executive) and the courts. It might be said that there is a series of gateways through which a suspected or accused person must pass on the journey to conviction and punishment. Unless each gateway is negotiated satisfactorily, the journey stops and the suspect or accused goes free. The reason for the existence of the gateways is the prevention of injustice and abuse of the weak at the hands of the strong (the community at large). The gateways are there to attempt to ensure fairness in the criminal justice process — but it must be fairness to both the accused and the community. A balance is always required when fairness is to be achieved and sometimes it is difficult to strike the right one. If that balance isn’t struck — or seen to be struck — that is when we hear howls like John Laws’ “Australia’s judicial system is really a joke today …” or the Chief Minister and Attorney General of the Northern Territory’s extraordinary declaration in 2000 that the justice system is “totally corrupt”. The system can always be improved, but the process of reform is inherently cautious. It moves more slowly than some people might want, but that may be no bad thing. People’s rights are being affected in significant ways and we should not be anxious to rush into mistakes. We should resist demands for instant change for the sake of change — an alteration in one respect is likely to have effects elsewhere, not all of which may be foreseeable at the time.

We should be careful not to create a monster worse than we already have.

[page 16] 1.34 Traditionally, the criminal law provides safeguards which seek to ensure that, if an individual is to be punished by the state, the state must have clearly set out, in advance, what conduct is prohibited and it must prove, beyond reasonable doubt, that the individual did what was prohibited. Then and only then might the person be labelled a ‘criminal’, and then and only then might a punishment be imposed by an independent judicial officer (judge or magistrate). 1.35 The role of the criminal law as a limit on the power of the state is also reflected in the need to ensure a fair trial. The laws of criminal procedure are designed to ensure that an accused person is found guilty of a criminal offence only when steps have been taken to ensure that he or she is judged on legally admissible evidence in a trial that has been conducted according to law. The courts are not instruments of the state designed to impose punishments when the state or public opinion demands it; rather, the courts are instruments that stand between the state (the prosecutor) and the citizen (the defendant) to ensure that the state proves its case in circumstances that are fair to both sides. 1.36 In Dietrich v R (1992) 177 CLR 292; 109 ALR 385 at 408 Deane J said (footnotes omitted): Traditionally, the law’s insistence that a person not be convicted of a crime except after a fair trial has been conveniently, albeit slightly inaccurately, expressed in terms of a ‘right to a fair trial’. Thus, for example, Isaacs J in R v Macfarlane; Ex parte O’Flanagan and O’Kelly referred to ‘the elementary right of every accused person to a fair and impartial trial’ and added some well-known words which merit further repetition:

That such a right exists as a personal right seems to me so deeply rooted in our system of law and so elementary as to need no authority to support it. It is a right which inheres in every system of law that makes any pretension to civilization. It is only a variant of the maxim that every man is entitled to his personal liberty except so far as that is abridged by a due administration of the law. Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle. And if the right be admitted, it would be an empty thing, unless the law adequately protected it. It seems necessary, however, to adduce authority. Fortunately it is clear and weighty …

1.37 Justice, on this model, is more than merely securing the conviction of guilty persons. Justice is justice only if it is justice according to law. A just result is obtained when a person is given a fair trial according to the rules that apply and is judged according to law. A significant function of the criminal law (both substantive and procedural) is thus to impose a limit on the state’s power: to ensure that people accused of crimes are dealt with fairly and according to law and to act as the arbiter between the state (prosecutor) and the individual.

BILL OF RIGHTS 1.38 The discussion of the ability of the criminal law to provide protection against arbitrary punishment must be tempered by the realisation that, without a bill of rights, the protection offered by the criminal law is limited. As we have seen at 1.1–1.24, there are few real limitations on the power of a legislature to impose [page 17]

civil penalties or to reduce the burden of proof. These powers can be used to allow favoured sectors of society to avoid the stigma of the criminal process. But they can also be used to inflict what, in reality if not name, is a criminal punishment, while failing to respect the requirements and protections of the criminal process. A penalty that is not the subject of the legal protections afforded in a criminal proceeding may have the same effect on a person’s life, livelihood and reputation as a criminal penalty in the traditional sense. 1.39 Under the European Convention on Human Rights (ECHR), certain rights and protections are guaranteed to members of the European Union who face criminal charges. If a member state could avoid those provisions by simply labelling some penalty as something other than a ‘criminal’ penalty and by providing for some process other than the normal criminal process, the rights protected by the ECHR would be meaningless. Accordingly the European Court of Human Rights does not look at the mere label that is applied to a provision, but to the actual substance of what is involved. Han v Commissioners of Customs and Excise (see below) involved the imposition of penalties similar to those discussed at 1.12, above. Here, penalty provisions were applied to various shop owners for failing to give proper returns to allow VAT (value added tax) and other duties to be calculated. The Court of Appeal had to decide if these were ‘criminal’ penalties and whether or not the rights of the accused had been properly respected and honoured. By majority it was held that the penalties were criminal penalties, despite the claim that the English Parliament had made a regime of civil penalties. The result of that finding was that a person facing allegations that he or she had failed to comply with the law was entitled to the protections provided for in the Convention. Han v Commissioners of Customs and Excise

[2001] 4 All ER 687 England and Wales Court of Appeal Potter LJ: … Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. It is not in dispute between the parties that … case law makes clear that the concept of a ‘criminal charge’ … has an ‘autonomous’ convention meaning (see Engel v Netherlands (No 1) (1976) 1 EHRR 647 at 677–678 (para 81)). There are effectively three criteria applied by the Strasbourg Court in order to determine whether a criminal charge has been imposed (see Engel’s case and more recently AP v Switzerland (1997) 26 EHRR 541 at 558 (para 39)). They are: (a) the classification of the proceedings in domestic law; [page 18] (b) the nature of the offence; and (c) the nature and degree of severity of the penalty that the person concerned risked incurring. The Strasbourg Court does not in practice treat these three requirements as analytically distinct or as a ‘three-stage test’, but as factors together to be weighed in seeking to decide whether, taken cumulatively, the relevant measure should be treated as ‘criminal’. When coming to such decision in the course of the court’s ‘autonomous’ approach, factors (b) and (c) carry substantially greater weight than factor (a).

[His Lordship reviewed the Strasbourg case law and continued:] … [I]n considering the three criteria routinely applied by the Strasbourg Court for the purpose of determining whether the applicant is the subject of a ‘criminal charge’, the first criterion, namely the categorisation of the allegation in domestic law, is no more than a starting point for the classification, and is not decisive of the nature of the allegation. If the offence the subject of the allegation is not criminalised by the national law, the court determines whether it is none the less criminal in character for the purposes of art 6 of the ECHR by proceeding to the second and third criteria, namely the nature of the offence and the severity of the penalty which it invokes. … Under the second criterion, the court considers whether or not, under the law concerned, the ‘offence’ is one which applies generally to the public at large or is restricted to a specific group. If the former, then despite its ‘de-criminalisation’ by the national law, it is apt to be regarded as criminal. Further, if a punitive and deterrent penalty is attached, it is likely to be regarded as criminal in character, even in cases where the penalty is in the nature of a fine rather than imprisonment. On the other hand, where the offence is limited to a restricted group, as is generally the case in relation to disciplinary offences, the court is unlikely to classify a charge under the applicable disciplinary or regulatory code as criminal, at least unless it involves or may lead to loss of liberty. … [Mance LJ agreed. Sir Martin Nourse dissented. Appeal allowed.]

1.40 Under European law the mere classification by the legislature that a provision is not criminal does not determine the matter, but if, as Deane J suggested in Gapes (see 1.12), an Australian legislature can draw a distinction between civil and criminal penalties simply by use of words and procedure, then the protection that we hope is provided by the criminal law, without a binding bill of rights, is reasonably weak. Without a bill of rights a New South Wales court cannot determine that a penalty is correctly labelled criminal, and insist that any accused person must be given the standard protections of the criminal law; for example, the

right to face his or her accusers in a trial governed by law and that the case be proved beyond reasonable doubt. 1.41 In Victoria and the Australian Capital Territory, where there is ‘human rights legislation’,12 the courts may find that particular legislation is incompatible or inconsistent with stated rights,13 including the rights that are to be extended to defendants in criminal proceedings.14 Such a declaration does not, however, invalidate the law and, although there would be political pressure on a government [page 19] to ensure the laws are consistent with the stated human rights, it is ultimately open to the parliament to make laws inconsistent with the stated human rights. 1.42 New South Wales and Australian law is beginning to move away from the proposition that people can only be detained after they have been found guilty of a criminal offence. Traditionally preventative detention, that is, detaining people because of what they might do, rather than what they have done, was considered an affront to basic legal principles. In Kable v DPP (1997) 189 CLR 51 (see 1.27) the High Court found that New South Wales legislation introduced to keep Kable in gaol after he had completed his sentence was unconstitutional and invalid. The basis for its decision was that the jurisdiction given by the Act to the New South Wales Supreme Court was inconsistent with the court’s function in the federal judicial system. Under the Australian Constitution there is a strict division between the administrative arm of government and the judicial arm, and this Act infringed that distinction. The decision was thus based on form. The legislature could order that a person be detained, but the Supreme Court could not be involved in that process. As for detention, McHugh J said at 121: The Parliament of New South Wales has the constitutional

power to pass legislation providing for the imprisonment of a particular individual. And that is so whether the machinery for the imprisonment be the legislation itself or the order of a Minister, public servant or tribunal. Moreover, there is no reason to doubt the authority of the State to make general laws for preventive detention when those laws operate in accordance with the ordinary judicial processes of the State courts. However, whatever else the Parliament of New South Wales may be able to do in respect of the preventive detention of individuals who are perceived to be dangerous, it cannot, consistently with Ch III of the Constitution, invoke the authority of the Supreme Court to make the orders against the appellant by the methods which the Act authorises. This is because the Act and its procedures compromise the institutional impartiality of the Supreme Court.

Gummow J said at 131–132: The present case is not one of incarceration by legislative or executive fiat. The involuntary detention of the appellant is brought about by orders of the Supreme Court in exercise of what is described in s 24 as its “jurisdiction” under the Act. I have referred to the striking features of this legislation. They must be considered together. But the most significant of them is that, whilst imprisonment pursuant to Supreme Court order is punitive in nature, it is not consequent upon any adjudgment by the Court of criminal guilt. Plainly, in my view, such an authority could not be conferred by a law of the Commonwealth upon this Court, any other federal court, or a State court exercising federal jurisdiction. Moreover, not only is such an authority non-judicial in nature, it is repugnant to the judicial process in a fundamental degree.

1.43 Thus, in Kable it was not administrative detention per se that was ruled contrary to law, but the role of the court in that process. Where a legislature seeks to provide that a Minister of the Crown can order a person to be detained, that would not contravene the Constitution, even though, as Gleeson CJ observed, there is a paradox in this. Gleeson CJ

said in Fardon v Attorney-General (Qld) (2004) 223 CLR 575; 210 ALR 50; [2004] HCA 46 at [2]: It might be thought surprising that there would be an objection to having detention decided upon by a court, whose proceedings are in public, and whose decisions are subject to appeal, rather than by executive decision.

[page 20] Notwithstanding the decision in Kable, the Queensland Parliament introduced the Dangerous Prisoners (Sexual Offenders) Act 2003 to provide for the ongoing detention of prisoners who pose a risk to the community but who have served their sentences for what they have done. Now they may be detained in prison for what they might do. 1.44 The Queensland legislation was found to be a valid exercise of legislative power in Fardon v Attorney-General (Qld). Only Kirby J, dissenting, gave the issue of the rights of a person under the criminal law full discussion. Fardon v Attorney-General (Qld) (2004) 223 CLR 575; 210 ALR 50; [2004] HCA 46 High Court of Australia Kirby J (dissenting): [footnotes omitted] 148. There are five features in the Act which, combined, indicate an attempted imposition upon the judges of the Supreme Court of Queensland functions repugnant to Ch III of the federal Constitution as explained in Kable. These features severally authorise the Supreme Court, contrary to traditional judicial process in Australia, to order: 1.

The civil commitment of a person to a prison established for the reception of prisoners, properly so-called;

2.

The detention of that person in prison, in the absence of a new crime, trial and conviction and on the basis of the assessment of future re-offending, not past offences;

3.

The imprisonment of the person in circumstances that do not

conform to established principles relating to civil judicial commitment for the protection of the public, as on a ground of mental illness; 4.

The imposition of additional judicial punishment on a class of prisoners selected by the legislature in a manner inconsistent with the character of a court and with the judicial power exercised by it; and

5.

The infliction of double punishment on a prisoner who has completed a sentence judicially imposed by reference, amongst other things, to the criterion of that person’s past criminal conduct which is already the subject of final judicial orders that are (or shortly will be) spent at the time the second punishment begins.

149. I shall explain each of these disqualifying considerations in turn. It is their cumulative effect that brings the Act into conflict with the principle stated in Kable. 150. Civil commitment unknown to law: Generally speaking, in Australia, the involuntary detention of a person in custody by any agency of the state is viewed as penal or punitive in character. In Australian law, personal liberty has always been regarded as the most fundamental of rights. Self-evidently, liberty is not an absolute right. However, to deprive a person of liberty, where that person is otherwise entitled to it, is a grave step. If it is to extend for more than a very short interval, such as may properly be entrusted to officials in the Executive Government, it requires the authority of a judicial order. 151. These rules explain a fundamental principle that lies deep in our law. Ordinarily, it requires officers of the Executive Government, who deprive a person of liberty, to bring that person promptly before the judicial branch, for orders that authorise, or terminate, the continued detention. The social purpose behind these legal obligations is to divorce, as far as society can, the hand that would deprive the individual of liberty from the hand that authorises continued detention. The former, which normally lies in the Executive [page 21] branch, is taken to be committed to the deprivation of liberty for

some purpose. The latter is taken to be independent and committed only to the application in the particular case of valid laws. The operation of the writ of habeas corpus is another assurance, afforded to the judiciary, requiring the prompt legal justification of any contested deprivation of liberty. So precious does our legal system regard every moment of personal freedom. The scrutiny of a justification of the deprivation of liberty must not be perfunctory. It is a real and solemn responsibility of the judiciary, rooted in our constitutional history. … 153. The necessary involvement of the judiciary in adjudging and punishing criminal guilt is a fixed feature of the courts participating in the integrated judicature of the Commonwealth, provided for in the Constitution. Precisely because liberty is regarded as so precious, legal provisions derogating from liberty (and especially those that would permit the Executive Government to deprive a person of liberty) are viewed by courts with heightened vigilance. Normally, a law providing for the deprivation of the liberty of an individual will be classified as punitive. As a safeguard against expansion of forms of administrative detention without court orders, our legal system has been at pains to insist that detention in custody must ordinarily be treated as penal or punitive, precisely because only the judiciary is authorised to adjudge and punish criminal guilt. Were it otherwise, it would be a simple matter to provide by law for various forms of administrative detention, to call such detention something other than ‘punishment’, and thereby to avoid the constitutional protection of independent judicial assessment before such deprivation is rendered lawful. 154. It is true that a limited number of exceptions to this constitutional scheme have been acknowledged by this Court. They include immigration detention of ‘unlawful non-citizens’ for the purposes of deportation or to enable an application for an entry permit to be made and determined; quarantine detention for reasons of public health; detention of the mentally ill and the legally insane for the protection of the community; and analogous non-punitive, protective orders permitted by valid legislation. This Court has assumed, or suggested, that the imposition by federal and State courts of sentences that involve indefinite periods of imprisonment is compatible with Ch III. Such provisions have a

long history. In intermediate courts, they have been held compatible with Kable. This Court has also made it clear that the list of permissible burdens upon liberty, classified as ‘non-punitive’, is not closed. 155. Nonetheless, where, as in the case of the Act, a new, different and so far special attempt is made by State legislation to press the judiciary into a function not previously performed by it, it is necessary to evaluate the new role by reference to fundamental principles. The categories of exception to deprivations of liberty treated as non-punitive may not be closed; but they remain exceptions. They are, and should continue to be, few, fully justifiable for reasons of history or reasons of principle developed by analogy with the historical derogations from the norm. Deprivation of liberty should continue to be seen for what it is. For the person so deprived, it will usually be the worst punishment that our legal system now inflicts. In Australia, punishment, as such, is reserved to the judiciary in a case following an established breach of the law. For that the offender ‘can be punished [but] for nothing else’. 156. In the case of the Act, the drafter has not even attempted a change of nomenclature to disguise the reality of the order assigned to the judiciary in a case such as that affecting the appellant. The person the subject of the order is a ‘prisoner’, convicted of a previous crime. He or she is already detained in prison and must be so at the time of the application and order. If the order under the Act is made, he or she is nominally detained as a ‘serious danger to the community’. However, such continued detention is served in a prison and the detainee, although having completed the service of imprisonment, [page 22] remains a ‘prisoner’. The detention continues under the ‘continuing detention order’. From the point of view of the person so detained, the imprisonment ‘continues’ exactly as it was. 157. Where a court is concerned with the constitutional character of an Act, its attention is addressed to actuality, not appearances. Were it otherwise, by the mere choice of legislative language and the stroke of a pen, the requirements of the Constitution could be circumvented.

… 159. … Invalidity does not depend on verbal formulae or the proponent’s intent. It depends upon the character of the law. Effectively, the Act does not provide for civil commitment of a person who has completed a criminal sentence. Had it done so, one would have expected commitment of that person to a different (non-prison) institution, with different incidents, different facilities, different availability of treatment and support designed to restore the person as quickly as possible to liberty, which is that person’s ordinary right as a human being in Australia and under the protection of its Constitution and laws. 160. Occasionally, for a very short interval and in exceptional circumstances, civil commitment to prison may occur. But that is not the character of the Act. It contemplates lengthy commitment, generally with assessment and reassessments at annual intervals. In Australia, we formerly boasted that even an hour of liberty was precious to the common law. Have we debased liberty so far that deprivation of liberty, for yearly intervals, confined in a prison cell, is now regarded as immaterial or insignificant? Under the Act, just as in the law invalidated in Kable, the prisoner could theoretically be detained for the rest of the prisoner’s life. This could ensue not because of any past crime committed, but because of a prediction of future criminal conduct. 161. In the United States, where post-sentence detention legislation has been enacted, such continuing detention is ordinarily carried out in different facilities, controlled by a different governmental agency, with different features to mark the conclusion of the punitive element of the judicial sentence and the commencement of a new detention with a different quality and purpose. The Queensland Act does not even pretend to make such distinctions. The realities are unashamedly displayed. The punitive character of the Act is indicated by the precondition for its orders (that the subject is a ‘prisoner’ convicted of criminal offence(s)); by the requirement that the Court have regard to ‘the prisoner’s antecedents and criminal history’ for which inferentially the prisoner has previously been punished; and by the obligation imposed by the Act to retain the prisoner in a corrective services facility under an order accurately described as a ‘continuing detention order’. A clearer indication could not be given that the

past ‘detention’ of punitive imprisonment, judicially imposed, is to ‘continue’. 162. On its face, the Act hardly makes any effort to pretend to a new form of ‘civil commitment’. To the extent that it does, it fails to disguise its true character, namely punishment. And, by Australian constitutional law, punishment as such is reserved to the judiciary for breaches of the law. An order of imprisonment as punishment can therefore only be made by a court following proof of the commission of a criminal offence, established beyond reasonable doubt where the charge is contested, in a fair trial at which the accused is found guilty by an independent court of the offence charged. Here there has been no offence; no charge; no trial. Effectively, the presumption of innocence has been removed. Instead, because of a prisoner’s antecedents and criminal history, provision is made for a new form of additional punishment utilising the courts and the corrective services system in a way that stands outside the judicial process hitherto observed in Australia. Civil commitment to prison of persons who have not been [page 23] convicted of a crime is inconsistent with, and repugnant to, the exercise of the judicial power as envisaged by the Constitution. 163. Predictive superadded imprisonment: Although the features of the criminal process in the common law have taken a ‘meandering course’ over many centuries it has been fundamental, until now, that (save for the remand of accused persons awaiting trial who are not granted bail) imprisonment has followed final proof of crime. It has not anticipated the crime. Even remanded prisoners are imprisoned for defined and generally limited periods and after a fresh crime is alleged to have occurred. In our system of criminal justice, prisons are therefore a place of punishment for past wrongdoing. By a sentence that includes imprisonment, a judge communicates the censure of society deserved by the prisoner for proved past crimes. Imprisonment is not used as punishment in advance for crimes feared, anticipated or predicted in the future. To introduce such a notion of punishment, and to require courts to impose a prison sentence in respect of perceived future risks, is a new development. It is one fraught with dangers and ‘inconsistent with traditional judicial process’.

164. The focus of the exercise of judicial power upon past events is not accidental. It is an aspect of the essential character of the judicial function. Of its nature, judicial power involves the application of the law to past events or conduct. Although, in discharging their functions, judges are often called upon to predict future happenings, an order imprisoning a person because of an estimate of some future offence is something new and different. 165. Simply calling the imprisonment by a different name (‘detention’) does not alter its true character or punitive effect. Least of all does it do so in the case of an Act that fixes on the subject’s status as a ‘prisoner’ and ‘continues’ the type of ‘detention’ that previously existed, that is, punitive imprisonment. Such an order, superimposed at the end of judicial punishment for past crimes, must be distinguished from an order imposing imprisonment for an indeterminate period also for past crimes that is part of the judicial assessment of the punishment for such crimes, determined at the time of sentencing. There, at least, the exercise of judicial power is addressed to past facts proved in a judicial process. Such a sentence, whatever problems it raises for finality and proportionality, observes an historically conventional judicial practice. It involves the achievement of traditional sentencing objectives, including retribution, deterrence and incapacitation applied prospectively. It does not involve supplementing, at a future time, a previously final judicial sentence with new orders that, because they are given effect by the continuation of the fact of imprisonment, amount to new punishment beyond that already imposed in accordance with law. 166. Properly informed, the public understands the role of judges in ordering the deprivation of liberty on the basis of proved breaches of the law in the past. The introduction of a power to deprive persons of liberty, and to commit them to prison potentially for very long, even indefinite, periods on the basis of someone’s estimate of the risk that they will offend in the future, inevitably undermines public confidence in the courts as places exhibiting justice to all, including those accused and previously convicted of serious crimes. A court in the position of this Court is always obliged to test a novel law by what would occur if the novelty became common or repeated or is taken to its logical extent. The Act, if valid, opens the way for future instances of preventative

detention in prison, based on prediction. Such a departure from traditional judicial functions is constitutionally impermissible. 167. Beyond mental illness orders: But can it be said that the orders permitted under the Act are, or are analogous to, civil commitment for mental illness? Although the predicted dangerousness of sexual offenders, based on past conduct, might not involve proof of a mental illness in the usual sense of that term, is it sufficiently analogous to [page 24] allay constitutional concerns based on the novelty of the function committed by the Act to a State court? 168. Certainly, before a ‘continuing detention order’ is made under the Act, there is no requirement for a finding as to mental illness, abnormality or infirmity in the accepted sense. In his Second Reading Speech on the Bill that became the Act, the respondent Attorney-General made it clear that the Act was not founded on concepts of mental illness. This is perhaps understandable given that considerations of mental illness may lead to reducing, not increasing, criminal punishment. Section 8(2)(a) of the Act authorises the Supreme Court to make ‘an order that the prisoner undergo examinations by 2 psychiatrists named by the court who are to prepare independent reports’. By s 11(2) of the Act, there is no requirement for a diagnosis of mental illness, abnormality or infirmity. Nothing in the Act requires such a diagnosis, or finding by the court, to justify the exercise of the court’s powers under ss 8 or 13 of the Act. The inquiry required of the court must simply focus on the risk of re-offending. It operates on a prediction as to future conduct based on estimates of propensity that would ordinarily be inadmissible in a judicial trial conducted to adjudge whether a person was liable to be sentenced to imprisonment. It follows that the civil commitment envisaged by the Act is based on estimates of re-offending unaccompanied by any requirement on the part of the court to make a finding of the existence of a recognised mental illness, abnormality or infirmity. 169. These and related features of the Act illustrate the novelty of its provisions; their departure from the mental health exception for civil commitment deemed to fall short of ‘punishment’; and the free hand given to the psychiatric witnesses upon whose evidence the

Act requires the State court to perform its function. In effect, the psychiatrists are allowed to estimate dangerousness without any accompanying requirement to anchor such estimations in an established mental illness, abnormality or infirmity. Because such predictions involve guesswork and are notoriously unreliable at the best of times, such functions cannot be imposed on judges divorced from an appropriate footing based on an established mental illness, abnormality or infirmity. It is that established foundation that gives the assurance necessary to justify detention based on a prediction depending on more than the contestable and fallible predictive capacity, absent a recognised and wellestablished mental disease of settled and describable features. 170. It is true that bail decisions will often be made by reference to predictive considerations. Commonly, such decisions require a court to evaluate whether an accused will appear to answer the charge at a trial, will interfere with the safety or welfare of a victim or witness or will be harmed or commit self-harm. In other countries, constitutional courts have rejected the use in bail decisions of considerations of the possibility that the accused will commit further offences. … 171. The Bail Act expressly provides for consideration, in bail decisions, of whether there is an unacceptable risk that, whilst released, the accused will commit an offence, that is, a future offence. It is unnecessary to decide here the constitutional validity of that provision. It is enough to point to the great difference between refusal of bail in respect of a pending charge of a past offence and refusal of liberty, potentially for very long intervals of time, in respect of estimations of future offending, based on predictions of propensity and submitted to proof otherwise than by reference to the criminal standard of proof. … 173. The Act under consideration includes amongst its objects ‘care’ and ‘treatment’ of a ‘particular class of prisoner to facilitate their rehabilitation’. However, in the scheme of the Act, this object obviously takes a distant second place (if any place at all) to the true purpose of the legislation, which is to provide for ‘the continued detention in custody [page 25]

… of a particular class of prisoner’. If the real objective of the Act were to facilitate rehabilitation of certain prisoners retained in prison under a ‘continuing detention order’, significant, genuine and detailed provisions would have appeared in the Act for care, treatment and rehabilitation. There are none. Instead, the detainee remains effectively a prisoner. He or she is retained in a penal custodial institution, even as here the very prison in which the sentences of judicial punishment have been served. After the judicial sentence has concluded, the normal incidents of punishment continue. They are precisely the same. 174. These features of the Act demonstrate that the orders for which it provides do not fall within the category of civil commitment for mental illness contemplated in Lim [Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27–8] as an exception to the comprehensive control enjoyed by the judiciary over orders depriving persons of their liberty. Here, the deprivation can only be viewed as punishment. Although the constitutional setting in the United States is different from that operating in Australia, our legal tradition shares a common vigilance to the dangers of civil commitment that deprives persons of their liberty. In my view, the purposes of Ch III and the tests expounded by the majority in Kable require this Court to adopt a similar vigilance to this new mode of effective punishment provided for in the Act. 175. The Act is not proportional (that is, appropriate and adapted) to a legitimate non-punitive objective. It conscripts judges in the imposition of effective judicial punishment in proceedings not otherwise known to the law. The misuse of psychiatry and psychology in recent memory in other countries demands the imposition of rigorous standards before courts may be enlisted to deprive persons of liberty on psychological evidence, absent an established mental illness, abnormality or infirmity. This is why, in other countries, and hitherto in Australia, recognised and well documented mental illnesses, abnormalities or infirmities are the prerequisite for civil commitment on this ground. Psychiatric assessment of risk alone is insufficient. To involve the judiciary in assessments of the latter kind is to attempt to cloak such unreliable and potentially unjust guesswork with the authority of the judicial office. It is repugnant to the judicial process to do so. 176. Highly selective punishment: Whilst it is true that the Act does

not single out, or name, an individual prisoner for continued detention (as was the case in the legislation involving Mr Kable) it is still inconsistent with the traditional judicial process. It is directed to a readily identifiable and small group of individuals who have committed the specified categories of offence and are in Queensland prisons. It adds to the effective punishment of those individuals by exposing them to continued detention beyond the sentence judicially imposed by earlier final orders. It does not contain the procedural safeguards involved in the trial before an Australian court of a criminal offence carrying the risk of punishment by imprisonment. In effect, the appellant and the small class of persons in a like position, are identified by reference both in the short title to the Act and in its provisions. Only the most formalistic approach to the continued detention of the appellant in prison, in the same conditions as those imposed as punishment for criminal convictions, could result in the pretence that his continued detention was not punishment. This Court has repeatedly insisted that, in matters of constitutional evaluation, substance, and not mere form, provides the touchstone. … 178. Upon this basis, the continued imprisonment of the appellant likewise constitutes punishment. There are too many features of the Act to deny that classification to the order made against him. Such order is ‘taken to be a warrant committing the prisoner into custody for the Corrective Services Act’. It designates the continuing detainee ‘a prisoner’. The prisoner is even denied eligibility for the entitlements of other prisoners, [page 26] such as post-prison community based release. This is added punishment and the Act makes little or no effort to pretend to the contrary. 179. In argument, it was suggested that, even if the Act created an effective trial and punishment of persons such as the appellant, it did no offence to the Constitution because the separation of the judicial power in the States is not as rigorous as with respect to federal courts named or contemplated in Ch III courts. I doubt the correctness of this oft-stated proposition expressed so broadly; but it is unnecessary to examine that question here. By involving a

State court in the imposition of punishment, without the safeguards associated with a judicial trial, the Act offends the implications of Ch III in the precise way that Kable described. In this country imprisonment as punishment must follow the standard of traditional judicial process and be for a conventional purpose. The Act does not observe those standards. It pretends to a form of civil commitment; but that pretence does not survive even perfunctory scrutiny. Punishment is punishment and that is what the continued imprisonment ordered in the appellant’s case is in law as well as effect. 180. Double and retrospective punishment: The rule against double punishment for proved crimes may be traced to Biblical times. In English law it is often traced to the Constitutions of Clarendon (1164) by which King Henry II asserted a right to subject clergy to trial in the civil as well as ecclesiastical courts. The resolution of that conflict, following the murder of Archbishop Thomas a Becket, witnessed the beginning of the acceptance by English law that a person should not be put in danger twice for the same crime. This rule is reflected in the common law. It is expressed in the Fifth Amendment to the Constitution of the United States 1787, stating that no person shall be ‘subject for the same offence to be twice put in jeopardy of life or limb’. By the Fourteenth Amendment, that provision has been held applicable to State as well as federal laws in the United States. 181. Although there is no similar express constitutional provision in Australia, our law has repeatedly upheld procedural and substantive rules that provide effective protection against double jeopardy. The principle is also reflected in the International Covenant on Civil and Political Rights (‘ICCPR’). Australia is a party to the ICCPR and also to the First Optional Protocol to the ICCPR …. Because of this, the influence of the ICCPR upon Australian law is large, immediate and bound to increase, particularly in statutory construction. 182. But can it be said that, by enacting the Act, the Queensland Parliament has, within its legislative powers, adopted a law that deliberately involves a form of double punishment which is nevertheless valid and binding? Certainly, by force of the Act, a person such as the appellant is liable, as I would conclude, to further punishment. That punishment is based, in part at least, upon

the criterion of his former conviction(s). Accordingly, the punishment constitutes an increase to the punishment already judicially imposed by reference to the appellant’s earlier conviction(s) and final sentence(s) for the same crime(s). It involves a later judge being required, in effect, to impose new punishment beyond that fixed by an earlier judge, without any intervening offence, trial or conviction. … 184. In my view, it is essential to the nature of the judicial power that, if a prisoner has served in full the sentence imposed by a court as final punishment it is not competent for the legislature to require another court, later, to impose additional punishment by reference to previous, still less the same, offences. Such a requirement could not be imposed upon Ch III courts. Equally, it is repugnant to the exercise by State courts of the federal judicial power that may be vested in those courts for such courts to be obliged to perform such functions. [page 27] 185. Effectively, what is attempted involves the second court in reviewing, and increasing, the punishment previously imposed by the first court for precisely the same past conduct. Alternatively, it involves the second court in superimposing additional punishment on the basis that the original maximum punishment provided by law, as imposed, has later proved inadequate and that a new foundation for additional punishment, in effect retrospective, may be discovered in order to increase it. Retrospective application of new criminal offences and of additional punishment is offensive to the fundamental tenets of our law. It is also contrary to the obligations assumed by Australia under the ICCPR the federal judicial power that may be vested in those courts for such courts to be obliged to perform such functions. It is contrary to truth and transparency in sentencing. It is destructive of the human capacity for redemption. It debases the judiciary that is required to play a part in it. 186. On this footing, the imposition of such functions on a State court is offensive to the basic notions of the judicial power contained in Ch III of the Constitution of the Commonwealth. It follows that the provisions of the Act are invalid. The offending

provisions cannot be severed. They lie at the very heart of the Act. In my opinion, the entire Act fails. [The other members of the court in Fardon, Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ, found that the procedures adopted in the legislation, in particular the fact that the legislation was available to be used against more than one named individual, and that the court had real room for discretion and fact finding, meant that the role the court was being asked to undertake was not inconsistent with its judicial functions and therefore the law did not infringe the Constitution.]

1.45 The other judges of the High Court in Fardon did not agree with Kirby J and the legislation was upheld. Following suit, other states proceeded to enact legislation to impose control orders and ongoing restraints on the liberty of previously convicted persons because of a fear of the offences those persons might commit following release. For example, the Crimes (High Risk Offenders) Act 2006 (NSW) provides for extended supervision orders and continuing detention orders to allow ‘high risk sex offenders’ and ‘high risk violent offenders’ to be subject to control, including ongoing imprisonment, even after their sentences have expired. Here the legislature is moving to restrict a person’s liberty on the basis that he or she may commit future offences (as the person has already been punished for past offences). The Act declares that these are civil proceedings notwithstanding the result can be further incarceration: s 21. 1.46 Commonwealth law also provides for the control of people for fear of the offences that they may commit (see Criminal Code Act 1995 (Cth) and Thomas v Mowbray (2007) 233 CLR 307). Departing from traditional views of criminal law, Commonwealth law also allows for persons to be detained without charge and held in secret, away from their families, friends and legal advisers, to allow the Commonwealth authorities to investigate potential criminal

activity (see Australian Security Intelligence Organisation Act 1979 (Cth) Div 3). 1.47 These examples demonstrate the tendency of governments to place political and populist considerations ahead of concepts such as the right of the citizen not to be detained or punished except after conviction following due process of law. [page 28] A Charter or bill of rights, such as the European Convention on Human Rights, might mean that legislation providing for punishment or detention without normal criminal safeguards would be more readily voided as unconstitutional. Without that kind of protection, the legislature, within the limits prescribed by the High Court in Kable (see 1.27), that is, without inappropriately constraining the decision-making power of the Supreme Court, can provide for ongoing detention without trial of its citizens. It can continue to do this without application of the fundamental tenets of the criminal justice system; for example, proof beyond reasonable doubt that the accused has engaged in prohibited conduct (see also Al-Kateb v Godwin (2004) 219 CLR 562; 208 ALR 124 (detention of a non-citizen)).

BURDEN OF PROOF 1.48 Nicholas Cowdery QC said that one of the safeguards against injustice is the presumption of innocence.15 A person should be found guilty of an offence only if the state can satisfy the jury, or the magistrate or judge if there is no jury, that the accused is guilty ‘beyond reasonable doubt’. Woolmington v DPP [1935] AC 462 House of Lords

Viscount Sankey LC, speaking for the House, at 481–482: 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 subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner … the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

1.49 The ‘golden thread’ of English criminal justice has been confirmed in statute. Evidence Act 1995 (NSW) 141 Criminal proceedings: standard of proof (1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.

1.50 Woolmington tells us that the Crown must prove the case beyond reasonable doubt, but what does that term mean? The High Court has insisted that the phrase is one of general application that does not require further explanation. [page 29] Green v R (1971) 126 CLR 28; [1972] ALR 524 High Court of Australia [The appellant was convicted of rape in the ACT Supreme Court. He appealed, inter alia, on the basis that the trial judge had misdirected the jury on the meaning of ‘beyond reasonable doubt’.] The court: [The court reviewed the directions that the trial judge had given to the jury on the question of what is a ‘reasonable doubt’ then continued:] … Sir Owen Dixon in Dawson v R (1961) 106 CLR 1, at p 18 said of a summing up in a criminal trial upon the onus of proof that in his view:

… it is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions. His Honour referred in this connexion to Thomas v R (1960) 102 CLR 584. In Brown v R (1913) 17 CLR 570, at p 584 Barton ACJ in reference to the traditional formula said: I fully recognize that one embarks on a dangerous sea if he attempts to define with precision a term which is in ordinary and common use with relation to this subject matter, and which is usually stated to a jury … as a well understood expression. McTiernan J, in Thomas v R (1960) 102 CLR, at p 587, observed ‘But there is danger in venturing upon a novel elucidation of this principle of the criminal law’ ie of proof beyond reasonable doubt. Kitto J in the same case said (1960) 102 CLR, at p 595: Whether a doubt is reasonable is for the jury to say; and the danger that invests an attempt to explain what ‘reasonable’ means is that the attempt not only may prove unhelpful but may obscure the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable. Further, Windeyer J pointed out (1960) 102 CLR, at pp 604–605: Attempts by paraphrase and embellishment to explain to juries what is meant by satisfaction beyond reasonable doubt are not always helpful. And explanation is not always necessary. It is said that it (‘the time-honoured expression’) ‘was invented by the common-law judges for the very reason that it was capable of being understood and applied by men in the jury box’. The expression proof

beyond a doubt conveys a meaning without lawyers’ elaborations. Those quotations are but some of many admonitions to judges presiding over criminal trials to adhere to and not to attempt needless explanations of the classical statement of the nature of the onus of proof resting on the Crown. … A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis … ‘It is not their task to analyse their own mental processes’: Windeyer J, Thomas v R (1960) 102 CLR, at p 606. A reasonable doubt which a jury may entertain is not to be confined to a ‘rational doubt’, or a ‘doubt founded on reason’ in the analytical sense or by such detailed processes. …

[page 30] 1.51 The Crown must prove the elements of an offence (see 1.64–1.72). The defendant does not have to offer any rebuttal. Generally, the defendant (accused) does not have to prove anything. At most, all the accused has to do is raise a doubt about the prosecution case. The accused is then entitled to the benefit of that doubt. The accused person may have available one or more of the various ‘defences’ recognised by the criminal law (see Chapters 8 and 9). In some cases, the burden to prove a defence does fall upon the accused. This is the case where the accused relies on the defences of mental illness or substantial impairment due to abnormality of mind, or where a particular statute places the burden of proof on the accused (see, for example, Crimes Act s 527C(2)). In these cases the accused need only prove the defence ‘on the balance of probabilities’. See again Woolmington v DPP (above at 1.48), and the Evidence Act 1995 (NSW) s 141(2), which provides:

141 Criminal proceedings: standard of proof (1) … (2) In a criminal proceeding, the court is to find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities.

DISCRETION 1.52 Discretion, exercised by various functionaries in the criminal process, helps shape the outcomes of the criminal law by deciding who will be charged with criminal offences, and what charges will be laid. In this way the criminal law is not simply an objective set of rules, but is influenced and coloured by many players, bringing to bear a variety of often conflicting perspectives. These players include the public, the police, the lawyers, the judiciary, the jury and, most insidiously, the populist media. 1.53 Discretion in the criminal process is both valuable and dangerous. It is valuable in that it allows the circumstances of an offence to be considered, and in effect sets up a filtering process so that various reviews are made to ensure that a prosecution is warranted both on the law, and in the circumstances. On the other hand, discretion can be dangerous, as the decision maker can make the decision for a variety of reasons that may, or may not, be appropriate. For example, a police officer may decide not to prosecute a person because he or she is satisfied that the person will be dealt with by other means (eg, school or family), or may decide not to prosecute because the suspect is a friend or pays a bribe. Generally speaking, discretions exercised by the police or prosecutor cannot be subject to review by an outside authority. The courts have an exceptional power to refuse to hear a prosecution if to hear it would breach the rule against double jeopardy (R v Carroll (2002) 213 CLR 635;

194 ALR 1); or amount to an abuse of process of the court’s jurisdiction, for example, because the prosecution is bound to fail (Ridgeway v R (1995) 184 CLR 19; 129 ALR 41); or it is oppressive (Walton v Gardiner (1993) 177 CLR 378; 112 ALR 289); or the trial has been rendered unfair by delay or other prosecution conduct (Jago v District Court of New South Wales (1989) 168 CLR 23; 87 ALR 577). [page 31] Likiardopoulos v R (2012) 247 CLR 265; 291 ALR 1; [2012] HCA 37 High Court of Australia [The appellant was convicted after trial of murder. It was the Crown allegation that he and five other persons had been involved in the killing of a young intellectually handicapped man in effect kept prisoner at the appellant’s home. Five others had pleaded guilty to manslaughter or accessory after the fact to manslaughter and the Crown accepted those pleas. Only the appellant was committed for trial on murder. The appellant, amongst other grounds, asserted that it was unfair and an abuse of process that he had been prosecuted for murder when the Crown accepted, by their pleas, that the co-offenders were guilty of manslaughter only and yet the Crown was asserting that he was in a joint criminal enterprise with the others or an accessory to their act of murder.] Gummow, Hayne, Crennan, Kiefel and Bell JJ: [footnotes omitted] [37] The appellant maintained that it was unfair that the Crown should be permitted to advance a case at his trial that the principal offenders were persons from whom it had chosen to accept pleas of guilty to lesser offences. The Director’s acceptance of the proffered pleas of guilty involved an exercise of prosecutorial discretion. As Gaudron and Gummow JJ explained in Maxwell v The Queen, the independence and impartiality of the judicial process would be compromised if courts were perceived to be in any way concerned with who is to be prosecuted and for what. For this reason, their Honours considered that certain decisions involved in the prosecution process are insusceptible of judicial review. Further, sanctions available to enforce well established standards of prosecutorial fairness are to be found mainly in the powers of a

trial judge and are not directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or an action for damages. It is well settled that the circumstances which may amount to an abuse of process are not to be narrowly confined and it is possible to envisage cases in which an exercise of prosecutorial discretion may amount to an abuse of the process of the court. However, there is nothing in the conduct of the proceedings arising out of the death of the deceased that has produced unfairness of the kind that would lead a court to intervene to prevent the abuse of its process. [38] Prominent among the factors bearing on the exercise of the prosecutorial discretion is likely to be consideration of the evidence available to establish guilt of the more serious offence. The appellant’s submission that there was “on the record” an acceptance by the court at the instance of the Crown “that these people are not murderers” is apt to mislead in this context. Commonly, the factors informing the Director’s election to accept pleas to lesser offences will not be known. In this case, the respondent outlined a number of them in written submissions. In summary, the considerations were these. At the time the appellant and the others were charged with the murder of the deceased, the case against each was weak. Aydin had made admissions in his interview with the police but these would not have supported his conviction for murder. The Crown did not have evidence to support the conviction of John Likiardopoulos, Singh or Con Likiardopoulos of murder. The sentencing of Aydin and Singh for manslaughter and as an accessory after the fact to manslaughter respectively enabled the Crown to lead evidence from each at the appellant’s trial. This included direct evidence of the appellant’s participation in the assaults on the deceased. The evidence from Aydin and Singh was also evidence which, with other evidence, supported, as a step in proof of the appellant’s accessorial guilt, the finding that one or more of those whom he had directed or encouraged had assaulted the deceased with the intention which made the act murder. [page 32] [39] The moral culpability of the accessory will sometimes be greater than that of the principal offender. It was open to consider that to be the case here. The appellant was a man of mature years.

His dominance over the other persons in the household does not appear to have been in issue. The evidence of his encouragement of the principal offenders included that he had urged Singh to redouble his assaults on the deceased, saying, “Do you remember how it felt when it was happening to you? Is that all you’ve got?” And that he had ordered Singh to take a break before telling him to “get back into it”. And that he had encouraged John Likiardopoulos and Aydin to “get into” the deceased and to continue beating him after he had been cleaned up and brought back into the kitchen/dining area. There was no unfairness and the administration of justice was not brought into disrepute, by reason of the acceptance of pleas of guilty to lesser offences from the persons whom the Crown alleged had acted at the appellant’s urging, in prosecuting the appellant as an accessory to the murder of the deceased. French CJ: … [2] The general unavailability of judicial review in respect of the exercise of prosecutorial discretions rests upon a number of important considerations. One of those considerations, adverted to in the joint judgment, is the importance of maintaining the reality and perception of the impartiality of the judicial process. A related consideration is the importance of maintaining the separation of the executive power in relation to prosecutorial decisions and the judicial power to hear and determine criminal proceedings. A further consideration is the width of prosecutorial discretions generally and, related to that width, the variety of factors which may legitimately inform the exercise of those discretions. Those factors include policy and public interest considerations which are not susceptible to judicial review, as it is neither within the constitutional function nor the practical competence of the courts to assess their merits. Moreover, as their Honours point out, trial judges have available to them sanctions to enforce well-established standards of prosecutorial fairness and to prevent abuses of process. [3] The above considerations, reflected in a number of decisions of this Court referred to in the joint judgment of Gaudron and Gummow JJ in Maxwell, support the proposition that in a practical sense prosecutorial decisions are for the most part insusceptible of judicial review. But as Gaudron and Gummow JJ also pointed out,

the approach of earlier authorities which treated such decisions as unreviewable because they were seen as part of the prerogative of the Crown “may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth”. Further as their Honours observed “it may pay insufficient regard to the fact that some discretions are conferred by statute”. [4] The statutory character of prosecutorial decision-making in Australia today does not lessen the significance of the impediments to judicial review of such decisions, which are created by the constitutional and practical considerations referred to above. However the existence of the jurisdiction conferred upon this Court by s 75(v) of the Constitution in relation to jurisdictional error by Commonwealth officers and the constitutionally-protected supervisory role of the Supreme Courts of the States raise the question whether there is any statutory power or discretion of which it can be said that, as a matter of principle, it is insusceptible of judicial review. That question was not argued in this case and does not need to be answered in order to decide this case. It involves a question arising under the Constitution. I would not wish my agreement with the reasons given in the joint judgment to be taken as acceptance of a proposition that the exercise of a statutory power or discretion by a prosecutor is immune from judicial review for jurisdictional error, however limited the scope of such review may be in practice.

[page 33] 1.54 Flow Chart 1-1 shows some of the contexts in which discretions are applied in the criminal process.

FLOW CHART 1-1: DISCRETION

[Note: The decisions set out in bold type in the flow chart are decisions made by judicial officers (magistrates or judges) in open court where the parties are entitled to address the court and the officers are required to give reasons for their decisions.]

[page 34] If the matter is indictable:

[page 35] 1.55 As can be seen, discretions occur at all levels of the process: A person may witness a crime and choose not to report it or give evidence about it. A police officer decides who to charge, and with what offence.

If it is a serious offence, the prosecuting authority, the Director of Public Prosecutions (DPP), may decide to charge the person with some other offence, or to drop the prosecution altogether — a ‘no bill’. When considering whether to find a ‘no bill’ the DPP may have regard to issues such as the public interest and representations made by the accused’s legal advisers (see the Prosecution Guidelines No 4 at 1.60). A magistrate may decide that there is insufficient evidence to go before a jury, and discharge the defendant. The DPP may decide to prosecute a person even though a magistrate has dismissed the charge. A jury may decide to acquit a clearly guilty person. A judge or magistrate decides what punishment to apply. The Court of Criminal Appeal, in quashing a conviction, may acquit the appellant or order a new trial. 1.56 Note from Flow Chart 1-1 how often the question arises of the appropriate offence for which the accused should be prosecuted. In a summary matter (ie, one heard by a magistrate in a Local Court: see 12.6) this is a matter for the police. In an indictable matter (ie, one heard by a jury in the District or Supreme Court: see 12.21) the police decide the initial charge, the DPP may substitute a different charge for the committal hearing, the magistrate may commit the defendant for trial on some other charge, and the DPP may subsequently decide that a different charge should be brought at the trial. The offence for which the accused stands trial will depend not only on what he or she allegedly did, but also on the assessments of a variety of officials involved in the criminal process. The exercise of discretion means that

some people accused of committing crimes never appear in the courts to be tried. 1.57 Only those decisions set out in bold type in Flow Chart 1-1 are the decisions made by judicial officers (magistrates or judges) in open court (ie, open to the public) where judicial officers are required to give reasons for their decisions. Both the Crown and the accused are entitled to legal representation to make submissions as to the decision the judicial officer should make. 1.58 What follows from the discussion so far is that the criminal law aims to protect individuals and society from harm by prohibiting certain conduct, but it also serves to protect individuals from arbitrary action by the state and its agencies. The agencies that operate in the area of the criminal law are governed by law, as is the process by which ‘guilt’ is determined. There are, however, many factors, such as the role of discretion and the burden of proof, that affect the [page 36] criminal process from the initial decision to arrest and subsequently charge a person, through to the final decision whether or not to convict that person of an offence.

ROLE OF LAWYERS 1.59 Because the criminal law involves a ‘contest’ between the state and the defendant, it is imperative that both sides are represented by competent and ethical lawyers. The primary duty of lawyers for both the Crown (prosecution) and the accused (defence) is to the court and the process, and not to their respective clients. Thus, both sides have essentially similar obligations, although they come to their tasks from differing perspectives.

1.60 A prosecutor represents the state, not the victim (if there is one). His or her duty is not to secure a conviction at all costs, but to ensure that all the evidence is fairly and accurately put before the court. The NSW Director of Public Prosecutions publishes guidelines for prosecutors emphasising their duty to the community. Office of the Director of Public Prosecutions Prosecution Guidelines16 2 Role and Duties of the Prosecutor [Furnished on 20 October 2003] A prosecutor is a “minister of justice”. The prosecutor’s principal role is to assist the court to arrive at the truth and to do justice between the community and the accused according to law and the dictates of fairness. A prosecutor is not entitled to act as if representing private interests in litigation. A prosecutor represents the community and not any individual or sectional interest. A prosecutor acts independently, yet in the general public interest. The ‘public interest’ is to be understood in that context as an historical continuum: acknowledging debts to previous generations and obligations to future generations. In carrying out that function: It behoves him — Neither to indict, nor on trial to speak for conviction except upon credible evidence of guilt; nor to do even a little wrong for the sake of expediency, or to pique any person or please any power; not to be either gullible or suspicious, intolerant or over-pliant: in the firm and abiding mind to do right to all manner of people, to seek justice with care, understanding and good countenance. (per RR Kidston QC, former Senior Crown Prosecutor of New South Wales, in “The Office of Crown Prosecutor (More Particularly in New South Wales)” (1958) 32 ALJ 148). It is a specialised and demanding role, the features of which

need to be clearly recognised and understood. It is a role that is not easily assimilated by all legal practitioners schooled in an adversarial environment. It is essential that it be carried out with the confidence of the community in whose name it is performed. It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence [page 37] relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. (per Rand J in the Supreme Court of Canada in Boucher v The Queen (1954) 110 CCC 263 at p 270). In this State that role must be discharged in the environment of an adversarial approach to litigation. The observance of those canons of conduct is not incompatible with the adoption of an advocate’s role. The advocacy must be conducted, however, temperately and with restraint. The prosecutor represents the community generally at the trial of an accused person. Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.

(per Deane J in Whitehorn v The Queen (1983) 152 CLR 657 at pp 663–664). Nevertheless, there will be occasions when the prosecutor will be entitled firmly and vigorously to urge the prosecution’s view about a particular issue and to test, and if necessary to attack, that advanced on behalf of an accused person or evidence adduced by the defence. Adversarial tactics may need to be employed in one trial that may be out of place in another. A criminal trial is an accusatorial, adversarial procedure and the prosecutor will seek by all proper means provided by that process to secure the conviction of the perpetrator of the crime charged. 3 Fairness [Furnished on 20 October 2003; amended 1 June 2007] Having regard to the role and duties of the prosecutor as described in Guideline 2, a prosecutor must act impartially and fairly according to law. This will involve the prosecutor informing the defence and the court of directions, warnings or authorities which may be appropriate in the circumstances of the case, even where unfavourable to the prosecution. It will also involve identifying portions of evidence which may be objectionable and declining to open on such evidence. As a general rule the prosecution must offer all its proofs during the presentation of its case (and, for example, should not first adduce evidence of an admission which is relevant to a fact in issue during cross-examination of an accused person). Cross-examination of an accused person as to credit or motive must be fairly conducted. Material put to an accused person must be considered on reasonable grounds to be accurate and its use justified in the circumstances of the trial. (See also Barristers’ and Solicitors’ Rules 63 and 64 — Appendix B.) The prosecutor owes a duty of fairness to the community. The community’s interest is twofold: that those who are guilty be brought to justice and that those who are innocent not be wrongly convicted. Procedural Fairness to the Prosecution The prosecution’s right to be treated fairly must not be overlooked. In Moss v Brown (1979) 1 NSWLR 114 at 126 the Court of

Appeal said: In any discussion of fairness, it is imperative to consider the position of all parties. It is sometimes forgotten that the Crown has rights and, as it has a heavy responsibility in [page 38] respect of the invoking and enforcement of the criminal law, which includes seeing that the public revenue is not imposed upon, it is entitled to maintain those rights, even if they may bear heavily upon some accused. As Lord Goddard CJ said in R v Grondkowski (1946) KB 369 at 372: ‘The judge must consider the interests of justice as well as the interests of the prisoners’. Ensuring the prosecution’s right to fairness may require a prosecutor to seek an adjournment of a matter due to insufficient notice of listing being given to the prosecution or to allow an appeal pursuant to section 5F of the Criminal Appeal Act 1912 to be considered. 4 The Decision to Prosecute [Furnished 20 October 2003; amended 1 June 2007] The prosecution process is usually enlivened by a suspicion, an allegation or a confession. Not every one, however, will result in a prosecution. It has never been the rule in this country … that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should … prosecute ‘wherever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest’. That is still the dominant consideration. (per Sir Hartley Shawcross QC, UK Attorney General and former Nuremberg trial prosecutor, speaking in the House of Commons on 29 January 1951).

That statement applies equally to the position in New South Wales. The general public interest is the paramount criterion. The question whether or not the public interest requires that a matter be prosecuted is resolved by determining: (1) whether or not the admissible evidence available is capable of establishing each element of the offence; (2) whether or not it can be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law; and if not (3) whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest. The first matter requires no elaboration: it is the prima facie case test. The second matter requires an exercise of judgment which will depend in part upon an evaluation of the weight of the available evidence and the persuasive strength of the prosecution case in light of the anticipated course of proceedings, including the circumstances in which they will take place. It is a test appropriate for both indictable and summary charges. The third matter requires consideration of many factors which may include the following: 3.1

the seriousness or, conversely, the triviality of the alleged offence or that it is of a “technical” nature only;

3.2

the obsolescence or obscurity of the law;

3.3

whether or not the prosecution would be perceived as counter-productive; for example, by bringing the law into disrepute;

3.4

special circumstances that would prevent a fair trial from being conducted;

3.5

whether or not the alleged offence is of considerable general public concern;

3.6

the necessity to maintain public confidence in such basic institutions as the Parliament and the courts; [page 39]

3.7

the staleness of the alleged offence;

3.8

the prevalence of the alleged offence and any need for deterrence, both personal and general;

3.9

the availability and efficacy of any alternatives to prosecution;

3.10

whether or not the alleged offence is triable only on indictment;

3.11

the likely length and expense of a trial;

3.12

whether or not any resulting conviction would necessarily be regarded as unsafe and unsatisfactory;

3.13

the likely outcome in the event of a finding of guilt, having regard to the sentencing options available to the court;

3.14

whether or not the proceedings or the consequences of any resulting conviction would be unduly harsh or oppressive;

3.15

the degree of culpability of the alleged offender in connection with the offence;

3.16

any mitigating or aggravating circumstances;

3.17

the youth, age, maturity, intelligence, physical health, mental health or special disability or infirmity of the alleged offender, a witness or a victim;

3.18

the alleged offender’s antecedents and background, including culture and language ability;

3.19

whether or not the alleged offender is willing to co-operate in the investigation or prosecution of others, or the extent to which the alleged offender has done so;

3.20

the attitude of a victim or in some cases a material witness to a prosecution;

3.21

whether or not and in what circumstances it is likely that a confiscation order will be made against the offender’s property;

3.22

any entitlement or liability of a victim or other person or body to criminal compensation, reparation or forfeiture if prosecution action is taken; and/or

3.23

whether or not the Attorney General’s or Director’s consent is required to prosecute.

The applicability of and weight to be given to these and other factors will vary widely and depend on the particular circumstances of each case. A decision whether or not to proceed must not be influenced by: (i)

the race, religion, sex, national origin, social affiliation or political associations, activities or beliefs of the alleged offender or any other person involved (unless they have special significance to the commission of the particular offence or should otherwise be taken into account objectively);

(ii)

personal feelings of the prosecutor concerning the offence, the alleged offender or a victim;

(iii)

possible political advantage or disadvantage to the government or any political party, group or individual. …

1.61 A prosecutor is also a member of the legal profession and is bound by the rules made under the Legal Profession Act 1987 (NSW) that govern a lawyer’s conduct. Both the NSW Law Society (for solicitors) and the NSW Bar Association (for barristers) have published rules imposing obligations on prosecutors and defence lawyers. The solicitors’ rules are set out by way of illustration. [page 40] NSW Law Society Solicitors’ Rules 2013 29 Prosecutor’s duties 29.1

A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.

29.2

A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that

case. 29.3

A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.

29.4

A prosecutor must not argue any proposition of fact or law which the prosecutor does not believe on reasonable grounds to be capable of contributing to a finding of guilt and also to carry weight.

29.5

A prosecutor must disclose to the opponent as soon as practicable all material (including the names of and means of finding prospective witnesses in connection with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused, unless the prosecutor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person.

29.6

A prosecutor who has decided not to disclose material to the opponent under Rule 29.5 must consider whether:

29.6.1

the charge against the accused to which such material is relevant should be withdrawn; or

29.6.2

the accused should be faced only with a lesser charge to which such material would not be so relevant.

29.7

A prosecutor must call as part of the prosecution’s case all witnesses:

29.7.1

whose testimony is admissible and necessary for the presentation of all the relevant circumstance [sic];

29.7.2

whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue;

UNLESS: (i)

the opponent consents to the prosecutor not calling a particular witness;

(ii) the only matter with respect to which the particular witness can give admissible evidence has been dealt with by an

admission on behalf of the accused; or (iii) the only matter with which the particular witness can give admissible evidence goes to establishing a particular point already adequately established by another witness or other witnesses; or (iv) the prosecutor believes on reasonable grounds that the testimony of a particular witness is plainly untruthful or is plainly unreliable, provided that the prosecutor must inform the opponent as soon as practicable of the identity of any witness whom the prosecutor intends not to call on any ground within (ii), (iii) or (iv) together with the grounds on which the prosecutor has reached that decision. [page 41] 29.8

A prosecutor who has reasonable grounds to believe that certain material available to the prosecution may have been unlawfully or improperly obtained must promptly:

29.8.1

inform the opponent if the prosecutor intends to use the material; and

29.8.2

make available to the opponent a copy of the material if it is in documentary form.

29.9

A prosecutor must not confer with or interview any accused except in the presence of the accused’s legal representative.

29.10

A prosecutor must not inform the court or an opponent that the prosecution has evidence supporting an aspect of its case unless the prosecutor believes on reasonable grounds that such evidence will be available from material already available to the prosecutor.

29.11

A prosecutor who has informed the court of matters within Rule 29.10, and who has later learnt that such evidence will not be available, must immediately inform the opponent of that fact and must inform the court of it when next the case is before the court.

29.12

A prosecutor:

29.12.1 must correct any error made by the opponent in address on sentence; 29.12.2 must inform the court of any relevant authority or legislation bearing on the appropriate sentence; 29.12.3 must assist the court to avoid appealable error on the issue of sentence; 29.12.4 may submit that a custodial or non-custodial sentence is appropriate; and 29.12.5 may inform the court of an appropriate range of severity of penalty, including a period of imprisonment, by reference to relevant decisions. 29.13

A solicitor who appears as counsel assisting an inquisitorial body such as the Criminal Justice Commission, the Australian Crime Commission, the Australian Securities and Investments Commission, the ACCC, a Royal Commission or other statutory tribunal or body having investigative powers must act in accordance with Rules 29.1, 29.3 and 29.4 as if the body is a court referred to in those Rules and any person whose conduct is in question before the body is an accused referred to in Rule 29.

1.62 Defence lawyers act for their clients, who are entitled to be acquitted if the Crown case is not established beyond a reasonable doubt. In Tuckiar v R (1934) 52 CLR 335, counsel for the accused indicated to the trial judge that ‘[h]e was in a predicament, the worst predicament that he had encountered in all his legal career’. His predicament arose because the accused had admitted his guilt during a confidential conference. On appeal to the High Court, the majority (Gavan Duffy CJ, Dixon, Evatt and McTiernan JJ) said at 346: Why he [counsel] should have conceived himself to have been in so great a predicament, it is not easy for those experienced in advocacy to understand. He had a plain duty, both to his client and to the Court, to press such rational considerations as the evidence fairly gave rise to in favour of complete acquittal or conviction of manslaughter only. No

doubt he was satisfied that through Paddy he obtained the uncoloured product of his client’s mind, although misgiving on this point would have been pardonable; but, even if the result was that the correctness of Parriner’s version was conceded, it was by no means a hopeless contention of fact that the homicide

[page 42] should be found to amount only to manslaughter. Whether he be in fact guilty or not, a prisoner is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted.

1.63 A defence lawyer may take any legitimate step to question the Crown case but must not mislead the court. NSW Law Society Solicitors’ Rules 20 Delinquent or guilty clients 20.1

A solicitor who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:

20.1.1

has lied in a material particular to the court or has procured another person to lie to the court;

20.1.2

has falsified or procured another person to falsify in any way a document which has been tendered; or

20.1.3

has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court;

must – 20.1.4

advise the client that the court should be informed of the lie, falsification or suppression and request authority so to inform the court; and

20.1.5

refuse to take any further part in the case unless the client authorises the solicitor to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the solicitor to do so but otherwise may not inform the court of the lie, falsification or suppression.

20.2

A solicitor whose client in criminal proceedings confesses guilt to the solicitor but maintains a plea of not guilty:

20.2.1

may cease to act, if there is enough time for another solicitor to take over the case properly before the hearing, and the client does not insist on the solicitor continuing to appear for the client;

20.2.2

in cases where the solicitor continues to act for the client: (i)

must not falsely suggest that some other person committed the offence charged;

(ii) must not set up an affirmative case inconsistent with the confession; (iii) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged; (iv) may argue that for some reason of law the client is not guilty of the offence charged; and (v) may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged; 20.2.3

must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence. [page 43]

20.3

A solicitor whose client informs the solicitor that the client intends to disobey a court’s order must:

20.3.1

advise the client against that course and warn the client of its dangers;

20.3.2

not advise the client how to carry out or conceal that course; and

20.3.3

not inform the court or the opponent of the client’s intention unless: (i)

the client has authorised the solicitor to do so beforehand; or

(ii) the solicitor believes on reasonable grounds that the client’s conduct constitutes a threat to any person’s safety.

ELEMENTS OF A CRIME Introduction 1.64 The concept of the ‘elements of a crime’ is fundamental to the study of criminal law. Every crime is made up of ‘elements’, sometimes referred to as ‘ingredients’: these are essential facts. The Crown must prove all of the elements beyond reasonable doubt. If it does not, the accused cannot be convicted. 1.65 The elements of the crime can usually be divided into the physical elements and the mental elements. The physical elements are those actions or omissions that are prohibited (in the case of murder, for example, any act or culpable omission of the accused that caused the death of the deceased). The mental element is the state of mind that must have existed at the time of the physical element (in the case of murder, for example, an intention to kill or inflict grievous bodily harm or recklessness as to death). 1.66 In 1990 the Standing Committee of Australian Attorneys-General established a committee to review the criminal law in each Australian jurisdiction with a view to developing a Model Criminal Code that could be adopted across the country. The Criminal Law Officers Committee began work on a Model Criminal Code and that work

continues through the Model Criminal Code Officers Committee (MCCOC). Some of the Model Criminal Code has been enacted into Commonwealth law (see Criminal Code Act 1995 (Cth) (the Criminal Code)) and some of MCCOC’s recommendations have been incorporated into New South Wales law. In this book we shall make reference both to the various discussion papers and reports that have been produced by MCCOC and also to the Criminal Code. The discussion papers and reports are valuable in that they identify issues in the law and summarise the law in relevant areas. The Criminal Code is an important part of the criminal law operating in New South Wales. 1.67 MCCOC, in its Model Criminal Code Report, Chapters 1 and 2: General Principles of Criminal Responsibility,17 accepted that it was usual to analyse criminal offences [page 44] into the actus reus and the mens rea, but preferred to adopt the terms ‘physical elements’ and ‘fault elements’. The report states at p 7: ‘Physical elements’ refer to external events. ‘Fault elements’ refer to the state of mind or fault of the accused. MCCOC’s analysis has been adopted in Ch 2 of the Criminal Code, ‘General Principles of Criminal Responsibility’. 1.68 While this book adopts the same terminology as MCCOC, many of the judgments extracted here use the terms actus reus and mens rea. For practical purposes, the term ‘physical element’ is synonymous with ‘actus reus’ and ‘fault element’ is synonymous with ‘mens rea’.

Physical elements 1.69 The physical elements of crimes can generally be divided into three categories: 1.

The first is where some action is prohibited, such as

driving in excess of the speed limit. 2.

The second is where there is some prohibited effect, for example, ‘causing death’. Here it is not what was done that is in issue, but what consequence was caused.

3.

The third category is where the circumstances of an action are part of the required physical element of the crime. For example, to have consensual sexual intercourse is not a crime, but it is if one of the parties is under the age of 16 years. In that case, the external circumstances change an otherwise lawful act into an unlawful one.

Fault elements 1.70 The ‘fault element’ refers to the state of mind of the accused that must co-exist with the physical elements of the crime in order for the crime to be complete. Without the necessary fault element or elements, a person is not guilty of the crime, no matter how reprehensible or stupid he or she may have been. The fault required to establish a crime may be subjective (ie, what did the accused know or think?) or objective (what would a reasonable person in the position of the accused have realised?). 1.71 Depending on the offence, the fault element may be established by proving one or other of the following: 1.

Intention: where the accused foresaw the consequences of his or her actions or culpable omissions and actively desired that the consequences should occur.

2.

Recklessness: where the accused foresaw the consequences of his or her actions or culpable omissions, but proceeded in the face of that foresight. Generally the foresight required for ‘recklessness’ to

apply is a foresight of the possibility of the consequences of the conduct or omission. For example, in the offence of sexual assault, recklessness as to the complainant’s lack of consent to intercourse is a foresight of the possibility that the complainant was not consenting and nevertheless proceeding to have intercourse [page 45] (see 6.14–6.42). However, in the offence of murder, reckless indifference to human life is made out by a foresight of the probability of death resulting from the act or omission. This is due to the wording of s 18 of the Crimes Act (see 2.19 and following). A person can be charged with a reckless offence even if that person intended the result; that is, it is not possible for him or her to argue that he or she was not reckless because he or she intended what happened (see Crimes Act s 4A, and Criminal Code (Cth) s 5.4). 3.

Knowledge: where the accused was aware of the existence of the physical element required for the offence, for example, that he or she had some thing in his or her possession, such as a prohibited substance, that it was unlawful to have.

4.

Negligence: although the accused did not foresee that the consequence of his or her actions would occur, a reasonable person in the accused’s position would have had that foresight.

‘Wilful blindness’ has been suggested as a further category of ‘fault’; that is, where the accused deliberately refrains from making inquiries in order to avoid finding out some essential facts (R v Dykyj (1993) 29 NSWLR 672). It is clear, however, that wilful blindness is not a separate category of fault element, but is evidence that the jury may use to decide if the

accused had the necessary knowledge, intention or foresight, or was reckless, depending on the fault element required for the crime in question (R v Crabbe (1985) 156 CLR 464; R v Dykyj (1993) 29 NSWLR 672). 1.72 Not all offences require proof of the same fault elements. Some offences require proof of intention or recklessness, others knowledge, and others negligence. Some offences can be proved by a combination of these fault elements. One role of the criminal lawyer is to analyse the particular offence to determine the particular fault elements for that offence. The Criminal Code has default fault elements that apply where no fault element is specifically mentioned in the section creating the offence, see s 5.6 of the Code.

Motive 1.73 Intention and motive are not the same thing. In criminal law it is said that motive is irrelevant. Motive is ‘a circumstance or thing which induces a person to act. … [T]he motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility’ (RN Howie (ed), Butterworths Australian Criminal Law Dictionary, Butterworths, Sydney, 1997, p 1310). De Gruchy v R (2002) 211 CLR 85; 190 ALR 441; [2002] HCA 33 High Court of Australia [De Gruchy was charged with the murder of a number of his family members. As part of his defence, he raised his good character, his good relationships with his family and the failure of the Crown to show any motive as to why he would kill his family. He was [page 46] convicted by a jury and appealed to the NSW Court of Criminal

Appeal. His appeal was rejected and he appealed to the High Court of Australia.] Gaudron, McHugh and Hayne JJ: [footnotes omitted] 28. Motive, if proven, is a matter from which a jury might properly infer intention, if that is in issue, and, in every case is relevant to the question whether the accused committed the offence charged. … 29. Although absence of motive is relevant, the appellant’s argument overlooks a critical distinction between absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other. In the present case, there was no evidence of motive, which is not the same thing as proven absence of motive. And although the character evidence called on behalf of the appellant tended to negate possible motive, it by no means established the absence of motive. 30. The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of ‘positive significance’, either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive. Kirby J: 40. Jeremy Bentham, in his essays on evidence, remarked on the problematic relevance of a possible motive, in a circumstantial case, to proving that a person was guilty of an alleged offence. He said: ‘[E]very child may be a gainer by the death of his father; yet, when a father dies, nobody thinks of attributing his death to his children.’ 41. This appeal involves a case where the accused was tried by jury and found guilty of killing a parent, as well as two siblings. The evidence at the trial revealed no motive for the crimes. On the contrary, some evidence was tendered to suggest an absence of motive. The first question for this Court is whether the instructions

of the trial judge on the subject of motive involved a material misdirection of the jury, thereby requiring a retrial. The second question is whether, by taking into account the want of a proved motive when considered with all the evidence, the guilty verdicts are unreasonable, obliging the substitution of verdicts of acquittal. 42. The background facts are stated in the joint reasons of Gaudron, McHugh and Hayne JJ and in the reasons of Callinan J. The course of the trial, the addresses of counsel and the trial judge’s instructions to the jury are also set out in those reasons. 43. I agree that the appeal must be dismissed. I agree generally with the joint reasons. I agree specifically with Callinan J that the treatment by the trial judge of the issue of ‘disturbed mind’ was neither unreasonable nor unfair, having regard to the way that counsel had addressed the jury. His Honour firmly told the jury that there was no evidence of a mental infirmity of mind on the part of the appellant. I do not consider that there was any misdirection on that score. However, I wish to add some comments of my own concerning judicial directions on the issue of motive and on the proper approach, in the circumstances, to the submission that the verdicts are unreasonable. … 44. The only law that it is necessary for the jury to know is so much ‘as must guide them to a decision on the real issue or issues in the case’. The trial judge is obliged to decide what the real issues are and to tell the jury, in the light of that decision, what the relevant law is. The judge should explain the law ‘not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case’. [page 47] 45. Because obligatory instructions, out of context, can sometimes lead to artificiality in the communication between a judge and the jury (and to directions that are of little relevance to the issues of the case), there is a contemporary tendency to reduce the number and detail of such obligatory directions. Of course, there remain some subjects upon which judicial instruction is compulsory. In criminal trials, I favour the trend to more economy in judicial directions on the law. 46. Circumstantial cases and inferences: It is of the nature of many

crimes that their perpetrators perform the deeds in secret. They do so in the hope of avoiding observation, detection and consequent prosecution and conviction. In such cases, a prosecutor must necessarily rely upon circumstantial evidence to prove the case against the accused. Circumstantial evidence ‘can, and often does, clearly prove the commission of a criminal offence’. 47. In Australia, but not in England and some other countries, a rather strict approach is taken to the instruction that must be given about circumstantial evidence. The jury must be warned that the primary facts, from which an inference of guilt is to be drawn, must themselves be proved beyond reasonable doubt. The inference of guilt must be the only inference that is reasonably open on all the primary facts which the jury find to be established to the requisite standard of proof. 48. There is nothing in the law that renders proof by circumstantial evidence unacceptable or suspect of itself — ‘[i]t is no derogation of evidence to say that it is circumstantial.’ Sometimes circumstantial evidence constituting a ‘chain of other facts sworn to by many witnesses of undoubted credibility’ can actually be stronger than disputable positive eye-witness evidence. However, circumstantial evidence necessarily calls upon processes of reasoning that involve the drawing of inferences from a jigsaw of established facts. Amongst the pieces of the jigsaw (and any gaps in the picture that it presents) may be evidence or lack of evidence concerning motive. It is when there is such evidence (and sometimes where there is no such evidence) that a judge, conformably with the primary rule, may be expected to assist the jury on the use that may be made of any conclusions that the jury may reach concerning the presence or absence of motive. 49. The mind–body dualism: Discourse about the significance of evidence (or lack of evidence) concerning an accused’s motive for committing an alleged crime must be viewed against the background of a large philosophical debate, that needs only to be mentioned, and the specific concern of the criminal law about proof of an accused’s guilty intent. 50. According to Waller and Williams, ‘[a]lmost all expositions of criminal law theory accept, without discussion, the Cartesian

theory of mind and body … That is to say, they treat mental operations as being related to physical activity as cause is related to effect.’ Many philosophers and some legal scholars have rejected this dualism as ‘implausibly mechanistic’. This is not the occasion to explore the assumptions that are commonly made (and that form the basis of judicial opinions and instructions to juries) concerning the way intentions may sometimes grow out of the emotions involved in motivation and lead on to criminal acts and omissions. Theorists may criticise the assumptions inherent in all such reasoning as ‘robotic’. However, our legal system continues to observe an ‘ongoing commitment to a fairly unreflective mind– body dualism’. 51. Distinguishing between the usually essential ingredient of a criminal intention and a person’s desire, purpose or motive will sometimes be important. But, as such, motive is rarely, if ever, an element of a criminal offence. Motive must not, therefore, be confused with intention. Motive may be ‘the reason that nudges the will and prods the mind to indulge the criminal intent’. It may be the feeling that prompts the operation of the will, [page 48] the ulterior object of the person willing. It generally has two evidential aspects. These will be the emotion that is supposed to have led to the act and the external fact that is the possible exciting cause of such emotion, but not identical with it. 52. Such analysis of motives and intentions assumes the capacity to dissect the contributing forces of human will and human action in the precise ways described. Whether this is physiologically or psychologically sound, or philosophically satisfying, are not questions that judges or jurors generally have the time or inclination to ponder, still less answer. 53. Motive is neither necessary nor sufficient: Because motive, as such, is not an ingredient of a legal offence (such as the murders with which the appellant was charged), it is not necessary, as a matter of law, for the prosecution to prove that an accused had a particular motive, still less one to commit the offence in question. This rule is based not only upon sound legal analysis of the actual ingredients of the offence. It is also grounded in highly practical

considerations. The United States Supreme Court in Pointer v United States 151 US 396 (1894) at 413 explained: The law does not require impossibilities. The law recognizes that the cause of the killing is sometimes so hidden in the mind and breast of the party who killed, that it cannot be fathomed, and as it does not require impossibilities, it does not require the jury to find it. 54. Yet even if a motive can be proved, as part of the circumstantial case which the prosecutor seeks to build against the accused, it will not, of itself, be sufficient to establish guilt of the offence. A motive may, in the circumstances, be so remote or unlikely that it makes any conversion of emotion into action an unlikely possibility. A person may hate another but be unwilling, or unable, to convert such hate into action or be restrained by fear of detection and punishment: The mere fact … [that] a party being so situated that an advantage would accrue to him from the commission of a crime, amounts to nothing, or next to nothing, as a proof of his having committed it. … Still, under certain circumstances, the existence of a motive becomes an important element in a chain of presumptive proof. 55. Motive and proof: It is because motive (or lack of it) will sometimes be considered highly relevant to the drawing of inferences and the pursuit of the chain of proof, that questions can arise in a criminal trial as to what the judge should tell the jury about the subject. The reason that assistance is sometimes necessary follows from the experience of humanity that ordinary people ‘do not act wholly without motive’. It is for just such a consideration that evidence of motive is generally regarded as admissible in criminal cases, because it is thought to make it more likely that the crime was committed. It was also upon such bases of ‘sound sense’ and common reasoning that this Court, in Plomp v The Queen (1963) 110 CLR 234, a case involving the drowning of the accused’s wife whilst swimming with him, upheld the proof of the facts that the husband had formed a liaison with another woman, to whom he had represented himself to be a widower and whom he had promised to marry.

56. In the cases before Plomp there had sometimes been suggestions that evidence of motive should not be received without some independent proof of the accused’s involvement in the crime first being established. That approach had grown out of a concern that too much weight might otherwise be accorded by a jury to evidence of motive. Occasionally, the exploration of the motives of a witness or of the accused may open up impermissible considerations, having regard to the accusatorial nature of the criminal trial. However, the decisions of this Court have consistently recognised that, in some circumstances in criminal trials, evidence of motive may be ‘of the greatest importance’. … 57. Judicial instructions on motive: It follows from the foregoing that a number of general propositions can be accepted to guide judges in the consideration of whether they [page 49] should give instructions to a jury concerning motive, where that issue has arisen as a live one in the course of the trial, and if so in what terms: (1) No general direction can be formulated to accommodate all the different circumstances that can arise. If any directions are given on the subject of motive, they should be brief because the consideration of the relevance of motive (or lack of it) is quintessentially a task for the jury, viewing questions about motive in the context of the evidence as a whole. (2) Where the prosecution has not sought, or has failed, to prove a motive on the part of the accused for the crime, the judge may consider whether it is appropriate to make it clear to the jury that the prosecution has no obligation to show a possible motive, and that the absence of a proved motive cannot as a matter of law be fatal to its case. Sometimes the precise motives of individuals (if any) will never be known to anyone other than themselves. In such circumstances, it would be completely unreasonable to require the prosecution to prove a motive and the law does not impose that obligation. (3) Where a motive of some kind is proved by the evidence, but it appears a trivial one, disproportionate to the crime alleged, it may be proper for the judge to draw such disproportion to the

notice of the jury, in fairness to the accused, given that ‘[t]he stronger the motive the more influence it is likely to have [on the jury]’. On the other hand, the judge may also point out that proportion in such matters will sometimes be absent. To reasonable and law abiding citizens many serious crimes appear to have been committed upon trivial motives, wholly disproportionate to the gravity of the wrong. (4) Where the prosecution has established strong evidence of a motive, it will often be necessary to warn the jury that they must look at all the circumstances of the case and not be unduly affected by the evidence that the accused had a motive to commit the crime. This is because of the fact that many who have powerful motives to offend never do so. Motivation is simply one item of the evidence in the case that may tend to show that a particular person committed an alleged act. The jury may therefore need to be reminded that allowance should be made for the fact that having a motive, and even expressing it, does not, as such, constitute proof of involvement in a crime. (5) Where there is no evidence that the accused had a motive to commit the crime alleged, that is ‘always a fact in favour of the accused’. There is some authority to suggest that a trial judge need not draw that fact to the notice of the jury. However, especially in circumstances of a heinous crime, if a judge gives any direction about motive, it would generally be fair and prudent to draw to the jury’s notice the absence of proved motive as a consideration favouring the accused. As Griffith CJ observed: ‘the more heinous the act … the more important becomes the question of motive’. If none is proved, that is a consideration that the jury will need to weigh in judging whether the prosecution has proved the guilt of the accused to the criminal standard. (6) Nonetheless, if any such comment is made, it should be balanced by drawing attention to the obvious fact that, in a particular case, ‘there may be a motive, and perhaps a strong one, but no evidence of it available’. … 58. The present case and conclusions: When regard is had to the foregoing general principles, and the overriding need to provide

the jury with a relevant, comprehensible and balanced instruction on the applicable law, I am not convinced that the charge given to the jury in the present case concerning motive fell short of the legal requirements. 59. This was not simply a case of lack of motive — a missing part of the jigsaw that the prosecution had failed to provide. It was a case where the appellant had set out affirmatively to prove the absence of motive. He did this by calling evidence of his own [page 50] good character (suggested to be incompatible with such terrible crimes) and by calling the testimony of witnesses that is referred to in the joint reasons. Both the prosecutor and counsel for the appellant addressed the jury concerning the absence of evidence of motive. In discussion between the trial judge and counsel before the judge’s charge was delivered, the issue of motive was raised. Counsel for the appellant did not contest that the prosecution had no obligation to establish motive; nor could he have done so. 60. The judge’s directions about motive followed the instructions concerning the use to which the jury could put the evidence of the appellant’s good character. Correctly, the judge told the jury that such character evidence could be regarded as pointing to the unlikelihood that the appellant would have conducted himself in the way alleged by the prosecution. He also told the jury that such evidence could persuade them to give greater weight to his sworn testimony. He did not incorrectly tell the jury that the absence of proof of motive was irrelevant to their deliberations. Such a statement would have been erroneous and a material misdirection. 61. On the issue of motive, the judge accurately told the jury that the prosecution was not required to prove a motive. He informed them that the use they made of the question of motive was for them to evaluate. He pointed out that it is ‘comforting to an ordinary human being where you are seeking to assess somebody’s action to know why they did it’. 62. Having opened up the issue of motive and made the foregoing comments, the judge did not tell the jury that the want of proof by the prosecution of any motive on the part of the appellant was a factor that the jury might conclude supported the appellant’s

protestations of innocence. He merely reminded them of the prosecutor’s statement, in address, that some ‘crimes of great violence have been committed without motive’. In my view, it would have been preferable had his Honour balanced his reiteration of the Crown’s assertions with instruction to the jury concerning the significance that the lack of proof of motive might have in their estimation of the evidence. Instead, his Honour became diverted into a suggestion, raised by counsel, that whoever had committed the offence had a ‘disturbed mind’ and that, therefore, rational conduct in accordance with a proved motive was not to be expected in this case. 63. With respect, I do not agree with the joint reasons that the judge was exempted from calling to the attention of the jury the lack of evidence of motive on the basis that, had he raised this, he would have been obliged to point to the distinction between a lack of proof of motive and the absence of motive in fact. A proper direction, in the present case, could not have ignored the affirmative evidence called by, and for, the appellant (mentioned in the joint reasons) which sought to establish positively, from his relationships with the deceased family members and his conduct before and after the killings, that he had no motive in fact to act in the way alleged. 64. Whilst expressing a sense of unease concerning the balance of the judge’s instruction on motive, I have concluded that there was no material misdirection in the circumstances. The law does not establish a set formula to be followed on this subject. It is undesirable that it should do so. So far as it went, what the judge said was accurate. There was no legal obligation upon him to go further. He was not expressly asked to do so. Instead, the debate at trial became enmeshed in the side issue of ‘disturbed mind’ from which there was, ultimately, adequate extrication. I remind myself, once again, of the need to avoid an unduly censorious scrutiny of a judge’s instruction to the jury ‘sentence by sentence, in search for a fault’. I am not prepared in the circumstances to hold that any want of balance in the judge’s instructions on the issue of motive amounted to a material misdirection vitiating the lawfulness of the appellant’s trial. [In a separate judgment, Callinan J agreed that the appeal should be dismissed. Appeal dismissed.]

[page 51] 1.74 Two people can have the same intention but different motives. Take two individuals who each kill their fathers, one with the motive of inheriting the family fortune, and the other in response to the father’s wish to avoid further suffering. Their motives are different, but their intention is the same, that is, to cause the death of their father. It is not necessary to establish an accused person’s motive to establish the required fault element. Each is guilty of murder but motive may be relevant when sentencing (see 12.46 and following). 1.75 Proof of an intention to bring about a certain result for the purpose or proving an offence must be distinguished from proof of a motive in bringing about a certain result. While proof of motive might aid in proving the accused’s intention it cannot substitute for intention or purpose. Zaburoni is also extracted and considered at 5.43. Zaburoni v R [2016] HCA 12 High Court of Australia [Zaburoni was convicted of an offence under the Criminal Code (Qld) of unlawfully transmitting a serious disease to another with intent to do so. The disease was HIV which was transmitted to the complainant by having unprotected intercourse with the appellant. The appeal to the High Court was concerned with whether the evidence proved the intention of the appellant to transmit HIV to the complainant.] Kiefel, Bell and Keane JJ: [footnotes omitted] … 14 Where proof of the intention to produce a particular result is made an element of liability for an offence under the [Queensland] Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct. As the respondent correctly submits, knowledge or foresight of result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code. In the last-mentioned

respect, the Code is distinguished from its Commonwealth counterpart, which allows that a person has intention with respect to a result if the person is aware that the result will occur in the ordinary course of events. 15 Where the accused is aware that, save for some supervening event, his or her conduct will certainly produce a particular result, the inference that the accused intended, by engaging in that conduct, to produce that particular result is compelling. Nonetheless, foresight that conduct will produce a particular result as a “virtual certainty” is of evidential significance and under the Code it remains that the trier of fact must be satisfied that the accused meant to produce the particular result. 16 It is necessary to say something in this context about the concepts of purpose, desire and motive. Discussions of proof of intention sometimes equate desire with motive. The respondent’s submissions treat motive and purpose as synonyms. This is in aid of the submission that motive is irrelevant to criminal responsibility under the Code. 17 In ordinary parlance, purpose, desire and motive may be used interchangeably. However, in law motive describes the reason that prompts the formation of the accused’s intention. The accused may fire a pistol at his business partner. His intention or purpose in pulling the trigger may be to kill. His motive for forming that intention may be to avoid repaying a debt he owes to his partner. Where liability for an offence requires proof of the intention to produce a particular result, the prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in the conduct. Purpose here is not to be equated with motive. [page 52] 18 In Willmot, Connolly J observed that the notion of desire is not involved in proof of intention. It is true that in law a person may intend to produce a particular result without desiring that result. Nonetheless, as Professor Williams has observed, intention generally does involve desire. Illustrations of the distinction between desire and intention commonly raise a false issue. Thus, Professor Gillies illustrates the proposition that intention in the criminal law does not connote desire by the example of the

accused who sets fire to his enemy’s house so as to spite the enemy even though he regrets the destruction of the house because it is a masterpiece of period architecture. Accepting the accused’s refined sense of regret, it hardly seems apt to say that in setting fire to the house he did not desire to destroy it. A direction that a person may do something, fully intending to do it although the person does not desire to do it may often be confusing. Unless the facts truly raise the issue the direction should not be given. 19 Proof of the s 317(b) offence required the prosecution to establish beyond reasonable doubt that, at the time the appellant engaged in unprotected sexual intercourse with the complainant, he had as a purpose the transmission of HIV to her. A person may engage in conduct having more than one object or purpose. The complainant said the appellant preferred unprotected sexual intercourse because it was more pleasurable. Accepting that the appellant engaged in unprotected sexual intercourse because it gave him pleasure is not necessarily inconsistent with proof that he also had the intention thereby of transmitting HIV to the complainant. It is the identification of evidence from which the latter inference could be drawn to the criminal standard that is the issue in this appeal … … 44 A rational inference open on the evidence is that the appellant engaged in regular unprotected sexual intercourse with the complainant because it enhanced his sexual pleasure and he was reckless of the risk of transmitting HIV to her. The existence of that inference lessens the force of reasoning to a conclusion that the appellant intended to transmit the disease from the fact of frequent unprotected sexual intercourse. Apart from frequent unprotected sexual intercourse, there is no evidence to support the inference that the appellant had that intention. And the evidence fell well short of proving that the appellant believed that it was virtually certain that he would pass on HIV by regular unprotected sexual intercourse. [The appeal was allowed and the conviction for the offence of intentionally transmitting the disease quashed.]

Coincidence of physical and fault elements

1.76 Both the physical and the fault elements must be present at the same time in order to constitute the offence. In Meyers v R (1997) 147 ALR 440 the accused conceded that he had killed the deceased (the physical element of murder) but argued that the Crown could not prove that at the time of inflicting the fatal blow, he intended to kill. The members of the High Court (Brennan CJ, Toohey, Gaudron, Gummow and Kirby JJ) said in a joint judgment at 442: An accused person who unlawfully kills another is not guilty of murder unless he does the particular act which causes the death with one of the specific intents that is an essential element of the crime of murder. The particular act and the intent with which it is done must be proved by the prosecution beyond reasonable doubt. Act and intent must coincide. If the circumstances of a fatal altercation are such that the prosecution can prove that some acts were done with the necessary intent but cannot prove that

[page 53] other acts were done with that intent, no conviction for murder can be returned unless there is evidence on which the jury can reasonably find that the act which caused the death was one of those done with the necessary intent.

1.77 Although referring here to the crime of murder, the requirement that ‘act and intent must coincide’ is a general proposition applicable to all crimes where proof of intent or some other fault element is necessary.

Special defendants Introduction 1.78 In any criminal prosecution the Crown has to establish that all the elements of the offence were present at the same time. Where the defendant is a child or a

corporation, the Crown must also prove something extra. In the case of a child under 14 years, the Crown must prove that the child knew that what he or she was doing was seriously wrong. In the case of a corporation, the Crown must prove that what was done that constitutes the crime was done with the authority of the corporation.

Children 1.79 It is presumed that children under the age of 10 years do not sufficiently understand the difference between right and wrong to be held criminally responsible for their actions. As a result, a child under the age of 10 cannot be convicted of a crime. Between the ages of 10 and 14 there is a rebuttable presumption of doli incapax; that is, it is presumed that the child does not sufficiently understand the difference between right and wrong, but that presumption may be rebutted by evidence from the prosecution to show that the child realised that his or her actions were ‘seriously wrong’. Division 7 of Pt 2.3 of the Criminal Code deals with the criminal responsibility of children. The position insofar as state offences are concerned is as follows: Children (Criminal Proceedings) Act 1987 (NSW) 5 Age of criminal responsibility It shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence.

1.80 The Court of Criminal Appeal considered the issue of a child’s criminal responsibility in CRH. R v CRH (Unreported, 18 December 1996) NSW Court of Criminal Appeal [The accused was charged with two counts of sexual intercourse

with a child under 10 years, and one with a child under 16 years. The charges all related to the same victim, who was the accused’s cousin. In the third incident, when the victim was aged 10 years, the accused forced her to perform oral sex upon him. While she had her head in his lap, [page 54] an older child entered the room and the accused placed a blanket over the victim’s head in order, the Crown argued, to hide the victim. The trial judge accepted that this conduct could be evidence that the accused knew that what he was doing was wrong. At the time of the offences the accused was aged 12 or 13.] Newman J: In the beginning of his judgment in R (A Child) v Whitty (1993) 66 A Crim R 462 Harper J in the Supreme Court of Victoria observed: ‘No civilised society’ says Professor Colin Howard in his book entitled Criminal Law, 4th ed (1982), p 343, ‘regards children as accountable for their actions to the same extent as adults.’ … The wisdom of protecting young children against the full rigour of the criminal law is beyond argument. The difficulty lies in determining when and under what circumstances that protection should be removed. … The presumption at common law that a person under the age of fourteen years is doli incapax is, as Kirkham DCJ rightly held, a rebuttable presumption. This presumption has been the subject of criticism in the United Kingdom from courts, governmental inquiries and academic commentators. The matter was recently ventilated in the House of Lords in C (A Minor) v Director of Public Prosecutions [1996] AC 1. The matter had come to the House of Lords by way of leave to appeal from a Divisional Court consisting of Mann LJ and Laws J. In turn the matter had come before the Divisional Court by way of case stated from a magistrate. In the Divisional Court Laws J in delivering his judgment had carried out an extensive review of the English authorities and commentaries dealing with the presumption. At 9 he observed as follows:

Whatever may have been the position in an earlier age, when there was no system of universal education and when, perhaps, children did not grow up as quickly as they do now-a-days, this presumption at the present time is a serious disservice to our law. It means that a child over ten who commits an act of obvious dishonesty, or even grave violence, is to be acquitted unless the prosecution specifically prove by discrete evidence that he understands the obliquity of what he is doing. It is unreal and contrary to common sense; and it is no surprise to find that modern Judges — Forbes J in JBH and JH (Minors) v O’Connell (1981) Crim LR 632, Bingham LJ in A v Director of Public Prosecutions (1992) Crim LR 34 — have looked upon the rule with increasing unease and perhaps rank disapproval. Having carried out that review and expressing his own rank disapproval of the presumption, he concluded: … I would hold that the presumption relied upon by the defendant is no longer part of the law of England. The House of Lords disagreed with him. I should add that in disagreeing with his conclusion all Lords present in the House, some expressing sympathy with Laws J’s view, were themselves of the view that any reform of the law should be undertaken by parliament and not by way of judicial pronouncement. The leading speech was that of Lord Lowry who reviewed not only the English authorities, governmental reports and white papers [and] the view of commentators, but also made reference to Commonwealth authorities including Whitty’s case, to which I have also made reference. Prior to making some observations relating to law reform he said: Clearly then, in my view the presumption, for better or worse, applies to cases like the present. I turn, therefore, to consider what must be proved in order to rebut the presumption and by what evidence. A long and uncontradicted line of authority makes two propositions clear. The first is that the prosecution must

prove that the child defendant did the act charged and that when doing that act he knew that it was a wrong act as distinct from an act of mere naughtiness [page 55] or childish mischief. The criminal standard of proof applies. What is required has been variously expressed, as in Blackstone, ‘strong and clear beyond all doubt or contradiction’, or, in R v Gorrie (1918) 83 JP 136, ‘very clear and complete evidence’ or in B v R (1958) 44 Crim App R 1, 3 per Lord Parker CJ, ‘it has often been put this way, that … guilty knowledge must be proved and the evidence to that effect must be clear and beyond all possibility of doubt’. No doubt the emphatic tone of some of the directions was due to the court’s anxiety to prevent merely naughty children from being convicted of crimes and in a sterner age to protect them from the draconian consequences of conviction. The second clearly established proposition is that evidence to prove the defendant’s guilty knowledge, as defined above, must not be the mere proof of the doing of the act charged, however horrifying or obviously wrong that act may be. As Erle J said in R v Smith (Sydney) (1845) 1 Cox CC 260: a guilty knowledge that he was doing wrong must be proved by the evidence, and cannot be presumed from the mere commission of the act. You are to determine from a review of the evidence whether it is satisfactorily proved that at the time he fired the rick (if you should be of the opinion he did fire it) he had a guilty knowledge that he was committing a crime. The report of R v Kirshaw (1902) 18 TLR 357, 358, where a boy of 13 was charged with murder, states: [Bucknill J] in summing up, pointed out that the commission of a crime was in itself no evidence whatever of the guilty state of mind which is

essential before a child between the ages of 7 and 14 can be condemned. Earlier when reviewing [the reasons of Laws J] at p 33 Lord Lowry had observed: The presumption itself is not, and never has been, completely logical; it provides a benevolent safeguard which evidence can remove. Very little evidence is needed but it must be adduced as part of the prosecution’s case, or else there will be no case to answer. In my view, if the decision in C’s case represents the common law of Australia as well as England then the evidence of the complainant as to the actions of the appellant after the alleged commission of the sexual assault in question would be insufficient to satisfy the test as stated above by Lord Lowry. I say this because the actions allegedly taken by the appellant are as consistent with naughty behaviour as wrong behaviour. On the criminal standard my view is that no prima facie case has been made out. The question is does C represent the common law of Australia? In this State under the Children (Criminal Proceedings) Act 1987 by s 5 it is conclusively presumed that no child under the age of ten years may be guilty of an offence. This is in fact a re-statement of the common law. The question remains whether the common law, as to the rebuttal presumption of doli incapax in relation to children between the ages of ten and fourteen years, remains. In R v M (1977) 16 SASR 589 the Full Court of South Australia considered the following part of the charge made by the trial Judge on this point. She had said: Ladies and gentlemen, before we adjourned at lunch time I had pointed out to you that if you are not satisfied beyond reasonable doubt when John hit Chris over the head with the brick and caused his death, he knew he was doing wrong in the sense of doing what ordinary people would disapprove of, then he is entitled to be acquitted of any offence.

Bray CJ at 591 to 592 raised, in my view, the standard of proof required. He said: I would, with respect, deprecate the word ‘disapprove’ in this context. I think it is too weak. Adults frequently disapprove of breaches of decorum and good manners on the part of children and of their lack of diligence or tidiness without regarding the acts of omissions in question as wrong in the relevant sense. But I do not think the jury could have been misled into thinking that it was sufficient if the appellant knew that ordinary people would regard hitting Chris several times on the head with a brick as something in the same category as [page 56] failing to wash his hands before meals, put his clothes away, or thank his host after being entertained. Her discussion of the details of the evidence and her citation of the questions addressed to the doctors in which the word ‘disapprove’ appears and of their answers is sufficient to show this. In Whitty’s case, (supra) Harper J in a shoplifting case, in concluding that the appellant before him knew that what she was doing was wrong in terms of her appreciation of the true nature and quality of her act, relied not only on the facts relating to the theft, but also on an admission she made, namely that she ‘went into the shop, Target, and stole those jeans’. The word ‘stole’ at first appeared in the subject answer and his Honour held: ‘In the context, no other conclusion is reasonably open but that the appellant used it deliberately and appropriately and knew what it meant.’ In my view, Harper J was adopting the type of test adverted to by Lord Lowry in C’s case. In short, it is my view that such Australian authority as exists is consistent with the law as expressed by Lord Lowry in C. This is the law of Australia. That being so, as I have said, the evidence was insufficient to rebut the presumption of doli incapax having regard to the criminal standard of proof. Accordingly, his Honour ought to have acceded to the

application made on behalf of the appellant that the first count be taken from the jury and a verdict of not guilty should then have been entered. The learned Crown Prosecutor has properly conceded before this Court that in the circumstances should this view be held by the Court, the appeal must succeed. … [Hidden and Smart JJ agreed with the reasons given by Newman J.]

Corporate defendants 1.81 A corporation is a legal entity that can also commit crimes. Section 4 (the definitions section) of the Crimes Act provides that any reference to a ‘person’ includes any ‘society, company, or corporation’ and so these can, at least in theory, be guilty of the offences set out in the Act (see also Interpretation Act 1987 (NSW) s 21). Where a corporation has committed an offence for which the penalty is imprisonment, fines up to the limit of 2000 penalty units have been prescribed depending upon the nature of the court imposing the sentence: Crimes (Sentencing Procedure) Act 1999 (NSW) s 16. Part 2.5 of the Criminal Code (Cth) deals with corporate criminal responsibility for Federal offences. Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley (2008) 73 NSWLR 241; 67 ACSR 692; [2008] NSWCA 204 NSW Court of Appeal [Mr Bingle was a security guard as well as the managing director and sole employee of the appellant company. He was on duty at a sports club when the respondent, in company, broke in to the club in order to rob it. Bingle shot at the respondent and, on disputed evidence, attempted to shoot him several more times. The respondent sued the appellant company (not Mr Bingle) for damages. During the course of the appeal, the liability of the company for the criminal actions of Mr Bingle was discussed.] [page 57]

Ipp JA: … 140 The question that then arises (which was addressed neither by counsel at the trial, nor her Honour, and which was for the first time raised on appeal by this Court), is whether the defendant, as a company, could be liable for the offence of assault. In other words, can a corporation commit an assault? If so, was the defendant company liable for the offence of assault on the facts of the case? Once the plaintiff sought to rely on s 54(2), these questions had to be resolved. 141 There are two classes of criminal offence that a company cannot commit. The first class arises by virtue of a company’s status as an unnatural or artificial person. For example, a company cannot commit suicide or bigamy. The second class arises by virtue of the company’s inability to be punished. Thus, a company cannot commit a crime where the only punishment is a term of imprisonment. … [L]egislation converting physical sentences and punishments into fines [has been passed in Australia]. In NSW, this was achieved by s 16 of the Crimes (Sentencing Procedure) Act 1999: 16 Fines for bodies corporate for offences punishable by imprisonment only If the penalty that may be imposed (otherwise than under this section) for an offence committed by a body corporate is a sentence of imprisonment only, a court may instead impose a fine not exceeding: (a) 2,000 penalty units, in the case of the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission or the District Court, or (b) 100 penalty units, in any other case. 143 Thus, to use the example of assault occasioning actual bodily harm, a company is capable of committing the crime despite punishment under s 59 (and s 61) of the Crimes Act being in the form of imprisonment alone … 144 The fact that a company is capable of committing a crime and may be indicted for an offence does not, however, mean that the

inherent characteristics of an artificial person are not relevant to whether a company may be found guilty of certain offences, particularly those offences of which mens rea is an element. 145 Generally speaking, once a company is capable of committing a particular offence, it may be found guilty of that offence on one of two bases, namely, on the grounds of vicarious responsibility or on the basis that the person who committed the actus reus and had the requisite mens rea was the directing mind and embodiment of the company in the Tesco Supermarkets Ltd v Nattrass [1972] AC 153 sense. 146 Whether the company may be found guilty on one or other of these bases depends on the legislation applicable, the nature of the offence in question, and the status and position within the company of the person who performs the acts said to constitute the offence. 147 Generally, a company will not be found guilty, on the basis of vicarious liability, for a criminal offence having mens rea as an element. This is traceable to at least the eighteenth century. … 148 As Lord Morris and Lord Diplock explained in Tesco Supermarkets Ltd v Nattrass, the rejection of vicarious liability in the criminal context is based upon a refusal to attach criminal liability to a person absent a guilty mind. 149 I reiterate that, absent a statutory provision to the contrary, vicarious liability has been rejected as a means of establishing mens rea in crimes requiring proof of that element (as otherwise criminal guilt could be found without the offender possessing the necessary intent). [page 58] 150 The situation is different, however, where mens rea does not form part of the offence. Parliament may create offences of strict or absolute liability, and it has long been accepted that, in such a case, the application of vicarious liability principles is not inhibited. 151 The following statement of Atkin J in Mousell Brothers Ltd v London and North-Western Railway Co (1917) 2 KB 836 at 845 is usually referred to as the leading authority in this area:

I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed. 152 Mousell Brothers Ltd v London and North-Western Railway Co was applied by the High Court of Australia in The King and The Minister for Customs v Australasian Films and Another (1921) 29 CLR 195. The Court said at 215: We proceed to consider, by applying the tests suggested by Atkin J [in Mousell Brothers Ltd v London and NorthWestern Railway Co], whether sec 241 of the Customs Act has the effect of making the principal, if a company, liable for the act of its servant or agent when the person doing the act or some servant or agent of the company from whom he takes his instructions has the intention of defrauding the revenue. And at 217: Adopting the language of Atkin J quoted above, we think that the principal is liable in any case in which his servant or agent in the course of his employment ‘commits the default provided for in the statute in the state of mind provided for by the statute. Once it is decided that this is one of those cases where a principal may be held liable criminally for the act of his servant, there is no difficulty in holding that a corporation may be the principal. No mens rea being necessary to make the principal liable, a corporation is in exactly the same position as a principal who is not a corporation.’ If the principal is liable for the

fraud of the agent actually committing the offence, he is no less liable for the fraud of some superior servant or agent by whose direction the offence is committed, but we see no reason for extending the responsibility of the principal to a case in which it is sought to make the principal responsible for the state of mind or the state of knowledge of some other servant or agent not concerned in the doing of the act. … 154 Assault is not an offence of strict or absolute liability. Furthermore, there is nothing in ss 59 or 61 of the Crimes Act that indicates that the requisite mens rea for the establishment of those offences can be derived vicariously from a servant or agent of a corporation. It follows that the defendant in this case could not be vicariously criminally liable for an assault committed by Mr Bingle in the course of his employment … [In separate judgments, Beazley JA and Allsop J agreed with Ipp JA. Appeal allowed on other grounds and the matter remitted to the District Court for re-hearing.]

Conclusion 1.82 Before a person can be found guilty of a crime the Crown must prove, beyond reasonable doubt, that all the necessary physical and fault elements of the crime were present and that they were present at the same time. In the case of children between the ages of 10 and 14, the Crown must also prove that the child [page 59] knew that what he or she was doing was wrong, as opposed to ‘naughtiness or childish mischief’. In the case of corporate defendants, the Crown must also prove that the actions of the individual can be attributed to the corporation because they ‘are within the scope of the authority conferred by the corporation upon’ that person (EPA v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; 118 ALR 392 per Brennan J).

STRICT AND ABSOLUTE LIABILITY 1.83 The traditional view is that all crimes require proof of a physical and a fault element. Although that is true as a general rule, and particularly true of serious crimes, there are some crimes where there is no need to prove any particular fault element. Such crimes fall into two categories: 1.

crimes of strict liability; and

2.

crimes of absolute liability.

Generally it is a question of construction of the section creating the particular offence to determine whether the offence is one of strict or absolute liability (see He Kaw Teh v R at 1.88). However, the Criminal Code (Cth) requires that the offence itself state whether any element is one of strict liability or absolute liability, otherwise the offence is to be read as containing the relevant default fault element (see Criminal Code Pt 2.2 Div 6). Under the Code, an element of an offence that gives the Commonwealth jurisdiction is usually designated as strict or absolute liability. See, for example, the offence of theft of Commonwealth property in s 131.1 of the Criminal Code (Cth), where absolute liability applies to the element that the property belongs to a Commonwealth entity. 1.84 A crime of strict liability is established if the prosecution can prove that the accused performed the physical elements. There is no need to prove that the accused either intended to perform, or was aware that he or she might be performing, the prohibited action. The accused is, however, entitled to be acquitted if he or she is able to raise some evidence to show that he or she had an honest and reasonable belief in certain facts and, if those facts were true, the accused would not be guilty of the offence. This is the defence of ‘mistake of fact’, and needs to be distinguished

from a ‘mistake of law’, which arises when the accused intends to do the prohibited act but does not realise it is illegal. A mistake of law is usually no defence. The offence of dangerous driving causing death or grievous bodily harm under s 52A of the Crimes Act is an offence of strict liability (see Jiminez v R (1992) 173 CLR 572; 106 ALR 162). 1.85 In Ostrowski v Palmer (2004) 218 CLR 493; 206 ALR 422 at [2], Gleeson CJ and Kirby J said: The reason for the rule that ignorance of the law is no excuse For present purposes, we use the expression “elements of the offence” to embrace matters of exculpation, and without regard to any special consideration as to onus of proof that might exist in relation to particular offences. Ignorance of the legal consequences that flow from the existence of the facts that constitute an offence is ordinarily not a matter of exculpation, although it may be a matter of mitigation, and in some circumstances it may enliven a discretion not to prosecute.

[page 60] Their Honours said at [10]: The common law applicable to a case such as the present was stated by Jordan CJ in R v Turnbull (1943) 44 SR (NSW) 108 at 109, in a passage quoted by Brennan J in He Kaw Teh v R [see below at 1.88], as follows: … it is also necessary at common law for the prosecution to prove that [the accused] knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence

relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged. (emphasis added) What Jordan CJ referred to as “the ingredients necessary to make the act criminal” are what we have earlier called the elements of the offence.

1.86 In Ostrowski, the High Court held that a fisherman, provided by a government department with incomplete information regarding prohibited areas, who believed he had been provided with complete information and who was unaware that he was fishing in a prohibited area, had made an officially induced error of law, which was no excuse. 1.87 An example of a mistake of fact is provided by the case of a truck driver who is charged with driving an overloaded vehicle (Binskin v Watson (1990) 48 A Crim R 33). If it can be shown that the accused put the truck over a weighbridge and received a certificate that it was not over the maximum allowed weight, then the accused would have a reasonable belief that the truck was not overweight and could be acquitted even though, in fact, the weighbridge was wrong and the truck really was too heavy. It should be noted that where there is evidence that the defence relies upon a reasonable mistake of fact, the prosecution must negative that belief beyond reasonable doubt before the accused can be convicted. 1.88 An absolute liability offence is established where the legislation creating the offence, either by express words or by implication, provides that the defence of ‘mistake’ is not available. Deciding whether a criminal offence requires proof of some fault element, or if it is a strict liability offence or an absolute liability offence, requires an analysis of the statute that created the offence to determine the will of the parliament. He Kaw Teh v R

(1985) 157 CLR 523; 60 ALR 449 High Court of Australia [The appellant was convicted in Victoria of importing and of being in possession of heroin. In relation to the charge of importing the heroin he argued that he was unaware it was in his bag. His appeal raised the question of whether an honest and reasonable belief that there was no heroin in the bag would mean the appellant was not guilty even though he did, in fact, bring the heroin into Australia. The extracts from the judgments [page 61] below deal with the general principles of mens rea and when a defence of ‘mistake’, that is, an honest and reasonable belief in facts which if true would make the act innocent, will apply.] Gibbs CJ (with whom Mason J agreed): The applicant was charged in the County Court of Victoria with two offences — first, that on 20 October 1982 he imported into Australia 2.788 kg of heroin and secondly, that on the same date he had in his possession without reasonable excuse the same quantity of heroin. The charges were laid under pars (b) and (c) respectively of s 233B(1) of the Customs Act 1901 (Cth), as amended. The facts were within a short compass and of a familiar description. The applicant had travelled by air from Kuala Lumpur to Melbourne and after he had disembarked at the Melbourne Airport his baggage was inspected by Customs officials. In the course of the inspection he was found to be in possession of a bag which contained in a false bottom the heroin which was the basis of both the charges laid against him. In relation to both counts the learned trial judge directed the jury that no specific state of mind, whether of motive, intention, knowledge or advertence need be proved by the Crown. In relation to the first count he added that if the accused established by way of defence that he had an honest and reasonable belief in a set of facts which if they existed would make his act innocent, that would afford a defence to the charge. He said that the accused bore the onus of establishing such a defence, on the balance of probabilities and not beyond reasonable doubt. … The argument presented on behalf of the applicant raised some fundamental questions of the law relating to criminal responsibility. It was submitted that the learned trial judge erred in directing the

jury that the prosecution had no need to prove that a person charged under s 233B(1)(b) acted with guilty knowledge — in particular with knowledge that the baggage he brought into the country contained narcotic goods. Section 233B(1)(b) does not expressly make knowledge an element of the offence. To ‘import’ simply means to bring into the Commonwealth from abroad. … The word ‘import’ does not carry its own connotation of knowledge or intention. If one in fact brings goods into Australia from abroad one imports them, whatever one’s intention may be and whether or not one knows their nature or quality. Paragraph (b) does not contain any words — such as ‘knowingly’ — which themselves might reveal that the Parliament intended to make the importation of narcotics an offence only if it was intentionally or knowingly carried out; in that respect it differs from par (d) of s 233B(1), which makes it an offence to be ‘knowingly concerned’ in the importation of prohibited imports that are narcotic goods. However the provision has to be read in the light of the general principles of the common law which govern criminal responsibility. The relevant principle is stated in Sherras v De Rutzen [1895] 1 QB 918, at p 921, as follows: There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered. There has in the past been a tendency in Australia to regard this presumption as only a weak one, at least in the case of modern regulatory statutes: Proudman v Dayman (1941) 67 CLR 536, at p 540; Bergin v Stack (1953) 88 CLR 248, at p 261. However, the principle stated in Sherras v De Rutzen has more recently been reaffirmed in the Judicial Committee and the House of Lords (Lim Chin Aik v R [1963] AC 160, at p 173; R v Warner [1969] 2 AC 256, at p 272 and Gammon Ltd v A-G of Hong Kong [1984] 3 WLR 437, at p 441; [1984] 2 All ER 503, at p 507) and in this Court: Cameron v Holt (1980) 142 CLR 342, at pp 346, 348. The rule is not always easy to apply. Its application presents two

difficulties — first, in deciding whether the Parliament intended that the [page 62] forbidden conduct should be punishable even in the absence of some blameworthy state of mind and secondly, if it is held that mens rea is an element of the offence, in deciding exactly what mental state is imported by that vague expression. In deciding whether the presumption has been displaced by s 233B(1)(b), and whether the Parliament intended that the offence created by that provision should have no mental ingredient, 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 words of par (b) of s 233B(1) themselves contain no clear indication of Parliament’s intention. However they stand in marked contrast to pars (a), (c) and (ca) of the subsection, all of which deal with the possession of prohibited imports in certain circumstances and all of which contain the words ‘without reasonable excuse (proof whereof shall lie upon him)’. The absence of those words from par (b) suggests that no reasonable excuse will avail a person who imports narcotics. That would lead to an absurdly Draconian result if it meant that a person who unwittingly brought into Australia narcotics which had been planted in his baggage might be liable to life imprisonment notwithstanding that he was completely innocent of any connection with the narcotics and that he was unaware that he was carrying anything illicit. On the other hand, if guilty knowledge is an ingredient of the offence, it becomes understandable that no excuse should be allowed to a person who has knowingly imported narcotics. This provides an indication, although only a slight one, that by par (b) the Parliament did not intend to displace the presumption of the common law that a blameworthy state of mind is an ingredient of the offence. The second matter to be considered is the subject matter with which the statute deals. Paragraph (b) of s 233B(1) and the other paragraphs of that subsection deal with a grave social evil which the Parliament naturally intends should be rigorously suppressed. The importation of and trade in narcotics creates a serious threat to the well-being of the Australian community. It has led to a great

increase in crime, to corruption and to the ruin of innocent lives. The fact that the consequences of an offence against s 233B(1)(b) may be so serious suggests that the Parliament may have intended to make the offence an absolute one. On the other hand, the subsection does not deal with acts which ‘are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty’, to repeat the words used in Sherras v De Rutzen, at p 922, to describe the first of the three classes of exceptions to the general rule which that case laid down. On the contrary, offences of this kind, at least where heroin in commercial quantities is involved, are truly criminal; 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 the 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. A third consideration is that which was mentioned in Lim Chin Aik v R, at p 174: It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly … which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim. See also Sweet v Parsley [1970] AC 132, at p 163 and Gammon Ltd v A-G of Hong Kong, at p 443. A person bringing baggage into a country can no doubt take care to ensure that no drugs are contained in it. The public interest demands that such care should be taken. There is thus an argument, the strength of which I shall later consider, in favour of the view that the Parliament may have intended to penalise importation that was no more than careless. Clearly, however, no good purpose would be served by punishing a person who had taken reasonable care and yet had unknowingly been an innocent agent to import narcotics. [page 63]

These indications do not all point in the same direction, but at least they suggest the conclusion that the Parliament did not intend that the offence defined in par (b) should be an absolute one. The expression ‘mens rea’ is ambiguous and imprecise. The passage which I have cited from Sherras v De Rutzen suggests that it means ‘evil intention, or a knowledge of the wrongfulness of the act’. In Iannella v French (1968) 119 CLR 84, at pp 108–109, Windeyer J approved of the statement in which Jordan CJ in R v Turnbull (1943) 44 SR (NSW) 108, at p 109, described the mens rea of an offender: … assuming his mind to be sufficiently normal for him to be capable of criminal responsibility, it is also necessary at common law for the prosecution to prove that he knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. However, as Lord Diplock pointed out in Sweet v Parsley, at p 162, recklessness may be a sufficient mental element of some offences, and there is no single mental element that is common to all offences. As will be seen, it is a question whether negligence can amount to mens rea. … There has developed a principle that an honest and reasonable mistake of fact will be a ground of exculpation in cases in which actual knowledge is not required as an element of an offence. This principle is founded on what was said in R v Tolson (1889) 23 QBD 168, particularly per Cave J, at p 181: At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. This doctrine is embodied in the somewhat uncouth maxim, ‘actus non facit reum, nisi mens sit rea’. Honest and reasonable mistake stands in fact on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy. …

[The] cases establish that if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent. However there are a number of questions which have not been clearly answered. The first is whether the absence of an honest and reasonable belief in the existence of facts which would have made the act innocent is a form of mens rea or whether, on the other hand, an honest and reasonable mistake affords the accused a defence only when he is charged with an offence of which mens rea is not an element. A second question is whether the accused bears the onus of proving on the balance of probabilities that he acted under an honest and reasonable mistake of fact or whether it is enough if the evidence raises a reasonable doubt. Thirdly, it is a question whether the socalled defence of honest and reasonable but mistaken belief is available when the offence charged is of a truly criminal character, or whether it applies only to statutory offences of a regulatory kind. The Supreme Court of Canada, in an important judgment, has given confident answers to these questions. In R v Sault Ste Marie [1978] 2 SCR 1299 it was held that where an offence is truly criminal the prosecution must establish a mental element, and negligence is not enough for that purpose. However, it was held, there is a middle position between cases where full mens rea is required and cases of absolute liability, namely, cases in which it is a defence for the defendant to prove, on the balance of probabilities, that he was not negligent. Prima facie, ‘public welfare offences’, or ‘regulatory offences’, [page 64] are in this last-mentioned class. Dickson J, who delivered the judgment of the Court, accordingly held, at pp 1325–1326, that offences could be classified into three categories, as follows: 1.

Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act

committed, or by additional evidence. 2.

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.

3.

Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

The Supreme Court of Canada has further held that in cases in which the prosecution is required to prove mens rea, there can be no conviction if the accused honestly believed that the facts were such as to make his actions innocent, whether or not the mistake was reasonable: Pappajohn v R (1980) 14 CR (3d) 243. It is of course clear that if guilty knowledge is an element of an offence, an honest belief, even if unreasonably based, may negative the existence of the guilty knowledge, and thus lead to an acquittal. … I should say immediately that if s 233B(1)(b) does not require the prosecution to prove guilty knowledge, but has the effect that an accused is entitled to be acquitted if he acted with the honest and reasonable belief that his baggage contained no narcotic goods, in my opinion the onus of proving the absence of any such belief lies on the prosecution. … [I]t has now become more generally recognized, consistently with principle, that provided that there is evidence which raises the question the jury cannot convict unless they are satisfied that the accused did not act under the honest and reasonable mistake: … Brennan J: … Recently, in Gammon Ltd v A-G of Hong Kong [1985] 1 AC 1 Lord Scarman, delivering the judgment of the Judicial Committee, stated five propositions (at p 14):

(1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is ‘truly criminal’ in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act. The first three propositions correctly emphasize the strength which contemporary authority gives to the presumption that mens rea is an essential element of an offence. The fourth proposition, if I may say so with respect, seems to be too categorical an approach to what is, after all, a question of statutory interpretation. It is not possible to decide that mens rea can be excluded only where the subject matter answers a given description (even so general a description as ‘an issue of social concern’), without regard to the whole of the statutory context. The fifth proposition reflects the purpose of the criminal law: to deter a person from engaging in prohibited conduct. The penalties of criminal law cannot provide a deterrent against prohibited conduct to a person who is unable to choose whether to engage in that conduct or not, or who does not know the nature of the conduct which he may choose to engage in or who cannot foresee the results which may follow from that conduct (where those results are at least part of the mischief at which the statute is aimed). It requires clear language before it can be said that a statute [page 65] provides for a person to do or to abstain from doing something at his peril and to make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of results that he could not foresee. However

grave the mischief at which a statute is aimed may be, the presumption is that the statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventive measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur. A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence. In Lim Chin Aik, Lord Evershed speaking for the Judicial Committee said (at p 174): But it is not enough in their Lordships’ opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim. The requirement of mens rea is at once a reflection of the purpose of the statute and a humane protection for persons who unwittingly engage in prohibited conduct. … The general principles … may now be summarized: (1) There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind. (2) There is a further presumption in relation to the external elements of a statutory offence that are circumstances attendant on the doing of the physical act involved. It is implied as an element of the offence that, at the time when the

person who commits the actus reus does the physical act involved, he either — (a) knows the circumstances which make the doing of that act an offence; or (b) does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent. (3) The state of mind to be implied under (2) is the state of mind which is more consonant with the fulfilment of the purpose of the statute. Prima facie, knowledge is that state of mind. (4) The prosecution bears the onus of proving the elements referred to in (1) and (2) beyond reasonable doubt except in the case of insanity and except where statute otherwise provides. [Dawson J agreed with Gibbs CJ in relation to s 233B(1)(b). However, his Honour held in relation to s 233B(1)(c) that a person may possess narcotic goods if he or she is aware of possessing something but is unaware that what he or she possesses are in fact narcotics: that in such a case, the defence would be one of reasonable excuse. The defendant/applicant’s appeal was allowed.]

1.89 In CTM the High Court again considered the ‘defence’ of honest and reasonable mistake of fact. In this case, CTM (aged 17 at the time of the offence) was convicted of having sexual intercourse with a girl aged over 14 and under 16, ie, she was 15 years old. During CTM’s interview with police, he said he believed [page 66] the girl was aged over 16. The issue was then whether or not CTM could rely on a defence of ‘honest and reasonable mistake of fact’; that is, if he honestly and reasonably believed that she was over 16, was that a defence? In the extracts below, the judgments consider the issue of the defence, the burden of proof, and whether the defence of honest and reasonable mistake of fact is available to an

offence of this nature. If it were not available, the offence would be one of absolute liability. CTM v R (2008) 236 CLR 440; 247 ALR 1; [2008] HCA 25 High Court of Australia [Kirby J commenced his judgment with a statement of the history of this matter, and accordingly, extracts from his judgment are set out before the joint judgment of Gleeson CJ, Gummow, Crennan and Kiefel JJ.] Kirby J: … Trial of the accused: The appellant was tried before Garling DCJ and a jury in the District Court of New South Wales upon an indictment containing two counts. The counts alleged offences against s 61J of the Act (sexual intercourse without consent in circumstances of aggravation) and, in the alternative, s 66C(4) (sexual intercourse with a person aged between 14 and 16 years in circumstances of aggravation). The jury found the appellant not guilty of those offences and upon them he was discharged. The jury went on to find the appellant guilty of a statutory alternative to the s 66C(4) offence, being an offence against s 66C(3) of the Act. This involved a non-aggravated form of the offence of having sexual intercourse with a person between the ages of 14 and 16. The complainant was a female friend of the appellant. She was 15 years of age at the time of the alleged offence. The appellant was then 17 years of age. Inherent in the jury’s verdict on the s 66C(3) offence was a conclusion that the appellant and the complainant had engaged in consensual sexual intercourse. The appellant’s conduct was not unlawful for want of consent, or aggravated because the complainant had been under the influence of alcohol, as had been alleged in respect of the offences charged in the indictment. It was unlawful because the complainant was below the age at which the law says a person may consent to sexual intercourse. In the Court of Criminal Appeal, the appellant argued that the jury’s verdict was unreasonable. That Court rejected this argument. It has not been maintained in this Court. Sentencing the prisoner: In sentencing the appellant, the trial

judge found no difficulty in reconciling the verdicts returned by the jury. The trial judge described the facts as he took them to be established: The facts which the jury obviously accepted are that on 24 October 2004 [the complainant], a person of 15 years of age, who knew the prisoner quite well, had rung him and contacted him and had gone to the premises where he and some other boys lived. She was considerably affected by alcohol. During the course of that evening he and [the complainant] had sexual intercourse, and she was under the age of 16, namely 15, and they have obviously accepted that he knew [that fact], and they are the brief facts upon which I sentence him. He knew her, he had been friendly with her over a significant period of time. He was a young lad … 17 years of age at the time, [and] the difference in their age is minimal, but the fact is it is an offence and he has been found guilty of it. … [H]e denied having sexual intercourse, however, the jury was satisfied beyond reasonable doubt to the contrary. There is little else I can say about it. It is one of these very difficult sentences because what you are doing, in effect, is sentencing a person where two people of a similar age agreed obviously to have sexual intercourse, but she is of such an age that Parliament has deemed that it is an offence. [page 67] In the result, the trial judge sentenced the appellant to a term of eighteen months imprisonment with a non-parole period of nine months. He suspended the custodial sentence on the basis that “special circumstances” warranted that course. In the Court of Criminal Appeal, it was accepted by the prosecution that the sentence imposed had failed to take into account the Children (Criminal Proceedings) Act 1987 (NSW). Provisions of that Act applied to the appellant because, for its purposes, he was himself a child. Thus, although the Court of Criminal Appeal dismissed the appellant’s appeal against conviction, it upheld his application for leave to appeal against sentence. It quashed the sentence and

ordered that the matter be remitted to the District Court for the resentencing of the appellant according to law. Court of Criminal Appeal: The principal focus of the appellant’s conviction appeal in the Court of Criminal Appeal was whether a “common law defence” of honest and reasonable mistake of fact applied to a charge based on s 66C(3) of the Act, such as would exculpate the appellant if he had held a belief, at the time of the sexual intercourse, that the complainant was over the age of 16 years. By reference to decisions of this Court and other courts, to English authority, and to the legislative history of the relevant provisions of the Act (with particular reference to the repeal of s 77(2) of the Act and to extrinsic material explaining the purpose of that repeal), the Court of Criminal Appeal unanimously concluded that the “common law defence” was not “activated” in respect of s 66C of the Act. There was thus no need for the Court of Criminal Appeal to “go on to determine whether there was evidence to support the common law defence in the present case”. Whilst the trial judge had given certain directions on the assumption that the “defence” applied, he had not been obliged by law to do so. Despite this, the Court of Criminal Appeal noted an alternative submission advanced for the prosecution to the effect that, even if the “defence” had applied to s 66C(3) of the Act, it amounted, in the present case, to a “contingent defence”, and could not be maintained. The prosecution argued that, because the appellant’s case at trial had been that he did not have intercourse with the complainant at all, he could not also assert the inconsistent proposition that “if he did, he was mistaken as to her age and the fact that she was not consenting”. The Court of Criminal Appeal rejected this argument as incompatible with the decision of this Court in Pemble v The Queen. Appeal and contentions in this Court: In this Court, the appellant argues that the Court of Criminal Appeal erred in finding that the “defence” of “honest and reasonable mistake” as to the age of the complainant was not available in respect of s 66(3) of the Act. By a notice of contention, the respondent has submitted that the

Court of Criminal Appeal erred in holding that Pemble has the effect that the “common law defence of honest and reasonable mistake applies even though the defence relied upon was not that the appellant, at the time of having intercourse, mistakenly believed that the complainant was over 16, but a denial that intercourse occurred at all”. The respondent reiterated its argument that any defence of honest and reasonable mistake as to age “does not apply in a case such as the present where the accused denies committing the act to which the mistaken belief relates”. The respondent further contends that the Court of Criminal Appeal erred in holding that the onus of disproving honest and reasonable mistake, where applicable, lies on the prosecution. The respondent argues that “[i]f this Court were to decide that the common law defence was available in this case … the trial judge’s direction placing the onus of establishing the defence on the accused on the balance of probabilities was correct” … [page 68] Gleeson CJ, Gummow, Crennan and Kiefel JJ: [footnotes omitted] In 1897, Sir Samuel Griffith, then Chief Justice of Queensland, prepared for the Government of Queensland a Draft Code of Criminal Law. In a letter to the Attorney-General, enclosing this monumental work, Sir Samuel wrote: Criminal Responsibility. — This most important and difficult branch of the law is dealt with in Chapter V. I have appended to several of the sections Notes to which I invite special attention. No part of the Draft Code has occasioned me more anxiety, but I may add that I regard no part of the work with more satisfaction. Chapter V of the Draft Code dealt, among other things, with the mental element necessary to attract criminal responsibility. It included the following provision: 26. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject. In a marginal note against that provision, Sir Samuel wrote: “Common Law”. The provision was enacted as s 24 of the Criminal Code (Q). In Thomas v The King, Dixon J said that the language of the Code, which was also taken up in the other Code States of Tasmania and Western Australia, in this respect reflected the common law with complete accuracy. Clause 26 appears to have been taken substantially from Stephen’s Digest of the Criminal Law, and was in accordance with what Cave J said in R v Tolson (a bigamy case in which the accused, at the time of the second marriage, believed on reasonable grounds that her husband was dead): At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. In the same case, Cave J explained the reason for the principle: Now it is undoubtedly within the competence of the legislature to enact that a man shall be branded as a felon and punished for doing an act which he honestly and reasonably believes to be lawful and right; just as the legislature may enact that a child or a lunatic shall be punished criminally for an act which he has been led to commit by the immaturity or perversion of his reasoning faculty. But such a result seems so revolting to the moral sense that we ought to require the clearest and most indisputable evidence that such is the meaning of the Act. What is involved is a basic legal principle of criminal responsibility which informs our understanding, and interpretation, of the criminal law. That law is, to a large extent, although in most Australian jurisdictions not completely, governed by statute. The Crimes Act 1900 (NSW) (“the Crimes Act”) is not a code, but it contains provisions dealing with most serious offences against the person. The legal effect of some of those provisions, of which those relating to homicide are a well-known example, can be understood only against a background of common law principle. Where the

problem is one of interpretation of what Parliament has enacted, general principles of criminal responsibility inform such interpretation, but ultimately it is the language of the statute that is controlling. A principle as to criminal responsibility, such as that described above, as is acknowledged, may be excluded by a sufficiently plain manifestation of legislative intention. … Honest and reasonable mistakes of fact do not cover the whole field of risk of criminal liability to which a person may be exposed by making an error. Mistakes of law are not a ground of exculpation: ignorance of the law is no excuse. Moreover, the moral sense invoked by Cave J, at least in Australian law, does not extend to cover unreasonable [page 69] mistakes. The concept of mistake itself is protean. The state of mind that, in a given set of circumstances, will qualify as a mistaken belief in a fact or state of affairs may be a matter of difficulty. An honest and reasonable belief in a certain fact or state of affairs may be very different from an absence of concern. Even so, the point made by Cave J at the end of the second passage quoted above continues to be of fundamental importance to the function of courts in seeking to find and give effect to the meaning of criminal legislation. While the strength of the consideration may vary according to the subject matter of the legislation, when an offence created by Parliament carries serious penal consequences, the courts look to Parliament to spell out in clear terms any intention to make a person criminally responsible for conduct which is based on an honest and reasonable mistake. This appears to us to be closely related to the principle of statutory interpretation which was discussed in Plaintiff S157/2002 v The Commonwealth, Al-Kateb v Godwin, and Electrolux Home Products Pty Ltd v Australian Workers’ Union, and which was applied by the whole Court in the several judgments in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission. There is no present need to expand upon that discussion. Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word “innocent”

means not guilty of a criminal offence. In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be “outside the operation of the enactment”. As explained in He Kaw Teh v The Queen, the evidentiary onus of raising the ground of exculpation is on the accused, but, once that occurs, the ultimate legal onus of displacing the ground lies on the prosecution. The concept of evidentiary onus itself needs to be understood in the light of the subject matter to which it applies; here, honest and reasonable belief, a concept that has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the accused, and an objective element that must be capable of being measured against the evidence by a tribunal of fact. … The common law principle in question reflects fundamental values as to criminal responsibility. The courts should expect that, if Parliament intends to abrogate that principle, it will make its intention plain by express language or necessary implication. We would, therefore, construe the legislation in the light of the principle of criminal responsibility stated at the outset of these reasons. An honest and reasonable belief that the other party to sexual activity is above the age of 16 years is an answer to a charge of a contravention of s 66C(3). The evidential burden of establishing such a belief is in the first place upon an accused. If that evidential burden is satisfied, then ultimately it is for the prosecution to prove beyond reasonable doubt that the accused did not honestly believe, on reasonable grounds, that the other party was above the age of 16 years. …

1.90 In CTM, Kirby J agreed substantially with the reasons expressed in the joint judgment, and with those of Hayne J. Heydon J found that the defence of ‘honest and reasonable mistake’ was not available for this offence. The appeal was dismissed and the conviction was allowed to stand, even though the majority agreed that the belief, if held, would have entitled the accused to an acquittal, and even though the majority agreed that the trial judge had misdirected the jury on the issue of the burden of proof. Gleeson CJ, and Gummow, Crennan, Kiefel, Kirby and Hayne JJ all found that, as a matter of construction, an honest and reasonable

belief that the girl was aged over 16 would have been a defence. Heydon J was of the opinion that the ‘defence’ was excluded by the statute and therefore the appeal should be dismissed. [page 70] Gleeson CJ, Gummow, Crennan, Kiefel, and Hayne JJ found that the accused had not met the evidentiary burden to raise the issue. Their Honours also held that there was no substantial miscarriage of justice. Even though there had been errors in the trial judge’s directions to the jury, they held the appeal should be dismissed. Kirby J dissented on the final orders and would have allowed the appeal.

CONCLUSION 1.91 In summary: Conduct is criminal when it has been prohibited by the state and there is some punishment attached to it. It is not a moral question but a legal question. Crimes exist only in law. The criminal law serves to protect the community by restraining the behaviour of individuals, but, more importantly, by restraining the state and its agencies (such as the police). Traditionally, criminal law serves to protect our liberties by ensuring that the state punishes only those people who have breached the law, and not those people who are unpopular with the state or public opinion. The courts, to the extent permitted by the legislature, stand between the citizen and the state to ensure that criminal trials are fair and conducted according to law. A person is to be adjudged ‘guilty’ only if the state can

prove the case against him or her ‘beyond reasonable doubt’. Notwithstanding the protections given to accused persons at their trials, much of the decision making in the criminal process is administrative in nature and subject to the exercise of personal discretion, rather than an open, judicial process. Nearly all crimes are made up of fault elements (or mens rea) and physical elements (or actus reus) that must be proved in order to establish that the accused is guilty of an offence. We have seen, however, that not every offence has a necessary ‘fault element’. Offences of strict and absolute liability are established by proof of the physical elements alone.

DISCUSSION QUESTIONS 1.92 Answer the following questions to review the material covered in this chapter. 1.

It may be possible to give a definition of the subject matter of various areas of law: for example, the law of contract is about the enforcement of agreements, the law of torts is about obligations with respect to others. What is the criminal law ‘about’? Is there any limit on what can be made a crime?

2.

What do you think should be the primary aim of the criminal law? Why? Do you agree with mandatory sentencing? Why or why not? Should there be discretion in the criminal law? Why or why not? [page 71]

3.

Assume you are a police officer on duty when you are called to a shop to deal with a person detained there

for shoplifting. You find the person there and make inquiries and are satisfied that he or she has committed the offence. How would you proceed if the person is: (a) a 12-year-old girl who attends the local private school and whose parents have been called, as has the head of the school? (b) a 24-year-old man with tattoos and a scruffy appearance? (c) a 17-year-old Indigenous woman with no fixed address? (d) an 18-year-old unemployed man who was found taking disposable nappies for his baby? (e) a 15-year-old youth who was seen in company with other boys who ‘got away’ from the store detective? (f) a wealthy, menopausal 55-year-old woman with money in her purse who cries when confronted and who has never done this sort of thing before? What difference, if any, do these different circumstances make? Would it be better if there were no discretion? Why or why not? 4.

Could you, or should you, act for a person you thought was guilty of a crime? Could you, or should you, act to prosecute a person you thought was innocent of the alleged crime? Why or why not?

5.

Consider the following statutory provisions. In each case identify the elements of these offences; that is, what the Crown must prove in order to obtain a conviction. Identify the physical elements and the necessary fault elements (if any) for each offence.

Crimes Act 1900 (NSW) 33A Discharging firearm etc with intent (1) Intent to cause grievous bodily harm A person who: (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to cause grievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. Road Transport (Safety and Traffic Management) Act 1999 (NSW) 12 Use or attempted use of a vehicle under the influence of alcohol or any other drug (1) A person must not, while under the influence of alcohol or any other drug: (a) drive a vehicle, or (b) occupy the driving seat of a vehicle and attempt to put the vehicle in motion, or (c) being the holder of a driver licence (other than a provisional licence or a learner licence), occupy the seat in or on a motor vehicle next to a holder of a learner licence who is driving the motor vehicle.

[page 72] Occupational Health and Safety Act 2000 (NSW) 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer.

6.

What is the difference between a crime of strict liability and a crime of absolute liability? (Hint: the answer lies in the defences available.) What factors should we look at to help determine whether parliament intended to create an offence of strict or absolute liability? Do you think speeding is an offence of strict/absolute liability or is it an offence where the Crown would need to prove fault element? What about murder?

1

A Goldsmith, M Israel and K Daly (eds), Crime and Justice: A Guide to Criminology, 3rd ed, Law Book Co, Sydney, 2006, p 9.

2

S Bronitt and B McSherry, Principles of Criminal Law, 2nd ed, Law Book Co, Sydney, 2005, p 5.

3

A Goldsmith, M Israel and K Daly (eds), Crime and Justice: A Guide to Criminology, 3rd ed, Law Book Co, Sydney, 2006, p 9.

4

United States ex rel Marcus v Hess 317 US 537 (1943) at 554.

5

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at [29] per Kirby J citing Customs Act 1901 (Cth) s 247.

6

Hon Murray Gleeson, The Rule of Law and the Constitution, ABC Books, Sydney, 2000, p 4.

7

Hon Murray Gleeson, The Rule of Law and the Constitution, ABC Books, Sydney, 2000, p 2.

8

Alfred Blumstein et al (eds), Criminal Careers and ‘Career Criminals’, two volumes, National Academy Press, Washington DC, 1986.

9

Bureau of Crime Statistics and Research (NSW), Recorded Crime Statistics, 1996–2005, available at .

10

Reference re Secession of Quebec [1998] 2 SCR 257–258, cited in Hon Murray Gleeson, The Rule of Law and the Constitution, ABC Books, Sydney, 2000, p 4.

11

Available at .

12

See the Human Rights Act 2004 (ACT) and Charter of Human Rights Act 2006 (Vic).

13

Human Rights Act 2004 (ACT) s 32; Charter of Human Rights Act 2006 (Vic) s 36.

14

Human Rights Act 2004 (ACT) s 22; Charter of Human Rights Act 2006 (Vic) s 25.

15

Nicholas Cowdery QC, Getting Justice Wrong, Allen and Unwin, Sydney, 2001, p 4.

16

Office of the Director of Public Prosecutions, Prosecution Guidelines, available at .

17

Model Criminal Code Officers Committee, Model Criminal Code Report, Chapters 1 and 2: General Principles of Criminal Responsibility, Criminal Law Officers Committee of the Standing Committee of Attorneys-General, December 1992.

[page 73]

2 Murder INTRODUCTION 2.1 This is the first of three chapters dealing with homicide: the unlawful killing of a human being. An unlawful killing may be either murder or manslaughter. As shall be seen, murder is a common law offence that has been modified by statute. Manslaughter is also a common law offence and may be further divided into voluntary and involuntary manslaughter. Voluntary manslaughter occurs where all the elements of murder are present, but the accused is able to rely on a partial defence reducing the offence to manslaughter. Those partial defences are now provided by statute and are extreme provocation, substantial impairment due to abnormality of mind, and excessive self-defence. The separate offence of infanticide is effectively a further statutory partial defence (see 3.43–3.45). Voluntary manslaughter is the subject of Chapter 3. Involuntary manslaughter arises where there is an unlawful killing in circumstances that do not amount to murder because of the absence of the necessary fault element for murder. This category of manslaughter is provided by the common law and will be discussed in Chapter 4. There is a further statutory form of homicide not being murder or

manslaughter. This is contained in s 25A of the Crimes Act 1900 (NSW) (‘the Crimes Act’): assault causing death. It will also be dealt with in Chapter 4 as it is similar to involuntary manslaughter. This chapter deals with the law of murder. The chapter also demonstrates the practical need to establish all the elements of a crime before it can be said that a person is guilty of a particular offence. The relationship between murder and the different types of manslaughter is shown in Flow Chart 2-1. You will see that the physical elements for murder and manslaughter are the same. In each case the Crown must prove an act or culpable omission of the accused that causes the death of the deceased. The difference between murder and manslaughter lies in the fault elements. [page 74]

FLOW CHART 2-1: MURDER AND MANSLAUGHTER

[page 75]

MURDER (Chapter 2)

[page 76]

VOLUNTARY MANSLAUGHTER (Chapter 3)

[page 77]

INVOLUNTARY MANSLAUGHTER (Chapter 4)

[page 78]

MCCOC ON MURDER AND MANSLAUGHTER 2.2 The Model Criminal Code Officers Committee

(MCCOC) (see further at 1.67) said the following about murder and manslaughter: MCCOC, Fatal Offences Against the Person Model Criminal Code, Discussion Paper, Chapter 5, June 1998, pp 1–4 All Australian jurisdictions distinguish between various forms of fatal offences. The primary distinction is between murder and manslaughter. While murder is reserved for what are, morally, the most serious cases of homicide, manslaughter has always been a residual category, and as a consequence remains a notoriously illdefined offence. Cases of manslaughter run the gamut from causing death by negligence, to cases of intentional killing involving mitigating circumstances such as provocation or diminished responsibility. … Murder and manslaughter are supplemented, in most Australian jurisdictions, by other offences such as infanticide and dangerous driving causing death. Unlike non-fatal offences, it is not possible to structure fatal offences using the extent of the harm inflicted by the defendant as a basis. This is obviously because in the case of fatal offences, the harm is always the same, namely, death. Rather, it is the defendant’s state of mind at the time he or she causes the death that determines the culpability of the defendant. A guilty state of mind is the fundamental criterion of fault that the community understands and accepts as requiring the intervention of the criminal justice system. In short a requirement for a guilty mind avoids “the public scandal of convicting on a serious charge persons who are in no way blameworthy”. The first principle, therefore, is that merely causing the death of another human being without more will not amount to culpable homicide; serious blameworthiness as denoted by the defendant’s guilty state of mind is further required. … Under present law, liability to conviction for murder is not limited to cases of intentional killing. The scope of the crime extends to include cases in which death resulted from acts committed recklessly, with knowledge that death or serious injury might result. The precise location of the borderline between the

offences of murder and manslaughter varies among Australian jurisdictions. In marginal cases the distinction is often the subject of appeals against conviction. The difference between murder and manslaughter may be exceedingly fine. Individuals who take conscious risks with the lives of others are liable to conviction for murder, unless the risk was justifiable. However, the degree of risk is crucial. Death resulting from the defendant’s dangerous conduct is only murder if it was done in realisation that death was a probable consequence. Conduct undertaken in the knowledge that death was merely a possible consequence makes the offender guilty of manslaughter, but not murder, in most, if not all, Australian jurisdictions. … Uncertainty on the question where to draw the line between murder and manslaughter has prompted proposals to abolish the distinction so as to merge murder and manslaughter into a single offence of unlawful homicide. The most common reason advanced in favour of the suggestion is the promise of clarity and avoidance of unworkable distinctions in homicide law. Despite the promise of increased clarity, the proposal has won few adherents. Law reform bodies, in Australia and in other jurisdictions with criminal laws resembling our own, have rejected proposals for a single, inclusive offence of unlawful homicide. …

[page 79]

MURDER IN NEW SOUTH WALES 2.3 In New South Wales the offence of murder is the subject of statutory definition. Section 18 of the Crimes Act states: 18 Murder and manslaughter defined (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 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. (b) Every other punishable homicide shall be taken to be manslaughter. (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. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.

2.4 Note that s 18 does not make murder a crime. As has already been noted, murder is an offence at common law. The purpose of s 18 is to define that element of common law murder known as ‘malice aforethought’: that is, the mental element of murder. The history of s 18 and the relationship between murder and manslaughter under the Crimes Act were extensively considered by the High Court in R v Lavender (2005) 222 CLR 67; 218 ALR 521.

ELEMENTS OF MURDER 2.5 The elements of murder in New South Wales are to be found in the definition in s 18 (see 2.3). Before a person may be convicted of murder the Crown must establish the following elements: 1.

an act or omission of the accused,

2.

that caused,

3.

the death charged,

4.

where the act was done or the omission was made: (a) with reckless indifference to human life, or

(b) with intent to kill, or (c) with intent to inflict grievous bodily harm, or (d) during or immediately after the commission of an offence that carries a punishment of imprisonment for 25 years or life. [page 80]

Physical elements Act or omission 2.6 In order to commit murder, there must be a voluntary act or culpable omission (see 2.8) of the accused that causes the death of the deceased. Section 18(2)(b) provides that there is no crime if death occurs as a result of ‘misfortune only’. The Queensland Criminal Code s 23(1) expresses a similar rule, but with perhaps greater clarity. The Code says that a person is not criminally responsible for ‘(a) an act or omission that occurs independently of the exercise of the person’s will; or (b) an event that occurs by accident’. 2.7 In most murder cases the Crown will be able to point to a clearly identified ‘act’ that it claims caused the death charged; that is, it will be able to identify that the accused shot, stabbed, smothered or in some other way killed the deceased. An accused has a clear interest in trying to have the Crown specify with great particularity the character of the ‘act of the accused’ relied upon, because, the more particular it is, the harder it may be for the Crown to show either that the alleged act was voluntary or that it caused the death charged. This issue appears to arise most often in cases where the deceased has been shot and the accused argues that he or she accidentally or involuntarily pulled the trigger, perhaps because of a reflex action when the deceased jerked (Ryan v R (1967) 121 CLR 205) or lunged at the accused (R v Katarzynski

[2005] NSWCCA 72). In these cases the accused wants to argue that it was the pulling of the trigger that caused the gun to discharge and ultimately caused the death of the deceased, but that pulling the trigger was not his or her voluntary act. Alternatively, the accused may argue, if the act relied upon by the Crown is presenting or pointing the gun at the deceased, that is not what caused the death charged. The problem is demonstrated in the following extract from Katarzynski. R v Katarzynski [2005] NSWCCA 72 NSW Court of Criminal Appeal [The appellant and the deceased had been involved in an altercation at a hotel where it was agreed it was the deceased who had offered the first violence. Later the appellant left, followed by the deceased. There was a dispute as to whether or not the appellant ‘lured’ the deceased to come over to him, but in any event, the appellant produced a gun that he had bought earlier in the evening and shot the deceased three times.] Sully J: [His Honour set out the facts as stated by the trial judge] … The offender’s version given both to the police and in evidence at the trial was that, after he was assaulted by the deceased in the gaming room, he decided to walk to his home a short distance from the hotel. This was despite the fact that he had driven his brother’s motor vehicle to the hotel and that his brother had ridden a motorbike there intending to exchange the bike for the motor vehicle. The offender’s version was that after he rounded the corner of the hotel and walked down the Hume Highway for a short distance towards his home, he realised that his brother was not with him and was still at the hotel. Being concerned for his brother’s safety, he turned around to return to the hotel. He was then suddenly confronted by the deceased a few paces from the corner of [page 81]

the hotel. The offender said that he then drew from his waist belt a loaded revolver, which he had purchased earlier that night. At the same time he told the deceased to “fuck off”. The offender’s evidence was that he was holding the weapon at about waist height, pointed across his body and towards the ground. The deceased then lunged towards him with his arms outstretched. The offender moved backwards and, at the same time, he flinched causing the gun to discharge. He told both the police and the jury that he did not mean to shoot the weapon and certainly had no intention of using it to injure the deceased. Three shots were fired each of which struck the deceased in the torso. One of the bullets entered the deceased’s back and penetrated his heart causing his death. Neither of the other two shots were life threatening, one passing through the deceased’s genital area and the other entered his shoulder lodging beneath the opposite armpit. Dr. Little who performed the autopsy on the deceased was unable to indicate the order in which the three injuries were inflicted. However, it seems to me that the most likely scenario is that the first shot fired was that which entered the front of the deceased in the area of his genitals and that the other two shots were fired rapidly thereafter, entering the deceased’s body as he turned away from the offender and crouched over as a result of the first injury. If this is so it is likely that it was the third shot fired that killed the deceased. [His Honour continued:] … Conviction Appeal: Ground 1 6 The Ground is: The trial Judge erred in his directions on voluntariness, causation, murder by reckless indifference to human life, self-defence and

excessive self-defence where the identified basis for primary liability was reckless indifference to human life. 7 This Ground conflates what are in fact four separate topics about each of which present complaint is made in connection with the learned trial Judge’s directions. It is necessary to look separately at each component part of the Ground. Causation 8 It is appropriate to begin the discussion by citing some relevant authorities. 9 In Royall v The Queen [1990] 172 CLR [378], Mason CJ made the following observations upon the topic of causation, albeit the particular case was not a shooting case: Ordinarily there is no occasion for a trial judge to spend much time on the identification of the act causing death, but there is a “logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified conditions or concomitants must be predicated if the terms of s. 18 are to be satisfied”, to repeat the words of Barwick CJ in Ryan v The Queen. In Ryan the trial judge’s directions were deficient in that they failed to isolate the particular act or acts which the jury might identify as the cause of death. In that case there was room for argument about what was the act which caused death. Different considerations arose for determination in ascertaining whether Ryan’s state of mind satisfied the requirements of s. 18, depending upon which act was identified as the cause of death. The Crown case was that Ryan went to rob a service station. While he had his finger on the trigger of a loaded, cocked gun pointed at the deceased’s back, with his other hand he tried to find a cord in his pocket. The deceased made a sudden movement, Ryan stepped back and the gun discharged, killing the deceased. If pressing the trigger was identified as the act causing death, the question was whether Ryan willed that act and intended to kill or inflict grievous bodily harm or whether it was an unwilled reflex movement. If, however, presentation of the gun was identified as the act causing death, the question was

whether Ryan knew that in the circumstances the involuntary discharge of the gun was probable: see per Barwick CJ; and note Reg v Crabbe (where the test applied by Barwick CJ in Ryan was discarded in favour of that just stated). Thus the case was one in which identification of the act causing death required “specific and close consideration”. Yet the directions given to the jury “appeared at times to treat the [page 82] whole conduct of the applicant from the inception of his exploit as the act causing death”, without descending to particularity: see, generally, per Barwick CJ. In Ryan, the Chief Justice pointed out that “the choice of the act causing death is not for the presiding judge or for the Court of Criminal Appeal: it is essentially a matter for the jury under proper direction”. So the question on this aspect of the present case is whether the trial judge adequately directed the jury as to the particular acts any one of which they might regard as the cause of the deceased’s death. In this respect there was, in my view, just as there was in Ryan, a need for the trial judge to give specific and close attention to the identification of the various acts which, on the Crown case, might have been the cause of death. [172 CLR 378 at 385, 386] 10 In Murray v The Queen [2002] 211 CLR 193, five Justices of the High Court of Australia discussed in four separate judgments the topic of causation in the particular context of a death by shooting. The case there in point was not governed, as the present appellant’s case is governed, by the provisions of the Crimes Act 1900 (NSW); but was governed, rather, by the provisions of the Queensland Criminal Code, section 23 of which provided that a person was not criminally responsible for (a) an act or omission that occurred independently of the exercise of the party’s will; or (b) an event that occurred by accident. 11 Four members of the Court, Gaudron, Gummow, Hayne and Callinan JJ, decided the appeal upon the basis that the trial Judge

had misdirected the jury on the onus of proof. Kirby J was of the contrary opinion on that particular point. Two members of the Court, Kirby and Callinan JJ, were of the opinion that the trial Judge had erred in not having directed the jury on the topic of unwilled acts as contemplated by paragraph (a), paraphrased above, of section 23 of the Code. Gaudron, Gummow and Hayne JJ were of the contrary opinion on that particular point. 12 Mr. Murray, like the present appellant, had presented a loaded firearm at his victim, allegedly with the sole intention of frightening the victim; but denied having deliberately pulled the trigger. 13 Gaudron J reviewed, inter alia, Ryan (supra), expressly adopting as “legally and logically correct” the analysis made by Barwick CJ in that earlier case. Her Honour thought that it had been incumbent upon the trial Judge to instruct the jury, in appropriate terms, that the jury must decide “… whether the prosecution had excluded beyond reasonable doubt the possibility that the gun had discharged without pressure being applied to the trigger and, also, the possibility that it was discharged by an unwilled reflex or automatic motor action”. Her Honour accepted, however, that the charge to the jury had dealt sufficiently with those points. [211 CLR at pp 199–201 passim] 14 Gummow and Hayne JJ delivered a joint judgment. Their Honours discussed at some length, and as follows, the difficulties that can often beset the identification, in a case of death by shooting, of the actual death-causing act: Consideration of the several cases in this Court in which questions about unwilled acts have been examined reveal some of the difficulties that, if not implicit in the concept of unwilled acts, at least are likely to arise in dealing with that concept. Prominent among those difficulties is understanding what is the relevant “act”, or in this case, the relevant “death-causing act”. Although it may now be regarded as clear that in this case, as in Falconer, the death-causing act was the discharging of the loaded shotgun, why is that the relevant “act” and what exactly does it encompass? In deciding what is the relevant act, it is important to avoid an overly refined analysis. The more narrowly

defined is that “act”, the more likely it is that there will be thought to be some question about whether the accused willed that act. Or, to put the same point another way, the more precise the identification of a particular physical movement as the “death-causing act”, the more likely it is that it will be harder to discern a conscious decision by the actor to make that precise and particular physical movement. As HLA Hart [page 83] pointed out more than forty years ago, a theory which splits an ordinary action into three constituents — a desire for muscular contractions, followed by the contractions, followed by foreseen consequences — is a theory based on a division quite at variance with ordinary experience and the way in which someone’s own actions appear to that person. As Hart said, “The simple but important truth is that when we deliberate and think about actions, we do so not in terms of muscular movements but in the ordinary terminology of actions.” The difficulty of over-refinement can be exemplified by comparison of this case with the facts in Ryan. In Ryan, Windeyer J characterised what had happened as Ryan pressing the trigger “in immediate response to a sudden threat or apprehension of danger”. In this case, the appellant said that the weapon discharged immediately upon his being struck by something the deceased threw at him. There seems little, if any, relevant distinction between the two descriptions. Of both it may be said that: The latent time [between threat, or assault, and firing the weapon] was in each case no doubt barely appreciable, and what was done might not have been done had the actor had time to think. But to identify the “act” as confined to that which was the immediate physical movement, a dorsiflexion of the finger, made in response to a perceived threat, or in this case the alleged blow, so confines the time for choice by

the actor as to invite the conclusion that the actor did the particular act without thought, and therefore without willing it. That is altogether too narrow a view of what is the relevant “act” which, in this case, would divorce the contraction of the finger from the admittedly deliberate pointing of a loaded and cocked weapon at the deceased and its discharge. So to confine the understanding of the relevant “act” would be to adopt an approach that overrefines the application of the criminal law, introducing nice distinctions that are not based upon substantial differences. That is why the “act” to which s 23(1) [of the Queensland Criminal Code] refers is not restricted to the appellant’s contracting his trigger finger. But what is encompassed by saying that it is the appellant’s discharging the loaded gun that must be willed? It now seems clear from Falconer that the “element of intention” which Windeyer J (in both Mamote-Kulang v The Queen and Timbu Kolian v The Queen) said should be added to the notion of will may not always be helpful, but there is much force in the views expressed by Windeyer J in Ryan to the effect that the language of “will” and “intellect”, “unintentional” and “inadvertent”, is necessarily imprecise. As Barwick CJ said in Timbu Kolian, “we lack a sufficiently flexible and at the same time precise vocabulary in this area of discourse”. In the end, it must be accepted that the distinctions with which the cases grapple may be founded upon overly simple understandings of the way in which human beings act which are understandings that are not easily applied to cases at the margin. In a case like the present, we do not think it useful to examine the problem by reference to presumptions that an act done by a person who is apparently conscious is willed or done voluntarily. Approaching the problem in that way may reveal which party must raise the issue to have it considered — the so-called evidentiary burden of proof. It may even help the tribunal of fact to decide what inferences can, or should, be drawn from evidence that

the accused was conscious at the time of the act in question. But it is not an approach which tells the tribunal of fact how or when that tribunal may reach a conclusion contrary to the starting point provided by the presumption. Rather than adopting approaches such as these, it is necessary to focus upon the relevant “act”. 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, e.g. 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 84] 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. [211 CLR at 209 through 211 [53]] 15 Kirby J dealt briefly and as follows with the topic of causation: I agree with Gaudron J that the identification of what was

the relevant “act” and whether it was willed or not were questions for the jury. They were not questions of law for the judge. Even if the final “act” was a reflex action, it only took on its fatal character because of earlier acts of the appellant dangerous to human life. Thus, I agree with Gaudron J that if the jury came to the conclusion that the ultimate “act” that led to the depression of the trigger of the loaded gun pointed at the deceased could be described as a “reflex” act, it was still a question for the jury whether that act was properly to be viewed as having occurred “independently of the exercise of the [appellant’s] will”. [211 CLR at 222 [89]] 16 Callinan J, the remaining member of the Court, dealt as follows with that topic: There will, obviously, be difficulty from time to time in identifying, for the purposes of s 23(1)(a), the relevant act. Equally, from time to time there will be difficulty in determining whether the evidence provides a sufficient basis for a direction as to either limb of s 23(1). But such difficulties do not relieve a trial judge from the necessity of so directing, when required, and, as to the first of them, of identifying, that is to say, effectively isolating what on the evidence is capable of being regarded as the act causing death and as the unwilled act. Everything that has relevantly occurred before it, including the earlier relations between the victim and the accused, and the latter’s acts in placing himself in such a position as to give the “act” the capacity to inflict harm, will have much to say about its true nature, that is, whether it was willed or not, but those earlier acts will generally not constitute the “act” itself, or be a constituent part of it. It will be, however, for the jury so instructed, in reaching their verdict of guilty or not guilty, to determine whether in fact the prosecutor has negatived that the death resulted from an unwilled act (or accident). A defence under s 23(1)(a) does not depend upon proof of, or the possibility of automatism or the like. It is available if the prosecution is unable to prove that the act

was not willed, whether the absence of will can be traced to a condition which can be satisfactorily described in medical or psychological terms, or whether it was simply an act neither impelled by the mind nor which the mind endorsed immediately before, or at the time of its occurrence. There may be some cases in which a sequence of acts is so interconnected, or that the first, or an intermediate act in the sequence, has so inevitable an outcome that to regard the ultimate act as the “act” for the purposes of s 23(1)(a) would be artificial and unrealistic, but such cases will be rare. The jury in this case would not have been obliged so to regard this case. Here the relevant act was, as the appellant submitted, identifiable, the discharge of the gun. Everything leading up to that point might have made it unlikely that it occurred as an unwilled act, but as there was evidence that it was, an obligation to give a direction about it by reference to s 23(1)(a) did arise. [211 CLR 235 [148] through 236 [150]] 17 It seems to me that the foregoing authorities distinguish, in a case of the present kind, between a finding of fact that identifies a death-causing act; and a discrete finding of fact that characterises, as having been either willed or unwilled, the death-causing act that has been so identified. The first of those two discrete findings of fact deals with the topic that the law calls ‘causation’. The second of the two findings deals with the topic that the law calls ‘voluntariness’. 18 In the present case, therefore, it seems to me that the trial Judge was required by law to make plain to the jury, on the topic of causation, these things: [1] That the Crown must prove beyond reasonable doubt some act or acts of the appellant that caused the death of the victim. [2] That the identification of any such act was a matter of fact for the jury alone. [page 85] [3] That the jury might so identify any act that the jury thought was established beyond reasonable doubt on the whole of the

evidence at trial. [4] That the evidence left open for the consideration of the jury two obvious practical approaches, mainly: (a) to identify as the relevant act the firing in quick succession and at close range of three pistol shots, one of them lethal, into the body of the victim; or (b) to identify as the relevant act a sequence of things done by the appellant from the moment at which he pulled a pistol known by him to be loaded out of his pants; to the moment when he fired those three successive shots. 19 I would say at once that I should have thought that on the facts of the appellant’s case any normal body of twelve persons would have regarded it as a matter of common sense that the actual death-causing act was the option [4](a) above; and that it was when proceeding to the next step of characterising that act as having been either willed or unwilled, that it would have been entirely appropriate to have had regard to the continuum of conduct commencing with the alleged luring of the victim by the appellant to the location of the shooting. 20 At the appellant’s trial the jury was given written as well as oral directions of law. The jury was instructed in writing that the Crown had to prove beyond reasonable doubt, and among other things, that it had been a deliberate act of the appellant that had caused the death of the victim. That direction was amplified by the following written directions: A deliberate act causing death. The act causing death must be the deliberate act of the accused. An act is not deliberate if it was not voluntary that is not willed by the accused. A spontaneous unintended reflex action is not itself a voluntary act. However, what act of the accused caused the death of the deceased is a matter of fact to be considered in light of all the conduct of the accused that led up to the discharge of the bullet which penetrated the heart of the deceased and caused his death. This is to be considered in a common sense way taking into account all that the accused did in discharging the gun. It

includes, but is not necessarily restricted to, the pulling of the trigger. 21 In the oral directions, the trial Judge instructed the jury at an early point in the summing-up: Now there is little doubt that the act, which caused the death of the deceased, was the act of the accused. He discharged the gun and although he can only recall two shots, there seems to be no doubt that he fired three and by all accounts one immediately after the other. But a question arises on the accused’s evidence whether the act causing death was deliberate that is whether he intentionally fired the weapon and in particular whether he intentionally fired the shot that penetrated the deceased’s heart and killed him. 22 Very shortly thereafter, and having given some oral directions about voluntariness, his Honour gave these directions: But just what was the act of the accused which caused the death of the deceased is a matter of fact for you to determine in all the circumstances in which the gun was discharged. You do not necessarily isolate the pulling of the trigger as a separate and distinct act taken out of context and say is that the act which caused the death of the deceased and then ask whether there is any reasonable possibility that was not a deliberate act of the accused. In the present case you know that the accused deliberately took possession of what he knew to be a loaded gun. He says he got it earlier that night when he purchased it from a stranger. He checked that it had bullets in it. He was unaware of whether it had a safety catch or not. He deliberately placed it down the front of his trousers where it remained until he says he was confronted by the deceased outside the hotel. He deliberately withdrew the gun from the front of his pants when he saw the deceased and deliberately presented it to the accused in that he held it in front of him intending, it seems, to use it at least to scare off the deceased. Finally you would consider that three shots were fired each

hitting the torso of the deceased. On those facts and that scenario it is for you to determine what, in that [page 86] context and considering all his actions, was the act of the accused which caused the death of the deceased and whether it was deliberate. In the circumstances of this case where the accused has deliberately presented a loaded revolver to the deceased in a situation of a possible attack upon him, if you found that the pressing of the trigger as a response to a sudden threat or apprehension of danger was no more than a probable and foreseeable consequence of deliberately presenting a loaded weapon to the deceased you could determine that the discharge of the gun was a voluntary or deliberate act of the accused notwithstanding that he may not have meant to fire it. Of course we do not know very much about the gun: whether it had a safety catch, whether it was prone to accidental discharge, or the force necessary to pull the trigger. We know that it was, according to the accused, a revolver, and it seems from all the evidence that the shots were fired off in rapid succession. So it is not a case of the weapon having to be reloaded or re-cocked each time. On the other hand according to the accused, the gun was in his waist belt for some considerable time without discharging even though the accused apparently played pool with it there and at one stage was violently pushed or head-butted by the deceased forcing him against the wall of the gaming room. So you look at all this material and decide what was the act of the accused which caused the death of the deceased: was it merely the unintentional pulling of the trigger or was it a more complex and composite act involving a number of steps deliberately taken by the accused which ended with the sudden and unexpected discharge or, on the Crown’s version, a deliberate firing of the weapon? If at the end of the day you find that there

exists a reasonable possibility that the act which caused the death of the deceased was not deliberate but was unintended and involuntary such as a reflex action, then the accused is not guilty of murder. Of course the issue only arises if you find that there is a reasonable possibility that the accused’s version is true. 23 Later still, and after directing the jury on the topic of murder by reckless indifference to human life, his Honour touched one final time upon the topic of causation, saying: Again you are concerned with the state of mind that the accused had at the time he committed the act causing death. Again it is for you to determine what is the act causing death. For example, as I said, if you found that while the deceased was approaching, the accused deliberately pulled out a loaded gun foreseeing that further violence by the deceased would occur and that in such a situation the gun would probably discharge causing the death of the deceased, then subject to selfdefence and provocation, the accused would be guilty of murder even though he never intended to cause the deceased’s death and even though when the gun discharged he was not intending to fire it. You should see then how important it is to determine what the act of the accused causing the death is, whether that act was deliberate and what was the state of mind of the accused at that time. 24 The written submissions of learned Senior Counsel for the appellant (who was not counsel at trial) make the following complaints about the foregoing directions: The first point to be made, then, is that his Honour did not deal with causation conformably with authority on the subject and, effectively, left open the possibility of the pulling of the trigger as the voluntary act causing death even if the pulling of the trigger was, in fact, a “reflex” action. This opened the way for a conviction for murder based on the brandishing of the gun.

In any event, these directions gave no or insufficient attention to the role, or otherwise, in causation, of the acts of the deceased in bringing about the discharge of the firearm, this based here on the appellant’s account outlined above. 25 I do not agree with those submissions. It is, I apprehend, a fair comment that the summing-up does not deal in a precisely discrete way with the separate topics of causation and voluntariness; but that is not a fatal flaw in the summing-up provided only that what was in fact put to the jury about causation was sufficient to bring the minds of the jurors to the issues that I have outlined at paragraph 17 above. In my opinion, [page 87] the directions given in fact on the topic of causation satisfy that proviso. There was at trial no submission to the contrary. Voluntariness 26 The relevant written directions have been quoted earlier herein: see paragraph 19. 27 The relevant oral instructions began thus: In effect what the accused seems to be saying is that although he intentionally removed the gun from under the front of his pants and intentionally presented it towards the deceased intending at least to scare him away, he did not deliberately point it at him or pull the trigger. He said that, as a reaction to the deceased lunging towards him, he flinched automatically and the gun discharged. In effect he is saying that the pulling of the trigger was not a deliberate act of him; it was involuntary without any thought at all let alone the intention of firing the weapon. Well if there is a real possibility that the shot that killed the deceased was discharged by an involuntary, unintended act of the accused then it was not a deliberate act of him. In other words he did not deliberately discharge the weapon and he cannot be guilty of murder. An involuntary reflex action is not a deliberate act and cannot by itself be the basis of criminal liability.

28 These directions were followed immediately by the directions that are quoted previously herein and at paragraph 21. 29 Thereafter his Honour said: So you look at all this material and decide what was the act of the accused which caused the death of the deceased: was it merely the unintentional pulling of the trigger or was it a more complex and composite act involving a number of steps deliberately taken by the accused which ended with the sudden and unexpected discharge or, on the Crown’s version, a deliberate firing of the weapon? If at the end of the day you find that there exists a reasonable possibility that the act which caused the death of the deceased was not deliberate but was unintended and involuntary such as a reflex action, then the accused is not guilty of murder. Of course the issue only arises if you find that there is a reasonable possibility that the accused’s version is true. Of course the Crown says that you would reject this version in light of the fact that the accused fired three shots all of which hit the deceased in the torso. Whether the issue arises at all might depend to a large extent upon what other facts you find proved by the evidence. For example if you were satisfied beyond reasonable doubt of the evidence of Mr. Siofele, that is, of the accused beckoning or even whistling from the corner of the hotel then the issue may not arise because a completely different complexion might be placed upon the firing of the weapon than that given to it by the accused. Even if you were satisfied beyond reasonable doubt that the deceased never went around the corner it may follow that you would reject the accused’s account of the manner in which the gun discharged. In such a case you might find that all the actions of the accused were deliberate including the firing of the shot that killed the deceased. 30 I can see no error in these directions. There was at trial no submission to the effect that there was any such error. The directions seem to me, with respect, to put clearly and succinctly the approach that was put by Windeyer J in Ryan (supra) in terms

which I apprehend to stand as good law and to be, if I may respectfully say so, lucid common sense: Words and phrases such as involuntary, unintentional, inadvertent, accidental, unmeditated, unthinking, not deliberate, unwilled and so forth are used by different writers. Their connotations often depend upon their context, and they are used in discussions which seem to drift easily off into psychological questions of consciousness, sanity and insanity and philosophical doctrines of free-will and of events uncontrolled by will. There is a discussion of some aspects of this subject in the American work, Reflex Action, a Study in the History of Physiological Psychology. I mention it, not because I profess any knowledge in this field, but because of the readiness with which the phrase “reflex action” was used [page 88] in the course of the argument as a presumably exculpatory description of the act of the applicant when he pressed the trigger of the firearm. The conduct which caused the death was of course a complex of acts all done by the applicant — loading the rifle, cocking it, presenting it, pressing the trigger. But it was the final act, pressing the trigger of the loaded and levelled rifle, which made the conduct lethal. When this was said to be a reflex action, the word “reflex” was not used strictly in the sense it ordinarily has in neurology as denoting a specific muscular reaction to a particular stimulus of a physical character. The phrase was, as I understood the argument, used to denote rather the probable but unpredictable reaction of a man when startled. He starts. In doing so he may drop something which he is holding, or grasp it more firmly. But assume that the applicant’s act was involuntary, in the sense in which the lexicographers use the word, would that, as a matter of law, absolve him from criminal responsibility for its consequences? I do not think so. I do not think that, for present purposes, such an act bears any true analogy to one done under duress, which, although done by an

exercise of the will, is said to be involuntary because it was compelled. Neither does it, I think, bear any true analogy to an act done in convulsions or an epileptic seizure, which is said to be involuntary because by no exercise of the will could the actor refrain from doing it. Neither does it, I think, bear any true analogy to an act done by a sleep-walker or a person for some other reason rendered unconscious whose action is said to be involuntary because he knew not what he was doing. Such phrases as “reflex action” and “automatic reaction” can, if used imprecisely and unscientifically, be, like “blackout”, mere excuses. They seem to me to have no real application to the case of a fully conscious man who has put himself in a situation in which he has his finger on the trigger of a loaded rifle levelled at another man. If he then presses the trigger in immediate response to a sudden threat or apprehension of danger, as is said to have occurred in this case, his doing so is, it seems to me, a consequence probable and foreseeable of a conscious apprehension of danger, and in that sense a voluntary act. The latent time is no doubt barely appreciable, and what was done might not have been done had the actor had time to think. But is an act to be called involuntary merely because the mind worked quickly and impulsively? I have misgivings in using any language descriptive of psychological processes and phenomena, especially as I doubt whether all those skilled in this field employ their descriptive terms uniformly. Guided however by what has been said in other cases and by writers on criminal law whose works I have read, and especially by the judgments in the House of Lords in Bratty v Attorney-General for Northern Ireland, I have come to the conclusion that if the applicant, being conscious of the situation in which he had put himself, pressed the trigger as a result, however spontaneous, of the man whom he was threatening making some sudden movement, it could not be said that his action was involuntary so as to make the homicide guiltless. The act which caused the death was, it seems to me, using the language of s. 18 of the statute, an act of the accused. The question for the jury was whether it was an

act done by him in such a way as to make the resulting homicide murder. This was the issue submitted to the jury. [121 CLR at 244–246, passim] … [His Honour then proceeded to consider other grounds of appeal. Spigelman CJ and Kirby J (in a separate judgment) agreed with Sully J. Appeal against conviction dismissed.]

Culpable omissions 2.8 Murder can also be committed by omission. In Airedale NHS Trust v Bland [1993] AC 789; [1993] 1 All ER 821, doctors in England were concerned that they would be liable for murder if they withdrew treatment from a young man who had suffered catastrophic and permanent brain damage during a football disaster. They sought a declaration that their proposed course of action would be lawful. In the course of granting the declaration the House of Lords considered whether a person can be criminally responsible for murder by omission. Lord Browne-Wilkinson said (All ER at 880): [page 89] As to the guilty act, or actus reus, the criminal law draws a distinction between the commission of a positive act which causes death and the omission to do an act which would have prevented death. In general an omission to prevent death is not an actus reus and cannot give rise to a conviction for murder. But where the accused was under a duty to the deceased to do the act which he omitted to do, such omission can constitute the actus reus of homicide, either murder (see R v Gibbins (1918) 13 Cr App R 134) or manslaughter (see R v Stone [1977] QB 354; [1977] 2 All ER 341) depending upon the mens rea of the accused.

Lord Mustill said (All ER at 890): The English criminal law, and also it would appear from the cases cited, the law of transatlantic state jurisdictions, draws a

sharp distinction between acts and omissions. If an act resulting in death is done without lawful excuse and with intent to kill it is murder. But an omission to act with the same result and with the same intent is in general no offence at all. So also with lesser crimes. To this general principle there are limited statutory exceptions, irrelevant here. There is also one important general exception at common law, namely that a person may be criminally liable for the consequences of an omission if he stands in such a relation to the victim that he is under a duty to act. Where the result is death the offence will usually be manslaughter, but if the necessary intent is proved it will be murder …

2.9 The leading New South Wales case on liability for omissions is R v Taktak (1988) 14 NSWLR 226, discussed further at 4.14 as part of a consideration of manslaughter by criminal negligence. Taktak confirmed that liability for death caused by omissions arises when the accused has undertaken some duty to care for another. The liability will be murder if the failure to act in the circumstances is accompanied by the necessary fault elements for murder, otherwise it will be manslaughter. The circumstances when killing by omission may amount to murder were explained by Barr J in Taber. R v Taber; R v Styman [2002] NSWSC 1329 NSW Supreme Court [This judgment was delivered by the trial judge, Barr J, after the jury had retired to consider its verdict. The judge had previously made a ruling that the jury should be instructed to consider whether the accused was guilty of murder by omission. The accused had robbed the victim and left her bound and gagged and unable to call for help. One of the accused rang 000 to report the victim’s predicament but the ‘triple 0’ call was not acted upon and she died of dehydration. In giving his reasons for leaving the matter with the jury, Barr J said:] 1 … I made it clear that I proposed to leave to the jury the availability of a verdict of guilty of murder in any accused’s case constituted by an omission to fulfil a legal duty to remove the

deceased from the danger in which she had been put combined with a realisation at any time during the period of omission and ending with the death of the deceased that she would probably die. Now that the jury have retired and there is more time to deal with the matter I wish to record my reasons for leaving murder to the jury in the manner that I have … [page 90] 8 There exist well-recognised categories of circumstances which give rise to a legal duty in one person to act in a particular way towards another, a failure to perform which will render the obligated person liable to be dealt with criminally. Such categories have been listed in a number of cases, for example R v Taktak (1988) 14 NSWLR 226, R v Joukhadar Court of Criminal Appeal, New South Wales, 13 June 1975, unreported, People v Beardsley 113 NW 1128 (1907), R v Lawford (1993) 61 SASR 542. I gratefully adopt the judgment of Yeldham J in R v Taktak at 236–245. 9 There can be no liability for nonfeasance unless there is a legal, as opposed to a moral, duty to act: R v Taktak; R v Joukhadar; People v Beardsley. So an innocent bystander has no legal duty to rescue a drowning man. However, a person may by voluntary conduct convert a moral obligation to a legal one. Examples are R v Gibbins and Proctor (1918) 13 Cr App R 134, where a woman assumed responsibility to care for the child of her de facto husband, R v Nicholls (1874) 13 Cox CC 75, where a woman took on the care of her grandchild. In R v Marriott (1838) 8 Car & P 425 the prisoner, who was convicted of manslaughter on an indictment for murder, had taken an aged and infirm woman and confined her against her will and had not provided her with the food, clothing and medicine she needed to sustain life. 10 In People v Beardsley McAlvay CJ said this at 1129–1130 — The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter … This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to

perform the duty must be the immediate and direct cause of death … Although the literature upon the subject is quite meager and the cases few, nevertheless the authorities are in harmony as to the relationship which must exist between the parties to create the duty, the omission of which establishes legal responsibility. One authority has briefly and correctly stated the rule, which the prosecution claims should be applied to the case at bar, as follows: “If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, master to seaman etc, knowing such person to be in peril, wilfully and negligently fails to make such reasonable and proper efforts to rescue him as he might have done, without jeopardizing his own life, or the lives of others, he is guilty of manslaughter at least, if by reason of his omission of duty the respondent person dies. So one who from domestic relationship, public duty, voluntary choice or otherwise has the custody and care of a human being, helpless either from imprisonment, infancy, sickness, age, imbecility, or other incapacity of mind or body is bound to execute the charge with proper diligence, and will be held guilty of manslaughter if by culpable negligence he lets the helpless creature die. 11 Dealing with the English cases of R v Nicholls and R v Instan [1893] 1 QB 450, the Chief Justice continued at 1130 — The charge of this nisi prius judge recognizes the principle that a person may voluntarily assume the care of a helpless human being, and, having assumed it, will be held to be under an implied legal duty to care for and protect such person; the duty assumed being that of caretaker and protector to the exclusion of all others. 12 In R v Taktak Yeldham J identified at least four situations where failure to act might constitute breach of a legal duty, namely where a statute imposes a duty to care for another, where one stands in a certain status relationship to another, where one has assumed a contractual duty to care for another and where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid (at 243–244).

13 The facts of R v Taktak were as follows. The appellant was a drug addict who procured for a heroin dealer the services of two prostitutes. He took them to a party held by the dealer. The prostitutes took heroin at the party. Later on, in response to a telephone [page 91] request, the appellant went to certain premises to collect one of the prostitutes. He found her sitting on the floor of a building moaning and unable to speak. He took her by taxi back to his own premises. He realised that she had taken heroin. He tried unsuccessfully to wake her. He did not summon medical help. She failed to recover consciousness and died. Yeldham J concluded at 246 that the critical question was whether there was evidence that the appellant had voluntarily assumed the care of the deceased “and so secluded the helpless person so as to prevent others from rendering aid”. 14 In R v Lawford the Court exemplified at 547–548 situations in which a duty might arise, including this — (vi) where the defendant has himself put a person in danger by a wrongful act, he is probably under a duty not to leave that person in danger. 15 There is a related question, namely whether it is correct or preferable to categorise what caused death as an act followed by an omission or as a continuous act, commencing when the deceased was attacked and ending when she died. Ultimately the Crown submitted that either approach was permissible. … 23 There are two other matters that I must deal with. The first comes from a submission that the omission would lead to liability in manslaughter but not in murder. There is plenty of authority to the effect that an omission to fulfil a duty, if it causes death, may lead either to murder or to manslaughter depending on whether the Crown can prove what is necessary for murder or manslaughter. It would be surprising if it were not so. In R v Conde (1967) 10 Cox CC 547 the two accused withheld food from their child, who died of starvation. The jury were directed that if the accused wilfully withheld necessary food with a wilful determination by withholding sustenance which was requisite to cause death then the accused were guilty of murder but that if they had the means to

supply necessaries the want of which led to the death of the deceased and that they negligently though not wilfully withheld food which would have sustained life that would amount to the crime of manslaughter. 24 R v Gibbins and Proctor was a case based on the withholding of essential food from a child, who died. Murder and manslaughter were left to the jury and the conviction was for murder. 25 In R v Lowe (1850) 3 CAR & K 123 Lord Campbell CJ said at 124 that a man may by neglect of duty render himself liable to be convicted of manslaughter or even of murder. 26 In R v Shepherd (1861) Le & Ca 3 147 at 155 Erle CJ said that the cases where the person whose death is caused has been brought into circumstances where he cannot help himself, as by imprisonment by the act of the party charged, are distinguishable from other cases (which would lead to manslaughter). 27 In R v Marriott it was held that a verdict of guilty of murder was available if the accused contemplated death whereas it would be manslaughter if death were occasioned by negligence. [Following appeals and consequent further proceedings, all three accused finally received convictions for manslaughter. See (2007) 170 A Crim R 427.]

Causation Intervening acts and events 2.10 As with identifying what ‘act or omission’ of the accused is the relevant act, the question of causation, that is, whether the act or omission caused the death, [page 92] is usually straightforward. It becomes complex when an event, such as the action or omission of the deceased or another person (for example, a medical practitioner) comes between the act of the accused and the death, and the court

has to decide whether it was the accused’s act or an intervening event that caused the death. Royall v R (1991) 172 CLR 378; 100 ALR 669 High Court of Australia [The appellant had been convicted of the murder of Kelly Healey. There was evidence of a struggle in the flat they had been sharing. The appellant had argued at his trial that he had not caused the death of the deceased. He claimed that he forced his way into the bathroom because of concerns for her safety and that, as he entered the room, she was seen to jump out the window. She died as a result of injuries she suffered in the fall.] Deane and Dawson JJ: The applicant was convicted of the murder of Kelly Healey. The deceased fell six floors to her death from the bathroom window of a flat in Kings Cross on 16 November 1986. When the police arrived at the scene, they found the applicant sitting sobbing on the roadway beside the body of the deceased. For four months before her death the applicant had shared the flat with the deceased. The deceased’s fall followed an argument between the deceased and the applicant. For some days the deceased had been staying with a friend and had discussed with her the prospect of living with her permanently. During this time the deceased and the applicant quarrelled. The deceased returned to the flat late on Saturday night, 15 November 1986, and cleaned it up. In the early hours of Sunday morning the applicant arrived home, having been drinking beer since 9 o’clock on Saturday evening. He admitted that a quarrel arose between the deceased and himself. He said that he ‘backhanded’ her and punched her twice in the face and in the nose. He admitted that he grabbed her by the hair at one stage and shook her. Photographs showed that the deceased had sustained significant facial injuries. It appears that the applicant had held the deceased around the throat with one hand leaving bruises on her neck and that while he was doing that he slapped and punched her, causing the dislocation of her nose and considerable bleeding. There was a cut to one of the deceased’s eyes and cuts to her lips which were

both internal and external. Clearly there had been considerable violence. Blood was found in a number of places in the bed-sitting room: on the bedclothes, on clothing, on the video, on walls and on the refrigerator door. The television set had been knocked over on to the floor and there was blood on it. The deceased went into the bathroom, locked the door, undressed and began to shower. It appears that the applicant and the deceased continued to shout at one another. After a short time, estimated by the applicant to be five, ten or fifteen minutes, the applicant tried to force the lock on the bathroom door with a large clasp knife. The applicant also banged on the door with his arm. It is apparent that the door was forced open by pressure applied by the applicant from outside. What exactly happened in the bathroom is unclear. In his first record of interview, taken on the morning the deceased died, the applicant said that when he broke into the bathroom: She (the deceased) was through the window virtually, most of her was out. She was crouched on the ledge, below the window. Her head and arms were out the window. As that door opened she just stepped out the window. [page 93] In his unsworn statement at trial, the applicant repeated this explanation. The applicant also suggested that the deceased may have been suffering from depression, perhaps related to epilepsy, or from withdrawal symptoms connected with the use of amphetamines. The bathroom was a very small room. Upon entering the room, a toilet was straight ahead. To the right was a bath and to the left was the window between a hand basin and the toilet. Below the window was a vanity unit. The window itself was about a metre up from the floor. It was shoulder-width wide and less than a metre high. A glass ashtray was found broken in the bathroom. There were glass chips on the bathroom floor and there were gouge marks on two of the walls consistent with the applicant’s having swung the ashtray with his right arm commencing at the centre of the base of

the window, thence to a first gouge mark on some tiles and continuing through to a second gouge mark on the adjacent wall. There were, however, no bruises or marks on the deceased’s scalp which were consistent with her being struck by the ashtray. When a police witness was asked in cross-examination what the applicant had said to him when questioned as to whether he had struggled in the bathroom with the deceased, he said the applicant replied: “No. If I did I only grabbed her by the hair.” In the first record of interview the applicant said that he had only yelled at the deceased in the bathroom, and could not recall whether he had thrown anything at her in there. In his unsworn statement the applicant denied having touched the deceased in the bathroom at all. The deceased’s blood was found on the bathroom walls above her height, near the window and on the window sill and surrounds. The pattern was consistent with a bloodied object having struck a target, spraying the window, tiles and walls with blood. There were strands of hair lying in the bathroom, some with roots attached. Hair was attached to the tiles at the location of the gouge marks. Water and tissues, discoloured with blood, and hair were found in the toilet bowl. There were abrasions to the back of the deceased’s legs, consistent with her having fallen backwards out of the bathroom window, scraping her legs on the exterior brickwork as she fell. Also consistent with her having fallen in this manner was the evidence of stuntmen who attempted to reproduce her fall. An expert witness gave evidence that there were two possibilities: that the deceased had her back facing outwards, her legs inside, and she toppled out backwards or that she was sitting on the window sill, her legs dangling outside, and she fell forwards. The deceased appeared to have landed in an almost-sitting position, taking the impact of the fall on the base of her spine and her hand and falling backwards. … Essentially, the defence of the applicant was that he did not cause the death of the deceased but that, if he did, it was without reckless indifference to human life, without intent to kill and without intent to inflict grievous bodily harm. The trial judge charged the jury that there were three alternative

ways in which the jury might be satisfied beyond reasonable doubt that the applicant caused the death of the deceased. He told them: … the question immediately arises for you: was there an unlawful act of the accused causing death. Death, we know, resulted from the fall from the window … Are the acts of the accused that have been proved before you causatively linked to that fall. … The first alternative is that Kelly Healey was pushed or forced out of the window in a physical way by the accused. … A second factual circumstance open to you is that Kelly Healey fell from the window whilst avoiding a blow or an attack from the accused. Such a circumstance would not be an intentional endeavour by her to escape from the accused but rather an avoiding action on her part which resulted in a fall through the window. … [page 94] The third allegation is that Kelly Healey at the time immediately before her fall from the window, had a wellfounded and reasonable apprehension that if she remained in the bathroom she would be subjected to such further violence as would endanger her life and if in those circumstances she sought to escape by jumping out of the window thinking that by so doing she had a better chance of saving her life than by staying inside, and was killed in that fall, the causal link between the acts of the accused and the death are established. … The fourth factual circumstance that is open to you is that Kelly Healey jumped of her own volition, whether as a result of drugs or depression or epilepsy or otherwise would not matter. What would be important is that the act of leaving the window was not the result of or causatively linked to the acts of the accused. It would be suicide. If you found that then you must acquit the accused. Upon the request of counsel for the applicant, the trial judge also

put to the jury the possibility that the deceased fell out of the window accidentally; that she may have been sitting on the window sill and slipped. He directed the jury that such an occurrence would fall within the fourth category mentioned by him, indicating an absence of the required causal connection between the acts of the applicant and the death. This stood in contrast with the second category in accordance with which the deceased would have moved to avoid a swinging arm, with or without a weapon, being backed up against the open window with nowhere to flee. Whilst the trial judge left the jury with possible alternative views of the evidence, he made it clear to them that the applicant would not be guilty of murder unless he caused the death of the deceased. He said: The elements of murder involve that there be an unlawful act which is the act of the accused, which means that it must be an act which is conscious and willed and a voluntary act. It must be an act of the accused which caused death. In identifying the second and third possible views of the evidence, the learned trial judge clearly had in mind those cases which have been referred to as fright, escape or self-preservation cases in which the accused causes the victim to flee or take other steps to avoid harm threatened by the accused, whereby the victim suffers injury, fatal or otherwise. Where the injuries are fatal, the offence committed may be either murder or manslaughter depending on the circumstances of the case. The basic principle was stated by Lord Coleridge CJ in R v Halliday (1889) 61 LT 701, at p 702: If a man creates in another man’s mind an immediate sense of danger which causes such person to try to escape, and in so doing he injures himself, the person who creates such a state of mind is responsible for the injuries which result. In New South Wales in R v Grimes and Lee (1894) 15 NSWR 209, the accused were charged with the murder of Ah Choy, who was a fellow passenger with them in a railway carriage. They had robbed and assaulted Ah Choy causing him to jump to his death from the

window of the carriage. The Full Court approved a direction to the jury which was in the following terms: If, then, you are satisfied that Ah Choy left the window immediately after the robbery and wounding took place, and if you are satisfied that, though Ah Choy was not actually put through the window by the prisoners, yet that when he jumped through he had a well-founded and reasonable fear or apprehension that if he stayed in the carriage he would be subjected to such further violence as would endanger his life, and if he left the carriage thinking that by doing so he had a better chance of saving his life than by staying in, and was killed in the fall, then the prisoners are guilty of murder, and are just as responsible for the man’s death as if they had taken him in their hands and thrown him out of the window. Where in a case of that kind the charge is murder, the prosecution must not only prove that the accused caused the death by inducing a well-founded fear or apprehension on the part of the deceased such as to make it a natural consequence that he or she should take steps to flee or escape, but it must also prove that the words or conduct which [page 95] induced that fear or apprehension were accompanied by the intent which is a necessary ingredient of the crime of murder. In New South Wales, where the common law concept of malice aforethought is replaced by the statutory formula contained in s 18 of the Crimes Act, the requisite intent is a reckless indifference to human life, or an intent to kill or an intent to inflict grievous bodily harm upon some person. But the intent need not embrace the events which actually occur. While the death of the deceased must be caused by the accused, it may occur in a manner not contemplated by the accused, provided that the acts or words of the accused which cause the death are accompanied by the necessary intent. As was observed by McGarvie and O’Bryan JJ in R v Demirian [1989] VR 97, at p 113: If a person creates a situation intended to kill and it does kill it is no answer to a charge of murder that it caused

death at a time or in a way that was to some extent unexpected. In a defenestration case such as the present one it is as likely as not that the accused will not have intended the deceased to meet his or her death by jumping from a window, but it is important to keep the question of causation separate from that of the mental state required for murder. Provided that the words or actions of the accused which cause the deceased to jump or fall from the window (that is, the words or actions which cause death) are accompanied by the requisite intent, that will be sufficient to constitute murder. Of course, there may be no single cause of the death of the deceased, but if the accused’s conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder. It is for the jury to determine whether the connection between the conduct of the accused and the death of the deceased was sufficient to attribute causal responsibility to the accused. No doubt in some cases of murder it may assist the jury if the trial judge points out not only that there must be a causal connection between the acts (or, more rarely, omissions) of the accused and the death of the deceased, but that the causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused. However, in many cases of murder, particularly where a single act such as shooting or stabbing is alleged, it may be unnecessary to elaborate the requirement that the death should have been caused by the accused. In other cases it may be appropriate to point out that the causal chain must not be broken by some intervening event which operates to relieve the accused of responsibility, but such a direction would ordinarily be better put by reference to the actual facts of the case than couched in abstract terms. … McHugh J: … In most criminal cases, the issue of causation is not controversial. If an accused’s act or omission is causally linked with the event or occurrence, it is always only one of the conditions which were jointly necessary to produce the event or occurrence. Ordinarily, however, the application of the commonsense test of causation is enough to determine whether the

accused’s act or omission was sufficiently significant to make him or her ‘causally responsible’ for the event or occurrence in question. But there are two cases where the invocation of commonsense principles of causation often provides little assistance to the jury. The first is the case where an accused’s act would not have brought about the event or occurrence without the intervention of a subsequent act of the victim or a third party. The second is the case where, notwithstanding the accused’s act or omission, the event or occurrence could have been prevented if the victim or a third person had taken action to avoid the consequences of the act or omission. In these cases, common law judges have sought to use more specific tests for determining whether “but for” acts or omissions of the accused were “causally responsible” for the event or occurrence. The common law judges have used at least four tests for this purpose. They are: (1) the operating and substantial cause test; (2) the natural consequence test; (3) the reasonable foresight of the consequences test; and (4) the novus actus interveniens [page 96] test, which is used sometimes in conjunction with and sometimes independently of one of the other three tests. Unfortunately, the cases show no consistent pattern in applying these tests. Frequently, one test has been used to the exclusion of the others without any express recognition of the existence of the other tests. … … [T]he rules concerning causation are in an inconsistent and unsatisfactory state in cases where harm to the victim has occurred because of the subsequent acts or omissions of the victim or a third party. This branch of the law is in evident need of rationalisation. When such a situation exists, it is the duty of this Court, as the ultimate appellate tribunal of the nation, to seek to achieve that object by recourse to the underlying principles of the common law. Judicial and academic efforts to achieve a coherent theory of common law causation have not met with significant success. Perhaps the nature of the subject matter when combined with the lawyer’s need to couple issues of factual causation with culpability make achievement of a coherent theory virtually impossible. But

there is little hope of obtaining a coherent theory of causation if the principles of causation in criminal cases are significantly different from those in the civil law. No doubt the object of the civil law is not the same as the object of the criminal law. But both areas of law use principles of causal responsibility to limit liability for the consequences of wrongful acts. Tort and contract law do so, inter alia, by rules of remoteness of damage which are based on notions of justice and morality: cf Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388, at pp 422–423. Criminal law does so by reference to rules which are based on notions of moral culpability. Speaking generally, the broad principles of causation applicable in civil cases should be equally applicable in criminal cases. The law of negligence, where issues of causation have arisen frequently, has used the doctrines of reasonable foreseeability and novus actus interveniens to limit responsibility for negligent acts and omissions which are causally connected with injury suffered: Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, at p 529. Reasonable foreseeability has been used to limit the liability of a tortfeasor because ‘it does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be “direct”’: The Wagon Mound (No 1), at p 422. The novus actus interveniens doctrine has been used to limit the liability of a tortfeasor because he or she is perceived as having no moral responsibility for damage when a fully-informed actor, not acting under constraint or pressure flowing from the tortfeasor’s actions, has intervened and produced that damage even though it would not have occurred but for the tortfeasor’s act or omission. For the same reasons, in a criminal case, a person should not be held liable for a wrongful act or omission which has caused harm in a “but for” sense if that harm was the product of a novus actus interveniens or was not a reasonably foreseeable consequence of the act or omission. It goes almost without saying, however, that a person should be held liable for harm which is causally linked with his or her conduct and which he or she intended should be brought about by that conduct: cf Hart and Honore, Causation in the Law, 2nd ed (1985), p 79.

The test of reasonable foresight is to be preferred to the “natural consequence” test and the “operating cause and … substantial cause” test. The balance of authority favours the reasonable foresight test over the “natural consequence” test. Moreover, the word “natural” is ambiguous. In Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (‘The Wagon Mound (No 2)’) [1967] 1 AC 617, Lord Reid said (at p 634), “[t]he word “natural” is found very often and is peculiarly ambiguous.”… … [page 97] [F]or the purposes of the criminal law, causation cannot be separated from questions of moral culpability. And a person should not be regarded as morally culpable in respect of harm which he or she did not intend and which no reasonable person could foresee. However, notwithstanding what was said in Daley [Director of Public Prosecutions v Daley [1980] AC 237] and Grimes and Lee, I do not think that either principle or policy requires the conclusion that an accused is not causally responsible for the harm suffered by the victim simply because the accused’s act or omission has caused the victim to act unreasonably. One of the basic objects of the criminal law is the preservation of the Queen’s peace. If the conduct of the accused in fact induces the victim to do something which “causes” harm to him or her, the act of the victim ought not to be regarded as a novus actus interveniens merely because it was unreasonable. Persons subjected to violence or the threat of violence do not always think rationally or act reasonably. The instinct of self-preservation often causes them to flee or to take action which, while avoiding the immediate danger, places them in greater peril. Indeed, in some cases, the suicide of the victim should not be regarded as breaking the causal chain of responsibility. If a person suicided to avoid further torture and eventual death, I do not see why the causal chain should be taken as broken … The unreasonable failure of a victim to receive medical attention will not constitute a novus actus interveniens … How then can unreasonable conduct on the part of a victim in escaping an attack automatically constitute a novus actus interveniens? It is true that in the first case the victim has refused to take action which would prevent his or her death, while in the

second case the victim has taken action which causes his or her death. But in each case, the death occurs only because of conduct on the part of the victim which is unreasonable by objective standards. It is not easy to see any distinction in principle between the two cases. It is even more difficult to see why the conduct of the victim should absolve the accused in one case and not the other. The fact that the victim’s act is unreasonable in seeking to escape from the violent conduct of the accused, therefore, does not seem enough by itself as a matter of either principle or policy to enable the accused to escape causal responsibility for the harm which ensues. On the other hand, even though the victim’s act is not a novus actus interveniens, to hold that the accused was criminally responsible for harm which was not intended and which no reasonable person could have foreseen was likely to result from his or her conduct would be an onerous imposition of the criminal law. Consequently, in a case such as the present, an accused should not be held to be guilty unless his or her conduct induced the victim to take action which resulted in harm to him or her and that harm was either intended by the accused or was of a type which a reasonable person could have foreseen as a consequence of the accused’s conduct. In determining whether a reasonable person could have foreseen the harm suffered by the victim, any irrational or unreasonable conduct of the victim will be a variable factor to be weighed according to all the circumstances of the case … [Mason CJ, Brennan, Deane, Dawson and McHugh JJ granted special leave to appeal, but dismissed the appeal. Toohey and Gaudron JJ dissented and would have allowed the appeal. Leave to appeal granted, appeal dismissed.]

2.11 In Arulthilakan v R (2003) 189 ALR 40, the High Court applied Royall, approving the reasoning of McHugh J and endorsing the language of ‘substantial cause’. [page 98]

Voluntary act of the deceased

2.12 Whether the act of the accused was a substantial cause of the death of the deceased may depend upon the capacity of the deceased to make a fully informed and rational decision as a response to the accused’s act. So, where the accused supplies the deceased with a noxious substance which the deceased ingests with fatal consequences, the question whether the act of supply is an act causing death may depend upon the capacity of the deceased to decide to ingest the substance supplied. This issue was discussed in Justins v R (2010) 79 NSWLR 544 in relation to an assisted suicide where poison was given by the appellant to the deceased who was suffering from Alzheimer’s disease. It has also arisen in a case where the deceased died after being supplied with an illegal drug by the appellant. Burns v R (2012) 246 CLR 334; 290 ALR 713 High Court of Australia [The appellant and her husband sold methadone from their unit to persons who either injected the drug on the premises or took it away to ingest later. The deceased attended the premises and was supplied with methadone, which he immediately ingested. He became ill and left the unit, dying from the effects of the methadone in the toilet in the yard of the premises. The Crown alleged at trial that the supply of the methadone to the deceased was an unlawful and dangerous act making the appellant liable for manslaughter of the deceased. In the High Court the Crown conceded that by itself the supply of a drug could not be dangerous but relied upon an allegation that the appellant or her husband had injected the deceased with the drug.] French CJ: [10] It is for the jury to decide whether an unlawful act is dangerous in the sense explained in Wilson and Lavender. The question whether there is evidence capable of supporting a finding that the act is dangerous, in the relevant sense, is a matter for the judge. There was nothing in the evidence to support the proposition that the supply of a prescription quantity of methadone

to an adult person of ordinary capacity could be characterised as carrying with it an appreciable risk of serious injury. The Crown did not put a case to the jury that supply of methadone to the deceased was itself an unlawful and dangerous act which would support a conviction for manslaughter. Nevertheless, the trial judge directed the jury on the basis that supply alone was capable of being so characterised. [11] The charge of manslaughter based upon supply of a drug to an adult person who dies as a result of its ingestion can raise difficult questions of principle and of the application of principle. The question whether supply can be characterised as dangerous depends upon the circumstances. It may be said that drug use in general is dangerous but as one academic commentator has written: The paradigm of unlawful act manslaughter, and one which limits the role of luck, involves an act which is dangerous in the specific context rather than dangerous as a more general social phenomenon. There may be a case for specific legislation to cover culpable drug induced homicide. It is undesirable to strain the criteria for liability for involuntary manslaughter at common law in order to cover drug-related deaths at the margins of those criteria. [page 99] [12] The application of the common law criterion of unlawful and dangerous act to drug supply and injection cases in the United Kingdom has varied and evolved, reflecting the difficulties which particular cases can throw up. R v Cato concerned consensual but unlawful injection of a user which resulted in his death and was sufficient to establish liability without a separate consideration of dangerousness. The consent of the deceased was not a defence and there was no suggestion that it might be relevant to causation. In R v Dalby the accused supplied a drug to the deceased who injected himself. The Court of Appeal identified as a “difficulty” the fact that the supply of the drug was not an act which caused “direct” harm. The court said:

the supply of drugs would itself have caused no harm unless the deceased had subsequently used the drugs in a form and quantity which was dangerous. Dalby was “explained” in Goodfellow as “intending to say … that there must be no fresh intervening cause between the act and the death”. R v Dias resembled Dalby. The accused had handed a syringe containing heroin to the deceased who self-injected and died. Holding that the supply of the heroin was not an “unlawful and dangerous act”, the Court of Appeal said that the deceased was an adult who could decide for himself whether or not to inject the heroin: His own action in injecting himself might well have been seen as an intervening act between the supply of the drug by the defendant and the death of [the deceased]. [13] Dalby and Dias were referred to with approval by the House of Lords in R v Kennedy (No 2). There, their Lordships said: the act of supplying, without more, could not harm the deceased in any physical way, let alone cause his death. That observation was underpinned by a particular view of the criminal law as generally assuming the existence of free will: generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act. That view was supported by reference to statements by Glanville Williams and Hart and Honore, which are quoted in the joint judgment. Exceptions were acknowledged in the case of young people, those not fully responsible for their acts, the vulnerable and those subject to circumstances of duress, necessity, deception and mistake. The exceptions were treated by their Lordships as matters relevant to causation. They were also at least arguably relevant to whether the supply of drugs to another creates, by reason of an attribute or condition or circumstance of the other, “an appreciable risk of serious injury”. [14] The House of Lords in Kennedy (No 2) was asked the question:

When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death? The answer given by their Lordships was: In the case of a fully-informed and responsible adult, never. The absolute character of that answer directs attention to the cautious oxymoron “never say never”. It is as much applicable to the law as other spheres of life and more so when it relates to an apparently normative statement based upon a narrow factual hypothesis. The joint judgment in this case however applies the proposition, which I accept, that underpins the reasoning in Royall v R: “that the voluntary and informed act of an adult negatives causal connection”. [page 100] [15] As their Honours point out a different approach was taken in Scotland in MacAngus v HM Advocate. In its discussion of causation, the High Court of Justiciary referred to Kennedy (No 2) and, after referring to Scottish authorities which had not been cited in the House of Lords, said: These Scottish authorities tend to suggest that the actions (including in some cases deliberate actions) of victims, among them victims of full age and without mental disability, do not necessarily break the chain of causation between the actings of the accused and the victim’s death. What appears to be required is a judgment (essentially one of fact) as to whether, in the whole circumstances, including the inter-personal relations of the victim and the accused and the latter’s conduct, that conduct can be said to be an immediate and direct cause of the death. The court quoted an observation of Lord Justice-Clerk Thomson who, in the context of civil proceedings in Blaikie v British

Transport Commission, described the problem of causation as “a practical one rather than an intellectual one”. He said: It is easy and usual to bedevil it with subtleties, but the attitude of the law is that expediency and good sense dictate that for practical purposes a line has to be drawn somewhere, and that, in drawing it, the Court is to be guided by the practical experience of the reasonable man rather than by the theoretical speculations of the philosopher. The court in MacAngus, in a passage quoted in the joint judgment which is not necessary to repeat here, could see no reason why the criminal law in Scotland should not adopt a “similar practical, but nonetheless principled, approach”. The approach favoured in MacAngus, however, does not represent the law in Australia. [16] Ultimately the Court of Criminal Appeal did not decide the question of causation by applying any novel principle. Rather, it held the trial judge’s directions in relation to causation were appropriate on the basis that the evidence of the condition of the deceased when supplied with the methadone left open the question whether he was a fully informed and responsible adult at that time. However, as explained in the joint judgment, the evidence did not support the proposition that the act of the deceased was not voluntary or informed. It was voluntary in the sense that he made his own decision to take the drug. It was informed in the sense that he knew that what he was taking was methadone. I should add that, as appears from the joint judgment, this is not a case in which the court has been invited to endorse the approach, also considered by the Court of Criminal Appeal, that the predictable responses of a sane adult to the act of another can be said to have been caused by that act. Gummow, Hayne, Crennan, Kiefel and Bell JJ: Manslaughter by unlawful and dangerous act — the supply of the methadone [75] In New South Wales, the elements of the offence of manslaughter are supplied by the common law. Manslaughter by unlawful and dangerous act requires that the unlawful act causing death be 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. [76] 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. [77] There has not been any extended consideration in Australia of the application of the law of manslaughter to the illicit supplier of a drug that, when taken by the person to whom the drug is supplied, causes that person’s death. But these issues have been explored by the English and Scots courts and it is useful to consider how these courts have dealt with them. [78] The Crown’s concession in this case, that the supply of methadone to the deceased was not a dangerous act, accords with English authority that the supply [page 101] of a controlled drug cannot support a conviction for unlawful and dangerous act manslaughter since the act of supply, without more, could not harm the deceased in any physical way. The correctness of this conclusion was affirmed by the House of Lords in R v Kennedy (No 2). [79] The Court of Criminal Appeal confined its analysis to causation and did not address the anterior question of whether the act of supply of the prohibited drug was relevantly “dangerous”. It was disinclined to follow the English approach, that manslaughter by unlawful and dangerous act cannot be established where the supply of the drug is to a person who is a “fully informed and responsible adult”. The Court preferred the approach adopted in Scotland in drug homicide cases. [80] There was no issue in Kennedy (No 2) that liability for unlawful and dangerous act manslaughter could not depend on the act of supply alone. Kennedy (No 2) resolved a controversy concerning the liability of the person who provides assistance to the deceased in injecting the prohibited drug. In question was whether Kennedy’s acts of preparing a dose of heroin and giving the syringe to the deceased at the deceased’s request amounted to

“administering” the drug contrary to the statute. Kennedy’s initial appeal against his conviction was dismissed by the Court of Appeal (Criminal Division) in a decision that proved to be controversial and which was later distinguished. Subsequently, the Criminal Cases Review Commission referred Kennedy’s conviction back to the Court of Appeal. The Court of Appeal again affirmed the conviction, holding on this occasion that Kennedy had been jointly engaged in administering the drug. It certified the following question for the opinion of the House of Lords: When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death? [81] The House of Lords answered the certified question: “In the case of a fully-informed and responsible adult, never.” Their Lordships’ analysis of causation proceeded upon acceptance that the law treats informed adults of sound mind as “autonomous beings able to make their own decisions how they will act”. They referred with approval to Glanville Williams’ statement of the principle: I may suggest reasons to you for doing something; I may urge you to do it, tell you it will pay you to do it, tell you it is your duty to do it. My efforts may perhaps make it very much more likely that you will do it. But they do not cause you to do it, in the sense in which one causes a kettle of water to boil by putting it on the stove. Your volitional act is regarded (within the doctrine of responsibility) as setting a new ‘chain of causation’ going, irrespective of what has happened before. And to that of Hart and Honoré: The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility.

[82] In Scotland, the supply of a controlled drug has been found to be a legal cause of the death of an adult who voluntarily consumed the drug. This decision follows Khaliq v HM Advocate, in which the supply of solvents to children was held to be capable of being the cause of injury to children who inhaled the vapours from them. In MacAngus v HM Advocate, a bench of five was constituted to review this line of authority in the light of the decision in Kennedy (No 2). In issue were preliminary challenges to counts charging culpable homicide against two accused. In one case, the unlawful act was the supply of a controlled drug to the deceased and, in the other, the act was the injection of the drug at the deceased’s request. In giving the judgment of the High Court of Justiciary, Lord justice General Hamilton said this: [page 102] We see no reason why the criminal law in Scotland should not, consistently with earlier authority in this jurisdiction, adopt a similar practical, but nonetheless principled, approach. The adult status and the deliberate conduct of a person to whom a controlled drug is recklessly supplied by another will be important, in some cases crucial, factors in determining whether that other’s act was or was not, for the purposes of criminal responsibility, a cause of any death which follows upon the ingestion of the drug. But a deliberate decision by the victim of the reckless conduct to ingest the drug will not necessarily break the chain of causation. [83] The references to recklessness in the formulation of the principle are significant. Recklessness, the foundation of culpable homicide in Scots law in cases of this kind, was not “wholly irrelevant” to the causal determination. The law, it was said, could more readily treat the reckless accused as responsible for consequences in the form of the actions of others “to whom he directs such recklessness”. [84] Recklessness does not inform unlawful and dangerous act manslaughter in Australia. The Court of Criminal Appeal did not embrace the reasoning of the High Court of Justiciary in this respect. However, it agreed with the conclusion that the voluntary act of an informed and responsible adult taking a prohibited drug

might not prevent the anterior act of supply of the drug from being in law the cause of the drug taker’s death. This is because: Where natural or physical events are being considered a voluntary human act may be the cause of that act. But when that human act is one which follows from the act of another human the position may be otherwise. The more predictable the response the more likely it is that the earlier act will be accepted to have caused, in the relevant sense, the later act. [85] This is in line with Professor Feinberg’s theory of causation, which suggests that “the more expectable human behavior is, whether voluntary or not, the less likely it is to ‘negative causal connection’”. It is a theory commended by one commentator as better reflecting the moral dimension of a death occasioned by the supply of an unlawful drug. The alternative view is that expressions of moral judgment should not intrude into the causal inquiry. [86] The analysis of the causation of homicide in Royall v R is posited on an acceptance that the voluntary and informed act of an adult negatives causal connection. Absent intimidation, mistake or other vitiating factor, what an adult of sound mind does is not in law treated as having been caused by another. The introduction of the concept of the predictable response of the sane adult actor would radically change the rationale for and the nature of the causal inquiry. Neither party invited this Court to endorse that approach. [87] The deceased was a sane adult. It is not suggested that his decision to take the methadone was vitiated by mistake or duress. His ability to reason as to the wisdom of taking methadone is likely to have been affected by the drugs that he had already taken but this is not to deny that his act was voluntary and informed. It was informed because he knew that he was taking methadone. He chose to take methadone not knowing what effect that drug would have in combination with the drugs he had already taken. A foolish decision to take a prohibited drug not knowing its likely effects is nonetheless the drug taker’s voluntary and informed decision. [88] The Crown’s concession that the unlawful supply of methadone was not an act capable of founding liability for

manslaughter should be accepted. 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. [89] Acceptance of the Crown’s concession required that the appeal be allowed. The Crown submitted that the appropriate consequential order was for a new trial at which [page 103] it should be permitted to present a case on manslaughter by unlawful and dangerous act based on the appellant’s alleged complicity in injecting the deceased with methadone. This appeal is not the occasion to consider the responsibility for manslaughter, of a person who assists an adult at the adult’s request with the administration of a prohibited drug. Nor is it necessary to consider whether the Crown should be permitted to run a new case relying on a different unlawful act. This is because the evidence at the trial was not capable of establishing the appellant’s complicity in injecting, or assisting to inject, the deceased with the drug. The Court of Criminal Appeal’s conclusion to the contrary was based upon a misunderstanding of a concession made by the appellant. [The appeal was allowed, the conviction of manslaughter quashed and a verdict of acquittal entered.]

Pre-existing susceptibility 2.13 Accused persons must take their victims as they find them. The fact that the victim is weak and succumbs to some relatively minor injury is no reason to conclude that the actions of the accused did not cause the death charged. R v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174 NSW Court of Criminal Appeal [The appellant and the deceased had consumed a great deal of alcohol together. There was a fight and the deceased was ‘struck several times about the chest with a hammer and manually strangled’. The appellant argued that the Crown could not establish

that it was his action that caused the death, as the evidence was consistent with sudden death due to heart attack or alcohol poisoning.] Wood CJ at CL: … 25. Post mortem examination of the deceased, by Dr Lawrence, revealed that he had suffered fractures to two ribs. Blood was found in his lungs indicating to Dr Lawrence that he was still alive when his ribs were fractured. Those injuries were consistent with him having been struck by a hammer and with the production of an audible cracking noise. An oblique fracture to the thyroid cartilage was found, along with bruising to the neck of the deceased. The fracture to the cartilage was not itself life threatening, and could have occurred immediately before, at the time of, or just after death (ie during the peri mortem period). 26. Three factors contributing to death were noted by him, namely the ‘combined effects of compression of the neck, blunt force chest injury, and acute ethanol intoxication’. A fourth significant condition of the deceased was noted, namely that he had a seventy five percent occlusion of a coronary artery, which made him vulnerable to the risk of sudden death, without prior warning signs. 27. The description of the appellant seeing the tongue of the deceased turn blue and his eyes roll back, Dr Lawrence said, was consistent with the description of a person ‘being strangled to the point of unconsciousness’. The presence of forceful movements, while being strangled, and the absence of breathing, or of a pulse, a short time later, was suggestive to him of a temporal link and causal nexus, between the neck compression and death. [page 104] 28. A blue tongue, he conceded, could also be indicative of death from a heart attack or from alcohol poisoning, while the rolling back of the eyes could be a sign of a coma due to acute alcoholic intoxication. Although there were no signs of petechial haemorrhages, a common sign in cases of manual strangulation, that, he said, can occur where the compression to the neck is quick and forceful. 29. The normal path towards death from alcohol toxicity, Dr Lawrence said, involved a person becoming progressively more

comatose, although that depended on how quickly the alcohol was ingested. 30. Dr Lawrence agreed that, based purely on the autopsy findings, he could not attribute to any one of the likely causes identified, ie neck compression, acute alcohol toxicity, and cardiac arrest due either to atherosclerosis, or to blunt chest trauma, a higher degree of probability than another. … 32. Dr Byron Collins, a forensic pathologist, who was called by the defence, said that it was not possible to determine which of the potential causes of death identified by Dr Lawrence was “the most likely”. They may have acted individually or in conjunction. Those observations, however, so it became clear from his evidence, were based solely on the ‘pathological findings’. 33. The thyroid cartilage fracture, which could be associated with a loud crack, he said was unusual in a case of manual strangulation, but not impossible. The absence of petechial haemorrhage, he also agreed, while common in cases of manual strangulation, was not so uncommon as to exclude that possibility. It was also possible, he said, that the neck injuries were due to a fall or were occasioned after death. The rolling of the deceased’s eyes and the change in colour of his tongue, he thought, did not indicate anything specific other than that the cerebral, musculature and cardiac functions were compromised. Whether that was due to the cardiac problems or to asphyxia he was unable to say. 34. The toxic effects of alcohol he explained as acting as a depressant for the central nervous system, particularly the respiratory centre, which can cause breathing to stop, leading to death. Additionally, the toxic effects can damage the heart fibres and produce cardiac arrhythmia of sufficient severity to produce death. 35. Another possibility, that emerged in his evidence, related to the circumstance that manual strangulation can lead to sudden death where there is an interference with the carotid sinus and the vagus nerve, a consequence that is more likely in a person predisposed to cardiac arrest. …

Causation 61. As noted above, the evidence raised a number of possible causes of death: (a) strangulation; (b) blunt force compression of the chest; (c) cardiac arrest; (d) alcoholic poisoning; and (e) a combination, of all or any two or more, of those causes. 62. It was submitted that, in those circumstances, the Crown could not have satisfied his Honour beyond reasonable doubt, that an act of the appellant caused, or accelerated the death of the deceased. More precisely, it was submitted that the reasonable hypothesis that the act of the appellant, which he may have believed caused or contributed to the [page 105] death of the deceased, occurred after he was already dead or at a time when he was coincidentally dying from unrelated causes. … 65. His Honour, having noted the evidence of Doctors Lawrence and Byron Collins, correctly observed that the appellant, having used violence on the deceased, had to take him as he found him … Mamote-Kulang (1964) 111 CLR 62 is clear authority for the proposition that the presence, in the deceased, of a constitutional defect unknown to his assailant which makes the victim more susceptible to death than would be a person in normal health, does not enable the assailant to claim that death is an accident: Windeyer J there observed, at 79: A killing is not less a crime because the victim was frail and easily killed … 66. It does not matter that there is more than one cause of death: Butcher [1986] VR 43, even if the victim is suffering from a condition that is threatening death, so long as the contribution of the accused later mentioned is present. It is indeed a

misapplication of principle to attempt a search for a principal cause of death … 67. In the present case, it is true, the appellant was confronted with a man who was susceptible to sudden death, because he had atherosclerotic disease, because his blood alcohol level approached a lethal level, and because he suffered from alcohol related liver disease, which may have reduced his resistance and otherwise impaired his health. 68. Having noted that the precise mechanism of death was “obscure”, in those circumstances and upon the pathology, his Honour correctly in my view identified the issue for determination as being whether, by his actions, the appellant accelerated the death of the deceased in a way that met the test of causation. 69. On that issue of causation his Honour then correctly directed himself by reference to the fact that in Royall (1990) 172 CLR 378, each of Mason, CJ; Deane and Dawson JJ; and Gaudron and Toohey JJ, in their separate judgments, cited with approval: … the comments of Burt CJ in Campbell v R [1981] WAR 286, where the following was said: (at 290) (It is) enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter. 70. The formulation of the test to be applied was not stated by their Honours in identical terms. Brennan J said that the accused’s act or omission ‘must contribute significantly to the death of the victim’ (at 398). Deane and Dawson JJ said that it would be sufficient if the accused’s conduct “is a substantial or significant cause of death” (at 411). The “causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused” (at 412). Toohey and Gaudron JJ said the jury will inevitably concentrate its attention upon ‘whether the act of the accused

substantially contributed to the death’ (at 423). McHugh J said that the wrongful act must be “An operating cause and a substantial cause” (at 444). 71. What is clear is that the act of the appellant must have more than a coincidental or insignificant effect — rather it must provide a substantial contribution towards the death of the deceased: See also Smith [1959] 2 QB 35; Evans and Gardiner (No 2) [1976] VR 523; Bingapam (1975) 1 1 SASR 469 at 480; Hallett [1969] SASR 141; and Osland (1998) 159 ALR 170 at 174. Although there has been some debate as to whether the expression “significant” is interchangeable for “substantial” in this context (see Vol 24 Criminal Law Journal April 2000 at 73), I am content to accept for the present purpose the latter. 72. If the appellant’s act does not initiate that process of death, then it has been held, that it must at least accelerate it by an amount that is “more than de minimis”: Hennigan [page 106] [1971] 3 All ER 133; Cato [1976] 1 WLR 110, and Smithers (1977) 34 CCC (2d) 427 at 435. Such expression is, however, somewhat lacking in certainty, and I would prefer to employ a test in terms requiring a substantial contribution to any process that is under way, in order to achieve a consistency in relation to acts initiating and accelerating death. Nothing, however, turns upon that in this appeal, as it is evident that his Honour looked for an accelerating contribution that was substantial. [His Honour reviewed the evidence presented at trial then continued:] … 76. As was the case in Puckeridge (1999) 74 ALJR 373a, it was in my view open to his Honour to be satisfied beyond reasonable doubt that the appellant had physically attacked the deceased, and that this attack either coincided with or immediately preceded his death. Once this conclusion was reached it was equally open to him to dismiss, as unreasonable, the possibility that his death was unconnected with the attack, but was attributable to the entirely coincidental suffering of cardiac arrest or collapse due to alcoholic toxicity. In this regard, while, on a purely scientific or philosophic basis, the autopsy findings left open several possibilities, once they were considered in the light of the events as described by the

appellant, the only reasonable hypothesis open was that found by his Honour. [Foster and Adams JJ agreed with Wood CJ at CL. Appeal dismissed.]

Death of a living person 2.14 Under s 18 of the Crimes Act (see 2.3) it is the ‘death charged’ that must be caused for an offence of murder. At common law, the death caused must have been of ‘any reasonable creature in being’ (Sir Edward Coke (3 Inst 47)). In other words, a living person must be killed. The common law has attempted to define when life begins and ends. In R v Hutty [1953] VR 338 at 339, Barry J said: [L]egally 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 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 the mother by the umbilical cord; that does not prevent it from having a separate existence. But it is required … that the child should have an existence separate from and independent of its mother, and that occurs when the child is fully extruded from its mother’s body and is living by virtue of the functioning of its own organs.

2.15 The relevant test for New South Wales is set out in the Crimes Act: 20 Child murder when child deemed born alive On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not.

Section 20 applies only to murder. It essentially adopts the Hutty test (see 2.14). The test for determining whether the

‘child’ killed is a ‘person’ for the purposes of the law of manslaughter is set out in R v Iby (see 2.17). For a discussion of whether the death of the foetus can amount to grievous bodily harm to the mother, see R v King (2003) 59 NSWLR 472; [2003] NSWCCA 339. The killing of a foetus in utero cannot be murder (but see Crimes Act ss 21 and 82–85). [page 107] 2.16 A person who is already dead cannot be murdered. Equally, where a person is not yet dead, for example, when he or she is on life support, no conviction for murder can be maintained. The legal definition of death for New South Wales is given in s 33 of the Human Tissue Act 1983 (NSW). 33 When death occurs For the purposes of the law of New South Wales, a person has died when there has occurred: (a) irreversible cessation of all function of the person’s brain, or (b) irreversible cessation of circulation of blood in the person’s body.

2.17 In Iby, the Court of Criminal Appeal considered when a child is ‘born alive’ for the purposes of manslaughter. R v Iby (2005) 63 NSWLR 278; [2005] NSWCCA 178 NSW Court of Criminal Appeal Spigelman CJ: 1. On 4 April 2002 the Appellant was driving a stolen vehicle … at excessive speed and in an erratic manner. After colliding with a car travelling in the same direction the Appellant’s vehicle crossed the double white lines and collided head-on with a car driven by Mrs My Nghi Vongratsavai, who was 38 weeks pregnant. Following her arrival at Liverpool Hospital, an emergency caesarean was performed on Mrs Vongratsavai and a male infant in poor condition was delivered, subsequently named Mathew Joseph Vongratsavai. The delivery occurred at 11.48 am.

Mathew was pronounced dead exactly two hours later at 13.48 pm. 2. The Appellant was charged with a number of offences including, manslaughter … He pleaded not guilty to these charges … 3. Where an offence involving killing or death of a newly born child arises as an element of a criminal offence, there is a longestablished common law rule that the element cannot be established unless the baby was “born alive”. The issue that arises in this case is what is meant by the words “born alive?” 4. It was the Crown case, both at first instance and in this Court, that Mathew was fully issued forth from his mother and lived independently of her for two hours before he died, albeit supported by mechanical respiration. The baby was, it was submitted, a person within the law. 5. The Appellant’s case was that the baby was not born alive and did not live independently. The primary basis of the submission was the lack of, or paucity of, evidence that the baby breathed independently. The Appellant submitted that the presence of a heartbeat, which did exist, was not enough for the baby to have been born alive for purposes of the common law rule. Alternatively, in this Court, the Appellant relied on the absence of or paucity of evidence of the baby’s brain function. Accordingly, it was submitted, the Appellant did not cause the death of another person. … The Born Alive Rule 25. The “born alive” rule can relevantly be traced back to the 17th century … 26. The born alive rule was applied in a number of distinct areas of the common law, including, relevantly, the law of homicide, where it had considerable practical [page 108] significance in distinguishing the misdemeanour of procuring an abortion from the felony of homicide. … 27. The rule consists of two distinct components. First, that the

foetus must have completely left its mother’s body (although the umbilical cord did not have to be cut, see R v Trilloe (1842) Car & M 650; 175 ER 674). Secondly, the child must be alive at or after birth, in that sense, had occurred. The case law does not always clearly distinguish between the two elements. This appeal is concerned with the second limb of the rule. 28. In Australia, the rule was stated by Barry J in his Honour’s charge to the jury in R v Hutty … [His Honour set out an extract from Hutty as contained in 2.14, above, and continued:] 29. The rule remains the law in Australia and has been applied in this Court. (See R v F (1996) 40 NSWLR 245 esp at 247–248 per Grove J.) 30. There is a body of commentary on the born alive rule upon which I have drawn to identify the relevant case law and to understand the development, scope and purpose of the rule … 31. The law presumed that all children were born dead and the fact of live birth had to be established by evidence … Usually such proof was not difficult, but problems arose when a child died soon after birth and there was no, or little, direct evidence of what had happened at or immediately after birth. 32. The born alive rule is based on two anachronistic, indeed antiquated, factors. First, the primitive state of medical knowledge at the time that it was adopted. Second, the related fact that birth was a process fraught with risk until comparatively recently and, accordingly, there was a high probability that a stillbirth had natural causes. 33. At the time the rule was adopted, there were considerable difficulties in establishing that the foetus was alive at the time of the allegedly criminal act, and that the child would have lived but for the act. … 36. The position is now totally transformed. Information about the vitality of the foetus is now readily available. 37. The second basis for the born alive rule was the prevalence of stillbirths. It is for this reason that the common law developed a

presumption that a baby was born dead and evidence was required to prove live birth. 38. Statistics on this matter are not available until well after the born alive rule was adopted. However, the anecdotal evidence is overwhelming and is supported by such quantitative information as is available. … [His Honour reviewed the early authorities and the medical evidence on which they were based and continued:] 62. This review of the authorities indicates that his Honour was correct to hold that the evidence of heartbeat was sufficient to satisfy the common law born alive rule. His Honour was also correct to reject the Appellant’s submission that a person cannot be born alive unless the person had manifested an ability to breathe without assistance. 63. The born alive rule is, as I have indicated above, a product of primitive medical knowledge and technology and of the high rate of infant mortality characteristic of a long past era. There is a strong case for abandoning the born alive rule completely, as has occurred by statute in many states of the United States and by judicial decision in Massachusetts, South Carolina and Oklahoma. 64. The context in which the rule arises for present consideration is a context in which the Appellant wishes to avoid criminal responsibility for manslaughter of a baby which [page 109] was injured as a late term foetus, indeed was fully developed in perfect condition and within a week or two of actual birth. In the current state of medical technology and with the extremely low rate of stillbirths in the Australian community, the born alive rule, if it is to survive at all, should continue to be applied, as Ellis DCJ did, so that any sign of life after birth is sufficient. This happens to be consistent with the authorities. 65. It is also the approach which conforms best with contemporary conditions. It is now virtually certain that a newborn baby which shows any sign of life would have lived but for the conduct, said to constitute manslaughter or dangerous driving, inflicted on the baby late in the mother’s pregnancy. The viability of a foetus can now be both established and ensured in a manner which was beyond the

realms of contemplation when the born alive rule was adopted. That rule should now be applied consistently with contemporary conditions by affirming that any sign of life after delivery is sufficient. … The Proposed Brain Death Rule 68. The Appellant’s submissions appear to rely on two alternative arguments with respect to the implications of s 33 of the Human Tissue Act 1983, set out above. First, it was suggested that the Act operated of its own force to change the common law by reason of the fact that it introduced a definition of death “for the purposes of the law of New South Wales”. The second argument appears to be that the common law should be adapted, so that the definition of life coincides with the new statutory definition of death. 69. In Ansett Australia v Dale [2001] NSWCA 314 at [31] the Court of Appeal described the introductory words of s 33 as meaning that the definition of death was one ‘of general application’. 70. The thrust of the Appellant’s submissions was that it would be anomalous if a person could be classified as “dead” for virtually all purposes of the law of New South Wales, but also be classified as “alive” for some of those purposes, specifically with respect to the application of the common law born alive rule to criminal offences. I cannot myself identify any relevant anomaly, other than perhaps a semantic one, which should not be determinative. 71. It is important in this, as in so many contexts, to bear in mind Fullagar J’s warning in Attorney General (NSW) v Perpetual Trustee Co Limited (1951–1952) 85 CLR 237 at 285 to resist “… the temptation, which is so apt to assail us, to import a meretricious symmetry into the law”. Although a similar argument has succeeded in the United States (see State of Wisconsin v Cornelius 152 WIS.2d 272 (1989)), I would not adopt it here. 72. The scope and purpose of the Human Tissue Act, to which I will further refer below, providing as it does a definition of death of general application, does not indicate any legislative intention to alter the concept of “life” for purposes of the law, specifically the born alive rule. There is no purpose of the legislative scheme that would be served by extending its application in this manner, on the

basis of a semantic analogy of the character relied upon by the Appellant. 73. The Act finds it [sic] origins in the consideration of brain death by the Australian Law Reform Commission in its report on Human Tissue Transplants (Report No 7 AGPS Canberra 1977). … 76. The Human Tissue Act is part of a scheme which is in large measure a national scheme. The Australian Law Reform Commission recommendation of a definition has now been adopted in all States and Territories, other than Western Australia. … 77. There are considerable difficulties in developing the common law by analogy with statute. See the discussion in Esso Australia Resources Australia Limited v Federal Commissioner of Taxation (1999) 201 CLR 49 esp at [23], [64], [91] and [144]. Here there [page 110] is a much closer approximation to a national uniform regime than that considered by the High Court in Esso. Only Western Australia wholly fails to adopt the definition and only Queensland limits its application to the particular purposes of the Transplantation and Anatomy Act 1979 (Qld). Nevertheless, there is no uniformity. 78. More significant, however, for present purposes is the above analysis with respect to the application of the statutory definition of death to the common law born alive rule. The Courts should also resist the temptation to introduce a meretricious symmetry between the common law and statute law. The definition of death does not, other than in the context of semantic symmetry, require a corresponding definition of life. This is particularly so for the purposes of a common law rule which, as I have indicated above, is itself anachronistic and which adopts an artificial and nonscientific concept of when life begins. Other than in semantic terms, this test for the born alive rule is not the reciprocal of death as now defined by statute. [Grove and Bell JJ agreed with the reasons and decision of Spigelman CJ that the appeal should be dismissed.]

2.18 Iby was applied in Whelan v R [2012] NSWCCA 147

where the appellant was convicted of dangerous driving causing death. As a result of the motor vehicle accident the pregnant passenger suffered a detachment of the placenta from the uterus. The infant was born prematurely and died as a result. The Court held that there was sufficient causal connection between the dangerous driving and the death to sustain the charge even though the infant was not alive at the time of the collision.

Fault elements 2.19 We now turn to the fault elements of murder. Section 18 of the Crimes Act (see 2.3) provides that the act or culpable omission that causes death must be accompanied by a stipulated fault element (mens rea). To be murder, the accused must have acted (or culpably omitted to act): with reckless indifference to human life; with intent to kill; with intent to cause grievous bodily harm; or during or immediately after the commission of a serious criminal offence (with respect to which serious criminal offence the accused had the required mens rea): see 2.28.

Reckless indifference to human life 2.20 The High Court considered the term ‘reckless indifference to human life’ in Crabbe. This was a case that came to the High Court from the Northern Territory before the enactment of the Criminal Code of the Northern Territory. At the time, the relevant law in the Territory was the common law, which underpins the Crimes Act. The effect is that, even though this case originated under the law of a territory, the principles there laid down remain applicable to

New South Wales (see R v White, Eaves and Parker (1989) 17 NSWLR 195). [page 111] R v Crabbe (1985) 156 CLR 464; 58 ALR 417 High Court of Australia [The accused had been convicted of murder following an incident in the Northern Territory. After having been ejected from a bar in which he had been drinking, the accused had driven his truck (prime mover and trailer) into the bar, killing five people who were then in the bar. He argued that he did not intend to kill, and did not realise that he would kill anyone. In the course of giving directions to the jury, the trial judge had said, inter alia, that a person was guilty of murder with reckless indifference to human life, if he realised the possibility that his actions would cause death, or that death was likely. The accused was convicted and appealed to the Full Court of the Federal Court, which upheld his appeal and ordered a new trial. The Crown appealed to the High Court.] Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ: … The Criminal Code Act 1983 (NT) had not been passed at the times material to this case and the rules of the common law governed the question what mental element is necessary to constitute the crime of murder, or, to use the traditional terminology, what is meant by malice aforethought. That question was answered in Stephen’s Digest of Criminal Law, 1st ed (1877), in art 223 which, so far as is relevant, is as follows: … Murder is unlawful homicide with malice aforethought. Malice aforethought means… (a) An intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not; (b) Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.

There has been in this Court some difference of opinion as to whether the knowledge which an accused person must possess in order to render him guilty of murder when he lacks an actual intent to kill or to do grievous bodily harm must be a knowledge of the probability that his acts will cause death or grievous bodily harm (as Stephen’s Digest of Criminal Law holds) or whether knowledge of a possibility is enough. In Pemble v R (1971) 124 CLR 107 Barwick CJ thought it sufficient that death or grievous bodily harm should be foreseen as possible (see at pp 118–121) but McTiernan and Menzies JJ were of the opinion that it was necessary that the accused should have foreseen or known (the words are used without any apparent distinction) that death or grievous bodily harm would be a probable or likely (both expressions are used) consequence of the act: see at pp 127, 135. The matter was considered again in La Fontaine v R (1976) 136 CLR 62. In that case Stephen J agreed (at pp 85–86) with the opinion expressed by Barwick CJ in Pemble v R that it was enough that the accused foresaw the possible consequences of his acts but Barwick CJ himself appeared now to think that it is an open question whether it is sufficient if the accused appreciated a possibility rather than the probability of serious harm: see at p 69. Gibbs and Jacobs JJ held that in a case of this kind an accused would not be guilty of murder unless he foresaw that death or grievous bodily harm was a probable consequence of his behaviour (see at pp 75–77 and 94– 100) and although Mason J left the question open he noted, at p 91, that the suggestion made by Barwick CJ in Pemble v R was not a view shared by McTiernan and Menzies JJ in that case and that it was at odds with the speeches of the members of the House of Lords in R v Hyam [1975] AC 55. Clearly the balance of opinion on this Court has been in favour of the view that the mental state necessary to constitute murder in a case of this kind is knowledge by the accused that his acts will probably cause death or [page 112] grievous bodily harm. The view that knowledge of a possibility is not enough has been accepted by the Full Court of the Supreme Court of Victoria (R v Jakac [1961] VR 367; R v Sergi [1974] VR 1; Nydam v R [1977] VR 430; R v Windsor [1982] VR 89) and by the Full Court of the Supreme Court of South Australia (R v Hallett [1969] SASR 141).

The conclusion that a person is guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm is not only supported by a preponderance of authority but is sound in principle. The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur. That view was expressed in R v Hyam by Viscount Dilhorne (at p 82), Lord Diplock (at p 86) and possibly by Lord Cross of Chelsea (at p 96), although Lord Hailsham of St Marylebone LC denied its correctness (at pp 74–75). There is other authority in favour of the view, including some of the cases mentioned in Archbold’s Criminal Pleading, Evidence and Practice 41st ed (1982), at pp 995–1001 and the passage from Kenny, Outlines of Criminal Law cited by Dixon CJ in Vallance v R (1961) 108 CLR 56, at p 59. It is however unnecessary to enter upon that controversy. If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word “probable” means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm. There is a difference between the case in which a person acts knowing that death or serious injury is only a possible consequence, and where he knows that it is a likely result. The former is not a case of murder even if death ensues, unless death or grievous bodily harm is intended (or, perhaps — and it is unnecessary to consider this proposition — unless the act is done with the intention and for the sole purpose of creating a risk of death or grievous bodily harm). 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. A person who does an act causing death knowing that it is probable that the act will cause death or grievous bodily harm is, as Stephen’s Digest states, guilty of murder although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or even by a wish that death or grievous bodily harm might not be caused. That does not mean that reckless indifference is an element of the mental state necessary to constitute the crime of murder. 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. 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 the 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: see, for example, Howard, Criminal Law, 4th ed (1982), at pp 54–55 and 357–359. That question need not be discussed in the present case where there was no possible justification or excuse for the actions of the applicant. It should however be made clear [page 113] that lack of social purpose is not an element of the mental state with which we are here concerned, though it may bear on the question whether the act is justifiable. It was submitted on behalf of the Crown that a distinction can be drawn between foresight of the consequences of an act — ie what harm it would do if persons were in a position to be affected by it when it occurred — and a foresight of circumstances — ie of the fact that persons were in a position to be affected. There is no justification in logic or principle for drawing a distinction of this kind. The test simply is whether the accused person knew that his actions would probably cause death or grievous bodily harm. [Special leave to appeal granted. Appeal dismissed.]

2.21 In R v Grant (2002) 55 NSWLR 80 at 89–90, Wood CJ at CL said: In order for an accused to be convicted of ‘murder by reckless indifference to human life’, the Crown needs to show that he or she knew that the probable result of his or her act (or omission), in this case the act of firing the gun, was to cause the death of another, and knowing of that likelihood (which has to be a substantial or real chance as distinct from a mere possibility) he or she went ahead and did the act regardless: R v Crabbe (1985) 156 CLR 464; Royall v The Queen (1991) 172 CLR 378; Boughey v The Queen (1986) 161 CLR 10 (a code case). To prove murder by reckless indifference to human life, an accused need not be shown to have specifically intended or wanted death to result, only that he or she comprehended that there was a real or substantial likelihood of it occurring, and went ahead regardless. As such, it is strictly not a crime of specific intent (see the decisions on the equivalent offence in Code States such as Masnec v The Queen [1962] Tas SR 254 and Vallance v The Queen (1961) 108 CLR 56). The Crown must still however show that the accused intended to do the physical act (or omission) involved, and that such act (or omission) was voluntary. Of importance is the circumstance that an awareness or foresight of the consequence of the act (or omission), on the part of the accused personally, is essential for proof of the offence. It is not sufficient that an ordinary or reasonable person would have foreseen the probability of the occurrence being the death of another: Pemble v The Queen (1971) 124 CLR 107. There is, accordingly, an additional element affecting the subjective mental state of the accused, which is to be established in the case of murder by reckless indifference, and which goes beyond the basic intent to do (or omit) the act which brings about death. The mens rea for this form of offence, as was pointed out in R v Crabbe (at 470–471), is the knowledge of the offender that death is the probable consequence of his or her act (or omission), to which I would add the decision to go ahead regardless of that consequence.

2.22 The High Court in Crabbe identified that, where no

statutory provision alters the common law as to the foresight of the probability of death or grievous bodily harm amounting to murder, this is a sufficient fault element to make the accused guilty of murder. In New South Wales, however, a statutory provision, namely s 18 of the Crimes Act, does alter the common law definition of murder by requiring a foresight of the probability of death. As a result a foresight by the accused that his or her actions would probably result in grievous bodily harm and not death is insufficient to establish murder in this state. [page 114] R v Solomon [1979] 1 NSWLR 321 NSW Court of Criminal Appeal Begg J: In my view, to make out a case for murder where there was no intent to kill or inflict grievous bodily harm, a state of affairs has to be proved which shows that the accused was doing some act, or omitting to do some act, when his mental state was, as the New South Wales section says, “with reckless indifference to human life”. In my view, it is not adequate in New South Wales to prove any lesser sort of reckless indifference, such as indifference to whether the deceased or some other person might have been injured. I see no justification for reading down “indifference to human life” by inviting a jury to consider whether the act was done with a mental ingredient such that the accused foresaw that, as a probable consequence of his action, the deceased or some other person would probably receive a serious injury and, with that knowledge, proceeded to do the act. … I am aware that, in considering English criminal law, apart from statutes, Sir James Fitzjames Stephen’s Digest of the Criminal Law, 9th ed, p 212, deals with the proposition that murder could be established where the mental state of the accused showed knowledge that the act would probably cause the death of, or grievous bodily harm to, some person, where such knowledge is accompanied by an indifference where the death or grievous bodily harm is caused or not. A direction along those lines no

doubt would be appropriate in those parts of Australia where the law of murder is still the common law. [His Honour reviewed the history of s 18 of the Crimes Act, which started life as s 9 of the Criminal Law Amendment Act 1883, then continued:] In the original text, the words “life” and “reckless” were in italics for emphasis. It will be seen, therefore, that the concept now being discussed, namely “reckless indifference to human life”, was a new legislative conception. In my opinion, it was done deliberately, in an attempt to embrace all which ought to be within the category — “Without embarrassing any intelligent jury, in determining its application to the facts before them”: see Stephen’s Manual, p 10. For these reasons, in a charge to a jury on the basis of reckless indifference to human life (where the facts warrant it) the task of a jury will be rendered much simpler if it is confined to the parameter of the section itself without reference to the foreseeable consequence — grievous bodily harm. After all, the death of a human being is considered in a murder case, and the section requires that the accused be proved to be guilty of reckless indifference to human life, not reckless indifference to some other form of physical harm falling short of death.

2.23 Proof of ‘reckless indifference to human life’ requires satisfaction of a subjective test. The conduct of a person who does an act which he or she knows or foresees is likely to cause death is regarded, for the purposes of the criminal law, as just as blameworthy as the conduct of one who does that act with an intention to kill or to inflict really serious bodily injury. The Crown must establish that the accused fully realised that the probable consequence of his or her act or culpable omission was death, and that he or she was nevertheless prepared to take the chance that that consequence would follow. The awareness of the probable consequence of death is essential to the Crown case. [page 115]

Intention to kill

2.24 Intention involves foresight of the consequence of an act or culpable omission and a desire to bring it about. One kills with an intention to kill if one’s objective or desire is to cause the death of someone. ‘Intention’ does not require premeditation and is different from motive. A person who breaks into a house and is cornered by the home-owner may kill in order to escape. The fact that he or she did not, at the time of entering the house, intend to kill does not mean that it is not murder just because the killing was not planned. Further, it cannot be said that the assailant’s intention was ‘to escape’. That is to confuse motive and intention. The motive behind the killing may have been ‘to escape’ but provided that, at the time the assailant performed the act that caused the death, he or she intended to cause death, it is murder.

Intention to cause grievous bodily harm 2.25 A person kills another with intent to cause grievous bodily harm if, at the time of performing the act that caused the death, the accused desired grievous bodily harm as a consequence of his or her acts or omissions. The Crimes Act states, at s 4, that grievous bodily harm ‘includes … any permanent or serious disfiguring of the person’. The term has been taken to mean injury of a really serious kind (see R v Sergi [1974] VR 1). The term is explained to juries in New South Wales as ‘really serious bodily harm’. Again, questions of premeditation, or why the accused wanted to cause the harm, are usually irrelevant (but see the discussion of selfdefence in Chapter 9). 2.26 It must be emphasised that, under New South Wales law, it is insufficient for murder that the accused was merely reckless as to the probability that he or she would cause grievous bodily harm. In other words, the concept of recklessness operates where the accused foresaw but did not intend death and went ahead notwithstanding that foresight,

but not where he or she foresaw only the probability of grievous bodily harm (see 2.3). 2.27 Where the Crown relies on the accused’s intention (either to kill or cause grievous bodily harm), the Crown must prove that the accused had the necessary intention, not that a person in the accused’s position would have had the relevant intention. It is impermissible to invite a jury to reason that a person must be presumed to have intended the natural and probable consequences of his or her action. This means that, just because a person should have realised, or did realise, that the probable consequence of his or her actions would be death or serious injury, it does not follow that the person intended to inflict death or serious injury. As Hunt J explained in R v Stokes and Difford (1990) 51 A Crim R 25 at 30: In cases in which the Crown has to establish that the act of the accused was done with a specific intention (that is, that he sought by that act to achieve a particular result), it is usual to direct the jury in the appropriate case that a person’s acts may themselves provide the most convincing evidence of his intention. If, for example, a person deliberately hits another hard on the head with a hammer, it is easy to conclude from that act that he thereby intended to inflict grievous bodily harm upon that other person. Such harm (or injury) was the result which he sought to achieve by

[page 116] his act. If the argument is put by the Crown (and repeated by the judge) that a person who deliberately does such an act must have intended to inflict such injury it amounts to no more than an invitation to draw such an inference or conclusion because it is impossible to imagine from one’s experience of life what other result the accused himself could have sought to achieve by that act. It is not in any way an invocation of the impermissible presumption [that a person

intends the natural and probable consequences of their action] … The danger of the presumption that every person intends the natural and probable consequences of his acts is that it produces an illegitimate transfer of the burden of proof upon the issue of intention from the Crown to an accused denying the allegation: Stapleton (1952) 86 CLR 358 at 365. The High Court has on several occasions disapproved of any reference to such a presumption. The cases are collected in Smyth (1957) 98 CLR 163 at 166–167; see also Parker (1963) 111 CLR 610 at 632. That prohibition does not mean, however, that the jury cannot be invited to draw an inference or a conclusion from the accused’s own acts that they were done with the intention which the Crown has to establish: Thomas (1960) 102 CLR 584 at 596–597; Kalajzich (1989) 39 A Crim R 415 at 459. The Crown bears the onus of persuading the jury to draw such an inference; all that the High Court has said is that it should never be suggested to the jury that the law supplies a presumption on the point which satisfies that onus and which the accused is therefore to rebut.

Constructive murder 2.28 The last of the fault elements sufficient for murder is established where the act or culpable omission causing death occurred during or immediately after the commission of some offence ‘punishable by imprisonment for life or for 25 years’. This is called constructive murder because the accused may be guilty of murder without intending any person’s death or injury and without realising that this was probable. 2.29 In the context of constructive murder, the Crown must establish that either the accused, or some accomplice with the accused, committed or attempted to commit (see 10.5) a crime punishable by imprisonment for life or 25 years. An accomplice is one who is also present at the time and who intentionally assists in committing a crime or intentionally

gives encouragement in the commission of that crime (see 10.33). In R v Jacobs and Mehajer, the Crown could not prove who had inflicted the fatal injuries. It was argued that the accused could not be convicted of constructive murder as the Crown needed to identify an act of the accused that caused the death charged. (The principles that determine when a person is held criminally responsible for the acts of an accomplice are discussed in Chapter 10.) R v Jacobs and Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462 NSW Court of Criminal Appeal [The accused/appellants were charged with the murder of Shane Cole; robbery in company with infliction of grievous bodily harm upon the deceased; and robbery in company with wounding of another person. They had gone to the vicinity of a cafe to [page 117] look for the victim, who was a known supplier of drugs. On the account of a witness, Painter, who had agreed to give evidence in return for an indemnity for his part in the offence, Mehajer went into the cafe first, followed by Jacobs, and then by himself. Jacobs was holding a small man at the back of the cafe, who was sitting on the ground. Mehajer was at the back of the shop conducting a search. Painter went out of the café and on his return Jacobs was standing between two men on the floor. He heard someone say “where’s your money?” and heard the deceased reply that he did not have any. As Mehajer returned from the back of the cafe he punched the other man (the deceased) to the back of the head, with a ‘pretty strong’ blow, which caused him to slump to the ground. He did not see him move again. As they drove away there was a discussion about the phone and gold necklaces that had been taken. Jacobs had one phone, and he kept the other one. Painter said that he did not see any knife at the scene, and that he had only seen the deceased punched once. The deceased was treated by a neurosurgeon, who found that he had suffered a widespread traumatic subarachnoid haemorrhage, as well as a pulmonary oedema consistent with the aspiration of vomit while unconscious. The cause of death was blunt trauma to the head. The

trial judge directed the jury to consider constructive murder if they found that the accused did not have one of the other fault elements for murder, that is, if they did not intend to kill, did not intend to cause grievous bodily harm, or did not act with reckless indifference to human life, on the basis that the death occurred during the robbery. A further extract from the judgment of Wood CJ at CL is set out at 10.66.] Wood CJ at CL: … 185 [The trial judge] gave a general direction in relation to constructive murder: … murder is committed where the act causing the death of the deceased, is done during the commission by the accused, or some accomplice with him, of a crime punishable by imprisonment for 25 years and here the Crown relies upon proof of the crimes charged in count 2 and/or count 3. Each of those crimes charged in those counts, is in a category punishable by imprisonment for 25 years. 186 This was first applied to the foundational offence, which was the subject of Count 2 [that is (b) Robbery in company with infliction of grievous bodily harm upon the deceased, Shane Cole]: To establish the crime of murder here the Crown must prove the following: 1.

That there was a common purpose shared by the accused in company, to rob Shane Cole.

2.

That during the course of that robbery in company, grievous bodily harm was inflicted upon Shane Cole.

3.

That the infliction of such grievous bodily harm was a contingency, that is a possible happening, which the accused had in mind might occur during the robbery in company. The Crown does not have to prove that it was necessarily the accused whose case you are considering, who personally inflicted the grievous bodily harm. It is sufficient that the harm was occasioned either by that accused, or by another party to the enterprise. Provided the infliction of that

harm was a possible happening which the accused, whose case you are considering, had in mind as something that might occur during the robbery. 4.

The Crown has to prove that the infliction of that harm caused the death of Shane Cole. The Crown does not have to prove, members of the jury, that the act, or acts causing death was, or were done with an intent to kill, or indeed with intent to cause grievous bodily harm. But it must prove that such act, or acts, were voluntary not accidental. And it must prove that such act, or acts, was or were done, during the commission of robbery in company. When I say that it has to prove that the acts were voluntary, by that I mean that the act, or acts were conscious, deliberate, as opposed to accidental. I will come back to this question of causation in just a moment. But they are the elements that have to be proved, based upon the foundational crime charged in the second count. [page 118]

187 His Honour next applied the general direction in relation to the foundational crime charged in the third count [that is robbery in company with wounding of Shane Phillips], explaining that: The elements to be proved are the following: 1.

That there was a common purpose, shared in company, to rob Shane Phillips;

2.

That during the course of that robbery in company the accused or another party to that enterprise wounded Shane Phillips and during the course of that robbery in company with wounding the accused or another party to that enterprise caused grievous bodily harm to Shane Cole causing his death; and

3.

That the infliction of grievous bodily harm to Shane Cole during the robbery in company with wounding of Shane Phillips was a possible happening, a possible happening which the accused whose case you are considering contemplated might occur.

188 The Appellants submitted that the present was not a case where constructive murder (or felony murder as it was previously known) was available. This submission turns upon the proper interpretation of s 18 of the Crimes Act 1900. 189 It was asserted that, on its natural reading, the opening words to the section “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” govern the section, and mean that murder can only be established where it was the act or omission of the accused that caused the death. 190 It was further asserted that the category of constructive murder, which is brought within the section (in addition to cases of specific intention or reckless indifference to human life) by the closing words “or done in an attempt to commit, or during or immediately after the commission by the accused, or some accomplice with him or her” of a crime punishable for life or for 25 years, are directed to the commission of the foundational crime, and not to the act causing death. 191 At the outset it is to be observed that the first proposition that was advanced is somewhat startling, since if it is correct, then in a case of joint enterprise, where the parties shared an intention to kill or inflict grievous bodily harm, murder would only be committed by the accused whose act in fact brings about the death. 192 Such a proposition would fly in the face of long standing authority that a person may be found guilty of murder, although he or she did not commit the act bringing about death, so long as that person was acting in concert with the perpetrator. That was recognised in Osland v The Queen (1998) 197 CLR 316 at 341 to 351 and in McAuliffe v The Queen (1995) 183 CLR 108, and there are numerous examples in the case law, including for example R v Mohan [1967] AC 187 where offenders acting in concert have been convicted of murder, even thought [sic] the Crown is not able to prove which of them carried out the act causing death. 193 Prior to 1883, murder in New South Wales, was murder as defined in the common law. In the 13th Century, homicide was culpable if the death occurred during the commission of an unlawful act. In Foster’s Discourse of Homicide in 1762, the felony murder rule was relaxed to the extent that it was confined to the

case of a killing in the course of an act with intent to commit a felony. 194 This strict approach is illustrated by the case of R v Horsey (1862) 3 F & F 287; 176 ER 129 where the accused was charged with murder after setting fire to a stack of straw. There was no evidence that the accused had any idea of the presence of the deceased, who was sleeping in the stack and who was burned to death. The trial judge, Baron Bramwell, instructed the jury that where an accused, in the course of committing a felony, caused the death of a human being, that was murder, even though he did not intend it. [page 119] 195 This approach was criticised by those who disliked making death, occasioned during the course of a felony, murder when violence was neither likely nor intended. … 197 In New South Wales, the strict rule was ameliorated in 1883 in the Criminal Law Amendment Act. Section 9 of that Act expressly defined murder in the following terms: 9. Whosoever commits the crime of murder shall be liable to suffer death and murder shall be taken to be where the act of the accused or thing by him 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 during or immediately after the commission by the accused or some accomplice with him of an act obviously dangerous to life or a crime punishable by death or penal servitude for life. Every other punishable homicide shall be taken to be Manslaughter. 198 This definition was reproduced in s 18(1)(a) of the Crimes Act 1900. Smart J in R v Downs [1985] 3 NSWLR 312 noted that in the 1883 Act the legislature had been at pains to specify (in s 9) any change to the common law concerning murder. Lee J pointed out in the same case (at 316) that the various acts resulting in death described in s 18(1)(a) were themselves all acts which at common law gave rise to murder. Relevantly his Honour at 318 stated:

In one respect, the terms of the section brought about a difference from the common law of murder and that was in regard to a killing during the commission of a felony. The accidental taking of life by a person committing (or about to commit) a felony of any kind was at one time murder at common law, but, as pointed out earlier, this was ameliorated as time [went] by and the felony had to be one dangerous to life and likely to cause death. Under s 18(1)(a) it would amount to murder if the felony was one punishable by penal servitude for life. This matter is dealt with at some length by Windeyer J in Ryan v The Queen (1967) 121 CLR 205 at 240–241. The definition of murder at common law was thus replaced by a definition in accordance with the subsection, but the subsection did no more than attach to an act of homicide states of mind (intent to kill or inflict grievous bodily harm, or reckless indifference) or descriptions (obviously dangerous to human life, or committed during or immediately after a felony punishable by death or penal servitude for life) which would, in any event, at common law have made the act of homicide murder. 199 As is discussed later in these reasons, it is a principle of long standing that a person may be found guilty of murder although he or she did not commit the act or acts which physically caused the death of the victim, provided that the [sic] or she was acting in concert with the perpetrator. 200 The wording of s 18 did not alter the operation of the common law rules of complicity. It is a general rule of statutory interpretation that a basic common law doctrine is not to be disturbed unless the statute expressly requires that result. … 203 There is nothing in the amended provision to disclose any intention to alter the common law principles of complicity. All that the Act did was to require a capital felony or one involving punishment by penal servitude for life, and to that extent, but only to that extent, it parted from the common law: cf R v Burke [1983] 2 NSWLR 93 per Miles J at 103. … 205 In this instance it is perfectly clear that the reference to “the accused” when used twice in s 18 is a reference to the accused

who is on trial and is not intended to give rise to the consequence that it must be his act, rather than the act of a person acting in concert, which causes death. 206 It is equally clear that the 1883 Act was passed to ameliorate the harsh common law approach to felony murder, and was not intended to restrict the principles of complicity, which were well entrenched in the 19th Century, so as to confine culpability for felony murder to the case of the offender whose act caused death. [page 120] 207 Later amendments to the Crimes Act do not require any different approach. … 208 The limited authority that exists in this regard also does not support the conclusion for which the Appellants contend. … … 213 Text writers also lend no support to the Appellant’s submission. … 215 Finally, there are any number of cases of felony murder where the act causing death was that of an accomplice and not the accused, where an interpretation of s 18 advanced by the Appellants has not been applied. 216 The Appellants’ primary submission is accordingly not made good. [Sperling and Kirby JJ agreed with Wood CJ at CL. Appeal dismissed.]

The fault element in constructive murder 2.30 It is clear that to secure a conviction on the basis of constructive murder, the Crown does not need to prove that the accused intended to kill the accused or foresaw the possibility of death. All that is required is that the Crown can establish the ‘foundational’ offence; see R v IL [2016] NSWCCA 51 extracted on this point at 10.67. For example, if the Crown can prove the physical and fault elements for ‘assault with intent to rob with wounding or the infliction of

grievous bodily harm’ contrary to s 96 of the Crimes Act (R v Thurston [2004] NSWCCA 98), or robbery with wounding contrary to s 98 of the Crimes Act (Ryan v R (1967) 121 CLR 205), and that death, albeit unintended and unforeseen, was caused during that offence, then that is sufficient. 2.31 The New South Wales Law Reform Commission has reviewed the history of constructive murder and made recommendations for limiting the scope of the doctrine (see Complicity, Report 129, Chapter 5). Its recommendations are set out at [5.83] of the report and are as follows: Recommendation 5.1 So much of s 18(1) of the Crimes Act 1900 (NSW) as relates to constructive murder should be repealed, and replaced by a statutory provision that provides as follows (1) A person (P) shall be liable for murder and punishable accordingly, where: (a) P commits an act that causes the death of V; (b) P’s act was done in an attempt to commit an offence or in the course of or during or immediately after the commission of an offence for which provision is made in the laws of NSW that is punishable by imprisonment for life or for a term of imprisonment of 25 years or more (the foundational offence); (c) P’s act was one that, in all of the circumstances, including the nature of the foundational offence, [viewed objectively] was likely to endanger human life. (2) The foundational offence shall not include common law offences where the penalty is at large, or manslaughter. (3) The foundational offence shall include one in respect of which P was a principal offender, as well as one in which P was providing assistance in relation to its commission or attempted commission by another person.

[page 121]

(4) P shall be liable to be convicted of murder and sentenced accordingly in the circumstances outlined, whether or not: (a) P intended to kill V or to cause V bodily harm; (b) P knew or foresaw that by his or her act he or she was likely to do so; or (c) P knew or foresaw that his or her act was likely to endanger human life. Recommendation 5.2 Section 18(2)(a) of the Crimes Act 1900 (NSW) should be amended by deletion of the words “which was not malicious, or”.

2.32 The MCCOC was critical of the concept of constructive murder and recommended that it should not be part of the criminal law. MCCOC, Fatal Offences Against the Person Model Criminal Code, Discussion Paper, Chapter 5, June 1998, pp 59–63 The common law recognises two forms of constructive murder: felony-murder and escape-murder. Both involve an unintentional killing by an act of violence. In the case of felony-murder, such act is committed during the commission of a felony other than abortion or attempted abortion. The meaning of the word “felony” was at common law every species of crime for which the punishment could involve forfeiture of land, goods or death (‘except petty larceny and mayhem’). Later felonies were categorised by statute as serious crimes and included murder, manslaughter, burglary, housebreaking, larceny, bigamy and rape. In the case of escapemurder, the act of violence is committed in an effort to resist, prevent or escape from lawful arrest and custody. All jurisdictions have replaced the connection to traditional felonies with a narrower statutory version of the same concept. So it is not accurate to continue to describe it as the ‘felony-murder’ rule — “constructive murder” is more appropriate. In the common

law jurisdictions the scope of the offence is restricted by limiting the type of crimes which give rise to the operation of the offence. For instance, in New South Wales it only applies if the unintentional killing took place in the course of the commission of a crime punishable by imprisonment for a period of 25 years or life. … … [T]he old “felony-murder” rule is specifically abolished. … Constructive murder has been the subject of criticism. Such criticism stems from the fact that these offences involve the imputation of the fault element required for murder by reason of the coincidence of the death occurring in the context of other criminal conduct — hence the description ‘constructive’ murder. If these elements exist, a murder conviction follows as a matter of course even if there is no evidence of intention or recklessness. Constructive murder was abolished in England 40 years ago. The Canadian Supreme Court has found the doctrine to be contrary to the Canadian Charter of Rights and numerous law reform bodies have recommended its abolition. Despite the objections, the doctrine has survived in most jurisdictions. Society has little sympathy for persons who kill in the course of the commission of a serious crime or while attempting to escape arrest and custody in circumstances of violence. Supporters of constructive murder point to its deterrent value in defending its existence. This, however, overlooks the important fact that such killings are not intended or foreseen and therefore not able to be deterred. At best the doctrine can deter the commission of the felony or the attempt to escape, but not the killing itself. [page 122] The lack of intention or other culpable state of mind for murder on behalf of the person committing the felony or seeking to escape underlies the inappropriateness of this doctrine. To equate accidental killings with murder is contrary to the … fault-based approach to determining culpability. In as far as the law of fatal offences is concerned, persons who kill while committing a felony or attempting to escape should be treated in the same way as any other person. If they intended to kill or are reckless as to death they will be convicted of murder pursuant to the existing rules regarding intentional and reckless killing. In the absence of these

circumstances — where the death is truly accidental — murder should not be an issue. In these cases, manslaughter by gross negligence may be an appropriate charge but in any event the defendant can be prosecuted for the offence he or she intended to commit.

The requirement of malice 2.33 Section 18(2)(a) provides: No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.

When the section was enacted, s 5 of the Crimes Act contained a definition of the word ‘malicious’. That section was repealed in 2008 and the term ‘malicious’ was no longer used for offences against the person or property. The issue of the meaning of the term in s 18(2)(a) arose in R v IL, extracted on another point at 10.67. The facts briefly were that the accused was charged with murder and manslaughter arising from the death of her co-offender in a fire as a result of their joint attempt to manufacture a prohibited drug. The fire occurred by the ignition of a ring burner upon which the ‘cook’ was taking place, but there was no evidence as to who ignited the burner. The Crown relied upon constructive murder, the foundational offence being the manufacture of a prohibited drug. Because the Crown could not specify an act of the accused causing the death, it relied upon joint criminal enterprise. At a trial the judge directed the jury to acquit the accused on all charges. The Crown appealed to the Court of Criminal Appeal against the directed acquittals under the provisions of the Crimes (Appeal and Review) Act 2001. R v IL [2016] NSWCCA 51 NSW Court of Criminal Appeal Simpson JA: …

72. The orders available to this Court on an appeal under s 107(2) are set out in sub-ss (5) and (6) of the Appeal and Review Act. This Court may affirm or quash the acquittal (sub-s (5)); if it quashes the acquittal, it may order a new trial in such manner as it thinks fit (sub-s (6)). The logical consequence of the conclusions that, in respect of the murder and manslaughter counts, a wrong test was applied, resulting in acquittals that were erroneous in law, is an order in each case quashing the acquittal. It will then be necessary to consider whether, pursuant to sub-s (6), to order a new trial. [page 123] 73. That is a discretionary decision. Senior counsel for the respondent raised an interesting, and novel, argument against an order for a new trial on the count of murder. (The argument does not apply to the count of manslaughter.) 74. The argument depended upon the terms of s 18(2)(a) of the Crimes Act, set out above. To repeat, s 18(2)(a) provides: “(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.” 75. The exception for acts or omissions for which the accused had lawful cause or excuse can be put to one side. It has no present application. The central proposition advanced on behalf of the respondent was that, on no view of the meaning of “malicious”, could it be said that the act that caused Mr Lan’s death was malicious. Although it was never clearly articulated, it seems that the consequential proposition advanced was that, since the Crown could not establish that the act that caused Mr Lan’s death was done maliciously, it would be futile for this Court to order a new trial on the count of murder since any such trial would necessarily result in the respondent’s acquittal. If the central proposition is correct, futility of ordering a new trial would be a powerful discretionary reason for declining to do so, and for affirming the acquittal. Alternatively, the argument may have been directed to the proposition that the acquittal on the murder count was justified for a reason other than that given by the trial judge, and therefore should be affirmed. The argument in support of the consequential

proposition was raised for the first time in response to the Director’s appeal. 76. The essential proposition advanced on behalf of the respondent, as I understand it, may be reformulated in the following way: to come within s 18(1)(a), the act that causes death must be shown by the Crown to have been done maliciously; there was no evidence that the ignition of the ring burner was done maliciously; accordingly, the Crown is unable to succeed in proving an essential element of its case; the consequence is that (although for a reason other than those given by the trial judge) the acquittal ought to be affirmed; alternatively if the acquittal at first instance was incorrectly entered because it was given on an erroneous legal basis, this Court should nevertheless decline to order a new trial (on the basis that a new trial would be, at least, a futility, or, at worst, an abuse of process). 77. The argument hinges on the meaning of “maliciously” as it appears in s 18(2)(a). One complicating circumstance immediately emerges. In 1901, when s 18 was enacted (not precisely in its present form, but not different in a way that is material to the present argument), the Crimes Act contained, in s 5, an extended definition of “maliciously”. It could not be said that the definition cast a great deal of light on the question of the meaning of the word, or the concept. Section 5 was in the following terms: “Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and every

indictment and charge where malice is by law an ingredient of the crime.” … [page 124] 80. Section 5, when in force, was of general application. It has been observed that, so far as it related to murder within s 18, s 5 had no operation to any of the categories mentioned above other than the fourth, that is constructive (felony) murder: Royall v The Queen [1991] HCA 27; 172 CLR 378 at 454 per McHugh J; Coleman at 474 per Hunt J. 81. That was because the other categories of murder specified in s 18 were provable by evidence that the accused person had the relevant state of mind — reckless indifference to human life, intent to kill, or intent to inflict grievous bodily harm. The necessity to prove the relevant state of mind left no room for proof of a further, alternative or different, state of mind called “malice”. 82. By the Crimes Amendment Act 2007 (NSW), s 5 was omitted from the Crimes Act with effect from 27 September 2008: see Sch 1, cl 2. By the same amending Act, cl 65 was inserted into Sch 11 of the Crimes Act. Schedule 11 deals with “Savings and Transitional Provisions”. Clause 65 provides: “The repeal of section 5 of this Act by the Crimes Amendment Act 2007 does not affect the operation of any provision of this Act (including a repealed provision) that refers to ‘malicious’ or ‘maliciously’ or of any indictment or charge in which malice is by law an ingredient of the crime.” 83. The repeal of s 5 took place in the context of a general modernisation of provisions of the Crimes Act that had included “malice” as a fault element. From many such provisions (but not including s 18), the words “maliciously” and “malice” were omitted, and either “recklessly” or “intentionally” (or their noun counterparts) substituted. In his second reading speech in support of the proposed repeal, the Attorney General explained the revision as follows: “The bill removes the archaic fault element of

‘maliciously’ from the Crimes Act and replaces it with the more modern fault elements of ‘recklessly’ and ‘intentionally’ where appropriate …” He read out cl 5 of the Bill and went on: “Members can imagine the difficulty in explaining this archaic formulation to juries who may be required to determine very serious cases based on this definition. The confusing and outdated nature of the definition has been raised by several judicial officers over a period of 50 years. For example, as long ago as 1955, the Honourable Justice Fullagar of the High Court in Mraz v R (1955) 93 CLR 493 described the definition of malice in the Crimes Act as ‘a mere question-begging definition’. The term ‘recklessly’ which will largely replace ‘maliciously’ is well-known to the criminal law and it is not proposed to codify or define this term at this time.” (New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 September 2007 at 2318) (Notwithstanding that stated intention, less than two months later, the legislation inserted s 4A into the Crimes Act. Section 4A is as follows: “4A Recklessness For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge.”) 84. The consequences of the repeal of s 5, without the deletion of the concept of “malicious” from s 18(2)(a), has been regarded as something of a mystery. In Chen v R [2013] NSWCCA 116, at [62] Button J labelled “remarkable” the fact that the concept of malice remained in s 18, after the deletion of the statutory definition. Button J said: I know of no decision of this Court as to what s 18(2)(a) should now be taken to mean. It may be that Button J’s attention was not drawn to Sch 11, cl 65.

However, in Batcheldor, Hidden J (who expressly referred to cl 65) endorsed Button J’s observation. 85. In my opinion, cl 65 is of significance, as I will explain shortly. [page 125] 86. It was not initially clear whether the respondent’s position was that the repeal of s 5 wrought a change in the proper construction to be attributed to s 18(2)(a), or that “malicious” in that context retained its original meaning even after the repeal. That question was eventually clarified during the course of oral argument, when senior counsel said: “However, what needs to be grappled with in my submission is, what maliciousness means now that s 5 has been repealed.” I take this to be an assertion that s 18(2)(a), since 2008, has a meaning different from that which it had prior to 2008. 87. I am unable to accept that proposition. Some meaning must be given to cl 65 of Sch 11, opaque as it might appear to be. 88. In my opinion, the answer is to be found in the Attorney General’s second reading speech. The repeal of s 5 took place in the context of the general (but not complete) excision of “malice” and “maliciously” from the Crimes Act, and their replacement with less “archaic” language. For some reason, “malice” in s 18(2)(a) escaped that scalpel — hence, what I read as the preservation (in cl 65) of s 5 for the specific purpose of s 18(2)(a) (and any other provisions that contained references to “malice” that also escaped the legislative scalpel). If that is correct, “malicious” in s 18(2)(a) is to be read and interpreted as though s 5 had not been repealed. 89. It is then necessary to attempt to understand what “malicious” means in s 18(2)(a), in such light as the definition provided by s 5 casts. 90. As mentioned, Hunt J in Coleman pointed out the various ways in which s 5 might be read. Unwise as it might seem to attempt an analysis or deconstruction of s 5, I see no way to avoid that potentially unrewarding exercise. 91. In my opinion, the purpose of s 5 was to adopt and then extend

the ordinary understanding of “malice”. Adoption of the ordinary meaning follows from the use of the word “malice” itself in the opening phrase. The fact that “malice” is twice used in the definition of “maliciously” indicates that it was used, and intended to be understood, in its conventional legal sense. I will return to consider what that conventional sense is. Omitting the subordinate clauses, the section would have read: “Every act done of malice … shall be taken to have been done maliciously …” This is in accord with what Fullagar J said in Mraz. The concept is then, by the subordinate clauses, extended to acts done: “… without malice, but with indifference to human life or suffering, or with intent to injure … in property or otherwise … and … without lawful cause or excuse, or done recklessly or wantonly …”, which acts are also: “… taken to have been done maliciously …” 92. It seems to me that the effect of s 5 is to declare that acts done with a variety of states of mind (other than those that come within the ordinary understanding of “malice”) are to be taken to have been done maliciously. Broken up into its component parts, the section begins by stating (tautologically) that: “Every act done of malice … and without lawful cause or excuse … shall be taken to have been done maliciously.” The section goes on to declare that certain acts done without malice shall nevertheless be taken to have been done maliciously. Those acts are: acts done with indifference to human life or suffering (and without lawful cause or excuse); [page 126] acts done with intent to injure either a person or a corporate body (in property or otherwise) (and without lawful cause or excuse) (although it is difficult to see how an act done with

intent to injure could be seen as other than malicious); acts done recklessly or wantonly. (cf Coleman, p 472). Thus, an act that comes within any of those descriptions (but done without malice) is, by s 5, taken to have been done maliciously. 93. In Coleman, Hunt J explained “recklessness” (at 475) in the following way: “… in statutory offences other than murder, the degree of recklessness required in order to establish that an act was done maliciously was a realisation on the part of the accused that the particular kind of harm in fact done (that is, some physical harm – but not necessarily the degree of harm in fact so done) might be inflicted (that is, may possibly be inflicted) yet he went ahead and acted.” (italics in original; quoted by Beazley JA (as the President then was) in Blackwell v R [2011] NSWCCA 93; 81 NSWLR 119 at [68]) 94. These conclusions bring the debate back to the identification of the act relied upon by the Crown as the act causing death. That, it will be remembered (see [11]), was the act of igniting the ring burner. (That, in the circumstances of this case, where that act was an integral, but possibly relatively minor, part of the whole enterprise, might be an oversimplified approach. A more nuanced approach would suggest that Mr Lan’s death was not caused by a single act, but was a result of a series of acts, culminating in the ignition of the burner, the series of acts including all of the acts involved in the preparation for the manufacture, and the manufacture, of the drugs. However, for present purposes, it is necessary to adhere to the manner in which the Crown presented its case in the Supreme Court.) 95. Once the issues are so stated, in my opinion the outcome is clear. At the very least, it would be open to a jury to conclude that the ignition of the ring burner, in the circumstances in which it took place, was done recklessly. (An act done recklessly is expressly within s 5.) It does not appear that s 5 requires the Crown to prove that an act done recklessly (or wantonly) was also done without lawful cause or excuse, as is necessary with respect to the

first and second categories of non-malicious acts that are taken to have been done maliciously; but, even if the absence of lawful cause or excuse is a requirement, it is not an issue in the present case, because there can be no suggestion that, in the circumstances, the act was done otherwise than without lawful cause or excuse. In case it is necessary to explain why it would be open to a jury to conclude that that act was done recklessly, reference may be made to some of the circumstances. A plainly dangerous chemical operation was being undertaken, in a confined space, in wholly unsuitable premises, with primitive equipment. That emerges clearly from the expert evidence in the trial. 96. Ironically, perhaps, my conclusion concerning the interpretation of “malicious” in s 18(2)(a) does not depart in any material way from that proposed on behalf of the respondent. In written submissions the following was put: “60. The respondent submits that with s 5 of the Crimes Act repealed, an act is not malicious within s 18(2) unless it is proved to be intentional or reckless as to consequences: R v Coleman … R v Cunningham [1957] 2 QB 396. 61. Alternatively, the respondent submits an act is not malicious unless it is an act of serious violence or one which clearly endangers life, in accordance with the common law attribution of malice in felony murder.” (italics added) 97. It would clearly be open to a jury to conclude that the ignition of the burner was done recklessly (even without the explanation given by s 4A, inserted in 2008). [page 127] 98. If I am wrong in concluding that cl 65 of Sch 11 preserves, for the purposes of s 18(2)(a), the application of s 5, then a question remains as to the meaning of “malicious” in that subsection, absent the enlightening glow of s 5. “Malicious” then must be given its conventional, legal, meaning. In R v Cunningham [1957] 2 QB 396, it was held: “In any statutory definition of a crime, malice must be

taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (ie, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured …” These words were taken from C S Kenny, Outlines of Criminal Law, (1st ed 1902, Cambridge University Press) (repeated in the 1952 edition), and expressly endorsed by the court. The court summarised by saying: “In our opinion the word ‘maliciously’ in a statutory crime postulates foresight of consequence.” In Coleman, it was held that it was not necessary for the Crown to prove that foresight was of the probability of consequences; foresight of the possibility was sufficient. 99. In R v Rushworth (1992) 95 Cr App R 252, it was held that a direction to a jury that a defendant was acting maliciously if he was acting deliberately and was aware that some physical harm might, not would, result was correct. 100. R v Safwan (1986) 8 NSWLR 97 concerned the adequacy of directions given to a jury in respect of the meaning of “maliciously” as the word appeared in s 33 of the Crimes Act as it then stood. Section 33 created various offences of wounding, infliction of grievous bodily harm, shooting or attempting to discharge loaded weapons at any person, in each case done maliciously, and with one of a number of specified intentions. The trial judge directed the jury in terms of s 5. He interpolated an explanation of “malice” by saying “that is, with evil intent …”. This Court (Street CJ, Lee and McInerney JJ) approved the explanation, but considered that the direction could have been simplified by deletion of parts of s 5 not applicable to that case. The direction their Honours preferred was: “… every act done of malice; that is, with evil intent, or with intent to injure some person or persons, and in such

case without lawful cause or excuse, shall be taken to have been done maliciously within the meaning of the Act.” 101. It is apparent that their Honours were construing “malice” as it appeared in s 5, but without the expansionary content of s 5 — in other words, the explanation given to “malice” was an explanation of that word in its conventional, legal, sense. 102. While the words “of evil intent” might now seem dated — even “archaic” — what can be accepted is that the word “malice” and its counterparts are to be given a broad meaning. They are well able to encompass a dangerous act undertaken in the course of an illegal drug manufacturing enterprise in inadequate premises. 103. Accordingly, whether “malicious” in s 18(2)(a) is to be interpreted in the light of s 5, or absent that light, the respondent’s submission must fail.

CONCLUSION 2.34 This chapter considered the law relating to murder. It is clear that it is not the case, as many people may believe, that any unlawful killing is murder. Murder is a crime, defined by law, and a person is guilty of murder only if all the elements [page 128] are present: that is, it was a conscious and voluntary act or culpable omission that caused the death; and, at the time of performing the act or failing to act, the accused intended the victim to die, intended to cause grievous bodily harm, or realised that he or she would probably cause the victim’s death; or the act that caused the death was done during or immediately after the accused committed some other crime punishable by life or 25 years’ imprisonment. Any other killing is not murder, no matter how reprehensible or objectionable the circumstances. However, it may be

manslaughter — at a murder trial, a jury may bring down an alternative verdict of manslaughter (see 3.7). 2.35 This exploration of the law of murder identified the process which must be followed when deciding whether any offence has been committed, that is, it must be determined whether each of the elements of the particular offence has been proved. The discussion also shows how the courts interpret and apply the common law in the context of statutes written by parliament. It is now possible to take this understanding of the principles of law and legal reasoning to identify the law relating to manslaughter, and other offences against the person.

DISCUSSION QUESTIONS 2.36 1.

Assume that the following facts are true and can be proved. Consider Dave’s liability for murder in this case. Dave was a waiter. He was asked to serve at a dinner party organised by Crystal and Ricchi. At the party, held at the mansion of the fabulously rich couple, Dave discovered that Crystal had a weakness not just for recreational drugs and drink, but also for beautiful young men. Crystal took a fancy to him. They started having an affair. Dave got used to the nice presents that Crystal showered on him but he knew that it could not last forever. Dave proposed to Crystal but matters did not go according to plan. While Crystal was away on holiday, she had met another beautiful young man — she was happy to keep a few young men in her life. This was not in Dave’s plans and he became so

enraged that he vowed revenge. He decided to arrange to have her ‘roughed up’ to teach her that she could not treat him like that. Unable to find a person to do his dirty work, Dave went to Kill-RDogs and bought a trained attack dog; at the time the kennel owner said ‘Be careful with these dogs, they are not pets, they will do someone a serious injury, and could even kill someone.’ That night, when Crystal was coming back from her evening swim, Dave set the dog onto her. The dog was vicious (as it was trained to be) and bit her about the face and body. Crystal passed out and Dave called the dog off and disappeared. Crystal woke the next morning and, dazed, took herself home and tried to clean her wounds in the shower. After a couple of days, infection set in, causing inflammation and pain. To kill the pain she took to drinking scotch and smoking marijuana. She eventually called her doctor, who failed to [page 129] diagnose her infection as a serious condition but who prescribed antibiotics and told her to have plenty of sleep. She slept for many days, waking up occasionally to take her prescribed pills, her drugs and her alcohol. One day, in the middle of an infection/alcohol/drug-induced haze, she decided that something was seriously wrong. She called her specialist but she was unable to contact him so she left a message for him to contact her. A few more days passed. Crystal (when conscious) was by now getting a bit hysterical as she was afraid of scars marring her beauty. Her specialist finally called and said that she required surgery but there was a risk

that she would be left with permanent scarring. Crystal refused the treatment and, as a result, the infection became worse and she subsequently died. At the autopsy it was found that had her doctor diagnosed and treated her properly in the first place, she would have had a good chance of recovery without any permanent injury or disability. Further, the delay before the specialist contacted her had exacerbated the situation. 2.

Assume that Kelly has committed an offence: (a) contrary to s 35 of the Crimes Act; or (b) contrary to s 46 of that Act. The victim has now died. Consider what circumstance would make Kelly now liable for murder under each of the above sections.

3.

D was a member of a gang which tied V to a pillar in an abandoned warehouse and sexually assaulted him. A gang member then gagged V to prevent him from crying for help; in his struggle to escape, after the gang had fled, V accidentally choked to death. Has D committed murder?

[page 130]

3 Voluntary manslaughter INTRODUCTION 3.1 Chapter 2 deals with the law of murder. Manslaughter is another offence that may apply when one person unlawfully kills another. The physical elements of murder and manslaughter are the same: the accused must have committed some act or omitted to perform some act that caused the death of the victim. The major difference between murder and manslaughter lies in the fault or mental elements (see Flow Chart 2-1 at 2.1). 3.2 As we have seen, to be guilty of murder the accused must have acted with one of the following states of mind: an intention to kill; an intention to cause grievous bodily harm; a reckless indifference to human life; or the killing must have occurred during or immediately after the commission of some other offence punishable by life or 25 years’ imprisonment. In the offence of manslaughter there may or may not be present any one of the three states of mind for murder (intention to kill, intention to cause grievous bodily harm, and reckless indifference to human life), but the fourth category (death caused at the time of another offence punishable by life or 25 years) does not arise. There are two categories of manslaughter. The first, discussed in this

chapter, is ‘voluntary manslaughter’. Voluntary manslaughter applies where a fault element sufficient for murder is present, but the accused is entitled to a conviction of the lesser offence of manslaughter because of the circumstances of the killing. There are three statutorily prescribed circumstances where killing, although intended or foreseen, is treated as voluntary manslaughter rather than murder: 1.

where there is a reasonable possibility that the killing was provoked;

2.

where the accused acted under a substantial impairment due to an abnormality of mind; and [page 131]

3.

where there is a reasonable possibility that the killing resulted from excessive self-defence.

It should be noted that there is no onus on the accused to prove a defence in 1 or 3 above. Rather, if the evidence raises the issue of provocation or self-defence, the Crown must prove beyond reasonable doubt that the killing did not take place in those circumstances. In 2 above the accused has the onus of proving, on the balance of probabilities, the defence of substantial impairment. Infanticide is a separate offence with penalties similar to those for voluntary manslaughter. Infanticide is discussed at 3.43–3.45 below. 3.3 The second category of manslaughter is ‘involuntary manslaughter’, discussed in Chapter 4. Manslaughter is involuntary if it is an unlawful killing in circumstances where none of the fault elements for murder is present. There are three types of involuntary manslaughter: 1.

manslaughter by an unlawful and dangerous act;

2.

manslaughter by criminal negligence; and

3.

manslaughter arising from a homicide that occurs during a joint criminal enterprise.

The principles for determining liability for manslaughter where a homicide occurs during a joint criminal enterprise are considered at 10.33. 3.4 There is another category of homicide additional to murder and manslaughter contained in s 25A of the Crimes Act 1900 (NSW) (‘the Crimes Act’). This is an offence of assault causing death. It will be dealt with in Chapter 4. 3.5 Therefore, there are five forms of unlawful homicide: (1) murder; (2) voluntary manslaughter (where murder is reduced to manslaughter because of extreme provocation, substantial impairment, or where the accused used excessive force in self-defence); (3) infanticide (where what would otherwise be murder is treated as a lesser offence because of disturbance to the mother’s mind by reason of certain specific factors related to childbirth); (4) involuntary manslaughter; and (5) an assault causing death. 3.6 Manslaughter is not defined in the Crimes Act. Section 18, after giving the definition of murder, states at subs (1)(b): ‘Every other punishable homicide shall be taken to be manslaughter.’ Section 24 sets out the punishment for manslaughter: 24 Manslaughter punishment Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years: Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal.

3.7 In any case where the Crown alleges murder a jury is entitled to find the accused not guilty of murder but guilty of

manslaughter (see R v Downs (1985) 3 NSWLR 312; Beavan v R (1954) 92 CLR 660). The trial judge is not obliged to leave [page 132] manslaughter to the jury if there is no reasonable basis for such a verdict. However, if there is a reasonable basis for a verdict of manslaughter, the trial judge must direct on manslaughter, irrespective of how the defence case was conducted (R v Schneidas (No 2) (1981) 4 A Crim R 101). In a trial for murder, the jury should only be asked whether they find the accused guilty or not guilty of manslaughter if they have already found the accused not guilty of murder (Stanton v R (2003) 198 ALR 1). 3.8 We can now turn to the statutory partial defences that, if they arise, may result in an accused person who has killed another with a fault element for murder being convicted, instead, of manslaughter. The partial defences are extreme provocation, substantial impairment due to abnormality of mind, and excessive self-defence. Although these issues are generally referred to as ‘partial defences’, it should be noted that the only true defence arises on the issue of substantial impairment because it is only in respect of that issue that the accused has an onus of proof on the balance of probabilities. The Crown must disprove provocation and self-defence if those issues arise on the evidence. There is also the offence, akin to voluntary manslaughter, of infanticide.

EXTREME PROVOCATION Introduction 3.9 Before 13 June 2014 the law of provocation in this state was set out in s 23 of the Crimes Act and to a very large measure represented the common law. After that date a new

s 23 was inserted into the Crimes Act and a new defence to murder was created: that of extreme provocation: see Crimes Amendment (Provocation) Act 2014. The new defence substantially limits the availability of provocation as a defence to murder. In order to understand the important changes to this area of the law it is necessary to compare the present law with that as it was before the new defence was enacted. It should be noted that the defence of extreme provocation only applies to a murder that occurred after the date of the change of the law, see s 23. 3.10 Section 23 of the Crimes Act now provides: 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.

[page 133] (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. (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.

3.11 The new defence came about as a result of consideration of the law of provocation by the Legislative Council’s Select Committee on the Partial Defence of Provocation. The Committee was founded as a response to a case in which a male accused was found not guilty of murder

on the basis of provocation by his estranged wife. The accused cut her throat after she had allegedly told him that she did not love him and was in love with another person. The Committee was not unanimous on whether the defence of provocation should be abolished and, therefore, recommended that the defence be limited. The main reason for retaining the defence was to assist women who were victims of long-standing domestic violence and who might not be able to rely upon self-defence. Particular difficulties identified by the Committee with provocation as it had existed were: (a) that it could be used in cases where a partner simply wished to leave a relationship; and (b) it arose in cases of a non-violent sexual approach (normally in cases of a homosexual advance). The second reading of the Bill by the Attorney General took place on 8 May 2014 and will be referred to from time to time.

The two-part test 3.12 In the earlier editions of this book there was a reference to provocation having a two-part test as follows: 1.

There must be evidence that the act or omission was the result of a loss of self-control on the part of the accused, that loss of self-control having been induced by any conduct of the victim. This can include grossly insulting words or gestures towards or affecting the accused; and [page 134]

2.

There must be evidence that the victim’s conduct was such that it could have induced an ordinary person in the accused’s position to have so far lost self-control as to form an intent to kill, or to inflict grievous bodily harm upon, the victim. The conduct of the victim can have occurred immediately before the act or omission causing death or, depending on the circumstances, at

any previous time. The test is not that an ordinary person would have killed the victim, but that an ordinary person could possibly have formed the intent to kill or cause grievous bodily harm to the victim. It is the ‘ordinary person’ test that causes the greatest difficulty in this area of the law. In order to disprove provocation the Crown must prove beyond reasonable doubt that one or other of the parts of the test set out above did not apply at the time of the killing. 3.13 The text then went on to summarise the law of provocation as follows: The conduct or words of the victim need not have occurred immediately before the response of the accused that caused the death. The provocation may have occurred at some previous time. It may be a course of conduct over an extended period of time, and may include a course of conduct over a period of time together with other conduct immediately before the act causing death. There must be a causal connection between the conduct of the victim and the accused’s loss of selfcontrol. The following three factors must be considered together: 1.

that the conduct was extremely hurtful to the accused because of his or her age, sex, race, ethnic or cultural background, physical features, personal attributes, personal relationships or history;

2.

the words or conduct in question taken as a whole; and

3.

the history of the relationship between the accused and deceased.

The third of these factors is especially significant in cases where the accused was the victim of sustained domestic violence. Responses caused by provocation must be distinguished from responses motivated by hatred or revenge. When applying the objective ‘ordinary person’ element of the two-part requirement for provocation, the jury must be instructed that an ‘ordinary person’ is one who has the minimum powers of self-control expected of an ordinary person who is: 1.

not intoxicated; and

2.

the same age and consequent level of maturity as the accused.

Although intoxication is not relevant when applying the objective part of the test, it can be relevant on the issue of whether the accused may have actually lost self-control as a result of provocation. 3.14 Apart from the words underlined in the preceding two paragraphs, the law of provocation has not changed. The words in italics in the paragraph above presumably remain as relevant in determining the ordinary person test (see 3.17). [page 135]

Loss of control after sustained period of abuse 3.15 There is no change as to when the provocative conduct must have occurred. Chhay, below, remains good law. Section 23(4) notes that the provocative conduct does not have to occur immediately before the killing. R v Chhay (1994) 72 A Crim R 1 NSW Court of Criminal Appeal

[The appellant was convicted of the murder of her husband following a long history of domestic violence. The night before his death there had been a noisy argument between them. The trial judge found that the appellant had cut her husband’s throat and chopped him with a meat cleaver sometime between 5 and 6 am while he was on the lounge room floor, either asleep or dozing. The appellant’s version was that he attacked her with a knife or cleaver and that during a struggle she gained possession of the weapon, which she used to kill him. Her primary defence was selfdefence but she also raised provocation.] Gleeson CJ: … The history of the common law on the subject of provocation as a partial defence to a charge of unlawful homicide, reducing what would otherwise be murder to manslaughter, has been examined at length by the High Court in Parker v R (1962–63) 111 CLR 610, Van Den Hoek v R (1986) 161 CLR 158, and Stingel v R (1990–91) 171 CLR 312. As Windeyer J pointed out in Parker (111 CLR at 650), the law on this subject emerged from a multiplicity of rulings in single instances, which in turn were given over a period during which the law of culpable homicide underwent considerable change and development. The modern law recognises provocation as a circumstance in which an accused person is ‘less to blame morally than for what he does deliberately and in cold blood’ (Parker, 111 CLR at 651). This has been explained as a concession to human frailty. The concept of loss of self-control reflects the idea, fundamental to the criminal law, and related historically to religious doctrine, that mankind is invested with free will, and that culpability consists in the abuse of that faculty. The capacity to distinguish between right and wrong, and to choose between actions, or between action and inaction, is central to our notions of moral and criminal responsibility. Legal principles concerning voluntariness and intent, insanity and diminished responsibility, are formulated in terms that assume such a capacity in ordinary people acting in ordinary circumstances. There are those who find this unscientific (eg Professor Blakemore, Professor of Psychology at Oxford University, in The Mind Machine, BBC, London, at 257 and 269–270, says that the human brain is a machine, that all our actions are the product of the brain, and that even when we feel ourselves to be in control of our actions, that feeling is itself a

product of the brain). On the other hand, a judge of this Court, in a recently-published and scholarly work (DH Hodgson, The Mind Matters, Oxford University Press, Oxford, at 170 et seq) observes how deeply embedded in our language, our attitudes and our laws is the assumption that our volitions determine our actions. Devlin J, in his direction to the jury in R v Duffy, cited with approval by the English Court of Appeal in R v Ahluwalia (1993) 96 Cr App R 133 said: Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind. [page 136] The kind of loss of self-control that is here in question is not something that results in a state of automatism. Rather it is something that results in intentional homicide, the conduct of the accused, and the intent with which that conduct occurred, being attributable to the accused’s emotional response to the provocation. The very fact that we are not dealing with absolute loss of self-control, and that questions of degree are involved, raises a difficulty, as does the consideration that a variety of emotions can produce an urge to kill, and that such emotions are not all neatly separated. In Van Den Hoek (161 CLR at 166–167) Mason J pointed out that, although anger is the characteristic emotion associated with provocation, fear and other emotions may also be relevant. His Honour said: Traditionally the onset of sudden passion involving loss of self-control characteristic of provocation has been associated with acts or actions which provoke the accused to uncontrollable anger or resentment … a notion that may be traced back as far as Aristotle. Indeed, the historical concept of provocation as a defence has reflected the ordinary meaning of the word, ie, an act or action that excites anger or resentment. These days,

however, judicial discussion of the doctrine places emphasis on the accused’s sudden and temporary loss of self-control, without necessarily attributing that loss of self-control to anger or resentment, except in so far as it is asserted that the act which causes death was done as a result of passion or, as it is colourfully expressed, “in the heat of passion”. Mason J went on to reject the notion that loss of self-control caused by fear, panic, or mental instability cannot be brought into the defence of provocation. … The necessity to resort to metaphor in expounding the law on this subject is disconcerting. References to supposed raising or lowering of blood temperature, reason becoming unseated, and passion mastering understanding, seem calculated to confound, rather than assist, analytical reasoning. However, our understanding of consciousness and mental processes, as compared with our understanding of more readily observable physical phenomena, is so limited that metaphor seems generally to be regarded as essential in the expression of the ideas which guide us in this area of discourse. Assistance is sometimes found in the use of contrast. The mental or emotional state of an accused acting under provocation is described by contrast with other states of mind. … [A]s a matter of common law, that it is essential that at the time of the killing there was a sudden and temporary loss of self-control caused by the alleged provocation but, at the same time, it denies that the killing need follow immediately upon the provocative act or conduct of the deceased. It accepts the possibility of a significant interval of time between such act or conduct and the accused’s sudden and temporary loss of self-control. However, it observes that, as a matter of fact, the longer the interval, the more difficult it will usually be to attribute the actions of the accused to loss of selfcontrol rather than, for example, the deliberate and cold-blooded implementation of a desire for revenge … Notwithstanding the degree of latitude potentially involved in the concept of temporary loss of self-control (see, for example, R v Hill (1980) 3 A Crim R 397) there developed considerable dissatisfaction with the state of the law in this area. One common

criticism was that the law’s concession to human frailty was very much, in its practical application, a concession to male frailty. It was noted earlier that the law of provocation originated, not as a coherent statement or principle, but as a multitude of single instances. An interesting collection of those instances may be found in R v Mawgridge (1706) Kel 119 84 ER 1107, where the Lord Chief Justice listed a series of examples of homicides that constituted murder, and homicides that constituted manslaughter. It is only necessary to examine that list to see the point made by critics. The law developed in days when men frequently wore arms, and fought duels, and when, at least between men, resort to sudden and serious violence in the heat of the moment was common. To [page 137] extend the metaphor, the law’s concession seemed to be to the frailty of those whose blood was apt to boil, rather than those whose blood simmered, perhaps over a long period, and in circumstances at least as worthy of compassion. To quote a recent article commenting on the decision in Ahluwalia (D Nicholson and R Sanghvi, ‘Battered Women and Provocation’ [1993] Crim LR 728 at 730): According to research and many cases themselves, battered women tend not to react with instant violence to taunts or violence as men tend to do. For one thing, they learn that this is likely to lead to a bigger beating. Instead, they typically respond by suffering a ‘slow-burn’ of fear, despair and anger which eventually erupts into the killing of their batterer, usually when he is asleep, drunk or otherwise indisposed. It is not necessary to accept the full effect of words such as ‘typically’ and ‘usually’ in that passage, or to construct a stereotype of a battered woman to appreciate the force of the underlying point. The orientation of the law towards relief of the plight of males, rather than females, was also noted in the area of self-defence. It was discussed, for example, in the judgment of the Supreme Court of Canada in R v Lavallee (1990) 76 CR (3d) 329. The leading

judgment in that case was written by Wilson J. She observed that the law catered much better for the position of a person against whom another person’s hand was raised in sudden threat or anger, than for a person who, over a lengthy period, has become sensitised to danger from her batterer and who ought not to be required to wait until a knife is uplifted, a gun is pointed, or a fist is clenched, before her apprehension of danger is deemed reasonable (76 CR (3d) at 352). In 1982, a Task Force on Domestic Violence reported to the New South Wales Government. The report dealt, amongst other things, with what was seen as the inadequacy of the protection given by the law to women on the subject of provocation. As a result, the Government introduced legislation for the amendment of s 23 of the Crimes Act and that legislation was enacted: s 23 now provides [His Honour then set out the current version of s 23 and continued] … For present purposes, the most significant parts of that provision are the concluding words of subs (2) and the words of subs (3)(b). … What is involved … [with loss of self-control is that it] has both a subjective and an objective aspect. The objective aspect was recently examined and explained by the High Court in Stingel v R (above). On the question of degree earlier mentioned, the extent of the loss of self-control that is involved is such a loss as resulted in the act or omission by the accused causing death, and as could have resulted in an ordinary person in the position of the accused forming an intent to kill or inflict grievous bodily harm upon the deceased. The conduct of the deceased which induced the loss of selfcontrol need not have occurred immediately before the act or omission causing death. Nor need the act or omission causing death be done or omitted suddenly. The effect of these legislative changes needs to be considered at two levels: the relevant legal principles and the forensic problems of a particular case. As a factual matter, for the reasons stated in R v Ahluwalia, depending upon the evidence and circumstances of the individual

case, the longer the time that elapses between the allegedly provocative conduct of the deceased, and the killing of the deceased by the accused, the harder it may be for an accused to raise an argument of provocation, and the easier it may be for the Crown to prove that what was involved was, for example, a deliberate and premeditated act of revenge, rather than the loss of self-control. That having been said, it is still necessary to address the question of the nature of the distinction between killing as the result of a loss of self-control, and killing which, even though it follows illtreatment of an accused by a deceased, is nevertheless regarded as [page 138] murder. This is because, with all its theoretical imperfections, and practical roughness, the law of provocation is still only a limited concession to a certain type of human frailty, and is not intended to allow a jury to reduce what would otherwise be murder to manslaughter upon a view that a deceased person received his or her just deserts. The law is not intended to encourage resort to selfhelp through violence. It will probably remain the case that, for many people, loss of self-control is a concept that is most easily understood, and distinguished from, a deliberate act of vengeance in the factual context of a sudden eruption of violence. However, times are changing, and people are becoming more aware that a loss of selfcontrol can develop even after a lengthy period of abuse, and without the necessity for a specific triggering incident, the presence of such an incident will assist a case of provocation, but its absence is not fatal. This is an area in which psychiatric evidence may assist juries to develop their understanding beyond the commonplace and the familiar. There are, for example, circumstances in which a psychiatrist’s explanation of post traumatic stress syndrome may help make a case of provocation even where there is a substantial interval of time between the provocative act of the deceased and the accused’s response. This, however, is a matter for evidence and argument in individual cases. What the law still requires is that it should be explained to the jury that the key concept for them to bear in mind, whether for the purposes of the subjective or

objective aspect of the problem, is that of a killing which results from a loss of self-control. Emotions such as hatred, resentment, fear, or the desire for revenge, which commonly follow ill-treatment, and sometimes provide a motive for killing, do not of themselves involve a loss of self-control although on some occasions, and in some circumstances, they may lead to it. What the law is concerned with is whether the killing was done whilst the accused was in an emotional state which the jury are prepared to accept as a loss of self-control. As has been observed, the distinction which the law regards as critical in this area has never been amenable to rigorous analysis, and it is usually expressed in language which is metaphorical and in terms of concepts that are imprecise. The breaking down, and ultimate removal, of the requirements of immediacy of the deceased’s provocative conduct and suddenness of the accused’s response, in aid of extending the scope of the concession made by the law to human frailty, has made the distinction even less precise, although it has served what many regard as an important social purpose. The requirements of justice and certainty are often in tension; and it can hardly be claimed that the earlier law on this subject was a model of certainty in its practical application … . [Finlay and Abadee JJ agreed with Gleeson CJ. Appeal allowed.]

3.16 The common law had already recognised that there was no requirement that the killing immediately follow the provocative act. The issue of ‘sudden provocation’ and the effect of a period of time between the provocative conduct and the act causing death were considered by the High Court in Pollock v R (2010) 242 CLR 233; 271 ALR 219. The case was concerned with the interpretation of a provision of the Queensland Criminal Code 1899. The High Court stressed that the provision had to be interpreted in accordance with the common law so that the loss of self-control must be caused by the provocative conduct, but there is no requirement for a temporal relationship between the two (see Pollock at [54]). The loss of self-control can develop after a

lengthy period of abuse, and without the necessity for a specific triggering incident (see Chhay above). [page 139]

Ordinary person test 3.17 Under the previous s 23(2)(b) the conduct of the deceased had to be such that ‘could have induced an ordinary person in the position of the accused to have so far lost self-control’ to have formed the intention to kill or inflict grievous bodily harm on the deceased. The present s 23(2)(d) does not contain the italicised words. This was not a drafting error. The Attorney General, having earlier referred to the test as it existed before the amendment, in his second reading speech said: Proposed section 23(2)(d) further tightens the test by requiring members of the jury to apply a purely objective test. They must consider whether the provocative conduct was so extreme that an ordinary person could have lost self-control to the extent of forming an intention to kill or inflict grievous bodily harm. The removal of the words in the existing section “in the position of the accused” will have the effect of removing the need for members of the jury to assume that the ordinary person has been provoked to the level that the accused was, because they will be determining whether an ordinary person could have been so far provoked as to have lost self-control and formed the requisite intent when faced with that conduct. This will simplify the jury’s task and provide for a greater focus on ordinary community standards. Although the select committee did not propose this change, it is consistent with its intention to restrict the use of the partial defence, reduce its complexity and bring it into line with community standards.

3.18 This change is very significant. It overturns the decision of the majority judges in the High Court in Green v R (1997), below. That decision concerned the provocative

conduct of an unwelcomed sexual advance from the male deceased to the male accused. Of course that conduct may no longer amount to provocation because s 23(3)(a) prevents a ‘non-violent sexual advance to the accused’ as amounting to extreme provocation. A question may arise as to whether particular conduct was ‘non-violent’. In Green the allegation was of ‘groping’ by the deceased while the accused was in bed. The particular aspect of the accused’s character held to be relevant to the extent of his provocation was the history of forced sexual acts by the accused’s father against his sisters. It was the admissibility of this evidence on the issue of provocation that was at the heart of the appeal. To understand the change it is worth quoting part of what Brennan CJ and McHugh J stated in Green in relation to the repealed provisions on provocation. Green v R (1997) 191 CLR 334; 148 ALR 659 High Court of Australia Brennan CJ: … In summary, the appellant’s case at the trial was that he was so provoked by the conduct of the deceased that he lost control of himself and killed the deceased. The ‘defence’ of provocation called for consideration of s 23 of the Crimes Act 1900 (NSW). [His Honour then set out the section and continued:] … The meaning of s 23 Paragraph (a) of subs (2) requires a causal relationship between the act or omission of an accused which causes the death of the deceased and the conduct of the deceased [page 140] towards or affecting the accused. The nexus between these two is the loss of self-control on the part of the accused. That loss must be ‘induced by’ the deceased’s conduct and it must cause the fatal act or omission. Paragraph (a) contains no test of proportionality between the conduct of the deceased and the act or omission which causes the death. All that is needed to satisfy para (a) is evidence that the conduct of the deceased, the accused’s loss of

self-control and the act or omission causing death are causally linked. Paragraph (b), on the other hand, prescribes the nature of the conduct that amounts to provocation for the purposes of the section. It postulates the response of ‘an ordinary person’ to the deceased’s conduct as a standard to be employed in applying s 23. The standard of the ‘ordinary person’ prescribed by para (b) is an objective standard by which to determine whether the conduct relied on by the accused could have induced the formation of an intent to kill or to inflict grievous bodily harm. For the purposes of applying this standard, the notional ordinary person is placed ‘in the position of the accused’. In other words, the significance of the deceased’s conduct is assessed by reference to its significance to the accused, and the ordinary person is notionally exposed to conduct having that significance in order to determine whether the ordinary person could have been induced thereby to form either of the prescribed intents. Paragraph (b) requires the jury to take full account of the sting of the provocation actually experienced by the accused, but eliminates from the jury’s consideration any extraordinary response by the accused to the provocation actually experienced. Thus extra-ordinary aggressiveness or extra-ordinary want of self-control on the part of an accused confer no protection against conviction for murder. The objective test prescribed by para (b) turns not on what the ordinary person would have done in response to the provocation experienced, but on what the ordinary person could have been induced to intend. Dependent on the circumstances of the trial, the jury may need a direction to draw their attention to the difference between ‘would’ and ‘could’ and will ordinarily need a direction to distinguish between what the ordinary person could have been induced to intend and what the ordinary person could have been induced to do. In the present case, for example, the jury might have been more ready to allow the possibility that an ordinary person could have been induced to intend to kill or to inflict grievous bodily harm on the deceased than to allow the possibility that an ordinary person could have been induced to batter and stab the deceased to the extent that the appellant battered and stabbed him. Construing s 23 in the manner stated above, it operates in

substantially the same way as the provisions of the Tasmanian Code were held to operate in Stingel v R (1990) 171 CLR 312; 97 ALR 1 and the way in which the common law was held to operate in Masciantonio v R (1995) 183 CLR 58; 129 ALR 575. It has been said, albeit not in a considered judgment (Baraghith v R (1991) 66 ALJR 212), that it is correct to interpret the phrase ‘in the position of the accused’ consistently with the decision of this court in Stingel. In Stingel, the Court said ((1990) 171 CLR 312 at 326; 97 ALR 1 at 10): [T]he content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. For example, any one or more of the accused’s age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult. As Wilson J commented in Hill [1986] 1 SCR 313 at 346–7; 25 CCC (3d) 322 at 347, the “objective standard and its underlying principles of equality and individual responsibility are not … undermined when such factors are taken into account only for the purpose of putting the provocative insult into context”. [page 141] The court explained ((1990) 171 CLR 312 at 327; 97 ALR 1 at 10– 11) that the ordinary person test is: to provide an objective and uniform standard of the minimum powers of self-control which must be observed before one enters the area in which provocation can reduce what would otherwise be murder to manslaughter. While personal characteristics or attributes of the particular accused may be taken into account for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult, the ultimate

question posed by the threshold objective test of s 160(2) relates to the possible effect of the wrongful act or insult, so understood and assessed, upon the power of selfcontrol of a truly hypothetical “ordinary person”. Subject to a qualification in relation to age … the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused. It will, however, be affected by contemporary conditions and attitudes: see per Gibbs J, Moffa v R (1977) 138 CLR 601 at 616–17; 13 ALR 225. Thus in Parker v R (1963) 111 CLR 610 at 654 Windeyer J pointed out that many reported rulings in provocation cases ‘show how different in weight and character are the things that matter in one age from those which matter in another’. The majority in Masciantonio (Brennan, Deane, Dawson and Gaudron JJ) said ((1995) 183 CLR 58 at 69; 129 ALR 575 at 583): 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. The application of s 23 in the present case The trust which the appellant had placed in the deceased before the deceased got into the appellant’s bed, the consumption of a considerable quantity of alcohol on the night of the killing, the appellant’s response to the deceased’s first homosexual advance that “I’m not like this”, the deceased’s persistence in his homosexual advances, his grabbing and pulling of the appellant, his touching the appellant’s groin and the appellant’s knowledge or belief of and sensitivity to his father’s sexual abuse of the appellant’s sisters were all matters that were to be taken into account in determining the availability of the defence of provocation. The appellant’s recollection of and sensitivity to his father’s sexual abuse of the appellant’s sisters (“the sexual abuse factor” as I shall call it) was relevant to the question whether the deceased’s conduct had induced a loss of self-control on the part of

the appellant (a question arising under para (a) of s 23(2)) and to the question of the significance of the provocative conduct to the appellant (a question arising under para (b) of s 23(2)). The sexual abuse factor was relevant to those questions because it tended to make it more likely that the appellant was more severely provoked by the deceased’s unwanted homosexual advances than he would otherwise have been and thus more likely that he had been induced thereby to lose self-control and inflict the fatal blows and more likely that the appellant was so incensed by the deceased’s conduct that, had an ordinary person been provoked to the same extent, that person could have formed an intention to kill the deceased or to inflict grievous bodily harm upon him. McHugh J: … In Masciantonio (1995) 183 CLR 58 at 66–7; 129 ALR 575 at 580– 1 Brennan, Deane, Dawson and Gaudron JJ said: Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death while acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose selfcontrol … The provocation must actually cause the accused to lose self-control and the accused must act while deprived of self-control before he has had the opportunity to regain his composure. [page 142] It follows that the accused must form an intention to kill or to do grievous bodily harm (putting recklessness to one side) before any question of provocation arises. Provocation only operates to reduce what would otherwise be murder to manslaughter. Since the provocation must be such as could cause an ordinary person to lose self-control and act in a manner which would encompass the accused’s actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death (Johnson v R (1976) 136 CLR 619 at 639; 11 ALR 23 per Barwick CJ). The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard

of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused’s immaturity, the ordinary person may be taken to be of the accused’s age. However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or 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. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and [form an intent to kill or inflict grievous bodily harm]. The only qualification I would make to this statement is to add considerations of “ethnic or cultural background of the accused” to age and maturity as relevant to any inquiry into the objective standard by which the self-control of an accused is measured. (See generally my comments in Masciantonio (1995) 183 CLR 58 at 72– 4; cf Yeo, “Sex, Ethnicity, Power of Self-Control and Provocation Revisited” (1996) 18 Sydney Law Review 304.) The accused contended that the language of s 23(2)(b), and in particular the phrase “an ordinary person in the position of the accused”, has modified the law of provocation in New South Wales. That is, he contended that in New South Wales the jury must consider the accused’s subjective experience when measuring the level of self-control required of him or her. If this is so, s 23 significantly departs from the law of provocation as stated in Masciantonio. The validity of this argument depends on whether the words ‘in the position of the accused’ in s 23(2)(b) require an approach different from that expounded in Masciantonio and allow

the accused’s subjective characteristics to be imputed to the ‘ordinary person’ in considering the loss of self-control issue. It is clear that the personal attributes of the accused are relevant to the issue posed by s 23(2)(a). Thus, the Crown correctly conceded that the trial judge had erred in ruling that evidence of the accused’s special sensitivity to sexual interference, and of his family history which explained that sensitivity, was inadmissible under para (a). What, however, do the words “in the position of the accused” in para (b) mean? Do they mean, as the accused contended, that the “ordinary person” must effectively be given all the characteristics of the accused? … In my opinion, the phrase “an ordinary person in the position of the accused” means an ordinary person who suffered the provocation which the accused suffered as the result of the conduct of the deceased. The standard against which the loss of self-control is judged is that of a hypothetical ordinary person. That person is unaffected by the accused’s idiosyncrasies, personal attributes or past history, save and except that the words “in the position of the accused” require that the hypothetical person be an ordinary person who has been provoked to the same degree of severity and for the same reasons as the accused. In the present case, this translates to a person with the minimum powers of self-control of an ordinary person who is subjected to a sexual advance that is aggravated [page 143] because of the accused’s special sensitivity to a history of violence and sexual assault within his family. All of the accused’s attendant circumstances and sensitivities are relevant in determining the effect of the provocation on “an ordinary person in the position of the accused”. Indeed, “[w]ere it otherwise, it would be quite impossible to identify the gravity of the particular provocation” (Stingel (1990) 171 CLR 312 at 326; 97 ALR 1 at 10). As the court said in Stingel ((1990) 171 CLR 312 at 326; 97 ALR 1 at 10): [N]one of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the

relevant conduct. For example, any one or more of the accused’s age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant. The fact that an accused is especially sensitive to the conduct constituting the provocation, or that he or she takes the conduct as being aimed at a particular sensitivity when in fact it is not, will not preclude a finding of provocation, nor prevent it from being attributed to the hypothetical ordinary person. For example, in Luc Thiet Thuan v R [1997] AC 131 at 146, the Privy Council held that the accused’s impaired mental condition which made him prone to respond explosively even to minor provocation was a factor which could properly be taken into account when assessing the gravity of the conduct by the deceased. Similarly, the fact that the accused in the present appeal had a special sensitivity to sexual assault because of what he believed had occurred to his sisters was relevant to the issue of provocation under s 23(2)(a) and the extent of his provocation must be attributed to the ordinary person for the purpose of s 23(2)(b). … [T]he ordinary person contemplated by s 23(2)(b) is a person who has been provoked to the extent that the accused has been provoked. In this case, the capacity for self-control under s 23(2)(b) had to be measured by reference to an ordinary person who had been provoked to the extent that the accused had been provoked because of his special sensitivity to occurrences of sexual assault. Yet the trial judge’s directions (which were the basis of the successful appeal on grounds 2 and 3) prevented the jury from measuring the capacity for self-control of an ordinary person who had been provoked in the manner and for the reasons that the accused had been provoked. The failure of the trial judge to relate the evidence of sexual assaults within the family to the s 23(2)(a) issues meant that the accused’s real case on s 23(2)(b) was never put to the jury. In my view, the misdirections and non-directions were serious. I think that it is impossible to conclude that a reasonable jury must have convicted the accused if the proper directions had been given … .

3.19 The absence of the words ‘in the position of the accused’ means that the actual impact of the provocative

conduct on the accused is now irrelevant. There is no basis for the jury to weigh the gravity of the provocative conduct except as to how it might impact upon the ordinary man. This certainly, as the Attorney General indicated, makes the work of the jury much simpler but it deprives the defence of much of its significance. The jury are normally warned not to put themselves into the shoes of the accused because the test is an ‘ordinary person’ not an ‘ordinary juror’ and a particular juror might apply his or her own individual strengths and weaknesses to the ordinary person or a juror might only be prepared to acquit the accused of murder if he or she would concede that he or she might have been guilty of manslaughter if in the position of the accused: Stingel v R (1990) 171 CLR 312; 97 ALR 1. With the abolition of the relevance of the accused’s subjective factors it is [page 144] difficult to see how a juror would not act in this way. A juror might have difficulty appreciating that he or she is not an ordinary person. 3.20 The question is whether any attribute of the accused is to be attributed to the ordinary person. Under the common law, as interpreted by the High Court and applied to the repealed s 23, the age and maturity of the accused was taken into account. The better view seems to be that they are still relevant matters where the accused is particularly young or immature. Those factors had nothing to do with the words now deleted from the section ‘in the position of the accused’ but were an acknowledgment that the ordinary person can act differently depending upon those two factors: see Stingel v R, above, at 331.

Intoxication and extreme provocation 3.21 It is clear from s 23(5) that self-induced intoxication is not relevant to extreme provocation in respect of the question

whether the accused acted as a result of the provocation. That is the effect of the application of Pt 11A of the Crimes Act referred to in the subsection (see 8.48). The definition of ‘selfinduced intoxication’ in s 428A provides: “self-induced intoxication” means any intoxication except intoxication that: (a) is involuntary, or (b) results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or (c) results from the administration of a drug for which a prescription is required in accordance with the prescription of a medical practitioner, a registered nurse whose registration is endorsed under the Health Practitioner Regulation National Law as being qualified to practise as a nurse practitioner, a registered midwife whose registration is endorsed under the Health Practitioner Regulation National Law as being qualified to practise as a midwife practitioner, or dentist, or of a drug for which no prescription is required administered for the purpose, and in accordance with the dosage level recommended, in the manufacturer’s instructions.

3.22 Section 428F provides that self-induced intoxication is not relevant to the test of a reasonable person who is taken to be not intoxicated. Of course s 23 refers to an ordinary person. It is a matter of some conjecture whether there is any difference between the two notions. But in any event the common law has treated an ordinary person as one who is not intoxicated by alcohol or drugs: R v Cooke (1985) 16 A Crim R 304.

Words as provocative conduct 3.23 Under the previous s 23 ‘grossly insulting words’ could amount to provocation. That is clearly no longer the case. The conduct must now not only be unlawful but

amount to a ‘serious indictable offence’. A ‘serious indictable offence’ is defined under s 4 of the Crimes Act to be an ‘indictable offence that is punishable by imprisonment for life or for a term of 5 years or more’. This is again a highly significant limitation on the scope of extreme provocation. Many of the earlier provocation cases consisted of conduct that was not even criminal let alone [page 145] a significant crime. Whatever may be made of the provocative conduct in Green, whether it was violent or not, it could not be a serious indictable offence. To come within the scope of the new s 23 an assault, sexual or not, must be at least an assault occasioning actual bodily harm under s 59 of the Crimes Act. Howie and Johnson, Criminal Practice and Procedure NSW, looseleaf, state at [8-59.5]: “Actual bodily harm” does not have to be a very significant injury. The term “bodily harm” is to be given its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim, but such hurt or injury need not be permanent but must be more than merely transient and trifling: R v Donovan [1934] 2 KB 498 at 509: R v Brown [1993] 2 WLR 556 at 559. The phrase “actual bodily harm” is capable of including psychiatric injury but does not include emotions such as fear or panic nor states of mind that were not themselves evidence of some identifiable clinical condition: R v Chan-Fook [1994] 1 WLR 691 at 696 … See generally McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305.

3.24 Most cases of domestic violence would be included where there was actual physical violence or non-consensual sexual conduct during the course of the relationship. In such a case immediate provocative conduct would not have to be a serious indictable offence because there does not have to be a provocative act occurring immediately before the act causing death (see 3.15).

Presence of the accused 3.25 Provocation requires a reaction by the accused to conduct of the victim which occurs in the sight or hearing of the accused. The provocative incident must be one which directly involves the accused and the victim, although the actual element of provocation may not be directed intentionally or specifically against the accused. In R v Davis (1998) 100 A Crim R 573 the NSW Court of Criminal Appeal held that Davis could not rely on provocation when he was told that the deceased had sexually assaulted his stepdaughter and his niece. The court held that, in the absence of any incident where the deceased, in the presence of Davis, had done anything which could be said to have provoked him, the defence was not available. Davis sought special leave to appeal to the High Court (Davis v R (1998) 73 ALJR 139). The court (McHugh and Hayne JJ) said there was a strong case to argue that it was wrong to hold that provocation was not available where the alleged provocative conduct was ‘not committed in the presence of the accused but is reported to him’. Notwithstanding this, their Honours held that in the circumstances the conduct alleged to form the basis of the provocation could not have induced an ordinary person to form the necessary intent and so special leave to appeal was refused. Accordingly, the court did not give a definitive ruling on the issue of whether or not conduct in the absence of the accused could be the basis of a defence of provocation. See also R v Quartly (1986) 11 NSWLR 332 at 338.

Third party conduct 3.26 Under the previous law on provocation it was held that the provocation did not have to come directly from the deceased. In R v Hall [2001] NSWCCA 202, [page 146]

there was a fight between the appellant and the deceased’s brother. The deceased tried to intervene to stop the fight. The appellant then ran over the deceased’s brother and she went to help. The appellant returned and ran over the deceased, killing her. Hall’s appeal, on the basis that provocation should have been left with the jury, was dismissed. On the question whether there was any provocation offered by the deceased, Sully J (with whom the other members of the court agreed) adopted (at [48]) what Badgery-Parker J had said in Tumanako v R (1992) 64 A Crim R 149 at 155, that is: … the provocative conduct which may sustain a defence of provocation need not necessarily be conduct of the deceased personally if it is conduct in the presence of the deceased by a person so closely associated with the deceased that it is reasonable for the jury to attribute the conduct of that person to the deceased.

On the issue of possible provocation by a person other than the victim, see R v Kenney [1983] 2 VR 470.

Self-induced provocation 3.27 What if the accused provoked the victim who, in reacting, provoked the accused? Normally, self-induced provocation will be insufficient. However, provocation should be left to the jury if the response of the victim to the accused’s own provocative acts may have been out of proportion to that which might naturally have been expected (Edwards v R [1973] AC 648; R v Kenney [1983] 2 VR 470). Section 23(3)(b) only prohibits the situation where the accused incited the conduct by the deceased in order to ‘provide an excuse to use violence against the deceased’.

Mistake 3.28 Under the previous law it had been considered whether the accused can be mistaken as to provocateur, that

is, can the accused rely upon provocation where he or she believes, for example, that certain offensive conduct alleged to amount to provocation was done by X when it was really done by Y. The issue of provocation arose in R v Dib, below, where the accused believed that the deceased was part of a group attacking the accused’s brother and his friends. In fact, the fight that did occur between two groups of men was started by the accused’s brother and his friends. There was some evidence that the deceased had a minor part to play in the melee and that the accused had come from his home with a knife which he used to stab and kill the deceased. The accused had originally entered a plea of not guilty on the basis that he had not stabbed the deceased and had an alibi. He then sought to change his plea to guilty of manslaughter due to provocation. This was a plea that the Crown was prepared to accept. The trial judge, however, refused to accept the plea on the basis that, on the evidence he had heard, it was not open to the accused to plead guilty on the basis of manslaughter. In making that decision, his Honour had to consider whether a person could rely on a mistaken belief in facts as the basis for provocation. [page 147] R v Dib (2002) 134 A Crim R 329 Supreme Court of New South Wales Hulme J: … 35. There is, in my view, much to be said for the view that the terms of [s 23 of the Crimes Act (see 3.9)] answer with unambiguous clarity any suggestion that acts which either did not occur, or did not occur by or with the complicity of the deceased, but which were… ‘mistakenly believed by the Accused to have been done by the victim’ are ‘conduct of the deceased’. As a matter of simple ordinary English, they are not. …

37. Nor do erroneous beliefs of an Accused accord with the nature of events which led to the doctrine of provocation, mitigating the consequences of a provoked attack, evolving. Thus in R v Quartly (1986) 11 NSWLR 332 Lee J, with the concurrence of the other members of the Court, said: The view … that provocation requires a reaction by an accused to conduct of the deceased which occurs in his sight and hearing appears to have been accepted in the common law from the very earliest times. … 40. The need for a provocative incident and the requirement that conduct of the deceased occur in the sight and hearing of the Accused hardly leave room for mistake. And if information actually received is not sufficient to amount to conduct constituting provocation, then a fortiori a mistaken belief cannot. 41. Nevertheless, it may be accepted that there is a general principle that an honest and reasonable belief in a state of affairs which, if it had existed, would make an Accused’s act innocent constitutes a defence to a criminal charge and one which, if there is evidence raising the issue, the Crown must negative pursuant to its obligation to prove a charge beyond reasonable doubt — Jiminez v R (1992) 173 CLR 572 at 582 and the cases cited. The requirement that any mistaken belief be held on reasonable grounds applies in the area of self defence — Zecevic v DPP (1987) 162 CLR 645 at 661–2. 42. However, as the decision of R v Iannazzone [1983] 1 VR 649 at 655 and the cases referred to in it make clear, ‘the honest and reasonable belief doctrine requires belief in a state of facts which, if they existed, would [have] made the defendant’s act innocent’ and a ‘belief does not excuse if its truth would have meant, not that no offence was being committed, but that some other and different offence was being committed’. Here any mistake as to the deceased’s conduct could only assist an accused in obtaining a conviction for manslaughter rather than murder. On this ground alone, I would regard the issue of any mistake by the Accused as one which does not arise. …

68. I have no difficulty in accepting the proposition that within s 23 ‘conduct of the deceased’ may include, certainly in circumstances where he is present, conduct for which, in accordance with normal principles of agency, joint enterprise or common purpose, the deceased is responsible. The impact on the person provoked may be just as great and there is nothing in the terms of s 23 to exclude the normal rule that what a person may do personally, he may do by an agent. Actions so done may properly be regarded as ‘conduct of the deceased’. (It is unnecessary for present purposes to consider whether the formulation in the passage just cited is as precise an expression of this principle as it perhaps might be.) [page 148] … 75. … [I]t must not be forgotten that insofar as the ‘conduct of the deceased’ may include any mistaken view by the Accused of it, it is that conduct which has to be assessed for the purposes of s 23(2)(b) in accordance with what was said by the High Court in R v Stingel (1990) 171 CLR 312 and Masciantonio v R (1995) 183 CLR 58. The fact that the onus is on the Crown to exclude mistake and, even if one puts to one side some of the difficulties adverted to in the passage I have quoted from Brooking J, the need for the exercise of this judgment provides good reason why unreasonable mistakes should not be relevant. And although some of the cases seem to suggest that the mistake might be confined to the identity of the person giving the provocation, if mistake is a relevant consideration, it is not obvious why this should be so. Insofar as s 23 uses the expression ‘conduct of the deceased’ to refer to the event which has induced a loss of control and which is to be the subject of the test for self control of the ordinary person, there is no logic in concluding that a mistake as to the ‘deceased’ should be any more significant than a mistake as to the ‘conduct’. If an accused’s thoughts are to be determinative of whether any actions were conduct of the deceased, why should an accused’s thoughts not be determinative of whether any, and if so what, conduct of the deceased occurred at all? After all, in most situations it is probably the conduct that has greater significance than the identity of the deceased. …

76. In summary, I doubt whether, as a matter of construction of s 23 mistakes by an Accused can be regarded as ‘conduct of the deceased’. Even if that view be wrong, the principle for which I have cited R v Iannazzone, viz that ‘the honest and reasonable belief doctrine requires belief in a state of facts which, if they existed, would [have] made the defendant’s act innocent’ and a ‘belief does not excuse if its truth would have meant, not that no offence was being committed, but that some other and different offence was being committed’ precludes regard being had to them. And if that also be wrong, the general principle that mistakes must be both honest and reasonable would limit those to which regard could be had. [Having addressed the law of provocation, Hulme J addressed the issue of whether or not he could reject the plea of guilty to manslaughter. His Honour said:] 102. … [T]he Crown proceeded against the Accused on a charge of murder. The Accused raised an issue of alibi. Although the Crown called a number of witnesses whose evidence implicated the Accused, the Crown was at risk that they would not be believed, or at least not to the extent necessary to satisfy the jury to the criminal standard. Subject to the Court not refusing to accept it, a plea to manslaughter would ensure the Accused was convicted and punished for something, even if he were not guilty of that charge. For the Accused, conviction for manslaughter is better than a conviction for murder. 103. But that does not make a conviction for manslaughter proper. If the legitimate choices are between verdicts of guilty and not guilty of murder, a conviction for manslaughter, even by agreement, is improper and an abuse of process. … 105. … I am persuaded that the agreement [by the accused] and acquiescence [by the Crown, to make and accept a plea of guilty to manslaughter] is part of the price paid for the plea rather than a proper reflection of the available evidence. 106. In my view, this approach by the Crown represents an abuse of process. Furthermore, in the circumstances, it would also be an

abuse of process for the Court to convict the Accused of the offence of manslaughter of which he is not guilty. 107. I am also satisfied that the Accused’s plea to manslaughter was entered, in the words of Dawson and McHugh JJ, ‘to gain a technical advantage’, viz to avoid the possibility of conviction for murder. [page 149] 108. I make it clear that the fact that in the Accused’s trial the only substantive issue was whether the Accused stabbed the deceased does not preclude consideration of the topic of provocation. And there is nothing inherently wrong in the Crown and an accused making an arrangement that he will plead guilty to manslaughter and the Crown will accept the plea where there is doubt whether the Accused is guilty of murder or manslaughter. However, it cannot be other than an abuse of process if, on no view of the evidence is the Accused guilty of manslaughter or if, to achieve that agreement or the implementation of it, some perverse or unwarranted view of the facts or the evidence or the law has to be adopted. [His Honour found that in the circumstances he had the power to reject the plea of guilty to manslaughter, which he did. A new trial was then required.]

Withholding provocation from the jury 3.29 Where there is some reasonable evidence of provocation, the judge must instruct the jury to consider the issue, even if provocation has not been relied upon by the defence and even if the accused has not given evidence of actual loss of self-control (Parker v R (1964) 111 CLR 665 at 681–682; Lee Chun-Chuen v R [1963] AC 220 at 232). Whether provocation should be left to the jury is to be decided upon a view of the facts most favourable to the accused (Holmes v DPP [1946] AC 588 at 597). In Green (see 3.18), the question was whether the trial judge should have left the issue for the jury at all. The trial judge may accept that there is some evidence of a loss of self-control but may hold that, as a

matter of law, no jury could find that an ordinary person would have been provoked to the necessary degree (see Kumar below). Of course now in this state, words cannot amount to provocation no matter how insulting they might be. In Lindsay v R (2015) 255 CLR 272; 319 ALR 207 the High Court considered a case where the appellate court determined that no reasonable jury could find that an ‘ordinary person’ would be sufficiently provoked by the deceased’s sexual advances to kill. The Court considered on the particular facts and having regard to modern standards of sexual relations, that the appellate court was wrong to conclude that provocation should not have been left to the jury. R v Kumar (2002) 5 VR 193; 133 A Crim R 245 Court of Appeal, Supreme Court of Victoria [The applicant (accused) and the victim were both from Fiji. They had a violent relationship and, as a result, the victim moved from Queensland to Victoria. The applicant followed her to Victoria where the victim repeatedly terminated the relationship, only to allow it to resume. After returning to Queensland the applicant again travelled to Victoria. He went to the victim’s home, but she refused to let him in or provide him with food, even though he had not eaten for two days. She was alleged to have insulted his family in religiously offensive ways. He left the victim’s flat and armed himself with an iron bar that he found, and a knife that he had in his car. He broke into the flat and killed the victim. The trial judge refused to leave the issue of provocation to the jury, holding that, although there was evidence to show the subjective test could be met, there was no evidence capable of supporting a finding that an ordinary person could have been provoked. The applicant sought leave to appeal to the Court of Appeal.] [page 150] O’Bryan AJA: [footnotes omitted] 167. The critical question raised in this appeal is whether the trial

judge correctly withdrew from the jury consideration of provocation. … 170. I am clearly of the view that the deceased’s conduct … could not satisfy the objective test. I consider that the conduct relied upon by [counsel for the accused] fell far below the minimum limits of the range of powers of self-control which must be attributed to the ordinary person. It is not altogether unknown for a wife to lock out her husband from the matrimonial home for what seemed to her to be a good and sufficient reason, or to refuse to provide a meal to him. In my view, for the husband to lose selfcontrol and react in the violent manner demonstrated in the present case, would be far outside what the community would expect from any ordinary person. 171. This is a case where the objective test must be applied to ‘mere words alone’. In my opinion, the law on provocation has developed to the stage where, as a matter of principle, it may be stated that words which are merely insulting, hurtful and offensive, but are not of a “violently provocative character” cannot satisfy the objective test. Into the equation, account must be taken of the context in which the words were used and the degree of reaction produced by the words. In the present case, the words were no more than insulting, hurtful and offensive, but the applicant’s reaction, whether or not attributable to the words, was both extreme and of great ferocity, his intention being to kill and mutilate the deceased. 172. In my opinion, if the applicant was angered and offended by the deceased’s words, no ordinary person could then and there form the necessary murderous intent and no reasonable jury properly instructed could find otherwise. 173. It is the law that “violently provocative words”, in very exceptional circumstances, are capable of causing an ordinary person to lose self-control and act as ferociously as did the applicant, but I have never experienced such a case in my lengthy experience with the criminal law. … 176. I regard provocation as anachronistic in the law of murder

since the abolition of capital punishment and would support its abolition as a so-called defence by Parliament. I adopt the view of Kirby J in Green … I have experienced, as I believe have other judges who have presided over murder trials, unjustified jury verdicts which could only be explained in terms of provocation. 177. It is important and necessary to maintain objective standards of behaviour for the protection of human life. Judges’ views will differ, as they have in the present case, as to how an ordinary person will react to particular conduct or words. I consider that the jury properly directed on the law of provocation and acting reasonably could only have found that the applicant exploded into anger and formed an intention to kill or seriously injure the deceased, not because of the words attributed to her in the house, but because he became very frustrated by her refusal to admit him to her unit. Before the words were spoken the applicant had retrieved the knife from his car and had obtained a piece of pipe. These actions indicated an intention to enter the house forcefully, armed with the knife. 178. In my opinion, the trial judge was justified in withdrawing provocation from consideration by the jury. No reasonable jury properly instructed and having regard to the evidence most favourable to the applicant could have failed to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense by the words attributed to the deceased inside the house. [page 151] 179. In my opinion the application for leave to appeal the conviction should be dismissed. [Batt JA agreed with O’Bryan AJA. Eames J dissented. Application for leave to appeal dismissed.]

Proportionality not required 3.30 It is not necessary that the killing be proportional to the provocation offered (s 23(3)(a)). The trial judge is not required to address the jury on something that does not have to be proved against the accused, but, in certain circumstances, a direction about proportionality may be

required. In R v Szabo [2000] NSWCCA 226 at [46]–[49], Heydon JA said: 46 The Appellant’s submission was as follows: … His Honour failed to direct the jury that the provocation claimed was not negatived by the fact that the act was not “reasonably proportional to the conduct of the deceased that could induce the acts” causing the death of the deceased. Nor did his Honour direct the jury that the acts of the appellant if done with an intention to kill or an intent to inflict grievous bodily harm did not negative provocation (s 23(3)(a)(c) Crimes Act). These were important directions in this matter particularly having regard to the character of the attack upon the deceased and the nature of the provocation claimed by the appellant. The directions left the issue of “proportionality” unaddressed in circumstances where it clearly would be of concern to a jury. In fact the issue, if anything may have been interpreted by the jury as requiring “proportionality” to be considered in determining whether relevant conduct could induce “an ordinary person” to relevantly lose control. 47 The directions which the appellant contends should have been given were not requested by his counsel at the trial. 48 The duty of the trial judge was to direct the jury on the applicable principles of law. Unless the circumstances of the case made it necessary, he had no duty to direct them about what was not the law. The Crown did not suggest, contrary to s 23(3)(a), that provocation was negatived by any lack of reasonable proportionality between the accused’s conduct and the deceased’s conduct. The trial judge repeatedly directed the jury that the s 23(2)(b) issue was whether the ordinary person would have lost self-control in the manner described in that paragraph; if so, it would not matter how much greater the accused’s reaction might have been

compared to that of the ordinary person, and the trial judge did not suggest that it would matter. 49 The Crown did not make any submission to the contrary of s 23(3)(c) [now repealed]. Hence the s 23(3)(c) direction, to which no oral argument was directed, was not called for.

[page 152]

Abolition of provocation 3.31 Although the Council determined not to abolish provocation as a defence in this state, it is worthwhile considering the arguments for its abolition. The Model Criminal Code Officers Committee (MCCOC) criticised the defence of provocation as not reflecting contemporary values (footnotes omitted), as follows. MCCOC, Fatal Offences Against the Person Model Criminal Code, Discussion Paper, Chapter 5, June 1998, pp 69–105 Under the current law in all States and Territories, murder can be reduced to manslaughter due to the existence of a partial excuse. It should be noted that in all cases affected by these partial excuses the defendant is potentially guilty of murder because both the physical and fault elements of the offence will be present. The partial excuses do not operate to negate intent or recklessness; rather they recognise and make a concession for human frailty. The issue which arises is to determine what circumstances will suffice to diminish the fault element for murder. The jurisdictions recognise different circumstances as sufficient to constitute a partial excuse. … Current law recognises that there are circumstances in which people can be provoked to the point where they may kill another human being. If there is a situation that the law will recognise as provocation, and the prosecution is unable to disprove the partial defence, murder is reduced to manslaughter, though the defendant intended to kill the victim. …

The doctrine’s roots reach as far back as Anglo-Saxon and Norman times. It arose out of the sheer prevalence of drunken brawls and dangerous duels which often resulted in death due to the involvement of lethal weapons. The doctrine began to take on a more recognisable form in the seventeenth century when murder was closely aligned with malice aforethought, which was said to be lacking in provoked killings. In the eighteenth century, the doctrine was increasingly applied in situations other than the traditional drunken pub brawl and duelling cases. As the scope of the doctrine expanded, the courts began to ascribe formal characteristics to provocation by devising certain rules regulating its operation. For instance, while the doctrine could now be raised by husbands who interrupted their wives engaging in adultery, a suddenness requirement developed requiring the defendant’s act to be committed in the heat of passion before his temper had cooled. … The doctrinal shifts between objective and subjective approaches points to an underlying difficulty which has long plagued the doctrine of provocation — its lack of a rationale which comprehensively explains its operation. There are two competing rationales: the first emphasises the victim’s provocative conduct in focusing upon why the defendant acted as he or she did; the second takes the view that the defence excuses the defendant for that conduct. The two distinct rationales are apt to develop provocation in different directions. Provocation as a partial excuse essentially amounts to a concession to human frailty as it recognises that in some circumstances society should not expect persons to act dispassionately. However, this does not wholly nor adequately describe the operation of this partial excuse; provocation displays characteristics of both rationales as is illustrated by the fact that the doctrine has both subjective and objective components. This has enveloped provocation in a mesh of complexity which has culminated in an intense debate regarding the extent to which the test of provocation should display subjective [page 153] and objective components and, in particular, whether the test

should be completely subjective. … The real issue in deciding whether the partial defence of provocation should be retained is one of culpability — whether the defendant should be culpable for murder, or for the lesser crime of manslaughter. It cannot be escaped that this issue must in turn be decided by reference to society’s values. The jury is generally used as the thermometer of community sentiment, however the many serious problems which have plagued the partial defence of provocation, at least during its most recent history, forces forward for consideration a more fundamental question: is the middle ground created by the partial defence of provocation worth the price paid for it? This cost/benefit analysis in turn leads to the consideration of the types of cases which commonly lie within this middle ground (the ‘benefits’). What it reveals is a significant portion of such cases in which the defendant’s culpability is no less than that of a ‘murderer’. The desire to have a middle ground for less culpable (provoked) defendants does not seem to accord with the reality. This critical failure of the partial defence of provocation is not rectified by tightening its operation. (Indeed, as noted above, the recent (desirable) judicial trend is to extend its operation in order to cover battered woman syndrome cases.) The problems it poses arise directly as a consequence of its origins as a partial defence for violent behaviour. It is one thing to apply the doctrine in circumstances where the defendant’s violence was in response to violence directed towards the defendant (as in the case of selfdefence), but the partial defence is not so limited. With few technical exceptions, the partial defence applies to all provoked violence, regardless of how it was provoked. In failing to assess the validity of the reasons for the defendant’s violence, the partial defence overlooks much that is relevant to the question of the defendant’s culpability. Thus, while provocation in its modern setting is designed to afford a middle ground to better reflect criminal culpability, it falls significantly short of that goal by reason of its limited focus which inescapably gears the partial defence towards male patterns of aggression and loss of self-control (its origin) at the expense of the sanctity of human life.

3.32 In 2005, the Victorian Government implemented its Law Reform Commission’s recommendation for the abolition of provocation (Victorian Law Reform Commission, Defences

to Homicide, Final Report, November 2004). See Crimes (Homicide) Act 2005 (Vic), which inserted s 3B into the Crimes Act 1958 (Vic).

SUBSTANTIAL IMPAIRMENT BY ABNORMALITY OF MIND 3.33 Like provocation, substantial impairment by abnormality of mind is a partial defence to murder. It provides that a person who intentionally or recklessly kills another may be convicted of manslaughter instead of murder if the jury is satisfied that the person’s capacity to understand events, to judge whether his or her actions were right or wrong or to control himself or herself was substantially impaired due to an abnormality of mind. Older textbooks refer to the defence of ‘diminished responsibility’. That defence was abolished by the NSW Parliament in 1998 and replaced with the present defence that applies to any murder alleged to have been committed after 3 April 1998. [page 154] 3.34 The defences of mental illness and substantial impairment by abnormality of mind are related because of the nature of the abnormality of mind in each case. However, the former is a complete defence to any crime, whereas the latter applies only to murder and serves to reduce murder to manslaughter. In both defences the onus of proving the defence is on the accused on the balance of probabilities. 3.35 Accused persons charged with murder, who might qualify for the defence of mental illness (see Chapter 8), may seek to rely upon substantial impairment by abnormality of mind in order to gain the certainty and reassurance of a set term of detention if convicted of manslaughter. A person who has killed and been found not guilty on the grounds of

mental illness may be detained indefinitely ‘until released by due process of law’ (Mental Health (Forensic Provisions) Act 1990 s 39(1)). On the other hand a person who has killed and whose mind at the time of the killing was ‘substantially impaired by abnormality’ may receive a sentence for voluntary manslaughter that at least includes a parole period. The Crown is entitled to raise the defence of mental illness if the accused raises substantial impairment, and similarly, if the accused raises mental illness, the Crown is entitled to raise substantial impairment due to abnormality of mind (R v Ayoub [1984] 2 NSWLR 511). It may seem curious that the Crown is entitled to raise a defence to a crime but that is because of the unusual nature of these defences and their different consequences. 3.36 The test for ‘substantial impairment by abnormality of mind’ is set out in s 23A of the Crimes Act. 23A Substantial impairment by abnormality of mind (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 mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1)(b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was selfinduced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be

disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death.

[page 155] (7) If, on the trial of a person for murder, the person contends: (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section: underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind.

3.37 Section 23A(4) states that the burden of proof is on the accused to prove that he or she comes within the section. Remember Woolmington v DPP [1935] AC 462 (see 1.48) and the ‘golden thread’ of British justice? Here is an exception to the rule that the Crown must prove the physical and fault elements beyond reasonable doubt. Where, as here, the

burden is on the accused, the accused need only prove his or her case on ‘the balance of probabilities’. 3.38 Substantial impairment by abnormality of mind is best considered in the context of the defence of mental illness, where in practice it often arises. See, for further discussion, 8.6 and following.

EXCESSIVE SELF-DEFENCE 3.39 A new category of voluntary manslaughter was created by amendments made to the Crimes Act in 2001 (which commenced in 2002) which introduced the concept of excessive self-defence as a possible issue arising on a charge of murder and which might result in a verdict of manslaughter. Self-defence is discussed in Chapter 9. 3.40 At common law self-defence is a complete answer to all charges, including murder. If an accused person killed another, but ‘… believed upon reasonable grounds that it was necessary in self-defence …’ to kill (Zecevic v DPP (1987) 162 CLR 645: see 9.34), then he or she was not guilty of any offence. Where the Crown could prove beyond reasonable doubt either that the accused did not believe that it was necessary to kill in self-defence, or that there were no reasonable grounds upon which the accused could have formed that belief, then self-defence was not an issue and the accused was to be judged according to law. In this case, if he or she had the necessary fault elements, the killing would be murder. 3.41 From 2002, an accused who believes he or she was acting in self-defence, but uses excessive force, is to be acquitted of murder and convicted instead of manslaughter (s 421). An example might be a person who thinks a stranger approaching on the street might be about to attack him or

her, even though the stranger does nothing to give rise to that belief. The accused then kills the person, believing that this is necessary to defend himself or herself (s 421(1)). Assuming that the jury accepts that the accused honestly held the belief that he or she was about to be attacked and the only available response was to kill, then the [page 156] jury would have to consider whether that response was reasonable. If the jury accepts that the response was ‘not a reasonable response in the circumstances as [the accused] perceives them’ (s 421(1)(b)), that is, that it was not reasonable to think that the only way to respond was to kill, then the accused should be found guilty of manslaughter only. 3.42 It is noteworthy that Victoria has returned to the common law and no longer has a defence to murder based upon excessive self-defence. Section 4 of the Crimes Act 1958 (Vic) contained an alternative verdict to murder called ‘defensive homicide’ but it was repealed in November 2014.

INFANTICIDE 3.43 Infanticide is a statutory offence (see 3.45 below). Where a woman has caused the death of her very young child, she may be charged with murder, to which she can plead not guilty but guilty to infanticide. If the Crown accepts this plea, the accused will be dealt with for the less serious offence and not for murder. Infanticide is an alternative verdict to a charge of murder in the same way manslaughter is. The penalty for infanticide is the same as for manslaughter (s 22A(1)), so the practical effect may be the same whether the accused is convicted of infanticide or manslaughter. Of course the accused may deny killing the

child or plead guilty to manslaughter based upon a version of the facts consistent with involuntary manslaughter, for example, killing by an unlawful and dangerous act. 3.44 Because infanticide is a substantive offence, the prosecution may elect to prosecute a woman for this offence rather than murder, or the woman may rely on it as an answer to the charge of murder. In that case the Crown would have to prove that the offence committed was murder and not infanticide. 3.45 Infanticide is set out in s 22A of the Crimes Act: 22A Infanticide (1) Where a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this section the offence would have amounted to murder, she shall be guilty of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of such child. (2) Where upon the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of opinion that she by any wilful act or omission caused its death, but that at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to such child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding that the circumstances were such that but for the provisions of this section they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide, and the woman may be dealt with and punished as if she had been guilty of the offence of manslaughter of the said child.

[page 157] (3) Nothing in this section shall affect the power of the jury upon an indictment for the murder of a child to return a verdict of manslaughter or a verdict of not guilty on the ground of insanity, or a verdict of concealment of birth.

DISCUSSION QUESTIONS 3.46 1.

Assume that the following facts are true and can be proved. Consider whether Julian could be convicted of murder or of voluntary manslaughter: (a) Julian is a happily married white Anglo-Saxon barrister. He takes time to jog and work out at the gym, and is very fit and strong. He had a happy childhood in a settled family environment. There is nothing to suggest that he has any form of personality disorder, emotional problem, depression, mental illness or other condition. He says that he believed that his wife (Annette) was happy. Their sex life was regular and satisfying, at least for him. Julian unexpectedly returned home during a working day when he was expected to be in court. He entered the bedroom to find his wife having intercourse in the matrimonial bed with his closest Bar colleague and mentor, Tony. Julian says that he completely lost selfcontrol, and in that state picked up a heavy bedside lamp, using it, with one blow, to smash Annette’s skull, instantly killing her with that intention.

If this kind of response and behaviour on Julian’s part should not completely exculpate, should it at least partially excuse, opening the possibility of a verdict of manslaughter? (b) The same situation as above, but with the addition that Julian goes on to administer a similar fate to Tony as well as Annette. What if Annette had taken two lovers to her bed, or three, or four? If the law is to recognise provocation as providing a degree of exculpation, should it place limits on the defence so that, for example, it would be unavailable if the killing was (or killings were) disproportionate to the provocation? (c) The jury asks the trial judge, during the course of their deliberations in Julian’s case, as set out in example 1(a), for a direction on this question: If we believe that Julian did actually lose selfcontrol, but come to the opinion that people like him would not be provoked by finding their wife in bed with a colleague, can we still acquit him of murder?

Should a judge be obliged to direct that the jury cannot reduce murder to manslaughter in such circumstances? 2.

Assume that the following facts are true and can be proved. Discuss whether Billy Rae should be convicted of murder, or of manslaughter, or acquitted. Billy Rae is a member of the ‘Coalition for an Armed Citizenry’ and is an active political campaigner in favour of increased rights for homeowners to

[page 158] protect themselves. His politics have made him a well-known and widely disliked figure and he has received a number of death threats. One night Billy is at home when he hears a noise at the back door. He picks up his semi-automatic assault rifle from beside his chair and moves to the back of the house. As he does so he hears more noise, as if someone is attempting to force the back door. He calls out ‘Get out of here. I’ve got a gun you know’. The noise continues and he can hear some mumbling. He calls out ‘You asked for it’ and then discharges the gun through the door. Billy opens the door and finds he has killed his 86-yearold neighbour who had accidentally attempted to enter the wrong house. Billy is arrested and charged with murder. In his interview with police he says: ‘I have had a lot of threats you know. How was I to know that it was not some crazed bastard out to get me? I had to protect myself and I wasn’t going to let him have the first shot. I didn’t want anyone to die, but it wasn’t me that killed him, it was the hospital.’ At his trial, Billy will call a psychologist who will say that Billy suffers from a long-term psychological condition that, in effect, means he really has a childlike personality and an inability to accept points of view other than his own. It is his personality disorder that makes him seek out groups such as the Coalition for an Armed Citizenry, where he feels like part of a group and his own paranoid fantasies are supported by others. (Note: To fully consider this problem, you would need to consider the law of self-defence discussed at 9.32 and following.)

[page 159]

4 Involuntary manslaughter INTRODUCTION 4.1 Chapter 3 deals with voluntary manslaughter, that is, where a mental element sufficient for murder is present, but where a statutory partial defence (excessive provocation, substantial impairment due to abnormality of mind, excessive self-defence, or the mental state sufficient for infanticide) reduces what would otherwise be murder to manslaughter. We now turn to involuntary manslaughter, that is, unlawful killing where the mental element for murder is not present, but where the accused’s act or omission that caused death is sufficiently culpable to warrant punishment (see Flow Chart 2-1 at 2.1). We shall also deal with the offence of assault causing death under s 25A of the Crimes Act 1900 (NSW) (‘the Crimes Act’).

TWO FORMS OF INVOLUNTARY MANSLAUGHTER 4.2 In Wilson, the High Court reviewed the history of manslaughter and concluded that, for the purposes of the

Australian common law, there are two forms of involuntary manslaughter: 1.

manslaughter by an unlawful and dangerous act; and

2.

manslaughter by criminal negligence.

Judicial development of accessorial liability has resulted in a further category of manslaughter which can arise where a homicide occurs in the course of a joint criminal enterprise. This category is discussed at 4.16. [page 160] Wilson v R (1992) 174 CLR 313; 107 ALR 257 High Court of Australia [The appellant was charged with murder, but convicted of manslaughter.] Mason CJ, Toohey, Gaudron and McHugh JJ: … The events giving rise to the charge against the appellant were as follows. On the evening of 15 September 1989 the appellant, his girlfriend Kerri Ann Bennier and Cumming were at the home occupied by Cumming’s step-father and the appellant’s mother. The appellant and Bennier walked to a hotel nearby to collect some alcohol from the appellant’s mother who was at the hotel with Cumming’s stepfather. On the way they met the deceased, a middle-aged man, who was under the influence of liquor. The deceased exchanged words with the appellant and Bennier. The appellant thought that the deceased was “strange, a bit weird”. The thrust of the appellant’s evidence was that the deceased was rambling on and making it hard for him to pass. The appellant then told Bennier to go back home to get Cumming so, he said, that Cumming might go to the hotel and collect the alcohol. When Cumming arrived at the scene with Bennier, the appellant and the deceased were still there. The appellant claimed that the deceased had earlier pushed him and that, after Cumming arrived, the deceased “put his arm on the back of my neck and tried to kiss me”. The deceased then “shouldered me”. The appellant tried to walk away, saw that the deceased’s fists were clenched at his side and thought that the

deceased was going to hit him. [The appellant gave evidence that he then hit the deceased once:] Q. How hard did you hit him? A.

It wasn’t really — I didn’t think it was really that very hard.

Q. It wasn’t soft either. A.

No.

… The blow was to the deceased’s face, causing him to fall to the ground where his head ‘landed in that dirt part near the hedge’. The appellant then walked off with Bennier. As he did, Cumming rolled the deceased on to his stomach, went through his pockets, rolled him on to his back and “smashed his head on the concrete … twice”. The cause of the deceased’s death was brain damage, his injuries being consistent with one impact. The Crown’s case, as presented in final address, suggested the fall from the appellant’s punch as the more likely cause of death. The trial judge’s direction seems to have left the fall from the appellant’s punch or Cumming’s later actions as likely to have caused the death. This aspect is not crucial to the questions now before this Court. The case against the appellant The case against both accused was one of felony murder, it being alleged that they assaulted the deceased in the course of robbing him. In answer to this charge the appellant denied any participation in the robbery and any intention of causing serious harm to the deceased; he also relied on self-defence. This Court is not directly concerned with the trial judge’s directions as to murder. But it may be noted that his Honour directed the jury that if the deceased was killed in the course of a joint enterprise between Cumming and the appellant or, if one aided or abetted the other in the killing, they should find both guilty of murder. The trial judge also directed the jury to consider whether either man, acting on his own, was guilty of murder. Since both were found not guilty of murder, it must be taken that the jury rejected an intention to kill or to do grievous bodily harm on the part of either. [page 161] On the alternative verdict of manslaughter, his Honour directed

the jury in the following terms: In this case if you have not found murder proved, but had gone on to consider manslaughter it would be manslaughter by an unlawful and dangerous act. The killing of a man in the course of committing a crime is manslaughter. The crime must be an act in serious breach of the criminal law. A serious assault — you may think the punch by Wilson or the hitting of the head on the concrete by Cumming to be serious assaults — would be an unlawful act for this purpose. Whether the particular act you are considering is a dangerous act is a matter for your judgment. … The question of manslaughter arising from an unlawful and dangerous act is an uncertain area of the law, reflecting a divergence between Australian and English authorities as to the degree of danger which must exist. It is useful to approach the question on an historical footing with a view to determining whether it is possible to spell out any clear principle from the relevant authorities. This involves looking first at the development of the law relating to culpable homicide. Culpable homicide The common law of homicide began with the principle that all who cause death, whether intentionally or accidentally, are liable to conviction for murder.1 Its history reflects a continuing effort to limit that liability. Speaking of the growth of the English law of homicide, Sir Owen Dixon said: For eight centuries the course of its very gradual evolution has been from an almost exclusive concern with the external act which occasioned death to a primary concern with the mind of the man who did the act.2 Fletcher3 observes: The historic point of departure is the principle that unless a killing is justified … the party causing death is always accountable … It was causing death, not the manner and culpability of acting, that determined liability. When the law of homicide came under the King’s jurisdiction in the

twelfth century and became a crime punished by death, the general principle of liability began to admit of exceptions. … [Their Honours proceeded to review the history of the common law of homicide from the time of Bracton through to the nineteenth century and continued:] In the nineteenth century the English courts applied the rule that, if a death occurred in the course of an unlawful act not amounting to a felony, the killing should be treated as manslaughter. Stephen, in A Digest of the Criminal Law,4 states it as the common law rule. As thus expressed, the rule was harsh because it involved liability for manslaughter in the case of an unlawful act which was not dangerous. In other words, causing death in the course of performing a mere unlawful act does not supply the level of culpability appropriate to manslaughter as an instance of culpable homicide. [page 162] Manslaughter by an unlawful and dangerous act The rigour of the common law was softened by a number of decisions. In R v Franklin (1883) 15 Cox CC 163 at p 165, Field J spoke of his “great abhorrence of constructive crime” and held that the requirement of unlawfulness was not met by the act in question being no more than a civil wrong. … In R v Larkin [1943] 1 All ER 217 at 2195 the Court of Criminal Appeal required that the unlawful act be dangerous and that it be ‘likely to injure’. (See also Hall (1961) 45 Cr App R 366 at 372; Pemble v R (1971) 124 CLR 107 at 122). In R v Church [1966] 1 QB 59 at 69 the Court of Criminal Appeal rejected as erroneous a direction that: amounted to telling the jury that, whenever any unlawful act is committed in relation to a human being which resulted in death there must be, at least, a conviction for manslaughter. In the view of the Court (at 70): For such a verdict inexorably to follow, the unlawful act

must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm. In DPP v Newbury [1977] AC 500 the House of Lords examined the matter afresh. It affirmed the test adopted in Larkin and Church. It held that an accused was guilty of manslaughter if he intentionally did an act that was unlawful and dangerous and the act inadvertently caused death; that it was unnecessary to prove that the accused knew that the act was unlawful or dangerous; and that the test was still the objective test, namely whether all sober and reasonable people would recognise that the act was dangerous in the sense of carrying with it the risk of some harm, not whether the accused recognised its danger. As King CJ observed in the present case (R v Wilson (1991) 53 A Crim R at 284): In the course of a discussion of the judgment of Lord Denning MR in Gray v Barr [1971] 2 QB 554, Lord Salmon, who delivered the leading judgment, appears to imply that the test is also met if there is an actual intention to cause harm or an actual realisation that harm is likely, although that is not necessary if the act is objectively dangerous. And, as King CJ pointed out, Larkin, Church and Newbury were not cases of intentional infliction of harm. There are however decisions of English courts which suggest that the intentional infliction of harm by means of an unlawful act may be sufficient to constitute manslaughter (R v Garforth [1964] Crim LR 936; R v Sharmpal Singh [1962] AC 188; see also Smith and Hogan, Criminal Law, 6th ed (1988), p 350). The question of battery manslaughter is considered later in this judgment. The Australian decisions A convenient starting point for a review of the Australian authorities is the decision of this Court in Mamote-Kulang v R (1964) 111 CLR 62. It will be necessary to refer to that case again in the context of battery manslaughter. The appellant struck the deceased a blow with the back of his hand to the side of her abdomen, intending to hurt her and to cause her pain but not

further injury. He was convicted of manslaughter. The judgments were concerned mainly with the meaning of the term “accident” in the relevant legislation of Papua New Guinea but it seems that, in the view of Taylor, Owen and Windeyer JJ, death resulting from the intentional infliction of pain by an unlawful blow would constitute manslaughter at common law. (See Mamote-Kulang v R (1964) 111 CLR 62, per Taylor and Owen JJ at 64 and in particular per Windeyer J at 79: “There is, however, no doubt that at common law a man is guilty of manslaughter if he kills another by an unlawful blow, intended to hurt, although not intended to be fatal or to cause grievous bodily harm.”) [page 163] R v Holzer [1968] VR 481 required consideration of a question which had not arisen in Mamote-Kulang but which was at the heart of some of the English decisions to which reference has been made. The question was as to the application in Australia of the notion that, in the case of manslaughter by an unlawful and dangerous act, the test of recognition of danger was objective. In dealing with that aspect Smith J said at 482: The better view, however, is I think that the circumstances must be such that a reasonable man in the accused’s position, performing the very act which the accused performed, would have realized that he was exposing another or others to an appreciable risk of really serious injury. … [I]t is not sufficient, as it was held to be in R v Church … to show there was a risk of some harm resulting, albeit not serious harm. As can be seen from this passage, Smith J imposed a stricter test than had been applied in Church and in some other decisions, by requiring that the Crown establish an appreciable risk of “really serious injury”. There is a respectable body of later authority which tends to support the approach taken by Smith J in Holzer. That approach was expressly approved by the Court of Criminal Appeal of Victoria in R v Wills [1983] 2 VR 201 at 211–213, though the Court was concerned primarily with the objective nature of the test to be applied. In Crusius (1982) 5 A Crim R 427 at 428 the Court of Criminal Appeal of Victoria referred to Holzer with apparent approval though the Court was concerned only with ‘one limb’ of

that case, namely, “specific intent to commit a battery”. It may be that Holzer was tacitly approved by the Court of Criminal Appeal of New South Wales in Coomer (1989) 40 A Crim R 417 at 423,6 by the Court of Criminal Appeal of Western Australia in Ward v R [1972] WAR 36 at 407 and by judges at first instance in R v McCallum [1969] Tas SR 73 at 87–88, R v Brown (1984) 58 ACTR 33 at 35 and R v Jones (1988) 144 LSJS 58 at 61–62. Finally, there is the decision of this Court in Pemble v R (1971) 124 CLR 107 but, as King CJ pointed out in the present case (Wilson (1991) 53 A Crim R at 286): In that case … the unlawful act, namely the brandishing or pointing of a rifle was so obviously capable of causing grievous bodily harm that the question of the degree of potential harm required to render an act dangerous, did not arise for consideration. Faced with this conflict of authority, King CJ concluded that the Court of Criminal Appeal of South Australia “should adopt the Holzer test” (at 286). In the event, King CJ, while holding that there had been a defect in the trial judge’s summing up, concluded that there had been no miscarriage of justice (at 288). Cox J considered that the English authorities, in particular Larkin and Church, should be followed in preference to Holzer (at 304–5). Matheson J also favoured the English approach. His Honour was influenced by the fact that Newbury was decided at a time when appeals lay from Australia to the Privy Council and that therefore a decision of the House of Lords was “very persuasive” (at 307). This, with respect, is a tenuous basis on which to resolve the conflict of authority. [page 164] Unlawful and dangerous act The jury must be taken to have convicted the appellant of manslaughter by reason of an unlawful and dangerous act causing death. This was not a case of death resulting from criminal negligence and, for reasons already given, provocation afforded no basis for a verdict of manslaughter. The question is whether the trial judge’s direction relevantly erred and, if it did, whether the proviso may properly operate so as to sustain the conviction.8 Whether the “act” in question was the punch by the appellant to

the deceased’s face or the hitting of the deceased’s head on the concrete by Cumming, it was an unlawful act. In view of Cumming’s acquittal, only the punch arises for consideration. In view of what has been said about self-defence, the punch must be treated as an unlawful act. Before the Court of Criminal Appeal the appeal was conducted as if only the punch was in issue so far as the appellant was concerned. And that is how the appeal was conducted before this Court. Whatever may be said of the consequences of that act, there was no suggestion that it was accidental. The references by Lord Salmon in Newbury to intention as an element of manslaughter were severely criticised by Glanville Williams in Textbook of Criminal Law, 2nd ed (1983), pp 272–274. This aspect is discussed later in this judgment. Thus the area of inquiry narrows further and, in the end, focuses on the question: was the act of the appellant in punching the deceased dangerous? That question in turn gives rise to another: was it enough that the appellant (that is, a reasonable person in his position) appreciated the risk of some injury to the deceased from the act or did the jury have to be satisfied that he appreciated the risk of really serious injury? Resolving the authorities There are good reasons why the test in Holzer should be preferred to that in Newbury; the reasons are those advanced by King CJ in the present case. One is the development of the law “towards a closer correlation between moral culpability and legal responsibility” (Wilson 53 A Crim R at 286). Another is that the scope of constructive crime ‘should be confined to what is truly unavoidable’ (at 286). A further reason advanced by King CJ is that the persuasive authority of a decision of the Full Supreme Court of an Australian State in this area of the law is greater than decisions of courts of other countries ‘which may reflect different community attitudes and standards’ (at 287). The decision to which his Honour referred was, no doubt, a reference to Wills. It is not possible to resolve this conflict of authority and assert a proposition in general terms without first considering another category of manslaughter envisaged by Smith J in his direction to the jury in Holzer. He said ([1968] VR at 483): (T)he blow, the assault and battery, was given or

committed by the accused with the intention of doing Harvey some physical injury, not merely of a trivial or negligible character. The intended injury need not be a serious injury. Indeed, if it were a serious injury that was intended we would be in the field of murder, not manslaughter. The injury intended may be of a minor character but it must not be merely trivial or negligible. [page 165] Battery manslaughter Although Smith J did not use the term, effectively he was speaking of battery manslaughter. This additional category of manslaughter (if it exists) involves a subjective test of intention and a low degree of harm. Because of the low degree of requisite harm, it has been suggested that there is significant congruity between the English test for unlawful and dangerous act manslaughter and Smith J’s identification of a third category of manslaughter, although the latter imports a subjective intention.9 The idea of such a category as battery manslaughter does nothing to advance the law in what is, in any event, a somewhat clouded area. In particular, it tends to confuse intent with a willed act. The actus reus here is the unlawful and dangerous act which causes the death. Questions of causation will of course arise but they do not arise here. The mens rea required relates to the unlawful and dangerous act; that act must be willed and not accidental. At common law (and, indeed, under the Criminal Codes) manslaughter is not generally an offence requiring a particular intention; in that respect it is sharply distinguishable from the offence of murder. [Their Honours then proceeded to consider the basis for a form of manslaughter where the death resulted from the intentional infliction of some harm and found that there was no authority that bound the Court to find that such a form of manslaughter existed under the common law.] Conclusion The notion of manslaughter by the intentional infliction of some harm carries with it the consequence that a person may be convicted of manslaughter for an act which was neither intended

nor likely to cause death. In this context we do not think it is helpful to speak in terms of reasonable foreseeability; the concept is one likely to cause confusion. (See, in a different context, Royall v R (1991) 172 CLR 378 at 390, 412–13, 424–25; 100 ALR 669.) But it is appropriate to observe that in such a case a person may be held guilty of manslaughter for a death that was quite unexpected, whether the test applied in that respect is subjective or objective. It may be said that the same is true of unlawful and dangerous act manslaughter. But the criticism loses its force if the test in Holzer is applied so that, before a conviction may ensue, a reasonable person would have realised that he or she was exposing another to an appreciable risk of really serious injury. However, the utility of a qualifier such as “really” is very questionable. “Serious” and “really serious” may have quite different connotations in some situations. (See R v Perks (1986) 41 SASR 335 at 337, as to the use of “serious bodily harm” instead of “grievous bodily harm” in directions as to murder.) While the Holzer direction does not seem to have given rise to difficulties in this regard, the emphasis on really serious injury brings manslaughter perilously close to murder in this respect. The distinction between the two may easily be blurred in the minds of the jury. It is better to speak of an unlawful and dangerous act carrying with it an appreciable risk of serious injury. A direction in those terms gives adequate recognition to the seriousness of manslaughter and to respect for human life, while preserving a clear distinction from murder. The approach in Holzer takes away the idea of unexpectedness to a large extent. It does not remove it entirely but then we are not in the area of murder (and its relevant intent) but in the area of manslaughter. [page 166] Manslaughter by an unlawful and dangerous act (in the Holzer sense) is a relevant and appropriate category of manslaughter. Manslaughter by the intentional infliction of some harm answers neither description. It continues the rigour of the early common law and ought to play no part in contemporary law. This approach leaves two categories of involuntary manslaughter at common law: manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury and manslaughter by criminal negligence. There have been suggestions that these two categories

should be replaced by one. (See, for example, Law Reform Commission, Victoria, Discussion Paper No 13, Homicide (1988), p 68.) But, as the law stands, there are differences between them. In the case of manslaughter by criminal negligence, it is unnecessary to prove that the accused’s act was unlawful (Andrews v DPP [1937] AC 576). And the tests of dangerousness are different. An appreciable risk of serious injury is required in the case of manslaughter by an unlawful and dangerous act. For manslaughter by criminal negligence, the test is “a high risk that death or grievous bodily harm would follow” (Nydam v R [1977] VR 430 at 445). As the question of criminal negligence was not relied on in the present appeal, we need say no more as to the appropriateness of the distinctions that presently exist between this category of manslaughter and manslaughter by an unlawful and dangerous act.10 Adoption of the test in Holzer as to the level of danger applying to manslaughter by an unlawful and dangerous act and abolition of battery manslaughter do not create a gap in the law. Cases of death resulting from a serious assault, which would have fallen within battery manslaughter, will be covered by manslaughter by an unlawful and dangerous act. Cases of death resulting unexpectedly from a comparatively minor assault, which also would have fallen within battery manslaughter, will be covered by the law as to assault.11 A conviction for manslaughter in such a situation does not reflect the principle that there should be a close correlation between moral culpability and legal responsibility, and is therefore inappropriate. … [Brennan, Deane and Dawson JJ in a joint judgment agreed that the doctrine of battery manslaughter should be rejected. However, they rejected the majority view that an objectively appreciable risk of serious injury is required. They would have left the issue of dangerousness to the jury to be determined as a matter of degree. Appeal allowed. New trial ordered.]

4.3 The differences between the two categories of manslaughter are explained in the majority judgment in Wilson as follows: In the case of manslaughter by criminal negligence, it is unnecessary to prove that the accused’s act was unlawful.

And the tests of dangerousness are different. An appreciable risk of serious injury is required in the case of manslaughter by an unlawful and dangerous act. For manslaughter by criminal negligence, the test is “a high risk that death or grievous bodily harm would follow” (adopting Nydam v R (1977) VR 430, at p 445).

The meanings of ‘unlawful’ and ‘dangerous’ are explored at 4.4. [page 167]

UNLAWFUL AND DANGEROUS ACT MANSLAUGHTER Elements of unlawful and dangerous act manslaughter Unlawful and dangerous act 4.4 With respect to the terms ‘unlawful’ and ‘dangerous’: The unlawful and dangerous act must carry with it an appreciable risk, or likelihood, of serious injury. It is not necessary that the accused was aware that the act was dangerous, provided that a reasonable person, in the accused’s position, would have appreciated that the act was one which, in the circumstances, exposed others to the risk of serious injury (Wilson v R (1992) 174 CLR 313; 107 ALR 257; see 4.2). For an act to be unlawful it must be a breach of the criminal law. It is not sufficient that it amount to a tort (Pemble v R (1971) 124 CLR 107). The test of whether an act is dangerous is objective, that is, whether a reasonable person would recognise

the act as dangerous in the sense that it carries with it the risk of harm (DPP v Newbury; DPP v Jones [1977] AC 500). The unlawful act must be a direct act, in the sense of an unlawful act which immediately and inevitably causes physical injury (R v Dalby [1982] 1 All ER 916). R v Cornelissen [2004] NSWCCA 449 NSW Court of Criminal Appeal [The appellant Cornelissen became aware of an allegation, through overhearing part of a conversation between his sisters, Tammy and Louise, that Tammy had been sexually abused as a child by the deceased, Tony Byrne. The appellant went to the deceased’s house and an altercation ensued. A loud noise was heard by the four people who were inside the house and they came to the front door. The deceased was then lying on the ground in the front yard. The deceased got to his feet but was obviously distressed. The appellant punched the deceased and the deceased collapsed. He died shortly afterwards. The punch had caused a tear in one of the blood vessels supplying blood to his brain and this tear had given rise to a subarachnoid haemorrhage. The Crown case was that the appellant had punched the deceased, thereby causing the death of the deceased, and that he was guilty of manslaughter by an unlawful and dangerous act. In his summing up the trial judge said to the jury: Manslaughter is committed where the accused causes the death of a person by an act which is both unlawful and dangerous. It is not necessary that the accused was aware that the act was dangerous provided that a reasonable person would have appreciated that the act was one which, in the circumstances, exposed others to risk of serious injury, that is an unlawful and dangerous act carrying with it an appreciable risk of serious injury. In this case the act must be a breach of the criminal law. It is put by the prosecution that with an assault, the test of danger is objective. The only intent is an intent to commit

an act which is unlawful and dangerous, that is to assault Tony Byrne. Each of the barristers [page 168] sought to give you an example. May I give you this example of a dangerous act. Imagine two young persons at the end of a pier over water and they are tossing a box and passing one to the other like a ball. One misses the catch and it goes over the side and there is a person swimming underneath and the box hits the swimmer and kills him. What the two young persons were doing was a dangerous act. They had no idea that there was a swimmer underneath. It amounts to manslaughter because they were committing a dangerous act within the terminology that I mentioned to you, where there was a risk of serious injury.] James J: … [T]he Crown case that the appellant Cornelissen had committed the crime of manslaughter was that, in the second part of the physical altercation between Cornelissen and the deceased, Cornelissen had struck the deceased with a punch, otherwise than in self-defence, thereby doing an unlawful and dangerous act, which had caused the deceased’s death. 78 Quite apart from whether the Crown had proved that Cornelissen had not acted in self-defence, there was a strongly contested issue at the trial as to whether the Crown had proved that the act of punching the deceased had been a “dangerous” act. … 81 In directing the jury about whether an act was dangerous … [the trial judge] said that an act was dangerous, if a reasonable person would have appreciated that the act exposed others to an appreciable risk of serious injury. 82 This direction was obviously derived from a passage in the joint judgment of Mason CJ, Toohey J, Gaudron J and McHugh J in Wilson v The Queen (1991–1992) 174 CLR 313 at 334, where their Honours authoritatively stated that in a trial for manslaughter the jury should be directed to assess “whether a reasonable person in the accused’s position would have realised that (in punching the deceased) he was exposing him to an appreciable risk of serious injury”. However, in the directions his Honour gave in the present

trial his Honour had omitted from the directions the need for the reasonable person to be placed “in the accused’s position”. 83 It was submitted that the omission was significant, because different witnesses at the trial had given different accounts of what they had observed in the confrontation between Cornelissen and the deceased. For example, some Crown witnesses had given evidence that, before he was struck the fatal blow, the deceased was staggering. In his evidence Cornelissen denied that the deceased was staggering. Because what was material was what was apparent to Cornelissen and not what a Crown witnesses [sic] might have observed, it was essential that the jury should have been directed that, in determining whether the Crown had proved that Cornelissen’s act of punching was dangerous, they had to determine whether the Crown had proved that a reasonable person, in the position of Cornelissen, would have realised that in punching the deceased he was exposing him to an appreciable risk of serious injury. … 85 It was further submitted … that the example given by the trial judge as being an example of a dangerous act was inapposite and positively misleading, in that it might have led the jury to take into account the outcome of Cornelissen’s act, that is the death of the deceased, in deciding whether Cornelissen’s act was dangerous. 86 On this appeal the Crown accepted that there were defects in the example given by the trial judge but submitted that better examples of dangerous acts had been given by counsel in their closing addresses and the Crown pointed out that elsewhere in the summing-up the trial judge had warned the jury against using hindsight. 87 In my opinion, the example given by his Honour was, with respect to his Honour, a poor one and could have been misleading. It is by no means clear on the brief facts postulated by his Honour that a reasonable person, in the position of the two persons passing the box between them, would have appreciated that the acts of passing the box carried an appreciable risk of serious injury to another person. One fact which was [page 169] postulated by his Honour, that the persons passing the box had no

idea that there was a swimmer underneath, might well militate against a finding that the acts of passing the box were dangerous according to the test stated in Wilson. I mention in passing that it is by no means apparent that the acts of passing the box would have been unlawful. 88 I would not have upheld this ground of appeal, merely on the basis that the example given by his Honour was inapposite and liable of itself to have been misleading, but the giving of such an example by his Honour strengthens my conclusion that this ground of appeal should be upheld. 89 It was further submitted by counsel for Cornelissen that the trial judge, after giving these directions of law about manslaughter, had failed to relate the directions to the evidence. Nowhere in the summing-up did the trial judge tell the jury in terms that they had to determine whether, applying the directions of law he had given them, they were satisfied beyond reasonable doubt that Cornelissen’s act of punching the deceased, quite apart from whether it was done in self-defence, was a dangerous act. 90 In my opinion, it would have been preferable for the trial judge to have more explicitly related his directions of law about manslaughter to the evidence in the particular trial but I have concluded from a consideration of the summing-up as a whole that the jury would have realised that one of their tasks was to determine whether the Crown had proved beyond reasonable doubt that Cornelissen’s act of punching the deceased had been a dangerous act. [Hidden and Bell JJ agreed with James J that the appeal should be allowed.]

4.5 The supply of a prohibited drug, although unlawful, is not a dangerous act for the purposes of manslaughter where the recipient of the drug dies as a result of its ingestion (Burns v R (2012) 246 CLR 334; 290 ALR 713). This is so, even though the supplier knew that the recipient intended to use the drug supplied. See Burns at 2.12 on the issue of causation.

Unlawful otherwise than as breach of statutory or

regulatory provision 4.6 What does unlawful mean? In Pullman the appellant was convicted of manslaughter. The Crown alleged that he was the driver of a car that crossed an unbroken centre line which forced the driver of an oncoming vehicle to swerve. The driver of that vehicle lost control and struck and killed a motorcyclist travelling in the same direction as the appellant. R v Pullman (1991) 25 NSWLR 89; 58 A Crim R 222 NSW Court of Criminal Appeal Hunt CJ at CL: … The principal issue which arose at the trial and which arises in this appeal concerns the nature of the unlawful act which will support both the manslaughter charge and the charges of causing grievous bodily harm by such an act pursuant to s 54 of the Crimes Act. It is convenient to deal first with the manslaughter charge. [page 170] There are two categories of manslaughter which are said to be relevant to any consideration of this issue where death has been caused by the driving of a motor vehicle. The first is that of criminal negligence, in which it is necessary for the Crown to establish such a high degree of negligence or disregard for the life and safety of others as to be regarded as a crime against the community generally and as conduct deserving punishment. … The second category is that of an unlawful and dangerous act, in which it is necessary for the Crown to establish that the act of the accused was one done deliberately and that it was both unlawful and dangerous. … The Crown ultimately relied in this case upon the category of manslaughter based on an unlawful and dangerous act. The appellant’s first argument is that an act which constitutes a breach of the Motor Traffic Regulations does not, for that reason alone, constitute an unlawful act sufficient to found a charge of manslaughter within that category. That particular argument could not be denied; there is an abundance of authority for it: see, eg, Andrews v Director of Public Prosecutions [1937] AC 576 at 584.

The Regulations include such a wide and diverse variety of circumstances that many (such as driving without the necessary licence, although otherwise competent to do so) could not possibly justify a charge of manslaughter within that category. The appellant’s second argument, however, is more controversial. He says that, if any particular act causing death constitutes a breach of the Motor Traffic Regulations, it is necessarily excluded as supporting a charge of manslaughter within the category of unlawful and dangerous act, although it may support a charge of manslaughter within the other relevant category, that of criminal negligence. It is clear, of course, that the act must be unlawful in the sense of being in breach of the criminal law; an act which amounts to no more than a tort is insufficient: R v Lamb [1967] 2 QB 981 at 988; Pemble v R (1971) 124 CLR 107 at 122. The appellant has relied principally upon the judgment of Burbury CJ in R v Rau [1972] Tas SR 59. The Chief Justice, referring to acts constituting breaches of the Motor Traffic Regulations, held (at 65) that the result of the decision of the House of Lords in Andrews v Director of Public Prosecutions is: … that for the purposes of motor manslaughter, the law places all such unlawful acts in the category of culpable negligence, and excludes them from the category of manslaughter constituted by killing by an unlawful act. The Chief Justice reasoned this proposition from common law principles, and his decision was not based upon a construction of the Tasmanian Criminal Code. The other two members of the Court of Criminal Appeal (Chambers J and Nettlefold J) reached the same conclusion, basing their individual decisions upon an interpretation of the Criminal Code — although each saw support for that interpretation in Andrews v Director of Public Prosecutions. If this dictum of Burbury CJ was intended to mean (as it appears to have been intended to mean) that any act which constitutes a breach of the Motor Traffic Regulations is necessarily excluded as supporting a charge of manslaughter within the category of unlawful and dangerous act, it is, with respect, difficult to find any

support for such a proposition in Andrews v Director of Public Prosecutions. … The justification usually put forward as supporting the dictum of Burbury CJ as so interpreted — and which is repeated in this appeal — is that, so diverse are the different acts constituting offences under the Motor Traffic Regulations, it would undermine the principle stated in R v Bateman and upheld in Andrews v Director of Public Prosecutions to permit such acts to constitute the unlawful act founding manslaughter within that category. [page 171] In my view, however, it has never been the law that any act which constitutes a breach of the Motor Traffic Regulations is, for that reason alone an unlawful act for the purpose of manslaughter within that category. I have already pointed out that the law is that a breach of such regulations is not by itself such an act. As Humphreys J said in R v Larkin (1942) 29 Cr App R 18 (at 24), the driving of a motor vehicle is a lawful act. In Andrews v Director of Public Prosecutions (at 585), Lord Atkin referred to what he said was the obvious difference in the law of manslaughter between doing an unlawful act and doing a lawful act with a degree of carelessness which the legislature makes criminal. These statements led Burbury CJ in R v Rau (at 63–65) to make an uneasy distinction between a lawful act done negligently and a ‘wholly unlawful’ act, and to assert that the act of driving a motor vehicle in a way which constitutes a breach of the Motor Traffic Regulations does not make ‘his whole act of driving’ unlawful. In the course of doing so, Burbury CJ concludes (at 64) that there must be excluded from the category of manslaughter by an unlawful and dangerous act: … all negligent acts by a car driver where death is caused by driving — whether or not they may or may not be characterized as constituting offences under the Traffic Act 1925. Although that particular conclusion was reached by the Chief Justice by a process of statutory interpretation of the Criminal Code, he asserts (at 64) that the provision of the Code dealing with this category of manslaughter ‘expresses in statutory form the common

law concept of manslaughter constituted by killing by an unlawful act’. I confess that even the distinction drawn by Lord Atkin is not always easy to make in relation to many actions which would constitute breaches of the Motor Traffic Regulations. To drive in a manner dangerous to the public may appropriately be characterised for some purposes as negligent driving, but it is difficult to consider it as merely a negligent way of doing an otherwise lawful act as opposed to an act which is unlawful in itself. It is, for example, accepted (even by Burbury CJ) that driving a motor vehicle under the influence of alcohol is illegal in itself even though it also constitutes a breach of the Motor Traffic Regulations. … In my opinion … a policy which necessarily excludes from the category of manslaughter based upon an unlawful and dangerous act any act which constitutes a breach of the Motor Traffic Regulations is quite unacceptable. In my view, a more appropriate dividing line — bearing in mind the way in which the cases have approached the problem to date — is to require the act upon which this category of manslaughter is based to be one which is unlawful otherwise than by reason of the fact that it infringes some statutory prohibition (by which term I include any regulatory prohibition). My conclusions, stated very shortly, are therefore: (1) An act which constitutes a breach of some statutory or regulatory prohibition does not, for that reason alone, constitute an unlawful act sufficient to found a charge of manslaughter within the category of an unlawful and dangerous act. (2) Such an act may, however, constitute such an unlawful act if it is unlawful in itself — that is, unlawful otherwise than by reason of the fact that it amounts to such a breach. Applying those conclusions to the facts of the present case, I can see no basis upon which it could be said that the appellant’s conduct was unlawful in itself — that is, unlawful otherwise than by reason of the fact that it amounted to a breach of the Motor Traffic Regulations. There is no suggestion, for example, that he

deliberately crossed the unbroken centre line in order to frighten the driver of the vehicle travelling in the opposite direction and thereby to force him to move over and permit the appellant to pass the vehicle he was attempting to pass. Accordingly, there was no evidence to [page 172] support the verdict of guilty on the charge of manslaughter. In those circumstances, there is no need to consider the validity of the directions which were in fact given. [Campbell J, and Newman J in a separate judgment, agreed with Hunt CJ at CL. Appeal allowed. Judgment of acquittal substituted.]

Pullman was considered in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 where a majority of the Court of Criminal Appeal approved the decision.

Burden on Crown to prove death caused by unlawful act 4.7 In Jones, Hunt CJ at CL considered the obligation on the Crown to prove that the act that caused the death was unlawful. R v Jones (1995) 38 NSWLR 652 NSW Court of Criminal Appeal [The appellant was charged, along with Shannon Foster, with murder. Manslaughter was left as an alternative verdict in the event that the jury was not satisfied beyond reasonable doubt that his act causing the death of the deceased was done with intent to cause grievous bodily harm. The act was stabbing the deceased three times. The appellant was convicted of manslaughter. The appellant contended that the jury was not directed that, in order to establish the appellant’s guilt of manslaughter, it had to be satisfied that his act was an unlawful and dangerous one.] Hunt CJ at CL: … The Crown case against the appellant was that he and Ms Foster, being dissatisfied with the quality of amphetamines which had previously been purchased from the

deceased, went together to the deceased’s flat at Condell Park. There were a number of other people inside the flat when they arrived. Some of them were smoking cannabis and most of them were affected in some way from the ingestion of either drugs or alcohol. The appellant, who was carrying a bag containing many coins (which had been supplied by Ms Foster), went with the deceased into the kitchen. There was an argument between them, and a scuffle followed. The appellant stabbed the deceased three times, two of them in the chest, and there were what was described as a number of defensive wounds suffered by the deceased as well. The struggle continued as the two men left the kitchen. The appellant left through the front door, followed up to the door by the deceased, who returned to the lounge area of the flat, collapsed and later died of one of the wounds to his chest. At some stage — precisely when is difficult to see, but it was certainly after the deceased had been wounded — the appellant said to the others in the flat words to the effect that, if anyone moved, he would kill them. … I turn now to the first ground of appeal, which asserts that “the trial judge failed to direct the jury adequately on manslaughter”. After identifying the three ingredients of the crime of murder in his summing-up, the judge dealt briefly with that of causation (which had been formally admitted), and then at some length with the issue of specific intention to the effect that the very nature of the acts done by the appellant led to the inference that he must have intended to inflict such injuries: Thomas v R (1960) 102 CLR 584 at 596–597; R v Stokes & Difford (1990) 51 A Crim R 25 at 30. (Such an approach necessarily assumes that the acts were done deliberately.) The judge [page 173] then turned briefly to self-defence, to which reference will be made later (the directions as to self-defence are the subject of the second ground of appeal), and said: if a person kills another in circumstances where the law does not recognise that he acted in such self-defence, then he is guilty of a crime, and the crime will be, according to the circumstances, murder or manslaughter.

What makes the difference between the two possibilities of murder or manslaughter is the intent with which he did the killing. If he did the killing with the intent of inflicting really serious bodily injury, then he is guilty of murder. If he did the killing without the intent to inflict really serious bodily harm, then, because he did not kill in self-defence as recognised by the law, he will be guilty of the crime of manslaughter. The only other reference to manslaughter was at the conclusion of the summing-up. Leaving aside for one moment the references to self-defence, the judge said: The third possibility is that … you are not prepared to find beyond reasonable doubt an intent to inflict really serious bodily injury. In that event your verdict will be not guilty of murder but guilty of manslaughter. That was not an adequate direction as to manslaughter. The jury were not directed, as they should have been, that the Crown must establish more than merely that it was the act of the accused which caused the death of the deceased — which is all that the jury were told here — and that the Crown must also establish that that act was an unlawful and dangerous one: unlawful if, for example, the act involves the deliberate application of force to another person without that person’s consent; and dangerous if it was such that a reasonable person in the position of the accused would have realised that, by that act, the deceased was being exposed to an appreciable (or significant) risk of serious injury: Wilson v R (1992) 174 CLR 313 at 335, 336. The appellant has also complained to this Court that the judge should have directed the jury as to the intention on his part which had to be established by the Crown. I do not accept that complaint. Once it has established that the act was a deliberate one (and then only if that issue is in dispute), the Crown does not have to establish any particular intention on the part of the accused. It is an objective test; the Crown does not have to establish that the accused knew that the act was unlawful or dangerous, and thus whether it was exposing the deceased to any particular risk: DPP v Newbury; DPP v Jones [1977] AC 500 at 506–507; Wilson v R (1992) 174 CLR 313 at 324, 335, 336.

The omission to direct the jury that the Crown had to establish that the act of the accused was an unlawful and dangerous one was nevertheless an error. … [His Honour then considered the second ground of appeal, which was that ‘the trial judge failed to direct the jury adequately, and erred in his directions, on self-defence’. His Honour found that this ground of appeal had been made out and continued:] Before leaving this matter, it is I feel appropriate to suggest that neither of the errors disclosed in the first and second grounds of appeal would have occurred if the jury had been directed separately in relation to murder (including the issue of self-defence as it is relevant to that crime) and then, in the event that the jury were not satisfied that the relevant specific intent had been established, in relation to manslaughter (including the issue of selfdefence as it is relevant to that crime). I have included in a schedule to this judgment a set of written directions which could be supplied to the jury, in accordance with s 55B of the Jury Act 1977, in which such separate directions are given. I do not say that it is erroneous not to deal with each of the two crimes separately, but I do say that the use of such a document (with amendments appropriate to the circumstances of the particular case, such as a separate question as to whether the act of the accused in stabbing the deceased was a deliberate one on his part) will greatly assist the jury to follow the sequence of the summing-up more easily. … [page 174]

SCHEDULE THE QUEEN v JOHN DOE DIRECTIONS Murder The Crown must establish: (1) that it was the act of the accused in stabbing the deceased which caused his death, and (2) that that act was done with an intention to kill the deceased or to inflict grievous bodily harm upon him, and

(3) that that act was not done in self-defence. Grievous bodily harm means really serious physical injury. An act is not done in self-defence when the Crown has established either (a) that the accused did not believe that it was necessary in selfdefence to stab the deceased with the intention of killing him or to inflict grievous bodily harm, or (b) that there were no reasonable grounds for forming any such belief. Alternative verdict — manslaughter The Crown must establish: (1) that it was the act of the accused in stabbing the deceased which caused his death, and (2) that that act was an unlawful and dangerous one, and (3) that that act was not done in self-defence. An act is unlawful if it involves a deliberate application of force to another person without that person’s consent. An act is dangerous if it is such that a reasonable person in the position of the accused would have realised that, by that act, the deceased was being exposed to an appreciable (or significant) risk of serious injury. An act is not done in self-defence when the Crown has established either (a) that the accused did not believe that it was necessary in selfdefence to stab the deceased, or (b) that there were no reasonable grounds for forming any such belief. NOTE: The belief of the accused, so far as self-defence is relevant to manslaughter, does not include any intention to kill or to inflict grievous bodily harm.

QUESTIONS When you have agreed upon your verdict, you will be asked the following questions:

(1) Have you agreed upon your verdict? (2) Do you find the accused guilty or not guilty of murder? GUILTY/NOT GUILTY (3) So says your foreman, so say you all? (4) (If ‘not guilty’) Do you find the accused guilty or not guilty of manslaughter? GUILTY/NOT GUILTY (5) So says your foreman, so say you all? [Smart J in a separate judgment, agreed with the orders and suggested directions proposed by Hunt CJ at CL. Levine J agreed with the orders and reasons of Hunt CJ at CL. Appeal allowed. Conviction quashed. New trial ordered.]

[page 175]

MANSLAUGHTER BY CRIMINAL NEGLIGENCE Manslaughter by negligent act 4.8 Where the accused causes the death of a person by an act or omission which, to a very high degree, falls short of the standard of care that a reasonable person would have exercised, and, as a result, there is such a high risk of death or grievous bodily harm that the negligent act or omission goes beyond a civil wrong and amounts to a crime, the accused can be guilty of manslaughter by gross criminal negligence (Nydam v R [1977] VR 430). Nydam was approved by the High Court in Wilson (see 4.2). Manslaughter by gross criminal negligence requires two elements: (a) a grossly negligent act or omission where the accused owes the victim a duty of care and (b) a high risk of death or grievous bodily harm resulting from that act or omission. It is the presence of

these two facts that takes the conduct out of the category of a civil tort and into the category of a serious criminal offence. 4.9 Because of the notorious reluctance of juries to convict of manslaughter in motor vehicle homicide cases, the legislatures in the various jurisdictions introduced the offence of dangerous driving causing death or grievous bodily harm; for example, in New South Wales, see Crimes Act s 52A and following. There is a discussion in the High Court of the relationship between negligent act manslaughter and death by dangerous driving, albeit in the context of Victorian legislation, in King v R (2012) 245 CLR 588; 288 ALR 565; [2012] HCA 24. Do v R [2001] NSWCCA 19 Court of Criminal Appeal [The accused and two others spent an evening at the house of Mr Le, where a large amount of alcohol, Rohypnol and heroin was consumed. During the course of the evening a shotgun was produced and they ‘mucked around’ with it. In the morning further gun play took place and the gun discharged, killing Mr Le. The appellant was convicted of manslaughter on the basis of criminal negligence. He appealed against his conviction.] Giles JA: … 17. It was not in dispute in the conduct of the trial that Mr Le had died and that his death was caused by the act of the appellant. The question was one of criminal negligence. In Nydam v R [1977] VR 430 at 445 it was said that: 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. 18. The reference to a high risk that death or grievous bodily harm would follow was taken up in the High Court in Wilson v R (1992) 174 CLR 313 at 333. The directions to the jury were in accordance with this test, and no objection was taken at the trial or on appeal to those or any other directions. [page 176] … 25. Hulme J: The deliberate pointing of a loaded and cocked shotgun at someone and the pulling of the trigger is as gross an example of criminal negligence as I can imagine. Had the jury not reached the conclusion that they did, I would have regarded their decision as perverse. 26. When those actions are performed by someone who has spent the night participating in alcohol, smoking heroin and eating Rohypnol tablets, all of which activities are calculated not to improve the fine senses, the matter becomes worse. 27. I agree with the orders proposed by the presiding Judge and with his reasons. [James J also agreed with the decision of Giles JA. Appeal dismissed.]

Manslaughter and malice 4.10 Section 18(2)(a) of the Crimes Act, after the definition of murder, states: ‘No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section’. 4.11 In Lavender it was argued that the reference to ‘this section’ included the statutory definition of manslaughter in s 18(1)(b) so that an act that was not malicious would be neither murder nor manslaughter. This argument was rejected by the High Court, which held that malice was not an element of the offence of manslaughter, so that an act

done without malice may not be murder (as defined by s 18(1)(a)) but could still be manslaughter. R v Lavender (2005) 218 ALR 521; [2005] HCA 37 High Court of Australia [The following statement of facts and procedural background is taken from the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ: The respondent was employed as the operator of a front end loader at a sand mine at Redhead near Newcastle. The loader weighed 25 tons, and was much higher and longer than a car. It only travelled at about four kilometres per hour. The driver’s vision was obscured by a bucket at the front end. The function of the machine was to move processed and unprocessed sand within the area of the mine. The mine site was unfenced, and was in an area of sand dunes covered with vegetation. In places the vegetation was thick, and consisted of bushes and trees up to four metres high. On 2 October 2001, the victim, and three friends aged respectively 11, 14 and 15, went to the mine site to play in the sand. They should not have been there. The respondent decided to chase them away. He drove the loader towards the boys. They ran into an area covered by thick vegetation. The respondent pursued them, driving the loader through the scrub. It was difficult for him to see where he was going. He ran over the victim, Michael Milne, causing injuries resulting in death. The respondent was sentenced to imprisonment for four years with a non-parole period of 18 months. He appealed against his conviction. The Court of Criminal Appeal of New South Wales (Hulme and Adams JJ, Giles JA dissenting) allowed the respondent’s appeal against a conviction for manslaughter by criminal negligence. The prosecution appealed.] [page 177] 1. Gleeson CJ, McHugh, Gummow and Hayne JJ: [footnotes omitted] … Section 18 of the Crimes Act 1900 (NSW) (‘the Crimes Act’) defines the crime of murder, and goes on to provide that every other punishable homicide shall be taken to be manslaughter. The principal issue in this appeal concerns the elements of that form of punishable homicide commonly described as involuntary manslaughter.

2. As this Court held in Wilson v The Queen (1992) 174 CLR 313 at 333, there are two categories of involuntary manslaughter at common law: manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury; and manslaughter by criminal negligence. Involuntary manslaughter is so called because, unlike murder, it involves neither intent to cause death or grievous bodily harm to the victim, nor the other mental elements necessary for murder. In cases of voluntary manslaughter, on the other hand, the elements of murder are present, but the culpability of the offender’s conduct is reduced by reason of provocation, or substantial impairment by abnormality of mind. The Crimes Act makes specific provision with respect to provocation (s 23) and impairment (s 23A), but it makes no specific provision concerning the elements of involuntary manslaughter. Consistently with the common law, the Crimes Act treats manslaughter as a residual category of punishable homicide. It states the elements of murder, and then provides that all other forms of punishable homicide are manslaughter. It is necessary to look to the common law in order to understand what is meant by the reference in s 18 to “other punishable homicide”. The Crimes Act is not a Code. Although in some respects it makes detailed provision for, and in that sense codifies, aspects of the criminal law, it does not exclude the common law. 3. In the present case, the Court of Criminal Appeal of New South Wales (Hulme and Adams JJ, Giles JA dissenting) allowed the respondent’s appeal against a conviction for manslaughter by criminal negligence on the basis that, at trial, counsel for both the prosecution and the defence, and the trial judge, fundamentally misconceived the nature of the offence in question by failing to advert to what was said to be an essential element of the offence, that is to say, malice as defined in s 5 of the Crimes Act. The prosecution appeals to this Court, contending that malice is not an element of involuntary manslaughter, either at common law or under the Crimes Act, and that the decision of the Court of Criminal Appeal is contrary to principle, to the language of the statute, particularly when understood in context, and to more than a century of practice in New South Wales … The directions to the jury …

13. The trial judge told the jury that, relevantly to this case, there were five elements in the offence of involuntary manslaughter. The first was that the respondent had a duty of care to the victim. The second was that he was in breach of that duty. The third was that his actions were deliberate in the sense that he was in control of the vehicle. The fourth was that the actions of the respondent in driving the vehicle caused the death of the victim. The trial judge explained those four elements, but that explanation is not presently relevant. It is what he said about the fifth element that is now important. 14. The trial judge said: And finally, the Crown has to prove that that action of driving into the bush in the circumstances that the Crown says obtained fell so far short of the standard of care which a reasonable person would have exercised in the circumstances and involved such a high risk that death or really serious bodily harm would follow, that the actions merit criminal punishment. [Their Honours then set out the trial judge’s direction on the fifth element in full, and continued:] [page 178] 17. The trial judge’s directions on what he called the fifth element of the offence were based on the judgment of the Full Court of the Supreme Court of Victoria in Nydam v The Queen, a judgment which was approved by four members of this Court in Wilson v The Queen. The directions made no reference to malice, or to the definition of “maliciously” in s 5 of the Crimes Act. All three members of the Court of Criminal Appeal decided that these were matters that were relevant to the charge against the respondent, although each was of a different opinion as to how they were relevant. Giles JA, who was in favour of dismissing the appeal to the Court of Criminal Appeal, considered that what might be described as the Nydam test of fault in the offence of involuntary manslaughter by criminal negligence subsumed any issues that would otherwise have been raised by a requirement for the prosecution to establish malicious conduct within the meaning of s 5 of the Crimes Act. He accepted that, on the true construction of

the Crimes Act, s 5 was relevant to the offence, but he considered that it added nothing of present significance to the Nydam test. Hulme J and Adams J also accepted that s 5 was relevant, but they attached to it significantly different meanings in its application to a case such as the present … The Crimes Act 20. The Crimes Act was enacted in 1900 as an Act to consolidate the statutes relating to criminal law. It was not a criminal code. In important respects it modified or added to the common law, but it assumed the continuing operation of the common law as a source of legal obligations and liabilities. It has been amended many times since 1900, but the provisions of relevance to this case are in substantially the same form as they took in 1900. Section 18, as Windeyer J pointed out in Ryan v The Queen, was “a re-enactment of a provision of the Criminal Law Amendment Act of 1883 (NSW)”. So also was s 5. It will be necessary to make detailed reference to the 1883 legislation in due course. 21. Part 3 of the Crimes Act is headed “Offences against the person”. Division 1 of that Part deals with homicide. In its present form, it comprises ss 17A to 24. Sections 17A, 20, 21, 22 and 22A are irrelevant. Section 18 is described in its heading as defining murder and manslaughter. As will appear when the section is set out in full, that description is misleading. Section 18 defines murder, but it merely provides that punishable homicide which is not within the definition of murder shall be taken to be manslaughter. It is not possible, either from a reading of s 18, or from a reading of the entire Act, to identify all the forms of punishable homicide apart from murder. The elements of involuntary manslaughter are prescribed, not by the Crimes Act, but by the common law. Sections 23 and 23A deal with voluntary manslaughter. Section 19A provides the punishment for murder. Now, a person who is convicted of murder is liable to imprisonment for life. When the Crimes Act was enacted in 1900, a person who was convicted of murder was subject to the death penalty (s 19). As will appear, that was of major importance in the parliamentary history of those provisions of the Criminal Law Amendment Act of 1883 (NSW) (“the 1883 Act”) concerning homicide which were re-enacted in 1900. Section 24 now provides that the maximum penalty for manslaughter is imprisonment for 25

years. It further provides that if, in any case, the sentencing judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal. When s 24 was originally enacted, in 1900, the maximum penalty for manslaughter was imprisonment for life, and the minimum term was imprisonment for three years, but that was subject to the same proviso. Section 24 was also a re-enactment of a provision (s 13) of the 1883 Act. 22. The circumstance that at all material times the legislation as to homicide has expressly recognised that, in a case of manslaughter, a nominal punishment only may be sufficient, is consistent with the common law position that malice is not a necessary element of [page 179] manslaughter. For more than a hundred years, judges in all Australian jurisdictions, and in England, have observed that, of all serious offences, manslaughter attracts the widest range of possible sentences. The culpability of a person convicted of manslaughter may fall just short of that of a person guilty of murder or, as s 24 recognises, it may be such that a nominal penalty would suffice. … 24. Central to the present case is a question of the meaning of s 18(2)(a). At common law, the presence or absence of malice was the point of difference between the two forms of unlawful homicide known as murder and manslaughter. It thus would be an error to approach the construction of s 18, and, in particular, the relationship between sub-s (1) and sub-s (2)(a), by stressing the general significance for the common law of the requirement of mens rea. It would also be an error to equate mens rea in all forms of unlawful homicide with malice. 25. In Sir James Fitzjames Stephen’s A Digest of the Criminal Law, published in 1877, murder was defined as unlawful homicide with malice aforethought. Manslaughter was defined as unlawful homicide without malice aforethought. Writing extra-judicially in 1935, Sir Owen Dixon said that, from the beginning of the sixteenth century, the chief concern of the law of homicide has been malice aforethought, and that it is because homicide is a

single felony that, upon an indictment of murder, a verdict of manslaughter may be found. The complexity of the common law as to malice for the purposes of the crime of murder, and the drawing of elaborate distinctions between actual, implied or constructive malice, was a source of much concern in the second half of the nineteenth century. The existence of capital punishment for murder heightened that concern. Sir James Fitzjames Stephen summarised the state of the common law in 1877 by saying that malice aforethought covered any one or more of the following states of mind: intent to kill or cause grievous bodily harm; knowledge that the act causing death will probably cause death or grievous bodily harm although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused; an intent to commit any felony whatever; or an intent to oppose by force an officer executing a duty of arrest or custody. 26. In Parker v The Queen, speaking of the legislation that was reenacted in s 18, Windeyer J said that “it should be remembered that, in relation to murder and manslaughter, the Act of 1883 was intended to be a restatement of common law doctrine, but shorn of some of the extravagances of malice aforethought and constructive malice”. Section 18(1) was a statutory re-formulation of the element of malice in the crime of murder. Subject to that, the section followed the common law. Murder is punishable homicide which involves one of the elements stated in s 18(1)(a). Every other punishable homicide is manslaughter. 27. What, then, is to be made of s 18(2)(a) and its relationship to s 18(1)? Is the result, contrary to what was said by Windeyer J, a radical change in the common law? Did it make malice an element of manslaughter? If the answer to that question is in the affirmative, it must apply to both forms of involuntary manslaughter. Furthermore, logically, the malice involved in involuntary manslaughter must be different from the states of mind described in s 18(1)(a), for otherwise the crime would be murder. In the present case, if the respondent’s case had fallen within s 18(1)(a) because he acted with reckless indifference to human life, he would have been guilty of murder, not manslaughter. 28. Section 18(2)(a) commences with a reference to acts or omissions. That fits in with s 18(1)(a), which deals with acts or omissions involving a certain state of mind. Are the acts or

omissions to which it refers acts or omissions of the kind that would or might [page 180] otherwise fall within the definition of murder, or do they include all acts or omissions which might constitute punishable homicide? Does “within this section” refer to the work done by the section in defining murder, or does it cover both forms of punishable homicide mentioned in the section, that is, murder and manslaughter? 29. The question of construction for this appeal turns upon the concluding words in s 18(2)(a) “shall be within this section”. What were not “within” the section are acts or omissions which lack the quality or character of malice or lawful cause or excuse. The acts or omissions which otherwise would be “within” s 18, because they are in direct terms so identified, are those found in s 18(1)(a). That paragraph tells the reader when “[m]urder shall be taken to have been committed”. The acts or omissions identified in s 18(1) (a) remain within the section if they further satisfy s 18(2)(a). That, as a matter of textual relationship and verbal congruity, is the linkage between s 18(2)(a) and the remainder of s 18. 30. Section 18 defines murder. It does not define manslaughter, except by providing that it is punishable homicide that is not murder. The reader must go to the common law of homicide in order to find out what is punishable. The section refers to manslaughter, but only in excluding from the category of murder any form of punishable homicide which does not satisfy s 18(1)(a). The section contains a positive and a negative definition of murder. The effect of s 18(1)(a) is that certain forms of punishable homicide, which at common law would have been described as unlawful homicide with malice aforethought, are taken to be murder, and all other forms of punishable homicide are not murder but manslaughter. 31. The awkward structure of s 18 has been noticed in the past, although New South Wales courts, in practice, have not treated s 18 as materially altering the law of involuntary manslaughter. There are many provisions in other parts of the Crimes Act which create offences of which malice is an element, just as there were many other such provisions in the 1883 Act. In Pt 1 of the Crimes

Act there are a number of interpretation provisions, including s 5 which defines the word “maliciously”. That section is as follows: Maliciously: Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime. The concluding words of s 5 involve, in a case such as the present, a problem of circularity. The question to be resolved is whether malice is by law an ingredient in the crime of involuntary manslaughter. … Context 33. This case provides an example of the importance of context in resolving questions of statutory construction. 34. The task is to construe s 18 of the Crimes Act of 1900. The immediate context is Div 1 of Pt 3, dealing with homicide, one of the offences against the person dealt with by the Act. The structure of that Division has already been described. In particular, punishable homicide is classified as either murder or manslaughter. In 1900, the penalty for murder was death (s 19). The maximum penalty for manslaughter was penal servitude for life, but specific provision was made for cases of manslaughter where a nominal punishment would be sufficient (s 24). The Division contained no definition of manslaughter beyond providing that it was punishable homicide that did not amount to murder. It was necessary to look to the common law in order to determine what constituted punishable homicide other than murder. … [page 181] 38. At common law there are two kinds of involuntary manslaughter. The first involves the causing of death by an unlawful and dangerous act carrying with it an appreciable risk of serious injury. The second involves manslaughter by criminal

negligence. At common law, murder was the form of unlawful homicide that was accompanied by malice aforethought. Manslaughter was unlawful homicide not involving malice aforethought. This view of the categories of homicide was reflected precisely in the structure of s 18(1) … 54. On the true construction of s 18 of the Crimes Act, understood in context, the section did not alter the common law of unlawful homicide by involuntary manslaughter. The words “within this section” in s 18(2)(a), … refer to the work done by the section in defining the crime of murder. … 68. Kirby J: … 133. Although … a very persuasive textual argument has been advanced by the respondent, within the language of s 18(2)(a) of the Crimes Act, for importing into the definition of manslaughter, as well as of murder, a universal element of malice, a closer examination of the text of that Act and of the other arguments advanced by the appellant results in a conclusion adverse to the interpretation accepted below. 134. That interpretation is fundamentally inconsistent with the common law of manslaughter as it has developed over many centuries, which s 18(1)(b) of the Crimes Act ostensibly contemplated would continue to operate in New South Wales. It is inconsistent with the reasons of principle and policy that sustain the maintenance of a crime of manslaughter by negligent act as an offence objectively, and not subjectively, determined. It is inconsistent with the considerations of legal policy that support the continuance of such a crime where the death of a person has ensued. It is incompatible with numerous law reform and other reports that have recommended the continued differentiation between murder and manslaughter. In such circumstances, only the clearest possible language in the statutory text would justify a significant change in the law of manslaughter, and the previous understandings of that law. 135. Whilst there is an undeniable measure of difficulty in explaining precisely what was the purpose of the first sentence of s 18(2)(a) of the Crimes Act, the paragraph can be adequately confined to application to the “acts and omissions” expressly referred to in s 18(1)(a), dealing exclusively with the definition of

murder. So confined, the first sentence of s 18(2)(a) has no application to the statutory definition of manslaughter in s 18(1)(b). That definition remains to be provided by the common law. At least, this is so until clear legislation of the Parliament of New South Wales introduces altered criteria. 136. Approached in this way, the previous understandings of the common law of manslaughter expressed by the Full Court of the Supreme Court of Victoria in Nydam v The Queen (approved by this Court in Wilson v The Queen) applied to the crime of manslaughter charged in the indictment presented against the respondent in the present case. The trial judge was correct to give effect to that exposition in his charge to the jury. The Court of Criminal Appeal erred in disturbing the conviction that followed the jury’s guilty verdict based upon accurate legal directions about the meaning of manslaughter in the circumstances. … [Callinan and Heydon JJ, in separate judgments, agreed in the orders proposed by Gleeson CJ, McHugh, Gummow and Hayne JJ. Appeal allowed.]

[page 182] 4.12 After the decision in Lavender, the Crimes Amendment Act 2007 (NSW) (which came into force on 15 February 2008) repealed s 5 of the Crimes Act. The explanatory note to the amending Act states: This section (which defines “malicious” for the purposes of offences under the Act) is being repealed as a result of the replacement of that term in offences under the Act with the modern fault element of “intention” or “recklessness”.

The Act identified a number of sections and provided that the term ‘maliciously’ was to be removed and replaced with the words ‘intentionally’ or ‘recklessly’. The repeal of s 5 has had no effect upon the construction of the sections considered in Lavender. Therefore, the law as stated by the High Court in that case continues to apply — so that malice is not an ingredient of involuntary manslaughter and the common law continues to define the range of

conduct falling within the two types of this category of manslaughter. 4.13 As to ‘malicious’ and the repeal of s 5 in respect to murder, see R v IL [2016] NSWCCA 51 extracted at 2.33.

Manslaughter by negligent omission 4.14 Section 18 of the Crimes Act makes it clear that murder can arise whenever there is an act or omission that causes the death charged. The same is true for manslaughter. The leading case dealing with culpability for omissions is the decision of the New South Wales Court of Criminal Appeal in Taktak (also considered at 2.9 in relation to murder by omission). There are two issues: 1.

When is the situation one where criminal responsibility for omission can be imposed, that is, where there is a duty to act?; and

2.

Although in breach of a duty of care, the accused may not have been shown to have intended to kill or inflict grievous bodily harm on the victim. In such circumstances, what must be proved to convict the accused of manslaughter? R v Taktak (1988) 14 NSWLR 226 NSW Court of Criminal Appeal

[The appellant had been contacted by a Mr Rabih and asked to arrange to bring two prostitutes to a party. He arranged with the deceased and her friend that they would go to the party and he took them to Rabih’s house. Rabih then took the women to a party in central Sydney. The appellant was subsequently contacted by telephone and asked to come to Liverpool Street and collect one of the women who was suffering the effects of a drug overdose. The appellant found her and arranged a taxi to take her back to Rabih’s shop. She was at this time unconscious. The appellant performed ineffectual first aid, which involved putting her on her side and

washing her face. The appellant claimed that he did not realise her life was at risk at any stage. He thought she would recover in due course. When Rabih arrived it was discovered that she was dead. The appellant was convicted of manslaughter and appealed to the Court of Criminal Appeal.] [page 183] Yeldham J: … In Stephen, History of the Criminal Law of England (1883), vol III at 10–11, it is said: … A number of people who stand round a shallow pond in which a child is drowning, and let it drown without taking the trouble to ascertain the depth of the pond, are no doubt, shameful cowards, but they can hardly be said to have killed the child. Whether the word ‘killing’ is applied or not to homicides by omission is to a great extent a question of words. For legal purposes a perfectly distinct line on the subject is drawn. By the law of this country killing by omission is in no case criminal, unless the thing omitted is one which it is a legal duty to do. Hence, in order to ascertain what kinds of killing by omission are criminal, it is necessary, in the first place, to ascertain the duties which tend to the preservation of life. They are as follows: A duty in certain cases to provide the necessaries of life; a duty to do dangerous acts in a careful manner, and to employ reasonable knowledge, skill, care, and caution therein; a duty to take proper precautions in dealing with dangerous things; and a duty to do any act undertaken to be done, by contract or otherwise, the omission of which would be dangerous to life. Illustrations of these duties are the duty of parents or guardians, and in some cases the duty of masters, to provide food, warmth, clothing, etc, for children; the duty of a surgeon to employ reasonable skill and care in performing an operation; the duty of the driver of a carriage to drive carefully; the duty of a person employed in a mine to keep the doors regulating the ventilation open or shut at proper times. To cause death by the omission of any such duty is homicide, but there is a distinction of a somewhat indefinite kind as to the case in

which it is and is not unlawful in the sense of being criminal. In order that homicide by omission may be criminal, the omission must amount to what is sometimes called gross, and sometimes culpable negligence. There must be more, but no one can say how much more, carelessness than is required in order to create a civil liability. For instance, many railway accidents are caused by a momentary forgetfulness or want of presence of mind, which are sufficient to involve the railway in civil liability, but are not sufficient to make the railway servant guilty of manslaughter if death is caused. No rule exists in such cases. It is a matter of degree determined by the view the jury happen to take in each particular case. In Archbold, Criminal Pleading Evidence and Practice, 42nd ed (1985), under the heading ‘Gross negligence as recklessness’, it is said (par 20–59 at 1637): If a grown-up person chooses to undertake the charge of a human creature helpless either from infancy, simplicity, lunacy or other infirmity, he is bound to execute that charge without gross neglect; and if he lets the person whose charge he has undertaken die by gross neglect, he is guilty of manslaughter. The neglect has been described as being such as to satisfy a jury that the defendant was reckless whether such person died or not … If a person has the custody of another who is helpless and leaves that other with insufficient food or medical attendance, and so causes his death, he is criminally responsible … In Gillies, Criminal Law (1985) at 32 it is said that at common law a person does not in general incur criminal liability for a failure to intervene and prevent, or attempt to prevent, the occurrence of harm. In this context the person who sees a building on fire and fails to call the fire brigade, or a person who sees a strange child drowning in a shallow pond and fails to rescue the child, does not incur criminal liability. It is stated as a general proposition that “at common law there is no liability for inactivity”, and a number of cases are cited in a footnote in support of this general proposition. Exceptions to the rule are then dealt with, the first concerning situations where a person is under a common law or statutory duty

to act, and the second concerning offences which are, expressly, ones of omission. In the same work (at 510–511) the author says: C. Manslaughter by omission In general D does not incur criminal liability for an omission to act, even where D is in a position to prevent the occurrence of harm. Exceptionally, however, D may do so. D will, for example, do so where a statutory offence of omitting to act provides for such a basis of liability. D may also incur liability for an offence which is defined in terms of the doing of a positive act, by virtue of an omission to act, where the common law or a statute expressly or by implication imposed upon D a duty to act. [page 184] Thus, although manslaughter is usually defined in terms of the doing of an act causing death, and indeed, is usually committed by a person so acting, it can be committed by an omission to act. What must be established is that D was under a legally recognised duty, arising from the common law or from statute, to act in a certain way but omitted to do so, that as a result of this omission to act death resulted, and that by D’s omission to act D exhibited the culpability associated with one of the relevant heads of manslaughter. Thus, if negligent manslaughter is relied upon, as it usually is in the context of manslaughter by omission, it must be shown that D acted with any element of mens rea required by this type of manslaughter; or, if it does not require mens rea, that D’s omission to act exhibited the degree of negligence required by the doctrine of negligent manslaughter. In short, D’s behaviour will be exactly the same as manslaughter by commission, except that D’s conduct will consist of an omission. The spectrum of legally recognised duties grounding liability for an omission is an open-ended one, given that such duties can arise from statute as well as the common law. Standard common law duties grounding liability for manslaughter by omission include that which is vested in

the parent of a young and dependent child, or one in loco parentis, and that which is vested in the person who voluntarily assumes responsibility for the care of an adult who is physically or mentally incapable of caring for himself or herself. Legally recognised duties of care can also arise in other situations. Typically, they arise by virtue of D’s voluntary employment in an occupation the performance of which bears upon the public safety. Thus, the railway gatekeeper is under a duty to shut the gate before a train comes and if owing to neglect the gate-keeper does not do so, with the result that a road-user is run down by a train and killed, he or she is prima facie guilty of manslaughter. Likewise, an old English case upheld the conviction for manslaughter of a man who had, while employed to manage an engine used to haul miners up from a coal-mine, left his post leaving it in the charge of an incompetent person. Shortly after he did this, and as a result of the substitute’s lack of skill, a miner had been thrown down the shaft and killed. It was explained that “a man may, by a neglect of duty, render himself liable to be convicted of manslaughter, or even of murder [that is, where he possesses the appropriate mens rea]”. Manslaughter by omission cases are to be distinguished from the situation where D’s neglect, resulting in death, amounts in itself to an offence of omission, such as a statutory offence of wilfully neglecting a child. In this situation it may be argued that D causes death by the commission of an offence the doing of which is not only unlawful but as well dangerous, in which event D may be convicted of the (positive) commission of constructive manslaughter. See also Howard on Criminal Law, 4th ed (1982) at 105–106; and Russell on Crime, 11th ed (1958) vol 1 at 454ff. In Russell, after dealing with the duty of a parent to maintain children and to provide such medical aid as may be necessary, the author, under the heading “Duty of Persons who have Undertaken Responsibility”, deals with the responsibility of a master for

apprentices and servants, responsibilities arising from employment, and “Responsibility for the helpless or infirm”. Under the latter heading it is said: “A person is criminally responsible if, having undertaken to provide necessaries for another who is so aged and infirm that he is incapable of doing so for himself, he neglects such undertaking, with the result that death ensues; or if having confined another he neglects to supply him with necessaries, whereby the other dies.” See also Criminal Law in New South Wales, by Watson and Purnell 2nd ed (1981) vol 1, par 107, at 62/1. In R v Lowe (1850) 4 Cox CC 449; 3 Car & Kir 123; 175 ER 489, it was held by Lord Campbell CJ that an act of omission, as well as of commission, may be so criminal as to be the subject of an indictment for manslaughter. That was the case of a man, appointed to superintend a steam engine employed in a colliery for the purpose of raising miners from the pits, who left it in charge of an incompetent person in consequence of which incompetence death ensued. A number of the earlier cases were concerned with what was known as constructive manslaughter, which was a counterpart to the felony-murder rule. One such case was [page 185] R v Senior [1899] 1 QB 283, where Wills J had directed the jury that the father of an infant child could be convicted of manslaughter if he had, within the meaning of the Prevention of Cruelty to Children Act 1894 (UK), wilfully neglected his child in a manner likely to cause injury to his health, and had thereby caused or accelerated death. That direction was upheld on appeal. However in R v Lowe [1973] QB 702 the Court of Appeal, in a case involving similar considerations, held that the decision in R v Senior could no longer be regarded as good law in the light of the decision of the House of Lords in Andrews v Director of Public Prosecutions [1937] AC 576 which, though concerned with manslaughter as a result of neglect in the driving of a motor vehicle, nonetheless applied to every case of manslaughter by neglect. In R v Lowe, Phillimore LJ, giving the judgment of the Court, said (at 709): Now in the present case the jury negatived recklessness.

How then can mere neglect, albeit wilful, amount to manslaughter? This court feels that there is something inherently unattractive in a theory of constructive manslaughter. It seems strange that an omission which is wilful solely in the sense that it is not inadvertent and the consequences of which are not in fact foreseen by the person who is neglectful should, if death results, automatically give rise to an indeterminate sentence instead of the maximum two years which would otherwise be the limit imposed. We think that there is a clear distinction between an act of omission and an act of commission likely to cause harm. Whatever may be the position with regard to the latter it does not follow that the same is true of the former. In other words, if I strike a child in a manner likely to cause harm it is right that, if the child dies, I may be charged with manslaughter. If, however, I omit to do something with the result that it suffers injury to health which results in its death, we think that a charge of manslaughter should not be an inevitable consequence, even if the omission is deliberate. In R v Stone & Dobinson [1977] QB 354, a case to which it will be necessary to return, the Court of Appeal rejected a submission that in Lowe the Court had said that there must be an appreciation by the defendant of the risk of death or a serious injury before a conviction for manslaughter involving the death of a child can result, and observed (at 363) that in Lowe’s case: “The Court is saying simply that there must be proved the necessary high degree of negligence, and a direction which fails to emphasise that requirement will be defective.” See also, as to R v Senior, the decision of the House of Lords in R v Sheppard [1981] AC 394 which, however, was not concerned with manslaughter, but simply with the misdemeanour of neglecting to provide adequate medical aid to a child contrary to the provisions of the Children and Young Persons Act 1933 (UK). The present case is in no way concerned with constructive manslaughter, such as it may presently exist following the decision in Andrews. It is concerned with an allegation of manslaughter by

neglect, a type of involuntary manslaughter, in which the Crown must prove beyond reasonable doubt that the circumstances were such that the accused was under a duty to care for the deceased, which duty, as a result either of his gross negligence or perhaps of his recklessness, he failed to perform, with the consequence that death was caused or accelerated. The first question is whether, in the circumstances of the present case, a jury would be entitled to conclude upon the evidence that the appellant was under a legally recognised duty to the deceased to seek medical aid for her. As long ago as 1851, in R v Pocock (1851) 5 Cox CC 172, Erle J said (at 173): In all the cases of indictment for manslaughter, where the death has been occasioned by omission to discharge a duty, it will be found that the duty was one connected with life, so that the ordinary consequence of neglecting it would be death. Such are the cases of machinery at mines, of engine-drivers, or the omission to supply food to helpless infants. The same learned judge, when Chief Justice, presided over the Court of Criminal Appeal in R v Charlotte Smith (1865) 10 Cox CC 82; Le & Ca 607; 169 ER 1533, where it [page 186] was held that a master is not criminally liable for the death of a servant not of tender years, although the death was caused by the insufficiency or badness of the food and lodging provided by him for her, unless the servant was of such weak intellect as to be helpless and unable to take care of herself, or was under such restraint as to be unable to withdraw herself from her master’s dominion. Most of the cases of an omission to perform a legally recognised duty are concerned with the relationship of parent (or person in loco parentis) and child. One of the earliest is R v Shepherd (1862) Le & Ca 147; 169 ER 1340. There the prisoner had failed to procure the aid of a midwife for her daughter, who was eighteen years of age, during childbirth. A difficulty occurred and death ensued. The prisoner’s conviction for manslaughter was quashed on the ground that there was no legal duty binding her to procure the aid of a midwife. Erle CJ said (at 155–156; 1343):

… The cases where the person, whose death is caused, has been brought into circumstances where he cannot help himself, as by imprisonment, by the act of the party charged are clearly distinguishable. There the persons imprisoned are helpless, and their custodians, by the fact of their being so, have charged themselves with the support of their prisoners. The case of parent and child of tender years is also distinguishable, as are the other cases where such a duty is imposed by law or contract, as in the case of master and apprentice. Here the girl was beyond the age of childhood, and was entirely emancipated. Then, being in the prisoner’s house, she is brought to bed, and the mother omits to procure her a midwife. I cannot find any authority for saying that that was such a breach of duty as renders her, in the event which ensued, liable to the consequences of manslaughter. The cases which involve neglect of young children concern a duty as to which, one would have thought, there could be little doubt: eg, R v Conde (1867) 10 Cox CC 547; R v Nicholls (1874) 13 Cox CC 75 (a case of alleged manslaughter by starvation of an infant by her grandmother); R v Senior, R v Gibbins (1918) 13 Cr App R 134 (a case of murder of a child); R v Russell [1933] VLR 59 (prisoner standing by whilst wife and young children drown); R v Watson (1959) 43 Cr App R 111; R v Clarke [1959] VR 645 (persons in loco parentis to young child) and Jones v United States of America 308 F 2d 307 (1962); R v Lowe [(1973) 1 QB 702]. A number of other cases concern situations where a person has voluntarily assumed the care of another, sometimes (but not always) a relative who is elderly or ill. One of the earliest examples is R v Marriott 8 Car & P 425; 173 ER 559, a case decided in 1838. There the prisoner, who was convicted of manslaughter, had been indicted for the murder of an aged and infirm woman by confining her against her will and not providing her with food, clothing, medicine and the like in breach of an alleged duty. Patteson J in summing-up said, inter alia (at 433, 563): The cases which have happened of this description have been generally cases of children and servants, where the duty has been apparent. This is not such a case; but it will

be for you to say, whether from the way in which the prisoner treated her, he had not by way of contract, in some way or other, taken upon him the performance of that duty which she, from age and infirmity, was incapable of doing. Other examples are to be found in R v Instan [1893] 1 QB 450 (as to which see article ‘Manslaughter by Omission’ in Current Legal Problems (1980) vol 33, 255 at 256–257); R v Kelly [1923] VLR 704 (and on appeal Kelly v R (1923) 32 CLR 509 especially at 516); R v Stone & Dobinson; R v Cowan [1955] VLR 18 (where the question left by Lowe J to the jury was whether a man owed to his de facto wife a legal and not a moral duty to obtain proper medical attention for her, either from an implied undertaking or from his relationship to her); and R v Joukhadar (Court of Criminal Appeal, 13 June 1975, unreported). The latter was a case of an alleged omission by the appellant to save his wife from drowning. He was convicted of murder and this was upheld on appeal. The Court observed that there was no criminal responsibility for the harmful consequences of an [page 187] omission in the absence of a legal duty to act. Examples were given of the duty imposed on citizens to aid and assist a police officer in the execution of his duty to preserve the peace, when reasonably called upon and reasonably able to do so; the duty upon the captain of a British ship in the case of a passenger falling overboard; and a duty which might arise as an incident of some special relationship, examples of which were given. Some of the cases to which reference has already been made were mentioned, and the Court said: The legal duty exists in our opinion only where the omission is plainly inexcusable and where it amounts to something in the nature of wicked or gross negligence and which for that reason should be treated and punishable as a crime, such as where the victim of the omission is helpless. It would seem, however, with great respect, that the Court there was concerned rather with breach than with the circumstances in

which the duty does exist. One of the cases referred to was People v Beardsley 113 NW 1 128 (1907), a decision of five judges of the Supreme Court of Michigan. In R v Joukhadar the Court said of this case that it “contains a digest of a number of those English and American authorities on the subject”. People v Beardsley, to which we were referred by counsel, although decided as long ago as 1907, is one which affords considerable assistance in the present matter. The judgment of the Court was given by McAlvay CJ. The facts were somewhat complex, but may be shortly summarised by saying that the respondent was convicted of the manslaughter of his paramour who, for a time, and during the absence of the respondent’s wife, lived in his house. At the time of her death both had been drinking, and the deceased had ingested some tablets containing morphine, a fact of which the respondent was ignorant. Subsequently she became in a stupor and did not rouse when spoken to. Some time later she died. The Chief Justice (at 1129– 1130) said: The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter … This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death … Although the literature upon the subject is quite meager and the cases few, nevertheless the authorities are in harmony as to the relationship which must exist between the parties to create the duty, the omission of which establishes legal responsibility. One authority has briefly and correctly stated the rule, which the prosecution claims should be applied to the case at bar, as follows: “If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, master to seaman etc, knowing such person to be in peril, wilfully and negligently fails to make such reasonable and proper efforts to rescue him as he might have done, without jeopardizing his own life, or the lives

of others, he is guilty of manslaughter at least, if by reason of his omission of duty the respondent person dies. So one who from domestic relationship, public duty, voluntary choice or otherwise has the custody and care of a human being, helpless either from imprisonment, infancy, sickness, age, imbecility, or other incapacity of mind or body is bound to execute the charge with proper diligence, and will be held guilty of manslaughter if by culpable negligence he lets the helpless creature die.” The Court then proceeded to consider a number of cases, excluding those where statutory provisions were involved. One of the American cases referred to concerned the conviction of a husband and wife for manslaughter in circumstances where the child of a maidservant was born under their roof, and they were charged with neglecting to furnish it with proper care. There the Court had said: To create a criminal liability for neglect by nonfeasance, the neglect must also be of a personal legal duty, the natural and ordinary consequence and neglect of which would be dangerous to life. [page 188] The appellate court reversed the case for error in the summing-up, and in the course of doing so ‘expressly stated that it did not concede that respondents were under a legal duty to care for this child, because it was permitted to be born under their roof, and declined to pass upon that question’. Reference was made also to a case tried by Mr Justice Field of the United States Supreme Court, where the master of a vessel was charged with murder in omitting any effort to rescue a sailor who had fallen overboard. In the course of charging the jury Field J said (inter alia): … In the first place, the duty omitted must be a plain duty … In the second place, it must be one which the party is bound to perform by law, or by contract, and not one the performance of which depends simply upon his humanity, or his sense of justice and propriety. Reference was made also in People v Beardsley to a number of

English cases, some of which have earlier been referred to, including R v Nicholls and R v Instan. In relation to the former, and the charge to the jury by Brett J, McAlvay CJ said (at 1130): … The charge of this nisi prius judge recognizes the principle that a person may voluntarily assume the care of a helpless human being, and, having assumed it, will be held to be under an implied legal duty to care for and protect such person; the duty assumed being that of caretaker and protector to the exclusion of all others. Returning to the matter under consideration in People v Beardsley, the Court said (at 1131) that all the cases referred to “we find are in entire harmony with the proposition first stated in this opinion”. The judgment proceeded: Seeking for a proper determination of the case at bar by the application of the legal principles involved, we must eliminate from the case all consideration of mere moral obligation, and discover whether respondent was under a legal duty towards Blanche Burns at the time of her death, knowing her to be in peril of her life, which required him to make all reasonable and proper effort to save her, the omission to perform which duty would make him responsible for her death. This is the important and determining question in this case. If we hold that such legal duty rested upon respondent, it must arise by implication from the facts and circumstances already recited. It is urged by the prosecutor that the respondent “stood towards this woman for the time being in the place of her natural guardian and protector, and as such owed her a clear legal duty which he completely failed to perform”. The cases cited and digested establish that no such legal duty is created based upon a mere moral obligation. The fact that this woman was in his house created no such legal duty as exists in law and is due from a husband towards his wife … Such an inference would be very repugnant to our moral sense. Respondent had assumed either in fact or by implication no care or control over his companion … we do not find that such legal duty as is

contended for existed in fact or by implication on the part of respondent towards the deceased, the omission of which involved criminal liability. This case, which was referred to as “the most commonly cited statement of the rule” concerning omission to perform a legal duty, was followed and applied in the United States Court of Appeals, District of Columbia Circuit, in 1962 in Jones v United States of America. That was a case where a conviction of involuntary manslaughter, based upon an alleged failure of an adult friend of the mother of an infant, in whose custody the child was, to obtain proper medical care, was quashed on appeal. After referring to People v Beardsley the Court said (at 310): There are at least four situations where the failure to act may constitute the breach of a legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. In relation to the fourth situation, reference is made in a footnote, inter alia, to R v Nicholls and R v Gibbins. In R v Nicholls (decided in 1874) the prisoner was the grandmother of [page 189] the deceased infant who was said to have died from the neglect of the prisoner to supply it with proper nourishment. She was a poor person and the deceased was the child of her daughter, the latter being dead. Whilst she was away from home she left it in the sole care of a boy of nine years. In his summing-up to the jury, Brett J said (at 76): If a grown-up person chooses to undertake the charge of a human creature helpless either from infancy, simplicity, lunacy or other infirmity, he is bound to execute that charge without (at all events) wicked negligence; and if a person who has chosen to take charge of a helpless

creature lets it die by wicked negligence, that person is guilty of manslaughter. Mere negligence will not do, there must be wicked negligence, that is, negligence so great, that you must be of opinion that the prisoner had a wicked mind, in the sense that she was reckless and careless whether the creature died or not. Finally, in this connection, I would refer to R v Stone & Dobinson which has earlier been mentioned. There the appellants, a partially deaf and almost blind man of low average intelligence and no appreciable sense of smell, and his mistress, who was ineffectual and inadequate, lived together in his house with his mentally subnormal son. His sister Fanny, aged about sixty-one at the date of her death, came to live at the house as a lodger in one room without ventilation, toilet or washing facilities. She denied herself proper meals, being anxious not to put on weight, and spent days at a time in her room, and within three years became helplessly infirm so that she did not leave her bed, but she did not complain. Although they did make some attempts to provide aid for her she ultimately died and they were charged with and convicted of manslaughter. Their appeal was dismissed, it being held that on the facts the jury were entitled to find that they had assumed a duty to care for the sister and were obliged to summon help for her or care for her themselves when she became helplessly infirm. Geoffrey Lane LJ, giving the judgment of the Court, dealt with the first submission made, which was that there was no or no sufficient evidence that the appellants or either of them had chosen to undertake the care of the deceased, in this fashion (at 361): Whether Fanny was a lodger or not she was a blood relation of the appellant Stone; she was occupying a room in his house; the appellant Dobinson had undertaken the duty of trying to wash her, of taking such food to her as she required. There was ample evidence that each appellant was aware of the poor condition she was in by mid-July. It was not disputed that no effort was made to summon an ambulance or the social services or the police despite the entreaties of Mrs Wilson and Mrs West … All these were matters which the jury were entitled to take into account when considering whether the necessary assumption of a duty of care for Fanny had been proved.

This was not a situation analogous to the drowning stranger. They did make efforts to care. They tried to get a doctor; they tried to discover the previous doctor. The appellant Dobinson helped with the washing and the provision of food. All these matters were put before the jury in terms which we find it impossible to fault. The jury were entitled to find that the duty had been assumed. They were entitled to conclude that once Fanny became helplessly infirm, as she had by July 19, the appellants were, in the circumstances, obliged either to summon help or else to care for Fanny themselves. … From the foregoing authorities it is plain that, whatever the precise test to be applied in determining whether a jury would be entitled to conclude that, in the circumstances of this case, the appellant did owe a duty to obtain medical care for the deceased, the question is one of some novelty and difficulty. R v Stone & Dobinson does not, on this issue, discuss the authorities, although a number were referred to in argument, and the court determined, on the facts of that case, that the appellants had undertaken the duty to care for the deceased. The critical question, so it seems to me, is whether there is evidence that, within the fourth situation referred to in Jones v United States of America, and derived from a number of the cases, the jury was entitled to conclude that [page 190] the appellant here voluntarily assumed the care of the deceased “and so secluded the helpless person as to prevent others from rendering aid”. Matters which are relevant to this issue include the fact that the appellant and the deceased were in no way related, and their acquaintance was but a short and casual one, having arisen in the circumstances earlier set out; the deceased did not reside with the appellant and, indeed, the premises where she died were those, not of the appellant, but of the man Rabih at whose request the appellant procured her and the girl Barton so that others might use her for the purpose of prostitution; that the time involved was only from about 4 am (which the jury would be entitled to conclude, from the record of interview, was the time the two arrived by taxi at

Rabih’s premises, notwithstanding what the appellant said in his unsworn statement) until the time of her death, whenever that may have been (and, if the evidence of Dr d’Souza was to be regarded as correct, it would not have occurred later than about 9.30 am). There is no doubt that, in the present state of the law, if the appellant, in response to the telephone call, which obviously came from Rabih (who had himself apparently administered the heroin to the deceased), had declined to go to Liverpool Street and attend to the deceased, he could not in any way have been held responsible for her subsequent death, assuming that some other person had not intervened to obtain treatment for her. Similarly, if he had gone to Liverpool Street, observed her condition, and then returned to his premises (or those of Rabih), leaving the deceased lying in Liverpool Street, the result would have been the same. The critical question is: because he elected to take her back to Rabih’s premises and place her on the bed, with a jacket and a blanket over her, and then to treat her in the fashion which he described in answer to questions 25 to 27 inclusive of the record of interview, failing to seek medical attention ‘because I thought that when she got over the dose she had she would be all right’, was it open to a jury to find that, in the circumstances, he owed her a legal duty to obtain medical attention for her? In R v Stone & Dobinson the Court took into account, as one of the circumstances to be considered in relation to the assumption of a duty of care towards the deceased, that the accused ‘did make efforts to care’, something which, with other factors, entitled the jury to find ‘the duty had been assumed’. In R v Nicholls Brett J (at 76) directed the jury that “if a grown up person chooses to undertake the charge of a human creature, helpless either from infancy … or other infirmity, he is bound to execute that charge without … wicked negligence”. The question here is whether there was evidence for the jury that the appellant had voluntarily assumed the care of a helpless human being. Certainly the deceased was helpless, as the appellant in his record of interview conceded. The question whether, by taking her to Rabih’s premises and dealing with her as he did, rather than leaving her to lie in Liverpool Street, he thereby assumed a duty to care for her, is one which must be decided by the application of principles already summarised. None of the cases to which we were referred or which I have consulted for myself is precisely in point. Although, if not taken by the appellant

to Rabih’s house, the deceased may well have remained where she lay in the foyer of a building in Liverpool Street and later died. Equally she may have been seen by another or others who were prepared to and did obtain speedy medical assistance for her. This chance was denied to her by the appellant when he took her away. This is a factor which, in some of the cases (eg, Jones v United States of America) is regarded as significant. In the result I have come to the conclusion, although not without hesitation, that in the circumstances revealed in the answers in the record of interview which have been earlier set out, this being the only relevant evidence on this issue in the Crown case (apart from the later interview recorded in the police officer’s notebook), there was evidence that the appellant did assume a duty to care for the deceased girl, who at the time was helpless, and by so doing removed her from a situation in which others might [page 191] have rendered or obtained aid for her. As I have said I reach that conclusion with some hesitation, having regard to the unusual nature of the case and the sparseness of the evidence. Such hesitation, when combined with other matters which I will mention, has led me to the conclusion that the conviction was, in the relevant sense, unsafe and unsatisfactory, and it would be dangerous to allow it to stand. For that reason it should be quashed: see generally Chamberlain v R [No 2] (1984) 153 CLR 521; Morris v R (1987) 163 CLR 454. … Carruthers J: … I have had the considerable benefit of reading in draft form the judgment of Yeldham J, with which I generally agree, save with respect to the reservations which his Honour holds in relation to the Crown’s proof of the first element. If I may respectfully say so, I do not share his Honour’s reservations in that regard. To my mind the evidence led by the Crown was capable of satisfying the jury beyond reasonable doubt that the appellant owed a duty of care in law to Miss Kirby. That duty flowed from his taking her unconscious body into his exclusive custody and control and thereby removing her from the potentiality of appropriate aid 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 and so secluded such person as to prevent others from rendering aid. Thus I find the following passage in 100 ALR 2d 488, par 4 to be apposite: Duties dictated merely by good morals, or by human considerations, are not generally within the domain of the law, and therefore one who did not become a good Samaritan by providing medical care when a witness to the distress of a sick or injured person does not become criminally responsible should death come to such person because of a lack of medical attention. Legal rights and duties, however, may arise out of those complex relations of human society which create correlative rights and duties the performance of which is so necessary to the good order and well-being of society that the state makes their observance obligatory. … [Although it was found that the appellant had assumed a duty to care for the deceased, his conviction was set aside on the basis that the degree of negligence displayed was not sufficient to warrant a finding of manslaughter by criminal negligence. Loveday J agreed with the orders proposed by Yeldham J.]

4.15 The High Court considered the circumstances in which negligent act manslaughter may arise in Burns where the deceased died as a result of the ingestion of methadone supplied to him by the appellant (also noted at 4.5 in relation to unlawful and dangerous act manslaughter and at 2.12 in relation to causation). Burns v R (2012) 246 CLR 334; 290 ALR 713; [2012] HCA 35 High Court of Australia [The appellant had been convicted of manslaughter arising from the supply to the deceased of methadone at premises in which the appellant and her husband resided. The deceased, who was manifestly under the influence of some substance, attended the premises and purchased methadone which he immediately

ingested. There was an issue at trial as to whether the appellant or her husband assisted the deceased to administer the drug or whether the deceased administered it by himself. The deceased became [page 192] obviously affected by the drug. The husband and another person present became so concerned that there was an offer to call him an ambulance which the deceased refused. The husband and the other person tried to assist the deceased to recover by walking him around the room. The appellant noticed the condition of the deceased and demanded that he leave the premises. The deceased left, followed by the husband, who shortly returned to the unit. The deceased’s body was later found in the toilet in the backyard of the premises. The Crown alleged that the appellant was guilty jointly with her husband of the manslaughter of the deceased. In respect of manslaughter by gross criminal negligence, the Crown alleged that the appellant had breached a duty of care to the deceased by failing to obtain medical assistance for him. The Court of Criminal Appeal dismissed the appeal against conviction.] French CJ: … [19] Involuntary manslaughter by criminal negligence at common law is made out 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. [20] A person has no civil or criminal liability at common law for negligent conduct unless that conduct involves a breach of a duty of care owed to another. The existence and breach of such a duty is a necessary condition of a finding of criminal negligence. Lord Atkin in Andrews v DPP equated negligence with “the omission of a duty to take care”. In R v Adomako, Lord Mackay of Clashfern LC observed that “the ordinary principles of the law of negligence

apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died”. The question that follows is whether the breach of duty caused the death of the deceased and if so, whether the breach of duty could be characterised as gross negligence and therefore as a crime. The question of whether a given set of facts gives rise to a duty of care is a question for the judge. The question whether the facts exist is a question for the jury. [21] The issues of duty of care and criminally negligent breach of duty arise most acutely in cases of involuntary manslaughter by omission. It was the breach of a duty to the deceased by criminally negligent omission that formed the basis of the Crown case against Mrs Burns for manslaughter by criminal negligence. [22] A frequently cited taxonomy of the duties of care that may support a charge of involuntary manslaughter was set out by Yeldham J in R v Taktak. According to that taxonomy, which should not be regarded as exhaustive, criminal liability may arise for breach of a duty of care owed to another where: A statute imposes the duty. The duty arises from a certain status relationship. The duty arises from a contract. The duty arises from the voluntary assumption of the care of another, so secluding a helpless person as to prevent others from rendering aid. It is the last category of duty that was relied upon by the Crown in this case. In that category, as Yeldham J put it: the Crown must prove beyond reasonable doubt that the circumstances were such that the accused was under a duty to care for the deceased, which duty, as a result either of his gross negligence or perhaps of his recklessness, he failed to perform, with the consequence that death was caused or accelerated. [page 193] [23] A duty of care may also arise where a defendant has played a causative part in the sequence of events which have given rise to

the risk of injury, such that “a duty to take reasonable steps to avert or lessen the risk may arise”. That basis for a duty of care was relied upon by the Court of Criminal Appeal to support their Honours’ conclusion that it was open to the jury to find that a duty of care did exist in this case. Against that background of general principle, it is necessary to turn to the evidence at, and conduct of, the trial. … [His Honour then considered the evidence and the findings made in the Court of Criminal Appeal and went on.] [45] The question was whether there was evidence from which the jury could have found that Mrs Burns owed a duty of care to the deceased and if so, that she breached that duty in such a serious way as to constitute criminal negligence and that the breach caused his death. [46] Applying the taxonomy adopted by Yeldham J in Taktak, there was no statutory duty, no duty arising from a status relationship and no duty arising from contract. Mrs Burns could not be said to have voluntarily assumed the care of the deceased. Nor could it be said that she had so secluded him as to prevent others from rendering assistance. The only remaining basis for the imposition of a duty on her, and the basis relied upon in the Court of Criminal Appeal, was her allegedly causative role in the sequence of events said to have given rise to a risk to the deceased of serious injury or death on his part. [47] As explained in the joint reasons and noted above, it was not open to exclude as a reasonable possibility that the deceased injected himself with the methadone and that his decision to do so was voluntary. For present purposes therefore, the existence of a duty of care relevant to criminal negligence must be determined on the hypothesis, which cannot be excluded, that the deceased did so inject himself. That possibility, which cannot be excluded, marks a point of distinction between this case and cases in which the accused has created a danger to other people, for example by starting a fire, and thereafter failing to take any steps to remove the danger or warn those at risk of the danger. [48] If the deceased had ingested the drug himself and had rebuffed a suggestion that an ambulance be called, there could be no basis to support a finding that Mrs Burns owed a duty to him. On that

hypothesis, which cannot be excluded, the deceased 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. For these reasons, and the reasons given in the joint judgment, I agree that there should not be a new trial … Gummow, Hayne, Crennan, Kiefel and Bell JJ: Manslaughter by gross negligence [97] 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. [98] The appellant had no relationship with the deceased beyond that of acquaintance. He called at her home to purchase prohibited drugs. He took the drugs in her home and [page 194] suffered an adverse reaction to them in her presence. He left her home at her request while in a compromised state. He died within hours as the result of the combined effect of the drug supplied by the appellant and drugs that he had earlier taken. In question is the source of the legal duty which obliged the appellant to obtain medical assistance for the deceased and how her failure to do so can be said to have been a cause of his death. [99] The trial judge gave these directions as to the existence and scope of any duty: If a person voluntarily invites or permits potential

recipients to attend his or her home for the purpose of a prohibited drug supply transaction where the drugs are to be consumed on the premises, and where such a recipient may be or become seriously affected by drugs to the point where his or her life may be endangered, the drug supplier has a duty to conduct himself toward the drug recipient without being grossly or criminally neglectful. [100] In the event that the jury were satisfied that the appellant had “voluntarily take[n] upon herself such a duty”, her failure to call an ambulance or obtain other medical assistance for the deceased and her conduct in expelling him from the unit when he was in a “grossly vulnerable condition” were the matters identified as capable of amounting to a criminally negligent breach of duty. [101] The appellant was not in a relationship with the deceased which the law recognises as imposing an obligation to act to preserve life. She had not voluntarily assumed the care of the deceased nor had she secluded him such as to deny him the opportunity that others would assist him. Different considerations may have applied in the trial of Brian Burns. At the appellant’s trial, the Crown accepted that she had not been subject to any obligation to seek medical attention for the deceased after he left the unit in company with Brian Burns. [102] Although the trial judge directed the jury to consider whether the appellant had voluntarily assumed a duty of care to the deceased, this was not the foundation for the duty which the Court of Criminal Appeal identified. It considered that the appellant had come under a duty of the kind found by the English Court of Appeal in R v Evans (Gemma). Gemma Evans supplied her 16 year old half-sister, Carly, with heroin. After Carly exhibited signs of opiate overdose, Gemma failed to seek medical assistance for her. The English Court considered that Gemma had been under “a plain and obvious duty to take reasonable steps to assist or provide assistance for Carly”. The duty did not arise because of the sibling relationship, but because Gemma had “created or contributed to the creation of a state of affairs” which she knew, or ought reasonably to have known, had become life threatening. This is a duty of a kind identified by the House of Lords in R v Miller. [103] In Miller, the accused was found to be criminally responsible

for his failure to take reasonable steps to prevent a house fire. Miller was squatting in the house. He fell asleep holding a lighted cigarette and woke to find the mattress on fire. He got up and moved to the adjacent room and went back to sleep. The house was damaged by the fire which had been ignited by the lighted cigarette. Following Miller’s conviction for arson, the question certified for the House of Lords was whether the accidental starting of a fire could be the actus reus of arson in circumstances in which the accused had subsequently failed to take steps to extinguish it, either intending to cause damage to property or being reckless as to that consequence. Miller’s conviction was upheld. In giving the judgment of the House of Lords, Lord Diplock said: I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created … I cannot see any good reason why, so far as liability under criminal law is concerned, it should matter at what point of time before the resultant damage is complete a person becomes aware that he has done a physical act which, whether or not he appreciated that [page 195] it would at the time when he did it, does in fact create a risk that property of another will be damaged; provided that, at the moment of awareness, it lies within his power to take steps, either himself or by calling for the assistance of the fire brigade if this be necessary, to prevent or minimise the damage to the property at risk. [104] Sir John Smith has suggested that Miller is an example of a general principle, which he stated in these terms: [W]henever the defendant’s act, though without his knowledge, imperils the person, liberty or property of another, or any other interest protected by the criminal law, and the defendant becomes aware of the events

creating the peril, he has a duty to take reasonable steps to prevent the peril from resulting in the harm in question. [105] Whether this is a statement of the common law of Australia is not an issue presented by this appeal. Miller’s criminal responsibility, analysed in terms of a duty to take steps to extinguish the fire, arose because it was his act that imperiled the property. By contrast, here, as earlier explained, the imperilment of the deceased was the result of his act in taking the methadone. [106] Lord Diplock commented in Miller on the difficulty of defining those who are to be made subject to criminal liability for being bad Samaritans. Why is the appellant liable for the manslaughter of the deceased when Ms Malouf is not? It cannot be because the law imposes a general duty on suppliers of prohibited drugs to take reasonable steps to preserve the life of their customers. The supply of prohibited drugs is visited by severe criminal punishment in recognition of the harm associated with their use. The notion that at the same time the law might seek to regulate the relationship between supplier and user, by imposing a duty on the former to take reasonable care for latter [sic], is incongruous. What measures would reasonable care require? Should suppliers of prohibited drugs be required to supply clean needles and accurate information about safe levels of use? The duty that the Court of Criminal Appeal found the appellant to be under was not a general duty of this kind. It accepted the submission that a duty is imposed on the supplier of a prohibited drug in circumstances in which the drug is taken in the supplier’s presence. The rationale for that duty is not that the supplier has contributed to the endangerment of the user. Contribution to this state of affairs occurs at the point of supply, when, ordinarily, the supplier will have no control over whether and in what quantities the drug will be consumed. The duty that the Court of Criminal Appeal identified arose because, as it happened, the appellant was present when the deceased suffered the adverse reaction to the drug she had supplied. It is difficult to resist the conclusion that the duty is being imposed in these circumstances because it is an affront to morality that the supplier of a prohibited drug should not bear responsibility for the callous disregard for the life of the drug user. [107] However, courts must be circumspect in identifying

categories of relations that give rise to a previously unrecognised legal obligation to act. The relationship of supplier of prohibited drugs and recipient does not lend itself to the imposition of such a duty. Apart from considerations of incongruity, there is absent the element of control which is found in those relationships in which the law imposes a duty on a person to act to preserve life. [108] It is open to the legislature to criminalise the failure of the supplier of a prohibited drug to take reasonable steps to provide medical assistance to the drug user. This might be done by making the failure to act itself an offence or by imposing a statutory duty on the supplier with attendant liability for manslaughter in the case of gross breach. Difficult policy choices may be involved in the decision to enact an offence of either kind. The desirability of making drug suppliers responsible for the deaths of drug users is one objective to which reference has been made earlier in these reasons. Another objective may be to minimise the incidence of fatal drug overdoses. Exposing the supplier to [page 196] the risk of conviction for manslaughter (or other serious offence) when the user dies of an overdose at the supplier’s premises, while advancing the former objective, may not necessarily promote the latter. The development of the law along the lines urged by the Crown is a matter for the legislature and not the courts … Heydon J: Failure to seek medical attention [128] An omission to act where the act would have saved the life of another can be manslaughter. But omissions of this kind fall within confined categories. Those categories require particular kinds of relationship between the deceased and the accused. The relationship between the deceased and the appellant was insufficiently close to the accepted categories to justify its recognition as one of them. To extend those categories would be to change the criminal law retrospectively. [129] In 1879, Lord Blackburn, Mr Justice Barry, Mr Justice Lush and Sir James Fitzjames Stephen sat as a Royal Commission and issued a report annexing a Draft Code of Criminal Law. The report

dealt with what it saw as a fallacious attribution of “discretion” to judges deciding new cases: It seems to be assumed that when a judge is called on to deal with a new combination of circumstances, he is at liberty to decide according to his own views of justice and expediency; whereas on the contrary he is bound to decide in accordance with principles already established, which he can neither disregard nor alter, whether they are to be found in previous judicial decisions or in books of recognized authority. The consequences of this are, first, that the elasticity of the common law is much smaller than it is often supposed to be; and secondly, that so far as a Code represents the effect of decided cases and established principles, it takes from the judges nothing which they possess at present. For example, it never could be suggested that a judge in this country has any discretion at the present day in determining what ingredients constitute the crime of murder, or what principles should be applied in dealing with such a charge under any possible state of circumstances: and yet the common law definition of murder has in its application received a remarkable amount of artificial interpretation. The same observation is applicable to every other known offence. It is certainly applicable to the offence of manslaughter. To create a new category of omissions carrying responsibility for the crime of manslaughter would alter the ingredients of that crime. [130] On 20 October 1897, Sir Samuel Griffith wrote to the Attorney-General of Queensland enclosing his Draft Code of Criminal Law. In that letter, he referred to the Royal Commission’s report. The Royal Commission’s report proposed that all offences be prosecuted under the Code or some other statute only, not at common law. Sir Samuel quoted it as saying: The result of this provision would be to put an end to a power attributed to the judges, in virtue of which they have (it has been said) declared acts to be offences at Common Law, although no such declaration was ever

made before. And it is, indeed, the withdrawal of this supposed power of the judge to which the argument of want of elasticity is mainly addressed. Sir Samuel also quoted the following words: In bygone ages when legislation was scanty and rare, the powers referred to may have been useful and even necessary; but that is not the case at the present day. Parliament is regular in its sittings and active in its labours; and if the protection of society requires the enactment of additional penal laws Parliament will soon supply them. If Parliament is not disposed to provide punishment for acts which are upon any ground objectionable or dangerous, the presumption is that they belong to that class of misconduct against which the moral feeling and good sense of the community are the best protection. Besides, there is every reason to believe that the Criminal Law is, and for a considerable time has been, sufficiently [page 197] developed to provide all the protection for the public peace and for the property and persons of individuals, which they are likely to require under almost any circumstances which can be imagined; and this is an additional reason why its further development ought, in our opinion, to be left in the hands of Parliament. It is plain that Sir Samuel agreed with these ideas. [131] The “moral feeling” of the community would probably be strongly hostile to the appellant’s conduct in not summoning medical aid for the deceased. But that is no reason for a retrospective change in the criminal law to be made by this court.

WHERE THERE IS AN UNEXPECTED INCIDENT IN CARRYING OUT A

COMMON DESIGN 4.16 Another category of manslaughter may arise where the accused has agreed (and ‘agreed’ includes by tacit understanding) to commit a crime (the foundational offence) with the principal offender. If the principal offender kills another in the course of committing the foundational offence, in circumstances that amount to murder or manslaughter (the incidental offence), the accused, depending on the circumstances, may be found guilty of murder or manslaughter. 4.17 The elements of these forms of extended liability are considered in 10.62. As Adams J said in Taufahema (see 10.62 at [35]): In order for the appellant to be convicted of murder as a possible incident of carrying out the common design, it is essential that the prosecution prove that he foresaw that one of the other offenders might shoot at the police officer with the intention of killing him or causing him grievous bodily harm. If, on the other hand, the jury considered it reasonably possible that the appellant only foresaw, as a possible incident, that one of the other offenders might shoot the … [victim] (and possibly cause death or grievous bodily harm) but without foreseeing such an intent, then he would only be guilty of manslaughter …

See, for example, R v Duong (1992) 61 A Crim R 140 at 148– 149; R v Chai (2002) 76 ALJR 628; 128 A Crim R 101; and R v Rees [2001] NSWCCA 23.

ASSAULT CAUSING DEATH 4.18 As a result of media outcry following a number of cases where a person had been struck and killed in the inner city area of Sydney the government responded by creating an

offence to deal with a particular factual situation. That situation was where an innocent victim was suddenly, and without any apparent reason, punched to the head, causing the victim to strike the pavement resulting in fatal injuries. The person causing the assault was usually intoxicated. The media referred to it as ‘the coward punch’. There was no doubt that the conduct would amount to murder or manslaughter depending upon the intention of the person striking the victim. In reality it would be difficult for the Crown to prove an intention to kill or cause grievous bodily harm because of the single blow inflicted. However, [page 198] more than one such offender was dealt with for manslaughter. The resulting sentencing imposed on one of those cases again gave rise to media outrage and was increased on a Crown appeal; see R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120. By that time s 25A had been inserted into the Crimes Act and operated from 1 January 2012. 4.19 Section 25A is as follows: 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.

(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.

(4) In proceedings for an offence under subsection (1) or (2), it is not necessary to prove that the death was reasonably foreseeable. (5) It is a defence in proceedings for an offence under subsection (2): (a) if the intoxication of the accused was not self-induced (within the meaning of Part 11A), or (b) if the accused had a significant cognitive impairment at the time the offence was alleged to have been committed (not being a temporary self-induced impairment). (6) In proceedings for an offence under subsection (2): (a) evidence may be given of the presence and concentration of any alcohol, drug or other substance in the accused’s breath, blood or urine at the time of the alleged offence as determined by an analysis carried out in accordance with Division 4 of Part 10 of the Law Enforcement (Powers and Responsibilities) Act 2002, and (b) the accused is conclusively presumed to be intoxicated by alcohol if the prosecution proves in accordance with an analysis carried out in accordance with that Division 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. (7) If on the trial of a person for murder or manslaughter the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1) or (2), the jury may acquit the person of murder or manslaughter and find the person guilty of an offence under subsection (1) or (2). The person is liable to punishment accordingly.

(8) If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1), the jury may acquit the person of the offence under subsection

[page 199] (2) and find the person guilty of an offence under subsection (1). The person is liable to punishment accordingly. (9) Section 18 does not apply to an offence under subsection (1) or (2). (10) In this section, “cognitive impairment” includes an intellectual disability, a developmental disorder (including an autistic spectrum disorder), a neurological disorder, dementia, a mental illness or a brain injury.

Section 25B proscribes a minimum penalty of eight years non-parole period for a sentence for an offence under s 25A(2). 4.20 As has been noted, there is nothing in the nature of the facts to which s 25A was directed that would prohibit a person being charged and convicted of manslaughter by an unlawful and dangerous act. It is difficult to imagine that a striking of a person as envisaged by the section would not be a dangerous act. To some extent the offence resembles battery manslaughter discussed and rejected as part of Australian common law in Wilson above at 4.2, but there is no need to prove an intent to injure to any degree. The offence is unlike manslaughter in that there is no requirement to prove that the death was reasonably foreseeable. Unlawful and dangerous act manslaughter has an element requiring that the degree of risk imposed by the unlawful act creates an unreasonable risk of harm according to an objective standard. In negligent manslaughter the act or omission of the accused who breaches a duty of care must be an

unreasonable one. The only intention to be proved by the prosecution is an intention to assault the other person by striking him or her. That is an offence of basic intent for the law of intoxication (s 428E(2) of the Crimes Act) so that evidence of self-induced intoxication cannot be taken into account. The death of the person is an unintended and unforeseen consequence of the assault and to that extent liability for the death is absolute. 4.21 In Victoria a different approach, and it may be thought a more logical one, was taken to the same problem. Instead of creating a new offence, s 4A was inserted into the Crimes Act 1958 (Vic) that, in effect, declared a single punch to the head or neck of another person to be a dangerous act for the purposes of unlawful and dangerous act manslaughter. 4.22 The offence under s 25A(2) is unique in that it makes intoxication an element of an aggravated offence where the simple offence does not contain any element of intoxication. It can be contrasted with offences of driving with a prescribed concentration of alcohol. In those offences the degree of intoxication can give rise to an aggravated offence (eg, high range PCA) but the basic offence is based upon a degree of intoxication. The same can be said of aggravated dangerous driving based upon driving under the influence of alcohol. The other unique factor to offences in this state is the prescription of a minimum period of imprisonment so that the court’s sentencing discretion has been limited. 4.23 The offence is an alternative to a charge of murder or manslaughter: s 25A(7). This could produce a curious result. A person charged with manslaughter on the basis of unlawful and dangerous act could, hypothetically at least, be acquitted of manslaughter but convicted of an offence under s 25A(2). Normally an alternative [page 200]

charge is less serious than the indicted charge. Yet a conviction under s 25A(2) would on its face appear to be more serious, because, as has been pointed out, there is no requirement to prove that a reasonable person would find the accused’s act dangerous. Certainly manslaughter does not carry a minimum penalty and, although it notionally carries a maximum penalty of 25 years, it is rare for that penalty or anything approaching it to be imposed. Loveridge on the Crown appeal was resentenced for manslaughter to a sentence of 10 and a half years with a nonparole period of seven years for a course of violent behaviour.

CULPABLE KILLING 4.24 This chapter has reviewed the law of involuntary manslaughter, that is, manslaughter by unlawful and dangerous act, and manslaughter by criminal negligence. It has also noted the offence of assault causing death. Together with the concepts of voluntary manslaughter and murder, these offences represent the major offences for homicide in New South Wales. However, there are other offences allowing heavy penalties to be imposed for the culpable killing of another, most notably the offences of dangerous driving and dangerous navigation causing death — ss 52A and 52B respectively of the Crimes Act. They are beyond the scope of this book.

DISCUSSION QUESTIONS 4.25 In each case consider whether A is guilty of manslaughter. 1.

It is winter, and A’s swimming pool is not being used. The gate is faulty, but A thinks that he will wait until

next summer to fix it. A’s neighbourhood is full of young children who crawl everywhere. A goes away for the weekend, and when he returns home he finds that a neighbour’s child has found his way into the garden, has crawled into the pool area through the faulty gate, fallen into the pool and drowned. 2.

Same situation as in 1, except that the child is that of guests who had come for dinner, and the parents had specifically asked A whether he had fixed the gate. Not wanting to appear lazy, A had said yes. A knew that the child was a demon for the water, and that on a previous visit the child had been found in the pool area, reaching for the little rubber duckies which A left floating in the pool.

3.

A is a grossly naive and deeply stupid person. He goes out at night leaving his child unattended at home and, because it is cold and all of the blankets are wet, he leaves the child in the child’s bedroom with a portable gas heater burning. The child gets up in the night, knocks the heater over and is burnt to death. A is believed when he says that he honestly did not think that gas heaters could be tipped over without automatically shutting off.

4.

Assume that it is a criminal offence to own a dog of a breed bred to attack and fight other dogs. Assume that the punishment is a fine or imprisonment. [page 201] Assume that it is an offence to have any dog in a public park not on a leash: penalty under the local government regulation is a fine. A has his prohibited fighting dog in a park and lets it off the leash. It immediately attacks a child and mauls the child to death.

5.

6.

A assaults V at a party by throwing a Bloody Mary containing pepper sauce into V’s face. A acted impulsively, but states that if he had thought about it he would have believed the glass contained tomato juice only. V staggers back rubbing his eyes and falls through a plate glass door, severing his jugular vein. He dies. Certain classes of people are under statutory duties to report children who are at risk of violence at the hands of their parents. A, a medical practitioner, on a home visit to the house of V’s parents, recognises V to be at acute risk but fails to report this because A is going skiing for the weekend and is leaving immediately following the visit. On her departure from the house, the parents inflict a final beating on V, which kills the child.

1

See, generally, Green, ‘The Jury and the English Law of Homicide, 1200–1600’, (1976) 74 Michigan Law Review 413; Kaye, ‘The Early History of Murder and Manslaughter: Part II’, (1967) 83 Law Quarterly Review 569.

2

‘The Development of the Law of Homicide’, (1935) 9 Australian Law Journal, Supp 64, at p 64.

3

Rethinking Criminal Law, (1978), p 237.

4

(1877), Arts 222–223.

5

This aspect of the judgment does not appear in [1943] KB 174, or in [1943] WN 13.

6

This was not the view taken by Cox J in the instant case, his Honour being of the opinion that a ‘passing reference’ to Holzer in Coomer did not signify approval of that decision: R v Wilson (1991) 53 A Crim R at 297.

7

Again, Cox J declined to regard a ‘passing reference’ to Holzer as significant: R v Wilson (1991) 53 A Crim R at 298.

8

Section 353(1) of the Act empowers the Full Court, notwithstanding

that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, to dismiss the appeal ‘if it considers that no substantial miscarriage of justice has actually occurred’. 9

See Willis, ‘Manslaughter by the Intentional Infliction of Some Harm: A Category that should be Closed’, (1985) 9 Criminal Law Journal 109.

10

The approach taken in this judgment does not necessarily conflict with the concept of manslaughter under the Criminal Codes. Notwithstanding the existence of an unlawful and dangerous act, the ‘accident’ provision of the Codes may operate to relieve an accused of responsibility for a consequential death: R v Martyr [1962] Qd R 398. But, it would still be open to an accused, charged with manslaughter at common law, to argue that his or her unlawful and dangerous act did not cause the death. This aspect of the judgment does not appear in [1943] KB 174, or in [1943] WN 13.

11

See Willis, op cit, at pp 120, 124.

[page 202]

5 Non-fatal offences against the person INTRODUCTION 5.1 Chapters 2–4 consider the law that applies to fatal offences; that is, murder, manslaughter and assault occasioning death. This chapter and Chapter 6 deal with offences against the person where the conduct of the accused does not cause death. This chapter primarily considers the law of assault which forms the basis of most non-fatal offences against the person. Chapter 6 deals with sexual assault and related offences. 5.2 The New South Wales criminal law dealing with nonfatal offences is built upon the foundation stone of common law assault. To this basic offence has been added a number of other offences, each designed to fill perceived gaps in the law. The result is a myriad of statutory offences with a great deal of overlap and little clarity of principle for determining what sort of conduct should be the subject of criminal punishment. 5.3 The Model Criminal Code Officers Committee

(MCCOC) recognised that the vast number of offences and their overlap brought confusion in this area of law. MCCOC, Non-Fatal Offences Against the Person Model Criminal Code Report, Chapter 5, September 1998, pp 1–4 The criminal law about non-fatal offences against the person in all Australian jurisdictions is largely statutory and based on an adaptation, with a variety of alterations which have taken place over the years, of the English Offences Against The Person Act, 1861 (24&25 Vict c100). This legislation was itself not a codification, but a consolidation, of common [page 203] law and a variety of statutes on the subject which had developed over the centuries. The exception to this statement is Victoria, in which the old model was replaced by a quite different version by the Crimes (Amendment) Act 1985. … There are a number of reasons why this general structure of offences and some of the specific offences themselves require reform. The strength of the various arguments for reform will differ according to the extent to which the old structure and offences have been modified over the past century and more in each particular jurisdiction. The present structure of offences is confusing because of the considerable overlap which exists between a number of offences. The present structure of offences is anachronistic, both in terms of the kinds of offences which have survived to the present day and in terms of the concepts that are basic to the structure. An example of the former is specific offences dealing with assaulting or obstructing people in case of shipwreck, which derives directly from ‘wreckers’ legislation in 1753. An example of the latter is the distinction between ‘assault’ and ‘wounding’ which derives directly from the formulation of offences in days dominated by edged weapons. Traditional coverage is both over and under inclusive.

Common law assault and the equivalent Code offences extend to, for example, the merest application of any degree of force at all. On the other hand, the criminalisation of acts which endanger the lives and safety of others tends to be covered patchily and by very specific categories instead of by a general offence based on general and consistent principle. The wording and in particular the fault provisions of the older offences require translation into modern criminal law and social language, and examination in light of the fault requirements of modern offences. The fault requirements are still controversial after over a century. See R v Savage; R v Parmenter [1992] 1 AC 699, and commentary at (1992) 51 Camb LJ 6 and (1992) 108 LQR 187. The penalties attached to a variety of offences require rationalisation and reconsideration. Some offences dealt with under the old structure probably do not belong in this area of the law at all — for example, neglect of children — while some modern problems should be addressed in this structure — for example, offences involving firearms or torture. Old solutions for old problems long gone still survive. For example, the distinction between assault and wounding: The common law was quite relaxed about non-fatal, non-sexual offences against the person, and the first statute that dealt with the matter was 22&23 Car II, c 1, (1670): ‘An Act to prevent Malicious Maiming and Wounding’. The Act recites: Whereas upon the One and twentieth Day of December, in the Year of our Lord One thousand six hundred and seventy, a violent and inhuman Attempt was made upon the Person of Sir John Coventry Knight of the Honourable Order of the Bath, being a Member of the Commons House of Parliament, and then attending Parliament, and upon the Person of his Servant William Wylkes, by a considerable Number of armed Men, both on Foot and Horseback, whereby the said Sir John Coventry and his said Servant then lost several Goods; and the said Sir John

Coventry received divers Wounds, some of which were given him in such barbarous Manner, that some of the Offenders held him while other wounded him. The anachronistic offence of assaulting a magistrate engaged in the preservation of a wreck was enacted to deal with ‘wreckers’ in eighteenth century England. It can still be found in, for example, s 295 of the WA Criminal Code and s 20 of the SA Criminal Law Consolidation Act. It derives from An Act for Enforcing the Laws against Persons who [page 204] shall steal or detain shipwrecked Goods; and for the Relief of Persons suffering Losses thereby, 26 Geo II c XIX, (1753). As late as 1995, the English court of Appeal had to deal with the distinction between assault and battery and commented that ‘The present appeal … is of no practical importance whatsoever, but is yet another example of how bad laws cost money and clog up courts with better things to do’. R v Lynsey [1995] 3 All ER 654 at 655. In recent times, many jurisdictions have amended and addressed some of these problems with the 1861 offences. With the exception of Victoria, none has addressed the fundamentals of constructing a modern code of non-fatal offences against the person. As early as 1877, Stephen wrote of the 1861 offences and structure: Their arrangement is so obscure, their language so lengthy and cumbrous, and they are based upon and assume the existence of so many singular common law principles that no-one who was not already well acquainted with the law would derive any information from reading them. In recent times, this criticism has become a litany of judicial demands for reform. The latest may be found, for example, in Lynsey [1995] 3 All ER 654, appellate litigation rendered necessary only because of the anachronistic features of the old law. The House of Lords has described the result in the case before it as “the irrational result of this piecemeal legislation” (Savage; Parmenter [1992] 1 AC 699 at 712) and leading academic Andrew Ashworth has described it as an ‘antiquated and illogical structure’ (Principles

of Criminal Law (1991) at 281). The time has come to think again. In addition, of course, over the years the process of local amendment and replacement has meant that the basic law on offences against the person is different from jurisdiction to jurisdiction. Victoria has the most modern set of offences, New South Wales and South Australia the closest to the original English legislation, and the Code states have their own variations. In general terms, there is no case at all for there to be local differences in the general Australian laws which aim to protect the bodily integrity of Australian citizens, residents and visitors.

5.4 The range of non-fatal offences against the person in New South Wales can be seen by looking at the list of offences in the Crimes Act 1900 (NSW) (‘the Crimes Act’) that deal with conduct causing danger to life or bodily harm. The list of non-fatal offences against the person in New South Wales includes: 32 33 33A 33B 35 35A 37 38 38A 39 41 41A

Impeding endeavours to escape shipwreck Wounding or grievous bodily harm with intent Discharging firearm etc with intent Use or possession of weapon to resist arrest etc Reckless grievous bodily harm or wounding Causing dog to inflict grievous bodily harm or actual bodily harm Choking, suffocation and strangulation Using intoxicating substance to commit an indictable offence Spiking drink or food Using poison etc to endanger life or inflict grievous bodily harm Using poison etc to injure or to cause distress and pain Poisoning etc of water supply

[page 205] 42 43 43A

Injuries to child at time of birth Abandoning or exposing a child under 7 years Failure of persons with parental responsibility to care for child

44 45 46 47 48 49 49A 51A 52A(3) 52A(4) 52AB 52B(3) 52B(4) 53 54 55 56 57 58 59 59A 60 60A 60B 60E 61

Failure of persons to provide necessities of life Prohibition of female genital mutilation Causing bodily injury by gunpowder etc Using etc explosive substance or corrosive fluid etc Causing explosives to be placed in or near building, conveyance or public place Setting trap etc Throwing rocks and other objects at vehicles and vessels Predatory driving Dangerous driving occasioning grievous bodily harm Aggravated dangerous driving occasioning grievous bodily harm Offence of failing to stop and assist after vehicle impact causing death or grievous bodily harm Dangerous navigation causing grievous bodily harm Aggravated dangerous navigation occasioning grievous bodily harm Injuries by furious driving etc Causing grievous bodily harm Possessing or making explosives or other things with intent to injure Obstructing member of the clergy in discharge of his or her duties Assault on persons preserving wreck Assault with intent to commit a serious indictable offence on certain officers Assault occasioning actual bodily harm Assault during public disorder Assault and other actions against police officers Assault and other actions against law enforcement officers (other than police officers) Actions against third parties connected with law enforcement officers Assaults etc at schools Common assault prosecuted by indictment

It is not possible to consider all these offences in detail here. The emphasis is on assault, which is the ‘base’ offence for

many of the offences arising from the types of conduct listed above. Sexual offences which include the element of assault will be dealt with separately in Chapter 6. [page 206]

ASSAULT 5.5 The basic provision dealing with assault is s 61 of the Crimes Act, which states: Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

5.6 The section does not give any definition of assault. For that we need to look to the common law. Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; [1968] 3 All ER 442 Queen’s Bench Division, UK [The appellant was reversing his car when a police officer directed him to drive the car forward to the kerbside and, standing in front of the car, pointed out a suitable place to park. The appellant stopped the car too far from the kerb so the officer asked him to park closer and indicated a precise spot. The appellant drove forward towards the officer and stopped with the offside wheel on the officer’s left foot. The officer told the appellant to get off his foot and received an abusive reply. The engine of the car stopped running. The officer repeated his request several times and the appellant finally said “Okay man, okay” and then slowly turned on the ignition of the car and reversed it off the officer’s foot. The appellant had either turned the ignition off to stop the engine or turned it off after the engine had stopped running. The appellant was convicted of assaulting a police officer in the execution of his duty, and appealed.] James J: … The justices at quarter sessions … were left in doubt

whether the mounting of the wheel on to the officer’s foot was deliberate or accidental. They were satisfied, however, beyond all reasonable doubt that the appellant “knowingly, provocatively and unnecessarily” allowed the wheel to remain on the foot after the officer said “Get off, you are on my foot”. They found that, on these facts, an assault was proved. Counsel for the appellant relied on the passage in Stone’s Justices Manual (1968 ed), Vol 1, p 651, where assault is defined. He contends that, on the finding of the justices, the initial mounting of the wheel could not be an assault, and that the act of the wheel mounting the foot came to an end without there being any mens rea. It is argued that thereafter there was no act on the part of the appellant which could constitute an actus reus, but only the omission or failure to remove the wheel as soon as he was asked. That failure, it is said, could not in law be an assault, nor could it in law provide the necessary mens rea to convert the original act of mounting the foot into an assault. Counsel for the respondent argues that the first mounting of the foot was an actus reus, which act continued until the moment of time at which the wheel was removed. During that continuing act, it is said, the appellant formed the necessary intention to constitute the element of mens rea and, once that element was added to the continuing act, an assault took place. In the alternative, counsel argues … that there can be situations in which there is a duty to act and that, in such situations, an omission to act in breach of duty would in law amount to an assault. It is unnecessary to formulate any concluded views on this alternative. In our judgment, the question arising, which has been argued on general principles, falls to be decided on the facts of the particular case. An assault is any act which intentionally — or possibly recklessly — causes another person to apprehend immediate [page 207] and unlawful personal violence. Although “assault” is an independent crime and is to be treated as such, for practical purposes today “assault” is generally synonymous with the term “battery”, and is a term used to mean the actual intended use of unlawful force to another person without his consent. On the facts of the present case, the “assault” alleged involved a “battery”.

Where an assault involved a battery, it matters not, in our judgment, whether the battery is inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender. An assault may be committed by the laying of a hand on another, and the action does not cease to be an assault if it is a stick held in the hand and not the hand itself which is laid on the person of the victim. So, for our part, we see no difference in principle between the action of stepping on to a person’s toe and maintaining that position and the action of driving a car on to a person’s foot and sitting in the car while its position on the foot is maintained. To constitute this offence, some intentional act must have been performed; a mere omission to act cannot amount to an assault. Without going into the question whether words alone can constitute an assault, it is clear that the words spoken by the appellant could not alone amount to an assault; they can only shed a light on the appellant’s action. For our part, we think that the crucial question is whether, in this case, the act of the appellant can be said to be complete and spent at the moment of time when the car wheel came to rest on the foot, or whether his act is to be regarded as a continuing act operating until the wheel was removed. In our judgment, a distinction is to be drawn between acts which are complete — though results may continue to flow — and those acts which are continuing. Once the act is complete, it cannot thereafter be said to be a threat to inflict unlawful force on the victim. If the act, as distinct from the results thereof, is a continuing act, there is a continuing threat to inflict unlawful force. If the assault involves a battery and that battery continues, there is a continuing act of assault. For an assault to be committed, both the elements of actus reus and mens rea must be present at the same time. The “actus reus” is the action causing the effect on the victim’s mind: see the observations of Parke B in R v St George (1840), 9 C & P 483 at pp 490, 493. The “mens rea” is the intention to cause that effect. It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed on an existing act. On the other hand, the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault. In our judgment, the justices at Willesden and quarter sessions

were right in law. On the facts found, the action of the appellant may have been initially unintentional, but the time came when, knowing that the wheel was on the officer’s foot, the appellant (i) remained seated in the car so that his body through the medium of the car was in contact with the officer, (ii) switched off the ignition of the car, (iii) maintained the wheel of the car on the foot, and (iv) used words indicating the intention of keeping the wheel in that position. For our part, we cannot regard such conduct as mere omission or inactivity. There was an act constituting a battery which at its inception was not criminal because there was no element of intention, but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act. The fallacy of the appellant’s argument is that it seeks to equate the facts of this case with such a case as where a motorist has accidentally run over a person and, that action having been completed, fails to assist the victim with the intent that the victim should suffer. [Lord Parker CJ agreed with James J. Bridge J agreed that James J had correctly stated the principles of law but dissented on the application of those principles to the particular facts of the case. Appeal dismissed.]

[page 208]

Elements of assault Physical elements of assault 5.7 From Fagan (see 5.6) we can determine the elements of the offence of ‘assault’. An ‘assault’ in the broader, general sense of the term can be either: 1.

an assault in the restricted sense of a threat to bring about non-consensual contact; or

2.

a battery, in the sense of actual non-consensual contact with another person.

In the restricted sense assault is typically defined as a voluntary (see 2.6–2.7; see also Chapter 8) act which

intentionally or recklessly causes another person to believe he or she will be the victim of immediate and unlawful violence (Zanker v Vartzokas (1988) 34 A Crim R 11). But the act does not necessarily have to be a violent one — it can be through the use of words alone — and an assault in the restricted sense can be committed without touching the victim (R v Phillips (1971) 45 ALJR 467). The physical element of assault is a voluntary act of the accused that has the effect of putting the victim in fear. The fault element is a desire to create that fear, though there can be an assault even if the victim does not in fact fear violence (see Brady v Schatzel [1911] St R Qd 206). 5.8 The gist of ‘assault’ (using that term in its strict sense and as distinct from ‘battery’) is in putting the victim in fear of ‘immediate’ (violent, offensive, or otherwise nonconsensual) contact. The question in Mostyn was whether there could be an assault if the accused was not in a position to cause immediate violence. How immediate does the threatened contact have to be? R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97 NSW Court of Criminal Appeal McColl JA: The victim [Gina-Marie Miner] was subjected to violence in her home. She was struck and suffered a serious back injury. She fled the house. The Crown case was that: 20 Due to her back injury, the complainant could not stand upright and was doubled over. She heard the appellant calling out: “come out, come out wherever you are cunt”. She found a hiding place in one of the sheds on the property where there was some wood and a stack of tractor tyres which concealed her. She heard the appellant then talking to someone saying: “have you seen my cunt anywhere, I’m hunting”. 21 The appellant walked past the shed in which the complainant was hiding and at one stage came into the

shed and looked around. One side of the shed was completely open. The shed was made of corrugated iron and had a lot of pieces missing. She saw he had a rifle in his hands with one hand on the trigger and what looked to be a pistol shoved down the front part of his pants and a bayonet in one of his belt grips. 22 The complainant then heard the appellant yelling at someone: “get in the car or I’ll blow your fucking heads off”. Suspecting the police had arrived she came out of her hiding place and headed towards the road. She met a female police officer who pulled her behind a police car. She saw the appellant had the butt of the rifle up against his shoulder, his right [page 209] hand on the trigger. She heard him yelling at the police “to get in the car or he’d blow their fucking heads off”. The appellant was convicted of a number of offences including assault. The allegation of assault was based on the facts given, above, namely that he caused the victim to fear that she was going to be subject to further violence. He sought to appeal against his conviction for assault on the basis that the trial judge gave incorrect directions to the jury. … 60 The appellant relies on Knight v R (1988) 35 A Crim 314 to support his complaint that her Honour ought to have directed the jury that the accused had a present ability to effect his purpose or, to put it another way, that “an offer to strike a person at such a distance as to make contact impossible is not an assault”. 61 Knight was an appeal from a conviction, inter alia, of assault under s 61 of the Crimes Act. The assault was said to be constituted by words spoken by the appellant on the telephone. The Crown case in relation to the charges of assault was based on the evidence of the recipients of the calls as to what was said by the caller the nature of which, as described by Lee J (with whom Carruthers and Loveday JJ agreed), was threatening death or bodily injury to the recipients as well as being extremely abusive. Apart from that evidence it appears the jury also had before them the fact that the

calls had been made from an unknown address to a caller who took the call an appreciable distance away. This, as the Crown conceded on appeal (at 316), was a “long way out of firing distance”. 62 The Court quashed the conviction because the evidence was not sufficient to constitute evidence of assault, for there was nothing in the Crown case from which any conclusion could be drawn that any of the recipients of the calls were ever in any danger of immediate violence. As Lee J put it (at 317): But as to there being any evidence that those threats were threats of immediate violence it is clear that they were not. They were mere threats which may have been executed at any time, if at all. 63 His Honour considered Taylor J’s decision in Barton v Armstrong [1969] 2 NSWR 451. He accepted (at 318) Taylor J’s view that “a threat of violence made over the phone could be a threat of immediate violence in given circumstances, and thus an assault and accordingly I am not to be taken as saying that merely because a threat is made by phone it could thereby constitute an assault”. 64 In Knight, it was the absence of any evidence that the threats were threats of immediate violence which resulted in the appellant’s successful challenge to his conviction of assault. 65 It has long been held that threats which put a reasonable person in fear or apprehension of physical violence may constitute an assault even though the victim did not know when that physical violence may be effected: Barton v Armstrong [1969] 2 NSWR 451 at 454–455. In the latter judgment Taylor J made it clear that the essence of an assault constituted by threat rather than actual striking was the “expectation of physical contact which the offender creates in the mind of the person whom he threatens”. While his Honour acknowledged that in some cases an immediate ability to carry out the threat was one way of creating the fear of apprehension (455.45), his Honour also held that if the threat produced the fear or apprehension of physical violence then the law was breached even though the victim did not know when that physical violence may be effected. It was in that context that his

Honour held that threats uttered over the telephone which produced the fear or apprehension of physical violence may constitute an assault even though the victim did not know when that physical violence may be effected (455.50). [page 210] 66 Another illustration of the circumstances in which an assault might be constituted by a verbal threat sufficient to raise a reasonable apprehension of violence in Ms Miner’s mind can be seen from Zanker v Vartzokas (1988) 34 A Crim R 11 to which the Crown referred. 67 In that case, a woman accepted a lift from the accused. While the van was moving, he offered her money for sexual favours. She rejected the advances and demanded to be let out of the vehicle. The accused accelerated, saying “I am going to take you to my mate’s house. He will really fix you up.” She was put in fear and jumped out of the moving vehicle. The magistrate dismissed a charge of assault occasioning actual bodily harm on the basis that there was no fear of immediate violence, but fear of future violence. On appeal, White J held the woman was put in fear of relatively immediate imminent violence which continued to have effect as the vehicle continued toward the threatened destination while she was unlawfully imprisoned and at the mercy of the accused. That was sufficient for the charge of assault to be made out. 68 His Honour referred (at 14) to the fallacy in the defendant’s argument as being “the assumption that the words had effect only at the time when they were uttered and heard whereas they were ringing presently in her ears as a continuing threat, without the necessity for repetition, second by second as they progressed towards the house”. 69 After referring to various authorities, including Barton v Armstrong which required immediacy or imminence of the feared physical violence to constitute assault, White J gave the following illustration (at 17–18): During the course of argument, some examples were canvassed. In a hypothetical example, I asked counsel to assume that the defendant was threatening the victim in a

remote scrub area where he was stalking her and calling out threats to rape her if and when he caught her. I also asked counsel to assume that the defendant could catch her and carry out his threat at any time he wished and that both he and she knew this was so. While he was taking no immediate steps to carry out his threats he continued to pursue her because he enjoyed the prolongation of her fear. I expressed the opinion that his original words uttered in those circumstances constituted an assault, for the reasons already given, namely because her fear was a continuing fear induced by his original words in a situation where he remained in a position of dominance and in a position to carry out the threatened violence at some time not too remote, thus keeping the apprehension, the gist of assault, ever present in the victim’s mind. The facts in the present appeal are closely analogous to the facts in the hypothetical situation. 70 This is an apt analogy. Indeed, as the Crown submitted, it might be thought the violence threatened to Ms Miner was even more immediate than it was in Zanker, because the appellant “had already been violent towards [Ms Miner] in the house and had a short time before come at her in the car”. 71 I accept the Crown’s submissions. The authorities are clear that a threat to strike a person even at such a distance as to make contact impossible may constitute an assault if it instils a fear of immediate violence in the mind of the hearer. 72 The appellant’s challenge to the judge’s summing-up based on the proposition that “an offer to strike a person at such a distance as to make contact impossible is not an assault” is wrong as a matter of law. 73 I next turn to consider the appellant’s complaint that the trial judge did not direct the jury that in order to prove that the appellant had assaulted Ms Miner, the Crown had to prove that Ms Miner apprehended the infliction of immediate unlawful force to her person. The directions given — Count 4 74 The trial judge directed the jury as a matter of law that Count 4

required the Crown to prove beyond reasonable doubt that the accused had assaulted Gina-Marie Miner. She explained that “assault” was a “word in common everyday use” and that it might conjure up in the jury’s mind “the image of a person striking another person physically [page 211] whether with a hand, a fist or some hand-held implement”. She directed the jury that there are differences between the law and everyday parlance. She then said: For example, if I raised my hand at you in a menacing fashion and thereby caused you to fear that you were about to be struck then the law says that I have assaulted you. Ordinary use of the word assault would probably not have extended that far … alternatively, and this is relevant in respect of Count 4, an assault can be a threat of striking, touching or application of force. That is the threat of those things occurring again without consent, be (sic) intentional, not an accidental threat and it is without lawful excuse … in Count 4 what the Crown relies on is the threat of an assault, the threat of an application of force and then the other elements 2, 3 and 4. (Emphasis supplied) 75 The latter reference was a reference to MFI 101 where, in relation to the definition of assault and, in particular, an assault constituted by a threat of striking, touching or application of force, elements 2, 3 and 4 were set out as: 1.

It is without consent.

2.

It is intentional (not accidental).

3.

It is without lawful excuse.

76 When dealing with the facts in relation to Count 4, the trial judge reminded the jury that the Crown relied upon the “threat of striking, touching or application of force”. She reminded the jury that the Crown relied on the continuing threat, according to Ms Miner’s evidence, that the accused had said he was going to kill her when she was out in the car, that he smashed the car window, that she ran away but could not stand up and was bent over with

her head at her knees and that she heard the accused calling out: “come out, come out wherever you are”, that Ms Miner had hidden in a shed in a stack of tyres and heard the appellant say words to two men in the shed to the effect of “I am hunting”, and saw the accused with a rifle in his hands, a pistol down the front of his pants and a bayonet in one of his belt loops with his right hand on the trigger of the rifle and the left hand supporting the barrel. She drew the jury’s attention to the fact that the accused completely denied hunting the complainant and said he had remained in the house at all times until the police attended the property. 77 After recounting these facts the trial judge said to the jury: That evidence the Crown relies on to satisfy you beyond reasonable doubt that the accused threatened the complainant with immediate and unlawful violence. That is again that there was no consent, it was intentional and it was without lawful excuse which, as I say does not arise in circumstances as alleged by the Crown. 78 She then reminded the jury of the accused’s complete denial of ever hunting the complainant in the early hours of 24 November 2001. 79 In my view her Honour’s direction to the jury adequately identified the elements of the offence. It might be accepted that in her direction of law she did not parrot the words “immediate violence” but she used the phrase “about to be struck”, which, in my view, is synonymous. That was a correct statement of the law. 80 The jury would clearly have understood her explanation of the concept of an assault constituted by a threat rather than an actual blow as requiring a sense of immediate apprehension of violence. Indeed, the fact that the appellant’s counsel did not complain to her Honour about this direction makes it clear that in the atmosphere of the trial that was the sense conveyed by her remarks. [page 212] 81 Further, when dealing with the facts, her Honour expressly explained that the Crown relied upon the evidence she had summarised to satisfy them beyond reasonable doubt that the accused threatened the complainant with immediate and unlawful

violence — thus their attention was expressly drawn to the requirement of immediacy. … The no evidence ground 84 The appellant also complained that the evidence was not sufficient to convict the appellant of assault. [It was]… submitted that the complainant had given no evidence that she feared immediate violence and that it was not open to the jury, absent such evidence, to infer that that was her state of mind. 85 In my opinion that submission should be rejected for two reasons. First, although it must be accepted that Ms Miner did not state, in relation to the events which commenced with the smashing of the Laser’s passenger window, that she feared the appellant was about to wreak violence upon her, her actions were those of a frightened person. She had fled a house in which (on her account) the appellant had struck her repeatedly. She had first sought refuge in her car, then (unsuccessfully) in a neighbour’s house. When she was unable to raise the neighbours she hid in a shed under truck tyres. She remained hidden while observing the appellant moving nearby calling out for her whilst carrying a rifle, what appeared to be a pistol and a bayonet. She did not emerge from her hiding place until the police arrived. Her reaction to the appellant’s conduct was compelling evidence upon which the jury could rely to infer that she was afraid the appellant was about to apply force to her in some manner, whether by using the weapons with which he was armed or by striking or kicking her as he had earlier in that morning’s episode. 86 … [I]t is significant that no complaint was raised by counsel who appeared for the appellant at his trial (who was not counsel who appeared on the appeal). The appellant’s present complaint that there was no express evidence that the complainant feared immediate violence appears to me to have been developed as a result of the deplorable practice of subjecting a summing-up, after the trial is over, to a minute and detailed textual criticism in the hope of finding something on which to base an argument. In my view this complaint has no merit. It was of no significance to counsel at the trial and it should not be permitted to be raised on appeal. … [Studdert and Howie JJ agreed with McColl JA that the appeal

against conviction should be dismissed.]

Fault element of assault 5.9 In Fagan (see 5.6) the mental element for assault was described as an act that is performed ‘intentionally’ — or possibly ‘recklessly’. The question of what recklessness means, in the context of assault, was considered by the Supreme Court of South Australia in MacPherson v Brown. MacPherson v Brown (1975) 12 SASR 184 Supreme Court of South Australia [The appellant was a student at Flinders University and Dr Gibbs was a lecturer there. There had been an occupation of the university’s administration building by students, and Dr Gibbs, and others, were involved in reoccupying that building. The next day, [page 213] as Dr Gibbs was passing a crowd of students, he was physically surrounded by 30 or so students, including the appellant. There was an exchange of words. The magistrate found that the words were not threatening but were intended to ‘harass Gibbs by questioning him in public’. Although Gibbs did at some stage fear physical violence that fear was not long lasting. After 10 to 15 minutes, Gibbs was allowed to proceed on his way. The magistrate convicted the appellant of assault. He appealed from that decision.] Bray CJ: … The learned Special Magistrate has decided that there may be a reckless assault and I assume that this is so, as I think that it probably is, but it is not necessary to canvass the matter here. He further decided that that phrase covers not only a case where the defendant knows, though he may not desire, that the victim may be put in fear of immediate unlawful violence by his conduct and nevertheless persists, but also a case where, though he does not know that, he ought to know it. This, as I see it, is another example of the persistent heresy of objective guilt, the defendant being judged not by what he actually foresaw but by what he should as a reasonable man have foreseen. …

“Reckless” is in truth an unfortunate word. In one sense it means acting with foresight of the probable dangerous consequences of the act even without the desire for them. But as Howard says, at pp 56–57: It should be said that although the meaning given to the word “reckless” here is generally accepted (ie involving foresight of the consequences) and in common use, the courts sometimes use it to mean a high degree of negligence ie, a highly blameworthy degree of inadvertence to consequences. In this sense recklessness is synonymous with criminal negligence. The usage adopted in this book is preferred because it avoids possible confusion between certain forms of advertent and inadvertent conduct. (The italics and the words in brackets are mine.) In other words, the term “recklessness” is sometimes confined to advertent conduct and sometimes used to include inadvertent conduct. The resulting confusion is considerable and deplorable. It is much to be desired that the word “reckless” should be confined to action where the relevant consequences are adverted to even if not desired. … 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 and prudent man would have intended, known or foreseen in the circumstances. I put it to Mr Wilson that if his argument were correct a man who drove negligently down the street putting a pedestrian in fear of injury might be guilty of an assault even if he did not know the pedestrian was there or direct his mind to any such possibility. Mr Wilson did not shrink from that result but I do. The analogy of manslaughter was mentioned. But manslaughter is sui generis amongst common law crimes. There, exceptionally, a very high degree of negligence causing death, even though inadvertent, may constitute the mental element in the crime. Even then the degree of negligence must be very high, far higher than that necessary to support a civil action, and in this case the learned Special Magistrate did not direct his attention to the degree of the

negligence of which he found the appellant guilty. But there is no common law crime of causing injury by negligence when the injury falls short of death. There is no crime which stands to assault as murder stands to manslaughter. So, too, negligent conduct is often made punishable by statute: see for example R v Coventry (1938) 59 CLR 633. But we are concerned here only with the common law. I think, therefore, that the learned Special Magistrate was wrong when he said that if a defendant charged with assault indulges in conduct which he ought to know may harm or give cause for belief of imminent harm the necessary intention is there. Actual knowledge is necessary. … [page 214] Zelling J: … There is no doubt that the authorities support the proposition that an assault includes a threat to inflict unlawful force slight or great upon another man, coupled with the intention by the person making the threat to produce the expectation of unlawful physical contact in the mind of the victim, and that it is irrelevant, where this is material, that the person making the threat had neither the intention nor the ability to inflict the unlawful contact which he had induced the victim to expect. After quoting from Kenny’s Criminal Law and Howard’s Australian Criminal Law on these matters, the Magistrate then added to the statement which he had quoted from Professor Howard’s book, the observation that if a defendant indulges in conduct which he knows or ought to know may harm or give cause for such a belief then the necessary intention is made out. Here the Magistrate clearly went wrong. The conduct must be intentional in the sense that the accused adverted to the consequences of his reckless conduct. … Dealing first then with an assault strictosensu I have no doubt the learned Magistrate misdirected himself. It was held by Lord Parker LCJ, and James J, Bridge J dissenting on the facts, in Fagan v Commissioner of Metropolitan Police that “An assault is any act which intentionally — or possibly recklessly — causes another person to apprehend immediate and unlawful personal violence.” The word “possibly” in that quotation can now be deleted following the decision of the Court of Appeal in R v Venna [1976] QB 421; [1975] 3 All ER 788 (The Times 1st August 1975), where

the Court of Appeal stated that the mens rea of assault is sufficiently established by proof of the mental element of recklessness. The difficulty, however, with the Magistrate’s finding is that “recklessness” in this context connotes an advertence to the consequences of the defendant’s act or series of acts. His finding that the defendant ought to have known is not sufficient for this purpose. This would appear to follow also from the judgment of the High Court of Australia in Vallance v R (1961) 108 CLR 56, even though this is a decision on the wording of s 13 of the Tasmanian Criminal Code. Personally I wish that those dealing with this branch of the law would cease to use the word ‘reckless’ with its emotional overtones and use the much more accurate periphrasis of conduct by an accused advertent of the relevant consequences. [Zelling J then went on to find, on the facts, that the defendant had committed an assault when he falsely imprisoned Gibbs and would have dismissed the appeal. Jacobs J agreed with Bray CJ. Appeal upheld.]

Stalking, intimidation and domestic violence 5.10 The fact that the threat must be immediate has made it difficult to proceed against people who ‘stalk’ or ‘intimidate’ another person. This has been rectified by s 13 of the Crimes (Domestic and Personal Violence) Act 2007, which creates the offence of stalking or intimidation with intent to cause fear of physical or mental harm. Apprehended domestic violence orders 5.11 In Chapter 1, in the discussion of Kable (see 1.27), the shortcomings in the law’s ability to protect people from future or threatened violence was noted. As indicated in the summary of ‘assault’ (at 5.7), the definition of assault, which requires threats of immediate contact, has made it difficult to proceed against people who stalk or harass others. In the area of domestic violence these issues have been compounded

[page 215] by the difficulties in obtaining evidence of crimes which occur largely in private and where power imbalances make it difficult for victims to speak out. 5.12 In response to these concerns, New South Wales introduced apprehended violence orders (AVOs), which allow a court to make orders restraining a person’s behaviour when there is reason to think that person may be violent towards or stalk or harass another. Originally limited to people in domestic relationships (apprehended domestic violence orders (ADVOs)), the scheme has been expanded to allow neighbours and other people who have not been in a domestic relationship with the alleged harasser to obtain what are popularly called ‘restraining orders’ (APVOs, or apprehended personal violence orders). 5.13 The power of a court to make an ADVO is set out in s 16 of the Crimes (Domestic and Personal Violence) Act 2007. The power of a court to make an APVO is set out in s 19. Although the two sections are very similar, note that they are not identical. Crimes (Domestic and Personal Violence) Act 2007 16 Court may make apprehended domestic violence order (1) A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears: (a) the commission by the other person of a personal violence offence against the person, or (b) the engagement of the other person in conduct in which the other person: (i)

intimidates the person or a person with whom the person has a domestic relationship, or

(ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order. (2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if: (a) the person is a child, or (b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function, or (c) in the opinion of the court: (i)

the person has been subjected at any time to conduct by the defendant amounting to a personal violence offence, and

(ii) there is a reasonable likelihood that the defendant may commit a personal violence offence against the person, and (iii) the making of the order is necessary in the circumstances to protect the person from further violence. (3) For the purposes of this section, conduct may amount to intimidation of a person even though: (a) it does not involve actual or threatened violence to the person, or (b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.

[page 216] 5.14 The effect of s 16 (and s 19) is that the court must be satisfied, on the balance of probabilities, that a person for whose protection the order is made:

has reasonable grounds to fear (an objective test); and does, in fact, fear (a subjective test) that they may be subject to violence, intimidation or stalking. 5.15 A personal violence offence is defined by s 4 of the Crimes (Domestic and Personal Violence) Act 2007 as, among other things: murder; manslaughter; attempted murder; wounding or inflicting grievous bodily harm with intent; assault; sexual assault; and other offences intended to injure. 5.16 Before making an apprehended violence order, the court is required to make inquiries into the complainant’s state of mind: does he or she fear violence, and is that fear reasonable? The inquiry is not directed to whether the offender intends violence. If the complainant fears, and has reasonable grounds to fear, that he or she may be the victim of a personal violence offence or other conduct identified in the section, the court may make the order. 5.17 An order may be made if the person seeking protection fears conduct other than physical violence, for example, conduct that amounts to intimidation or stalking (that is, following ‘… a person about or the watching or frequenting of the vicinity of or an approach to a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure

activity’2). The fact that intimidation is not limited to threats of physical violence is made clear by ss 16(3) and 19(3). 5.18 When making an apprehended violence order a court can tailor the order to protect the individual applicant. The court’s discretion is very wide and it ‘may impose such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable to the court …’ (s 35(1)). 5.19 Once an ADVO or APVO is made, it is an offence (punishable by a maximum of two years’ imprisonment and/or a fine of 50 penalty units,3 to breach it. Section 14 of the Act requires that, if the breach involves actual physical violence, the offender should go to gaol. [page 217] 14 Offence of contravening apprehended violence order (1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence. Maximum penalty: Imprisonment for 2 years or 50 penalty units, or both. … (4) Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person. (5) Subsection (4) does not apply if the person convicted was under 18 years of age at the time of the alleged offence. (6) Where the court determines not to impose a sentence of imprisonment, it must give its reasons for not doing so.

5.20 The value of this scheme is that it allows the court to create a private legal regime to suit the needs of the person in need of protection. The court can impose whatever restrictions are required. For example, the court could restrict

the defendant’s behaviour so that he or she is not allowed near the applicant’s home or not allowed to approach the person in need of protection at his or her workplace or to contact them by telephone. The consequence is that conduct that would be legal without such an order becomes illegal for the defendant. The police can take action against the defendant for breaching the terms of the order without the need to wait for actual violence.

BATTERY Physical elements of battery 5.21 ‘Battery’ means the actual, intentional or reckless, bringing about of violent, offensive, or otherwise nonconsensual, contact with the person of another. The physical elements of the offence are a voluntary act (see 2.6–2.7; see also Chapter 9 on duress, necessity and self-defence), which directly and immediately results in such contact. Collins v Wilcock [1984] 3 All ER 374 Queen’s Bench Division (UK) [The appellant was approached by police who wanted to ask her some questions. She refused to co-operate and walked away. One of the police officers grabbed her arm in order to restrain her so that they could ask their questions. The appellant scratched the officer and was charged, and convicted, of assaulting a police officer in the execution of her duty. On appeal, the appellant argued that the officer had assaulted her when she grabbed her arm in order to restrain her, the officer having no lawful authority to force the appellant to stop and answer questions. Accordingly, so it was argued, the officer was not acting in the execution of her duty when scratched by the appellant.] [page 218]

Robert Goff LJ: … The law draws a distinction, in terms more easily understood by philologists than by ordinary citizens, between an assault and a battery. An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint on another’s freedom of movement from a particular place. The requisite mental element is of no relevance in the present case. We are here concerned primarily with battery. The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery. So Holt CJ held in 1704 that ‘the least touching of another in anger is a battery’: see Cole v Turner 6 Mod Rep 149, 90 ER 958. The breadth of the principle reflects the fundamental nature of the interest so protected; as Blackstone wrote in his Commentaries, ‘the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner’ (see 3 Bl Com 120). The effect is that everybody is protected not only against physical injury but against any form of physical molestation. But so widely drawn a principle must inevitably be subject to exceptions. For example, children may be subjected to reasonable punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable force may be used in self-defence or for the prevention of crime. But, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped

(see Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684). Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. We observe that, although in the past it has sometimes been stated that a battery is only committed where the action is ‘angry, or revengeful, or rude, or insolent’ (see 1 Hawk PC c 62, s 2), we think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception. Among such forms of conduct, long held to be acceptable, is touching a person for the purpose of engaging his attention, though of course using no greater degree of physical contact than is reasonably necessary in the circumstances for that purpose. So, for example, it was held by the Court of Common Pleas in 1807 that a touch by a constable’s staff on the shoulder of a man who had climbed on a gentleman’s railing to gain a better view of a mad ox, the touch being only to engage the man’s attention, did not amount to a battery (see Wiffin v Kincard (1807) 2 Bos & PNR 471, 127 ER 713; for another example, see Coward v Baddeley (1859) 4 H & N 478, 157 ER 927). But a distinction is drawn between a touch to draw a man’s attention, which is generally acceptable, and a physical restraint, which is not. So we find Parke B observing in Rawlings v Till (1837) 3 M & W 28 at 29, 150 ER 1042, with reference to Wiffin v Kincard, that “There the touch was merely to engage a man’s attention, not to put a restraint on his person”. Furthermore, persistent [page 219] touching to gain attention in the face of obvious disregard may transcend the norms of acceptable behaviour, and so be outside the exception. We do not say that more than one touch is never permitted; for example, the lost or distressed may surely be permitted a second touch, or possibly even more, on a reluctant or impervious sleeve or shoulder, as may a person who is acting reasonably in the exercise of a duty. In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend on the facts of the particular case.

[It was held that the conduct of the police was an unlawful assault. Appeal upheld.]

5.22 In R v DMC (2002) 137 A Crim R 246, the court found that the question — whether the accused’s conduct in attending his sister-in-law’s home in order to forcibly take his 15-year-old daughter home was ‘physical contact an ordinary incident of social intercourse’ — should have been left for the jury to decide.

Fault element of battery 5.23 A battery is clearly established if the defendant intended to apply physical force to the victim without lawful authority or consent. The question has also arisen whether one can be guilty of ‘battery’ due to recklessness. R v Williams (1990) 50 A Crim R 213 NSW Court of Criminal Appeal [The appellant was charged with malicious wounding, and, in the alternative, with assault occasioning actual bodily harm. He was acquitted of the first charge, but convicted of the second.] Badgery-Parker J: In the early hours of the morning of 12 August 1984 two incidents occurred in the premise of a licensed club at Narrandera. They were separated by at most a few minutes, and each involved the appellant and one Leslie French. The first was a fight in the course of which the appellant received a significant wound to his face when struck with a glass. At a later date but before the trial out of which this appeal arises, French was acquitted by a jury upon a charge relating to that incident. The second was a further fight between the two men, which was begun by the appellant, he no doubt seeking revenge for the injury that he had sustained. In this struggle, the appellant bit French’s ear, severing a portion of it … The substance of the first ground of appeal is that the trial judge wrongly directed the jury that they could find an assault proved, if

satisfied that the accused bit Mr French either deliberately or recklessly. Most commonly (but not essentially) the assault which supports a conviction for the offence under s 59 of the Crimes Act 1900 (NSW) will (as here) involve a battery, an actual application of force. It is well established that such actual application of force may be deliberate, that is the assailant intended to strike the complainant, or reckless, that is the assailant struck out foreseeing or knowing that he might hit somebody and not caring if he did: see Venna [page 220] [1976] QB 421 at 426–429. In particular (at 429), James LJ (delivering the judgment of the Court of Appeal Criminal Division) said: In our view the element of mens rea in the offence of battery is satisfied by proof that the defendant intentionally or recklessly applied force to the person of another … We see no reason in logic or in law why a person who recklessly applies physical force to the person of another should be outside the criminal law of assault. In many cases the dividing line between intention and recklessness is barely distinguishable. This is such a case. So, it seems to me, is the present case. In Revell (unreported, Court of Criminal Appeal, NSW, 17 December 1976), O’Brien J (with whom Street CJ and Collins J agreed) referred to Venna with approval. His Honour said: … a reading of the judgment generally indicates that the court was of the view that a reckless application of any degree of violence which in fact caused actual bodily harm was sufficient mens rea to constitute the offence. I am of the opinion that this ground of appeal fails. … The appellant’s next ground of appeal was to this effect: that, if it were correct that an assault might (as I have held) be committed by a reckless act, his Honour failed adequately to direct the jury as to the meaning of recklessness. Again I preface my remarks with the comment that the role of this Court is not to subject a summing up to meticulous scrutiny and to intervene merely because directions

might have been given more fully or better expressed, so long as they convey to the jury what is necessary to be known by the jury in order to discharge its function. The word ‘reckless’ is a word well known in ordinary speech, and a person is said to be ‘reckless’ who acts without regard to the possible consequences of the act in question. In most contexts the law gives to the word the same meaning that it has in ordinary speech. In the specific context of the definition of murder, it has been held that ‘reckless indifference to human life’ entails foresight of the probability (not just the possibility) that death will result: Crabbe (1985) 156 CLR 464; 16 A Crim R 19. But that is not the sense in which the word ‘reckless’ is ordinarily used. … [His Honour referred to the concept of recklessness as it operates in the context of sexual assault (see 6.7–6.42), and continued:] In this context, the concept of recklessness is no more than is conveyed by the ordinary meaning of the word: Hemsley (1988) 36 A Crim R 334. It involves no more than foresight of the possibility of harmful consequence. It is true that in some contexts the word is used in ordinary speech as importing a high degree of negligence, as perhaps when one speaks of driving in a reckless manner, but as a description of the conduct of a person involved in a fight with another man, its meaning in ordinary speech is no different from its meaning in law, and in my view there was absolutely no necessity for his Honour to expand upon the meaning of recklessness in any fashion other than as he in fact did. Dealing with the meaning of ‘malicious’ his Honour said: There is an alternative and that is if you are not satisfied that the accused intended to do something to cause physical harm or injury to Mr French but that he was so indifferent to Mr French’s suffering that he did it recklessly or wantonly, that is to say in this case that he bit something, the ear, not caring whether it did or did not cause harm to Mr French, physical harm. You will see the consideration of that question involves you considering the state of mind of the accused … His Honour repeated that direction further down the same page. That is an adequate description of the ordinary meaning of the term ‘reckless’, and it made the all important point that the test was

subjective, that the jury were concerned with the state of mind of the accused himself. It is true that that direction was given specifically in the context of the first count in expounding the meaning of the word ‘maliciously’, and not specifically in the context of the second count where his Honour contented himself with directing [page 221] the jury that it was sufficient if they were satisfied by ‘that he deliberately bit the ear or recklessly bit the ear of Mr French’. However, as the trial had been short, so too the summing up was short, and there is no reason to believe that the jury would not have understood that the word ‘reckless’ in relation to reckless biting carried the ordinary meaning of the word in ordinary speech, just as it did in relation to recklessness as part of the concept of maliciousness. In my view the directions were adequate and this ground of appeal fails also. … [Gleeson CJ and Wood J agreed with the reasons and concluding remarks of Badgery-Parker J. Appeal dismissed.]

AGGRAVATED ASSAULTS 5.24 As stated at 5.2, ‘assault’ (meaning either assault or battery) is a building-block offence. Apart from simple or common assault under s 61 (also referred to as ‘assault simpliciter’), there can be aggravated assaults. Assaults may be aggravated because of the damage done, for example, assault occasioning actual bodily harm (Crimes Act s 59) or because of the office or status of the person assaulted, for example, assault of a police officer (s 60) or assault of a law enforcement officer other than a police officer (s 60A). Each of these offences requires an ‘assault’ as the base element, coupled with the aggravating factor. 5.25 In Williams (see 5.23) the court considered the offence of assault occasioning actual bodily harm. It was held (in parts of the judgment omitted from the extract) that there

was no obligation to prove an intention to cause actual bodily harm. If the assault (battery) took place and actual bodily harm was the consequence, the offence was made out without the need to establish any fault element other than the necessary intent, or foresight, for common assault. 5.26 With respect to assaults that are aggravated by the damage caused, two concepts that can be defined are ‘wounding’ and ‘grievous bodily harm’.

Wounding 5.27 In R v Shepherd [2003] NSWCCA 351, the Court of Criminal Appeal considered the meaning of ‘wounding’. Kirby J (Meagher JA and Shaw J agreeing) said that: 31. … The term is not defined by the Act. A wounding is generally assumed to be ‘the infliction of an injury which breaks the continuity of the skin’ (cf R v Newman (1948) ALR 109 at 110). In R v Smith (1837) 8 Carrington & Payne 173, the prisoner was charged with assault, cutting and wounding the victim on the left side of the face. It was the Crown case that he had struck the victim with a hammer, breaking his jaw in two places. The hospital reported that the skin was broken internally, but not externally. The issue arose whether that was ‘wounding’ within the Statute. The Court held it was. The case is generally cited for the following proposition (see Howie & Johnson, ‘Annotated Criminal Legislation of NSW’ (2002/2003 Ed)): (p 653)

[page 222] ‘Wounds’ is an injury involving the breaking or cutting of the interior layer of the skin (dermis) and the breaking of the outer layer (epidermis) is not sufficient. 32. A wound may be inflicted by a fist. No instrument or weapon need be used (R v Bullock (1868) LR 1 CCR 115, per Coxburn CJ at 117). However, a split lip or, as here, upper

and lower lips, inflicted by a punch, is a ‘wounding’ only in the most technical sense.

Grievous bodily harm 5.28 Grievous bodily harm is bodily injury of a really serious kind (DPP v Smith [1961] AC 290; [1960] 3 All ER 161). In R v King (2003) 59 NSWLR 472 (see 2.15) it was held that the killing of the foetus can amount to the infliction of grievous bodily harm upon the mother. The definition of ‘grievous bodily harm’ is now included in s 4 of the Crimes Act: 4 Definitions … Grievous bodily harm includes: (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).

Note the definition is non-exhaustive, and includes the infliction of a ‘grievous bodily disease’ such as HIV-AIDS. (As to consent in this context see 5.40.) 5.29 In 2007 the Crimes Act was amended to replace ‘malice’ with ‘recklessness’ as a fault element in relation to various offences. In Blackwell v R the court considered ‘recklessness’ as a fault element in the context of an offence under the provisions of ss 33 and 35 as they then were. Blackwell v R (2011) 81 NSWLR 119; 208 A Crim R 392; [2011]

NSWCCA 93 NSW Court of Criminal Appeal [The appellant had had been convicted on 18 December 2008 of maliciously inflicting grievous bodily harm with intent contrary to s 33(1)(b) of the Crimes Act, by ‘glassing’ a man in a Sydney hotel.] Beazley JA: In R v Cunningham [1957] 2 QB 396 the English Court of Criminal Appeal approved the following as an accurate statement of the law: In any statutory definition of a crime malice … [requires] either: (1) an actual intention to do the particular kind of harm that in fact was done; or [page 223] (2) recklessness as to whether such harm should occur or not (ie, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). [His Honour then discussed several UK authorities and the decision of the High Court of Australia in Banditt v R, and continued:] The effect of this line of authority is that where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence. Subject to the question of what is the relevant consequence for the purposes of s 35(2), the suggested jury direction in the Criminal Trial Court Bench Book reflects this approach. However, the appellant submitted that this Court should apply the decision of the Victorian Court of Appeal in Campbell. In that case, the Court was concerned with the following provision: “A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence.” Hayne JA and Crockett AJA said, at 592: In our view there is little doubt that the trial judge misdirected the jury. We have no doubt that the appropriate test to apply is that it is possession of foresight

that injury probably will result that must be proved. As said by the High Court in its joint judgment in R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 at 469–70: 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 … 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. Whilst that citation is from a case specifically regarding murder, the same principles are relevant. Indeed the Court of Criminal Appeal in R v Nuri [1990] VicRp 55; [1990] V.R. 641 said at 643: Presumably conduct is relevantly reckless if there is foresight on the part of the accused of the probable consequences of his actions and he displays indifference as to whether or not those consequences occur. In my opinion, this Court should not follow the Victorian decision of Campbell. That decision is inconsistent with authority in the High Court, New South Wales and in England. The Attorney General expressly referred to the test for recklessness stated by Hunt J in Coleman when commenting upon the proposed legislative changes to s 35. Accordingly, in this case, the jury should have been directed in terms that if the appellant was to be found guilty on the alternative count, they had to be satisfied that he realised that by thrusting the glass into Mr Ward’s face, it was possible that grievous bodily harm, that is really serious injury, would be inflicted and yet went ahead and acted.

5.30 In Blackwell, therefore, the court held that the offence of ‘recklessly inflicting grievous bodily harm’ required recklessness by the accused as to the causing of grievous bodily harm, not merely some physical harm as had been the case before 2007. In 2012 the New South Wales Parliament passed the Crimes Amendment (Reckless Infliction of Harm) Act

2012. (This amendment commenced on 21 June 2012.) This further amended the Act in relation to offences involving the reckless infliction of grievous bodily harm and reckless wounding. The effect of the amendments was to change the Act to the pre-Blackwell position. That means, for the following offences, only recklessness as to the causing of actual bodily harm — not grievous bodily harm — is required to satisfy the mental element of grievous bodily harm: [page 224] 35 60 60A 60E 105A

Reckless grievous bodily harm or wounding; Assault and other actions against police officers; Assault and other actions against law enforcement officers (other than police officers); Assaults etc at schools; Definitions for the purposes of ss 109–113.

ASSAULT AND BATTERY SUMMARISED 5.31 1.

In criminal law an ‘assault’, in the broader sense of that term, is either an assault (in the restricted sense) or a battery. (In tort law, it is necessary to maintain a distinction between assault and battery: see Trevitt v NSW TAFE Commission [2001] NSWCA 363.)

2.

Hostile intent is not essential (Boughey v R (1986) 161 CLR 10). Further, while assault and battery may be committed recklessly, where the accused foresaw the possibility of inflicting contact, or inflicting fear of contact, and ignored the risk, on the current state of the authorities, mere inadvertence to the risk is insufficient (MacPherson v Brown (1975) 12 SASR 184; R v Coleman (1990) 19 NSWLR 467). Compare the current

state of the authorities with respect to sexual assault (see 6.7–6.42). 3.

‘Assault’ in the restricted sense is characterised as follows: 3.1. It is any act (not an omission) which directly and intentionally or recklessly causes another person to apprehend immediate and non-consensual (for example, violent or offensive) contact (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; [1968] 3 All ER 442; Zanker v Vartzokas (1988) 34 A Crim R 11). 3.2. There may be an assault where the fear is of relatively immediate violence of a continuing nature, for example, during an unlawful imprisonment (Zanker v Vartzokas (1988) 34 A Crim R 11). 3.3. Assault can be committed without touching another person (R v Phillips (1971) 45 ALJR 467). 3.4. There can be assault even though the victim is not put in fear (Brady v Schatzel [1911] St R Qd 206), but there is no assault if the intended victim is unaware of the accused’s act. 3.5. It is not assault if the threat raises an apprehension that violence may be inflicted at some future time. General threats are not assaults (R v Knight (1988) 35 A Crim R 314). 3.6. The fact that the threat must be immediate has made it difficult to proceed against people who ‘stalk’ or ‘intimidate’ other people, but see the Crimes Act Pt 15A and the discussion on apprehended violence orders at 5.10–5.20. [page 225]

4.

‘Battery’ is characterised as follows: 4.1. It is a direct and intentional or reckless application of non-consensual contact with another person (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; [1968] 3 All ER 442). 4.2. It can be a continuous act, so that an unintentional battery can become a crime where an accused intentionally maintains physical force (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; [1968] 3 All ER 442). 4.3. The Crown must prove that the victim did not consent to the touching, but consent will be no defence to actions that are designed to inflict serious injury for its own sake (R v Brown [1994] 1 AC 212; [1993] 2 All ER 75, extracted at 5.32).

CONSENT Limits of consent 5.32 An essential element of assault and battery is that it is ‘without consent’. The consent of a person being touched will, ordinarily, make the touching lawful. However, there are some acts which remain criminal even though they are committed with the ‘consent’ of the ‘victim’. Identifying any principle that states where the line is to be drawn in such cases is difficult, if not impossible. R v Brown [1994] 1 AC 212; [1993] 2 All ER 75 House of Lords (UK) [The appellants belonged to a group of sado-masochistic homosexuals who, over a 10-year period from 1978, willingly participated in the commission of acts of violence against each

other, including genital torture, for the sexual pleasure which it engendered in the giving and receiving of pain. The passive partner or victim in each case consented to the acts being committed and suffered no permanent injury. The activities took place in private at a number of different locations, including rooms equipped as torture chambers at the homes of three of the appellants. Video cameras were used to record the activities and the resulting tapes were then copied and distributed among members of the group. The tapes were not sold or used other than for the delectation of members of the group. The appellants were tried on charges of assault occasioning actual bodily harm, contrary to s 47 of the Offences against the Person Act 1861, and unlawful wounding, contrary to s 20 of that Act. The Crown’s case was based largely on the contents of the video tapes. Following a ruling by the trial judge that the consent of the victim afforded no defence to the charges, the appellants pleaded guilty and were sentenced to terms of imprisonment. The appellants appealed, contending that a person could not be guilty of assault occasioning actual bodily harm or unlawful wounding in respect of acts carried out in private with the consent of the victim.] Lord Templeman: … In the present case each of the appellants intentionally inflicted violence upon another (to whom I shall refer as “the victim”) with the consent of the [page 226] victim and thereby occasioned actual bodily harm or in some cases wounding or grievous bodily harm. Each appellant was therefore guilty of an offence under s 47 or s 20 of the 1861 Act unless the consent of the victim was effective to prevent the commission of the offence or effective to constitute a defence to the charge. In some circumstances violence is not punishable under the criminal law. When no actual bodily harm is caused, the consent of the person affected precludes him from complaining. There can be no conviction for the summary offence of common assault if the victim has consented to the assault. Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating. Surgery involves intentional

violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities. In earlier days some other forms of violence were lawful and when they ceased to be lawful they were tolerated until well into the nineteenth century. Duelling and fighting were at first lawful and then tolerated provided the protagonists were voluntary participants. But, where the result of these activities was the maiming of one of the participants, the defence of consent never availed the aggressor: see 1 Hawkins’ Pleas of the Crown (8th ed, 1824) ch 15. A maim was bodily harm whereby a man was deprived of the use of any member of his body which he needed to use in order to fight but a bodily injury was not a maim merely because it was a disfigurement. The act of maim was unlawful because the King was deprived of the services of an able-bodied citizen for the defence of the realm. Violence which maimed was unlawful despite consent to the activity which produced the maiming. In these days there is no difference between maiming on the one hand and wounding or causing grievous bodily harm on the other hand except with regard to sentence. When duelling became unlawful, juries remained unwilling to convict but the judges insisted that persons guilty of causing death or bodily injury should be convicted despite the consent of the victim. Similarly, in the old days, fighting was lawful provided the protagonists consented because it was thought that fighting inculcated bravery and skill and physical fitness. The brutality of knuckle fighting however caused the courts to declare that such fights were unlawful even if the protagonists consented. Rightly or wrongly the courts accepted that boxing is a lawful activity. … [His Lordship proceeded to review the authorities and continued:] Duelling and fighting are both unlawful and the consent of the protagonists affords no defence to charges of causing actual bodily harm, wounding or grievous bodily harm in the course of an unlawful activity.

The appellants and their victims in the present case were engaged in consensual homosexual activities. The attitude of the public towards homosexual practices changed in the second half of this century. Change in public attitudes led to a change in the law. … [His Lordship then traced legislative changes that decriminalised homosexual behaviour. He continued:] The question whether the defence of consent should be extended to the consequences of sado-masochistic encounters can only be decided by consideration of policy and [page 227] public interest. Parliament can call on the advice of doctors, psychiatrists, criminologists, sociologists and other experts and can also sound and take into account public opinion. But the question must at this stage be decided by this House in its judicial capacity in order to determine whether the convictions of the appellants should be upheld or quashed. Counsel for some of the appellants argued that the defence of consent should be extended to the offence of occasioning actual bodily harm under s 47 of the 1861 Act but should not be available to charges of serious wounding and the infliction of serious bodily harm under s 20. I do not consider that this solution is practicable. Sado-masochistic participants have no way of foretelling the degree of bodily harm which will result from their encounters. The differences between actual bodily harm and serious bodily harm cannot be satisfactorily applied by a jury in order to determine acquittal or conviction. Counsel for the appellants argued that consent should provide a defence to charges under both ss 20 and 47 because, it was said, every person has a right to deal with his body as he pleases. I do not consider that this slogan provides a sufficient guide to the policy decision which must now be made. It is an offence for a person to abuse his own body and mind by taking drugs. Although the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally. In any event the appellants in this case did not mutilate their own bodies. They

inflicted bodily harm on willing victims. Suicide is no longer an offence but a person who assists another to commit suicide is guilty of murder or manslaughter. The assertion was made on behalf of the appellants that the sexual appetites of sadists and masochists can only be satisfied by the infliction of bodily harm and that the law should not punish the consensual achievement of sexual satisfaction. There was no evidence to support the assertion that sado-masochist activities are essential to the happiness of the appellants or any other participants but the argument would be acceptable if sadomasochism were only concerned with sex as the appellants contend. In my opinion sado-masochism is not only concerned with sex. Sado-masochism is also concerned with violence. The evidence discloses that the practices of the appellants were unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless. … In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty and result in offences under ss 47 and 20 of the 1861 Act. … Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised. I would answer the certified question in the negative and dismiss the appeals of the appellants against conviction. Lord Jauncey of Tullichettle: … It was accepted by all the appellants that a line had to be drawn somewhere between those injuries to which a person could consent to infliction upon himself and those which were so serious that consent was immaterial. They all agreed that assaults occasioning actual bodily harm should be below the line but there was disagreement as to whether all offences against s 20 of the 1861 Act should be above the line or only those resulting in grievous bodily harm. …

[page 228] In my view the line properly falls to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by s 47 of the 1861 Act, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of s 20 unless the circumstances fall within one of the well-known exceptions such as organised sporting contests and games, parental chastisement or reasonable surgery. … I would therefore dispose of these appeals on the basis that the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer. My Lords I have no doubt that it would not be in the public interest that deliberate infliction of actual bodily harm during the course of homosexual sado-masochistic activities should be held to be lawful. In reaching this conclusion I have regard to the information available in these appeals and of such inferences as may be drawn therefrom. … Two further matters only require to be mentioned. There was argument as to whether consent, where available, was a necessary ingredient of the offence of assault or merely a defence. If it were necessary, which it is not, in this appeal to decide which argument was correct I would hold that consent was a defence to but not a necessary ingredient in assault. … Lord Mustill (dissenting): My Lords, this is a case about the criminal law of violence. In my opinion it should be a case about the criminal law of private sexual relations, if about anything at all. Right or wrong, the point is easily made. The speeches already delivered contain summaries of the conduct giving rise to the charges under the Offences against the Person Act 1861 now before the House, together with other charges in respect of which the appellants have been sentenced, and no longer appeal. Fortunately for the reader my Lords have not gone on to describe other aspects of the appellants’ behaviour of a similar but more extreme kind which was not the subject of any charge on the indictment. It is sufficient to say that whatever the outsider might feel about the subject matter of the prosecutions — perhaps horror, amazement or incomprehension, perhaps sadness — very few

could read even a summary of the other activities without disgust. The House has been spared the video tapes, which must have been horrible. If the criminality of sexual deviation is the true ground of these proceedings, one would have expected that these above all would have been the subject of attack. Yet the picture is quite different. … If repugnance to general public sentiments of morality and propriety were the test, one would have expected proceedings in respect of the most disgusting conduct to be prosecuted with the greater vigour. Yet the opposite is the case. Why is this so? Obviously because the prosecuting authorities could find no statutory prohibition apt to cover this conduct. Whereas the sexual conduct which underlies the present appeals, although less extreme, could at least arguably be brought within ss 20 and 47 of the 1861 Act because it involved the breaking of skin and the infliction of more than trifling hurt. I must confess that this distribution of the charges against the appellants at once sounds a note of warning. It suggests that the involvement of the 1861 Act was adventitious. This impression is reinforced when one considers the title of the statute under which the appellants are charged, “Offences against the Person”. Conduct infringing ss 18, 20 and 47 of the 1861 Act comes before the Crown Court every day. Typically it involves brutality, aggression and violence, of a kind far removed from the appellants’ behaviour which, however worthy of censure, involved no animosity, no aggression, no personal rancour on the part of the person inflicting the hurt towards the recipient and no protest by the recipient. In fact, quite the reverse. Of course we must give effect to the statute if its words capture what the appellants have done, but in deciding whether this is really [page 229] so it is in my opinion legitimate to assume that the choice of the 1861 Act as the basis for the relevant counts in the indictment was made only because no other statute was found which could conceivably be brought to bear upon them. In these circumstances I find it easy to share the opinion expressed by Wills J in R v Clarence (1888) 22 QBD 23 at 33, [1886–90] All ER Rep 133 at 137, a case where the accused had

consensual intercourse with his wife, he knowing and she ignorant that he suffered from gonorrhoea, with the result that she was infected. The case is of general importance, since the Court for Crown Cases Reserved held that there was no offence under ss 47 and 20, since both sections required an assault, of which the wound or grievous bodily harm was the result, and that no assault was disclosed on the facts. For present purposes, however, I need only quote from the report (22 QBD 23 at 30, [1886–90] All ER Rep 133 at 137): … such considerations lead one to pause on the threshold, and inquire whether the enactment under consideration could really have been intended to apply to circumstances so completely removed from those which are usually understood when an assault is spoken of, or to deal with matters of any kind involving the sexual relation or act. I too am led to pause on the threshold. Asking myself the same question, I cannot but give a negative answer. I therefore approach the appeal on the basis that the convictions on charges which seem to me so inapposite cannot be upheld unless the language of the statute or the logic of the decided cases positively so demand. Unfortunately, as the able arguments which we have heard so clearly demonstrate, the language of the statute is opaque, and the cases few and unhelpful. [His Lordship reviewed the authorities and continued:] [T]he existing case law does not sustain a step-by-step analysis of the type proposed above. I thus see no alternative but to adopt a much narrower and more empirical approach, by looking at the situations in which the recipient consents or is deemed to consent to the infliction of violence upon him, to see whether the decided cases teach us how to react to this new challenge. I will take them in turn. 1.

Death

With the exception of a few exotic specimens which have never come before the courts, euthanasia is in practice the only situation where the recipient expressly consents to being killed. As the law stands today, consensual killing is murder. …

2.

Maiming

The act of maiming consisted of “such a hurt of any part of a man’s body, whereby he is rendered less able, in fighting either to defend himself or to annoy his adversary”. … My Lords, I cannot accept that this antique crime any longer marks a watershed for the interrelation of violence and consent. … 3.

Prize-fighting, sparring and boxing

Far removed as it is from the present appeal, I must take a little time over prize-fighting, for it furnishes in R v Coney (1882) 8 QBD 534 one of the very few extended judicial analyses of the relationship between violence and consent … For money, not recreation or personal improvement, each boxer tries to hurt the opponent more than he is hurt himself, and aims to end the contest prematurely by inflicting a brain injury serious enough to make the opponent unconscious, or temporarily by impairing his central nervous system through a blow to the midriff, or cutting his skin to a degree which would ordinarily be well within the scope of s 20 of the 1861 Act. The boxers display skill, strength and courage, but nobody pretends that they do good [page 230] to themselves or others. The onlookers derive entertainment, but none of the physical and moral benefits which have been seen as the fruits of engagement in manly sports. I intend no disrespect to the valuable judgment of McInerney J in Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 when I say that the heroic efforts of that learned judge to arrive at an intellectually satisfying account of the apparent immunity of professional boxing from criminal process have convinced me that the task is impossible. It is in my judgment best to regard this as another special situation which for the time being stands outside the ordinary law of violence because society chooses to tolerate it. 4.

“Contact” sports

Some sports, such as the various codes of football, have deliberate bodily contact as an essential element. They lie at a mid-point between fighting, where the participant knows that his opponent will try to harm him, and the milder sports where there is at most

an acknowledgement that someone may be accidentally hurt. In the contact sports each player knows and by taking part agrees that an opponent may from time to time inflict upon his body (for example by a rugby tackle) what would otherwise be a painful battery. By taking part he also assumes the risk that the deliberate contact may have unintended effects, conceivably of sufficient severity to amount to grievous bodily harm. But he does not agree that this more serious kind of injury may be inflicted deliberately. … 5.

Surgery

Many of the acts done by surgeons would be very serious crimes if done by anyone else, and yet the surgeons incur no liability. Actual consent, or the substitute for consent deemed by the law to exist where an emergency creates a need for action, is an essential element in this immunity; but it cannot be a direct explanation for it, since much of the bodily invasion involved in surgery lies well above any point at which consent could even arguably be regarded as furnishing a defence. Why is this so? The answer must in my opinion be that proper medical treatment, for which actual or deemed consent is a prerequisite, is in a category of its own. 6.

Lawful correction

It is probably still the position at common law, as distinct from statute, that a parent or someone to whom the parent has delegated authority may inflict physical hurt on his or her child, provided that it does not go too far and is for the purpose of correction and not the gratification of passion or rage. … These cases have nothing to do with consent, and are useful only as another demonstration that specially exempt situations can exist and that they can involve an upper limit of tolerable harm. 7.

Dangerous pastimes; bravado; mortification

For the sake of completeness I should mention that the list of situations in which one person may agree to the infliction of harm, or to the risk of infliction of harm by another includes dangerous pastimes, bravado (as where a boastful man challenges another to try to hurt him with a blow) and religious mortification. These examples have little in common with one another and even less with the present case. They do not appear to be discussed in the

authorities although dangerous pastimes are briefly mentioned and I see no advantage in exploring them here. 8.

Rough horseplay

The law recognises that community life (and particularly male community life), such as exists in the school playground, in the barrack-room and on the factory floor, may involve a mutual risk of deliberate physical contact in which a particular recipient (or even an outsider, as in R v Bruce (1847) 2 Cox CC 262) may come off worst, and that the criminal law cannot be too tender about the susceptibilities of those involved. I think it hopeless to attempt any explanation in terms of consent. … [page 231] 9.

Prostitution

Prostitution may well be the commonest occasion for the voluntary acceptance of the certainty, as distinct from the risk, of bodily harm. It is very different from the present case. There is no pretence of mutual affection. The prostitute, as beater or beaten, does it for money. The dearth of reported decisions on the application of the 1861 Act clearly shows how the prosecuting authorities have (rightly in my view) tended to deal with such cases, if at all, as offences against public order. Only in R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 amongst the English cases, has the criminality of sexual beating been explored. The facts were as follows. The accused met the complainant and immediately asked her: “Where would you like to have your spanking, in Hyde Park or in my garage?” Previous telephone conversations had made it clear that he wanted to beat her for sexual gratification. She went with him to his garage, where he caned her in a manner which left seven or eight marks indicative, as a medical witness said, of “a fairly severe beating”. He was charged with indecent assault and common assault. The defence was that the girl consented and that it was for the prosecution to prove that she did not. The chairman of quarter sessions directed the jury that the vital issue was “consent or no consent”, apparently without giving any guidance on burden of proof. After retiring for an hour the jury asked a question about reasonable belief and

consent, which again the chairman answered without reference to burden of proof. The Court of Criminal Appeal (Lord Hewart CJ, Swift and du Parcq JJ) quashed the conviction. The judgment fell into two entirely distinct parts. The first was concerned with the direction on consent and proceeded on the footing that consent was material to guilt and that the burden was on the Crown to disprove it. This part of the judgment concluded ([1934] 2 KB 498 at 506, [1934] All ER Rep 207 at 210): It is, in our view, at least possible that [a correct direction] would have resulted in the acquittal of the appellant, and we are, therefore, compelled to come to the conclusion … that the trial was not satisfactory. On the face of it this conclusion was fatal to the conviction, but the court went on to consider an argument for the Crown that this was not so, because on the facts the striking of the girl was not an act for which consent afforded a defence; so that the absence of a proper direction upon it made no difference. On this question the court held that it was for the jury to decide whether the situation was such that the consent of the girl was immaterial, and that since the issue had never been left to the jury and the trial had proceeded on the footing that consent was the key to the case, the appeal ought to be decided on the same basis. Accordingly, the direction on consent being unsatisfactory the conviction must be quashed. How did the court arrive at the opinion that there was an issue for the jury which ought to have been tried? As I understand it, the course of reasoning was as follows. (1) On the basis of a statement of Cave J in R v Coney (1882) 8 QBD 534 at 539 and the old authorities on which it was founded the court was of the opinion: If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can license another to commit a crime. So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful, it

can never be necessary to prove absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer. (See [1934] 2 KB 498 at 507, [1934] All ER Rep 207 at 210.) (2) ‘There are, however, many acts in themselves harmless and lawful which become unlawful only if they are done without the consent of the person affected’ (see [1934] [page 232] 2 KB 498 at 507, [1934] All ER Rep 207 at 210). (3) ‘As a general rule, although it is a rule to which there are well established exceptions, it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial’ (see [1934] 2 KB 498 at 507, [1934] All ER Rep 207 at 210). (4) The former distinction between maim and other types of injury was out of date. Beating with the intent of doing some bodily harm is malum in se to which consent is not a defence. (5) There are exceptions to this general rule, such as sparring, sport or horseplay. (6) But what happened in the instant case did not fall within any of the established exceptions. (7) For the purpose of the general rule bodily injury meant any hurt or injury calculated to interfere with the health or comfort of the prosecutor; it need not be permanent, but must be more than merely transient or trifling. (8) It was for the jury to decide whether the appellant had inflicted or intended to inflict bodily injury in this sense. My Lords, the first two of these propositions have more than once been criticised as tautologous. I do not accept this, but will not stay to discuss the point for it seems to me that they are right, as the instances of prize-fighting and duelling make plain, and as all the counsel appearing in the present appeal have agreed. The law simply treats some acts as criminal per se irrespective of consent. It is with the next stages in the reasoning that I part company. Donovan was charged only with indecent assault, and the latter is an offence to which, it is common ground, consent is a defence. Yet the Court of Criminal Appeal proceeded on the basis that the critical level of violence was that of actual bodily harm, and that the jury should have been directed to decide whether he was guilty of facts establishing an offence under s 47 of the 1861 Act: an

offence with which he had not been charged. There is something amiss here. What is amiss is that the dictum of Cave J in R v Coney and the old cases said to support it are taken out of their context, which was in each instance the kind of battery regarded for reasons of public policy as being in a special category which is automatically criminal. Plainly the court in R v Donovan did not put the beating of the complainant into that category, or the appeal would have taken a quite different course. All that the court had to say about the nature of the beating was that it was not, as the present appellants would have us say, in a category which is automatically innocent. 10. Fighting I doubt whether it is possible to give a complete list of the situations where it is conceivable that one person will consent to the infliction of physical hurt by another, but apart from those already mentioned only one seems worth considering, namely what one may call ‘ordinary’ fighting … Perhaps it is unduly complicated to suggest that the public interest might annul the defence of consent in certain situations and then in the shape of ‘good reason’ recreate it. Nevertheless I am very willing to recognise that the public interest may sometimes operate in one direction and sometimes in the other. But even if it be correct that fighting in private to settle a quarrel is so much against the public interest as to make it automatically criminal even if the fighter is charged only with assault (a proposition which I would wish to examine more closely should the occasion arise), I cannot accept that the infliction of bodily harm, and especially the private infliction of it, is invariably criminal absent some special factor which decrees otherwise. I prefer to address each individual category of consensual violence in the light of the situation as a whole. Sometimes the element of consent will make no difference and sometimes it will make all the difference. Circumstances must alter cases. For these reasons I consider that the House is free, as the Court of Appeal in the present case was not (being bound by AG’s Reference (No 6 of 1980)), to consider entirely afresh whether the public interest demands the interpretation of the 1861 Act in such a way as to render criminal under s 47 the acts done by the appellants. … [page 233]

A question has arisen, not previously canvassed, whether the appellants are necessarily guilty because their acts were criminal apart from the Offences against the Person Act 1861, and that accordingly a defence of consent which might otherwise have been available as an answer to a charge under s 47 is to be ruled out. This proposition if correct will have some strange practical consequences. First of all, it means that solely because the appellants were guilty of offences under the Sexual Offences Act 1967, with which they had not been charged and of which they could not (because of the time limit) be convicted they can properly be convicted of crimes of violence under a different statute carrying a much larger maximum penalty. The logic of this argument demands that if the prosecution can show that a sexual harming constitutes some other offence, however trifling and however different in character, the prosecution will be able to establish an offence of common assault or an offence under the 1861 Act, even if in its absence the defendant would not be guilty of any offence at all. Surely this cannot be right. Moreover, if one returns to offences of the present kind further practical anomalies may be foreseen. Not all grossly indecent acts between males are indictable under the Sexual Offences Act 1956. Thus, if the criminality of conduct such as the present under the Offences against the Person Act 1861 is to depend on whether the conduct is criminal on other grounds, one would find that the penal status of the acts for the purposes of s 47 would depend upon whether they were done by two adult males or three adult males. I can understand why, in relation to a homosexual conduct, Parliament has not yet thought fit to disturb the compromise embodied in the Sexual Offences Act 1967, but am quite unable to see any reason to carry a similar distinction into the interpretation of a statute passed a century earlier, and aimed at quite different evil. Since the point was not raised before the trial judge, and the House has properly not been burdened with all the committal papers, it is impossible to tell whether, if advanced, it might have affected the pleas offered and accepted at the Central Criminal Court, but its potential for creating anomalies in other cases seems undeniable. I would therefore accede to this argument only if the decided cases so demand. In my opinion they do not, for I can find nothing

in them to suggest that the consensual infliction of hurt is transmuted into an offence of violence simply because it is chargeable as another offence. Even in the prize-fighting cases, which come closest to this idea, the tendency of these events to attract a disorderly crowd was relevant not because the fighters might have been charged, if anyone had cared to do so, with the separate offence of causing a breach of the peace, but rather because this factor was a reason why the events were placed as a matter of policy in a category which the law treated as being in itself intrinsically unlawful notwithstanding the presence of consent. I am satisfied that it was in this sense that the courts made reference to the unlawfulness of the conduct under examination, and not to its criminality aliunde. … [His Lordship found no answer in the European Convention on Human Rights. As to public policy:] … The purpose of this long discussion has been to suggest that the decks are clear for the House to tackle completely anew the question whether the public interest requires s 47 of the 1861 Act to be interpreted as penalising an infliction of harm which is at the level of actual bodily harm, but not grievous bodily harm; which is inflicted in private (by which I mean that it is exposed to the view only of those who have chosen to view it); which takes place not only with the consent of the recipient but with his willing and glad co-operation; which is inflicted for the gratification of sexual desire, and not in a spirit of animosity or rage; and which is not engaged in for profit. [page 234] My Lords, I have stated the issue in these terms to stress two considerations of cardinal importance. Lawyers will need no reminding of the first, but since this prosecution has been widely noticed it must be emphasised that the issue before the House is not whether the appellants’ conduct is morally right, but whether it is properly charged under the 1861 Act. When proposing that the conduct is not rightly so charged I do not invite your Lordships’ House to indorse it as morally acceptable. Nor do I pronounce in

favour of a libertarian doctrine specifically related to sexual matters. Nor in the least do I suggest that ethical pronouncements are meaningless, that there is no difference between right and wrong, that sadism is praiseworthy, or that new opinions on sexual morality are necessarily superior to the old, or anything else of the same kind. What I do say is that these are questions of private morality; that the standards by which they fall to be judged are not those of the criminal law; and that if these standards are to be upheld the individual must enforce them upon himself according to his own moral standards, or have them enforced against him by moral pressures exerted by whatever religious or other community to whose ethical ideals he responds. The point from which I invite your Lordships to depart is simply this, that the state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large. Thus, whilst acknowledging that very many people, if asked whether the appellants’ conduct was wrong, would reply “Yes, repulsively wrong”, I would at the same time assert that this does not in itself mean that the prosecution of the appellants under ss 20 and 47 of the Offences against the Person Act 1861 is well founded. This point leads directly to the second. As I have ventured to formulate the crucial question, it asks whether there is good reason to impress upon s 47 an interpretation which penalises the relevant level of harm irrespective of consent: ie to recognise sadomasochistic activities as falling into a special category of acts, such as duelling and prize-fighting, which “the law says shall not be done”. This is very important, for if the question were differently stated it might well yield a different answer. In particular, if it were to be held that as a matter of law all infliction of bodily harm above the level of common assault is incapable of being legitimated by consent, except in special circumstances, then we would have to consider whether the public interest required the recognition of private sexual activities as being in a specially exempt category. This would be an altogether more difficult question and one which I would not be prepared to answer in favour of the appellants, not because I do not have my own opinions upon it but because I regard the task as one which the courts are not suited to perform,

and which should be carried out, if at all, by Parliament after a thorough review of all the medical, social, moral and political issues, such as was performed by the Wolfenden Committee (see the Report of the Committee on Homosexual Offences and Prostitution (Cmnd 247 (1957)). Thus, if I had begun from the same point of departure as my noble and learned friend Lord Jauncey of Tullichettle I would have arrived at a similar conclusion; but differing from him on the present state of the law, I venture to differ. Let it be assumed however that we should embark upon this question. I ask myself, not whether as a result of the decision in this appeal, activities such as those of the appellants should cease to be criminal, but rather whether the 1861 Act (a statute which I venture to repeat once again was clearly intended to penalise conduct of a quite different nature) should in this new situation be interpreted so as to make it criminal. Why should this step be taken? Leaving aside repugnance and moral objection, both of which are entirely natural but neither of which are in my opinion grounds upon which the court could properly create a new crime, I can visualise only the following reasons. [page 235] (1) Some of the practices obviously created a risk of genitourinary infection, and others of septicaemia. These might indeed have been grave in former times, but the risk of serious harm must surely have been greatly reduced by modern medical science. (2) The possibility that matters might get out of hand, with grave results. It has been acknowledged throughout the present proceedings that the appellants’ activities were performed as a prearranged ritual, which at the same time enhanced their excitement and minimised the risk that the infliction of injury would go too far. Of course things might go wrong and really serious injury or death might ensue. If this happened, those responsible would be punished according to the ordinary law, in the same way as those who kill or injure in the course of more ordinary sexual activities are regularly punished. But to penalise the appellants’ conduct even if the extreme consequences do not ensue, just because they might have done so, would require an assessment of the degree of risk, and the balancing of this risk

against the interests of individual freedom. Such a balancing is in my opinion for Parliament, not the courts; and even if your Lordships’ House were to embark upon it the attempt must in my opinion fail at the outset for there is no evidence at all of the seriousness of the hazards to which sado-masochistic conduct of this kind gives rise. This is not surprising, since the impressive argument of Mr Purnell QC for the Crown did not seek to persuade your Lordships to bring the matter within the 1861 Act on the ground of special risks, but rather to establish that the appellants are liable under the general law because the level of harm exceeded the critical level marking off criminal from non-criminal consensual violence which he invited your Lordships to indorse. (3) I would give the same answer to the suggestion that these activities involved a risk of accelerating the spread of auto-immune [sic] deficiency syndrome (AIDS), and that they should be brought within the 1861 Act in the interests of public health. The consequence would be strange, since what is currently the principal cause for the transmission of this scourge, namely consenting buggery between males, is now legal. Nevertheless, I would have been compelled to give this proposition the most anxious consideration if there had been any evidence to support it. But there is none, since the case for the Crown was advanced on an entirely different ground. (4) There remains an argument to which I have given much greater weight. As the evidence in the present case has shown, there is a risk that strangers (and especially young strangers) may be drawn into these activities at an early age and will then become established in them for life. This is indeed a disturbing prospect but I have come to the conclusion that it is not a sufficient ground for declaring these activities to be criminal under the 1861 Act. The element of the corruption of youth is already catered for by the existing legislation; and if there is a gap in it which needs to be filled the remedy surely lies in the hands of Parliament, not in the application of a statute which is aimed at other forms of wrongdoing. As regards proselytisation for adult sado-masochism the argument appears to me circular. For if the activity is not itself so much against the public interest that it ought to be declared criminal under the 1861 Act then the risk that others will be induced to join in cannot be a ground for making it criminal.

Leaving aside the logic of this answer, which seems to me impregnable, plain humanity demands that a court addressing the criminality of conduct such as that of the present should recognise and respond to the profound dismay which all members of the community share about the apparent increase of cruel and senseless crimes against the defenceless. Whilst doing so I must repeat for the last time that in the answer which I propose I do not advocate the decriminalisation of conduct which has hitherto been a crime; nor do I rebut a submission that a new crime should be created, penalising this conduct, for Mr Purnell has rightly not invited the House to take this course. The only question is whether these consensual private acts are offences against the existing law of violence. To this question I return a negative response … [page 236] Accordingly I would allow these appeals and quash such of the convictions as are now before the House. [Lord Slynn of Hadley also dissented. Lord Lowry agreed with Lords Templeman and Jauncey. Appeals dismissed.]

5.33 Three of the appellants in Brown appealed to the European Court of Human Rights (see Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39) on the basis that their prosecution was contrary to the European Convention on Human Rights. The court rejected the appeals on the basis that the state was entitled to limit the infliction of harm and that the state’s intervention was permissible as being intervention ‘necessary in a democratic society’ (European Convention on Human Rights, art 8(2)). 5.34 In R v Wilson [1996] 2 Cr App R 241 (discussed in the judgment of Wright J in Emmet, see 5.35) consent was a defence where the ‘appellant, at the request and with the consent of his wife, used a hot knife to brand his initials A W on each of his wife’s buttocks’. The Court of Appeal held (at 243 per Russell LJ) that ‘… Brown is not authority for the proposition that consent is no defence … in all circumstances where actual bodily harm is deliberately inflicted …’. The court also observed (at 244) that in its view: ‘Consensual

activity between husband and wife, in the privacy of the matrimonial home, is not a proper matter for criminal investigation or prosecution’. The result was influenced by the fact that, by the time the case came to trial, there was no evidence of any permanent injury (see at 242). 5.35 In R v Emmet [1999] EWCA Crim 1710 (18 June 1999), on the other hand, consent was held to be no defence to two charges of assault occasioning actual bodily harm. Each allegation involved consensual heterosexual activity between parties who, by the time of trial, had married. The first count related to an incident where the appellant, with his partner’s consent, covered her head with a plastic bag which was tied at the neck, and she was tied up. With her in this position he engaged in sexual activity with her. He became aware that she was in distress and he rapidly removed the bag from her head. She suffered from increasingly bloodshot eyes and saw a doctor who ‘found that there [were] subconjunctival haemorrhages in both eyes and some petechial bruising around her neck. The first symptom was caused by the restriction of oxygen to the brain and the second by the restriction on the return blood flow in her neck. No treatment was prescribed and after about a week her eyes returned to normal’ (at 9). The restriction of oxygen could, however, have caused brain damage or death. The second incident arose out of events a few weeks later when the appellant poured lighter fluid on his partner’s breasts and set it alight. She suffered a burn and again sought medical care. The burn ultimately healed but it was the doctor who reported the matter to authorities. 5.36 In R v Lee [2006] NZCA 60 the Court of Appeal in New Zealand considered the limits of consent in the context of a ritualistic religious exorcism which involved the infliction of grievous bodily harm to which the victim consented. The ‘exorcism’ resulted in the death of the victim.

The judgment provides a useful summary of the scope of the defence in the UK, Canada, Australia and New Zealand. [page 237] The New Zealand court declined to apply Brown and specifically endorsed the dissenting view in that case of Lord Mustill: [300] In our view, the rule (for all levels of intentional infliction of harm) is rather that there is an ability to consent to the intentional infliction of harm short of death unless there are good public policy reasons to forbid it and those policy reasons outweigh the social utility of the activity and the value placed by our legal system on personal autonomy. A high value should be placed on personal autonomy. … The test therefore is the one promulgated by Lord Mustill in Brown, whatever the level of injury intended and caused. As indicated above, such an approach would fit in with the manner in which the law has developed in New Zealand … where the tendency has been not to countenance too many limits on the availability of consent as a defence.

5.37 As to the limits of consent to sexual activity which results in the infliction of a grievous bodily disease and the application of Lee in this context in Australia, see 5.41. 5.38 What we can say from the authorities is that there is a scale of activity. At one end consent is never a defence, and clearly activity resulting in death is in that category. One cannot consent to one’s own death, so a deliberate killing is murder even if the victim wants to die. Somewhere along that scale is a dividing line where cases on one side of the line are rendered lawful because of the ‘victim’s’ consent but cases on the other side remain unlawful regardless of consent.

5.39 The decisions in Brown, Wilson, Emmet and Lee, discussed above, show that where that line is drawn is unclear. It may be, as the Court of Appeal stated in Wilson (see 5.34), that ‘[c]onsensual activity between husband and wife, in the privacy of the matrimonial home, is not a proper matter for criminal investigation or prosecution’, but equally, consensual activity between homosexual men, in the privacy of their home, should also not be considered a proper matter for criminal investigation or prosecution. As Lord Mustill in Brown shows, wherever there is an attempt to define the boundary necessary exceptions must be drawn to allow activity that is beyond doubt legal, such as boxing, contact sports, rough horseplay etc. To that list may also be added such things as body piercing and tattooing which would be, beyond doubt, a grievous bodily harm if done without consent.

Sexually transmitted diseases and consent 5.40 A person may have consented to sexual intercourse, but not to the sexually transmitted disease which follows. But, in R v Clarence (1888) 22 QBD 23, the Court for Crown Cases Reserved held that a man who had intercourse with his wife knowing that he had gonorrhoea did not commit a criminal offence. In New South Wales it [page 238] is now considered grievous bodily harm to infect another with a grievous bodily disease (Crimes Act s 4). That makes it an offence to intentionally or recklessly infect another person with a disease (Crimes Act ss 33 and 35).

5.41 In Neal v R (2011) 32 VR 454; 213 A Crim R 190; [2011] VSCA 172 the Victorian Court of Appeal considered the defence of consent in the context of the reckless infliction of a grievous bodily disease (HIV-AIDS). In the judgment the application of Lee (see 5.37) to these types of offences was considered: [73] … Although it has been accepted in New Zealand that informed consent may constitute a defence to an offence of intentionally inflicting injury, as well as to an offence of recklessly inflicting injury, that is not the law in England and, in our view, it is not the law in this State. We consider that the distinction between indifference to the risk of probable infection and intent that it should occur has a justifiable moral basis. As Lord Templeman said in Brown, in principle there is a difference between violence which is merely incidental to an activity and violence “which is inflicted for the indulgence of cruelty”. As Judge LJ said in R v Dica, there is a similar distinction between the spreading of sexual disease which is merely incidental to consensual sexual intercourse and the intentional spreading of sexual disease through sexual intercourse. To adopt and adapt his Lordship’s words, where the spread of sexual disease is merely incidental to sexual intercourse, the participants are not indulging in serious violence for the purposes of sexual gratification. They are simply prepared, knowingly, to run the risk — not the certainty — of infection, as well as all the other risks inherent in and possible consequences of sexual intercourse. Contrastingly, where sexual intercourse is engaged in with intent to spread sexual disease it is, as a matter of public policy, just as unlawful as consensual violent conduct causing serious physical injury.

5.42 Section 4(1)(c) of the Crimes Act (see 5.28) provides that the definition of ‘grievous bodily harm’ includes to cause another person to contract a grievous bodily disease. Section 33 provides for the offence of [causing] grievous bodily harm with intent. This must be contrasted with s 35 which provides for the offence of [causing] grievous bodily harm by

recklessness. In Zaburoni v R [2016] HCA 12 the High Court considered intention as opposed to recklessness in the context of a man who infected his female partner with HIV. 5.43 It should be noted that the appeal concerned the relevant Queensland provisions, being ss 317 and 320 of the Criminal Code (Qld). Although not identical to the relevant NSW sections in that s 317 of the Queensland Code uses the term ‘unlawfully’ rather than ‘recklessly’, unlawfully may be considered the equivalent of ‘reckless’ in this context and therefore the decision is relevant to the NSW provisions. Zaburoni v R [2016] HCA 12 High Court of Australia [The appellant was convicted by a jury of intentionally causing grievous bodily harm to another person pursuant to s 320 of the Criminal Code (Qld). Under this code the term ‘grievous bodily harm’ includes a grievous bodily disease. The accused had pleaded [page 239] guilty to the alternative charge of unlawfully causing grievous bodily harm to another person, but this plea was not accepted by the Crown in discharge of the indictment.] 1. Kiefel, Bell and Keane JJ: [footnotes omitted] The appellant was convicted of unlawfully transmitting a serious disease to another with intent to do so following a trial in the District Court of Queensland before Dick DCJ and a jury. The offence is created by s 317(b) of the Criminal Code (Q) (“the Code”) and carries a maximum penalty of imprisonment for life. The disease that the appellant transmitted to the complainant is the human immunodeficiency virus (“HIV”). It is a serious disease for the purposes of s 317(b). 2. To transmit HIV to another person is to occasion grievous bodily harm to that person. Section 320 of the Code makes it an offence to unlawfully do grievous bodily harm to another and provides a maximum penalty of imprisonment for 14 years for the offence. It is not in issue that a person who knows that he or she has HIV, and who engages in unprotected sexual intercourse without informing

the other person of that fact, commits an offence contrary to s 320 in the event that the other person contracts HIV from that sexual contact. In such a case the prosecution is not required to prove that the accused intended to transmit the disease to his or her sexual partner. 3. The indictment presented at the appellant’s trial charged him in the alternative with unlawfully doing grievous bodily harm to the complainant pursuant to s 320. The appellant pleaded guilty to this count. The prosecution did not accept the plea in discharge of the indictment and the trial proceeded. The appellant did not give evidence. He made a number of admissions that were consistent with his plea to the alternative count. The sole issue for the jury’s determination was proof of the appellant’s intention. No complaint is made as to the adequacy of the trial judge’s directions on this or any other aspect of criminal liability. The jury returned a verdict of guilty of the principal count, which made it unnecessary to take a verdict on the alternative count. On 18 April 2013, Dick DCJ sentenced the appellant to a term of nine and a half years’ imprisonment. 4. The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland (Gotterson and Morrison JJA and Applegarth J), contending, among other grounds, that the verdict was unreasonable or contrary to the evidence. The majority (Gotterson and Morrison JJA) found that it had been open to the jury to be satisfied beyond reasonable doubt that the appellant intended to transmit HIV to the complainant, in circumstances in which he had engaged in frequent acts of unprotected sexual intercourse with her knowing that he was HIV positive. Gotterson JA, writing the leading majority reasons, observed that this conduct “defied description as mere recklessness as to the risk of transmission”. … 6. As will appear, Applegarth J considered that if the evidence established the appellant’s awareness of the probability that his conduct would result in the complainant contracting HIV, the jury’s verdict would be unassailable. His Honour dissented in the result because he did not consider the evidence established so much. Nonetheless, his Honour’s analysis requires consideration of

proof of intention to produce a particular result where it is made an element of liability under the Code. 7. The parties are at one in submitting that liability in such a case requires proof of actual intent. The decision of the Court of Criminal Appeal of Queensland in R v Willmot (No 2) is cited by each for that proposition. 8. In Willmot, Connolly J explained: “The ordinary and natural meaning of the word ‘intends’ is to mean, to have in mind. Relevant definitions in The Shorter Oxford English Dictionary show that what is involved is the directing of the mind, having a purpose or design.” [page 240] 9. His Honour’s statement was affirmed by the Court of Appeal in R v Reid. Despite the holding that intention requires “directing of the mind, having a purpose or design”, Applegarth J’s analysis finds support elsewhere in Connolly J’s reasons in Willmot and in McPherson JA’s reasons in Reid. 10. In Willmot, Connolly J went on to say that if there was direct evidence of the accused’s awareness of death or grievous bodily harm as the probable result of his act, the jury might properly be directed that, if they accepted that evidence, it was open to infer from it that the accused intended to kill or to do grievous bodily harm as the case may be. There is an evident tension between this statement and his Honour’s earlier embrace of the ordinary meaning of “intent”. To engage in conduct knowing that it will probably produce a particular harm is reckless. It is evidence which, taken with other evidence, may support a conclusion that the person intended to produce that harm. Nonetheless, foresight of risk of harm is distinct in law from the intention to produce that harm. 11. In Reid, the accused’s conviction for a s 317(b) offence was upheld in circumstances in which the inference of intent was based on evidence that the accused entertained malice towards the complainant. The Court of Appeal was divided on the capacity of evidence of awareness of risk to prove intent. Chesterman J said that “the Code requires nothing less than proof of intention”,

rejecting that awareness of the probability that an act will produce a particular result, without more, supports the inference of intent to produce that harm. His Honour explained the content of intent by reference to his earlier analysis in R v Ping that “[t]he prosecution must prove an actual, subjective, intention on the part of the accused to bring about [the particular result] by his conduct.” 12. McPherson JA agreed with Chesterman J that the meaning to be ascribed to intent in s 317(b) is that “the accused must be proved to have meant to transmit the disease: his actions must have been designed to bring about that result.” However, McPherson JA considered that satisfaction that the accused knew that by having unprotected sex with the complainant, it was probable or likely that the disease would be passed on to him, would establish that intent. His Honour relied on this Court’s reasons in R v Crabbe for this conclusion. It is to be observed that the analysis in Crabbe was of the mental element of the crime of murder under the common law. 13. Keane JA (as his Honour then was) disavowed that common law concepts of foreseeability, likelihood and probability were relevant to proof of the element of intention for the offence created by s 317(b). That statement should be accepted. 14. Where proof of the intention to produce a particular result is made an element of liability for an offence under the Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct. As the respondent correctly submits, knowledge or foresight of result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code. In the last-mentioned respect, the Code is distinguished from its Commonwealth counterpart, which allows that a person has intention with respect to a result if the person is aware that the result will occur in the ordinary course of events. 15. Where the accused is aware that, save for some supervening event, his or her conduct will certainly produce a particular result, the inference that the accused intended, by engaging in that conduct, to produce that particular result is compelling. Nonetheless, foresight that conduct will produce a particular result as a “virtual certainty” is of evidential significance and under the

Code it remains that the trier of fact must be satisfied that the accused meant to produce the particular result. 16. It is necessary to say something in this context about the concepts of purpose, desire and motive. Discussions of proof of intention sometimes equate desire with motive. [page 241] The respondent’s submissions treat motive and purpose as synonyms. This is in aid of the submission that motive is irrelevant to criminal responsibility under the Code. 17. In ordinary parlance, purpose, desire and motive may be used interchangeably. However, in law motive describes the reason that prompts the formation of the accused’s intention. The accused may fire a pistol at his business partner. His intention or purpose in pulling the trigger may be to kill. His motive for forming that intention may be to avoid repaying a debt he owes to his partner. Where liability for an offence requires proof of the intention to produce a particular result, the prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in the conduct. Purpose here is not to be equated with motive. 18. In Willmot, Connolly J observed that the notion of desire is not involved in proof of intention. It is true that in law a person may intend to produce a particular result without desiring that result. Nonetheless, as Professor Williams has observed, intention generally does involve desire. Illustrations of the distinction between desire and intention commonly raise a false issue. Thus, Professor Gillies illustrates the proposition that intention in the criminal law does not connote desire by the example of the accused who sets fire to his enemy’s house so as to spite the enemy even though he regrets the destruction of the house because it is a masterpiece of period architecture. Accepting the accused’s refined sense of regret, it hardly seems apt to say that in setting fire to the house he did not desire to destroy it. A direction that a person may do something, fully intending to do it although the person does not desire to do it, may often be confusing. Unless the facts truly raise the issue the direction should not be given. 19. Proof of the s 317(b) offence required the prosecution to

establish beyond reasonable doubt that, at the time the appellant engaged in unprotected sexual intercourse with the complainant, he had as a purpose the transmission of HIV to her. A person may engage in conduct having more than one object or purpose. The complainant said the appellant preferred unprotected sexual intercourse because it was more pleasurable. Accepting that the appellant engaged in unprotected sexual intercourse because it gave him pleasure is not necessarily inconsistent with proof that he also had the intention thereby of transmitting HIV to the complainant. It is the identification of evidence from which the latter inference could be drawn to the criminal standard that is the issue in this appeal. Its resolution requires reference to the evidence given at trial in some detail. … 39. The appellant contends that the Court of Appeal conflated recklessness with proof of intent. A discrete challenge is made to the conclusion that it was open to the jury to infer from the protracted duration of the conduct that the requisite intention existed from the first act of unprotected sexual intercourse to the last. Gotterson JA referred to Reid for the latter proposition. The appellant submits that no question of temporal concurrence between the act and the intent arose in Reid because, in that case, intent was an inference from circumstances that did not depend upon frequency of unprotected sexual intercourse. By contrast, the appellant submits that Gotterson JA’s reasoning depended upon the frequency of the appellant’s conduct, which “necessarily involved the notion of a passage of time before the requisite intent arose”. 40. It is the soundness of the conclusion that the frequency of unprotected sexual relations over many months suffices to establish that the appellant’s intent was to transmit HIV to the complainant that is determinative of the appeal. If it is open to infer from that conduct that the appellant had that intention, then it is not illogical to infer that it was present throughout the sexual relationship in circumstances in which there is nothing to suggest that there was any relevant change in the nature of the relationship. [page 242] Awareness of risk

41. It is not apparent what, if any, relevance expert evidence of the statistical risk of the transmission of HIV had to proof of the appellant’s intention. To the extent that the inference of intent depends upon foresight of the risk of the sexual transmission of HIV, it is the appellant’s understanding, whether informed or otherwise, that is material. There was ample evidence from which to find that the appellant was aware of the risk of transmitting HIV to the complainant through unprotected sexual intercourse. Apart from the medical advice that the appellant was given by several doctors in 1998 after he learned of his HIV positive status, his lies to the complainant about that status before their sexual relationship commenced, and during the course of it, point to his awareness of the risk of sexual transmission. So, too, do his lies to the police about the number of times they engaged in unprotected sexual intercourse. The inference from the frequency of the conduct 42. Gotterson JA did not in terms express himself as satisfied that the evidence was capable of proving that the appellant intended to transmit HIV to the complainant. Instead, his Honour said that the frequency of unprotected sexual intercourse over many months defied description as mere recklessness. Recklessness describes a state of mind in which a person adverts to the risk that particular conduct may result in particular harm and, with that awareness, engages in that conduct. A person may be more or less reckless depending upon the person’s awareness of the likelihood of the risk materialising. However, as earlier explained, putting to one side awareness of the virtual certainty that conduct will result in the particular harm, a person’s awareness of the risk that his or her conduct may result in harm does not, without more, support the inference that the person intended to produce that harm. 43. The respondent submits that Gotterson JA’s conclusion that the inference of intent was open was not confined to the appellant’s awareness of the risk of transmission: it took account of the frequency of unprotected sexual intercourse over many months. The respondent submits that the features of knowledge, frequency and the length of the period over which intercourse took place suffice to support the conclusion of intent. This is because “[i]t is a fact of human dynamics and experience that the more often something is done which is dangerous to human health,

particularly of another, the more readily it can be inferred that the potential outcome is intended”. Acceptance of this submission cannot sit with the respondent’s recognition that foresight of likelihood of outcome cannot be substituted for proof of an accused’s intention to cause that outcome. 44. A rational inference open on the evidence is that the appellant engaged in regular unprotected sexual intercourse with the complainant because it enhanced his sexual pleasure and he was reckless of the risk of transmitting HIV to her. The existence of that inference lessens the force of reasoning to a conclusion that the appellant intended to transmit the disease from the fact of frequent unprotected sexual intercourse. Apart from frequent unprotected sexual intercourse, there is no evidence to support the inference that the appellant had that intention. And the evidence fell well short of proving that the appellant believed that it was virtually certain that he would pass on HIV by regular unprotected sexual intercourse. … 49. Applegarth J was correct to hold that the evidence was not capable of establishing to the criminal standard that the appellant intended to transmit HIV to the complainant. It follows that the appellant’s conviction for the s 317(b) offence must be quashed. Gageler J: 57. In this Court, as in the Court of Appeal, the prosecution relied on two principal features of the appellant’s conduct proved at trial in order to justify drawing the [page 243] requisite inference of intention. One was a series of lies which the appellant told to the complainant, and later to police, when he said that he did not have the disease or was not aware or only recently became aware that he had the disease. The other was the frequency of unprotected sexual intercourse and the protracted period over which that intercourse occurred. 58. No member of the Court of Appeal took the view that the appellant’s lies alone were sufficient to justify drawing the inference of intention. That must be so. The lies which the appellant told the complainant during their relationship amounted,

as Applegarth J put it, to a form of “callous deception”. They demonstrated an intention to deceive the complainant into having unprotected sexual intercourse. They did not necessarily demonstrate an intention to transmit the disease to her. The lies which the appellant later told the complainant and the police when he said that he had not been aware or had only recently become aware that he had the disease, demonstrated consciousness of wrongdoing, but not necessarily consciousness of guilt of a crime of specific intent. 59. The difference between the members of the Court of Appeal concerned what was able to be inferred, beyond reasonable doubt, about the appellant’s state of mind from the frequency and protracted period of the sexual intercourse which the appellant had with the complainant in the context in which the appellant had been shown to have known that he had the disease and to have known that the disease was transmissible by sexual intercourse, but in which the appellant had not been shown to have known the degree of risk of transmission and had not been shown to have had any reason to harbour ill-will against the complainant. 60. The crux of the reasoning of Gotterson JA, and of that of Morrison JA, was contained in the following passage in the reasons for judgment of Gotterson JA: “The jury’s attention necessarily turned to the appellant’s conduct considered in the context of that knowledge. To my mind, what is of singular significance here is that the unprotected sexual intercourse continued over many months. It was the norm for them. It was open to the jury to reason from this and their own knowledge and experience of human behaviour that whereas one or several acts of unprotected sexual intercourse might be viewed as reckless as to whether infection would be transmitted or not, such acts repeated frequently with the same partner over many months, defied description as mere recklessness as to the risk of transmission.” 61. The crux of the reasoning of Applegarth J was contained in the following passage in his reasons for judgment: “The period over which the appellant engaged in

unprotected sex with the complainant, having deceived her into allowing such conduct, and the appellant’s appreciation that unprotected sex with him carried a risk of transmission, supported an inference of intent. But the evidence was not enough, in all of the circumstances, to prove the intent beyond reasonable doubt. Those circumstances include the fact that the appellant knew infection was a possible, not a probable, outcome, and did not know the degree of risk.” His Honour concluded: “The evidence left open the reasonable hypothesis that the appellant, not knowing the degree of risk, was extremely reckless and also callous. As appalling as his selfish recklessness was, it cannot be equated with a subjective, actual intent to transmit the HIV virus. In the absence of evidence of malice or knowledge of the degree of risk, a subjective intent to inflict the HIV virus was not proven beyond reasonable doubt.” 62. The reasoning of Applegarth J is, in my opinion, compelling. Expert evidence before the jury was to the effect that the objective measure of the probability of the appellant infecting the complainant during the period in which the unprotected sexual intercourse occurred was in the order of 14%. Nothing in the evidence suggested that the appellant knew of that probability. But equally nothing in the evidence justified the inference that the appellant thought the probability to be higher. [page 244] 63. Accepting that it was open to the jury to reason from their own knowledge and experience of human behaviour, the frequency and protracted period of unprotected sexual intercourse were insufficient safely to exclude as a reasonable hypothesis that the appellant engaged in that sexual intercourse with the complainant not with an intention to transmit the disease to the complainant but selfishly for his own gratification, being reckless as to whether or not the complainant might become infected. 64. For these reasons, I would allow the appeal and make the consequential orders proposed in the joint reasons for judgment.

[Nettle J concurred. Appeal allowed.]

5.44 In Zaburoni the High Court discussed R v Crabbe (see 2.20). It is important to remember that the fault element relied upon in Crabbe was ‘reckless indifference to human life’ in the context of murder. In Zaburoni the fault element which the Crown was required to prove to sustain a conviction pursuant to s 317 of the Queensland Code (the equivalent of s 33 of the Crimes Act) was intention, not recklessness (or ‘unlawfulness’). Foresight of the high probability of a given outcome as a result of the criminal behaviour is not the same as an intention to cause that outcome.

Consent reviewed 5.45 The MCCOC made the following comments on consent. MCCOC, Non-Fatal Offences Against the Person Model Criminal Code Report, Chapter 5, September 1998, pp 119–125 Consent and socially beneficial activities — sections 5.1.17–5.1.18 and 5.1.400 The general principle involved is that the law must balance the state’s paternalistic role in protecting individuals from their own poor decisions with the freedom of the individual to make poor decisions. This balance is struck differently in different times and according to different activities. The principal question in each case is whether the interests of the state in preventing harm to the individual outweigh the individual interest in freedom of choice. When the balance is in favour of the state, the individual’s choice is negated and consent is not a “defence”. As a practical matter, consent as a ‘defence’ to a charge of a non-sexual offence against the person principally arises in three situations: sporting contests; sado-masochistic sexual activity; and fights in or outside bars. The leading decision on the common law is the recent decision

of the House of Lords in Brown [1994] 1 AC 212. The accused in that case were a group of sado-masochistic homosexuals who consensually engaged in the most painful activities including torture. They were charged with assault occasioning actual bodily harm and unlawful wounding. The question on appeal was whether the consent of the victim to such acts provided a “defence” to the perpetrator. The House of Lords decided by majority that, as a general rule, with exceptions to be decided by a consideration of public policy, consent was a “defence” to a charge of assault, but not to a charge in which the infliction of actual bodily harm or worse could be proven. This was not a particularly coherent decision. The lack of logic and consistency in the decision was quickly demonstrated. In Wilson [1996] 3 WLR 125, [page 245] D was charged with assault occasioning actual bodily harm. V wanted to tattoo her lover’s initials on her buttocks but did not know how to do it. So she got him to brand the initials there with a hot knife. (V did not give evidence.) The case proceeded on the ground that V instigated the action. The court allowed an appeal from conviction and quashed it. It said (at 128): … we cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing. … Does public policy or the public interest demand that the appellant’s activity should be visited by the sanctions of the criminal law? … we are firmly of the opinion that it is not in the public interest that activities such as the appellant’s in this appeal should amount to criminal behaviour. Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a matter for criminal investigation, let alone criminal prosecution. … In this field, in our judgment, the law should develop on a case by case basis rather than upon general propositions to which, in the changing times in which we live, exceptions may arise from time to time not expressly covered by authority.

The inconsistency between this decision and that in Brown is quite apparent … By way of contrast, in Welch (1995) 101 CCC (3d) 216, the Ontario Court of Appeal held that the withdrawal of consent as a defence from the jury was correct in a case in which D’s defence to a charge of sexual assault occasioning bodily harm was that the behaviour was consensual sado-masochistic activity. The injuries in that case were ‘obvious and extensive bruising’ and (possible) injury to the rectum. The basis for the decision was, in the end, that (at 239): Although the law must recognise individual freedom and autonomy, when the activity in question involves pursuing sexual gratification by deliberately inflicting pain upon another that gives rise to bodily harm, then the personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour. The decision also involves the proposition that private sexual activity does not fall within the “recreational activity” exemption. The public policy exception has to be present where the list approach is taken in order to deal with well established exceptions to such a rule, notably lawfully conducted boxing, contact sports, surgery, dangerous pastimes and religious mortifications, ‘rough horseplay’ and possibly tattooing. But each of these exceptions has limits. For example, there is a sequence of principally Canadian cases dealing with the limits of violence in that violent sport, ice hockey. Those and other cases involving sport stand at least for the proposition that there are limits to the notion of consent in such contests. … Further, it is not clear whether consent is a “defence” to be proved by the accused, or a matter to be disproved by the Crown. Nor is it clear whether the current law places the limit at cases in which bodily harm resulted, or cases in which bodily harm was intended or likely. It follows that, at common law, there is a general rule, with a host of exceptions, based on ad hoc decisions of courts on the public acceptability of violence in specific situations, which decisions are rationalised as being based on

“public policy”. In addition, it is quite clear that there is in law no fixed definition of what is “bodily harm”. … English writers commenting on Brown have suggested that the current common law is wrongly formulated because it requires a standard of social utility in order to qualify for a consent defence. So, for example, the House of Lords majority required argument that sado-masochism was socially beneficial or justified in some other way and, because it was not, held that consent was no defence. The alternative view, represented by the dissenting judgment of Lord Mustill, is that the consensual behaviour should be presumptively lawful, unless good social or policy reasons can be found for making the consents ineffective. [page 246] The position that the Committee adopted … was a list based approach. It was to the effect that a person should be allowed to consent to conduct likely to cause harm, but not conduct likely to cause serious harm except that a person should be allowed to consent to conduct likely to cause serious harm in the case of contact sports (where the rules allow for it), medical and dental treatment; tattooing, and bona fide religious mortifications. The burden should be upon the accused to raise sufficient evidence to make the issue fit to go to the jury.

DISCUSSION QUESTIONS 5.46 Assume that the following facts are true and can be proved. In each case consider Sam’s liability for the offence charged. 1.

Sam and Neville have had a long-standing but friendly rivalry. One afternoon, after a long day at the pub, they decide to settle the argument over who is ‘the best’ with a fistfight in the car park. An officious bystander calls the police, who attend and arrest both of them. Sam is charged with assault. Is Sam guilty of assault? Can he rely on ‘consent’ as a

defence to the assault charge? Why or why not? 2.

Assume the same facts as in 1, but the fight takes place in Sam’s back garden.

3.

Assume the same facts as in 1, but the fight takes place in a boxing ring at the local gym under the supervision of Sam’s boxing coach. Neville is also an amateur boxer.

4.

If you think consent may be a defence in any of cases 1 to 3, then assume the same facts but also that Neville suffers a fractured jaw.

5.

If you think consent may be a defence in any of cases 1 to 3, then assume the same facts but also that Neville suffers a brain haemorrhage and dies, and that Sam is charged with manslaughter. Can he rely on ‘consent’ as a defence?

1

MFI means ‘Marked for Identification’ and is a process used to record items so that they can be referred to, but they are not an ‘exhibit’ ie part of the evidence. At [46], McColl J explained that ‘The trial judge commenced her summing-up on the sixth day of the trial. She provided the jury with a document (MFI 10) setting out the elements of the offences on the indictment to which she drew the jury’s attention in the course of her summing-up’.

2

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 8.

3

A ‘penalty unit’ is a monetary sum defined by ‘unit’ as prescribed by the Parliament pursuant to s 17 of the Crimes (Sentencing Procedure) Act 1999.

[page 247]

6 Sexual offences INTRODUCTION 6.1 Sexual offences are a category of offences against the person derived from the basic building block of assault (see 5.2). A key sexual offence is sexual assault (known at common law as rape). The law relating to sexual assault offences has undergone significant changes in recent years to reflect modern thinking in this area. 6.2 Some of the history of these developments was noted by the Model Criminal Code Officers Committee (MCCOC) in its Model Criminal Code Report on sexual offences against the person. MCCOC, Sexual Offences Against the Person Model Criminal Code Report, Chapter 5, May 1999, pp 1–6 Over the past twenty years the law relating to sexual offences has received considerable attention in all Australian States and Territories, and has been the subject of comprehensive review and substantial change. This legislative activity can be attributed to a number of factors. First, a more liberal attitude toward sexual roles and behaviour

during the early 1970s led to a general community perception that sexual offence laws, which had remained virtually unchanged for centuries, were archaic and inadequate. Second, the women’s movement was instrumental in highlighting deficiencies in the operation of rape laws and pushing for legislative change. Third, reform focussed on sexual offences against children stemmed from concern at the extent of reported sexual abuse and its adverse effects. The nature of reform varied between jurisdictions, but common features are discernible. For example: The term “rape” was replaced by the new label “sexual assault” in some jurisdictions. The basic offence covered a broader range of conduct. Penetration of the vagina, anus and mouth by objects or parts of the body other than the penis came to be defined as rape or sexual assault in many jurisdictions. [page 248] Sexual offences came to be viewed in terms of violence. This led to offences being graded according to different levels of harm and seriousness. Evidentiary rules about sexual reputation and history, corroboration and complaint were modified. Rape within marriage came to be legally recognised. The presumption that males under the age of fourteen could not commit rape was abolished. Despite these common themes, jurisdictions in Australia still operate under eight different sets of sexual offence laws. There are marked differences in terminology and definitions. In some jurisdictions, the basic offence is “rape”, in others it is “sexual assault” or “sexual intercourse/penetration without consent”. Conduct that may amount to the basic offence in some jurisdictions may in others only constitute indecent assault. The reformulation of what is “lack of consent” has led to variations in the circumstances which can negative consent. The fault element for the basic offence differs between the existing Code jurisdictions of Queensland, Western Australia,

Tasmania and the Northern Territory and the common law jurisdictions of New South Wales, Victoria, South Australia and the ACT. At common law, the fault element is subjective. … With regard to sexual offences against children, the age of consent ranges from 16 years to 21 years across the country, and may vary according to whether the conduct is heterosexual or homosexual. There are also differences in the age of the child below which no defence (in the nature of mistake of age and so forth) whatsoever may be raised by the defendant. Finally, reform in some jurisdictions has been marked by piecemeal change. While new provisions have found their way into the statute books, many old ones have remained. The result is that some legislative schemes present a bewildering array of provisions, many of which create anomalies, or have fallen into disuse. … Objectives of Sexual Offence Laws The Committee has retained a specific category of sexual offences in the Model Criminal Code. This accords with the position in all Australian jurisdictions and other common law countries. It has been suggested, in the past, that it is unnecessary to retain a separate category of sexual offences. There are two arguments in support of this approach. First, a specific category of “sexual” offences only serves to further stigmatise victims. Second, nonconsensual sexual activity ought to be dealt with in the same way as other conduct involving violence. … It is very widely accepted, however, that the criminal law should contain specific sexual offences. That is because a sexual attack is a distinct experience which cannot be equated with a non-sexual physical injury. … In short, the Committee is firmly of the view that specific sexual offences should be included in the Model Criminal Code. Having said that, the Committee considers it appropriate to state the objectives which guided its development of these sexual offence provisions. The question is undoubtedly one of the most sensitive in the criminal law, with debate on law reform often dominated by the apparent tension between the rights of the accused and the rights of the victim. …

The law should protect the sexual integrity and personal autonomy of all members of the community. A person should not be forced to submit to a sexual act to which she or he does not consent. [page 249] Sexual offences cannot be considered in a vacuum. Timehonoured and fundamental legal principles such as the presumption of innocence and the requirement that the prosecution must prove all elements of its case beyond reasonable doubt must be observed. The vast majority of victims of sexual offences are women, and the law should address and reflect this social reality. At the same time, the law must not be discriminatory in application. The criminal law should protect children, along with others who are particularly vulnerable, from sexual abuse and exploitation. The law should be as simple and precise as possible, in order to enable the just and speedy disposition of cases, and so that it may be accessible to all citizens. Australia has international obligations to ensure the protection of persons from violence and abuse. An example is the International Convention on Civil and Political Rights and the Declaration on the Elimination of Violence Against Women. The Convention on the Rights of the Child seeks to ensure that children are afforded the same protections. What can realistically be achieved by the law is often questioned. However, this should not diminish the importance of what the law ought to strive to achieve. By outlining proscribed conduct, the law can serve a vital educative and symbolic function in its condemnation of unacceptable behaviour. … … [S]exual offences reform throughout Australia has been accompanied by other important evidentiary and procedural changes. These have been primarily aimed at reducing the trauma experienced by complainants at court and facilitating the giving of their evidence. In trials of sexual offences against children, for instance, almost all jurisdictions now allow for the evidence of a

child witness to be given by closed circuit television, or for the use of a screen in court to shield a child complainant from seeing the accused. In each jurisdiction there have also been Government initiatives in the areas of policing, counselling services and victim support services, all aimed at encouraging reporting [and] improving the experiences of those who report sexual offences. … Very broadly, three general concepts underpin the sexual offences in the Model Criminal Code. … The first is that it must be unlawful to have intentional sexual contact with persons who are not giving real consent to that contact. That includes children who are below the age of consent, who are deemed incapable of giving such consent. The second is that there is no good reason for drawing distinctions based on gender or sexuality in the drafting of sexual offences. Sex with a child must be illegal, whether the child is a boy or a girl, or the perpetrator a man or a woman. So must sex with an adult who is not consenting. The third is that the structure of offences must reflect the seriousness of the physical nature of the sexual conduct that forms the basis of the offence. The most serious form of contact should be sexual penetration, broadly defined. The next most serious should be indecent touching that does not feature sexual penetration. The least serious should be sexual behaviour that features neither penetration nor touching. …

[page 250]

STATUTORY AND COMMON LAW FRAMEWORK Statutory framework 6.3 New South Wales has taken part in the kinds of reforms identified as desirable in the Model Criminal Code Report (see 6.2). The legislative scheme now in place in New South Wales provides for five basic categories of offences:

sexual assault (Crimes Act 1900 (NSW) (‘the Crimes Act’) s 61I); assault with intent to have sexual intercourse (s 61K); indecent assault (s 61L); act of indecency (s 61N); and sexual intercourse with children and persons from other vulnerable groups within the community (see s 77 which makes consensual sexual intercourse a crime in various situations, including where the victim is under 16 years). The Crimes Act also contains offences where the ‘basic’ offence is aggravated by the degree of violence used (see s 61J(2)(a)), the age of the victim (s 61J(2)(d)), or the fact that the offence occurred in the presence of others (s 61JA). 6.4 The sexual offences include offences where the victim is not subjected to sexual intercourse without consent but is forced to take part in some other sexual act such as forced self-manipulation (masturbation) (s 80A), or where the offender performs an indecent act upon or in the presence of the victim (see s 61N). Note also the offences of prohibition of female genital mutilation (s 45) and removing person from the state for female genital mutilation (s 45A). 6.5 The Crimes Act abolishes immunities that existed at common law. At common law it was presumed that a boy under the age of 14 years could not be guilty of rape and that a husband could not, at law, be guilty of raping his wife. Both these presumptions have now been removed (ss 61S and 61T respectively). With respect to a husband’s immunity against conviction for the rape of his wife, see R v L (1991) 174 CLR 379; 103 ALR 577.

Intention and recklessness, capacity and consent,

knowledge and mistake 6.6 In Mueller, the Court of Criminal Appeal applied and explained the broad common law concepts which underpin criminal responsibility in this area. The case involved indecent assault (see 6.43), but the court emphasised that the concepts elucidated in the case of indecent assault apply equally in the context of sexual assault (see 6.7). [page 251] R v Mueller (2005) 62 NSWLR 476; [2005] NSWCCA 47 NSW Court of Criminal Appeal [The appellant was convicted of assaults with acts of indecency in circumstances of aggravation under s 61M of the Crimes Act 1900. The complainant was a young woman, 22 years of age at the time, who lived at a home conducted by a caring institution because she was suffering from a disability known as Asperger’s Syndrome. The complainant also suffered from schizophrenia. The appellant was employed at the home where the complainant and another disabled person were living, and it was the appellant’s responsibility to provide care and assistance in the home. According to the complainant, she and the appellant were on a couch in the lounge room and the complainant put her feet on the appellant’s lap. Her evidence was that the appellant touched and kissed her breasts (count 1), proceeded to bite her nipples (count 2), touched her vulva outside her clothing (count 3), kissed the complainant’s vulva outside her underclothing (count 4), and subsequently sat with the complainant on the bed in her room, took hold of her hand and forced her to touch his penis (count 5). The appellant was acquitted with respect to counts 1 and 2. The appellant admitted the physical acts of counts 3 and 4, but his evidence was to the effect that such activity was consensual. The appellant denied he forced the complainant to touch his penis (count 5), but said he held her hand on his leg and that the complainant stretched out her hand and touched his penis with her fingertips.] 1. Hunt A-JA: I agree with the orders proposed by Studdert J, for

the reasons he has given. 2. I also agree with the additional comment made by Hulme J. There will inevitably be difficulties for a jury in understanding how consent may at the same time be both (a) freely and voluntarily given and (b) given reluctantly or after persuasion. If both directions are given because of the necessity to do so in the particular case, the judge should also give assistance to the jury as to how each of those directions is relevant to the facts of the particular case, with an explanation which removes the likelihood of confusion. 3. The summing-up in this case illustrates the dangers of including in directions concerning absence of consent and knowledge of that absence every statement made by this Court and by other courts on the subject whether directly relevant to the particular case or not. … 4. … [I]n order to ensure a fair trial, the summing-up must be tailored appropriately to the particular circumstances of each case. … [There is a] … danger that the inclusion of every statement which may be very relevant in other cases, but only peripherally relevant in the particular case, converts the summing-up into a series of formulae which are not necessarily appropriate to the facts and circumstances of the particular case. 5. At the commencement of this trial, the Crown prosecutor produced for the judge a series of just such statements, and the judge incorporated them in his summing-up and repeated them many times throughout the unnecessarily long charge to the jury. (The issues were not many, but the summing-up continued for approximately a day and a half.) That is not the way in which a summing-up should be framed. 6. The difficulty which the judge had in comprehending the nature of the repeated complaint being made by Counsel for the accused in relation to his summing-up on these issues may have been caused to some extent by the difficulty Counsel had in articulating his complaint, but it was also caused by the judge’s rigid insistence in fitting the direction which had previously been missing into the series of formulae which he [page 252]

had already given, instead of giving a short clear direction which incorporated only those which were directly relevant and necessary for the circumstances of this case. 7. In the end, however, the correct directions were given. Studdert J: … 18. The Crown put the issue of consent to the jury in two ways: (a) that the complainant did not consent because she lacked the capacity to do so; (b) alternatively, that the complainant did not consent in fact. 19. The jury was given lengthy directions as to the issue of consent which appear in a number of places in the summing up, and it is necessary in considering this ground of appeal to regard the totality of the instruction given. For the purposes of this ground however, the instruction about the issue of capacity is not of direct concern. In the extracts which I will set out, emphasis is added at various places. 20. [His Honour then set out the trial judge’s directions, with emphasis added to various passages. Only the emphasised passages are included in the following extract:] The question remains what is meant by the word consent; and this is vital, members of the jury, what I’m about to say to you, absolutely vital to this case. … Consent involves conscious and voluntary permission by [the complainant] to engage in each of the five incidents of a sexual nature referred to in the charges in the indictment. … Members of the jury, consent may be given verbally, or it may be expressed by actions. Similarly, absence of consent does not have to be in words. It also may be communicated in other ways. Consent which is obtained after persuasion is still consent. However, the law specifically provides that a person who does not offer actual physical resistance to sexual conduct is not, by reason only of that fact, to be regarded as consenting to the sexual act. It is all important but that is important; I will say it again. The law specifically provides that a

person who does not offer actual physical resistance to sexual conduct is not, by reason only of that fact, to be regarded as consenting to the sexual act. Consent means consent freely and voluntarily given. Submission is not the same as consent. This is a matter that the Crown relies upon heavily. The Crown has put to you more than once, in the course of her address, that any way you look at it, all that [the complainant] could be said to have done was to have submitted. So again I repeat that. Submission is not the same as consent. Silence or absence of positive resistance to an unwanted sexual advance is not to be taken as consent, or as communication of consent. … 28. Mr Patch, in oral submissions, distilled his earlier written submissions on this first ground, stating his essential complaint to be that the judge failed to instruct the jury that lack of physical resistance is not necessarily an indication or a communication of consent or lack of consent. Mr Patch submitted that having regard to the content of the instructions earlier given, what was required … in the final directions was an unambiguous direction as to the significance of an absence of actual physical resistance. 29. I do not agree with that submission. In my opinion the direction: Silence, or the absence of positive resistance, of itself does not necessarily mean that a woman is consenting nor does it necessarily mean that a woman is not consenting was sufficient. In essence, Mr Patch complained that the word ‘physical’, rather than the word ‘positive’, should have been used in the above passage, but it seems to me that the words ‘positive resistance’ convey the meaning of ‘physical resistance’. Further, I note that in counsel’s written submission placed before the trial judge before the instruction last set out was given, counsel wrote: Silence, or the absence of positive resistance, of itself does not necessarily mean that a woman is consenting.

Nor, of itself, does it necessarily mean that a woman is not consenting. [page 253] 30. Obviously counsel considered, when preparing the terms of his written submission during the trial, the expression he used, and which the judge adopted, was adequate in the circumstances. I consider he was correct in that regard. 31. It is regrettable that the jury was given as much duplicated instruction on the consent issue as was given, but I see no error in what the jury was last told. … 32. This first point fails. 33. The second matter complained of … is that his Honour erred in the direction: ‘Consent means consent freely and voluntarily given.’ The judge was asked to withdraw that direction but declined to do so. 34. It was submitted that the words ‘freely and voluntarily’ unduly narrowed the concept of consent, conveying the notion that consent given after persuasion or with reluctance was not really consent at all. … 35. … [T]here is no statutory definition in New South Wales. Section 61R of the Crimes Act addresses the concept of consent, not to define it but rather to deal with situations where consent is vitiated. In R v Clark (unreported, NSWCCA, 17 April 1998), Simpson J considered that consent for the purposes of New South Wales law … means consent ‘freely and voluntarily given’. The other members of the court in Clark did not expressly address the definition of consent but were content to address the deficiencies in the summing up under challenge on that appeal. 36. The common law concept of consent was considered in South Australia in Question of Law (No I of 1993) (1993) 59 SASR 214. The court was there concerned with the correctness of directions given to a jury in a trial concerning offences of rape. In that case King CJ said, on the issue of “consent” (at 220): The law on the topic of consent is not in doubt. Consent must be a free and voluntary consent. It is not necessary for the victim to struggle or scream. Mere submission in

consequence of force or threats is not consent. The relevant time for consent is the time when sexual intercourse occurs. Consent, previously given, may be withdrawn, thereby rendering the act non-consensual. That may occur as a consequence of persuasion, but, if it does, the consequent consent must, of course, be free and voluntary and not mere submission to improper persuasion by means of force or threats. 37. I respectfully adopt what the Chief Justice said in the above passage as succinct statement of common law principle. 38. In the same case Perry J said (at 233): It was perfectly correct for the learned trial judge to state, as he did, ‘submission is not consent’. The law is clear that consent must be freely given and acquiescence to intercourse by reason of any threat or duress may properly be regarded as negativing consent for the purposes of the law of rape … 39. In the same case Duggan J said (at 237): As the learned trial judge told the jury, in the case of rape consent means a free and voluntary engagement in the act of sexual intercourse at the relevant time. 40. In R v Blayney & Anor (2003) 87 SASR 354; [2003] SASC 405, Debelle J, citing the above authority, said at para 20: In the context of the law of rape, it is well established that consent must be free and voluntary. 41. Whilst there was no statutory requirement that the judge here direct the jury that consent must be freely and voluntarily given, I do not consider that this direction was erroneous. The direction given must be viewed in context, not in isolation. The judge distinguished “consent” from “submission”, and he also cautioned the jury against treating silence or absence of positive resistance as amounting to consent. The judge [page 254] directed the jury that consent obtained after persuasion was still

consent. The judge directed the jury that: A woman may consent to a sexual act for variety of reasons, but whatever the reason, if she consciously permits it, that act is not without her consent. 42. A trial judge must always be careful to fashion directions that are appropriate to the circumstances of the particular case, avoiding the automatic but non essential use of particular words and expressions. However, viewed in the context of the summing up in this case, there was no misdirection in instructing the jury that consent means consent freely and voluntarily given. … [His Honour proceeded to consider the ground of appeal that the directions to the jury on the question of whether the appellant was recklessly indifferent to whether the complainant consented were in error:] 44. The relevant directions were in the terms following: As I mentioned earlier the Crown must prove beyond reasonable doubt, that the accused knew [the complainant] was not consenting, or that he was reckless as to whether she was consenting. So the question arises, what does “reckless” mean. In order to establish that the accused was acting recklessly, it must be proved beyond reasonable doubt, that he either realised the possibility that [the complainant] was not consenting, but went on regardless, or he simply failed to consider the question of whether or not she was consenting, and just went ahead with a sexual act when the risk that she was not consenting would have been obvious to a person of the accused’s mental capacity, if he had turned his mind to it. 45. Counsel for the appellant contended at the trial that it was not appropriate for the jury to be given the instruction concerning inadvertent recklessness. … It is contended that the trial judge was wrong in giving the alternative direction on recklessness in the passage italicised above. 46. The appellant’s submissions call for consideration of earlier decisions of this court in Henning (unreported, NSWCCA, 11 May

1990); Kitchener (1993) 29 NSWLR 696; and Tolmie (1995) 37 NSWLR 660; and of the Court of Appeal in Fitzgerald v Kennard (1995) 38 NSWLR 184. 47. In Henning the concept of recklessness was considered by the court in relation to charges of sexual assault. The court was constituted by Gleeson CJ and Campbell and Mathews JJ. Their Honours said (at p 31): … We do not think it follows that a conscious advertence to the possibility of non consent is necessary to a finding of recklessness under s 61D(2). A failure to advert at all to the question of consent, in other words treating it as an entirely irrelevant factor, would almost certainly amount to either knowledge or recklessness if consent was in fact withheld. 48. It is to be observed that Henning referred to s 61D(2) of the Crimes Act. That section is in terms similar to s 61R(1) of the Crimes Act, which latter section now applies to sexual intercourse offences under ss 61I, 61J and 61JA. 49. In Kitchener it was held that where consent to sexual intercourse was withheld a failure by the offender to advert at all to the possibility that the complainant was not consenting necessarily meant that the offender was ‘reckless as to whether the complainant was consenting for the purpose of s 61D(2) of the Crimes Act’. Carruthers J said (at p 730): Leaving aside those cases where the accused may be incapable of forming the requisite intent, I consider that where consent is withheld, a failure to advert at all to the possibility that the complainant is not consenting, necessarily means that the accused is “reckless as to whether the other person consents” within the meaning of s 61D(2). Such a conclusion is, in my view, consistent with both logic and legal principle. [page 255] 50. Those remarks of Carruthers J as to the application of s 61D(2) would apply equally to the language of s 61R(1). 51. In Kitchener Kirby P expressed his agreement with Carruthers J

and identified sound reasons of policy supporting the instruction the jury was given as to the meaning of what is ‘reckless’. The President said (at 697): 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. Every individual has a right to the human dignity of his or her own person. Having sexual intercourse with another, without the consent of that other, amounts to an affront to that other’s human dignity and an invasion of the privacy of that person’s body and personality. It would be unacceptable to construe a provision such as s 61D(2) so as to put outside the ambit of what is “reckless” a complete failure to advert to whether or not the subject of the proposed sexual intercourse consented to it or declined consent. Such a law would simply reaffirm the view that our criminal law, at crucial moments, fails to provide principled protection to the victims of unwanted sexual intercourse, most of whom are women. Our law is not unprincipled or inadequate in this regard. Nor is the construction of s 61D(2) preferred by me inconsistent with the basic rule that the Crown must prove beyond reasonable doubt the requisite intent on the part of the accused. The Crown does so, relevantly, by showing that the accused is “reckless” as to whether the other person consents to the sexual intercourse. This can be shown 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. 52. In Tolmie the court was again concerned with the question of recklessness, this time for the purpose of s 61R(1) of the Crimes Act. In this case it was held that where an accused person has not

considered the issue of consent and the risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused’s mental capacity had he turned his mind to it, the accused is to be taken to have satisfied the mens rea referred to by the word “reckless” as used in s 61R(1). [His Honour then quoted a passage from the President’s judgment in Tolmie, which is set out at 6.17, in the final paragraph of the extract, and continued:] 53. Each of the above cases of Henning, Kitchener and Tolmie concerned the statutory concept of recklessness under either s 61D(2) of the Crimes Act or s 61R(1) thereof. The issue there was whether there was consent to sexual intercourse. 54. Mr Patch submitted this was a point of distinction between those authorities and the present case which involves the application of the common law because s 61R does not apply to an assault with act of indecency. 55. It was the submission of Mr Patch that the common law does not recognise the concept of inadvertent recklessness. The contrary was determined by the Court of Appeal in Fitzgerald v Kennard (supra). There it was held by majority that the necessary intention for indecent assault extended to non-inadvertent recklessness. Sheller JA concluded (at 195) that: … recklessness is demonstrated by an indifference whether the party is a consenting party or not. In this case the respondent said that: ‘It didn’t enter my mind’ whether the victim may not have wanted him to touch her. 56. In the same case Cole JA said (at 204): It was argued by Mr Byrne that in circumstances where the Crown could not prove that the accused knew consent was absent, the onus was upon it to establish that the accused believed that consent may be absent but nonetheless decided to proceed with the offending actions. He contended that the Crown in this case was seeking to change [page 256]

that established position at law by asserting that it was sufficient for the Crown to establish in the accused “absence of belief in consent”. The first of these alternatives he described as “advertent recklessness” in that the accused must be shown to have adverted to the question whether consent was present or may be absent. The latter he described as “inadvertent recklessness” because the recklessness in proceeding with the offending acts occurred absent any belief one way or the other concerning the existence of absence of consent. In my opinion this submission mis-states the law so as to create an apparent but unreal distinction. If the Crown proves, to adopt the words in R v Kimber, that the accused was “indifferent to her feelings and wishes”, that is, to whether she was or was not consenting, such that it can be said that he “couldn’t care less” in that regard, recklessness in relation to consent is established. If the Crown established, to the satisfaction of the tribunal of fact, either that the accused believed that consent may be absent, or that he was unaware whether consent was present or not and, uncaring in that regard, pressed on with his actions, in my opinion it would be established that the accused was reckless as to whether the complainant consented or not. 57. Kirby P dissented in Fitzgerald, and Mr Patch submitted that this Court should not follow Fitzgerald. It was acknowledged in argument that Fitzgerald has been followed by trial judges in cases of assault with act of indecency and the decision has now stood for many years. It is not distinguishable, and I am not persuaded that it was incorrectly decided. Moreover, I cannot perceive any sound reason for having a different notion of recklessness for offences involving an act of sexual intercourse from offences involving assault with an act of indecency. 58. The instruction given by the trial judge to this jury was given consistently with the principles determined in the authorities reviewed, and in particular in accordance with Fitzgerald v Kennard. 59. Mr Patch submitted in the alternative in relation to this second

ground that if reckless inadvertence is to be considered in connection with an offence of assault with an act of indecency it would only apply where there is a decision taken by the offender not to consider the issue of consent. That submission seems to me to introduce an extremely artificial element and in any event had the jury been instructed in accordance with that submission, the instruction would have been contrary to the principles in the cases to which I have above referred. In my opinion, the trial judge was correct in the instruction given on the issue of recklessness. 60. There was one further submission Mr Patch made about the subject instruction. He submitted that its expression could have distracted the jury, leading it to believe that it ought to apply an objective test as to the issue whether it was apparent or ought to have been apparent that the complainant was not consenting. I am not attracted by that submission. His Honour specifically directed the jury that it was the accused’s state of knowledge or belief with which it was concerned, not the knowledge or belief of some other person. … [His Honour then considered the ground of appeal that the trial judge’s directions on the question of the complainant’s capacity to consent were in error:] 69. … I repeat the relevant direction for the purposes of this ground, italicising that portion of the direction to which this ground is addressed: As I have said, members of the jury, the capacity of [the complainant] to consent is in issue. The Crown asserts that she did not have the capacity to consent because of the disabilities from which she suffers. Now this is very important members of the jury; where capacity to consent is in issue what the Crown must prove, beyond reasonable doubt, is that [the complainant] did not have sufficient knowledge or understanding to comprehend that what was proposed to be done was the physical fact relied upon by the Crown in respect of each of the five charges. Or, that she did not have sufficient knowledge or understanding [page 257]

to comprehend that the act proposed in each case was one of a sexual nature as distinct from an act of a totally different character. 70. The direction given follows R v Morgan [1970] VR 337 … . Unlike the present case, Morgan involved the alleged offence of rape. Whilst the directions may have been appropriate to such a charge, it was submitted that they were not appropriate here because the charge was a different one, namely assault with act of indecency. Such an offence is of a type that may involve an assault with no sexual content: see R v Beserick (1993) 30 NSWLR 510. The Court’s attention was directed to the judgment of Hunt CJ at CL in that case and the definition of assault at 537 and the direction that it was thought was required in Beserick. 71. Mr Patch argued that it was not appropriate for the judge to direct the jury in such a way as to introduce an issue of the complainant’s understanding that the act in each case was of a sexual nature. In short, Mr Patch submitted that set the bar too high for the issue of consent and the alternative instruction should not have been given. 72. I do not accept that submission. The assault and the element of indecency in respect of each of these counts upon which the appellant was convicted were inseparable. In my opinion, consistently with the manner in which the case was conducted, the judge was correct, having regard to the nature of the offences charged, to give Morgan-style instruction to the jury. … 98. The test for capacity in the instruction given to the jury was stated in accordance with the decision in R v Morgan (see paras 70–71 above). There was a case to go to the jury on the issue of the complainant’s capacity. However, although what was stated to be required to establish incapacity was relatively undemanding, I consider on the evidence that it is unlikely the jury did accept that she did not have the capacity to consent. Indeed, the Crown conceded as much in the course of the hearing of this appeal. 99. Of course, this leaves the issue as to whether the Crown established that the complainant did not consent in fact, and as to this Mr Patch submitted that the jury ought at least to have

entertained a reasonable doubt, particularly since the complainant gave no evidence as to counts 3 and 4 that she did not consent. Nor did the complainant tell Mr Kennedy, to whom she first spoke about what had occurred the previous night, that the appellant had acted against her will. Mr Patch also drew attention to the episode in the staff room where the complainant entered the staff bed with the appellant. As to this, Mr Patch referred to what the complainant told Ms Dunn, according to Ms Dunn’s notes made on 29 April 2001: “I fell for it. I knew I shouldn’t have said yes, but I did.” 100. Mr Patch submitted that although none of the assaults was alleged to have occurred in that bed, the complainant would hardly have entered the bed willingly if she had earlier been assaulted. … [His Honour then recounted the sequence of events concerning the offences charged and continued:] 108. The appellant had given evidence that when earlier he had been on the couch with the complainant [he] asked the complainant if she wanted to touch his penis, and said: I started to pull her hand towards my penis … She pulled her hand away and said “No, I don’t want to do that.” So I said “Okay, we won’t.” 109. My assessment of the evidence … concerning count 5 is that the jury was entitled to reject the appellant’s account of the incident as highly implausible. That account called upon the jury to consider, as a reasonable possibility at least, that the complainant, having already rejected an approach for such contact that night, at a time later on after she had expressed herself as feeling unwell, would have deliberately stretched out her [page 258] hand to make the contact. It is not surprising that the jury found the appellant’s version unacceptable. … 111. [In relation to counts 3 and 4] … The complainant gave evidence that the appellant rubbed and kissed her vulva outside her underwear.

112. The complainant gave no evidence that she resisted the appellant when he rubbed and kissed her underclothing. The jury was invited to conclude that there was submission but no consent. The complainant was asked in her evidence in chief: Q. Did you give permission to Ytzak [the name by which the appellant was known] to do the things that you have described on the couch? A. No, I didn’t. 113. Objection was taken to that question and in the exchange that followed the judge asked whether verbal permission was what was meant and suggested that that should be made plain to the witness. However the question was objected to and the answer was not struck out. 114. Later in cross examination the complainant was asked: Q. Ytzak’s told me that he never made you do anything that night. He only ever asked you. Do you understand that that is what he told me? What do you say about that? A. I say I don’t know if he made me do it or not. He — I’m all blank. 115. For his part, the appellant gave evidence that he began stroking the complainant’s legs with her express permission, although there was not much conversation. The appellant said the complainant gave him permission to kiss her legs. Having done so, he kissed her thighs and then her vulva outside her underpants. Then he stood up to kiss her breasts and the complainant said “Don’t do that”. The appellant says he then asked “Is it okay to keep kissing you like I was before?”, to which the complainant responded “Yeah, that’s fine”. 116. So it is that the appellant contends that he sought and obtained permission to kiss the complainant’s vulva after the complainant refused to let him kiss her breasts. It seems to me that a jury was entitled to regard that as being a highly unlikely chain of events. 117. The appellant was in a position of influence and authority over the complainant, a feature to be considered when the jury was

addressing the distinction between submission and consent. The jury had direct evidence that the complainant did not consent to having her hand placed on the penis of the appellant, and also direct evidence that she would not permit the appellant to kiss her breasts. … [His Honour then set out evidence given by the appellant that bears upon her attitude to what the appellant did, and continued:] 118. Plainly the jury accepted the evidence of the complainant … as to count 5 as it was entitled to do. It is equally plain that the jury rejected the appellant’s version that … count 5 related to activity in which the complainant was a consenting party, and, indeed, in which she was the active participant. Again this rejection was a conclusion the jury was entitled to reach. Having done so, it was not a giant step for the jury to reject the appellant’s assertion that he asked for and obtained the complainant’s permission for the activities to which count 3 and count 4 relate, albeit after such activities had started but were interrupted. Particularly is this so, when the appellant alleged permission to resume this more intimate contact was given immediately after permission was refused for him to kiss the complainant’s breasts. … 119. It seems to me, having reflected on the evidence, that it was open to the jury to find that the complainant did not consent to the acts the subject of counts 3 and 4, and that she actively resisted the appellant’s conduct relating to count 5. Moreover, I consider [page 259] that it was open to the jury to find beyond reasonable doubt that the complainant conveyed to the appellant the absence of consent in relation to count 5 by her attempted resistance. As to counts 3 and 4, it seems to me that it was open to the jury to conclude similarly that the respondent did what he did, reckless as to whether the complainant was consenting or not. … 131. Hulme J: I agree with the order proposed by Justice Studdert and with his Honour’s reasons. I would add only this. 132. There is a deal to be said for the view that in summings up in sexual assault cases judges should either avoid, or at least be very careful in, referring to consent being “freely and voluntarily given”.

133. “Freely” is defined in The New Shorter Oxford English Dictionary as, inter alia: “1. Of one’s own accord, spontaneously; without constraint or reluctance; unreservedly, without stipulation; readily, willingly.” or “2. Without restraint or reserve with regard to speech; unreservedly, frankly, openly, plainly.” “4. Without stint; plentifully, abundantly; generously, liberally.” 134. “Voluntary” is defined as, inter alia: “Of a feeling, sentiment, etc: arising or developing in the mind without external constraint; purely spontaneous in origin or character” and “of an action: performed or done of one’s own free will, impulse or choice; not constrained, prompted or suggested by another.” 135. It is clear law that, as a defence to a charge of sexual assault, consent need not accord with many of these meanings. Consent given reluctantly or only after a deal of persuasion is still, as a matter of law, consent. 136. In this case as Studdert J has pointed out, although using the words ‘consent freely and voluntarily given’, the trial judge did not leave the topic with that simple expression but went on to explain the concept of consent in terms which were sufficient to cure any ambiguity in the expression. [Appeal dismissed.]

SEXUAL ASSAULT Introduction 6.7 The basic sexual offence in New South Wales is sexual assault. This offence is created by s 61I of the Crimes Act.

61I Sexual assault 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.

6.8 Sexual assault replaces the old common law offence of rape. The framing of the modern offence is meant to reflect the fact that sexual offences are crimes of violence rather than sex. The definition of sexual intercourse is expanded to include more than penetration of the vagina by a penis. The offence is gender neutral. Males can [page 260] be sexually assaulted by women, and by other males, and females can be sexually assaulted by males, and by other females. The physical elements of the offence of sexual assault are: an act of sexual intercourse; without consent. The fault elements are that the accused: knew that the victim was not consenting; or was reckless with regard to consent.

Physical elements Act of sexual intercourse 6.9 Section 61H of the Crimes Act provides a definition of sexual intercourse. (1) For the purposes of this Division, sexual intercourse means: (a) sexual connection occasioned by the penetration to

any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i)

any part of the body of another person, or

(ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or (c) cunnilingus, or (d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

6.10 It is axiomatic that an act of sexual intercourse must be an intentional act. This is usually unproblematic. However, if the issue arises at trial, the judge must instruct the jury that it must be satisfied that the accused intended to perform the relevant act rather than it being, for example, an accident. R v AJS (2005) 12 VR 563; [2005] VSCA 288 Court of Appeal, Victoria [The appellant was the complainant’s grandfather. The complainant, aged 13, had been sleeping the night at the appellant’s house when she became unwell. The appellant rubbed her abdomen to try and relieve her pain. The complainant said that the appellant put his finger inside her vagina. The appellant denied that this happened, but said that if it did it was an accident. He did not intend to do so. The trial judge directed the jury that if they found the appellant’s finger entered the complainant’s vagina the offence of incest was proved. The appellant appealed arguing that the judge should also have told the jury that they needed to find he intended to put his finger into the complainant’s vagina.] [page 261]

Maxwell P, Nettle JA and Redlich AJA: … 18 On this appeal, counsel for the applicant submitted that intent was an essential element of the offence of incest and, further, that it had been one of the principal issues in the trial. He submitted that the failure of the Judge to direct the jury as to intent involved a fundamental departure from a proper trial and constituted a miscarriage of justice. Counsel further submitted that the direction on the alternate charge of indecent assault — that the applicant’s conduct must have been “wilful” — could only have served to compound the deficiency in relation to the direction on the count of incest. He submitted that the contrast in the directions given on the primary and alternative counts would have tended to emphasise in the jury’s mind that intention was not an element of the offence of incest which the prosecution was required to prove beyond reasonable doubt. 19 Remarkably, having regard to the fundamental principles to which we will refer, the Crown did not concede before this Court that intent was an “element” of the offence. The Crown relied on the fact that — in contradistinction to the alternative charge — the statutory language creating the offence of incest made no reference to intention. 20 In our view, this submission is without foundation and must be rejected. As counsel for the Crown acknowledged, it is a cornerstone of our notions of criminal responsibility that the accused must be shown to have had a blameworthy state of mind. As Stephen J pointed out more than a century ago in Reg v Tolson: The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed. 21 The reference to the mental element being proved to be absent was explained in Woolmington v Director of Public Prosecutions, in which the House of Lords laid down what Viscount Kilmuir LC later described, in Bratty v Attorney-General (Northern Ireland), as “the overriding principle”, namely that — It is for the prosecution to prove every element of the

offence charged. Viscount Kilmuir continued: One of these elements is the accused’s state of mind; … if, after considering evidence properly left to them by the judge, the jury are left in real doubt whether or not the accused acted in a state of automatism, it seems to me that on principle they should acquit because the necessary mens rea — if indeed the actus reus — has not been proved beyond reasonable doubt.[5] 22 Again, Dixon, J. in Thomas v R described the mental element in crime as “the most fundamental element in a rational and humane criminal code”. In Ryan v R, Barwick CJ said that “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”. This reflected the view expressed in Hardgrave v The King by Griffith CJ, that a person is not criminally responsible for an act “which is done independently of the exercise of his will or by accident”. The existence of a voluntary, willed act is an essential element of the crime. 23 An intent to do the physical act involved in the crime charged is indispensable to criminal responsibility. Intent is, unequivocally, an element of the crime. It is trite law that proof of an offence involves proof that the accused acted voluntarily and intended the act with which he is charged. In He Kaw Teh v The Queen, Brennan J stated as a general principle that: There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind. [page 262] 24 There are competing views amongst jurists, writers and academics as to whether the voluntariness of the accused’s conduct should be regarded as part of the actus reus or as part of the mens rea. In Director of Public Prosecutions (NT) v WJI, Gummow and Heydon, JJ. considered that the voluntary nature of

the conduct of the accused must be either an element of the actus reus or an element of the mens rea. 25 To prove the crime of incest, the prosecution must establish that the act of penetration was a voluntary and intentional (or willed) act on the part of the accused. The element of intent may not often be in controversy in crimes involving sexual penetration but, when intent is in issue, it is of paramount importance that the jury be directed as to the obligation of the prosecution to establish intent beyond reasonable doubt. 26 In this Court, the Crown submitted that, notwithstanding the failure by the Judge to refer to the need for the prosecution to establish intent, there had been no substantial miscarriage of justice having regard to the manner in which the trial had been conducted. It was said that, since both the Crown and the defence case had been conducted before the jury on the basis that the intention of the applicant was a central issue, the defect in the direction was not fatal. The jury would have recognised — so it was submitted — that it was necessary for the prosecution to establish that the applicant intended to penetrate the complainant’s vagina. It was submitted that the proviso (s.568 Crimes Act 1958) should be applied, since there was no chance that the applicant would have been acquitted if the correct instruction had been given to the jury. 27 We reject this submission. In our view, the applicant did not receive a fair trial according to law and there has been a substantial miscarriage of justice. … [Appeal allowed. Conviction quashed. New trial ordered.]

Without consent 6.11 The Crown must prove, beyond reasonable doubt, that the victim did not consent to the act of sexual intercourse. Section 61HA sets out a number of circumstances where an apparent consent to sexual intercourse is deemed not to be a valid or effective consent. The section adopts the definition of consent that was established by the common

law, as explained and applied in R v Mueller (2005) 62 NSWLR 476; [2005] NSWCCA 479 (see 6.6). 61HA Consent in relation to sexual assault offences (1) Offences to which section applies This section applies for the purposes of the offences under sections 61I, 61J and 61JA. (2) Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or

[page 263] (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. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. (4) Negation of consent A person does not consent to sexual intercourse: (a) if the person does not have the capacity to consent to

the sexual intercourse, including because of age or cognitive incapacity, or (b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or (c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or (d) if the person consents to the sexual intercourse because the person is unlawfully detained. (5) A person who consents to sexual intercourse with another person: (a) under a mistaken belief as to the identity of the other person, or (b) under a mistaken belief that the other person is married to the person, or (c) under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief. (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 a threat of force, or (c) if the person has sexual intercourse because of the abuse of a position of authority or trust.

(7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. (8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse.

[page 264] Commentary on s 61HA 6.12 Section 61HA was inserted into the Crimes Act by the Crimes Amendment (Consent — Sexual Assault Offences) Act 2007, and took effect as part of the law on 1 January 2008. Some observations can be made about the section and its effect on the law in this area: 1.

The section only applies to the offences of sexual assault (s 61I) and aggravated sexual assault (ss 61J and 61JA) (see s 61HA(1)). It does not apply to the other sexual offences in the Crimes Act, where the common law will continue to determine the relevant law with respect to consent.

2.

The section gives a definition of consent (s 61HA(2)) that is the same as the definition adopted in the case law. The cases that explain what ‘freely and voluntarily’ means will, therefore, continue to be relevant (see R v Mueller (6.6) and R v Clark (6.13)).

3.

Section 61I provides that, to be guilty of sexual assault, an accused must ‘know’ that the other party is not consenting. Read literally this would appear to exclude other possible fault elements such as recklessness. Section 61HA(3) provides an extended definition of ‘know’ to provide that recklessness with respect to consent is sufficient, and, when it comes to a belief in consent, that belief must be both honest and reasonable. Section 61HA(3)(b) reflects the law before

the enactment of s 61HA so, again, older cases dealing with recklessness (see R v Mueller (6.6) and R v Hemsley (6.16) and R v Tolmie (6.17)) will continue to be relevant. Section 61HA(3)(c) reflects a significant change in the law and will be discussed in detail at 6.14. 4.

Section 61HA(4) and (5) sets out circumstances where an apparent consent is no consent for the purposes of the law. As to the effect of these provisions, see 6.13.

5.

Section 61HA(6) sets out evidentiary matters, that is, facts the jury can take into account when deciding whether or not the complainant did in fact consent to the act of sexual intercourse.

6.

Section 61HA(7) provides that mere acquiescence is not consent, that is, a person does not have to fight against unwanted sexual intercourse to be taken to have refused consent.

7.

Section 61HA(8) makes it clear the section is not a ‘code’, that is, it does not cover every aspect of consent. Every case will turn on its own facts and, if there are other grounds that show the complainant was not consenting, they may still be raised.

Consent must be free and voluntary 6.13 Section 61HA(4)(c) provides that consent to sexual intercourse is no consent if it is given in response to threats of force or terror. This issue arose in Clark, where the accused alleged that the victim consented to sexual intercourse with him in order to get his protection from others who threatened to hurt him. The victim, on the other hand, denied consenting at all. It was clear that, if the jury accepted the victim’s version of events, Clark was guilty of sexual assault, but the question for the court

[page 265] was would Clark also be guilty if the jury accepted his, that is, the accused’s, version of events? In the course of the judgment, the requirements for ‘free and voluntary’ consent to sexual intercourse were stated in a manner subsequently approved in Mueller. The court in Clark held that the victim’s consent may not be valid where he or she submitted through terror or threats emanating from a source other than the accused. (Before the enactment of s 61HA the relevant section was s 61R and this is the section discussed in the judgment below.) R v Clark Unreported, NSWCCA, 17 April 1998 NSW Court of Criminal Appeal [The appellant and the victim were both inmates in gaol. The victim was advised that three other inmates were intending to harm him. The appellant offered to protect him in return for sex. The appellant claimed that the victim thereby consented to sexual (anal) intercourse. The victim’s version was that he was sexually assaulted by the appellant. The appellant was convicted and appealed.] Simpson J: … Two competing versions of the events were put before the jury in the sworn evidence of the complainant, and that of the appellant. The complainant gave a clear account of sexual intercourse without consent. Had the jury accepted beyond reasonable doubt the account given by him, there is no question that their duty was to convict. The Crown case can be put to one side. What is at issue here is whether, if the jury accepted the appellant’s version, he was nevertheless liable to be convicted. … It was open to the jury, in my opinion, to take this evidence as meaning that the appellant secured the consent of the complainant to intercourse by an offer of protection against others who wished or intended sexually to assault him. This raised the question of the correct direction to give a jury where it is open to them to conclude that consent has been obtained in this way.

The direction given by the judge was this: Now members of the jury, you remember the Crown Prosecutor also said to you in his final address that absence of consent does not mean that you have got to fight and scratch and kick and shout and resist. Just because someone passively submits to something does not mean to say that they welcome it. If it is a question of a person putting up with the inevitable without a struggle, that is not the same as consent. Members of the jury, in broad form this case really is a question for you to determine whether on the one hand, one person was being violated over the bed, that is the Williams version, the Crown version, or whether both persons were lusting on the bed, that is the accused’s version. The final passage in this direction does not accurately represent the appellant’s version of events. He never suggested that either participant was ‘lusting on the bed’, and particularly did not suggest that Williams was doing so. This, however, is not the issue raised in this appeal. The issue that concerned the jury was what they should make of the consent allegedly given by Williams as outlined by the appellant in his evidence. That is plain from the question they asked which reads: If after giving the alternative of being left to three men or having sex with one, plus you are unable to leave the room, that is, it is sex with the one or leave and the other three will have you, do you take the first alternative as the lesser of two evils. We seek legal guidance as to whether that is consensual sex or rape. [page 266] In response to this question the judge gave the jury this further direction: The way I am going to answer that question is not specifically to answer that question because I want to ensure that my own personal views about any part of this case are not put up to you in any persuasive way. The

way I propose to answer your question is this: one of the essential elements that the Crown has to prove is that the activity took place without the consent of Williams, and that the first portion of that proposition is that Williams must not have consented to the accused putting his penis in Williams’ anus. And I want to direct you that consent is free choice, consent is not submission due to some pressure. That is the direction I give you. … Section 61R of the Crimes Act 1900 … does not contain express reference to consent “freely and voluntarily given” [but see now s 61HA(1)]. It does provide, in subs (2)(c), that: (2)(c) A person who submits to sexual intercourse with another person as a result of threats or terror, whether the threats are against, or the terror is instilled in, the person who submits to the sexual intercourse or any other person, is to be regarded as not consenting to the sexual intercourse; … Section 61R(2)(d) … provides: (d) A person who does not offer physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. The remaining subparagraphs of s 61R(2) sets [sic] out specific instances of circumstances which, if proved, vitiate consent given to sexual intercourse. It is to be noted, however, that the opening words of the subsection are: (2) For the purposes of ss 61I and 61J and without limiting the grounds on which it may be established that consent to sexual intercourse is vitiated: … “Consent” … for the purposes of NSW law … means consent freely and voluntarily given. … 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 or terror, his consent thereby being vitiated as a result of s 61R(2)(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. 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 complainant’s consent to 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 intercourse …. Secondly, they should have been directed that consent is not consent unless 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. (It would, of course, have been necessary also to give a direction as to recklessness consistent with s 61R(1) and to have reminded the jury of the evidence relevant to each of these matters.) [McInerney and Studdert JJ agreed. Appeal upheld. New trial ordered.]

[page 267]

Fault elements Knowledge of and recklessness as to consent 6.14 The Crown must prove that the accused knew that the victim was not consenting. The common law concept of

‘knowledge’ is given an extended meaning with respect to sexual assault by virtue of s 61HA(3). For the text of s 61HA see 6.11. 6.15 Section 61HA does not apply with respect to other sexual offences, such as indecent assault under ss 61L and 61M. The effect of s 61HA(3)(b) is that the mental element for sexual assault is established if the accused either knew that there was no consent or was reckless as to this possibility. But, in Mueller (see 6.6), the Court of Criminal Appeal held that this is also the position at common law, which applies in the case of the fault element required for offences such as indecent assault. 6.16 The meaning of ‘recklessness’ was considered in Hemsley (below) and Tolmie (see 6.17), decisions which were approved and applied in the context of indecent assault by the NSW Court of Criminal Appeal in Mueller (see 6.6). R v Hemsley (1988) 36 A Crim R 334 NSW Court of Criminal Appeal [The Crown alleged that the complainant had travelled to a remote farmhouse looking for a friend. When she arrived there a party was in progress. It was alleged that the appellant forced his way into her car and took her to a remote area where he sexually assaulted her. He denied that this occurred and was acquitted in relation to this matter. The Crown further alleged that the appellant and the complainant returned to the farmhouse where she was dragged inside and a number of men had forced sexual intercourse with her over a period of some hours. She resisted for as long as she was physically capable of doing so, but for much of the time she was only semi-conscious. She was unable to identify the men who had had sexual intercourse with her. When her sister arrived she reported that she had been raped by a number of men, including the appellant. The appellant agreed that sexual intercourse had taken place at the farmhouse but claimed that it was with consent. He was convicted of sexual assault in relation to that matter.] Yeldham J: … The first ground of appeal was that the trial judge

erred in law in his directions on recklessness as it related to the issue of consent. It should here be observed that s 61D subs (2) of the Crimes Act1 provides that, for the purposes of that section, a person who has sexual intercourse with another without the consent of the other person and who is reckless as to whether that other person consents to the sexual intercourse shall be deemed to know that the other person does not consent to it. … [His Honour set out the trial judge’s direction and continued:] [page 268] On behalf of the appellant it has been submitted that his Honour should have directed the jury that the appellant realised the probability rather than possibility that the victim was not consenting. In this respect counsel relied upon a decision of the High Court in R v Crabbe (1985) 156 CLR 464 where, in relation to an act of recklessness causing murder, such a test was stipulated. The rationale of that principle was pointed out in the joint judgment at p 469 in these words: The conclusion that a person is guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm is not only supported by a preponderance of authority but is sound in principle. The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur. However, because the crime there involved was murder and because the rules of the common law define murder as unlawful homicide with malice aforethought, the court was there concerned to consider the element of recklessness so far as it related to that concept, that is to say malice aforethought. So much is plain from

what appears in the joint judgment at pp 467 and 470. In my opinion that decision, and the principle which it enunciates, and which, as the House of Lords reminded us in R v Hyam [1975] AC 55, has long been the law as far as murder is concerned, has no application to the crime of rape or to the statutory provision in s 61D subs (2) … that a person who is reckless as to whether his victim consents shall be deemed to know that she does not. … In R v Sperotto (1970) 71 SR(NSW) 334 this Court, consisting of five judges, in a joint judgment at p 337 said this: In all crimes at common law a guilty intention is a necessary element and with a crime of rape this intention is to have carnal knowledge of the woman without her consent. In order to convict the accused of the crime of rape and, subject to what is hereinafter said, to establish this intention on his part the Crown must prove beyond reasonable doubt that when the accused had intercourse with the woman either (i) he was aware that she had not consented, or (ii) he realised that she might not be consenting and was determined to have intercourse with her whether she was consenting or not. The intent and the act must both concur to constitute the crime. The fact that Sperotto’s case was later overruled in R v McEwan [1979] 2 NSWLR 926 as a result of the decision of the House of Lords in Morgan’s case in no way affects the passage referred to which, in my experience, is always the standard test put to the jury in the case of the crime of rape and where an offence under s 61D [s 61I] of the Crimes Act is charged. In my opinion, this ground of appeal fails. [Carruthers and McInerney JJ agreed with Yeldham J. Appeal dismissed.]

Non-advertent recklessness 6.17 In Hemsley, the NSW Court of Criminal Appeal held that an accused was reckless if he or she realised that the victim might not be consenting to sexual intercourse. As with the concept of ‘recklessness’ in murder and assault, this test

requires the accused to have given some thought to the outcomes of his or her actions. In Tolmie the question was: could a person be ‘reckless’ (a subjective test) if he or she did not think about consent at all, that is, if that person did not know that [page 269] the victim was not consenting and did not realise the victim might not be consenting because he or she failed to consider the victim’s consent at all? In Mueller (see 6.6), the Court of Criminal Appeal expressly approved Tolmie, and indicated that the principle applied equally at common law and with respect to indecent assault. R v Tolmie (1995) 37 NSWLR 660 NSW Court of Criminal Appeal [The complainant and the appellant had been part of a group drinking at a club. They were seen to be kissing and fondling each other. The group set off to walk to the home of one of them. This involved walking along a poorly lit path. The complainant and the appellant fell behind the rest of the group. The complainant alleged that the appellant then forced her to the ground and had sexual intercourse with her despite her protests. The appellant agreed that sexual intercourse took place but claimed that it was with consent. He suggested that the complainant feared that the other members of the group would tell her fiancé of her behaviour and this caused her to fabricate the allegation of sexual assault. The trial judge gave the jury directions on the issue of recklessness. The appellant appealed arguing that those directions had contained an error.] Kirby P: … The appellant submitted that the trial judge erred in his initial direction as to recklessness by intending to embrace within that concept, situations where an accused is not specifically aware of the possibility that the complainant may not be consenting. In this respect, the appellant effectively sought to challenge the correctness of this Court’s decision in R v Kitchener (1993) 29 NSWLR 696. The argument was that R v Kitchener, if it purported to incorporate notions of inadvertence or negligence into the mens

rea of unlawful sexual intercourse, would be inconsistent with a central tenet of our criminal law — that a person should not be subject to serious criminal sanction for actions which they aren’t proved to have intended. The appellant thus contended that the mental element of the crime must be, and has always been, that the accused either knew that consent was absent or knew that it might be absent, and nevertheless proceeded. The submission although not specifically put in this case, would presumably be that if proof of guilty intent, fundamental to our legal system, is to be taken away or modified then this should be done only by parliament and not by a judicial gloss on so fundamental a requirement of the criminal law. Alternatively, the appellant sought to distinguish R v Kitchener in that the direction as to recklessness arose in the present case in the context of consent being allegedly withdrawn during the act of sexual intercourse. The appellant submitted that, in such a case, failure to consider the question of consent could not satisfy the requisite mens rea; ‘otherwise the mere failure to advert to the question of consent during a continuing, and until that moment consensual, intercourse would result in the commission of an offence’. This submission was put on the dubious footing that the continuation of intercourse is different from its commencement in that, in continuation, there is no event which would put the accused on notice as to the question of consent. … “Recklessness” is not defined in the Act. It is to be construed as according to the position of the former common law offence of rape. … As counsel for the appellant stated in this case, the remarks concerning recklessness in R v Kitchener and the authorities on which they are based are open to divergent interpretations. Statements in Director of Public Prosecutions v Morgan [1976] AC 182 and R v Kimber [1983] 1 WLR 1118 especially can be seen to refer not to a strictly [page 270] inadvertent state: that is, where the accused is completely unaware that the complainant might not be consenting, but rather to a state where the accused has, in his own mind, decided that he will have intercourse with the complainant regardless of whether the

complainant actually consents or not. In this situation, the accused has implicitly adverted to and accepted the possibility that the complainant may not be consenting. It is only the fact of whether the complainant actually consented or not, to which the accused did not turn his mind. It is this construction that seems to be intended by Lawton LJ in R v Kimber, by their Lordships in Director of Public Prosecutions v Morgan, (and particularly Lord Hailsham) where the intention to have sexual intercourse “nolens volens” is patently present despite the accused’s supposed lack of actual knowledge of the complainant’s state of mind. The ambiguity lies with the fact that the words “failure to advert at all to the question of consent” or “the act of treating consent as an entirely irrelevant factor” (R v Henning), or “without caring whether or not she was a consenting party” (Lord Edmund-Davies in Director of Public Prosecutions v Morgan) can be read to go beyond a description of the conscious intention of the accused towards a more “objective” negligence-based description of the accused’s behaviour. Commentators have pointed to this ambiguity of the expression “indifference” saying “it is less preferable in that it does not emphasise that the defendant must indeed advert to the possibility”: Gillies, Criminal Law, 2nd ed (1990) at 554. One qualification necessarily present on the operation of recklessness, at least as formulated in Director of Public Prosecutions v Morgan and R v Kimber, is that recklessness has no operation where the accused has an honest (but not necessarily reasonable) belief that the complainant is consenting. In this sense if amounting to an inadvertent test, recklessness is limited to cases in which the accused did not consider the question of consent at all. It might be that the “reckless failure to give a moment’s thought to [the] possibility” of non consent, as I said in R v Kitchener (at 697), might provide a qualification on the operation of the principle set out in Director of Public Prosecutions v Morgan, that in order to allow an honest belief to exculpate guilt, the defendant to a charge of unlawful sexual intercourse must have at least considered and evaluated the possibility that the complainant may not be consenting. This is of course an additional requirement to the completely subjective test set out in Director of Public Prosecutions v Morgan. … It may be that the accused who has not adverted to whether the

complainant has consented or not, who is not moving forward on the positive assumption that the complainant is consenting has satisfied the requisite mens rea in the eyes of the law. This may be because as a matter of reality, the law believes it impossible that an accused in such a situation was not in fact aware of the possibility that the complainant was not consenting. This is not only an evidentiary matter, one of deciding whether an accused was in fact aware but one of substantive law — that the law simply does not recognise such a state as inadvertent recklessness in the context of unlawful sexual intercourse. While I am quite attracted to such an idea, because it presents a practical solution to the quandary of legal principle, I am ultimately of a view that such a state of inadvertence, where the accused has genuinely not considered the question of consent to sexual intercourse, and is hence oblivious to the possibility that the accused may not be consenting, is at least theoretically possible. A belief in the authenticity of such a state has formed the basis of the judgments of this Court in R v Henning and R v Kitchener. It has been assumed by counsel on both sides in this case. It should be a factual matter available for argument and persuasion before the tribunal of fact (normally a jury). Such fact finders can be trusted to determine the contention in a practical way. They should not be made to decide the question by a legal fiction, or rule, that the hypothesised state of mind is impossible of attainment. Given the fact that the accused may assert unawareness of non-consent in very rare cases, the law cannot simply pretend in those situations that as a matter of law it is not possible to be in that state of mind. But, as [page 271] decided in R v Kitchener, the law should and does punish this form of inadvertent behaviour in the case of unlawful sexual intercourse because parliament has authorised it to do so in cases of reckless conduct as defined. … The debate as to the application of advertent or inadvertent tests in satisfying standards of recklessness is one that has arisen in other areas of the criminal law. The issue has been directly commented upon in a series of decisions of the House of Lords in R v Caldwell [1982] AC 341, R v Lawrence [1982] AC 510 and R v Reid [1992]

1 WLR 793. These decisions together have, as one commentator has noted, “amounted to a landmark in judicial thinking about the fault element in crime”: S Gardiner “Recklessness Refined” (1993) 109 LQR 21. By majority in R v Caldwell and unanimously in R v Lawrence and R v Reid, their Lordships rejected the contention that recklessness should always require perception of risk. Their Lordships held that in the criminal law generally “recklessness” in its ordinary meaning connotes both advertent and inadvertent states of mind. Lord Diplock in R v Caldwell, said (at 353–354): … “Reckless” as used in the new statutory definition of the mens rea of these offences is an ordinary English word. It had not by 1971 become a term of legal art with some more limited esoteric meaning than that which it bore in ordinary speech — a meaning which surely includes not only deciding to ignore a risk of harmful consequences resulting from one’s acts that one has recognised as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where if any thought were given to the matter it would be obvious that there was. R v Lawrence and R v Reid concerned the offence of ‘reckless driving’ under s 1 of the Road Traffic Act 1972 (UK) and R v Caldwell was related with reckless endangerment under s 1(2) of the Criminal Damage Act 1971 (UK). It is therefore not appropriate to apply their Lordships’ comments, without modification, to the crime of sexual intercourse without consent. However, there are some useful parallels in their speeches for the present context. As in R v Kitchener, policy considerations played a large part in their Lordships’ deliberations, in particular the idea that advertence to risk is a flawed yardstick of moral culpability. As Lord Goff put it in R v Reid (at 811): … an inquiry into the existence of actual foresight of the risk would seem to be unrealistic for the purposes of assessing blameworthiness or criminality. Indeed it can be argued with force that, in many cases of failing to think, the degree of blameworthiness to be attached to the driver can be greater than to be attached in some cases to the driver who recognised the risk and decided to disregard it.

This is because the unspoken premise which seems to me to underlie Lord Diplock’s statement of the law in Lawrence (and perhaps also in Caldwell) is that the defendant is engaged in an activity which he knows to be potentially dangerous. Every driver knows that driving can be dangerous: and if when a man is in fact driving dangerously in the sense described by Lord Diplock, he does not even address his mind to the possibility of risk, then, absent special circumstances … it is right that he should, if the risk was obvious, be held to have been driving recklessly, even though he was not in fact aware of the risk. It cannot be right that in such circumstances he should be able to shelter behind his own ignorance, or be given preferred treatment as compared with another person who, having recognised the risk, has wrongly decided to disregard it. Other Law Lords made similar comments in R v Reid: see Lord Keith (at 796) and Lord Ackner (at 804); see also Lord Diplock’s speech in R v Caldwell (at 352). There is a strong analogy in terms of the participant’s assumption of responsibility in the activities of driving and sexual intercourse. Both activities involve conduct which should put the individuals involved on notice of the potential harm to victims which can flow from recklessness. In the context of sexual activity the difference between someone who is put on conscious notice or who is forced by circumstances to actually consider the issue of consent of a sexual partner, is likely to be where that person is more sensitive to the other’s autonomy, dignity and value. The criminal law, at least in respect of conduct as seriously invasive as sexual intercourse, should not fall more [page 272] heavily on those who exhibit some attention to the rights of others while exculping those who are so insensitive to the rights of others that they do not consider their wishes in respect of sexual intercourse although they are necessarily relevant and important in the process of initiation and continuation of sexual intercourse. An advertent standard for recklessness, relying solely on the accused’s perception of risk, while being dependent on the priority

that the accused accords to the wishes of the other, is also dependent in part at least, on the interpretation and meanings that the accused gives to words like “consent” and the behaviour of the other individual. … The criminal law, in its important function of controlling behaviour, should promote standards of acceptable consensual sexual behaviour of the community. In a sense this is more important today than in earlier times when many judgments in this area were written. Since the so-called “sexual revolution” in the 1970s perceptions of sexual morality have changed in our society. Sexual intercourse outside marriage is more common. So long as it is between consenting adults (and involves no risk of disease etc) it is none of the law’s business. The appellant reflected this thought in his unsworn statement to the jury (quoted above). But lack of consent does make it the law’s business. Lack of the merest advertence to consent in the case of sexual intercourse is so reckless that it is also the criminal law’s business. In this, the law does no more than reflect the community’s outrage at the suffering inflicted on victims of sexual violence. To allow accused persons to escape conviction merely because they do not realise the significance of what they have done, where they have completely ignored the requirement of consent as a prerequisite for sexual interaction, is completely antithetical to the attainment of the goals which the criminal law properly sets for itself in this area. It follows from the decisions in this jurisdiction of R v Hemsley, R v Kitchener, R v Henning, and like decisions in other jurisdictions such as R v Reid, R v Caldwell and R v Lawrence in the House of Lords, that, where the accused has not considered the question of consent and a risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused’s mental capacity if they had turned their mind to it, the accused is to be taken to have satisfied the requisite mens rea referred to by the word ‘reckless’ in s 61R of the Crimes Act 1900. This would apply to situations where consent has been withdrawn during intercourse where the accused was not continuing with the honest belief that the victim was in fact consenting. … [Barr AJ and Newman J agreed with Kirby P. Appeal dismissed.]

6.18 As is apparent from Tolmie, above, in order to establish that the accused had the necessary mens rea for

sexual assault, the prosecution may prove either that the accused knew the victim was not consenting or that the accused simply failed to consider whether or not the complainant was consenting. Alternatively, the accused’s state of mind might have been such that he or she realised the possibility that the complainant was not consenting, but went ahead regardless of this. Advertent recklessness is the subject of the next section. Note also the definition of recklessness in s 4A of the Crimes Act which includes ‘knowledge’.

Advertent recklessness 6.19 Banditt considered the situation where the accused was aware of the possibility of absence of consent but proceeded to engage in sexual intercourse with the complainant regardless. The question arises whether or not this would constitute [page 273] the mental state required for recklessness, that is, when there is a determination by the accused person to engage in sexual intercourse with the complainant, not caring whether the complainant is consenting, as distinct from being aware of the possibility that the complainant may not consent. R v Banditt (2004) 151 A Crim R 215; [2004] NSWCCA 208 NSW Court of Criminal Appeal [The complainant lived in a two-storey townhouse in a country town. The appellant was a cousin of the complainant, who had lived in the town for about four or five months. The complainant did not have any close relationship with the appellant. About two months before the date of the alleged offence the appellant came to the complainant’s house. She let him into the house and the two of them sat on the same lounge. The appellant tried to kiss the complainant. She pushed him away, told him to ‘stop it’ and told

him ‘I think it’s time you went home now’. The complainant persisted in asking the appellant to leave and the appellant ultimately left. The complainant was upset by what had happened and told her mother. About two weeks before the date of the alleged offence the appellant came to the complainant’s house late at night and ‘banged’ on the door. The noise woke the complainant and her neighbours, and a neighbour told the appellant in coarse language to leave. The appellant left. On a subsequent evening the complainant went to a tavern in the town with some friends. Inside the tavern she noticed the appellant with some of his family and friends. The complainant approached the appellant and complained to him about his conduct on the previous occasion in coming to her house late at night and knocking loudly on the door. The complainant left the tavern at about half past eight and went to a hotel. She left the hotel at about 10 o’clock and, after spending about an hour at a friend’s place, returned home. At her home the complainant, before going to bed, made sure that everything was locked, including securing the windows of the townhouse by rods or dowels which would prevent the windows being fully opened. That night there was no one else in the townhouse. The complainant’s children were spending the night with the complainant’s mother. The complainant went to bed. In accordance with her usual practice, she slept naked. The complainant’s next recollection was ‘waking up with somebody on top of me and not knowing who it was’. She could feel a person trying to push his penis into her vagina and the penis actually entered her vagina. She could not see much because the television set, which she had left on, had been turned off. The complainant said in evidence: ‘I realised who it was … when I’d sort of reached up and touched his head and realised that he had a bald head … I asked him how could he do this to me. I told him to get off and to get out.’ The complainant could feel that the appellant had no clothes on. The complainant pushed the appellant off with her hands and feet and told him to get out. She estimated that it was only a matter of seconds between her waking up and pushing the appellant off. The appellant got up from the bed and got dressed. The complainant persisted in telling the appellant to leave the house and the appellant left.] James J: … 42. The appellant said that he had had a number of meetings with the complainant. He had seen the complainant once

or twice a week at the tavern. At the tavern the complainant would greet him with a hug and a kiss. The complainant told the appellant that, if the appellant needed somewhere to stay, he could stay at her house. She would leave the front door unlocked. 43. A couple of weeks after their first meeting at the tavern the appellant had gone to the complainant’s house. The front door of the house was unlocked and the appellant [page 274] entered the house. The complainant was asleep on a lounge downstairs. The appellant assisted the complainant upstairs into her bedroom. In the bedroom the appellant and the complainant hugged and kissed and ‘we ended up having sex’. 44. After this incident the appellant and the complainant saw each other at the tavern. The complainant greeted the appellant with a hug and a kiss. 45. A couple of weeks later the appellant went to the complainant’s house and knocked on the door. There was no answer. A neighbour came out and told the appellant to leave. 46. A week or so later the appellant went to the complainant’s house with some beer. The complainant invited him into the house. Inside the house the appellant tried to kiss the complainant but the complainant said ‘don’t’. 47. The appellant gave his version of what had happened on the night of the [tavern incident] … He did not recall the complainant raising her voice to him at the tavern. The appellant spent time at the tavern, then at a hotel and then at a private party. 48. The appellant decided to go to the complainant’s house and seek accommodation for the night there. At the complainant’s house he knocked on the windows and doors but there was no answer. He entered the house through the downstairs toilet window, using the chair. He did not notice any stick or other device to stop the window being opened. 49. After entering the house the appellant turned some lights on downstairs and called out the complainant’s name. He then proceeded upstairs and entered the complainant’s bedroom. He saw the complainant lying in her bed. He called the complainant’s

name and shook her leg. ‘She woke up a little bit — like she was a bit groggy.’ He asked the complainant what she had done after being at the tavern and the complainant said that she had gone home after being at the tavern. The appellant laid down beside the complainant on the bed. The appellant asked the complainant where the children were and the complainant said that they were at her mother’s. The appellant’s evidence continued: Then I put my arm around her and we kissed again and hugged each other and then we were like stroking each other’s upper bodies — like we were kissing. Then like (the complainant) when stroking me she lifted my shirt up a bit and then we were still kissing and then I’ve stopped kissing her and then we’ve pulled my shirt off and then I took my shoes and pants off while I was laying down beside her and hopped under the blankets with her. Some more kissing and hugging and then I hopped on top of her and we were engaged in — well getting to engage in having sex with her and then she’s — minute or so later, she’s pushed me and said ‘No, stop’. 50. The appellant said that by the time the complainant said ‘stop’ the appellant had penetrated the complainant. … 68. It was submitted by counsel for the appellant that an issue of whether the Crown had established that the appellant knew that the complainant did not consent to sexual intercourse on the basis that the appellant was reckless as to whether the complainant was consenting, had been a real issue at the trial. In support of this submission counsel referred to evidence by the appellant and some of the other defence witnesses about demonstrations of affection by the complainant for the appellant on other occasions, evidence by the appellant and the complainant about previous visits by the appellant to the complainant’s home, some evidence by the complainant that at the time of the sexual intercourse she was not asleep but in a semi-conscious state between being asleep and being fully awake, evidence that both the appellant and the complainant were, at least to some degree, intoxicated, evidence by the appellant that before the

[page 275] sexual intercourse took place there was some, even if brief, conversation between the appellant and the complainant, evidence by both the appellant and the complainant that there was no light on in the bedroom at the time of the sexual intercourse, the television having been turned off and the room light not being on, and evidence by the appellant, supported to some extent by evidence by the complainant, that when the complainant by words and acts made it quite clear that she was not consenting, the appellant desisted. 69. It was then submitted by counsel for the appellant that, because recklessness as to whether the complainant was consenting was a real issue at the trial, it had been necessary for the trial judge to give the jury directions about recklessness and that those directions should have been correct. 70. Counsel for the appellant contended that the direction given by the trial judge at p 72 of the transcript of the summing-up, that ‘if he is aware that there is a possibility that she is not consenting but he goes ahead anyway, that is recklessness’ and the substantially similar direction given at pp 72–73 of the transcript of the summing-up, that ‘he was reckless in the sense that … he recognised that there was a possibility that she may not consent but he went ahead and did it anyway’ were erroneous. It was contended that the mental state required for recklessness as to whether the complainant is consenting to sexual intercourse is not established by proof of an advertence by an accused person simply to the possibility of absence of consent on the part of the complainant. An awareness of the possibility of absence of consent would only constitute the mental state required for recklessness, where it is accompanied by a determination on the part of the accused person to engage in sexual intercourse with the complainant whether or not she is consenting, that is to say a determination by the accused person to engage in sexual intercourse with the complainant, not caring whether the complainant is consenting. 71. It was further submitted by counsel for the appellant that ‘as a matter of common sense’ an accused person does not act recklessly, if he believes that the complainant is consenting to

sexual intercourse, even though he is aware of the possibility that the complainant is not consenting. It was put that, if an accused person believes that it is overwhelmingly probable that the complainant is consenting but is aware that there is a slight chance, say a one percent chance, that she is not consenting, then surely the Crown should not be regarded as having succeeded in establishing that the accused knew that the complainant was not consenting. 72. Counsel for the appellant, while not suggesting that there was any authority which directly supported his submissions, referred to a number of cases including … R v Daly [1968] VR 257; R v Sperotto (1970) 71 SR (NSW) 334; R v Zorad [1979] 2 NSWLR 764 …. Counsel referred particularly to the statement by the Full Court of the Supreme Court of Victoria in Daly at 259 and equivalent statements by the New South Wales Court of Criminal Appeal in Sperotto at 337 and in Zorad at 773 that ‘the Crown must establish beyond reasonable doubt that the accused either was aware that the woman was not consenting or else realised that she might not be and determined to have intercourse with her, whether she was consenting or not’ … . 74. Counsel for the Crown on this appeal submitted that, on the evidence given at the trial, there was little scope for recklessness. It was submitted that, in any event, the directions which the trial judge gave were sufficient. It was put that an accused is reckless as to whether the complainant is consenting to sexual intercourse, if, having an actual awareness that the complainant might not be consenting, he proceeds to have sexual intercourse with her. An actual awareness that the complainant might not be consenting and the decision to proceed to have sexual intercourse with her, notwithstanding that awareness, amount to an indifference to whether the complainant [page 276] is consenting or not. It was submitted by the Crown that the decision of the Court of Criminal Appeal in Hemsley (1988) 36 A Crim R 334 [see 6.16] strongly supported the correctness of the directions given by the trial judge concerning recklessness and that the directions given by the trial judge were not substantially

different from the directions which had been approved in Daly, Sperotto and Zorad. … 76. I accept counsel for the appellant’s submission that recklessness was a real issue at the trial of the appellant and that it was necessary that the directions which the trial judge gave concerning recklessness and knowledge of absence of consent should have been correct. Even if recklessness had not been a real issue at the trial, the trial judge gave directions about recklessness and, those directions being given, it was important that those directions should have been correct. In Tolmie (1995) 37 NSWLR 660 Kirby P observed at p 665 that, having regard to the issues at the trial in that case, the direction the trial judge had given about recklessness was unnecessary and it would have been preferable if it had not been given. However, his Honour continued: However, once given it was necessary that the direction should be made in accordance with the law, in case the jury might have acted upon it and been misled. 77. The Crown can, of course, prove the element of an offence under s 61I, that the accused knew that the complainant did not consent to the sexual intercourse, by proving that the accused had that knowledge. However, s 61R of the Crimes Act provides that a person who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse. 78. It is now well settled ‘that, where the accused has not considered the question of consent and a risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused’s mental capacity, if they had turned their mind to it, the accused is to be taken to have satisfied the requisite mens rea referred to by the word “reckless” in s 61R of the Crimes Act 1900’ (per Kirby P in Tolmie at 672, citing inter alia R v Henning (NSWCCA 11 May 1990 unreported), R v Hemsley and R v Kitchener [(1993) 29 NSWLR 696]). Although it is necessary to be cautious in using labels, such a form of recklessness can be described as ‘non-advertent’ recklessness. In the present trial the trial judge gave directions about non-advertent recklessness. The trial judge told the jury that a person who does not even consider whether the other person is consenting or not to sexual intercourse

is reckless as to whether the other person is consenting to sexual intercourse. No complaint was made on this appeal about the directions the trial judge gave about non-advertent recklessness. 79. Apart from non-advertent recklessness, it is clear that a person can be taken to know that the other person is not consenting to sexual intercourse by virtue of a kind of recklessness in which the first person has actually adverted to whether the other person is consenting to sexual intercourse. In my opinion, it is sufficient to constitute this kind of recklessness that the first person realises that the second person might not be consenting and, notwithstanding that realisation, decides to proceed to have sexual intercourse with her and has such sexual intercourse, without there being some additional, independent requirement that he is determined to have sexual intercourse with her, whether or not she is consenting. 80. This conclusion is strongly supported by the terms of the directions given by the trial judge in Hemsley and the decision of the Court of Criminal Appeal in that case that the ground of appeal that the trial judge had erred in his directions on recklessness should be rejected. [His Honour set out the trial judge’s directions in Hemsley and continued:] 81. In these directions the trial judge in Hemsley directed the jury that the accused would have a guilty state of mind as being reckless as to consent, if ‘he realises the possibility [page 277] that she is not consenting but chooses to proceed to have intercourse notwithstanding’, if ‘he realised the possibility that (the complainant) was not consenting to intercourse, but went ahead notwithstanding’ or if ‘he … realised that she might not be consenting but went ahead regardless’. All these formulations are substantially the same and are substantially the same as the directions Judge Freeman gave the jury in the present case, that ‘if he is aware that there is a possibility that she is not consenting but he goes ahead anyway, that is recklessness’ and ‘he recognised that there was a possibility that she may not consent but he went ahead and did it anyway’. Recklessness consists in an accused actually realising that there is a possibility that the complainant is not

consenting to sexual intercourse and, having that realisation, deciding to proceed to have sexual intercourse. In deciding to proceed to have sexual intercourse, having the awareness that the complainant might not be consenting, the accused decides to have sexual intercourse with the complainant, whether or not the complainant is consenting. 82. Counsel for the appellant sought to distinguish Hemsley. It was submitted that on the directions given by the trial judge in Hemsley the jury could not have convicted Hemsley, unless they were satisfied that the accused actually knew that the woman was not consenting. However, it is clear that in the directions given by the trial judge in Hemsley the three possible states of mind which the accused might have had were presented to the jury as alternatives and the jury could have found Hemsley guilty on the basis of being satisfied that he had the third state of mind, without being satisfied that he had the first state of mind, that is that he actually knew that the complainant was not consenting. 83. It was also submitted that the word ‘regardless’ used in one of the directions in Hemsley was apt to incorporate the requirement that the accused should have been determined to have sexual intercourse with the complainant, whether or not she was consenting. However, the word ‘regardless’ was used in only one of the formulations in the directions given by the trial judge in Hemsley and meant no more than ‘notwithstanding’, which was the word used in the other two formulations, or ‘anyway’ which was the word used by the trial judge in the present case. 84. Directions similar to those given in Hemsley and the present case were given by the trial judges in Kitchener and Tolmie. … [His Honour set out these directions and continued:] 86. In his judgment in the Court of Criminal Appeal Carruthers J, with whom the other members of the Court agreed, said, after quoting this part of the trial judge’s summing-up: Thus the trial judge put the issue of consent to the jury on three bases: namely, that the appellant knew that the complainant was not consenting; that the appellant adverted to the possibility that the complainant was not consenting, but that he went ahead regardless of this

possibility; and that the appellant failed to advert to the question of consent at all. 87. It is true that the appeal in Kitchener concerned that part of the directions given by the trial judge which related to failure to advert at all to the question of whether the complainant was consenting. However, it is of some significance that no member of the Court of Criminal Appeal expressed any disapproval of the direction that it would be sufficient for the Crown to prove that the accused adverted to the possibility that the complainant was not consenting but went ahead regardless of that possibility. This direction is indistinguishable from the direction which was given in the present case. 88. In Tolmie the trial judge told the jury: In order to establish that the accused was acting recklessly it must be proved beyond a reasonable doubt that he either realised the possibility that the girl was not consenting, but went on regardless or he simply failed to consider the question of whether or not she was consenting and just went ahead with the act of sexual intercourse. [page 278] 89. In his judgment in Tolmie Kirby P summarised the argument by counsel for the appellant as follows: The appellant submitted that the trial judge erred in his initial direction as to recklessness by intending to embrace within that concept, situations where an accused is not specifically aware of the possibility that the complainant may not be consenting. In this respect, the appellant effectively sought to challenge the correctness of this Court’s decision in R v Kitchener (1993) 29 NSWLR 696. The argument was that R v Kitchener, if it purported to incorporate notions of inadvertence or negligence into the mens rea of unlawful sexual intercourse, would be inconsistent with a central tenet of our criminal law — that a person should not be subject to serious criminal sanction for actions which they aren’t

proved to have intended. The appellant thus contended that the mental element of the crime must be, and has always been, that the accused either knew that consent was absent or knew that it might be absent, and nevertheless proceeded. The submission although not specifically put in this case, would presumably be that if proof of guilty intent, fundamental to our legal system, is to be taken away or modified then this should be done only by parliament and not by a judicial gloss on so fundamental a requirement of the criminal law. 90. As in Kitchener, the appeal in Tolmie related to the direction about non-advertent recklessness. However, it is of some significance that counsel for the appellant in Tolmie accepted the correctness of a direction of the kind given by the trial judge in the present case and that there is no suggestion in the judgments of the members of the Court of Criminal Appeal that this concession was wrongly made. 91. As regards the submission by counsel for the appellant that the accused should not be held to have acted recklessly, if he believed that probably the complainant was consenting to sexual intercourse, even though he was aware of the possibility that she was not consenting, this Court in Hemsley expressly held that it was not necessary for the Crown to prove that an accused realised the probability, as distinct from the possibility, that the victim was not consenting. 92. I would accept that, in order for an accused person to be liable on the basis of advertent recklessness, the possibility that the complainant is not consenting, of which the accused is aware, must be more than merely a bare possibility. In other areas of the criminal law where criminal liability depends on awareness or contemplation by an accused person of a possibility, it has been held that the possibility must have a certain degree of likelihood. … However, if an accused person is aware of a real possibility that the complainant does not consent to sexual intercourse, he acts recklessly if, having that knowledge, he decides to proceed to have sexual intercourse, even if he considers it probable (although ex hypothesi not certain) that the complainant does consent to sexual intercourse. In the kind of extreme case postulated by counsel for

the appellant, in which an accused believes that it is overwhelmingly probable that the complainant is consenting but is aware that there is a slight possibility, say a 1 per cent chance, that she is not consenting, then the possibility should be disregarded as being merely a bare possibility and not a real possibility. In the present case I do not consider that it was necessary for the trial judge to give any further directions about the nature of the possibility which the Crown would have to prove. … 95. I would reject the only ground of appeal against conviction and I would dismiss the appeal against conviction. [Bryson JA and Kirby J agreed with James J. Appeal dismissed.]

6.20 In Banditt v R (2005) 224 CLR 262; 223 ALR 633 the High Court unanimously held that the trial judge had not misdirected the jury as to the operation of ss 61I and 61R(1), and that the Court of Criminal Appeal had not erred in its dismissal of the appeal. [page 279]

Honest but unreasonable belief in consent 6.21 At common law, as stated by the House of Lords in Morgan, an honest belief that the victim is consenting, even if that belief is wrongly held, is inconsistent with either knowledge that the victim is not consenting or with recklessness as to consent, so an honest, but incorrect, belief in consent means that the accused does not have the mental state for the offence and cannot be guilty. DPP v Morgan [1976] AC 182 House of Lords [Morgan, an NCO in the Royal Air Force, invited three younger Air Force colleagues to come to his house and to have sex with his wife. He told them that if she protested or resisted, that was really her way of enjoying the sexual experience and that any resistance

would be mere pretence. The co-accused argued that they believed Morgan and therefore believed that she was in fact consenting.] Lord Cross of Chelsea: … The question of law which is raised by the appeal is whether the judge was right in telling the jury that, if they came to the conclusion that Mrs. Morgan had not consented to the intercourse in question but that the defendants believed or may have believed that she was consenting to it, they must nevertheless find the defendants guilty of rape if they were satisfied that they had no reasonable grounds for so believing. … The Sexual Offences Act 1956 which provides by section 1(1) that it is an offence “for a man to rape a woman” contains no definition of the word “rape”. No one suggests that rape is an “absolute” offence to the commission of which the state of mind of the defendant with regard to the woman’s consent is wholly irrelevant. The point in dispute is as to the quality of belief which entitles the defendant to be acquitted and as to the “evidential” burden of proof with regard to it … . … [S]ection 1 of the Act of 1956 does not say that a man who has sexual intercourse with a woman who does not consent to it commits an offence; it says that a man who rapes a woman commits an offence. Rape is not a word in the use of which lawyers have a monopoly and the first question to be answered in this case, as I see it, is whether according to the ordinary use of the English language a man can be said to have committed rape if he believed that the woman was consenting to the intercourse and would not have attempted to have it but for this belief, whatever his grounds for so believing. I do not think that he can. … Lord Hailsham of St Marylebone: … The certified question arises because counsel for the appellants raised the question whether, even if the victim consented, the appellants may not have honestly believed that she did. As I have pointed out, the question was wholly unreal, because if there was reasonable doubt about belief, the same material must have given rise to reasonable doubt about consent, and vice versa. But, presumably because, at that stage, the jury’s view of the matter had not been sought, the matter was left to them, as the appellants complain, in a form which implied that they could only acquit if the mistaken belief in consent was reasonable, and it was not enough that it should be honest. This ruling was originally made at the close of the case for the

prosecution, but, as it was subsequently embodied in the summing up, it is sufficient to refer to this. I will quote the principal passage in extenso from the record. The learned judge said: First of all, let me deal with the crime of rape. What are its ingredients? What have the prosecution to prove to your satisfaction before you can find a defendant guilty of rape? [page 280] The crime of rape consists in having unlawful sexual intercourse with a woman without her consent and by force. By force. Those words mean exactly what they say. It does not mean there has to be a fight or blows have to be inflicted. It means that there has to be some violence used against the woman to overbear her will or that there has to be a threat of violence as a result of which her will is overborne. You will bear in mind that force or the threat of force carries greater weight when there are four men involved than when there is one man involved. In other words, measure the force in deciding whether force is used. One of the elements to which you will have regard is the number of men involved in the incident. Further, the prosecution have to prove that each defendant intended to have sexual intercourse with this woman without her consent, not merely that he intended to have intercourse with her but that he intended to have intercourse without her consent. Therefore if the defendant believed or may have believed that Mrs. Morgan consented to him having sexual intercourse with her, then there would be no such intent in his mind and he would be not guilty of the offence of rape, but such a belief must be honestly held by the defendant in the first place. He must really believe that. And, secondly, his belief must be a reasonable belief; such a belief as a reasonable man would entertain if he applied his mind and thought about the matter. It is not enough for a defendant to rely upon a belief, even though he honestly

held it, if it was completely fanciful; contrary to every indication which could be given which would carry some weight with a reasonable man. And, of course, the belief must be not a belief that the woman would consent at some time in the future, but a belief that at the time when intercourse was taking place or when it began that she was then consenting to it. No complaint was made of the first paragraph where the learned judge is describing what, to use the common and convenient solecism, is meant by the actus reus in rape. Nor is there any complaint by the appellants of the judge’s first proposition describing the mental element. It is upon the second proposition about the mental element that the appellants concentrate their criticism. An honest belief in consent, they contend, is enough. It matters not whether it be also reasonable. No doubt a defendant will wish to raise argument or lead evidence to show that his belief was reasonable, since this will support its honesty. No doubt the prosecution will seek to cross examine or raise arguments or adduce evidence to undermine the contention that the belief is reasonable, because, in the nature of the case, the fact that a belief cannot reasonably be held is a strong ground for saying that it was not in fact held honestly at all. Nonetheless, the appellants contend, the crux of the matter, the factum probandum, or rather the fact to be refuted by the prosecution, is honesty and not honesty plus reasonableness. In making reasonableness as well as honesty an ingredient in this “defence” the judge, say the appellants, was guilty of a misdirection. My first comment upon this direction is that the propositions described “in the first place” and “secondly” in the above direction as to the mental ingredient in rape are wholly irreconcilable. In practice this was accepted by both counsel for the appellants and for the respondent, counsel for the appellants embracing that described as “in the first place” and counsel for the respondent embracing the “secondly”, and each rejecting the other as not being a correct statement of the law. In this, in my view, they had no alternative. If it be true, as the learned judge says “in the first place”, that the

prosecution have to prove that “each defendant intended to have sexual intercourse without her consent, not merely that he intended to have intercourse with her but that he intended to have intercourse without her consent”, the defendant must be entitled to an acquittal if the prosecution fail to prove just that. The necessary mental ingredient will be lacking and the only possible verdict is “not guilty”. If, on the other hand, as is asserted in the [page 281] passage beginning “secondly”, it is necessary for any belief in the woman’s consent to be “a reasonable belief” before the defendant is entitled to an acquittal, it must either be because the mental ingredient in rape is not “to have intercourse and to have it without her consent” but simply “to have intercourse” subject to a special defence of “honest and reasonable belief”, or alternatively to have intercourse without a reasonable belief in her consent. Counsel for the Crown argued for each of these alternatives, but in my view each is open to insuperable objections of principle. No doubt it would be possible, by statute, to devise a law by which intercourse, voluntarily entered into, was an absolute offence, subject to a “defence” of belief whether honest or honest and reasonable, of which the “evidential” burden is primarily on the defence and the “probative” burden on the prosecution. But in my opinion such is not the crime of rape as it has hitherto been understood. The prohibited act in rape is to have intercourse without the victim’s consent. The minimum mens rea or guilty mind in most common law offences, including rape, is the intention to do the prohibited act, and that is correctly stated in the proposition stated “in the first place” of the judge’s direction. In murder the situation is different, because the murder is only complete when the victim dies, and an intention to do really serious bodily harm has been held to be enough if such be the case. … The alternative version of the learned judge’s direction would read that the accused must do the prohibited act with the intention of doing it without an honest and reasonable belief in the victim’s consent. This in effect is the version which took up most of the time in argument, and although I find the Court of Appeal’s judgment difficult to understand, I think it the version which ultimately commended itself to that court. At all events I think it the more

plausible way in which to state the learned judge’s “secondly”. In principle, however, I find it unacceptable. I believe that “mens rea” means “guilty or criminal mind”, and if it be the case, as seems to be accepted here, that mental element in rape is not knowledge but intent, to insist that a belief must be reasonable to excuse is to insist that either the accused is to be found guilty of intending to do that which in truth he did not intend to do, or that his state of mind, though innocent of evil intent, can convict him if it be honest but not rational … Once one has accepted, what seems to me abundantly clear, that the prohibited act in rape is non-consensual sexual intercourse, and that the guilty state of mind is an intention to commit it, it seems to me to follow as a matter of inexorable logic that there is no room either for a “defence” of honest belief or mistake, or of a defence of honest and reasonable belief or mistake. Either the prosecution proves that the accused had the requisite intent, or it does not. In the former case it succeeds, and in the latter it fails. Since honest belief clearly negatives intent, the reasonableness or otherwise of that belief can only be evidence for or against the view that the belief and therefore the intent was actually held, and it matters not whether, to quote Bridge J. in the passage cited above, “the definition of a crime includes no specific element beyond the prohibited act”. If the mental element be primarily an intention and not a state of belief it comes within his second proposition and not his third. Any other view, as for insertion of the word “reasonable” can only have the effect of saying that a man intends something which he does not. [Lord Fraser of Tullybelton agreed. Lord Edmund-Davies and Lord Simon of Glaisdale dissented. Appeal dismissed by application of the ‘proviso’ (discussed at 12.78) that is, the House of Lords found that, although the trial judge had misdirected the jury on the point of law, there was no substantial miscarriage of justice and the convictions for rape were safe.]

[page 282] 6.22 In South v R [2007] NSWCCA 117 (30 April 2007), before the commencement of s 61HA, Hunt AJA said at [30]: It has long been the law in this State that the Crown must

establish that the accused knew that the complainant was not consenting, and that, if the issue is raised in evidence, the Crown must negate any belief by the accused that she was consenting; the Crown does not succeed in doing so on the basis that the accused’s belief was not based on reasonable grounds: Regina v McEwan [1979] 2 NSWLR 926 at 929 — following DPP v Morgan [1976] AC 182 at 203–204, 214–215, 237, 239 and overruling Regina v Sperotto (1970) 71 SR(NSW) 334 at 338. The High Court recently referred with approval to the law stated in DPP v Morgan, in Banditt v The Queen (2005) 223 ALR 633. …

6.23 The law in this regard has now been modified in New South Wales by s 61HA(3)(c). It has to be remembered that the issue of the victim’s consent arises in two ways. First, as part of the physical element of the crime, the Crown must prove that the complainant was not consenting. At this stage the accused is entitled to raise the issue of consent to argue that there was, in fact, consent. If the jury are left with a doubt as to whether or not the complainant did in fact consent, the accused would be entitled to an acquittal. 6.24 Once the jury are satisfied beyond reasonable doubt that there was no consent, the question of the accused’s knowledge becomes relevant. This is the second way in which the issue of consent arises. The accused can argue that he or she believed, albeit wrongly, that the complainant was consenting, and therefore the fault element of sexual assault was not present. Section 61HA(3)(c) now provides that, even if the accused believed the complainant was consenting, if there were no reasonable grounds for that belief, then he or she is deemed to know that there was no consent. 6.25 This provision appears to make sexual intercourse without consent a strict liability offence (see He Kaw Teh discussed at 1.88). Once an absence of consent has been established, the section places an evidentiary onus upon the accused to suggest an honest and reasonable belief in facts

(ie, the complainant’s consent) that, if true, would make the act (of sexual intercourse) innocent. This is an example of an instance where an accused can face serious penalties (up to 14 years in gaol) and the opprobrium of being labelled a criminal for the unintended consequences of his or her act. 6.26 The ‘Morgan defence’ has now been abolished in the UK: see ss 74, 75 and 76 of the Sexual Offences Act 2003 (UK). This generally brings the law in the UK into line with that of NSW.

Negation of consent 6.27 Section 61HA(4) provides certain circumstances where a person cannot consent to sexual intercourse. These include a lack of capacity, and where the complainant was asleep or unconscious. These provisions do not appear fundamentally to alter the common law (if at all). In relation to consent and age, s 61HA(4)(a) provides that a person does not consent to sexual intercourse if (amongst other things) the person does not have the capacity to do so because of age. This section must be read in light of s 77, which states: [page 283] 77 Consent no defence in certain cases (1) The consent of the child or other person to whom the charge relates shall be no defence to a charge under section 61E(1A), (2) or (2A), 61M(2), 61N(1), 61O(1), (2) or (2A), 66A(1) or (2), 66B, 66C, 66D, 66EA, 66EB, 67, 68, 71, 72, 72A, 73, 74 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E(1), 61L, 61M(1) or 76.

6.28 The effect of s 77 is to make offences to which it applies offences of strict liability (see Chapter 1). For offences not covered by s 77, for example, for an offence under s 61J,

the Crown needs to prove lack of consent by the complainant and knowledge of that lack of consent by the accused as elements of the offence. For that purpose, the age of the complainant is a relevant consideration when assessing whether or not the complainant was capable of understanding the nature and quality of the act of sexual intercourse to which he or she ‘consented’ and whether or not any ‘consent’ was freely and voluntarily given. However, that does not necessarily mean a person under the age of 16 years (the age at which one may lawfully engage in sexual intercourse in New South Wales) is incapable of giving consent in relation to some offences. 6.29 The New South Wales Court of Criminal Appeal considered this issue in McGrath. McGrath v R (2010) 199 A Crim R 527; [2010] NSWCCA 48 NSW Court of Criminal Appeal [The appellant had been tried and convicted before a jury on two counts of aggravated sexual assault pursuant to s 61J of the Crimes Act (counts 1 and 3 in the indictment), and one count of aggravated indecent assault pursuant to s 61M(2) (count 2 in the indictment). The appellant appealed against conviction in relation to counts 1 and 3 on the basis of the direction given by the trial judge to the effect that the complainant was incapable of giving consent by virtue of her age. The complainant was at the time of the offences variously aged between nine and 11.] … The appellant contended that there had been a miscarriage of justice because the trial judge misdirected the jury about the essential elements of the offences to which Counts 1 and 3 related. In particular, he argued that the trial judge had directed the jury that it need not consider the allegations in the indictment that the appellant did not consent to sexual intercourse with the complainant and that the appellant knew that the complainant was not consenting, because, as a matter of law, the complainant was, by reason of her age, incapable of consenting to sexual intercourse.

The Crown conceded on the appeal that this was the effect of the judge’s directions to the jury and that the directions were erroneous. The relevant part of the judge’s summing-up was in the following terms: The Crown has to prove that [the complainant] was not consenting, and of course, she could not consent because she is under sixteen. No child can consent to an act of sexual intercourse. You might think that that element by itself is proved beyond any question. [page 284] … So the real issue in this trial — I mean, the Crown has to prove those other elements, but you might think the Crown does not have any difficulty with those elements about the absence of consent, and of course, the accused if he did the things that [the complainant] says he did, would have understood that she was not in a position to consent, so there cannot be any argument about that — the real issue is, did this act of penetration to any degree at all take place; has the Crown proven that beyond reasonable doubt or not? The Crown’s concession was properly made. The judge was in error in indicating to the jury that the complainant, because she was under the age of 16, was, in effect, to be deemed not to have consented to sexual intercourse for the purposes of the offences alleged in Counts 1 and 3, which charged breaches of s 61J. Certainly, it is no defence to a charge under s 66A of having sexual intercourse with a child under the age of ten years that the child consented, nor to a charge under s 66C of having sexual intercourse with a child above the age of ten years but less than sixteen years that the child consented. However s 61J, the section under which the appellant was charged in respect of Counts 1 and 3, specifically makes the absence of consent and knowledge of that absence of consent elements of the offence. As a result, those matters must, irrespective of the victim’s age, be proved beyond reasonable doubt for a person to be convicted of an offence against s 61J.

6.30 It is evident that a person who is asleep cannot consent, but the question of whether or not the person was in fact asleep is a question of fact and must be proved by the Crown beyond reasonable doubt. Dean v R (2006) 166 A Crim R 341; [2006] NSWCCA 341 NSW Court of Criminal Appeal [The appellant appealed against his conviction. His case was that he had sexual intercourse with the complainant with her consent. The complainant’s version was that she was asleep and was woken when the appellant began to have sexual intercourse with her.] Tobias JA: … 15 The appellant’s appeal against his conviction is based on one ground only: namely, that the trial judge erred in his summing up to the jury in that he had reversed the onus of proof in relation to the critical issue of consent. The appellant accepted that he needed the leave of this Court to raise this ground pursuant to r 4 of the Criminal Appeal Rules as his trial counsel neither raised any objection to the relevant part of the trial judge’s summing nor requested any further or different directions with respect to the issue now sought to be raised on the appeal. 16 Before commencing his summing up, the trial judge provided a five page document to the jury marked MFI “D”, the first part of which was headed “Directions of Law” and the second part “General directions”. The first part was divided into five subheadings of which the first was “The elements of the offence”. Before setting out those elements, the document defined the offence of sexual intercourse without consent to mean sexual intercourse, which occurs in circumstances where the complainant did not consent and where the accused knew she was not consenting. [page 285] 17 The document then defined the expression “sexual intercourse” after which it stated The Crown must prove sexual intercourse occurred

between the accused and the complainant and must prove it beyond reasonable doubt. 18 The next element of the offence referred to in the document was that of “consent”. As the issue of consent was the critical element in the case which was in dispute (at trial the appellant did not dispute that he had had intercourse with the complainant but alleged that she consented thereto), it is appropriate to set out the trial judge’s written direction on this issue in full: consent means that the complainant was consciously and voluntarily agreeing to engage in sexual intercourse with the accused. The agreement must be a real one. It can be given by words or by actions. Similarly, absence of consent does not have to be in words. It may also be communicated in other ways. A person cannot consent if she is asleep. The Crown says in this case that the accused was asleep at the time the accused penetrated her with his penis. The accused in this case says that the complainant consented and that he believed she was consenting. If the complainant consented, then no offence was committed. The accused claims that the complainant asked for sexual intercourse and positioned herself to get it. The complainant denies that she did that. The Crown must prove beyond reasonable doubt that the complainant was not consenting. If you have a doubt about this, you must acquit. The Crown must also prove that the accused knew that the complainant was not consenting. This is a subjective test. How then does the Crown prove the accused knew the complainant was not consenting? The Crown asks you to draw this conclusion from the fact that the complainant was asleep and could not give any consent. (Emphasis in original) The appellant does not complain about any part of this direction. 19 The document then provided written directions with respect to other factors relevant to the charge other than the elements of the

offence such as good character, complaint, credibility and consciousness of guilt, being issues which arose out of the witnesses’ evidence as well as, in relation to the issue of consciousness of [guilt], with respect to the appellant’s concession that he told deliberate lies in his ERISP interview with the police. 20 Under the heading “General directions”, three matters were referred to namely, proof beyond reasonable doubt, the requirement for a unanimous verdict and a reference to the fact that the accused had given sworn evidence and had thereby exposed himself to cross-examination. Critical to the issue raised in the appellant’s ground of appeal was the written direction given under the heading “Proof beyond reasonable doubt”. It was as follows: The Crown must prove each of the elements of the charge in the case against the accused beyond reasonable doubt. The expression ‘beyond reasonable doubt’ means what it says. It is the highest level of proof in our system of law. Each of you as jurors knows the meaning of this expression. 21 On the second page of the transcript of his oral summing up, the trial judge reminded the jury that “the ultimate question is — are you satisfied beyond reasonable doubt?”. After some further general remarks, his Honour (at page 3 of the summing up) commenced to take the jury through his written Directions of Law. After dealing with the first element, namely, that the appellant had sexual intercourse with the complainant, his Honour turned to the question of “consent” and as the challenge by the appellant arises out of this part of his Honour’s summing up, it is appropriate to set out the relevant part in full: The real dispute comes in the next paragraph of consent. Consent means that the complainant was consciously and voluntarily agreeing to engage in sexual intercourse [page 286] with the accused. The agreement must be a real one. It can be given by words or actions — absence of consent does not have to be in words, it may be communicated in

other ways — and I say this, and it is, in fact, a direction of law. A person cannot consent if she is asleep. It is not possible to consent in your sleep. The case here is a very starkly different one from the point of view of each of the Crown and the accused. The Crown says that the complainant, [the complainant], was asleep. Her evidence is she was asleep and, in substance, that is what she has told the various people to whom she made complaint, that is her mother, [YY], Constable Crooks, Dr Howe and Karen Hines. Again, that is a statement of fact, I suppose, by me, that that is what she told them, that she was asleep, but you examine it members of the jury and I think you will find that is so — she told each of them she was asleep. If she was asleep, she cannot consent. No person who is asleep or unconscious can give consent. That is the plain fact of it. If, on the other hand, as the accused claims in evidence, although he did not claim that to the police, she said to him ‘fuck me’ and immediately got up on all fours and positioned herself for that particular reason, she would have been firstly saying she wanted him to, and secondly by her actions, she would have been making it clear that she was consenting. However, if she was asleep, she could not. Mr Walsh has attempted to suggest that somehow or other it would not have been possible for him to have penetrated her while she was asleep. Well you consider that argument, but members of the jury you, no doubt, will think very carefully before you would reject the claim that the complainant was asleep. If the complainant was asleep, then I direct you that the accused could not possibly believe that she was consenting. If she was asleep, he could not have any basis for saying she was consenting. If, of course, she was awake, that is a different matter. His case is she was not asleep. He does not have to make

a case but, in a sense, he has given evidence to support his contention. He does not say ‘look she was asleep and I thought she was consenting because of this or that or I did not really think she was asleep’ — he does not say that at all. He says ‘she got up on all fours, positioned herself and said to him, before that, ‘fuck me’, so you have got two different views. One is she is asleep, the other is she is not. The Crown must prove beyond reasonable doubt that the complainant was not consenting. If you have a doubt you must acquit. The Crown has to prove he knew she was not consenting, and the Crown asked you to draw this conclusion from the fact that she was asleep and could not give her consent. Members of the jury, if you find that she was asleep, then the plain fact is she could not consent, and that is a direction of law. (Emphasis added.) 22 The appellant’s challenge to his conviction is wholly based upon those parts of the above passage from the trial judge’s summing up which I have emphasised. I shall refer to those passages as the “matters complained of”. The appellant’s essential submission was that the matters complained of, and in particular the first matter, reversed the onus of proof on the critical issue of consent. It was submitted that that matter had or would tend to have the effect of directing the jury that the onus lay upon the appellant to persuade them to reject the complainant’s claim that she was asleep at the time the appellant commenced to have intercourse with her rather than that the onus lay upon the Crown to satisfy them beyond reasonable doubt that she was asleep at the time. 23 Before dealing in more detail with this submission, it is appropriate to draw attention to the direction given by the trial judge in the penultimate paragraph of the passages from his summing which I have recorded in [21] above. This direction stated that the Crown must prove beyond reasonable doubt that the complainant was not consenting and if the jury had a doubt, it was required to acquit. It is readily apparent from the last sentence of that paragraph that his Honour was directing the jury that the

Crown sought to prove beyond reasonable doubt that the complainant was not consenting by establishing that [page 287] she was asleep at the relevant time and, therefore, could not have given her consent. Needless to say, the appellant does not assert error with respect to that direction. 24 After summarising the various witnesses’ evidence, his Honour (at p 49 of his summing up) said this: The case boils down, [counsel for the appellant] said, to the word of the complainant against the accused — there are only two people here. As I said to you before, the Crown case has more than the evidence of just two people — it is the evidence of the complainant, her evidence supported in various ways by the other evidence, and the evidence of the accused on the other hand. You have to look at all the evidence and decide whether having heard his version, and all the other evidence, you are satisfied beyond a reasonable doubt. I must again inform you that the onus does not shift to him. He does not have to prove a case. 25 At pp 51–2 of the summing up his Honour sought to emphasise the issue of consent by directing the jury in the following terms: It was put to you that if he honestly though wrongly believed she was consenting then you might think she must have consented. Members of the jury, I have to say this to you, that that submission does not seem to be based on the evidence. The evidence is, on the one hand there is a sleeping woman lying down, fast asleep after a night of heavy drinking and dancing and carousing, who is awoken at 4 o’clock in the morning by someone actually having sexual intercourse with her — that is one version. The other version is she is up on all fours, having invited him to have sex with her. If she was up on all

fours inviting him to have sex with her, it would not be a question of honestly believing she was consenting — it would be actual consent, that would have to be so. She said ‘come on, fuck me’ and immediately got up and positioned herself. It is not a question of any honest belief at all. If she was asleep, members of the jury, you cannot — a sleeping or unconscious person cannot consent and no person could honestly or reasonably believe that that was so, and indeed, he does not suggest that he honestly or reasonably believed that he was having sex with a sleeping woman. He said he was having sex with a wide awake woman. There is no basis for you to consider that particular matter. The real thing is have you a doubt about which of these things happened, if you have a reasonable doubt, the crown has not proved its case. (Emphasis added.) 26 The appellant placed some reliance upon the High Court of Australia’s decision in Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584. In that case the appellant was charged with murder to which he had pleaded not guilty. He had raised defences of insanity as well as drunkenness. It was emphasised by the justices that the jury must clearly understand that the accused was to be acquitted if the Crown case had not been proved beyond reasonable doubt. What was told to the jury meant that they had to be satisfied beyond any reasonable doubt that the accused was guilty before they were able to find him so. 27 In that case the trial judge, after directing the jury that the general onus was on the Crown to satisfy them that the accused was guilty and that the accused was entitled to the benefit of any reasonable doubt they might have, continued in these terms: There is no particular magic about the way you’ve got to consider it, no special rules, you consider it in an ordinary common sense manner and in the way you would consider the more serious matters which come up for consideration and decision in your lives, and if considering it in that way you come to the conclusion —

you come to a feeling of comfortable satisfaction that the accused is guilty, then you should find him so guilty, and that is the standard you should apply with the various verdicts which I have indicated to you, except of course to the extent that so far as insanity is concerned, the onus is on the accused to satisfy you as to that on the balance of probability. [page 288] 28 McTiernan J observed (at 587) that there was no authority for the use of the verbiage contained in the above passage to elucidate what was meant by proof beyond any reasonable doubt. After noting that the question of whether a direction regarding the onus of proof was proper was not purely a verbal one, his Honour said: It is a question whether what the jury is told means that they must be satisfied beyond any reasonable doubt that the accused is guilty. But there is a danger in venturing upon a novel elucidation of this principle of the criminal law. It is dubious advice to tell the jury that no particular magic is required to perform their duty. … But I think that the cardinal error was to tell the jury that if they arrived at a feeling of comfortable satisfaction that the accused was guilty, they should find him guilty, and then to add that such was the standard of proof. 29 His Honour thus concluded that there was a clear misdirection and one that was likely to mislead the jury as to the degree of certainty they ought to feel that the accused was guilty of wilful murder in order to be justified in finding him guilty of that crime. The direction affected the whole of the general issue raised by the plea of not guilty and especially the question of whether the prosecution proved beyond any reasonable doubt that notwithstanding the evidence of drunkenness, the accused could in fact form the intention required for the crime of wilful murder. 30 Fullagar J (at 593) also agreed that the passage in the summing identified by McTiernan J contained a misdirection in that it tended to water down and qualify the plain rule that what was required to justify a conviction was proof beyond reasonable doubt. His

Honour was particularly concerned with the trial judge’s reference to “comfortable satisfaction”. 31 Kitto J was of the same view as Fullagar J with whose observations he agreed. His Honour said (at 596): It is enough to say that in my opinion an attentive jury may very well have understood the passage as placing upon the previous references to proof beyond a reasonable doubt an interpretation or a gloss substantially lessening the severity of the true standard, and that therefore the appellant’s conviction was by a jury which had not been instructed in accordance with the strict requirements of the law. … The case has seemed to me a proper one for special leave, because of the extreme importance of maintaining the absolute right of an accused person to have his case decided by a jury which has been given certainly to understand that he is to be acquitted if the Crown case has not been proved beyond a reasonable doubt. 32 The appellant also submitted that the trial judge in the second matter complained of had elevated the proposition that if the complainant was asleep at the time intercourse took place then she could not have consented, to a question of law. There is substance in this submission in that it involves a question of fact rather than of law. Yet it is a self-evident fact that if the jury was satisfied beyond reasonable doubt that the claimant was asleep at the time that intercourse took place, then she could not have consented to that invasive act upon her person. No relevant misdirection is involved in the passage in question. 33 However, at the end of the day the appellant’s substantial complaint was that the admonition by the trial judge that the jury think very carefully before they rejected the complainant’s claim that she was asleep, resulted in a reversal of the onus of proof or, at the very least, in a real risk that the jury would have understood his Honour to have been directing them that the onus lay upon the appellant to persuade them to reject the claimant’s evidence that she was asleep and that unless they did so, the appellant was

guilty. This was an error that was fundamental and went, so it was submitted, to a core aspect of his Honour’s summing up. 34 Taken in isolation, it might at least be argued that the offending sentence was ambiguous. But it cannot be so taken as it must have been heard and understood by [page 289] the jury in the context in which it was said. That context was the attempt of trial counsel for the appellant to suggest that it would not have been possible for him to penetrate the complainant’s vagina whilst she was asleep. Therefore, so the argument ran, as he was able to penetrate her, she must have been awake and therefore have consented to intercourse. 35 In the foregoing context it seems to me that the jury could not have understood that his Honour was directing them that the onus was upon the appellant to establish to the jury’s satisfaction that the complainant was not asleep when intercourse took place. Of course, at all times the onus lay upon the Crown to prove beyond reasonable doubt that at that time the complainant was in fact asleep as she maintained. In my opinion, the present case is entirely different to that with which the High Court was faced in Thomas. The trial judge repeated on a number of occasions in his summing up that at all times the onus lay upon the Crown to prove each element of the offence beyond reasonable doubt. 36 The jury were also provided with a written direction which, no doubt, they were able to take with them to the jury room when considering their verdict and which expressly directed them that the Crown had to prove beyond reasonable doubt that the complainant did not consent and that if they had any doubt concerning that, they must acquit. That was a direction which reflected the passage from the judgment of Kitto J in Thomas to which I have referred in [31] above. 37 That there was no risk, let alone a real risk, that the jury would have understood the first matter complained of to have reversed the onus of proof is supported by the fact that trial counsel for the appellant did not object to the direction in question or seek any clarification thereof or any additional direction to emphasise to the

jury that the Crown must prove beyond reasonable doubt that the complainant had not consented to the act of intercourse. 38 Accordingly, when taken in the context in which it was made and which related to an argument advanced on behalf of the appellant by his then trial counsel, and in the light of the other written and oral directions to the jury which made it patently clear that the onus lay upon the Crown to prove beyond reasonable doubt that the complainant did not consent to the act of intercourse if they found that she was asleep, in my view the first matter complained of does not constitute a misdirection. Accordingly, the appellant’s submission to the contrary should be rejected and the appeal against conviction dismissed. [Grove and Bell JJ agreed with Tobias JA. Appeal dismissed.]

Consent in relation to offences of attempted sexual assault 6.31 Section 61HA applies to offences under ss 61I, 61J and 61JA. The question arose in WO v Director of Public Prosecutions (NSW) as to its application to offences under s 61P, which renders a person attempting to commit one of a number of specific substantive offences liable to the same penalty as that provided for the substantive offence. (This case is also relevant in the context of intoxication, see Chapter 8, and to the application of s 5F of the Criminal Appeal Act 1912 (NSW), which is beyond the scope of this book.) [page 290] WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 NSW Court of Criminal Appeal Basten JA: 1 As the result of an incident which took place on the night of 8 March 2008, the appellant was charged on indictment with

attempting to have sexual intercourse with an identified woman, without her consent and knowing that she was not consenting. The charge arose under s 61P of the Crimes Act 1900 (NSW), which renders a person attempting to commit one of a number of specified substantive offences liable to the same penalty as that provided for the substantive offence. The substantive offence in this case arose under s 61I of the Crimes Act. (The name of the appellant has been anonymised because the criminal proceedings remain on foot.) 2 Two matters of potential legal significance arose in relation to the charge. First, there was a question as to the application of a provision of the Crimes Act dealing with knowledge about consent in relation to this and other related offences: Crimes Act, s 61HA. Secondly, because there was evidence of the appellant’s intoxication at the time of the offence, a question arose as to whether the offence charged was an “offence of specific intent” within the terms of s 428B of the Crimes Act. If it were not such an offence, self-induced intoxication could not be taken into account in determining whether the appellant had the relevant intention. … 70 In relation to the application of s 61HA, it appears to have been the prosecution case that any evidence that the appellant gave concerning his belief as to the identity of the person with whom he was said to have sought intercourse, was irrelevant. That was because, even if it had been his wife, being unconscious or asleep, she had not had the opportunity to consent to sexual intercourse and therefore did not consent, in accordance with the terms of s 61HA(4). 71 That argument (apparently accepted by her Honour) was not self-evidently correct: in the case of a stable relationship, the circumstances may allow for a factual finding that the partner had had an “opportunity to consent” whether or not she was asleep at the time sexual intercourse was attempted. 72 The question of the knowledge of the appellant arose once it was found that the complainant did not consent, in which case the prosecution could establish that the accused knew that she did not consent if he had “no reasonable grounds for believing” that the other person consented.

73 The operation of s 61HA is expressly dealt within in sub-s (1). Relevantly, it applies “for the purposes of the [offence] under [section] 61I”. However, the appellant was not charged with an offence under s 61I, but with an attempt to commit an offence under that provision, which is an offence under s 61P. Accordingly, the appellant submitted, it had no operation in relation to an attempt. 74 There is some internal textual support for that conclusion. Thus, sub-s (3) operates where a person “has sexual intercourse” with another person: it does not in terms address circumstances where sexual intercourse does not occur. 75 Section 61P states that any person who “attempts to commit an offence under section 61I … is liable to the penalty provided for the commission of the offence”. Before the trial judge, the prosecutor argued that this was not the creation of an offence but merely the statement of the penalty applicable to a common law attempt in respect of specified offences. As a matter of construction, that argument should be rejected. [page 291] Section 61P is in the common form of provisions in the Crimes Act identifying particular conduct rendering a person liable to a specified penalty. (Section 61I is another provision in the same form.) 76 It was also suggested that there would have been problems for the drafter in incorporating s 61P into s 61HA(1), because s 61P deals with attempts to commit numerous offences, including those under provisions other than the three specified in s 61HA(1). That argument is unpersuasive: it would have been a simple matter to include a reference to s 61P, “to the extent that it applies to the other sections identified in this subsection”. 77 Reference was made in the Director’s submissions to the fact that an attempt to commit an offence is itself an offence at common law and that s 344A of the Crimes Act makes provision effectively in the same terms as s 61P, though with general application. Neither of these factors affects the conclusion that s 61HA(1) in its terms does not apply to attempts to commit offences under the sections which it identifies.

78 More persuasively, the Director contended that s 61HA would operate because, in order to establish the offence of attempting to commit an offence under s 61I, the prosecution would need to make good the elements of an offence under s 61I, including the question of consent and the question of the accused’s knowledge as to consent. In answering those questions, it would be necessary to apply the terms of s 61HA. Such an approach, it was submitted, would be consistent with the general law, discussed above. 79 It may be accepted that this is a possible construction of s 61HA(1), which states that s 61HA applies “for the purposes of” an offence under s 61I, rather than applying “to a prosecution for” an offence under the specified provisions. There is a degree of ambiguity as to the operation of s 61HA. 80 To the extent that s 61HA affects principles applicable under the general law, it does so, relevantly for present purposes, by defining the circumstances in which a complainant “does not consent” and the circumstances in which an accused will be found to “know” that the person does not consent, including the circumstance that he has “no reasonable grounds for believing that the other person consents”. These provisions lower the bar with respect to a successful prosecution for the identified offences. They thereby diminish the rights of an accused under the general law. Such a curtailment of the rights of an accused in a criminal trial call [sic] for a clear expression of intention to that effect: see Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437 and other authorities referred to in Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at [2] and [6]–[7] (Spigelman CJ, Beazley JA agreeing) and at [214]–[216]. The contention of the Director in this case is by no means irrational or implausible, but it does not reach the level of clarity required to overcome the express language and textual support for the proposition that s 61HA does not operate with respect to attempts to commit offences identified in sub-s (1). 81 The next question of significance is what her Honour meant by stating that it was appropriate to exclude “the defence” sought to be relied upon. However, there appears to have been a degree of agreement between the parties (as appeared from the submissions before the trial judge and in this Court) that what was in issue was the relevance of the appellant’s state of “self-induced” intoxication.

82 This was undoubtedly a highly fact-specific issue. How it would arise at the trial was not entirely clear, nor fully articulated either in her Honour’s reasons or in the argument before her Honour. For example, under s 61HA(3) (which was presumed to be relevant at this stage of the argument) in considering the state of knowledge of the accused the jury was required to take into account all of the circumstances of the case [page 292] “not including any self-induced intoxication” of the accused: sub-s (3)(e). One might have thought that it would be the prosecution that would wish to rely upon such a state of intoxication to demonstrate either recklessness as to consent or the absence of any belief as to consent, or even in support of the proposition that the accused took no steps to ascertain whether the person consented. On one reading of s 61HA(3), such an approach would be illegitimate. On the other hand, an accused might seek to rely upon his state of intoxication to establish a reasonable doubt that he had the necessary intention to commit the offence. In that respect, the Court might need to consider whether the offence was one of specific intent, for the purpose of applying either ss 428C or 428D of the Crimes Act. 83 Of critical importance in the context of the trial will be the evidence of intoxication and the evidence as to the state of mind of the appellant. On the basis of the authorities governing the trial judge, including Zorad and Evans, it will no doubt be necessary for the jury to be directed as to the intention of the appellant at the time of the offence and as to his state of mind with respect to the consent or otherwise of the complainant. The legal issue of significance in this respect has already been noted, namely the inapplicability of s 61HA for the purposes of an attempt to have sexual intercourse with a person who does not consent, knowing that she does not consent. Beyond that it is neither necessary nor appropriate to go.

Grounds to establish absence of consent 6.32 Section 61HA(6) sets out ‘the grounds on which it may be established that a person does not consent to sexual

intercourse …’. The exact effect of this provision is unclear. It does not state that there is no consent in the prescribed circumstances, but the provision would allow the Crown to raise evidence of these factors and it would be for the jury to determine whether or not their presence meant the complainant was not, in fact, consenting. 6.33 One factor is ‘if the person has sexual intercourse while substantially intoxicated by alcohol or any drug’ (s 61HA(6)(a)). The fact that a person is intoxicated does not necessarily mean that they did not, or could not, consent. Alcohol may act as a disinhibitor, so that people when intoxicated may do things that they would not do when sober. Where consent to sexual intercourse is concerned, for the purposes of the law consent means the ‘victim’ knows what he or she is agreeing to, even if the person may not have consented when sober (R v Blayney [2003] SASC 405 (11 December 2003) (also cited as R v Blaney (2003) 87 SASR 354); R v Chant (unreported, NSW Court of Criminal Appeal, 12 June 1988); R v Francis [1993] 2 Qd R 300). On the other hand, a person may be so drunk that he or she is incapable of giving consent, that is, the person is no longer able to make a decision about whether to have sexual intercourse or to understand what is being proposed. 6.34 In Chant (extracted below, and decided before the enactment of s 61HA(6)), the NSW Court of Criminal Appeal considered how intoxication could be considered a relevant factor on the issue of consent. [page 293] R v Chant and Madden Unreported, 12 June 1998 NSW Court of Criminal Appeal [The Crown case was that the complainant attended the clubhouse of the Rebels Motorcycle Club where she consumed beer and smoked marijuana. She said she was tired and went to bed with the

intention of going to sleep. The two accused entered the bedroom and had sex with her. The appellant Chant said that there was consensual sexual intercourse. Madden denied that there was any sexual intercourse between himself and the complainant.] Wood CJ at CL: … His Honour gave a conventional direction that consent involved a conscious and voluntary permission to engage in sexual intercourse; that it can be given verbally, by a look or by a willingness expressed by actions or acquiescence; and that the absence of physical resistance does not necessarily signify consent. His Honour then properly directed the jury that if they were satisfied beyond reasonable doubt of lack of consent, the Crown next had to prove that the accused knew that she was not consenting. There could be no objection in relation to the directions given so far. They were followed by a brief summary of the cases for the Crown and each accused in relation to consent and knowledge of consent or lack of it. The matter complained of related to the manner in which his Honour dealt with the effects of alcohol and cannabis upon the complainant, so far as consent was concerned. His Honour said, in this regard: … the fact that a person is affected by alcohol or drugs is a factor to be taken into consideration in this case on the question of consent or lack of it in this way. You have the evidence of Dr Gaffney that both alcohol and Indian Hemp, pot, marijuana, call it what you will, are drugs that affect the central nervous system and that they both have an initial effect of inducing euphoria and a feeling of well being that could result in a lowering of inhibitions. This lowering of inhibitions you may think may lead to a person doing things that he or she might not otherwise have done or engaged in conduct that might otherwise be foreign to them. Their perceptions and the perceptions of people with them might be entirely different as to what was taking place. Further imbibing in the drugs and/or alcohol and the mixing of them ultimately may lead to a position that

because of the state of intoxication, the person is unable to voluntarily and consciously consent. They are so drunk that they cannot understand what is going on. Nevertheless that does not mean that a person in a state of euphoria or well being or intoxication induced by drugs or alcohol cannot consent to an act or acts of intercourse. They obviously can. Whether they do so is a question of fact and the fact that a person is intoxicated does not necessarily mean that they cannot. It may depend on the question as to whether they were so intoxicated that they could not consciously and voluntarily give such a consent. That is a matter for you on the evidence and of course, a person asleep cannot give such a consent. His Honour then appropriately reminded the jury that the accused did not have any duty to ensure that the complainant remained sober or did not smoke cannabis, before continuing: However, it is equally clear that if the Accused is aware that the complainant is in no condition to rationally give consent, because of her condition as to intoxication and you will remember the evidence concerning that, she says that she was drunk but when she left the room where she had been smoking the marijuana she was “Going in and out of it”, was one of the descriptions she used and he says that on a scale of 1 to 10 she was about 5 to 6. [page 294] Well that is the evidence but as I say, if it is equally clear that if he is aware that the complainant is in no condition to rationally give a consent because of her condition in relation to intoxication then he cannot be heard to say that she consented. The complaint made is twofold. The first is that the Crown had not opened a case based upon lack of consent dependent upon the complainant being so affected by alcohol or cannabis, or a combination of them, that she was not in a position to voluntarily and consciously consent to intercourse and that the accused knew

that to be the case. The second complaint is that by using the expression “rationally” twice in the direction, in place of the expression “voluntarily and consciously”, which had been used earlier, his Honour may have confused the jury into believing that there was some intermediate position that would suffice for the Crown to prove its case. In relation to the first of these objections it was, in my view, appropriate, and in favour of the accused, for his Honour to give some direction in relation to the effects of cannabis and alcohol on the complainant. Absent some such direction, the jury may have been misled into believing that consent, which the complainant might not have given if unaffected by cannabis and alcohol, but might have given in a state of disinhibition due to the effects of those substances, was not consent. Left in a state of uncertainty in that regard, the appellants could well have complained of an inadequacy in the summing up. Having given such a direction, however, it was necessary to identify the point at which disinhibition gave way to lack of real consent. In relation to Chant, there was the added feature that, upon the evidence of the complainant, she was asleep when penetrated and by definition could not have consented, at least when the act of intercourse began, although the position as to the continuation of intercourse once she awoke depended on different considerations. In relation to Madden, no issue of consent arose, since on his case there was no act of sexual intercourse to which he was a party. So understood, I do not consider that it was wrong to give the direction. It was correct in law, and it was proper for the jury to have a full understanding of what was involved in the concept of consent. These directions did not have the effect, upon my reading of the summing up in its entirety, of involving any shift in the case for the prosecution. In relation to the second point, I would accept that had the direction as to consent been given initially in terms of the complainant being in a “condition to rationally give” consent, then it would have been erroneous. Such a direction would have raised the possibility that there would be a lack of consent if the complainant had not been reasoning with her full faculties as to

whether to consent to sexual intercourse or not, or had not been behaving sensibly. However, reading the direction in its context, I am satisfied that his Honour used the expression “rationally” as synonymous with “voluntarily and consciously”. The fact that experienced trial Counsel saw no reason to seek a re-direction reinforces my view in this respect. Again, it is important that a summing up be understood and read in the full context of the trial, and in the way it was likely to be understood by those who were listening to it. The task of a trial Judge in assembling and presenting the competing cases to a jury in the light of the applicable law, the evidence and the issues thrown up, and with very little by way of time for preparation, is difficult enough. Absolute precision in expression of the kind which can be achieved in a considered judgment is not possible. The fine tooth comb approach of counsel searching for grounds of appeal post conviction, needs to be discouraged in the light of this reality. In the light of the issues that arose and a reading of the summing up in context, I am not satisfied that the matters complained of gave rise to any appreciable risk of injustice. [page 295] In the face of silence of Counsel at the trial, I do not consider that leave should be given to argue this point on appeal: Regina v Tripodina & Ors (1988) 35 A Crim R 183. Accordingly, I am of the view that the appeal of each appellant should be dismissed. [Powell JA and Newman J agreed with Wood CJ at CL. Appeals dismissed.]

6.35 In R v Francis [1993] 2 Qd R 300, Davies JA and Demack J said (at 305): It is not correct as a matter of law that it is rape to have carnal knowledge of a woman who is drunk or who does not resist because her submission is due to the fact that she is drunk. The reason why it is not is that that at least includes the case where the carnal knowledge is consensual notwithstanding that the consent is induced by excessive consumption of

alcohol. The critical question in this case was whether the complainant had, by reason of sleep or a drunken stupor, been rendered incapable of deciding whether to consent or not.

6.36 In R v Blayney [2003] SASC 405, Debelle J said (at [16]): A complainant may be so drunk that she is not capable of freely and voluntarily giving consent: The Queen v Camplin (1845) 1 Cox CC 220; R v Lang (1975) 62 Cr App R 50; R v Malone [1998] 2 Cr App R 447; R v Francis [1993] 2 Qd R 300. Similarly, if a complainant is asleep, she may be incapable of freely and voluntarily giving consent: R v Mayers (1872) 12 Cox CC 311. In each instance, the complainant has no comprehension of what is occurring and is incapable of making up her mind whether to consent or not. In this case, one question for consideration was whether the appellant was, by reason of the amount she had drunk, rendered incapable of deciding whether to consent or not: R v Francis (supra) at 305. In other words, the question was whether she was aware of what was happening and whether she was capable of deciding whether to consent or not.

6.37 Given the wording of s 61HA(6), namely, that intoxication is a factor to be considered when the jury is considering consent, it is probable that the reasoning in the cases extracted in this chapter considering issues of consent will continue to apply. 6.38 Another factor to be considered is if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force (s 61HA(6)(b)). In Aiken (below, also reported as R v Aitken [2005] NSWCCA 328), the court had to consider what sort of non-violent threats would vitiate consent under ss 61R(2)(c) and 65, as they then stood. The relevant sections are now ss 61HA(4)(c) and 61HA(6)(b). R v Aiken

(2005) 63 NSWLR 719 NSW Court of Criminal Appeal [The appellant appealed against his conviction in relation to two sexual offences. He had observed his Vietnamese victim shoplifting and told her he would tell security. She was frightened as she thought he was a security officer. The appellant said, ‘I can help [page 296] you if you help me’. The appellant pointed to his groin. The victim placed her hand on his trousers on top of his penis. The appellant told the victim to follow him. The appellant and victim left the store. They entered a toilet. The appellant then requested the victim amongst other things to put his penis in her mouth, and to masturbate him, which she did. The appellant asked the victim if she had any money. The victim told him she had $200 in her purse. The appellant took the money and later spent it. The victim asked the appellant if he could help her obtain some items in Kmart. The appellant agreed, but the victim could not find him and told a bag checker what had happened. The appellant was later arrested on the same day and in an electronically recorded interview he admitted what had occurred.] Studdert J: … [9] Put shortly, it has been submitted on behalf of the appellant that the agreed facts disclosed that the victim consented to the acts constituting the two offences, albeit under a belief that the appellant was a security officer when he was not. Further, it is submitted that the consent was not vitiated by reason of the apparent deception of the appellant. [10] Counsel for the appellant referred to the well known case of Papadimitropoulos v The Queen (1957) 98 CLR 249. In that case the appellant had intercourse with a woman whom he had deceived into believing he had earlier married. The High Court determined that he was not guilty of rape. In the course of their joint judgment Dixon CJ, McTiernan J, Webb J, Kitto J and Taylor J said this (at 261): … the key to such a case as the present lies in remembering that it is the penetration of the woman’s body without her consent to such penetration that makes

the felony. The capital felony was not directed to fraudulent conduct inducing her consent. Frauds of that kind must be punished under other heads of the criminal law or not at all: they are not rape. To say that in the present case the facts which the jury must be taken to have found amount to wicked and heartless conduct on the part of the applicant is not enough to establish that he committed rape. To say that in having intercourse with him she supposed that she was concerned in a perfectly moral act is not to say that the intercourse was without her consent. To return to the central point; rape is carnal knowledge of a woman without her consent: carnal knowledge is the physical fact of penetration; it is the consent to that which is in question; such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape. [11] It was submitted that the reasoning in Papadimitropoulos applies to the present case and that the victim must be regarded as having consented to what the appellant did. [12] The Crimes Act does not define consent [but see now s 61HA]. Plainly, it is to be distinguished from submission, because there may be submission without consent: see R v Olugboja [1982] QB 320, particularly at 332, and Question of Law (No 1 of 1993) (1993) 59 SASR 214 at 220, per King CJ, where the Chief Justice said: The law on the topic of consent is not in doubt. Consent must be a free and voluntary consent. It is not necessary for the victim to struggle or scream. Mere submission in consequence of force or threats is not consent. The relevant time for consent is the time when sexual intercourse occurs. Consent, previously given, may be withdrawn, thereby rendering the act non-consensual. A previous refusal may be reversed thereby rendering the act consensual. That may occur as a consequence of persuasion, but, if it does, the consequent consent must,

of course, be free and voluntary and not mere submission to improper persuasion by means of force or threats. [13] Here the Crown submitted that the statement of facts earlier recorded supports a conclusion that the victim was not consenting but rather that she was acting under coercion. Reference was made in particular to the facts set out in the sentences in the [page 297] agreed statement numbered 12, 14, 18, 21, 22, 24, 25, 26 and 27. It was submitted that these facts afforded support for a finding of the necessary elements in the offences charged under s 61I and s 61L. … [15] Whilst the Crimes Act does not define consent, s 61R [now s 61HA] addresses this issue and identifies various situations in which consent is vitiated. [His Honour then set out s 61R. The relevant section is now s 61HA. His Honour continued:] … [16] Section 61R(2)(a)(i) [see now s 61HA(5)(a)] expressly vitiates consent in circumstances such as were considered in R v Dee (1884) 14 LR Ir 468 and discussed by Stephen J in R v Clarence (1888) 22 QBD 23 at 43–44; s 61R(2)(a)(ii) [see now s 61HA(5)(b)] vitiates consent in circumstances such as arose in Papadimitropoulos; s 61R(2)(a1) [see now s 61HA(5)(c)] vitiates consent in circumstances such as arose in R v Flattery (1877) 2 QBD 410 and in R v Williams [1923] 1 KB 340. However, it is s 61R(2)(c) [see now s 61HA(4)(c)] which attracts particular attention here. What sort of threat is contemplated as vitiating consent for the purposes of s 61I, s 61J and s 61JA? [17] It can hardly be doubted that submission to sexual intercourse by the immediate threat of physical violence is to be regarded as non consensual. Moreover, s 61R(2)(c) contemplates that the threat need not be against the person who submits to intercourse; it may be directed at some other person. However, must there be a threat of physical violence as opposed to some lesser threat? It cannot be that any type of threat necessarily enlivens the operation of s 61R(2)(c). For instance, it does not seem to me that a despicable threat by an employer that he would block an employee’s prospects of promotion at work unless she had intercourse with him would suffice, without more to vitiate consent.

[18] The alternatives contemplated in s 61R(2)(c) are “threats or terror” [see now s 61HA(4)(c) which refers to ‘threats of force or terror’]. The latter word is defined in the Macquarie Dictionary as “sharp, overpowering fear”, or “feeling, occasion or cause of great fear”, and the placement of “threat” beside “terror” suggests that the legislature had in mind “threats” as being threats to physical safety. [19] In extensive supplementary written submissions, the Crown acknowledged … “the dearth of cases involving convictions for sexual assault where violence is neither used, threatened nor feared”. It was suggested that this may be “because of the overbearing physicality of the very nature of the sexual act”. However, the Crown submitted it did not follow that the offence can only occur under threat of violence. … [24] Reference has been made in the written submissions of counsel to other authorities, but none of those other authorities assists in determining the issue presently before the Court. … [33] As I view the statutory scheme in place, and this was the scheme in place at the time of the commission of the alleged offence by the appellant, the statute did not have in contemplation for the purposes of s 61I that consent was vitiated by a threat such as that made by the appellant. The threat which he made was a threat to inform security that the complainant had been observed shoplifting and was hence “a non violent threat” … It was not enough for the Crown to have proved in order to establish an offence under s 61I that the victim was influenced to co-operate with the appellant by such a threat. Such a threat did not vitiate consent for the purposes of s 61I. … [34] I therefore conclude that on the agreed facts it would not have been open to a jury to have convicted the appellant of the offence charged under s 61I, and it seems to me that there has been a miscarriage of justice in the circumstances of the appellant’s conviction and sentence for the offence so charged. [page 298] [35] This brings me to the offence charged under s 61L. The assault with act of indecency was identified by the sentencing judge as the

conduct of masturbation initiated by the appellant. Here again it was necessary for the Crown to prove that the complainant was not consenting to what occurred. I add that s 61R does not apply to offences charged against s 61L [and neither does the current s 65HA]. The Crown could have been in no better position to prove the offence charged under s 61L than it was to prove the offence charged under s 61I. It follows that there has been a miscarriage of justice in the circumstances of the appellant’s conviction and sentence for the offence against s 61L also. … [Kirby and Howie JJ agreed with Studdert J that the convictions and sentences for the offences charged under ss 61I and 61L of the Crimes Act should be quashed. Appeal allowed.]

6.39 The conclusion that the sort of non-violent threat made in Aiken does not vitiate consent would appear even stronger under the new legislative scheme. The old s 61R (discussed in Aiken) referred to ‘threats or terror’, whereas the new s 65HA(4)(c) refers to ‘threats of force or terror’. The addition of the words ‘of force’ would more clearly suggest that the relevant threat must be a threat of physical violence. 6.40 Another factor that influenced Studdert J in Aiken was the presence of a separate offence under s 65A of the Crimes Act. That section states: 65A Sexual intercourse procured by intimidation, coercion and other non-violent threats (1) In this section: non-violent threat means intimidatory or coercive conduct, or other threat, which does not involve a threat of physical force. (2) Any person who has sexual intercourse with another person shall, if the other person submits to the sexual intercourse as a result of a non-violent threat and could not in the circumstances be reasonably expected to resist the threat, be liable to imprisonment for 6 years. (3) A person does not commit an offence under this section unless the person knows that the person concerned

submits to the sexual intercourse as a result of the nonviolent threat.

His Honour held that it would be inconsistent with the existence of s 65A to find that an accused could be guilty of the offence of sexual assault by virtue of a non-violent threat when this was a separate offence, with a lower maximum penalty. 6.41 Section 65A has now been repealed. The relevant section is now s 61HA(6)(b). Under s 65A to obtain consent to sexual intercourse by means of a non-violent threat was not sexual assault, but an offence punishable in its own right. Now, s 61HA(6) states that the presence of a non-violent threat is a ‘factor’ to be considered by the jury in deciding whether or not the person consented to sexual intercourse. A person may consent to sexual intercourse for any number of reasons, and it may be to obtain some advantage or benefit that is being withheld unless there is consent to sexual intercourse. [page 299] 6.42 The inconsistency that concerned Studdert J has since been removed, but now it is only an offence to use nonviolent threats to obtain consent to sexual intercourse if the jury consider that the threat was so overwhelming as to mean that there was in fact no free and voluntary consent. Whether the threat was so overwhelming is a question of fact for the jury. Consent is only vitiated, as a matter of law, if the threat is one of ‘force or terror’.

INDECENT ASSAULT AND ACT OF INDECENCY Indecent assault

6.43 The offence of indecent assault is set out in s 61L of the Crimes Act: Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.

The elements of this offence are an assault (see 5.5), and, at the time of the assault, an act of indecency. To commit an act of indecency is itself an offence (s 61N).

Act of indecency Act of indecency as an element of indecent assault and as a separate crime 6.44 In addition to indecent assault, there is an offence of committing an act of indecency with or towards a person, and an offence of aggravated act of indecency (ss 61N and 61O). Indecency according to whom? 6.45 Harkin and Gillard considered the issue of what is an act of indecency. R v Harkin (1989) 38 A Crim R 296 NSW Court of Criminal Appeal [The appellant had been charged with offences under s 61E(1) of the Crimes Act 1900, subsequently repealed, and a predecessor to the current s 61N. The allegation was that the appellant indecently assaulted two young girls (aged 11). The appellant had invited each girl to take a turn at steering his car while sitting on his lap, during which time he fondled their breasts.] Lee CJ at CL: … It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation.

That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas. Thus, if the appellant [page 300] intentionally touched the breast of the girl …, it is my view that if there is nothing more, and there is not, that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent, and it is then for the jury to determine whether in the case of a mature man of 38 and a girl of 11 years and nine months that should or should not be regarded as conduct offending against the standards of decency in our community. The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification. … [Wood and Mathews JJ agreed with the reasons of Lee CJ at CL. Appeal dismissed.]

R v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21 NSW Court of Criminal Appeal [The appellants, a married couple, were convicted of performing an act of indecency when they had consensual sexual intercourse in the presence of the victim (aged 14) and encouraged her to watch and to join them.] The Court (Ireland, Dunford and Bruce JJ): … 62. Obviously consensual sexual intercourse between husband and wife is not of itself in any way indecent and so, because it is not indecent, if it takes place in the presence of a young person, the intercourse of itself is not an act of indecency in the presence of the young person.

63. But what was alleged here was not merely consensual intercourse between husband and wife, it was allegedly accompanied by an invitation to, and encouragement of, the young person to watch and … to join in. The intercourse, although not an indecent act in itself, became indecent when carried out in front of the young person, with the invitation and encouragement to watch which were both directed to or in the direction of the young person. … 65. In R v Francis (1988) 88 Cr App R 127 it was held that a man who masturbated in the presence of children, knowing they were watching and deriving added stimulation from the fact that they were watching could be said to be committing an act of gross indecency towards them, contrary to s 1(1) of the Indecency With Children Act 1990 (UK). In our view similar considerations apply when a couple (even a married couple) engage in sexual intercourse not only in the presence of a young person but when they also invite and encourage the young person to watch. [Appeal allowed on other grounds. Conviction and sentence quashed. New trial ordered.]

6.46 Manson defined an act of indecency under s 61N of the Crimes Act as one which right-minded persons would consider to be contrary to the community standard of decency. [page 301] R v Manson (Unreported, NSWCCA, 17 February 1993) NSW Court of Criminal Appeal [The appellants were tried on six charges of committing an act of indecency. They had taken photographs of a young girl (aged 11) with the stated objective of making a protest against the abuse of females. In effect the appellants argued that their conduct was art, and could not therefore be an act of indecency.] Gleeson CJ: … As will appear from what follows, I am of the view that the jury might well have accepted the sincerity of the appellants and the explanation they gave of their purposes in taking

these photographs, whilst at the same time convicting them of the offences in question. The fact that conduct is engaged in for political or artistic purposes does not throw around such conduct a kind of cordon sanitaire, producing the result that it cannot be found to be illegal. It is entirely possible that a person might, for political or artistic purposes, take a photograph of an act that a jury regards as an act of indecency. The relevant legal principles can be summarised for the present purposes in the following way. (I take this summary from cases such as R v Harkin (1989) 38 A Crim R 296, R v Court [1989] 1 AC 28, Crowe v Graham (1969) 121 CLR 375 and Purves v Inglis (1915) 34 NZLR 1051 at 1053. Each of those cases, of course, has to be read and understood in the light of the particular problem that arose for consideration.) An indecent act is one which rightminded persons would consider to be contrary to community standards of decency. In the New Zealand case to which I have just referred the following was said: The word indecent has no definite legal meaning and it must be taken therefore in its modern and popular affectation. In the Standard Dictionary indecent is defined to be anything that is unbecoming or offensive to common propriety. If, as in the present case, the act in question has an unequivocally sexual connotation the Crown does not have to prove that the act was done for the purposes of providing sexual gratification. On the other hand, the purpose for which an act is done may well be regarded by right-minded people as relevant to the question whether it is decent or indecent, depending upon the circumstances of the particular case. The fact that an act was done for artistic or political purposes may lead a jury to conclude that it was not indecent. On the other hand, it would certainly not require such a conclusion. In the present case Judge Gibson, without complaint by counsel who appeared for the appellants at the trial, made the following observations to the jury. He told them that the Crown had to prove the commission of the act alleged to be an act of indecency in each case and that each such act was intentional. His Honour then

explained the meaning of the word indecency in the following terms: Now you then have to decide whether the acts were indecent. What does indecent mean and who decides it? Indecency or indecent carries its ordinary English meaning of contrary to the ordinary standards of decency in the community. You in this case represent the community and it is for you to decide on all the evidence of this case whether what was done offends the ordinary standards of reasonable people in this community. As I say, you are the representatives of the community. It is an objective test. It is a matter for you in all the circumstances. As has been properly said it is not a test of the most avant garde members of the community. It is not a test of those who might have the narrowest views in the community. The test is the ordinary standards of propriety of respectable people in this community. Some criticism was made of the fact that his Honour did not explain sufficiently what he meant by the word ‘objective’ in that context. In my view the three sentences that [page 302] followed the sentence in which his Honour used that word were intended to be an explanation of its meaning, and I would regard those sentences as an adequate and appropriate explanation. His Honour went on to tell the jury that the acts in question must have sexual overtones or connotations. In other words, he was telling them that in this context the type of indecency that is involved is sexual indecency. His Honour went on to tell the jury that, in deciding whether they were satisfied beyond reasonable doubt that the acts depicted in the photographs were indecent, it was appropriate and relevant for them to take account of the explanation that was offered by the appellants as to how the photographs came into existence. He said that the appellants gave what might be described as political or artistic explanations for their conduct and he told the jury that was a matter that they were entitled to take into account in deciding whether the acts were acts of indecency. Senior counsel for the

appellants has criticised his Honour for not going further in explaining to the jury precisely how they were to take those matters into account. As I have already indicated no elaboration of that kind was sought at the trial. In any event in the present case it seems to me that there was very little room for elaboration. As his Honour had said, it was a matter for the jury to apply community standards of decency. Having told the jury that in the application of those standards the artistic or political purpose of the conduct in question was relevant, it is not easy to see what his Honour could have said further by way of elaboration of that proposition. [Clarke JA and Sully J agreed with Gleeson CJ. Appeal dismissed.]

Act of indecency towards another person 6.47 In Barrass, the Court of Criminal Appeal considered whether the act of indecency required for ss 61N and 61O of the Crimes Act must be committed in the immediate presence of the complainant. R v Barrass [2005] NSWCCA 131 NSW Court of Criminal Appeal Hidden J: 3. This is a case stated by Norrish DCJ, pursuant to s 5B of the Criminal Appeal Act, arising from the appellant’s appeal to the District Court against his summary conviction of two charges of committing an act of indecency towards a person under the age of ten years, an offence under s 61O(2) of the Crimes Act. His Honour has submitted two questions of law for the determination of this Court: 1.

Does an offence of committing an act of indecency ‘towards’ another person pursuant to s 61O(2) of the Crimes Act 1900 NSW on its proper construction require that a relevant act of indecency be committed in the immediate physical presence of the victim?

2.

If so, did I err in law in holding that, in the circumstances of these alleged offences, the ‘towards’

element of the s 61O(2) charges was established? 4. The charges arose out of the same incident, involving two complainants. In the case stated his Honour set out the facts which he found as follows: At about 2.25 pm on 21 November 2002 JV and LM, then both aged 6 years, were travelling in a bus with other school children in Elizabeth Drive, Liverpool, New South Wales. [page 303] There were present in the bus several teachers and parents. JV and LM were sitting together at the rear seat and on the driver’s side of the bus at all relevant times. JV saw the appellant driving a motor vehicle adjacent to the bus and she observed that he was ‘wiggling his penis’, that is manipulating it with his hand. She saw that he was looking at them and smiling and laughing in her direction. When the two vehicles were stationary at a traffic light with the appellant’s vehicle adjacent to the side of the bus at which the children were sitting the appellant pulled his pants down and manipulated his penis in a manner which JV demonstrated as a stroking or hand moving exercise. He did that four times. He did this while his vehicle was stationary along the rear portion of the bus, JV being seated at the rear of the bus on the right hand side. The appellant committed these acts when at a distance of between 3 and 6 metres from the complainants. They were able to see him and he was able to see them. He intended that his actions should be seen by them. The evidence of the appellant smiling established that the appellant achieved, or sought to achieve, some form of sexual gratification from his conduct. … 5. Before his Honour, it had been submitted on behalf of the appellant that indecent conduct ‘towards’ a person, within the meaning of s 61O(2), had to be conduct perpetrated in the immediate presence of the victim, such that there was a prospect of

physical contact between them. It was argued that that element could not be established in this case because the appellant and the complainants were in different vehicles. However, his Honour held that, to whatever extent proximity between offender and victim was a requirement, it was met in this case. His Honour found that the appellant’s conduct was ‘towards’ the complainants in the relevant sense by reason of that proximity, and the fact that he could see the complainants and they him, and that he intended that they should see what he was doing. 6. Mr Rosser, who appeared for the appellant before Judge Norrish and in this Court, took us to the history of the provision under which his client had been charged, s 61O(2) of the Crimes Act. … [His Honour set out the provision and its history and continued:] 9. [McHugh J (at 25–7), in the High Court] … in Saraswati v The Queen (1990–91) 172 CLR 1 … referred to two decisions of the English Court of Criminal Appeal in which it was held that the offence of indecent assault could not be made out where a man had requested a young girl to touch him indecently and she had complied: Fairclough v Whipp (1951) 35 Cr App R 138 and DPP v Rogers [1953] 1 WLR 1017. 10. The charge could not lie in either case because there was no conduct on the part of the man which could amount to an assault in the relevant sense (allowing for the fact that, if there had been such conduct, the consent of the child would have been no defence). It was to cure this deficiency in the offence of indecent assault, for which there was provision in the Crimes Act, that the legislature created the new offence of committing ‘any act of indecency with or towards’ a girl under the relevant age. … 16. Clearly, the ratio of Saraswati is not determinative of the present case. Mr Rosser did not suggest that it was. He relied upon the case only as authority for the proposition that s 61O(2) should not be read literally, divorced from its history and context. He noted that in 1974, when s 76A [a predecessor to s 61O(2)] was introduced into the Crimes Act, there was provision in the Summary Offences Act 1970 for the offences of indecent exposure of a person in or within view of a public place or a school (s 11), and wilful and obscene exposure of a person in or within view of a

public place or a school (s 12). Both were summary offences, the former carrying a maximum penalty of a fine of $100 and the latter a maximum penalty of a fine of $400 or imprisonment for six months. S 76A created an indictable offence, although in certain circumstances it could be dealt summarily: s 476 of the Crimes Act. In either event, it carried a maximum sentence of two years imprisonment. [page 304] 17. Mr Rosser argued that these offences, particularly wilful and obscene exposure, were part of the context in which s 76A was enacted and that Parliament could not have ‘had in its contemplation the augmentation of those offences’. He relied upon the decision of Taylor J in Moloney v Mercer [1971] 2 NSWLR 207. It is unnecessary to set out the facts or the issues for determination in that case. It is sufficient to say that his Honour was called upon to consider the distinction between indecent exposure, on the one hand, and wilful and obscene exposure, on the other. This, in turn, required an examination of the difference in nuance between the words ‘indecent’ and ‘obscene’. His Honour referred to R v Stanley [1965] 2 QB 327, in which it was held that those words convey one idea, that is, offending against recognised standards of propriety, with ‘indecent’ being at the lower and ‘obscene’ at the upper end of the scale. Giving the judgment to the Court, Lord Parker adopted a passage from the judgment of Lord Sands in the Scottish case of McGowan v Langmuir [1931] SC (J) 10, at 13: I do not think that the two words ‘indecent’ and ‘obscene’ are synonymous. The one may shade into the other, but there is a difference of meaning. It is easier to illustrate than define, and I illustrate thus: for a male bather to enter the water nude in the presence of ladies would be indecent, it would not necessarily be obscene. But if he directed the attention of a lady to a certain member of his body his conduct would certainly be obscene. 18. Taylor J accepted that analogy for the purpose of the New South Wales provisions. It follows, Mr Rosser submitted, that the offence of wilful and obscene exposure requires more than the display of an intimate part of the body; there must be ‘some degree of lewdness or conduct directed towards a victim’.

… 20. … It is clear from the legislative history that the whole purpose of creating the offence of committing an act of indecency was to make good the deficiency exposed in the offence of indecent assault. The crucial question in the present case remains whether, as a matter of law, his Honour’s findings of fact are capable of establishing that offence. 21. In Fairclough v Whipp (supra) the respondent, while urinating into a canal, asked a young girl to touch his penis and she did so. In DPP v Rogers (supra) a father exposed himself to his daughter and had her masturbate him. In Saraswati (at 26) McHugh J said that he found it unnecessary ‘to determine whether s 76A was intended to cover cases which are not indecent assault but go beyond the Fairclough-type situation’. There are reported cases dealing with other situations. 22. In R v Francis (1989) 88 Cr App R 127, it was accepted that the offence was established where a man masturbated in the presence of two thirteen year old boys in the changing room at a swimming pool, provided that he was aware that the boys could see him and derived sexual satisfaction from that fact. That decision was followed by this Court in R v Gillard (1999) 105 A Crim R 479, in which it was held that the offence could be made out on each of two occasions when a couple engaged in sexual acts in the presence of a young girl, encouraging the girl to watch and, on one occasion, inviting her to join in …. 23. The common thread in all those cases, Mr Rosser observed, is that the offending conduct was committed in the immediate presence of the victim. He argued that it was within that context that the provisions relating to committing acts of indecency are intended to operate. He pointed out that the acts of the appellant could not be said to have been done in the immediate presence of the complainants because they were ‘in separate enclosures without the prospect of physical contact between them’. Hence, he argued, the appellant’s conduct could amount to no more than wilful and obscene exposure. [page 305] 24. The various provisions dealing with the commission of acts of

indecency, including s 61O(2), refer to such acts ‘with or towards’ a person. In R v Orsos (1997) 95 A Crim R 457 a majority of this Court (Hulme J dissenting) drew a distinction between those two words. Grove J, with whom Priestley JA agreed, said (at 460), ‘To commit an act of indecency “with” a person involves two participants whereas logically and grammatically one person may commit an act of indecency “towards” another’. His Honour went on to observe that it was not necessary, for the purpose of that case, ‘to define the limits of activity which might be comprehended’ by those expressions. … 26. On this analysis, the facts in Francis and Gillard are examples of acts of indecency committed ‘towards’, rather than ‘with’, the complainants. In those cases the complainants were in the immediate presence of the victims, but the question remains whether that is an essential prerequisite of the offence of committing an act of indecency ‘towards’ a person. That word has a number of shades of meaning, depending upon its context, but I find nothing in its ordinary usage, or in the relevant legislative history, which requires it to be given such a limited denotation for present purposes. 27. In R v Chonka [2000] NSWCCA 466 the appellant had been found guilty of a number of counts of inciting acts of indecency by young girls and, in one case, an eighteen-year-old woman. The offences were said to have been committed in the course of telephone conversations between the appellant and each of the complainants. Four counts alleged telephone calls in which he incited the complainant to commit an auto-erotic act. Three of those counts charged the incitement of an act of indecency ‘with’ the appellant, while the fourth charged the incitement of an act of indecency ‘towards’ him. Consistently with the statement of principle from their judgment set out above, Fitzgerald JA and Ireland AJ entered verdicts of acquittal on the three counts alleging acts of indecency with the appellant. As to the other count, their Honours found it unnecessary to decide whether the act of the complainant incited by the appellant could constitute an indecent act towards him. However, for other reasons they set aside the verdict … and directed a new trial.

… 28. … Smart AJ … expressed himself (at [63]) to be in no doubt ‘that an act of indecency could be directed towards a person over the telephone or by other means not involving the act of indecency being carried out in the personal presence of the other person’. 29. As the Crown prosecutor before us pointed out, whether an act of indecency can be directed towards a person over the telephone need not be determined for present purposes. However, I respectfully agree with Smart AJ’s observation to the extent that it conveys that immediate presence is not required. In most cases the offence will have been committed in such proximity to the complainant as to amount to immediate presence. This is not such a case but, in my view, the appellant’s act of indecency could fairly be said to have been committed ‘towards’ the complainant for the reasons identified by Judge Norrish: he exposed and manipulated his penis in circumstances where he was within view of the girls and intended that they should see what he was doing. 30. Let me return, then, to the two questions of law submitted for determination. To the first question, whether the offence requires that the relevant act of indecency be committed in the immediate physical presence of the victim, I would answer ‘No’. That being so, the second question, whether his Honour erred in finding that the ‘towards’ element was established, need not be answered. I would propose that the case be remitted to the District Court to be dealt with accordingly. [Dunford and Simpson JJ agreed with Hidden J.]

[page 306]

Fault element for indecent assault 6.48 The physical element for an indecent assault is an assault coupled with an act of indecency, which may be the assault itself. In Bonora the issue was the effect of the complainant’s consent. If the complainant consented, there could be no assault and so the issue of indecency did not arise for consideration. It was therefore necessary for the Crown not only to prove a touching and an act of indecency,

but also to establish the absence of consent and that the accused either knew that the victim was not consenting, or was reckless with regard to consent. R v Bonora (1994) 35 NSWLR 74 NSW Court of Criminal Appeal [The appellant had been charged with indecent assault under s 61E(1) of the Crimes Act 1900, since repealed and replaced by the current s 61L. The complainant was a Rotary exchange student from Holland. She stayed with the appellant and his family. Over a period of two months the appellant was alleged to have assaulted her by, variously, kissing her, touching her and fondling her on six occasions, without her consent. On each occasion the complainant told the appellant she did not want him to touch her. She did not consent to his behaviour. The appellant conceded that some of the incidents had occurred but said that they were with her consent.] Abadee J: … In the instant case the defence … was that there was no unlawful assault at all because in effect the appellant was saying: ‘I did it with the woman’s consent.’ At the relevant time the complainant was almost aged nineteen years of age. In these circumstances the appellant submitted that the case is thus to be looked at as being one where there was really no issue as to indecency. Indeed if there is no unlawful assault, because of consent, the issue of indecency would not arise. The term assault involves the notion of want of consent. Thus in general terms it may be said that an assault with consent is no assault at all. This case thus concerns the mental element in the offence where the issue is lack of consent to the assault itself. … In R v Whelan [1973] VR 268, the applicant was found guilty by a jury of indecent assault (upon a complainant aged sixteen at the time) but not guilty of rape or assault with intent to rape. At the trial the applicant admitted the acts of intercourse and the acts alleged to constitute the assault, but said that the acts were done with the consent of the prosecutrix or he believed such to be the case. The jury found the appellant not guilty of rape. The Full Court held that where there was one transaction, contrary verdicts in rape and indecent assault could not stand. In quashing the conviction of

indecent assault Winneke CJ (at 270) concluded that once the jury had found the appellant not guilty of rape thus negating absence of consent of the prosecutrix or the absence of belief by the appellant of non-consent on her part, ‘it follows, in our view, that its verdict of indecent assault, an offence which, as we have said, also involved absence of consent or belief thereof on the part of the appellant as an essential ingredient, was inconsistent with its verdict of not guilty of rape’. The decision of the English Court of Appeal in R v Kimber [1983] 1 WLR 1118; [1983] 3 All ER 316 is directly on point. In that case the complainant was a woman over the age of sixteen, who was the subject of an indecent assault whilst a patient in a mental hospital. The issue raised was one of consent. There was no issue with reference to indecency. The Court of Appeal held that the judge had erred in law in not leaving [page 307] to the jury the question of whether the appellant had believed the complainant had consented. The court also held that since the prohibited act in an indecent assault was the use of personal violence against the woman without her consent, the mens rea of the offence was the intent to use violence against her without her consent. It followed that the prosecution had to prove such intent and, conversely that it was a good defence for the defendant to show that he had honestly believed that the complainant had consented to his actions. In giving the judgment of the Court of Appeal, Lawton LJ said (at 1121–1122; 319): In this case the appellant by his own admissions did intentionally lay his hands on Betty. That would not, however, have been enough to prove the charge. There had to be evidence that the appellant had intended to do what he did unlawfully. The burden of proving lack of consent rests upon the prosecution. The consequence is that the prosecution has to prove that the defendant intended to lay hands on his victim without her consent. If he did not intend to do this, he is entitled to be found not guilty; and if he did not so intend because he believed she was consenting, the prosecution will have failed to prove the charge. It is the defendant’s

belief, not the grounds on which it was based, which goes to negative the intent. A review of the authorities suggests that where consent is in issue and is raised on the facts, the trial judge should direct the jury that the Crown also has to prove that the accused was aware that the complainant did not consent or was reckless as to whether the complainant consented or not. The accused’s awareness that the complainant of an indecent assault is not or may not be consenting is an ingredient of the offence. In the circumstances of this case where there was an issue of consent, indeed that was what the case was essentially all about, his Honour should have directed the jury that the Crown was also required to prove that the appellant was aware at the time of each of the incidents that the complainant was not consenting or was reckless as to whether she was consenting or not. … [Finlay and Simpson JJ agreed with the reasons of Abadee J. Appeal allowed. Judgment of acquittal entered.]

6.49 In Fitzgerald v Kennard (1995) 38 NSWLR 184, a similar problem to that discussed in R v Tolmie (1995) 37 NSWLR 660 (see 6.17) arose with respect to an indecent assault. Again the court was asked to consider whether it is necessary to prove that an accused adverted to the issue of whether or not the complainant was consenting, in order to establish an offence under s 61L. In Fitzgerald v Kennard, the respondent (defendant in the Local Court) was an electrical contractor who had entered premises to effect electrical repairs. His conduct towards the victim involved hugging, rubbing her leg and back, and attempting to touch her breasts. The respondent said that he gave no thought to whether or not the victim was consenting. He was convicted in the Local Court but this was overturned by Ireland J in the Supreme Court. The informant (a police officer) appealed to the Court of Criminal Appeal. Cole JA, with whom Sheller JA agreed (Kirby ACJ dissenting) said (at 204G–205C), regarding consent, that:

… failure by the accused to advert to the question of consent in cases of assault occasioned by physical contact, with the accused intending to and in fact proceeding with the offending acts, discharges the onus of proof on the Crown to establish the absence of consent to those acts so as to render them an assault within the meaning of s 61L of the Crimes Act 1900. … R v Kitchener (1993) 29 NSWLR 696 was correctly

[page 308] decided. I respectfully adopt the remarks of Kirby P where his Honour said (at 697): 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 wrong-doing, such total indifference to the consent of a person to have sexual intercourse is plainly reckless, at least in our society today. Every individual has a right to the human dignity of his or her own person. Having sexual intercourse with another, without the consent of that other, amounts to an affront to that other’s human dignity and an invasion of the privacy of that person’s body and personality. It would be unacceptable to construe a provision such as s 61D(2) so as to put outside the ambit of what is ‘reckless’ a complete failure to advert to whether or not the subject of the proposed sexual intercourse consented to it or declined consent. Such a law would simply reaffirm the view that our criminal law, at crucial moments, fails to provide principled protection to the victims of unwanted sexual intercourse, most of whom are women. Our law is not unprincipled or inadequate in this regard.

These remarks are equally apposite to indecent assault cases. 6.50 As has been seen, in R v Mueller (see 6.6), the Court of Criminal Appeal affirmed Fitzgerald v Kennard and applied the reckless non-advertence concept to indecent assault.

CHILD SEXUAL ASSAULT

6.51 Consensual sexual intercourse may still be criminal in a large number of situations, including where the victim, whether male or female, is under the age of 16 or under the age of 18 in circumstances where the child is under the care of the accused, or with a person who has a cognitive impairment and is under the care of the accused. In those cases the consent of the victim is irrelevant (see Crimes Act ss 66A–77). 6.52 It is clearly irrelevant that the accused made a mistake about at what age a person may lawfully consent to sexual intercourse. This is a mistake of law, which is no defence (see 1.84). But what if the accused honestly made a mistake about the actual age of the victim? If it were the case that such a mistake did not provide a defence — such as for offences pursuant to s 77 of the Crimes Act (for example, an offence arising under s 66C(3) ‘having sexual intercourse with a child between 14 and 16 years’) — these offences would become offences of absolute liability (see 1.83). Many of these offences have serious sentencing options; s 66C(3), for example, carries a 10-year term of imprisonment. To prescribe such serious criminal sanctions for offences of absolute liability is contrary to the common law principles as articulated in Proudman v Dayman (1941) 67 CLR 536 (considered in He Kaw Teh) and He Kaw Teh v R (1985) 157 CLR 523 (see 1.88). 6.53 The issue of a mistaken belief about the age of the complainant was considered in CTM v R [2008] HCA 25 (see 1.89). There it was held that an honest and reasonable belief that the other person was over the age of 16 would constitute a defence. As the burden is upon the Crown to prove its case, the accused need only raise evidence to ‘enliven’ the issue and then the Crown must prove either that [page 309] there was no belief or, if there was belief, there were no

reasonable grounds for the belief. (See also R v Douglas [1958] VR 721, Chard v Wallis (1988) 12 NSWLR 453 and R v Al-Abodi (District Court, 20 July 2005, 04/21/3379, Goldring DCJ).) 6.54 In relation to the offence of sexual intercourse by a carer with a ‘person who has a cognitive impairment’, whether with or without their consent (s 61F(5)), the defences include that the accused did not know the person to whom the charge relates had a cognitive impairment (s 66F(7)(a)(i)). There has as yet been no judicial ruling on whether ‘know’ means either that there was no belief or, if there was belief, there were no reasonable grounds for the belief.

SPECIAL EVIDENTIARY AND PROCEDURAL RULES APPLYING IN SEXUAL ASSAULT TRIALS 6.55 Special evidentiary rules apply to sexual assault trials. These include restrictions on the admissibility of evidence relating to sexual experience, under s 293 of the Criminal Procedure Act 1986 (NSW), and a requirement on a judge under s 294 of the Criminal Procedure Act to warn a jury that there may be good reason why a complaint in sexual matters has not been made or was delayed. The Criminal Procedure Act also restricts the questioning (examination) of the complainant in sexual assault proceedings by a legally unrepresented accused (s 294A). The last-mentioned provision was held constitutional in R v MSK and MAK (2004) 61 NSWLR 204; [2004] NSWCCA 308. An application for special leave to appeal to the High Court was refused.

DISCUSSION QUESTIONS

6.56 What issues do the following scenarios raise for sexual offence law? 1.

D is the leader of a religious sect in which D is believed to be a divine being who is entitled to sexual intercourse with any member of the sect at any time. Members of the sect believe that they are blessed when D has intercourse with them. They also believe that D is empowered to bestow his divine right on any member of the sect. V and D1 are followers of D. V has intercourse with D and also D1, believing that D has empowered D1 to have intercourse with her. In fact, as is later revealed, D is a fraud, and D1, when he had intercourse with V, did so simply because he wanted to. At the time, both D and D1 knew V believed that each was divinely empowered.

2.

D has been restlessly and aggressively pacing around his flat all day with his flatmate A, saying he wants to go out and have sex with someone, anyone will do. D, with A reluctantly in tow, gate-crashes a party of mainly 17-year-old girls, including B and V, introducing a large quantity of alcohol. A and B become intoxicated, and D and V very intoxicated. The girls agree to go into a bedroom with D and A, but while A and B just kiss and cuddle, D and V have sexual intercourse in circumstances where V has no chance to say no. She appears to D to be consenting, and shows no overt sign of [page 310] resisting. She is very shy and timid. This is her first party involving alcohol and the opposite sex.

3.

D is a masseur in Byron Bay. He is massaging V, a female client, who is lying face down on the massage table with only her bottom covered by a towel. D

reaches his hands around and commences to massage the sides of V’s breasts. Vary the situation so that (a) D is a masseuse, (b) V is a male, whose nipples are massaged, and (c) all of the action takes place in Pymble. 4.

1

D and V are married and have been having a few drinks together. D is feeling amorous and suggests to V that they retire to the bedroom for sex. V is reluctant so D puts his arms around her, kissing her on the back of the neck, feeling her breasts, and asking her to come to bed with him. She resists but eventually says ‘yes’ and they have sex. Authors’ note: His Honour is here referring to s 61D of the Crimes Act 1900 (NSW). Section 61D(1) has been replaced by s 61I, which defines the offence of sexual assault. Section 61D(2) has been replaced by s 61HA, which is, for all relevant purposes, the same and provides that a person who is reckless with regard to consent is deemed to know that the victim is not consenting.

[page 311]

7 Stealing and other property offences INTRODUCTION 7.1 In previous chapters we have dealt with offences against the person. In this chapter we consider aspects of offences involving property.

History of larceny 7.2 New South Wales law relating to property offences has its foundations in the common law of larceny, a crime that was developed in the Middle Ages in a predominately agricultural society. It has been modified and supplemented by a large number of statutory offences. The Model Criminal Code Officers Committee (MCCOC) identified it as an area in urgent need of reform. MCCOC, Theft, Fraud, Bribery and Related Offences Model Criminal Code Report, Chapter 3, December 1995, pp 1–2 Clearly the choice for model theft and fraud provisions must be one which reduces the complexity of the common law and its Griffiths

Code variants. [Note: The Griffiths Code is a model criminal code adopted in Queensland, Western Australia and the Northern Territory. Tasmania has a variant.] The common law approach is now followed in only two Australian States, namely, New South Wales and South Australia. This approach relies upon the basic offence of larceny, modified and supplemented by a large number of statutory offences. For example, the New South Wales Crimes Act contains over 150 offences dealing with various theft, fraud and related offences. Often these offences have nothing to do with the essential nature of the conduct but depend on the nature of the object taken. [page 312] When the law of larceny took shape some six centuries ago, notions of ownership and intangible rights, the foundation of the modern commercial community, were far less important. At a time where people’s economic relations were relatively simple, the law of larceny focused on protecting possession of physical objects. Larceny was to fraudulently take and carry away some physical object from a person without that person’s consent and with the intention of permanently depriving the person of the object. This meant that larceny was not applicable to a person who appropriated another person’s goods if those goods were already in the possession of the ‘thief’. For example, a carrier did not commit theft if he or she made off with the goods being carried. The common law had to invent the notion of breaking bulk — the carrier committed theft when the package was broken open — to deal with this situation. Similarly, a person could not be convicted of theft of electricity or land because they were things which could not be taken up and carried away. Since the early part of the industrial revolution in the eighteenth century, judges and legislatures have been struggling to adapt the law of larceny to the needs of societies with more and more complex and abstract notions of property rights: the idea that there can be a division of interests — ownership, possession, control — of the same object; the creation of abstract rights by special documents like cheques and credit cards. These adaptations have produced a patchwork of judicial decisions and statutory provisions. Notoriously, the common law had difficulty dealing

with intangible property (eg electricity), a fatal flaw in the computer age. Special provisions have been enacted for the theft of things like electricity and altering data on computers to perpetrate frauds. But even more prosaic objects — cattle, dogs, documents, objects attached to land or buildings, aircraft, etc — have required special provisions. Other offences depend on the status of the person from whom the property was taken (an employer, a landlord); still others depend on the status of the person who takes the property (a servant, a public servant); others again depend on the location of the property (a ship, a wharf, a mine, etc). But the common law also has very complex conceptual distinctions. The common law of larceny requires the taking to occur without the owner’s consent but then relies on special provisions to deal with situations where the defendant already has possession of the goods with the owner’s consent which he or she then ‘converts’ to his or her own use (eg larceny by a servant or by a bailee), or the defendant intercepts property intended for the employer before it comes into the employer’s possession (embezzlement). Where the defendant deceives the victim, the correct offence to charge depends on whether the defendant’s deception caused the victim to mean to transfer ownership or merely possession of the goods. It will be larceny by a trick if the defendant’s deception leads the victim to intend to transfer possession of the goods; if the victim intends to transfer ownership the offence is obtaining by false pretences. Still other problems arise if the defendant comes to possess the goods innocently (eg because of a mistake) which the defendant did not induce or know of at the time the goods were handed over. For example, the defendant’s salary envelope contains an overpayment and when the defendant opens the envelope at home, he or she discovers the overpayment and decides to keep it. The Griffiths Code improved this situation somewhat by combining various forms of common law larceny into one offence of stealing. Stealing is defined to include fraudulent taking and fraudulent conversion. Although this approach reduces the number of stealing offences, it does little to simplify the complexity of the law of theft. Moreover, the Griffiths Code drew a distinction between stealing and other forms of fraud, in particular, false

pretences. And like the common law, there is a myriad of offences supplementing the basic offences. [page 313] Nearly twenty-five years ago, England abolished the common law of theft and fraud and replaced it with a relatively short statute based on three key offences: theft, obtaining property by deception and obtaining a financial advantage by a deception. Today, in Australia, we have six jurisdictions which still have the common law or a Griffiths Code variant. The other three have adopted the English Theft Act approach. Thus the nine jurisdictions operate under three basically different systems. Even in Victoria which adopted the Theft Act in 1973, substantial issues which have arisen in the case law require significant changes.

7.3 In 2009 the New South Wales Parliament passed the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (see 7.65), which significantly amended the Crimes Act 1900 (NSW) (‘the Crimes Act’) and addressed many of the concerns of the MCCOC. However, the ‘base’ offence of larceny (or theft) remains a common law concept.

LARCENY Punishment under the Crimes Act 7.4 The Crimes Act deals with crimes such as: larceny; fraud; and embezzlement. Further offences in the nature of larceny are dealt with in Pt 4 Div 5. Section 117 of the Crimes Act provides the punishment for

larceny. The definition of larceny is left to the common law. Section 117 is as follows: 117 Punishment for larceny Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years.

Elements of larceny 7.5 In Ilich v R (1987) 162 CLR 110 at 123; 69 ALR 231 at 241 (see 7.52), Wilson and Dawson JJ said: At common law, larceny is committed by a person 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.

To elaborate, the physical elements of larceny are: taking and carrying away; something capable of being stolen; [page 314] in someone’s possession (whether or not the owner); without the consent of the person in possession. The fault elements of larceny are: an intention to deprive the true owner of the property in the thing; fraudulently, and without an honest claim of right.

Concept of property 7.6 One problem with the law of larceny lies in the legal concept of property. For lawyers, a person owns something

when he or she has property in the thing. Property is a series of rights that the owner has, the primary right being the right to exclude others from the thing. The lay concept is to describe the thing itself as property. For example, in lay terms, your watch is your property, but, in legal terms, you have property in your watch, that is, you have certain rights with respect to the watch and that is why it is your property. One of the rights that an owner has is the right of possession, that is, you have the right to keep your watch with you. You can give up possession but still own the watch, in that you can lend it to someone, or deposit it as security for a loan, or leave it with a watchmaker for repair. During that time you still own the watch, but you no longer have possession. The legal relationship created by a transfer of possession but not ‘ownership’ or title is known as a bailment. The person with whom you have deposited your watch (the bailee) has the right of lawful possession of it, and may enforce that right against others. Another person cannot take the watch and say to the watchmaker ‘It is not your watch so I am not guilty of larceny from you’. The watchmaker has the best title, that is, the best right to possession of the watch, apart from the right of the owner. It is important to note that this concept of ‘possessory title’ is reflected in s 192C(3) (see 7.23). 7.7 The nature of property causes many problems for the law of larceny. The traditional and obvious example of larceny is where someone takes something from someone else with the intention of keeping it. That is not controversial and everyone would agree that this is stealing and is punishable accordingly. The matter becomes controversial where a thing is taken by a person who already has possession of it, but not property in it. As Wilson and Dawson JJ said in Ilich v R (1987) 162 CLR 110 at 123–124; 69 ALR 231 at 241 (see 7.52): Because larceny at common law requires a trespass — it is sometimes described as an offence against possession — a

person lawfully in possession of something cannot be guilty of larceny of it.

This means that, if someone obtains possession of an item with consent, a subsequent decision to keep the item cannot, at common law, be larceny. They may, however, be guilty of an offence pursuant to Pt 4AA (see 7.65). [page 315]

Physical elements of larceny Taking and carrying away 7.8 To constitute larceny the thing stolen has to be ‘taken and carried away’. Proof of physical removal is essential, but the slightest movement may be sufficient. Wallis v Lane [1964] VR 293 Supreme Court of Victoria [Lane was charged before a court of petty sessions at Port Melbourne with stealing a card of cycle toe-straps and two pairs of cycle toe-clips from his employer. The charge was dismissed by the magistrate on the ground that the property had not been taken out of the owner’s possession. The informant appealed to the Supreme Court of Victoria for an order that the magistrate had erred in law. The defendant was delivering goods for his employer. He removed the items from some boxes in his truck and hid them in another part of the truck. He was observed by the intended recipient of the goods.] Herring CJ: … The magistrate dismissed the information. He said: There is no larceny here, Mr Prosecutor. He has not taken the property out of his master’s possession. He has not taken it and put it on another truck or elsewhere. One of the ingredients of larceny is that he must take the property out of the owner’s possession and he has not done this.

The prosecutor then submitted to the magistrate that there had been an asportation, that the defendant had moved the property from one part of the truck to another with an intent to take it and he had admitted when questioned that he was going to steal it. The magistrate replied: No. He has not taken the property out of the owner’s possession. The information will be dismissed. … The question turns really upon what amounts to an asportation for the purposes of the crime of larceny. … [I]t would appear that any movement of goods with an intent to steal them is sufficient to constitute an asportation. In R v Coslet (1782) 1 Leach 236; 168 ER 220, the facts were that the prosecutor was the proprietor of the Uxbridge Waggon, in the forepart of which the goods laid in the indictment were packed. Those goods were a quantity of currants, the property of John Parker. The prisoner got into the waggon and after groping about on his hands and knees laid hold of this parcel of currants and had got near the tail of the waggon with them, when he was apprehended. The parcel was afterwards found near the middle part of the waggon. The jury found the prisoner guilty; but as he had not carried the goods out of the waggon, the court doubted whether this was a sufficient asportation to constitute the crime of larceny. The judgment was, accordingly, respited and the case reserved for the consideration of the twelve judges; and on 17 April 1782 they were unanimously of an opinion that as the prisoner had removed the property from the spot where it was originally placed, and the jury had found that he had so removed it with intent to steal, it was a sufficient taking and carrying away to constitute the offence. That case, of course, is on all fours with the present case and establishes that it is sufficient asportation if there is a removal of the property from the spot where it was originally placed with intent to steal. The magistrate dealt merely with the question of asportation and he was quite clearly wrong in the view he took. This case of Coslet definitely establishes that and similar statements of the law are to be found in the other cases to which Mr Kendall has referred me. [page 316] The only other one I think I need refer to is R v Thompson 1 Mood CC 78; 168 ER 1192. It is a decision of a much later period, 1825,

whereas Coslet was decided in 1782, some 40 years earlier. In this case prisoner was charged on an indictment of stealing from the person of John Hillman a pocket book and four promissory notes of 1 pound each. The evidence of the prosecutor was this: I was at a fair at East Grinstead; I felt a pressure of two persons, one on each side of me: I had secured my book in an inside front pocket of my coat; I felt a hand between my coat and waistcoat; I could feel the motion of the knuckles; I was satisfied the prisoner was attempting to get my book out. The other person had hold of my right arm and I forced it from him and thrust it down to my book, in doing which I just brushed the prisoner’s hand and arm; the book was just lifted out of my pocket; it returned into my pocket; it was out; how far I cannot tell. On that evidence the learned judge, Garrow, B recommended it to the jury if they were satisfied that the prisoner removed the book with intent to steal it, to find him guilty. The jury found the prisoner guilty, but the learned judge respited the execution of the sentence until the opinion of the judges could be taken on the point. The judges by a majority, six judges to four (Best, LCJ, and Alexander, LCB, being absent), decided that the prisoner was not rightly convicted of stealing from the person, because, from first to last, the book remained about the person of the prosecutor, but the judges were unanimous that the simple larceny was complete. In other words they were satisfied that the removal of the book out of the pocket, however slight the distance might be, was a sufficient asportation to constitute larceny, provided that removal of the book was effected with intent to steal. … [Matter remitted to the magistrate to be dealt with according to law.]

Something capable of being stolen 7.9 In order to be capable of being stolen, the ‘thing’ must be a specific moveable item. It must have some value, however slight (R v Daley (1879) 2 SCR (NS) (NSW) 151). But even a piece of paper can be an item of value that can be

stolen. Land and fixtures could not be stolen at common law because they were not capable of being taken and carried away (R v Wilson (1874) 12 SCR (NSW) 258; R v Young (1947) 48 SR (NSW) 46; 64 WN (NSW) 193 (CCA (NSW)); R v Howlett [1968] Crim LR 222). This remains the case for the offence of larceny, which is a common law offence. However, in relation to statutory offences under the Crimes Act, we must consider the new statutory definition of ‘property’ which was introduced into the Act in 2009 in s 4: Property includes every description of real and personal property; money, valuable securities, debts, and legacies; and all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise.

7.10 This broad definition applies to offences such as larceny by a bailee (s 125), embezzlement by clerks or servants (s 157) and the fraud provisions contained in Pt 4AA (ss 192B–192H). As to fixtures see ss 139 and 154, and as to stealing trees, see s 140. In addition to the general larceny provision (see 7.4), the Crimes Act [page 317] creates specific offences, such as s 134, relating to ‘stealing, destroying etc a valuable security’, as defined in s 4, and various fraud offences in Pt 4AA (see 7.65). 7.11 In Parsons v R (1999) 195 CLR 619; 160 ALR 531, the High Court held that bank cheques and cheques at the time they were dishonestly obtained were property under the Crimes Act 1958 (Vic). 7.12 Thus, personal property can be stolen, provided it has

some value, even if the value is only nominal (R v Morris (1840) 9 C & P 349; 173 ER 864; R v Perry (1845) 1 Car & Kir 726; 174 ER 1008; R v Daley (1879) 2 SCR (NS) (NSW) 151; R v AB [1941] 1 KB 454; (1941) 65 LT 382). 7.13 In Croton, Barwick CJ said ‘… larceny can only be committed of property which is capable of physical possession and removal’. A chose in action, that is, an intangible proprietary right such as a right to sue, cannot be stolen, so an amount standing to one’s credit in a bank account is not property capable of being stolen, although of course the cash in the teller’s cash drawer can be stolen. Croton v R (1967) 117 CLR 326 High Court of Australia [The appellant was convicted of stealing money from a bank account held jointly by him and his fiancée. Her wages and maintenance from her ex-husband were paid into the account while they lived on his wages. The appellant withdrew the funds in the account and deposited them into an account in his own name. Two issues arose in the appeal: the first was whether the taking was with consent and the second was what it was that was ‘taken’.] Barwick CJ: … The counts in the indictment of the applicant were that as one of two joint owners he stole the three several amounts of dollars withdrawn by him from the Commonwealth Savings Bank, Ainslie, in April 1967, the property in the ‘money’ being laid in each charge in the joint owners. This case, in my opinion, is in somewhat the same situation as that dealt with by Lord Goddard in R v Davenport [1954] 1 WLR 569; [1954] 1 All ER 602. His Lordship said, as I would respectfully repeat of this case: For some reason or another the indictment charged the appellant with stealing all this money. That could only have been done, I think, because throughout this case there was a misapprehension, under which everyone

seems to have been, with regard to the more or less elementary principles of the law of banking and the law of larceny ([1954] 1 WLR, at p 570; [1954] 1 All ER, at p 603). As I have indicated, larceny consists in the taking and carrying away of the property of another without his consent, and without colour of right, intending at the time of the taking permanently to deprive the owner of that property. It follows that there must be what is called an asportation. Therefore, apart from any special statutory provision, larceny can only be committed of property which is capable of physical possession and removal. It also follows that to constitute larceny, the property must be removed, except in the case of larceny by a bailee, from the possession of some other person against the will of that person. … [page 318] The subject matter of the instant charges was money, in each case expressed as a number of dollars, that is, paper money, or coin to the stated face value. That can be asported and be the subject of larceny. But, though in a popular sense it may be said that a depositor with a bank has ‘money in the bank’, in law he has but a chose in action, a right to recover from the bank the balance standing to his credit in account with the bank at the date of his demand, or the commencement of action. That recovery will be effected by an action for debt. But the money deposited becomes an asset of the bank which may use it as it pleases: see generally Nussbaum, Money in the Law: s 8, p 103. Neither the balance standing to the credit of the joint account in this case, nor any part of it, as it constituted no more than a chose in action in contradistinction to a chose in possession, was susceptible of larceny, though it might be the subject of misappropriation: see also on this point the judgment of Lord Goddard in R v Davenport [1954] 1 WLR 569; [1954] 1 All ER 602 with which I respectfully agree. The receipt of the paper money or coins by the applicant from the bank could not have been larcenous for several reasons. In the first place, the transference of possession of that paper money or coin was voluntary on the part of the bank: it was not a taking of that paper money or coins out of the possession of the bank against

the will of the bank. Secondly, if it matters, that paper money or coins was not taken out of the possession of the joint owner of the bank credit, Mrs Webster; for she never did have possession of that paper money or coins: nor did the bank at any time hold possession of that money as in any sense her agent. Further, the property in that paper money or coins was in the bank immediately before it was handed over to the applicant, and not in Mrs Webster, or Mrs Webster and the applicant jointly. And, lastly, as I see the evidence of the suggested arrangement between the applicant and Mrs Webster, the property in and possession of the money or coins, in my opinion, passed to the applicant solely, even if on receipt of them he came under an obligation to account to Mrs Webster for all or some part of the ‘money’ they represented. No critical attention was paid in the summing up to the question of what was the actual arrangement between the applicant and Mrs Webster. It was assumed in the passages which I have quoted that the ‘moneys’ in the bank were the joint property of the two, in the sense that each owned half, or at any rate that each had a definable share. But that conclusion does not necessarily flow from what was proved. The precise arrangement would in the first place be a matter of fact for the jury under proper direction. But, in my opinion, there was no evidence at all upon which it could be found that the paper money or coins withdrawn by either the applicant or Mrs Webster, were themselves to be held on behalf of both, pending the use of the specific coinage for the stated purpose. The most that could be drawn, in my opinion, from that evidence was that if either withdrew any of the credit of the account, he or she would be accountable. In deciding what the arrangement really was, a jury would no doubt be reminded that it should not overlook the fact that the pair had been living on the earnings of the applicant, which may well have been much in excess of the salary of Mrs Webster. … It would, therefore, seem to me that the radical elements of larceny were missing in this case. … [McTiernan J agreed with Barwick CJ. Menzies J dissented. Leave to appeal granted. Appeal allowed. Conviction and sentence quashed.]

In someone’s possession whether or not the owner

7.14 Larceny is a crime against possession, not ownership, although possession and ownership will often reside in the one person. The essential element is that the goods are taken from someone’s possession. It does not matter that the goods [page 319] have been misplaced (see R v MacDonald [1983] 1 NSWLR 729 (7.45)) or that the possession of the goods is unlawful. Where the goods are in the possession of one person they can be stolen by another person, even if the person in whose possession they were prior to the taking did not have title to them. Anic v R (1993) 68 A Crim R 313 Full Court of the Supreme Court of South Australia Bollen J: … I speak only about the submission by the appellants that a person cannot be convicted for stealing drugs from another person which drugs that other person unlawfully has in his possession. … The intruders demanded to be told where ‘dope’ or ‘drugs’ was. They were intent on seizing drugs which were prohibited. … Despite the fact that she had no right in law to have these supposed drugs, Mrs Hollis did have possession of them. The drugs were tangible personal property having some value. … I do not think that the law sees no offence in the taking of drugs, illegally held by one person, by another who intends permanently to deprive the one of those drugs. I do not think that the cry ‘He has no right to have had them’ amounts to an exculpatory answer for the culprit. In The Australian Law of Theft (1977) by Weinberg and Williams the authors say at p 18: A person may be in possession of property even though he has himself stolen it. If a thief steals property, and it is taken from him by a second thief, the second thief is guilty of larceny from the first thief. The second thief is

also guilty of larceny from the owner, since the offence of larceny now protects ownership as well as possession. … [L]arceny is an ‘offence against possession’. Mrs Hollis was in possession of the drugs. It matters not that she had no absolute ownership nor indeed any title to the drugs. Judge Lunn says in the same note as mentioned above: ‘Control of property not amounting to possession may be sufficient to make the controller an owner for the purpose of the law of larceny.’ I would prefer to say that such control may afford sufficient possession for the purpose of the law of larceny. In Kennys Outlines of Criminal Law (19th ed, 1966) the author Mr JWC Turner wrote (p 267, paragraph 227): Larceny was always conceived as an offence against possession, and naturally so, since English law has never recognised in a subject of the realm any absolute right of ownership of chattels, our ‘owner’ being merely the person who has the best right to possess the thing. It follows therefore that a man can be guilty of larceny by stealing a thing from another who had himself stolen that thing from someone else, for a thief holds possession (albeit mala fide) of what he has stolen. … As put by Lord Hale, if A steals the horse of B, and, after, C steals the same horse from A, C is a felon both as to A and B: 1 Hale, PC 507; see also 2 East PC 654. … For these reasons I think that the appeals based on the suggestion that a person cannot be convicted for stealing prohibited drugs from another person must fail. [In separate judgments King CJ and Mohr J also held that a drug, the possession of which is illegal, is nonetheless property capable of being stolen.]

[page 320]

Without the consent of the person in possession

7.15 One of the physical elements of larceny is that the thing taken must be taken without consent. That was one issue considered in Croton v R (1967) 117 CLR 326 (see 7.13), which dealt with the issue of whether money standing to one’s credit in a bank account is property capable of being stolen. In that case the money handed to Croton was something that was capable of being stolen, but the bank gave him that money, that is, he took the money with the consent of the bank and it was the bank, not the joint account holder, who owned the cash. All that the joint account holder owned was a ‘chose in action’ (a right to sue the bank for the value of the money standing to her credit) and that was not a thing that could be stolen. Money in a bank account, or a similar chose in action, is of course capable of being fraudulently misappropriated (7.62). 7.16 In Kennison v Daire (1986) 160 CLR 129 the appellant was able to ‘trick’ an automatic teller machine into giving him money in excess of the amount in his account. As with Croton (see 7.13), he argued that the taking of the money was with the consent of the bank. Kennison v Daire (1986) 160 CLR 129 High Court of Australia Gibbs CJ, Mason, Wilson, Deane and Dawson JJ: … Before the date of the alleged offence, the appellant had closed his account and withdrawn the balance, but had not returned the card. On the occasion of the alleged offence, he used his card to withdraw $200 from the machine at the Adelaide branch of the bank. He was able to do so because the machine was off-line and was programmed to allow the withdrawal of up to $200 by any person who placed the card in the machine and gave the corresponding personal identification number. When off-line the machine was incapable of determining whether the card holder had any account which remained current, and if so, whether the account was in credit. It is not in doubt that the appellant acted fraudulently with intent permanently to deprive the bank of $200. The appellant’s

submission is that the bank consented to the taking. It is submitted that the bank intended that the machine should operate within the terms of its programme, and that when it did so it gave effect to the intention of the bank. In the course of an interesting argument, Mr Tilmouth pointed out that if a teller, having the general authority of the bank, pays out money on a cheque when the drawer’s account is overdrawn, or on a forged order, the correct conclusion is that the bank intends that the property in the money should pass, and that the case is not one of larceny … He submitted that, in effect, the machine was invested with a similar authority and that if, within the instructions in its programme, it handed over the money, it should be held that the property in the money passed to the card holder with the consent of the bank. With all respect we find it impossible to accept these arguments. The fact that the bank programmed the machine in a way that facilitated the commission of a fraud by a person holding a card did not mean that the bank consented to the withdrawal of money by a person who had no account with the bank. It is not suggested that any person, having the authority of the bank to consent to the particular transaction, did so. [page 321] The machine could not give the bank’s consent in fact and there is no principle of law that requires it to be treated as though it were a person with authority to decide and consent. The proper inference to be drawn from the facts is that the bank consented to the withdrawal of up to $200 by a card holder who presented his card and supplied his personal identification number, only if the card holder had an account which was current. It would be quite unreal to infer that the bank consented to the withdrawal by a card holder whose account had been closed. The conditions of use of the card supplied by the bank to its customers support the conclusion that no such inference can be drawn. It is unnecessary to consider what the position might have been if the account had remained current but had insufficient funds to its credit. The decision in R v Hands (1887) 16 Cox CC 188 is consistent with the view that no inference of consent can be drawn although, as Mr Tilmouth submitted, there are points of distinction between that case and this.

[Appeal dismissed.]

7.17 A similar factual scenario to that illustrated by Kennison v Daire would today be dealt with pursuant to the Crimes Act s 192B (see 7.66). Such was the case that arose in R v Moore [2015] NSWDC 315 (see 7.69). 7.18 In modern commerce shops put items on display and within easy reach of the customer so that customers can select goods themselves. Does this represent consent to the taking? Kolosque v Miyazaki (Unreported, 17 February 1995) Supreme Court of NSW, Common Law Division [A magistrate dismissed an information laid against the defendant, Miyazaki, for larceny. The informant, Kolosque, stated a case for consideration by the Supreme Court arguing that the magistrate had erred in law in dismissing the information.] Dowd J: … The … defendant was seen in the company of another person in the ladies’ fashion department on the ground floor of the Grace Bros department store. The defendant was observed selecting an outfit and three black tops. The defendant and the other person were seen to look around. The defendant then placed the items in a bag she was carrying over her shoulder; the bag was said to be some eighteen inches by eighteen inches and eight inches in depth. The clothing was placed in the bag in such a way that it could not be seen. The defendant and the other female person then walked into the stationery department next to the ladies’ fashion, towards an exit of the store. The companion, but not the defendant, then walked from the store out into the street and allegedly, upon seeing a ‘store detective’ known to her waiting outside, returned to the store and had a conversation with the defendant. The defendant and her companion then returned to the ladies’ clothing department of the store, where they were both apprehended by security officers and subsequently interviewed at the store by police. On being apprehended, the defendant refused to go to the

security office and said: “I haven’t left the store”. The defendant then became abusive and resisted the efforts of the loss prevention officers to take her to the security office. The defendant then [page 322] removed the clothing from her bag and said: “I haven’t got anything now”. On the arrival of the plaintiff, the defendant said to the other police officer: “I was only teasing. I was going to throw them back at you before I walked out.” The defendant also stated: “I didn’t leave the store so how can I be stealing clothes?” The defendant later said at the police station that she had intended to try the clothes on and that she had intended to put them on lay-by. The loss prevention officer gave evidence that the change rooms were in the ladies’ fashion department and not near the area towards the street exit where the defendant was walking. … The Question for Determination … is whether the Magistrate’s determination “was erroneous in point of law”: the finding that, at the time of her apprehension the defendant still had the goods with the consent of the owner of that property, means that, in effect, the offence of larceny is not committed within the physical confines of a department store, even if the accused has removed goods from display to another place within the store but has not left the premises, or has hidden or concealed goods, because the owner has impliedly consented to any asportation of goods within the store and licenses the accused to remove the goods in this manner. … While it can be said a department store may consent to removal of goods from display and may license asportation of goods from the place of display to elsewhere in the store, this implied consent or licence is matched with an implied honest intention of the accused at that time, to pay for the goods, rather than a dishonest intention to remove the goods without payment. The effect, at the time of the removal of the goods from display or asportation of the goods from the place of display, of a dishonest intention to permanently deprive the owner, is to defeat the owner’s consent to the removal and negate any licence agreement allowing asportation.

The plaintiff contends that a dishonest intention in the facts of this matter was demonstrated by the defendant: particularly as the goods were concealed in her shoulder bag it could not be said that any licence agreement with the store had been made or could be implied for removal of the goods in these circumstances of concealment. The question of whether larceny was committed in these circumstances is of importance in the established practice of department store owners readily licensing their customers and consenting to the removal of goods from displays, where there is an intention held by the customer at the time of removal to purchase the goods or at least to not remove them from the store, or in some cases, that part of the store, without paying for them. … The magistrate held that the question for determination was whether the defendant had the goods with the consent of the owner and, since the defendant had that consent, the effect of the decision is that no customer could ever commit larceny while still in a department store. It is necessary therefore to look at the nature of the implied consent of the store keeper for most modern retailing, not only in a department store but in all general stores, perhaps with the exception of expensive items such as jewellery and other small valuable items. The consent implied is that the goods may be taken from the display, for fitting where appropriate, or for inspection or to a cash register either directly or indirectly for the purposes of purchase. If goods are taken with the view to depriving the owner of those goods or, for instance, to damage the goods such as removing frozen goods or other goods that need protection and secreting them in some other part of the store which would ultimately damage the goods, this is clearly outside the terms of the consent. In the latter case, a different criminal charge of malicious injury may be brought. [page 323] The nature of the consent implied by the system of display, with the customer having the right to pick up the goods and take them to a point of purchase, is not a consent to take the goods irrespective of the intention of the customer. Any evidence of any conduct which is inconsistent with the implied consent of the

owner is therefore admissible as to the intention of the customer, thus breaking the terms of the licence which exists between the owner and that customer in respect of the particular item. If the customer’s intention at the time the goods were taken is dishonest, either because there was no intention to pay for the goods or there was an intention to damage the goods, any licence agreement is terminated. … The matter has been … considered in a Victorian decision of Herring CJ in Wallis v Lane [1964] VR 293, where his Honour considered the case of a truck driver who stole from his employer when he moved goods in the back of a truck from one position to another without moving the goods from the truck. It was held that the movement of the goods with intent to steal them is sufficient to constitute asportation. It follows, therefore, that the licence granted by an owner to remove goods is broken if there is any action inconsistent with the licence allowing clothing to be removed for a fitting or to take goods to a cash register for purchase or lay-by. Any action which damages the goods, or removes them from a place to another part of the store, or where goods such as food may be consumed or damaged, are all inconsistent with the terms of the licence. A person who conceals goods by placing them in a pocket or concealing them in a bag, as against just placing them in a bag or trolley, can be adduced as evidence of an action inconsistent with the terms of the licence. Therefore it follows that the learned Magistrate was in error in holding that the implied consent of the owner allowed that the goods could be carried by the customer whilst within the store without, in any circumstances, there being a breach of that licence granted by the owner and irrespective of the intention of the customer. It is clear on the evidence and the conversations referred to in the Stated Case that there was evidence from which an intention could be evinced on the part of the defendant to take the goods and the Magistrate’s finding that her actions were with the consent of the owner is wrong in law. [Dowd J ordered that the proceedings be returned to the magistrate to be determined according to law.]

7.19 Because larceny is a crime against possession, it can be

established, even if the identity of the owner cannot be established. However, to establish larceny the Crown must prove that it had no means of ascertaining ownership. In Ellis v Lawson (1987) 33 A Crim R 69, the plaintiff was convicted of stealing a radio ‘the property of persons unknown’. The plaintiff’s case was that she went to ‘Radio World’ with a friend and asked another friend, Les, who worked there, if she could have a radio. Les said ‘yes’, so she took a radio and placed it in her friend’s bag and left the shop. The magistrate convicted her and she sought review of that decision in the Supreme Court. The second defendant was the informant (a police officer). Justice Campbell held that the plaintiff was wrongly convicted because the prosecution had not proved that it had no means of ascertaining ownership. But his Honour also held that the employer of Les had remained in possession, under the doctrine of constructive possession, so that there had been a taking from the possession of the owner. Justice Campbell said (at 73–74): [I]t is necessary if one is to lay the ownership in an unknown person, to prove that in fact the identity of the person is unknown. … In my view the statement of Harris J [in

[page 324] Anglim and Cook v Thomas [1974] VR 363 at 374] “if the property is alleged to be the property of persons unknown, then the evidence must show that the Crown is unable to ascertain who was the owner of the goods” is, with due respect, a correct statement of the law. On that basis the present conviction cannot be supported and must be quashed and I shall make that order in due course. If the conviction here was based upon a taking of the radio from the possession of Les, then it would not have the necessary element of trespass. However, the learned magistrate did not proceed upon that basis and in not so doing he was in my view, with due respect, correct. The constructive possession of the radio was in the operator of the shop because it would be open to the first defendant to infer that Les was not such

an operator from the evidence that had been given. The matter is put in this way by Gillies in his work Criminal Law at p 333: “The obvious example of constructive possession is the employer–employee situation. The common law takes the view that the employee in whose physical custody or under whose physical control property is placed, does not possess this property in the legal sense. Rather, it is viewed as being still in the employer’s possession when the servant performs some act of appropriation.” In the same way the fact that the servant permits someone such as the plaintiff to take away the employer’s property does not afford a defence to that person against a charge of larceny.

Fault elements of larceny Intention to deprive the owner of property in the thing 7.20 At common law, it was said that the necessary intention was to permanently deprive the owner of his or her property in the thing stolen, but the requirement that the intention relate to ‘permanent’ deprivation has been qualified by s 118 of the Crimes Act, which is as follows: 118 Intent to return property no defence 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 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.

7.21 The effect of this provision on the fault element for larceny was considered in Foster. Foster v R (1967) 118 CLR 117 High Court of Australia

[The appellant was convicted in the ACT under s 189A of the Crimes Act 1900 (NSW) as it applied to the Territory. The offence related to having in his possession goods stolen in NSW. It was alleged that he had taken a gun from one Baker, with whom Foster had been staying, and took it to the ACT to show it off to his parents who lived there. When arrested, and at trial, he claimed that his intention had always been to return the gun to the owner on the same evening. Whether or not he was guilty of larceny depended on the interpretation of s 118.] [page 325] Barwick CJ: … The Crown at the trial submitted in substance that because of the terms of s 118 of the Crimes Ordinance, it was not necessary in relation to the facts of the case to establish that the accused, at the time of the asportation of the gun, had an intention to deprive Baker permanently of the gun. … In order that an accused should be convicted of the offence under s 189A it was necessary that the gun should have been stolen: and in the case of the applicant, that he stole it. No other offence indictable in the Territory was suggested as satisfying the terms of s 189A(2). It was also necessary that the taking which founded the stealing was not an innocent taking under the law of New South Wales (s 189A(3)). In this case the relevant law is the same in New South Wales as in the Australian Capital Territory. Larceny under the Crimes Ordinance 1951 (ACT), as under the Crimes Act 1900 (NSW) being undefined, is as under the common law. It involved an intention on the part of the applicant to assume ownership of the gun, to deprive Baker 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. Section 118 of the Ordinance does not deny the necessity for an intention in one of these forms to accompany the taking. It deals with the case of an accused who has appropriated the property and not of an accused who has only assumed possession of it. It merely ensures that the

consequence of forming or having that intention is not defeated by an intention eventually to restore the property to the true owner. 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. Of course, in truth the thief cannot alter the ownership of the goods: but he can have an intention to do so. … The Crown before this Court … sought to support the conviction by submitting that although the summing up was defective in not having properly informed the jury as to the requisites of larceny, it did adequately place before the jury the real issue in the trial which counsel for the Crown claimed to be whether or not the applicant did intend to return the gun that same night. But, in my opinion, that was not the issue, though no doubt the jury’s view as to the credibility of the applicant in his account of his intention in that respect might be a material factor in its determination of that which was the real issue, namely, whether the applicant at the time he removed the gun from Baker’s possession had an intention permanently to deprive him of it. It was not enough to disbelieve the applicant when he said he intended to return the gun that evening. This the trial judge realized … He rightly appreciated the necessity to direct the jury as to the need for them to be satisfied to the requisite degree of the applicant’s intention at the time of the taking of the gun. But, as I have indicated, he failed to tell them what that requisite intention was. … [McTiernan, Kitto, Taylor and Menzies JJ all agreed with the reasons of Barwick CJ. Appeal allowed. New trial ordered.]

7.22 It follows from Foster that: 1.

The requisite intent is not limited to an intent to ‘permanently deprive’ the true owner. An intent to use the item stolen in a way that is inconsistent with [page 326] the owner’s rights, as owner, even for a short time, is sufficient. To quote Barwick CJ in Foster (at 121):

An intention to deprive him of his property in the goods is another [form of intent], that is, an intention to appropriate the goods as distinct from merely to assume possession of them.

2.

A person who takes the goods of another with the intention of pawning them to obtain a short-term loan that he or she will use to make a wager on a ‘sure thing’ and thereby win enough to get the goods back, return them to the owner, and pocket the profit, steals the goods. Here the act of pawning them would be appropriating the goods to the person’s own use and contrary to the true owner’s rights as owner. An intention, on the other hand, to take goods and, as in Foster, show them off, all the time saying that they belong to the true owner, would be an example of taking mere possession and would not constitute larceny.

3.

Just as goods can be stolen from ‘persons unknown’ (see Ellis v Lawson (1987) 33 A Crim R 69 (7.19)), so too can a person intend to deprive the true owner even if he or she does not know who the owner is. Goods that are truly lost or abandoned, or not owned by anyone, cannot be stolen. On the other hand, goods that are misplaced, where the owner can be found, can be stolen, so that a person who finds goods that could be returned to the true owner, but who makes no attempt to do so, may be guilty of larceny by finding. What makes a finding larcenous or not was discussed in R v MacDonald [1983] 1 NSWLR 729 (see 7.45).

4.

The requirement of an intention to permanently deprive is not applicable to dishonest acquisition offences under the Crimes Act: see, for example, s 154A (the offence of taking a conveyance without consent of owner — or ‘joyriding’) or R v Glenister

[1980] 2 NSWLR 597 (a director fraudulently appropriating property of the company). This was an offence under the (then) s 173 but would now be brought pursuant to the fraud offences contained in Pt 4AA (7.65). 7.23 In 2009 the New South Wales Parliament passed the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009, which inserted into the Crimes Act a series of sections designed to modernise the law relating to fraud and forgery offences. The concept of ‘obtaining property’ and the element of permanent deprivation, as considered in Foster (7.21), is now defined in s 192C. 192C Obtaining property belonging to another (1) For the purposes of this Part, a person obtains property if: (a) the person obtains ownership, possession or control of the property for himself or herself or for another person, or (b) the person enables ownership, possession or control of the property to be retained by himself or herself or by another person, or (c) the person induces a third person to do something that results in the person or another person obtaining or retaining ownership, possession or control of the property.

[page 327] (2) 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. (3) For the purposes of this Part, property belongs to a person if: (a) the person has possession or control of the property,

or … (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. (5) Without limiting the generality of subsection (4), if: (a) a person has possession or control (lawfully or not) of property belonging to another, and (b) the person parts with the property under a condition as to its return that the person may not be able to perform, and (c) the parting is done for the purposes of his or her own and without the other’s authority, the parting amounts to treating the property as his or her own to dispose of regardless of the other’s rights.

Fraudulently and without honest claim of right 7.24 To be larceny, the taking must be both fraudulent and without an honest claim of right. The concept of ‘fraudulent’ is often equated with dishonesty so that a ‘fraudulent’ taking would appear to be a dishonest taking, and the fact that one is acting dishonestly would mean there could not be an honest claim of right; one cannot be both dishonest and honest about the same thing at the same time. The requirement to prove both fraud and no honest claim of right, would appear to be a tautology, but the courts have attempted to identify a difference.

Fraudulent taking 7.25 The discussion that follows will consider what is meant by ‘dishonest’ at common law and will then consider Macleod v R (2003) 214 CLR 230; 197 ALR 333 (see 7.44), a case of fraudulently taking by a company director, where the High Court considered the relationship between the concepts of ‘fraud’ and ‘dishonesty’. 7.26 Numerous statutory offences state a requirement that the accused must have acted ‘dishonestly’. For the purposes of the statutory fraud offences under the Crimes Act, ‘fraudulently’ has been held to be the equivalent of ‘dishonestly’ (see R v Glenister [1980] 2 NSWLR 597). This case considered the now repealed s 173 which concerned ‘fraudulently appropriating property’. It is important to bear in mind that, following amendments to the Crimes Act in 2009, the concept of ‘dishonesty’ is now defined for statutory offences (see s 4B). However, at common law the concept of what is ‘dishonest’ has caused some difficulties. [page 328] 7.27 In R v Salvo [1980] VR 401, the defendant believed a vehicle in the possession of a car dealer was his, and he passed a cheque knowing it would not be paid in order to get it back. The Full Court of the Supreme Court of Victoria held that the test of dishonesty is whether the accused believed he had any right to the property in question. In R v Feely [1973] QB 530 the Court of Appeal (UK) stated what was treated as an objective test of dishonesty applying the ‘current standards of ordinary decent people’. In R v Ghosh [1982] QB 1053 the Court of Appeal (UK) applied a two-part objective–subjective test, as quoted by the court in Love (see 7.28). 7.28 In Love, the New South Wales Court of Criminal Appeal considered the issue of the appropriate test for

dishonesty. Love involved an allegation that the appellant had dishonestly obtained a benefit by deception and dishonestly obtained a ‘valuable thing’ under s 178BA (now repealed) of the Crimes Act. This issue is considered further in the context of the fraud provisions contained in s 192E (see 7.66). R v Love (1989) 17 NSWLR 608 NSW Court of Criminal Appeal [The appellant engaged in an elaborate subterfuge engaging the unwitting involvement of various members of his family and his forging of a signature in order to gain ownership of land to which he believed himself entitled. The essence of the appellant’s defence was that, by reason of his original arrangements with his mother, he was entitled to deal with the land as he wished, and that his conduct was all directed in one way or another towards protecting or vindicating what he regarded as his legal entitlement. The principal ground of appeal involved the submission that the learned trial judge misdirected the jury in relation to the issue raised as to the meaning of the concept ‘dishonestly obtains’ in s 178BA of the Crimes Act.] The court (Gleeson CJ, Newman and Loveday JJ): … The meaning of the concept of “dishonesty”, in a similar context, was expounded by the Court of Appeal in England in R v Feely [1973] QB 530, and, subsequently, R v Ghosh [1982] QB 1053. The application of those decisions in Australian jurisdictions has been a matter of some controversy. What is also to be noted, however, is that his Honour directed the jury in terms which, putting to one side considerations of onus of proof, indicated that in so far as the appellant’s case involved something in the nature of a claim of right, the issue was not only whether he honestly believed that he was legally entitled to the benefit which he set out to obtain but also whether he honestly believed that he was legally entitled to use the particular means which he was in fact employing to obtain that benefit. It is the latter consideration which has been the focal point of argument on behalf of the appellant before this Court. Upon examination it can be seen that although there is some

resemblance between his Honour’s directions and the test of dishonesty stated by the Court of Appeal of England in R v Ghosh, there are important differences. In R v Ghosh (at 1064) the Court said: In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards [page 329] of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did. One of the controversial features of that statement of principle, which was absent from the direction given to the jury in the present case, is that, although it proceeds in two steps, the central aspect of the question involved in both steps is the standard of honesty of ordinary people. In so far as the second step involves an investigation of the state of mind of the defendant, the statement holds that what is important is his state of mind concerning the way in which ordinary people would judge his conduct. In the present case the learned trial judge instructed the jury that the second stage of their process of reasoning, if they came to it, should be concerned with the appellant’s subjective view as to his right to do what he did, rather than his view as to how ordinary people would evaluate his conduct. That direction was not challenged in this appeal.

The second matter to be noted concerns a point that is not covered by the statement of principle contained in R v Ghosh. There are cases, of which the present is an example, where a person is setting out to obtain something to which he genuinely believes he is legally entitled, but it does not necessarily follow that he also entertains a belief in his legal entitlement to employ the particular means (which in the present context, by hypothesis, involved deception) which he is using to obtain it. Unfortunately, the ordinary standards of reasonable people can be an unreliable guide as to what constitutes ‘dishonesty’ in such a case. Many right-thinking people would find themselves perplexed if called upon to evaluate the honesty of such conduct. It is considerations such as the foregoing which have led to dissatisfaction with the tests enunciated in cases such as R v Feely and R v Ghosh. There are undoubtedly many cases, perhaps even a majority of cases, in which the standards of reasonable and decent people provide an adequate guide in determining whether a person has dishonestly obtained property. However, especially in cases where what is involved is something in the nature of a claim of right, a test which is simply expressed in terms of the standards of ordinary people will leave a jury with inadequate instruction. [Their Honours gave further consideration to the meaning of ‘dishonestly obtains’ within s 178BA. Appeal upheld. Conviction quashed.]

7.29 The concept of dishonesty was further considered by the High Court in Peters v R, a case involving charges of conspiracy to defraud the Commonwealth under ss 86(1)(e) and 86A of the Crimes Act 1914 (Cth). In Peters, the High Court considered both Salvo and Ghosh (see 7.27). Support for both interpretations of the concept of ‘dishonesty’ can be found in the judgment: the Ghosh test appears to be favoured in those cases which require an assessment of whether the act is dishonest ‘according to ordinary notions’, and the Salvo test favoured when the word ‘dishonest’ is used in ‘some special sense in legislation’ (at 504 [18]). [page 330]

Peters v R (1998) 192 CLR 493; 151 ALR 51 High Court of Australia [The appellant, a solicitor, was convicted of offences of conspiracy to defraud the Commonwealth and conspiracy to pervert the course of justice. He was acquitted of the latter charge but convicted of conspiracy to defraud. His appeal against conviction was dismissed by the Court of Appeal (Criminal Division) of the Supreme Court of Victoria. He then appealed to the High Court.] Toohey and Gaudron JJ: [footnotes omitted] … 6. The appellant contends in this Court, as he did in the Court of Appeal, that the trial judge misdirected the jury as to the test of dishonesty. In this regard, it is put that the jury should have been instructed to apply a subjective test in accordance with the decision of the Full Court of the Supreme Court of Victoria in R v Salvo [1980] VR 401 and not the test adopted in Ghosh [1982] QB 1053. More precisely, it is put that the jury should have been instructed that the prosecution had to prove ‘an absence of belief [on the appellant’s part] that he had a legal right to do what he did’. However, the appellant’s belief in that regard was not in issue at the trial. His case was simply that he was not a party to the conspiracy alleged, rather than that he did not act ‘dishonestly’. … The tests of dishonesty in Ghosh and in Salvo 9. The issue in Ghosh [1982] QB 1053 was the test of dishonesty for the offence of dishonest appropriation by deception contrary to s 1 of the Theft Act 1968 (UK) (‘the Theft Act’). In that case, a number of earlier cases, including R v Scott [1975] AC 819 and R v Landy [1981] 1 WLR 355, were referred to in support of the proposition that ‘the test for dishonesty … should be the same whether the offence charged be theft or conspiracy to defraud’ ([1982] QB 1053 at 1059). (Cf R v McIvor [1982] 1 WLR 409 in which it was held that a subjective test was to be applied for conspiracy to defraud and an objective test for theft.) The Court of Appeal declined to apply the subjective test which had been applied in some earlier cases under the Theft Act 1958 (see, for example, R v Greenstein [1975] 1 WLR 1353 and R v Waterfall

[1970] 1 QB 148; see also R v Royle [1971] 1 WLR 1764), namely, whether the accused believed his or her actions to be honest, and adopted, instead, the test which formed the basis of the trial judge’s direction in this case. 10. The test adopted in Ghosh, namely, whether the acts in question were dishonest according to current standards of ordinary decent people and, if so, whether the accused must have realised that they were dishonest by those standards ([1982] QB 1053 at 1064) has its origins in R v Feely [1973] QB 530. That, too, was a case of dishonest appropriation contrary to s 1 of the Theft Act. It was held in Feely 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. Further, 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’ ([1973] QB 530 at 538). 11. The test of dishonesty adopted in Salvo [1980] VR 401 was whether the accused believed he had a legal right to the property in question. In that case, the accused was charged with dishonestly obtaining a motor vehicle by deception contrary to s 81(1) of the Crimes Act (Vic) (‘the Crimes Act’), one of a number of provisions in that Act based on the Theft Act. In his defence, the accused asserted his belief that he had a legal right to possession of the vehicle concerned. [page 331] 12. In Salvo, Murphy J expressed the view that ‘the word “dishonestly” is clearly used in a special sense in s 81(1) of the Crimes Act 1914’ ([1980] VR 401 at 422) and that ‘R v Feely … ought not to be applied … if it means that the judge should not tell the jury anything about the word “dishonestly”’ ([1980] VR 401 at 423). Fullagar J likewise thought that dishonesty was used in a special sense and expressed the view that it ‘imports that the accused person must obtain the property [in question] … without any belief that he has in law the right to deprive the other of [it]’ ([1980] VR 401 at 440). His Honour also described the interpretation of ‘dishonestly’ in R v Feely as ‘unworkable’ ([1980] VR 401 at 439). 13. The approach adopted in Salvo was followed in Victoria in R v

Brow [1981] VR 783 and R v Bonollo [1981] VR 633, both cases involving charges of dishonestly obtaining by deception under s 81(1) of the Crimes Act. It was followed in New South Wales in R v Love (1989) 17 NSWLR 608, another case involving a charge of dishonestly obtaining by deception (see s 178BA of the Crimes Act 1900 (NSW)), and in Condon (1995) 83 A Crim R 335, a case involving a charge of defrauding the Commonwealth under s 29D of the Act. In each of the two last mentioned cases, the accused asserted a belief that he was legally entitled to the property or money in question. 14. In the present case, the Court of Appeal held that, notwithstanding the decision of the New South Wales Court of Appeal in Condon, the subjective test adopted in R v Salvo has no application to Commonwealth offences involving fraudulent conduct. (Note that in R v Harris (unreported, Court of Appeal of Victoria, 13 February 1997), the Court of Appeal again held that the subjective test in Salvo did not apply to a fraud offence, this offence charged pursuant to s 29D of the Crimes Act 1914 (Cth).) It did so on the basis that the application of a subjective test would be inconsistent with its earlier decision in R v Lawrence [1997] 1 VR 459, with dicta in other cases decided in Victoria (see R v Smart [1983] 1 VR 265 at 294–5; R v Walsh and Harney [1984] VR 474 at 478 per Young CJ (with whom Murray J agreed); R v Edwards [1988] VR 481 at 489 per Young CJ) and with the course of authority in Queensland (see R v Maher [1987] 1 Qd R 171), South Australia (see R v Aston and Burnell (1987) 44 SASR 436) and Western Australia (see Cornelius & Briggs (1988) 34 A Crim R 49; see also Turner v Campbell (1987) 88 FLR 410). Dishonesty 15. There is a degree of incongruity in the notion that dishonesty is to be determined by reference to the current standards of ordinary, honest persons and the requirement that it be determined by asking whether the act in question was dishonest by those standards and, if so, whether the accused must have known that that was so. That incongruity comes about because ordinary, honest persons determine whether a person’s act is dishonest by reference to that person’s knowledge or belief as to some fact relevant to the act in question or the intention with which the act was done. They do not ask whether he or she must be taken to have realised that the act

was dishonest by the standards of ordinary, honest persons. Thus, for example, the ordinary person considers it dishonest to assert as true something that is known to be false. And the ordinary person does so simply because the person making the statement knows it to be false, not because he or she must be taken to have realised that it was dishonest by the current standards of ordinary, honest persons. 16. There are also practical difficulties involved in the Ghosh test. Those difficulties arise because, in most cases where honesty is in issue, the real question is whether an act was done with knowledge or belief of some specific thing or with some specific intent, not whether it is properly characterised as dishonest. To take a simple example: there is ordinarily no question whether the making of a false statement with intent to deprive another of his property is dishonest. Rather, the question is usually whether the [page 332] statement was made with knowledge of its falsity and with intent to deprive. Of course, there may be unusual cases in which there is a question whether an act done with knowledge of some matter or with some particular intention is dishonest. Thus, for example, there may be a real question whether it is dishonest, in the ordinary sense, for a person to make a false statement with intent to obtain stolen property from a thief and return it to its true owner. 17. The practical difficulties with the Ghosh test arise both in the ordinary case where the question is whether an act was done with knowledge or belief of some specific matter or with some specific intent and in the unusual case where the question is whether an act done with some particular knowledge, belief or intent is to be characterised as dishonest. In the ordinary case, the Ghosh test distracts from the true factual issue to be determined; in the unusual case, it conflates what really are two separate questions, namely, whether they are satisfied beyond reasonable doubt that the accused had the knowledge, belief or intention which the prosecution alleges and, if so, whether, on that account, the act is to be characterised as dishonest. In either case, the test is likely to confuse rather than assist in deciding whether an act was or was not done dishonestly. 18. In a case in which it is necessary for a jury to decide whether

an act is dishonest, 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 special meaning if there is an issue whether the act in question is properly characterised as dishonest (as in Salvo). … [Their Honours reviewed the concept of dishonesty with particular reference to the offence of conspiracy to defraud, then continued:] … 29. Because of the view expressed by McHugh J and Gummow J in this case, we should indicate that we incline to the view that should an issue arise whether the agreed means are properly characterised as dishonest, that issue should be left to the jury. At least, that is so if the means are capable of being so characterised. And the jury should be instructed that the question whether they are to be characterised as dishonest is to be determined by application of the standards of ordinary, decent people. However, these issues need not be pursued in this case. … [McHugh and Gummow JJ agreed that the appeal should be dismissed, but for different reasons from those of Toohey and Gaudron JJ. Kirby J disagreed with both sets of reasons but, in dismissing the appeal, concurred in dismissing the appeal for the reasons of Toohey and Gaudron JJ, in order to produce a binding ratio.]

7.30 The requirement that the concept of ‘dishonesty’ be judged by the standards of ordinary, reasonable people sets

some limit on moral claims that people might make to justify larceny and other property offences. A person may feel that it is not dishonest to rob from wealthy people who, he or she believes, have obtained their wealth by the oppression of the working class. They may feel it is appropriate to steal from them either to redistribute the wealth to the poor, or simply to punish [page 333] them for their perceived wrongs. That belief, if honestly held, may, with a purely subjective test, suggest that the stealing is not ‘dishonest’. With the test adopted by Toohey and Gaudron JJ in Peters, the question is first ‘whether they [the jury, or judge if there is no jury] are satisfied beyond reasonable doubt that the accused had the knowledge, belief or intention which the prosecution alleges’, which, in the example given, must be the intention required to complete the offence of larceny; and, if so, whether the act is to be ‘characterised as dishonest by application of the standards of ordinary, decent people’, rather than the subjective view of the accused (a view favoured by Kirby J). 7.31 Peters (see 7.29) was a case of conspiracy to defraud. Macleod v R (2003) 214 CLR 230; 197 ALR 333 (see 7.44) was one of fraudulent taking by a company director. In the latter, the reasoning in Peters of Toohey and Gaudron JJ was applied. It seems clear that that reasoning has equal application to the common law crime of larceny. This means that, in situations where it is established that the accused acted without honest claim of legal right and with the intention of permanently depriving the owner of his or her property, it is nevertheless open to the jury to acquit on the basis that, according to the ordinary standards of decent people, the accused’s conduct should not be characterised as dishonest. 7.32 In Vella the court considered the meaning of

‘dishonesty’ both at common law and in the context of the statutory definition contained in s 4. Vella v R; Siskos v R [2015] NSWCCA 148 NSW Court of Criminal Appeal [The offences stemmed from a plan described by the trial judge at first instance as ‘somewhat extraordinary’. The two accused conspired to defraud an insurance company, OnePath Life Ltd, by taking out a life insurance policy over the life of Mr Siskos, naming Ms Vella as the beneficiary under the policy. Following the necessary preclusion period, Mr Siskos would commit suicide thereby allowing Ms Vella to claim the $1,723,000 payable under the policy. Ultimately Mr Siskos did not commit suicide, and Mr Siskos and Ms Vella were both charged with the common law offence of conspiring to defraud the insurance company. Ms Vella was further charged with an offence pursuant to s 192E(1)(b) of the Crimes Act, of dishonestly obtaining a financial advantage.] Gleeson JA: 23. To address the grounds of appeal, it is necessary to explain what the real issues at the trial were. Consistent with authority, the trial judge directed the jury that a defrauding involved the intentional use of “dishonest means” to deprive another person of their property or to imperil their rights or interests (see Peters v R [1998] HCA 7; 192 CLR 493 at [30] per Toohey and Gaudron JJ). In this case the Crown did not allege that the fraud lay in the possible making of a claim but in the obtaining of a policy. The relevant imperilment was said to be the underwriting of an insurance policy by OnePath. 24. The trial judge directed the jury as to the dishonest means that had been identified by the Crown as follows: “The dishonest means which the Crown says the accused used here were making the application for insurance not in good faith by agreeing between themselves [that] the [page 334] accused Peter Siskos [was] to commit suicide after the

expiration of the exclusion period leaving the accused Esther Vella as the sole beneficiary. The Crown must establish beyond reasonable doubt that the accused had that knowledge, belief or intent and, if so, on that account the relevant conduct was dishonest. In determining whether the conduct of the accused was dishonest, the standards which you apply is [sic] that of ordinary decent people.” (emphasis added) 25. The latter part of this direction was consistent with the meaning of “dishonest” stated in Peters at [18] and confirmed in McLeod v R [2003] HCA 24; (2003) 214 CLR 230 at [38] (per Gleeson CJ, Gummow and Hayne JJ; cf R v Ghosh [1982] EWCA Crim 2; [1982] QB 1053 and The Criminal Code 1995 (Cth), s 130.3). 26. The reference by the trial judge to the application for the insurance policy not being made in “good faith” reflected the manner in which the Crown opened and closed its case although little was said at the trial as to what “good faith” meant in this context. Properly analysed, the Crown case, if accepted, involved dishonest means by the applicants in “concealing facts which they had a duty to disclose” (Peters at [84] per McHugh J); that is, on the Crown case the applicants deliberately omitted to inform OnePath of Mr Siskos’ intention to commit suicide knowing that they were obliged to disclose it. The reference to “good faith” in the directions should be so understood. 27. A review of the trial transcript reveals that, other than at the time of the debate over the admission of additional evidence from OnePath’s underwriter which is the subject of ground 6 of Ms Vella’s conviction appeal, it was not truly in issue at the trial that, if Ms Vella and Mr Siskos entered into the agreement the Crown alleged they did, then that was a matter that each knew had to be disclosed to OnePath and the failure to do so involved “dishonest means”. Counsel for Mr Siskos did not make any submission on this issue to the jury. In his address to the jury Counsel for Ms Vella made reference to whether Ms Vella understood she had a “particular obligation” to disclose Mr Siskos’ alleged suicidal intentions to OnePath, but only in relation to the alternative count. He ultimately described the issue for the jury on count 1 as being whether it had been “established beyond reasonable” doubt that

they have reached this agreement alleged by the Crown. Further, none of the Counsel appearing at the trial sought any further direction from the trial judge on the question of “dishonest means” after his Honour gave the above direction. No complaint is made about any aspect of his Honour’s directions in the grounds of appeal.

7.33 Following passage of the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (see 7.3) a statutory definition of ‘dishonesty’ appears in the Crimes Act. This statutory definition appears to adopt the Ghosh test: 4B Dishonesty (1) In this Act: dishonest means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people. (2) In a prosecution for an offence, dishonesty is a matter for the trier of fact.

7.34 Clearly then, when the concept of dishonesty is used in the Crimes Act now, it must be interpreted in the light of that definition. However, the offence of larceny is a common law concept (see 7.4). The term used at common law in defining larceny is ‘fraudulently’. The 2009 amendments to the Crimes Act included a series of new fraud offences, an example of which is the ‘base offence’ created under s 192E (see 7.66). [page 335] 7.35 In R v Glenister [1980] 2 NSWLR 597 (see 7.26) it was held that, for the purposes of the then statutory fraud offences under the Crimes Act, ‘fraudulently’ was the equivalent of ‘dishonestly’. Note that the fault element used throughout the new Pt 4AA provisions is ‘dishonestly’, not ‘fraudulently’, so it appears there is no longer any practical difference between the concepts of ‘dishonesty’ and ‘fraud’,

and, further, that the definition of ‘dishonest’ is now contained within the Act (s 4B, see 7.33). Claim of right advanced in good faith 7.36 As noted at 7.5, in defining the common law offence of larceny, the term ‘fraudulent taking’ is used. This is a common law concept. One issue is whether it has a meaning other than taking without an honest claim of legal right. 7.37 Brennan J said in Walden v Hensler (1987) 163 CLR 561 at 571: In cases of robbery and larceny, the existence of an honest claim of right to take property in the manner and circumstances in which it is taken precludes a finding that the property is taken animo furandi: 1 Hale P.C. 508, 509. Thus, in R. v. Hall (1828) 3 Car & P 409 (172 ER 477), a poacher who had set three wires in one of which a pheasant was caught threatened violence to a gamekeeper who took possession of the wires and the pheasant. The poacher was indicted for robbery of the gamekeeper. Vaughan B. said (at p 409 (p 478)): “I shall leave it to the Jury to say whether the prisoner acted on an impression that the wires and pheasant were his property; for … if the Jury think that he took them under a bona fide impression that he was only getting back the possession of his own property, there is no animus furandi, and I am of opinion that the prosecution must fail.” …

7.38 Where the taker believes that he or she has a legal right to the thing taken, there is no larceny, even if that belief is incorrect. The issue of honest claim of right arises when accused persons take something to which they believe themselves to be legally, as opposed to morally, entitled. If such a belief is honestly held, then the fault element for larceny is not established, regardless of the means taken to obtain the thing. However, that proposition would seem ripe for review by the High Court, following Macleod (see 7.44). Note in particular the comments of Heydon JA in Fuge.

R v Fuge (2001) 123 A Crim R 310; [2001] NSWCCA 208 NSW Court of Criminal Appeal [The appellant was convicted of being an accessory before the fact to an offence of assault with intent to rob while armed with an offensive weapon. The appellant was with a number of other people when it was suggested that they should rob ‘Hungry Jack’s’ as one of the group used to work there and claimed to be owed wages. The appellant assisted by providing stockings, bandannas and knives for use in the robbery, and travelling with the offenders to the restaurant.] [page 336] Wood CJ at CL: … 22. In an appropriate case, the existence of a claim of right is relevant to the commission of the foundational offence. In the present case, had [the appellant] … held a bona fide belief that Hungry Jack’s owed [the principal offender], then the taking of that sum of money from the restaurant, in circumstances which otherwise would have involved robbery would not have constituted an offence on their part. The reason for that lies in the absence of the mens rea which is an essential element of the offence: Walden v Hensler (1987) 163 CLR 561 at 569, 603 and 608. 23. The same principle applies to any crime of which larceny is an element, and it extends to any person who takes the property on behalf of another, or in collaboration with another, whom he believes to have a bona fide claim of right to the money or property in question: Sanders 57 SASR 102 at 105, per King CJ. 24. A review of the authorities shows that: (a) the claim of right must be one that involves a belief as to the right to property or money in the hands of another: Langham (1984) 36 SASR 48. (b) the claim must be genuinely, ie honestly held, it not being to the point whether it was well founded in fact or law or not: Nundah (1916) 16 SR (NSW) 482; Bernhard [1938] 2 QB 264; Lopatta (1983) 35 SASR 101 at 107; Walden v Hensler; and

Langham at 52–53. (c) while the belief does not have to be reasonable: Nundah at 485–490; Langham at 49; and Kastratovic (1985) 19 A Crim R 28, a colourable pretence is insufficient: Dillon (1878) 1 SCR NS (NSW) 159 and Wade (1869) 11 Cox CC 549. (d) the belief must be one of a legal entitlement to the property and not simply a moral entitlement: Bernhard and Harris v Harrison [1963] Crim LR 497. (e) the existence of such a claim when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it: Love (1989) 17 NSWLR 608 at 615–616; Salvo [1980] VR 401; Langham at 58; Kastratovic at 66; Barker (1983) 153 CLR 338; Williams (1986) 21 A Crim R 460; and see also Boden (1844) 1 C & K 395. (f)

the claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, of which Langham and Lopatta provide examples; although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them: Lenard (1992) 58 A Crim R 123.

(g) the claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches: Astor v Hayes (1988) 38 A Crim R 219 at 222. (h) in the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders, since there can be no accessorial liability unless there has in fact been a foundational offence: Gregory LR 1 CCR 77 at 79; See Lun (1932) 32 SR (NSW) 363; Richards [1974] QB 776 and Howe [1987] AC 417, and

unless the person charged as an accessory, knowing of the essential facts which made what was done a crime, intentionally aided, abetted, counselled or procured those acts: Giorgianni (1985) 156 CLR 473; Stokes & Difford (1990) 51 A Crim R 25 and Buckett 79 A Crim R 303. [page 337] (i)

it is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury: Lopatta at 108, Astor v Hayes (1998) 38 A Crim R 219, Lenard and Williams at 475.

25. In applying these principles to the present case, it is correct that a direction would have been required had there been an issue sufficiently raised by the evidence, as to whether [the principal offender] … had a bona fide belief as to a claim of right to moneys owing to her by Hungry Jack’s. 26. The obligation of the trial Judge to have given such a direction would have continued even though counsel had overlooked requesting it, or had deliberately refrained from seeking it out of concern that it may disadvantage a case of outright denial of any knowledge of, or complicity in a planned robbery: Pemble (1971) 124 CLR 118 at 130; and Stokes & Difford at 32. 27. I am not, however, persuaded that the issue was sufficiently raised by the evidence … 28. In all of these circumstances, I am not persuaded that there was any risk of a miscarriage of justice going to the root of the proceedings, by reason of the absence of the direction which, it is now submitted, should have been given: Tripodina (1988) 35 A Crim R 183. Rather, the case is one where it appears to me, not only from the affidavit of counsel, but from the entirety of the evidence, that the point now sought to be taken was of no importance, and should not be permitted to be ventilated. I would, accordingly, refuse leave under r 4 of the Criminal Appeal Rules 1952 to argue this ground. [His Honour then considered the other grounds of appeal and rejected them as well. Heydon JA and Sully J agreed with Wood CJ at CL.] Heydon JA [added]:

2. The first ground of appeal rested on the proposition that a person who claims to be owed arrears of wages after being dismissed by an employer has a defence to a charge of robbing the employer of cash not exceeding the claimed arrears. By the light of nature that is an astonishing proposition. There are, however, statements in other intermediate courts of appeal which justify it. Those statements call for reconsideration by this Court in a suitable case, there being no High Court decision preventing that course. … [Appeal dismissed.]

7.39 Though ‘honest claim of right’ is often referred to as a ‘defence’ to a charge of larceny, it is in fact not correctly a ‘defence’ at all. One of the elements of the offence of larceny that the Crown is required to prove is that the taking was fraudulent and without honest claim of right. Hence, if claim of right becomes a live issue at trial, it is for the Crown to disprove it beyond reasonable doubt. If it cannot then the accused is entitled to an acquittal. This acquittal is not because the accused successfully raised a ‘defence’, but rather because the Crown did not discharge its burden of proof. 7.40 Fuge (see 7.38) suggests that force or violence which may otherwise constitute assault may be excused in the taking of property which includes force or violence pursuant to an honest claim of right. This issue was considered in Richards v Kerrison [2013] ACTMC 15. It is important to note that this case was heard in the ACT where s 38 of the Criminal Code 2002 (ACT) replaces the common law position in relation to claim of right and larceny. [page 338] 7.41 In this case the Crown conceded that ‘a claim of right can be a defence to a charge of assault’. The Chief Magistrate of the ACT, in dismissing this as an accurate statement of law, considered Fuge and numerous other authorities in detail. Chief Magistrate Walker stated (at [41]–[43]): 41. In the decision of R v Bedford [2007] SASC 276 Duggan,

Gray and Vanstone JJ of the Criminal Court of Appeal of South Australia applied Walden and the earlier South Australian authority of R v Langham (1984) 36 SASR 48 in applying a claim of right defence to a charge of attempted robbery. The Court concluded that a belief in a claim of right is concerned with the entitlement to property but that the measures used (eg violence) may constitute another offence. 42. I note that s 38 of the Criminal Code 2002 (ACT) has replaced the common law on claim of right as a defence to criminal charges. Whilst not yet applied to this offence (I note a default commencement date 1 July 2017 Criminal Code Amendment Regulation 2013 (No 1)), s 38 purports to reflect the common law position. The Explanatory Statement says in relation to s 38(3) that the section “precludes claim of right in relation to the use of force. Thus in an armed robbery where a defendant had a claim of right in relation to the goods taken, the defendant could still be convicted of the armed assault”. [Original emphasis.] 43. Whilst that provision does not apply to the offence here under consideration, it appears to me to properly reflect the common law. It would be poor public policy indeed in this day and age to carte blanche lawfully excuse the use of violence to recover property.

It would seem clear therefore that claim of right can only apply to an element of dishonesty as the Chief Magistrate stated. However, while a claim of right might be a ‘defence’ to armed robbery, it would not be relevant to a charge of assault arising from the same facts. 7.42 In Williams v R [2006] NSWCCA 26 the accused raised claim of right in the context of a charge of kidnapping a debtor until the money owed was repaid. McClellan CJ at CL said of Fuge (see 7.38): 38 It is submitted that the decision of this Court in R v Fuge (2001) 123 A Crim R 310 provides support for the proposition that if an accused person believed, in good faith, that he or she was entitled to take away or detain a person in order to

secure the advantage in question a defence founded on a claim of right is available. 39 In my opinion, the submission must be rejected. Fuge was concerned with the availability of a defence of claim of right to a charge of robbery. Although Heydon JA expressed reservations in the matter, this Court left open the question of whether or not a person could be charged with robbing another in circumstances where that person claimed a right to the property, which he or she was alleged to have unlawfully taken. 40 Whatever be the position in relation to a claim of right to the possession of money or other goods there is no authority that would justify restraining a person against their will in order to secure from that person the claimed money or property. The act of restraining another is of a wholly different character to the taking of money or goods. The liberty of an individual is protected in most circumstances in our society. It is only the relationship of a parent or guardian, or where there has been a breach of the law or other particular situations which may give rise to a “right” to lawfully restrain another person.

[page 339] 41 Counsel for the appellant referred to the decision of Cockburn CJ in R v John Tinkler (1859) 1F.4F.513; 175 ER 832. The case concerned the abduction of a girl under the age of 16, where it was held that an offence would not be established where the accused person honestly believed that he had a right to the custody of the child, even if there was no legal justification for that belief. In that case, the jury was directed that the accused person had no right to act as he had done in taking the child out of the custody of her lawful guardian, but, because he acted without improper motive and believed that he was acting within the law when he took the child away, a “defence” was available. 42 Reference was made to the decision in Tinkler in the judgment of Dawson J in Walden v Hensler (1987) 163 CLR 561. …

43 As Dawson J makes plain, a claim of right may provide a defence in cases relating to property and may, as Heydon JA acknowledged, be relevant in relation to a charge of robbery. It may also be relevant … to an offence where a person is able to provide a basis for detaining another based upon a right to the custody of that person. However, I am not aware of any right in a person to detain another for the purpose of extracting the payment of a debt. Such a proposition would be offensive to assumptions as to the liberty of persons which are fundamental to our society.

7.43 The issue of honest claim of right arises where a person takes something to which he or she believes himself or herself to be legally, not just morally, entitled. Here, the argument of an ‘honest claim of right’ will defeat an allegation of larceny, irrespective of the means employed to obtain the goods. Since ‘honest claim of right’ is a common law concept, the statutory definition of ‘dishonesty’ contained in s 4B is not applicable in deciding whether or not an accused held a belief ‘honestly’, so we must fall back upon the common law definition of the concept. Note, however, the commentary on this at 7.29–7.31. 7.44 In Macleod, the appellant was convicted on five counts of contravention of s 173 of the Crimes Act ‘Directors etc fraudulently appropriating etc property’ (now repealed). For a modern articulation of the statutory provisions in this area see Pt 4AA Div 2 of the Crimes Act ‘Fraud and Related Offences’ (see 7.65). Macleod v R (2003) 214 CLR 230; 197 ALR 333 High Court of Australia [The appellant was a director of three companies, Trainex, Starlight and Communications Entertainment Network. Trainex was entirely under his control. Through these companies the appellant purported to make films and videos. He invited members of the public to invest in these companies. The money raised by Trainex was held in what the investor’s deed stated to be ‘Trust Accounts’

with Chase AMP Bank. Six million dollars was invested in Trainex, but only $718,249.27 was used to make films. In excess of $2m was used by the appellant to acquire personal assets, including a Gold Coast home unit. At trial the appellant had argued the defence of ‘honest claim of right’, submitting that one of the companies of which he was a director, owed him more than the amount he ‘borrowed’ from it.] [page 340] Gleeson CJ, Gummow and Hayne JJ: … Claim of right 31. In Peters, the equation of ‘dishonesty’ with absence of a belief of legal right was rejected, save where ‘dishonest’ was used in a special statutory sense ((1998) 192 CLR 493 at [11], [19], [86]). Section 173 is not such a special statutory provision. Rather, in this case, the notion of ‘claim of right’ is a manifestation of the general principle identified by Dawson J in Walden v Hensler (1987) 163 CLR 561 at 591, namely that it is: always necessary for the prosecution to prove the intent which forms an ingredient of a particular crime and any honestly held belief, whether reasonable or not, which is inconsistent with the existence of that intent will afford a defence. Hence the statement by Glanville Williams: The evidential burden of a claim of right is on the accused, but the persuasive burden is on the prosecution to rebut it. 32. The submissions for the appellant in this case stopped short of relying upon a distinct and wider principle identified by Dawson J in Walden (1987) 163 CLR 561 at 591–2 as being that: the existence of any state of mind, however limited, which is an element of a crime, may be negated by an honest and reasonable belief in the existence of circumstances which, if true, would make the impugned act innocent: R v Tolson (1889) 23 QBD 168. The generality of that proposition may best be seen at

common law in its application to statutory offences of strict liability which, although containing no requirement of intent, or mens rea as it is ordinarily understood, are nevertheless presumed to contain the requirement of a lesser mental element which may be expressed negatively as the absence of an honest and reasonable belief in a state of facts which if true would take the case outside the ambit of the offence. The existence of a defence based upon honest and reasonable mistake in the context of statutory offences has recently been discussed in He Kaw Teh v The Queen (1985) 157 CLR 523. 33. Against that background, several points should be made. The first concerns what is meant when it is said that the accused raises a claim of right. As to that, Dawson J said in Walden (1987) 163 CLR 561 at 592–3: It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner — to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law: see Cooper v Phibbs (1867) LR 2 HL 149 at 170 per Lord Westbury. 34. Secondly, the claim must be made honestly, leading to the proposition expressed by Callaway JA in R v Lawrence [1997] 1 VR 459 at 467 that, although an honest claim ‘may be both unreasonable and unfounded’, if it is of that quality then the claim ‘is less likely to be believed or, more correctly, to engender a reasonable doubt’. 35. Thirdly, particular considerations arise where, fraud being inconsistent with a claim of right made in good faith to do the act complained of, that act has, as a necessary element of criminal liability, the quality of dishonesty according to ordinary notions. 36. Section 173 of the Crimes Act is such a provision. Hence the observation by Simpson J to the effect that a finding that the appellant acted dishonestly and thus had the necessary mens rea

foreclosed a finding that the appellant lacked the necessary mens rea for dishonesty because he had acted under a bona fide belief that he was entitled to do as he did (R v Macleod (2001) 52 NSWLR 389 at 412–13). Her Honour referred to the evidence of the appellant (R v Macleod (2001) 52 NSWLR 389 at 412–13): that he regarded the funds as being funds belonging to Trainex, and himself as being the owner of Trainex, and therefore the owner of the money. He said that he had not, in the [page 341] early years, drawn a salary but, that, when the company’s financial position was more secure, he was entitled to do so. He said that he believed that the company owed him more than the amount that he borrowed from it. The function of the claim of right put forward by the appellant was to seek to engender a reasonable doubt with respect to the overall persuasive burden on the prosecution of proving that there had been the fraudulent taking or application alleged. 37. The trial judge reminded the jury of his directions with respect to the meaning of ‘fraudulently’ in s 173 and continued: [I]n assessing the accused[’s] case that he was entitled to use the company money as he did you should apply the same principles, that is whether by ordinary notions the accused was acting honestly by the standards of ordinary decent people. Finally I remind you that again the onus remains on the Crown to establish the elements of the charges beyond reasonable doubt. The appellant complains that there was no specific reference to the ‘subjective’ criterion attending a claim of right. But the directions to be given about a claim of right must reflect the elements of the offence charged and the nature of the mens rea required. 38. Adopting the reasoning in Peters, as we do, and applying it to the offences now under consideration, there is no requirement that the appellant must have realised that the acts in question were dishonest by current standards of ordinary, decent people. To

require reference to a ‘subjective’ criterion of that nature when dealing with a claim of right would have deleterious consequences. It would distract jurors from applying the Peters direction about dishonesty, and it would limit the flexibility inherent in that direction. A direction about the ‘subjective’ element of a claim of right was neither necessary nor appropriate in this case. 39. It was open to the jury, looking at the matter by reference to the standards of ordinary, decent people, to conclude that at the time of the various takings or applications of sums by the appellant he knew of his lack of entitlement to take or apply the funds of Trainex for his own use or benefit and that, on that account, his acts were dishonest. [McHugh and Callinan JJ, in separate judgments, agreed that the appeal should be dismissed.]

Finding and larceny 7.45 The situation of a person who finds something and decides to keep it was considered in MacDonald. R v MacDonald [1983] 1 NSWLR 729 NSW Court of Criminal Appeal [The appellant was convicted of stealing a camera and case which he claimed to have found hanging on a paling fence. He asked a person nearby if the camera belonged to him, and on being told ‘no’ the appellant kept the camera. He was convicted by the magistrate and appealed to the District Court, which dismissed his appeal. A case was stated for the consideration of the Court of Criminal Appeal.] The court (Lee, Maxwell and Yeldham JJ): … [I]t was common ground between counsel on both sides in the appeal in this Court that it was proper to charge the appellant [page 342] with theft of property belonging to a person unknown. It was accepted on both sides that there was ample evidence, from the nature and value of the camera and the place where it was found,

from which it could be inferred that the property had not been abandoned by the owner: Trainer v R (1906) 4 CLR 126, at 134. Abandoned goods cannot be the subject of larceny: Hibbert v McKiernan [1948] 2 KB 142 …. There is evidence from which the court is entitled to draw the conclusion that at the time the appellant appropriated the camera it was the property of some person. In order to understand the problem which arises from the evidence given in the case it is appropriate at this point to refer to authority as to what must be proved when a finding of goods is alleged to give rise to a larceny of the goods. There is a lengthy discussion of larceny by finding in Russell on Crime, 12th ed (1964), 1009 et seq, and it is also treated at length in earlier editions of Archbold’s Pleading Evidence and Practice in Criminal Cases, eg 22nd ed (1900), 414: see also Kenny’s Outlines of Criminal Law, 19th ed (1966), 287 et seq. … The problem in the present case relates to the nature and extent of the evidence required to prove the felonious intention in the finder. In R v Thurborn (1849) 1 Den 387; 169 ER 293 (where the court comprised Pollock CB, Patteson J, Rolfe B, Cresswell, Williams and Coltman JJ and Parke B) the judgment of the court was read by Parke B …. Having reviewed the authorities on the subject of larceny of lost goods Parke B went on to say (at 396; 296): … if a man finds goods that have been actually lost, or are reasonably supposed by him to have been lost, and appropriates them, with intent to take the entire dominion over them, really believing when he takes them, that the owner cannot be found, it is not larceny. But if he takes them with the like intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny. In applying this rule, as indeed in the application of all fixed rules, questions of some nicety may arise, but it will generally be ascertained whether the person accused had reasonable belief that the owner could be found, by evidence of his previous acquaintance with the ownership of the particular chattel, the place where it is found, or the nature of the marks upon it. …

[The court held that there was evidence on which the magistrate could conclude that the defendant was guilty of larceny.]

Mistake and the requirement of coincidence between physical and fault elements 7.46 An issue that arises in the area of larceny is mistake, that is, where something is handed over by mistake. The mistake may be unilateral, where only one side realises that there has been a mistake, or bilateral (or ‘mutual’), where neither side realises that there has been a mistake. An example of a mistake is where a shopkeeper gives a customer too much change and the customer keeps it. There is a bilateral mistake if neither realises it until later. 7.47 Where there is a bilateral mistake, the taking of the thing cannot generally be larceny, for a variety of reasons. First, where a shopkeeper gives too much change and the customer takes the money offered by the shopkeeper and so takes with the shopkeeper’s consent, there is no trespass in the taking. Second, the taking is not dishonest. Third, the physical and fault elements do not occur at the same time if [page 343] the accused becomes aware of the taking only at some later time. A later intention to keep the thing would not convert an earlier innocent act into a crime. 7.48 When the thing handed over is money the problems are compounded. The example of the shopkeeper and the extra change raises an issue with respect to the unique nature of money. When money is handed over, not only is possession of the money given, but ownership passes as well. This is because of the nature of money as currency. With other property, a thief does not get ‘title’ to the property and in no way owns what is stolen. When transferring property, the recipient of the property can only receive as good a title

as the person giving the property. If a person buys property from a thief, the buyer receives no better title than the thief. As the thief has no title, neither does the buyer. However, when a thief uses stolen money to buy something, the seller of the item, who takes the stolen money in good faith and in exchange for something of value, gets good title to the money; that is, he or she owns the money even though the thief did not own it. This raises a specific issue in relation to money, but also in relation to any property that is passed to the recipient by mistake. If the intention is that the recipient will receive ownership, not just mere possession, the transfer makes the recipient the owner, and one cannot be guilty of larceny of what one owns. 7.49 The problems set out above are not much alleviated in the case of bilateral mistake, except that, by the ordinary standards of decent people (see Peters at 7.29, and Macleod at 7.44), surely it is the case that knowingly to keep something handed over by mistake is dishonest. 7.50 Early common law decisions on these issues, such as R v Middleton (1873) LR 2 CCR 38 and R v Ashwell (1885) 16 QBD 190, have been severely criticised: In Middleton the accused sought to withdraw money from his account held at a post office. The clerk made a mistake and handed him too much money — he gave him money that had been intended for another customer. Middleton argued that he took the money with consent when the clerk handed the money over. The court held that the clerk’s mistake meant that there was no consent and so the taking was without consent and Middleton, being aware of the mistake, had committed larceny. In Ashwell the defendant asked to borrow a shilling and was given a sovereign, a coin worth much more (like being given a $2 coin instead of a 20c coin).

Neither party realised the error as the coin was handed over in the dark, but when Ashwell later realised the mistake he decided to keep the extra money. He was convicted on the basis that he did not take possession of the sovereign until he was aware of its true value. That of course seems hard to accept as one must be in possession of the money in one’s wallet or purse even if one cannot say, with certainty, how much is there. Ashwell clearly had possession of the ‘coin’. 7.51 Middleton and Ashwell were declared to be bad law in R v Potisk (1973) 6 SASR 389. In Ilich v R (1987) 162 CLR 110; 69 ALR 231 the issue of mistake was analysed. Wilson and Dawson JJ held that if the mistake is ‘of a sufficiently fundamental kind’ it may negate the apparent consent of the transferor and so [page 344] prevent ownership passing, with the effect that a person who takes the thing, aware of the mistake, can be guilty of larceny. They said that a mistake could be fundamental in the relevant sense if it was: a mistake as to the identity of the transferee; or a mistake as to the identity of the thing delivered; or a mistake as to the quantity of the thing delivered (although this holds special difficulty where the thing delivered is money). 7.52 Where there is a mistake which is not of a fundamental character it will not vitiate consent, so that possession and ownership will pass in accordance with the apparent intention of the owner. Ilich v R

(1987) 162 CLR 110; 69 ALR 231 High Court of Australia [The applicant, Ilich, was a vet who had been acting as a locum while another vet, Brighton, went on holiday. On his return, Brighton was not happy with the way Ilich had been maintaining his house and running his practice and told Ilich to finish up the next day. According to Brighton, an agreement had been reached that he owed the applicant $1176 and Brighton handed the applicant an envelope containing that sum of money. There was another envelope nearby with $600 in it. According to Brighton he left the office and when he returned the $600 had been taken. According to the applicant, Brighton threw three lots of money at him, told him there was no need to count it and asked him to sign a receipt for the agreed amount. He claimed that he ‘was virtually ordered to leave’ which he did. It was only later that he counted the money and found that he had been overpaid by $530. Although he returned the next day to drop some mail and other items, he did not return the money or wait to speak to Brighton, as he wanted to get home to Perth and did not think Brighton would want to speak to him. He said that he separated the $530 from the rest of the money, leaving it inside a slit on the side of a cooler which he kept in his car. He said that upon arrival in Perth at about 11.30 am he left the $530 in the car and took the other money into the house with him. Police attended the same day and the applicant denied having any extra money, but the $530 was discovered by police when they searched the car. The applicant gave evidence that he did not regard the $530 as his own and said, ‘What I planned to do with it was, in fact, what I had done with it, which was that I had had it in safe keeping and that was as far as I had got’. The matter was dealt with under the WA Criminal Code, but in analysing that Code, Wilson and Dawson JJ identified relevant common law principles, applicable in NSW.] Wilson and Dawson JJ: … At common law, larceny is committed by a person 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. … [L]arceny involves the taking of something without the consent of the owner who may, for this purpose, include the person in

possession of the thing. For this reason it is said that there is no larceny if the circumstances would not sustain an action for trespass. … Because larceny at common law requires a trespass — it is sometimes described as an offence against possession — a person lawfully in possession of something cannot [page 345] be guilty of larceny of it. … Of course, a person may convert something which is in his possession, although he cannot convert something which he also owns. That is because conversion in the criminal law at least involves a dealing with the thing said to be converted in a manner inconsistent with the owner’s right in the thing: Caxton Publishing Co v Sutherland Publishing Co [1939] AC 178, at pp 201–202 citing Lancashire and Yorkshire Railway Co v MacNicoll (1918) 88 LJ (KB) 601, at p 605 per Atkin J. … [Having identified some differences between the Code and the common law, their Honours continued:] … [I]t is possible to look at those cases dealing with mistake in relation to larceny to see what assistance might be gained from them. Mistake is relevant in this case because, upon one version of events, an overpayment was made by Brighton by mistake. Because of the differences between the Code and the common law the exercise can only be helpful in a general way and it is unnecessary to go into great detail. Moreover, we should say at the beginning that the decisions to which we are about to refer are far from having received universal approbation. The cases fall into two categories. First there are those, of which R v Middleton (1873) LR 2 CCR 38 is the principal decision, in which the person handing over the thing said to be stolen did so under a mistake which was known at the time by the person to whom the thing was handed. Cases in the second category, of which R v Ashwell (1885) 16 QBD 190 is the leading authority, occur where the thing said to be stolen was handed over under a mistake which was unknown at the time by the person to whom the thing was handed and was learnt by him only subsequently. In Middleton the accused was handed by a post office clerk by way of withdrawal from a savings account an amount which was

more than was standing to the accused’s credit in that account. At the time the clerk made the payment, he mistakenly referred to a letter which authorized the payment, but to another depositor. The accused was convicted upon trial, the case being reserved for the Court of Crown Cases Reserved where it was eventually heard by a Full Court of fifteen judges. By a majority of eleven to four the conviction was upheld. In Ashwell the accused asked for a loan of a shilling and was handed by mistake, in the dark, a sovereign. The accused did not at first realize the mistake, but when he did some time later, he appropriated the sovereign. He was convicted upon trial but again a case was stated for the Court of Crown Cases Reserved. The fourteen judges (who included the trial judge) were equally divided and accordingly the conviction stood. Many analyses of the judgments in these cases have been made, but it is sufficient for present purposes to observe that the decision in Middleton can only be explained upon the basis (somewhat of a fiction upon any view) that there was a taking against the consent of the owner at the time the accused received the money and that he acquired neither the right to possession nor ownership of it. The apparent consent of the clerk who paid the money was vitiated by his mistake. It may also be observed that it was the whole of the money which was held to be stolen, not just the amount by which the payment exceeded the money which was in the accused’s account. The decision in Ashwell must, we think, rest upon the proposition (difficult to accept as it is) that the mistake on the part of the person handing over the coin and on the part of the accused, meant that the accused, although he obtained physical possession of the coin, did not obtain possession of the sovereign until he realized that the coin was a sovereign. At that point he formed an intention to keep it and was held to have taken it without consent. The cases of Middleton and Ashwell have received a measure of acceptance in England, although they have been the subject of considerable criticism. … [page 346] In R v Potisk (1973) 6 SASR 389 the accused changed some

travellers’ cheques into Australian currency at a bank. The teller applied the wrong exchange rate and gave the accused too much. The accused did not realize this until he got home and counted the money. He then decided to keep it. In the Full Court of the Supreme Court of South Australia, Bray CJ, with whom Mitchell J agreed, found both Middleton and Ashwell distinguishable but would have declined to follow them in any event. The reasons which the Chief Justice gave for regarding both of those decisions as unsatisfactory are cogent and we should be inclined to agree with his view that they should not be followed. However, in this case, as in Potisk, there are important differences which make the English decisions clearly distinguishable and which render unnecessary any detailed discussion of the reasons in those cases. Both Middleton and Ashwell have been treated, and in our view must be treated, as cases in which the mistake which was made was of a sufficiently fundamental kind to negate the apparent consent and to prevent ownership from passing. A mistake will be of that kind if it is as to the identity of the transferee or as to the identity of the thing delivered or as to the quantity of the thing delivered. … In those circumstances, and perhaps only in those circumstances, can it be said that the mistake is such that the transferor never really intended to deliver the thing transferred and so never gave consent to the transfer. Middleton may be regarded as a case of mistake as to the identity of the transferee: the clerk thought that the accused was the person referred to in the letter authorizing the payment. Less plausibly, Middleton may be regarded as a case of mistake as to the identity of the deposit …. Ashwell may be regarded as a case of mistake as to the identity of the thing delivered: both the lender and the accused thought it was a shilling whereas it was in fact a sovereign. The third category — mistake as to the quantity of the thing delivered — requires in our view some qualification where the thing is money but may be illustrated by Russell v Smith [1958] 1 QB 27 where eight sacks too many of pig meal were mistakenly delivered to the accused who appropriated them. He was convicted of theft. Where there is a mistake which is not of a fundamental character it will not vitiate consent so that possession and ownership will pass in accordance with the apparent intention of the owner. Thus in R v Prince (1868) LR 1 CCR 150, where the cashier of a bank

handed over money, intending to do so although deceived by a forged order, there was held to be no larceny. And in Lacis v Cashmarts [1969] 2 QB 400 where the accused took goods from a self-service store and paid the amount which the manager read from the cash register, which was less than the price, there was held to be no larceny. In the present case there was no mistake as to the identity of the person to whom the money was delivered. There was no mistake as to the identity of the thing delivered, which was money. If there was any mistake it was as to the quantity of money delivered and it is therefore necessary to turn to the qualification of that category of fundamental mistake which we think must be made in the case of money. In Potisk there was no mistake as to the quantity of money handed to the accused. The teller made a mistake in applying the wrong exchange rate but he intended to hand over the amount which he did. The case might have been decided simply upon the basis that there was no fundamental mistake to prevent possession and ownership passing, but Bray CJ at p 401 adverts to the qualification which we have suggested saying that “… cases where ownership has been held not to pass, despite delivery, because of a mistake are cases relating to the title to specific chattels, and I doubt whether they can apply to delivery of money in circumstances like these”. And at p 404 he refers to the ‘curious question’ which would have arisen in Potisk if the accused had been guilty of larceny, namely, whether he stole the whole of the money delivered to him or only the amount which was in excess of the sum to which he was entitled in exchange for his travellers’ cheques. [page 347] It is an error, as Lord Mansfield pointed out as long ago as 1758 in Miller v Race (1758) 1 Burr 452, at p 457 (97 ER 398, at p 401), to treat money in the form of cash in the same way as other goods. Money in most circumstances cannot be followed, which is to say that property, or ownership, generally passes with possession. “It has been quaintly said, ‘that the reason why money can not be followed is, because it has no ear-mark’: but this is not true. The true reason is, upon account of the currency of it: it can not be

recovered after it has passed in currency”: ibid. Money is, of course, capable of being stolen and if it is stolen, property in the notes or coins does not pass to the thief. But if the thief passes the money into currency, which he may do by making payment with it, ownership will pass with possession notwithstanding the thief’s lack of title providing the transaction was bona fide and for valuable consideration … That is because of the doctrine of negotiability — and negotiability was first attributed to chattels in the form of money — which constitutes an exception to the common law rule that a man who has no title himself cannot pass title to another; nemo potest dare quod non habet … In the circumstances of this case this aspect of negotiability is of less importance — since Brighton had title in the money — than the rule that when money passes into currency property goes with possession. Whether money only passes in currency when it is negotiated, that is, when it is used for payment bona fide and for value, or whether money may pass in currency in other circumstances when it is not delivered in specie, is something which it is unnecessary to examine here. Definitions of currency tend to speak in terms of it being a medium of exchange, but this nevertheless imports the notion of payment. … Upon any view money passes into currency when it is negotiated and in this case, upon the applicant’s version of the facts, the transaction in which the money changed hands was both bona fide and for value. He was unaware of the overpayment when it was made and consequently there was no reason to doubt the bona fide character of the transaction. Thus the notes or coins ceased to be the subject of specific title as chattels and passed as currency, that is to say, passed “from hand to hand in point, not merely of possession, but of property”: Sinclair v Brougham [1914] AC 398, at p 418 per Viscount Haldane LC. We do not think that it is possible to say that only the correct amount was paid for valuable consideration and that the amount of the overpayment passed hands for no consideration and hence as mere chattels rather than currency. Apart from the insuperable difficulty of identifying the notes or coins which constituted the overpayment, it is the transaction itself which characterizes the payment. The transaction between the applicant and Brighton was bona fide and for value. The payment, which was part of that transaction, was also of that character. It is not possible, in our view, to apportion the consideration to some of

the chattels comprising the notes or coins transferred and not to others. With goods other than currency, property does not pass with possession unless it is the owner’s intention that it should and it has been held (not without some difficulty) that it is possible to conclude in cases of over delivery that appropriation of the whole of the goods involves the theft of the excess goods without any need to identify them …. However where property passes with possession, as with currency, no such conclusion is possible in relation to an amount overpaid. There is, we should add, a civil action to recover money paid under a mistake of fact and equitable rights may arise. See Chase Manhattan v Israel-British [1981] Ch 105. The result is that in this case, even without rejecting Middleton and Ashwell, there was no mistake of a fundamental kind which would have operated to prevent ownership in the money passing at the time at which, upon the applicant’s evidence, it was handed by Brighton to the applicant. There was no mistake as to the identity of the transferee, there was no mistake as to the identity of the money and any overpayment, being in currency, did not prevent property in the whole amount being transferred to the applicant. [page 348] If in this case Brighton intentionally handed the money to the applicant, including the amount of the overpayment, and the applicant took the money without being aware of any mistake on the part of Brighton, property in the money passed with possession and there was neither a fraudulent taking … nor a subsequent conversion when the applicant realized Brighton’s mistake. … The applicant was entitled to a direction that if the jury were satisfied — or if they were left with a reasonable doubt about it — that Brighton delivered the money to the applicant who took it unaware of any overpayment, then the applicant should be acquitted of stealing, notwithstanding that he subsequently realized Brighton’s mistake and retained the money. No such direction was given. [Brennan and Deane JJ in separate judgments agreed with the

reasoning of Wilson and Dawson JJ. Gibbs CJ dissented. Appeal upheld. Conviction quashed.]

7.53 Ilich was considered by the New South Wales Court of Appeal in Shields v New South Wales Crime Commission [2007] NSWCA 309 and Shields v Westpac Banking Corp [2008] NSWCA 268 (see 7.55). 7.54 Shields v New South Wales Crime Commission [2007] NSWCA 309 concerned a computer ‘glitch’ which resulted in an amount of approximately $11 million being credited to a customer’s account in error. In its judgment the Court of Appeal considered both Ilich (see 7.52) and Kennison v Daire (see 7.16). Beazley JA said (at [43]–[49]): 43 … [It was] argued that because of the operation of the ATR [Auto Replenishment], the bank must be taken to have consented to the transfer of property and if the consent was given in error, consequent on the failure of some internal system of the bank, the mistake involved was not of the fundamental kind required to complete the offence of larceny, that is, as to the identity of the transferee or the nature of what is being transferred or the amount that was being transferred: see Ilich v The Queen (1987) 162 CLR 110; [1987] HCA 1 per Wilson and Dawson JJ at 126 [20]. 44 Whilst the principle stated in Ilich is undoubted, I consider that little time needs to be given to the claimants’ submission on this point. In Kennison v Daire (1986) 160 CLR 129; [1986] HCA 4 the Court dealt with a situation very similar to that which applies here. The contents of the Westpac investigation report included information that [the customer] knew the conditions of the operation of the ATR facility. He knew the collections area of the bank had placed a ban on his personal account responding to the ATR facility. He also knew that due to a “computer glitch” that ban was not recognised by the ATR facility and he decided to take advantage of that failure and continue to draw on the account in an amount totalling almost $11m. 49 Although the Westpac investigation report indicated that

[the customer] intended at some stage to repay the funds that he had withdrawn, he did not intend to repay the moneys that he withdrew on each occasion. Rather, he intended to repay other moneys so as to replenish his account. In my opinion, all the elements to constitute the offence of larceny have been alleged in one form or another in its report.

7.55 In related litigation, Shields v Westpac Banking Corp [2008] NSWCA 268, Westpac successfully sued a customer (Ollis) claiming declarations that certain property of Mr Ollis was held on trust for Westpac, and/or was subject to a charge in favour of Westpac for judgment against Mr Ollis for something over $11 million, [page 349] and for other remedies. Hodgson JA (with whom Spigelman CJ and Macfarlan JA agreed) said (at [12–20]), in dismissing the customer’s appeal: 12 Mr Dibb, for the appellants, submitted that there was in place between Westpac and Mr Ollis an arrangement to the effect that Mr Ollis could apply for credit by submitting a cheque, in which case Westpac would have the option of either declining to honour the cheque or honouring it. In the circumstances that happened, Westpac honoured the cheques. Mr Dibb submitted that the mistake which gave rise to this was not a fundamental mistake, precluding the existence of an intention in the bank to transfer money to Mr Ollis. He submitted that the description of the mistake as a “computer glitch” was erroneous: the computer functioned correctly; and each of the transactions was rejected by the computer but then permitted to go through because of the actions of human officers of the bank. 13 Mr Dibb referred to Ilich v The Queen (1987) 162 CLR 110 and, in particular to the judgment of Wilson and Dawson JJ at 126, where they discuss what would be a fundamental mistake which would vitiate the apparent intention of a payer to make a payment. He submitted that the mistake in

this case did not fall within that characterisation, and that accordingly the intention of the bank was not vitiated. 14 Mr Dibb also submitted that, there being no effort by Mr Ollis to conceal where the money went, it could not be inferred that he had no intention to repay. The reasonable inference was that he did intend to repay the money to the bank. 15 In all those circumstances, Mr Dibb submitted that the finding that Mr Ollis was substantially in the position of having stolen the money, and that a trust of the money in favour of Westpac arose immediately, was erroneous. 16 In my opinion there is some force in Mr Dibb’s submission that characterisation of the mistake that led to payment of Mr Ollis’ cheques as a computer glitch was not entirely accurate, although the evidence was that this was Mr Ollis’ understanding and description of it. The payment of Mr Ollis’ cheques occurred because of Westpac’s mistakes in failing to cancel the ATR system at the time his personal account was frozen, and failing to detect that the automatic operation of that system was having the effect of paying Mr Ollis’ cheques that should not have been paid. They were mistakes made by human beings and not computer glitches as such. However, in my opinion, they were plainly fundamental mistakes justifying the primary judge’s finding that Westpac never intended to transfer money to Mr Ollis. 17 In my opinion, even though these mistakes were not in any of the categories actually referred to by Wilson and Deane JJ in Ilich, they nevertheless were fundamental and precluded the existence of an intention in the bank. Furthermore, the primary judge’s finding that Mr Ollis knew that Westpac never intended to transfer money to him, and that he did not have Westpac’s permission to draw out the money, was also justified. 18 The circumstance that Mr Ollis may have intended to repay Westpac at some future time if and when the transactions which he entered into may have borne fruit does not, in my opinion, preclude the finding that Mr Ollis simply intended to defraud Westpac and that, in the eyes of the law,

he was to be regarded substantially as if he had stolen the money. 19 In those circumstances, in my opinion, the primary judge was correct to hold that a trust of the money arose immediately. This is in accordance with a number of recent decisions of this Court which have not been challenged, in particular Evans v European Bank Limited [2004] NSWCA 82; (2004) 61 NSWLR 75, Shields v NSW Crime Commission [2007] NSWCA 309 and MBF Australia Limited v Malouf [2008] NSWCA 214.

[page 350] 20 In my opinion, it does not matter whether the trust is characterised as a resulting trust or a constructive trust. It is true that some constructive trusts only arise by virtue of a court order; but other constructive trusts can arise immediately, and if this is to be characterised as a constructive trust, it is clearly in my opinion one which arose immediately.

Larceny by a trick 7.56 The MCCOC (see 7.2) noted that, where an accused person deceives the victim, the correct offence to charge depends on whether the defendant’s deception caused the victim to intend to transfer ownership or merely possession of the goods: It will be larceny by a trick if the defendant’s deception leads the victim to intend to transfer possession of the goods; if the victim intends to transfer ownership the offence is obtaining by false pretences.

7.57 If a person tricks someone into giving over possession of something while all the time intending to keep that item, that is larceny. But it is not larceny if, rather than giving possession of the thing, the person gives ownership, that is, property as opposed to mere possession. This cannot be

larceny because one cannot steal what one owns. To give an example, if one person asks another to give them his or her watch on the pretext that the first person will take it to a jeweller for valuation but that person intends at all times to keep the watch, that is larceny by a trick. On the other hand, if one person tells another that their watch is valueless rubbish and that he or she should give it to them, all the while knowing that the watch is worth $2000, that is not larceny as the person has handed over ownership (not mere possession). Section 192E(1)(a) (obtaining property belonging to another by deception) of the Crimes Act deals with this latter situation, that is, where a person is tricked into handing over both possession and ownership (see 7.66). 7.58 Remember that ‘property’ is now defined in the Crimes Act (s 4, see 7.9) and that that definition applies to all statutory charges, of which an offence under s 192E is one. Under this definition, money and valuable securities are now property. 7.59 At common law the distinction between larceny by a trick and obtaining by false pretences was based upon the intention of the person who parts with the thing. If the person intended to part with the property in the thing, the offence was obtaining, but if the person intended to part with possession, it was larceny. Section 180 of the Crimes Act (Causing payment etc by false pretences etc), now repealed, removed this distinction so that the offence of ‘obtaining stolen property’ applied regardless of whether property or possession was obtained. This offence is now covered in the new fraud provisions of the Act in s 192E (see 7.65–7.68).

STATUTORY OFFENCES Introduction

7.60 As indicated in the extract from the MCCOC (see 7.2), the law in this area has been the subject of a variety of additions and legislative attempts to fill the gaps left [page 351] by the common law, developed as it was in less sophisticated times. This section considers some of these statutory offences.

Larceny by bailee 7.61 An example of legislation dealing with shortcomings in the common law is s 125 of the Crimes Act. At common law, where a person (a bailee) was given something in order to deliver it, or keep it for safekeeping, he or she was given possession of the thing (though not ownership). Because the person had lawful possession, a subsequent intent to keep it was not larceny as there was no fraudulent taking. A person could, however, be guilty of larceny if he or she ‘broke bulk’: a transport operator who opened a case of cigarettes to take one carton would break bulk and so be guilty of larceny, but if he or she was transporting one plasma screen and decided to keep it, it could not be larceny. This anomaly is dealt with by s 125 of the Crimes Act. 125 Larceny by bailee 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.

Fraudulent appropriation 7.62 Another example of statutory intervention to overcome the common law definition of larceny is to be found in s 124. This covers people who come into possession of property in circumstances that are honest. A subsequent intent to treat the goods as their own would not be larceny as the possession and the intent are not contemporaneous. But, if it appears that subsequently the person fraudulently misappropriated the property (ie, treated it as his or her own), then that person is guilty of an offence. 124 Fraudulent appropriation Where, upon the trial of a person for larceny, it appears: (a) that the person had fraudulently appropriated to his or her own use or that of another, the property in respect of which the person is indicted, although the person had not originally taken the property with any fraudulent intent, or (b) that the person had fraudulently retained the property in order to secure a reward for its restoration, the jury may return a verdict accordingly, and thereupon the person shall be liable to imprisonment for two years, or to a fine of 20 penalty units, or both.

[page 352]

Embezzlement 7.63 Section 157 provides that there is an offence where a clerk or servant receives property in the name of or on account of his or her employer and embezzles that property. In Ellis v Lawson (1987) 33 A Crim R 69 Campbell J cited (at 73), with approval, the statement from P Gillies, Criminal

Law, 1st ed, Law Book Co, Sydney, 1985, p 333, that ‘… the common law takes the view that the employee in whose physical custody or under whose physical control property is placed, does not possess this property in the legal sense’. An employee who has the employer’s goods in his or her care and control is said to have custody alone. However, by converting the goods to his or her own use the employee would then take possession, and, if the relevant intent were present, it would be stealing. 7.64 Section 157 deals with cases where the goods have, in fact, been given to the servant or clerk who has actual possession, and not mere custody. In these circumstances, a subsequent guilty intent cannot amount to larceny. The Act therefore provides that the subsequent misuse of the goods is an offence, though it cannot be larceny (see R v Cullum (1873) LR 2 CCR 28). 157 Embezzlement by clerks or servants Whosoever, being a clerk, or servant, fraudulently embezzles, either the whole or any part of, any property delivered to, or received, or taken into possession by him or her, for, or in the name, or on the account of, his or her master, or employer, shall be deemed to have stolen the same, although such property was not received into the possession of such master, or employer, otherwise than by the actual possession of such clerk, or servant, and shall be liable to imprisonment for ten years.

Statutory fraud offences of Part 4AA 7.65 In 2009 the New South Wales Parliament passed the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009, which made significant amendments to the Crimes Act. Various sections, including ss 158, 165–186 inclusive, 527, 527A, 527B, 528, 545A and 547A, were repealed and replaced by a new statutory scheme inserted into the Crimes Act in Pt 4AA. Some of the effects of these amendments have

already been noted; for example, the definition of dishonesty included in s 4B (see 7.33). 7.66 According to the explanatory notes which accompanied the Bill, its purpose was ‘to amend the Crimes Act 1900 … to reform and modernise the law relating to fraud and forgery offences and to create new offences relating to identity crime’. It is similar in many respects to the fraud provisions of the Criminal Code Act 1995 (Cth). One of the effects of the 2009 amendments was to insert a statutory definition of the term ‘dishonest’ (see 7.33), as explained in the Explanatory Note which accompanied the Bill: [For] the purposes of the fraud, forgery and related offences, a definition of dishonest [is added] into the principal Act so that the mental element of dishonesty in those offences means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

[page 353] In a prosecution for an offence, dishonesty is a matter for the trier of fact (that is, the jury or the Judge/Magistrate if the offence is tried summarily). This definition was recommended by the Model Criminal Code Officers Committee and adopted in the Criminal Code Act 1995 of the Commonwealth. It follows the decisions of the House of Lords in Feely and Ghosh and is supported in the High Court case of Peters v Queen. Part 4AA Fraud Division 1 Preliminary 192B 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

conduct by a person that causes a computer, a (b) machine or any electronic device to make a response that the person is not authorised to cause it to make. (2) A person does not commit an offence under this Part by a deception unless the deception was intentional or reckless. 192C Obtaining property belonging to another (1) For the purposes of this Part, a person obtains property if: (a) the person obtains ownership, possession or control of the property for himself or herself or for another person, or (b) the person enables ownership, possession or control of the property to be retained by himself or herself or by another person, or (c) the person induces a third person to do something that results in the person or another person obtaining or retaining ownership, possession or control of the property. (2) 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. (3) For the purposes of this Part, property belongs to a person if: (a) the person has possession or control of the property, or (b) the person has a proprietary right or interest in the property (not being an equitable interest arising only from an agreement to transfer or grant an interest or from a constructive trust). If property is subject to a trust, the persons to whom it belongs include any person having a right to enforce the trust. (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. (5) Without limiting the generality of subsection (4), if: (a) a person has possession or control (lawfully or not) of property belonging to another, and

[page 354] (b) the person parts with the property under a condition as to its return that the person may not be able to perform, and (c) the parting is done for the purposes of his or her own and without the other’s authority, the parting amounts to treating the property as his or her own to dispose of regardless of the other’s rights. 192D Obtaining financial advantage or causing financial disadvantage (1) In this Part, obtain a financial advantage includes: (a) obtain a financial advantage for oneself or for another person, and (b) induce a third person to do something that results in oneself or another person obtaining a financial advantage, and (c) keep a financial advantage that one has, whether the financial advantage is permanent or temporary. (2) In this Part, cause a financial disadvantage means: (a) cause a financial disadvantage to another person, or

(b) induce a third person to do something that results in another person suffering a financial disadvantage, whether the financial disadvantage is permanent or temporary. Division 2 Fraud and related offences 192E Fraud (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 the offence of fraud. Maximum penalty: Imprisonment for 10 years. (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 in 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. 192F Intention to defraud by destroying or concealing accounting records (1) A person who dishonestly destroys or conceals any accounting record with the intention of: (a) obtaining property belonging to another, or (b) obtaining a financial advantage or causing a financial disadvantage, is guilty of an offence.

Maximum penalty: Imprisonment for 5 years. (2) In this section, destroy includes obliterate.

[page 355] 192G Intention to defraud by false or misleading statement A person who dishonestly makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) that is false or misleading in a material particular with the intention of: (a) obtaining property belonging to another, or (b) obtaining a financial advantage or causing a financial disadvantage, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. 192H Intention to deceive members or creditors by false or misleading statement of officer of organisation (1) An officer of an organisation who, with the intention of deceiving members or creditors of the organisation about its affairs, dishonestly makes or publishes, or concurs in making or publishing, a statement (whether or not in writing) that to his or her knowledge is or may be false or misleading in a material particular is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (2) In this section: creditor of an organisation includes a person who has entered into a security for the benefit of the organisation. officer of an organisation includes any member of the organisation who is concerned in its management and any person purporting to act as an officer of the organisation. organisation means any unincorporated association.

body

corporate

or

7.67 Some general observations can be made about the new statutory fraud provisions: 1.

Sections 192B, 192C and 192D contain definitions which inform the following sections. Sections 192E– 192H contain the actual offences: s 192E creates a broad offence of fraud with ss 192F–192H creating offences to cover specific factual situations.

2.

It is apparent that deception for the purposes of s 192B can be by words or conduct; that is, verbal or nonverbal, and may be either intentional or reckless. Section 192B(2) would appear to cover the type of factual situation arising in Kennison v Daire (see 7.16).

3.

Section 192C(2) confirms the common law of larceny by providing that the taking must be accompanied by an intention to ‘permanently deprive the other of the property’. The type of factual situation considered in Foster (see 7.21) is now covered by s 192C(4).

4.

The common law drew a distinction between ‘obtaining’ property and ‘possession’ of property. Under s 192C it would appear there is no longer any distinction between the two.

5.

For the purposes of s 192D it is apparent that to ‘gain a financial advantage’ is synonymous with to ‘cause a financial loss to another’. The financial loss or gain may be transitory; the meaning of ‘financial gain’ is considered in Elias (see 7.68). [page 356]

6.

Section 192F replaces the former s 158 ‘Destruction, falsification of accounts etc by clerk or servant’. However, the statutory offence of embezzlement by clerk contained in s 157 remains (see 7.64).

7.

Section 192G replaces the former s 178BB ‘Obtaining

money etc by false or misleading statements’. 8.

Section 192H replaces the former s 176 ‘Director or officer publishing fraudulent statements’.

7.68 In Elias (see below) the New South Wales Court of Appeal considered the meaning of the term ‘obtain a financial advantage’ for the purposes of s 178BB of the Crimes Act (now repealed). There is no reason to assume the findings of the court would not be applicable to an offence brought under s 192E. Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302 NSW Court of Appeal [The appellant applied for, and obtained, two loans from financial institutions. In the applications for each the appellant made false declarations as to his employer and his income. Both loans were secured by mortgages, and the value of the secured properties exceeded the amount of the loans; the repayments were made on time and all associated expenses required to be paid in incurring the loans were paid. The appellant was charged with two counts of making a false statement with intent to obtain a financial advantage pursuant to s 178BB of the Crimes Act, and convicted in the Local Court. His appeal to the District was dismissed. He subsequently appealed to the Supreme Court Court of Appeal on three issues, one of which concerned the question of whether or not his actions constituted a ‘financial gain’ under s 178BB.] Basten JA: … [20] The question whether a loan constitutes a financial advantage may depend upon the circumstances at the time the loan is obtained, but does not require some objective assessment of the consideration obtained by each party to the contract. Commerce depends upon the common assumption that the provision and receipt of goods and services involves mutual benefits and advantages to each party. Given the level of home ownership and credit card usage in our community, it may safely be assumed that the vast majority of people believe that they obtain an advantage

when obtaining financial accommodation, for which they have to pay. The advantage is sometimes so attractive that individuals will make false declarations to obtain a loan. The proposition that the obtaining of a loan, on ordinary commercial terms, known to the borrower at the time the loan was obtained, was incapable of constituting a financial advantage in the ordinary sense of that phrase, might variously be described as hopeless, baseless, misconceived or unworthy of serious attention. The question sought to be raised by the applicant did not in truth involve any question of law; nor was it reasonably arguable. … Blanch J: … [38] In Regina v Duru and Regina v Asghar [1974] 1 WLR 2 the Court was dealing with an offence of obtaining property by deception contrary to s 15(1) of the Theft Act 1968 (UK). That was a case dealing with obtaining mortgages by applications which contained untrue particulars about the applicant’s financial status. It was argued there [page 357] was no proof of an intention to permanently deprive because the loans would be repaid. The Court held in that context at page 8 that “The fact that the mortgagors were under an obligation to repay the mortgage loans does not affect the defendants’ intention permanently to deprive the council of those cheques.” [39] In Welham v the Director of Public Prosecutions [1961] AC 103 the House of Lords was dealing with a case involving a charge of forgery where false documents had been provided to finance companies in order to obtain loans and where it was asserted the loans would be repaid. Lord Radcliffe at page 124 quoted East, Pleas of the Crown (1803), vol 2, at pp 852, 854 that: … in all cases of forgery, properly so called, it is immaterial whether any person be actually injured or not, provided any may be prejudiced by it. He went on to say: Of course, as I have said, in ninety-nine cases out of a

hundred the intent to deceive one person to his prejudice merely connotes the deceiver’s intention of obtaining an advantage for himself by inflicting a corresponding loss upon the person deceived. In all such cases the economic explanation is sufficient. But in that special line of cases where the person deceived is a public authority or a person holding a public office, deceit may secure an advantage for the deceiver without causing anything that can fairly be called either a pecuniary or an economic injury to the person deceived. If there could be no intent to defraud in the eyes of the law without an intent to inflict a pecuniary or economic injury, such cases as these could not have been punished as forgeries at common law, in which an intent to defraud is an essential element of the offence, yet I am satisfied that they were regularly so treated. [40] At page 125 he said: In my opinion it is clear that in connection with this offence the intent to defraud existed when the false document was brought into existence for no other purpose than that of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit, or not doing something that but for it he would have done. Correspondingly, to put such a document forward with knowledge of its falsity and with a similar intent was to commit the crime of uttering it. That seems to me to be the essential point of the present appeal. [41] In John Richard Walsh (1990) 52 A Crim R 80 the Victorian Court of Criminal Appeal was dealing with s 82 of the Crimes Act (Vic) which provides that “a person who by any deception dishonestly obtains for himself or another any financial advantage is guilty of an offence” and O’Bryan J said at page 81: Attention focused upon the meaning of the words ‘financial advantage’. In Matthews v Fountain Gray J observed that:

‘The concept of financial advantage is a simple one. It is expressed by the use of two common words, each of clear meaning.’ I agree that the words should be given their plain meaning and that no narrow construction should be given them. [42] At page 82 his Honour said: It is also not to the point that Westpac might not suffer any financial disadvantage by the provision of a financial advantage to the applicant. [43] The common theme of these cases is that it is not relevant that no disadvantage was suffered by the owner of the property. In this case it is not relevant whether the lender suffered a disadvantage and that part of the contention of the claimant must fail. [44] Moreover there is no requirement that there be a dishonest intent. In R v Owen Stolpe (NSWCCA unreported 30 October 1996), Hunt CJ at CL said: A comparison between the terms of s 178AB and s 178BB makes it clear that the inclusion of an ingredient of dishonesty in the former and its omission in the latter was deliberate. [page 358] In order to prove an offence under s 178BA, it is necessary for the Crown to establish that, notwithstanding that the accused obtained the relevant advantage by deception, he also did so dishonestly; although in many cases the deception will be powerful evidence of dishonesty, it may not be so where, for example, the Crown has not eliminated any reasonable possibility that the accused honestly believed that he had a right to obtain that advantage. In order to prove an offence under s 178BB, the Crown does not have to prove dishonesty; it is sufficient to establish that there was an intent to obtain money or valuable thing or any financial advantage. [45] At page 12 his Honour referred to the requirement that the

statement must be false “in a material particular” and said: The term ‘material’ in s 178BB has been defined by this Court as requiring no more and no less than that the false particular must be of moment or of significance, not merely trivial or inconsequential. It will be material if it is relevant to the purpose for which it was being made, and that it will be relevant to that purpose if it may be taken into account by the person to whom the statement is made in making any decision upon the matter in respect of which the statement is made. It is unnecessary to establish that the statement is one which must or will be or was so taken into account. [46] The words financial advantage are plain words as O’Bryan J noted in Walsh supra. To obtain two significant loans would appear on the face of it to be a financial advantage even if secured by a mortgage. The loans put the claimant in a position to use funds he would not otherwise have at his disposal and gave him the opportunity to repay over a period of time. In this case he was wanting to assist his sons and he needed the finance to do so. The inference can be drawn that he saw an advantage in obtaining the loans that being an ability to help his sons at a time they needed help and when otherwise he would not have been able to do so. In my view it clearly was a financial advantage. [47] I note that if he had received money instead of credit and the charge had been obtaining money by means of making a statement knowing it to be false in a material particular, this argument could not have arisen. [48] The question sought to be posed in the stated case is framed in terms of “did I err in law in finding that the obtaining of a loan by the appellant was capable of amounting to a financial advantage?” The real question is whether the obtaining of the loan was a financial advantage. In my view, it was and it is a question of fact and the judge was correct in his conclusions and was correct in refusing to state a case under s 5B of the Criminal Appeal Act 1912. [49] In my opinion the summons should be dismissed with costs.

7.69 In Kennison v Daire (see 7.16) the accused had ‘tricked’ an automatic teller machine into giving him more money

than he had in his account. In R v Moore [2015] NSWDC 315 the accused opened an account with St George Bank. He accessed the account with a plastic card, both electronically and at branches of the bank. No overdraft facility was supposed to apply to the account but due to an error by the bank, the account was assigned to a ‘relationship developer’. The assigning by the bank of a relationships officer permitted an account to be drawn into debit (have an overdraft), and the role of the relationships officer was to oversee the account and approve transactions as required. No oversight of the account took place and in the period July 2010 to August 2012 the accused obtained $1,988,535 in ‘credit’ from the bank. He was charged with one count of ‘obtain financial advantage’ pursuant to s 192E(1)(b). The accused pleaded not guilty but was convicted by a jury. [page 359] 7.70 In Kennison v Daire the accused’s argument was that the bank had ‘consented’ to the taking or, more correctly, that by the bank’s pre-programming of its ATMs to dispense a certain amount of money without ascertaining the account’s true balance, there had been no ‘taking’. A similar argument arose in Shields v New South Wales Crime Commission (see 7.54). Both of these arguments were rejected. However, both concerned the common law offence of larceny. 7.71 In Moore the offence charged was under s 192E(1)(b) which states ‘[a] person who, by any deception, dishonestly … obtains any financial advantage … is guilty of the offence of fraud’. It was conceded by the Crown that the accused had done nothing to induce the bank to permit the account to be overdrawn, and that this was entirely the fault of the bank. The accused effectively argued that there was therefore no deception. 7.72 It is to be remembered that, because this is a statutory offence, the test for dishonesty is that contained the Act (s 4B,

see 7.33), being ‘dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people’. The result in Moore tells us that for this purpose the passive acceptance, absent any actual deception by an accused, will constitute an offence under Pt 4AA.

ALTERNATIVE VERDICTS IN CASES OF DISHONEST ACQUISITION 7.73 The Crimes Act provides for alternative verdicts on charges of various kinds of dishonest acquisition offences. This reduces the risk of a criminally dishonest accused exploiting a technical gap in the prosecution’s charge drawn up with respect to a particular offence of dishonest appropriation. Thus, with respect to Scenario 17 at 7.75, at common law had D been charged with larceny he would have been acquitted, because V intended to part with both property and possession of the thing (see R v Ward (1938) 38 SR (NSW) 30). But, pursuant to ss 120 and 192E of the Crimes Act, the jury could convict D in the alternative of obtaining by false pretences or obtaining by fraud respectively.

OTHER PROPERTY OFFENCE CATEGORIES 7.74 The Crimes Act contains numerous offences under the broad headings of violent acquisition of property, breaking and entering, receiving dishonestly acquired property, and destroying or damaging property. Key concepts, such as ‘dishonesty’, are employed. Many of the offences created under these headings employ terms of art, such as ‘break and

enter’ and ‘dwelling-house’. In a book of this nature, detailed discussion of the definitional and other requirements of such offences (see Crimes Act Pt 4 Divs 1–4) cannot be provided. [page 360]

DISCUSSION QUESTIONS 7.75 What issues are raised for the criminal law relating to dishonest appropriation by the following scenarios? 1.

V has been staying with D at his house. D is moving overseas. D notices that V has left her very expensive necklace in a drawer of a bedside table. D notices the removalists picking up the bedside table and taking it, with the rest of the furniture, to the van, where it will proceed to D’s new overseas residence. D intends to leave the necklace in the drawer for years and years, and say nothing about it, hoping that V will forget about it. D and V have just broken up and D wants, in a sneaky way, to try to repossess some of the expensive gifts that he has given V over the years.

2.

D has access to the library after hours, as a part-time cleaner. She is also a student. She moves a very valuable text, much sought after by other students in her course, from its usual location to a location to which she can readily gain access as a cleaner after hours. She plans to remove the book altogether so that she can have exclusive access to it for her course, but she intends to return it after her final examination.

3.

V is growing marijuana on a remote and inaccessible part of A’s farm. V and his mates live in tents near the crop. D sneaks in and removes all the marijuana.

4.

D and V have a joint account at the bank and, on

breaking up, D is permitted by the bank to withdraw the full amount. D then disappears with the money. 5.

D receives his severance pay from V by cheque. When he gets home he sees that he has been substantially overpaid but he has a sense of grievance so he cashes the cheque and takes off on a holiday with the proceeds. In addition, what would happen if he had been paid in cash?

6.

It is time for the council clean-up. Furniture and household items are placed on the kerbside by residents for the council (V) to collect. They are, with the residents’ knowledge, taken to the council depot where council staff sort them and make them available for sale. D1 is a resident who walks along the footpath before the collection date and removes items that he wishes to keep. D2 is a council worker who is running the shop where certain items are for sale. D2 decides to keep something that she likes. D3 is a council worker who removes a valuable item from the kerbside for his own use.

7.

D keys in $200 for withdrawal from her account at V’s ATM. The ATM disgorges $250, which D keeps.

8.

D is in rental premises owned by V. Under the lease he is obliged to mow the lawns but he has no mower. V’s mower is locked away under the house. D breaks into the area and uses V’s mower (and V’s fuel) to mow the lawn.

9.

V owns furniture and keeps it in her flat, but D thinks that he will receive half of it by order of the court following the break-up of his de facto relationship with V when D moved out to live with someone else (A). A and D use the key which D has kept to enter V’s flat and remove half of the furniture.

[page 361] 10. D is the landlord of premises where V lives. V is $120 behind in his rent. D enters the premises with a key and takes a TV which he sells for $300, crediting that amount to V’s rent account, so that V is now $180 ahead in his rent. 11. D has been helping himself to the stationery at work to take home for his children to use at school. D is not a heavy stationery user at work, and he believes that what he takes home merely brings him up to the average. 12. D spots valuable stamps on first-day cover envelopes in X’s place. X’s son had been writing to her from the Kingdom of Mambo. X has since died. The executor, V, is cleaning the place out. D offers to come in and take all the rubbish and this way he gets hold of the envelopes and stamps. 13. The same facts as 12 except D genuinely wants to help clean up. He takes the letters not realising their significance until a passing philatelist tells him that they are extremely valuable. 14. D borrows V’s car for the day. Later D decides not to return it, but to disappear in it. 15. D responds to V’s ad for the sale of his car. V allows D to take it for a test drive. Right from the beginning D intended to take the car interstate for rebirthing. 16. D is a friend of V’s son. He has heard that V wants his laptop repaired. He misrepresents to V: ‘Your son, Cyril, has arranged for me to come to collect your laptop for repair’. V hands it over. D sells it. 17. D, a friend of V’s son, Cyril, has heard that V wants to sell his laptop. D misrepresents to V: ‘I’ve paid Cyril

for your laptop and have come to pick it up’. V hands it over. D sells it. 18. D is managing director of V Building Company. D organises for the workers of the company to use V’s company time and V’s materials and equipment to renovate D’s house. 19. D goes to McDonald’s and pays for her lunch with $20. She is given change as if she had paid with a $50 note. She is unaware of the mistake and puts the change in her purse and leaves. When she later realises her mistake she decides not to return the change. 20. The same facts as in 19 except that this time D sees the person serving her count out the change and is aware that he is overpaying her. 21. Doris and Van, who are fabulously wealthy but generally incompetent individuals, are sharing a flat. Consider their situations in the following scenarios: (a) Van has no concept of budgeting because he has so much money at his disposal. Doris says to Van that they should each put $200 per week into a tin left on the kitchen table, for expenses. Over the next six months Doris puts the same two $100 notes into the tin, and later takes them out for redeposit in the subsequent weeks. Van happily puts in a fresh $200 each week, which Doris uses for the (in fact minimal) expenses of the household, each week banking the remainder (approximately [page 362] $100 per week) in her account. They proceed in this way for the six-month period, with Doris making no contribution herself and accumulating

approximately contribution.

$2000

from

Van’s

weekly

(b) Van has a brand new sports car, a gift from his father. He happily offers the use of it to Doris whenever she wants. A friend of Doris’s runs a racket of stealing expensive cars and stripping them down for parts to assemble into untraceable vehicles which are in fact composites of many different stolen cars. One weekend, with Van’s permission, Doris takes Van’s car. She tells him, and he believes her, that she is going to Byron Bay. In fact, she takes the car to her friend’s establishment, where it is stripped down and reassembled with inferior reconditioned parts from stolen vehicles. Doris returns the vehicle after the weekend, in its adulterated form, to Van.

[page 363]

8 Mental illness, voluntariness, automatism and intoxication INTRODUCTION 8.1 The previous chapters demonstrate how each criminal offence has certain elements which must be established by the prosecution. If they cannot be proved to the required standard, that is, beyond reasonable doubt (see 1.48), the accused must be acquitted. Whilst an accused is not required to give or call any evidence (because the prosecution bears the onus of proof), on occasions it may become apparent during the court proceedings that the accused may have been of a particular state of mind at the time of the commission of the acts giving rise to the offence that may exonerate his or her actions; for example, that he or she was acting under a belief of self-defence. There may also be evidentiary material that indicates that the accused did not commit the physical act that gives rise to the offence charges; for example, that the accused’s acts were not voluntary. Evidence of such issues may of course be led by an accused, but often such inferences may emerge from other evidence introduced by the Crown itself; for example, a record of interview with the accused taken shortly after the alleged offence may raise questions

concerning the sobriety of the accused. Once in issue, the prosecution is required to negate these inferences before a conviction may rightly result. [page 364] 8.2 These issues are sometimes referred to as ‘defences’ or ‘partial defences’ but this term is apt to mislead, as it suggests an accused bears the onus of raising and proving them. With the exception of mental illness (or insanity) and substantial impairment of mind, where the accused does bear a positive burden of proof (to the balance of probabilities), the accused bears no burden of proof. For this reason these ‘defences’ or ‘partial defences’ are really better thought of as issues which, once apparent, require negating by the prosecution as part of the discharge of its burden of proof. In that sense they are not true defences because they go to the essential elements of the offence. So, whilst the prosecution bears the burden of proof at all times, an accused may be said to bear an ‘evidential burden’ in respect of these issues. For simplicity the term ‘defences’ will be used in this and the next chapter, but the term is not strictly speaking correct in all cases. 8.3 The defences discussed in this chapter (apart from substantial impairment by abnormality of mind) raise issues that go to the question of whether the elements of the offence are made out. Where the prosecution fails to negate these ‘defences’, the accused is entitled to an acquittal as the prosecution has not proved the accused’s guilt beyond a reasonable doubt. Either the prosecution has failed to prove a voluntary act or failed to prove the necessary state of mind. Here the criminal law is responding to factors which can affect: a person’s capacity to control his or her behaviour, that is, to perform a voluntary act. These factors are relevant in the context of the prosecution’s burden of

proving the physical elements of the crime charged; and a person’s capacity to perceive and understand the world around him or her, and the significance of his or her conduct in that context. These factors are relevant in the context of the prosecution’s burden of proving the mental elements of the crime charged. With respect to the defence of substantial impairment by abnormality of mind the offence of murder is made out but the accused’s culpability for that offence is reduced due to the accused’s mental impairment. 8.4 Other ‘defences’ are more accurately called defences because they excuse a person who has performed the physical elements of a crime with the requisite mental state but whose actions, because of the circumstances, were justified by law and should, therefore, be excused. These defences are discussed in Chapter 9. They include selfdefence, necessity and duress. 8.5 Two flow charts may help to show how and when the defences may apply. The two flow charts show that different defences may be available depending on whether or not the allegation is murder. Where the accused is charged with murder he or she may be able to rely on the partial defences of substantial impairment by abnormality of mind or provocation. Provocation was discussed at 3.9 and following and substantial impairment is discussed at 8.17. These defences are only available for murder, though the fact that an accused may have been provoked can have relevance in the criminal law generally for the purposes of sentencing, where it is a mitigating factor to be taken into account (see Crimes (Sentencing Procedure) Act 1999 s 21A(3)(c)). [page 365] Where the accused is charged with an offence other than

murder, then he or she may be able to rely on duress or necessity (both discussed in Chapter 9). These defences are not available for the actual killer where the allegation is murder; but see In Re A (Conjoined Twins) at 9.27. FLOW CHART 8-1: THE DEFENCES FOR OFFENCES OTHER THAN MURDER (Assuming that the accused has performed the physical elements for the offence in question but has raised issues of voluntariness, intoxication etc)

[page 366]

FLOW CHART 8-2: THE DEFENCES FOR MURDER (Assuming that the accused has performed the physical elements for murder but has raised issues of mental illness, self-defence etc)

[page 367]

MENTAL ILLNESS M’Naghten’s Rules

8.6 As the two flow charts indicate, the first question to be considered is whether the actions of the accused were voluntary (see R v Youssef (1990) 50 A Crim R 1 (8.45) and R v Falconer (1990) 171 CLR 30 (8.43)). Although, as a matter of logic, this is correct in terms of understanding the relevant law, a grasp of the law of insanity is required before looking at the cases on automatism and, in particular, the distinction between sane and insane automatism. Automatism, and the question of voluntariness, will therefore be discussed after the defence of mental illness is considered. At common law the defence was usually referred to as ‘insanity’, or the M’Naghten defence, from the case in which it originated. It is today more correctly referred to as the defence of mental illness. This is not to be confused with the statutory partial defence of substantial impairment of mind (see 3.33), which applies only to murder. The defence of mental illness remains a common law defence and applies to any criminal offence. 8.7 Section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) provides a statutory basis for the defence. This arises by virtue of a special verdict pursuant to s 38. 38 Special verdict (1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness. (2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence,

the Court may remand the person in custody until the making of an order under section 39 in respect of the person.

8.8 The Mental Health (Forensic Provisions) Act does not define what is meant by mental illness (‘insanity’) for the purposes of the criminal law, but does determine what is to happen to an accused person found to be insane at the time of the alleged offence. Section 39 provides: 39 Effect of finding and declaration of mental illness (1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.

[page 368] (2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person’s release. (3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order.

8.9 Section 4 of the Mental Health Act 2007 (NSW) provides a definition of mental illness. It states: mental illness means a condition which 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).

This definition is designed to provide the legal authority to allow a mentally ill person to be detained for the purpose of receiving medical treatment. The definition is not relevant for the purposes of the criminal law. The test for this purpose comes from the common law and is provided in New South Wales, and generally throughout the common law world, by M’Naghten’s case, as elaborated in subsequent decisions, in particular R v Porter (1933) 55 CLR 182 (see 8.13) and R v Falconer (1990) 171 CLR 30 (see 8.43). 8.10 In R v M’Naghten (1843) 10 Cl & F 200; [1843–60] All ER Rep 229 the House of Lords asked the judges in the case against M’Naghten to explain the law of insanity, following a public outcry at their finding that ‘this unfortunate man at the time he committed the act was labouring under insanity’ (State Trials Report 1977:72). There were two questions: 1.

What are the proper questions to be submitted to the jury when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons is charged with the commission of a crime (murder, for example) and insanity is set up as a defence?

and 2.

In what terms ought the question to be left to the jury as to the prisoner’s state of mind at the time when the act was committed?

8.11 In response, Tindal CJ on behalf of the judges said: [a]s these two questions appear to us to be more conveniently answered together we have to submit our opinion to be that the jurors ought to be told in all cases that every man is to be presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity it must be clearly proved that, at the

[page 369] time of the committing of the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature 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.

8.12 The M’Naghten Rules are thus regarded as having two limbs, as emphasised and marked in the following extract from the judges’ response: … 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 [FIRST LIMB:] not to know the nature and quality of the act he was doing; or, if he did know it, that he [SECOND LIMB:] did not know he was doing what was wrong.

8.13 The M’Naghten Rules were explained, in an Australian context, by Dixon J in Porter. R v Porter (1933) 55 CLR 182 High Court of Australia [Porter was indicted for murder before Dixon J sitting in the original jurisdiction of the High Court under s 30B of the Judiciary Act 1903–1932 (and before the passing of the Seat of Government Supreme Court Act 1933). The defendant was alleged to have administered strychnine to his infant son (aged 11months) and then to have tried to kill himself by the same poison. He had been

interrupted by the entry of the police. The child died, and Porter was charged with his murder. His defence was that he was insane at the time he committed the act. After a period of separation from his wife during which he looked after the child, he had made desperate but unsuccessful efforts to reconcile with her. He became extremely emotional and showed symptoms of a nervous breakdown. He was sleepless, and took quantities of aspirin, phenacetin and caffeine. He then travelled with the child from Canberra to Sydney in circumstances which made it probable that he was without sleep for three nights. On his return he had a final interview with his wife, in which he appeared to have lost all control of his emotions. On her refusing to have anything to do with him or the child, he told her he would poison himself and the child and hastened away to obtain the strychnine. She informed the police, who found him shut in his house, sobbing.] Dixon J in summing up said: The accused stands charged under the name of Bertram Edward Porter, for the murder of his child, Charles Robert Porter, committed on 28th November 1932. The crime of murder is committed when, without any lawful justification, without any excuse, without any provocation, a person of sufficient soundness of mind to be criminally responsible for his acts intentionally kills another. To begin with, every person is presumed to be of sufficient soundness of mind to be criminally responsible for his actions until the contrary is made to appear upon his trial. It is not for the Crown to prove that any man is of sound mind, it is for the defence to establish inferentially that he was not of sufficient soundness of mind, at the time that he did the actions charged, to be criminally responsible. On the other hand, every person is to be presumed to be innocent of the actions charged against him until it is proved to the satisfaction of the jury beyond any reasonable doubt that he committed them. You will see, gentlemen, that the presumptions are not of equal strength. The criminal law requires that, when a crime is charged, the things which constitute that crime shall [page 370] be proved to the complete satisfaction of the jury; that they shall be so satisfied that those things were done that they have no

reasonable doubt about it. On the other hand, when that is proved, and the jury turn from the consideration of the question whether the things which constitute the crime were done to the question whether the man who did them was criminally responsible for his actions or was not, because of unsoundness of mind at the moment, it is necessary for the accused person to make out positively, upon a balance of probability, that he was not criminally responsible, and that he was not of such a mental condition at that time as to be criminally responsible. He has not got to remove all doubt from your minds. He, or rather his counsel, has merely to make it appear to you as more probable on the whole that that was the state of his mind at the time he did the things charged, than otherwise. You will therefore see that the first questions in this case for your consideration are these: Did the prisoner administer strychnine to his infant son with the intention of causing his death; and, did its death result from his so doing? Unless you are so satisfied, beyond reasonable doubt, that he did administer strychnine to the child with the intention of causing his death, and that death resulted from strychnine, then it is your simple duty to return a plain verdict of not guilty, because he would not have done the things which constitute murder. Probably you will have no difficulty at all in arriving at the conclusion that the prisoner did administer strychnine to his son with the intention of causing its death, and that death did result from the strychnine. I am bound to add that it is entirely for you to give effect to that evidence, and, if you think the evidence is not so strong as I and the Crown Prosecutor have suggested it is, you will stop the case at that stage. You will not go any further and consider the question of insanity. [His Honour referred to the facts establishing the elements of the crime and proceeded:] … The facts, as I have said, appear to me to be clear, but if you disagree with that, you should give effect to your disagreement by finding the prisoner not guilty. The responsibility is yours, and not mine. If, on the contrary, you are satisfied beyond reasonable doubt, to the exclusion of all doubt, of these three matters (1) that

he did administer strychnine to the child; (2) that he did so with the intention of killing it; and (3) that the child’s death did result from that administration — then you will turn and proceed to consider whether, at that particular time when he did those things, his state of mind was such as to make him criminally responsible for his act. That means, has it been made out to your reasonable satisfaction that, at the time, the prisoner’s faculties were so disordered that he is not in law criminally responsible for what he did. If you form the opinion that his faculties were so disordered that he is not criminally responsible, you will find a verdict of not guilty on the ground that the prisoner was insane at the time the offence was committed. … According to the law in this country the technical verdict in such a case is: Not guilty on the ground of insanity at the time of the commission of the offence charged. It is your function specifically to state that ground for your verdict of not guilty, because the legal consequences are quite different from those which follow a plain verdict of not guilty on the ground that the prisoner did not do the things charged. If you think it is not proved that the prisoner poisoned his child and brought about his death, your verdict, of course, will be simply not guilty, and he will be completely free. If, however, you think that he did the things charged against him, but that, at the time, his mind was so disordered that he could not be held responsible, then you will find him not guilty on the ground of insanity at the time of the offence charged. There is a legal standard of disorder of mind which is sufficient to afford a ground of irresponsibility for crime, and a ground for your finding such a verdict as I have indicated. It is my duty to attempt to explain that standard to you. It is plain from what [page 371] passed in the witness-box this morning, when Dr Henry was giving evidence, that the legal standard is a matter which he himself wished to discuss, but I prevented him, and kept him to his medical function. In my judgment, from remarks which have been made at the Bar in the course of speeches, it appears that some difference of opinion between learned counsel exists as to what that legal standard is. You will take my explanation of it, and disregard the attempts which have been made elsewhere to explain it, because

mine is the responsibility of laying down what the law is. Yours is the responsibility of applying it to the facts. Before explaining what that standard actually is, I wish to draw your attention to some general considerations affecting the question of insanity in the criminal law in the hope that by so doing you may be helped to grasp what the law prescribes. The purpose of the law in punishing people is to prevent others from committing a like crime or crimes. Its prime purpose is to deter people from committing offences. It may be that there is an element of retribution in the criminal law, so that when people have committed offences the law considers that they merit punishment, but its prime purpose is to preserve society from the depredations of dangerous and vicious people. … What is the utility of punishing people if they be beyond the control of the law for reasons of mental health? In considering that, it will not, perhaps, if you have ever reflected upon the matter, have escaped your attention that a great number of people who come into a Criminal Court are abnormal. They would not be there if they were the normal type of average everyday people. Many of them are very peculiar in their dispositions and peculiarly tempered. That is markedly the case in sexual offences. Nevertheless, they are mentally quite able to appreciate what they are doing and quite able to appreciate the threatened punishment of the law and the wrongness of their acts, and they are held in check by the prospect of punishment. It would be very absurd if the law were to withdraw that check on the ground that they were somewhat different from their fellow creatures in mental make-up or texture at the very moment when the check is most needed. You will therefore see that the law, in laying down a standard of mental disorder sufficient to justify a jury in finding a prisoner not guilty on the ground of insanity at the moment of the offence, is addressing itself to a somewhat difficult task. It is attempting to define what are the classes of people who should not be punished although they have done actual things which in others would amount to crime. It is quite a different object to that which the medical profession has in view or other departments of the law have in view in defining insanity for the purpose of the custody of a person’s property, capacity to make a will, and the like. With that explanation I shall tell you what that standard is.

The first thing which I want you to notice is that you are only concerned with the condition of the mind at the time the act complained of was done. That is the critical time when the law applies to the man. You are not concerned, except for the purpose of finding out how he stood at that moment, what his subsequent condition was or what his previous condition was. He may have been sane before and he may have been sane after, but if his mind were disordered at the time to the required extent, then he should be acquitted on the ground of insanity at the time he committed the offence. It is helpful in finding out how he was at the time to find out how he was before and after. It is merely because it is helpful that we go into it in this case, not because it is decisive. The next thing which I wish to emphasize is that his 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 things from what I have attempted to describe as a state of disease, 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. You will see that I have mentioned two quite different things. One state of mind is that [page 372] in which he is prevented by mental disorder from knowing the physical nature of the act he was doing; the other is that he was prevented from knowing that what he was doing was wrong. The first relates to a class of case to which so far as I am concerned I do not think this case belongs. But again, that is my opinion of a matter of fact and it is for you to form your opinion upon it. 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. In this case, except for the prisoner’s own statement from the dock that after a certain time he remembered nothing of what he did, there seems to be nothing to support the view that this man was in such a condition that he

could not appreciate what death amounted to or that he was bringing it about or that he was destroying life and all that is involved in the destruction of life. It is for you to form a conclusion upon that matter, but I suggest to you that the evidence of what he said to the police when he was found after he had given the poison to the child and was about, apparently, to administer it to himself, shows that he understood the nature of life and death and the nature of the act he was doing in bringing it about. But you are at liberty to take into account that he said he knows nothing of what he did at that time. If you form the conclusion that notwithstanding the evidence which I have mentioned the mental disorder of this man was such that he could not appreciate the physical thing he was doing and its consequences, you will acquit him on the ground of insanity at the time he did the thing charged. The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the real question in this case. Was his state of mind of that character? I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about, and it is very difficult to be quite clear as to what is meant in describing mental conditions. I have used the expression “disease, disorder or disturbance of the mind”. That does not mean (as you heard from the doctor’s replies this morning to certain questions I asked him) that there must be some physical deterioration of the cells of the brain, some actual change in the material, physical constitution of the mind as disease ordinarily means when you are dealing with other organs of the body where you can see and feel and appreciate structural changes in fibre, tissue and the like. You are dealing with a very different thing — with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression “know”, “knew that what he was doing was wrong”. We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether

he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by wrong? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or [page 373] wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged. In considering these matters from the point of view of fact you must be guided by his outward actions to a very large extent. The only other matter which can help you really is the medical opinion. I think the evidence may be described as his outward conduct and the medical opinion. It is upon this you must act. The medical opinion included explanations of the course of mental conditions in human beings generally. [His Honour reviewed the circumstances affecting the question of the prisoner’s state of mind at the time of the commission of the acts charged and the medical evidence and proceeded:] … In conclusion I go back to what I consider the main question of the case and it is, whether you are of the opinion that at the stage of administering the poison to the child the man whom you are trying had such a mental disorder or diseased intelligence at that moment that he was disabled from knowing that it was a wrong act to commit in the sense that ordinary reasonable men understand right and wrong and that he was disabled from considering with some

degree of composure and reason what he was doing and its wrongness. If you answer that question in his favour you will find him not guilty on the ground of insanity at the time of the commission of the offence charged. If you answer the question against him, and you have already formed a conviction on that question, that he committed the actual act which constituted murder with the necessary intention of bringing about death, you will find him guilty of murder. I repeat that the burden of establishing to your complete satisfaction to the exclusion of all reasonable doubt that he did all the acts with the requisite intention of killing which constitutes murder and brought about death, is upon the Crown. I think upon the evidence you will have little difficulty on that point. The burden of establishing to your reasonable satisfaction, not to the exclusion of all doubt, but, on the balance of probability, that his state of mind was one which I have described is upon the prisoner. If you are in the condition of mind of being quite unable to answer that question it will be your duty then to find him guilty, assuming that you have arrived at the conclusion that you are convinced that the act, if that of a sane man, would amount to murder. Three verdicts upon this view of the case are open to you. You may find him completely not guilty, which would mean that you are not satisfied beyond reasonable doubt that he caused the death intentionally by administering strychnine. You may find him not guilty on the ground that he was insane at the time he committed the act, which would mean that you were satisfied beyond reasonable doubt that he administered strychnine and that it caused the death but at the time his intelligence was so disordered that he was in such a state that he was not criminally responsible for his act. Finally, you may find him guilty of murder. You will now retire to consider your verdict. [The jury found the accused ‘Not guilty on the ground of insanity at the time of commission of the act charged’.]

8.14 In M’Naghten’s case, the accused shot and killed Edward Drummond, the private secretary of Sir Robert Peel, the Tory Prime Minister. M’Naghten had apparently mistaken the secretary for the Prime Minister. He held a mistaken belief — arising from what was then known as insanity — that he was being persecuted by the Tories. The

defence of insanity was seen as a concession to the need to treat, rather than punish, the mentally ill. Clearly, as in Porter and in [page 374] M’Naghten’s case, an accused found to be insane can act with deliberation and intention. If that is true, then such a person can perform the physical elements of a crime with the necessary fault elements but is still entitled to be dealt with under mental health legislation rather than the criminal justice system. As Dixon J said in R v Porter (1933) 55 CLR 182 at 186–187: Now, it is perfectly useless for the law to attempt, by threatening punishment, to deter people from committing crimes if their mental condition is such that they cannot be in the least influenced by the possibility or probability of subsequent punishment, if they cannot understand what they are doing or cannot understand the ground upon which the law proceeds. The law is not directed, as medical science is, to curing mental infirmities. The criminal law is not directed, as the civil law of lunacy is, to the care and custody of people of weak mind whose personal property may be in jeopardy through someone else taking a hand in the conduct of their affairs and their lives. This is quite a different thing from the question, what utility there is in the punishment of people who, at a moment, would commit acts which, if done when they were in sane minds, would be crimes. What is the utility of punishing people if they be beyond the control of the law for reasons of mental health?

8.15 The M’Naghten Rules were further elaborated by the NSW Court of Appeal in DPP v Mills [2000] NSWCA 236 in the context of an accused person with an intellectual disability. Drug use and alcohol abuse may also cause a person to become ‘criminally insane’ within the Rules (see 8.17); see also R v Lainson (at 8.46). 8.16 Spigelman CJ, in Cheatham, considered whether the

M’Naghten Rules require merely that the accused had difficulty in appreciating that what he or she was doing was wrong rather than ‘knowing’ it was wrong. R v Cheatham [2000] NSWCCA 282 NSW Court of Criminal Appeal [The facts of Cheatham are provided at 8.18.] Spigelman CJ: … 8. Newman J told the jury that punishing people for crimes that they commit both deters others from committing similar crimes and punishes the particular person for his or her wrongdoing. His Honour said that there would be little deterrent effect, and there would be little purpose in punishing somebody, if the person was obviously mentally ill at the time of the conduct which was alleged to constitute a criminal offence. … 12. … His Honour employed two formulations as to the requisite effect of as [sic] disease of the mind, if such existed: it prevented the accused … knowing that what he was doing was wrong he was disabled from knowing that it was a wrong act to commit … he was disabled from reasoning with a moderate degree of composure and sense as to the wrongness of what he was doing. … 13. The Appellant submitted that the words used — ‘prevented’ and ‘disabled’ — were too absolute. He submitted that the defence was not a ‘total absence of knowledge of wrongness’, but ‘difficulty with the reasoning process’. A mere ‘difficulty’ with reasoning [page 375] process is far too low a standard. Nevertheless, it is necessary to consider whether his Honour directed the jury to apply an inappropriate test. 14. The most commonly cited decision is that of Dixon J in The King v Porter (1933) 55 CLR 182. [His Honour set out the test as stated by Dixon J (see 8.13), and continued:]

… 15. [Dixon J] … repeated the test in terms of ‘incapable of’ and ‘quite incapable of’ later in this same passage. … 17. These three formulations of Dixon J which I have quoted — ‘unable to appreciate’, ‘quite incapable of appreciating’ and ‘able to appreciate’ — as well as the subsequent formulation, ‘incapable’ … appear to me to have the same degree of ‘absoluteness’, to use the phrase of counsel for the Appellant, as the formulations employed by his Honour — ‘prevented’ and ‘disabled’. I would reject this submission. 18. The third submission under this heading referred to his Honour’s use of the phrase ‘ordinary reasonable person’ in the passage quoted above with respect to knowledge of right and wrong. It was submitted that the introduction of the word ‘reasonable’ may have invoked an inappropriate standard. I do not accept that this is the case. Indeed in Porter itself the two words were used interchangeably in the following passage at 190: What is meant by wrong is wrong having regard to the standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards … (Emphasis added) 19. The fourth submission was that his Honour failed to state that the ‘wrongness’ being spoken of was ‘moral wrongness’, not ‘legal wrongness’. … [There was] … evidence that the Appellant may have known that his actions were against the law but that he did not know they were morally wrong. This led the Crown to submit in its address: … I suggest it is not a very far jump at all to get from a belief that something was illegal to a belief or a knowledge that it was wrong and morally wrong. The distinction between illegal and morally wrong, I suggest to you, is a very fine distinction indeed.

20. Nothing in the circumstances of the trial suggests any likelihood that the jury would have applied a test of ‘wrong at law’. Counsel appearing for the Appellant did not request an express direction, even though the distinction was the subject of legal submissions before his Honour. In my opinion, the jury was not left with any uncertainty as to the nature of the wrong it had to consider. The failure of his Honour to draw the distinction contended for did not lead to a miscarriage of justice. … 31. The Appellant submitted that his Honour was obliged to direct the jury on diminished responsibility and leave the option of a finding of manslaughter to the jury. 32. Although not the subject of submissions, it appears that the form of s 23A before the coming into effect of the Crimes Amendment (Diminished Responsibility) Act 1997, on 3 April 1998, was applicable to the Appellant. It is not necessary to decide this point as nothing turns on the distinction for present purposes. … 34. No explanation was provided to this Court on the reason why diminished responsibility was not pursued at the trial. No evidence was adduced in this Court, as is often done, to explain the decision not to pursue such a case. … [page 376] 41. The issue is whether or not the defence of diminished responsibility was reasonably open on the evidence before the Court. 42. The Appellant’s submissions were based on the proposition that the Appellant has lost the opportunity of a conviction for manslaughter. Plainly, significant differences exist between the M’Naghten test and the statutory provision for diminished responsibility. In particular, the elements of incapacity to control himself did not arise explicitly on the mental illness defence. Furthermore, a test of ‘substantial impairment’ is less stringent. 43. The factual basis for the Appellant’s submission that a proper basis for a diminished responsibility finding under s 23A of the

Crimes Act 1900 had been established consisted of certain statements made to police and ambulance officers on the night, the contents of an electronically recorded interview with police and his own statements made to the psychiatric witnesses, together with the expert opinions. In the record of interview, the Appellant said on several occasions ‘I just lost control of myself’. Reliance was also placed on his suicidal conduct. The Appellant stabbed himself several times on the night of the killings. He also wrote two letters, which counsel for the Appellant described as suicide notes. … 62. In many, if not most cases, a defence of mental illness will result in a body of evidence being adduced which would support a finding of substantial impairment under s 23A. This was the case here. The evidence … would, if accepted by the jury, establish the basis of a finding of this character even though, as I indicate below, the jury did not accept the proposition that the Appellant was unable to distinguish right from wrong. 63. It is unnecessary to consider the range of alternative routes to a substantial impairment finding which would be consistent with the jury’s rejection of the mental illness defence. A finding of diminished responsibility was, in my opinion, reasonably open on the evidence. … [T]he Appellant has lost the opportunity of having his crime reduced from murder [to] manslaughter. In my opinion, the loss of this opportunity constitutes a miscarriage of justice. I would allow the appeal on this ground. … [James and Sperling JJ agreed with the reasons and orders of the Chief Justice. New trial ordered.]

Substantial impairment by abnormality of mind 8.17 Not every mental disorder will qualify for the common law defence of mental illness. In R v Chayna (1993) 66 A Crim R 178 (NSWCCA), the accused, who had killed her two daughters and her sister-in-law, was seen by seven psychiatrists. Three gave evidence that she was criminally insane, three that she had an abnormality of mind qualifying her for the partial defence of diminished responsibility (since

1997, in New South Wales, this defence has been called ‘substantial impairment by abnormality of mind’, see 3.33), and one, that she was not suffering from a mental illness at all. Of course, in the criminal process the jury, following directions from the judge, is the trier of fact and it will ultimately have to decide such matters (see 12.45). The jury convicted her of murder but, on appeal, manslaughter was substituted. It is little wonder that commentators have described the two defences, substantial impairment and insanity [sic] as requiring ‘much semantic juggling in order to fit a square peg into an essentially round hole’! (K Milte et al, ‘Abolition of the Crime of Murder and of the Mental Condition Defences’ (1975) 49 ALJ 160–172). [page 377] 8.18 Cheatham (see above at 8.16 and below at 8.25) went before the Court of Criminal Appeal on two occasions. The appellant had murdered his wife and elder daughter, and wounded his younger daughter with intent to murder. The appellant believed he had AIDS and had infected his family. There was expert evidence that he was suffering from a delusional disorder, that this caused him to act as he did, and that it was a mental illness. On each occasion before the Court of Criminal Appeal, the appellant claimed that the trial judge had failed adequately to address the jury on the defences of diminished responsibility (as it was then known) and mental illness. Diminished responsibility arose, and substantial impairment often arises, in the context where an accused could claim the defence of mental illness. 8.19 As with insanity, the burden of proof is on the accused to prove the defence on the balance of probabilities. The Crown is entitled to raise mental illness if the accused raises substantial impairment, and the accused is entitled to raise mental illness if the Crown raises substantial impairment (R v Ayoub [1984] 2 NSWLR 511).

8.20 The defence of substantial impairment by abnormality of mind is set out in s 23A of the Crimes Act 1900 (NSW) (‘the Crimes Act’). It states: 23A Substantial impairment by abnormality of mind (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 mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1)(b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death.

(7) If, on the trial of a person for murder, the person contends: (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of

[page 378] those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section: underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind.

8.21 Note that s 23A(1) makes it clear that the defence under the section only arises where the court has found in favour of the prosecution on all issues going to liability for murder. 8.22 An accused, relying on a defence of substantial impairment, will invariably call expert evidence to identify such impairment and whether it is due to an underlying condition, though there is no requirement to do so. Section 23A(2) does not prevent this kind of evidence from being given. It states that the expert cannot give evidence on the question of whether the impairment is so significant that the accused should receive the benefit of the defence. The expert can give evidence on the question of whether the accused is impaired and the causes of that impairment, but it is for the tribunal of fact (that is, the jury or judge in a judge alone trial) to decide if the impairment is so substantial that the

conviction should be for manslaughter, not murder. In any event, as Hunt CJ at CL said in R v Trotter (1993) 35 NSWLR 428 at 431–432; 68 A Crim R 536 (citations omitted): [E]xpert medical evidence is not really of great assistance in determining this crucial question of whether the impairment is substantial. The doctors are obviously qualified to say whether the extent of the particular impairment to the accused’s perceptions, judgment and self-control is slight, moderate or extensive, or somewhere in between, but whether that impairment to the accused’s mental responsibility for his actions may ‘properly’ be called substantial (in the sense of being such as to warrant the reduction of the crime from murder to manslaughter) is not a matter within the expertise of the medical profession. That is a task for the tribunal of fact, which must approach that task in a broad commonsense way. It involves a value judgment by the jury representing the community (or by a judge where there is no jury), not a finding of medical fact. In the present case, therefore, it is my decision as to whether the impairment may ‘properly’ be called substantial in that sense.

8.23 The MCCOC recommended that the defence should not be introduced into the Model Code. This conflicted with the recommendation from the NSW Law Reform Commission. The NSW Law Reform Commission recommendation led to the abolition of the old defence of diminished responsibility. The MCCOC’s discussion on the topic sheds light on the problems with this defence and the rationale for the current statutory formula that applies in New South Wales. MCCOC, Fatal Offences Against the Person Model Criminal Code, Discussion Paper, Chapter 5, June 1998, pp 113–130 Diminished responsibility is a partial defence to murder, operating to reduce that offence to manslaughter. The rationale for its introduction and survival appears to be the desire for increased

flexibility in dealing with defendants who display some kind of mental [page 379] dysfunction, albeit not serious enough to establish the complete defence of insanity. As its name suggests, diminished responsibility partially excuses such persons on the basis that the fault element necessary to found a murder conviction, although present, is of diminished quality. The common law doctrine of diminished responsibility originated in nineteenth century Scottish courts but was not included in UK legislation until 1957. New South Wales and the Australian Capital Territory have since introduced substantially identical provisions in domestic legislation. Queensland and the Northern Territory are the only other Australian jurisdictions to legislate for diminished responsibility. Although these Code jurisdictions formulate the defence differently, the distinction is predominantly one of form rather than substance … Unlike the other partial defences, but like the complete defence of insanity (‘mental impairment’), all State and Territory jurisdictions legislating for diminished responsibility place the onus of establishing the defence upon the defendant. … The reversal of the onus complicates the jury’s task, particularly when the defendant relies on more than one partial defence. Diminished responsibility is often run together with provocation. In these cases, the jury will not only need to appreciate that the onus of proof is on different parties for each defence, but also that the standard to which the defences must be proved differs. This legal framework must be absorbed even before jurors turn their minds to the most crucial aspect of the case — whether the substantive legal principles are established on the facts … The New South Wales Law Reform Commission has made a valiant attempt to reformulate and rescue the partial defence of diminished responsibility on the basis that the public are much more likely to accept an appropriately lower penalty which takes into account by way of a sentence diminished responsibility where that conclusion has been reached by a jury rather than a judge. This has its appeal in an era where sensational cases are dominated

by trial by media because care is required to maintain public confidence in the judicial system. The Committee is far from sure, however that the Australian public does accept the reduction of murder to manslaughter, even though that decision must be reached by a jury. The Committee considers that the practical problems with the partial defence of diminished responsibility will not be remedied by further changes to the test. This is because the concept of this partial defence is fundamentally confused. The Committee notes that Victoria, Western Australia, South Australia and Tasmania are functioning perfectly well without the defence. Indeed there seems to be less concern about these issues in those States than New South Wales. … The practical difficulties associated with diminished responsibility frustrate its purpose. Public confidence in the defence, and more generally the law, is damaged by the perception that it operates to excuse persons because of the often deplorable manner in which they kill. These cases are viewed, certainly by juries at least, as murder. The extent to which the defendant’s abnormal state of mind impacted upon the killing is adequately considered in sentencing. For these reasons, the Committee agrees with the Law Reform Commission of Victoria’s view that the partial defence of diminished responsibility should not be introduced.

8.24 In the first appeal in Cheatham, Spigelman CJ, in his Honour’s judgment extracted above at 8.16, proceeded in his analysis of the issues on the basis that it was unclear whether the pre- or post-1998 version of the law relating to diminished [page 380] responsibility applied to the facts. All judges agreed that the analysis would be the same under either version. The post1998 version was considered in R v Christov [2006] NSWSC 972, at 8.26. 8.25 In the second Cheatham appeal, the Court of Criminal

Appeal compared ‘diminished ‘substantial impairment’.

responsibility’

with

R v Cheatham (No 2) [2002] NSWCCA 360 NSW Court of Criminal Appeal Smart AJ: … 71. The appellant submitted that the emphasis of the trial was the defence of mental illness and that insufficient regard was had during the summing-up as to how the evidence that touched on the defence of mental illness should be considered in relation to the defence of diminished responsibility. … 73. As to that defence, in Ryan (1995) 90 A Crim R 191 at 195 Hunt CJ at CL, with the concurrence of the other members of the Court, said: The particular aspects of mind to which attention is usually paid in relation to this defence are the accused’s perception of events, his ability to form a rational (or sensible) judgment as to whether his actions were right or wrong, and his capacity to exercise willpower to control his physical actions in accordance with rational (or sensible) judgment. Such perception, ability and capacity vary widely in normal people. An abnormality of mind exists where there is a deviation from the range over which they may vary in normal people. A person’s mental responsibility for his actions concerns the extent to which his mind is answerable for his physical acts, and it too involves the extent of that person’s ability to exercise willpower to control his physical actions. That mental responsibility is impaired if it is diminished by reason of that abnormality of mind. … 77. The appellant complained that while the judge paid attention to the issue of the appellant’s ability to control his actions he did not adequately deal with the other aspects of abnormality of mind as they bear upon mental responsibility namely, the nature and

extent of his perceptions and his understanding and ability to be able to reason properly and to form a rational (or sensible) judgment as to whether his actions were right or wrong. 78. The appellant relied on the judgment of Mahoney P in R v Gieselmann CCA, 12 November 1996, unreported, with which Dunford J was in general agreement. … 80. The appellant complained that the judge did not say anything about the appellant’s capacity to act rationally and that the judge had not followed the approach of the Court in Ryan and Gieselmann. That approach was embodied in the current s 23A(1) of the Crimes Act 1900 … [His Honour set out the current s 23A and continued:] 81. That represents an improvement in the expression of the defence of diminished responsibility. It is easier to understand. 82. However, although not so well expressed the law of diminished responsibility contained in the former s 23A had reached much the same position as a result of judicial exegesis, especially in Ryan and Gieselmann. [page 381] 83. The appellant complained that the judge’s directions did not apply the law to the evidence in the case. It was submitted that the jury needed to be assisted in this way so that it could be made plain to them just how the evidence of the appellant’s impaired ability to determine right from wrong might diminish his mental responsibility for the acts occasioning death. Similarly, the evidence which demonstrated his distorted perceptions at the time of the acts causing death should have been outlined to the jury so that they could properly consider whether or not the evidence demonstrated substantial impaired responsibility. 84. Counsel for the appellant at the trial did not apply for any further or other directions. The appellant sought leave to rely on the matters now raised pursuant to r 4 of the Criminal Appeal Rules. The appellant contended that as the judge had not adequately defined the concept of ‘mental responsibility’, the jury were left without adequate instructions as to an element of the defence. Thus there had been a substantial miscarriage of justice

and leave should be granted. Reliance was placed on Wilde (1988) 164 CLR 365 at 373. 85. The appellant submitted that there was a compelling body of evidence that the appellant was under a delusion and that his perception of events was substantially impaired. Similarly, there was a very cogent body of evidence that the appellant’s thinking about the rights and wrongs of his acts was confused and that therefore his mental responsibility for his acts was accordingly substantially impaired. The appellant further submitted that if the jury had received correct and complete directions and assistance from the judge, there is a real chance that the appellant would have been acquitted of murder and convicted only of manslaughter. … 111. Since the decisions in Ryan and Gieselmann where the accused contends that his perceptions of events were substantially impaired or that his ability to form a rational or sensible judgment as to whether his actions were right or wrong was substantially impaired or, as is usually the case, both, it is necessary for the judge to tell the jury that in determining whether the accused was suffering such abnormality of mind as substantially impaired his mental responsibility for the acts or omissions (in the present case the stabbings) they must take into account the perceptions of events of the accused and the nature and extent of any impairment of his perceptions, his capacity to understand events and his ability or capacity to form a sensible judgment as to whether his actions were right or wrong. I think that the directions in total did this. … 115. This was a re-trial. I accept that it was a re-trial on the mental illness issue and that the re-trial was ordered to enable the issue of diminished responsibility to be left to the jury. Thus there was ample opportunity for all parties to consider in advance what directions should be given to the jury. The appellant was represented by senior counsel. He sought no further directions. The judge left the issue of diminished responsibility to the jury in terms of s 23A of the Crimes Act 1900 as it stood at the date of the stabbings. If the matters now argued had been raised with the judge he could have given further directions. The complaint really

reduces to the proposition that more emphasis should have been put on the aspects of impairment of perceptions and the appellant’s ability to form a rational judgment as to whether his actions were right or wrong. … [T]he judge reminded the jury of the critical issue several times. Leave to rely on the points now raised should be refused. … 135. Considerations of general deterrence and specific deterrence are applicable but there has to be a small moderation of the sentences to allow for the appellant’s abnormality of mind. The head sentence of 24 years does not sufficiently allow for the appellant’s [page 382] abnormality of mind nor the time being spent in protective custody. The correct head sentence for the appellant’s murder of his wife was one of 22 years. Because the sentence has to be served in protective custody there are special circumstances. The correct non-parole is 14 years. The correct sentence for the appellant’s murder of his elder daughter would also be one of 22 years with a non-parole period of 14 years. However, understandably there was no appeal by the Crown against the sentence of 16 years (with no non-parole period) because of the sentence on the wife’s murder which rendered any appeal academic. In these circumstances I would impose a sentence of 14 years (with no non-parole period) on the appellant for the murder of his elder daughter. No nonparole period is fixed because of the concurrent sentence for the wife’s murder. I would not disturb the sentence of 12 years on the appellant for the malicious wounding with intent to murder his younger daughter. [Beazley JA disagreed with Smart AJ on the question of sentence. Bell J agreed with Smart AJ. The outcome for the appellant was that his appeal against conviction was dismissed, but his sentences were slightly reduced.]

8.26 The post-1998 version of substantial impairment due to abnormality of mind was considered in Christov. R v Christov

[2006] NSWSC 972 NSW Supreme Court [The accused was found to have strangled Lynette Phillips to death after she had produced and used a knife against him. They had been in a relationship which she had terminated because of what she described as the accused’s controlling, possessive and jealous behaviour and attitude towards her. He was convicted in a trial by judge alone.] Kirby J: … 140 It being clear that the Crown has proved the elements of murder, the issue arises whether, at the time Mr Christov strangled Lynette Phillips, he was substantially impaired by abnormality of mind arising from an underlying condition, and the impairment was so substantial as to warrant liability for murder being reduced to manslaughter (s 23A(1) Crimes Act 1900). 141 Mr Christov was examined by two experienced forensic psychiatrists, Dr Giuffrida retained by his solicitors, and Dr Skinner, retained by the Crown. Both provided helpful reports and gave evidence. In broad terms, as previously outlined, Dr Giuffrida thought that the partial defence of substantial impairment may be open to Mr Christov, based upon the interaction of three separate matters. 142 The first was that Mr Christov may have been suffering from “morbid jealousy”. His difficulties with other relationships in the course of his life was relevant to that issue. On any view, he had, according to Dr Giuffrida, a number of stormy relationships, often short lived and each culminating in an episode of violence. Dr Giuffrida believed that the statements from witnesses commenting upon the relationship between Mr Christov and Lynette Phillips, provided some evidence of morbid jealousy on the part of Mr Christov. 143 Dr Skinner had access to the same material. Certainly, Mr Christov was of a jealous disposition. Jealousy, however, is a normal human emotion, especially at the time of a break-up of a relationship. The person rejected naturally searches for an explanation [page 383]

for their companion’s attitude. The presence of another person, or the possibility of another lover, is an obvious explanation. They may, in that context, make accusations. Morbid jealousy, on the other hand, is an extreme form of jealousy, as Dr Giuffrida acknowledged. Where it exists, it affects the entire relationship, not simply the break-up. It is characterised by constant obsessive checking up on one’s companion, examining clothing, bed clothes, telephone accounts and the like for evidence of infidelity, with repeated accusations of infidelity and a refusal to accept explanations when they are provided. Dr Skinner did not accept that, on the evidence, Mr Christov exhibited morbid jealousy towards Ms Phillips. 144 The second aspect concerns drug abuse. It was common ground that Mr Christov, over much of his life, had abused drugs. He frequently used cocaine recreationally. He used other drugs besides. He became an interstate truck driver in 1994. He thereafter used massive amounts of amphetamines, sometimes as much as four grams a day, to enable him to stay awake. He experienced the psychotic effects which are associated with such drugs, including auditory and visual hallucinations. At the same time he used and abused a related drug, a stimulant, Duramine, as an aid to weight loss. It is likely that these drugs interacted, such that each exaggerated the effect of the other. Both doctors Giuffrida and Skinner diagnosed poly-substance abuse. Such abuse is capable of having enduring effects. The damage occasioned by such abuse becomes the context within which the person operates, lowering the threshold of that individual to withstand morbid jealousy (where it exists) or acute anxiety (where it is experienced). 145 The third aspect identified by Dr Giuffrida was the effect upon Mr Christov of Lynette Phillips having produced and used a knife against him. Arguably, Mr Christov suffered an acute stress disorder, which may well explain his inability to remember strangling Lynette Phillips and aspects of his journey from Sydney. He may well have been in a dissociative state. Dr Skinner disagreed. She did not believe there was any basis for such a diagnosis. His ability to perform fine motor actions, including tying the ligatures and thereafter driving from the scene, were inconsistent with someone who was in a dissociative state. … 156 … [M]orbid jealousy … does not appear to have been a

feature of his relationship with Ms Phillips. The material I have before me is limited, but the jealousy which was evident appeared to emerge in the context of the attempts by Ms Phillips to end the relationship. I do not accept that Mr Christov’s jealousy involved delusions such that one should infer as a probability that he suffered an abnormality of mind. … 157 … It was common ground … that Mr Christov abused drugs. Such abuse can have long term effects, even when the drug taking ceases. Although there was evidence that he had, at times, suffered from delusions and experienced hallucinations as a result of his drug taking, the issue is whether, at the time of the incident, there is evidence of such effects. … 161 I do not doubt that drugs have taken their toll upon Mr Christov, making him more irritable, angry and explosive. However, I am not, persuaded that, either alone or in conjunction with morbid jealousy, the adverse effects reached the level of delusion or an abnormality of mind. 162 There is a further aspect concerning drugs. Mr Christov told Dr Skinner that, on the morning of the offence, he took amphetamines. He said that he consumed between half and one gram at about 11.00 am. No amphetamines were found in the blood sample taken from him at 2.15 pm on 13 January 2004 after the motor vehicle accident. Nonetheless, because amphetamines have a short half life, and are rapidly cleared from the body, their absence in a blood sample taken three days later would not, in Dr Skinner’s view, exclude the possibility that Mr Christov had taken amphetamines [page 384] on the day, as he said. Amphetamines may lead to increased irritability and aggression. In Dr Skinner’s view, taking amphetamines may help explain Mr Christov’s reaction towards Ms Phillips. However, the effect of the drug would be transient and disregarded under s 23A(3) of the Crimes Act. It would not be an abnormality of mind. … 166 The final aspect of Dr Giuffrida’s opinion was the possibility that Mr Christov suffered an acute stress disorder induced by the events of that evening. …

173 Although I recognise the possibility that Ms Phillips’ access to a knife may have been unexpected by Mr Christov, I accept that he remained calm, as he told Dr Skinner. I do not accept as a probability that he suffered an acute stress reaction as a result of the attempt by Lynette Phillips to defend herself with the knife. I also think it probable that he does remember having strangled her. I do not accept that he suffered from some form of dissociative state as he drove from her house. I believe he knew exactly what he had done, and that it was wrong. Knowing that, he then fled. 174 I am not saying that Mr Christov’s psychological makeup was entirely normal at the time of these events. He may have been impaired to some degree. However, I am not satisfied as a probability that, at the time he strangled Lynette Phillips, he was substantially impaired by an abnormality of mind, or that such impairment as he had was so substantial as to warrant liability for murder being reduced to manslaughter.

8.27 Christov illustrates that the impairment must have been so substantial as to warrant liability for murder being reduced to manslaughter. Section 23A(2) expressly renders opinion evidence inadmissible on this issue. As in Christov, the expert evidence will be limited to the issue of the impairment. While various ‘underlying conditions’ might have affected the extent of the accused’s capacity to understand events, judge whether their actions were right or wrong, or control themselves, they must be pre-existing mental or physiological conditions other than of a transitory kind. Christov illustrates that the effects of ‘self-induced intoxication’ under s 428A of the Crimes Act (see 8.58), are to be disregarded for the purpose of determining whether the defence applies. It leaves open whether organic disease or psychosis induced by prolonged consumption of alcohol or drugs would qualify as an ‘abnormality of mind’ for the purpose of the new section. 8.28 In Potts the New South Wales Court of Criminal Appeal had to consider, for the purposes of assessing whether or not an accused should be convicted of

manslaughter rather than murder by reason of substantial impairment of mind, whether the trier of fact is permitted to receive evidence that the accused had been so convicted in relation to a previous offence. Potts v R [2012] NSWCCA 229 NSW Court of Criminal Appeal [On 22 March 2010 the appellant was convicted of the murder of a sex worker following a jury trial at which he had raised, amongst other things, the possible defence of substantial impairment of mind pursuant to s 23A. One of the grounds of appeal [page 385] centred on the jury receiving evidence that the accused had been charged with the murder of his father in 2000 but convicted of manslaughter by reason of substantial impairment of mind.] Johnson J: … 28. Before moving to this ground of appeal, it is appropriate to consider the nature of the partial defence of substantial impairment at a murder trial. [His Honour then referred to s 23A(1) and (8), and continued]: 30. “Underlying condition” is defined in s 23A(8) as meaning “a pre-existing mental or physiological condition, other than a condition of a transitory kind”. 31. The onus lies upon the accused person to prove (on the balance of probabilities) that he or she is not liable to be convicted of murder by virtue of the section: s 23A(4). 32. For the purpose of s 23A(1)(b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible: s 23A(2). 33. It has been said that the issue under s 23A(1)(b) is a task for the tribunal of fact, which must approach that task in a broad commonsense way, involving a value judgment by the jury representing the community, and not a finding of medical fact: R v Trotter (1993) 35 NSWLR 428 at 431. It is often put to juries (as it was here) that an impairment is substantial if it is such as warrants

the reduction of the crime from murder to manslaughter: R v Trotter at 431; R v Ryan (1995) 90 A Crim R 191 at 195; R v Majdalawi [2000] NSWCCA 240; 113 A Crim R at 243 [10]–[11]. In R v Majdalawi, Adams J observed (at 247 [36]) that the “value judgment by the jury representing the community” to which Hunt CJ at CL referred in R v Ryan “is a decision about culpability” and hence “is not a medical question”. 34. The directions of Kirby J to the jury in the present case (which were not challenged on appeal) illustrate the way in which a jury is invited to determine the s 23A(1)(b) issue. Kirby J directed the jury that the distinction between murder and manslaughter “is both a legal distinction and a moral one” (SU66). Manslaughter is regarded as “having less culpability than murder and it is, therefore, punished less severely” (SU66). If that “incapacity did so operate and did impair him, then his moral blameworthiness would be reduced by reason of that impairment and the appropriate verdict would be manslaughter” (SU68). 35. Section 23A(1)(b) has been described as giving rise to “an issue which is quintessentially one for the determination of a jury”: R v Hucker [2002] NSWSC 1068 at [2] (Howie J). 36. A question raised on this appeal is whether a jury considering a partial defence of substantial impairment, and thus undertaking the value judgment or moral assessment concerning the accused person’s culpability required under s 23A(1)(b), is entitled to have before them, not only evidence of the accused person’s history of violent conduct and of psychiatric assessment and treatment, but also evidence that he had killed a person at an earlier time in circumstances where substantial impairment was raised successfully to reduce the crime from murder to manslaughter. … 76. I am not persuaded that error has been demonstrated in the trial Judge’s approach to this evidence at trial. This was an unusual trial and the approach of defence counsel did not involve sustained opposition to the admission of this evidence. Rather, as I have said, the approach of defence counsel involved an acceptance that the better course was to not press the objection. [page 386]

77. In any event, I observe that it is reasonable to contend that evidence of the Appellant’s prior homicide was relevant to the jury’s broad function under s 23A(1)(b) Crimes Act 1900. 78. I have mentioned earlier (at [33]–[34]) the value judgment or moral assessment which the jury is to undertake for the purposes of s 23A(1)(b). Opinion evidence is prohibited on this issue. It is for the jury alone to make this assessment of culpability, applying community standards. 79. In this case, it was accepted that the whole history of the Appellant had been taken into account by three psychiatrists, all of whom had assessed or treated the Appellant for a period commencing long before September 2008. It was accepted that the Appellant’s history of violence and his associated psychiatric history, would be before the jury. The fact that the Appellant had acted violently towards persons was relevant. There was a great deal to be said for the view that it was preferable for the jury to know the true circumstances of these violent episodes, rather than be left to speculate as to what they may have been. This was the view ultimately adopted by trial defence counsel. 80. The “compromise” reached which saw a limited reference to this matter, associated with a statement that the Appellant had been convicted of manslaughter on the ground of substantial impairment, was seen to be capable of operating favourably to the Appellant. The fact that the Appellant had a prior homicide (with an associated finding of substantial impairment) was not a circumstance extraneous to the jury’s broad assessment for the purposes of s 23A(1)(b) of the Act. 81. Any adverse impact flowing from the identification of the fact that the Appellant had committed, in the words of the ground of appeal, “a previous homicide” was ameliorated by the fact that the jury had detailed evidence of the Appellant’s psychiatric and personal history, and knowledge that a finding of substantial impairment had been made with respect to him. 82. The fact that it may now be contended, with the benefit of hindsight, that it would have been preferable not to have the Appellant’s previous homicide placed before the jury, does not mean that this ground of appeal should be upheld. There were competing views available at the time of the trial, and trial defence

counsel settled on an approach which involved a “compromise” (see [55] above). 83. In any event, the trial Judge gave the jury detailed directions during the course of the trial, and again during the summing up, concerning the proper use of this evidence, and directing the jury not to use tendency reasoning with respect to it. In Gilbert v The Queen [2000] HCA 15; 201 CLR 414, McHugh J at 425–426 [31]– [32] said (footnotes omitted): [31] The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge’s directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one — accused, trial judge or member of the public — could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. It is of course true that, if a jury persists in returning a verdict that is contrary to law, the trial judge must accept it. But that only means in Lord Mansfield’s words that, although ‘[i]t is the duty of the Judge … to tell the jury how to do right … they have it in their power to do wrong’. [32] In my respectful opinion, the fundamental assumption of the criminal jury trial requires us to proceed on the basis that the jury acted in this case on the evidence and [page 387] in accordance with the trial judge’s directions and that they would have done so even if manslaughter had been

left as an issue, as it should have been left. In Spratt, Pidgeon J said, correctly in my opinion, ‘that an appellate court must proceed on the basis that the jury have understood and applied the law in reaching a true verdict’. 84. This Court should proceed upon the basis that the jury in this case followed the careful directions given twice by the trial Judge concerning use of evidence of the Appellant’s prior homicide. 85. I am not satisfied that a miscarriage of justice has occurred in this case. I would refuse the Appellant leave under Rule 4 to rely upon the first ground of appeal. Even if Rule 4 had no application to this ground, I would, in any event, reject the ground of appeal. …

Fitness to be tried 8.29 The defence of mental illness raises the question of the accused’s mental state at the time of the alleged crime. As Dixon J said in R v Porter (1933) 55 CLR 182 at 187 (see 8.13), when directing the jury on the legal requirements of insanity: You are not concerned, except for the purpose of finding out how he stood at that moment, what his subsequent condition was or what his previous condition was.

8.30 The mental state of the accused may also be relevant at the time of trial. A person who, at the time of his or her trial, demonstrates a severe mental illness, may be ‘unfit to be tried’. This may also be the case for a person with an intellectual disability, or any other condition which can affect the cognitive abilities. The fact that a person has a mental illness under the Mental Health Act 2007, or would have, at the time of the offence, qualified for the defence of mental illness under the M’Naghten Rules, does not automatically mean that that person is unfit to be tried. A person might be (or have been) mentally ill, but still be able to understand and participate in a trial. Equally, a person may be unfit to be

tried even if not displaying now, or having displayed at the time of the offence, features of a mental illness even so severe as to qualify for the defence, such as where the person has a profound intellectual disability. 8.31 The test for unfitness to be tried differs from that for the defence of mental illness. The test was set out in R v Presser [1958] VR 45 at 48 and cited with approval by Wood CJ at CL in R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 at [148]: He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in the general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel and by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need

[page 388] not of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.

8.32 In Kesavarajah v R (1994) 181 CLR 230 at 246; 123 ALR 463 at 475–476, the High Court of Australia, per Mason CJ, Toohey and Gaudron JJ, held, in the context of expert

evidence to the effect that ‘the appellant’s psychosis might flare up under stress during the course of what was obviously going to be a very long trial’, that: … the issue should have been left to the jury to determine. As it was, the trial judge decided not to empanel a jury. In reaching that conclusion, his Honour did not advert to the possibility that the appellant’s psychosis might flare up under stress … In the context of a trial, fitness to be tried is to be determined by reference to the factors mentioned by Smith J in Presser and by reference to the length of the trial. It makes no sense to determine the question of fitness to be tried by reference to the accused’s condition immediately prior to the commencement of the trial without having regard to what the accused’s condition will or is likely to be during the course of the trial. There is simply no point in embarking on a lengthy trial with all the expense and inconvenience to jurors that it may entail if it is to be interrupted by reason of some manifestation or exacerbation of a debilitating condition which can affect the accused’s fitness to be tried. Of course, that is not to exclude from the jury’s consideration the question whether the condition is such that difficulties can be accommodated by an adjournment if and when they arise.

See also R v Rivkin (2004) 59 NSWLR 284.

VOLUNTARINESS AND AUTOMATISM Introduction 8.33 An issue related to mental illness is automatism. The issue of mental illness, once raised by an accused, has relevance in two ways: first, to the capacity of the accused to perform a voluntary act, and second, to the capacity of the accused to form the necessary fault element for the offence (see 1.70–1.72). Automatism goes only to the former. Where

there is no conscious or voluntary action then there is no culpable action (or in some cases omission) of the accused that can be used to affix criminal responsibility. This was discussed to some extent in Chapter 2 when considering the physical elements of murder, the first of which is ‘an act of the accused’ (see 2.6 and following). 8.34 Automatism is related to mental illness because they both involve a disorder of the mind. If an accused person claims to have been acting as an automaton, and the cause of that automatism is a ‘disease of the mind’, then that person is really raising mental illness, with the consequence that he or she bears the burden of proving their mental illness (on the balance of probabilities) and, if successful, is liable to detention for an indefinite period. On the other hand, an accused raising a reasonable doubt that the action alleged to be the physical element of a crime was voluntary for reasons other than a disease of the mind is entitled to an acquittal. [page 389] 8.35 Having determined from M’Naghten (see 8.6) and Porter (see 8.13) the legal tests for mental illness sufficient to satisfy the M’Naghten test, it is now possible to understand automatism and the relationship between the two defences. But, before proceeding to a discussion of automatism, it is necessary to return to the discussion begun in Chapter 2 of unwilled acts and events occurring by accident.

Voluntary act 8.36 The definition of most crimes requires proof of a voluntary act (or a culpable omission) causing the forbidden result (eg, firing a gun at the victim, causing his death) and a fault element (satisfied in murder if, for example, there was an intent to kill). 8.37 As explained by the Model Criminal Code Officers

Committee (MCCOC), where the action was not a voluntary action the accused is ‘not guilty’ regardless of the consequences. MCCOC, General Principles Model Criminal Code Report, Chapters 1 and 2, December 1992, p 13 Despite the traditional analysis of crimes into actus reus and mens rea, the notion of what it means to act goes beyond mere physical movement. At a minimum there needs to be some operation of the will before a physical movement is described as an act. The physical movements of a person who is asleep, for example, probably should not be regarded as acts at all, and certainly should not be regarded as acts for the purposes of criminal responsibility. This would be inconsistent with the principle of free will which underlies the rules of criminal responsibility. These propositions are embodied in the rule that people are not held responsible for involuntary ‘acts’, ie physical movements which occur without there being any will to perform that act. This situation is usually referred to as automatism. In cases where the prosecution has to prove intent or recklessness, the practical operation of the voluntariness requirement is slight. This is because it will be far easier for the accused simply to argue that he or she lacked the necessary fault element. The degree of the impairment of the accused’s consciousness has to be profound before the claim that he or she did not intend to act at all will be credible. Further, for many offences where the mental element does not go beyond the immediate circumstances of the physical movement, the difference between voluntariness and intent almost disappears … .

8.38 The concepts of voluntariness and accident were explored by the High Court of Australia in Ryan v R (1967) 121 CLR 205, a case considered at length in Katarzynski (see 2.7). Ryan, inspired by a novel in which the hero commits a robbery in order to purchase tickets in a sweepstake for his parents, committed a robbery upon a service station in Carramar. Having acquired the money, Ryan attempted to bind V, who made a sudden movement, causing Ryan to

‘start’ and apply pressure to the trigger of the gun, which discharged and killed V. At the trial Ryan entered a plea of guilty to manslaughter, but not guilty to murder, but this was rejected by [page 390] the Crown. At his subsequent trial for murder he was convicted. The NSW Court of Criminal Appeal dismissed his appeal. He then unsuccessfully appealed to the High Court. Ryan v R (1967) 121 CLR 205 High Court of Australia Windeyer J: … What was urged is that the defence was really that the applicant did not voluntarily press the trigger: and it is said that this aspect was not presented to the jury. The event, it is now said, should be analysed as follows: The prisoner had the firearm pointing towards the man; his finger was on the trigger; the man suddenly moved; the prisoner was startled; he involuntarily pressed the trigger. I have no doubt that the words “accidental”, “accident”, “unintentional”, “unforeseen” and others by which apparently the defence to the charge of murder was variously expressed by counsel to the jury, and which were used by the learned judge when putting the defence to them, were intended to cover, and would be taken by the jury as covering, any view of the facts which might exculpate the accused from a charge of murder and induce them to find a verdict of manslaughter. The jury must be taken by the verdict to have rejected the defence that the homicide was accidental in any sense which would allow them to find it was manslaughter and not murder. It was not, as I read the record, suggested that the act which caused the death was an involuntary act for the consequences of which the accused was not responsible at all. Naturally, as the defence did not raise such an issue, no direction was explicitly given to the jury upon it; and the question was not argued in the Court of Criminal Appeal. Nevertheless an earnest argument was addressed to us, and I therefore pass to consider what is involved in the proposition that the act of the prisoner was involuntary. …

That an act is only punishable as a crime when it is the voluntary act of the accused is a statement satisfying in its simplicity. But what does it mean? What is a voluntary act? The answer is far from simple, partly because of ambiguities in the word ‘voluntary’ and its supposed synonyms, partly because of imprecise, but inveterate, distinctions which have long dominated men’s ideas concerning the working of the human mind. These distinctions, between will and intellect, between voluntary and involuntary action, may be unscientific and too simple for philosophy and psychology today. However that may be, the difficulty of expressing them in language is obvious and may be illustrated. The word “involuntary” is sometimes used as meaning an act done seemingly without the conscious exercise of the will, an “unwilled” act: sometimes as meaning an act done “unwillingly”, that is by the conscious exercise of the will, but reluctantly or under duress so that it was not a “wilful” act. Words and phrases such as involuntary, unintentional, inadvertent, accidental, unmeditated, unthinking, not deliberate, unwilled and so forth are used by different writers. Their connotations often depend upon their context, and they are used in discussions which seem to drift easily off into psychological questions of consciousness, sanity and insanity and philosophical doctrines of free-will and of events uncontrolled by will. There is a discussion of some aspects of this subject in the American work, Reflex Action, a Study in the History of Physiological Psychology. I mention it, not because I profess any knowledge in this field, but because of the readiness with which the phrase “reflex action” was used in the course of the argument as a presumably exculpatory description of the act of the applicant when he pressed the trigger of the firearm. [page 391] The conduct which caused the death was of course a complex of acts all done by the applicant — loading the rifle, cocking it, presenting it, pressing the trigger. But it was the final act, pressing the trigger of the loaded and levelled rifle, which made the conduct lethal. when this was said to be a reflex action, the word “reflex” was not used strictly in the sense it ordinarily has in neurology as denoting a specific muscular reaction to a particular stimulus of a physical character. The phrase was, as I understood the argument, used to denote rather the probable but unpredictable reaction of a

man when startled. He starts. In doing so he may drop something which he is holding, or grasp it more firmly. Doctor Johnson in his Dictionary — and his definition has been in substance repeated by others — said that “to start” means “to feel a sudden and involuntary twitch or motion of the animal frame on the apprehension of danger”. The Oxford Dictionary speaks of a start as “a sudden involuntary movement of the body occasioned by surprise, terror, joy or grief …”. But assume that the applicant’s act was involuntary, in the sense in which the lexicographers use the word, would that, as a matter of law, absolve him from criminal responsibility for its consequences? I do not think so. I do not think that, for present purposes, such an act bears any true analogy to one done under duress, which, although done by an exercise of the will, is said to be involuntary because it was compelled. [Author’s note: This analysis of duress is inconsistent with the analysis by the House of Lords in DPP for Northern Ireland v Lynch [1975] AC 653; [1975] 1 All ER 913 discussed in Chapter 9.] Neither does it, I think, bear any true analogy to an act done in convulsions or an epileptic seizure, which is said to be involuntary because by no exercise of the will could the actor refrain from doing it. Neither does it, I think, bear any true analogy to an act done by a sleepwalker or a person for some other reason rendered unconscious whose action is said to be involuntary because he knew not what he was doing. Such phrases as “reflex action” and “automatic reaction” can, if used imprecisely and unscientifically, be, like “blackout”, mere excuses. They seem to me to have no real application to the case of a fully conscious man who has put himself in a situation in which he has his finger on the trigger of a loaded rifle levelled at another man. If he then presses the trigger in immediate response to a sudden threat or apprehension of danger, as is said to have occurred in this case, his doing so is, it seems to me, a consequence probable and foreseeable of a conscious apprehension of danger, and in that sense a voluntary act. The latent time is no doubt barely appreciable, and what was done might not have been done had the actor had time to think. But is an act to be called involuntary merely because the mind worked quickly and impulsively? I have misgivings in using any language descriptive of psychological processes and phenomena, especially as I doubt whether all those skilled in this field employ their

descriptive terms uniformly. … [I] have come to the conclusion that if the applicant, being conscious of the situation in which he had put himself, pressed the trigger as a result, however spontaneous, of the man whom he was threatening making some sudden movement, it could not be said that his action was involuntary so as to make the homicide guiltless. The act which caused the death was, it seems to me, using the language of s 18 of the statute, an act of the accused. The question for the jury was whether it was an act done by him in such a way as to make the resulting homicide murder. …

8.39 Both at common law, and under the criminal codes which apply in Queensland, Tasmania and Western Australia (eg, Queensland and WA Codes s 23), the principle of voluntariness requires that, for the accused to be criminally responsible, the act must be willed in order to be criminal. This is apparent from Ryan. In Murray v R (2002) 211 CLR 193; 189 ALR 40, in which Ryan was applied, the High Court elaborated upon the question: ‘what act?’. The court did so in a manner [page 392] equally applicable in non-criminal code states such as New South Wales. Like Ryan, Murray was also considered at length in Katarzynski (see 2.7). Murray v R (2002) 211 CLR 193; 189 ALR 40 High Court of Australia Gummow and Hayne JJ: 31. On the night the deceased died, he and the appellant were drinking in the bar of an hotel. The appellant bought drinks for them both and they stayed until closing time. The appellant and the deceased left the hotel together and went, by car, to the appellant’s house. Less than half an hour after the hotel had closed, the appellant spoke to police by telephone and said that he had just shot a person. There was evidence from neighbours which, if the

jury accepted it, suggested that the shooting occurred about five minutes after the appellant had come home with the deceased. 32. The deceased was sitting in a chair in the living room of the appellant’s house when he was shot. According to the appellant, shortly after arriving home he went to the lavatory. While he was relieving himself the appellant heard the deceased, yelling to him from the living room, and offering to fight him. The appellant went to his bedroom and picked up his shotgun from under the bed. It was loaded. Holding the gun in his right hand, the appellant went into the living room. According to the appellant’s account in his evidence-in-chief, as he approached the deceased, the latter: 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. When asked by his trial counsel why he had taken the gun with him, the appellant said that he wanted the deceased to get out of the house, that he thought the sight of the gun would frighten the deceased, and that he would frighten the deceased with it and he would go. 33. The appellant maintained this version of events in crossexamination but, in addition, acknowledged that he might have cocked the gun at the time he pointed it at the deceased. Indeed, in answer to the question ‘You might have intended to point it at him cocked?’ he answered ‘Yes, I believe I did, yes.’ When asked where his finger was, he said ‘[i]t would have been somewhere around the trigger guard’ and that it ‘[c]ould well have been’ on the trigger. Nonetheless, he said he could not give an answer on why the gun went off. He denied pulling the trigger deliberately. 34. When, after police were called, the appellant was examined by a doctor, he was found to have a small puncture wound on his forehead, a scratch on his nose and an abrasion on the right chest. It may be supposed that at least the injury to the forehead was not inconsistent with the appellant’s account that he was struck on the head by something thrown by the deceased but it may be doubted

that the evidence at trial permitted any definite conclusion about what caused his injuries. … Like Ryan, the appellant, being fully conscious, had put himself in a situation in which he had his finger on (or at least near) the trigger of a loaded firearm and which he levelled at another. In these circumstances, was there an issue for the jury about whether there was an unwilled act, or an event occurring by accident, that was an issue separate from the issue about the intention with which the appellant [page 393] acted? The trial judge gave directions about accident and about intention, but gave no direction about unwilled acts. [After a detailed analysis of s 23 of the Code, and the relevant authorities, their Honours continued:] 49. In deciding what is the relevant act, it is important to avoid an overly refined analysis. The more narrowly defined is that ‘act’, the more likely it is that there will be thought to be some question about whether the accused willed that act. Or, to put the same point another way, the more precise the identification of a particular physical movement as the ‘death-causing act’, the more likely it is that it will be harder to discern a conscious decision by the actor to make that precise and particular physical movement. As HLA Hart pointed out more than 40 years ago, a theory which splits an ordinary action into three constituents — a desire for muscular contractions, followed by the contractions, followed by foreseen consequences — is a theory based on a division quite at variance with ordinary experience and the way in which someone’s own actions appear to that person. As Hart said (at 102), ‘The simple but important truth is that when we deliberate and think about actions, we do so not in terms of muscular movements but in the ordinary terminology of actions.’ 50. The difficulty of over-refinement can be exemplified by comparison of this case with the facts in Ryan. In Ryan, Windeyer J characterised what had happened as Ryan pressing the trigger ((1967) 121 CLR 205 at 245) ‘in immediate response to a sudden threat or apprehension of danger’. In this case, the appellant said

that the weapon discharged immediately upon his being struck by something the deceased threw at him. There seems little, if any, relevant distinction between the two descriptions. Of both it may be said that (Ryan (1967) 121 CLR 205 at 245): The latent time [between threat, or assault, and firing the weapon] was in each case no doubt barely appreciable, and what was done might not have been done had the actor had time to think. But to identify the ‘act’ as confined to that which was the immediate physical movement, a dorsiflexion of the finger (Timbu Kolian (1968) 119 CLR 47 at 64 per Windeyer J), made in response to a perceived threat, or in this case the alleged blow, so confines the time for choice by the actor as to invite the conclusion that the actor did the particular act without thought, and therefore without willing it. That is altogether too narrow a view of what is the relevant ‘act’ which, in this case, would divorce the contraction of the finger from the admittedly deliberate pointing of a loaded and cocked weapon at the deceased and its discharge. So to confine the understanding of the relevant ‘act’ would be to adopt an approach that over-refines the application of the criminal law, introducing nice distinctions that are not based upon substantial differences. 51. That is why the ‘act’ to which s 23(1) refers is not restricted to the appellant’s contracting his trigger finger. But what is encompassed by saying that it is the appellant’s discharging the loaded gun that must be willed? … [T]here is much force in the views expressed by Windeyer J in Ryan ((1967) 121 CLR 205 at 244) to the effect that the language of ‘will’ and ‘intellect’, ‘unintentional’ and ‘inadvertent’, is necessarily imprecise. … In the end, it must be accepted that the distinctions with which the cases grapple may be founded upon overly simple understandings of the way in which human beings act which are understandings that are not easily applied to cases at the margin. 52. In a case like the present, we do not think it useful to examine the problem by reference to presumptions that an act done by a person who is apparently conscious is willed or done voluntarily (Timbu Kolian (1968) 119 CLR 47 at 53 per Barwick CJ). Approaching the problem in that way may reveal which party must

raise the issue to have it considered — the so-called evidentiary burden of proof. It may even help the [page 394] tribunal of fact to decide what inferences can, or should, be drawn from evidence that the accused was conscious at the time of the act in question. But it is not an approach which tells the tribunal of fact how or when that tribunal may reach a conclusion contrary to the starting point provided by the presumption. 53. Rather than adopting approaches such as these, it is necessary to focus upon the relevant ‘act’. 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, for example, 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 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 (Falconer (1990) 171 CLR 30 at 61 per Deane and Dawson JJ). 54. In Ugle there was, on the evidence, a live question about whether the accused had struck the deceased with a knife or whether it was the deceased who had struck the knife which the appellant was holding. In this case, there was no issue of that kind. In this case, unlike Falconer, there was no question of automatism

(cf Falconer (1990) 171 CLR 30 at 35). In this case, unlike Woolmington, the appellant did not suggest that the weapon discharged when he was drawing it to show the victim how he, the appellant, intended to commit suicide (Woolmington v DPP [1935] AC 462 at 472). Rather, there was an issue about whether the appellant, presenting a loaded and cocked shotgun at the deceased, intended to kill him or do him grievous bodily harm. If, as the appellant said, he was struck by something thrown by the deceased and, as a result, he started, and in doing so pulled the trigger, his ‘act’ did not occur independently of his will. 55. Thus, in this case, the central issue for the jury in considering the charge of murder was did the appellant intend to fire the weapon or merely present it to frighten the deceased? That is, the question was whether, in acting as he did, the appellant intended to kill or do grievous bodily harm, or had the prosecution not excluded the possibility that, as the appellant said, he had intended only to present the weapon in order to frighten the deceased. That was the subject matter of the issue which the trial judge identified for the jury. If persuaded to the requisite standard of proof that the appellant intended to kill or do grievous bodily harm to the deceased, the jury would have been correct in returning a verdict of guilty of murder. Was the jury properly instructed about the burden of proof? … [On the issue of burden of proof their Honours said:] 57. Although at the start of her directions about murder her Honour told the jury that it was for the prosecution to prove that the appellant had intended to kill or do grievous bodily harm, the references she made, particularly in the passage of the directions set out earlier, to the jury accepting the accused’s evidence or version of events were apt to [page 395] mislead the jury about the decision they had to make. The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.

[Gaudron, Kirby and Callinan JJ agreed with Gummow and Hayne JJ. Appeal allowed. New trial ordered.]

8.40 In Whitfield, the Court of Criminal Appeal applied Murray (above at 8.39). R v Whitfield [2002] NSWCCA 501 NSW Court of Criminal Appeal Carruthers AJ: 3. Jonathon Troy Whitfield (the appellant) appeals against his conviction at the Wollongong Supreme Court on 1 May 2001 on one count of murder. … 7. In the early hours of 11 January 1999 the appellant and three other young persons, as a consequence of a prior agreement between them, broke into Mr Mason’s home for the purpose of robbing him of valuables and money which they had been informed were kept in his safe. Two of the offenders were armed with knives and one was armed with a metal bar or pole which had been broken off a supermarket trolley. During the course of the robbery Mr Mason was stabbed to death. This is the background to the murder count against the appellant. … 8. The appellant, who was born on 23 September 1981, was a resident of Berkeley. 9. His co-offenders were TP, who was aged fifteen at the date of the offence, RG, who was aged twelve, and PL, who was also aged twelve at the date of the offence. 10. TP was also a resident of Berkeley. RG and PL, on the other hand, were residents of Marrickville who were visiting Berkeley at the time of the armed robbery. 11. All offenders were originally charged with murder. However, TP, PL and RG had their charges reduced to robbery in company to which they each pleaded guilty. Prior to their being called to give evidence at the subject trial, they were each granted an immunity from prosecution for murder, upon undertakings given by them to give truthful evidence at the trial of the appellant for murder. …

12. In order to get the factual situation into true perspective, it is convenient to note the following findings of fact which his Honour made for the purpose of the sentencing proceedings. They involve a concise summary of the relevant evidence and, with respect, were the appropriate findings to which the totality of the evidence led. The offender entered Mr Mason’s house with three other offenders. … I cannot say if the offender intended to kill Mr Mason but I have no doubt he intended to cause him very serious injury, probably in a panic to escape. Whilst it is clear that he intended, at least, to threaten Mr Mason, the offender probably did not think much further about the likely consequences of wielding a knife in that way. I do not, however, think that he took a backward step. The fact that three wounds, all serious, were inflicted by him demonstrates both a decision and an intention to cause very serious injury. … [page 396] … 14. The foundational crime upon which the Crown relied for the purposes of felony murder was armed robbery with wounding under s 98 of the Crimes Act 1900 (the Act). … 27. The reality is that by the time the jury retired to consider their verdict the conclusion was almost irresistible that the appellant had stabbed Mr Mason on more than one occasion, thereby wounding him, and causing the injuries from which he shortly thereafter died. … 76. The passages in the summing-up in which his Honour dealt with the question whether, for the purposes of felony murder, the fatal wounding was caused by a voluntary act, and the question of accident, are set out hereunder: … [The lethal wound] must be caused by a voluntary and not accidental act, though it does not need to be intentional. Thus, even if you considered that Mr Mason

may have been wounded when he rushed one of the young men holding a knife and the wounds were caused unintentionally in the struggle, that would not mean that they were caused accidentally in the relevant sense. In the circumstances here, the presenting of the knife, the participation in the struggle and the failure to let the knife go all would be voluntary acts for the purpose of establishing criminal liability. The mere fact that the fatal wound might be inadvertent would not provide any excuse. … Merely because it happens in the course of a struggle and it was not intended that the wound occur, does not mean that it was accidental. When you present a knife and someone rushes at you, in a very real sense, wounds caused in that struggle may not be regarded as accidental at all. They follow by reasonable cause and effect from the presentation of the knife in that circumstance. 77. It was submitted by counsel for the appellant that his Honour’s directions demonstrated confusion and error, because they create the impression that ‘just because the wounding in circumstances described by the trial judge are not accidental it necessarily meant that the act causing death was a willed act’. This, it was submitted, is incorrect. It was submitted that his Honour should have made a distinction between the act which caused the wound on the one hand and the series of actions or the event as a whole which could be described as the causae sine qua non in the process leading to the wound. In this sense, it was argued, his Honour made it very difficult for the jury to identify with precision what exactly was the act of the appellant which caused the death to be murder. 78. In the instant case no clear distinction seems to have been drawn during the course of the trial between the act which caused the wounding for the purposes of the foundational offence and the act which caused the death for the purposes of establishing murder under the felony murder rule. This does not seem to be uncommon in cases where a knife is used during the course of an armed robbery with wounding. In an appropriate case such as the present it can cause no embarrassment to the accused. …

Applying the principle in Murray [see 8.39] … to the evidence in the instant case, they lead, in my view, to the conclusion that the evidence did not raise an issue either as to voluntariness or accident. 104. If there had been an issue about these two matters, the obligation rested upon the prosecution to satisfy the jury beyond reasonable doubt that firstly the act causing death was a willed act, and, if so, the death was not caused by accident. These would have been jury questions. [page 397] 105. What occurred in the instant case, however, is that his Honour directed the jury that, for the reasons which he explained, no issue arose as to either of those matters. In my respectful opinion his Honour was perfectly entitled to do so. … [Heydon JA and Hulme J agreed with the order of Carruthers JA that the appeals be dismissed.]

Non-insane automatism 8.41 An action may be involuntary if the accused person acted as an ‘automaton’, that is, if that person’s actions were independent of his or her ‘will’ due to any of a number of possible causes. Some possible causes of automatism are: deep stress causing depersonalisation or dissociation (R v Radford (1985) 42 SASR 266); and a blow to the head causing concussion (R v Wakefield (1958) 75 WN (NSW) 66). 8.42 Automatism can deprive the accused’s actions of their voluntariness, and thus prevent the prosecution from establishing the physical elements of an offence. The accused must satisfy the evidential burden of raising automatism, which the prosecution must then negative beyond reasonable doubt. 8.43 Falconer is the leading authority on automatism. It was

cited throughout the cases extracted in the previous discussion of ‘voluntary act’. The High Court considered the relationship between insanity and insane and non-insane automatism. One issue that arose is the question of the onus of proof. The accused bears the onus of proof with respect to the defence of mental illness but what of automatism? R v Falconer (1990) 171 CLR 30 High Court of Australia [The appellant was convicted of the murder of her husband after a long history of domestic violence. The appellant had discovered that her husband had sexually abused their now adult children. Before the shooting he had taunted her by stating that he had had sexual dealings with a young girl who had been in her care and control. On the day before the shooting he had entered her home, sexually and physically abused her and taunted her that she would not be believed by the court in pending criminal matters against him. The appellant said she remembered nothing after this abuse until she found herself on the floor with her shotgun by her and her husband dead on the floor nearby. The appellant sought to lead evidence to support a claim for non-insane automatism. The evidence was rejected and she was convicted of murder. She appealed to the Court of Criminal Appeal (WA) which allowed the appeal and ordered a new trial. The Crown appealed to the High Court.] Deane and Dawson JJ: … [T]here may be cases, perhaps rare, in which the evidence allows alternative contentions, namely, that an accused’s acts were involuntary either [page 398] by reason of mental disease or natural mental infirmity or by reason of the operation of events upon a normal mind. Where that occurs, there is the apparent incongruity identified by Dixon CJ in his paper entitled “A Legacy of Hadfield, M’Naghten and Maclean”, (1957) 31 Australian Law Journal 255. The incongruity appears to arise because of the different burdens of proof affecting, on the one hand, insanity (and, hence,

involuntariness arising from insanity) and, on the other, involuntariness arising from the operation of events upon a normal mind: insane automatism and sane automatism. The problem is complicated by the consideration that it is no longer entirely appropriate to speak of insanity as a defence, having regard to the fact that the consequences of successfully raising the plea go beyond negativing volition or intent. True it is that insanity operates to produce an acquittal, but it is seldom raised by an accused now that there are no capital offences, because incarceration at the Governor’s pleasure may be a harsher penalty than conviction and sentence. Indeed, nowadays it is often in the interests of the prosecution (or, at all events, the community) to raise the question of insanity, rather than in the interests of the accused. It used to be said that it was for the defence to raise a plea of insanity and not for the prosecution. That is probably still the case, but we think that the position has now been reached where it is only realistic to recognize that, if there is evidence of insanity, the prosecution is entitled to rely upon it even if it is resisted by the defence. … It may be anomalous for the prosecution to raise the matter initially because the prosecution should not commence proceedings if it is seeking an acquittal, even on the grounds of insanity. The responsibility for the protection of the community in those circumstances lies elsewhere than in the criminal law. But we can see no reason why, if there is evidence which would support a verdict on the grounds of insanity, the prosecution should not be able to rely upon it in asking for a qualified acquittal as an alternative to conviction. The important thing is, however, that an accused is entitled to an acquittal if the prosecution fails to prove that his acts were voluntary. When, on the evidence, an accused’s acts can only have been involuntary if he was suffering from a mental disease or natural mental infirmity, the prosecution is entitled to rely upon the presumption that every person is of sound mind. That means that a defence of insane automatism can only succeed if it is established on the balance of probabilities. But if on the evidence an accused’s acts may have been involuntary as a result of the operation of events upon a sound mind — as a result of sane automatism — then a reasonable doubt about the voluntariness of those acts will be sufficient to entitle him to acquittal. In such a case, there will be

a reasonable hypothesis consistent with both innocence and a sane mind and we do not conceive it to be the policy of the law that in that event there should be either a conviction or indefinite committal to an institution for the criminally insane. The law is possibly open to the criticism that it envisages the release of a person who may, on the balance of probabilities, be violently insane. That is, however, a matter to be dealt with by the means otherwise available for protecting the community from such persons and, if those means are thought to be inadequate, by legislative intervention. It follows that, in a case where an issue of sane automatism is raised by positive evidence (including expert medical opinion), an accused will be entitled to an acquittal if the prosecution fails to disprove sane automatism beyond reasonable doubt. In that event, the jury will need to go no further. If, however, the prosecution disproves sane automatism and the evidence raises the question of insane automatism, the jury will have to ask themselves whether, on the balance of probabilities, the evidence establishes insanity … That will, as we have said, embrace insane automatism. If the evidence does establish insanity, an accused will be entitled to an acquittal, but the jury will be required to say that the acquittal is on account of unsoundness of mind. If [page 399] the prosecution does disprove sane automatism and if insanity is not established on the balance of probabilities, in the absence of any other defence the jury should convict. [Toohey and Gaudron JJ delivered judgments in substantially similar terms to that of Deane and Dawson JJ. The court unanimously dismissed the appeal. Mason CJ with Brennan and McHugh JJ in a minority judgment agreed that the Commissioner hearing the case at first instance had erred in rejecting the evidence that Mrs Falconer sought to lead, but reached a different conclusion on the key issues. In particular, they held the view that the burden of proof lay on the accused to establish automatism (both sane and insane) and that a finding of automatism would constitute a finding of ‘unsoundness of mind’ (under the WA Criminal Code) or “insanity” under the common law unless the accused could establish, on the balance of probabilities, that the

cause of the automatism met three “exempting qualifications”. An extract follows.] Mason CJ, Brennan and McHugh JJ (at 56–57): When an accused raises automatism and assigns some malfunction of the mind as its cause, he raises a defence of unsoundness of mind or insanity unless the malfunction of his mind was (1) transient (2) caused by trauma, whether physical or psychological, which the mind of an ordinary person would be likely not to have withstood and (3) not prone to recur. A malfunction of the mind other than a malfunction which satisfies those exempting qualifications amounts to a disease of the mind, or a mental disease or natural mental infirmity. As an accused bears no ultimate onus of proving that his act was not willed, in theory an accused may raise the issue of non-insane automatism on the evidence and claim to be acquitted outright unless the prosecution disproves the issue. But in practice an accused does not raise noninsane automatism by raising automatism based merely on mental malfunction. Prima facie, mental malfunction is the consequence of mental infirmity and, until it be proved that a particular instance of mental malfunction satisfies the exempting qualifications, mental malfunction must be treated as a consequence of mental infirmity. It follows that, unless and until the automatism on which an accused relies is proved to be merely a transient mental malfunction of his otherwise sound mind caused by trauma and that the malfunction is not likely to recur, both s 26 of the Code and the common law preclude consideration of automatism for the purpose of determining whether the incriminated act was willed or voluntary. If an accused proves on the balance of probabilities that he was acting as an automaton when the act was done by reason of mental malfunction but fails to prove that his mental malfunction satisfied the exempting qualifications, he is entitled to be acquitted on account of unsoundness of mind or on the ground of insanity. However, if he proves that his mental malfunction satisfied the exempting qualifications, he is entitled to an outright acquittal. (To cast this onus on the accused does no violence to the principle in

Woolmington v The Director of Public Prosecutions, for the issue is not one of criminal responsibility but the cause of the condition which deprived the accused of criminal responsibility.) In some instances (for example, concussion caused by physical trauma), the accused may be able to prove on the balance of probabilities at the outset that, if there were any malfunction of the mind which deprived him of the capacity to know the nature and quality of his act or to control his actions, the malfunction satisfied the exempting qualifications and therefore did not flow from an underlying mental infirmity. In such a case, the onus shifts to the prosecution to prove beyond reasonable doubt that there was no malfunction or that it did not affect the accused’s control of his actions. But in cases [page 400] where the accused, claiming to have acted as an automaton by reason of a transient malfunction precipitated by psychological trauma, seeks to take the malfunction out of the prima facie classification of unsoundness of mind or insanity, the onus of proving the exempting qualifications can hardly be discharged before the malfunction itself is proved. Where the accused succeeds in proving that the relevant act was done in a state of automatism by reason of a malfunction of his mind, he is at risk of a qualified verdict of acquittal (under s 653 or a provision corresponding with that section) unless and until he succeeds in discharging the onus of proving the exempting qualifications on the balance of probabilities. A mental malfunction which deprives an accused of the capacity to control his actions (or to know the nature and quality of his act) and which does not fulfil the exempting qualifications amounts to unsoundness of mind (under the Code) or insanity (at common law). (As the terms ‘unsoundness of mind’ and ‘insanity’, like the terms ‘willed’ and ‘voluntary’, are interchangeable we shall follow the Code terminology.) That being so, an accused cannot rely on a mental malfunction to deny that an act done by him was willed unless it be proved that the qualifying conditions are fulfilled or that the accused was labouring at the time under an unsoundness of mind. If neither fulfilment of the exempting qualifications nor unsoundness of mind be proved on the balance of probabilities to account for a supposed absence of will, the jury cannot find that

there may have been a mental malfunction which might have produced that result.

8.44 The minority view of Mason CJ, Brennan and McHugh JJ in Falconer has come in for criticism (see P Fairall, ‘Voluntariness, Automatism and Insanity: Reflections on Falconer’ (1993) 17 Crim LJ 81). 8.45 The relevant principles were considered by the Court of Criminal Appeal in Youssef. In that case Hunt J commented on the unsatisfactory state of the law relating to the defence of mental illness. Youssef was decided before the decision in Falconer was handed down. R v Youssef (1990) 50 A Crim R 1 NSW Court of Criminal Appeal [The appellant was convicted of manslaughter after the car he was driving moved across the road, mounted a footpath and struck and killed a young girl. The Crown alleged manslaughter by criminal negligence. The appellant’s defence was that he was suffering from an epileptic seizure so that any actions were not voluntary at the time of the collision.] Hunt J: … It is clear law that the Crown bears the onus of establishing each ingredient of the offence which has been charged. That is the ‘golden thread’ which runs throughout the web of the criminal law: Woolmington v DPP [1935] AC 462 at 481– 482. That obligation of the Crown is subject to exception only in relation to the defence of mental illness (an exception to which I will return), and in cases where the onus of proof in relation to a particular issue is placed upon the accused by statute: ibid at 475, 481; Mancini v DPP [1942] AC 1 at 11. In relation to every other issue which may arise at the trial, the Crown bears the onus of proof; many such issues are frequently (but misleadingly) called ‘defences’. [page 401] The Crown must therefore remove any reasonable possibility that the act of the accused was accidental: Woolmington v DPP at 482; or that it was involuntary as a result of a state of automatism: Bratty

v AG for Northern Ireland [1963] AC 386 at 407, 414, 415; Ryan v R (1967) 121 CLR 205 at 215–216; or as a result of duress: R v Gill [1963] 1 WLR 841 at 846; R v Lawrence [1980] 1 NSWLR 122 at 131. The Crown must also remove any reasonable doubt raised by the accused’s intoxication in determining whether the accused had formed the state of mind required for the offence charged: R v O’Connor (1980) 146 CLR 64 at 71, 88, 118; R v Coleman (1990) 19 NSWLR 467 at 486; as well as any reasonable possibility that the act of the accused was provoked: Moffa v R (1977) 138 CLR 601 at 607, 612, 628; or done in self-defence: Zecevic v DPP (1987) 162 CLR 645 at 654, 657, 681, 686. That legal onus upon the Crown does not mean, however, that the Crown must bring evidence to meet every such ‘defence’ which could possibly arise in relation to the offence charged. In every case, the accused bears an evidentiary onus to point to or to produce evidence (or material in an unsworn statement) from which it could be inferred that — as I would prefer to put it — there is at least a reasonable possibility that, for example, the act of the accused was accidental, or that it was provoked or done in selfdefence … The authorities make it clear that such a reasonable possibility must be shown by admissible evidence. … [T]here must be evidence from which it could be inferred that there is the reasonable possibility that the act of the accused was of such a nature. It was in that second sense, I believe, that Lord Morris intended the following passage in Bratty v AG (at 416): Before an explanation of any conduct is worthy of consideration such explanation must be warranted by the established facts or be supported by some evidence that has been given by some witness. In Peacock v R (1911) 13 CLR 618, when dealing with the analogous issue in a circumstantial evidence case of whether there is any explanation reasonably open which is consistent with the innocence of the accused (and which the Crown must exclude), O’Connor J said (at 661–662): The bare possibility of innocence should not prevent a

jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence. … In drawing an inference of guilt, or in declining to draw it, the jury must act upon the facts established in evidence, and if the only inference that can reasonably be drawn from those facts is that of the prisoner’s guilt, it is their duty to draw it. They cannot evade the discharge of that duty because of the existence of some fanciful supposition or possibility not reasonably to be inferred from the facts proved. Those principles were said by the High Court to be well settled in Australia: Barca v R (1975) 133 CLR 82 at 104. … Automatism … may be relevant to two different issues in a criminal trial. It may be relevant to whether the Crown has established that the actions of the accused were voluntary and, if the evidence of the existence of that condition raises a reasonable doubt as to whether the actions were of that character, the accused is entitled to be acquitted outright. Automatism may also be relevant to the defence of mental illness, in that it may establish that, as a result of a defect of reason proceeding from a disease of the mind, the accused did not appreciate the nature and quality of his physical act (the first branch of the M’Naghten Rules), leading to the special verdict of not guilty on the ground of mental illness but not to an outright acquittal. If the effect of any disease is to impair a person’s mental faculties of reason, memory and understanding so that he [page 402] does not know what he is doing, it matters not whether the impairment is permanent or transient and intermittent or whether the cause of that impairment is organic (as in epilepsy) or functional: R v Sullivan [1984] AC 156 at 172–173. The mere fact that the automatous state resulted from an epileptic seizure does not of itself assist in identifying the particular issue to which that state will be relevant. The possible causes of epilepsy are many and varied. According to the medical text books,

epilepsy may be caused by brain damage due to birth trauma, by cerebral thromboses of childhood associated with various fevers, by head injuries or brain tumours at any stage of life or by cerebral infections from various diseases (such as hypoglycaemia, or abnormal decreases in blood sugar) or by cerebral vascular disease in later life. Epilepsy may therefore in some cases lead to an acquittal because the actions of the accused have not been shown by the Crown to be voluntary; in other cases it will establish that the accused did not know what he was doing, as a consequence of a disease which had impaired his mental faculties of reason, memory and understanding leading to a verdict of not guilty on the ground of mental illness. This duality of relevance has led to a distinction being made in the cases between insane and sane (or non-insane) automatism, an intellectually unhappy and artificial distinction which at times produces both unsatisfactory and inconvenient results and a distinction which is often difficult of application. The clearest statement of the distinction is that of King CJ in R v Radford (1985) 20 A Crim R 388 at 397–398: The significant distinction is between the reaction of an unsound mind to its own delusions or to external stimuli on the one hand [the insane automatism] and the reaction of a sound mind to external stimuli, including stress producing factors, on the other hand [the sane automatism]. Obvious examples of the latter category may be loss of control caused by physical factors (a blow to the head or the effects of chemical substances or intoxication) or by psychological or emotional stress. Another example often given in the cases is that of a sleepwalker; it appears to have been given for the first time in R v Tolson (1889) 23 QBD 168 at 187. Only evidence properly characterized as demonstrating sane automatism is relevant to the issue of voluntariness. The cases say that, if the evidence demonstrates that the automatism is referable exclusively to a disease of the mind (that is, insane automatism), it is relevant only to the defence of mental illness. If the evidence is capable of demonstrating either form of automatism, then it must be left to the jury for them to decide whether (upon the evidence which they accept) the automatism was sane or insane in nature

and to consider accordingly in relation to whichever issue it thereby becomes relevant. (I shall comment later upon some of the difficulties which flow from that situation.) Those propositions were authoritatively stated by the (Irish) House of Lords in Bratty v AG for Northern Ireland at 403–404, 410, 415, 417–419. Many of the other authorities are collected by King CJ in R v Radford at 395. The distinction is justified in both Bratty (per Lord Denning at 410) and Sullivan (per Lord Diplock at 172) upon the basis that, if the person who commits the crime suffers from a disease of the mind which caused him to do so, he must be kept secure so as not to be a danger to others. The distinction between sane and insane automatism is well enshrined in the law of this State: R v Tsigos [1964–5] NSWR 1607 at 1608– 1609, 1620–1621, 1629–1630; R v S [1979] 2 NSWLR 1 at 56–60. It is now beyond this Court’s proper function to depart from that distinction and, until the High Court or the legislature intervenes to remove it, the distinction must continue to be regarded as authoritative. [His Honour then reviewed the evidence that the appellant had sought to rely on to establish non-insane, or sane, automatism and continued:] … [page 403] The principal ground of appeal argued before this Court was that the judge’s ruling excluding sane automatism (leading to an outright acquittal) was wrong. In my view, that ground is made out. … The only logical approach for the jury in a case where both voluntariness and mental illness are in issue is to determine: (1) whether the Crown has established that the act causing death or injury (or whatever) was the act of the accused; (2) whether the Crown has established that the accused knew what he was doing at the time (that is, that it was his voluntary act); and (3) whether the accused has established that he did not know what he was doing at the time (that is, that he was suffering from a mental illness).

In directing the jury upon these issues, the judge is required to tell them that they must approach the question of whether the Crown has established that the accused knew what he was doing without reference to what may be clear evidence that he did not (tendered upon the issue of whether he was suffering from mental illness at the time). The jury, the judge will say, must proceed by reference to the presumption that the accused was sane and that he therefore knew what he was doing, until he proves to the contrary … That direction seems to me, with respect, to be just as dangerous as one that an accused is presumed to have intended the natural consequences of his acts, disapproved by the High Court in Stapleton v R (1952) 86 CLR 358 at 365; Smyth v R (1957) 98 CLR 163 at 166–167; Thomas v R at 596–597; Parker v R (1963) 111 CLR 610 at 632. However, where medical evidence — depending upon how it is properly to be interpreted — is capable of being regarded as being relevant to either the issue of voluntariness (for example, sane automatism) or the issue of mental illness (for example, insane automatism), the jury would first have to determine its proper interpretation. It is obviously enough in the interests of the accused that the jury should conclude that he was suffering from sane automatism, thereby entitling him to an outright acquittal, rather than from insane automatism, leading to incarceration in accordance with the relevant mental health legislation. It is therefore odd, to say the least, that the legal onus relating to the issue of voluntariness lies upon the Crown, whereas the legal onus relating to mental illness lies upon the accused. That task of interpretation, with all of the difficulties involved in the conflicting onuses and interests, would necessarily have to be performed by the jury before the second of the issues which I have stated above in their otherwise logical order. If the jury concludes that the evidence establishes a state of insane rather than sane automatism, and if no other material is put forward, no issue arises as to the voluntariness of the act of the accused and the Crown does not have to establish that the accused knew what he was doing at the time when he did that act. Instead, the accused has to establish that he did not know what he was doing at that time. If the jury concludes that the evidence establishes a state of sane rather than insane automatism, the Crown has to establish that the

accused did know what he was doing. If no other material is put forward, no issue of mental illness arises. The directions which have to be given to the jury to make this clear are unnecessarily complicated. None of the cases discusses what issues have to be determined if the jury are unable to conclude one way or the other what is the proper interpretation of the evidence in question. If the evidence falls short of establishing that the accused did not know what he was doing (and thus of establishing the defence of mental illness leading to the special verdict of not guilty on the ground of mental illness), the same evidence may nevertheless create a reasonable doubt that the accused did know what he was doing [page 404] (and thus a reasonable doubt that his act was voluntary, leading to an outright acquittal). That is also an odd result. The law should not be in such a complicated state. It is unnecessarily confusing for juries, who are ill-suited to determine the intricacies of the medical evidence often involved. The only stated justification for maintaining this exceptional (and illogical) rule in relation to the onus of establishing mental illness is that, if such an illness causes a person to act in a way which would otherwise be criminal, he must be kept secure so as not to be a danger to others. That very worthwhile object can far more usefully be achieved by the civil law providing for committal to an institution (or some other form of care) if that causal connection be established by the authorities. It should not be achieved at the cost of the destruction of a basic principle of the criminal law, that the Crown must establish that the act of the accused was in fact voluntary, and at the cost of the confusion which is the necessary consequence of that destruction. Such a purpose involves, as Dixon CJ suggested (31 ALJ at 260), a confusion between the administration of the criminal justice system and the administration of the law relating to mental illness. The law is in urgent need of reform. [Wood and Finlay JJ agreed with the orders and reasons of Hunt J. Appeal allowed. New trial ordered.]

8.46 Hunt J (whose observations in Youssef are extracted

above) was called upon again to comment on the distinction between insane and non-insane automatism in Lainson. R v Lainson (Unreported, 21 June 1995) NSW Supreme Court [The accused was charged with the murder of his grandmother. Pursuant to the Criminal Procedure Act 1986 s 32, the trial was conducted before Hunt J without a jury.] Hunt J: [footnotes omitted] … I am required in my judgment to include not only the findings of fact upon which I have relied, but also a statement of the principles of law which I have applied in making those findings. The accused pleaded that he is not guilty. Each ingredient of the crime of murder must therefore be established by the Crown to my satisfaction beyond reasonable doubt. The relevant ingredients of the crime in this case are that it was the act of the accused which caused the death of his grandmother, and that that act was done by the accused with an intention to kill her. The accused raised the defence of mental illness. Such a defence is now specifically provided for by statutes. It arises where evidence is given that the accused was at the time when he did the act charged ‘mentally ill, so as not to be responsible, according to law, for his or her action’, and it requires a special verdict to be returned that the accused is not guilty by reason of mental illness. The defence of mental illness itself remains undefined, and the M’Naghten Rules continue to apply. According to those Rules, a person is mentally ill if, at the time when he did the act charged, that person was labouring under such a defect of reason from disease of the mind as not to know the nature or quality of that act or, if such was known to that person, that defect of reason was such as to prevent him from knowing that that act was wrong — wrong in the sense that the ordinary reasonable person would know that such an act was wrong. The accused bears the onus of establishing [page 405] either one or the other limb of that defence on the balance of probabilities — that is, that more probably than not what he asserts is true …

[E]vidence of mental illness is relevant to the question as to whether the accused’s act was done with the specific intent charged — here, with an intention to kill. The High Court went on to hold that, in principle, the order in which the issues should be determined in a case where there is evidence of mental illness is: (1) Was it the act of the accused which caused the death of the deceased? (2) Was he criminally responsible for doing that act? (3) Was the act done with an intention to kill? The second question is really whether the defence of mental illness has been established. The third question arises only if the second question is answered adversely to the accused and, in those circumstances, the evidence of mental illness (even though insufficient to make out the defence) is relevant to the issue of specific intent. That evidence is not relevant to the issue as to whether the act of the accused was a deliberate one. There is no dispute that it was the act of the accused which caused the death of his grandmother. On his own account to the police, which has not been challenged, he struck her repeatedly on the head with an axe. The photographs in evidence show that her head was severely mutilated as a result, and there could be no doubt that it was these blows which caused her death. … [His Honour then reviewed the evidence of three psychiatrists who had either examined the accused or given an opinion for the purpose of the proceedings, and continued:] … All three psychiatrists are agreed that, at the time when he killed his grandmother, the accused was labouring under such a defect of reason from disease of the mind as to prevent him from knowing that his act was wrong — that is, that he satisfied the second limb of the M’Naghten Rules. [T]he Crown did not dispute the evidence of the three doctors that the accused was suffering from such a disease of the mind, but he nevertheless submitted that I should make my own decision as to whether the defence of mental illness had been made out. As I understood his argument, the issue which he wanted me to consider was one of causation. He relied upon the discussion relating to a disease of the mind in the context of the M’Naghten Rules in R v Falconer. The joint judgment of Mason CJ, Brennan

and McHugh JJ expressly accepts as a correct statement of the common law the judgment of King CJ in R v Radford. … I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as a disease of the mind as that expression is used in the M’Naghten Rules. … The essential notion appears to be that, in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called ‘defect of reason’ in the M’Naghten Rules must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli. The joint judgment in R v Falconer states that the dichotomy between mental illness and a healthy mind is correctly drawn, but the judgment continues: However, we would think it necessary that a temporary mental disorder or disturbance must not be prone to recur if it is to avoid classification as a disease of the mind. That is because a malfunction of the mind which is prone to recur reveals an underlying pathological infirmity. Subject to that qualification, the law is as stated by King CJ in the passage cited. The negative sense in which that proposition is stated is explicable by the fact that the accused in Falconer’s case had unsuccessfully sought at the trial to lead psychiatric evidence of a mental condition of non-insane automatism which, if accepted, would [page 406] have lead to an outright acquittal because her act of shooting her husband had occurred independently of the exercise of her will. It was held by the High Court that the evidence should have been admitted upon that issue, but that it would not have been admissible upon that issue if it had demonstrated mental illness

leading to the qualified verdict of not guilty by reason of mental illness. Hence the importance of the dichotomy between the reaction of an unsound mind to its own delusions and the reaction of a sound mind to external stimuli such as the consumption of chemical substances or intoxication. Similar approval is given to the judgment of King CJ in R v Radford in the joint judgment of Deane and Dawson JJ in R v Falconer describing it as a convincing discussion of relevant principle. Toohey J also quotes the judgment with approval, as does Gaudron J. The effect of that decision in R v Falconer is that, in order to obtain an outright acquittal, the evidence must show that there is a reasonable possibility that the sane automatism was sufficient by itself to have deprived the accused of his capacity to control his actions. Once it appears that the incapacity to control his actions was caused by a disease of the mind, he may be acquitted only by the qualified verdict of not guilty by reason of mental illness. So far as it [affects] the existence of a disease of the mind in the present case, the decision in R v Falconer underlines what had previously been understood to be the law — that there is no disease of the mind so far as the M’Naghten Rules are concerned if there is merely a temporarily inefficient working of a healthy mind due only to external stimuli such as drugs or alcohol. That is not the present case according to the evidence. Accordingly, I find the defence of mental illness has been made out by the accused. There is therefore no need for me to determine whether his act of killing his grandmother was done with an intent to do so, but for more abundant precaution I should add that I am satisfied beyond reasonable doubt that he did intend to kill her because of his delusional belief that she was Satan, and notwithstanding that he did not know that his act was wrong. I find the accused not guilty of the murder of Ellen Margaret Manias by reason of mental illness. In accordance with s 39 of the Mental Health (Criminal Procedure) Act, I order that he be detained in strict custody in the Long Bay Prison Hospital, Sydney, or in such other place as the Mental Health Review Tribunal may later determine, until released by due process of law.

Commentary on automatism 8.47 In 2005 Bernadette McSherry wrote in her article ‘It’s a Man’s World: Claims of Provocation and Automatism in “Intimate Homicides”’ (2005) 29 (3) Melbourne University Law Review 905 that one solution to many of the existing problems surrounding the defence of automatism would be to proffer a limited statutory definition of the term (at 927–928, footnotes omitted): Automatism means involuntary behaviour that occurs in an altered state of consciousness and which is compulsive, repetitive and simple. It does not mean goal-directed or purposive behaviour performed when in an altered state of consciousness. The problem with this definition is that it only enacts one approach to sane automatism: that usually given by expert witnesses called by the prosecution. It takes into account just one philosophical perspective and defence expert witnesses would no doubt take exception to it.

[page 407] Nevertheless, the scope of automatism is a legal rather than a medical matter. An analogy may be drawn with the term “disease of the mind” under the M’Naghten rules. This term bore no relation to medical thinking, but, through interpretation by the courts, served to limit the types of conditions that could give rise to the cognitive defence of insanity. There is nothing to prevent the legislature defining what is meant by automatism in such a manner as described above. The Canadian Psychiatric Association has suggested that automatism be subsumed within the existing Canadian defence of “not criminally responsible on account of mental disorder”. I have argued elsewhere that a broadened defence of mental impairment, perhaps called a defence of “cognitive dysfunction”, could encompass states of dissociation. Such a

defence could read as follows: “A person is not criminally responsible for an offence if he or she was suffering from a mental impairment at the time of the commission of the offence such that his or her ability to reason was substantially impaired.” “Mental impairment” could then be defined broadly to include mental illness, intellectual disability, or a condition of severely impaired consciousness. Dissociative states could fall within the latter category. A primary benefit of having a broad defence is that the requirement for voluntariness and subjective fault to be proved beyond reasonable doubt remains intact. If conditions such as dissociative states, epilepsy, somnambulism or hypoglycaemia were seen as potentially affecting reasoning processes in a similar way to severe mental illnesses, the courts would no longer have to rely on unworkable and artificial tests dividing internal and external causes. Because there are now more flexible options for those found not guilty on the ground of mental impairment or mental disorder, a person like Dharmander Singh could be assessed at the dispositional stage to determine whether or not he should be discharged absolutely or on conditions, or be subject to some form of medical treatment. However, Andrew Carroll and Andrew Forrester have expressed concerns that a broad mental impairment defence would mean attempting to diagnose “fleeting mental states” rather than mental illnesses that extend over a considerable period of time. They note that there is a clear distinction between brief mental states such as anger (and presumably dissociation) and temporally-prolonged mental disorders. On balance, it may be more appropriate to look toward legislatively delineating the scope of automatism rather than subsuming it within a broad defence of mental impairment. What remains of concern is that evidence of dissociation may lead to a complete acquittal in circumstances of intimate homicide. Tightening up the evidence that mental health professionals are expected to give in such cases may be a first

step, but relying on the status quo in the absence of this is no real solution.

INTOXICATION Introduction 8.48 Intoxication is not really a defence; that is, it is never the case that a person can say simply, ‘I’m not guilty because I was intoxicated’. In fact, with some offences, it might be one part of the physical element that the accused was intoxicated from drugs or alcohol (in a case, for example, of dangerous driving while intoxicated [page 408] occasioning death: Crimes Act s 52A(1)(a)). Such offences aside, intoxication from drugs or alcohol may deprive an accused of the capacity to perform the required voluntary act for an offence — for example, pulling the trigger of a gun thinking that one is popping open a beer can — or to form the necessary intent, for example, an intent to kill. Alternatively, intoxication may be relevant on the question of the mental elements: a person may be so intoxicated as to be incapable of forming the intent required to be proved for a particular offence, or unable to realise the consequences of his or her actions and so denying ‘recklessness’. 8.49 Where the criminal law allows intoxication to be raised in the context of the physical element of an offence, it is an application of the requirement that an act must be voluntary to engender criminal responsibility. Where the criminal law allows intoxication to be raised in the context of the fault element of an offence, it is reinforcing the fundamental presumption of the criminal law that conduct should not be criminalised unless it is accompanied by a

guilty mind, and an acknowledgment that reduced or eliminated capacity to form a guilty mind may be selfinduced (eg, by intoxication) or externally induced (eg, by a blow to the head). 8.50 In New South Wales, the operation of intoxication in the physical and fault element contexts is governed by Pt 11A of the Crimes Act. The common law was abrogated by Pt 11A of that Act, but some understanding of its limitations is necessary in the interpretation of Pt 11A.

Common law background 8.51 In DPP v Majewski [1977] AC 443; [1976] 2 All ER 142 the House of Lords heard an appeal arising out of a disturbance in a public house. The appellant had attacked the landlord and police in the course of being evicted from the premises. At his trial, the appellant testified that during the 48 hours preceding the disturbance he had taken a considerable quantity of drugs. The accused argued that as a result, at the time when the assaults were committed, this combination of drugs and alcohol affected him to such an extent that he did not know what he was doing and that he had no recollection of the incidents that had occurred. The trial judge directed the jury that ‘the fact that [the appellant] may have taken drink and drugs is irrelevant, provided that you are satisfied that the state which he was in [as] a result of those drink and drugs or a combination of both was selfinduced’. The appellant appealed to the Court of Appeal, which dismissed the appeal but certified the point of law for consideration by the House of Lords. 8.52 The House of Lords, in a unanimous decision, held that there was a distinction between crimes of ‘basic’ intent and crimes of ‘specific’ intent. A crime was a crime of specific intent if one of its essential elements was some desire to bring about a particular consequence. A crime was one of basic

intent if all that was required was a voluntary action. They held that an assault was a crime of basic intent, as all that was required was an intent to apply force but no desire to see a particular consequence (such as the infliction of actual bodily harm). It was held that self-induced intoxication could not be relevant for crimes of basic intent. [page 409] 8.53 The Australian common law on intoxication was clarified in R v O’Connor (1980) 146 CLR 64, where the High Court of Australia, only four years after Majewski, refused to follow the House of Lords, albeit by only a 4:3 majority. In O’Connor, the respondent was observed pilfering items from a car owned by a member of the Victoria Police. The owner of the car identified himself as a police officer and asked the appellant why he had taken items from the car. The respondent ran away and was pursued. While attempting to arrest him the officer was stabbed. The respondent gave evidence that he had taken drugs and alcohol leading up to the incident and that he had no memory of the events. Medical evidence called on behalf of the respondent was to the effect that the drugs and alcohol could have rendered the respondent incapable of reasoning and of forming an intent to steal or to wound. The acts attributed to the respondent were consistent with the effects of a hallucinogenic drug. The trial judge, following Majewski, held that the evidence of selfinduced intoxication was not relevant on the issue of ‘unlawful wounding’ but was with respect to theft and wounding to resist arrest. The respondent appealed to the Court of Criminal Appeal Victoria, which allowed his appeal. The Crown appealed to the High Court. The appeal was dismissed. Barwick CJ said at 87: I can readily understand that a person who has taken alcohol or another drug to such an extent that he is intoxicated thereby to the point where he has no will to act or no capacity

to form an intent to do an act is blameworthy and that his act of having ingested or administered the alcohol or other drug ought to be visited with severe consequences. The offence of being drunk and disorderly is not maintained these days in all systems of the common law. In any case it has not carried a sufficient penalty properly to express the public opprobrium which should attach to one who, by the taking of alcohol or the use of drugs, has become intoxicated to the point where he is the vehicle for unsocial or violent behaviour. But, though blameworthy for becoming intoxicated, I can see no ground for presuming his acts to be voluntary and relevantly intentional. For what is blameworthy there should be an appropriate criminal offence. But it is not for the judges to create an offence appropriate in the circumstances … It must be for the Parliament.

8.54 Gibbs J, dissenting, said at 92–94: The argument which the appellant in R v Majewski [1977] AC 443, and the respondent in this case, advanced was that a person who, though not insane, commits what would in ordinary circumstances be a crime when he is in such a mental state that he does not know what he is doing, lacks a guilty mind, and is therefore not criminally culpable, even if the mental state was self-induced by the voluntary taking of drink or drugs. If this argument were accepted, an accused person would be entirely exculpated if he was sufficiently drunk when he committed the acts which would otherwise have been criminal. For example, if he was charged with murder, his crime would not be reduced to manslaughter, but he would be entitled to be acquitted. Speaking generally, it seems to me in no way unjust to punish a person who commits a crime while in a state of selfinduced intoxication. To do so would not, I think, offend the conscience of society or be contrary to ethical principles. Cases may be suggested in which it might appear harsh to punish a person for actions committed while in a state of advanced intoxication — for example, the case of an inexperienced child who became drunk or drugged to such a

degree that he lost control of his actions — but those are the exceptions, and in general there would

[page 410] seem little merit in a rule that allowed a person to place himself beyond the law (deliberately or otherwise) by becoming intoxicated. It does not follow from the decision in R v Majewski that evidence of the intoxicated condition of the accused must be rejected as irrelevant. That would be absurd; the evidence is admissible as one of the surrounding circumstances, and in some cases it will be relevant to other questions in issue. Proposals have been made for the reform of the law with regard to intoxication, but our choice is not between the law as laid down in R v Majewski and some better principle which the law reformers may devise. The alternative to R v Majewski is that a person who commits what would otherwise be a crime, when so intoxicated that he is unable to know what he is doing, is entitled to be acquitted entirely. For the reasons I have given, I consider that to approve of that alternative principle would be to alter the law for the worse. I consider that the decision in R v Majewski was correct, and that it should be followed in Australia.

Part 11A of the Crimes Act 8.55 Following the decision in R v O’Connor (1980) 146 CLR 64, the New South Wales Parliament enacted Pt 11A of the Crimes Act. Its effect was to codify the law on intoxication and effectively to restore the position identified in Majewski; that is, evidence of self-induced intoxication cannot be used by an accused person to argue that he or she did not have the mental elements necessary for a crime of basic intent, nor can it be argued that the person’s actions were involuntary due to self-induced intoxication. Evidence of intoxication, whether self-induced or not, may still be relevant where the accused attempts to raise a doubt as to

whether he or she had the necessary fault element for a crime of specific intent. 8.56 A definition of what is a crime of specific intent is given in s 428B(1). Section 428B(2) gives a list of offences in the Crimes Act that are crimes of specific intent, but it must be noted that the list is not exhaustive, so it remains open to argue that an offence not on the list is a crime of specific intent as defined in s 428B(1). 8.57 Part 11A does not create a ‘defence’ of intoxication. It creates a ‘rule of evidence’, namely, that evidence of intoxication may, or may not, be relevant, depending on the circumstances. As indicated by the majority in O’Connor, the relevance of intoxication is that it goes to whether the accused’s actions were voluntary or whether the accused possessed the necessary mental state to be guilty of a particular crime. Part 11A Intoxication 428A Definitions In this Part: drug includes a drug within the meaning of the Drug Misuse and Trafficking Act 1985 and a poison, restricted substance or drug of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966. intoxication means intoxication because of the influence of alcohol, a drug or any other substance.

[page 411] offence includes an attempt to commit the offence. offence of specific intent is defined in section 428B. relevant conduct means an act or omission necessary to constitute the actus reus of an offence. self-induced intoxication means any intoxication except intoxication that:

(a) is involuntary, or (b) results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or (c) results from the administration of a drug for which a prescription is required in accordance with the prescription of a medical practitioner, a registered nurse whose registration is endorsed under the Health Practitioner Regulation National Law as being qualified to practice as a nurse practitioner, a registered midwife whose registration is endorsed under the Health Practitioner Regulation National Law as being qualified to practice as a midwife practitioner, or dentist, or of a drug for which no prescription is required administered for the purpose, and in accordance with the dosage level recommended, in the manufacturer’s instructions. 428B Offences of specific intent to which Part applies (1) An offence of specific intent is an offence of which an intention to cause a specific result is an element. (2) Without limiting the generality of subsection (1), the offences referred to in the Table to this section are examples of offences of specific intent. [The Table includes murder.] … 428C Intoxication in relation to offences of specific intent (1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent. (2) However, such evidence cannot be taken into account if the person: (a) had resolved before becoming intoxicated to do the relevant conduct, or (b) became intoxicated in order to strengthen his or her

resolve to do the relevant conduct. 428D Intoxication in relation to other offences In determining whether a person had the mens rea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct: (a) if the intoxication was self-induced — cannot be taken into account, or (b) if the intoxication was not self-induced — may be taken into account. 428E Intoxication in relation to murder, manslaughter and assault causing death If evidence of intoxication at the time of the relevant conduct results in a person being acquitted of murder: (a) in the case of intoxication that was self-induced — evidence of that intoxication cannot be taken into account in determining whether the person had the requisite mens rea for manslaughter or for an offence under section 25A, or

[page 412] (b) in the case of intoxication that was not self-induced — evidence of that intoxication may be taken into account in determining whether the person had the requisite mens rea for manslaughter or for an offence under section 25A. 428F Intoxication in relation to the reasonable person test If, for the purposes of determining whether a person is guilty of an offence, it is necessary to compare the state of mind of the person with that of a reasonable person, the comparison is to be made between the conduct or state of mind of the person and that of a reasonable person who is not intoxicated. 428G Intoxication and the actus reus of an offence (1) In determining whether a person has committed an offence, evidence of self-induced intoxication cannot be

taken into account in determining whether the relevant conduct was voluntary. (2) However, a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced. 428H Abolition of common law relating to self-induced intoxication The common law relating to the effect of intoxication on criminal liability is abolished. 428I Application of Part This Part applies to any offence (whether under this Act or otherwise) committed after the commencement of this Part.

8.58 The effect of Pt 11A is as follows: 1.

Physical element: (a) Self-induced intoxication cannot be taken into account in determining whether the acts of the accused were voluntary (s 428G(1)). (b) Intoxication that was not self-induced can be taken into account in determining whether the acts of the accused were voluntary (s 428G(2)).

2.

Fault element: (a) For crimes of specific intent, intoxication (selfinduced or not) may be relevant on the question of whether the accused had the necessary intent or knowledge (s 428C(1)); but not if the accused resolved, before becoming intoxicated, to commit the crime (s 428C(2)(a)); or if the accused became intoxicated to strengthen his or her resolve to commit the crime (s 428C(2)(b) (‘dutch courage’)).

(b) For crimes of ‘basic’ intent, self-induced intoxication is not relevant in determining the fault element (s 428D(a)). (c) For crimes of ‘basic’ intent, intoxication that is not self-induced may be relevant in determining the fault element (s 428D(b)). (d) Where the crime involves an objective test (that is, what a reasonable person would have known or done), it is assumed that the reasonable person is not intoxicated (s 428F). [page 413] 8.59 In Grant it was held that self-induced intoxication is relevant to murder in all its forms, including cases of reckless indifference and of felony (constructive) murder. R v Grant (2002) 55 NSWLR 80; 131 A Crim R 510 NSW Court of Criminal Appeal [The appellant had been employed at a hotel combined with a caravan park. He had been dismissed from this position after an altercation when he had been intoxicated. The appellant had spent most of the day drinking alcoholic cider and, shortly before the events which led to the charges, he had been refused service because of his intoxicated state. After this he had returned to his caravan where he remained for some little time before re-emerging, shortly after midnight, armed with a rifle. While holding a rifle at his hip, he first shot and killed Ross Shersingh. In respect of this shooting the Crown case presented to the jury was based upon a specific intent to kill or to cause grievous bodily harm, and upon the alternative basis of reckless indifference to human life. Having shot Mr Shersingh, the appellant chased Mr Bradford around the vehicle behind which the men had been standing, with the gun aimed at him, until Mr Bradford was able to make good an escape to the nearby drive-through bottle shop. It was alleged that, in the course of this pursuit around the vehicle, a shot was fired by the appellant at Mr Bradford, with intent to kill him. There was

evidence from one eyewitness that, at the time of the shots being fired, a male voice called out ‘you big-noting opal mining cunts’.] Wood CJ at CL: … 62. The issue before the Court comes down essentially to the question whether, as a matter of construction, bearing in mind the background to the amending legislation, murder, in all its forms, including cases of reckless indifference, and of felony murder, are to be regarded as coming within the operation of s 428B(1) and s 428C. 63. In support of the proposition that this question should be answered in the affirmative, counsel for the appellant placed some reliance upon the passage in R v Crabbe, where the Court said (at 469): on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur. 64. That observation no doubt reflected the much criticised, although often quoted presumption of fact that a person intends the natural and probable consequences of his acts (for a criticism of its use see Smyth v The Queen (1957) 98 CLR 163, and Stapleton v The Queen (1952) 86 CLR 358 at 365 …). … 67. While the purposive rule of interpretation is embodied in s 33 of the Interpretation Act 1987 (NSW) and the provision contained in s 428H of the Crimes Act must be given full effect, so must the presumption that a beneficial interpretation is to be given to criminal legislation, when there is an ambiguity: R v Morgan (1993) 30 NSWLR 543 at 551 per Mahoney JA. Additionally, it is appropriate to have regard to the history of the development of the relevant law and the source from which the amending legislation was derived, here the decision in Director of Public Prosecutions v Majewski [1977] AC 443. 68. The justification for the creation of a distinction in relation to the offence of murder, between cases of specific intent, on the one hand, and reckless indifference, on the other hand, so far as the effects of intoxication are concerned, is not easy to see, and

[page 414] was not directly addressed in Director of Public Prosecutions v Majewski. So far as the House of Lords there dealt with the offence of murder, it was in the context of an offence charging an intent to kill or to cause grievous bodily harm. To that decision I will however return, since it needs to be understood in its historical context, and in the light of the policy considerations which appear to have prevailed over the illogicality in the development of the law which some of the Law Lords noted. … 71. It may be noted that, at common law, knowledge was not an ingredient of the crime of murder: R v Moloney [1985] AC 905; and additionally, that Director of Public Prosecutions v Beard [1920] AC 479 was rejected by the High Court in R v O’Connor [(1980) 146 CLR 64] as stating the common law in Australia, particularly so far as the test was stated in terms of the capability of the accused forming intent. 72. The form of the offence, which involves reckless indifference to human life, has been regarded in this country as no less heinous than that which arises out of intent to kill or to cause grievous bodily harm. In Boughey v The Queen [(1986) 161 CLR 10] (albeit a code case in which murder is defined in a significantly different way), Brennan J said (at 43): Although we have accepted in this country that an intention to kill is not necessarily the same mental state as knowledge that death will probably result, we have regarded the two mental states as comparable in heinousness. We have understood that to be the orthodox view of the common law. His Honour continued (at 43): In England, where the House of Lords has been astute to ensure that the doctrine of Director of Public Prosecutions v Smith [1961] AC 290 should not be revived in a new garb, their Lordships have relegated knowledge of the probability of death to the field of evidence, treating it merely as a foundation for an inference of an intention to cause death. In R v Hancock [1986] AC 455, at p 472, Lord Scarman noted that in R v Moloney [1985] AC 905,

the House of Lords had ‘made it absolutely clear that foresight of consequences is no more than evidence of the existence of the intent; it must be considered, and its weight assessed, together with all the evidence in the case. Foresight does not necessarily imply the existence of intention, though it may be a fact from which when considered with all the other evidence a jury may think it right to infer the necessary intent.’ In this country we have followed a different path by declining to follow R v Smith and by acknowledging the separate mental states of intent and knowledge of likely consequences. But the notion which underlies both the judgment of this Court in Crabbe and the speeches in Moloney and Hancock is that that the mental state which is necessary to establish the crime of murder when the accused does not actually wish that death should result from what he does is knowledge (or foresight) that that result is so probable or likely that the doing of the fatal act is as heinous as if the accused had wished that result. In either case the accused compasses the death of the person killed or of some other person. 73. The absence of any logical basis for arbitrarily differentiating between the various forms of murder in terms of their seriousness, or between the public policy interests which make them punishable in accordance with s 19A of the Crimes Act, also has support in sentencing decisions. … 97. Bearing in mind the existence of the express provision (s 428E of the Crimes Act) relating to the offence of manslaughter, which prevents an accused, whose intoxication is self-induced, from escaping criminal responsibility (as might formerly have occurred), the potential complexity for a jury where a case is left upon the alternative bases of specific intent, and reckless indifference and/or manslaughter, the comparable degree of heinousness which attaches to murder however committed, the nature of the malice aforethought involved, and the terms in which s 428B(2) is framed, I have reached the conclusion that the legislature should be taken as having intended that murder, in all of [page 415]

its forms, should come within the operation of s 428C. Had it been intended to apply a distributive effect to it, so that s 428C was applicable only to murder dependent upon intent to kill or to cause grievous bodily harm, then it might have been expected that it would have been included in part (b) of the table to s 428B(2), rather than in part (a). 98. For the foregoing reasons, I am of the view that the jury were misdirected in relation to the relevance of intoxication for the charge of murder, so far as the Crown relied upon reckless indifference. 99. I would accordingly propose that the appeal be allowed in relation to Ground 1, with the consequence that the conviction and sentence for the count of murder should be quashed and a new trial ordered. … [His Honour then considered whether there was insufficient evidence to prove that a shot had been fired by the appellant at Mr Bradford, with the intention of killing him.] 126. I am not persuaded that the jury ought to have had a reasonable doubt. Accordingly, this ground has not been made good. I would dismiss the appeal against conviction in relation to the second count. … [Spigelman CJ and Kirby J agreed with the reasons of Wood CJ at CL and his Honour’s orders that the appeal against conviction in respect of Count 1 be allowed, the conviction and sentence for Count 1 be quashed, that there be a new trial in relation to Count 1, and that the appeal against conviction and sentence in respect of Count 2 be dismissed.]

8.60 In Makisi, the court made a distinction between having the specific intent and the capacity to form it. R v Makisi [2004] NSWCCA 333 NSW Court of Criminal Appeal [The appellant appealed against convictions for assault in company with other persons, with intent to rob and wound. A group of about seven men, who had been drinking since the previous evening, chased three other men and caught them. They assaulted the three

men and robbed two of them. They wounded the third. One of the attackers was described as being dark skinned and wearing a jersey with a number five on it. That was the brother of the appellant. The identifying witness telephoned the police, who attended the scene and found the appellant and John Makisi hiding in a laneway behind a paling fence. One of the police officers saw the appellant throw away a mobile telephone. That telephone was later identified as belonging to the complainant. The police noticed that the appellant smelled of alcohol and formed the view that he was moderately intoxicated. They therefore deferred interviewing him. When he was eventually interviewed, the appellant gave the police an account including an assertion that he was very drunk and did not remember much after leaving the park. Although he remembered being arrested in a laneway, he knew nothing about the assaults or the mobile telephone which was found behind the fence. His evidence at trial changed. He said that he had lied to the police in order to protect his brother and that his only involvement in the attack had been to seize his brother to take him away from the fighting. He denied throwing away the mobile telephone.] [page 416] Barr J: … 9 The distinction has long been drawn between the effect of intoxication on the capacity to form the requisite specific intent and the formation of that intent. In Broadhurst v The Queen [1964] AC 441 Lord Devlin said at 461 — If an accused is rendered incapable of forming an intent, whatever the other facts in the case may be, he cannot have formed it; and it would not therefore be sensible to take the incapacity into consideration together with the other facts in order to determine whether he had the necessary intent. 10 In Viro v The Queen (1976–1978) 141 CLR 88 Gibbs J said at 110 that a statement that evidence of drunkenness should be taken into consideration with the other facts proved in order to determine whether the accused had the necessary specific intent would be correct. His Honour continued at 111 — It would be contrary to fundamental principle to hold that

evidence of intoxication not amounting to incapacity is irrelevant to criminal responsibility where the commission of the crime requires a special intent. In the case of such a crime the issue is not whether the accused was incapable of forming the requisite intent, but whether he had in fact formed it. The Crown must prove beyond reasonable doubt that the accused actually formed the special intent necessary to constitute the crime. If no more were proved than that the accused was capable of forming such intent, the case for the prosecution would not have been established. 11 In R v Coleman (1990) 19 NSWLR 467 Hunt J said at 486 — The judge in such a case, being required to direct the jury in terms which make it clear that the Crown carries the onus upon this issue of intoxication, will fall easily into the error of stating that the Crown must therefore establish that the accused was capable of forming that state of mind, overlooking the logical corollary that, even if such capacity be established, it does not necessarily follow that it was exercised on this occasion. Stating the issue as one of capacity is both unnecessary and confusing, and in my view the issue which the jury have to decide should never be stated in terms of capacity. 12 The Crown had to prove that the appellant intended to rob. Evidence of the effect on him of alcohol was relevant to that question. As Hunt J said in R v Coleman, reference to the effect of alcohol on the accused’s capacity to form the requisite intent is unnecessary and confusing. Of course, a conclusion that an accused lacked the capacity to form an intent would mean that he did not form the intent. But if the Crown proved that the accused did not lack the capacity to form the intent that would not be proof that he formed the intent. 13 The evidence of intoxication was important because it had the potential to raise a reasonable doubt whether the appellant had formed the intent to rob. If the jury understood that they were concerned with the potential of the evidence to raise a reasonable doubt not about whether the appellant had formed the intent to rob but about whether he had been rendered incapable of forming that

intent they would have been diverted from their task. From a practical standpoint, a jury might think that drunkenness would be less likely to remove the capacity to form intent than to inhibit the formation of the intent. So to leave the question as one about capacity would be to disadvantage the accused because it would be more difficult to raise a reasonable doubt about capacity than about the actual formation of the requisite intent. 14 The question is whether the jury were diverted from their task by the [trial judge’s directions] … I think that the jury understood that their task was relevantly to decide whether the Crown had proved beyond reasonable doubt that the appellant had formed the intent to rob. [page 417] 17 His Honour took the view that only the first count charged an offence of specific intent and therefore that s 428B prevented the appellant from raising self-induced intoxication, which this was, as relevant to mens rea on the remaining counts. The appellant would wish to argue on appeal that the second and third counts, which were laid under s 95, Crimes Act, charged offences of specific intent, and to mount an argument that that his Honour erred in not directing the jury to consider the evidence of intoxication on those charges. 18 I do not think it necessary to enter upon an inquiry whether those counts charged offences of specific intent, because there is no proper basis upon which the evidence of intoxication could have produced any result on the second or the third count different from that on the first. Counsel fairly conceded as much. 19 Accordingly, I think that these grounds of appeal have not been made good. … [Spigelman CJ and Hoeben J agreed with Barr J that the appeals be dismissed.]

8.61 Makisi was considered in Ward v R. Ward v R [2013] NSWCCA 46 NSW Court of Criminal Appeal

[The appellant had driven her motor vehicle at the deceased twice in an attempt to injure him following an altercation between her vehicle and a group of men of which the deceased was one. The Crown had rejected a plea of guilty to the offence of manslaughter and the appellant had been convicted of murder following a trial. In sentencing the judge had indicated that he was sentencing the offender on the basis of murder by intent to inflict grievous bodily harm rather than an intention to kill. At the time of the offence the accused was heavily intoxicated by a combination of alcohol, cannabis, ecstasy and prescription drugs. The appellant appealed, inter alia, on the grounds that the judge had erred in his directions to the jury concerning intoxication and intent.] McClellan CJ at CL: 82 The trial judge directed the jury in relation to the relationship between intoxication and the capacity to form an intention. His Honour said: You can have an intoxicated intention. You can have an intention that is based on alcohol and drugs. In fact, very often, unfortunately, the situation is that a person forms a certain intention because they are intoxicated and they would no [sic] not have formed it if they were not. 83 The applicant complains that although it may be true that a person can have an “intoxicated intention” the balance of the direction was not a matter of judicial knowledge and should not have been made. It was submitted that the last part of the direction was misleading. 84 During the course of the trial the trial judge said to the jury on this issue: You have a specific intention to do something, even though you are intoxicated. That may be the reason why you have that intention. You have heard some evidence about the disinhibiting effect of alcohol. How sometimes people will do things, form intentions, carry out actions they wouldn’t do if they were stone cold and so on. 85 The applicant submitted that these remarks were “prejudicial”

and should not have been made. It was submitted that when read together with other directions and [page 418] comments by the trial judge, the directions were in substance directions of law to the effect that rather than confusing the accused her intoxication caused her to have a positive intent. It was submitted that his Honour’s directions “invited the jury to be satisfied of the accused’s intent because generally alcohol caused such an intent”. 86 Complaint is made about other directions or comments which the trial judge made in relation to intoxication. 87 At SU 30 the trial judge directed or commented that: “Nobody is suggesting here that the accused was so intoxicated that she did not know what she was doing at any state at any time.” 88 It was submitted that this did not do justice to the applicant’s case because she had effectively told the interviewing police that she did not understand how she had come to be where she was or, how she hit the deceased; she showed confusion and considered herself to be still drunk, as did others who observed her, when she was being interviewed. 89 Complaint is also made in relation to the further statement by his Honour: “Of course it also may be relevant in explaining, if you accept her account, as a possible scenario as to why she mishandled the motor vehicle, because she was intoxicated.” 90 It was submitted that this was incorrect and misleading in so far as it again invited the jury to consider her (confused) account and if they rejected it to dismiss the effect of intoxication. It was submitted that it also raised the suggestion that this was something like a special defence for which there was a burden on the accused to establish. 91 It was further submitted that the simple and correct direction to the jury that should have been given was that if the jury thought that the applicant did not or might not have had the requisite intent then they should acquit her. 92 During the discussion of the expert evidence with respect to abnormality of mind his Honour said: “intoxication can impact

upon people differently and it can make them more impulsive. It can make them more irascible.” 93 It was submitted that these remarks were highly prejudicial and should not have been made. It was submitted that they were not and could not properly have been given as a direction of law but were very likely to have been received by the jury as such. It was submitted that they were doubly unfortunate in a trial where one argument being advanced by the Crown was that the applicant had simply lost her temper over a very trivial incident. 94 On Friday 25 March 2010 after retiring, the jury asked the following question “how does intoxication impact upon the formation of intent?” 95 The trial judge responded by giving further directions in the following terms: If we’re dealing with murder you must have come to the conclusion that she at least intended to drive the motor vehicle at the deceased or one of the group, whether she picked him out particularly or was just driving at any person. So if you come to this question of murder you must have at least come to the view that notwithstanding her intoxication she was able to form certain intentions, and one of those intentions was to drive at a particular person; this wasn’t an accident, it was an intentional act on her part. 96 The following submissions were made: (i)

the direction was not correct and confused the issue. It assumed a vital issue that the jury had to decide, namely that the jury had already decided that the accused had deliberately driven at the deceased or the group. A vital issue that the jury had to determine was whether at the time the path of the accused’s vehicle went in the direction of where the deceased or the group of young persons was, the applicant was deliberately aiming at him or them. That required a consideration of the effect [page 419] of alcohol and drugs on her. It was submitted that it was quite

wrong to commence with the assumption that she intended to drive at the deceased or one of the group. The important issue was not her ability to perform certain physical functions such as steering the car, nor her capacity to form the particular intent but whether she did form such an intent. … (ii) the direction should not have been given as the ability of a highly intoxicated person to carry out complex tasks was not the subject of evidence before the jury. There are abundant illustrations in decided cases of highly intoxicated persons being able to carry out complex motor tasks. (iii) the direction “this wasn’t an accident” was a direction of law that removed from the jury’s proper consideration a defence upon which the onus lay on the Crown. 97 At SU 98/9 the trial judge directed the jury “Don’t get confused between blood alcohol readings for the purposes of control of the motor vehicle and blood alcohol readings for the purposes of acting any other way as a human being. There is [sic] a lot of skills involved in a motor vehicle, driving a motor vehicle, beyond the intention. The most drunk person in the world can form an intention to get into the motor vehicle and drive it home. He’s formed, or she forms that intention. That’s why he or she is in the motor vehicle.” 98 It was submitted that: (i)

far from removing confusion the effect of this direction was to effectively direct the jury to ignore the accused’s high alcohol reading which was always an important fact for the jury to take into account when assessing her level of intoxication and its effect on her.

(ii) Nowhere did the judge summarise in detail the evidence of Dr Allender and other doctors on this issue. 99 At SU 99 the trial judge directed the jury: “but nobody would doubt that the person was capable and did form the intention of driving the motor vehicle, and even formed the intention to drive to a particular place”. It was submitted that this “direction” confuses physical ability to steer a motor vehicle with intent. Furthermore, it

again confuses the capacity to form an intent with its actual formation. 100 At SU 99 his Honour said: “Nowhere in the evidence of Dr Allender was it ever suggested to him or by him that the level of intoxication was such that she could not form certain intentions. But let’s just have a look at it. This is not a theoretical exercise, we’re not dealing here with a test for young lawyers about the theoretical impact of alcohol on intention.” 101 Again it was submitted that reference to capacity to form the requisite intent is wrong in law, unnecessary and confusing. Reference was made to R v Makisi [2004] NSWCCA 333 and R v Viro (1978) 141 CLR 88. 102 The applicant emphasised that following the above, the trial judge proceeded to make a number of references to the fact that no one was suggesting that the applicant was unable to form the intent and it was submitted “put sarcastic and unreasonable propositions” to the disadvantage of the applicant which the jury was bound to reject. The applicant drew attention to the following matters in the summing-up: [His Honour then detailed a series of submissions made by counsel for the appellant in which it was argued various parts of his Honour’s summing up to the jury concerning intoxication in the context of an intention to inflict grievous bodily harm were in error.] … 103 It was submitted that the final directions in relation to intoxication and intent were inaccurate, misleading, conflated ability to perform a physical act with purpose and [page 420] conflated purpose with intent. It was submitted that the remarks set a tone of sarcasm and denigration of the applicant’s case and amounted to a final Crown address highly prejudicial to the applicant. It was submitted that by the series of examples of so called purposive behaviour the trial judge misled the jury on the real issue of the effect of alcohol on the applicant’s specific intent. 104 It was further submitted that the trial judge failed to put an alternative scenario open on the evidence.

105 At T648 the trial judge said of the jury, in the latter’s absence: “they may decide because of her intoxication that she’s got no particular intention, she just wants to get him. Maybe she hoped to apply the brakes and scare him and went too far.” 106 At T702 the trial judge said “Well she could have driven at him with an intention to scare him, with no intention to kill or do grievous bodily harm and just mucked it up as it were. So that seems to me to give rise to unlawful and dangerous act.” 107 However, it was submitted that in all his directions/comments to the jury the trial judge never mentioned this line of reasoning as even a possibility. Instead it was submitted that his Honour reiterated with some vigour the Crown argument which the applicant records as an extract from SU 46 in the following terms. The applicant referred to what was said to be an extract from his Honour’s summing up. It was not correct. His Honour actually said on this issue: [A]nd the Crown says if you reach that conclusion [that the applicant intentionally drove the vehicle at the deceased], why else would she do it other than to do him really serious injury? Why would she do it other than that, or to cause his death? 108 And at SU 47 told them: If you find that she did intentionally drive at him then of course she would have the intention to kill or inflict grievous bodily harm. 109 It was submitted that contrary to the above the jury should have been directed that if, because of the evidence of the effect of intoxication or otherwise they were not satisfied that the accused did in fact have the necessary intent they must acquit: R v Bellchambers [2008] NSWCCA 235. 110 It was further submitted that the trial judge contradicted other directions he gave on intent. 111 At SU 69 it was submitted that the trial judge cut across all his other directions of their [sic] being a requirement for the Crown to establish an intent to kill or cause grievous bodily harm by telling the jury: “people are not that much in control of a motor vehicle

that they can decide how much or what degree of injury they are going to impose on a person.” 112 It was submitted that this effectively directed the jury that if they were satisfied that the applicant had driven at or in the direction of the deceased objectively that would suffice to establish the requisite intent. As I have already indicated to my mind there is no substance in the applicant’s submissions. 113 His Honour’s comments about the relationship between alcohol and the capacity to form an intention were based on the evidence that was given in the trial by expert witnesses. I am satisfied that the jury would have understood them in this manner rather than as directions of law. 114 It is important to appreciate that it was not the applicant’s case that she was “so intoxicated that she could not know what she was doing at any time”. Her case was that she was intoxicated and partly as a result, had trouble with the gear shift, the accelerator and/or the brake. The problems with the brake and accelerator were compounded [page 421] because of the boots she was wearing in addition to the fact that the passenger had grabbed the steering wheel from her. 115 A number of his Honour’s comments were favourable to the applicant and invited the jury to have regard to whether the applicant mishandled the car as a result of her intoxication rather than intentionally driving at the deceased. 116 His Honour encapsulated the relevant issue for the jury in the following passage from his summing up. In effect, the real question here, the one for you to determine, is, remembering where the onus of proof lies and what the standard of proof is, whether it’s more likely than not that at the time of the killing, that’s the relevant time, the accused was suffering from this abnormality of mind, that is, that she was, as I understand Dr Roberts’ evidence, in a manic state which interfered with her capacities in two ways, one, to understand and react to

events in a rational and logical way, and, secondly, to control herself. In other words she was more impulsive. She did not think about consequences because of the effect upon her of this manic state. Dr Roberts said that was even so notwithstanding her highly intoxicated state and effect that that would have the same you might think effect upon her. You can appreciate that we talked about this. Intoxication can impact upon people differently and it can make them more impulsive. It can make them more irascible but anyway that is the issue in a nutshell. 117 His Honour concluded his directions with the following statement: She had an intention. Both sides agree she did. Again, it’s for you to decide what that intention was. But nobody is suggesting she didn’t have an intention, she didn’t have a purpose, she didn’t have an objective in what she was doing. She gets to the end of the street. Again, different views about what she was doing and what she could have done or what she was intending to do, but nobody’s suggesting that what she was doing was not purposive, that she didn’t have an intention to bring about a result. The Crown says her intention, even though it was a drunken one, is to follow the boys and to punish them. The accused’s case is no, my intention was to avoid them, I just simply got confused by the signs, I would have better gone right but I went left, I found myself in trouble, there were more people than I believed were there, again, what did I do, I didn’t meander around, I didn’t drunkenly wonder what I was doing, where I was going, I was confused about the situation; I had a purposive intention to get out of there, to do a three point turn or U turn, purposive, intentional behaviour, even though drunk. The Crown says no, no, no, that’s not her intention, that’s not her purpose. Her purpose was to punish. So the point is here that nobody’s really suggesting on any count that she was so drunk that she was unable to form intentions, that she was unable to act purposively to bring

about a result. The question is, what did she want to bring about? 118 His Honour was clearly directing the jury that they had to determine what was the actual intent the applicant had formed. To my mind, there was nothing in his Honour’s directions which misstated the issue which was inherent in the “battle ground” on which the trial was fought, or would have occasioned any unfair prejudice to the applicant. The fact that in discussion with counsel, his Honour may have expressed other thoughts is not to the point. All that matters is that the directions given by the trial judge were appropriate and fair. To my mind they were. I would refuse leave to raise this ground of appeal. [Latham and Adamson JJ agreed with McClellan CJ at CL. Appeal refused.]

Intoxication and attempted offences of specific intent 8.62 Section 428B(2) contains a non-exhaustive list of offences of specific intent; that is, offences for which the fact that the accused was intoxicated at the time of [page 422] commission of the offence may be taken into account for the purposes of assessing whether or not he or she had the necessary mental element to commit the offence. In WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 (extracted at 6.31) the substantive offence of which the accused had been accused of attempting was sexual assault under s 61I. An offence pursuant to s 61I is not an offence of specific intent. The question therefore arose of whether or not an offence under s 61P, being an attempt to commit an offence under ss 61I–61O (in this case s 61I), was itself an offence of basic intent. In leaving the matter open, Basten JA said: 62 The issues debated before the trial judge concerned the

application of s 61HA to an attempt to commit an offence under s 61I and whether the attempt was an offence of specific intent. The second issue had significance in relation to the reliance the appellant might be able to place on his state of self-induced intoxication in relation to his state of mind. However, the second issue was also potentially related to the first. If, to commit the attempt, the appellant needed to intend to commit the offence of having intercourse without consent, knowing the woman was not consenting, then an actual intent to cause that consequence (or even recklessness as to that consequence) would not be satisfied by an absence of a belief based on reasonable grounds that she was consenting. On the other hand, if it were sufficient for the attempt that he had the state of mind sufficient to commit the completed offence a lack of belief as to the consent, based on reasonable grounds, would suffice.

His Honour then considered the application of s 61HA: as to which see extract at 6.31. 82 This was undoubtedly a highly fact-specific issue. How it would arise at the trial was not entirely clear, nor fully articulated either in her Honour’s reasons or in the argument before her Honour. For example, under s 61HA(3) (which was presumed to be relevant at this stage of the argument) in considering the state of knowledge of the accused the jury was required to take into account all of the circumstances of the case “not including any self-induced intoxication” of the accused: sub-s (3)(e). One might have thought that it would be the prosecution that would wish to rely upon such a state of intoxication to demonstrate either recklessness as to consent or the absence of any belief as to consent, or even in support of the proposition that the accused took no steps to ascertain whether the person consented. On one reading of s 61HA(3), such an approach would be illegitimate. On the other hand, an accused might seek to rely upon his state of intoxication to establish a reasonable doubt that he had the necessary intention to commit the offence. In that respect, the Court might need to consider whether the offence was one of

specific intent, for the purpose of applying either ss 428C or 428D of the Crimes Act. 83 Of critical importance in the context of the trial will be the evidence of intoxication and the evidence as to the state of mind of the appellant. On the basis of the authorities governing the trial judge, including Zorad and Evans, it will no doubt be necessary for the jury to be directed as to the intention of the appellant at the time of the offence and as to his state of mind with respect to the consent or otherwise of the complainant. The legal issue of significance in this respect has already been noted, namely the inapplicability of s 61HA for the purposes of an attempt to have sexual intercourse with a person who does not consent, knowing that she does not consent. Beyond that it is neither necessary nor appropriate to go.

[page 423]

Intoxication and mental illness 8.63 As Derbin illustrates, a mental illness caused by intoxication (including from a substance such as alcohol) may itself ground the defence of mental illness. R v Derbin [2000] NSWCCA 361 NSW Court of Criminal Appeal Mason P: 1. The appellant was indicted in the Supreme Court and tried before Ireland J and a jury. He was found guilty on charges of attempting to suffocate Maisie Derbin with intent to murder her and maliciously inflicting grievous bodily harm upon Maisie Derbin with intent to do so. Maisie Derbin is the appellant’s mother. 2. There was little dispute as to the primary facts giving rise to the two related charges. The evidence of most witnesses was read from their statements. The only contested issue was the defence of mental illness.

3. The appellant lived with his mother and her father. At the time of the offences, 16 August 1997, the appellant was aged about 22 and his mother was 55. … 5. Leaving aside some relatively formal evidence given by two police officers, the only witnesses to give evidence before the jury were two consultant psychiatrists, Dr Olav Nielssen called in the defence case and Dr Yvonne Skinner called in reply for the Crown. The two doctors had examined the appellant after his arrest. They had access to documents relating to his prior psychiatric history and had read the transcript of the appellant’s electronically recorded interview (ERISP) conducted on 10 September 1997. Dr Skinner had also viewed the video tape of that interview. 6. The two doctors were agreed that the appellant had suffered schizophrenia since about 1995. They accepted that the assault on the appellant’s mother was a consequence of that mental illness, albeit triggered on the night in question by a lethal cocktail of alcohol, cannabis and butane fume ingestion. Based upon the ERISP, the doctors were agreed that the appellant knew the nature and quality of what he was doing when he carried out the terrible assault upon his mother. However, each expert was also of the view that the appellant did not at the time know that what he was doing was wrong. Each doctor said in terms that he/she was of the opinion that the defence of mental illness according to the M’Naghten rules was made out. 7. The jury nevertheless rejected the defence of mental illness and convicted the appellant. … 29. One point of difference between the two psychiatrists was their opinion as to the causal weight of the intoxication (from the three sources of alcohol, cannabis and butane) as a triggering factor in the psychotic episode of the attack. Dr Skinner’s evidence will be recounted below. Dr Nielssen agreed that the intoxicants had a triggering effect, but he attributed less causal potency than Dr Skinner. He gave as a reason the appellant’s clear memory of the assault and his capacity to give a fairly sequential account of it … 30. At one stage in his evidence, Dr Nielssen referred to the

appellant as having been ‘acting on the instructions of command hallucinations’ … Dr Skinner was present [page 424] throughout Dr Nielssen’s evidence and her own evidence was therefore, in part, responsive to that of Dr Nielssen, at least in matters of detail. It is therefore significant that she too adopted the expression ‘command hallucinations’. 31. At one stage, when pressed by the cross-examiner to agree that a person who is delusional and hearing voices may still know that what he is doing is wrong, Dr Nielssen replied: They can know it is against the law but it is not wrong in accordance with the understanding of the world brought about by their delusions. 32. Dr Nielssen adhered to his opinion that the appellant’s reason for attacking his mother was his delusional state and a response to his imaginary voices, these being the product of his underlying mental illness as exacerbated by the intoxicants consumed not long before the attack. On several occasions Dr Nielssen explained and defended the reliability of the history he had obtained and upon which in part he based his conclusions. … 68. As recorded, the Crown had emphasised that the critical issue was not a matter for the experts, but for the jury. The horrendous acts involved in the assault was said to be of such a nature that the accused must have known that he was doing wrong. The fact that he placed his hand over his mother’s mouth to stop her scream and attracting the grandfather’s attention was said to be an indication of sufficient realisation. Reliance was also placed upon the accused’s actions shortly after the assault: he went to the fridge and had an orange juice, he changed his mind about escaping by car and he played cat and mouse with the police in the days following the assault. The Crown relied upon the absence of agitated behaviour which would indicate an acute psychotic state as well as the good memory and precise recall of detail demonstrated in the ERISP. 69. The jury took considerable time to reach a verdict. … Eventually, verdicts of guilty were returned on each count.

70. In R v Stones (1955) 56 SR(NSW) 25, the Court (Street CJ, Roper CJ in Eq and Herron J) said (at 29) that: … insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged. The law takes no account of the cause of insanity. If actual insanity, permanent or temporary, in fact supervenes as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. … 72. It does not matter to the criminal law whether the disease of the mind which produced a state of mind attracting the defence of mental illness is curable or incurable, temporary or permanent (The King v Porter (1933) 55 CLR 812 at 187–8, R v Kemp [1957] 1 QB 399 at 407, R v Quick [1973] QB 910 at 918). 73. These principles are in no way inconsistent with authoritative statements such as that ‘disease in the M’Naghten formula is not used … with reference to a temporary inefficient working of the mind due only to such outside agencies as alcohol or drugs’ (R v Carter [1959] VR 105 at 110 per Sholl J, emphasis added). In R v Meddings [1966] VR 306, Sholl J recognised that ‘mere transient causes such as alcohol alone … do not produce insanity within the meaning of the M’Naghten Rules’ (emphasis added). But he held that, if a person has a disease of the mind predisposing to a particular condition, then for the purpose of the defence it did not matter whether the ‘trigger’ was alcohol or a set of surrounding circumstances. [page 425] 74. Applying the principles stated by Walsh J in R v Jenkins (1963) 64 SR(NSW) 20, I am satisfied that the evidence establishes that the appellant ‘was mentally ill, so as not to be responsible, according to law, for [his] action at the time when the act was done’ (cf s 7(4)). 75. This was the unchallenged joint opinion of the two psychiatrists. It was supported by the histories which they each obtained from the appellant and recounted in their evidence. While Dr Skinner remarked that ‘voices’ were not mentioned in the

ERISP, she (like Dr Nielssen) appeared to accept the truthfulness of the history of ‘command hallucinations’. The facts upon which the medical opinions were based were not disputed, in their essentials. The horrific nature of the assault also pointed in the same direction (cf R v Matheson [1958] 1 WLR 474). It is true that some of the appellant’s conduct during or following the assault showed deliberation, but ‘an abnormal mind is as capable of forming an intention and desire to kill as one that is normal’ (id at 478). The critical issue was the extent to which the appellant’s illness affected his capacity ‘to reason about the matter with a moderate degree of sense and composure’ (Porter at 189–90). I am persuaded that such capacity was clouded to such a degree that the appellant would not know that what he was doing was wrong. 76. I recognise the need for caution in disregarding the verdict of the jury. Nevertheless, there are aspects of the trial which (taken with the matters recounted in the preceding paragraph) leave me comfortable in doing so: (a) By their questions through the trial, some of which were put to the doctors, the jury appear to have shown an inordinate interest in the curability of the appellant’s schizophrenic condition (contrast Porter (1933) 35 CLR 182 at 187). (b) The extended debate between the doctors as to whether the ERISP transcript and video evidenced mental illness at the time of the arrest had the potential to mislead the jury away from the task of assessing mental illness at the time of the offence. The jury were reminded about this evidence in the summing up without a caution as to the limited relevance of that issue. (c) The debate between the doctors as to the relative causal impact of the substances which triggered the psychotic attack was also potentially misleading in light of the relevant legal principles. True, the Crown emphatically agreed that Dr Skinner’s evidence on this matter did not challenge her conclusions about mental illness, but this occurred in the absence of the jury. The jury may have been left with the idea that Dr Skinner had reservations about whether there was or even should have been an available defence of mental illness. (d) Some of the questions put to the psychiatrists, especially Dr Skinner, appeared to infer that there was an element of

discretion involved in accepting or rejecting the defence of mental illness … The jury may have got the same impression from the directions in the summing up that it was ‘permissible’ to take into account the temporary effects of alcohol, marijuana and butane. They were (correctly) told that if the ingested substances alone caused the accused to act as he did, then the defence of mental illness was not available. But neither expert suggested this possibility. In light of the unfortunate digressions in Dr Skinner’s evidence, there should in my view have been a forceful direction along the lines of the principle stated in the passage from Stones … [Levine and Greg James JJ agreed with the reasons and orders of Mason P that the convictions and sentences be quashed and that the appellant be detained in strict custody in the manner required under s 39 of the Mental Health (Criminal Procedure) Act 1990 in a secure prison psychiatric facility until released by due process of law.]

[page 426]

DISCUSSION QUESTIONS 8.64 1.

Consider the following scenarios and discuss whether any of the defences discussed in this chapter might apply: (a) Driver A’s negligently maintained car veers out of control when A is attacked by a swarm of bees flying in through the open window. A had hold of the steering wheel and pulled at it madly, in a vain attempt to swerve away from the bees. Due to a steering defect, of which he was aware, but had forgotten to have rectified, the car lurched in the other direction and killed a pedestrian, V. (b) A, a homemaker, is a fan of soap operas on TV.

She is watching an episode of a ‘soap’ involving a homemaker (B) stabbing a milk-delivery person (C) to death. Mid-episode, a real-life milk-delivery person approaches A’s house to make a delivery. A, in a state of dissociation, assumes B’s character and stabs V, the milk-delivery person, to death. (c) A gets nasty and aggressive when drunk, and can develop a very distorted picture of himself and reality as a consequence. A’s partner warns him before parties not to drink but, at a New Year’s bash, A ignores her advice. He is subsequently charged with offences arising from eating 12 priceless goldfish and a carp from the host’s pond, thinking them to be sushi; riding a guest around the garden, thinking him to be a horse; exposing himself; driving the host’s car home thinking it to be his and crashing it, killing a sleeping passenger, of whose presence in the car A was unaware; and tying up and unsuccessfully trying to have intercourse with a guest. 2.

Assume that the following facts are true and can be proved. Discuss whether Mark has any defence to an allegation that he murdered both Jane and the attendant. Mark plans to rob a service station in order to fund his drug habit. He obtains a gun for the purpose. On the night in question he enters the service station and demands money from the attendant and the customers in the shop. (Assume that his conduct constitutes the offence of aggravated robbery under s 97(2) of the Crimes Act. This offence carries a maximum penalty of imprisonment for 25 years.) Mark is highly agitated and paranoid as a result of the drugs he has taken just before the robbery. He

begins to panic, thinking that the Mars Bars are ganging up on him and will soon break out of the shop fridge to restrain him. He sees a reflection of the fridge in the window and, disorientated, fires the gun at the window, thinking he is shooting at the fridge that is in fact behind him. The bullet strikes and kills Jane, a pedestrian who is walking past the service station. Mark then throws his gun to the ground and runs for the door [page 427] in order to get out before the Kit Kats attack him. As the gun hits the ground it discharges, killing the attendant. Analysis of the gun shows that it has a ‘hair trigger’ and would discharge in response to the slightest force. Throwing the gun to the ground would not have been sufficient to discharge a gun that was operating to the manufacturer’s standard. Mark did not know of the hair trigger.

[page 428]

9 Duress, necessity and selfdefence INTRODUCTION 9.1 Issues that in fact dispute that the fundamental elements of an offence have been established were considered in Chapter 8. Those defences go to the need for the act to be voluntary (the physical element), and for it to be accompanied by the necessary state of mind (the fault element). Issues of mental illness, automatism and intoxication may all be raised in order to cast doubt on whether the act of the accused was voluntary, or whether the accused had the necessary intent or knowledge to be guilty of the crime. 9.2 As was discussed in Chapter 8, although we refer to these issues as ‘defences’ for convenience, they are really better thought of as issues which, once raised, require negating by the prosecution as part of the discharge of its burden of proof. However such evidence may emerge, once it is relied upon by an accused, the prosecution is required to negate that evidence before a conviction may rightly result (see Abusafiah at 9.7).

9.3 This chapter considers defences that seek to excuse or justify an accused person’s otherwise criminal conduct. Where these defences apply, the accused is entitled to an acquittal even though the physical and fault elements of the crime are present. The defences are duress, necessity and self-defence. The latter extends to the defence of others and defence of property. 9.4 Duress and necessity represent a balance between the need, on the one hand, for laws to protect people from injury and damage and to protect the public from threats to order and security and, on the other, to recognise that in some circumstances we may all feel compelled, in extreme situations, to act contrary to law where the illegal act is the lesser of two evils. Related to duress is the defence of [page 429] necessity, considered at 9.23. Typically, duress arises where the accused is threatened by some person with some grievous consequence in the event of failure to perform a criminal act. Necessity, on the other hand, arises where the accused chooses, rather than is ordered, to commit a crime because it is perceived as the lesser of two evils.

DURESS Introduction 9.5 Duress arises when a person commits a crime as a result of threats from another; for example, a person who robs a shop, for fear of being attacked if he or she does not, may be able to rely on the defence of duress. Duress has a two-part test. The first element is whether the accused’s will was overborne by the threat that he or she faced; this is a subjective test based on the effect of the threat on the

particular accused person. The second element is an objective test: the jury must consider whether a person of ‘ordinary firmness’ would similarly have succumbed to the threat.

Elements of duress 9.6 The Court of Criminal Appeal stated the elements of duress in Lawrence, which was applied in Abusafiah (see 9.7). R v Lawrence [1980] 1 NSWLR 122 NSW Court of Criminal Appeal [The appellant, one of six convicted of conspiring to import cannabis, was the navigator of the two ships used to bring cannabis to Australia. He asserted that he entered innocently into the venture, believing that the first ship, when on the first part of the operation, was picking up furniture from the Philippines and taking it to Port Moresby, and that, after he became aware of the true nature of the venture, he was compelled by threats to continue. He further argued that, by reason of coercion alone, he navigated the second ship, on the second part of the operation, as required by those who threatened him. In summing up, the trial judge left to the jury, not only the question whether the threats were made and the mind of the accused overborne (that is, the subjective element of duress), but also the question whether the threats, in the circumstances, were such that the mind of a reasonable person would have been overborne (the objective element).] Moffitt P: … The limitations objectively drawn to the availability of the defence are to be accounted for by policy considerations. The differing views of their Lordships in Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 [see 9.14], in the majority decision of three to two, that the defence is available upon a charge of murder where the accused did not do the actual killing, is eminent testimony that the definition of the objective limitations on the availability of the defence depend on policy considerations. The same can be said of the Privy Council decision in Abbott v R [1977] AC 755, where

[page 430] a somewhat differently constituted Board, again by a majority of three to two, refused to extend Lynch’s case so as to provide duress as a defence on a charge of murder where the accused was the one who did the killing. In the instances so far given, the law directly provides the limitations. No part is left for the jury to play in a decision whether the defence is available. There is another objective limitation restricting the availability of the defence. That is, where the defence is otherwise available in law but is withdrawn where the ‘accused failed to avail himself of some opportunity which was reasonably open to him to render the threat ineffective’: R v Hudson and Taylor [1971] 2 QB 202 at 207; R v Williamson [1972] 2 NSWLR 281. There is no higher authority to the contrary, and the House of Lords in Lynch’s case ([1975] AC 653 at 675, 682, 686, 708, 716) referred to Hudson’s case without disapproval. I leave aside for later consideration the precise elements necessary to exist before the defence is withdrawn in this way. As appears from Hudson’s case and Williamson’s case, it is a jury question whether such an opportunity existed and was reasonably open. As counsel for the appellant conceded, correctly in my view, there is involved an objective element, the applicability of which the jury must decide. The need to resort to this ground to withdraw the defence accepts that otherwise the defence would prevail, namely that the crime was in fact committed while the mind of the accused was subjectively overborne. The defence is denied him despite this circumstance, because the policy of the law is to decline to excuse him, if he fails to avail himself of a relevant opportunity. Although, in the foregoing respects, there is some definition of the objective limits to the availability of the defence, there are other areas where the law is still obscure, a matter often referred to by academic writers and at times by judges such as Winneke CJ, and Pape J in R v Hurley and Murray [1967] VR 526 at 529. Even the question whether duress should be allowed at all as a defence was the subject of debate, until it was held that it was, in Lynch’s case. Even in that appeal, strong views were expressed, by Lord Simon of Glaisdale ([1975] AC 653 at 694), that the law should not be so and, that duress should be dealt with as a matter of punishment. He concluded, however, that it should be a defence,

on the basis that the Parliaments in the United Kingdom had, to a degree, dealt with the matter as a defence, so that it was best left to Parliament to alter, develop or confirm the existing law. … The two objective boundaries to the availability of the defence referred to in Attorney-General v Whelan [1934] IR 518 and applied in later authority, and the objective boundaries now defined in relation to murder, have been imposed for policy reasons. Such policy reasons may well differ according to the boundary drawn. That the law excludes the defence in some areas for policy reasons is consistent with other branches of the criminal law where ‘defences’ are limited in their availability for policy reasons. Thus, provocation is available only in relation to the crime of murder. In respect of other crimes, it is relevant only to punishment. Further, the ‘defence’ is not available, even to a person who kills with a mind subjectively provoked, if the provocation is not such as would have provoked an ordinary man in like circumstances. The policy of the law is to discourage persons, at the moment of pressure, from giving way too easily to pressure to commit a crime. This it does by confining the defence by limitations based on an expectation of the law, and hence the community, that there shall be resistance to pressure to commit crimes according to the resistance to be expected from an ordinary person. Other examples can be found in the law relating to self defence. Where the threat is of personal violence, there is a threshold question, namely: Are there any objective limitations on the availability of the defence of duress which depend on the quality of the threats, and of the acts otherwise criminal, and the circumstances which confront the person threatened who commits the crime under the influence of [page 431] the threats? Will any threat of any harm, or serious harm, of a personal nature suffice for the commission of any crime, no matter how serious omitting, of course, murder by the person who kills? … Having regard to the directions of … [the trial judge], the question has now squarely arisen for decision, so it is the province of this Court to examine and determine how the objective

boundary concerning the applicability of the defence of duress is to be defined, having regard to the course of authority, the principles of the common law, and its policies as revealed by authority. Part of this authority is Whelan’s case, as properly understood. Whatever its proper construction, the Court acknowledges that, in some way, the standards of the ordinary citizen in the resistance of threats is used by the law to define limits to the defence. … I think it must be accepted that the course of authority to date is that, as a matter of policy, the law has limited the availability of the defence of duress; and that, where it has done so, relevance has been placed on the reactions of ordinary citizens in the community to provide the standard for the availability of the defence. Accepting that this is so, the question then arises as to the way in which this policy is given effect to; and, in so far as the answer to that question has not yet clearly emerged, the question is how ought it, consistent with the principles of the common law, to be given effect to. There are two possible alternative methods by which this recognized policy might be applied to limit the availability of the defence. The first would be to define, as a matter of law, the various particular classes of case in which the defence will or will not be available. In order so to define those cases which are within or those which are outside the defence, it would appear to be necessary to define the class of act threatened, the person who may be the subject of the threatened act, and the seriousness of the act threatened, perhaps relative to the seriousness of the crime committed under the influence of the threat. The second approach would be directly to relate the threat to the policy considerations of the law, ie a threat of the kind to which an ordinary member of the community would in the circumstances succumb, so as to commit the crime in question. On this approach, the law would define the test, and the jury would decide, as a matter of fact, whether the threat answered the test so defined. It would not be inconsistent with this approach that, as a matter of law, the defence might be excluded in particular cases by reason of other overriding policy considerations (as, for example, in the case already decided where murder is directly committed by the accused). It would not be inconsistent with this approach to exclude the defence in other particular cases, on the basis that it

would be found, as a matter of law, that it was not open to the jury to find that an ordinary citizen could be taken to succumb to such a threat, eg cases [sic] or some cases of threat of damage to property. … The appeal before this Court concerns only threats of death or violence of some description and, in the present state of the law, I wish to confine my remarks to that class of threat only. If the first alternative be adopted, so that cases where the defence is allowed or denied are individually defined, a number of questions would need to be answered. To whom must the violence be offered? Is a different answer to be given to the question of guilt, according to whether the threat is by a knife at the throat of the accused, his daughter or a stranger? Would the answer be different if the violence threatened were less, and the relationship with the person threatened remote, and the crime of the most serious kind? Could the threat of any serious violence excuse any crime, however serious? Would a threat of violence excuse a crime of greater violence against an innocent person? Would a threat of some bodily injury excuse bringing into the country heroin with a street value of $20 million, accepted by the community as a source of misery or possible death to members of the public, [page 432] where the crime in question carries a penalty of penal servitude for life? Examples of anomalies could be multiplied. If the test were … that it is sufficient that the threat be of serious violence or injury, so that all such cases, without exception, would be admitted, the anomalies referred to above and by Lord Simon ([1975] AC 653 at 657) would be accepted. In any event, in this test, a problem would arise in determining whether the violence threatened was ‘serious’, presumably a matter for the jury. By what standards would the seriousness be determined? It is relative, in the sense that it is serious compared with the magnitude of the crime? If so, some objective test, based in any event on how the community would regard the threat, would appear to be involved. The problem of the anomalous case arose in R v Hurley and Murray by reason of the relationships of the persons threatened with the person the subject of the threats. There, two escaped prisoners held a woman hostage, threatening to the two accused

that they would kill her, unless they stole a car to facilitate their escape. One accused stood in a de facto husband and wife relationship with the woman. The other had no relationship, except that he lived at the same house. On a charge of aiding and abetting the prisoners’ escape, the trial judge held that the defence of duress was available to the first accused, but not to the second, on the basis that the latter was a stranger to the woman the subject of the threat. On appeal, Smith J held that it was open to the jury to find duress in both cases. The other members of the court did not deal with the question. … In my view, the course of authority and the dictates of reasoning upon which the common law is founded support the conclusion of Smith J ([1967] VR 526 at 543): [W]here armed men, who appear to be fully prepared to kill to gain their ends, have taken possession of a house at gunpoint, and they have sent the accused out to execute a commission for them, retaining a hostage to ensure obedience to their commands, the threat to the hostage’s life, whether it is formulated in words or left unsaid, may be held to be, during the execution of the commission, sufficiently present and continuing, imminent and impending to found the defence of duress. [I] consider that the following affirmative proposition may be stated. Where the accused has been required to do the act charged against him (i) under a threat that death or grievous bodily harm will be inflicted unlawfully upon a human being if the accused fails to do the act and (ii) the circumstances were such that a person of ordinary firmness would have been likely to yield to the threat in the way the accused did and (iii) the threat was present and continuing, imminent and impending (as previously described) and (iv) the accused reasonably apprehended that the threat would be carried out and (v) he was induced thereby to commit the crime charged and (vi) that crime was not murder, nor any other crime so heinous as to be excepted from the doctrine and (vii) the accused did not, by fault on his part when free from the duress, expose himself to its application and (viii) he had

no means, with safety to himself, of preventing the execution of the threat, then the accused, in such circumstances at least, has a defence of duress … The second submission of law made … [for the applicant] concerns the objective test to be applied where there is evidence of an opportunity for the mind of the accused to reassert itself. … It will be recalled that in R v Hudson and Taylor ([1971] 2 QB 202 at 207) the Court, when referring to this question, added: ‘In deciding whether such an opportunity was reasonably open to the accused the jury should have regard to his age and circumstances, and to any risks to him which may be involved in the course of action relied upon.’ The submission is that the judge was bound, as a matter of law, to give a direction in terms of the passage quoted. This must mean the law required such a direction to be given in every case. In any case, whether civil or criminal, where a jury has to determine a question of reasonableness, that determination will have to be made according to the subject [page 433] matter, and the circumstances of the particular case. The question raised is one of fact. In some cases the tribunal, called on to determine this factual question, may properly regard considerations of one class of importance, and in another case considerations of a different class of importance. Where it is the jury which has to determine a question of reasonableness, a trial judge may well consider it proper to give them some assistance by directing their minds to a number of factual matters proper for their consideration. However, because directions are at times given on a particular line or even frequently, or because the jury are invited to consider particular matters does not elevate them to directions of law. In Hudson’s case the accused were young girls, so that it would be appropriate that the jury consider the matter of their age relative to the threat by adult males. The reference to age in that case does not elevate the reference there to age as a requirement of law that the jury be directed that age should be considered, even in cases of threat by an adult male to another adult male, as was the situation in the instant case.

Where an opportunity is open to an accused person to go to the police, of course, it will be relevant for the jury to consider, as one of the relevant circumstances, what the risks [sic] there will be to the accused, if he does report the matter to the police. The ultimate question which the law asks is whether there was opportunity reasonably open for the mind to reassert itself. If, of course, the opportunity to do something, eg go to the police, or to a friend’s home, or to hospital, will not free the accused from the risk of the threat being enforced, the opportunity is not one reasonably open for the mind to reassert itself. A mind still open to the threat will not be able to reassert itself. Thus the question of the risk involved, if the accused takes a particular course of action, is no more than a factual consideration bearing on whether he had an opportunity as legally defined. It may well be that, in a particular case, it is desirable, even important, that a judge direct the attention of the jury to this factual consideration, but it is not a direction of law which he is bound to give. On analysis, it will be seen that a similar factual question really arises in relation to the threshold question earlier discussed, whether the defence is available. In considering whether an ordinary person would have responded to the threat, the jury would have to consider the risks involved, if the threat were ignored. A threat does not carry with it certainty that the act threatened will be done. Often, even usually, it is made only to procure the doing of an act, the person making the threat hoping not to have to make the decision to carry out the threat. It follows that the jury, in any case of duress, will have to consider the risk the accused runs in ignoring the threat, or in taking some course of action to avoid it. On an ultimate analysis, the question whether there was a reasonable opportunity for the mind to reassert itself involves the same objective considerations as are involved in the question whether the threats themselves were such as an average person of ordinary firmness of mind would have acted as did the accused. If, in like circumstances, such a person would have taken an available course of action to avoid the operation of the threats so as to reassert his will, then it was an opportunity reasonably open. Conclusions Regarding Law relating to Duress The law of duress relevant to the present case is as follows:

(a) Where a person does acts otherwise criminal by reason only of his mind being then overborne by threats of death or serious bodily violence, whether to himself or to another, the defence of duress will be available, provided that an average person of ordinary firmness of mind, of a like age and sex, in like circumstances, would have done the acts. (b) Where it appears that the accused person fails to avail himself of an opportunity reasonably open to him for his will to be reasserted, the defence will not be available to him. The answer to this question will depend upon whether an average person of ordinary firmness of mind, of like age and sex, in like circumstances, involving [page 434] like risks in respect of the alternatives open, would have availed himself of the opportunity in question. (c) The extent to which it will be appropriate to give directions to the jury in relation to the relevance of particular circumstances, including any relevant risks if the threat is ignored, or the opportunity availed of, and in relation to the age and sex of the accused, will depend on the facts of the particular case, and the conduct of the trial. Although not necessary for decision in the present appeal, it should be added: (d) Consistency in the law would be served by applying the criteria in (a) and (b) where the law admits a threat of any other description as a possible basis for the defence of duress. In the present state of the law, it is unclear what other threats will be so admitted and on what policy or criteria the law will admit some, but exclude other, threats; and in relation to what crimes and in what circumstances. It is not clear which cases will be left outside duress as a defence to guilt, so that duress is left to be dealt with as a matter for mitigation of punishment, eg a threat to damage property. It would be consistent with common law principles that, so far as duress as a defence is to be admitted, this branch of the law should depend upon a rule of general application; and that any such rule should conform to standards regarded as acceptable by the general body of the

community. The principles of the common law would be served if the question whether the nature of the threat taken with the circumstances and with the nature of the crime committed under the influence of the threat, is sufficient for the defence to be available were determined in accordance with (a) above. It would have a parallel in the general principles applied in relation to the law regarding provocation. Such an approach would accommodate to the anomalies which concerned Lord Simon of Glaisdale in Lynch’s case ([1975] AC 653 at 657) quoted above. It would not be inconsistent with this approach that there be excluded, as a matter of law, from the defence some classes of threat. This might consistently be done either for particular policy reasons (as in Abbott v R [1977] AC 755), or by it being ruled, as a matter of law, that it was not to be open to a jury to find in such a case that an average person of ordinary firmness would have responded to such a threat to commit the particular crime. [Nagle CJ at CL and Yeldham J agreed with Moffitt P that duress involves an objective element. Appeal dismissed.]

9.7 Issues relating to duress received further consideration in Abusafiah. R v Abusafiah (1991) 24 NSWLR 531 NSW Court of Criminal Appeal [The accused was convicted of robbery. His defence was that he had been threatened by a person (El Atar) whom he feared would bash or shoot him if he did not do as he was told. The question of duress was left with the jury, who convicted him. He appealed inter alia on the basis that the judge had incorrectly directed the jury on duress.] Hunt J: … [His Honour first reviewed complaints about the trial judge’s direction on provocation, and other complaints about the direction on duress, and continued by considering the complaint about the direction that:] [page 435] The decisive question is whether an average person of the same

age and sex as the accused would have yielded to threats made against him. … [You] must ask yourselves in this case: am I satisfied beyond reasonable doubt by the evidence that the accused voluntarily took part in the crime? If you are so satisfied, no question of duress or coercion need further be considered by you. If you are not so satisfied, the Crown has failed to prove that the acts of the accused were voluntary, and therefore criminal acts, and your verdict should be not guilty. It was submitted to this Court that the jury should have been directed that: (i)

the question is whether the ordinary person could or might have yielded (not would);

(ii) in considering that question, they should have regard to the nature of the threats made and to the appellant’s knowledge of the character and reputation of the person making them; and (iii) in deciding whether the Crown had established that the accused voluntarily took part in the crime, they must consider the evidence relating to duress. [His Honour reviewed the submissions that had been made by counsel for the defendant to the trial judge and continued:] … It is, I think, correct to say that, since the judgment of Smith J in R v Hurley and Murray [1967] VR 526, the test has usually been stated in Australia as ‘would have been likely to have yielded’ … I do not agree that provocation and duress are truly analogous issues … In common law provocation, there must be a loss of self-control (as a result of the victim’s conduct) inducing the accused’s intention to kill or to inflict grievous bodily harm. In duress, the relevant act is done only because the accused has lost his free choice to refrain from doing the act, in that he did the act because he feared that the consequences of the threat were greater than those flowing from the crime he commits. His act can be said to have been induced by the threat (made by a third person it should be noted, and not by the victim) only in the most general sense; there is no loss of self-control. Provocation is also a partial defence only, in that it reduces the crime of murder to manslaughter. Duress is a complete defence, leading to an acquittal. …

The relevant direction in relation to the objective test should therefore be that the Crown must establish that there is no reasonable possibility that a person of ordinary firmness of mind and will would have yielded to the threat in the way the accused did. It was conceded before this Court that a direction in those terms would be unobjectionable. … Discussion of the objective test appears sometimes to have overlooked that what is involved is an evaluation of the behaviour of the accused by reference to a standard of reasonableness, not a prediction as to the way in which particular individuals may behave. … As I said earlier, the only threat which played any real part in the appellant’s case and which could have amounted to duress was that made by El Atar to shoot the appellant when he pointed the revolver at him. The jury could not rationally have come to any different decision in relation to that conduct if they had been directed that the question was merely whether a person of ordinary firmness of mind and will might have yielded to the threat in the way the accused did. It is obvious that the jury simply did not accept the evidence of the appellant as demonstrating even the reasonable possibility that El Atar had made such a threat. Similarly, I do not think that the use of the alternative formulation requested (‘would be likely to’ instead of ‘would’) would have made any difference in this case. … [page 436] Submission (ii) was directed to the statement in par 8: ‘The decisive question is whether an average person of the same age and sex as the accused would have yielded to threats made against him …’. Although no point was taken either at the trial or in the appeal, it is obvious that this direction should always be directed to the particular threats alleged to have been made to either the accused himself or members of his family, and not to threats generally. The submission which was made was that the jury should have been directed that, in considering the objective test, they should also have regard to the nature of the threats made and to the appellant’s knowledge of the character and reputation of the person making them. The judge did tell the jury that, in order to constitute duress,

the threat must be a real threat of danger to life or health. The accused gave evidence of the threat to shoot him. The jury could hardly have failed to have had regard to the nature of the threats made. The judge did not direct the jury to have regard to the appellant’s knowledge of the character and reputation of the person making them. … But he did draw their attention to the evidence given by the accused as to those matters, and he was not asked to add to those directions. I would refuse leave to the appellant to complain of the absence of any such direction in this appeal. Although no objection has been taken to its use in this case, I should add for the benefit of those who may otherwise imply assent by my silence that the expression ‘an average person’ … the precedent used by the judge is in my view inappropriate. The usual formulation is the ‘person of ordinary firmness and will’. That is a much wider concept than the average person, and includes a greater range of differing temperaments. … What the judge appears to have intended by the statement … to which objection is now taken was that, once the Crown had eliminated the reasonable possibility that the accused had acted under duress, and had established that he had acted voluntarily, no further question arose by way of defence. The directions relating to duress should be along the following lines: (1) The Crown, as I have said, must establish that the acts of the accused constituting the offence were done by him voluntarily. That those acts were in fact done would in most cases lead to the conclusion that they were done voluntarily. In the present case, however, it has been argued that you should not come to that conclusion because, it is said, the accused acted under duress or coercion. (2) The accused does not have to establish that he did act under duress. The Crown must establish that the acts of the accused were done voluntarily and, in order to do so, it must eliminate any reasonable possibility that he acted under duress. (3) It is always somewhat difficult to give directions upon the issue of duress in a way which completely avoids any

suggestion that the accused has raised that issue by way of a defence to the charge. You must nevertheless keep it firmly in mind at all times that it is the Crown which must eliminate any reasonable possibility that the accused acted under duress. (4) What the Crown must establish is one or the other of two things. It does not have to establish both of them. The first is that, when the accused did those acts, there is no reasonable possibility that he did so by reason of a threat that death or really serious physical harm would be inflicted upon him or upon his family if he did not do those acts. (5) If the Crown has failed to eliminate that particular reasonable possibility, it must establish in relation to any such threat which may reasonably have been made that there is no reasonable possibility that such was its gravity that a person of ordinary [page 437] firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to that threat in the way in which the accused did. (6) The Crown has to establish one or the other of those two things. It does not have to establish both of them. If it establishes either one or the other of them, and if you conclude from the whole of the evidence that the acts of the accused alleged to constitute the offence were done by him voluntarily, then you should go on to consider the other ingredients of the offence which I have already defined for you. (7) If, however, the Crown has not established either of those two matters relating to duress, or if you have not concluded from the whole of the evidence that the acts of the accused alleged to constitute the offence were done by him voluntarily, then you must find him not guilty of that offence. The judge should then explain how those directions may be applied to the facts of the particular case. Where the specific issues have been raised in relation to the facts of the particular case, the judge should, in the course of explaining the application of the law to those facts, direct the jury, for example:

(a) that duress may operate where the threat is directed to persons other than the accused himself if such a threat to those persons would be likely to coerce or compel the person of ordinary firmness of character to yield by committing the crime in question; (b) that, in deciding whether the threat alleged to have been made was of such a nature that the person of ordinary firmness and will would have yielded to it, they should have regard not only to the nature of the threat and its proportion to the crime committed but also to any circumstances known to the accused concerning the person making the threat which may reasonably have affected the ordinary person’s reaction to it; and (c) that the issue is whether the threat was still effective at the time when the crime was committed, and duress no longer operates if the Crown has established that the accused failed to take advantage of an opportunity which was reasonably open to him to render it ineffective. I do not claim that these suggested directions deal with every issue which may arise in relation to the issue of duress. [His Honour then proceeded to deal with the appellant’s appeal against his sentence.] [Gleeson CJ and Mahoney JA agreed with the reasons and orders of Hunt J. Appeal dismissed.]

9.8 Note that, as stated in Abusafiah (see 9.7), the threat must have been of such gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to the threat in the way that the accused did; and in the same case Hunt J rejected an analogy between duress and provocation. In R v Pimentel [1999] NSWCCA 401, there was no suggestion that a defence of duress could not necessarily arise after voluntary involvement in a joint criminal enterprise or criminal conspiracy by an accused. 9.9 Abusafiah and Pimentel were both considered in

Makrynikos. [page 438] Makrynikos v R [2006] NSWCCA 170 NSW Court of Criminal Appeal [The appellant had been convicted of being an accessory before the fact to the break and enter and steal from the premises of the Australian Government Analytical Laboratories (AGAL), pursuant to ss 112(1) and 346 of the Crimes Act 1900 (NSW), during which drugs to the value of $2m had been stolen. The appellant was employed by AGAL as a technical officer and it had been alleged that he had assisted the principal offenders by providing information about the premises, including a map detailing the layout of the area and details of the security and alarm systems. At trial he had given evidence that he had supplied this information only under threats of harm to him and his family by one of the principal offenders. One ground of appeal concerned the directions given by the trial judge to the jury, which, it was contended, were erroneous in that they invited the jury to approach the issue of duress by applying a purely objective test to the determination of questions regarding the reaction of the appellant to threats made to him and his ability to render those threats ineffective.] Hislop J: … 9 In R v Abusafiah (1991) 24 NSWLR 531 at 544–545 Hunt J (with whom Gleeson CJ and Mahoney JA agreed) suggested a form of directions which should be given in respect of the defence of duress. The direction was relevantly: [4] What the Crown must establish is one or the other of two things. It does not have to establish both of them. The first is that, when the accused did those acts, there is no reasonable possibility that he did so by reason of a threat that death or really serious physical harm would be inflicted upon him or upon his family if he did not do those acts. [5] If the Crown has failed to eliminate that particular

reasonable possibility, it must establish in relation to any such threat which may reasonably have been made that there is no reasonable possibility that such was its gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to that threat in the way in which the accused did … The judge should then explain how these directions may be applied to the facts of the particular case. Where the specific issues have been raised in relation to the facts of the particular case, the judge should, in the course of explaining the application of the law to those facts, direct the jury, for example: … [c] that the issue is whether the threat was still effective at the time when the crime was committed, and duress no longer operates if the Crown has established that the accused failed to take advantage of an opportunity which was reasonably open to him to render it ineffective. 10 Abusafiah was quoted with approval in R v Pimentel (Spigelman CJ, Dunford and Hidden JJ) [1999] 110 A Crim R 30 at [36] see also R v O’Brien (2003) NSWCCA 121 at [41]. 11 The Criminal Trial Courts Bench Book has provided a suggested duress direction which, drawing particularly upon Abusafiah, poses three questions: 1.

Was [the accused] driven by [the alleged threats] to act as [he/she] did because [the accused] genuinely believed that if [he/she] did not act in this way, [he/she/member of the accused’s family etc] would soon be killed or seriously injured.

2.

Would the threats that you have found were present have driven a reasonable person to act as [the accused] did. This is a somewhat more complicated question and requires you to look at the response of a reasonable person of ordinary firmness of mind and will, and of the [page 439] same sex and maturity as [the accused], to the threats which

faced [the accused], and in the circumstances in which [the accused] found [himself/herself]. I shall refer to this person as “a reasonable person”. 3.

Could [the accused] have avoided the effects of the duress by escaping from the threats without damage to [himself/herself/person threatened].

The law states that [the accused] cannot say that [he/she] could not avoid the effects of the duress if a reasonable person would have done so. 12 His Honour directed the jury, in writing and orally, essentially in terms of the suggested direction contained in the Bench Book. 13 At the hearing of the appeal appellant’s counsel accepted that Abusafiah and the questions suggested in the directions in the Bench Book accurately represented the law. However it was submitted his Honour, in his directions to the jury, erred in referring, on the second and third questions, to “a reasonable person” rather than to “a person of ordinary firmness of mind and will and of the same sex and maturity as the accused” and in referring to the second question as providing a purely objective test. 14 His Honour in his directions to the jury did, from time to time, make reference to “a reasonable person” in the context of the second and third questions. He also referred to an “objective test”. 15 However in his written directions to the jury on question two his Honour said that question: … requires you to look at the response of a reasonable person of ordinary firmness of mind and will, of the same sex and maturity as the accused to the threats which faced the accused and in the circumstances in which he found himself. I shall refer to this person as “a reasonable person”. The reactions of a reasonable person may or may not be the same as the reactions of the accused … You place a reasonable person of ordinary firmness of mind and will, and of the same maturity and sex as the accused, in his position, that is, in the setting and circumstances in which

he found himself, when he drew a map and gave other assistance to Raha and you attribute to that reasonable person the knowledge he had of the person, ie Raha, offering the threats. 16 In his oral directions to the jury his Honour immediately before stating the three questions said: Then to be duress it has to be such a nature that a person of ordinary firmness and strength of will — so you take someone of his age and maturity, the same maturity, same sex, a male and a person in his position, but a person of ordinary firmness and strength. So in a sense you are looking at an objective test. You say, what would a person, quite apart from him, what would a person of ordinary firmness and strength do a person of his age his maturity a man such as him, what would he do if this threat were made? Would that person have yielded to that threat? At the conclusion of his discussion of the second question his Honour directed the jury: So when you examine this question of what would have driven a reasonable person to act as he did, you have got to examine what he knew about this person and then you have got to examine what a person of reasonable firmness of mind and will of the same sex and maturity as the accused in the same circumstance in which he found himself. So it is a reasonable person. 17 Additionally, in discussing the third question, his Honour said: So in other words, would a reasonable person who had been forced to draw a map, a person of reasonable ordinary firmness of mind, same maturity and sex as the accused, would that person have contacted the police and told them what he had done and what was likely to happen, or would he contact Dr Westwood (his supervisor) with whom he is [page 440]

apparently quite friendly, and tell him what had happened and what was likely to happen. And then thus taken advantage of that opportunity and escaped from the threats. 18 There were other references to “a person of ordinary firmness of mind and will and of the same sex and maturity as the accused” in the summing up. In my opinion, on a fair reading of the written directions and summing up, the jury was adequately informed that the expression “a reasonable person” was used by his Honour as a shorthand expression for “a reasonable person of ordinary firmness of mind and will, and of the same maturity and sex as the accused” and the jury would have so understood such references. 19 His Honour referred in his directions to the second test as an objective test. It was submitted this detracted from the subjective element introduced into the second question by the reference to “maturity”. However his Honour made clear the sense in which he was referring to the test as objective in the direction quoted in paragraph [15] above. 20 The appellant further submitted there was error in identifying the onus of proof in relation to questions two and three. The essence of this submission was expressed in the following terms: His Honour cast the test in terms of a decision as to whether a reasonable person may have yielded or “on the other hand” may not have done so. This is not a proper application of law where the onus is on the Crown to prove a matter beyond reasonable doubt. 21 However this submission focuses on part only of his Honour’s direction. The full context was as follows: Now you may decide that a reasonable person may well have yielded in the same way the accused said he did. On the other hand you may decide a reasonable person may not have yielded. But the focus has got to be on this objective test of a reasonable person. What would a reasonable person have done? Not just what he would have done. Although as I say you may come to the conclusion that a reasonable person may well have done

what he did. That is matter for you to consider. If the Crown satisfies you there is no reasonable possibility that a reasonable person would have yielded in this way then you would answer this question no. 22 His Honour pointed to the possibility of the competing views as to the response of the reasonable person and then to the burden of proof upon the Crown. In my opinion it has not been demonstrated that his Honour’s direction as to the onus of proof was erroneous or misleading. He similarly referred to the possibility of competing views in respect of question three and in a number of places in the summing up referred to the onus which rested upon the Crown. 23 The appellant further submitted that his Honour failed to give sufficient emphasis to the evidence in the case from which it might be concluded the appellant was immature and the relevance of such evidence to the second and third questions. 24 There was evidence from which the jury could have concluded the appellant was immature for his age. The parties addressed the jury at some length on this issue. His Honour, in his summing up, reminded the jury of the evidence as to the appellant’s character and the evidence of the witnesses and put that evidence fairly and clearly before the jury. His Honour reminded the jury of the demeanour of the appellant throughout the trial and in the course of his evidence. 25 In my opinion the arguments as to the appellant’s immaturity and its impact were fairly and adequately summed up by his Honour to the jury. [His Honour then considered submissions in relation to whether or not the appellant had reasonable opportunity to escape the influence of the threat, and the directions he gave to the jury in relation to this.] … [page 441] 32 Subsequent to the completion of the hearing of the appeal the appellant sought and was granted leave to file additional submissions and the Crown leave to reply. The principal additional submission was that his Honour, in directing the jury, placed the

emphasis upon the notion of “a reasonable person” without sufficient regard to the relevant personal characteristics of the appellant. This submission seeks to expand questions two and three to have regard to the accused’s background and other personal characteristics. 33 The essence of the appellant’s submission was that the well established principles for which R v Abusafiah is authority must be reconsidered and questions two and three should be reformulated so as to encompass considerations based on the background and other personal characteristics of the accused. It was submitted Hunt J in Abusafiah, by reason of reference to Stingel v The Queen (1990) 171 CLR 312, a decision of the High Court relating to provocation, erred in rejecting the proposition that the background and other personal characteristics of the accused should be taken into account in the defence of duress. 34 In support of his submission that the background and other personal characteristics of the accused should be taken into account the appellant referred to decisions in other States namely R v Runjanjic (1991) 56 SASR 114, R v Williams (1997) 97 A Crim R 119 (Victoria), Rice v McDonald (2000) 1 13 A Crim R 75 (Tasmania) and to the speech of Baroness Hale in R v Hasan [2005] 2 Crim App 314. 35 However, as the Crown observed in its submissions, Hunt J in Abusafiah rejected the analogy between provocation and duress; the comments of Baroness Hale relied upon were made in relation to possible law reform whereas the English authorities do not favour a more subjective approach (see Lord Bingham in R v Hasan); the Tasmanian decision of Rice and the Victorian decision of Williams were influenced by legislation in those States. The Crown submitted there was no basis to reformulate the principles so as to encompass the background and other personal characteristics of the accused. 36 I reject the appellant’s submission. The first question involves a subjective test which is relatively easy to assert yet difficult to disprove. The second and third questions impose limitations upon the availability of the duress defence in order to contain the defence within sound and proper limitations. These limitations are

policy based with the intent that there is a measure of control of the duress defence. 37 Abusafiah has been authority for a significant period and has been applied without question. If the matter is to be reconsidered it may be a matter for the legislature, utilising the consultative process available to it, to undertake such reconsideration. 38 The remaining submission advanced, by leave, was that: The relevance of conduct of the appellant after the conduct in which he said to have acted under duress to the determination of the question whether the Crown had proved beyond reasonable doubt that he was not acting under duress at the time of the commission of the offence. 39 The proposition sought to be advanced by the foregoing submission is not clear. The submission sought to draw upon an analogy with the law of necessity. However whilst there may be some overlap between duress and necessity it is of no relevance in the present case. In any event to succeed in a defence of necessity the accused must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law — R v Rogers (1996) 86 A Crim R 542 at 547. That was not the case here. 40 For the above reasons I reject ground one. [McClellan CJ at CL and Rothman J agreed. Appeal on ground 1 dismissed.]

[page 442] 9.10 In R v Abdul-Hussain [1998] EWCA Crim 3528; [1999] Crim L R 570, the Court of Appeal of England and Wales (Criminal Division), in allowing appeals from convictions for hijacking based on ‘necessity derived from duress’, considered whether the reaction to the duress needs to be virtually spontaneous. The appellants were all Shiite Muslims from Southern Iraq. They hijacked a plane to escape death at the hands of the Saddam Hussein regime, from which they were fugitives. Lord Justice Rose (V-P) said (at [11]):

In our judgment, although the judge was right to look for a close nexus between the threat and the criminal act, he interpreted the law too strictly in seeking a virtually spontaneous reaction. He should have asked himself … whether there was evidence of such fear operating on the minds of the defendants at the time of the hijacking as to impel them to act as they did and whether, if so, there was evidence that the danger they feared objectively existed and that hijacking was a reasonable and proportionate response to it. Had he done so, it seems to us it that he must have concluded that there was evidence for the jury to consider. We stress that the prosecution did not seek to rely on a want of proportionality or to contend that duress was not capable of applying after the plane had landed. … It follows that, in our judgment, in the light of how he was invited to approach the matter, the judge should have left the defence of duress for the jury to consider. … We express no view as to proportionality or the continued availability of duress after Larnaca because, as we have said, these matters were not relied on before the judge and because, more significantly, there is no sufficient material before us as to the evidence on these matters. In any event, having concluded, for the reasons given, that the judge was wrong to withdraw the defence from the jury, the convictions of the appellants at the first trial must be regarded as unsafe. Their appeals are therefore allowed and their convictions quashed.

Would a reasonable person have acted as the accused did? 9.11 What characteristics of the accused should be invested in the reasonable person? In 1991, in Abusafiah (see 9.7), Hunt J listed only sex and maturity, as did Hislop J in Makrynikos in 2006 (see 9.9). Presumably, this would allow a very immature 20-year-old to be judged by the standard of, for example, a 15-year-old. What about pregnancy, physical disability, or mental or psychological illness? This issue was considered in R v Bowen [1996] EWCA Crim 1792; [1996] 2 Cr

App R 157 by the Court of Appeal of England and Wales (Criminal Division). The court dismissed the appeal of a defendant who was convicted of obtaining services by deception. The accused said he had responded to threats that harm would be done to him and his family if he did not commit the offences. A psychologist gave evidence that: … the appellant had an IQ of 68 and a reading age of a child of six years and eight months. His level of ability was in the lowest 2 percent of the population. She found him abnormally suggestible.

9.12 Stuart-Smith LJ said: (1) The mere fact that the accused is more pliable, vulnerable, timid or susceptible to threats than a normal person are not characteristics with which it is legitimate to invest the reasonable/ordinary person for the purpose of considering the objective test.

[page 443] (2) The defendant may be in a category of persons who the jury may think less able to resist pressure than people not within that category. Obvious examples are age, where a young person may well not be so robust as a mature one; possibly sex, though many women would doubtless consider they had as much moral courage to resist pressure as men; pregnancy, where there is added fear for the unborn child; serious physical disability, which may inhibit self protection; recognised mental illness or psychiatric condition, such as post traumatic stress disorder leading to learned helplessness. (3) Characteristics which may be relevant in considering provocation, because they relate to the nature of the provocation, itself will not necessarily be relevant in cases of duress. Thus homosexuality may be relevant to provocation if the provocative words or conduct are related to this characteristic; it cannot be relevant in duress, since there is no

reason to think that homosexuals are less robust in resisting threats of the kind that are relevant in duress cases. (4) Characteristics due to self-induced abuse, such as alcohol, drugs or glue-sniffing, cannot be relevant. (5) Psychiatric evidence may be admissible to show that the accused is suffering from some mental illness, mental impairment or recognised psychiatric condition provided persons generally suffering from such condition may be more susceptible to pressure and threats and thus to assist the jury in deciding whether a reasonable person suffering from such a condition might have been impelled to act as the defendant did. It is not admissible simply to show that in the doctor’s opinion an accused, who is not suffering from such illness or condition, is especially timid, suggestible or vulnerable to pressure and threats. Nor is medical opinion admissible to bolster or support the credibility of the accused. (6) Where counsel wishes to submit that the accused has some characteristic which falls within (2) above, this must be made plain to the judge. The question may arise in relation to the admissibility of medical evidence of the nature set out in (5). If so, the judge will have to rule at that stage. There may, however, be no medical evidence, or, as in this case, medical evidence may have been introduced for some other purpose, e.g. to challenge the admissibility or weight of a confession. In such a case counsel must raise the question before speeches in the absence of the jury, so that the judge can rule whether the alleged characteristic is capable of being relevant. If he rules that it is, then he must leave it to the jury. (7) In most cases it is probably only the age and sex of the accused that is capable of being relevant. If so, the judge should, as he did in this case, confine the characteristics in question to these.

9.13 R v Runjanjic (1991) 53 A Crim R 362 recognised that battered wife syndrome can be relevant to duress. In R v O’Brien [2003] NSWCCA 121 the Court of Criminal Appeal considered the adequacy of the trial judge’s direction on evidence of battered wife syndrome relevant to the defence

of duress in the context of a charge of materially contributing to a child’s death by gross negligence. Dunford J said: 42 The main ground of complaint about the summing-up … is that his Honour did not, after describing the subjective test, summarise those parts of Dr Nielssen’s evidence which were relevant to the subjective test, and then after describing the objective test direct their attention to those parts of Dr Nielssen’s evidence which were relevant to that test and how the hypothetical person in the same circumstances, i.e. a battered wife, would have acted as to withdrawing from the relationship etc …

[page 444] 45 It was apparent to the jury that [the expert’s] … evidence about the battered wife syndrome and its effect on the appellant went to the issue of duress; and to try and divide it up into sub-issues as suggested by the appellant’s submissions would, in my view, have only tended to confuse the jury, If [sic] anything further were needed to draw the jury’s attention to the battered wife syndrome and its relevance to the defence of duress, which I doubt, it was to be found in his Honour’s brief summary of the defence argument … and in his answer to the jury’s question … where express reference was made to … [the expert] evidence, the battered wife syndrome and the appellant’s capacity or otherwise to withdraw from the relationship.

Is an act done under duress a ‘voluntary’ act? 9.14 In DPP for Northern Ireland v Lynch [1975] AC 653, the House of Lords decided that the defence of duress was available in certain circumstances to a principal in the second degree to murder, without determining the situation of the principal in the first degree. The House of Lords rejected the suggestion that the defence of duress denies that an action was voluntary. Lord Morris of Borth-y-Gest said at 670: In my view the law has recognised that there can be

situations in which duress can be put forward as a defence. Someone who acts under duress may have a moment of time, even one of the utmost brevity, within which he decides whether he will or will not submit to a threat. There may consciously or subconsciously be a hurried process of balancing the consequences of disobedience against the gravity or the wickedness of the action that is required. The result will be that what is done will be done most unwillingly but yet intentionally. Terminology may not however much matter. The authorities show that in some circumstances duress may excuse and may therefore be set up as a special defence.

9.15 In Abusafiah (see 9.7), the trial judge, and Hunt J in the Court of Criminal Appeal, discussed the relevance of determining whether the acts done by the accused under duress were thereby involuntary. In his model directions for trial judges, Hunt J said at 544: The Crown, as I have said, must establish that the acts of the accused constituting the offence were done by him voluntarily. That those acts were in fact done would in most cases lead to the conclusion that they were done voluntarily. In the present case, however, it has been argued that you should not come to that conclusion because, it is said, the accused acted under duress or coercion.

9.16 This raises an interesting issue as to why duress is a defence. Is it that a person acting under duress is not acting voluntarily and, therefore, an essential element of criminal responsibility is absent, or is it that the person is excused or justified because of the circumstances in which the accused is placed? The issue of voluntariness in duress differs from the issue considered in Chapter 8, where it was said that an act was not voluntary because it was reflexive or was not accompanied by the will of the accused. Examples of situations where a person is not acting in a voluntary manner are where a person is sleepwalking, concussed or suffering a fit. These situations are not analogous to cases of duress.

Clearly, someone who robs another in the street is acting voluntarily in that that person’s actions are being controlled by his or her will, even though the person’s motive is to avoid harm threatened by another. If it is that an act performed under duress is considered a [page 445] voluntary act, then duress is a true defence — it is an act for which the law provides an excuse or justification. However, Abusafiah and other authorities make it clear that in cases where the Crown is not able to negate the reasonable possibility that the accused performed the act only under duress, then the Crown has failed to prove an essential element of the offence — that the act was ‘voluntary’.

Duress, murder and constructive murder 9.17 The traditional view is that duress (and necessity) can never be a defence to an allegation of murder where the accused is the actual killer. The starting point for this view is R v Dudley and Stephens (1884) 14 QBD 273. In that case, three shipwreck survivors killed and ate the fourth survivor in order to stay alive until they could be rescued. Their convictions for murder were held to be correct as their dire circumstances could not justify the deliberate taking of an innocent life. That duress could not be a defence to the actual killer has been confirmed in cases like DPP for Northern Ireland v Lynch [1975] AC 653 (see 9.14), and R v Howe [1987] AC 417. 9.18 There is, however, an issue of whether duress can be a defence to constructive murder. If A is charged with murder on the basis of constructive murder (ie, that the death occurred during or immediately after the commission of an offence punishable by 25 years’ imprisonment or life imprisonment, Crimes Act 1900 (NSW) (‘the Crimes Act’) s 18; and see 2.3), can A rely on duress or necessity to argue

that he or she is not guilty of the base offence and, therefore, is not guilty of constructive murder? This argument appears never to have arisen for consideration. 9.19 One view is that, if duress succeeds as a defence, it is merely excusing the accused’s criminal conduct, but does not deny that he or she committed the crime. As has been seen in Lynch at 9.14, duress is a plea in the form of confession and avoidance, with the accused admitting to all the elements of the crime, but seeking to be excused because of the duress. On that basis, it can be argued that the person committed the base crime and could, if no one had died, be excused for doing so by reason of duress but, because of the policy of the law, that person cannot rely on the defence where a death constituting murder has occurred. 9.20 Alternatively, it could be argued that the authorities on duress and murder do not apply to constructive murder, on the basis that they speak generally about ‘intentional’ murder, that is, where there was intent to kill (either by the accused or the person he or she has been forced to assist). It could be argued that the rule is based on the idea that a person cannot deliberately kill another to save himself or herself, but this leaves open the case where the death was unintentional and unforeseen (albeit it was still murder). 9.21 Following on from 9.17, an anomaly arises when a person, under duress, beats another with intent to cause grievous bodily harm. In that case, the accused can rely on duress if charged with, for example, assault with intent to inflict grievous bodily harm, but has no defence if the person dies, even though the accused did not intend or foresee the person’s death. Irrespective of the death, the intent and criminality are the same, but the defence is only available where there is no death. Lords Hailsham and Griffiths directly addressed this argument, albeit [page 446]

in obiter, in R v Howe [1987] AC 417. Notwithstanding the ‘anomaly’, the House of Lords unanimously agreed that duress was not available to the killer or anyone charged with murder. In R v Gotts [1992] 2 AC 412 at 424 Lord Jauncey (with whom Lords Templeman and Browne-Wilkinson agreed, Lords Lowry and Keith of Kinkel dissenting) said that the effect of Howe was that duress is no defence to murder in whatever capacity the accused is charged with that crime. 9.22 Although Howe and Gotts are not binding in Australia and do not deal with constructive murder, they are strong authority for the proposition that the defence of duress is never available in the context of murder, including constructive murder.

NECESSITY Elements of necessity 9.23 As noted at 9.4 and following, related to duress is the defence of necessity, or ‘duress of circumstances’, as the English cases describe it. Typically, duress arises where the accused is threatened with some grievous consequence in the event of failure to perform a criminal act. Necessity, on the other hand, arises where the accused chooses, rather than is ordered, to commit a crime because it is perceived as the lesser of two evils. 9.24 In Pommell v R [1995] EWCA Crim 7; [1995] 2 Cr App R 607, the Court of Appeal of England and Wales (Criminal Division) discussed duress of circumstances. The appellant had been charged with firearms offences. Kennedy LJ said: Police officers entered the appellant’s home to execute a search warrant. He was found lying in bed with a loaded gun

in his right hand. He was asked if the gun was his and he replied, “I took it off a geezer who was going to do some people some damage with it”. In the same bedroom police officers found a brown holdall containing ammunition … He said that he was going to hand the gun to his brother so that he could hand it to the police because his brother gets on with the police and had handed in guns in the past. There is an obvious attraction in the argument that if A finds B in possession of a gun which he is about to use to commit a crime, and if A is then able to persuade B to hand over the gun so that A may hand it to the police, A should not immediately upon taking possession of the gun become guilty of a criminal offence. The strength of the argument that a person ought to be permitted to breach the letter of the criminal law in order to prevent a greater evil befalling himself or others has long been recognised (see, for example, Stephen’s Digest of Criminal Law), but it has, in English Law, not given rise to a recognised general defence of necessity, and in relation to the charge of murder, the defence has been specifically held not to exist (see R v Dudley and Stephens (1884) 14 QBD. 273). Even in relation to other offences, there are powerful arguments against recognising the general defence. As Dickson J said in the Supreme Court of Canada in Perka et al v R (1985) 13 DLR. (4th) 1, at page 14: “… no system of positive law can recognise any principle which would entitle a person to violate the law because on his view the law conflicted with some higher social value”. The Criminal Code has specified a number of identifiable situations in which an actor is justified in committing what

[page 447] would otherwise be a criminal offence. To go beyond that and hold that ostensibly illegal acts can be validated on the basis of their expediency, would import an undue subjectivity into the criminal law. It would invite the courts to second-guess the

Legislature and to assess the relative merits of social policies underlying criminal prohibitions. However, that does not really deal with the situation where someone commendably infringes a regulation in order to prevent another person from committing what everyone would accept as being a greater evil with a gun. In that situation it cannot be satisfactory to leave it to the prosecuting authority not to prosecute, or to individual courts to grant an absolute discharge. The authority may, as in the present case, prosecute because it is not satisfied that the defendant is telling the truth, and then, even if he is vindicated and given an absolute discharge, he is left with a criminal conviction which, for some purposes, would be recognised as such. It was, as it seems to us, to meet this difficulty that the limited defence of duress of circumstances has been developed in English Law in relation to Road Traffic offences. It was first recognised in R v Willer (1986) 83 Cr App R 225, where the accused drove onto a pavement and in and out of a shopping centre in order to escape a gang of youths seeking to attack him and his passenger. Willer was followed and applied in R v Conway (1989) 88 Cr App R 159, in which the Court of Appeal quashed a conviction on a charge of reckless driving. Having considered existing authorities, text books and the proposals of the Law Commission, the Court in that case said at page 164: … it is still not clear whether there is a general defence of necessity or, if there is, what are the circumstances in which it is available. In our judgment, that is still the position, but the Court in Conway went on to say that necessity can be a defence to a charge of reckless driving where the facts establish duress of circumstances, that is to say when the defendant is constrained to drive as he did to avoid death or serious bodily harm to himself or some other person. Then came Martin, a decision to which we referred earlier in this judgment, and DPP v Bell (1992) RTR. 335, where the

defendant, whose alcohol level was over the prescribed limit, was pursued to his car and, fearing serious injury, drove some distance down the road. The Crown Court allowed his appeal on the basis of duress of circumstances, and an appeal by way of case stated was dismissed. The Divisional Court particularly noted the finding of fact that the appellant drove only some distance down the road and not, for example, all the way home, so that the defence of duress of circumstances continued to avail him. In DPP v Jones (1990) RTR. 33, it was held that any defence of necessity available to a driver would cease to be available if he drove for a longer period than necessary. Commenting on the case of Bell, Professor Sir John Smith has written: All the cases so far have concerned road traffic offences but there are no grounds for supposing that the defence is limited to that kind of case. On the contrary, the defence, being closely related to the defence of duress by threats, appears to be general, applying to all crimes except murder, attempted murder and some forms of treason, …: see (1992) CLR 176. We agree.

9.25 Often the circumstances giving rise to a claim of necessity come from external circumstances rather than human intervention, but in Rogers the accused attempted to escape from gaol to avoid threats of violence. The threat, however, was not in the form of an order ‘escape or we’ll hurt you’; rather, it was a perception [page 448] by the accused that escape was his only option, a situation, it was argued, that therefore justified his action. In considering Rogers’ arguments, the Court of Criminal Appeal discussed the elements of this defence. The Court of Criminal Appeal recognised that it is for the accused to establish a basis for

defence (the evidential onus) and for the Crown to negative it beyond reasonable doubt. R v Rogers (1996) 86 A Crim R 542 NSW Court of Criminal Appeal [The appellant was convicted of attempting to escape from lawful custody. He attempted to excuse his conduct on the grounds of necessity. He was attempting to escape permanently, or at least indefinitely. He said that he feared that within a few days a lifethreatening attack would be made upon him by another prisoner. The appellant, who had spent many years in custody, and had been attacked or threatened on previous occasions, consistently refused to go on protection. His reasons for this were given, but did not include any suggestion that he considered that he would be in even greater danger if he were on protection. The trial judge refused to leave the issue of necessity to the jury.] Gleeson CJ: … There was no dispute that the primary elements of the offence had been made out by the Crown. The only issue at the trial arose from the appellant’s attempt to excuse his conduct on the ground of necessity. After hearing evidence and argument, Luland DCJ took that issue away from the jury. That having occurred, conviction was inevitable. The appeal against conviction challenges the decision to take the issue of necessity away from the jury. It was common ground at the trial, and on this appeal, that, in certain circumstances, necessity can excuse conduct which would otherwise amount to the offence of escaping, or attempting to escape, from lawful custody. The incongruity involved should, however, be noted. The appellant was being held, against his will, in lawful custody. Yet, it is argued, it was not unlawful for him to escape, or attempt to escape. Presumably it would also have been not unlawful for a prison guard to have shot him if that were necessary to prevent his escape. Almost 500 years ago it was argued that a person may lawfully

escape from a burning gaol to save his life. (See Southwark LBC v Williams [1971] 1 Ch 734 at 746.) This is unsurprising if the assumption is that the prisoner would surrender himself to the authorities as soon as he put himself out of reach of the fire. In the present case, on the other hand, there was no suggestion other than that the appellant intended to remove himself permanently, or at least indefinitely, from the custody to which he had been sentenced, and in which he was being lawfully held. The trial was conducted upon the basis that the relevant law was as stated by the Full Court of the Supreme Court of Victoria in R v Loughnan [1981] VR 443. … Applying Loughnan, the trial judge held that there was no evidence fit to go to the jury on the issue of necessity, the appellant having failed to discharge the evidentiary onus in that respect. On appeal to this court it has been argued that, even accepting the law as stated in Loughnan, the issue of necessity should have been left to the jury. … The facts of the case have some similarities to those of Loughnan. The appellant in each case explained his conduct on the basis of an apprehension of a threat, from within the gaol, to kill him. … [page 449] [His Honour then considered the appellant’s long and complex custodial history, and continued:] … In the present case Luland DCJ, applying Loughnan, addressed three elements of the legal excuse of necessity. The first was the seriousness of the evil which the appellant claimed to be seeking to avoid. The evil here was the appellant’s death, and Luland DCJ found this element established. The second element was the immediacy or imminence of the peril. The third element was the proportionality or reasonableness of the response. His Honour found that there was no case fit to go to a jury on either of those two elements. … [Historically], it has been regarded as important to seek to limit the scope of the defence by referring to requirements such as urgency and immediacy. [I]t is … appropriate to treat those “requirements”, not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person’s belief as to

the position in which he or she is placed, and as to the reasonableness and proportionality of the response. In a case such as the present, where the accused’s conduct, otherwise unlawful, is sought to be excused on the basis that it was a response to a threat of death or serious injury to the accused, the first question is whether it was, in truth, such a response. Bearing in mind that, if there be a viable issue of necessity, the Crown bears the onus of negativing necessity, if the jury were to be satisfied beyond reasonable doubt that the attempted escape was for a different reason, that would be the end of the matter. It has not been argued that, in the present case, the jury were bound to be so satisfied. Putting questions of onus to one side, if the appellant acted as he did, honestly believing, on reasonable grounds, that escape from prison was necessary in order to avoid threatened death or serious injury, then his conduct would be excused. The relevant concept is of necessity, not expediency, or strong preference. If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined. … [T]he accused must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law. In United States v Bailey (1979) 444 US 394 at 410 Rehnquist J, speaking for the majority in the Supreme Court of the United States, said: Clearly, in the context of a prison escape, the escapee is not entitled to claim a defence by duress or necessity unless and until he demonstrates that, given the imminence of the threat, [escape] was his only reasonable alternative. In that context the word “demonstrate” is to be understood as a reference to an evidentiary, not a legal onus, as is made clear by the term “showing” which is used in the paragraph immediately following that which has been quoted. This basic requirement goes back to the earliest formulations of the defence of necessity. In Stephen’s Digest of the Criminal Law (1st Ed Ch 3, art 43; 9th Ed Ch

2 art 11) it is said that an act which would otherwise be a crime may, if certain conditions are fulfilled, be excused, and one of those conditions is that the harm sought to be avoided “could not otherwise be avoided”. The concept of reasonableness, in formulations such as … [that of] Rehnquist J, introduces into the consideration of possible alternatives an appropriate concession to practical reality. It is not, however, intended to provide scope for the making of choices or value-judgments of a kind which undermine the principle itself. Reasonableness is not designed to allow people to choose for themselves whether to obey the law. As was pointed out above, prisons are dangerous places, at least for some of the prisoners. However, in [page 450] recognition of this, there are established systems of protection. Taking advantage of these systems is not always attractive to a prisoner. It can involve a degree of isolation, removal of freedoms and privileges available to other prisoners, and other forms of hardship. When it is known that an offender being sentenced will serve the whole, or a large part, of his or her sentence on protection, a lesser sentence is sometimes imposed on that account alone. A reluctance or (as will appear is the case with the present appellant), an unwillingness, to go on protection may be understandable, but the principle of necessity is not intended to give prisoners who are threatened a choice between going on protection and removing themselves, permanently or indefinitely, from custody. If it did so, it would subvert the penal system. This is why considerations of reasonableness and proportionality go hand in hand. Considered in the abstract, and apart from any question of escape, it might be said that a prisoner’s choice not to be on protection, although risky, is reasonable. However, when a prisoner, who is threatened, claims that the law permits him to respond to that threat by removing himself altogether from the custody to which he has been lawfully sentenced, the question whether protection can be dismissed as a reasonable alternative takes on a different complexion. … We are not here dealing with a prisoner who has leapt a wall to escape a fire, and then surrendered himself when he reached

safety, or with a prisoner who has temporarily crossed a boundary in flight from a pursuing attacker. I do not intend to suggest that these are the only circumstances in which necessity could excuse escape, but the difference between those instances and the circumstances of the present case is such as to require close attention to the nature of the principle involved in the excuse and its relationship to the facts of the case. … Applying the principles discussed above to the facts of the case, and making full allowance for the fact that the Crown bore the onus of proof on necessity, if the facts of the case raised the issue, I consider that the trial judge was correct in his conclusion that the evidence did not raise an issue proper to be left to the jury. Bearing in mind the nature of the escape which was being attempted, the fundamental flaw in the appellant’s case on necessity was that there was available to him the alternative course of bringing the threat to the attention of the prison authorities and seeking protection. On the evidence in the case it was not open to a jury, properly instructed in the law, to reach any conclusion other than that this was a reasonable alternative to escaping. This constituted such an obvious weakness in the appellant’s case that, at trial, the primary argument advanced for the appellant was not necessity, but some form of ‘duress of circumstances’ falling short of necessity. However, as Luland DCJ rightly observed, the authorities establish that, if a prisoner cannot make out an excuse of necessity, there is no justification or excuse for escape from lawful custody to be found in some lesser form of duress, whatever that might be. The appeal against conviction should be dismissed. [Clarke JA and Ireland J agreed with Gleeson CJ. Appeal dismissed.]

9.26 In R v Cairns [1999] EWCA Crim 468; [1999] 2 Cr App Rep 137 the England and Wales Court of Appeal (Criminal Division) emphasised that necessity (or duress) must be judged in the circumstances as perceived by the defendant. Mantell LJ said: … a tragic incident occurred in which a young man, Anthony

Allen, suffered truly grievous injuries. He had been out with some friends that evening in a respectable suburb of Newcastle.

[page 451] The appellant had been asked by a woman friend to go out in his car and bring her some cigarettes. He was returning when he came upon the group of young people which included Mr Allen. Mr Allen (whom, it is fair to say, has little or no recollection of the events of that evening) presented himself in front of the car being driven by the appellant and somehow or other managed to clamber onto the bonnet, spread-eagled, so it has been described to us, with his face hard up against the windscreen, a frightening occurrence so far as the appellant was concerned, who is, so we are told, and I dare say could observe if we glanced in his direction, a small man and also somewhat timid. The appellant thought it wise to drive on. That he did for a significant distance, with Mr Allen in the posture which we have described. There came a time when he came to a speed hump in the road, and he applied his brakes, either before doing so or immediately after going over the speed hump, with the consequence that Mr Allen was dislodged from where he was on the bonnet and, so it appears from the photographs, deposited somewhere in front of the appellant’s motorcar. The appellant drove over Mr Allen … [T]he threat perceived by the defendant … [need not], in the event, prove to be an actual or real threat. [B]y way of example [is] the situation which may have obtained in this case, where the driver of the car perceived a threat coming from those who were pursuing the car and shouting as they did so, whereas in fact it may have been the case that those people were not intent upon attacking the appellant but rather to discourage their friend, who, in his drunken state, had placed himself upon the bonnet of the car.

The appeal against conviction for causing grievous bodily harm and dangerous driving was allowed.

Necessity and murder 9.27 While duress cannot be a defence to murder, so that a threat to one’s own life cannot justify killing another innocent person, the position is less clear where ‘necessity’ is involved. The dilemmas for the courts are highlighted by the Court of Appeal decision in Re A (Children). Re A (Children) (Conjoined twins: surgical separation) [2000] 4 All ER 961 Court of Appeal of England and Wales (Civil Division) [The court was faced with the dilemma of conjoined twins who were soon to die. The problem was that, if the twins were left together, both would die within a few months but, if surgery were performed to separate them, it was clear that one would die immediately but the other could be expected to live a normal life with a normal life expectancy. The trial judge had made an order to allow the surgery to be performed. The parents appealed. They opposed the surgery, preferring instead to let nature or God decide. Having determined on the basis of the best interests of the children that the operation should proceed, the members of the Court of Appeal had to consider whether it would be lawful to do so given that one of the twins would die as a result of being [page 452] separated from her sister and it was at least possible that this would, without lawful justification or excuse, amount to murder.] Brooke LJ: … We received some interesting and powerful submissions about the doctrine of necessity, and the ways in which it might be called in aid to justify the operation proposed by the doctors. Although for many years, cases involving pleas of necessity were notable for their absence from our caselaw, the doctrine has recently been given a new lease of life … [E]xtensions of the doctrine of necessity [to homicide] have been authoritatively disapproved as propositions of English law. For the disapproval of the idea that in order to save himself a man is entitled to deprive another of the place of safety he has already

secured for himself, see R v Dudley and Stephens (1884) 14 QBD 273 per Lord Coleridge CJ at pp 285–6 (‘if Lord Bacon meant to lay down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbour, it certainly is not law at the present day’) and R v Howe [1987] 1 AC 417 at 431 per Lord Hailsham of St Marylebone LC, to similar effect. … [His Lordship considered the legal background against which the case of R v Dudley and Stephens (1884) 14 QBD 273 was set, and continued:] Parliament has … to an increasing extent included ‘necessity’ defences or justifications in modern offence-creating statutes, and where such provisions are present the Parliamentary intention is clear. … The Abortion Act provides a particularly good example of this process at work, expanding and clarifying the law for the benefit of the courts and for everyone else who, for whatever reason, needs to have recourse to the law in this controversial area. Before its enactment Macnaghten J in the case of R v Bourne [1939] 1 KB 687; [1938] 3 All ER 615 derived a ‘necessity’ defence out of the word ‘unlawfully’ in Section 58 of the Offences against the Person Act 1861 (‘Any person who unlawfully uses an instrument with intent to procure a miscarriage shall be guilty of felony’). Macnaghten J said at p 691 that he thought that the word ‘unlawfully’ imported the meaning expressed by the proviso in Section 1(1) of the Infant Life Preservation Act 1929 (‘Provided that no person shall be guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother’). He went on to direct the jury at p 693: In such a case where a doctor anticipates, basing his opinion upon the experience of the profession, that the child cannot be delivered without the death of the mother, it is obvious that the sooner the operation is performed the better. The law does not require the doctor to wait until the unfortunate woman is in peril of immediate death. In such a case he is not only entitled, but it is his duty to perform the operation with a view to saving her life.

That … was the common law defence of necessity at work when a judge was interpreting what he believed Parliament must have meant when it used the word ‘unlawfully’ in a codifying statute. Parliament’s current intentions in this field are now clearly set out in the substituted Section 1(1) of the Abortion Act 1967. It would of course be very helpful, once Parliament has had the opportunity of considering the implications of the judgments in the present case, if it would provide similar assistance to the courts and to all other interested parties (and in particular parents and medical practitioners) as to what is legally permissible and what is not legally permissible in the context of separation surgery on conjoined twins. Parliament would of course now have to take account of the relevant provisions of the European Convention of Human Rights when formulating any new legislation … In addition to the major work that has been undertaken by Parliament in creating statutory excuses or justifications for what would otherwise be unlawful, the courts have [page 453] also been busy in this field, at all events in those cases where a defendant maintains that he/she was irresistibly constrained by threats or external circumstances to do what he/she did … The work of academic writers and of the Law Commission has, however, led to one significant development in the common law. This lies in the newly identified defence of ‘duress of circumstances’. The modern development of this defence began in the field of driving offences. … [His Lordship reviewed cases on driving offences, and numerous English and Canadian cases on duress and necessity, and continued:] I have described how in modern times Parliament has sometimes provided ‘necessity’ defences in statutes and how the courts in developing the defence of duress of circumstances have sometimes equated it with the defence of necessity. They do not, however, cover exactly the same ground. In cases of pure necessity the actor’s mind is not irresistibly overborne by external pressures. The claim is that his or her conduct was not harmful because on a

choice of two evils the choice of avoiding the greater harm was justified. … [I] turn finally to the question whether it is, uniquely, available in the present case to provide a lawful justification for what would otherwise be an offence of murder. … I have considered very carefully the policy reasons for the decision in R v Dudley and Stephens … These are, in short, that there were two insuperable objections to the proposition that necessity might be available as a defence for the Mignonette sailors. The first objection was evident in the court’s questions: Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? The second objection was that to permit such a defence would mark an absolute divorce of law from morality. In my judgment, neither of these objections are dispositive of the present case. Mary is, sadly, self-designated for a very early death. Nobody can extend her life beyond a very short span. Because her heart, brain and lungs are for all practical purposes useless, nobody would have even tried to extend her life artificially if she had not, fortuitously, been deriving oxygenated blood from her sister’s bloodstream. It is true that there are those who believe most sincerely — and the Archbishop of Westminster is among them — that it would be an immoral act to save Jodie, if by saving Jodie one must end Mary’s life before its brief allotted span is complete. For those who share this philosophy, the law, recently approved by Parliament, which permits abortion at any time up to the time of birth if the conditions set out in Section 1(1)(d) of the Abortion Act 1967 (as substituted) are satisfied, is equally repugnant. But there are also those who believe with equal sincerity that it would be immoral not to assist Jodie if there is a good prospect that she might live a happy and fulfilled life if this operation is performed. The court is not equipped to choose between these competing philosophies. All that a court can say is that it is not at all obvious that this is the sort of clear-cut case, marking an absolute divorce from law and morality, which was of such concern to Lord Coleridge and his fellow judges. There are sound reasons for holding that the existence of an

emergency in the normal sense of the word is not an essential prerequisite for the application of the doctrine of necessity. The principle is one of necessity, not emergency … There are also sound reasons for holding that the threat which constitutes the harm to be avoided does not have to be equated with ‘unjust aggression’. … If a sacrificial separation operation on conjoined twins were to be permitted in circumstances like these, there need be no room for the concern felt by Sir James [page 454] Stephen that people would be too ready to avail themselves of exceptions to the law which they might suppose to apply to their cases (at the risk of other people’s lives). Such an operation is, and is always likely to be, an exceptionally rare event, and because the medical literature shows that it is an operation to be avoided at all costs in the neonatal stage, there will be in practically every case the opportunity for the doctors to place the relevant facts before a court for approval (or otherwise) before the operation is attempted. According to Sir James Stephen, there are three necessary requirements for the application of the doctrine of necessity: (i)

the act is needed to avoid inevitable and irreparable evil;

(ii) no more should be done than is reasonably necessary for the purpose to be achieved; (iii) the evil inflicted must not be disproportionate to the evil avoided. Given that the principles of modern family law point irresistibly to the conclusion that the interests of Jodie must be preferred to the conflicting interests of Mary, I consider that all three of these requirements are satisfied in this case. … Robert Walker LJ: … There are various ways in which English criminal law gives effect to the general intuitive feeling that a defendant should not be convicted of a serious crime unless he did the prohibited act intentionally and in circumstances in which he should be held responsible for the consequences. Many of these are concerned with cases (which can all be loosely called cases of

necessity) where the defendant’s freedom of choice has in one way or another been constrained by circumstances. … There is another class of case in which a person may be faced with the dilemma of whether to save himself or others at the cost of harm or even death to a third person. The dilemma generally rises as the result of an emergency, and the examples (real or imagined) are typically concerned with disasters at sea, or emergencies during mountaineering or other hazardous activities. If a person, faced with such a dilemma, acts with the intention of saving his own life (or the lives of others) it may be said that that leaves no room for a guilty intention to harm or even kill the third person. Equally it may be said that although he must … be taken to have intended the death which he foresaw as virtually certain, he has a defence of necessity. That is the way the submission was put by Miss Davies. Of the many real and imagined examples put before the court it is worth mentioning two incidents which really did happen, although neither was the subject of a court decision. One is the awful dilemma which faced the commander of an Australian warship, in peacetime, when a very serious fire occurred in the engine room. He ordered the engine room to be sealed off and flooded with inert gas, in order to save the ship and the rest of the crew, although the order meant certain death for anyone who was still alive in the engine room. The other is the equally awful dilemma of a mountaineer, Simon Yates, who held his fellowclimber, Joe Simpson, after he had slipped and was dangling on a rope over a precipice at 19,000 feet in the Andes. Yates held Simpson for an hour, unable to recover him and becoming increasingly exhausted. Yates then cut the rope. Almost miraculously Simpson landed on a snowy ice bridge 100 feet below, and survived. When they met again Simpson said to Yates, ‘You did right’. … Duress of circumstances can … be seen as a third or residual category of necessity, along with self-defence and duress by threats. I do not think it matters whether these defences are regarded as justifications or excuses. Whatever label is used, the moral merits of the defence will vary with the circumstances. The important issue is whether duress of circumstances can ever be a defence to a charge of murder. There is authority that it can be a

defence to the very serious crime of aircraft hijacking contrary to s 1 of the [page 455] Aviation Security Act 1982 (for which the maximum punishment is life imprisonment): see R v Abdul-Hussain [1999] Crim LR 570. The judgment of the court in that case, delivered by Rose LJ, examined the development of the defence. Rose LJ stated the principles which he derived from the authorities, the first three [sic] principles being as follows: 1. Unless and until Parliament provides otherwise, the defence of duress, whether by threats or from circumstances, is generally available in relation to all substantive crimes, except murder, attempted murder and some forms of treason (R v Pommell [1995] 2 Cr App R 607 at 615). Accordingly, if raised by appropriate evidence, it is available in relation to hijacking aircraft; although, in such cases, the terror induced in innocent passengers will generally raise issues of proportionality for determination, initially as a matter of law by the judge and, in appropriate cases, by the jury. The courts have developed the defence on a case-by-case basis, notably during the last 30 years. Its scope remains imprecise (R v Howe [1987] 1 AC 417 at 453-454; Hurst [1995] 1 Cr App R 82 at 93). Imminent peril of death or serious injury to the defendant, or those to whom he has responsibility, is an essential element of both types of duress (see Southwark LBC v Williams [1971] 1 Ch 734 at 746, per Lord Justice Edmund-Davies; R v Loughnan [1981] VR 443 at 448 (by the majority), at 460 (the dissentient); and R v Cole [1994] Crim LR 582). … In the absence of Parliamentary intervention the law as to the defence of necessity is going to have to develop on a case by case basis, as Rose LJ said in R v Abdul-Hussain. I would extend it, if it needs to be extended, to cover this case. It is a case of doctors owing conflicting legal (and not merely social or moral) duties. It is a case where the test of proportionality is met, since it is a matter of life and death, and on the evidence Mary is bound to die soon in

any event. It is not a case of evaluating the relative worth of two human lives, but of undertaking surgery without which neither life will have the bodily integrity (or wholeness) which is its due. It should not be regarded as a further step down a slippery slope because the case of conjoined twins presents an unique problem. … [The Court of Appeal unanimously dismissed the parents’ appeal.]

Necessity and abortion 9.28 Abortion — the termination of a pregnancy — is prima facie illegal, but the defence of necessity has been held to authorise a medical practitioner to perform an abortion in certain circumstances. The key to the defence is the use of the word ‘unlawfully’ in ss 82–84 of the Crimes Act. The sections do not state that it is impermissible to do the things listed, only that it is impermissible to do them unlawfully. 82 Administering drugs etc to herself by woman with child Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.

[page 456] 83 Administering drugs etc to woman with intent Whosoever: unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage,

shall be liable to imprisonment for ten years. 84 Procuring drugs etc Whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman, whether with child or not, shall be liable to imprisonment for five years.

9.29 The test accepted by lawyers and medical practitioners to determine the ‘lawfulness’ of the termination of a pregnancy was formulated in 1971 by Levine DCJ in R v Wald (1971) 3 DCR (NSW) 25 at 29. It was applied by Helsham CJ in Eq in K v Minister for Youth and Community Services [1982] 1 NSWLR 311 (NSW SC Eq Div) and affirmed by the Court of Appeal in a civil context in CES v Superclinics. CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 NSW Court of Appeal [This was a civil case for damages arising out of the defendant’s failure to diagnose the plaintiff’s pregnancy in time to allow her to have an abortion. The defendant argued that there should be no damages payable as the plaintiff’s loss was the lost opportunity to perform an illegal act. The trial judge, Newman J, accepted the defendant’s submission on this point. The plaintiff appealed to the Court of Appeal.] Kirby A-CJ: … The test adopted by Levine DCJ in Wald resembles, for the most part, that earlier propounded by Menhennitt J in the Supreme Court of Victoria in R v Davidson [1969] VR 667. Menhennitt J was there dealing with a statutory provision identically worded. His Honour determined in Davidson (at 672), that in order to establish the unlawfulness of an attempt to procure a miscarriage: … the Crown must establish either (a) that the accused did not honestly believe on reasonable grounds that the act done by him was necessary to preserve the woman

from a serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail; or (b) that the accused did not honestly believe on reasonable grounds that the act done by him was in the circumstances proportionate to the need to preserve the woman from a SERIOUS DANGER TO HER LIFE OR HER PHYSICAL OR MENTAL HEALTH (NOT BEING MERELY THE NORMAL DANGERS OF PREGNANCY AND CHILDBIRTH) which the continuance of the pregnancy would entail. (Emphasis added) Substantially the same test was adopted in Wald. However, Levine DCJ broadened the focus on the Davidson test, which essentially concentrated on the medical grounds for abortion. His Honour added (at 29) as part of the test, that: … it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute [page 457] reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health. (Emphasis added) The Wald test therefore allows a consideration of the economic demands on the pregnant woman and the social circumstances affecting her health when considering the necessity and proportionality of a termination. … Levine DCJ went on to say (at 29): … It may be that an honest belief be held that the woman’s mental health was in serious danger as at the very time when she was interviewed by a doctor, or that her mental health, although not then in serious danger, could reasonably be expected to be seriously endangered at some time during the currency of the pregnancy if uninterrupted. In either case such a conscientious belief

on reasonable grounds would have to be negatived before an offence under s 83 of the Act could be proved. (Emphasis added) The appellants’ submissions before this Court did not seek to challenge the interpretation which the word ‘unlawful’ has been given in Wald and in the few cases since in which it has been thought necessary to consider it. Nor did the respondents dispute the Wald test. However, there is one anomaly in the test to which I must draw attention. The test espoused by Levine DCJ seems to assert that the danger being posed to the woman’s mental health may not necessarily arise at the time of consultation with the medical practitioner, but that a practitioner’s honest belief may go to a reasonable expectation that that danger may arise ‘at some time during the currency of the pregnancy, if uninterrupted’ (emphasis added). There seems to be no logical basis for limiting the honest and reasonable expectation of such a danger to the mother’s psychological health to the period of the currency of the pregnancy alone. Having acknowledged the relevance of other economic or social grounds which may give rise to such a belief, it is illogical to exclude from consideration, as a relevant factor, the possibility that the patient’s psychological state might be threatened after the birth of the child, eg due to the very economic and social circumstances in which she will then probably find herself. Such considerations, when combined with an unexpected and unwanted pregnancy, would, in fact be most likely to result in a threat to a mother’s psychological health after the child was born when those circumstances might be expected to take their toll. This view of the Act is supported by the opinion of de Jersey J in Veivers (Veivers v Connolly (1994) Aust Torts Reports 81–309). There a woman claimed damages from a medical practitioner for negligently failing to carry out a blood testing necessary to determine whether or not she had rubella. Had it been determined that she was suffering from rubella, a termination of pregnancy would have been recommended. Instead, the patient gave birth to a child with severe physical and mental deficiencies. De Jersey J rejected the submission for the medical practitioner that the only relevant ‘serious danger to mental health’ related to the period of

the pregnancy itself. Instead, he found that the ‘serious risk’ to the first plaintiff’s mental health crystallised with the birth of the terribly disabled child. There is every reason of logic and consistency why this approach should be followed. I would do so. Newman J did not address his attention to the effect of continuation of the pregnancy on the psychological health of the first appellant after the birth of the child, when the economic and social circumstances in which she found herself would foreseeably have their greatest effect. [Priestley JA, in a separate judgment, agreed with Kirby A-CJ. Meagher JA dissented. The court ordered a new trial.]

9.30 In CES v Superclinics, the Court of Appeal approved Wald, and held that negligent advice resulting in loss of a chance to have a lawful abortion would give rise to a claim for damages. Kirby A-CJ held that the danger to the woman’s health under the Wald test may be constituted by social, economic and medical grounds, [page 458] and need not be one expected to arise only during the course of the pregnancy. An anomaly with the Wald test is that it focuses on the state of mind of the accused, who can be expected to be the doctor and not the woman who seeks the termination. It is the medical practitioner’s assessment of the impact of the pregnancy upon the woman, not her own assessment, that determines whether the termination is lawful. For a test that focuses on the woman, see the Health Act 1911 (WA) s 334. 9.31 The Victorian Law Reform Commission recommended the decriminalisation of abortions performed by medical practitioners in Law of Abortion, Final Report 15 (2008). The recommendation has been implemented by the Abortion Law Reform Act 2008 (Vic).

SELF-DEFENCE Common law background 9.32 Duress and necessity illustrate the criminal law’s recognition that, in narrowly defined circumstances, people who honestly felt compelled to do as they did should escape criminal responsibility even though what they did involved serious damage to others. Defence of self, others, and property provide further illustrations of this preparedness to recognise compulsion. But while duress and necessity cannot be used to excuse the intentional infliction of death (except in perhaps the most extreme case of necessity), the deliberate killing of another in self-defence can be excused. 9.33 If self-defence is raised by the accused, the Crown must prove, beyond reasonable doubt, that the defence does not apply (Crimes Act s 419). The trial judge may be obligated to raise it if there is a real evidentiary basis for the defence (Douglas v R [2005] NSWCCA 419). 9.34 The leading Australian common law case on selfdefence is Zecevic v DPP (Vic) (1987) 162 CLR 645; 71 ALR 641. The principles stated in that case were developed in the context of self-defence as a defence to murder, but the principles would apply under the common law to offences such as assault and wounding with intent. Zecevic has been abrogated in New South Wales by ss 418–423 of the Crimes Act, which apply to offences generally, including murder. Before examining these provisions, it is instructive, for the sake of comparison, to consider exactly what might have so concerned the New South Wales Government in the High Court’s decision in Zecevic. 9.35 In Zecevic, the appellant had been convicted of murder after the trial judge withdrew the issue of self-defence from

the jury. The judge had concluded that the only inference open on the evidence was that the accused did not reasonably believe that an unlawful attack threatening him with death or serious bodily harm was about to be made against him. Applying the decision of the High Court in Viro v R (1978) 141 CLR 88, his Honour held that the defence must fail. The High Court unanimously allowed the appeal. However, the court was divided on the question of the use of excessive force and murder. [page 459] Zecevic v DPP (Vic) (1987) 162 CLR 645; 71 ALR 641 High Court of Australia Wilson, Dawson and Toohey JJ: … Self-defence, as we now know it, was essentially exculpatory in its origin and the fact that it now falls to be excluded by the prosecution rather than proved by the defence does not alter its true nature. … 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 if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application and is not limited to cases of homicide. Where homicide is involved some elaboration may be necessary. … Murder consists of an unlawful killing done with intent to kill or to do grievous bodily harm. Recklessness may be put to one side as having no apparent relevance in the context of self-defence. Manslaughter also consists of an unlawful killing, but without such an intent. A killing which is done in self-defence is done with justification or excuse and is not unlawful, though it be done with intent to kill or do grievous bodily harm. However, a person who kills with the intention of killing or of doing serious bodily harm can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response. A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm. If the response of an

accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence. That is to say, the killing will have been without justification or excuse and it will be for the jury to determine how it must be regarded. If it was done with intent to kill or to do grievous bodily harm, then unless there was provocation reducing it to manslaughter, it will be murder. In the absence of such an intent it will be manslaughter. … When upon the evidence the question of self-defence arises, the trial judge should in his charge to the jury place the question in its factual setting, identifying those considerations which may assist the jury to reach its conclusion. In attempting to identify those considerations in any abstract manner here, there is a danger of appearing to elevate matters of evidence to rules of law. For example, it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered. However, the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial judge should also offer such assistance by way of comment as is called for in the particular case. No doubt it will often also be desirable to remind the jury that in the context of self-defence it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection. … Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it [page 460] will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon

reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence. … What we have said involves a departure from the propositions which were accepted in Viro, but it is necessary to refer specifically to only two of the differences. In Viro self-defence is confined to a response to an unlawful attack, whereas the law as we have explained it is not so confined. Whilst in most cases in which selfdefence is raised the attack said to give rise to the need for the accused to defend himself will have been unlawful, as a matter of law there is no requirement that it should have been so. … Thus, for example, self-defence is available against an attack by a person who, by reason of insanity, is incapable of forming the necessary intent to commit a crime. It is, however, only in an unusual situation that an attack which is not unlawful will provide reasonable grounds for resort to violence in self-defence. The whole of the surrounding circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist — where, for example, he is engaged in criminal behaviour of a violent kind — then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design. A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack. The second difference lies in the treatment of the use of excessive or disproportionate force. As we have expressed the law,

the use of excessive force in the belief that it was necessary in selfdefence will not automatically result in a verdict of manslaughter. If the jury concludes that there were no reasonable grounds for a belief that the degree of force used was necessary, the defence of self-defence will fail and the circumstances will fall to be considered by the jury without reference to that plea. …

9.36 The key to the decision in Zecevic is in the statement in the joint judgment of Wilson, Dawson and Toohey JJ (at CLR 661; ALR 652) that: 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 if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application and is not limited to cases of homicide.

As their Honours suggest, the formulation is of general principle and can be applied to any offence from assault to murder. An accused who believed, and had reasonable grounds to believe, that what he or she had to do was in selfdefence is not guilty. That formulation was generally accepted. [page 461] 9.37 The key difference in the judgments in Zecevic relates to the question of the use of excessive force and murder. In Viro v R (1978) 141 CLR 88 the High Court, led by Mason J, had held that if a person used fatal force in the belief that it was needed, but that belief was not reasonable, then he or she should be found guilty of manslaughter, not murder. The joint judgment in Zecevic, supported by Mason J and Brennan J, rejected that view. In the view adopted by the majority, self-defence either succeeded or it did not. If the accused used fatal force and either did not believe that it was necessary to use that force, or had no reasonable grounds for

that belief, the defence failed and the accused stood to be judged according to the ‘ordinary’ law; that is, if he or she intended to kill or cause grievous bodily harm, it was murder. If the accused intended to apply some force but did not intend to kill or cause grievous bodily harm, and did not realise that death would be the probable outcome of his or her actions, the result would be manslaughter. 9.38 Deane and Gaudron JJ, in separate judgments in Zecevic (see 9.34–9.37) considered that it should remain the case at common law that where a person had an honest but unreasonable belief that it was necessary to kill in selfdefence, then, consistent with Viro, the result should be manslaughter. This view has been legislated into effect in New South Wales, pursuant to the Crimes Amendment (SelfDefence) Act 2001 (NSW).

Legislative statement of self-defence 9.39 In New South Wales, a new statutory regime (Crimes Act ss 418–423) for self-defence was created pursuant to the Crimes Amendment (Self-Defence) Act 2001. These amendments restored the pre-Zecevic position preferred by Deane and Gaudron JJ (see 9.38) in relation to the use of ‘excessive force’. The use of excessive force in self-defence creates a new category of voluntary manslaughter (see 3.39). As Howie J emphasised in Katarzynski (see 9.41), it is not a codification of the common law. 9.40 Sections 418–423 of the Crimes Act provide as follows. 418 Self-defence — when available (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.

[page 462] 419 Self-defence — onus of proof In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence. 420 Self-defence — not available if death inflicted to protect property or trespass to property This Division does not apply if the person uses force that involves the intentional or reckless infliction of death only: (a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass. 421 Self-defence — excessive force that inflicts death (1) This section applies if: (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary: (c) to defend himself or herself or another person, or (d) to prevent or terminate the unlawful deprivation of

his or her liberty or the liberty of another person. (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter. 422 Self-defence — response to lawful conduct This Division is not excluded merely because: (a) the conduct to which the person responds is lawful, or (b) the other person carrying out the conduct to which the person responds is not criminally responsible for it. 423 Offences to which Division applies (1) This Division applies to offences committed before or after the commencement of this Division, except as provided by this section. (2) This Division does not apply to an offence if proceedings for the offence (other than committal proceedings) were instituted before the commencement of this Division.

Elements of self-defence 9.41 The questions which must now be considered by the jury were stated by Howie J in Katarzynski. The relevance of self-induced intoxication to self-defence was also considered. It should be noted that these are the reasons the trial judge gave for giving certain directions to the jury, so are not a binding precedent. [page 463] R v Katarzynski [2002] NSWSC 613 NSW Supreme Court Howie J: 1. … The deceased was shot by the accused following a number of altercations between them in a hotel … There is ample evidence before the jury that the accused was intoxicated as a result of his

voluntary consumption of alcohol at the time of the shooting. There is no issue that the accused committed the act which caused the death of the deceased although it will be a matter for the jury to determine whether the act causing death was voluntary and whether the accused at the time of firing the gun had the necessary mental state for the offence of murder. 2. The Crown has conceded that on the evidence led in the trial it is open for the jury to find that there was a real possibility that when the accused shot the deceased he was acting in his own selfdefence. The Crown has also conceded that the applicable law relevant to that issue is Part 11 Division 3 of the Crimes Act 1900 (NSW). … [His Honour set out ss 418–423 and continued:] 4. The evidence in this trial would appear to give rise to a consideration by the jury of whether the accused was acting in selfdefence under s 418(2); that is whether there is a reasonable possibility that he believed his conduct in firing the hand gun three times toward the deceased was necessary to defend himself and, whether such conduct was ‘a reasonable response in the circumstances as he perceived them’. Depending upon what decision the jury comes to on that issue, it may be open for it to find the accused guilty of manslaughter under the excessive force provision in s 421. 5. At the close of the Crown case I raised with counsel the interpretation of s 418(2) and in particular whether the accused’s intoxication was a relevant matter to a determination of the reasonableness of his response to what he perceived to be the threat to him presented by the deceased at the time that he fired the hand gun, a bullet from which passed through the deceased’s heart. To understand the point it is necessary to refer briefly to the most recent history of the law of self-defence in this State. 6. At common law, at least since Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645, the question to be asked by a jury when considering the issue of self-defence on a trial of murder was whether there was a real possibility that the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did when his act caused the death of the deceased. If the Crown did not prove beyond reasonable doubt

either that the accused did not hold such a belief or that he had no reasonable grounds for such a belief, he was to be acquitted: Dziduch (1990) 47 A Crim R 378 at 379–380. It was the accused’s belief, based upon the circumstances as the accused perceived them to be, which has to be reasonable and not the belief of the reasonable man: R v Hawes (1994) 35 NSWLR 294 at 306. 7. In Conlon (1993) 69 A Crim R 92 Hunt CJ at CL, as a trial judge sitting without a jury, had to consider the relevance of the accused’s intoxication by alcohol and cannabis on the issue of selfdefence. His Honour determined that intoxication was relevant both to a consideration of whether the accused had reasonable grounds for his belief that it was necessary to act to defend himself and the reasonableness of his response to his perceived need to defend himself. … 9. His Honour then proceeded to consider a number of English cases and the decision in McCullough v R [1982] Tas R 43 in which the view had been taken that the intoxication [page 464] of the accused was irrelevant to a consideration of the reasonableness of his response to the threat he perceived. Hunt CJ at CL refused to follow those cases in light of statements made by members of the High Court in Zecevic v DPP. His Honour concluded: In my opinion, therefore, I should take into account the voluntarily induced intoxication of the accused in the present case — 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 — in determining whether the Crown has established that there were no reasonable grounds for a belief by him that it was necessary in self-defence to fire the bullet into the head of Hulands which in fact caused his death, with the intention of at least inflicting grievous bodily harm upon him. 10. The common law, therefore, provided that self-defence existed where the accused (a) believed that he was called upon to defend

himself, (b) that his conduct was necessary in order to defend himself and (c) that he had reasonable grounds for each of those beliefs. The intoxication of the accused was relevant to a consideration of each of those matters. [His Honour considered the history of the legislation and continued:] 18. In the present case the Crown has contended that, even if Conlon represented the common law position on the assessment of reasonable grounds for the accused’s belief as to what conduct was necessary in self-defence, it does not represent the position with respect to a ‘reasonable response’ under s 418, which provision, it was submitted does not, and was not intended to, codify the common law. The Crown’s submission was that, although intoxication is relevant to an assessment of the belief held by the accused as to what conduct was necessary in his self-defence and as to the circumstances perceived by the accused, it is not relevant to an assessment of the reasonableness of the accused’s response to those circumstances. 19. Mr Cusack QC for the accused has argued that the common law as stated by Hunt CJ at CL should be maintained in the interpretation of s 418 as, in his submission, the terms of the section do not manifest a clear intention on the part of the Parliament to displace the common law requirement that intoxication be considered both when determining the belief of the accused and the reasonableness of his conduct. He points out that had Parliament wished to bring about the result, for which the Crown contends, it could have easily done so by using the term ‘a reasonable person’ which would have picked up s 428F of the Crimes Act. That section states: If, for the purposes of determining whether a person is guilty of an offence, it is necessary to compare the state of mind of the person with that of a reasonable person, the comparison is to be made between the conduct or state of mind of the person and that of a reasonable person who is not intoxicated. 20. However, it should be noted that s 418(2) is concerned not with the state of mind of a reasonable person but with the

reasonableness of the conduct of the accused having regard to his or her state of mind. 21. In my view the Crown’s submission should be accepted. I acknowledge that to do so is a departure from the common law position as pronounced in Conlon to the possible detriment of an accused person but such a result flows from a consideration both of the words of the section and of the history of the legislation that I have set out briefly above. 22. The question now posed for the jury, where there is evidence raising self-defence, is not the same as it was at common law after Zecevic v DPP and as it was considered in Conlon. The questions to be asked by the jury under s 418 are: (1) is there is [sic] a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and, (2) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them. [page 465] 23. The first issue is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second issue is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he or she faced. The Crown will negative self-defence if it proves beyond reasonable doubt either (i) that the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence or (ii) that what the accused did was not a reasonable response to the danger, as he or she perceived it to be. 24. The issue as to the reasonableness of the accused’s response is objective in so far as the jury is not concerned with what the accused believed was necessary to respond to the circumstances as he or she perceived them to be. The current provision is not concerned with whether the accused’s belief as to what was the necessary response was a reasonable one or whether he or she had reasonable grounds for that belief. This is where the current provisions are in contrast to the position at common law: the accused need not have reasonable grounds for his or her belief that

it was necessary to act in the way he or she did in order to defend himself or herself. It is sufficient if the accused genuinely holds that belief. 25. It will be a matter for the jury to decide what matters it should take into account when determining whether the response of the accused was reasonable in the circumstances in which he or she found himself or herself. The jury is not assessing the response of the ordinary or reasonable person but the response of the accused. In making that assessment it is obvious than some of the personal attributes of the accused will be relevant just as will be some of the surrounding physical circumstances in which the accused acted. So matters such as the age of the accused, his or her gender, or the state of his or her health may be regarded by the jury. Whether or not some particular personal characteristic of the accused is to be considered will depend largely upon the particular facts of the case. 26. But in my opinion one matter that must be irrelevant to an assessment of the reasonableness of the accused’s response is his or her state of sobriety. As was pointed out in McCullough, it is logically incongruous ‘to contemplate the proposition that a person’s exercise of judgment might be unreasonable if he was sober, but reasonable because he was drunk’. Apart from Conlon, I am not aware of any other decision that has held that intoxication is a matter relevant to an evaluation of the reasonableness of the conduct or belief of a person. It is not relevant at common law to an evaluation of the accused’s response to provocation or the belief of a reasonable person as to the dangerousness of the accused’s actions for the offence of manslaughter. … 27. … As I have indicated s 418 is not, and was not intended to be, a codification of the common law. Further, the general policy adopted by the legislature in respect of the relevance of intoxication to the criminal law is contained in Part 11A of the Crimes Act. The provisions of that Part have limited the use that a court can make of the fact that an accused is intoxicated when considering criminal responsibility. In my view, if the policy enunciated in Part 11A were not adopted in construing s 418, the result would be to create an illogical and unacceptable inconsistency in the criminal law of this State with regard to the relevance of intoxication to criminal responsibility.

28. For these reasons I directed the jury to the effect that they must take into account the accused’s intoxication when considering whether he might have believed that it was necessary to act as he did in defence of himself and when considering the circumstances as he perceived them, but not when assessing whether his response to those circumstances was reasonable.

[page 466] 9.42 On appeal to the Court of Criminal Appeal in R v Katarzynski [2005] NSWCCA 72, the appeal against conviction was dismissed. The Court of Criminal Appeal in R v Burgess; R v Saunders [2005] NSWCCA 52 considered the causal connection required between the conduct claimed to give rise to the defensive response and that response. The Court of Appeal did not disagree in any respect with the formulation of Howie J. 9.43 According to Howie J in R v Katarzynski [2002] NSWSC 613, the issue in self-defence is not how an ordinary or reasonable person would have responded. Rather, it is whether the actual response of the accused was reasonable in the circumstances as he or she perceived them to be. 9.44 In determining the nature and honesty of the accused’s actual perception of the circumstances, his or her personal attributes and circumstances may be taken into account. At common law (see R v Conlon (1993) 69 A Crim R 92, considered by Howie J in Katarzynski), self-induced intoxication could be taken into account in determining (1) the accused’s actual perception, and (2) the reasonableness of his or her response in light of that alcohol-affected perception. In Katarzynski, however, Howie J ruled that intoxication must not be taken into account in determining whether the accused’s response, in the circumstances as the accused perceived them, was reasonable; that is, that intoxication can no longer be taken into account with respect to (2).

9.45 In Crawford v R [2008] NSWCCA 166 Fullarton J (with McClellan CJ at CL and Hidden J agreeing) stated at [22]: In R v Katarzynski … Howie J considered the effect of Part 11 Div 3 of the Crimes Act on the issue of self-defence at common law. His Honour emphasised that s 418(2) is concerned not with the state of mind of a reasonable person but with the reasonableness of the conduct of the accused having regard to his or her state of mind. As applied to the facts of this case, it was sufficient if the appellant satisfied the jury that there was a reasonable possibility that he believed his conduct was necessary in order to defend himself, and a reasonable possibility that what he did was a reasonable response to the circumstances as he perceived them.

9.46 The decision of Howie J in Katarzynski is consistent with Pt 11A of the Crimes Act, the effect of which is to allow self-induced intoxication to be taken into account in determining the accused’s perception of the circumstances and their belief. But what of his or her personality disorder or mental condition — are these factors able to be considered in such assessment? For discussion on this point see R v Kurtic (1996) 85 A Crim R 57, a decision under the common law. As stated above (see 9.39), ss 418–423 are not a Code, so that the common law continues to apply unless expressly or by clear implication excluded.

Excessive force that inflicts death 9.47 Section 421 of the Crimes Act creates an alternative category of manslaughter. It applies where the accused is on trial for murder. Section 421 presupposes a situation where the accused would be liable for murder but for the availability of self-defence. In order to operate, it presumably requires that the accused intended [page 467] to kill or inflict grievous bodily harm but formed that intent

in response to a threat of harm against himself or herself. 9.48 Where there was ‘excessive force’, the person is to be found guilty of manslaughter if he or she would be ‘otherwise criminally responsible for manslaughter’ (s 421(2)). For the accused to be ‘otherwise criminally responsible for manslaughter’ it would presumably be necessary to show that his or her action was voluntary and caused the death of the deceased. 9.49 In Trevenna, the Court of Criminal Appeal considered an appeal, brought by the Director of Public Prosecutions, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), against a sentence as manifestly inadequate. The sentence was imposed by the trial judge (Buddin J). The Crown ultimately accepted the respondent’s plea of guilty to manslaughter. This was in circumstances where the respondent accepted that her conduct, within s 421 of the Crimes Act, was not a reasonable response in the way she used force inflicting death on the deceased, though she believed her conduct necessary to defend herself against an imminent threat to her life from the deceased. R v Trevenna (2004) 149 A Crim R 505; [2004] NSWCCA 43 NSW Court of Criminal Appeal Santow JA: [In the course of considering the appeal by the Crown against sentence, his Honour dealt with the new statutory regime for self-defence:] … 34. Before turning to the competing contentions of the parties, I deal with the statutory regime in comparison to the common law as applicable to excessive self-defence. This is in order to bring out those generic factors which here bear upon sentence. 35. The new Part 11 Division 3 contains a statutory code regulating self-defence. It was introduced into the Crimes Act by the Crimes Amendment (Self-Defence) Act 2001 on 18 December 2001. The new Division 3 largely follows the report on Model Criminal Code (‘the Code’) as developed by the Model Criminal Code Officers

Committee of the Standing Committee of Attorneys-General in its chapter 2 ‘General Concepts of Criminal Responsibility’. Previous to this new section, the common law concerning self-defence as explained by Zecevic v DPP (Vic) (1987) 162 CLR 645 at 661, required that: … 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 if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. 36. The test at common law is whether there are reasonable grounds for the belief actually held. That therefore starts with what the accused actually believed, rather than substituting the belief of a hypothetical reasonable person. However, that is immediately qualified by the requirement that the grounds be, in an objective sense, reasonable grounds; compare second reading speech 12 December 2001, where this is said not to provide a completely objective test. 37. We are presently concerned with two provisions of that statutory code which [were] substituted, namely s 418 and s 421, quoted earlier. 38. The common law, as I have said, simply required an actual belief, upon reasonable grounds, that the conduct was necessary in self-defence. The new s 418 expands on the [page 468] purpose required for conduct believed necessary in self-defence. Its purpose must be to defend a person (accused or third party), liberty or property; or else to prevent criminal trespass. The necessity at common law for objectively reasonable grounds for that belief is expressed in the statutory requirement that the response be reasonable. That objective reasonableness of response is to be assessed however ‘in the circumstances as he or she perceives them’, perception being in that sense subjective. Compare R v Viro (1978) 141 CLR 88 where ‘reasonably believed’ was held to mean, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself. Under s 418, like the Model Criminal

Code, someone who really thought they were in danger, even if mistaken about that perception, may be able to rely on self-defence for their actions — unless the conduct in the circumstances so perceived was not ‘a reasonable response’. Codification of what constitutes ‘self-defence’ thereby refines and elaborates on the common law elements, but without introducing any major change. 39. Section 421 then, differing from the Code as the explanatory note to the Bill explains, reduces murder to manslaughter in the case of excessive self-defence, that is, where the defendant uses force that inflicts death and that is not a reasonable response in the circumstances, but where the defendant believed it was necessary for personal defence or for preventing or terminating unlawful deprivation of liberty. … Thus if an offender believes it necessary to act in a certain way, but the conduct which manifests itself from this belief is unreasonable in the circumstances as perceived then the person will be found guilty of manslaughter rather than murder where that person has used force that involves the intentional or reckless infliction of death. This was essentially the common law position explained by the High Court in R v Viro (supra). There it was held that selfdefence which was necessary, but which involved the use of excessive force causing death, would lead to a finding of manslaughter instead of murder, where either (a) provocation was present, or (b) the jury is not satisfied beyond reasonable doubt that the accused did not have the belief that the force he used was reasonably proportionate to the danger which he believed he faced (per Stephen, Mason and Aickin JJ). 40. More recently, Zecevic (supra) (at 662) explains the pre s 421 common law position, in terms emphasising the necessity for provocation or absence of intent to kill or do grievous bodily harm to reduce what would otherwise be murder to manslaughter: If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that

the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence. That is to say, the killing will have been without justification or excuse and it will be for the jury to determine how it must be regarded. If it was done with intent to kill or to do grievous bodily harm, then unless there was provocation reducing it to manslaughter, it will be murder. In the absence of such an intent it will be manslaughter … 41. The statutory provisions are so recent that, so far as research reveals, there are but two cases on them. They are R v Nguyen [2002] NSWSC 536 and at trial, R v Cioban [2002] NSWSC 972 and very recently on appeal Cioban v R [2003] NSWCCA 304 (21 October 2003). The appeal judgment in Cioban post-dates the judgment of Buddin J in the present case. The statute provides no guidelines as to sentence beyond the general provisions of s 24 setting the maximum sentence for manslaughter at 25 years. 42. What then of the earlier common law as applied in cases on excessive self-defence, insofar as these are capable of providing any guidance for sentencing purposes? Here two caveats must be borne in mind. One is the need to have regard to where, as I have [page 469] explained, the statutory regime modified or refined the common law. The other is the difficulty of attributing a meaningful sentencing range, where ‘of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability’; R v Blacklidge (CCA, unreported, 12 December 1995) per Gleeson CJ with whom Grove and Ireland JJ agreed. Similarly Perry J in R v O’Donnell [2002] SASC 183 (13 June 2002) at 24 quoting Martin J in R v Duke [2000] SASC 254, Court of Criminal Appeal (unreported) at 43: Matheson J referred to the sentencing remarks of Wells AJ in R v Shaw SASC (unreported) in which his Honour had observed that at the lowest range of criminality manslaughter may be little more than a practical joke that went wrong, and at its highest it stops just short of murder. As King CJ said in Weinman at 248, ‘the facts and

circumstances of a crime of manslaughter are so varied that it is questionable whether decisions of an appellate court can establish any intelligible standards’. Bollen J expressed the same view. 43. Those caveats require a degree of care in seeking assistance from earlier common law cases on excessive self-defence. But they do not stand in the way of ascertaining those generic factors from the cases which, in their preponderant effect, demonstrate that a particular sentence is outside the range appropriate to the objective gravity of the offence so as to be either manifestly excessive or manifestly lenient. 44. In an appendix to this judgment I have set out by way of comparison to the present case generic factors affecting sentence in the two other s 421 cases and in comparable common law cases which preceded s 421. Those cases (both under the common law and s 421) show a wide range of factual circumstances, subjective factors and, it must be emphasised, sentences. At one end of the sentencing spectrum there is R v Gazdovic [2002] VSC 588 where no custodial sentence was imposed. At the other end is O’Donnell v R (supra), where the claimed self-defence was rejected, though the offender was still charged with manslaughter. He received a non-parole sentence of 8 years with an additional 4 years. However apart from O’Donnell, where the only factor favouring leniency was the age of the offender, who killed another in a drunken brawl, all the other head sentences and non-parole periods were shorter than in the present case, including both the other two cases on s 421, and each of the comparable common law cases. This is save for R v Azar (1991) 56 A Crim R 414, where the head sentence was shorter by one year, but the non-parole period was the same; factors favouring stringency though were stronger than the present case as I explain. I do consider that significant, in terms of range of sentence. 45. Nonetheless generic factors, objective and subjective, repeatedly arise as relevant to sentencing in excessive self-defence cases whether at common law or under statute. I set these out below [note: references are deleted]: (a) the offender was carrying the weapon prior to the time of the offence … or deliberately armed himself to rejoin an affray;

(b) threat to offender’s life from a stronger assailant or one who is armed; (c) an abusive history present in the relationship between the offender and the deceased or involving the deceased with others; (d) contrition; (e) age; (f)

character of the offender;

(g) guilty plea, its value and timeliness; (h) the offender was the original aggressor; (i)

the offender’s previous criminal record; (j) the offender was on parole;

(k) pre-planning of the offence; [page 470] (l)

the offender was charged with other offences related to the incident;

(m) rehabilitation prospects; (n) dependent children; (o) drugs and/or alcohol involved in the incident; (p) depressive illness on the part of the offender; (q) continued attack after the deceased had been subdued; (r)

the offender lied to police about his or her involvement in the crime.

46. The cases demonstrate that manslaughter in these circumstances is often a crime committed under conditions of fear of varying degrees of extremity. … but even more extreme is the actual and immediate threat to life as occurred in the present case. The cases frequently contain an element of reaching for the nearest possible weapon available … [as in] the present case. [James and Barr JJ agreed with Santow JA that the Crown’s appeal to increase sentence should be dismissed. With Santow JA

dissenting, the respondent’s appeal against sentence was dismissed.]

Response to lawful conduct or non-criminal conduct 9.50 In Viro the court appeared to limit the availability of self-defence to an unlawful attack. In Zecevic (see 9.35) the judgment of Wilson, Dawson and Toohey JJ makes it clear that this is no longer the case; that is, following Zecevic, the common law prescribed that the defence of self-defence is available even in circumstances where the aggressor’s actions may be lawful, or in cases where the aggressor may well not be criminally responsible for his unlawful actions due to the availability of a defence such as mental illness (see Chapter 8). This position is reflected in the New South Wales statutory regime pursuant to s 422 (see 9.39).

Defence of others and defence of property 9.51 The new legislative statement of self-defence extends to both defence of others (s 418(2)(a)) and defence of property (s 418(2)(c)). Section 420 states that self-defence does not apply: … if the person uses force that involves the intentional or reckless infliction of death only: (a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass.

DEFENCES TO NON-FATAL OFFENCES 9.52 The defences described in this and the previous

chapters apply generally to offences under the criminal law. Provocation is probably not a defence to attempted murder at common law (R v Farrar (1991) 53 A Crim R 387; compare McGhee v R [page 471] (1995) 183 CLR 82), but may be to serious assaults such as wounding with intent to murder (R v Newman [1948] VLR 61). Note also the defence of lawful correction provided by s 61AA of the Crimes Act (see, generally, Chapter 5).

DISCUSSION QUESTIONS 9.53 What issues are raised for the criminal law relating to the defences discussed in this chapter by the following scenarios? 1.

A’s dog is a child substitute, whom A loves. X kidnaps the dog and says she will kill it unless A steals a CD which X badly wants from V’s record store. A steals the CD, but is caught.

2.

X, a serial sex offender and murderer, has A’s daughter strung up in the basement, and says to A that he will continue torturing the girl to death unless A kills V. A kills V and his daughter is released.

3.

A1 and A2 are members of a terrorist organisation. X says that he will kill the child of A1 and A2 unless they assassinate V, the head of a rival organisation. X has killed other children in like circumstances in the presence of A1 and A2. A2 drives the car while A1 shoots V dead from the moving vehicle.

4.

A is in a sinking boat with her son. The life raft is damaged and will hold only one, at best. A thinks she alone has a chance in the life raft, because if it sinks a

long swim will be required. A thinks that her son has no chance, and that if she tries to include him in the life raft she too will drown. A is a single mother, and has five young children waiting for her on shore. A throws her son out of the life raft. She reaches safety but her son drowns. 5.

A is forced to act in an emergency, when a forest fire is racing towards him, by entering top-secret prohibited Commonwealth premises, vital to the war against terrorism, where there is a pool in which he can immerse himself to escape the fire.

6.

A’s plane has crashed in winter in snowbound, impenetrable mountains. No rescue is possible before spring. A kills V, to which the other passengers, A2 and A3, do not object. A’s plan is that they eat V over the winter months, so that all but V can survive until spring.

7.

Same scenario as in 6, except that, had they looked, A, A2 and A3 would have found a stocked survival hut just over the hill.

8.

A is babysitting X and is with her in a park when X’s father V appears, demanding that A allow V to take X away from him. A is the lover of V’s wife Y, the mother of X. A is aware that V and Y are in a custody dispute over X, but is unaware of the details. He does not know that the Family Court has ordered that V have access to X on this particular day, and that this has been denied by Y. A refuses to hand over the child to V, so V grabs X and runs off with her in the direction of his car. A uses a knife that he is carrying to stab V, a much bigger man, saying that he genuinely believed that this was the only way available to prevent V from ‘abducting’ X. A says that the thought that

[page 472] flashed through his mind at the time of stabbing V was that V might have been intent on leaving the country with X. 9.

A’s corner store is constantly being held up by young kids from the neighbourhood, who keep stealing the contents of the till and anything else that takes their fancy. The police show no interest. There is ethnic conflict in the area, in which the police do not want to become involved. Finally, at his wits end, A manages to grab, from outside the door of his store, one of the younger, weaker members of the gang, whom A recognises as he is passing by, and bundles this gang member, V, into the cold room and locks the door. He keeps V locked in the cold room for some hours, and releases V only when he calculates that he will be near death from exposure to extreme cold. He did this, he says, in order to deter gang members from constantly robbing his store; and, in fact, it can be established that he achieved his purpose: following V’s mistreatment at A’s hands the gang members moved on to another area, where they began to target another shopkeeper of the same ethnicity as A.

10. A had been on holiday with his partner X in a povertyridden part of the world when they were set upon by a gang of starving street urchins, who carried A’s partner off into the night, having beaten A into unconsciousness. When X’s body was later found it had been dismembered and part of it had been eaten. Back in Sydney recuperating, A wanders out of his bedroom intoxicated to find V, a child (later found to have been aged 12), whom he neither knows nor recognises, simply standing and staring at him in the hallway. A vision of X springs to A’s mind and A

immediately responds by picking up the nearest object (which happens to be a large and heavy candelabra), using it to beat V over the head. V dies.

[page 473]

10 Attempt, conspiracy and complicity INTRODUCTION 10.1 The discussion of criminal responsibility has thus far been focused upon the person who has performed the physical elements of a crime accompanied by the necessary fault elements. But in some circumstances liability can be imposed even though it cannot be established that the accused actually brought into effect the physical elements of an offence. Thus, with respect to a particular criminal offence, for example, the murder of a person, an accused who cannot be found to have completed the offence may be found, nevertheless, to have attempted murder, conspired to commit murder, or been complicit in a murder committed by someone else. 10.2 Concepts considered in this chapter which extend the basic notion of criminal responsibility are: ‘attempts’, where a person is liable to criminal punishment for trying to commit a crime even if unsuccessful; ‘conspiracy’, where the mere making of an agreement

may be criminal; and ‘complicity’, where criminal liability is extended to people who help, or encourage, or act in concert with the principal or main offender.

Inchoate terrorism crimes 10.3 Existing common law crimes such as attempt and conspiracy are inchoate, because they operate at a time when a specific offence is envisaged in the minds of the perpetrators, even though the activity required for its actual commission has not [page 474] been completed. Commonwealth terrorism offences take the concept of inchoate crime back to a point in time even before it could be said that activity towards a specific crime has begun. An example is s 101.2 of the Criminal Code Act 1995 which provides: 101.2 Providing or receiving training connected with terrorist acts (1) A person commits an offence if: (a) the person provides or receives training; and (b) the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and (c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b). Penalty: Imprisonment for 25 years. (2) A person commits an offence if: (a) the person provides or receives training; and (b) the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b). Penalty: Imprisonment for 15 years. (3) A person commits an offence under this section even if: (a) a terrorist act does not occur; or (b) the training is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or (c) the training is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.

10.4 The scope of a similar provision, s 101.5 of the Criminal Code, was considered by the High Court in R v Khazaal (2012) 289 ALR 586; [2012] HCA 26 where the court decided that the words ‘connected with’ had no special or technical meaning. Reference is made in Chapter 11 to the impact generally of anti-terrorism legislation on the fundamental rules and traditions of the criminal justice system of New South Wales (see 11.24).

ATTEMPT Introduction 10.5 An attempt to commit a crime demonstrates the same criminal intention and willingness to break the criminal law as its actual commission and is, therefore, punishable by that law. The result is that a person who, for example, shoots at another intending to kill that person cannot, and should not, escape criminal punishment just because, by good fortune, the shot is wide and the intended victim escapes injury.

[page 475] 10.6 There are a large number of specifically defined attempt offences, for example, wounding with intent to murder (Crimes Act 1900 (NSW) (‘the Crimes Act’) s 27) and attempted sexual intercourse with a child (s 66D), to name but two. With the specific attempt offences under the Crimes Act, there is no difficulty in defining the required physical (see 1.69) and fault (see 1.70) elements. For example, if it is established that the accused, when apprehended, was loitering a block away with a screwdriver in his hands which he intended to use to damage the intended victim’s motor vehicle, then the accused would have committed the specific attempt offence of ‘possessing an article with intent to damage property’ contrary to s 200 of the Crimes Act. The physical element of this offence is ‘possession … of an article’, and the mental element is ‘intention … to [use it] … to damage property …’, as clearly stated in s 200 itself. But if it could be established that the accused, still a block away, intended to break off the aerial of the victim’s vehicle using not an article, but only his bare hands, would an attempt to damage property contrary to s 195 of the Crimes Act be established? For such non-specific attempt offences attention must turn to the common law. Section 344A provides for their punishment, but no definition of their physical and mental elements is stated. 344A Attempts (1) Subject to this Act, any person who attempts to commit any offence for which a penalty is provided under this Act shall be liable to that penalty. (2) Where a person is convicted of an attempt to commit an offence and the offence concerned is a serious indictable offence the person shall be deemed to have been convicted of a serious indictable offence.

By the provision of s 162 of the Criminal Procedure Act 1986

(NSW) on the trial for an indictable offence, the accused can be convicted of an attempt or an assault with intent to commit the offence charged.

Common law on attempt 10.7 The common law on attempt was considered in Britten v Alpogut. Britten v Alpogut [1987] VR 929; (1986) 23 A Crim R 254 Full Court, Supreme Court of Victoria [The appellant had been charged with attempting to import cannabis into Australia. The magistrate hearing the matter had dismissed the information based on the law set out in Haughton v Smith [1975] AC 476 and R v Bugg [1978] VR 251. The Crown appealed to the Supreme Court. Gray J ordered that the matter should be determined by the Full Court. The appellant believed he was bringing cannabis into the country. In fact he was carrying an anaesthetic (procaine), which was not a prohibited import within s 233B(1) of the Customs Act.] Murphy J: … The grounds [of the appeal] were: 1.

That the magistrate erred in law in holding that the respondent had no case to answer. [page 476]

2.

That the magistrate erred in law in holding that the respondent could not be convicted of attempting to import narcotic goods into Australia namely a quantity of cannabis, in circumstances where what the applicant had imported into Australia was discovered ultimately not to have been cannabis. …

[When the magistrate] … looked at the decision of the House of Lords in Haughton v Smith [1975] AC 476 and found that five Law Lords had unanimously affirmed the judgment of the Court of Appeal, delivered by Lord Widgery CJ, the Magistrate dismissed the information on the ground that there was no case to answer. The headnote of that decision in the authorized report of Haughton v Smith read in so far as relevant: ‘that it was not possible to convert

a completed case of handling, which was not itself criminal because it was not the handling of stolen goods, into a criminal act by the simple device of alleging that it was an attempt to handle stolen goods on the ground that at the time of handling the accused falsely believed them still to be stolen’. This Court is now asked to decide that Haughton v Smith does not declare the common law in Victoria. In that case, the accused had been charged on indictment that he had attempted to handle stolen goods knowing or believing them to have been stolen. Unknown to the accused, the goods though originally stolen had been intercepted by the police en route to the accused, and under police instructions they were then delivered to the accused. The accused was not charged with the offence of handling, because it was believed by the prosecution that the goods were no longer stolen goods: see s 24(3) of the Theft Act 1968 (Eng). Following the conviction of the accused, he appealed on the ground that he should not have been convicted of an attempt to commit an offence when in the circumstances he could not in law have committed the offence itself. His appeal succeeded. … The fact that the crime of attempting to commit another offence is separate altogether from that other offence and depends for its criminality upon the intention of the actor is emphasized in R v Higgins (1801) 2 East 5; 102 ER 269 where Lord Kenyon, Grose and Lawrence JJ all stressed the distinction, relying in turn upon the doctrine laid down by Lord Mansfield in R v Scofield (1784) Cald Mag Cas 397. Lawrence J’s words, at (2 East) p 21, were: The doctrine laid down by Lord Mansfield in R v Scofield which comprises all the principles of the former decisions, entirely governs the present case; that so long as an act rests in bare intention, it is not punishable by our laws; but immediately when an act is done, the law judges not only of the act done, but of the intent with which it is done; and if accompanied with an unlawful and malicious intent though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable. That case is ably

reported, and contains everything convincing which can be said on the subject. There are however older authorities to the same purpose. His Lordship went on to refer to those older authorities. It will be seen that in the law of attempt the emphasis lies on the criminal intent of the actor, rather than on the patent criminality of the act which he performed. The act itself may be innocuous. The intention which the Crown must prove is an intention to bring about each element of the crime alleged to be attempted, and it must be proven that this intention is accompanied side by side by an act sufficiently proximate to the offence attempted to take it out of the class of mere preparatory acts. The latter consideration has been developed in many subsequent cases and is not a matter of any moment in the present case. If a charge of attempting to commit a crime is to lie, it is of course usual (though perhaps not necessary cf Webley v Buxton [1977] 2 QB 481) that the crime attempted [page 477] fails, for one reason or another. That the crime attempted fails also assists to emphasize that the law, in punishing criminal attempts, is really punishing the person concerned for his criminal intention, so as to deter or neutralize dangerous individuals, and does not punish to deter dangerous acts as such. … This is so even though: ‘The mere intent to commit a misdemeanour is not criminal — some act is required’: see R v Eagleton (1855) Dears CC 515, at p 538, per Baron Parke. Thus John Austin wrote, in Lectures in Jurisprudence, 1861, p 120, ‘where a criminal intent is evidenced by an attempt, the party is punished in respect of the criminal intention’. See also JWC Turner, ‘Attempts to Commit Crime’ (1933) 5. Camb LJ 230, p 235; Russell on Crime 10th ed, p 1784; PJ Fitzgerald, Criminal Law Punishment, 1962, pp 97–8. … In my opinion, it can be said that before Haughton v Smith the law of attempt punished a manifest criminal intention to commit a crime which was not accomplished. For some inexplicable reason the law of attempt became

involved with the question whether or not the crime attempted could have been in fact accomplished by the accused. It was thought by some that the accused could not be convicted of an attempt to commit a particular crime, when on the facts of the case it would not have been possible for the accused to commit the crime in question. Immediately, there was a confusion demonstrated between a relevant step in the commission of a possible crime and a relevant step in the commission of an intended crime, but one not capable of being accomplished. Courts began to ignore the importance of the intention of the accused and tended to concentrate on the question whether what was done was a step towards a crime, which if uninterrupted, would have been committed. … It was at this stage that the embryo of the heresy in Haughton v Smith was conceived. [His Honour proceeded to explore the heresy, and concluded:] It is my opinion, sitting in this Court, that we ought to say that we are unable to accept the law as to criminal attempts set forth in Haughton v Smith. … This would be, in my opinion, to affirm the reasoning apparent in our own Full Court in decisions preceding Haughton v Smith (for example R v Perera [1907] VLR 240) and to accord with the revised general reasoning of the House of Lords in R v Shivpuri [1986] 2 All ER 334; [1986] 2 WLR 988. It would also be to recognize that at common law a criminal attempt is committed if it is proven that the accused had at all material times the guilty intent to commit a recognized crime and it is proven that at the same time he did an act or acts (which in appropriate circumstances would include omissions) which are seen to be sufficiently proximate to the commission of the said crime and are not seen to be merely preparatory to it. The ‘objective innocence’ or otherwise of those acts is irrelevant. Impossibility is also irrelevant, unless it be that the so-called crime intended is not a crime known to the law, in which case a criminal attempt to commit it cannot be made.

[Gobbo and Fullagar JJ agreed with Murphy J. Appeal upheld. Matter remitted to the magistrate to be dealt with according to law.]

10.8 Britten v Alpogut was adopted for New South Wales in R v Nguyen [2001] NSWCCA 132, where Smart AJ said: 13. … The applicant drew attention to the form of the charges: ‘That Van Thanh Nguyen on the 23rd day of April 1999 at Flemington … did attempt to steal from an unknown female’s handbag.’

[page 478] 14. The applicant submitted that neither of these charges disclosed an offence as neither alleged any property was the subject of the attempted theft and a larceny must relate to a specific tangible item. An attempt must relate to an offence known to the law. 15. These points were not taken when the applicant admitted all the offences and asked the Court to take them into account when dealing with the indictable offence of supply a prohibited drug. 16. In Britten v Alpogut (1986) 23 A Crim R 254 the Victorian Full Court considered the law of attempt in some detail and carefully reviewed the English authorities. At 259 Murphy J (with whom the other members of the Court agreed) pointed out that the crime of attempt derives its criminality from the conduct intended or sought to be done. At 260 he commented: Attempts are not to be confined to acts which if not interrupted would result in the commission of the crime itself. Attempts are crimes because of the criminal intent of the actor. And [The accused] is punishable for an attempt, 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. The criminality comes from the conduct intended to be done. That conduct intended must amount to an actual and not an imagined crime, but if it does, then it matters not that the gun is in fact unloaded, or the police intervene, or the victim is too far away, or the girl is in fact over 16, or the pocket is empty, or the safe is too strong, or the goods are not cannabis. … 18. I agree with the comments of Murphy J … I would further add that the charge in the present case is not deficient when regard is had to the principles discussed by Murphy J at 260– 262. … 19. Britten v Alpogut was followed by this Court in R v Mai (1992) 26 NSWLR 371 at 384A. At 384E Hunt CJ at CL said that the law relating to attempt was: … directed primarily to the intention of the accused provided that it is accompanied by an act towards the commission of the intended crime, which goes beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime.

Elements of attempt Physical element of attempt 10.9 Specific attempt offences, such as those discussed at 10.6, are defined by their required physical and mental elements. An example, additional to those previously provided, is wounding with intent to murder which requires that the accused must have wounded the victim (physical element) with the intent to kill (mental element) (Crimes Act s 27). In Britten v Alpogut (at 10.7), the physical element required

for attempt at common law was stated as being an act or acts (which in appropriate circumstances would include omissions) which are seen to be sufficiently proximate to the [page 479] commission of the said crime and are not seen to be merely preparatory to it. See further, R v Mai (below). 10.10 Mai also articulated the test to be applied in New South Wales to determine when the conduct of the accused, in pursuit of his or her intention to commit the completed offence, is sufficiently proximate to completion that the external element for attempt can be regarded as having been made out. R v Mai (1992) 26 NSWLR 371; 60 A Crim R 49 NSW Court of Criminal Appeal [Thirty packets of heroin in an unaccompanied suitcase were intercepted by the Australian Federal Police at Sydney Airport. The police removed the heroin and replaced it with plaster of Paris. In ten of the packs they left 5g of heroin. They also placed a listening device in two of the blocks. The police delivered the suitcase to a hotel and waited to see who would collect it. There was no evidence as to how the police knew where to deliver the heroin and they were unable to link the appellants with the actual importation. Mai and Tran, in due course, collected the suitcase. When apprehended some hours later, Tran had 8.5 of the blocks including two that contained the small quantities of heroin. Mai was arrested the next day with one block, but it did not contain heroin. Both were convicted of possession on the basis of Tran’s possession of some heroin and the doctrine of common purpose (see 10.42–10.61) and Mai was also charged with attempting to obtain possession of the heroin. Both Mai and Tran appealed against their convictions.] Hunt CJ at CL: [His Honour rejected Mai’s ground of appeal relating to the charge of possession of the heroin, and continued:]

The second count was of attempted possession. … The challenge made to the Crown case upon this count in this Court was twofold. It was said that there was in law no crime committed. Alternatively, it was said that, if the legal existence of the crime depended upon the Crown establishing that the appellant Mai believed that the block of plaster of Paris in his physical custody at the time when he was apprehended contained heroin, there was no evidence that the block was one of those in the suitcase collected by Tran the previous day, and thus that the inference of belief was not reasonably open. … The legal challenge to the attempt charge will take a little longer to consider. It was based upon the fact that, as the block in physical custody of Mai at the time when he was apprehended contained no heroin, it was physically impossible for him to have achieved possession of any heroin. … [His Honour proceeded to reject the law laid down by the House of Lords in Haughton v Smith [1975] AC 476, and continued:] I interpret the law laid down in Britten v Alpogut … when applied to the general law of attempt, as being that, in circumstances where it is in fact physically impossible for the accused to commit a particular crime, an attempt to commit that crime has nevertheless been proved if the Crown establishes: (i)

that the accused intended to do the acts with the relevant state of mind which together would comprise the intended crime (that is, if the facts and circumstances had been as he believed them to be, he would have committed that crime), and [page 480]

(ii) that, with that intention, he did some act towards the commission of that crime which went beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime. … [Enderby and Allen JJ agreed with the reasons of Hunt CJ at CL and that the appeal against convictions and sentence should be dismissed.]

10.11 In relation to the physical element of attempt:

1.

As is apparent, the Court of Criminal Appeal in Mai adopted a test for common law attempt being whether the accused did some act towards the commission of that crime which went beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime.

2.

Alternative formulations employing phrases such as whether the accused had performed the ‘last act’ necessary to complete the offence (cf R v Eagleton (1855) Dears CC 515 at 538) or whether his or her conduct was ‘unequivocally’ related to an intention to commit the completed offence (cf R v Williams [1965] Qd R 86; DPP v Stonehouse [1978] AC 55) were not adopted by the Court of Criminal Appeal in Mai. As most people would agree that merely thinking about a course of action should not constitute a crime, the definition of when a crime begins ultimately involves a value judgment and a balancing of competing interests, including the need not to hamper law enforcement, which are masked by the statement of a general proximity test.

3.

Voluntary desistance by the accused does not in itself prevent the physical element from being made out in a case of attempt (cf R v Page [1933] VLR 351).

10.12 For Commonwealth offences the law of attempt is contained in s 11.1 of the Criminal Code (Cth) which, in effect, replicates the common law, so that the conduct of the accused ‘must be more than merely preparatory’ for the offence to be committed (s 11.1(2)).

Impossibility 10.13 Impossibility may be (1) physical or factual, or (2) legal.

10.14 The courts in Haughton v Smith [1975] AC 476 and Britten v Alpogut, above, considered the question of physical impossibility: can an accused be guilty of attempt if it would have been impossible to complete the intended crime? The House of Lords answered ‘no’ to this question in Haughton v Smith; however, in Britten v Alpogut that case came in for criticism and was rejected as the law for Victoria. Haughton was eventually overturned in England both by statute and by the House of Lords itself. As was previously noted, the decision in Britten v Alpogut was adopted as New South Wales law in R v Nguyen, citing R v Mai (see 10.10). 10.15 Nevertheless, physical impossibility may be relevant to sentence, as shown by R v Peckover (2002) 135 A Crim R 401 (NSWCCA), where a sex worker, whose [page 481] habit it was to advertise in a local newspaper, received a telephone call from the applicant, who became interested in sexually molesting the sex worker’s young daughter with her permission. Despite the applicant spending $180 on a session with the sex worker, it did not conclude in sexual intercourse. He apparently had some erectile difficulty. However, according to the woman, when he began to discuss what he would do to her daughter his penis became erect, indicating that he had found the discussion sexually arousing. Police later hid a listening device on the sex worker. After entering the premises, the applicant went to the main bedroom where he paid over some $600 in cash. Still acting out the scene, the woman advised the applicant that the child was at premises close by and she suggested that he take a shower while she fetched her. He commenced to take a shower and then the woman left the premises ostensibly to get her daughter. He was thereafter arrested in the bathroom. Wood CJ at CL said:

3. In Regina v Taouk (1992) 65 A Crim R 307, Badgery-Parker J observed in the passage upon which reliance is placed: If on the facts it appears that the attempt was unlikely to succeed or indeed that although physically possible there was in reality no prospect that it would succeed, this is a matter which might be seen to reduce the objective seriousness of the crime. 4. His Honour went on to say: However it must always be necessary for the sentencing Judge to consider the seriousness of that which was attempted. In every case where a person is to be sentenced for an attempt to commit a substantive offence, such factors will need to be weighed if the evidence raises the question for consideration. 5. Depending upon the seriousness of the substantive offence and of the seriousness, deliberateness, or sophistication of the offender in attempting to carry his enterprise into fruition, it might be appropriate to make some allowance in the objective seriousness of the offence for the fact that the attempt was bound inevitably to fail. Each case must be considered on its own circumstances. 6. In this case I am satisfied … that this was a serious attempt which was carried almost to fruition, being one in which the applicant proposed a serious sexual assault of the child for which he was prepared to pay a substantial sum of money.

10.16 For Commonwealth offences s 11.1(4)(a) provides that a person may be found guilty of an attempt even if ‘committing the offence is impossible’. The provision was considered in Onourah v R (2009) 76 NSWLR 1; 260 ALR 126 where it was held that the appellant was guilty of attempting to obtain a border controlled drug even though the drug never entered Australia.

Fault element for attempt

10.17 The fault element for an attempt is an intention to commit the crime attempted. In Alister v R (1984) 154 CLR 404; 51 ALR 480, dealing with the offence of attempted murder, Gibbs CJ said (at CLR 423): One constituent element of the crime of an attempt is ‘an intention on the part of the offender to commit the complete offence’: Director of Public Prosecutions v Stonehouse

[page 482] [1978] AC 55, at p 68. It follows that a person is not guilty of an attempt to murder unless he intends to kill. ‘Paradoxically, but inevitably, the law’s requirements on a charge of attempting to commit a crime are stricter than on a charge of actually committing it; for the concept of attempt necessarily involves the notion of an intended consequence’: Smith and Hogan, Criminal Law, 4th ed (1978), p 247. Accordingly, a person who attacks another intending to do him grievous bodily harm will be guilty of murder if the victim dies, but not of attempted murder if he does not. In R v Wybrow (1951) 35 Cr App R 141, at pp 146–147 … Lord Goddard LCJ said: Therefore, if one person attacks another, inflicting a wound in such a way that an ordinary, reasonable person must know that at least grievous bodily harm will result, and death results, there is the malice aforethought sufficient to support the charge of murder. But, if the charge is one of attempted murder, the intent becomes the principal ingredient of the crime. It may be said that the law, which is not always logical, is somewhat illogical in saying that, if one attacks a person intending to do grievous bodily harm and death results, that is murder, but that if one attacks a person and only intends to do grievous bodily harm and death does not result, it is not attempted murder, but wounding with intention to do grievous bodily harm. It is not really illogical because, in that particular case, the intention is the essence of the crime while, where the death of another is caused, the necessity is to prove malice

aforethought, which is supplied in law by proving intention to do grievous bodily harm. Similarly, a person who explodes a bomb with reckless indifference as to whether it causes death will be guilty of murder if death results but he would not be guilty of attempted murder if death did not result … I regard the law as correctly stated in Russell on Crime, 12th ed (1964), vol 1, p 177, where it was said that ‘a man cannot attempt to do that which he does not intend, if he is able to, to do’ and that ‘obviously there can be no question of “recklessness” or “negligence” amounting to sufficient mens rea for a criminal attempt’. Since those words were written, it has been held in R v Mohan [1976] QB 1 that an attempt to commit a crime requires ‘proof of specific intent, a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence which it is alleged the accused attempted to commit … ‘[1976] QB, at p 11 and that a reckless state of mind is not enough … In the present case the Court of Criminal Appeal may well have been right in saying that if Dunn had detonated the bomb and killed himself and Detective Senior Constable Gilligan, Alister, had he survived, could properly have been convicted of the murder of Detective Senior Constable Gilligan. It does not follow that Alister can be convicted of the attempted murder of Detective Senior Constable Gilligan when he did not share with Dunn the intention that Gilligan should be killed.

10.18 A crime may be defined in such a way as to require intention to bring about a particular result, for example, intention to cause death. Few crimes require the most serious fault requirement of actual intent as the only necessary condition for liability. The question thus arises whether a more serious fault requirement will be required for attempting, conspiring to commit, or being complicit in the commission of some crimes than for actually committing them. This issue is considered throughout this chapter, beginning with the leading authority of Giorgianni. [page 483]

Giorgianni v R (1985) 156 CLR 473; 58 ALR 641 High Court of Australia [The Crimes Act s 52A provided in 1979 that ‘culpable driving’ was where death or grievous bodily harm was caused by a vehicle collision where the vehicle was being driven ‘at a speed or in a manner dangerous to the public’.] Gibbs CJ: … The charges arose out of an incident that occurred on 18 May 1979 when a truck heavily laden with coal got out of control while descending a steep incline at Mount Ousley and collided with other vehicles, causing the deaths of five persons and serious injury to another. The truck was driven by one Renshaw, an employee of the applicant Giorgianni. The brakes of the coal truck failed as it was making the descent and as it continued down the road at an increasing speed one Fraser, the driver of a Volvo truck, deliberately placed his vehicle in its path in an attempt to stop its progress. The two vehicles collided, but the effect of the collision was to damage the steering of the coal truck, which then careered quite out of control into other cars, some of whose passengers were killed or injured. The applicant was charged under s 52A of the Crimes Act 1900 (NSW), as amended (‘the Crimes Act’). The Crown case was that the brakes of the coal truck were dangerously defective and that Renshaw, by driving it in that condition, was driving in a manner dangerous to the public. It was not suggested that the applicant was present when Renshaw drove the truck; what was contended on behalf of the Crown was that the applicant procured Renshaw to drive the truck in its defective condition. The applicant was charged by virtue of s 351 of the Crimes Act, which provides as follows: Any person who aids, abets, counsels, or procures, the commission of any misdemeanour, whether the same is a misdemeanour at Common Law or by any statute, may be indicted, convicted, and punished as a principal offender. [Authors’ Note: the classification of crimes as felonies and misdemeanours was abandoned in New South Wales in 1989 — see Crimes Act s 580E.] There was evidence from which it appears that the last occasion on

which the applicant had inspected the truck before the accident was during the weekend of 5–6 May 1979 when, together with Renshaw and one Fitzpatrick, he did some work on the vehicle. According to the evidence of Fitzpatrick and the applicant’s statement to the jury, the condition of the brakes then appeared satisfactory, but it was open to the jury to infer, from police evidence which detailed the many defects that were apparent in the brakes after the accident, that a person who had worked on the vehicle a fortnight before would, or at least should, have noticed those defects. … There is no reason why a person who counsels or procures another to drive a vehicle, knowing that the person persuaded to drive the vehicle is drunk, or that the vehicle is so defective as to be dangerous, should not be liable, in accordance with the ordinary principles embodied in s 351 of the Crimes Act, if the vehicle is involved in a collision causing death. This view is supported by R v Robert Millar Ltd [1970] 2 QB 54, where it was held that an employer who instructed an employee to drive a vehicle, knowing it to be in a dangerously defective condition, was guilty of the offence of dangerous driving causing death. … Many statutory provisions which create misdemeanours refer only to the person who directly engages in the forbidden conduct, yet the ordinary rule which makes any person who aided, abetted, counselled or procured the commission of the misdemeanour liable to be convicted and punished as a principal offender nevertheless applies. [page 484] The question that arises is whether a person may be convicted of an offence against s 52A of the Crimes Act, on the footing that he aided, abetted, counselled or procured the commission of that offence, if it is not proved that he knew all the circumstances which made what was done an offence. In other words, is it necessary to prove that the person sought to be made liable as a secondary party had knowledge of all essential facts, or is it enough to prove that he should have had knowledge of those facts or that he acted recklessly not caring whether those facts existed or not? Section 52A prescribes an objective standard and, speaking generally, the reference to a motor vehicle being driven ‘at a speed

or in a manner dangerous to the public’ refers to the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence: R v Coventry (1938) 59 CLR 633, at pp 637–638. That does not mean that a person can aid, abet, counsel or procure the commission of an offence of strict liability without having an intention to do so formed in the light of knowledge of the facts. The very words used in s 351, and the synonyms which express their meanings — eg help, encourage, advise, persuade, induce, bring about by effort — indicate that a particular state of mind is essential before a person can become liable as a secondary party for the commission of an offence, even if the offence is one of strict liability … the person charged as a secondary party should in some way be ‘linked in purpose with the person actually committing the crime …’: R v Russell [1933] VLR 59, at p 67, per Cussen ACJ. … When used in relation to felonies, the words ‘aid and abet’ described the action of a person who was present at the commission of the offence and took some part therein (who was called a principal in the second degree as well as an ‘aider and abettor’), whereas ‘counsel and procure’ described an accessory before the fact who was not present at the commission of the offence: cf Ferguson v Weaving [1951] 1 KB 814, at pp 818–819. The usage was not always uniform or discriminating. The distinction between principals in the first and second degree and between principals and accessories now generally has no legal importance: see Johns (T S) v R (1980) 143 CLR 108, at p 117 and ss 345–347 of the Crimes Act. No similar distinction was drawn in the case of misdemeanours, and at common law, in cases of misdemeanour, anyone who, in the case of a felony, would have been a principal in the second degree, or an accessory, was a principal offender and was treated as if he had taken the same part as the active perpetrator of the facts constituting the offence: Gould & Co v Houghton [1921] 1 KB 509, at p 516. The reason for mentioning those matters, which are now largely of historical interest, is that statements in the authorities regarding the mental state necessary to constitute a person an accessory before the fact in the case of a felony will apply equally to a person who has counselled or procured the commission of a misdemeanour. Further it will be found that statements which refer to the knowledge and intention necessary to make a person an aider and

abettor will often be equally applicable to a person who has counselled or procured the commission of the offence. Russell on Crime 12th ed (1964), p 151, states that ‘the bare minimum’ which is necessary to constitute a person an accessory before the fact is that his conduct should indicate ‘(a) that he knew that the particular deed was contemplated, and (b) that he approved of or assented to it, and (c) that his attitude in respect of it in fact encouraged the principal offender to perform the deed’. The passage is cited with approval in A-G v Able [1983] 3 WLR 845, at p 855; [1984] 1 All ER 277, p 285. … There is a strong body of authority which supports the view that knowledge of the facts is necessary before a person can be made liable as a secondary party for the commission of an offence. In Johnson v Youden [1950] 1 KB 544, Lord Goddard CJ stated the position in relation to aiders and abettors as follows, at p 546: Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not [page 485] actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence. This statement has been frequently cited with approval, and not only in relation to the case of aiders and abettors. In R v Churchill [1967] 2 AC 224, at p 236, it was held that the law is the same for conspiracy. In R v Bainbridge [1960] 1 QB 129, the case of an accessory before the fact, Lord Parker CJ said, at p 134, that ‘there must be not merely suspicion but knowledge that a crime of the type in question was intended …’. (We are not concerned in the present case with the question whether knowledge of an intention to commit the type of offence is enough.) In R v Maxwell [1978] 1 WLR 1350, at p 1357; [1978] 3 All ER 1140, p 1146 …, Lord Hailsham of St Marylebone was content to adopt the passages which I have cited from Johnson v Youden and R v Bainbridge as sufficiently answering the question what degree of knowledge is required before an accused can be found guilty of aiding, abetting,

counselling or procuring. In R v Robert Millar Ltd, a case similar to the present, it was said, at p 72, that: … if a driver is sent out by his employer to drive a heavy vehicle on a trip extending over some hundreds of miles carrying heavy loads with a dangerously defective front offside tyre, by an employer who knows that the tyre is dangerous, and there is a serious risk of harm resulting to other road-users, then if that tyre does burst and thereby causes an accident killing somebody the employer is guilty of counselling and procuring death by dangerous driving. … Numerous other cases, including, in Australia, Blackmore v Linton [1961] VR 374, at p 377 and Wilson v Dobra (1955) 57 WALR 95, at p 97 (a case under the Criminal Code of Western Australia), accept that the general principle is that a person can be convicted as a secondary party only if he had knowledge of the essential circumstances. Further, as has already been indicated, the person charged must have intended to help, encourage or induce the principal offender to bring about the forbidden result. In other words, both knowledge of the circumstances and intention to aid, abet, counsel or procure are necessary to render a person liable as a secondary party: cf National Coal Board v Gamble [1959] 1 QB 11, at p 20. However, some cases suggest that some qualifications should be admitted to the general principle that a person cannot be found guilty of having aided, abetted, counselled or procured an offence unless he had actual knowledge of all the essential matters which made the act done a crime. One qualification that must be accepted is that wilful blindness, the deliberate shutting of one’s eyes to what is going on, is equivalent to knowledge. In R v Antonelli and Barberi (1905) 70 JP 4, where A was indicted for publishing a criminal libel, and B, who had sold copies of the pamphlet containing the libel, was charged with aiding and abetting him, Phillimore J, in summing up to the jury, said, at p 6: If you think he knew what was in the document, or deliberately shut his eyes to what was in it, then you must find him guilty of aiding and abetting.

Lord Devlin has said that a person who has shut his eyes to an obvious means of knowledge may be described as having ‘knowledge of the second degree’: see Roper v Taylor’s Central Garages (Exeter), Limited [1951] 2 TLR 284, at p 288. The relevant principle was recently explained by this Court in R v Crabbe (1985) 156 CLR 464 [see 2.20]: When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth, he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring. … [page 486] The failure to make such inquiries as a reasonable person would have made is not equivalent to knowledge; it is not enough to render a person liable as a secondary party that he ought to have known all the facts and would have done so if he had acted with reasonable care and diligence. That is so even when the offence is one of strict liability, so that the actual perpetrator may be convicted in the absence of knowledge. … My view of the law may be summed up very shortly. 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. Wilful blindness, in the sense that I have described, is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient. Wilson, Deane and Dawson JJ (at 506–507): … For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and

procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. … [Mason J in a separate judgment, and Wilson, Deane and Dawson JJ in a joint judgment, all agreed that the appeal should be upheld, and that recklessness could not be sufficient for the fault element of aiding or abetting an offence.]

CONSPIRACY Introduction 10.19 The physical element of a conspiracy is proof of an agreement reached between the conspirators (R v Gunn (1930) 30 SR (NSW) 336 at 338). The agreement must be to do an unlawful act or to do a lawful act by unlawful means. It is necessary for there to be at least two parties to the conspiracy, both of whom intend to carry out the agreement. Conspiracy remains a common law offence, but there are a number of specifically defined conspiracy offences such as conspiracy to murder (Crimes Act s 26), and various offences under Commonwealth law dealing with conspiracy to defraud (see Peters v R (1998) 192 CLR 493; 151 ALR 51, at 7.29 and 10.29) and to commit drug offences (see R v Jones [2000] NSWCCA 186). The Criminal Code (Cth) s 11.5, defines conspiracy for the purposes of Commonwealth law (see 10.31). 10.20 Conspiracy is a continuous crime. It extends over the period of agreement until the police intervene or the objective of the agreement is achieved. It remains a single conspiracy no matter who joins or leaves it, provided that

there are at least two persons at any one time acting in combination to achieve the same criminal objective (R v Masters (1992) 26 NSWLR 450 at 458). [page 487] 10.21 There must be an intention to carry out the crime (Yip Chiu-Cheung v R (1994) 99 Cr App R 406 at 410 per Lord Griffiths; R v Wilson (unreported, 12 August 1994, NSWCCA)). An accused may, nevertheless, be liable for a conspiracy to do the factually impossible (R v El Azzi (2001) 125 A Crim R 113). See the subsequent El Azzi appeal at 10.27. 10.22 In R v Rogerson (1992) 174 CLR 268; 107 ALR 225, in considering what was meant by the concept of a ‘conspiracy to pervert the course of justice’, Brennan and Toohey JJ in a joint judgment said (at CLR 280–281): What makes a conspiracy unlawful is the unlawfulness of its intended object or the unlawfulness of the means intended to effect its object, as Willes J, delivering the opinion of the judges in Mulcahy v R (1868) LR 3 HL 306, at p 317, said: A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means. As the “very plot” is the actus reus of the offence, the offence is complete before any further unlawful act is done or any further lawful act is done to carry the unlawful object into effect. When Willes J spoke of an “unlawful act”, he was speaking

of an act which has not occurred when the conspiracy is formed. He must have meant an act which, if done in circumstances contemplated by the conspirators, would be unlawful. Although acts done in pursuance of an apparent agreement often furnish the evidentiary foundation for inferring that a criminal conspiracy was formed, those acts are not themselves elements of the offence. In that sense, it is immaterial whether an act done in pursuance of a criminal conspiracy is, in the event, unlawful, provided the act was intended to be done in circumstances which, had they eventuated, would have made the act unlawful. In the present case, we are concerned with an alleged conspiracy to do an unlawful act, namely, an act that would have the effect of perverting the course of justice. The prosecution had to prove that the conspirators intended that, if the relevant act was done pursuant to the conspiracy and in the circumstances contemplated by the conspirators, it would have the effect of perverting the course of justice.

10.23 The New South Wales Law Reform Commission has reviewed the law of conspiracy (see Report 129 Complicity, Chapter 6). It has recommended that there be a statutory offence of conspiracy consistent with the common law: see Recommendation 6.1. Unlike the Criminal Code (Cth), the recommended offence is not limited to more serious offences; it will be an offence to conspire to commit any offence under the law of New South Wales. Further, unlike the Criminal Code, the recommended offence does not require the commission of an overt act (that is, an act committed in furtherance of the conspiracy) in order for a person to be convicted of the offence. [page 488]

Physical and fault elements for conspiracy Agreement

10.24 Gerakiteys, a decision of the High Court considered by McHugh J in Peters (10.29), shows that the essential nature of a conspiracy is to reach an agreement to achieve an unlawful purpose, an agreement being an essential element, and that who has agreed to what becomes a vital issue. Gerakiteys v R (1984) 153 CLR 317; 51 ALR 417 High Court of Australia [The appellant, Dr Gerakiteys, and another person, Haralambos Haralabopoulos, also known as Harry Harrison, were alleged to have conspired to defraud various insurance companies and the Commonwealth. Haralabopoulos was an insurance agent who would arrange policies of disability insurance for various people who would then obtain medical certificates from Dr Gerakiteys to support claims against the policy. A similar scheme operated to allow people to obtain sickness benefits from the Commonwealth. The Crown alleged two conspiracies, one between Gerakiteys, Haralabopoulos and nine others to defraud the various insurance companies, and one between Gerakiteys, Haralabopoulos and five others to defraud the Commonwealth.] Brennan J [dissenting on the issue of whether a new trial should be ordered]: … It appears that, in framing the indictment and in presenting the Crown case, the prosecution failed to distinguish between the primary conspiracies to defraud divers insurance companies and to effect a series of social security frauds and consequential conspiracies to effect particular frauds. … The Crown attempted to subsume several conspiracies within the single conspiracy charged in each count of the indictment. That was a fundamental misconception. It resulted in a confusion of the issues at the trial, and it induced the learned trial judge to direct the jury that, if they found the existence of what was in truth a particular separate conspiracy, they should return a general verdict of guilty on the relevant count in the indictment. That direction, as the Court of Appeal held, was erroneous. The identity of a conspiracy is to be found in what the conspirators commonly agree to or accept: a conspiracy is proved by evidence of the actual terms of the agreement made or accepted

or by evidence from which an agreement to effect common objects or purposes is inferred. If two conspirators agree to effect several unlawful objects and a third person agrees with them to effect some only of those objects, there are two conspiracies not one: the original conspirators are parties to both conspiracies, the third person is a party only to the conspiracy with the more limited objects. That was the unanimous opinion of the judges who were summoned to advise the House of Lords in O’Connell v R (1844) 11 Cl & F 155 (8 ER 1061). Lord Chief Justice Tindal stated the judges’ opinion that where the jury had found some accused guilty of conspiracy to effect all the objects stated in the charge and some to effect part only of those objects the findings were insupportable in law. His Lordship said (1844) 11 Cl & F at p 237 (8 ER at p 1093) that: … the reason and ground for such opinion is this: That as each count of the indictment charges one conspiracy or unlawful agreement, and no more than one, against all the defendants in such count, so the jury could find only one conspiracy or unlawful agreement on each separate count; for though it was competent to the jury to find one conspiracy on [page 489] each count, and to have included in that finding all or any number of the defendants, yet it was not competent for them to find some of the defendants guilty of a conspiracy to effect one or more of the objects stated, and others of the defendants guilty of a conspiracy to effect others of the objects stated; because that is, in truth, finding several conspiracies, on a count which charges only one. The case of R v Hempstead (1818) Russ & RyCroCas 344 (168 ER 837) is strong in support of this principle, when applied to the case of larceny. The indictment contains one charge: the jury cannot find more than one. That is not to say that a person who performs one only of several overt acts of a conspiracy cannot be a party to the conspiracy: the question is whether he has agreed that effect be given to all the objects or purposes of the conspiracy (so that his overt act gives

only partial effect to those objects or purposes), or whether his agreement is limited to part only of those objects or purposes. In the latter case, it may be that his overt act gives effect fully to the agreed objects or purpose. In R v Griffiths [1966] 1 QB 589, at p 599 Paull J, speaking for the Court of Criminal Appeal, gave an illustration of the principle: … the Post Office clerk who agrees to alter a date stamp in a case where a bookmaker has been swindled must know that the alteration is to be used for a fraudulent purpose. He therefore joins a scheme to defraud that bookmaker, of whom he may not have heard, but he cannot be indicted, merely because he has agreed to alter that stamp, on a charge of a conspiracy to alter date stamps and cheat bookmakers all over the country. We venture to say that far too often this principle is forgotten and accused persons are joined in a charge of conspiracy without any real evidence from which a jury may infer that their minds went beyond committing with one or more other persons the one or more specific acts alleged against them in the substantive counts, or went beyond a conspiracy to do a particular act or acts. Looking to the objects of the conspiracy charged in each count in the indictment, the indictment charges a single conspiracy in relation to the insurance companies and a single conspiracy in relation to social security frauds. The reference in the indictment to ‘divers other persons’ does not contain the leading description of the conspiracies charged therein; the leading description must be taken to be the object or purpose of each conspiracy which gives the conspiracy its identity. Construing the indictment in this way, the issue for the jury on the insurance count was simply whether the accused Gerakiteys had conspired at least with Harrison ‘to cheat and defraud divers insurance companies’ and, on the social security count, whether Gerakiteys had conspired at least with Harrison ‘to defraud the Commonwealth’ in a series of social security frauds. On this approach, it is immaterial that the evidence did not inculpate the several claimants in the relevant conspiracy, but inculpated each of them in another conspiracy, namely, a conspiracy to effect a particular fraud upon a particular insurance

company or upon the Commonwealth as the case may be. It is clear that an insufficiency of evidence to inculpate one alleged conspirator in a conspiracy does not entitle other conspirators to an acquittal, for the jury may find all or any of two or more alleged conspirators are guilty of a conspiracy to effect all or some of the improper purposes alleged, provided those who are convicted had agreed to effect the same improper purposes. … It is equally clear that a trial upon an indictment charging a single count of conspiracy does not miscarry when evidence is led which shows that an accused is or may be a member of another conspiracy. … On this approach to the indictment, the Crown case was simply insufficient to prove that the respective claimants were parties to the conspiracies charged in the respective counts in the indictment, but there was nevertheless sufficient evidence to prove that Gerakiteys and Harrison conspired to effect the unlawful purposes alleged in the indictment and the particulars. I would therefore agree with the order of the Court of Criminal Appeal that Gerakiteys be retried on the existing indictment. However, the indictment in its present form and the particulars, which remain unamended, perpetuate the confusion on each count between a primary conspiracy between Gerakiteys and Harrison on the one hand and a series of consequential [page 490] conspiracies between them and each of the several claimants or groups of claimants on the other. The respective conspiracies charged were complete when Gerakiteys and Harrison agreed to effect the unlawful objects alleged. Although each conspiracy continued so long as the fraudulent claims were being made (Director of Public Prosecutions v Doot [1973] AC 807; R v Cuthbertson [1981] AC 470, at p 481) and although each conspiracy was open to be joined by any claimant who agreed with Gerakiteys or Harrison to give effect to the unlawful objects upon which those two persons had agreed (R v Murphy (1837) 8 Car & P 297, at p 311 (173 ER 502, at p 508)), there was no evidence that the ‘divers other persons’ mentioned in the insurance count, ie, the claimants whose names appear in the particulars, became parties to a conspiracy to defraud ‘divers insurance companies’, and there was no evidence that the ‘divers other persons’ named in the particulars of the social security count

became parties to a single, wide-ranging conspiracy to defraud the Commonwealth. There was no evidence under either count of a general conspiracy to which the respective classes of claimants were parties. … Deane J: … [T]he number and identity of the co-conspirators may be inessential to the identification or proof of the particular conspiracy with which an accused is charged. Indeed, as a matter of common law principle, an accused may be convicted of conspiring ‘with a person or persons unknown’ to commit an unlawful act (see Archbold’s Pleading, Evidence and Practice in Criminal Cases, 41st ed (1982), p 2057; R v Howes (1971) 2 SASR 293; R v Anthony [1965] 2 QB 189, at pp 192–193). More in point to the present case, s 393 of the Crimes Act 1900 (NSW) [see now, the Criminal Procedure Act 1986 Sch 3 cl 21] expressly provides that an accused … may be charged separately, in any count, as having conspired with divers persons, of whom it shall be sufficient to name one only … and may be convicted on such count upon proof of his having unlawfully conspired for the purpose therein alleged with any one such person. On the other hand, the number and the identity of the coconspirators may be relevant and, conceivably, even essential to both the identification of the subject-matter of the conspiracy which is alleged against an accused and to the actual proof of guilt of that conspiracy. For example, the question whether the intended perpetrator of an unlawful act is actually a party to a conspiracy is likely to be of critical importance on the question whether the conspiracy is a conspiracy to commit the act as distinct from a conspiracy to procure its commission by another. In such a case, s 393 of the Crimes Act 1900 (NSW) in no way alters the established common law position that a person cannot be found guilty of a distinct and different conspiracy to that which the count in the indictment alleges. Indeed, as I followed the argument, no submission to the contrary was advanced on behalf of the Crown. [All the judges agreed that the evidence did not support the allegation contained in the indictment and that the Court of Appeal

was correct in setting aside the original conviction. The question on which Brennan J dissented was whether the appellant should be acquitted or a new trial ordered. Gibbs CJ, Murphy, Wilson and Deane JJ all agreed that there should be no retrial of the matter.]

10.25 The problem for the Crown in Gerakiteys, above, was that, rather than there being one conspiracy between Gerakiteys, Harrison and nine others, there were in law nine conspiracies, each involving Gerakiteys and Harrison and in each case the one other person who submitted the false form and certificate to the particular insurance company. Because each of the nine (or five in the case of the fraud upon the [page 491] Commonwealth) did not act in agreement with each other, they were not members of a conspiracy that involved them all. Because the essential nature of a conspiracy is an ‘agreement’, the failure of the Crown to properly identify the agreement was fatal to the prosecution. 10.26 In Jones, the issue was not so much with whom the agreement was made, but what they had agreed to do. R v Jones [2000] NSWCCA 186 NSW Court of Criminal Appeal [The appellants, Leslie Carl Jones and Leslie Shane Jones, had been convicted of conspiring to supply a prohibited drug, namely cannabis. The following is a summary of the detailed statement in the judgment of Carruthers JA, who dissented as to the orders made: The appellants were described as the senior partners; Mrs Ruscoe-Jones was said to be the central point for communications amongst the conspirators; Messrs Kelly and Neville Jones were described as persons who assisted in more of the mundane handson activity involved in the conspiracy; Mr Gene Pye and Mr Jeffrey Bennett were said to be the distributors of cannabis on behalf of the conspirators. The jury were asked to conclude that Pye and Bennett attended a property, ‘Kimberley’, to pick up stocks of cannabis, take them away for distribution, and later return the proceeds of

sales primarily to Messrs Les and Shane Jones (as the appellants were respectively referred to during the trial). Sections 25(2) and 26 of the Drug Misuse and Trafficking Act 1985 provided that a person who supplies an amount of a prohibited drug which is not less than the commercial quantity is guilty of an offence, and s 26, that a person who conspires with another person or other persons to commit an offence (under s 25(2)) is guilty of an offence and liable to the same punishment as the person would be if the person had committed the abovementioned offence. The definition of ‘supply’ in s 3(1) was: ‘Supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.’] Hulme J: … 9. [T]he evidence does not seem to me to exclude as a reasonable hypothesis an expectation on the part of the appellants that Messrs Pye & Bennett would resell the marijuana, as distinct from some agreement that they would do so. As this Court in Trudgeon (1988) 39 A Crim R 252 made clear, a mere expectation is not sufficient to constitute a conspiracy. 10. Although there are statements which put the matter more widely — eg that quoted by Gleeson CJ in Trudgeon (at p 254), ‘a conspiracy consists of agreeing or acting in concert to achieve an unlawful act or to do a lawful act by unlawful means’ and his Honour’s own reference (at p 257) to ‘the making of an agreement … in the sense of a manifestation of a common intention that that should occur’, I take the concept of conspiracy to require the conclusion that there was in fact an agreement. … Of course acting in concert or manifesting a common intention is evidence from which an agreement may, depending on the circumstances of the case, be inferred but, for the reasons given, I see no requirement in the evidence in this case to infer an agreement by the Appellants that there would be ‘supply to the world’ or to third parties. The case in my view is indistinguishable from Trudgeon. [page 492] 11. In making that last statement I am not unconscious of the fact that in Trudgeon there was only one instance of supply and here

there were many, nor that the relationship between the Appellants on the one hand and Messrs Pye and Bennett on the other was substantially more extensive than that between Mr Trudgeon and his supplier. However, I see nothing in that extended relationship to require the conclusion that there was a conspiracy and that all reasonable hypotheses consistent with innocence on that charge had been excluded. … 14. Whether the arrangement between the appellants and Messrs Pye and Bennett was that of supplier and purchaser rather than of what might be called joint venturers was, of course, a matter on which the appellants could have given evidence or addressed in their unsworn statements. They took neither of these options, the tenor of their unsworn statements being that they had no involvement with marijuana. The questions then arise whether an inference that they were joint venturers or, to put the matter more precisely, parties to the conspiracy alleged by the Crown can more readily, or should, be drawn. 15. In the circumstances I am of the view that they should not be. To advert to the distinction between supplier and purchaser on the one hand and joint venturers or co-conspirators on the other, would have involved admitting some participation in the supply of marijuana and, even if it might have helped in resisting the charge brought, provide incriminating evidence of assistance to the Crown should it bring a charge of substantive supply. There being thus a good reason for the appellants’ silence on the issue, it seems to me it would not be appropriate to use that silence to strengthen any inference adverse to them … 16. The conclusion at which I have arrived means that, as the first ground of appeal asserts, ‘the evidence was incapable of establishing against the Appellant(s) the conspiracy alleged by the Crown’ and that, within s 6 of the Criminal Appeal Act, ‘the verdict of the jury … is unreasonable, or cannot be supported’. It follows that the appeals should be allowed. [Spigelman CJ agreed with Hulme J. Carruthers AJ dissented as to the orders made. Appeals allowed. Convictions and sentences quashed.]

Impossibility of carrying out the agreement 10.27 In El Azzi the Court of Criminal Appeal considered DPP v Nock [1978] AC 979; [1978] 2 All ER 654 (HL) and R v Barbouttis, Dale and Single (1995) 37 NSWLR 256; 82 A Crim R 432, each being concerned with whether impossibility prevents an agreement from constituting a conspiracy. Compare the approach of the courts to impossibility of attempt (see 10.13). Referred to throughout El Azzi is El Azzi (1), an earlier interlocutory proceeding involving William El Azzi, R v El Azzi (2001) 125 A Crim R 113, in which Howie J gave the leading judgment. R v El Azzi [2004] NSWCCA 455 NSW Court of Criminal Appeal [This was an appeal against conviction and sentence. The appellant was convicted on charges including conspiring to take part in the manufacture of a prohibited drug, namely methylamphetamine, being an amount not less than the large commercial [page 493] quantity, under s 26 of the Drug Misuse and Trafficking Act 1985. He appealed on grounds including Ground 3(A), to the effect that the alleged agreement was to use ingredients that were incapable of producing methylamphetamine, that is, that the object of the conspiracy was impossible.] Santow JA: … 13. Ground 3(A) in effect complains that [the trial judge] erred in finding that there was a case to answer … on the basis that the object of the conspiracy … was impossible. … In El Azzi (1) at 117 [14] Howie J expressed that issue in these terms: The substantial issue raised before Judge Hock and before this Court is whether it is open to the Crown to charge the applicant with a conspiracy in relation to each of the two incomplete attempts to manufacture methylamphetamine

in light of the uncontested evidence that the chemicals being used for the purpose in both cases could not produce that or any other drug. … 17. At 118 [19] Howie J elaborated in these terms: … the substantial issue in this application is: can the Crown charge the applicant with conspiracy to manufacture a prohibited drug in circumstances where the chemicals allegedly being used by the applicant in carrying out that conspiracy were, unbeknown to him, of a nature that they could not be used to manufacture a prohibited drug? The applicant relies upon the authority of DPP v Nock [1978] AC 979 and more recently R v Barbouttis (1995) 37 NSWLR 256 to assert that the answer to that question is in the negative. 18. The appellant now contends that in El Azzi (1), this Court did accept the description of the agreement the object of the conspiracy as stated by the then trial judge, Judge Hock, as: ‘An agreement in general terms to manufacture methylamphetamine, that when it was made it was obviously not impossible to achieve an objective. In other words, the conspiracy alleged here was not a conspiracy to do something that was impossible.’ 19. However, that is not an accurate description of the reasoning of Howie J in El Azzi (1). 20. The appellant in the present proceedings contends that ‘by the time of trial and in a judgment given at the close of the Crown case the Crown alleged, and the trial judge accepted, that both conspiracies … were specific agreements to use specific ingredients, but most particularly a cache of 100 kilos of “phenylacetic acid” delivered by Launt to Parker and Haeusler’. 21. Thus the appellant would characterise the conspiracies … in those terms contending: 28. The first conspiracy … was the acceptance by the appellant and Simpson of Parker and Haeusler’s offer to use some of the 100 kilos, which was already in the possession of Haeusler and Parker, to commence a

process of the manufacture of methylamphetamine. The second conspiracy … occurred when the appellant and the others agreed to use the remaining 50 kilos of identified items in the possession of Haeusler as the ingredients for a further process of manufacture. … 22. There are a number of difficulties in the way of that submission which I shall refer to first in summary form and then return by way of elaboration. The first is whether the reasoning of Gleeson CJ and Dunford J in Barbouttis, as adopted in El Azzi (1) in the reasons of Howie J renders irrelevant the distinction made by the then trial judge Hock DCJ. That distinction was between an agreement ‘in general terms to manufacture methylamphetamine’ rather than an agreement ‘to produce methylamphetamine by specific means’. Howie J concluded: ‘[H]owever I do not believe that the distinction sought to be made by the applicant is a valid one in light of Barbouttis’ (at 122 [33]). 23. Howie J then at [35] stated: ‘Even if I were prepared to follow DPP (UK) v Nock, I would still refuse the application’. This was because ‘the issue before her Honour was [page 494] how each of the conspiracies alleged should be characterised’ and so that ‘the answer to this question will largely depend upon the evidence heard at the trial’. Here, of course, the evidence led at the trial is known. The thrust of the appellant’s submission is that that evidence would lead to the agreement being characterised as ‘to produce methylamphetamine by specific means’. 24. The question then is whether the reasoning of Gleeson CJ, agreed in by Dunford J in Barbouttis, properly understood, would render that distinction irrelevant. If it be not irrelevant, the question of characterisation of a conspiracy then arises, by reference to the evidence at trial. It will be appreciated that Gleeson CJ, while dissenting in the result in Barbouttis, concluded, with the concurrence of Dunford J, but contrary to the reasoning of Smart J that Nock should not be followed in New South Wales. This is insofar as Nock excluded from the crime of conspiracy situations where an agreement if carried out could not have achieved its object, though that object was to commit a criminal offence.

25. It is convenient to start with the facts in Nock. They provide the springboard for the reasoning of Gleeson CJ in Barbouttis, though applied to a distinct alleged crime. The crime was receiving specific property believed to be stolen, as distinct from in Nock where the conspiracy related to producing cocaine. In Nock, the defendants agreed to produce cocaine by separating it from other substances in the powder which they believe to be a mixture of a certain kind. In fact the powder was a mixture of a different kind, and contained no cocaine. As a result, there were no circumstances in which cocaine could have been produced from it. The House of Lords held that a conviction of conspiracy could not stand. … 26. Gleeson CJ explained in Barbouttis that central to the reasoning of at least Lord Scarman in Nock was the proposition that the then recent decision of the House of Lords in R v Smith (Roger) [1975] AC 476, a case concerning the crime of attempt, applied with equal force to the crime of conspiracy. Subsequent overruling of Smith (supra) in R v Shivpuri [1987] 1 AC 1 removed that underpinning to Nock. 27. In Barbouttis, the Crown case was that the respondents had entered into an agreement to purchase 50 boxes of cigarettes from those that an undercover police officer had in a truck, this being part of a large-scale police operation into persons dealing in stolen cigarettes. Thus the undercover police officer sought out persons who might have been interested in purchasing cheap cigarettes that he then represented as being stolen. The undercover officer made contact with the respondents and, after a number of meetings, they struck a deal as to the price to be paid for the cigarettes. The undercover officer had in his possession a truck with a large number of boxes of cigarettes and the respondents agreed to purchase 50 boxes after they had been inspected by one of the respondents. Contrary to the belief of the respondents, the cigarettes were not stolen but had been lent to the police for the purpose of the operation. Gleeson CJ dissented from the conclusion of the majority that the offence of conspiracy to commit a crime, by receiving specific property believed to be stolen, cannot be established where the property is not in fact stolen. However, there was no dissent on the part of Dunford J, in contrast to Smart J, to the reasoning which led to Gleeson CJ concluding that ‘subsequent

events have discredited the reasoning in Director of Public Prosecutions v Nock’ (at 263). 28. There is, however, an important passage in the reasoning of Gleeson CJ that indicates that he did not reject the relevance of the distinction to which earlier reference has been made in the context of conspiracy. That is clear from the following passage (at 265–6): In the context of conspiracy, the matter must depend upon the proper characterisation of the object of the agreement made by the conspirators, or what the Court of Appeal of New Zealand called ‘the common design’. In the present case, as particularised by the Crown, was the obtaining of stolen goods part of the common design, or can the agreement, [page 495] for the purposes of the criminal law, be characterised accurately and adequately as an agreement to acquire fifty particular boxes of cigarettes for a certain price, such agreement being accompanied by a merely incidental belief that the reason the cigarettes were so cheap was that they were stolen? If the cigarettes had in truth been stolen, then such a characterisation would certainly not have been regarded as either accurate or adequate for the purposes of the criminal law. Far from being incidental, the belief that the cigarettes were stolen would have been of the essence of the agreement. How can that belief cease to be of the essence of the agreement because of an objective fact unknown to the parties to the agreement? On the facts alleged by the Crown, the common design of the respondents and the other parties to the agreement was to obtain stolen property. The law relating to conspiracy punishes people because of the nature of the agreement they have made. I find it impossible to regard the (alleged) belief on the part of the parties to the agreement that the cigarettes were stolen as a merely incidental matter. For the reasons advanced by Professor Glanville Williams, the motivation theory, which

underlies the argument that the belief was incidental, cannot be sustained. If a person intends to receive goods which he knows or believes are stolen, than [sic] he intends to receive stolen goods. 29. Gleeson CJ had indeed earlier (at 264) cited that very argument employing that distinction as pressed by the respondents: It was argued on behalf of the respondents that, even if, in the light of later authorities, it must be accepted that the reasoning in Director of Public Prosecutions v Nock was flawed, nevertheless that case remains instructive in one important respect. It demonstrates the importance of identifying with precision the nature and scope of the agreement the making of which constitutes the alleged conspiracy. If, in Director of Public Prosecutions v Nock, it had been decided that the agreement was to produce cocaine, then the problem in the case would never have arisen. There is nothing impossible about performing an agreement to produce cocaine. If the conspirators are so inept as to set about performing their agreement in a manner that will be incapable of producing cocaine, that is beside the point. It was the characterisation of the agreement as one to produce cocaine from specific chemicals that gave rise to the issue in the case. Similarly, in the present case, there would be no problem of law (as distinct, perhaps, from a problem of proof) if the Crown were alleging that the respondents had agreed between themselves to find and buy some stolen cigarettes. If, for example, the respondents had formed themselves into a buying group to purchase stolen cigarettes and had sought out the person who offered to supply them in the present case, it would not have made a presently relevant difference to their culpability if, unknown to them, he had been an undercover policeman who had no real intention of supplying stolen cigarettes. They would, nevertheless, have made an agreement between themselves to purchase stolen cigarettes. The problem in the present case arises because the agreement alleged by the Crown is limited to an agreement to purchase, from a particular person,

particular cigarettes which were mistakenly believed to be stolen. 30. Thus it is clear that not only was Gleeson CJ citing that distinction. It was central to his own reasoning. 31. When, however, one turns to the facts in the present case … there is nothing … which would lead to the characterisation of the agreement as one to produce methylamphetamine from specific chemicals supplied, as distinct from these being merely the incidental means to that end. Indeed the latter characterisation accords with s 26 of the Drug Misuse and Trafficking Act earlier quoted. It refers to a person who ‘conspires with another person … to commit an offence under this division …’. The offence is therefore conspiring by way of an agreement whose common design is, in terms of s 24(2) of that Act, the manufacturing or production of an amount of a prohibited drug, namely methylamphetamine. The critical distinction between s 24(2) and s 26 is that the latter fastens upon the agreement that the parties have made. In the words of Gleeson CJ in Barbouttis, the law relating to conspiracy punishes conspirators ‘because of the nature of the agreement they have made’ in the belief that they will [page 496] manufacture the prohibited drug. It is wholly irrelevant whether that belief is achievable or not in actual manufacture. 32. Indeed one might test that proposition by assuming that instead of the chemicals being incapable of producing the methylamphetamine, some other supervening event frustrated the completion of the common design, such as a police raid. There could be no doubt that the persons who have agreed in advance to the common design of producing methylamphetamine would not escape s 26 merely by reason of the intervention of a supervening event that frustrated the achievement of their purpose. To draw a distinction between supervening events, and defective chemicals that preordain the failure of the common design to achieve its end must be artificial in the extreme. 33. Accordingly, the issue becomes whether, accepting the distinction applied, there were specific agreements to use specific

ingredients, as distinct from specific agreements simply to produce the methylamphetamine, the means being incidental. 34. The appellants contend that ‘however by the time of trial and in the judgment given at the close of the Crown case the Crown alleged and the trial judge accepted that both conspiracies (counts 2 and 3) were specific agreements to use specific ingredients, but most particularly a case of 100 kilos of “phenylacetic acid” delivered by Launt to Parker and Haeusler’. 35. To the contrary, the judgment of 5 December 2002, rejecting the application … for a verdict of not guilty by direction in respect of all three counts, characterised the second and third counts in these terms: ‘… the counts which allege that the accused conspired with certain named persons, and others, to manufacture a prohibited drug, namely methylamphetamine’ (at p 5). 36. What follows is a description … that the agreement ‘was to use specific chemicals provided by Haeusler and Parker’. Reference is made to the particulars which are themselves set out in El Azzi (1) at 121 [36] but which do not themselves do more than simply describe particular events alleged to have occurred (such as that the precursor chemicals used by the accused were provided by Launt). 37. The trial judge in his judgment of 5 December 2002 correctly accepted that ‘it is important to distinguish the terms of the specific conspiracy alleged by the Crown from any historical background and/or preliminary discussions between the conspirators’. He then accepted the Crown Prosecutor’s submissions that the conversation which took place between Simpson, Haeusler and Parker was preliminary negotiation, not an agreement (at 6–7). No error has been shown in that conclusion. 38. When reference is made to the so-called ‘second cook’ following the police raid on Dooralong, while the trial judge appears to accept the Crown Prosecutor’s submission that ‘Simpson and the accused agreed with Haeusler to do this other “cook” using “phenylacetic acid”, so that “this was a conspiracy to manufacture methylamphetamine using the key ingredients”’, it is clear that the trial judge saw no merit in the ‘impossibility’ argument raised by Mr Waterstreet in that context. The trial judge was not to be understood as accepting the Crown Prosecutor’s submissions in

any other sense. Thus he concluded (at 7) ‘in my view there were two separate conspiracies, and they have been correctly charged in the present indictment’ [emphasis added]. 39. Moreover, Mr Simpson gave evidence that the agreement in relation to count 2 was to produce methylamphetamine … and likewise in relation to count 3 to produce methylamphetamine … 40. A careful reading of Mr Simpson’s evidence indicates that he believed he was making methylamphetamine in both the Dooralong and Sylvania Waters’ cooks … Thus insofar as he used the chemicals provided he did so believing that he was being provided with the necessary chemicals to do so. … Thus Mr Simpson believed he had phenylacetic [page 497] acid, methyl formamide … acetic hydrochloride, sodium acetic solvents (all collected from Crown witness Vocisano’s garage, where he allowed Parker to store drums and bottles and other items) … and also acetic anhydride. … Simpson confirmed that he believed that the ‘cook’ at Dooralong yielded at best 30 kilos of methylamphetamine. 41. This evidence is entirely consistent with the Crown submission that the purpose was to produce methylamphetamine and the chemicals supplied for this purpose were merely incidental to it, and the agreement should be characterised accordingly. I should add that, given this characterisation of the agreement, I do not need to consider whether a differently characterised agreement would fall outside the crime of conspiracy, namely one where it was essential, not incidental, to the parties’ agreement that they use the very chemicals provided. There is much to be said for the view, expressed in R v Sew Hoy [1994] 1 NZLR 257, that even in the latter case it is irrelevant that it may not be possible to carry out the agreement, as the offence is complete when the agreement is made with its unlawful object. For that is the fundamental difference between conspiracy and attempt; the former focuses on an agreement to commit a crime, itself intrinsically criminal, irrespective of outcome. 42. On this basis ground 3(A) must fail. … [Santow JA, and Simpson and Sperling JJ, in separate judgments,

were in general agreement that the appeal, including with respect to ground 3A, should be dismissed.]

10.28 The New South Wales Law Reform Commission has recommended that the offence of conspiracy can be committed even if ‘facts or circumstances exist which make commission of the offence by the agreed course of conduct impossible’ (see Report 129 Complicity, Recommendation 6.1, proposed provision 5(a)).

Fault element of agreement 10.29 In Peters, a case concerning a conspiracy to defraud the Commonwealth (also extracted in part at 7.29 in relation to the meaning of ‘dishonesty’ in the area of dishonest misappropriation), McHugh J discussed the physical and fault elements for conspiracy. Peters v R (1998) 192 CLR 493; 151 ALR 51 High Court of Australia McHugh J: [some references have been omitted] … 51. Having regard to the state of the authorities dealing with the issues raised in this case, it is necessary to trace the development of the law of conspiracy in some detail. A conspiracy to defraud is one of the heads of the crime of conspiracy, a crime which was described by Willes J in Mulcahy v R (1868) LR 3 HL 306 at 317, as being an ‘agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means’. The second limb of this celebrated description, however, adds nothing: agreeing to use unlawful means necessarily involves agreeing to do an unlawful act. … [page 498] 54. It does not follow … that because the courts can no longer develop new heads of conspiracy, they are also restrained from formulating or developing principles that apply to the recognised

heads of conspiracy. On the contrary, because there is only one offence of conspiracy, it seems imperative that, so far as possible, the actus reus and mens rea of each of the recognised heads should be governed by the same principles. A real question arises, however, whether dividing the elements of conspiracy into an actus reus and a mens rea serves any useful purpose. … 55. One of the difficulties in dividing the offence of conspiracy into the traditional elements of an actus reus and a mens rea is that the agreement of the parties to pursue a common and unlawful design is traditionally regarded as the actus reus of the offence. Yet such an agreement, assuming it to be voluntary, necessarily includes a mental element. At the very least, there must be an intention to enter into the agreement, and the present state of the authorities suggests that there can be no conspiratorial agreement unless the accused and his or her co-conspirators also intend that the common design should be carried out. … 62. In principle, it seems correct to conclude that there is no criminal conspiracy between two people unless, at the time of making the alleged agreement, both parties intend to carry it out. This is because ‘the long established rule that conspiracy requires at least two guilty parties means that as against any particular accused the actus reus will include the existence of the requisite “intent” on the part of at least one other person who has manifested agreement’ (Orchard, ‘The Mental Element Of Conspiracy’, (1985) 2 Canterbury Law Review 353 at 357). If one person has not in fact conspired to do an unlawful act, it is impossible to hold that the only other party to the alleged conspiracy has nevertheless conspired to do that act. As Deane J pointed out in Gerakiteys v R (1984) 153 CLR 317 at 334: ‘[t]here must be at least two parties to a conspiracy’. The required intention cannot differ as between the alleged conspirators — if an intention to do an unlawful act is not required of one party, the law cannot require it of the other party. And as Professor Sir John Smith points out (Smith and Hogan, Criminal Law, 8th ed (1996) at 282) a ‘conspiracy which no one intends to carry out is an absurdity, if not an impossibility’. In an illuminating article (‘Intent in Criminal Conspiracy’, 89 University of Pennsylvania Law Review 624 at 629–30 (1941)), Dean Harno persuasively argued that Willes J’s statement in Mulcahy (1868) LR

3 HL 306 at 317 that a ‘conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act’, should perhaps have emphasised that ‘conspiracy consists not merely in the agreement of two or more but in their intention’. 63. Nothing in R v Darby (1982) 148 CLR 668 is inconsistent with the proposition that a person cannot be guilty of criminal conspiracy if the only other party to the alleged conspiracy never intended to carry out the agreement. In Darby, this Court held that one person could be convicted of criminal conspiracy even though the other alleged party to the conspiracy had been or was acquitted of the charge ‘unless in all the circumstances of the case his conviction is inconsistent with the acquittal of the other person’ ((1982) 148 CLR 668 at 678). This conclusion is plainly correct because, among other reasons, evidence which is admissible against one accused — for example, a confession — may not be admissible against the other accused. Where, however, one of the two parties never intended to carry out the alleged agreement to do an unlawful act, the conviction of the other is necessarily inconsistent with the conclusion that the other party is not a conspirator. 64. … The … reason why the law punishes conspiracies is not so much because parties have made an agreement or have evil minds but because they both intend to achieve [page 499] some further act that is detrimental to the welfare of society. It is the likelihood that their common intention will be translated into socially undesirable action that prompts the State to intervene. If one of the two parties has no intention of committing the socially harmful act, it lessens the chance that the act will occur. It merely lessens the chance, however, rather than eliminates it altogether. In many cases the encouragement flowing from the agreement may cause the other party to carry out that act. In my view, Dean Harno was right when he said [op cit at 646]: Conspiracy is an inchoate crime for which the essential act is slight. It involves an intent to commit a further act. It is the commission of that act which the state desires to prevent, and it is with the intent to commit that act that

the state is concerned. The essence of the crime thus lies in the intent. 65. The decision of this Court in Gerakiteys (1984) 153 CLR 317 also emphasises that the conspirators must have a common intention to achieve the same unlawful object. The Court held that the accused could not be guilty of conspiring with nine other persons to defraud a number of insurance companies because the evidence did not establish that the accused and the other persons all had a common purpose of defrauding those companies. Rather, the evidence established no more than that the accused and one other person had a common purpose of defrauding a particular company. 66. … [A] person must intend to achieve the carrying out of the unlawful act and that it is not sufficient proof of a criminal conspiracy that he or she realised that the probable consequences of his or her conduct might result in the performance of the unlawful act. Indeed, the editor of Howard’s Criminal Law declares that the effect of Gerakiteys v R is that ‘reckless assistance or encouragement does not amount to a conspiratorial agreement’. Similarly, Dean Harno contended that [op cit at 635] ‘[c]riminal conspiracy involves a specific intent to commit a particular act’; and Professor Sir John Smith says [op cit at p 287] that ‘[r]ecklessness as to circumstances of the actus reus is not a sufficient mens rea on a charge of conspiracy to commit a crime even where it is a sufficient mens rea for the crime itself’. More importantly, Wilson, Deane and Dawson JJ took the same view in an obiter comment in Giorgianni v R. Their Honours said ((1985) 156 CLR 473 at 506): For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another …

Intention that an offence be committed

10.30 It was established at common law that the offence of conspiracy was only made out where it was the intention of at least two persons entering into the agreement that an offence be committed. A mere expectation that the offence would take place was insufficient (see Ansari v R (2007) 70 NSWLR 89 at [61]). This is a requirement of the proposed statutory offence recommended by the New South Wales Law Reform Commission (see Report 129 Complicity, Recommendation 6.1, proposed provision 6(2)). [page 500]

Conspiracy to commit a crime of recklessness 10.31 The High Court has considered the provisions of the Criminal Code (Cth) in relation to conspiracy in two separate but related cases. Although the cases were largely concerned with the interpretation of s 11.5 of the Code, they are important because the High Court held that, in general, the provisions of the Code replicate the common law, particularly in regard to the fault element of conspiracy and the limits of the law of conspiracy both under the Code and at common law. The two decisions are R v LK (see below) and Ansari v R (2010) 241 CLR 299; 266 ALR 446. In the Court of Criminal Appeal, Ansari was decided first and LK determined by applying Ansari. In the High Court, LK was decided first and then applied in determining Ansari. Both cases were concerned with the validity of an offence alleging a conspiracy to commit an offence of which a fault element is recklessness. Both cases concerned money laundering offences under the Code. In Ansari, convictions of the appellants were upheld. In LK, the Crown’s appeal against directed verdicts of acquittal in the District Court was dismissed. Both decisions relied upon the application of Giorgianni to an inchoate offence, so that to be guilty of such an offence the accused must know of all the facts that make

the proposed conduct unlawful. The question in each case was whether there could be a conspiracy to commit an offence where the parties to the agreement were only reckless as to the existence of facts that would make the intended conduct unlawful. In effect it was decided, consistently with Giorgianni, that such an agreement was not an offence either at common law or under the Code. In Ansari the prosecution case succeeded because, even though the charge alleged that the appellants agreed to commit an offence of which the fault element was recklessness, the Crown relied upon that part of the definition of ‘recklessness’ in s 5.4 of the Code that included ‘intention’ so that, in effect, the Crown was alleging a conspiracy to commit an intentional act and not a reckless one. In R v LK the Crown case failed because the offence agreed to be committed was a reckless one: the Crown could not assert that the respondents knew of the unlawfulness of the facts surrounding the conduct to be carried out as a result of the agreement. R v LK; R v RK (2010) 241 CLR 177; 266 ALR 399 High Court of Australia [The facts are taken from the joint judgment (footnotes omitted).] [80] On 24 December 2003 a fraudulent set of instructions purporting to be those of the Commonwealth Superannuation Scheme’s Fund Manager was transmitted by facsimile to its banker, JP Morgan. The instructions directed JP Morgan to transfer a sum in the order of $150 million to four nominated overseas bank accounts. Acting on the instructions JP Morgan transferred an amount of approximately $25 million to a bank account in Switzerland which was operated by the respondent in the second appeal, RK. Before these events, the respondent in the first appeal, LK, who was acting at the request of a third man, RM, had approached RK and asked if his Swiss bank account could be used for the transfer of funds from Australia. RK had agreed to the proposal. Following the transfer of the money to RK’s account there were frequent communications between the

[page 501] three men, which culminated on 30 December in a direction by RK to his Swiss banker to transfer 23 million Swiss francs to an account with a bank in New York. On the same day the Swiss bank received advice from JP Morgan that the funds in RK’s account were the subject of a fraud and should be returned. The funds were not transferred in accordance with RK’s instruction. [81] It is not said that either LK or RK was a party to the fraud or that either had knowledge of it. There is evidence upon which it is open to find that LK and RK were reckless as to the circumstance that the money transferred to RK’s Swiss bank account was proceeds of crime. [82] It is an offence against s 400.3(2) of the Criminal Code (Cth) (“the Code”) for a person to deal with money that is proceeds of crime being reckless as to that circumstance. A person is reckless as to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances that are known to him or her, it is unjustifiable to take the risk. Engaging in a banking transaction relating to money is a dealing with money for the purposes of the offences created in s 400.3. [83] Neither of the respondents was charged with the substantive offence under s 400.3(2). The Director of Public Prosecutions of the Commonwealth, who then prosecuted on behalf of the Queen, determined to charge them jointly with conspiring to commit such an offence. Conspiracy under the Code is an offence that is confined to the agreement of two or more persons to commit an offence. The particular question raised by these prosecution appeals is whether an agreement to deal with money made by persons who are aware of a substantial and unjustifiable risk that the money is, or will be, proceeds of crime is an agreement to commit an offence.] French CJ: Conspiracy at common law [59] The Code provisions relating to the offence of conspiracy are written against the background of the common law, which, subject to their text, informs their content.

[60] Conspiracy evolved as a common law offence in England, albeit with early statutory assistance. Ordinances of the 13th and 14th centuries provided for civil remedies against persons who conspired to make false accusations against others, whether by way of so-called “false appeals” or “false indictments”. Although incidental penalties of fine and imprisonment were available, it was not until 1330 that conspiracy was made readily amenable by statute to prosecution as a criminal offence. [61] The rule that a combination to commit or procure the commission of a crime would be prosecuted as a conspiracy was an extended application of the decision of the Star Chamber in the Poulterers’ Case. Following the abolition of the Star Chamber the crime of conspiracy was developed by the Courts of King’s Bench, which, “groping their way through unfamiliar paths, tried new legal adventures”. It became “a crime at common law of general application” with “a close association with the law of principal and accessory” and “capable of almost indefinite extension”. The interaction between statute law and the common law is a feature of the history of conspiracy in England and its statutory evolution in Australia. [62] A concise enunciation of the elements of conspiracy was given by the Court of Queen’s Bench in Mulcahy v R in 1868 in answer to questions proposed by the Lord Chancellor in relation to a prosecution under the Crown and Government Security Act. Willes J, delivering the opinion of the judges, said: A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, [page 502] the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means. The House of Lords concurred. Notwithstanding its statutory

context, the statement of the common law in Mulcahy has been accepted and applied in this court. [63] The requirement, which did not emerge expressly from Mulcahy, that an alleged conspirator intend to carry into effect the common design of the agreement was propounded by the Supreme Court of Canada in R v O’Brien. It was not sufficient that the accused had intended to agree to commit the offence. He had to have intended to put the common design, the commission of the offence, into effect. [64] In Churchill v Walton the House of Lords held that mens rea was only an essential element in conspiracy in so far as there must be an intention to be a party to an agreement to do an unlawful act. The elements of the offence at common law were restated by the House of Lords in Director of Public Prosecutions v Nock. It identified the intention to do the unlawful act as the mens rea of the offence and the fact of the agreement as the actus reus. The difficulties of dividing the offence of conspiracy at common law into actus reus and mens rea was pointed out by McHugh J in Peters v R. As he said, the agreement which is the actus reus necessarily also includes a mental element: At the very least, there must be an intention to enter into the agreement, and the present state of the authorities suggests that there can be no conspiratorial agreement unless the accused and his or her co-conspirators also intend that the common design should be carried out. [65] The House of Lords in Nock rejected the proposition that the offence of conspiracy could be committed notwithstanding that the crime the subject of the conspiracy would be impossible of performance. That rejection was linked to the association between conspiracy and attempt. An agreement to do that which is impossible of performance is not a criminal conspiracy at common law, although it is under the Code. [66] The association between attempt and conspiracy assists in the consideration, relevant to these appeals, of whether conspiracy to commit an offence can be made out where the Crown does not propound as part of its case the existence of a physical element or circumstance of that offence as the subject of the agreement.

Plainly a conspiracy cannot be made out in such a case. This leads to a consideration of the place of recklessness in relation to the elements of the offence which is the subject of the conspiracy. [67] At common law a reckless state of mind is not sufficient to constitute the mens rea for the offence of attempt. Knowledge of the likely consequences of an act may evidence the requisite intention to commit the relevant offence. But such knowledge is not to be equated with that intention. Similarly, it is not sufficient that an alleged conspirator be reckless as to the existence of an element of the substantive offence — for that kind of recklessness would negate the very intention that is necessary to form the unlawful agreement. As was said in Giorgianni v R: For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. The trial judge’s reasoning [68] The trial judge characterised the Crown case against the respondents thus: The Crown has presented its case against the [respondents] on the basis that they agreed to deal with the money in [RK’s] account, which was in fact the proceeds of crime, and that the [respondents] were reckless that the money in [RK’s] account was the proceeds of crime. [page 503] The trial judge found that the evidence relied upon by the Crown was “overwhelmingly capable of proving that each [respondent] entered the conspiracy alleged and was reckless as to the money in [RK’s] account being the proceeds of crime”. [69] Her Honour then turned to the argument that the indictment did not charge an offence known to the law. Her Honour rejected a submission that the indictment alleged that the respondents

recklessly entered into the agreement. Rather, it alleged that the respondents intentionally agreed to commit an offence the mental element of which was recklessness. Her Honour characterised the decision of the Court of Criminal Appeal of New South Wales in Ansari as holding that the Crown can charge a person with conspiring to commit an offence the mental element of which is recklessness where it relies on intention or knowledge to prove the element of recklessness or where a third party is to commit the relevant offence. Neither of these circumstances was alleged in the present case. Her Honour held that “an accused must know of all the facts that would make his conduct criminal”. She observed that that proposition, as Howie J held in Ansari, had not been displaced by the Code. Following Ansari her Honour concluded that the offence with which the respondents were charged on the case the Crown had presented was bad at law or unknown to law. The reasoning of the Court of Criminal Appeal [70] The trial judge’s direction was upheld in the Court of Criminal Appeal by Spigelman CJ, with whom Grove and Fullerton JJ agreed. The Chief Justice characterised the Crown case thus: The Crown case did not allege that the respondents were parties to the fraud against the Commonwealth Superannuation Scheme, nor that they were specifically aware of the fraud. The Crown case was that the respondents were reckless as to the fact that the funds transferred into the account were the proceeds of crime. I emphasise this important aspect of the Crown case: it is alleged that the respondents, not a third party, were reckless about this fact. [71] His Honour noted that neither party suggested that the decision of the Court of Criminal Appeal in Ansari was incorrect. He characterised Ansari as providing an example of a factual situation in which persons could conspire to commit an offence with respect to which recklessness was the fault element attributed to a physical element of that offence. That could occur where the physical element was to be carried out by a person not a party to the agreement. [72] The Chief Justice proceeded correctly on the basis that the

Code imported the common law concept of conspiracy. So a person cannot enter into a conspiracy under the Code without knowing the facts that make the agreed conduct unlawful. It was not the Crown case that either of the respondents knew that the money was proceeds of crime. The Crown case was that the respondents were reckless as to whether the money was proceeds of crime. On that basis, and consistently with Ansari, his Honour concluded that the trial judge was correct to find that the Crown case disclosed no offence known to the law … Conclusions [75] The charge of conspiracy to commit an offence, which is created by s 11.5(1) of the Code, requires proof of an agreement between the person charged and one or more other persons. Moreover, the person charged and at least one other person must have intended that the offence the subject of the conspiracy would be committed pursuant to the agreement. Intention to commit an offence can be taken to encompass all the elements of the offence (subject to the operation of s 11.5(7A) in relation to special liability provisions in the substantive offence). That intention extends to both physical and fault elements of the substantive offence. [page 504] [76] In the case of an offence against s 400.3(2) its physical elements are: (1) conduct of the offender by the act of dealing with money; (2) the circumstance in which that conduct occurs, namely that the money is proceeds of crime; and (3) the further circumstance that the value of the money at the time of the dealing is $1,000,000 or more. [77] It is the second element which is the stumbling block in the way of the Crown’s argument. There cannot be a conspiracy in which the parties to the agreement are reckless as to the existence of a circumstance which is a necessary element of the offence said to be the subject of the conspiracy. Such recklessness would be inconsistent with the very intention that is necessary at common law and under the Code to form the agreement alleged. In this case that intention is an intention to deal with money which is proceeds of crime. Recklessness as to whether the money is proceeds of

crime is recklessness about a term of the agreement constituting the conspiracy. This is what was referred to at the commencement of these reasons as the fault line in the Crown’s argument. [78] Another way of analysing the difficulty, by reference to the provisions of the Code, is as follows: 1.

Section 11.5(1) provides that the offence of conspiracy is committed by a person who conspires with another person to commit an offence of the requisite character.

2.

Applying the requirement of s 5.6(1) in relation to the fault element of conspiracy leads to the proposition that a conspiracy is committed by a person who (having the fault element of intention) conspires with another to commit an offence.

3.

When s 11.5(2) is applied to the preceding, that person commits a conspiracy if he or she: (a) (intentionally) enters an agreement with one or more others to commit an offence; (b) intends that an offence will be committed, and at least one other party to the agreement intends that an offence will be committed; and (c) (intentionally) commits an overt act pursuant to the agreement or, if that person does not, at least one other party to the agreement does.

4.

When the offence the subject of the alleged conspiracy is an offence against s 400.3(2), step 3(b) will require that the person intends that someone will deal with money, the money is in fact proceeds of crime and the dealer is reckless as to the fact that it is proceeds of crime.

5.

Bringing in the definition of recklessness from s 5.4, the preceding step requires that the person intend that: (a) someone will deal with money; (b) the money is in fact proceeds of crime (s 400.3(2)(b)(i)); and (c) the dealer will be aware of a substantial risk that it is proceeds of crime and objectively that risk is unjustifiable.

These necessary steps do not support the conclusion for which the Crown contends, namely that the alleged conspirator’s intention that an offence against s 400.3(2) will be committed is satisfied if he or she is reckless as to whether the money the subject of the offence is proceeds of crime. [79] For the preceding reasons the trial judge’s direction and the conclusions reached by the Court of Criminal Appeal were correct and the appeals should be dismissed. … [page 505] Gummow, Hayne, Crennan, Kiefel and Bell JJ: Proof of the intention to commit an offence [108] The appellant’s challenge is to the conclusion that a person cannot be found guilty of an offence under s 11.5(1) unless he or she knows the facts that make the act or acts unlawful. The appellant points out that Giorgianni was concerned with derivative, accessorial, liability. The appellant submits that a more refined analysis of what constitutes knowledge of, or belief in, the ‘necessary facts’ is required with respect to proof of the intention to conspire to commit an offence of recklessness. Since the conspiratorial agreement is to engage in conduct in the future, the question of whether a person intends to commit an offence is said to require consideration of what was within the scope of the agreement. On this analysis, if two (or more) persons agree to deal with money and each has in contemplation that the carrying out of their agreement may involve dealing with money that is, or will be, proceeds of crime and nonetheless they agree to deal with the money, it is open to conclude that each possessed sufficient knowledge of, or belief in, the “necessary facts” to find as a fact that each intended that an offence be committed pursuant to the agreement. [109] In the appellant’s submission, the reference in the joint reasons in Giorgianni to the intention required for liability in conspiracy does not address the issue presently raised. The same is said with respect to the decision in Gerakiteys. Conformably with these submissions, the appellant contends that the references in the Gibbs Committee Report and the MCCOC Report to the necessity

for proof of intention are to the intentional entry into the conspiracy and not to the knowledge or belief that is required when the object of the conspiracy is an offence that has recklessness as its fault element. It is said to be “at least questionable” that the common law supports Spigelman CJ’s conclusion with respect to conspiracies to commit offences of recklessness. [110] The appellant’s submission is unsupported by authority. As McHugh J observed in Peters v R, it would seem to follow from Gerakiteys that, at common law, a person must intend to achieve the carrying out of the unlawful act and that it is not sufficient proof of a conspiracy that the person realised that the probable consequences of the agreed conduct might result in the performance of an unlawful act. His Honour referred to Professor Sir John Smith’s view that “[r]ecklessness as to circumstances of the actus reus is not a sufficient mens rea on a charge of conspiracy to commit a crime even where it is a sufficient mens rea for the crime itself”. [111] The appellant’s submissions referred to academic debate and, in particular, to the opinion expressed by Professor Glanville Williams: Whether recklessness is sufficient for conspiracy probably varies with the result that is in view. Where an act when done would be criminally reckless, an agreement to do that act is probably a criminal conspiracy. [112] The only authority cited by Professor Williams in this connection is R v Mawbey, an old case concerning a conspiracy to pervert the course of justice. It provides little support for acceptance of the appellant’s submission. The decisions of the House of Lords in Churchill and Kamara are against acceptance of it. More recently the House of Lords considered the issue in R v Saik, a case having factual similarities to the present. The accused was charged with the statutory offence of conspiracy under s 1 of the Criminal Law Act 1977 (UK). Section 1(2) provides that where liability for an offence may be incurred without knowledge of a fact or circumstance, a person shall not be guilty of conspiring to commit that offence unless he and at least one other party to the agreement intend or know that that fact or circumstance will exist

at the time when the conduct the subject of the agreement is to take place. Accordingly, the decision does not afford direct assistance in resolving the issue raised by these appeals. However, in the context of the appellant’s submission (as to the mental element of the common [page 506] law offence of conspiracy to commit a crime of recklessness) it is to be observed that Lord Nicholls of Birkenhead described s 1(2) of the English statute as reflecting the common law enunciated in Churchill. [113] The suggestion that the Gibbs Committee and the MCCOC failed to address the issue of conspiracies to commit crimes of recklessness should be rejected. It is addressed in terms in the second part of the highlighted extract from the Gibbs Committee Report that is set out at [105] above. The Gibbs Committee was cognisant of the United Kingdom Law Commission draft Criminal Code, which proposed for the statutory offence of conspiracy that recklessness with respect to a circumstance suffice where it suffices for the offence itself. The relevant provisions of the English draft Criminal Code Bill were set out in full in the Gibbs Committee Report. The MCCOC noted that their draft differed with respect to the mental element of the offence from the draft Criminal Code Bill that was proposed by the United Kingdom Law Commission in 1989. [114] Spigelman CJ’s analysis, that the common law offence of conspiracy requires that an accused person know the facts that make the proposed act or acts unlawful, should be accepted as an accurate statement of the law. [115] The appellant submits that, notwithstanding the position under the common law, textual and structural indications support its submission that, under the Code, the prosecution is not required to prove intention with respect to the physical element of the substantive offence where recklessness is the fault element for that offence. Firstly, the appellant notes that, while the Code specifically provides, with respect to attempts, that intention and knowledge are the fault elements in relation to each physical element of the offence attempted, it makes no such provision with respect to conspiracy. Understood against the context of the

legislative history of the Code, this distinction does not support the appellant’s contention. A discussion draft released by the MCCOC included recklessness as a fault element for the offence of attempt in cases in which recklessness would suffice as the fault element of the completed offence. Several submissions received by the MCCOC opposed this aspect of the draft. The MCCOC accepted these criticisms and deleted recklessness with respect to attempt, complicity and incitement from its draft. [116] Secondly, the appellant identifies a number of provisions of the Code that create offences of tiered seriousness. Section 400.3 is such a provision. It creates three tiers of offences, with two offences in each tier. The most serious tier involves dealing with money or property believed to be proceeds of crime or intended to become an instrument of crime. The least serious involves dealing with money or property in circumstances in which the accused is negligent as to the fact that the money or property is proceeds of crime or that there is a risk that it will become an instrument of crime. The appellant submits that it is anomalous if, for practical purposes, only the most serious of such tiered offences is susceptible of successful prosecution as a conspiracy. This consideration does not provide a sound reason for holding that proof of the intent ‘to commit an offence’ under s 11.5 embraces the intentional agreement that an act be done that may, or may not, be criminal. Beyond this observation, it is not useful to embark on a wider analysis of other offences under the Code, as the appellant’s submissions invited the court to do. The question raised by these appeals is the correctness of the ruling that, on the evidence adduced at the respondents’ trial, the prosecution must fail because it was not able to establish that the respondents intended to commit the offence particularised in the indictment. Resolution — proof of the intention to commit an offence [117] The offence of conspiracy under the Code is confined to agreements that an offence be committed. A person who conspires with another to commit an offence is guilty of conspiring to commit that offence. It was incumbent on the prosecution [page 507] to prove that LK and RK intentionally entered an agreement to commit the offence that it averred was the subject of the

conspiracy. This required proof that each meant to enter into an agreement to commit that offence. As a matter of ordinary English it may be thought that a person does not agree to commit an offence without knowledge of, or belief in, the existence of the facts that make the conduct that is the subject of the agreement an offence (as distinct from having knowledge of, or belief in, the legal characterisation of the conduct). This is consistent with authority with respect to liability for the offence of conspiracy under the common law. Subject to one reservation, it is how the fault element of the offence created in s 11.5(1) operates. The reservation concerns the application of s 11.5(2)(b). As these reasons will show, this provision informs the meaning of “conspires” in subs (1) by making clear that at least one other party to the agreement must have intended that an offence be committed pursuant to the agreement. It also speaks to proof of the accused’s intention. The reservation arises because s 11.5(2)(b) is subject to s 11.5(7A), which applies any special liability provisions of the substantive offence to the offence of conspiring to commit that offence. A special liability provision includes a provision that absolute liability applies to one or more (but not all) of the physical elements of an offence. Proof of the intention to commit an offence does not require proof of knowledge of, or belief in, a matter that is the subject of a special liability provision. [118] The respondents were charged with having conspired to commit the offence provided in para (b)(i) of s 400.3(2), which provides: (2) A person is guilty of an offence if: (a) the person deals with money …; and (b) either: (i)

the money … is proceeds of crime; or

… (c) the person is reckless as to the fact that the money … is proceeds of crime …; and (d) at the time of the dealing, the value of the money … is $1,000,000 or more. [119] It was not necessary for the prosecution to prove that LK and

RK knew or believed that the money with which they proposed to deal had a value of $1,000,000 or more. Relevantly, the offence the object of the conspiracy is one that criminalises the reckless dealing with money that is proceeds of crime. It is the second of these two physical elements of the offence to which it is necessary to attend. [120] It may be accepted that on the evidence given in the Crown case at the respondents’ trial it would have been open to the jury to find the following facts: the respondents agreed to deal with the money in RK’s Swiss bank account; at the time of their agreement each respondent was aware of a substantial and unjustifiable risk that the money that had been transferred to RK’s account was proceeds of crime; and their agreement was to deal with the money even if it was proceeds of crime. [121] Senior counsel for the appellant accepted that his argument is captured by the proposition that A and B commit the offence of conspiracy under s 11.5(1) if they intentionally agree that one or other of them, or a third party, C, will do acts, A and B taking the substantial and unjustifiable risk that the acts, if carried out, will be criminal. It is the intention that the acts will be done even if the doing of them is criminal that is central to the appellant’s argument. [122] The prosecution case at its highest was that the respondents intentionally entered an agreement to deal with money whether or not it was proceeds of crime. The matters upon which the appellant relies as providing the factual basis for the inference of intent, [page 508] namely the respondents’ awareness that the money may be proceeds of crime and their agreement to deal with it even if it was, expose the flaw in the analysis. At the time the agreement was made the money may, or may not, have been (or have become) proceeds of crime. The agreement, if carried out in accordance with LK’s and RK’s intention, may not have involved a dealing with money that is proceeds of crime. It follows that, on the evidence given at the trial, it was not open to find that either respondent

intentionally entered an agreement to commit the offence that is said to have been the object of the conspiracy … [141] The Court of Criminal Appeal’s conclusion that the law creating the offence of conspiracy is [sic] s 11.5(1) is correct. The offence has a single physical element of conduct: conspiring with another person to commit a non-trivial offence. The (default) fault element for this physical element of conduct is intention. At the trial of a person charged with conspiracy it is incumbent on the prosecution to prove that he or she meant to conspire with another person to commit the non-trivial offence particularised as being the object of the conspiracy. In charging a jury as to the meaning of “conspiring” with another person, it is necessary to direct that the prosecution must establish that the accused entered into an agreement with one or more other persons and that he or she and at least one other party to the agreement intended that the offence particularised as the object of the conspiracy be committed pursuant to the agreement. Proof of the commission of an overt act by a party to the agreement conditions guilt and is placed on the prosecution to the criminal standard. The Code does not evince an intention in the latter respect to depart from fundamental principle with respect to proof of criminal liability.

10.32 The New South Wales Law Reform Commission, in its recommendation for a statutory offence of conspiracy (see Report 129 Complicity, Recommendation 6.1), has adopted the test in Giorgianni by proposing that the offence contain the following provision: (3) To the extent that the commission of the substantive offence would depend on the existence of certain facts or circumstances, it is sufficient to establish in D a belief in, or expectation of, the existence of those facts or circumstances.

COMPLICITY Introduction

10.33 If the essence of attempt is in trying but failing to commit a crime, and the essence of conspiracy is in agreeing to commit a crime, then the essence of complicity is in assisting or encouraging others to commit a crime. The law that focuses on individual crimes, such as murder, sexual assault, or the use or importation of drugs, can be used to capture individuals who perpetrate single, defined offences. But these may be small, relatively insignificant (albeit illegal) facets of a much larger criminal operation. Particularly in areas of contemporary concern, including terrorism, people smuggling, sexual slavery and the importation, manufacture and distribution of illegal drugs, a number of people may be involved at various stages in planning, equipping and funding the ultimate criminal activity. The criminal justice system, therefore, recognises that a person may be criminally responsible [page 509] in various ways for a crime physically committed by another person. That other person may be referred to as: 1.

‘the principal offender’; and the person charged with complicity in that crime, ‘the accused’, may be convicted as:

2.

an accessory before the fact of that crime;

3.

an aider and abettor (or principal in the second degree) present at the commission of that crime, aiding and abetting its commission;

4.

an accessory after the fact of that crime;

5.

a party with the principal offender in a joint criminal enterprise to commit the particular crime for which the accused has been charged (straightforward joint criminal enterprise);

6.

a party with the principal offender in a joint criminal

enterprise to commit a crime other than the crime with which the accused has been charged, but where the crime charged falls within the scope of that enterprise (extended joint criminal enterprise); 7.

a party with the principal offender in a joint criminal enterprise to commit a crime other than the crime with which the accused has been charged, and where the crime charged falls outside the scope of that enterprise but within the contemplation of the accused (extended common purpose); or

8.

a party with the principal offender in a conspiracy to commit the particular crime which is the object of that conspiracy (see 10.19–10.32).

10.34 An operative concept for joint criminal enterprise liability is that of common purpose. Criminal liability for a joint enterprise is imposed because the parties shared a common purpose. They are also liable for incidental crimes within the scope of the common purpose. And the common purpose can be extended to an incidental crime, outside the scope of the common purpose, where the accused foresaw as a possibility that a party might go outside the scope of the common purpose to commit that incidental offence. The New South Wales Law Reform Commission has reviewed the law of complicity and made recommendations for legislative reform in this area of the law (see Report 129). Substantially the recommendations are that the common law be codified but it has recommended a change to the law in relation to joint criminal enterprise liability for murder (see 10.65).

Statutory provisions relating to complicity 10.35 The major provisions relating to complicity in New

South Wales are set out in ss 345–351B of the Crimes Act. The underpinning concepts are from the common law. 345 Principals in the second degree — how tried and punished Every principal in the second degree in any serious indictable offence shall be liable to the same punishment as the principal in the first degree.

[page 510] 346 Accessories before the fact — how tried and punished Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment as the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not. 347 Accessories after the fact — how tried and punished Every accessory after the fact to a serious indictable offence may be indicted, convicted, and sentenced as such accessory, either before, or together with, or after the trial of the principal offender, whether the principal offender has been previously tried or not, or is amenable to justice or not. … 349 Punishment of accessories after the fact to murder etc (1) Every accessory after the fact to murder shall be liable to imprisonment for 25 years. (2) Every accessory after the fact to the crime of robbery with arms or in company with one or more person or persons, or the crime of kidnapping referred to in section 86, shall be liable to imprisonment for fourteen years. 350 Punishment of accessories after the fact to other serious indictable offences

An accessory after the fact to any other serious indictable offence is liable to imprisonment for 5 years, except where otherwise specifically enacted. 351 Trial and punishment of abettors of minor indictable offences Any person who aids, abets, counsels, or procures, the commission of a minor indictable offence, whether the same is an offence at Common Law or by any statute, may be proceeded against and convicted together with or before or after the conviction of the principal offender and may be indicted, convicted, and punished as a principal offender. 351A Recruiting children to engage in criminal activity (1) A person (not being a child) who recruits a child to carry out or assist in carrying out a criminal activity is liable to imprisonment for 10 years. (2) In this section: child means a person under the age of 18 years. criminal activity means conduct that constitutes a serious indictable offence. recruit means counsel, procure, solicit, incite or induce. 351B Aiders and abettors punishable as principals (1) Every person who aids, abets, counsels or procures the commission of any offence punishable on summary conviction may be proceeded against and convicted together with or before or after the conviction of the principal offender. (2) On conviction any such person is liable to the penalty and punishment to which the principal offender is liable. …

[page 511]

Principal in the first degree

Joint criminal enterprise 10.36 A person who commits some or all of the physical elements of the offence may be a principal in the first degree. Where there is more than one offender it is not necessary for the prosecution to show that each performed all the necessary physical elements with the necessary fault elements, provided that the accused were all acting together. So, for example, an accused who restrained the victim while another person choked the victim to death is a principal in the first degree to the crime of murder, even though he or she did not actually perform the fatal act. It follows that there may be more than one principal in the first degree. This is so pursuant to the doctrine of joint criminal enterprise (see 10.47–10.68).

Innocent agents 10.37 Because the liability of a principal offender does not depend on the liability of any other offender, a principal offender can be guilty even if the co-accused is not guilty. This means that a person who arranges for another to commit a crime on his or her behalf cannot escape liability simply because the other offender cannot be convicted. For example, a person who arranges for an eight-year-old child to break into a house via a small window can be guilty of the crimes there committed even though the child cannot be convicted of any crime (see 1.79). In White v Ridley (1978) 140 CLR 342 at 346–347 (see 10.69), Gibbs J said: … it is well settled at common law that a person who commits a crime by the use of an innocent agent is himself liable as a principal offender. That is so not only where the agent lacks criminal responsibility, as, for example, when he is insane or too young to know what he is doing, but also where the agent, although of sound mind and full understanding, is ignorant of the true facts and believes that

what he is doing is lawful. Thus if A sends out B with a forged bank note for the purpose of passing it, and B does so, being ignorant that it was forged, A is guilty of uttering and publishing the note as true, since ‘where an innocent person is employed for a criminal purpose, the employer must be answerable’: R v Palmer and Hudson (1804) 1 Bos & Pul (NR) 96, at p 97 (127 ER 395, at p 396). If A gives B false particulars to enter in a register, and B enters them in the belief that they are true, A is guilty of making the false entry in the register: R v Butt (1884) 15 Cox CC 564. If A, planning a forgery, procures B, an innocent engraver, to make a plate, A is guilty of making and engraving the plate: R v Bull and Schmidt (1845) 1 Cox CC 281. So it has been held that where the defendants fabricated false vouchers on the high seas and posted them to a third person who innocently delivered them in Middlesex, a delivery by the defendants took place in Middlesex so that the defendants were triable there, ‘for the persons who innocently delivered the vouchers were mere instruments in their hands for that purpose; the crime of presenting these vouchers was exclusively their own, as the crime of administering poison through the medium of a person ignorant of its quality would be the crime of the person procuring it to be administered’: R v Brisac and Scott (1803) 4 East 164, at p 172 (102 ER 792, at p 796).

[page 512] 10.38 White v Ridley is further considered at 10.69, in the context of withdrawal from complicity. Innocent agency in respect of Commonwealth offences is dealt with under the Criminal Code (Cth) in s 11.3. The New South Wales Law Reform Commission has reviewed the law on this topic and recommended that there should be a statutory provision entitled ‘Commission by proxy’ which in substance will codify the common law and is similar to the provision found in the Criminal Code (Cth) (see Report 129 Complicity, Recommendation 3.2).

Principal in the second degree 10.39 A principal in the second degree (aider and abettor) is a person present at the scene of the crime who aids or assists in its commission. For example, the getaway driver at an armed robbery is guilty of that offence, as a principal in the second degree, even though not personally armed or involved in the robbery. In order to establish criminal responsibility as a principal in the second degree, the prosecution must establish: the commission of the crime by the principal in the first degree; and that the accused was present; and that the accused knew all of the essential elements necessary for the prosecution to succeed against the principal in the first degree (including the fault element); and that the accused, with that knowledge, intentionally assisted or encouraged the principal in the first degree to commit the crime. 10.40 Aiders and abettors in respect of Commonwealth offences are dealt with under the Criminal Code (Cth) in s 11.2. This section does not create an offence but states a way in which an offender other than the principal may commit an offence (R v Kaldor (2004) 150 A Crim R 271 at [77]). The New South Wales Law Reform Commission has reviewed the law relating to this type of criminal responsibility and recommended that a statutory provision be enacted to codify the liability of a person as a principal in second degree (see Report 129 Complicity, Recommendation 3.1). 10.41 Throughout Phan, which examined the circumstances where an accused could be convicted as a

principal in the second degree, the Court of Criminal Appeal considered Giorgianni v R (1985) 156 CLR 473 (see 10.18). R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29 NSW Court of Criminal Appeal [The appellant had been convicted of murder. The Crown alleged that the deceased had been shot three times while sitting in his car. It further alleged that the appellant was either one of the two gunmen who shot the deceased or was a principal in the second degree by being present at the scene and assisting in the commission of the crime. [page 513] The appellant claimed that he had been in the back seat when a dispute arose between another man (Bao) and the deceased. The appellant claimed that he went to get out of the car when the deceased pointed something at him as he was opening the car door. He heard the noise of a shot and then lost consciousness. He remembered nothing further until he woke up at Bao’s house in the morning, after which he was taken by a friend, Van, to a doctor at Mt Pritchard for treatment to a head wound.] Wood CJ at CL: … 68. It needs to be borne in mind that the liability of a principal in the first degree is primary … and is not derived from that of another principal, while that of a principal in the second degree is derivative and depends upon the guilt of the principal in the first degree being established. … 69. Moreover, mere acquiescence or assent to a crime does not make a person liable as a principal in the second degree. What was needed in such a case is proof that the principal in the second degree was linked in purpose with the person actually committing the crime, and was by his or her words or conduct doing something to bring about, or rendering more likely, through encouragement or assistance, its commission. … 76. That there is no general principle by which assent or acquiescence, without more, will give rise to liability can, also, be

seen from the decision in Giorgianni v R (1985) 156 CLR 473 at 493 where Mason J said: In felony at common law the terms ‘aid’ and ‘abet’ are generally used to refer to the conduct of a principal in the second degree, or one who is present at the commission of the offence by the principal offender, while the terms ‘counsel’ or ‘procure’ are generally used in relation to the conduct of an accessory before the fact, or one who is absent at the time of the commission of the offence: 4 Bl Comm 34-36; Ferguson v Weaving [1951] 1 KB 814 at 818–819. In substance, however, there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence. In misdemeanour, where no attempt has been made to classify the parties to an offence, each of the four terms is employed to refer to the conduct of a secondary participant. But the terms are descriptive of a single concept. In this regard, I would adopt the observation of Cussen ACJ in R v Russell [1933] VLR 59 at 67, as being applicable to secondary participation in misdemeanour. Having listed various words, including ‘aiding’ and ‘abetting’ which have been used to refer to the conduct of a principal in the second degree in felony, his Honour observed: All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree 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. 77. Moreover, in Giorgianni, the Court made it clear that the principal in the second degree must actually know that the crime is being committed or will be committed. 78. To that extent, the non-accidental presence of the appellant and his acquiescence in or assent to what occurred would not be

enough, unless it was also made clear that the Crown had to establish that such assent or acquiescence amounted to that degree of encouragement or assistance as would constitute him a principal in the second degree. Smart AJ: … 90. … Rightly understood, the Crown case was that both Bao Pham and the appellant were present in the car when the deceased was shot dead. Three shots were fired. Either one of the men fired all three shots or each man fired one or more shots. At least one of the shots killed the deceased. If the jury was not satisfied that the accused fired one of the shots that did not matter so long as they were satisfied that both the men were present, [page 514] with one or both of them firing the shots and the other aiding and abetting. As Hunt J pointed out in Stokes & Difford (1990) 51 A Crim R 25 at 35, even if the Crown had been unable to establish which one of the two co-offenders was responsible for inflicting the injury it would still have been a classic case of each of them aiding and abetting the other: Mohan v R [1967] 2 AC 187 at 195. In Mohan the evidence established that the two co-offenders were present and attacked the deceased. The Crown could not say who struck the fatal blow. Hunt J further explained (at 35): The ratio of that case is that a person who is present, aiding and abetting another in the commission of crime is guilty of that crime as an accessory even in the absence of any pre-arranged plan. That ratio does not depend upon the fact that each of the accused in that particular case was physically attacking the deceased. It would be equally applicable where the finding of aiding and abetting is available from other conduct. [His Honour then considered the trial judge’s directions to the jury before continuing:] 104. The judge’s directions as to aiding and abetting did not follow the traditional format. Usually a jury is told that the Crown must prove beyond reasonable doubt: (a) the commission of the crime of murder by the principal

offender; (b) the presence of the accused at the time the crime was committed; (c) the accused knew all the essential facts or circumstances necessary to show the crime was committed by the principal offender (including that the principal offender intended to kill the deceased or inflict grievous bodily harm upon the deceased); (d) with that knowledge, the accused intentionally assisted or encouraged the principal offender to commit the crime. It is then necessary for the jury to be told the elements which the Crown must prove beyond reasonable doubt for them to be satisfied that the principal offender committed the crime. This may overlap with sub-par (c) above. 105. The directions and principles set out above are based on Stokes & Difford at 37–38, and Giorgianni v R (1985) 156 CLR 473 at 487–488, 493–495, 500–501. Knowledge of all the essential facts includes knowledge of the necessary state of mind or intent encompassed within the crime. 106. In Giorgianni (at 481) Gibbs J pointed out that similar matters need to be proved in the case of an accessory before the fact and that of an aider and abettor. Mason J (at 493) stated that in substance ‘there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence’. 107. Again, in Giorgianni (at 481) Gibbs J cited this passage from Russell on Crime 12th ed (1964) p 151 ‘the bare minimum’ which is necessary to constitute a person as an accessory before the fact is that his conduct should indicate ‘(a) that he knew that the particular deed was contemplated and (b) that he approved of or assented to it, and (c) that his attitude in respect of it in fact encouraged the principal offender to perform the deed’. Gibbs J (at 481–482) went on to point out that the law had developed and that knowledge of the facts is necessary before a party can be made liable as a secondary party for the commission of an offence. Further, the person charged must have intended to help, encourage

or induce the principal offender to bring about the forbidden result (at 482). 108. The directions given by the judge refer to the necessity of the accused being present when the gunshots were fired. That is correct. The directions also refer to the Crown having to prove that the accused said or did something that indicated his willing assent. Technically, ‘willing assent’ does not necessarily involve the same concept as intentionally assisting or encouraging the principal offender. ‘Willing assent’ is however a manifestation of ‘encouraging’ and in the circumstances of the present case where [page 515] both the accused and the co-offender were in the car at the same time with the deceased this part of the direction is sufficient. The direction does not tell the jury that they must be satisfied beyond reasonable doubt that the crime of murder has been committed (by the principal offender) and spell out the elements. Nor does it state that they must be satisfied beyond reasonable doubt that the accused was aware of all the essential circumstances including the state of mind of the principal offender. 109. While the direction does not state in terms that the Crown must prove beyond reasonable doubt that the accused intended to assist or encourage the principal offender, the direction that the jury must be satisfied that the accused intended that the deceased should either be killed or have inflicted upon him some form of grievous bodily harm sufficed. If you intend that the deceased should be killed or have grievous bodily harm inflicted at the time you indicate your assent, it follows that you intend to assist or encourage. [McClellan J agreed with Wood CJ at CL. Appeal allowed. New trial ordered.]

Accessory before the fact 10.42 An accessory before the fact is an accused who, while not present at the crime, urges or contributes to its commission by the principal in the first degree; for example, an accused who gave the principal in the first degree a

weapon to use in an armed robbery is an accessory before the fact to armed robbery. This is a derivative form of criminal responsibility in that the prosecution must prove the commission of the offence by the principal in the first degree in order to establish the offence of the accessory before the fact. 10.43 The relationship between the liability of a principal in the second degree (see 10.39) and that of an accessory before the fact was considered in R v Stokes and Difford (1990) 51 A Crim R 25 (see also 2.27), a case considered by Wood CJ at CL in Phan, above. As explained in Stokes and Difford, with both forms of complicity the accused need not be shown to have possessed a mental element such as intention with respect to the ultimate consequences of the principal offender’s conduct but, while the principal in the second degree is at the scene of the crime, the accessory before the fact is not. 10.44 With joint offenders (see McAuliffe v R (1995) 183 CLR 108, at 10.55), a person is responsible for the actions of his or her co-offenders that were agreed to or within the subjective contemplation of the parties. Where people are present at the scene of the crime, this can mean that responsibility might be extended as the crime takes place, so that all present can be made liable for the consequences of changes to the plan made on the run, as it were, by any one of those present. The situation is more complex when an accessory before the fact agrees that certain criminal conduct is to take place, but the offenders, in his or her absence, then go beyond the scope of the agreed criminal enterprise. This was an issue discussed in Johns v R (1980) 143 CLR 108; 28 ALR 155 (see 10.51), where the relationship between a principal in the second degree and an accessory before the fact was also considered. 10.45 To be guilty of counselling, procuring or otherwise

assisting a person to commit an offence, the accessory before the fact must be aware of what the principal [page 516] offender intends to do. The fault element is ‘knowledge’ of all the essential elements that make up the offence that the principal offender will commit. As can be seen from Giorgianni (see 10.18), recklessness, that is foresight that the principal offender may commit an offence, is not enough. 10.46 The New South Wales Law Reform Commission has reviewed the law relating to this type of criminal responsibility and recommended that a statutory provision be enacted to codify the liability of a person as a principal in second degree (see Report 129 Complicity, Recommendation 3.1).

JOINT CRIMINAL ENTERPRISE Introduction 10.47 The following cases consider joint criminal enterprise. Liability arising from a joint criminal enterprise can be extended by the doctrine of common purpose to consequences occurring within the scope of the common purpose of those jointly involved in the criminal enterprise. The doctrine of common purpose can further extend the liability of the accused to consequences outside the scope of the common purpose which were in the subjective contemplation of the accused. An accused found guilty under these doctrines is a principal in the first degree. 10.48 For example, the adult accused (D) and his brother who is aged nine years agree to break, enter and steal from V’s house with the child entering through the cat door and stealing jewellery. D does nothing physically to assist but he

is present while the agreement between the two is carried out. Here D might have been found guilty as a principal in the second degree (see 10.39) but D is also guilty as a principal in the first degree of break, enter and steal. A joint criminal enterprise should be alleged by the prosecution where the agreed crime is committed but where it is unable to establish who committed its physical elements (see R v Tangye (1997) 92 A Crim R 545, at 10.56). 10.49 An extended joint criminal enterprise exists where the crime for which the prosecution is seeking the accused’s conviction falls within the scope of the common purpose of the accused and the principal offender. If it does, the accused is also a principal in the first degree. For example, the accused (D) and the principal in the first degree (P1) had agreed to carry out an unarmed robbery using only physical force, but in the course of the robbery P1 pulls out a gun. The issue here is whether this was within the scope of the common purpose of D and P1. If it was, D is also a principal in the first degree to armed robbery. 10.50 It should be noted that initially for Commonwealth offences the Criminal Code (Cth) did not provide for joint criminal enterprise. This gave rise to difficulty in prosecutions for drug importation offences where it was alleged that more than one person was involved. The prosecution could only charge each person with the substantial offence involved in the individual importation. The Code was amended in 2010 by the introduction of s 11.2A which deals with both joint criminal enterprise and extended joint criminal enterprise cases. The New South Wales Law Reform [page 517] Commission has comprehensively reviewed the law relating to joint criminal enterprise and recommended that a statutory provision be enacted to codify this aspect of

criminal responsibility Recommendation 4.1).

(see

Report

129

Complicity,

Scope and application of joint criminal enterprise 10.51 In Johns, the New South Wales Court of Criminal Appeal and the High Court successively considered the criminal responsibility of an accessory before the fact, an aspect of complicity considered at 10.42. As these decisions demonstrate, the doctrine of joint criminal enterprise can apply to make an accused responsible as an accessory before the fact to a crime incidental to that actually planned. R v Johns [1978] 1 NSWLR 282 NSW Court of Criminal Appeal Street CJ: … The Crown case against the appellant was that he had joined with two other men named Dodge and Watson in planning an armed robbery of one Morriss, a well known receiver of stolen property who lived near Kings Cross. The plan was that the appellant would drive Watson to Kings Cross to a point near, but not in the immediate vicinity of, the block of flats where Morriss lived. Watson was to meet Dodge at this point, it being proposed that Watson and Dodge would proceed from there to carry out the robbery on Morriss. The appellant was to wait in his vehicle at that point. Having completed the robbery, it was planned that the other two men would bring the proceeds to the appellant who would then take them and conceal them at a place agreed between the parties. The three men embarked upon the performance of this plan. The appellant picked up Watson at about 2.00 am on 18th April, 1975, in an outer suburb of Sydney. He drove Watson to a point about six hundred yards away from Morriss’ flat. Watson got out of the appellant’s vehicle and entered a car driven by Dodge. To the knowledge of the appellant, Watson was carrying a pistol that he, the appellant, expected would be loaded. The appellant knew that Watson was quick tempered; Watson had said that he would not stand for any nonsense and the appellant knew that Watson would

not let Morriss “get on top of him”. The appellant described Watson as “a likeable sort of chap, but he was quick tempered, and could become violent”. The appellant waited for about half an hour after Watson and Dodge left in Dodge’s car. They then returned and Watson, speaking from the other car, said: “I didn’t get it, mate. It’s gone bad, it’s off.” Watson and Dodge then drove off together and the appellant left separately in his vehicle. The evidence disclosed that Watson and Dodge had ambushed Morriss when he arrived home and was approaching his front door. There had been a struggle in the course of which Morriss was shot dead by Watson’s pistol. The reconstruction of the struggle and the shooting was the subject of detailed evidence, but for the purpose of discussing the question of law that I have earlier mentioned it is not necessary to narrate that detail. The appellant and Dodge were tried together, each on a charge of murder and a second charge of being armed with a firearm, assault with intent to rob, and wounding. Both men pleaded not guilty. The jury returned a verdict of guilty against each on both [page 518] counts. Both men were sentenced to life imprisonment on the murder charge and to fourteen years imprisonment, with no nonparole period, on the armed assault with intent to rob and wounding. It was the Crown case that Watson was the principal in the first degree, that Dodge was a principal in the second degree and that the appellant was an accessory before the fact. The appellant was charged in the terms appropriate to a principal offender in accordance with the provisions of s 346 of the Crimes Act, 1900. It is well established that a statutory provision of this nature is of procedural significance only. The question of the appellant’s guilt is to be determined according to the long established principles of common law referable to an accessory before the fact. The Crown relied upon the doctrine of common purpose in order to attach guilt to Dodge as a principal in the second degree. It was, accordingly, appropriate, in the course of the summing up, for the jury to be directed upon the meaning of that doctrine, and its

relevance to the case in hand according to the view of the facts that the jury might take. Apart from minor matters of verbiage to which attention was drawn in argument, and which are referred to in the judgment of Begg J, the summing up on the doctrine of common purpose followed well established lines. The particular challenge which is to the forefront of Mr McHugh’s argument is that the lines established as appropriate for directing the jury in respect of the doctrine of common purpose do not provide the correct basis for determining the question of criminal liability of an accessory before the fact. A principal in the second degree may be held liable pursuant to the doctrine of common purpose, if the particular actus reus, whilst differing from that directly and specifically intended by the principals, was nevertheless one that the jury regard as within the contemplation of the parties as an act which might be done in the course of carrying out their primary criminal intention. This can be described, alternatively, as an act contemplated by the principals as a possible incident of the particular venture upon which they embarked. … Mr McHugh contends that a direction along these lines, whilst appropriate where applied to a principal in the second degree, is inappropriate and casts the net too widely, when considering the liability of an accessory before the fact. It is argued that the doctrine of common purpose does not extend to an accessory before the fact, the submission being that the jury should have been directed to address their minds to whether the appellant did in fact foresee the actual crime which was committed and did aid and encourage it. … It is, of course, obvious that the principal in the second degree, by his very presence at the crime, provides continuing support for the principal offender, whereas the accessory before the fact, being absent from the scene, is to that extent not to be regarded as an ongoing participant in the actual carrying out of the criminal venture. It is relevant in this regard to observe that the original scope, and the possible incidents, of a planned venture may well change in character, as well as in extent, during the actual carrying into effect of the venture itself. The liability of the principal in the second degree could well, in appropriate cases, extend to cover other criminal actions falling outside the possible incidents of the originally planned venture, but carried out by the principal in the

first degree in the presence of the principal in the second degree in such circumstances as to entitle a jury to infer that, during the course of actually carrying out the crime, there had been a further and later assent by the principal in the second degree to this further and changed criminal activity. The liability of the accessory before the fact, on the other hand, is to be determined fixedly by reference to the originally planned venture — how far this liability will extend to acts beyond the particular crime originally planned is the central question in this appeal. In the present case, there is no suggestion that Dodge is to be held liable upon any basis other than that arising out of the killing being a possible incident of the originally [page 519] planned armed robbery. The case does not involve any question of there having been some further and later assent by Dodge to further and changed criminal activity by Watson such as to import a change in both the content and the possible incidents of the originally planned crime. In such a case, the summing up would of necessity have to distinguish between the range of the extended liability of the accessory before the fact and the range of the extended liability of the principal in the second degree. This would be of no little importance as, in such a case, the accessory before the fact would not be liable for a crime committed by the principal in the first degree falling outside the scope and possible incidents of the originally planned venture, whereas the principal in the second degree could be held liable, if the crime were within the possible incidents of the further and changed criminal activity to which he had later assented. I turn to what I have described as the central question in this appeal. There are two aspects of the extended liability of an accessory before the fact. First there is the relationship between the crime actually committed and that originally planned. And secondly, there is the state of mind of the accessory before the fact. These same two aspects arise in considering the extended liability of a principal in the second degree; in such case they are encompassed within the accepted form of enunciating the doctrine of common purpose stated above — contemplation as a possible incident of, or

as an act which might be done in the course of carrying out, the primary crime. As might be expected in the light of the fundamental reappraisal of English criminal law consequential on the decision of the House of Lords in Woolmington v Director of Public Prosecutions [1935] AC 462, there has now been introduced into this purely objective description of the relationship a subjective element. Russell on Crime, 12th ed, states at pp 160, 161 and 162: There has been much discussion as to the liability of an accessory when the principal does not act in conformity with the plans and instructions of the accessory. If the principal totally or substantially varies from the terms of the instigation, if being solicited to commit a felony of one kind, he wilfully and knowingly commits a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. … More difficult questions arise where the principal by mistake commits a different crime from that to which he was solicited by the accessory. Nowadays, it is submitted, the test should be subjective and the person charged as accessory should not be held liable for anything but what he either expressly commanded or realised might be involved in the performance of the project agreed upon. It would, on this principle, therefore be a question of evidence to satisfy the jury that the accused did contemplate the prospect of what the principal has in fact done. In my view, the law on the question of the extended liability of an accessory before the fact is correctly stated in the latter portion of this passage I have quoted from Russell. … Not only do I see no reason in principle to differentiate between the manner of expression of the scope of the extended liability of an accessory before the fact and the scope of the extended liability of a principal in the second degree, but there are sound grounds based on commonsense for equating the two. For example, let it be supposed that three men set out to carry out an armed robbery on a bank, it being intended that two would go into the bank with

loaded firearms, whilst the third remains outside to drive the getaway car. In the course of the robbery a bank officer is shot and killed. The driver of the getaway car waiting outside could (and no doubt would) be held liable as a principal in the second degree for the killing. If, however, the plan had involved the driver merely dropping the two armed men outside the bank and then driving off, the two men having some alternative plan for leaving after completing the robbery, the car driver, not being present, would fall within the category of an accessory before the fact. There seems no logical or legal justification for giving to him a more limited scope of [page 520] extended liability than that to be applied in the case of the driver waiting outside in the getaway car. Whether he was a true principal in the second degree as waiting outside in the getaway car, or whether he was an accessory before the fact, in that he dropped the two armed men and drove off, does not seem to me to bear upon the criminality of the third man and the scope of his responsibility in law for the killing. For the foregoing reasons I have concluded that the doctrine of common purpose is equally applicable to an accessory before the fact and to a principal in the second degree. Expressed alternatively, I am of the view that an accessory before the fact bears, as does a principal in the second degree, 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. Having reached this conclusion, it follows that I do not assent to the challenge made on behalf of the appellant on this aspect of the appeal. … [Begg J agreed with Street CJ. Lusher J dissented. The unsuccessful appellant then made further appeal to the High Court, where the appeal was dismissed. An extract from the judgment of Stephen J in Johns is set out below.]

10.52 On appeal to the High Court in Johns, Stephen J

considered the application of the doctrine of common purpose in relation to a crime other than that planned. Johns v R (1980) 143 CLR 108; 28 ALR 155 High Court of Australia [The facts are set out in R v Johns at 10.51.] Stephen J: … The trial judge, in charging the jury, referred to the doctrine of common purpose as applicable to both defendants alike. He told the jury to consider for themselves the nature and extent of the joint enterprise alleged by the prosecution and, in the case of a crime of violence involving the carrying of a firearm, said that it was for them “to consider whether the parties must have had in mind the contingency that for the purpose of carrying it out or attempting to carry it out the firearm might be discharged and kill somebody. If the jury considers that a party to such a design to carry out such a crime must have been aware of such a possibility or contingency then he is responsible for the death whether he was present assisting or encouraging as a principal in the second degree, or had given assent and encouragement as an accessory before the fact” (emphasis added). Johns says that while such a direction may have been well enough in the case of Dodge, who was present at the killing aiding Watson, it was wrong in his case, that of a mere accessory before the fact not present at the killing. He should, he said, only be liable to be convicted of the murder of Morriss if found by the jury to have known that, in carrying out the common purpose of robbery, it was likely or probable, and not merely “a possibility or contingency”, that Morriss would be killed. There are two main features of the applicant’s argument. The first is a submission that the criminal responsibility of an accessory before the fact should be judged by a standard different from that of an accessory at the fact, a principal in the second degree. The second is that, according to his different standard, an accessory before the fact will [page 521] only be liable for the crimes of a principal offender if they were

within his contemplation as a probable consequence of the common purpose of the parties. In his judgment in the Court of Criminal Appeal Street CJ has drawn attention to one important practical distinction between the accessory before the fact and the accessory at the fact. It arises directly from the continuing physical proximity of the latter to the principal offender and the opportunity which that affords the two of them of agreeing upon changes in and development of their common criminal purpose to meet the changing needs of the situation as it confronts them from moment to moment. The accessory before the fact will not normally be so situated. The common purpose which serves to associate him with the criminality of the others will usually remain fixed as at the moment when the active perpetrators of the crime set off to commit it. His absence from the scene will make him incapable of assenting to the commission of other crimes, quite outside the scope of the original common purpose, in which the principal offenders engage on the spur of the moment. This practical distinction is both important and rational but, as Street CJ points out, there is nothing to be said for differentiating between an accessory before the fact and a principal in the second degree in the manner urged on behalf of the applicant. Of course, parties to a crime may not share precisely the same mens rea and, as well, to one of them special considerations may apply, as where diminished responsibility is raised … [S]o long as what is in question is within the scope of the common purpose neither reason nor fairness suggests that any such distinction as the applicant urges should be drawn. Each of the parties has complicity in the crime: each has knowingly assisted, in different ways, in its commission. Where the crime in question does not involve a mandatory sentence, their respective roles may of course bear upon the sentences to be imposed upon conviction, but not necessarily in a manner favourable to the accessory before the fact, who may prove to be the more blameworthy of the two. … No trace of the distinction suggested by the applicant has ever existed in our criminal law, so carefully summarized in the judgment of Street CJ. … Counsel for the applicant did not suggest that the trial judge in

any way mis-stated the criterion of complicity applicable to Dodge, a principal in the second degree: if, as I have concluded, no relevant distinction exists between accessories before the fact and principals in the second degree, it follows that that is enough to dispose of the present application. However, since what I have called the second feature of the applicant’s submissions suggests a criterion of liability based upon probable, rather than possible, consequences, it merits consideration as a basis of liability for accomplices generally, if only for the purpose of exposing features which I regard as making it unacceptable. I turn therefore to this second feature. The criminal responsibility here under discussion is not that relating to the crime which is the prime object of a criminal venture. As to that crime, one who, while not actually physically present and participating in its commission, nevertheless knows what is contemplated, and both approves of it and in some way encourages it thereby becomes an accessory before the fact. … His knowledge, coupled with his actions, involves him in complicity in that crime. But if, in carrying out that contemplated crime, another crime is committed there arises the question of the complicity of those not directly engaged in its commission. The concept of common purpose provides the measure of complicity, the scope of that common purpose determining whether the accessory before the fact to the original crime is also to share in complicity in the other crime. If the scope of the purpose common both to the principal offender and to the accessory is found to include the other crime, the accessory will be fixed with criminal responsibility for it. In determining scope, it may either be restricted to what [page 522] the accessory regarded as probable consequences of the criminal venture or may be extended to include what he regarded as possibly involved in the venture. To apply to such a situation a criterion of what is probable, as contrasted with what is merely possible, seems singularly inappropriate. The commission of that other crime will not have been the prime object of the criminal venture; it will in all probability have been committed as a reaction to whatever response is made by the victim, or by others who attempt to frustrate the venture, upon suddenly being confronted by the criminals. There will usually be a variety of possible responses

to the criminal act. With each of these contingencies the criminals will have to reckon, if they are at all to plan their future action. What they conceive of as contingent reactions to each possible response will have, interposed between these reactions and the planned crime, at least one and perhaps a whole sequence of spontaneous and relatively unpredictable events. … In those circumstances it is understandable that criminal liability should be made to depend upon the jury’s assessment of whether or not the accessory before the fact must have been aware of the possibility that responses by the victim or by third parties would produce the reaction by the principal offender which led to the other crime. In such a speculative area, it would be remarkable were the accessory’s liability for the other crime to depend upon the jury assessing, in terms of ‘more probable than not’, the degree of probability or improbability which the accessory attached to the happening of the particular reaction by the principal offender which in fact occurred, itself dependent upon the intervening uncertain responses of victim or third parties. Yet that is what would be required were an accessory’s responsibility to depend upon such a criterion of probability, necessarily involving a balancing process and often a nice assessment of odds. I have spoken of intervening contingencies dependent upon human responses; however to these must be added those contingencies which may arise without any human intervention. Another and perhaps more substantial objection to the suggested criterion of probability lies in the standard of blameworthiness and responsibility which it presupposes. If applied, it would mean that an accessory before the fact to, say, armed robbery, who well knows that the robber is armed with a deadly weapon and is ready to use it on his victim if the need arises, will bear no criminal responsibility for the killing which in fact ensues so long as his state of mind was that, on balance, he thought it rather less likely than not that the occasion for the killing would arise. Yet his complicity seems clear enough; the killing was within the contemplation of the parties, who contemplated ‘a substantial risk’ that the killing would occur: Howard, Criminal Law, 3rd ed (1967), p 276. … Again, references in the older works of authority to “probable” or “likely” must be understood in their setting in time, before Woolmington v Director of Public Prosecutions [1935] AC 462 and

at a time when juries, instructed to adopt an essentially objective approach, did not so readily encounter the difficulties nor face the curious consequences which I have referred to above as being involved in the appellant’s suggested criterion of probability, used in a subjective sense as representing the required state of an accused’s mind … It is for these reasons that I agree with the approval given in my brothers’ joint judgment to the passage which they cite from the judgment of Street CJ as to the criminal liability of an accessory before the fact. [Mason, Murphy and Wilson JJ, in a joint judgment, and Barwick CJ, agreed with the views expressed by Stephen J. Appeal dismissed.]

[page 523] 10.53 In Mills v R (1986) 68 ALR 455, the High Court affirmed its decision in Johns (see 10.52). 10.54 As will be apparent from the discussion so far, a person who commits some or all of the physical elements of the offence will be a principal in the first degree. Where there is more than one offender, it is not necessary for the prosecution to show that each performed all the necessary physical elements with the necessary fault elements, provided that the accused are all acting together. So, for example, an accused who restrained the victim while another person choked her to death is a principal in the first degree to the crime of murder, even though he or she did not actually perform the fatal act. It follows that there may be more than one principal in the first degree. 10.55 As McAuliffe shows, where the accused and another or others have entered a joint criminal enterprise, the accused may become a principal in the first degree to a crime committed by that other person as a possible incident of the joint criminal enterprise. McAuliffe v R

(1995) 183 CLR 108; 130 ALR 26 High Court of Australia Brennan CJ, Deane, Dawson, Toohey and Gummow JJ: [footnotes omitted] … The appellants, Sean McAuliffe and David McAuliffe, are brothers. They were both convicted of the murder of a man named Rattanajaturathaporn, who was of Thai origin, on 20 July 1990. They were also convicted of different offences against a man named Sullivan committed at the same time as the murder: in the case of Sean McAuliffe the offence was robbery with striking and wounding and in the case of David McAuliffe the offence was malicious wounding with intent to do grievous bodily harm. Their appeals against conviction were rejected by the New South Wales Court of Criminal Appeal and they now appeal by special leave to this Court. Sean McAuliffe and David McAuliffe, who at the time of the offences were 17 and 16 years of age respectively, had a friend named Matthew Davis. He pleaded guilty to the murder of the deceased and did not give evidence at the trial of the two brothers. Late in the evening of Friday, 20 July 1990 the two brothers and Davis, after consuming a large amount of alcohol and smoking some marijuana, decided to go to a park near Bondi Beach for a purpose which was variously described as being to “roll” or “rob” or “bash” someone. The park which the three youths selected was between Bondi and Tamarama where there are cliffs and lookout areas. The cliffs are high and a person falling over them would be likely to be killed. Sean McAuliffe armed himself with a hammer and Davis armed himself with a baton or stick. Sean McAuliffe was aware that Davis had the stick but there was no direct evidence that David McAuliffe was aware of this fact before they arrived at the park. There was also no direct evidence that the others knew that Sean McAuliffe had armed himself with the hammer. Sean and David McAuliffe were experienced in the sport of Tae Kwon Do, which involves the use of kicking, and Davis was described as an experienced street fighter. [page 524] When the three youths arrived at the park they saw two men,

who were the deceased and Sullivan, near a lookout at the top of a cliff. The two men were not in each other’s company but were not far apart. The three youths set upon them. Sean McAuliffe threatened Sullivan with the hammer and took his coat. Sean McAuliffe then punched and kicked Sullivan. At about the same time David McAuliffe and Davis attacked the deceased, McAuliffe punching and kicking him and Davis beating him with the stick. Davis chased the deceased on to an elevated footpath which led away from the lookout and ran along the top of the cliff some distance away from the edge. He continued to assault the deceased on the footpath. Sean McAuliffe then went over to the deceased and side kicked him in the chest. He said he did this “to finish the fight”. It caused the deceased to fall from the footpath into a puddle in the rocks a short distance below. The puddle was some three to five metres from the edge of the cliff. By this time the deceased was covered in blood. Davis then turned to Sullivan and began to assault him, using the stick. He stopped as the McAuliffe brothers left the scene, calling upon Davis to go with them. Davis went towards the footpath but joined the others a minute or two later. He had a lot of blood on him. Sullivan went to the police the next day and reported the incident. He was severely injured. Subsequently the deceased’s body was found in the sea at the bottom of the cliff … The actual death of the deceased would appear to have been directly caused by the injuries sustained by falling from the cliff and drowning. It is likely that the deceased suffered fractures and bruising to the skull, a broken nose, a fractured collar bone and various lacerations to the face before the fall. Some of the injuries were due to the application of force with a blunt instrument, and others were consistent with blows from fists. The prosecution case was that the common purpose of all three youths was to rob or roll someone. It was, so the prosecution contended, expressly or tacitly part of that common purpose that the victim or victims would be attacked by one or more of the group with an intention to inflict grievous bodily harm, that is to say, serious bodily injury. Alternatively, the prosecution contended that each of the youths contemplated the intentional infliction of grievous bodily harm as a possible incident in carrying out a common purpose to assault someone. The prosecution further

contended that the common purpose was carried out and none of the three youths withdrew from it until after the victims had sustained the injuries which the youths directly inflicted on them. It was not disputed by the defence that the three youths had a common intention to assault their victim or victims. However, it was the defence case that the intention, at least of the McAuliffe brothers, did not extend to the infliction of grievous bodily harm. Hence, it was said, they were not guilty of murder. [The trial judge’s directions] conveyed to the jury that, even if the common purpose of the three youths did not embrace the intentional infliction of grievous bodily harm, there was a sufficient intent on the part of either appellant for the purposes of murder if he contemplated the intentional infliction of grievous bodily harm by one of the other participants as a possible incident in the carrying out of their joint enterprise and continued to participate in that enterprise. The appellants contend that the trial judge was wrong in giving those directions. They submit that in a case such as the present the doctrine of common purpose requires that the intentional infliction of grievous bodily harm be part of the common purpose — that is, that it be agreed expressly or tacitly between the parties as at least a possible incident — before one party can be liable for murder arising out of the act of another committed in the course of executing the common design. In other words, the appellants contend that the realization by one of the parties to a common design that the intentional infliction of grievous bodily harm by another party is a possible incident of the joint enterprise is not sufficient to render that party liable for a murder committed by that other party in the course of executing the common design unless that possibility [page 525] was within the contemplation of all parties so as to form part of the common purpose. In our view that contention must be rejected. The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms — common purpose, common design, concert, joint criminal enterprise — are used

more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission (see Giorgianni v R (1985) 156 CLR 473). But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. 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 all 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 (cf R v Lowery and King (No 2) [1972] VR 560 at 560 per Smith J). Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose (see R v Johns [1978] 1 NSWLR 282 at 287–290 per Street CJ).

Two questions arose in Johns (TS) v R (1980) 143 CLR 108 concerning the doctrine of common purpose. The first was whether the doctrine extended to an accessory before the fact. The Court held that it did and so held that it was not necessary for a party to be present at the scene of a crime to be acting in pursuit of a common purpose with others who were present (cf R v Lowery and King (No 2) [1972] VR at 560–561 where Smith J appears to have held a contrary view). The second question was whether the scope of the common purpose was confined to the probable consequences of the joint criminal enterprise or whether it extended to the possible consequences. The Court held that the scope of the common purpose did extend to the possible consequences of the criminal venture, but, accepting that the test was a subjective one, held that the possible consequences which could be taken into account were those which were within the contemplation of the parties to the understanding or arrangement. Thus Mason, Murphy and Wilson JJ, after referring to a number of authorities, said ((1980) 143 CLR at 130–131): In our opinion these decisions support the conclusion reached by Street CJ, (in the court below) namely, ‘that an accessory before the fact bears, as does a principal in the second degree, a criminal liability for an act which was within the contemplation of both himself [page 526] 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’. Such an act is one which falls within the parties’ own purpose and design precisely because it is within their contemplation and is foreseen as a possible incident of the execution of their planned enterprise. In Johns the Court confined its attention to the scope of the common purpose arising from the understanding or arrangement between the parties. That is why, in the passage just cited from the joint judgment, Street CJ is quoted with approval when he speaks

of liability being imposed for an act which was within the contemplation of both the secondary offender and the principal offender. It was accepted without question that both parties were equally liable for offences committed by one of them in the course of executing, and within the scope of, the common purpose. The Court did not consider the situation in which the commission of an offence which lay outside the scope of the common purpose was nevertheless contemplated as a possibility in the carrying out of the enterprise by a party who continued to participate in the venture with that knowledge. That situation would occur where, for example, a party knows that another party to a joint criminal enterprise is carrying a weapon which that other party might use to kill or inflict grievous bodily harm in carrying out the enterprise and expressly rejects any agreement that the weapon might be used but nevertheless continues with the venture. The question arises whether both parties are liable if the weapon is used to inflict harm in the course of executing the common purpose, that action being one which lay outside the scope of the common purpose or agreement, but within the contemplation of the secondary party. … In Johns this Court was concerned with the common purpose of a joint criminal enterprise. In particular, it was concerned with whether the scope of the common purpose extended to possible as well as probable incidents of the venture. The scope of the common purpose is no different from the scope of the understanding or arrangement which constitutes the joint enterprise; they are merely different ways of referring to the same thing. Whatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement. That is why the majority in Johns in the passage which we have cited above spoke in terms of an act which was in the contemplation of both the secondary offender and the principal offender. There was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental

crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind. But there is no other relevant distinction. As Sir Robin Cooke observed, the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it. For these reasons, the trial judge was not in error in directing the jury that if the appellants were engaged in a joint criminal enterprise with Davis, a shared common intention — that is, a common purpose — to inflict grievous bodily harm or an individual contemplation of the intentional infliction of grievous bodily harm as a possible incident of the venture would be a sufficient intention on the part of either of them for the purpose of murder. … [Appeals dismissed.]

[page 527] 10.56 McAuliffe has been applied in New South Wales. In Tangye, Hunt CJ at CL suggested model directions to the jury that could be used to make easier the task of understanding the doctrine of joint criminal enterprise. In that case Hunt CJ at CL drew a distinction between a straightforward joint criminal enterprise and an extended joint criminal enterprise. R v Tangye (1997) 92 A Crim R 545 NSW Court of Criminal Appeal [The appellant was convicted of maliciously inflicting grievous bodily harm and assault. The two victims were with friends who came across another group of people which included the appellant. There was some conflict between the groups but the victims, on advice, crossed the road to avoid confrontation. The appellant’s group also crossed the road and joined up with another group so that there were about 20 in one group, facing five in the other group. The larger group then attacked the smaller group. The

two victims whose injuries formed the basis of the charges were punched and kicked. The appellant said that his mates had run over to get involved in the fight and that he had at first stayed back but had then gone over and ‘pulled them out’, claiming that he had not hit anyone.] Hunt CJ at CL: … The summing up in the present case has suffered substantially from the judge’s failure to ascertain what the Crown case was in relation to the first count until after the original directions had been given. I will refer presently to the problems which arose. Before doing so, it will be seen … that the judge has referred — apparently interchangeably — to a joint criminal enterprise and to the socalled doctrine of common purpose which extends the concept of a joint criminal enterprise. Where — as here — no such extended concept was relied upon, it was both unnecessary and confusing to refer to it. The Crown needs to rely upon a straightforward joint criminal enterprise only where — as in the present case — it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed. This Court has been making that point for years (see, for example: R v Stokes & Difford (1950) 51 A Crim R 25 at 35–37; R v Clough (1992) 28 NSWLR 396 at 400) and it is a pity that in many trials no heed is taken of what has been said. So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines: (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 that 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 arrangement need not be express, and its

existence may be inferred from 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 [page 528] 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, 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 that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. (4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission (see, generally, McAuliffe v R (1995) 183 CLR 108 at 113–116). It is advisable to give an example of facts right away from the facts of the particular case after the definition in the second of those directions in order to assist the jury’s understanding of what is meant. The bank robbery example is usually suitable where there has been some degree of planning involved in the joint criminal enterprise. It is not of much assistance where, as here, the evidence is fairly silent as to how the agreement was reached. Particularly is that so where — contrary to the way in which the present case appears to have been left to the jury — the agreement by the appellant to participate in the joint criminal enterprise appears to have been (at most) coincidental with joining his friends in the fight. A better example of such a spontaneous type of joint criminal enterprise, based upon that given in R v Lowery & King (No 2)

[1972] VR 560 at 560–561, is one where the crime involved is that of break enter and steal: Three men are driving and they see a house with a lot of newspapers and milk bottles at the gate. One says to the others “Let’s go and have a look at this one”. The car pulls up, two of the men get out and one of them stays in the car behind the driving wheel with the engine running, while the other two go to the front door. One of them breaks the glass panel on the outside of the door, puts his hand through and unlatches the door and throws it open. The third man goes inside and collects the valuables and comes out, while the man who opened the door goes back to the car and never enters the house at all. Only one of the men broke into the house, the man who broke the glass panel and put his hand inside, and only one of them entered the house and stole something, the one who picked up the valuables, and one of them did neither of those three things. But the law provides that, if the jury is satisfied by their actions (rather than merely by their words) that all three men had reached an understanding or arrangement which amounted to an agreement between them to commit the crime of break enter and steal, each of the three is criminally responsible for the acts of the others. All three are guilty of break enter and steal. It should only be after the directions of law have been given that the judge should refer to the facts of the particular case upon which the Crown relies, and that the application of the law to those facts should be explained. In the present case, the facts upon which the Crown relied was [sic] that there were a number of men from the larger group who moved around those in the smaller group, striking the men in that smaller group with their fists and their feet. The fact that they were all there together, doing those acts at the same time, indicated that there was an understanding amounting to an agreement between them that they would strike (or assault) the members of that small group. Those who had previously been in the larger group of twenty men no doubt came to that understanding when they ran towards the smaller group and began

to fight them. The Crown could not establish that the appellant was in that larger group of men before they ran towards the smaller group, but it had been established that he had nevertheless joined it and was punching Bickell, the victim of the offence charged in the second count, at much the same time as Grant was being punched and kicked by the other [page 529] two men described by Ms McLaughlin. There could have been no doubt in this case that what had been agreed was to engage in a street fight with the smaller group, the only issue being whether the appellant was participating in that joint criminal enterprise. Thus, although the appellant did not himself physically inflict grievous bodily harm upon Grant, he was at that time participating in the joint criminal enterprise to strike or assault the members of the smaller group. He was — by his presence, knowing that others were similarly being assaulted by others, and assisting by assaulting one of the men in the group himself — equally guilty of the attack upon Grant even though he did not physically attack him himself. [McInerney and Sully JJ agreed with Hunt CJ at CL. Appeal upheld. New trial ordered on the first count.]

10.57 Principals in the first degree may be convicted even if other co-offenders are acquitted. This is because their criminal responsibility depends on their own actions and their own intention and is not derived from anyone else’s responsibility (as is the case, for example, with an accessory after the fact). This was the case in Osland, where Mrs Osland appealed on the basis that her conviction for murder was inconsistent with her son’s acquittal. Osland v R (1998) 197 CLR 316; 159 ALR 170 High Court of Australia [The appellant and her son A were charged with the murder of the appellant’s husband, who was A’s stepfather. Both admitted that they had killed the deceased, but it was A who inflicted the fatal injuries. Both the appellant and A relied on self-defence and provocation. The appellant was convicted of murder but A, after

two trials, was acquitted. The appellant appealed to the Court of Appeal of the Supreme Court of Victoria. That appeal was dismissed. The appellant was granted leave to appeal to the High Court on a number of grounds, including that her conviction was inconsistent with the jury’s failure to convict A. She argued that as she did not perform the act or acts causing death, she could not be convicted of murder unless the co-accused whose act or acts caused the death was acting pursuant to the understanding or arrangement that together they would kill the deceased.] McHugh J: … [Some references have been omitted] 69. Much of the argument for Mrs Osland in this Court was characterised by a failure to distinguish between, on the one hand, the criminal liability of a person who is present at the scene of a crime and is acting in concert with another and, on the other, the criminal liability of one who is present but not acting in concert with that person. Much of the criticism — express and implied — of the trial judge’s directions, and most of the argument that was relied on to urge that the conviction and the failure to agree were inconsistent, resulted from the failure to accept the existence of that distinction. Because that is so, it is first necessary to refer briefly to the principles of criminal liability applicable when a crime is committed by persons acting in concert. 70. At common law, a person who commits the acts which form the whole or part of the actus reus of the crime is known as a ‘principal in the first degree’. There can be more than one principal in the first degree. However, a person may incur criminal liability not [page 530] only for his or her own acts that constitute the whole or part of the actus reus of a crime but also for the acts of others that do so. The liability may be primary or derivative. … 71. Those who aided the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime. Those who were merely present, encouraging but not participating

physically, or whose acts were not a substantial cause of death, were regarded as principals in the second degree. They could only be convicted of the crime of which the principal offender was found guilty. If that person was not guilty, the principal in the second degree could not be guilty. Their liability was, accordingly, also derivative. 72. However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a preconcert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others. The general principle was clearly stated in R v Lowery and King (No 2) [1972] VR 560 at 560 by Smith J who directed the jury in the following terms: 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 other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all 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. 73. In that case, his Honour directed the jury that “they are all equally guilty of that crime”. But as subsequent cases show, and as principle requires, the correct statement is that they are all equally liable for the acts that constitute the actus reus of the crime. … So far as is presently relevant, these principles were accurately and more fully stated by the New South Wales Court of Criminal Appeal in Tangye (1997) 92 A Crim R 545. … 74. In accordance with the New South Wales practice, the Court referred to “carrying out a criminal enterprise” rather than acting in concert. The principles, however, are the same.

75. As a result, a person may be found guilty of murder although he or she did not commit the acts which physically caused the death of the victim and the person who did is found guilty only of manslaughter. … 79. The principle that those who act in concert and are present at the scene are responsible for the acts of the actual perpetrator operates to make a person guilty of the principal crime, even though the actual perpetrator is acquitted completely. Thus, the person who did the act may be legally insane. Yet as long as that person had sufficient mental capacity to enter into the arrangement or common understanding, the other participant present at the scene will be guilty of committing the principal crime if he or she has the relevant mens rea. In Matusevich v R (1977) 137 CLR 633, this Court decided that, when two persons are said to be acting in concert, the fact that the actual perpetrator is legally insane does not necessarily mean that the conviction of the other, who was present at the scene, should be quashed. If the actual perpetrator has sufficient capacity to enter into the agreement or understanding, the person present at the scene who was acting in concert may be convicted of the offence. … 81. Markby v R (1978) 140 CLR 108 also supports the conclusion that it is the wrongful acts of the perpetrator which are attributed to the person acting in concert and present at the scene. Markby establishes that if violence is one of the contemplated incidents of [page 531] a joint criminal enterprise and one of the accused kills a person, the other accused can be convicted of manslaughter even though the killer is guilty of murder. This decision is consistent only with the conclusion that it is the acts constituting the actus reus, and not the crime, of the actual offender which are attributed to the other party. The liability is direct or primary, not derivative. … 93. Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other’s acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual

perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. 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 nonexistence 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. … [Kirby and Callinan JJ agreed in separate judgments that the appeal should be dismissed. Gaudron and Gummow JJ dissented.]

10.58 Further a party to a joint enterprise can be convicted of murder even though the other participants pleaded guilty to manslaughter. This was the situation in Likiardopoulos v R (2012) 247 CLR 265; 291 ALR 1. It was held by the High Court that there was no abuse of process by the Crown in the manner in which it dealt with the various offenders because the liability of each for the consequences of the joint enterprise to inflict serious harm on the victim was direct. At the accused’s trial the Crown had proved on the evidence led that each of the participants was guilty of murder. The accused had not just been present during the attacks upon the victim but had participated in them. 10.59 In Prochilo, the Court of Criminal Appeal made it clear that presence at the scene is not required for a joint criminal enterprise. R v Prochilo [2003] NSWCCA 265 NSW Court of Criminal Appeal

[The appellant, Prochilo, appealed against his conviction for supplying cannabis, contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW).] Smart AJ: … 4. The Crown case was that the appellant and his co-offender, Norman Hunt, were engaged in the business of supplying cannabis in the Deniliquin area. Supplies of [page 532] cannabis were obtained from a number of wholesalers principally in Melbourne and brought to Deniliquin and other nearby towns and distributed amongst customers. … … 33. On many occasions after Hunt spoke with a supplier or suppliers, he telephoned the appellant to advise him what was happening. The appellant appeared to be familiar with the various suppliers and to have contacts with them. On occasions, he pursued obtaining supplies from other suppliers. What emerges from the telephone conversations is the close and frequent liaison between Hunt and the appellant and that they were operating a joint enterprise. There was a busy business on foot. … 46. The appellant contended that the question as to whether there was any joint enterprise was determined conclusively by there being no evidence of the presence of the appellant at the scene of the offence of supply by Hunt, whether the supply by Hunt occurred by his act in supplying in the ordinary sense or in one or more of the extended definitions of supply. Accordingly, so the argument ran, there was no joint enterprise, even if there was a prior agreement. If there was a prior agreement, depending on its terms, the offence of taking part in supply or being other than a principal in the first degree may have been committed, but not that of supplying cannabis leaf. … 57. This was a case in which the Crown alleged that the appellant was involved with Hunt in a ‘straight forward joint criminal enterprise’ to use the phrase of Hunt CJ at CL in Tangye (1997) 92

A Crim R 545 at 556. The crime charged was the particular crime to which the parties to the enterprise had agreed. There was no direct evidence of any specific act of supply of cannabis by the appellant to any person. However, there was much evidence establishing that the appellant and Hunt were involved in a joint enterprise to obtain and distribute cannabis to others. Thus, given the extended meaning of supply the Crown did not need to prove that the appellant had undertaken any specific acts of supply himself. … 58. The evidence established that there was a joint criminal enterprise and the participation in it by the accused. It also established that actual acts of supply had occurred during the period specified in the charge. This was not a case of conspiracy. 59. Presence at the scene of supply is one way of proving participation in the joint criminal enterprise. It is not the only way. Participation is frequently proved by telephone intercept tapes and listening device tapes. … [Beazley JA and Greg James J agreed with Smart AJ. Appeal dismissed.]

10.60 As the Court of Criminal Appeal emphasised in Hore and Fyffe, mere presence at the scene of the crime is never in itself sufficient for the operation of the doctrine of joint criminal enterprise. The court also considered the need for evidence of the agreement required for joint criminal enterprise. [page 533] R v Hore; R v Fyffe [2005] NSWCCA 3 NSW Court of Criminal Appeal [The deceased was an inmate at Silverwater gaol. He was visited by his mother and some time after 2 pm he returned to B Block where he was housed. Prison officers found his body lying in a pool of blood at the back of B Block in the gym area. Near his body were a sandstone rock and half a brick. The rock, brick and nearby walls appeared to be bloodstained. The deceased suffered extensive fracturing to the base of his skull, fracturing of his

cheekbone and jaw and abrasions and bruises to the neck and lower back. He died as a result of his head injuries, caused by the rock or brick or both striking him. The Crown case was that Hore, Fyffe and a third inmate, John Hart, were seen by other inmates in the area of B Block very close to the time the deceased was killed. Two of them (Hore and Fyffe) walked around the other or rear side of B Block while the other one (Hart) went into B Block, emerged with the deceased about two or three minutes later and walked around towards the back of B Block. The two groups respectively walked around the opposite ends of B Block and to the back of that Block. Hore, Fyffe and Hart were next seen a few minutes later walking together in a friendly fashion from the area of B Block. Shortly afterwards the deceased was seen by an inmate lying in a pool of blood at the back of B Block in what is termed the gym area. The Crown alleged that the two accused were acting jointly in the murder.] Smart AJ [with whom Tobias JA and James J agreed]: … 67. … Hore, Fyffe and Hart enjoyed a close relationship and … there was a joint enterprise to kill the deceased. No other rational inference was open. The critical events took place within a very short time frame. It is important to look at what was done overall. The end which the deceased met so speedily after he was taken behind B Block was eloquent of the purpose of those who gathered there. The conduct of the three men on their return to the front of B Block after the death of the deceased spoke of a common enterprise … 68. … [W]here the legal responsibility for the acts of another arises from a joint criminal enterprise, the secondary party is liable as a principal in the first degree for the crime committed by the perpetrator … 74. … [T]he judge emphasised that mere presence at the scene of a crime is never enough and that there must be intentional assistance or encouragement or a standing by ready to assist if called upon … 75. The judge’s directions were correct. … … 80. In a case such as this the Crown is in substance saying, all the facts are peculiarly within the knowledge of the accused. We 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. Of course, in the case of a joint enterprise the accused may actually carry out the offending acts or have entered into an agreement with his co-offender to carry them out. In such a case there is little point in undertaking a detailed analysis of whether the evidence proves beyond reasonable doubt that there was a joint enterprise in which the accused participated. Nor is there any point in undertaking a detailed analysis of whether the evidence establishes beyond a reasonable doubt a case of criminal accessorial liability on the part of the accused. The true question to be asked is whether, on the facts of which the jury is satisfied beyond reasonable doubt, what [page 534] happened must have been either an instance of joint enterprise liability or accessorial liability. If on the facts proved it must have been one or the other the accused is guilty of the offence charged, namely, murder. The judge, in his directions was endeavouring to pose this as the true issue for the jury to decide. This does not mean that there was no point in considering whether the evidence was capable of supporting a verdict based on joint enterprise and accessorial liability. The acts leading to the attack on the deceased and those involved were clear as were those immediately after the attack resulting in the death of the deceased. What was unknown was who struck the fatal blows and who knocked the deceased to the ground. … 84. Mohan [1967] 2 AC establishes that an offender will be guilty of the offence charged as a principal where the evidence does not enable the court to decide whether he is the principal or an accessory before the fact. The offender had to be guilty on one basis or the other. That suffices. By parity of reasoning that applies where the evidence does not allow the court to say whether the offender acted pursuant to a common enterprise or in an accessorial capacity. 85. Hore also complained that the judge did not direct the jury that in determining in his case whether there was an agreement as

alleged, only the acts or omissions of Hore could be taken into account. Before analysing what was required in the present case it is desirable to refer … Ahern v The Queen (1988) 165 CLR 87. … 86. In Ahern at 93 when dealing with conspiracy cases, the joint judgment stated that for the purpose of proving the agreement or combination to engage in a common enterprise (which is the nub of the offence) evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided that such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependant upon some circumstance to take it outside the hearsay rule … 87. At 99 the joint judgment pointed out that the question of the admission in evidence of the acts and declarations of others outside the presence of the accused does not arise in cases other than conspiracy to prove the combination except as evidence of separate acts from which a combination might be inferred. 88. At 99 the joint judgment continued: Once there is reasonable ground for inferring a combination in cases other than conspiracy, acts and declarations of the participants in furtherance of the common purpose may be used to prove not the fact of participation in the combination, but the offence charged. 89. At 103 the joint judgment held that the trial judge alone should determine the sufficiency of the independent evidence. At 104 the joint judgment stated: It will often be difficult, if not impossible, to segregate the evidence so as to enable a ruling to be given in advance. In most cases, evidence of the acts and declarations of alleged co-conspirators will be admissible in the form of separate acts to prove the fact of combination. In those

circumstances the trial judge may postpone until all the evidence is in, his ruling whether the proof of the combination sufficiently implicates an individual accused to allow the acts and declarations of the others in his absence to be used against him as proof of participation. 90. It was for the judge to determine whether there was reasonable evidence of the pre-concert. … [I]t was not always necessary for the trial judge to rule formally upon the existence of ‘reasonable evidence’. Often, as in this case, it is obvious that such evidence had been adduced. The judge made it clear in his summing up … that in each [page 535] case the Crown had to prove that each accused (Hore and Fyffe) took part in the joint criminal enterprise. … 91. In the summing up the judge marshalled the evidence in such a way that it was apparent what evidence was admissible against both Hore and Fyffe, what evidence was admissible against Hore and what evidence was admissible against Fyffe. The judge reminded the jury that the evidence against each man had to be considered and addressed separately. … [Appeals dismissed.]

10.61 In relation to joint criminal enterprise: 1.

In a case of murder, for example, the prosecution may be able to establish that two persons were present at a crime scene when the victim was shot and killed but be unable to establish any arrangement between them. The prosecution may be unable to establish who fired the fatal shot and who aided and abetted, it appearing that both persons were involved. It will be sufficient if the prosecution proves that the accused was either the person who fired the shot or aided and abetted (see Mohan v R [1967] 2 AC 187 at 195; R v Stokes and Difford (1990) 51 A Crim R 25 at 35 (see 2.27 and 10.43); and R v Clough (1992) 28 NSWLR 396). These cases show that the criminal law does not permit the situation of an

accused being allowed to fall between two stools. Phan (see 10.41), in which Mohan was applied, is an illustration. 2.

There will be cases where it is appropriate for the Crown to rely upon any two or more categories of complicity in the alternative. However, although in McAuliffe v R (1995) 183 CLR 108 at 113, the High Court has said that the terms ‘common purpose’ and ‘joint criminal enterprise’ are used ‘more or less’ interchangeably, it is important to ensure that, by any such interchangeable use, confusion is not caused in relation to the three different concepts involved in cases where the accused is charged with a crime falling within one of the categories in 5, 6, or 7 at 10.33.

Extended common purpose 10.62 Where the parties to the agreement to commit the foundational offence, including the accused, had not agreed expressly or tacitly to the commission of the incidental offence, as at least a possible incident of the commission of the foundational offence, then the doctrine of straightforward joint criminal enterprise cannot be used to convict the accused of the incidental offence. However, the courts have developed a further doctrine, that of extended common purpose, to make the accused liable in that situation where he or she foresaw the incidental crime as a possible incident of the joint criminal enterprise. The elements of this further extended liability were explained in Taufahema. [page 536] Taufahema v R [2006] NSWCCA 152 NSW Court of Criminal Appeal [Motekiai Taufahema was picked up in a car by his brother John and two others, Lagi and Penisini, and took over the driving. All

four men were on parole, and Taufahema was unlicensed. Police had seen the car speeding and being driven erratically, and knew that the car had been reported as stolen. Police alerted Senior Constable McEnallay who was driving a police car in the area. He saw the car, and followed it, ultimately turning on his siren and flashing lights. The car fled, but within a very short time (around 20 seconds), hit a gutter and stopped. Immediately, all four men alighted from the car. One of them, Penisini, fired five shots into the windscreen of the police car, killing Senior Constable McEnallay. The other three, including Motekiai Taufahema fled on foot. There had been four firearms in the car. Taufahema was caught while trying to hide one of them in a garden bed as he fled. In a trial before Sully J in 2004, in the New South Wales Supreme Court, Motekiai Taufahema was convicted of the murder of Senior Constable Glen McEnallay, through the jury’s application of the common law doctrine of ‘extended common purpose’. The Court of Criminal Appeal (CCA) allowed his appeal, finding that the trial judge made an error of law in his directions on extended common purpose. The court quashed his conviction and ordered a verdict of acquittal. It determined that failing to stop when signalled to do so by pursuing police did not constitute ‘hindering’ within the meaning of s 546C of the Crimes Act as argued by the Crown, and that therefore, it had not established a foundational offence for the purposes of extended common purpose. This aspect of the court’s judgment is not included in the following extract. The Crown was granted special leave to appeal to the High Court, which made no comment on the interpretation by the trial judge and CCA of the extended common purpose doctrine, which is the focus of the following extract. The High Court proceedings are noted at 10.64.] Adams J: … [T]he way in which the applicant’s guilt was ultimately left to be determined involved a common purpose arising out of a joint criminal enterprise in which the shooting of the deceased was a foreseen though unintended consequence of the “foundational crime” to which the appellant was a party. … [I]t is essential to firstly identify the foundational crime alleged to be the subject of the agreement between the alleged offenders, the incidental crime which occurred and the mode by which it is contended by the prosecution that the incidental crime is within

the scope of the common purpose. Clearly enough, in this case, the contention of the Crown was that the offenders would jointly evade arrest, described by the learned trial judge as the “crime of avoiding lawful arrest”. … [In considering whether the foundational crime could be ‘evading lawful arrest’, Adams J said:] [T]he foundational offence upon which the Crown relied did not exist. In the circumstances, this conclusion is fatal to the correctness of the conviction. It is important, I think, to point out that it was not — at least, ultimately, for good reason I think — the Crown case that the appellant had a common purpose with Penisini to use a gun to threaten or attack Senior Constable McEnallay in order to evade or avoid arrest. There was simply no evidentiary basis for such a case, as the prosecutor at trial conceded. The highest point at which the Crown could aim was that the appellant foresaw the possibility that Penisini might use his weapon against the officer (though, on my view, this must be mere speculation). There was no evidence that could justify the conclusion that the appellant agreed with Penisini that he should use the gun to threaten, let alone shoot at the police officer or that he encouraged him to do so. [page 537] 28 In the circumstances I think it is desirable that I should also deal with the other complaints made by the appellant as to the directions on joint criminal enterprise and common purpose. At the outset, Mr Game SC for the appellant submitted (I think rightly) that the appellant could not be convicted if the Crown proved no more that he intended to run away from the police officer and was aware that the other passengers in the car intended to do the same, even if he adverted to the possibility that someone might shoot at the officer. It was essential that the jury be satisfied beyond reasonable doubt not only that each had decided to evade the officer and that each was aware that the others would also evade the officer, but that each would assist the others in doing so and that the appellant realised that a gun might be used in the attempt and there was a real risk that the officer might be shot or suffer grievous bodily harm. It is this mutuality of assistance that creates the essential

commonality of purpose and makes them members of a joint enterprise as distinct from each taking part in his own individual enterprise of attempting to avoid arrest. … [The trial judge’s direction did not sufficiently convey to the jury] … the essential point that it was not enough that each of them decided that he would escape as distinct from an agreement that each would assist the others to escape. With respect, it seems to me that the phrase “an agreement or understanding that all four of them would jointly evade lawful apprehension” would not be sufficient to convey to the jury the vital distinction. If the appellant simply intended to run away, he could not be criminally responsible for the death of Senior Constable McEnallay merely because he realised that the other occupants of the vehicle intended to escape and that one of the other offenders, in the course of that offender’s escape, might use a weapon against the officer. … 31 It is worth noting, I think, that there was nothing in what the appellant said in his interview to the police that assisted the prosecution case in this respect. If anything, the common sense interpretation of the appellant’s claim (whether it be true or false) was that he intended to escape and that others had a motive for not being arrested (namely they were on parole) but that their decisions to evade arrest were individually made. Certainly the effect of the appellant’s answers was that his decision to run was his own and not the result of any agreement of [sic] with the others. 32 It would be [sic] seem from the brief summary of the appellant’s evidence that although it is true to say that his case was, essentially, that he was unaware of any weapons being in the car but he also denied that there was any agreement between him and the others that all would escape, let alone that there was an agreement that anyone would assist anyone else to do so. … 33 At the hearing of the appeal the appellant sought to add a further ground of appeal to the effect that the learned trial judge erred in law in failing to leave the offence of manslaughter as an alternative verdict for the jury’s consideration. … 34 The consequences of a failure to direct a jury in relation to the alternative verdict of manslaughter upon a charge of murder was

reviewed by Hunt AJA in R v Kanaan [2005] NSWCCA 385 at [75] as follows — (1) Manslaughter cannot be left for the determination of the jury as an alternative verdict in a murder trial unless there is evidence to support such a verdict (or unless the case on manslaughter is “viable”). (2) However, if in a murder trial the jury nevertheless returns a verdict of manslaughter where there is no evidence to support it, the judge may request them to reconsider the matter but, if they persist in that verdict the judge must accept it. (3) If there is evidence to support an alternative verdict of manslaughter, the judge must leave that issue to the jury — notwithstanding that it has not been raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury. [page 538] (4) (a) If there is evidence to support an alternative verdict of manslaughter, and if the judge has not left that issue (for whatever reason) there has been error of law. (b) Subject to provisions of the Criminal Appeal Rules r 4 … the appellant is entitled to a new trial unless the Crown establishes that no substantial miscarriage of justice has actually occurred. (c) In determining whether there has been such a substantial miscarriage, it is not permissible to reason that the jury’s verdict of guilty of murder at the first trial excludes any consideration of alternative verdict of manslaughter at the new trial. 35 In order for the appellant to be convicted of murder as a possible incident of carrying out the common design, it is essential that the prosecution prove that he foresaw that one of the other offenders might shoot at the police officer with the intention of

killing him or causing him grievous bodily harm. If, on the other hand, the jury considered it reasonably possible that the appellant only foresaw, as a possible incident, that one of the other offenders might shoot the officer (and possibly cause death or grievous bodily harm) but without foreseeing such an intent, then he would only be guilty of manslaughter: Gillard v The Queen (2003) 219 CLR 1. … 36 It is obvious, I think, from what I have already said about the facts of the matter that, if the jury concluded that there was indeed a joint enterprise to avoid arrest and that the appellant appreciated that it was possible that one of the others might use a weapon for that purpose, that would leave very much alive the question whether he adverted to the possibility that one of the others might intend to kill or cause grievous bodily harm to the pursuing police officer. I do not see an evidentiary basis for drawing the latter inference, as indeed I do not see a sufficient evidentiary basis for concluding that there was such a joint enterprise or that the appellant thought that there was a possibility that one of the others would use a gun in the course of it. It seems to me inescapable that a jury might well not be prepared to conclude beyond reasonable doubt that the appellant adverted to the possibility that one of the others might intentionally shoot at the officer with the intention of killing him or causing him serious injury, as distinct from the mere possibility that the gun might be used in some way. 37 Accordingly, the alternative verdict of manslaughter must have been left to the jury and it would have been an error of law not to do so. In this regard, the written directions extracted above omit the necessary element that the appellant adverted to the possibility that a gun might be used with the intention of killing or causing grievous bodily harm. In the course of his oral directions the learned trial judge said — What will draw this accused in, if anything, is not only that he was driving the vehicle or that he understood that all four of the people in the vehicle were determined to get away from the pursuing Senior Constable McEnallay. That is enough to show that there was a joint criminal enterprise to evade apprehension. But if this accused is to be drawn into that arrangement in a way that makes him liable for murder, that is to say for a murder by shooting

committed not by him but by Penisini, then it is essential that the Crown establish that the accused knew that there was at least one loaded weapon being carried in the vehicle. We know that there were in fact four but it would be sufficient for that point to be made good if you were satisfied beyond reasonable doubt that he knew that there was at least one loaded revolver being carried in the vehicle, and that he realised in the circumstances and the atmosphere the enterprise to get away coupled with the availability in the vehicle of at least a loaded weapon, gave rise to a real risk that any one of the men in the Commodore might have thought it a good idea to fire the weapon at the police officer in the course of getting away and that if that happened there was a real risk on the ground that the police officer was going to be either killed or seriously injured. 38 In my respectful view these directions could only support a manslaughter conviction. This was, in substance, conceded by the Crown prosecutor in this Court … [page 539] 39 I propose that the conviction be quashed. In my view, there is no evidentiary basis for a conclusion that the appellant was party to an agreement that all four men would attempt to evade the police officer, as distinct from having made a decision that he would attempt to do so and knew that the others would do the same. Nor was there a basis for concluding that he adverted to the possibility that one of the others might use a gun in the course of evading the officer. … [T]he hindering identified — the running away — is not hindering within the meaning of s 546C of the Act. There is thus no foundational offence or joint criminal enterprise upon which the Crown can rely for the purpose of establishing the culpability of the appellant for the (conceded) unintentional consequence of shooting the police officer. As the appellant could not be convicted of murder or manslaughter on the cases as formulated by the Crown both at trial and in this Court, it seems to me that it is not appropriate to order a new trial. [Beasley JA and Howie J agreed with Adams J that the appeal be

allowed.]

10.63 For extended common purpose, although the incidental offence must have been committed in the course of, or as a consequence of, the foundational offence, the agreement to commit the foundational offence can be a merely tacit understanding, and there is no requirement for the agreement to have been made immediately before either offence. 10.64 The issue on appeal to the High Court in R v Taufahema (2007) 228 CLR 232; 234 ALR 1 was not the law of extended common purpose, but whether the CCA should have ordered a new trial instead of ordering an acquittal. The Crown succeeded and, on 21 March 2007, the High Court ordered that there be a new trial. In the course of the judgment, all members of the High Court re-affirmed as binding the precedents on extended common purpose (Johns v R, McAuliffe v R, Gillard v R and Clayton v R). In the most recent of those precedents, the High Court had said that it does not want to occupy itself with concerns about the doctrine of extended common purpose; that this is something with which state parliaments and law reform commissions should deal. The High Court’s decision in Taufahema was about the appellate process of the criminal justice system. The decision would have allowed the Crown, had a new trial taken place, to proceed on an entirely new basis — on the basis of a reformulation of the foundational crime as the joint criminal enterprise of armed robbery. On 29 May 2007 the Director of Public Prosecutions announced that it had accepted Taufahema’s plea of guilty to manslaughter, and that there would be no new trial. 10.65 The New South Wales Law Reform Commission has comprehensively reviewed the law relating to extended joint

criminal enterprise and recommended that a statutory provision be enacted to codify this aspect of criminal responsibility (see Report 129 Complicity, Recommendation 4.3). Of particular note is that the proposed provision 4.3(8) would change the common law in respect of extended joint criminal enterprise for the offence of murder. As we have seen, under the common law a participant in a joint criminal enterprise can be guilty of murder if he or she foresees the possibility that a co-offender might, during the course of the enterprise, kill with a mental state for murder. The Commission recommends [page 540] that the offender will only be guilty of murder if he or she foresees the probability of a joint offender killing with the mental element of murder. The Commission’s proposed provision is as follows (where ‘P’ is the principal offender and ‘D’ is the accused): (8) Where P causes a death in the course of carrying out a joint criminal enterprise (other than one in which there was a common intention to kill or cause grievous bodily harm, being a joint criminal enterprise within the meaning of and subject to the provisions contained in recommendation 4.1) then, D will be liable for: (a) murder if D foresaw that it was probable (that is, likely) that a death would result from an act of P that was done with intent to kill or cause grievous bodily harm, in the course of carrying out the joint criminal enterprise in which D was participating; or (b) if not satisfied of (8)(a), then manslaughter if D foresaw that there was a substantial risk that a death would result from an unlawful act that was done by P in the course of carrying out the joint criminal enterprise in which D was participating, such foresight on the part of D being respectively present

at the time of (or immediately before) the act causing the death.

It should be noted that in R v Jogee [2016] UKSC 8; [2016] WLR(D) 84, in a joint judgment of the Supreme Court (UK) and the Privy Council, the existing law on this area, which was the same as the common law of Australia, was overturned so that mere foresight of the possibility of a consequence is no longer a sufficient basis for joint criminal liability for that consequence. The applicability of that decision has been argued before the High Court in Miller v R [2016] HCATrans 106. At the time of publication the court has not given judgment in the matter. In light of what was said by the High Court in R v Taufahema, above, it may be that the court will refuse to alter the common law of Australia.

Constructive murder and joint criminal enterprise 10.66 The Crimes Act defines the fault element of murder as including where the act of the accused causing death is done ‘during or immediately 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’. This provision was considered in Jacobs and Mehajer at 2.29. A question arises whether the doctrine of joint criminal enterprise can be used to establish criminal responsibility in the accused for the crime punishable by imprisonment for life or for 25 years, and thus found liability for murder in an accused whose act did not bring about the death. The following further extract deals specifically with that question.

[page 541] R v Jacobs and Mehajer [2004] NSWCCA 462 NSW Court of Criminal Appeal [The facts, and a further extract from the judgment of Wood CJ at CL, are set out at 2.29.] Wood CJ at CL: … 147 The present case was one where the Crown was properly entitled to rely on extended joint criminal enterprise, as well as on a straight forward joint criminal enterprise. 148 The evidence was clearly sufficient to show a joint enterprise between Jacobs, [the indemnified witness] … and Mehajer, to carry out a robbery, in company, of whoever was found in the cafe, with violence, in circumstances where a knife had been taken to the scene and where force was inflicted from the very outset. Whether its scope included the infliction of grievous bodily harm or wounding was a matter for determination by the jury. What was also properly to be left, was the extension of that enterprise by way of the common purpose doctrine, to include the aggravating elements of inflicting grievous bodily harm (Count 2) or wounding (Count 3), although that again was a matter for determination by the jury of what was in the contemplation of the Appellants as possible incidents of the enterprise. … 152 It is also clear that his Honour instructed the jury that the mere presence of an accused at the scene of a robbery is not enough to establish a common purpose or joint enterprise, and is also not enough to satisfy the element of being “in company”, as to which a perfectly appropriate direction was given. Clearly these directions complied with the decision in R v Brougham (1986) 43 SASR 187 at 191, where King CJ provided the definition of this expression which was adopted by this Court in R v Crozier NSWCCA 8 March 1996 and in R v Button (2002) 54 NSWLR 455, to the following effect: … A person commits a robbery, or an assault with intent, in company where that person participates in the robbery or assault together with another or others in the sense that

the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing, or assaulting with intent, and of physically participating if required. 153 In R v Leoni [1999] NSWCCA 14, the concept of “company” was developed even further in so far as Adams J (with whom Abadee and Barr JJ agreed) said: In my opinion, presence at the scene with the intention of physically participating, if required, is sufficient to satisfy the section, even if that presence is unknown to the victim. However, if the offender makes his presence known to the victim so that, to use the words of the Chief Justice in Brougham ‘the victim is confronted by the combined force or strength of two or more persons’ that will be sufficient to satisfy the section even if the offender did not, as it happened, intend to physically participate if required. … [Underlining part of judgment] [An extract from the remainder of his Honour’s judgment is set out at 2.29. As noted there, Sperling and Kirby JJ agreed with Wood CJ at CL that the appeals should be dismissed.]

10.67 When considering joint enterprise in a case of constructive murder, it is necessary to have regard to the state of mind that is required in order for the accused to be held criminally liable for the death of another person even though that death was not intended or foreseen. It is necessary to focus on the foundational offence; [page 542] that is, the offence that was being committed when the death occurred. In R v IL [2016] NSWCCA 51, the accused was charged with the murder of a co-accused, Lan, arising from their joint involvement in the manufacture of a prohibited

drug. Lan died of injuries sustained in a fire that was alleged to have been a result of the ‘cooking’ of the drug on a burner in the house where the drugs were being manufactured. The attempted manufacture of the drug was an offence that carried life imprisonment and the death allegedly occurred during the course of the commission of that offence by both the accused and Lan. The Crown was thus alleging that it was a case of constructive murder. It relied upon joint enterprise because it could not specify any act or event that caused the fire. At the end of the Crown case the trial judge directed the jury to acquit the accused of both murder and manslaughter. The Crown appealed under s 107(2) of the Crimes (Appeal and Review) Act 2001 (NSW). The Court quashed the acquittal and ordered a new trial. R v IL [2016] NSWCCA 51 NSW Court of Criminal Appeal Simpson JA: … The murder count 26. It is only the category of murder known as constructive murder that is applicable to the present case. (I have mentioned the other categories in order to explain a distinction to be drawn between certain of the authorities on which reliance was placed both before the primary judge, and before this Court.) The Crown’s allegation that the respondent was engaged, with Mr Lan, in a joint criminal enterprise to manufacture a large commercial quantity of the prohibited drug, methylamphetamine, provides the basis for its case that the respondent was guilty of constructive murder. Manufacture of a large commercial quantity of a prohibited drug is a crime that is, by s 33(3)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), punishable by imprisonment for life, and thus capable of being a “foundational crime” for constructive murder. The Crown case on murder was that Mr Lan’s death was caused by an act of the respondent, in the course of the commission, or attempted commission, of an offence of manufacturing a large commercial quantity of methylamphetamine. However, as has

been noted above, because the Crown was unable to nominate any act or event that caused the ignition of the ring burner, it was unable to nominate any specific act of the respondent that caused Mr Lan’s death. The Crown therefore relied upon principles of law relating to joint criminal enterprise, particularly those with respect to fixing one participant with criminal liability for the acts (or omissions), within the scope of their agreement, of another participant, or other participants. I will return to this. 27. It was, thus, the Crown case that, because the respondent and Mr Lan were engaged in a joint criminal enterprise, the respondent was equally responsible for the act of ignition whichever of the two actually did it; that, in effect, if it were Mr Lan’s act that caused the ignition of the ring burner that act was, on the principles stated in Johns and McAuliffe, the respondent’s act. Since the respondent was thus responsible for the act causing death, and it was an act done in the course of the commission of an offence punishable by imprisonment for life, the respondent was guilty of the murder of Mr Lan … [page 543] 38. In this case, the principles stated above relating to joint criminal enterprise have no direct application to the counts of murder or manslaughter. By that I mean this: the respondent was not charged with either murder or manslaughter as a consequence of her participation in a joint criminal enterprise of which one of the contemplated incidents was the death of, or the infliction of grievous bodily harm on, Mr Lan (or somebody else). Rather, the principles are applicable to the foundational crime, drug manufacture. They are relied on by the Crown in order to fix the respondent with liability for the act of ignition of the burner, whichever of the two participants actually did that act. 39. There was no real dispute that the Crown could make out a case that the respondent and Mr Lan were engaged in a joint criminal enterprise to manufacture a large commercial quantity of a prohibited drug. There could have been no real dispute that each bore criminal liability for all of the acts of the other that were within the scope of that joint criminal enterprise, or were contemplated by it. Plainly, the act of lighting the ring burner was

such an act. Whichever of the respondent and Mr Lan did that act, the other was equally liable for it. 40. It would be erroneous, however, to go on to say that, because the Crown could not establish that Mr Lan’s death was within the scope of the criminal enterprise of drug manufacturing, or within the contemplation of the participants in that enterprise, the respondent was not liable for conviction for that death. That is because the relevance of the principles stops at the point at which the respondent can be held liable for ignition of the ring burner, whether the specific act of ignition was committed by herself or by Mr Lan. It is the ignition of the burner (not Mr Lan’s death) that has to be shown to be within the scope of the criminal enterprise. There could be no dispute that it was. If it is shown that either the respondent or Mr Lan did the act that ignited the burner, and if it can further be shown that it was the ignition of the burner that caused the fire that, in turn, caused Mr Lan’s death, then the respondent can be convicted of murder. 41. It would be necessary to direct the jury that, to convict the respondent of murder, they would have to be satisfied: that the respondent and Mr Lan were participants in a joint criminal enterprise to manufacture a large commercial quantity of a prohibited drug; that it was within the scope of that agreement, or was contemplated by the participants, that the ring burner would be ignited; that the ring burner was in fact ignited; that, as a result of the ignition of the ring burner, the fire began; that Mr Lan’s death was caused by the fire. 42. If all of those matters were proved, the act causing death was done either in an attempt to commit, or during the commission, by the respondent or her accomplice (Mr Lan), of a crime punishable by imprisonment for life. The approach taken by the trial judge 43. The trial judge reviewed the principles relevant to constructive murder and criminal complicity. Specifically, he noted the

elements of constructive murder (felony murder) stated by Carruthers J in Sharah, and also the questions raised about the third of those elements by R A Hulme J in Batcheldor. As to those, he said: “42 Taking the prosecution case at its highest, there is no evidence capable of supporting an inference that the [respondent] contemplated the possibility that somebody might be injured, let alone that they might die, in the course of the manufacturing process.” He went on, however, immediately to say that that was not determinative. [page 544] 44. The trial judge went on to say: “73 None of the evidence is capable of establishing that the fire or explosion was a deliberate act on the part of either [Mr Lan] or [the respondent]. The evidence of their respective injuries suggests that it was [Mr Lan], rather than [the respondent], who committed the act or omission that led to the fire … 74 There is nothing in the evidence that would allow an inference to be drawn that the fire was deliberately set. It was, on any rational view of the evidence, a misadventure caused by incompetence or carelessness on the part of [Mr Lan] and/or [the respondent].” After referring to the passage in McAuliffe in which it was stated that if one or other or both of the parties do ‘all those things which are necessary to constitute the crime’ they are all equally guilty of the crime. His Honour said: “80 In this case, the crime of which [the respondent] is alleged to be guilty is the crime of murder. It cannot be said that [Mr Lan] did all those things necessary to constitute that crime in accordance with the agreement. 81 The Crown eschews reliance on what was described in Clayton v The Queen [[2006] HCA 58; 168 A Crim R 174; 81 ALJR 439] (at [14] and [20]) as ‘extended

common purpose’ (which makes the parties to the agreement liable for ‘any other crime falling within the scope of the common purpose’ (McAuliffe at 114). The Crown says that it is unnecessary to rely on that principle because the act of lighting the burner was an act done in furtherance of the agreement to manufacture drugs. In any event, for extended common purpose to apply, it is necessary to establish ‘foresight of the possibility’ that the other party would act with the requisite intent to commit the crime (in this case murder or manslaughter) said to be within the scope of the common purpose. That is clearly not this case. 82 I accept the submission of [counsel for the respondent] that the criminal liability of [the respondent] is derivative. Properly analysed, if [the respondent] is liable for murder, she is liable as a principal in the second degree. That is, she was present at the scene and (allegedly) ‘aiding and abetting’ the commission of the crime (of manufacture). [Mr Lan] could not be convicted of his own murder … 83 The situation may be different if an innocent third party had been killed. Central to my decision is the fact that the victim (deceased) is the person who committed the act leading to death. He cannot be guilty of his own murder and thus the derivative liability of [the respondent] cannot be established. … 85 I do not accept that the combination of principles of common purpose and constructive murder work together to make [the respondent] liable to conviction for murder in the circumstances of the present case. Whether the situation may be different where the deceased person was not the one who committed the act or where the death was of an innocent victim is not necessarily [sic] to decide in the circumstances of this case.” … (i) murder 60. Paragraph [42] of the judgment reveals error in the reasoning

process. In that paragraph the trial judge misapprehended the third element stated by Carruthers J in Sharah. What was there said to be a necessary element was foresight of the discharge of a gun by the co-offender during the course of the armed robbery. (That was the act that caused death.) Translating that to the facts of the present case, what the third element of Sharah required was foresight of the ignition of the burner. As I have endeavoured to point out above, the relevant question was not whether the respondent contemplated injury to, or death of, Mr Lan; the relevant question on the issue of joint criminal enterprise was whether the respondent contemplated the possibility that the ring burner would be ignited — that is, was it within the scope of the joint criminal enterprise? If it was, and if the ring burner was ignited by the respondent or Mr Lan, it was an act [page 545] committed by one or other of the participants within the scope of that enterprise, and was to be treated as the act of both participants; and it was the act that caused death. 61. Paragraphs [80], [83] and [85] of the judgment are indicative of the same error as I have just identified in [42]. In [80] the trial judge applied the test for joint criminal liability taken from McAuliffe, not to the crime (drug manufacture) in which the respondent was alleged to have been a joint participant, but to the crime of murder. The Crown never alleged that the respondent was a party to a joint criminal enterprise that contemplated death or injury. The principles of joint criminal enterprise were applicable to the foundational crime of drug manufacture. To repeat, if the ignition of the burner was within the scope of that enterprise, then the respondent and Mr Lan were both liable for it. 62. In observing (at [83]) that Mr Lan could not be guilty of his own murder, the trial judge was drawing on what he regarded as a “somewhat analogous case”, R v Demirian [1989] VR 97; 33 A Crim R 441. In that case the victim of an alleged offence had been party to a conspiracy with the person accused of his murder to cause an explosion in a consulate in Melbourne. In the course of the execution of the plan, the bomb detonated prematurely, killing one of the conspirators (the victim). The surviving conspirator was charged with murder. Although an appeal was upheld on other

grounds, two judges of the Court of Appeal held that, because the victim could not be convicted of his own murder, the accused person could not be guilty as an accessory or principal in the second degree. 63. As I have attempted to indicate, to focus upon whether injury or death was within the scope of the enterprise, or contemplated by the participants, is to deflect attention from the correct question. The correct question is whether the ignition of the ring burner was within that scope or contemplation; if it was, both participants were responsible for it, and liable for its consequences. 64. Moreover, it was incorrect to characterise the Crown’s case against the respondent on murder as “derivative”. The Crown case was that, by reason of her participation in a crime punishable by imprisonment for life, she was directly liable in murder (for a death caused by an act done in an attempt to commit or during the commission of that offence). 65. It was, in my opinion, incorrect for the trial judge to direct a verdict of acquittal on the count of murder. (ii) manslaughter 66. The Crown case on manslaughter by unlawful and dangerous act also depended upon the principles of joint criminal enterprise. As set out above, it is necessary that the Crown show that the act causing death was both unlawful (criminal) and dangerous. The act causing death 67. As stated above, the act causing death was identified, for the purposes of the Crown case, as the ignition (or lighting) of the ring burner in the bathroom. Igniting a ring burner is not, on its face, a criminal act. However, the Crown argued that the ignition of a ring burner in the course of, or for the preparation of, the manufacture of a prohibited drug, is a criminal act. No argument was advanced to contradict that proposition. It is in accord with the conclusion of this Court in R v CLD [2015] NSWCCA 114. The act of ignition in those circumstances was an unlawful act. 68. There was, in the evidence in this case, ample basis for a conclusion that the ignition of a ring burner in a domestic bathroom in the course of illegal drug manufacturing was a

dangerous act. The expert evidence concerning the process of manufacture, outline [sic] above, is ample to establish that. [page 546] 69. The reasons given by the trial judge for directing a verdict of not guilty on the manslaughter count appear to be similar to those given for the directed verdict on the murder count, and are sufficiently contained in two paragraphs of the judgment, as follows: “97 While it is open to the jury in the present case to find that the act of [Mr Lan] was an act in furtherance of the common purpose alleged by the Crown, there is no evidence to suggest that [the respondent] and [Mr Lan] acted together in lighting the burner. The case is not analogous to the situation (not resolved by the High Court [in Burns v The Queen [2012] HCA 35; 246 CLR 334, to which his Honour had earlier referred]) where two drug users inject one another with a dangerous drug. 98 The evidence is not capable of excluding the possibility that it was the act of [Mr Lan] that caused his own death. There is no evidence that [Mr Lan] was not acting voluntarily. There is no evidence that he was other than a fully informed and responsible adult.” (The last sentence of the extract is a reference to a decision of the House of Lords in R v Kennedy (No 2) [2008] AC 269.) 70. There is error disclosed in this reasoning. For the purposes of the joint criminal enterprise relied upon by the Crown, it was not necessary for the Crown to show that the respondent and Mr Lan “acted together in lighting the burner”. All that was necessary to show was, as I have indicated above in relation to the murder count, that lighting the burner (by one or other of them) was an incident within the contemplation of the respondent in her participation in the commission of the drug manufacturing offence. It may well have been the act of Mr Lan that caused the ignition of the burner, and, if so, that was an act that caused his own death. But the liability of the respondent alleged by the Crown was not derivative; it was, in effect, co-extensive with that of Mr Lan for all acts he undertook in the course of the drug manufacturing

enterprise (just as the liability of Mr Lan for all acts undertaken by the respondent was co-extensive with hers). 71. In my opinion it was erroneous to direct the jury to acquit on the manslaughter charge. [The appeal was allowed, the verdicts of acquittal quashed and there was to be a retrial on the charges of murder and manslaughter.]

Manslaughter from participation in a joint criminal enterprise 10.68 Liability for murder as an incidental offence committed by a party to a joint criminal enterprise may arise where it was within the scope of the enterprise to which the accused was a party, or where the accused is shown beyond reasonable doubt to have foreseen the possibility that another party might develop an intention to kill or inflict grievous bodily harm upon another, and proceed through his or her actions to implement that intention. If foresight of intention is not established, the accused might be convicted of manslaughter. The circumstances where a trial judge should direct the jury on manslaughter were considered by Hunt AJA in R v Kanaan [2005] NSWCCA 385, in a passage set out in Taufahema (see 10.62). When manslaughter is an appropriate verdict was considered in Nguyen. [page 547] Duong Hai Nguyen v R; ATCN v R; Khanh Hoang Nguyen v R; Minh Thy Huynh v R [2007] NSWCCA 363 NSW Court of Criminal Appeal [Minh Thy Huynh was tried with Duong Hai Nguyen, ATCN, and Khanh Hoang Nguyen, and convicted of murder. They all appealed.] Smart AJA: Each of the four abovementioned men appeals against

his conviction of the murder of Linda Huynh and of maliciously inflicting grievous bodily harm with intent upon Hien Duc Phan. … Duong Hai Nguyen was the principal (first degree) as he fired the gun and led the other men. The judge left the case to the jury in four different ways, namely that the firing of the gun was an act of a particular accused ie., Duong, that the firing of a gun was in furtherance of and within the scope of a joint criminal enterprise and on the basis that the firing of a gun was outside the scope of the joint criminal enterprise, but such firing which was both contemplated by the particular accused as a possibility and occurred while he was still participating in that enterprise (often referred to as extended joint enterprise). The fourth basis was that the particular accused was present intentionally aiding and abetting the shooter. As to each basis the jury were instructed that the Crown had to prove that, at the time a gun was fired, this was done with an intention to kill someone or inflict grievous bodily harm on someone … [In the words of the trial judge:] Tien Duc Nguyen was celebrating his birthday with a party in the courtyard of Billiards 2000 … Around 11.00 pm that night four men, some few seconds apart entered the front pool hall and walked through it, in a purposeful fashion, to the rear of the premises. The first man to enter had a handgun and on the Crown case was Duong. The next two men were ATCN, aged 16, and Minh. Lastly came Khanh who was carrying a samurai sword concealed under some material. … The first man passed through that room and into a courtyard behind. By the time of his entry in to the courtyard, he had the pistol drawn. In the courtyard at the time some sort of celebration was being held for the birthday of Tien Duc Nguyen and about 10 people were then present. The first man advanced some distance with the weapon pointed at or in the direction of Tien Duc Nguyen and then fired at fairly close range — albeit over 50 centimetres — at least twice. It seems likely, although the evidence does not enable me to make the finding beyond reasonable doubt, that the intended victim was Tien Duc Nguyen. In fact one of the guests Linda Huynh was shot, fatally, in the chest and another, Hien Duc Phan, in the arm and possibly the nose. The 4 men then decamped. [Smart AJA continued:] 8 The judge found that the four men were all close friends or acquaintances and that the three men other than Duong were each actively, knowingly and with premeditation participating in the

offences he committed and that each was there to, either or both, provide support and encouragement to the gunman and deter, if not deal with, any resistance. … 95 The directions stated: A ‘joint criminal enterprise’ includes an understanding or arrangement amounting to an agreement to do an act or acts which amount to a crime. The understanding or arrangement need not be express and may be inferred from the circumstances. Examples of ‘an act or acts which amount to a crime’ as that expression is used in the immediately preceding paragraph include the following: Any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence; [page 548] Pointing a gun at someone (who sees it) in circumstances likely to cause fear or apprehension; Firing a gun at or near someone with intent to kill, or injure, or frighten. … 97 Counsel submitted that the error emerged from the combination of propositions in para (iii) bullet points 2 and 3. Minh complained that the written directions invited the jury to convict Minh of murder in the absence of any finding by the jury that he contemplated that it was possible that the shooter (Duong) would have deliberately pulled the trigger of the gun intending to cause death or grievous bodily harm. … What was required was a fuller description of the possibility which the accused contemplated, that is, that the principal or a co-offender might fire the gun at someone with the intention to kill someone or inflict grievous bodily harm on someone. … [F]oresight is not enough; the accessory in order to be guilty must have foreseen the relevant offence which the principal may commit as a possible incident of the common

unlawful enterprise and must with such foresight still have participated in the enterprise. … 114 During argument the President put the position pithily. After acknowledging that the jury had to find the shooter had the requisite intention he added: the relevant contemplation of the abettor or the person present or the person involved in the extended joint criminal enterprise that’s the critical mens rea that they needed assistance on. 115 It suffices that the jury may have proceeded in accordance with the incorrect formulation in bullet point 3 of (iii) of the written directions. Minh accepted that no explicit request for redirections was made. The issue was fundamental. There was a real prospect that Minh had been convicted of murder based on a proven liability only for manslaughter. [Mason P and Adams J agreed with Smart AJA in ordering a new trial.]

WITHDRAWAL FROM COMPLICITY Requirements for withdrawal 10.69 The extended concepts of liability discussed above cover situations where a number of people agree to engage in criminal activity. All may be responsible for the intended criminal activity, as well as for any crimes that were contemplated by the parties as the possible consequence of their actions. It follows that, if the key issue is the agreement (express or implied) between the parties, then a decision to withdraw from the agreement should excuse an accused even though his or her colleagues proceed with the planned criminal enterprise. What has to be done to withdraw was considered in White v Ridley. [page 549]

White v Ridley (1978) 140 CLR 342 High Court of Australia [The appellant delivered a box to Singapore Airlines to be flown to Australia. The airline did not know that the box contained concealed drugs. The appellant contacted Singapore Airlines via its Australian agent (Ansett) directing them not to fly the box to Australia. He did not tell Ansett or Singapore Airlines the nature of the material in the box. The telex from Australia was received too late to stop the shipment, but it was received in time sufficient for them to have stopped it if the true nature of the material had been disclosed. The appellant was convicted of importing a prohibited import, cannabis.] Gibbs J: [After reciting the facts and the grounds of appeal, his Honour considered the principal’s responsibility for an innocent agent (Singapore Airlines) in a passage set out at 10.37, and continued:] … [W]hat is the position when the accused person, who has requested or encouraged an innocent agent to do an act which would constitute the physical element of the crime charged, and which if done would therefore make the accused guilty of that crime, retracts his request or withdraws his encouragement before the act is done? There seems to be no authority directly on this point. There are, however, decisions on the analogous questions which arise when a person who is sought to be made liable as an accessory, on the ground that he has counselled or procured another to commit a crime, countermands his counselling or procuring before the crime is committed, or when a person engaged with others in a common criminal enterprise withdraws before the enterprise is carried to completion. The law as stated by Hale is that a person is not liable as an accessory if he has given “timely countermand”, but that repentance, without an actual countermand before the fact committed, is not enough to avoid liability: Pleas of the Crown, vol I, p 618. The only modern case in relation to accessories appears to be R v Croft. It was there said [1944] KB 295, at p 298: The authorities, however, such as they are, show, in our opinion, that the appellant, to escape being held guilty as an accessory before the fact must establish that he

expressly countermanded or revoked the advising, counselling, procuring or abetting which he had previously given. The Court there obviously did not intend to say that the accused bore the onus of establishing that the counselling or procuring of the crime had been countermanded or revoked; what was meant was that he would not be guilty as an accessory if he had expressly countermanded or revoked his counselling or procuring. The general onus of proving the guilt of the accused would never shift from the Crown, but an accused who relied on the giving of a countermand or revocation must be able to point to evidence which shows that a countermand or revocation had been given: cf R v Saylor [1963] QWN 14, at p 36. Professor Glanville Williams has expressed the view that the rule that the authorization must have been expressly withdrawn is in some cases too stringent, and that there is no reason to doubt that a withdrawal may be implied from conduct in certain circumstances: Criminal Law: The General Part, 2nd ed (1961), p 384. This may well be correct in cases of common design, although it is difficult to envisage a case in which a person who has expressly procured the commission of a criminal offence can sufficiently countermand what he has done merely by conduct; that question however does not arise in the present case. In R v Croft the Court did not mention the requirement that the withdrawal should be timely, and in Archbold: Criminal Pleading Evidence and Practice, 39th ed (1976), par 4143, it is said that: it does not appear to have been clearly established whether the countermanding or withdrawal from the crime must have been timely and effective, or whether the person [page 550] countermanding or withdrawing is required, in order to escape liability, to take reasonable steps to prevent the commission of the crime. However the cases on common design … clearly recognize that a timely withdrawal is essential, and there would seem to be no reason why the same should not be true of a countermand or

revocation by an accessory. [His Honour proceeded to consider the authorities and continued:] … It seems entirely reasonable to insist that a person who has counselled or procured another to commit a crime, or 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. The question whether an accused person is liable for the acts of an innocent agent ought to be answered by the application of similar principles. Where the accused has requested a person who is of sound and mature mind to do an act which the accused knows, but the agent does not know, is illegal, the accused will not be liable if he has given timely countermand of his request. The countermand must have been manifested by words or conduct sufficiently clear to bring it home to the mind of the agent that the accused no longer desires the agent to do what he was previously asked to do; a vague, ambiguous or perfunctory countermand would not be enough. And the accused must have done or said whatever was reasonably possible to counteract the effect of his earlier request. The countermand 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. Further questions might arise if, for example, the innocent agent were insane and it was not possible for that reason to undo the effect that a previous incitement had had upon his mind. Of course, I have dealt only with the liability of the accused for the crime itself, and not with the question whether he would be guilty of attempting to commit the crime. If a countermand was given, but it was not timely or sufficiently clear, or the accused did not take steps to undo the effect of what he had done, it would be no answer to a charge to say that the accused no longer had a guilty mind when the criminal act was done. “The mens rea must coincide with the act of counselling, not necessarily with the commission of the counselled offence”: Smith and Hogan, op cit, p 110. … In the present case, … it is clear that the applicant did not do all that he reasonably could to attempt to prevent the airline from effecting the carriage which he had requested it to perform. He did

not disclose to the airline, in his telex, that the box, which he had said contained a stereo receiver, in fact contained cannabis. If he had done so the airline would have become aware of the importance of stopping the carriage, but as things were the airline had no reason to take any extraordinary steps to retrieve and offload the box. It is easy to appreciate the applicant’s reasons for not wishing to state in his telex that the box contained cannabis, but his failure to do so meant that he did not do all that he reasonably could to undo the effect of his request to the airline to carry the box to Australia. In these circumstances the sending of the telex was not sufficient to absolve the applicant from responsibility when the airline, acting upon his previous instructions, brought the box into Australia. The applicant was therefore rightly convicted. [Stephen J, with whom Aicken J agreed, also held that the applicant had been properly convicted. Appeal dismissed.]

[page 551] 10.70 Note in relation to withdrawal that: 1.

The reasoning of Gibbs J in White v Ridley, above, was applied by Lee, Mathews and Loveday JJA in Tietie v R (1988) 34 A Crim R 438 (NSWCCA).

2.

For a withdrawal to relieve from criminal responsibility, the accused must communicate an intention to withdraw to the other members of the joint criminal enterprise in good time before the crime is committed, and take such action as is reasonably possible to prevent the others from proceeding to commit the crime; for example, by reporting the matter to the police. One essential element is that, where practicable and reasonable, there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime, to those who decide to continue. These propositions emerge from White v Ridley (see 10.69) and Tietie. But the circumstances may vary significantly from case to

case. What happens if the accused attempts to contact the other members of the enterprise to communicate the withdrawal, but is unable to do so for reasons beyond his or her control? Steps otherwise potentially effective may fail in the particular circumstances. The accused may be unable to or be prevented from contacting the police or the intended victim. 3.

The accused must take such reasonable action as is necessary to prevent the crime from proceeding after communicating the intention to withdraw, unless the accused honestly believes that the crime is not going to be committed in the future. The prosecution must establish that the accused did not have such an honest belief. If it is proved beyond reasonable doubt that the accused did not have such a belief, the prosecution must prove that the accused failed to take all reasonable steps to prevent the commission of the crime (R v Truong (unreported, 22 June 1998, NSWCCA)).

ACCESSORY AFTER THE FACT Introduction 10.71 An accessory after the fact is someone who assists the principal in the first degree to escape conviction after the offence has been committed. The offence must be a serious indictable offence (Crimes Act ss 4 and 347). An example is where the accused, knowing that the principal in the first degree has committed an armed robbery, hides the money for the principal offender so that it will not be found by investigating police. It is an offence of derivative criminal liability; that is, the principal’s offence must be proved in order to establish the guilt of the accessory after the fact.

10.72 The New South Wales Law Reform Commission has reviewed this area of criminal responsibility and recommended that a statutory provision be enacted which largely codifies the common law and creates an offence of (a) assisting a person who has committed a serious offence to escape apprehension or prosecution or (b) obtaining, keeping or disposing of the proceeds of the crime, believing that the crime has been committed (see Report 129 Complicity, Recommendation 3.3). [page 552]

Physical element for accessory after the fact 10.73 The physical element for liability as an accessory after the fact is to assist the principal offender. But how much assistance must be provided, and to what end? R v Barlow and Maguire (1962) 79 WN (NSW) 756 Court of Quarter Sessions [Barlow stole a car in Albury. The next day he offered Maguire a lift. Maguire knew that Barlow did not own a car and concluded that he must have stolen it. Nonetheless he still accepted the lift.] Cross DCJ [in the course of considering whether there was evidence to go to the jury on the allegation that Barlow was an accessory after the fact to larceny]: … There are two ways in which a person may become an accessory after the fact. The first is referred to in R v Levy [1912] 1 KB 158 (the decision is reported more fully elsewhere, eg, (1912) 56 Sol J 143) where the judgment of the Court of Criminal Appeal was delivered by Alverstone LCJ, who said this: In Hawkins’ Pleas of the Crown … it is said: ‘What kind of receipt of a felon will make the receiver an accessory after the fact?’ There the words ‘receipt of a felon’ are used, indicating what the meaning of ‘receipt’ was. … It seems agreed that, generally, any assistance

whatever given to one known to be a felon, in order to hinder his being apprehended or tried or suffering the punishment to which he is condemned, is a sufficient receipt for this purpose. … … Mere enjoyment of the proceeds of a crime is not of itself a subordinate participation in that crime. It may in certain circumstances amount to another substantive offence but it does not, of itself, render one an accessory after the fact to the earlier crime. For example, if a man steals a large sum of cash and takes it to his mistress telling her then of the theft and she then assists him in the spending of it, this of itself is no crime by her. And if the thief has also stolen a lady’s watch and tells his mistress that the watch is stolen and gives it to her as a present, the mistress is still not an accessory after the fact to the theft. She has committed the independent substantive crime of receiving. If, however, the thief had handed the watch to his mistress telling her of its theft and asking her to conceal it as the police might search him, and she does so, then she becomes an accessory after the fact to his theft because she has done the act “for the purpose of assisting the principal to escape conviction”. … From the examples I have given it can be seen that mere enjoyment of the use of the proceeds of a crime, with knowledge of a crime at the time of the subsequent use, does not of itself render one an accessory after the fact to the original crime; the added ingredient of acting for the purpose of assisting the principal felon to escape conviction is necessary. This Court must therefore ask itself whether there is any evidence against Maguire, or any reasonably available inferences from the evidence against him, that he by any conduct on his part was intending to assist or was in fact assisting Barlow to escape conviction or, as Hawkins puts it, that he was intending to hinder or in fact hindering Barlow’s apprehension. [page 553] I can find no such evidence. The maximum proof against Maguire, if the evidence against him be accepted, is that he enjoyed the use of the car at a time when he knew that the car had earlier been stolen, although that knowledge came to him only

after the crime was committed. That evidence is insufficient to sustain a charge of being an accessory after the fact. But Levy ‘s case, supra, was not intended to be definitive of the law relating to accessories after the fact, and there is another manner in which a person may become such an accessory (although it could be argued that the following is only a particular application of the principles of Levy ‘s case). A person may become an accessory to a larceny if though absent at the commission of the larceny and though ignorant of its commission he subsequently assists in the criminal asportation of the goods with the knowledge that the goods are stolen goods. For example, a man may break into a garage with the intention of stealing the car in that garage; he may release the handbrake and quietly push the car out into the street; he may see a friend passing, tell the friend what he has done, and ask the friend to help him push the car fifty or sixty yards away before he, the thief, starts it up. If the friend does so, he becomes an accessory after the fact to the breaking and entering of the garage and the stealing of the motor car. The reason is this; the moment that the thief has moved the motor car in the garage the slightest distance, that asportation, necessary for the larceny, completes the larceny. That is to say, the slightest degree of asportation completes the crime. The crime, therefore, was completed without the friend’s knowledge and before he arrived on the scene. But although that asportation inside the garage completed the crime the thief had not completed the criminal asportation intended by him. In assisting him to complete that criminal asportation the friend becomes an accessory after the fact. … In the present case there is no evidence against the accused Maguire that he assisted in the criminal asportation of the vehicle. The crime was committed between 7.30 pm and 11.20 pm on 19th June, 1962. There is no evidence against Maguire that he saw the car prior to the following day. I consider it to be not an inference reasonably available on the evidence that the criminal asportation by Barlow — as those words are understood in the field of larceny — was continuing on the following day between Albury and Collingullie where the car broke down. The crime and the criminal asportation had been completed the night before and many hours

before the first time at which it is proved that Maguire saw the vehicle. For those reasons I am of opinion that there is no case to go to the jury against Maguire as an accessory after the fact to any larceny by Barlow. …

Fault element for accessory after the fact 10.74 The accused must not only assist the offender to avoid justice, he or she must also have the necessary knowledge that the principal offender has in fact committed an offence. It is not enough, however, to prove that the accused knew that the principal offender had committed ‘some’ offence. Before a person can be liable as an accessory after the fact, the Crown must show that the accused knew that the principal offender had committed the very type of crime to which the accused is alleged to be an accessory. [page 554] R v Stone [1981] VR 737 Supreme Court of Victoria [This was a judgment during the course of the trial.] Crockett J: One Eddington has been shown to have been a principal felon. On 31 May 1980 he employed a sawn-down.22 rifle, to shoot his wife of three or four months and a man, one Best, who was with his (Eddington’s) wife, whilst those two were dining in a Brunswick Hotel. As a result of the shots, Eddington’s wife died immediately, or shortly afterwards. Best was wounded but recovered. Eddington was charged with, and convicted of, the offences of murder and wounding with intent to murder, respectively. The accused in the trial presently being conducted before me has been presented on four counts. The first count is a count whereby he is charged with being an accessory after the fact of that murder. The second count, which the Crown says is alternative to the first, is one whereby the accused is charged with misprision of the

felony of murder. The third count charges him with being an accessory after the fact of wounding with intent to murder, that being a reference to the attack by the principal on Best. And the fourth count, which is alternative to the third, charges the accused with misprision of the felony of wounding with intent to commit murder. The Crown has completed its evidence. Counsel for the accused submitted that there is no case to go to the jury on any of the four counts. I agree with him with respect to counts 2, 3 and 4. I think, however, there is sufficient evidence to go to the jury with regard to count 1, relating to the charge of his being an accessory after the fact of murder. Counsel’s submission is rested upon the contention that it is necessary for the Crown to prove knowledge by the accused at the relevant time of facts or acts which would allow it to be said that the crime of which the principal was guilty had in fact been committed to the knowledge of the accused at the time he was alleged to be acting as an accessory. In substance, the Crown evidence is that Eddington and the accused had been close friends for some time. On 31 May Eddington, having come from Sydney that day, presented himself at the accused’s home. He told Stone [the accused] that his wife had left him a short time previously. The accused knew that the two had been married only three or four months previously, as he was at the wedding. The accused, according to the Crown evidence, observed that Eddington was distressed and that he, Eddington, expressed himself as being ‘a little angry’ as this was his second failed marriage. At Eddington’s request the two men went to an hotel in Brunswick and then left and went to another in circumstances from which it could be readily inferred that the accused believed that the purpose of the visit to those hotels was to enable Eddington to ascertain if he could locate his estranged wife. In fact, the evidence is that he did see her in the lounge of the second hotel, sitting at a table with Best. Also, their presence in that lounge was revealed by the licensee both to Eddington and the accused when they were in the saloon bar having a drink. However, both men then left the hotel and went to the accused’s car which was parked in an adjacent car park. On the pretext that he wished to return to the hotel to urinate, Eddington returned there after taking something

from an overnight bag which he had brought with him in the car. It proved to be a sawn-down rifle, but at that time it was not seen to be such by the accused. A minute or two later Eddington returned and got into the car, which was driven off. A half a mile, or a mile later, according to the evidence, Eddington told the accused that he had shot his wife and the man with her. There is evidence led for the Crown that this was also described in terms as being that Eddington had “killed” his wife and Best. The accused was “amazed” [page 555] at the revelation, was “panicky” but sought to talk Eddington into giving himself up. Eddington refused to do so. After his revelation he had produced the rifle which, of course, he had brought back with him to the car, so that although it was dark during all this time the accused could then see it for the first time. In fact, as Eddington was unable to unload it, the accused did so for him. Eddington having expressed his intention to hitch-hike to Sydney, and he then being adamant that he would not give himself up, the accused agreed to drive him as far as Seymour so as to make the chance or [sic] picking up a ride with a transport vehicle more probable. The two men parted company in Seymour, with the accused going forthwith to his home in Melton. He went to bed and, it seems, on the next morning he heard on the 10 or 11 o’clock news that not only had Eddington’s wife been killed and another man wounded but that the police were interviewing a man in connection with the matter. Although it was unknown to the accused from the time he left Seymour until he might have suspected it was the case when he heard the news item on the Sunday morning 1 June, the fact is that Eddington had, upon parting company with the accused, gone to the Seymour police station, and had given himself up and had made a full confession of his complicity in the offences of which he was later convicted. … [I]n a judgment of the Full Court in R v Tevendale [1955] VLR 95 … the learned Chief Justice Sir Edmund Herring, and Sholl, J were certainly of the view that what must be proved by way of knowledge on the part of the accessory is knowledge of all the relevant facts, or acts, that establish the precise felony with respect

to which the Crown alleges the accused was an accessory. That proposition was contested by counsel for the Crown when it was contended against him that it meant that, with respect to counts 1 and 3 respectively, it would be necessary for the Crown to show knowledge by the accused at the time he was allegedly assisting the principal of acts, or facts, that showed respectively the commission of a murder by the principal and a wounding with intent to murder by the principal. I think the proposition as I have stated it represents the law as it is at present administered in this State. In any event, if I am wrong about that the fact is that in the charges laid in counts 1 and 3 respectively the presentment asserts in terms knowledge by the accused at the time that he rendered the alleged assistance to the principal that the principal had murdered his wife and had wounded Best with intent to murder him. Having made the allegations in the presentment, the Crown assumed the onus of proving them. Even if, contrary to what I have said, it would have been necessary to have proved knowledge of the facts, and acts, relating not to a precise felony, but merely, as it were, a genus of crimes, as the presentment itself makes allegations of knowledge of commission of stipulated offences by the principal felon the Crown must prove knowledge of the acts and facts that establish the commission of those very offences. In Tevendale’s case, supra, all the members of the Court were of the view that the presentment alleging knowledge of the commission of a theft by the principal, as it there did, involved the Crown in having to discharge the burden of proving just such knowledge. Of course, that does not require that the accused must be shown to have knowledge that the crime is a felony and not a misdemeanour. There is ample authority for that proposition. Nor does it mean that the accused must be shown to have knowledge of the elements that constitute in law the crime in question. It means no more than that the accused must be shown to have knowledge of the acts, or facts, with respect to which it may be said by one with the requisite legal knowledge that those acts, or facts, do constitute the felony in question. With regard to the third count, if there was any “knowledge” at all possessed by the accused at the time he was allegedly assisting

the felon and based upon what the felon had told him, it was that Best was dead. Axiomatically the accused could not have [page 556] known of acts, or facts, from which it could be shown that the principal had committed the felony of wounding with the intent to murder. Therefore the evidence falls short of establishing a requisite element in this count, and in my view the jury must accordingly be directed to acquit on the third count. As the knowledge for the count of misprision of a felony is the same knowledge as that required to show that the accused was guilty as an accessory, it follows that the alternative count of misprision contained in count 4 must also be the subject of a similar direction. However, the matter is different with regard to the first count. The acts, or facts, which must be shown to have been within the knowledge of the accessory at the relevant time do not have to include matters that would prevent what otherwise would be murder from being murder or which would make the offence an offence less than murder. That is to say, it is sufficient if the acts, or facts, of which the accused is shown to have knowledge are such from which it could be said that he must have inferred that the principal had by a voluntary act shot and killed his wife and that he had done so with the intention either to kill or cause grievous bodily harm. The evidence adduced by the Crown, including particularly the matters to which I have already referred in outlining the evidence, would allow an inference of such a kind to be found to have been drawn by the accused, so that the knowledge that he had at the relevant time was that the principal had committed the felony of murder. Of course, as matters then existed, it may have been that the shot was fired in self-defence, so as to reduce the crime to manslaughter. It may have been that the shot was fired under the influence of provocation, so as to reduce the crime to manslaughter. I do not think that it has to be shown by the Crown that the accused had knowledge of the acts, or facts, which would have allowed him to have drawn the inference that the offence committed was in fact something less than murder. It may have turned out to be so, although in the present case we now know it did not, because Eddington was convicted of the murder of

his wife. But even if it had turned out that the offence was not murder but the lesser offence of manslaughter, the fact that in this case the accused need not have been shown to have knowledge other than that a felonious homicide had been committed by the principal with the intent of killing or causing grievous bodily harm is borne out by the case referred to in Tevendale’s case, supra, R v Richards (1877) 2 QBD 311. Therefore, for those reasons I think that there is sufficient evidence to go to the jury on count 1. [His Honour then considered the second count and concluded that there was no evidence to go to the jury on that count.]

Misprision of felony 10.75 Misprision of felony was also considered in Stone (see 10.74). It is a common law offence committed where a person ‘knowing that a felony has been committed he fails to disclose within a reasonable time and having a reasonable opportunity for so doing his knowledge to those responsible for the preservation of the peace’ (R v Stone [1981] VR 737 at 741). The offence is dealt with in New South Wales in s 316 of the Crimes Act: ‘Concealing serious indictable offence’. There are no longer any felonies in New South Wales. [page 557]

DISCUSSION QUESTIONS 10.76 1.

Assume that the following facts are true and can be proved. Consider the criminal responsibility of Bill, Mark and Mary. Three young people are out for a night on the town. Mary is driving her car, Bill is in the front passenger seat and Mark is in the back. Bill sees a young man, Trevor, walking alone in a dark street and he says to

Mary, ‘Stop here a second.’ He then turns to Mark and says, ‘Come with me and we’ll have a bit of fun.’ Both Bill and Mark get out of the car and approach Trevor. Bill starts a conversation with Trevor, who appears nervous. After a few minutes Bill is getting ‘pushy’ and Trevor is very anxious, looking to both Bill and Mark. (Mary is still in the car watching the whole event.) Mark finally says, ‘Come on, Bill, I’ve had enough.’ Bill says ‘OK’ and then turns to Trevor and says, ‘But first I’ll have your wallet and watch!’ Trevor hesitates, so Bill pulls a knife from his pocket (which neither Mary nor Mark knew he had) and cuts Trevor’s jacket. Mark says, ‘You’d better give it to him, I think he is serious.’ Trevor hands the wallet and watch to Bill, and Bill and Mark race back to the car where Mary is waiting. As soon as they are in the car, she speeds off. 2.

Assume that the following facts are true and can be proved. Consider the criminal liability of Arthur and Leanne. Arthur and Leanne are fantasising about committing a bank robbery. Over dinner and several bottles of good red they discuss how they would conduct the robbery, the escape route and how to ‘launder’ the proceeds. The next day, they travel to the bank (where they have an account) and Leanne says to Arthur, ‘Wait here, I’ll just go and make a withdrawal.’ Unknown to Arthur, Leanne is armed with a gun and plans to commit the robbery. She goes into the bank and sees that there is a police officer in the queue, and that the officer’s partner is waiting in a car outside the bank. She does not commit the robbery but withdraws money from her account and leaves.

Has Leanne committed any offence? Two weeks later, Leanne surprises Arthur with a new watch which she says she got from the robbery as they had discussed, and she gives him $20,000 to ‘launder’ in accordance with the ‘plan’. Arthur says that he is surprised as he thought the discussion was a joke, but given that she has done it he will ‘launder’ the money as discussed. Has Arthur committed any offence? [page 558] 3.

In each of the following scenarios, what is the issue for the law of attempt in New South Wales? How is it likely to be resolved? (a) D’s phone is bugged for suspected terrorism. He phones his father who lives overseas. He says his business, which he runs from his wife’s factory, is going badly and that he desperately needs money. He’s going to have to burn it down. His wife won’t know who the culprit is and will suspect organised crime. His father says to D that he’ll disown him if he does any such thing. (b) In scenario (a), change the facts to a situation where D’s father agrees to come to Sydney to help burn down the factory. Would this agreement constitute a conspiracy? See 10.19. (c) D, working alone, proceeds to his business in the dead of night and pours what he thinks is accelerant all over the factory and tries to ignite it but without success. The hardware store had sold him mislabelled distilled water by mistake. (d) D is a chain smoker. In scenario (c), change the facts to a situation where he does indeed have accelerant and has poured it around the property.

He pauses to light a cigarette and at that point the police jump in and arrest him for attempting to destroy or damage property under s 195 of the Crimes Act. (e) D works for a gang which pays him money for standover services in Kings Cross. The police have D and the gang under surveillance and have prepared a sting operation. D knows that one activity of the gang is organising child prostitution but they also run illegal gaming houses on unlicensed premises. Each week D collects his pay in a particular cubicle in the toilet of Kings Cross railway station. This week his pay will come entirely from the proceeds of child prostitution. The police have mounted their observation but D and the gang member with D’s pay are prevented from entering the cubicle when a commuter makes a dash for the facility and beats them to it, locking the cubicle from the inside. The gang member senses the police presence and makes a bolt for it but D is arrested under s 344A for attempting the offence of obtaining a benefit from child prostitution contrary to s 91E of the Crimes Act.

[page 559]

11

Criminal procedure and evidence — Part 1 Investigation, arrest and bail INTRODUCTION 11.1 In Chapter 1 it was argued that one of the roles of the criminal law is to limit the power of the state over its citizens. That is done by imposing an obligation on the state to define with particularity what conduct is prohibited. It is also done by interposing, between the state and the accused, an independent judiciary that supervises the criminal trial to make sure that the state can prove — to the satisfaction of the jury, magistrate or judge, as the case may be — that a person alleged to have committed a crime is guilty. 11.2 The processes of the criminal law, that is, the processes used to bring a person before a court to answer the Crown’s allegations, are also governed by law. It is that law which is to be the subject of investigation in this chapter and Chapter 12.

OVERVIEW OF CRIMINAL PROCEDURE 11.3 Criminal law develops in the context of the criminal process. Neither can be understood when divorced from the other. When does the criminal process start? [page 560] In many cases, it is well before any person of interest has become a suspect; for example, where the police have installed a listening device in a public telephone in an area

notorious for drug crimes (see Okafor v R [2007] NSWCCA 147). The criminal process may continue after conviction and appeal, such as where fresh evidence is found which could prove that someone other than the person convicted in fact committed the crime. Flow Chart 11-1 shows the steps that must be taken to bring a person before a court to answer a criminal allegation.

FLOW CHART 11-1: OVERVIEW OF CRIMINAL PROCEDURE

[page 561]

DETECTING THE OFFENCE 11.4 The first step in the criminal process is that the police must become aware that an offence has been, or may have been, committed. This occurs when the police observe an offence being committed, receive information suggesting that an offence has been committed, or in the course of their duties come across evidence that an offence has been committed. Where the police have observed a minor offence, such as a driver exceeding the speed limit, there is no real need for investigation and they can initiate a prosecution without the need to rely on powers of investigation or arrest. Where police have received information that a crime may have been committed, but have little immediate evidence as to who committed the offence or exactly what offence was involved, they will need to investigate the matter to decide who, if anyone, should be charged, and with what offence.

Investigating an alleged offence — power to stop and search without warrant 11.5 As a matter of common law a person is not compelled to answer police questions or to assist police with their inquiries. Police do not have the power to arrest someone merely for the purpose of seeing whether or not he or she has been involved in criminal activity (Williams v R (1986) 161 CLR 278, see 11.50). Police do not have a general power to enter premises to look for evidence of a crime. The legislature has, however, granted police powers that can be used to investigate an offence. The main source of police powers is the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). Some of the things that police officers can lawfully do, based on their own judgment and without judicial warrant, are:

enter premises to prevent a breach of the peace or to prevent significant injury occurring to someone (LEPRA s 9); enter premises to arrest a person (LEPRA s 10); demand the name and address of a person who is, or was, near a place where an alleged indictable offence occurred, and the police officer has reasonable grounds to believe that the person may be able to assist in the investigation of that offence (LEPRA s 11); require a person to disclose their identify if the police officer believes, upon reasonable grounds, that that person is subject to an apprehended violence order (LEPRA s 13A); require the driver and passengers in a motor vehicle that the police officer suspects, on reasonable grounds, has been involved in an indictable offence to produce identification and state their names and addresses (LEPRA s 14); require the driver of a motor vehicle to produce his or her driver’s licence and state his or her name and address (Road Transport Act 2013 s 175); [page 562] stop traffic and require a person to undergo a breath test or sobriety test (Road Transport Act 2013 s 114 and Sch 3); conduct a search of a person in a public place or a school, and of his or her bags, where the police officer suspects, on reasonable grounds, that the person has a knife or other dangerous implement (LEPRA s 26); stop and search any person or vehicle where the police officer reasonably suspects that the person has, or the vehicle contains, anything that has been stolen or

otherwise unlawfully obtained or anything that has been used, or is intended to be used, in the commission of an indictable offence (LEPRA ss 21 and 36); use a dog to sniff for drugs where people are seeking to enter or leave a place that is used for the consumption of alcohol or any sporting event, concert, public entertainment, public transport, etc (LEPRA s 148) or to sniff for firearms or explosives (LEPRA s 196); establish a crime scene and then exercise extensive further powers regarding the search for evidence and the restriction on free movement of people, but not for more than three hours (LEPRA ss 90–95).

Reasonable suspicion 11.6 The police cannot exercise the powers granted to them in a vacuum or on a whim. The statutory provisions usually require a police officer to have a ‘reasonable suspicion’, or ‘reasonable grounds to suspect’, or ‘reasonable grounds to believe’ that certain facts exist before exercising his or her powers to search or detain a person. 11.7 In George v Rockett, below, the High Court of Australia considered what would constitute reasonable grounds sufficient to authorise a justice to issue a search warrant under the relevant Queensland statute. The court’s comments on what constitutes a reasonable suspicion or belief can be applied when considering whether or not a police officer would have the necessary suspicion or belief to justify the exercise of the powers described above. George v Rockett (1990) 170 CLR 104; 93 ALR 483 High Court of Australia

Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ: … When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. … Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942, at p 948, ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.”’ The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, [page 563] ‘was unable to pay (its) debts as they became due’ as that phrase was used in s 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said (at p 303): A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’ Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes — a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors. The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in

fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

11.8 The meaning of ‘reasonable suspicion’ as it applies in New South Wales was considered in R v Rondo, below. Here the issue was whether police had ‘reasonable suspicion’ to justify stopping and searching Rondo’s car. There is a further extract from Rondo at 12.145. R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 NSW Court of Criminal Appeal [The appellant, John Rondo, appealed against his conviction of supplying a prohibited drug and cultivating a prohibited plant. According to the police (Constables Gautier and Barnes) they had noticed a Toyota Supra with panel damage to the driver’s side travelling east. The vehicle had a smart appearance and appeared capable of travelling at fast speeds. Constable Barnes drove the police vehicle alongside the Supra and Constable Gautier said to the appellant, the driver, ‘Is this your car?’ He replied, ‘No’. Constable Barnes moved the police vehicle behind the Supra and turned on the flashing lights and the siren. The Supra was pulled over and the police vehicle stopped behind it. Constable Barnes searched the vehicle and found $860 in the console and some cannabis leaf in the glovebox.] Smart AJ: … 51. The evidence that the police had to support stopping the vehicle was that a young fresh faced man was driving a smart fast open coupe with some panel damage along Epping Road and when asked if the car was his, he replied ‘No’. He was not asked to whom it belonged. The mere fact that the appellant was driving a car which he did not own or lease or hire is not sufficient to give rise to a reasonable suspicion. Many late teenagers and young adults drive cars belonging to a parent or a sibling. Alternatively, the car may be that of an employer or a friend. At the time of stopping the appellant and the Supra

Constable Barnes did not have any material on which he could form any of the reasonable suspicions referred to in s 357E [of the Crimes Act; [page 564] now LEPRA s 36]. … [His Honour then explained the concept of ‘reasonable suspicion’ as follows:] 53. … (a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s 357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value. (c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances. 54. On the information which Constable Barnes had he did not have reasonable grounds to form any of the suspicions mentioned in s 357E. It was not open to him to ‘reasonably suspect’ any of the matters referred to in s 357E. Hence the stopping of the appellant and his vehicle was unlawful. …

11.9 In George v Rockett and Rondo the court considered what would constitute a reasonable suspicion. There must be a factual basis, that is, some facts, to justify the suspicion even if those facts are not sufficient to establish the accused’s guilt. The facts that the police officer relies on may not even be admissible in court. In Hyder v The Commonwealth, below,

McColl J (with whom Hoeben JA agreed; Basten JA dissenting) at [15] set out a number of propositions ‘extracted from decisions considering how a person required to have reasonable grounds either to suspect or believe certain matters for the purposes of issuing a search warrant or arresting a person might properly form that state of mind’. Hyder v The Commonwealth (2012) 217 A Crim R 517; [2012] NSWCA 336 NSW Court of Appeal McColl J: … 15. (1) When a statute prescribes that there must be “reasonable grounds” for a belief, it requires facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (at 112); (2) The state of mind that the reasonable grounds for the relevant suspicion and belief exist must be formed by the person identified … (the “arresting officer”); the arresting officer may not “discharge the … duty [of forming the relevant opinion] [page 565] parrot-like, upon the bald assertion of the informant”: George v Rockett (at 112), quoting R v Tillett; Ex parte Newton (1969) 14 FLR 101 (at 106) per Fox J; (3) The proposition that it must be the arresting officer who has reasonable grounds to suspect (or believe) the alleged suspect to be guilty of an arrestable offence is intended to ensure that “[t]he arresting officer is held accountable … [and] is the compromise between the values of individual liberty and public order”: O’Hara v Chief Constable of Royal Ulster Constabulary (at 291) per Lord Steyn (Lords Goff, Mustill and Hoffmann agreeing); (4) There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some

probative value: R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 (at [53](b)) per Smart AJ (Spigelman CJ and Simpson J agreeing); Shaaban Bin Hussien v Chong Fook Kam (at 949); O’Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn; (5) “The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof”: George v Rockett (at 116); (6) “Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture”: George v Rockett (at 116); (7) What constitutes reasonable grounds for forming a suspicion or a belief must be judged against “what was known or reasonably capable of being known at the relevant time”: Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (at [40]) per Gleeson CJ, Gummow, Hayne and Heydon JJ; whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion: Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 (at 714) per Kirby P (Meagher and Sheller JJA agreeing); see also O’Hara v Chief Constable of Royal Ulster Constabulary (at 298) per Lord Hope; (8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light

of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O’Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope. (O’Hara concerned the formation of a suspicion, but the proposition Lord Hope stated is equally applicable to the formation of a belief); it is “[t]he character of the circumstances [which have] to be decided: were they such as to lead to the specified inference?”: Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 (at 303) per Kitto J; (9) “The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court [page 566] to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist”: New South Wales Crime Commission v Vu [2009] NSWCA 349 (at [46]) per Spigelman CJ (Allsop P and Hodgson JA agreeing); see also International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 189 A Crim R 559 (at [134]–[135]), per McClellan CJ at CL. Although McClellan CJ at CL was in dissent, Allsop P (with whom Beazley JA agreed) (at [51]) would have agreed with McClellan CJ at CL’s conclusion in this respect subject to qualifications none of which are in issue in the present case. International Finance Trust Co Ltd v New South Wales Crime Commission was overturned in the High Court insofar as it concerned the constitutional validity of s 10 of the Criminal Assets Recovery Act 1990, but not in a manner which affects the statements concerning the reasonable grounds issue: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319; (10) In Holgate-Mohammed v Duke (at 443), Lord Diplock held that the words “may arrest without warrant” conferred on a public official “an executive discretion” whether or not to arrest and that the lawfulness of the way in which the

discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. That aspect of Lord Diplock’s reasoning was applied in Zaravinos v State of New South Wales (at [28]) where Bryson JA (Santow JA and Adams J agreeing) held that that the validity of an exercise of the statutory power to arrest, in that case under s 352(2) of the Crimes Act 1900 (which provided that “[a]ny constable or other person may without warrant apprehend”), was “not established conclusively by showing that the circumstances in s 352(2)(a) exist[ed], and that the validity of the decision to arrest and the lawfulness of the arrest also depend on the effective exercise of the discretion alluded to by the word ‘may’”; see also Bales v Parmeter (1935) 35 SR (NSW) 182 (at 188) per Jordan CJ. Holgate-Mohammed v Duke has not been followed in Australia to the extent that Lord Diplock held that an arrest for the purpose of asking questions was lawful: see Zaravinos v State of New South Wales (at [31]–[33]); Williams v The Queen (at 299) per Mason and Brennan JJ.

Investigation with warrant 11.10 As well as statutory powers to authorise police, acting on their own initiative, to stop and search a person or demand personal particulars, police may also seek a warrant or a court order to allow further investigation. The traditional warrant is a search warrant but in fact many warrants may be issued. For example, police may obtain a warrant to: intercept telephone calls, post and other forms of private communication (Telecommunications (Interception and Access) Act 1979 (Cth) Pt 2-5, Australian Security Intelligence Organisation Act 1979 (Cth) ss 25A–27, Surveillance Devices Act 2007 (NSW) Pt 3); enter and search premises to obtain evidence in

relation to particular offences (LEPRA s 47); enter premises to investigate or prevent a domestic violence offence (LEPRA s 83); [page 567] establish a crime scene and then exercise extensive further powers regarding the search for evidence and the restriction on free movement of people (LEPRA s 94); authorise the taking of samples for DNA testing (Crimes (Forensic Procedures) Act 2000 s 22).

Search warrants Issuing a warrant 11.11 Putting aside warrants dealing with special circumstances, the warrant that is used most often to assist in the investigation of a crime is a search warrant. The issue of a search warrant is authorised by Pt 5 (ss 46–80) of LEPRA. Section 47 of that Act provides that a police officer may apply for a search warrant if he or she ‘believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant’. 11.12 A ‘searchable offence’ means an indictable offence, a firearms or prohibited weapons offence, a narcotics offence, a child abuse material offence or an offence involving anything stolen or otherwise unlawfully obtained (s 46A). The issuing officer may issue the warrant if he or she is ‘satisfied that there are reasonable grounds for doing so’ (s 48).

Powers and responsibilities under a warrant 11.13 A warrant, if issued, authorises any member of the

police service to enter and search the nominated premises. In conducting a search the police may not only seize those things that the warrant authorised them to search for, they may also seize anything else that they find and which they believe is connected with any offence (ss 22 and 49). When executing a search warrant, police may also search any person found on the premises (s 50). 11.14 In most cases, when executing a warrant, police are required to inform the occupier that their entry is authorised by warrant and give the occupier the opportunity to allow police to enter the premises (s 68(1)). Where a person will not give access, police may use reasonable force to enter the premises and exercise their lawful powers (ss 70 and 230). When entering premises, police must give the occupier a copy of an information sheet called ‘an occupier’s notice’ (s 67) and must also, if requested, show the occupier the actual warrant (s 69). Warrants must not, without special permission from the authorising officer, be executed between 9 pm and 6 am (s 72). 11.15 There are exceptions to these rules. A police officer need not announce his or her intention to enter and give the occupier the opportunity to allow the officer access if the officer ‘believes on reasonable grounds that immediate entry is required to ensure the safety of any person or to ensure that the effective execution of the search warrant is not frustrated’ (s 68(2)). [page 568] 11.16 A senior police officer or a member of the New South Wales Crime Commission may apply for a covert search warrant when the officer or member believes ‘on reasonable grounds that there is, or within 10 days will be, in or on the premises a thing of a kind connected with the searchable offence, and … it is necessary for the entry and search of those premises to be conducted without the

knowledge of any occupier of the premises’ (s 46C). An ‘eligible judge’ may issue a covert search warrant if he or she is ‘satisfied that there are reasonable grounds for doing so’ (s 48). 11.17 An ‘eligible judge’ is a judge of the Supreme Court who has consented to being appointed, and who has been appointed by the Attorney-General as an eligible judge (s 46B). A covert search warrant may be issued to allow investigating authorities to search for evidence related to a ‘serious offence’; that is an offence punishable by at least seven years’ imprisonment and that involves: the supply, manufacture or cultivation of drugs or prohibited plants; the possession, manufacture or sale of firearms; money laundering; car and boat rebirthing activities; unauthorised access to, or modification or impairment of, computer data or electronic communications; organised theft; violence causing grievous bodily harm or wounding; the possession, manufacture or supply of false instruments (that is, forgery); corruption; the destruction of property; homicide; kidnapping; offences such as sexual assault and sexual servitude offences; possession, supply or making of explosives; offences relating to child prostitution or child pornography; possession of data with intent to commit a serious computer offence; producing, supplying or obtaining data with intent to commit a serious computer offence; and offences of attempting to commit, or of conspiracy or incitement to commit, or of aiding or abetting, any of the offences mentioned (s 46A). 11.18 When conducting a search authorised by a covert search warrant, police can enter the premises to be searched without notifying the occupier. They do not need to announce their intention to search (s 68(2)) and, although they do, eventually, have to give the occupier an occupier’s notice, that can be deferred for up to three years (s 67A). In the course of their search police may find evidence of a crime

but they are allowed to return the item or substitute it. For example, they could substitute the drugs or explosives with a harmless alternative. They may later re-enter premises to return things they have taken or retrieve things they have left as part of their investigation. When executing a covert warrant the executing officer may also enter adjoining premises without the knowledge of the occupier of those premises. The officer may impersonate another person, so, for example, he or she may pretend to be a technician who needs to enter the premises to inspect the telephone or power supply; and the officer may do ‘anything else that is reasonable for the purpose of concealing anything done in the execution of the warrant from the occupier of the premises’ (s 47A(2)).

Nature of search warrants and obligations of issuing justice 11.19 In Crowley v Murphy the Federal Court considered the validity of a search warrant issued pursuant to s 10 of the Crimes Act 1914 (Cth). In the course of his judgment, Lockhart J made some comments about the nature of search warrants and [page 569] the obligations of a justice who is asked to issue a warrant. Although his Honour was considering the Commonwealth statute, his comments are equally applicable in New South Wales. Crowley v Murphy (1981) 34 ALR 496; [1981] FCA 31 Full Court of the Federal Court of Australia Lockhart J: … The inviolability of a person’s home was recognized early in the history of English law. It is an immunity equal to the inviolability of the person himself.

In 1604 Sir Edward Coke reported Semayne’s case (1604) 5 Co Rep 919; 77 ER 194, as resolving: ‘The house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose.’ This same conception was expressed, although in more colourful language, by William Pitt, First Earl of Chatham, in a celebrated address to Parliament in 1766 on general warrants, in these terms: ‘The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the winds may blow through it — the storm may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement.’ … Notwithstanding that Commonwealth and State legislation governs the law of entry, search and seizure in Australia today, it is necessary to bear in mind the fundamental legal conception of the freedom of the individual in his home or premises. It is the cardinal principle in the light of which the statutory authority for the issue and execution of search warrants is read. Even today, there is no right at common law to enter a person’s home or premises for the purposes of search or seizure without the permission of the owner or occupier, except in the case of a search for stolen goods. Entry without such permission or the authority of a valid warrant is to commit a trespass and to render the trespasser liable to damages. Statutes authorizing the issue of search warrants must be expressed in clear and unambiguous language. Search warrants are necessary in modern society; but courts strive to balance the competing interests of the citizen to the inviolability of his home or premises and of the State to prevent the commission of crime or to obtain evidence in aid of the prosecution of offenders. … It is important that this jurisdiction be exercised zealously in modern times when inroads are made so frequently upon the rights of citizens by statute and administrative action. The jurisdiction is exercisable in various ways: for example by the prerogative writs of prohibition or certiorari to review invalid search warrants, injunctions and damages for trespass … But one of the most important requirements is that the person charged with the power of issuing search warrants satisfies himself

that it is a proper case for the issue of such a substantial interference with a citizen’s liberties. … In determining whether or not to issue a search warrant the justice must act judicially; he must consider whether what is alleged in the information before him provides reasonable ground for suspecting that there is in the house, vessel or place to be searched anything of the kind mentioned in … [the section]. He cannot properly come to this conclusion unless the grounds of suspicion are disclosed by the informant. It is the justice himself who must be satisfied, not the policeman who gives the information on oath. The justice must not act as a mere rubber stamp for the police. He must ensure [page 570] that a finding of reasonable grounds is supported by credible facts and circumstances: see Aguilar v Texas (1964) 378 US 108. This does not mean that the justice must be satisfied that the things to be searched for will necessarily afford evidence sufficient to result in a conviction; but simply whether they will be relevant in some way to the issue, if found. He is not to decide the case at the time it is sought to issue the warrant; but the justice must remember that he is exercising wide powers ex parte, and must take into account the rights of the citizen who is not before him in a proceeding that cuts across the ancient principle that a person’s home is inviolable. It is a power to be exercised with great care and circumspection. The warrant is not to be lightly granted. …

11.20 Because search warrants justify an invasion of fundamental rights, the courts insist that the legislative provisions authorising the issue of warrants are strictly followed. In Carroll v Mijovich (1991) 25 NSWLR 441 a failure by the magistrate to properly complete a form setting out his reasons for granting the warrant was held to make the warrant itself invalid. In DPP v Marijancevic, Preece and Preece (2011) 33 VR 440 failure to take the oath when completing the affidavits that set out the facts that formed the basis of the application for a warrant meant that evidence of the accused’s guilt of serious offences contrary to the Drugs,

Poisons and Controlled Substances Act 1981 (Vic) was excluded. 11.21 In State of New South Wales v Corbett, below, the High Court reviewed the law on search warrants and the rules of strict interpretation that should be applied. As Kirby J emphasised at [27], the rules are part of the judge-made law, and ‘must adjust to any applicable statutory provisions’ that would act to save a warrant that might otherwise be considered defective. State of New South Wales v Corbett (2007) 230 CLR 606; 237 ALR 38; [2007] HCA 32 High Court of Australia [This was an action for trespass upon the property of the plaintiff/respondent. A police officer had sought and obtained a search warrant based on his suspicion that the plaintiff had firearms on his property. Section 5 of the Search Warrants Act 1985 relevantly stated: Application for warrant in respect of certain offences, stolen property etc (1) A member of the police force may apply to an authorised justice for a search warrant if the member of the police force has reasonable grounds for believing that there is or, within 72 hours, will be in or on any premises: … (b) a thing connected with a particular firearms offence, The application for the warrant set out the officer’s reasons for believing that there may have been firearms held contrary to the Firearms Act 1989 s 5(a). Unfortunately, at the time (3 June 1998), the Firearms Act 1989 (NSW) had been repealed and replaced by the Firearms Act 1996. The 1996 Act had a similar offence of possessing a firearm without holding an appropriate licence under s 7. The plaintiff sued the State of New South Wales

[page 571] for trespass on the basis that the police had relied on a defective warrant. The plaintiff lost in the District Court but succeeded in the NSW Court of Appeal. On appeal to the High Court the question was whether the reference to the repealed Act invalidated the warrant or whether a savings provision in the 1996 Act meant that the warrant was a valid warrant to authorise a search for firearms held contrary to the 1996 Act. The savings provision stated: Except as provided by the regulations, a reference in any instrument (other than this Act or the regulations) to any provision of the Firearms Act 1989, or the Firearms Regulation 1990, is to be read as a reference to the corresponding provision of this Act, or the regulations made under this Act, respectively.] Kirby J: [footnotes omitted] … 16. A tension in the law: From its earliest days, this Court has insisted on a rule of strictness in expressing the law governing search warrants. It has done so, despite a recognition that, as Brennan J observed, in Halliday v Nevill: There is … a tension between the common law privileges that secure the privacy of individuals in their own homes, gardens and yards and the efficient exercise of statutory powers in aid of law enforcement. 17. In intermediate courts, opinions are sometimes expressed reflecting a perceived need to moderate the rule of strictness. This has followed the inconvenience that the application of the rule can sometimes occasion and a sympathy for those who seek and execute search warrants (generally police officers) who are accountable in law for defaults when the rule of strictness is rigorously applied. Instances of such opinions may be seen, for example, in the dissenting reasons in two important cases in the New South Wales Court of Appeal. The dissents concern, and respond to, the tension to which Brennan J referred in Halliday. 18. Notwithstanding such differences, intermediate courts in Australia have normally adhered to the rule of strictness. They have correctly interpreted that to be their duty, conforming to the

unanimous reasons of seven Justices of this Court in George v Rockett. Those reasons, in turn, constituted a strong reaffirmation of a line of federal cases such as R v Tillett; Ex parte Newton and Parker v Churchill, extracted and cited with approval in Rockett. 19. The rule of strictness in this area of the law can only be fully understood against the background of its history in common law countries; the basic principles expressed in that history commonly reflected in the constitutions of most such countries; and the development of instruments expressing relevant norms of the international law of human rights to which Australia is a party. 20. History of search warrant law: In the 18th century, departures from the rule of strictness became common in England and, even more so, its colonies. Such departures constituted one of the causes of the American War of Independence against Britain. They helped to explain the language of the Fourth Amendment to the Constitution of the United States of America. Concurrently, the departures eventually led in Britain itself to judicial and parliamentary reaffirmation of the rule of strictness. The law of search warrants, so expressed in Britain, became part of the law inherited by the Australian colonies as they were established. 21. Although Australia has not adopted a constitutional rule similar to the Fourth Amendment to the United States Constitution and its equivalents in other countries and has not expressly incorporated the relevant rules of international law in its domestic legislation, the rule of strictness is reflected both in legislative provisions governing search warrants and in judicial expositions of their requirements. [page 572] 22. Reasons for strictness: What are the reasons that lie behind this rule of strictness? They include: (1) The protection of the ordinary quiet and tranquility of the places in which people live and work and of their possessions as a precious feature of our type of society and the happiness of its people; (2) The avoidance of disruption and the occasional violence that can arise in the case of unwarranted or excessive searches and seizures;

(3) The beneficial control of the agents of the State exerted because of their awareness that they will be held to conformity with strict rules whenever they conduct a search and will require statutory or common law that clearly supports their searches and seizures; (4) The incentive that strict rules afford for the maintenance of respect for the basic rights of individuals who become subject to, or affected by, the processes of compulsory search and seizure; and (5) The provision in advance to those persons of a warrant signifying, with a high degree of clarity, both the lawful ambit of the search and seizure that may take place and the assurance that an independent office-holder has been persuaded that a search and seizure, within that ambit, would be lawful and has been justified on reasonable grounds. … 24. Obviously, because the rule of strictness is one of judicial approach, it must adjust to any applicable statutory provisions designed, in effect, to excuse or render inoperative, established, but immaterial, errors appearing on the face of a search warrant or ancillary documents. Similarly, it must adjust to cases where, by operation of law, the propounded error that, on a strict reading, might invalidate the application and resulting search warrant is revealed, on analysis, as no error at all. The appellant proffered each of these reasons to counter the respondents’ appeal to the rule of strictness. 25. In my opinion, it is the latter argument that carries the day for the appellant. It saves the subject application and ensuing search warrant from invalidation for the presence of a legal defect. My reasons follow those of Gummow J. They rely on the transitional provision contained in item 12 of Sched 3 to the Firearms Act 1996 (NSW) (“the 1996 Act”). That item states: Except as provided by the regulations, a reference in any instrument (other than this Act or the regulations) to any provision of the Firearms Act 1989, or the Firearms Regulation 1990, is to be read as a reference to the

corresponding provision of this Act, or the regulations made under this Act, respectively. 26. The reference in the application for the search warrant to the “Firearms Act No 25/1989 Sect 5(a)” was, by force of the transitional provision, to be read as a reference to the “corresponding provision” of the 1996 Act. Thus, by express statutory enactment, that item had the effect of replacing in the “instrument” (the application form and resulting search warrant) the reference to s 5(a) of the Firearms Act 1989 (NSW) (“the 1989 Act”) with a reference to s 7 of the 1996 Act. In cases to which the transitional provision applied (such as this), it follows that there was no error, misdescription or material defect in the applicable search warrant or the resulting warrant issued pursuant to that application. By force of law, the supposedly incorrect reference to the 1989 Act was to be read as containing a correct reference to the “corresponding provision” by then in force, namely s 7 of the 1996 Act. … [Gleeson CJ and Gummow J, in separate judgments, and Callinan and Crennan JJ in a joint judgment, concurred. Appeal allowed. Verdict of the District Court in favour of the state restored.]

[page 573]

Entry for investigation without warrant 11.22 Police may have the power to enter or remain on premises without a warrant. An example of a power to enter is contained in LEPRA s 9, where police are given power to enter premises in an emergency. In order to investigate whether or not a domestic violence offence has been committed, police may enter when they are invited by anyone who appears to be a resident (s 82) but they must not remain on the premises if permission is expressly withdrawn. The effect of an earlier version of these provisions was discussed by the High Court of Australia in Kuru v State of New South Wales. Kuru v State of New South Wales

(2008) 236 CLR 1; 246 ALR 260; [2008] HCA 26 High Court of Australia [This was an appeal from a decision of the Court of Appeal setting aside a verdict for the plaintiff/appellant for damages for trespass to land, trespass to the person, and false imprisonment. Police had been called because of sounds of a struggle in the premises. They entered the plaintiff’s flat when invited to do so but failed to leave when their permission to be on the premises was withdrawn. A struggle ensued and the plaintiff was arrested. The case largely turned on the interpretation of ss 357F–357I of the Crimes Act 1900 (NSW) (see now ss 82–87 of LEPRA). The following extract is concerned with the powers of police to remain on premises once their express permission had been withdrawn.] Gleeson CJ, Gummow, Kirby and Hayne JJ: [footnotes omitted] … 39. … [T]he police officers who entered the appellant’s flat had no statutory justification for remaining on the premises after he asked them to leave. Was there common law justification? Common law justification? 40. The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire-fighters, police and ambulance officers will often invoke application of that principle. There being no evidence of danger to life or property, it was not suggested that this was such a case. 41. The defence delivered by the State in answer to the appellant’s claim in the District Court did not distinctly allege that the police officers remaining in the appellant’s flat, after he had asked them to leave, was in exercise of any common law right to remain on the land. The defence was cast in terms that were apposite to invoke only a statutory right founded in s 357F of the Crimes Act [now s 82 of LEPRA]. Yet at all stages of the proceeding, this litigation has been conducted on the footing that it was open to the State to rely not only on s 357F, but also on a common law justification for what otherwise would have been the police officers’ trespass to land. As Mason P rightly pointed out in the Court of Appeal, the State’s failure to plead all of the defences on which it relied was and is unsatisfactory. It is unsatisfactory because there is no

sufficient definition of what was said to be the justification, and there is no sufficient definition of what were the facts that were said to engage that justification. 42. In its written submissions in this Court the State submitted that where police “apprehend on reasonable grounds that a breach of the peace has occurred and [page 574] unless they involve themselves may recur, or alternatively that a breach of the peace is imminent, they may enter private dwelling premises for preventative and investigative purposes, acting only in a manner consistent with those purposes and remaining only for so long as is necessary for those purposes”. It is convenient to treat this submission as identifying the asserted common law justification. It should also be said at once, however, that the submission was cast at a level of abstraction that did not identify the facts of this case that were said to engage the justification. 43. As was pointed out in this Court’s decision in Plenty v Dillon, it is necessary to approach questions of the kind now under consideration by recognising the importance of two related propositions. First, a person who enters the land of another must justify that entry by showing either that the entry was with the consent of the occupier or that the entrant had lawful authority to enter. Secondly, except in cases provided for by the common law and by statute, police officers have no special rights to enter land. And in the circumstances of this case it is also important to recognise a third proposition: that an authority to enter land may be revoked and that, if the authority is revoked, the entrant no longer has authority to remain on the land but must leave as soon as is reasonably practicable. 44. In the case of a police officer’s entry upon land, this is not necessarily a great burden. As has already been pointed out, the police officer may then (or earlier) seek a warrant which may be granted in large terms. Such a warrant may be sought by telephone. It is granted by a Magistrate. Although the grant of a warrant is an administrative act, it is performed by an office-holder who is also a judicial officer enjoying independence from the Executive Government and hence from the police. This facility is thus an important protection, intended by Parliament, to safeguard the

ordinary rights of the individual to the quiet enjoyment of residential premises. Where a case for entry can be made out to a Magistrate, the occupier’s refusal or withdrawal of permission to enter or remain may be overridden. However, this is done by an officer who is not immediately involved in the circumstances of the case and who may thus be able to approach those circumstances with appropriate dispassion and attention to the competing principles at stake. 45. In Halliday v Nevill [considered in Lippl v Haines at 11.45], this Court held that if the path or driveway leading to the entrance of a suburban dwelling-house is left unobstructed, with any entrance gate unlocked, and without indication by notice or otherwise that entry by visitors or some class of visitors is forbidden, the law will imply a licence in favour of any member of the public to go on that path or driveway for any legitimate purpose that in itself involves no interference with the occupier’s possession or injury to the person or property of the occupier, or the occupier’s guests. But as Brennan J pointed out in his dissenting opinion in Halliday, there are cases in which it is necessary to recognise that when it is police officers who seek to enter the land of another there is “a contest between public authority and the security of private dwellings”. 46. Argument in this Court about an asserted common law justification for the police officers remaining in the appellant’s flat necessarily referred to general statements made in decided cases, about “preventing” a breach of the peace, especially some statements on that subject made in the decision of a Divisional Court of the King’s Bench Division in Thomas v Sawkins. Particular emphasis was given to two statements in that case. First, Avory J said that “[t]o prevent … a breach of the peace the police were entitled to enter and to remain on the premises”. Secondly, Lord Hewart CJ said that “a police officer has ex virtute officii full right [to enter and remain on private premises] when he has reasonable ground for believing that an offence is imminent or is likely to be committed”. 47. It is to be noted that neither of these statements countenances an entry or remaining on premises for investigating whether a breach of the peace has occurred or determining [page 575]

whether one is threatened or imminent. Nothing else that was said in Thomas v Sawkins would support such a power and no reference was made to any decision that would cast the power so widely. Rather, the focus of what was said in Thomas v Sawkins was upon prevention of a breach of the peace, not upon any power of investigation. … 48. [W]hen it is said that a police officer may enter premises to “prevent” a breach of the peace, it is necessary to examine what is meant by “prevent” and what exactly is the power of entry that is contemplated. Is the power to enter one which permits forcible entry? Does preventing a breach of the peace extend beyond moral suasion to include arrest? Is the preventing of a breach of the peace that is contemplated directed ultimately to prevention by arrest? … 50. Whatever may be the ambit of the power of police (or of a member of the public) to enter premises to prevent a breach of the peace, that power of entry does not extend to entry for the purposes of investigating whether there has been a breach of the peace or determining whether one is threatened. … 52. Both parties in the present case accepted that police officers in New South Wales are duty bound to “keep the peace”. A statutory source of that duty was not identified in argument but it may be that it is to be found in the then provisions of regs 8 and 9 of the Police Regulation 2000 (NSW), coupled with ss 6 and 201 of the Police Act. Regulation 8 prescribed a form of oath or affirmation to be taken by a police officer under s 13 of the Police Act. The prescribed form of oath or affirmation contained a promise to “cause Her Majesty’s peace to be kept and preserved”, and a promise by the declarant to “prevent to the best of my power all offences against that peace”. Regulation 9(1) provided that police officers were “to comply strictly with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them”. Section 6 of the Police Act stated the mission and functions of the Police Service. Those functions included providing police services for New South Wales and “police services” was defined in s 6(3) as including “services by way of prevention and detection of crime” and “the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way”. And as noted earlier, s 201 of the Police

Act made it an offence to neglect or refuse to carry out any lawful duty as a police officer. 53. It is not necessary to decide whether it is these provisions that obliged police officers in New South Wales to keep the peace. It is sufficient for present purposes to accept, without deciding, that at the time of the events giving rise to this litigation New South Wales police officers were bound to “keep the peace”. But in the present matter, by the time police went to the appellant’s flat, there was no continuing breach of the peace and nothing in the evidence of what happened thereafter suggested that, but for the police officers not leaving the flat when asked to do so, any further breach of the peace was threatened or expected, let alone imminent. However broadly understood may be the notion of a duty or right to take reasonable steps to make a person who is breaching or threatening to breach the peace refrain from doing so, that duty or right was not engaged in this case. It was not engaged because, by the time police arrived at the appellant’s flat there was no continuing or threatened breach of the peace. And no breach of the peace was later committed or threatened before the eruption of the violent struggle that culminated in the appellant’s arrest. 54. It follows that the continued presence of police officers in the appellant’s flat, after he had asked them to go and a reasonable time for them to leave had elapsed, could not be justified as directed to preventing a breach of the peace. No other form of common law justification for remaining in the appellant’s flat was suggested. … [Heydon J dissented. Appeal allowed. Matter remitted to the Court of Appeal for further consideration of issues raised.]

[page 576]

Expanding powers 11.23 Search warrants are not to be executed at night (that is between 9 pm and 6 am) unless the issuing magistrate has specifically authorised that the warrant may be executed at night (LEPRA s 72). In Carroll v Mijovich (1991) 25 NSWLR 441, Kirby P said (at 452):

Execution of warrants by night has a particular dread to it. The pre-dawn bang on the door has associations with the activities of authoritarian states and their oppressive instrumentalities. Doubtless, such warrants are sometimes needed. But the reason why specific authority for execution by night is required by Parliament must not be overlooked. Raids in the small hours intimidate sleeping people. They alarm children and neighbours. They have the potential to be particularly humiliating, as individuals struggle from their beds in various states of undress or unpreparedness. Such humiliating actions are to be conserved to cases of the clearest, proved necessity. The fact that ‘by day’ starts at 6 am gives a wide leeway for lawful execution of warrants before most people have gone to work but after the special alarm of a midnight pre-dawn raid has passed. Normally we can leave such conduct to societies where authority is governed by different standards. …

11.24 Once we might also have said that allowing police or other state authorities to take people from the street and hold them, without letting their lawyers or their loved ones know they are in custody, were also ‘activities of authoritarian states and their oppressive instrumentalities’, but such powers now exist in Australia. The Australian Security Intelligence Organisation (ASIO) can obtain warrants to access computers, use listening devices, use concealed tracking devices and inspect postal articles (Australian Security Intelligence Organisation Act 1979 (Cth) ss 25A–27). ASIO may also obtain a warrant to permit the detention of a person for questioning. A warrant can be issued that allows ASIO to detain any person for up to seven days. The warrant may be issued where the issuing authority is satisfied that such questioning will ‘substantially assist the collection of intelligence that is important in relation to a terrorism offence’. The person detained need not be suspected of any offence, only that he or she has information of interest to ASIO. Once detained under a warrant, ASIO may (but need not) tell someone (for example, a lawyer or the detained

person’s family) that the person has been detained. A person detained may be questioned and commits an offence if he or she does not answer these questions (Australian Security Intelligence Organisation Act ss 34A–34ZZ). These provisions were initially supposed to lapse in July 2016, but have since been extended until September 2018 (Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 s 33). The Terrorism (Police Powers) Amendment (Investigative Detention) Act 2016 (NSW) commenced in May 2016. Under the provisions of this Act a police officer may, without a warrant, arrest, detain and question a ‘terrorism suspect’ for up to four days, if the terrorist act concerned occurred in the last 28 days or the police officer has ‘reasonable grounds’ to suspect that the person is involved in planning an act that could occur in the next 14 days (s 25E). A review must be undertaken every 12 hours by a senior police officer as to whether the detention should continue. A Supreme Court judge can extend the detention period beyond the initial period in increments of seven days, up to a total of 14 days (s 25I). [page 577] 11.25 The ‘war on terror’ and anti-terrorism legislation reflect a fundamental shift in the traditional balance between civil liberties and the power of the state and its security, intelligence and police forces by dramatically reducing the fundamental freedoms outlined above. While discussion of this radical shift is beyond the scope of this text, it must be emphasised that the increase in invasive police and security organisation powers, and the number of warrants with severe and draconian consequences, make the courts’ maintenance of strict compliance with law all the more important for the protection of the ordinary citizen’s civil rights.

COMMENCING PROCEEDINGS 11.26 Having observed or investigated an alleged crime, the police must decide whether they will prosecute someone and with what offence. Proceedings are commenced by a court attendance notice which is served on the accused and filed in court. The service of a court attendance notice may or may not be accompanied by an arrest. The various steps to bring a person to court are shown in Flow Chart 11-1 at 11.3 above. 11.27 The Criminal Procedure Act 1986 s 175(3) provides that a court attendance notice must: (a) describe the offence, (b) briefly state the particulars of the alleged offence, (c) contain the name of the prosecutor, (d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail, (e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person. A court attendance notice may be issued when police observe a criminal offence being committed or, having investigated a matter, they have formed an opinion that an offence has been committed by an identified person.

Arrest without warrant 11.28 Often the first step in any criminal proceeding is the arrest of the suspected person. This allows police to take the

person into custody where he or she can be interviewed, subject to other investigation procedures, and, if necessary, issued with a court attendance notice. Police — and in fact any citizen — may arrest a person without a warrant. The power to arrest without warrant represents a significant threat to liberty and is strictly limited by law. Deane J in Donaldson v Broomby (1982) 40 ALR 525 stated: Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary

[page 578] arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable. Where the Parliament has legislated so as to define those circumstances, neither legal principle nor considerations of public interest commend or support a search among the shadows of earlier subordinate legislation for the means of evading the constraints upon the interference with the liberty of the subject which the Parliament has imposed.

11.29 The Parliament of New South Wales has legislated to define when a police officer or other person may arrest without warrant. The relevant powers are set out in LEPRA as follows: 99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the police officer suspects on reasonable grounds that the person is committing or has committed an

offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons: (i)

to stop the person committing or repeating the offence or committing another offence,

(ii)

to stop the person fleeing from a police officer or from the location of the offence,

(iii)

to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,

(iv)

to ensure that the person appears before a court in relation to the offence,

(v)

to obtain property in the possession of the person that is connected with the offence,

(vi)

to preserve evidence of the offence or prevent the fabrication of evidence,

(vii)

to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,

(viii) to protect the safety or welfare of any person (including the person arrested), (ix)

because of the nature and seriousness of the offence.

(2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant. (3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law.

Note. The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer — see section 105. (4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.

[page 579] (5) This section does not authorise a person to be arrested for an offence for which the person has already been tried. (6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.

11.30 Section 99 deals with arrest by police. Section 100 gives all citizens a right to arrest. 100 Power of other persons to arrest without warrant (1) A person (other than a police officer) may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

11.31 Merely because an arrest is lawful, that is, the preconditions set out in s 99 or s 100 have been met, it does not

follow that the arrest is appropriate or proper. In DPP v Carr (2002) 127 A Crim R 151, Smart AJ stated (at [35]): This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant’s name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded.

11.32 The above comments notwithstanding, not all arrests for minor offences are improper. Whether an arrest is justified depends on the facts and the circumstances observed by the arresting officer. DPP v AM (2006) 161 A Crim R 219; [2006] NSWSC 348 NSW Supreme Court [This was an application to set aside a magistrate’s order dismissing counts of ‘resist officer’ and ‘assault officer’ brought against the defendant, who had been arrested for offensive language. The age of the defendant was unknown to the police officers at the time of the arrest. She was one of a group of five persons who were asked to move on from the vicinity of a shopping complex by four police called to the shopping complex after a broken window was reported. There was no suggestion that the defendant had broken the window. As the two remaining police officers were departing the scene in [page 580] their police car, the group returned and the defendant called out, ‘Fuck you. Fuck off pigs’. One of the police officers spoke to one of

the 18-year-old males in the group. The defendant approached the police officers and swore again. One police officer, Constable Molyneux, in her statement, referred to the fact that, at this point, she could see people coming in and out of the complex and, at that time, asked the defendant her name and the defendant replied, ‘Get fucked. I’m not telling you’. Constable Molyneux then reached for the defendant’s bag. The defendant responded, ‘Fuck off. You’re not getting it’. The defendant lunged at Constable Molyneux and grabbed the bag. Constable Molyneux turned to the defendant and said, ‘This is your final warning. You need to move on and stop using offensive language’. The defendant replied, ‘Get fucked, you pig’. Constable Molyneux then arrested the defendant. Another member of the group intervened, calling out to the defendant to run away and the defendant allegedly ran off. She was subsequently apprehended and allegedly then committed the ‘assault police’ offence.] Hall J: … 21 [T]he fundamental principle and approach is that identified by Barr J. in Director of Public Prosecutions (NSW) v CAD & Ors [2003] NSWSC 196, wherein it was stated (at paragraph [7]): The law about the arrest of and the commencement of criminal proceedings against persons, especially children, for minor offences is uncontroversial. Arrest should be reserved for circumstances in which it is clearly necessary: Lake v Dobson (Supreme Court of NSW, Court of Appeal, unreported 19 December 1980). It is inappropriate to arrest when service of a summons will suffice: Fleet v District Court [1999] NSWCA 363. It is inappropriate for powers of arrest to be used for minor offences where the defendant’s name and address are known, where there is no risk of his departing and where there is no reason to believe that the summons will not be effective: Daemar v Corporate Affairs Commission (Supreme Court of NSW, Court of Appeal, unreported 4 September 1990); Director of Public Prosecutions v Carr [2002] NSWSC 194. …

22 In CAD (supra), Barr J. stated (at paragraph [8]) that these principles apply all the more when any person suspected of having committed an offence is a child. His Honour there observed that although it makes no reference to arrest and does not purport to limit the powers of arrest in a proper case, s.8 of the Children (Criminal Proceedings) Act provides that a criminal prosecution should not be commenced against a child other than by summons or attendance notice. … 48 In determining whether the arrest was “improper”, the relevant facts and circumstances include: The fact that Constable Molyneux did not know the identity of the defendant. The fact that Constable Molyneux did not know the place of residence of the defendant or possess any other identifying information. The fact that the defendant refused, when requested, to divulge information as to her identity. The defendant’s persistence in offending conduct in a public place (offensive language) directed at police including, in particular, the arresting officer. The absence of any evidence that Constable Molyneux knew that the defendant was a minor at the time of the arrest. The fact that the situation up to the point of arrest was a reasonably dynamic one. 49 … The question as to whether the arrest was unnecessary and therefore “improper” is one to be answered with due regard to the general principle that an arrest of a young [page 581] person is to be avoided wherever possible and instead a court attendance notice be utilised for bringing an alleged offender before a court. Additionally, where the alleged offence or offences is/are of a minor nature, that is a matter central to the determination as to whether an arrest of an alleged offender is proper or not.

50 In the present case, the issue as to whether further questioning, in particular, of the older female who was present with the group, would have been productive in ascertaining the identity of the defendant is not entirely clear. It is possible that further inquiry may have produced sufficient information as to identity. However, the limited evidence before the magistrate, does not, in my opinion, establish that that was more likely than not. … 52 In the present matter, the learned magistrate found that the arrest was “unnecessary” without any elaboration as to the reason(s) or basis for that conclusion. Nonetheless, the magistrate proceeded to express the opinion that, on the basis of that conclusion, “an impropriety”, within s.138(1)(b) of the Evidence Act had been established. 53 … According to Constable Molyneux, the defendant made offensive statements on four separate occasions, namely, “Fuck you pigs”, “Fuck you, fuck off dogs”, “Get fucked, I’m not telling you” (the latter in response to the question “What’s your name?”) and “Get fucked you pig”. A final warning had been given by Constable Molyneux to the defendant to move on and stop using offensive language prior to the last mentioned use of offensive language by her. 54 Constable Molyneux … alleged that after the defendant started walking away, the defendant turned towards her “using two open hands continuously lashed out at me. I could not grab hold of her arms. Constable Thomas then came over and assisted me …”. This was the basis of the assault officer charge. 55 In the defendant’s submissions, it was observed that Constable Molyneux’s actions in grabbing hold of the defendant’s handbag was an unlawful act. At the time of doing so, Constable Thomas is alleged to have said, “we just need some identification and then you can leave”. The defendant is alleged to have resisted, stating “fuck off, you’re not getting it”. The defendant and another one of the group is then said to have lunged at Constable Molyneux and grabbed the bag. On Constable Molyneux’s version of events, it was after this episode that she issued a final warning to the defendant upon which the defendant turned to her and made the fourth offensive statement as recorded above. It was when

Constable Molyneux placed her hand on the defendant’s left arm and stated that she was under arrest that another of the group came between Constable Thomas and Constable Molyneux and told the defendant to run. It was then that the defendant is said to have run up the steps towards Morrison’s Arcade. 56 In the present case, after the multiple statements by the defendant containing offensive language were made, there is no clear evidence of an escalation in physical violence, although it may be said that Constable Molyneux’s unlawful action in taking hold of the handbag exacerbated events. However, on the evidence before the magistrate, the circumstances that may be said to have led to the defendant’s arrest (unlike in Carr) was the combination of: the continuing conduct of the defendant consisting of her repeated offensive statements; the defendant’s refusal to desist from such conduct following the warning given to her; the defendant’s refusal and lack of co-operation in identifying herself to the police officer; [page 582] the dynamic nature of the events surrounding the defendant’s conduct as it progressed; the defendant’s reaction to what was indicated to be a final warning to move on and stop using offensive language by making the further statement to Constable Molyneux “Get fucked you pig”. 57 In these circumstances, the question becomes whether the alleged offences following the arrest and the evidence concerning them can be said to have stemmed from an ill-advised and unnecessary arrest or whether it can be said to have been within the bounds of what might be considered to be an appropriate or permissible response to the continuing and wilful conduct of the defendant. … 61 On the facts and in the circumstances of the present matter, notwithstanding that the offence to which the defendant pleaded guilty was at the lower end of the criminal scale, I do not consider

that the arrest was improper within the meaning of s.138(1). The factual circumstances indicate that the complainant was faced with a defiant juvenile who persisted in a course of conduct, notwithstanding that initially police had allowed the group, including the defendant, to move on, and subsequently issued a warning to the defendant, which was ignored. The request made to the defendant to identify herself was met by a further offensive statement by way of adamant refusal. As circumstances unfolded up to the point of arrest and as demonstrated by the defendant’s subsequent actions in running away, there was present a risk of flight as in the case of CAD (supra). I do not consider that the statement of the female witness tendered before the magistrate established to the requisite degree of clarity that information of a relevant identifying nature had in fact been provided to police, or, in particular, drawn to Constable Molyneux’s attention before the arrest. Given that that witness was not called to give evidence, the magistrate, in my opinion, was required to accept the otherwise uncontradicted evidence of Constable Molyneux. In the circumstances leading to the arrest, I do not consider that the failure of the police officer to embark upon an inquiry as to the defendant’s age in itself establishes impropriety. [Order made setting aside the magistrate’s orders.]

11.33 Once a person is lawfully arrested, the police may conduct further investigations and either release the person or continue with the prosecution. If the police decide to continue with the prosecution, they will prepare a court attendance notice and then consider whether to release the accused on bail, or refuse bail and keep the accused in custody. These procedures are discussed further at 11.70–11.96.

Arrest with warrant 11.34 In circumstances where police have investigated a crime and formed the view that a known person has committed an offence, they may obtain a warrant (that is, a court order) authorising any police officer to arrest that

person. This is particularly important where, for example, police investigate a crime and form a view that a certain person has committed the crime, but they do not know that person’s whereabouts. If they obtain a warrant, then any police officer, even one in another city, who finds that person can make the arrest. To obtain a warrant, police issue a court attendance notice naming the accused which they then file in court. They may then apply to an authorised officer (that is, [page 583] a court registrar or a person employed by the AttorneyGeneral’s department and authorised to issue warrants) to issue a warrant authorising the arrest of the suspected person (Criminal Procedure Act 1986 s 181). The authorised officer may issue the warrant if he or she ‘is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so’ (s 181(2)). As we have seen with search warrants, this section imposes an obligation on the authorised officer to consider any material that is put before the court by the applicant and satisfy himself or herself that the issue of the warrant is justified. A magistrate may issue an arrest warrant if the person fails to appear at court when directed by a court attendance notice (Criminal Procedure Act 1986 s 181(3A)). 11.35 An arrest warrant must (Criminal Procedure Act 1986 s 236(2)): (a) name or describe the person to be arrested, (b) briefly state the subject-matter of the court attendance notice or reason for the arrest, (c) order that the person be arrested and brought before the Judge, Magistrate or authorised officer to be dealt with according to law or to give evidence or produce documents or things, as appropriate.

Section 236 further provides: (3) A warrant to arrest a person must be signed by the person issuing it and sealed with the seal of the court to which the person issuing it is attached. (4) However, an authorised officer may sign a warrant issued under [the] Act if a Judge or Magistrate has directed in writing that the warrant be issued.

11.36 Once issued, the arrest warrant authorises any police officer (and any other person authorised by law to enforce an arrest warrant (Criminal Procedure Act 1986 s 238)) to arrest the person named in the warrant without any need for that officer to form an opinion as to whether or not the person named on the warrant has committed an offence; that is, the warrant is sufficient authority to justify the arrest.

Definition of arrest 11.37 Having determined that police may arrest a person either with or without a warrant, we now need to consider what an arrest is and other legal issues surrounding an arrest. 11.38 At common law, an arrest is established when a person is deprived of his or her liberty. The Court of Appeal (UK) in R v Inwood [1973] 2 All ER 645 at 649 said: There is no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man.

11.39 In Licciardello v R, the accused was charged with escaping from lawful custody after police had attempted to arrest him. He could not be guilty of the offence charged if he had not been arrested. [page 584] Licciardello v R

(2012) 6 ACTLR 233; 219 A Crim R 445; [2012] ACTCA 16 Supreme Court of the Australian Capital Territory Court of Appeal [The appellant failed to obey a traffic control signal. Police stopped him and he admitted that he was a disqualified driver and that he had just been released from gaol for driving offences. Senior Constable Young told the appellant that ‘he would be coming with us’. The appellant said ‘I can’t go back, I can’t go back to gaol, please don’t arrest me’. The Senior Constable then said ‘You will be coming with us’. The appellant replied ‘Does that mean I’m under arrest?’ to which Senior Constable Young replied ‘Yes, you are under arrest. You will have to accompany us to the City Station’. The appellant then ran away. In due course the appellant was located and charged with escaping from lawful custody after being arrested.] Higgins CJ, Penfold and Cowdroy JJ: 26. … Issue 3: Had the appellant been “arrested”? 27. In Alderson v Booth [1969] 2 QB 216, Lord Parker CJ stated at 220–221: There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying “I arrest you” without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear, as it seems to me, that an arrest is constituted where any form of words is used which in the circumstances of the case were calculated to bring to the defendant’s notice and did bring to the defendant’s notice, that he was under compulsion and thereafter he submitted to that compulsion. (Emphasis added) 28. The decision in Alderson v Booth was followed by the New South Wales Court of Criminal Appeal in R v O’Donoghue (1988) 34 A Crim R 397, where Hunt J (as he then was) stated at 401:

An arrest occurs whenever it is made plain by what is said and done by the police officer that the suspect is no longer a free person. Words may be sufficient: Alderson v Booth [1969] 2 QB 216 at 220–221; 53 Cr App R 301 at 303–304; but they are not always necessary — what must be done is what is reasonable in the circumstances: Tims v John Lewis & Co Ltd [1951] 2 KB 459 at 466; Wheatley v Lodge [1971] 1 WLR 29 at 36; [1971] 1 All ER 173 at 178. 29. In Wilson v New South Wales [2010] NSWCA 333; (2010) 278 ALR 74, two sheriffs attempted to enforce a property seizure order at the appellant’s home. Mr Wilson ordered the sheriffs to leave and an altercation on the veranda of the house followed in which a sheriff was assaulted. Following this altercation, Mr Wilson reentered his house. The sheriff told Mr Wilson words to the effect “you’ve assaulted me and you’re under arrest”. Mr Wilson then locked the door and walked further back into his house. The sheriffs left the property. Subsequently, the sheriffs re-entered the property to prevent Mr Wilson from leaving and there was a further altercation. Mr Wilson subsequently sued, inter alia, for trespass to land and trespass to person. In the New South Wales Court of Appeal, Hodgson JA stated at 97: [57] It was submitted for the state that Mr Davies had lawfully arrested Mr Wilson on the verandah, and was entitled to re-enter the property to effect the detention of Mr Wilson pursuant to that arrest, or (in the alternative) that there was a process of lawful arrest of Mr Wilson commenced on the verandah, and Mr Davies was entitled to re-enter the property to complete that process. [58] It was submitted for Mr Wilson that Mr Davies had not arrested Mr Wilson on the verandah, because there had not been either an act of arrest (such as touching) or submission [page 585] by Mr Wilson, referring to Hatzinikolaou v Snape (1989) 97 FLR 86 (Hatzinikolaou); and that the occasion of the second entry was not “immediately after” the alleged

assault by Mr Wilson, and so could not be justified by s 352(1)(a) of the Crimes Act [1900 (ACT)] [see now LEPRA s 99]. [59] In my opinion, there was not a completed arrest of Mr Wilson on the verandah. The requirements for an arrest are (1) communication of intention to make an arrest, and (2) a sufficient act of arrest or submission. [60] As regards (1), if the arrest is to be lawful, this should normally include informing the person that he or she is arrested and informing the person of the reason for the arrest: Christie v Leachinsky [1947] UKHL 2; [1947] AC 573 at 587–93; [1947] UKHL 2; [1947] 1 All ER 567 at 572–5 (Christie). However, this is not necessary if the circumstances make these things obvious, or if the person arrested prevents it: Christie at AC 587–593; All ER 572– 5; R v Hoar [1965] NSWR 1167; Woodley v Boyd [2001] NSWCA 35 at [38] (Woodley). [61] As regards (2), a touching on the shoulder can be a sufficient act of arrest, and even this is not necessary if the arrested person submits: Alderson v Booth [1969] 2 QB 216 at 220, Hatzinikolaou, Woodley at [38]. [62] In this case, on the findings of the primary judge, on the verandah Mr Davies clearly conveyed to Mr Wilson his intention to arrest him and the reason for the arrest, telling him “you assaulted me and you’re under arrest”. However, by this time Mr Wilson was inside the house. There was no physical contact that could amount to an act of arrest, and no submission. Rather, Mr Wilson then went further inside the house. In my opinion, in the absence of a physical act of arrest and of submission, there was not an arrest completed at this stage. 30. In the present appeal, the evidence at trial establishes that the constables informed the appellant that he was under arrest and of the reason for his being under arrest. However no physical restraint was imposed on the appellant. Furthermore, the appellant did not submit to being arrested, as his actions in departing the scene make clear. Accordingly, the second element necessary to complete an arrest has not been established. Upon these facts it cannot be said

that the appellant was guilty of escaping arrest, as the arrest had not been effected prior to the appellant fleeing. [Conviction for escape lawful custody quashed and verdict of acquittal entered.]

Statement of reason for arrest 11.40 Apart from making it clear that a person is no longer free to go, an arresting officer must also tell the person why he or she is being arrested. This requirement was discussed in State of New South Wales v Delly. State of New South Wales v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303 NSW Court of Appeal [This was a civil action for damages brought by the plaintiff/respondent. The following is a summary of the facts as stated by Tobias JA: Paul Harris was murdered in the respondent’s apartment after she had been ordered into her bedroom by her de facto partner, Mark. She then returned to the lounge room, where she ordered the removal of the body. The next day she was arrested with others and taken into custody at Queanbeyan Police Station, at 8.30 am. She was not told she was under arrest or the reason for the arrest, notwithstanding that it was police procedure not only to advise a person when he or she was arrested of the fact that they had been arrested, but also to inform the person [page 586] of the reason for the arrest. The respondent was taken to an office where she remained in the company of two police officers. No one told her that she could leave the room and she felt she had to stay there because she had been asked to come down to the police station. She said that, if she had been given a choice, she would have left the room. The primary judge held that she was satisfied that the evidence established that the respondent was not free to leave until 11 am. Having carried out some research on the subject, by 11 am Superintendent Little had formed the view that the respondent could not be convicted of the charge of accessory after the fact for a crime committed by her partner. By this time

Superintendent Little had also ascertained certain facts, including that the respondent had been sent to her bedroom whilst the actual murder had been committed. Accordingly, at about 11 am Superintendent Little decided not to charge the respondent and was of the opinion that she was then no longer in custody. However, he did not inform her of his decision nor did he in evidence provide any reason for not doing so. The primary judge found that Superintendent Little’s change of mind had no effect on the respondent’s status. She was satisfied that the respondent was detained by the police while she remained in the anti-theft room up until about 12 noon when the respondent was taken by police officers to her home. The respondent was then returned to the police station. At around 12.30 pm the respondent was given some money by Superintendent Little and told that she could leave the police station for the purpose of obtaining a sandwich. The primary judge was satisfied that, at this stage, the respondent was no longer being detained by the police. Although she might have felt that she had to return after obtaining some lunch, her Honour was not persuaded that there was anything done by a police officer which would reasonably have given her this impression in circumstances where she had agreed to return to the police station to undergo an interview. The trial judge awarded the plaintiff $35,000 compensatory (including aggravated) damages and $25,000 exemplary damages.] Ipp JA: … 2 Although the police did not inform the respondent that she was under arrest, it was common ground that she was arrested and taken into custody. 3 As Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78 holds, Christie v Leachinsky [1947] UKHL 2; [1947] AC 573 reflects the common law in New South Wales in regard to the obligation to notify an arrested person of the reasons for the arrest (see Priestley JA, with whom Sheller and Beazley JJA agreed, at 84, [24]). … 7 There is a difference in the words used [in Christie] by Viscount Simon [at 587–588] and Lord du Parcq [at 600] on the one hand and Lord Simonds [at 591–593] on the other. The former require the arrested person to be told the “charge” or the “crime” or the

“offence” for which the arrest is made. The latter states that, while the arrested person must know the “reason of arrest”, the arresting police officer need not “formulate any charge at all, much less the charge which may ultimately be found in the indictment”. Lord Simonds points out that the “charge” will depend on a “view” that is taken at a later time. According to his Lordship, arrested persons are entitled to know what are the facts said to constitute the crime for which they are arrested. 8 Both approaches accommodate the proposition that it is not the law that an arrested person must be given detailed particulars of the case against him or her. “He must be told why he is being arrested. In some cases it will be necessary for the officer to give more facts than in others”: Taylor v Chief Constable of Thames Valley Police [2004] EWCA Civ 858; [2004] 1 WLR 3155 (at 3166, [35]) per Clarke LJ (with whom Sedley LJ and Sir Andrew Morritt VC agreed). … 9 The rationale underlying the rule that persons are entitled to know why they are being arrested is that they should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, [page 587] or to give some other exculpatory reason, and to assert that further inquiries may save them from the consequences of false accusation. … 10 For my part, I prefer the approach of Lord Simonds. The notion that the lawfulness of the arrest depends on the police officer specifying the charge (and not on informing the person being arrested of the facts which have given rise to the arrest) goes further than is necessary to protect the position of the person arrested. Further, in my view, the notion is impractical and ignores the practical reality that the arresting officer may not be qualified or in a position to formulate the appropriate charge. 11 The rationale for the rule is to enable arrested persons to know in substance what acts they are alleged to have perpetrated so that they can explain their conduct. That rationale is satisfied by Lord Simonds’ requirements. The exception recognised by Viscount

Simon, namely, that arrested persons need be given no information when the circumstances of the arrest are such that they should know why they are being arrested, is consistent with the notion that the particular offence need not be specified (as is implied by Lord Simonds’ observations). In practice, moreover, the charge on which the arrested person faces trial is often formulated long after the arrest. 12 The approach of Lord Simonds has been followed in R v Kane [2001] NSWCCA 150. … 14 In my view, s 352(2) of the Crimes Act 1900 (NSW) (as in force in 1998) is not helpful. The fact that, by that section, an arresting officer was required to suspect that the arrested person had committed an offence punishable under any Act does not necessarily lead to an inference that the officer was required to inform the person of the particular offence the officer had in mind. … 17 I stress that it is the circumstances of the arrest that govern the issue, not the subjective knowledge of the arrested person as to how the crime was committed. In Christie, Viscount Simon (at 586 to 587) said: The propositions laid down in the text books are supported by judicial decisions, to some of which I will briefly refer. What is particularly noteworthy is that in many of these decisions an exception to the general rule is explained and justified, and this indirectly establishes what the general rule is … In Rex v Howarth (1828) 1 Mood 207, it is laid down that there is no need to tell a man why he is being arrested when he must, in the circumstances of the arrest, know the reason already. [My emphasis.] 18 In the present case, the fact that the respondent may have known of the circumstances under which Mr Harris was murdered is irrelevant. That was not part of the circumstances of the arrest. The respondent was not caught red-handed and the crime for which she was arrested was not patent. The police said nothing to her from which she could infer or deduce why she was being arrested. The situation differed from that in R v Kane. …

100 Basten JA: … The failure of the arresting officer to identify the grounds of the Respondent’s arrest must be tested against general law principles explained in Christie v Leachinsky [1947] UKHL 2; [1947] AC 573, it not being suggested that those principles have been abrogated or modified by statute in this State. 101 The suggestion that the need to state the grounds of the arrest was not engaged because they were obvious from circumstances well-known to the person being arrested is falsified by Superintendent Little’s own evidence … The grounds depended on a matter believed by the police officer, but which later proved to be false. The exception depends on that which is obvious to the suspect. An uncommunicated erroneous belief of the arresting officer will rarely satisfy that test. A precondition to a valid arrest was therefore absent and the Respondent was wrongly deprived of her liberty. [In a separate judgment, Tobias JA agreed with Ipp JA and Basten JA that the appeal should be upheld with respect to the award of exemplary damages but otherwise dismissed.]

[page 588] 11.41 In Johnstone v State of New South Wales (2010) 202 A Crim R 422 the accused was arrested after failing to give his name and address to police, contrary to Transport Administration (Railway Offences) Regulation 1994. The issue was whether or not the officers had communicated to him the true reason for the arrest. After analysing the common law cases, including State of New South Wales v Delly, Beazley JA said: 56 … What must be determined is whether what a person was told was sufficient, so as to be informed of the true reason for the arrest. What is required will depend on the particular circumstances and will range from not needing to be told anything to being told both the facts which have given the police officer cause for suspicion that an offence has been committed, as well as what that suspected offence is. 57 The question whether what the person was told was sufficient “has to be assessed objectively having regard to the

information which is reasonably available to the officer”: Abbassy and another v Commissioner of Police of the Metropolis [1990] 1 All ER 193 per Woolf LJ at 197. His Lordship referred to Taylor v Chief Constable of Thames Valley Police at 3164. In Taylor, Clarke LJ considered that the “best statement” of these principles was to be found in Fox v UK [1990] ECHR 18; (1991) 13 EHRR 157, where the European Court of Human Rights stated: … any person arrested must be told in simple, nontechnical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness … Whether the content … of the information conveyed [is] sufficient is be assessed in each case according to its [own] special features. A similar approach had been taken by Manse LJ in Wilson v Chief Constable of the Lancashire Constabulary [2000] All ER (D) 1949. 58 The reference in Fox v UK to the need to state the “legal grounds” for arrest undoubtedly derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 5(2), which provides that a person must be told the reason for the arrest and any charge against him. The common law principle does not require a statement of the charge. Nonetheless, there may be circumstances in which the crime has to be indicated. Thus, in State of New South Wales v Delly, each of their Honours considered that the respondent needed to be told that she was being arrested in relation to the murder and why that was so.

11.42 In Hamod v State of NSW [2011] NSWCA 375 Beazley JA (with whom Giles and Whealy JJA agreed) referred to the decisions in State of New South Wales v Delly (11.40), and Johnstone v State of New South Wales (above) and said: … those judgments establish that it is not necessary for the

precise charge to be told to the arrested person at the time of the arrest. Rather, the arrested person must be told why they are being arrested in terms that disclose why the person’s liberty has been restrained. This is sometimes described as requiring that the arrested person be told the “true reason” for the arrest, or the “substance of the reason” for the arrest. The law does not require that the arrested person be given detailed particulars of why he or she is arrested. How much detail is required depends upon the circumstances of the particular case.

11.43 In Johnson v Reeves, below, Blow J had to consider, for the purposes of the Criminal Code of Tasmania, when it was ‘reasonably practicable’ to inform a person of the reason for the arrest. Of particular interest is the argument that it was not practicable to tell the person as he would not have heard the statement in any event. [page 589] Johnson v Reeves (2004) 13 Tas R 150; [2004] TASSC 110 Supreme Court of Tasmania Blow J: 1. … The prosecution case was essentially as follows. Two police officers called at a residence and knocked at the front door. The respondent came out and pushed one of the officers, Constable Butler, thereby committing the offence of assaulting a police officer in the execution of his duty. … The respondent ran into the street where he began yelling and screaming at the top of his voice, jumping around, and trying to incite the police officers to fight him, thereby committing the offence of disorderly conduct. … He was approached by the police officers for the purpose of arresting him and taking him away. He resisted Constable Butler by kicking out at him, trying to punch him, putting his legs out, and trying to stop him from placing him in the divisional van, thereby committing the offence of resisting a police officer in the execution of his duty. … The respondent was taken in the divisional van to the Hobart Police Station where he spat mucus and saliva in the mouth and

eyes of Constable Butler, thereby committing the offence of assaulting a police officer in the execution of his duty. … … 3. The officers were certainly entitled to arrest the respondent. … The question arose, though, whether the arrest was unlawful as a result of the reasons for the arrest not having been stated to the respondent. … 9. … [The respondent] was asked: Do you recall the police officers ever saying words to the effect of “You’re under arrest” to you? He replied: No I can’t remember that. They could have said it. But I wouldn’t have heard it. There was too much. Probably me. “Leave me alone and me eyes are burning out.” I probably wouldn’t be able to hear myself at that time after I felt me eyes go. He was referring to the fact that Constable Butler, in the course of effecting the arrest, sprayed the respondent with OC spray after it became apparent that the respondent might be going to spit towards his face — something that the respondent did not do then, but did do later at the police station, according to the comments of the learned magistrate. 10. … Is it ever “practicable” for an arresting officer to inform a person of the cause of that person’s arrest if for some reason that person will not hear or will not understand? In the context of the common law, a similar question was considered in England in Tims v John Lewis & Co Ltd [1951] 2 KB 459. In that case, Lord Goddard CJ considered the decision of the House of Lords in Christie v Leachinsky [1947] AC 573, and said the following at 467: I do not think that the decision of the House of Lords means that if an officer is arresting a deaf person, he has to possess himself of an ear-trumpet, or something of that

sort, or shout at the top of his voice. He must do what a reasonable person would do in the circumstances. As I said during the course of the argument, if a police officer who is not able to speak French has to arrest a Frenchman who does not speak English, he can only tell him in English for what he is arresting him, and take him to the police station until some officer who does speak the language or some interpreter comes to explain the charge on which he has been arrested to the person arrested. In stating the charge or on suspicion of what crime a person is arrested, the person arresting without warrant has only to act reasonably. [page 590] 11. Having regard to the sorts of situations contemplated by Lord Goddard CJ in that case, it is my view that, if it is pointless to inform or attempt to inform an arrested person of the cause of the arrest, it is not “practicable” to do so. … 12. The learned magistrate did not consider the question whether it was pointless for the arresting officers to inform the respondent of the cause of his arrest. With the benefit of hindsight and the opportunity to consider the authorities, I think that she should have, and that she erred in not considering the question of pointlessness. I therefore think that the appropriate course is to allow the motion to review and to remit the matter to the Magistrates Court for the re-determination of the matter. … [Appeal allowed, orders dismissing the counts set aside and the matter remitted for further hearing.]

Entry into premises to effect an arrest 11.44 Police may enter premises to effect an arrest (LEPRA s 10) and may also use force where necessary (ss 230 and 231). The legislation now provides for safeguards on the exercise of police powers. Section 202 provides: (1) A police officer who exercises a power to which this Part applies must provide the following to the person subject to the exercise of the power:

(a) evidence that the police officer is a police officer (unless the police officer is in uniform), (b) the name of the police officer and his or her place of duty, (c) the reason for the exercise of the power. (2) A police officer must comply with this section: (a) as soon as it is reasonably practicable to do so …

One can imagine circumstances where it is not possible for police to comply with s 202(1) before entering premises to make an arrest. State of NSW v McCarthy [2015] NSWCA 153 NSW Court of Appeal [This was an appeal from a decision of the District Court in which the appellant, the State of NSW, was held liable for damages for a trespass to land when four police officers entered premises occupied by the respondent. At the time, s 201 of LEPRA provided: (1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following: (a) evidence that the police officer is a police officer (unless the police officer is in uniform), (b) the name of the police officer and his or her place of duty, (c) the reason for the exercise of the power. … [page 591] (2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3) (g), (i) or (j)): (a) if it is practicable to do so, before or at the time of exercising the power, or (b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power. …

In this case it was not practicable to provide the information required by s 201(1) before, or at the time of, the exercise of the power to enter. The question became whether a failure to provide that information ‘as soon as is reasonably practicable after exercising the power’, as required by s 201(2)(b) converted what had been a lawful entry into an unlawful entry. The Court of Appeal concluded that lawful exercise of power under s 9 or s 10 of LEPRA did not depend on later compliance with s 201(2)(b). Readers should note that s 201was repealed in November 2014 and replaced by the current s 202 so references in the judgment to s 201(2)(b) should now be considered as references to s 202(2)(a) which is extracted above.] Meagher JA: The application of s 201 of LEPRA 68 Having concluded that the entry of each of the officers was lawfully authorised under ss 9 or 10 … the operation of s 201 falls for consideration. In circumstances where it was not practicable to provide the information in s 201(1) before or at the time of the exercise of the power, the question which the notice of contention raises is whether the conditions which had to be satisfied for the lawful exercise of those powers included the later compliance with s 201(1) … 76 Turning then to the language of s 201 … [it] identifies information and the person to whom it must be provided. Subsection (2) states when subs (1) must be complied with. Where it is not practicable to do so before or at the time of exercise, subs(1) is to be complied with “as soon as is reasonably practicable after exercising the power” … As Leeming JA observed in Poidevin v Semaan at [25] it is an “explicit premise of the section … that there will be some occasions when a compulsive power referred to in s 201(3) may be exercised without being preceded or accompanied by the provision of [the] information” … 78 The language of s 201(2)(b) [but see now s 202(2)(a)] expressly provides that in a case like the present the information in s 201(1) must be provided after the exercise of the power. The lawfulness of that exercise is not expressed to be contingent on the subsequent provision of information where that information could not reasonably have been provided earlier. To construe the provision

as having that consequence would make the lawfulness of the conduct of the police officers uncertain. That uncertainty could continue for some time, depending on subsequent events … 79 The construction adopted reflects the position under the common law in relation to the provision of information as a condition of the lawful exercise of police powers of arrest and entry. In doing so it gives effect to the rationale for such a requirement, being that the person who is the subject of the exercise have the opportunity to respond, explain and, where appropriate, co-operate. [Appeal allowed and judgment and orders set aside.]

11.45 The case law before the passage of LEPRA also provided that police could enter premises but required police to announce their desire to enter before using force. It is likely that the ‘exigent circumstances’ discussed in Lippl v Haines will still justify entry without first complying with s 202. [page 592] Lippl v Haines (1989) 18 NSWLR 620 NSW Court of Appeal [This was a civil action for damages arising out of a raid on the Lippl home. Police had been observing the home in the hope of discovering Mr Lippl’s son-in-law (Fry) and an escapee (Mathews) whom they thought would be with Fry. Fry was also wanted in relation to an armed robbery in Queensland. Armed police had forced their way into the house as they thought Fry might have been there. On forcing their way into the home, Lippl was struck with a gun and knocked to the floor. Other members of the household were also there. The police claimed that their actions were justified in attempting to arrest Fry. Lippl was partially successful in his original action for damages. Both the police and Lippl sought to appeal but only Lippl was granted leave.] Hope AJA: … As long ago as 1604 in Semayne’s case (1604) 5 Co Rep 9Ia; 77 ER 194, although it was recognised that in general

terms the house of everyone is his castle, it was held that there were qualifications of which one was stated in this resolution: 3. In all cases where the King is party, the sheriff may break the house, either to arrest or do other execution of the King’s process, if he cannot otherwise enter. But he ought first to signify the cause of his coming, and make request to open the doors. In reinforcement of this condition, it was resolved (5 Co Rep at 93a; 77 ER at 199): … admitting that the sheriff after denial made might have broke the house, as the plaintiff’s counsel pretend he might, then it follows that he has not done his duty, for it doth not appear, that he made any request to open the door of the house. These principles have been repeated over the centuries. … Many of the cases were referred to by Brennan J in Halliday v Nevill (1984) 15 CLR 1. … Brennan J dissented, his conclusion being based on his construction of the provisions of the Victorian Crimes (Powers of Arrest) Act 1972. However, before dealing with the statute, his Honour considered the common law powers of entry and powers of entry exercisable by persons who have a statutory power to make an arrest. His Honour discussed, inter alia, the cases to which I have referred and said (at 11) that the common law to arrest on a criminal charge can be exercised as of right on private as well as public property, in the home of the fugitive offender or in the home of his friends, that no legal licence is necessary to enter if no force be needed, and that in some cases force may be used. Thereafter he referred with apparent approval to the authorities for the qualification to the right to enter forcibly to which I have referred, quoting the third resolution in Semayne’s case. … In Halliday v Nevill, … Brennan J … said (at 16–17): In principle, a statute which creates a general power to arrest in substitution for the common law power to arrest ought not to be read down to preclude the exercise of the statutory power on private property. Whether the person

seeking to arrest another for a criminal offence is exercising a common law or statutory power, the case is one ‘when the King is party’ and when the public interest in the prosecution of crime prevails over private possessory interests in land. The Crimes (Powers of Arrest) Act 1972 codified the general law governing powers of arrest but the code made no reference to powers of entry and search for the purpose of arrest. It is improbable that in 1972 Parliament intended that the powers conferred by ss 458 and 459 of the Act should not carry with them the same authority to enter and remain on private premises to effect an arrest as were carried by the common law powers to arrest, subject to the common law restrictions on forcible entry. It is true that s 352 enlarges the common law power to arrest to some extent and that it was not simply a codification of the common law. However a significant part of its provisions simply restates the common law. It is difficult to imagine that Parliament [page 593] intended that a constable, in the exercise of these powers, did not have the same right to enter that he would have had had he been exercising his common law power to arrest. Having regard to the nature of the legislation and its purpose, I have concluded … that a constable or other person exercising a power of arrest under s 352 has the same powers of entry as he would have had if he were exercising a common law power to arrest. It matters little for this purpose whether the powers are imported by necessary implication into the terms of the statute, or whether the common law power is treated as applying to the statutory power to arrest. In either case the person effecting the arrest has the same powers of entry as those given by the common law, but in my opinion has no greater powers. … If that be so, there was no power to enter in the present case unless the conditions were satisfied. As I have already indicated, in my opinion the relevant police officers did not hold any opinion that Mathews and/or Fry were in fact in the plaintiff’s house; they believed that he might be there. … There is no common law power to enter a house forcibly because it is believed that a fugitive may

be in the house, and in my opinion no such power is given by s 352. As to the second condition, it is conceded that it was not satisfied, whether or not [the police officer] called out ‘Police here’ when he was entering the house. Nor is it in issue that the entry was a forcible one. Consequently the second condition was not satisfied unless the circumstances were exigent. In my opinion the circumstances were not exigent. The plaintiff was known to [the police] as a respectable and law-abiding citizen, although they believed he might act in a way they considered to be rash or impulsive if presented with danger. However this circumstance, which was passed on to the police involved in the incident, made the method of forcible entry which was adopted all the more dangerous. That the breaking open of outer doors to effect an arrest is dangerous is both stated in the Police Instructions and obvious. … The bursting into a dwelling-house, the intruders being dressed in jeans and other casual clothes and carrying weapons, is almost bound to create confusion, and to result in some active measures being taken by the occupants of the house. There would be always a strong possibility that such an entry would be resisted. It does not appear why police do not carry some form of identification on these occasions to establish that they are police officers, but subject to the evidence of police officers that they said ‘Police’, there was no indication of who they were. The occupants all said they did not hear the word ‘Police’ spoken until after the assault had taken place and, even if it were spoken, in the confusion and scuffling that went on, with shouts that the occupants should get on to the floor, attempts to prevent the intrusion by force might well be expected. As the police instructions say, such an entry should only be resorted to in extreme cases. It would not be practicable to list all possible exigent circumstances. Chasing a person who has committed a felony into his house could be one, as obviously could be a case where someone was at a window or other aperture with a gun, firing or ready to fire at police outside. But in the present case, with the knowledge that the plaintiff was the householder, it was in my opinion far more dangerous to enter the house in the way it was entered than if by means of a hailer or otherwise the police had

stated why they were there and sought entry. The fact was of course that had this happened, no trouble would have ensued, because in fact neither Mathews nor Fry were there, but even if one or both were there, I do not regard the circumstances as falling within the exigency exception. Hence the entry was unlawful even if the first condition had been satisfied, and the plaintiff established his claim in trespass. … [His Honour then went on to consider the question of whether there had been an assault and unlawful imprisonment. His Honour found for the plaintiff on counts of assault and trespass. The question of damages was referred to the Master for assessment. Gleeson CJ and Meagher JA agreed with Hope AJA.]

[page 594] 11.46 In R v O’Neill (2001) 122 A Crim R 510 the NSW Court of Criminal Appeal found that police calling out ‘Leslie, it’s the police. Open the door, we need to talk to you’ and later ‘Leslie, this is the police. Open the door or I will open it’ did not constitute sufficient notice of their intention to force the doors to effect an arrest. Mason P said at [25]: Unless the “exigent circumstances” exception applies (as to which see Lippl at 636–7) or unless statute provides evidence to the contrary, the constable proposing to force entry in order to execute coercive process (cf Plenty [Plenty v Dillon (1991) 171 CLR 635] at 641, 650–1) such as a search or arrest warrant or to effect an arrest must state a lawful reason for entry without permission. The “cause” or “purpose” that must be announced by the officer and rejected by the resident is a basis for entry without consent. Gleeson CJ refers to this in Lippl as the officer’s “authority”.

11.47 In R v Merritt [2002] NSWCCA 368 the Court had to consider a case where police entered a person’s caravan to arrest him for driving offences, despite being told they could not come in without a warrant. The Court of Criminal Appeal held at [9]: The fact that a door to private premises is open does not give

anybody, including police, authority or licence to enter against the will of the occupant. Here, the appellant’s girlfriend had made it perfectly clear that no authority or licence was given. “Forcible entry” does not necessarily connote breaking or smashing of part of the premises. It connotes entry against the wishes or the will of the occupant. In those terms that entry was plainly forcible.

Force used against a person to effect an arrest 11.48 Police may use reasonable force to effect an arrest (LEPRA s 231). What is reasonable force was discussed in R v Turner by the Full Bench of the Supreme Court of Victoria, interpreting s 459 of the Crimes Act 1958 (Vic). R v Turner [1962] VR 30 Full Court, Supreme Court of Victoria [Turner was convicted of murder after he shot and killed one Docherty. Turner had been keeping watch on his car after a number of incidents of stealing from cars in the neighbourhood. Turner had waited in his car with a .22 pistol. He saw an arm enter his car and he called out. The intruder, Docherty, ran and was chased by Turner, who called out ‘Stop or I’ll shoot’. Turner fired one shot that he intended to pass over Docherty’s head, but it struck and killed him. Turner appealed on the basis that his actions were lawful in attempting to arrest Docherty under s 459 of the Crimes Act 1958 (Vic).] The Court (O’Bryan, Dean and Hudson JJ) [Their Honours set out s 459 and continued]: … It will be noticed that the right to apprehend is a limited one. It only arises if a person is found committing any one of a very limited class of offences, or an indictable offence in the night. To justify action under this section the arresting party must prove that [page 595] the person arrested or to be arrested was found committing the offence. The arrestor acts at his peril. If he can only prove reasonable suspicion but fails to prove that the arrested party was

actually committing the offence, the arrest is unlawful. His Honour so directed the jury. But although he did so direct them, he did not ask the jury whether the applicant on the night in question did find the deceased actually committing the offence of attempted larceny. It may be said, therefore, that there was no finding in the applicant’s favour on this issue of fact. However, we think that, in view of the … facts as they appeared at trial, this application for leave to appeal against conviction should be considered on the basis that the jury if asked would have found that the applicant did in the early morning of the shooting find the deceased in the act of committing the offence of attempting to steal from his car. The Solicitor-General did not contend otherwise. If that was the case, s 459 gave the applicant the right to apprehend the deceased and to take him and deliver him to a member of the police force. His Honour took the view that, as a matter of law, s 459 did not justify the applicant in firing a bullet in the direction of the offender for the purpose of effecting his arrest. This is clear from his charge. In the discussion with counsel which preceded their speeches to the jury, his Honour said that, in his view, a person who is endeavouring to apprehend a person who has committed a misdemeanour is not entitled to resort to the use of a gun for the purpose of effecting his arrest. We find it impossible to read that limitation into s 459. … If the section connotes the right to use force, the force which the section connotes is, in our opinion, such force as is reasonably necessary to apprehend and to take and deliver him as provided by the section. This is not only a reasonable interpretation of the section, but it is analogous to the powers of arrest for felony at common law. When a felony is committed in the presence of a member of the public, he may use reasonable force to apprehend the offender or for the prevention of the felony. What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (ie the commission of the felony or the escape of the felon). See R v McKay [1957] VR 560; [1957] ALR 648.

The Solicitor-General rightly pointed out that McKay’s case was one in which the felony was committed in the presence of the person who did the killing. But s 459 also relates solely to offences committed in the presence of the arresting party. But the SolicitorGeneral then added that, in the case of a felony committed in one’s presence, there is a duty to make reasonable endeavours to prevent the commission of the felony and to arrest the felon and that it is in aid of that duty which is imposed by the law that the law gives the right to use reasonable force. He contended, therefore, as s 459 imposes no duty to arrest but merely gives the right to arrest, there is no analogy to the common law right to effectuate an arrest by force. We do not find any authoritative support for the proposition that the right to use force to arrest a felon or that the degree of force that can be used depends upon whether there is a duty or merely a power to arrest. … The passage cited in the judgment of Smith J, in McKay’s case, [1957] VR 560, at p 572–3; [1957] ALR 648, from the report of the Criminal Code Bill Commission of 1879 indicates not only that force may be used to apprehend a felon whether or not the felony was committed in the presence of the arrestor, but also that the degree of force which may be used is in both cases measured by the necessity of the occasion and the relation between the force used and the gravity of the occasion. It is worth [page 596] repeating here the passage so cited: ‘We take one great principle of the common law to be, that though it sanctions the defence of a man’s person, liberty, and property against illegal violence, and permits the use of force to prevent crimes, to preserve the public peace, and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by less violent means; and that the mischief done by, or which might reasonably be anticipated from the force used, is not disproportioned to the injury or mischief which it is intended to prevent.’ … If we are right then in interpreting s 459 so that it connotes the right to use force in effecting an arrest, the degree of force allowed would appear to be reasonable force. The analogy to the power to

arrest in the case of felonies committed in the presence of the arresting party is close. The section is of very long standing. At common law there was no power to arrest without warrant for misdemeanours and this power would seem to have been given at a stage in the development of the law when there were many indictable offences as serious as some felonies. It extended the power to arrest without warrant to a number of offences which were not felonies and it was probably intended to carry with it a right to use force to effectuate the arrest co-extensive with the power to effect an arrest for felonies committed in the presence of the arresting party. It follows that the learned trial judge’s direction that as a matter of law the applicant had no justification or excuse for using a lethal weapon, even by way of threat to effect the arrest of the deceased, was wrong. It does not follow, of course, that in every case a person in the exercise of the power of arrest conferred by the section will be justified in using a lethal weapon or any particular degree of force which a jury might think reasonable. The issue of justification like that of self-defence can be submitted to the jury only when the evidence is sufficient fairly to raise the issue: R v Howe (1958) 100 CLR 448; [1958] ALR 753. That question is a question of law to be determined by the jury. It is wrong, however, to say categorically that the use of a lethal weapon to effect an arrest for a misdemeanour can in no circumstances be justified. In our opinion, it was open to the jury to hold that in the particular circumstances of this case the applicant was justified in firing towards (not at) the person whom he was trying to arrest. It was, therefore, a question for the jury to say whether such action was reasonable in the circumstances, ie whether the applicant did not believe on reasonable grounds that what he did was necessary for the purpose of apprehending the deceased and whether a reasonable person in the position of the applicant would have regarded what he did as out of all proportion to the mischief he sought to prevent, ie the escape of the deceased. As the jury was not satisfied that the applicant’s action was unreasonable in this sense, he was entitled to a verdict of not guilty. We, therefore, are of the opinion that the application for leave to appeal against conviction should be granted, the appeal should be

allowed and the conviction below quashed and the accused should be discharged.

Purpose of arrest 11.49 At common law, the only legitimate purpose of an arrest was to bring a person before a court to answer an allegation of wrongdoing. It was not permitted to arrest a person simply to allow police to ask questions (Bales v Parmeter (1935) 35 SR (NSW) 182) or to investigate that person’s possible involvement in a criminal offence. 11.50 Police do not have to take an arrested person before a court immediately, but as soon as is reasonably practicable. In Williams v R (1986) 161 CLR 278; 66 ALR 385 [page 597] the applicant was arrested on 17 May 1984 shortly before 6 am for offences committed at Scottsdale (in Tasmania). It was practicable to charge him with those offences and bring him before a magistrate by 2.15 pm on 17 May 1984. He was not in fact dealt with by a magistrate until 2.15 pm on the following day, 18 May 1984 (although the delay from 10 am on that day until 2.15 pm was apparently due to a problem with court administration rather than any fault on the part of the police). Williams was held in police custody for some 28 hours before being brought before a justice or magistrate, and he was questioned for about seven hours during this period. The question which confronted the trial judge was whether the police were acting consistently with the requirement that Williams be brought before a justice as soon as was practicable, having regard to the fact that they postponed doing so in order to interrogate him about the various offences, including offences for which he was not arrested. Mason and Brennan JJ held that questioning and other forms of investigation, such as seeking further evidence and taking the detained person to places where the police might find

further evidence, are insufficient purposes for arresting and detaining a person. They allowed Williams’ appeal. Dawson J agreed. Gibbs CJ dissented on one issue, holding that police are permitted to take the arrested person to different locations after arrest and detain him or her for long enough to dispel or confirm their suspicions. However, the following statement of broad principle from Gibbs CJ is consistent with that of the entire court. Having identified various provisions of the Tasmanian Criminal Code that authorised arrest with or without a warrant, Gibbs CJ said (at 283): These provisions are not inconsistent. They require the person making the arrest to bring the arrested person before a justice in as short a time as is reasonably practicable. … Many cases in Australia have established that there is no power to detain a citizen merely for the purpose of questioning him and that the desire to question an arrested person does not in itself justify a delay in bringing him before a justice.

11.51 The obligation on police to bring an arrested person before the court as soon as practicable, and not merely at a time convenient to them, was confirmed by the NSW Court of Appeal in A-G (NSW) v Dean (1990) 20 NSWLR 650. Here Gleeson CJ, Kirby P and Priestley JA said, at 653: The Court emphasises the importance of the legal obligation where a person has been arrested and charged that he or she should be taken as soon as practicable before a justice: Bales v Parmeter (1935) 35 SR (NSW) 182 at 189; R v Zorad (1990) 19 NSWLR 91 at 98; 47 A Crim R 211 at 218. It is highly desirable, for the preservation of the proper relationship between the police and the judiciary, that arrangements should be made for this to be done, where necessary, during weekends and after hours. The obligation is one of abiding importance. It is to be observed at all times and not simply during usual working hours of weekdays. This requirement recognises the ordinary right to liberty of the citizen by ensuring that an accused person is transferred as soon as practicable after being charged by the executive branch of

government to the judicial branch of government where the question of bail can be independently considered.

11.52 In Nasr v State of New South Wales, below, the Court of Appeal had cause to consider the factors that determine whether a period of detention before release on bail was ‘reasonable’. In this case the appellants, Nakhl Nasr and his son George Nasr, were arrested and held at the police station for about six hours before being [page 598] released on bail. Ultimately all the charges against them were withdrawn by the prosecution and they sued for damages alleging, amongst other matters, false imprisonment in part due to the delay in releasing them. They were unsuccessful in the District Court and appealed to the Court of Appeal. Nasr v State of New South Wales (2007) 170 A Crim R 78; [2007] NSWCA 101 NSW Court of Appeal Campbell JA: … 70 At the time that the appellants were arrested, section 352 Crimes Act 1900 conferred a power of arrest. [His Honour set out s 352, which has since been repealed, and replaced by LEPRA s 99, and continued:] … 73 In Bales v Parmeter (1935) 35 SR (NSW) 182, Jordan CJ said, at 189: the statute, like the common law, authorises him only to take the person so arrested before a justice to be dealt with according to law, and to do so without unreasonable delay and by the most reasonably direct route: Clarke v Bailey (33 SR 303). Any detention which is reasonably necessary until a magistrate can be obtained is, of course, lawful, but detention which extends beyond this cannot be justified under the common law or statutory power. …

76 In Williams v The Queen (1986) 161 CLR 278 the High Court held that the Tasmanian equivalent of section 352 Crimes Act gave no power to question an arrested person about the offence for which he had been arrested or other offences, and did not make justifiable a delay which resulted only from the fact that the arresting officer wished to question him. That situation had been modified, at the time of the events in question in this case, by Part 10A Crimes Act 1900, which conferred on the police certain limited power to detain a person who is under arrest for the purpose of certain investigations, and to that extent to delay the bringing of that person before a justice. 77 It was a consequence of the common law, as re-enacted in section 352 Crimes Act, that if a person was arrested after the hours during which courts sit, that person could be detained overnight until it was reasonably practicable to bring that person before the court — which would be, usually, first thing the next day. In operating that way, section 352 recognised that the duty to bring the arrested person “before an authorised Justice to be dealt with according to law” was one imposed on the arresting constable, and that the hours during which an authorised Justice was available conditioned what was reasonably practicable for the arresting constable to do in performance of that duty. Thus, in Williams, Wilson and Dawson JJ expressly recognised, at 313 that: What is reasonable will depend upon all the circumstances, including the availability of a justice. 78 Similarly, Gibbs CJ, at 283, said: … what is reasonably practicable in a particular case is a question of fact. The answer to that question will depend on, amongst other things, the time when, the place in which and the conditions under which the arrest was made. It will be necessary to consider when and where a justice could have been found, whether police officers and transport were available and how long it would reasonably have taken for the necessary paperwork to be completed. 79 Gibbs CJ went on to give examples of other factors that might influence what counted as a “reasonable time” that might have

extended beyond what the majority in Williams would have approved, but the passage I have quoted seems to me to be consistent with the views expressed by other judges in Williams. [page 599] 80 Section 18 Bail Act adds to the obligation of the arresting constable to bring the arrested person before an authorised Justice without unreasonable delay, an obligation on “the proper officer” to take the steps required by section 18 to enable a decision to be made about whether the charged person should be granted bail. If performance of the section 18 obligation results in the arrested person being freed after being granted bail, the obligation on the arresting constable to bring the arrested person before an authorised Justice ceases. … 85 The submission that searching, photographing, allowing time for consultation with a solicitor, preparation of charges, preparation of fact sheets, and review and acceptance of the charges should not have taken over six hours is a submission that presupposes that the reasonableness of the time of detention of each appellant should be assessed on the basis that the police officers involved, acting reasonably, ought to have devoted time and attention to procuring the release of each appellant as promptly as was practicable, regardless of any other demands upon their time and attention. That presupposition is incorrect. 86 The obligation that is imposed by section 18 Bail Act is not an obligation imposed upon police officers generally. Rather, so far as any particular person in custody is concerned, it is an obligation imposed upon the particular person who is “the proper officer” at the time in question. What is reasonably practicable for that officer depends in part upon what resources are available to that officer at the time in question, and what other demands there are upon the time and attention of that officer, and the relative urgency of those demands. … 88 … Michaels v The Queen (1995) 184 CLR 117 … concerned a power arising under section 212 of the Customs Act 1901 (Cth) enabling an arrested person to be detained “until such time as he can without undue delay be taken before a Justice” … the joint judgment of Brennan, Deane, Toohey and McHugh JJ said, at 123:

… undue delay should be seen as a composite expression which accepts that there may be an interval of time before a person is brought before a justice, so long as the lapse of time which ensues is not excessive in the circumstances. Undue delay has been treated as synonymous with the statutory expressions “as soon as is practicable” in s 34a(1) of the Justices Act 1959 (Tas) and “without delay” in s 303(1) of the Criminal Code (Tas) respectively and with the common law expression “as soon as is reasonably possible” Williams v The Queen (1986) 161 CLR 278 at 300, per Mason and Brennan JJ; at 313, per Wilson and Dawson JJ. 89 … In my view, just as external constraints on an arresting police officer, like when a Justice is available, and other demands on his time, or lack of resources, are taken into account in deciding whether the arrested person has been brought before an authorised Justice in a reasonable time, so such factors can be taken into account in deciding whether the proper officer has taken the steps required by section 18 of the Bail Act as soon as reasonably practicable. 90 It might sometimes happen that the resources available to a proper officer, at the time concerning which a question arises about whether that officer has done what was reasonably practicable in complying with section 18, include the possibility of diverting manpower from other places or tasks. It is a question of fact in any case whether other manpower was available to be diverted, if called for, and whether the procedures that needed to be gone through in processing any particular arrested person are such that the allocation of extra manpower would in fact have speeded up their processing. … 93 This ground of appeal fails. … [Beazley and Hodgson JJA agreed with Campbell JA. Appeal dismissed.]

[page 600]

Search incidental to arrest

11.53 As indicated in Williams, above at 11.50, the purpose of arrest is to take a person before a court to answer an allegation of criminal conduct. In the absence of specific statutory provisions, police do not have the power to detain individuals in order to ask them questions, obtain evidence against them or search them. Police do have powers both at common law and under statute to search a person once he or she has been arrested. Section 353A of the Crimes Act 1900, considered in Clarke v Bailey (extracted below) was one section that allowed police to search a person who was in ‘lawful custody’. In Clarke v Bailey the police detained a person and then took him to a hotel in order to conduct a search. Davidson J (with whom Street CJ and James J agreed) discussed the purpose of arrest and then went on to discuss when a search of a person who has been arrested is authorised. The court held that there were common law powers that allowed police to search a person immediately upon his or her arrest. Clarke v Bailey (1933) 33 SR (NSW) 303; [1933] NSWStRp 22 NSW Supreme Court [Bailey, a police officer, arrested Clarke for an offence under the gaming laws. Rather than take Clarke to the police station, Bailey took him to a nearby hotel in order to conduct a search of his person. Clarke sought damages for unlawful arrest and detention and was successful. Bailey appealed.] Davidson J [with whom Street CJ and James J agreed]: … Section 353A of the [Crimes] Act provides that, where a person is in lawful custody upon a charge of committing any crime or offence, any constable may search his person and take from him anything found upon his person. But the terms of the three sub-sections to this section indicate clearly that, the intention of the Legislature was directed to the time when an arrested person is in custody after a formal charge had been laid against him, and it contemplates search not merely by the arresting constable but also by any other in the police station.

Apart from the statute, however, there was, at common law, a right of search, the necessity of which depended on the circumstances in each case. It was based upon the principle of safety in some cases, and in others on the interests of justice, in order that evidence of crime might not be destroyed or lost: Dillon v O’Brien and Davis (20 LR Ir 300). Moreover, s 352, by requiring the constable to bring the arrested person to the police station with any property found upon him, clearly appears to authorise a search for such a purpose. [As the jury had found there was no justification for taking Clarke to the hotel, the appeal was dismissed.]

[page 601] 11.54 The common law powers discussed in Clarke v Bailey, above, have now been set out in statute. Sections 23 and 24 of LEPRA provide that police may search a person upon arrest or when the person is in lawful custody. 23 Power to carry out search on arrest (1) A police officer who arrests a person for an offence or under a warrant, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything: (a) that would present a danger to a person, or (b) that could be used to assist a person to escape from lawful custody, or (c) that is a thing with respect to which an offence has been committed, or (d) that is a thing that will provide evidence of the commission of an offence, or (e) that was used, or is intended to be used, in or in connection with the commission of an offence. (2) A police officer who arrests a person for the purpose of taking the person into lawful custody, or who is present

at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything: (a) that would present a danger to a person, or (b) that could be used to assist a person to escape from lawful custody. (3) A police officer may seize and detain a thing found in a search if it is a thing of a kind referred to in subsection (1) or (2). (4) Nothing in this section limits section 24. 24 Power to carry out search of person in custody A police officer may search a person who is in lawful custody (whether at a police station or at any other place) and seize and detain anything found on that search.

Detention for further investigation after arrest 11.55 As a result of the judgment in Williams v R (1986) 161 CLR 278 (11.50), the New South Wales Parliament introduced provisions to allow the police to detain a person whilst they complete their investigations. Today, Pt 9 of LEPRA authorises police in New South Wales to detain a person while investigations are completed, provided the person is brought before a court within a reasonable time, but in any event not more than four hours, after being arrested. In R v Dalley (2002) 132 A Crim R 169, Simpson J gave what her Honour described as ‘a short, but not inaccurate, summary of the relevant provisions’. Her Honour said: 23. … a police officer who has lawfully arrested a person … may detain that person for the purpose of investigating his/her involvement in the commission of an offence. … The police officer may detain such a person only for a period (called “the investigation period”) that is reasonable having regard to all the circumstances, and, in any event, for a

maximum period of four hours. That maximum period may be extended (by up to eight hours), but only on the authority of a warrant (“a detention warrant”) issued

[page 602] by an authorised justice. Application for such a warrant must be made before the expiration of the investigation period. 24. Because the investigation period is not rigidly defined, but is such period as is reasonable in all the circumstances (although with a statutory maximum of four hours), a judgment has to be made by a police officer wishing to apply to an authorised justice for a detention warrant as to what is, in all the circumstances, a reasonable time. Section [116] catalogues (non-exhaustively) some circumstances relevant to that judgment. 25. To complicate the judgment further … time for the calculation of “the investigation period” ceases to run (that is, the investigation period is suspended or deferred) in order to allow certain things to happen, such as conveying the detained person to “the nearest premises where facilities are available for conducting investigative procedures”; or to allow communication with third parties; or to allow the detained person to receive medical attention. 28. [The legislation] casts on a police officer identified as “the custody manager” (meaning a police officer having responsibility for the care, control and safety of a person detained in a police station) an obligation to give, both orally and in writing, certain information to any person detained under the provisions of … [Pt 9]. The custody manager is to caution the person that he/she does not have to do or say anything, but that anything he/she says or does may be used in evidence; and to give him/her a summary of the provisions of … [Pt 9], including reference to the fact that the maximum investigation period may be extended beyond four hours by application to an authorised justice, and that the detained person, or his/her legal representative, is entitled to make representations to the authorised justice about the application.

11.56 Although Pt 9 of LEPRA authorises police to detain a person and conduct certain investigative procedures before the person is taken before a court, it does not authorise arrest simply for the purpose of conducting an investigation. It does not ‘confer any power to arrest a person, or to detain a person who has not been lawfully arrested’ (s 113(1)). An arrest must still be justified by the issue of a warrant or by a power to arrest without warrant. Once an arrest has been lawfully made, then, and only then, the person may be detained while further investigation takes place. If police do not have sufficient evidence to justify an arrest, they cannot rely on Pt 9 to detain the person while they obtain that evidence. The key issue is the intention of the police. If the arresting officer believes that he or she has sufficient evidence to charge the accused, then the arrest is lawful and the accused may be detained under Pt 9 (R v Kane [2001] NSWCCA 150). But if they do not, at the time of arrest, have a clear intention to bring the accused before a court, then the arrest is not lawful and neither is any subsequent detention under Pt 9 (R v Dungay). R v Dungay (2001) 126 A Crim R 216; [2001] NSWCCA 443 NSW Court of Criminal Appeal [The accused was convicted of sexual assault. On his appeal he argued, inter alia, that his arrest was unlawful because at the time of the arrest the police did not intend to charge him with the offence, rather they merely sought to detain him under Pt 10A of the Crimes Act 1900 (compare Pt 9 of LEPRA) in order to complete their investigations.] [page 603] Ipp AJA: … 17. I turn now to the issue whether the arrest was unlawful because the purpose of the arrest was merely investigative. 18. The lawfulness of an arrest is to be determined by the common law as stated in Christie v Leachinsky: Adams v Kennedy (2000) 49

NSWLR 78. An arrest solely for the purposes of questioning a person or to obtain evidence is unlawful: Williams v R (1986) 161 CLR 278; R v Foster (1993) 67 ALJR 550. 19. The arresting officer must take the person arrested “before an authorised justice to be dealt with according to law”: s 352(1) of the Crimes Act. The combined effect of s 352 and the common law is that a person arrested without a warrant is to be taken before a justice to be dealt with according to law as soon as is reasonably practicable: R v Ainsworth (1991) 57 A Crim R 174. 20. Despite the fact that, in the voir dire, the legality of the arrest was challenged, the Crown led no evidence to the effect that there was any intention on the part of the arresting police officer or any other police officer to take the appellant before a justice or any other judicial officer so that he could be charged with the offence of which he was suspected of having committed. 21. Sergeant Kenny was the officer in charge who instructed Constable Senz to arrest the appellant. Sergeant Kenny told Senz that the appellant and the other men who had been seen together in a car should be arrested ‘so that we could detain them for the purpose of investigation’. Under cross-examination Sergeant Kenny agreed that he wanted the appellant arrested so that he could be taken to the Police Station and asked questions so as to assist the police in their further investigations. He made no mention of the appellant being arrested so that he could be taken before a magistrate. 22. Sergeant Kenny was also cross-examined as to whether, at any time while the appellant was in detention, he intended that the appellant be taken before a justice “or something like that”. Sergeant Kenny replied, “No, it wouldn’t have crossed my mind.” 23. In further answers to cross-examination Sergeant Kenny made it plain that he believed the police were entitled to arrest a suspected offender and detain him for up to four hours for the purposes of investigation without there being any intent on the part of the police to take the offender to a judicial officer to be dealt with according to law. This testimony supported the inference that, from the time of the appellant’s arrest until at least the interview, Sergeant Kenny never considered taking the appellant before a judicial officer.

24. The investigative purpose of the interview is also apparent from an examination thereof. Very few questions concerned the participation of the appellant in the events on the day in question. By far the majority of the questions were directed to ascertaining whether the appellant was able to cast any light on the involvement of others. 25. In my opinion, it is apparent from the evidence that the state of mind of the police was such that, from the time of the arrest to the completion of the interview, no relevant police officer had the intention of taking the appellant before a magistrate or justice at any time. This is a major point of distinction between this case and R v Kane [2001] NSWCCA 150 to which Ms Woodburne referred. In R v Kane the police officer concerned had such an intention from the moment of the arrest. 26. Accordingly, the police arrested the appellant solely for the purposes of investigating the complainant’s allegations and did not have any intention of taking him before a judicial officer. 27. During the course of the argument at the voir dire, counsel for the appellant submitted, as the judge remarked: That police are not permitted to arrest people for the sole purpose of questioning them. [page 604] His Honour accepted that there was “abundant authority to support that proposition” but appeared to consider that the point was answered by the finding that the police had reasonable cause to suspect that the appellant was involved in the alleged assault on the complainant. In this, the learned judge was plainly wrong. 28. The trial judge did not bear in mind that it is a requisite for a valid arrest that the arrest be for the purpose of taking the arrested person before a judicial officer to be dealt with according to law as soon as is reasonably practicable. As the arrest of the appellant was solely for investigative purposes, it was unlawful. 29. I appreciate that Pt 10A of the Crimes Act provides for the detention (for a limited period) of a person after arrest for the purposes of investigation. But such a lawful detention is dependent

upon a lawful arrest having been effected (see s 356B(1)(a) and s 356C(1) and (2)). [Ipp AJA considered the other issues raised on the appeal and concluded that the appeal should be allowed and a verdict of not guilty entered. Studdert and Greg James JJ agreed.]

11.57 Under Pt 9 of LEPRA, police are permitted to detain a person for the ‘investigation period’ (as defined in s 115) in order to undertake further investigation into the accused person’s guilt or innocence. Part 9 does not automatically allow a person to be detained for four hours. The investigation period ‘begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances’ (s 115). Following Williams v R (1986) 161 CLR 278 (see 11.50), the obligation on police to bring a person before a court did not require immediate transportation of the person to the court, but required consideration of what was ‘reasonable’. This remains the case, though there is now the statutory time limit of four hours (s 115(2)). What the statute does is to set out the factors that are to be taken into account in determining what is a reasonable time, and provide for time outs — that is, periods when the clock is not running (ss 116 and 117). The effect of these time outs is that a person may be detained for well in excess of four hours, but there are only four hours of productive investigation time. 11.58 If the police are unable to complete their investigations within the time allowed by the statute, they may apply to a court for a detention warrant which extends the detention period beyond four hours (s 118). When such a warrant is issued the investigation period is extended by the time specified in the warrant. 11.59 The investigation period provided for in Pt 9 of LEPRA ends once a person has been remanded in respect of the offence (s 110(4)).

SEARCH, IDENTIFICATION AND COLLECTION OF FORENSIC EXAMPLES AFTER ARREST Search 11.60 Section 24 of LEPRA provides that police may search any person who is in lawful custody. Where a police officer has the authority to conduct a search it may be a ‘frisk’ search or a ‘strip’ search, which are defined in ss 30 and 31 respectively. [page 605]

Medical examinations 11.61 Police have the power to arrange for the medical examination of a suspect where the person has been charged (not merely arrested) and there are reasonable grounds to suspect that such an examination may provide evidence of an offence (s 138). The precursor of this section was s 353A(2) of the Crimes Act. It was held that the earlier section was limited to an examination of what can be seen or observed by eye or touch, and so has been held to authorise the taking of handwriting samples (R v Knight (aka Black) (2001) 120 A Crim R 381) and making physical measurements of a person, but not the placing of water-soluble ink dots on the person for that purpose (Dickson v Commissioner of Police (1999) 48 NSWLR 156).

Collection of forensic samples 11.62 The Crimes (Forensic Procedures) Act 2000 (NSW) provides for samples, including hair, blood and saliva, to be taken to help establish whether persons are connected with

crimes and for various other reasons. Before a sample can be taken, either the informed consent of the person, an order of a senior police officer or the order of a magistrate or authorised justice is required. Exactly whose authority is required will depend on whether the procedure is an intimate or non-intimate forensic procedure, and whether the suspect is or is not under arrest, mentally competent or a child. Section 5 sets out in table form whose consent is required and when. Crimes (Forensic Procedures) Act 2000 5 How forensic procedures may be authorised in different circumstances The following table shows the circumstances in which a forensic procedure may be carried out on a suspect, and shows the provisions that authorise the carrying out of the procedure. Authority for forensic procedures Suspect’s status

Intimate forensic procedure or buccal swab

Non-intimate forensic procedure

1 Adult not under arrest

With informed consent under Part 3 By order of a Magistrate or an authorised justice under Part 5

With informed consent under Part 3 By order of a Magistrate or an authorised justice under Part 5

2 Adult under arrest

With informed consent under Part 3 By order of a Magistrate or an authorised justice under Part 5

With informed consent under Part 3 By order of a senior police officer under Part 4

3 Incapable person (whether or not under arrest)

By order of a Magistrate or an authorised justice under Part 5

By order of a Magistrate or an authorised justice under Part 5 [page 606]

Suspect’s status

Intimate forensic procedure or buccal swab

Non-intimate forensic procedure

4 Child at least 10 but under 18 (whether or not under arrest)

By order of a Magistrate or an authorised justice under Part 5

By order of a Magistrate or an authorised justice under Part 5

11.63 In Orban v Bayliss [2004] NSWSC 428, Simpson J said that the Crimes (Forensic Procedures) Act: 30. … conferred new and unprecedented powers upon, inter alia, magistrates that would have the result of compelling persons suspected of criminal offences (including those against whom charges have not been laid) to cooperate in the investigation of the crime(s) of which they are suspected, and to provide, from their own bodies, evidence which may be used against them (and which, of course, may also be used to exonerate them). The Parliament was, in my view, seeking to maintain a delicate balance between preserving the traditional rights of citizens and individuals, including those suspected of crime, to decline to participate in investigations or to cooperate with investigating authorities, and the overall interests of the community and of justice in facilitating the investigation of crime, and the administration of justice, in securing the conviction of the guilty and the non-prosecution or acquittal of the not guilty. The Act was a specific response to scientific and technological developments, but in the context of valued traditional civil liberties. 31. The conditions that must be met before an order can be

made demonstrate that the purpose of the legislation is not to enable investigating police (or other authorised persons) to identify a person as a suspect; it is to facilitate the procurement of evidence against a person who already is a suspect. 32. A forensic procedure (as defined in s 3) necessarily involves, to a greater or lesser extent, some invasion of the personal privacy and personal bodily integrity of the person concerned. The degree to which that balance to which I have referred will warrant the making of an order that will have the consequence of causing some degree of invasion of personal privacy and personal bodily integrity is made to depend upon the interaction of two things — firstly, the seriousness of the crime of which the person is suspected, and secondly, the degree of invasion of personal privacy or integrity.

Fingerprints and photographs 11.64 Forensic material includes fingerprints and photographs (Crimes (Forensic Procedures) Act 2000 s 3). A magistrate’s order is required to take forensic material from a child under the age of 18. On the other hand, under s 133 of LEPRA the police can take all particulars that are necessary to identify a person who is over the age of 14 and who is in lawful custody for any offence. The relationship between the Crimes (Forensic Procedures) Act 2000 and LEPRA was discussed in R v SA, DD and ES [2011] NSWCCA 60. [page 607] R v SA, DD and ES [2011] NSWCCA 60 NSW Court of Criminal Appeal [ES and SA were 15 at the time of their arrest, DD was 14. They were charged with causing grievous bodily harm with intent to cause grievous bodily harm following a violent assault in the victim’s home. Photographs of the accused were taken and used in a photoboard array to see if witnesses could identify them, and

fingerprints were taken to compare with fingerprints found at the crime scene. The trial judge ruled that the evidence of the fingerprints and photographs was inadmissible as the police had not complied with the Crimes (Forensic Procedures) Act 2000. The Crown appealed, arguing that the power to take the photographs and fingerprints was found in LEPRA and, having been obtained in accordance with the provisions of that Act, the evidence was admissible.] Blanch J [with whom McLellan CJ at CL and Hoeben J agreed]: 18. In the District Court and in these proceedings it is asserted the provisions of the CFPA [Crimes (Forensic Procedures) Act 2000] have the effect of modifying the LEPRA [Law Enforcement (Powers and Responsibilities) Act 2002] provisions and requiring the consent of a magistrate to be obtained before taking photographs or fingerprints for the purpose of identification. SECTION 133 of LEPRA 19. Section 133 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) is entitled “Power to take identification particulars” and provides: (1) A police officer may take or cause to be taken all particulars that are necessary to identify a person who is in lawful custody for any offence. (2) If a person is over the age of 14 years, the particulars may include the person’s photograph, finger-prints and palm-prints. 20. This section replaces s 353A(3) of the Crimes Act 1900 and in fact invites a comparison with s 353A(3) of the Crimes Act. Indeed the Explanatory Notes to the Law Enforcement (Powers and Responsibilities) Bill 2002 refers to Part 10 where s 133 appears and says: The provisions of the proposed Division re-enact existing New South Wales legislation. 21. In the Second Reading Speech by the Attorney General, it was said: Unless otherwise stated, the effect of the provisions is

intended to reflect the current meaning already provided in the statute books. 22. The wording of s 353A(3) was: (3) When a person is in lawful custody for any offence punishable on indictment or summary conviction, the officer in charge of police at the station where the person is so in custody may take or cause to be taken all such particulars as may be deemed necessary for the identification of such person, including, where the person is of or above the age of 14 years, the person’s photograph and finger-prints and palm-prints. 23. It is argued the provisions are not identical and that the provisions of the LEPRA should be interpreted more restrictively than the provisions of s 353A(3) have been … 25. [However] … it is clear it was never intended there be any change in the powers given to police … Effect should be given to the plain terms of the section of the Act and it should be given the same meaning as was given to s 353A(3) of the Crimes Act. [page 608] SECTION 353A(3) CRIMES ACT 1900 26. The settled law in this State relating to s 353A(3) of the Crimes Act 1900 was restated in R v McPhail (1988) 36 A Crim R 390 where Lee CJ at CL (Hunt and Campbell JJ agreeing) said at 398 and 399: The section [ie s 353A(3)] in defining the power of the officer to take finger prints etc, uses the expression ‘all such particulars as may be deemed necessary for the identification of such person’ and it is plain that this gives an officer a very wide discretion as to when particulars of identification can be required. The power of the police officer under the section is not limited to cases where he might suspect that identification will be in dispute at the trial but is available in every case where it is considered by him to be necessary for the identification of the accused in court in whatever circumstances that may arise.

27. In Carr v The Queen (1973) 172 CLR 662 the High Court said in refusing an application for special leave at page 663: The second limitation that is sought depends upon the same notion, namely, that the identification is for the purpose of identifying the person fingerprinted as a person who has been convicted and not for the purpose of identifying him with the offence. The Court of Criminal Appeal correctly rejected these contentions. 28. In Duffield v Police (No. 2) [1971] NZLR 710 the Court of Appeal in New Zealand was dealing with a statute which said: … a member of the police may … take or cause to be taken all such particulars as may be deemed necessary for the identification of that person including his photograph, fingerprints and footprints … 29. The Court at 712 said: At that point of time police officers would be unable to forecast with certainty what particularly might ultimately be needed on the day of trial to identify the offender. In addition, this section must be considered in relation to the general function of the police force in its broader aspects. 30. The equivalent Western Australian provision in s 50AA(1) of the Police Act 1892–2004 (WA) was that: … any officer or constable of the Police Force may take or cause to be taken all such particulars as he may think necessary or desirable for the identification of that person, including his photograph, measurements, fingerprints, and palmprints. 31. Justice Blaxell in Lackenby v Kirkman [2006] WASC 164 in interpreting that section said the purpose was: … obviously to allow fingerprints (or other identifying particulars) to be taken in certain circumstances without consent. A police officer can only take such fingerprints or cause them to be taken if he or she thinks the same are “necessary or desirable for the identification” of the

person. This involves the exercise of a discretion which is not governed by any objective criteria. So long as the officer bona fide considers that the fingerprints (or other particulars) are necessary or desirable for the purposes of identification, then the discretion will be validly exercised. 32. The decisions of Duffield v Police and R v Carr (1972) 1 NSWLR 608 were quoted with approval by Lee J in Fullerton v Commissioner of Police (1984) 1 NSWLR 159. 33. It is quite clear from these authorities that a broad interpretation was accepted in New South Wales of police powers under s 353A(3) of the Crimes Act 1900. It allowed the police to take fingerprints and photographs not only to establish the identity of a suspect but to use that evidence to prove the suspect had committed the crime. 34. The CFPA in s 112 states: This Act does not apply to the taking of photographs, hand prints, finger prints, foot prints or toe prints: [page 609] (a) from a suspect who is under 14 years of age if the suspect is in lawful custody as mentioned in section 136 of the Law Enforcement (Powers and Responsibilities) Act 2002, or (b) from a suspect who is at least 14 years of age, if the suspect is in lawful custody as mentioned in section 133 of the Law Enforcement (Powers and Responsibilities) Act 2002, or … 35. The respondents to the appeal argue this provision does not, in fact, exclude the application of the Act to the facts in this case because the LEPRA has given a more restricted power to the police as compared to the power they had under s 353A(3) of the Crimes Act 1900. It is submitted that power is limited to establishing the identity of a suspect. 36. In my view, that proposition cannot be made good. In the first place, it is clear from the statement of the Attorney General in the

Second Reading Speech and from the Explanatory Note that the LEPRA was not intended to change the powers of the police under s 353A(3). Moreover, when the CFPA was first enacted s 112 relevantly read: This Act does not apply to the taking of photographs, hand prints, finger prints, foot prints or toe prints: (a) from a suspect who is at least 14 years of age, if the suspect is in lawful custody as mentioned in section 353A(3) of the Crimes Act 1900 … 37. It is clear then that the CFPA when enacted contemplated the same broad interpretation of police powers given by the courts to the police under s 353A(3) of the Crimes Act 1900 and it was intended that those powers not be restricted by the CFPA. When the LEPRA was enacted, the section referred to in s 112 of the CFPA was simply changed to refer to s 133 of LEPRA instead of s 353A(3) of the Crimes Act 1900. There is no suggestion at all of any change to the police powers and none should be read into the Act from the terms of s 133 or any other section of either Act. 38. The submission of the respondents is that the CFPA makes provisions for the protection of all suspects in police custody in respect of any forensic investigations the police wish to investigate. The problem with this submission is that when the CFPA was enacted in 2000 it specifically exempted from its provisions the powers of the police to take photographs and fingerprints given to them by s 353A(3) of the Crimes Act in 1951. One respondent submitted the definition of “forensic procedure” in s 3 of the Act evinced an intention to restrict police powers in all circumstances to simply identifying the suspect. Such an interpretation is not open when what is suggested is the removal of a longstanding power of investigation. 39. The respondents then must rely on the enactment of the LEPRA in 2002 to suggest a modification of the police powers of investigation and for the reasons I have given that interpretation is not open. 40. In the course of argument in this case the question of reconciling the CFPA and LEPRA has been raised. I do not believe a problem exists. The power of the police to take photographs and

fingerprints of persons in lawful custody to identify the suspect and to provide evidence of the commission of the offence had been in existence since 1951 at the time the CFPA was enacted. That Act clearly indicated in s 112 that this power should continue and there is nothing in the LEPRA to suggest any change to that policy. Indeed it is clear from that Act the power remains unchanged … 42. It is clear in my view that s 112 of the CFPA excludes in terms from the operation of the Act the taking of photographs and fingerprints from a suspect in lawful custody as mentioned in s 133 of the LEPRA. 43. In this case the taking of the photographs and fingerprints of each of the respondents was done in accordance with the powers conferred on the police by s 133 of the LEPRA [page 610] and those powers are excluded from the provisions of the CFPA by s 112 of the LEPRA. There was no illegality or improper conduct by the police. 44. Accordingly, the Crown appeal should be allowed and the order rejecting the evidence made in the District Court should be set aside.

11.65 The law on forensic procedures does not allow a magistrate to order a person to submit to being photographed at the crime scene or to take part in a recreation of the crime. Mullins v Lillyman (2007) 70 NSWLR 26; [2007] NSWSC 407 NSW Supreme Court [CCTV recording of a robbery showed that the offender had a distinctive tattoo on his left arm. The plaintiff was arrested on unrelated matters and police observed that he had a similar tattoo on his arm. Police sought an order from a magistrate to compel the plaintiff to attend the premises where the robbery took place and to pose in a certain position so that his arm could be photographed and compared to the images obtained from the CCTV. The comparison that the police wanted to make was not limited to the tattoo but would include comparing facial features and physique.

The magistrate granted the order requested by the police and the plaintiff sought an order from the Supreme Court to set aside the magistrate’s order.] Buddin J: … 19 It is common ground that the only basis upon which the Magistrate could have authorised the procedure was that it involved “the taking of a photograph of a part of the body” which, as is apparent, appears in sub-paragraph (h) of the definition of “non-intimate forensic procedure” [in s 3 of the Forensic Procedures Act 2000]. This appeal turns upon the question of whether the Magistrate erred in reaching that conclusion. 20 Despite extensive searches, neither counsel was able to locate any authority which might assist in the resolution of the present case. It is common ground however that the procedure which the first defendant proposes to conduct would not have been permitted at common law: see generally The Queen v Ireland (1971–2) 126 CLR 321 at 333–4; R v G [2005] NSWCCA 291. It is also common ground that a legislative intention to abrogate such a fundamental right would need to be “clearly manifested by unmistakable and unambiguous language”: see Coco v The Queen (1994) 179 CLR 427 at 437–8; cf R v Janceski (2005) 64 NSWLR 10 per Spigelman CJ at pars 61–9. It was submitted by the plaintiff that no such intention was manifested in the legislation presently under consideration. 21 The purpose of the legislation was described by Simpson J in Orban v Bayliss NSWSC 428 [his Honour then quoted the passage cited at 11.63, above]. 22 See also Walker v Budgen (2005) 155 A Crim R 416 at par 17; Maguire v Beaton 162 A Crim R 22 at par 20. 23 The plaintiff concedes, as Simpson J observed, that the Act conferred “new and unprecedented powers” to compel suspects to co-operate in the investigation of crimes of which they are suspected. It is submitted however that her Honour said nothing which could possibly suggest that the scope of the legislation was of sufficient width to enable the present procedure to be brought within its purview. [page 611]

24 The language used by the legislature, namely that the NIFP involves “the taking of” a sample from, or in the present case “the taking of a photograph of a part of the body” of a suspect, suggests that the suspect is a mere passive participant in the conducting of the forensic procedure. A literal reading of the legislation provides no support for the proposition that the suspect is required to perform an active role. The legislation does not, for example, require a suspect to provide a sample of his or her voice by speaking. Such a requirement would mean that a suspect would be obliged to take an active role in the process. … 27 I accept the plaintiff’s submission that the vice contained in the Magistrate’s order which is challenged, is that it requires the plaintiff to become an active participant in the investigation of the crime. Moreover it obliges the plaintiff to attend at the scene of the crime and participate in the partial recreation of the crime. The only semblance of any connection between that kind of procedure and the legislation is that the procedure itself will be photographed. 28 The difficulty with the proposed procedure is that, as I have said, it will require the suspect to be involved in the investigation of the crime itself. Support for the view that that is contrary to what the legislature intended can be gleaned from s 45 of the Act which is the following terms: (1) A forensic procedure must not be carried out while the suspect is being questioned. If questioning has not been completed before the forensic procedure is to be carried out, it must be suspended while the forensic procedure is carried out. (2) In this section, a reference to questioning of a suspect is a reference to questioning the suspect, or carrying out an investigation (in which the suspect participates), to investigate the involvement (if any) of the suspect in any offence (including an offence for which the suspect is not under arrest). 29 That section makes it clear that the carrying out of the forensic procedure is to be kept quite separate from the interrogation process and/or the conduct of the investigation itself. 30 Analysed in this fashion, it becomes clear that what is

contemplated goes well beyond the statutory requirement that there be “the taking of a photograph of a part of the body” of a person. 31 There is one further consideration which is of some significance. In the normal course of events, forensic procedures, and for that matter interrogation of suspects, take place at a police station. That is where the necessary resources upon which police rely are maintained. Furthermore, safeguards to protect the integrity of any such procedure and the interrogation process itself can be provided in such an environment. Concerns about issues of privacy can also be addressed at police stations. Indeed s 44 of the Act is designed to afford reasonable privacy for a suspect who is the subject of the forensic procedure. 32 Against that background the conducting of a forensic procedure at the scene of the crime would represent a radical departure from time-honoured practice. There is nothing apparent in the legislation itself which raises the possibility that such procedures could be conducted at the scene of the crime. Of course a suspect may voluntarily engage in such a procedure at the scene of the crime, or otherwise assist police by, for example, participating in a “runaround”. However such a scenario is somewhat removed from the present situation in which the suspect is required to participate in the forensic procedure. 33 Section 47 of the Act provides that a person authorised to carry out a forensic procedure on a suspect, or a police officer, may use reasonable force to enable the forensic procedure to be carried out. That may have some practical significance in the [page 612] present context when it is borne in mind that the order appears to require the plaintiff to move from one position to another at the scene of the crime. The existence of such a power also serves to highlight the need to ensure that the intrusion upon the rights of a citizen which the legislation envisages must only be permitted in circumstances that are clearly authorised by the legislation. 34 For the foregoing reasons, I am of the view that the Magistrate erred in making the order in question. … [The appeal was allowed and the orders of the magistrate

quashed.]

11.66 The requirements of the Crimes (Forensic Procedures) Act 2000 do not always apply. In R v White, below, police obtained a DNA sample by allowing the suspect (who was not under arrest at the time) to smoke a cigarette which was then used to compare his DNA with that found upon the murder victim. R v White [2005] NSWSC 60 NSW Supreme Court Studdert J: 1. Clarence Herman White has pleaded not guilty on the presentation of an indictment charging him with the murder of Phyllis Jean O’Brien at Katoomba on 29 August 2003. The trial is to proceed before me sitting without a jury, and at the outset counsel informed the Court that there was a necessity for a ruling upon the admissibility of DNA evidence obtained on the analysis of a cigarette butt discarded by the accused at the police station at Katoomba. 2. The issue of the admissibility of the evidence of analysis involves consideration of the Crimes (Forensic Procedures) Act 2000. 3. Section 82 of that Act renders inadmissible evidence which has been obtained in circumstances contrary to the Act other than as provided for in s 82(4) and (5). [His Honour set out relevant provisions of the Act and continued:] … 6. Part 3 of the Act makes provision for the carrying out of a forensic procedure with the informed consent of the suspect person. Part 4 makes provision for the carrying out of a nonintimate forensic procedure on a suspect by order of a senior police officer. Part 5 provides for the making of a court order for the carrying out of a forensic procedure on a suspect, and such an order would be required in relation to an intimate forensic procedure. 7. The first issue that arises here is whether in the circumstances in which the subject evidence was obtained, s 82 comes into

operation. If so, should the evidence be admitted? The latter question involves consideration of s 82(4)(b) and s 82(5). 8. The body of the deceased, Phyllis Jean O’Brien, was found in the hallway of her home at Katoomba. The hands were bound, as were the feet, and there was a jumper wrapped around the head of the deceased. The deceased was found to have sustained a blow to the top of the head. According to the pathologist who performed the post mortem examination, the deceased died from the effects of the head injury and from asphyxia. 9. Material was found under the fingernails of the deceased and upon analysis of that material a DNA profile was obtained. On 1 November 2003 the accused was arrested, [page 613] not on the charge that now brings him to this Court, but on warrants for other matters, and he was taken to the police station at Katoomba where he was given permission to smoke a cigarette in an area defined as the van dock. He was directed to discard the butt in a corner where there was no other rubbish, and the accused was observed to discard the butt in the place directed. The butt was collected, put into an exhibit bag and taken away for laboratory analysis. 10. For the purpose of considering the admissibility of the evidence, the Court was invited to do so upon the basis that a DNA profile was obtained following the analysis of the butt which matched the profile of the material found under the fingernails of the deceased. 11. I shall review the circumstances leading up to the collection of the cigarette butt for analysis presently, but the first question is whether the evidence of the cigarette butt and the scientific analysis of that butt is evidence to which s 82 of the Act applies. Mr Hanley, appearing for the accused, submitted that the section applies, whereas the Crown submitted to the contrary. 12. It is to be observed that the section applies where a forensic procedure has been carried out on a person: s 82(1)(a). “Forensic procedure” means an intimate forensic procedure or a non-intimate forensic procedure on the taking of a sample by buccal swab. 13. … When the definitions in s 3 are examined, it does not seem

to me that they encompass the obtaining of material which has been discarded. One finds the meaning of “forensic procedure” by looking, inter alia, at an intimate forensic procedure and a nonintimate forensic procedure and the taking of a buccal swab. All these activities involve ‘taking’ a substance, not merely picking up a substance which has been discarded or thrown away. In R v Kane (2004) 144 A Crim R 496, the Court of Criminal Appeal had occasion to consider whether DNA evidence from a cigarette discarded at the scene of the crime contravened the Act here under consideration. The court held that it did not. In his judgment, Sully J, with whom the other members of the court agreed, said (at paras 12–13): [12] The long title to the Act explains relevantly that the Act is intended: to make provision with respect to the powers to carry out forensic procedures on certain persons. [13] A careful examination of the s 3 definitions earlier herein quoted shows, in my opinion, that what is contemplated by the notion of a forensic procedure, whether intimate or non-intimate, is that it is a procedure actually carried out on the person of some specific individual. The chance circumstance that a person throws away, relevantly, a cigarette butt which is retrieved without any reference to, or interference with the person, and which turns out to have significant probative value in terms of what it says about the relevant DNA profile, does not seem to me to satisfy, either in principle or in practice, either in law or in fact, what is contemplated by the Crimes (Forensic Procedures) Act. In my opinion that ground of appeal fails at the threshold. 14. His Honour’s reasoning is directly in point. 15. I reject the submission made by Mr Hanley that Kane is distinguishable. In my opinion it is not … [His Honour then reviewed what led up to the retrieval of the cigarette butt at the police station, and continued:] 18. In cross-examination Constable Howe said that the DNA obtained from the six persons including the accused was obtained

by covert means. That was because, he said, there was no reason to approach them to ask for a DNA sample. He said that the original list of twenty “persons of interest” was narrowed down when the material under the deceased’s fingernails was analysed and found to match the material from [page 614] Springwood. The area of interest then was narrowed to people who were involved in break enter and steal activity. Detective Howe did not accept that the accused was a suspect until the match on the discarded cigarette … 20. The police officer also agreed that he had some information from a telephone message from the “Aboriginal community” suggesting the accused’s involvement in the crime. Detective Howe did not regard the information he had as justifying the conclusion that the accused was a suspect at a time before the butt was analysed. 21. It was his belief that had he asked for consent for a DNA sample or had he applied to a magistrate the investigation could be compromised. … 22. Detective Howe said that there were entries on the criminal history of the accused revealing that in the past he had failed to appear. 23. Sergeant Johnstone said that he cleaned the van dock area up, picking up all the cigarette butts and removing the bins from the area. He said when he finished the clean up there was nothing left in the van dock. He gave instruction to Constable Drum and to Acting Sergeant Lloyd that if the accused wanted to have a cigarette he was to be allowed to do so. Under no circumstances were the police to provide him with a cigarette or to assist him in obtaining a cigarette. However, if he had his own he was to go out into the van dock to smoke and once the cigarette had been completed, the butt was to be collected as an exhibit. 24. Like Constable Howe, Sergeant Johnstone described the accused as a “person of interest” rather than a “suspect”, although he conceded that he had used the word “suspect” in the committal proceedings. Sergeant Johnstone, though, was not involved in the investigation. He said that he had sought and obtained instructions

from Constable Howe in relation to what was to be done when the accused was brought to the police station. 25. Sergeant Johnstone said that he did not consider asking the accused to give his consent to provide a DNA sample because he did not understand that the circumstances fell within the confines of “the Forensic Procedures Act”. This was because he was not a suspect. 26. Constable Drum was directly involved in the arrest of the accused on outstanding warrants. Sergeant Johnstone instructed her that if the accused wanted a cigarette he was to be allowed to have one, but the cigarette butt was to be collected for DNA. Back at the station Constable Warner told her that the accused would like a cigarette and Constable Drum approached the accused in the charge room and said that he could have one. She told him to roll the cigarette at the counter and Constable Drum then went out into the van dock and directed the accused to discard the cigarette butt at a particular point where there was no rubbish. Constable Drum saw the accused finish the cigarette and she then collected the butt and placed it in an exhibit bag. 27. Sergeant Lloyd was the custody manager on duty on 1 November 2003. His recollection was that he was present when Sergeant Johnstone gave Constable Drum instruction concerning collection of any cigarette butt smoked by the accused. He was aware that the purpose of obtaining the butt was to obtain a DNA sample. He agreed that at committal he had said that there were a number of DNA samples taken from people over a period of time, and that those samples were taken from people who were considered suspects. 28. I accept that each of the police officers whose evidence I have reviewed gave evidence honestly and that the evidence given was reliable. As I have already indicated, I am mindful of the evidence above outlined in determining that the cigarette butt discarded at the police station and the DNA evidence that became available after its analysis was not evidence to which s 82 of the Crimes (Forensic Procedures) Act applies. [page 615] [His Honour found that the collection of the cigarette butt was not

covered by the Act and that the evidence was admissible. His Honour went on to consider whether the evidence should be admitted even if illegally obtained.]

Rights of accused Protections at the police station 11.67 Apart from authorising detention for the purposes of investigation, Pt 9 of LEPRA sets out some protections for persons in police custody. In particular, it provides for a custody manager who has particular responsibilities to ensure that a person in custody is made aware of his or her rights and is given the opportunity to exercise them. Those rights are: the right to communicate with a friend, relative, guardian or independent person or legal practitioner (but this does not extend to having a lawyer appointed to represent a prisoner; the right is limited to a right to communicate with a lawyer or other person of the prisoner’s choice) (s 123); the right for foreign nationals to communicate with their consular officials (s 124); the right for family members, friends or a lawyer acting for the prisoner to be informed (if they ask) about the fact that the prisoner is in custody and where he or she is in custody (ss 126 and 127); the right to the services of an interpreter (s 128); the right to medical assistance (s 129); and the right to reasonable refreshments and use of toilet facilities (s 130). 11.68 Police must delay interviewing a person who has requested a friend or independent person or foreign consul to

be contacted to allow a reasonable time for that person to come to the police station, but the interview need not be delayed for more than two hours (LEPRA ss 123(8) and 124(6)). 11.69 Police do not need to comply with the requirement to allow a person to speak to a friend, relative, guardian or independent person if s 125 applies. 125 Circumstances in which certain requirements need not be complied with (1) A requirement imposed on a custody manager under section 123 relating to a friend, relative, guardian or independent person need not be complied with if the custody manager believes on reasonable grounds that doing so is likely to result in: (a) an accomplice of the detained person avoiding arrest, or (b) the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or (c) hindering the recovery of any person or property concerned in the offence under investigation, or (d) bodily injury being caused to any other person.

[page 616] (2) Further, in the case of a requirement that relates to the deferral of an investigative procedure, a requirement imposed on a custody manager under section 123 relating to a friend, relative, guardian or independent person need not be complied with if the custody manager believes on reasonable grounds that the investigation is so urgent, having regard to the safety of other persons, that the investigative procedure should not be deferred.

Note that s 123(1)(a) concerns the right of a person to communicate with a ‘friend, relative, guardian or

independent person’. Section 123(1)(b) concerns the right of a person to communicate with a legal practitioner. Sections 123(5) and (6) have special provisions in regard to communication with a legal practitioner and, in particular, the facilities that must be made available to allow a person to speak with his or her legal practitioner in private. The fact that, in s 123, the right to speak with a ‘friend, relative, guardian or independent person’ is treated differently from the right to speak with a legal practitioner suggests that s 125 does not apply where the person is waiting to speak with a lawyer.

Release or bail 11.70 In DPP v Nicholls (2001) 123 A Crim R 66, Adams J discussed what must happen to an accused person at the end of the investigation period. The police must either let the person go or charge him or her with a criminal offence. Section 114 of LEPRA says that at the end of, or during, the investigation period: (4) The person must be: (a) released (whether unconditionally or on bail) within the investigation period, or (b) brought before an authorised officer or court within that period, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period.

11.71 It should be noted that the obligation is not to bring a person before an authorised officer or court immediately after the investigation period ends, but ‘as soon as practicable’. Again, this may mean a significant delay if finding an available authorised officer or court is not practicable but again, in this regard, see A-G (NSW) v Dean (1990) 20 NSWLR 650; R v Ainsworth (1991) 57 A Crim R 174; Nasr v NSW (2007) 170 A Crim R 78, extracted at 11.52.

11.72 In summary, if the police believe that the person is in fact innocent, or there is insufficient evidence against him or her, they may release the person and take no further action (see LEPRA s 105; DPP v Nicholls, above at 11.70; Shaw v Donaldson (1988) 78 ACTR 1). Alternatively, if the police are satisfied that a criminal offence has been committed, they will commence proceedings by issuing a court attendance notice. Where a person has been arrested, the police must consider whether or not the accused should be released pending the date when he or she must appear in court, or whether he or she should be held in police custody pending the court hearing. This requires police to have regard to the question of bail. [page 617]

BAIL Nature of bail 11.73 Release on bail allows the accused (if he or she has not yet been convicted) or the prisoner (if he or she has been convicted but is awaiting sentence or pending an appeal) to be at liberty, though the person’s liberty may be subject to conditions. 11.74 Bail is particularly important for people who are accused, but not yet convicted, of a crime. Release on bail pending conviction reflects the law’s presumption that an accused is innocent until proven guilty. Being held in custody pending trial can have serious consequences for an accused who may lose a job, a business or family relations even though he or she is ultimately acquitted of all charges. 11.75 The law of bail has its roots in medieval England. As explained by Gray J in R v Collins (2002) 127 A Crim R 95:

10. The concept of bail evolved to give effect to the presumption of innocence and the right to liberty: When the administration of justice was in its infancy, arrest meant imprisonment without preliminary inquiry till the sheriff held his tourn at least, and, in more serious cases, till the arrival of the justices, which might be delayed for years, and it was therefore a matter of the utmost importance to be able to obtain a provisional release from custody … The sheriff was the local representative of the Crown, and in particular he was at the head of all the executive part of the administration of criminal justice. In that capacity he, as I have already shown, arrested and imprisoned suspected persons, and, if he thought proper, admitted them to bail. The discretionary power of the sheriff was ill defined, and led to great abuses, which were dealt with by the Statute of Westminster the First (3 Edw.1, c 12, AD 1275). … 11. Bail is a mechanism by which the adverse consequences of delay before trial can be minimised. Where appropriate, it is important for accused persons to be released from custody. A grant of bail places the accused in the care of a surety, as distinct from the custody provided by a prison or the police.

11.76 Persons released on bail give an undertaking to return to court to face the allegation that they have committed a crime. Bail may be granted by police, by an authorised justice or by judicial officers (judges and magistrates).

Bail Act 2013 11.77 The Bail Act 2013 (NSW) requires the decision maker

to assess whether, if released from custody, an accused person will: (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or

[page 618] (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence.

Making bail decisions 11.78 For all offences, bail is considered initially by the police. As soon as a person has been charged by police, the police officer in charge of the police station, or a police officer of or above the rank of sergeant, must make a decision on bail. 11.79 For some offences an accused person has a right to be released without bail. When charged with these offences bail can be dispensed with or an accused may be released on conditional bail, but bail cannot be refused. Offences for which an accused has a right to release are offences where the only penalty is a fine, any offence that is being dealt with by a conference under Pt 5 of the Young Offenders Act 1997, and any offence under the Summary Offences Act 1988 other than (Bail Act 2013 s 21(3)): (a) Obscene exposure (but only if the person has a previous conviction for that offence); (b) Violent disorder (but only if the person has a previous conviction for that offence); (c) Offences relating to knives and offensive implements (but only if the person has a previous conviction for one of those offences or a previous conviction for a personal violence offence);

(d) Custody or use of laser pointer in public place; or (e) Loitering by convicted child sexual offenders near premises frequented by children.

There is no right to release on bail under these provisions if the accused has previously failed to comply with the terms of his or her bail (Bail Act 2013 s 21(4)). 11.80 For all other offences police may release the person without the need for formal bail, grant bail either unconditionally or subject to conditions, or refuse bail. A decision to refuse bail, or to impose bail conditions, may be reviewed by a more senior police officer and must be reviewed if the accused asks for a review. The more senior officer may affirm or vary the original decision (Bail Act 2013 ss 43 and 44; ss 8 and 9). 11.81 If the police refuse bail the accused must be brought before a court to allow the court to make a bail decision. A decision may be made by a magistrate or a judge, or an ‘authorised justice’; that is, the registrar of the Local or Children’s Court, or an employee of the Department of Attorney General and Justice who has been authorised as a justice for the purposes of the Bail Act (Bail Act 2013 s 4). These provisions are important as they allow bail to be considered outside normal court times. The Registrar of the Local Court can determine bail when the magistrate is not available; for example, because the court is ‘on circuit’ or bail has to be decided on a Saturday morning. A court or an authorised justice may dispense with bail, grant bail (with or without bail conditions), or refuse bail (Bail Act 2013 ss 8 and 10). [page 619] 11.82 The process for considering bail is set out in the flow charts below, which are contained in the Bail Act 2013 s 16.

Considerations for bail (Bail Act 2013 (NSW) s 16)) FLOW CHART 11-2: SHOW CAUSE REQUIREMENT

FLOW CHART 11-3: UNACCEPTABLE RISK TE

[page 620] 11.83 The first question to be addressed is ‘has the accused been charged with a “show cause offence”?’ A ‘show cause offence’ is a serious offence punishable by life imprisonment and various other serious offences set out in s 16B. Where it is alleged the person has committed a ‘show cause offence’ bail is to be refused unless the accused can satisfy the bail authority that his or her detention is not justified. Where the accused has demonstrated that his or her detention is not justified, the bail authority must then apply the ‘unacceptable risk test’. 11.84 The ‘unacceptable risk test’ is shown in Flow Chart 11-3, above. This test applies whenever an accused is charged

with an offence other than a ‘show cause offence’ or, having been charged with a ‘show cause offence’, the accused has satisfied the bail authority that his or her detention is not justified. 11.85 In deciding whether or not there is an unacceptable risk, the bail decision maker must consider only the following factors (Bail Act 2013 s 18): (a) the accused person’s background, including criminal history, circumstances and community ties, (b) the nature and seriousness of the offence, (c) the strength of the prosecution case, (d) whether the accused person has a history of violence, (e) whether the accused person has previously committed a serious offence while on bail, (f)

whether the accused person has a history of compliance or non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds,

(g) whether the accused person has any criminal associations, (h) the length of time the accused person is likely to spend in custody if bail is refused, (i)

the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,

(j)

if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,

(k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment, (l)

the need for the accused person to be free to prepare for

his or her appearance in court or to obtain legal advice, (m) the need for the accused person to be free for any other lawful reason, (n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence, (o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community, (p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A.

[page 621] 11.86 When considering the seriousness of the offence (Bail Act 2013 s 17(3)(b)) the decision maker may consider (s 18(2)): (a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900, (b) the likely effect of the offence on any victim and on the community generally, (c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.

Bail conditions 11.87 The bail decision maker may impose conditions on bail if that is required to reduce an unacceptable risk to an acceptable risk. Bail conditions may: impose conduct requirements, that is, require a person

to do or not do certain things, for example, not to consume alcohol, not to approach witnesses or the victim, to regularly attend his or her employment or school etc (Bail Act 2013 s 25); impose accommodation requirements, that is, require suitable arrangements be made for the person’s accommodation before he or she is released (s 28); impose enforcement conditions, that is, conditions that the accused must comply with to ensure that other bail conditions are being met. For example, if there is a condition that the person refrains from taking drugs, an enforcement condition may be an obligation to undergo drug testing when directed (s 30); require the deposit of a security, that is, that the accused and/or an acceptable person agrees to forfeit a sum of money if the accused does not comply with his or her bail conditions. That condition may simply be an agreement to forfeit the money or it may require that the money or an acceptable security (such as the title deeds to a property) is deposited with the bail authority (s 26); require an acceptable person to give a character acknowledgement, that is, to report to the bail authority ‘to the effect that he or she is acquainted with the accused person and that he or she regards the accused person as a responsible person who is likely to comply with his or her bail acknowledgment’ (s 27). 11.88 When making a bail decision, the rules of evidence do not apply, and issues need be proved only on the balance of probabilities, not the normal criminal standard of beyond reasonable doubt (Bail Act 2013 ss 31 and 32).

Refusing bail or bail conditions cannot be met

11.89 Where a police officer refuses bail, the accused must be brought before a court as soon as practicable. Where the Registrar of the Local Court or a magistrate refuses bail, the matter may be adjourned for not more than eight days, unless the [page 622] accused consents to a longer period. Where bail is refused by an authorised justice who is not the Registrar, the matter can be adjourned for not more than three days after which the accused must be brought before a court (Bail Act 2013 s 41). 11.90 Where a person is granted conditional bail, but cannot meet the conditions, for example, if the person is required to deposit money but cannot raise the funds, the fact that he or she has not been able to meet the bail conditions must be reported to the court. The court may then review the bail conditions and, if satisfied that the unacceptable risk can be met by other bail conditions, could vary the conditions but cannot, at that time, refuse bail (Bail Act 2013 s 55).

Period of bail 11.91 Bail, once granted, remains in place until the proceedings are finalised, that is, when the accused is acquitted, or convicted and sentenced (Bail Act 2013 s 6). Bail may also be granted pending any appeal to the District Court, the Supreme Court, the Court of Criminal Appeal or the High Court of Australia (s 4, definition of ‘accused person’).

Varying bail 11.92 Once a bail decision has been made there may be good reason to revisit the decision either because the circumstances have changed or because an interested party, whether the accused, the prosecutor or the victim, believes

the original decision did not properly consider the matters listed in s 18 (see 11.85 above). 11.93 As noted in 11.78 above, a decision by a police officer to refuse bail, or to allow conditional bail may be reviewed and varied by a more senior police officer. Where a bail decision is made by an authorised justice or a court, it may also be varied by an authorised justice or a court. Where an accused person has been refused bail, or given conditional bail, he or she may apply for bail or to vary the conditions of bail (Bail Act 2013 s 49). Equally a prosecutor may apply to have bail refused, or, where bail has been granted, to have the accused’s bail revoked (s 50). An ‘interested person’, which includes the accused, the prosecutor or the complainant in a domestic violence offence, may at any time apply to have bail conditions amended (s 51). 11.94 There are limitations on the power of a court or justice to vary bail that need not be repeated in detail here. Suffice to say that, as a general rule, a lower tribunal cannot review the decision of a superior tribunal, that is, an authorised justice may not review or vary the bail conditions imposed by a court, and a Local Court magistrate cannot review or vary the bail conditions imposed by the Supreme Court (see Bail Act 2013 ss 52, 57, 58, 68, 69 and 70).

Failure to comply 11.95 There is no offence of failing to comply with bail conditions. However, a person who does fail to comply may be arrested and brought back before the relevant bail authority which may then review the bail conditions or make a decision to revoke bail (Bail Act 2013 ss 77 and 78). [page 623] 11.96 There is an offence of failing to appear at court when required to do so. The maximum penalty for failing to appear

is the maximum penalty for the offence for which bail was granted, or three years’ gaol and/or a fine of 30 penalty units, whichever is the less (Bail Act 2013 s 79).

CONCLUSION 11.97 This chapter has considered some of the laws applying to investigation, arrest and bail. We must remember that all the processes discussed in this chapter occur before any person has been convicted of an offence. Throughout the process, at least so far as the law is concerned, the accused — who may have been detained, subjected to forensic testing, held in custody, etc — is presumed innocent. 11.98 Once a court attendance notice has been issued a court is given jurisdiction to provide the forum to test the allegation. The processes of the court are the subject of the next chapter.

DISCUSSION QUESTIONS 11.99 1.

In Miranda v Arizona 384 US 436 (1966) the US Supreme Court had to consider the rights of an accused person in police custody. The headnote of the case reports at 467–473 that the court held: The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.

You will have seen the Miranda warning given many times if you watch American police dramas on TV. Assuming you had to write a caution to be given to suspects in NSW advising them of their rights, what would you put in that caution? 2.

Consider the following scenarios and argue whether the accused should, or should not, be granted bail. (a) Sally Sally has been arrested for the murder of her husband. The Crown has a strong case as police entered the room after receiving a report of gunshots and found the accused sitting in the room holding the gun from which the fatal shot was fired. Sally later confessed to the killing. Sally is (now) single with two children aged 17 and 15 who attend the local school. Her sister and mother live close by, as does her ex-husband’s family. Sally is unemployed, having spent the last 17 years as a fulltime mother. She has three prior convictions for larceny (stealing), all of which occurred in the last two years. After her last conviction she was placed on a 12month [page 624] good behaviour bond that had expired at the time of the killing. She has been seeking medical treatment for depression. (b) John John is 18 years old and unemployed. He lives off the dole and money that he earns as a sex worker. He has been arrested for stealing $600 that he claims a client gave him. He claims that the client must have reported

the money as stolen so as to avoid explaining to his wife where he had spent it. John has a string of convictions dating back to his early teens. He is single and lives in a squat in Darlinghurst, Sydney. He has one entry in his record of failing to attend court when required to do so, but he claims that he was sick on that occasion and let the court know. The record does not indicate if any action was taken for breach of bail on that occasion. (c) Trent Trent is a barrister with a busy Sydney practice. He has been arrested for sexual assault following his chambers’ Christmas party. He is alleged to have assaulted a young solicitor who had been invited to the party. Trent agrees that sexual intercourse took place but claims it was with her consent. Forensic evidence is ambiguous but is consistent with the victim’s allegations of minor violence. Trent is divorced and has three children whom he sees on alternate weekends. He pays $600 per fortnight in child support. He owns his own home as well as the home his ex-wife and children reside in. He employs two people. He holds dual nationality, being a citizen of both Australia and Spain.

[page 625]

12

Criminal procedure and evidence — Part 2 Trial, admissions, sentence and appeal INTRODUCTION 12.1 The previous chapter considered the law relating to the arrest and detention of accused persons. In this chapter we look at the procedure that applies to, and issues of evidence that arise during, the criminal trial. The issues of evidence, in particular, relate back to Chapter 11, as failure to comply with the procedures required for the collection of evidence — in particular, evidence from an accused while he or she is in custody — will determine whether or not that evidence may be used in the trial. A failure to comply with legislative requirements during the investigative procedure may mean that vital evidence in support of the prosecution case cannot be used against the accused, with the result that a guilty person may well be acquitted. In this chapter the Criminal Procedure Act 1986 will be referred to for convenience as the ‘CPA’. [page 626]

PENALTY NOTICE MATTERS 12.2 Some offences are so minor that parliament has decided they can be dealt with by penalty notice or ‘on the spot fine’. We are most familiar with these offences in the area of traffic infringements where a person can receive a ‘ticket’ for exceeding the speed limit or some other such

violation (see Road Transport Act 2013 and Road Transport (General) Regulation 2013 Sch 5). 12.3 The provision of penalty notices has been extended to cases where a person is alleged to have committed the offences listed below (CPA ss 332–344A; Criminal Procedure Regulation 2010 Sch 3). Offence Larceny (stealing) where the value of the property or amount does not exceed $300 Unlawfully in possession of property

Act and section Crimes Act 1900 (NSW)

Penalty

s 117

$300

s 527C

$350

Summary Offences Act 1988 (NSW)



Offensive conduct

s 4(1)

$500

Offensive language

s 4A(1)

$500

Obstructing traffic

s 6

$200

s 6A

$250

s 9

$1100

Unauthorised entry of vehicle or boat Continuing intoxicated and disorderly behaviour following move on direction

12.4 Where police issue a penalty notice, the accused may pay the fine and no further action is taken (CPA s 338).

However, there is a power vested in the police to withdraw the penalty notice before the final date for payment, refund any amount paid, and then take court proceedings (s 340). It is unlikely that this power would be routinely used, but it does give senior police, and the Director of Public Prosecutions, a supervisory power and allow them to withdraw penalty notices where they believe the offence is more serious and warrants prosecution before the courts. Where police have declined to issue a penalty notice, or a notice has been issued but then withdrawn, the police may proceed under normal criminal provisions for these offences by issuing a court attendance notice.

COURT HEARINGS 12.5 For a person subject to criminal prosecution, there must be a hearing to allow a court to determine if the accused is guilty or not guilty of the offence charged, [page 627] and to impose an appropriate penalty if the finding is guilty. Criminal cases are heard in the Local Court, where a magistrate determines both guilt and penalty, or in the District or Supreme Court depending upon the seriousness of the offence. In the District or Supreme Court, generally a jury determines whether the Crown has proved its case beyond reasonable doubt, while the judge ensures that the trial runs according to law, and imposes a penalty if the jury finds the accused guilty. There are provisions to allow a case to be heard by a judge without a jury where both prosecution and defence consent, or where the prosecutor does not agree but the accused does and the judge is of the view that ‘the interests of justice’ would be best served by a judge only trial (CPA s 132). There can be no trial by judge alone for a

Commonwealth offence because s 80 of the Constitution requires a trial by jury; Brown v R (1986) 160 CLR 171; 64 ALR 161; and Alqudsi v R [2016] HCA 24.

Summary matters 12.6 Summary matters are heard before a magistrate. Indictable matters are heard in the superior courts (District or Supreme Court) before a judge, and usually a jury. Whether an offence is summary or indictable is determined by reference to the legislation that creates the offence, and the CPA. Some indictable offences can be heard in the Local Court if the prosecution chooses or, in other cases, if the accused consents to the Local Court exercising jurisdiction (CPA Sch 1). The advantage of a hearing in the Local Court is that the trial costs less, is less formal, is quicker, and there is a simpler appeal mechanism, which is a rehearing in the District Court. Generally, a magistrate cannot impose a penalty of more than two years’ imprisonment, even if the legislation that creates the offence provides for a higher maximum penalty (CPA ss 267 and 268). Accordingly, a prosecutor who believes that an accused is likely to face a sentence of imprisonment of more than two years will elect to have the matter tried on indictment in the District Court. 12.7 Table 1 of Sch 1 to the CPA lists indictable offences that are to be dealt with summarily unless the prosecution or the accused elects to have the matter tried on indictment (that is, before a judge and jury). Table 2 of Sch 1 to the Act lists indictable offences that are to be dealt with summarily unless the prosecutor chooses to proceed by way of indictment. 12.8 The rules governing hearings in the Local Court are the same whether the matter is a summary matter or an indictable matter that is being dealt with summarily.

Return first date 12.9 As we have seen, police commence a prosecution by way of a court attendance notice. A court attendance notice can be issued: in the field: that is, where police have observed an offence, they complete the court attendance notice which they then deliver to the accused and file a copy in court; [page 628] after investigation: where police have investigated an offence and decided that a person has committed a crime, they can complete a court attendance notice that they file in court and then serve on the accused. In serious cases, they can, when they file the notice, apply for a warrant to authorise the arrest of the accused who is, when arrested, taken to the police station perhaps for further investigation and in order for the making of a bail decision; after arrest: where police have arrested a person without a warrant and he or she is taken to the police station for further investigation and identification; the person can then be issued with a court attendance notice and a decision made as to bail (CPA ss 47, 175, 177 and 181). Except in cases where the accused has been arrested on a warrant or refused bail, the court attendance notice must ‘require the accused person to appear before the court at a specified date, time and place’ (CPA s 175(3)(d)). 12.10 Where a person has been arrested and released on bail, it is a criminal offence not to appear at court as required by the bail undertaking (Bail Act 2013 s 79). A person who has been served with a court attendance notice but who has

not been arrested or released on bail may choose not to appear but instead to write to the court and indicate whether he or she is pleading guilty or not guilty (CPA s 182). This notice must comply with the requirements set out in the Act and its Regulations. Where the notice is lodged with the court registrar at least seven days before the court date, the accused need not attend court on that day.

Plea of guilty 12.11 Where an accused person enters a plea of guilty (either in person or following the procedure in the CPA s 182), the court can convict the accused and proceed to impose a sentence (s 193). In simple matters, the police hand up a form setting out the facts that they rely on, the accused makes submissions (either personally or through a lawyer) on penalty, and the magistrate imposes the appropriate penalty. (The options available to a sentencing court are discussed at 12.46–12.73.) In more complex matters, the case may be adjourned to allow the accused to obtain evidence in mitigation or to undertake rehabilitation or for the court to obtain pre-sentence reports. 12.12 Some accused persons may want to plead guilty even if they are not guilty. They may do this because the cost, both in time and money, of defending the matter will far exceed any penalty they are likely to face, because they do not believe they will get a ‘fair’ hearing, because the penalty when pleading guilty is less than after a trial, because they want to take the ‘blame’ for someone else, to ensure that a friend, family member or any victim does not have to give evidence, or for an infinite number of other reasons particular to the accused. A plea of guilty means the accused admits all the elements of the offence. It is problematic for courts if an accused enters a plea of guilty but, when

addressing the court on penalty, says that he or she is not guilty or suggests that there is a defence available. In those [page 629] circumstances the court may refuse to accept the guilty plea and insist that the matter proceed to a hearing. Provided that the accused’s submissions on sentence are not inconsistent with the plea: A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.

(See Meissner v R (1995) 184 CLR 132 at 141 per Brennan, Toohey and McHugh JJ. See generally as to the significance of a plea of guilty: Wong v DPP (NSW) (2005) 155 A Crim R 37.)

Plea of not guilty — brief to be served 12.13 If the accused pleads not guilty (again either in person or in a written plea), the court has to hear evidence called by the prosecution to prove the case. Before the hearing can take place, the prosecution (usually the police) must (unless the magistrate orders otherwise) serve a brief of evidence upon the accused so that he or she knows the case to be answered. The brief of evidence comprises copies of written statements from all witnesses upon which the prosecution will rely, as well as copies of any other documents that the prosecution intends to tender as evidence. The prosecution does not have to provide copies of exhibits where it is ‘impossible or impractical’ to make a copy but it must advise the accused of the existence of the exhibit, when and where it may be inspected, and allow the accused

an opportunity to inspect the item in question (CPA ss 183, 184 and 187). The police do not have to provide a brief for certain prescribed minor offences and, in some cases, may serve a short brief that omits evidence of technical matters (Criminal Procedure Regulation 2010 regs 21 and 22).

Ex parte hearings 12.14 Matters before the Local Court are often relatively minor and it may be that defendants believe that the matter does not warrant the cost and inconvenience of travelling to court to have it determined. The state may also believe that the matter is not sufficiently serious to warrant the cost of arresting the accused and forcing him or her to come to court for the hearing. Accordingly, the CPA provides a procedure where either the informant or the defendant does not appear in court. 12.15 If the informant (usually the police) does not appear, it would be expected that, there being no one to bring the allegation of criminal conduct, the accused would be discharged (CPA s 201). 12.16 If the accused does not appear, the court can proceed to determine the matter in the absence of the accused. The magistrate must: first, be satisfied that the accused was given notice of the date and time he or she was required to appear at court (s 196); [page 630] then consider whether the matters set out in the court attendance notice ‘are sufficient to establish the offence’ charged (s 199). If not, the court can receive further prosecution evidence where that has been

served on the accused (s 200); finally, the absence of the accused is not taken to be a plea of guilty (s 198) so, even though the accused is absent, the court must still be satisfied, beyond reasonable doubt, that the offence has been proved. 12.17 Where a case has been dealt with ex parte, that is, in the absence of the accused, the magistrate may not sentence an absent accused to: (a) imprisonment; (b) periodic detention; (c) home detention; or (d) community service. Nor may the magistrate order that the defendant: (a) enter into a good behaviour bond; (b) not associate with certain persons; (c) not go to certain prescribed places; or (d) enter an intervention program order. Where the magistrate believes that the appropriate order is a sentence of imprisonment or one of the other orders that cannot be made in the absence of the accused then he or she will issue a warrant to have the accused arrested and brought before the court for sentencing (Crimes (Sentencing Procedure) Act 1999 s 25).

Hearing of the matter 12.18 Where both the accused and the prosecutor appear, the accused has been served with the prosecution’s brief of evidence, and the accused adheres to his or her plea of ‘not guilty’, the court may proceed to hear the matter. At the hearing, the prosecution needs to present the evidence that it

will rely on to prove the accused’s guilt beyond reasonable doubt. The accused will also need to bring any evidence (including witnesses) that he or she will rely on in order to refute the Crown case or to raise a doubt about his or her guilt. 12.19 Court hearings are open to the public (CPA s 191). This is to ensure that justice is not only done, but also seen to be done. Witnesses are called and give their evidence by way of questions and answers. After the examination-in-chief, that is, questioning by the side that called them, witnesses may be cross-examined by the opposing side to test their evidence and to identify any mistakes, misunderstandings or misrepresentations (CPA ss 192, 194 and 195). 12.20 Generally speaking, the court: must hear and determine the matter unless there are reasons for the matter not to proceed or to be adjourned (s 192(1), (3)); [page 631] must state the substance of the offence to the accused and ask if he or she pleads guilty or not guilty (s 192(2)); must hear the prosecutor and the prosecution witnesses and other evidence and determine whether there is a case to answer; –

if not, then the charge is dismissed;

–

if there is, then it must hear the defence and the defence witnesses and other evidence, followed by the prosecution case in reply (if any) (ss 194(2) and 195);

may adjourn at any stage to enable the matter to be

mediated under the Community Justice Centres Act 1983 (s 203); may determine the matter by convicting the accused and then making an appropriate order, or by dismissing the matter (s 202(2)); must give reasons for its determination (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 277– 281); must make a record of any conviction or order made against an accused in summary proceedings (s 204(1)).

Indictable matters Committal proceedings 12.21 Indictable matters go through a two-stage process. First there is a committal proceeding before a magistrate in the Local Court. The magistrate exercises an administrative function in reviewing the evidence presented by the prosecution. The key issue for a magistrate conducting a committal hearing is to determine if the prosecution has established a ‘prima facie’ (that is, ‘at first sight’ or ‘on the face of it’1) case. This procedure requires the magistrate to consider the evidence in two stages. First, the prosecutor leads evidence to show the accused is guilty of the offence charged. The magistrate must consider the prosecutor’s evidence and determine if (CPA s 62(1)): … the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence.

This requires the magistrate to consider whether, if the jury accepted the prosecution evidence, they could find that all the elements of the offence had been proved. If the evidence

does not meet this test — that is, if the evidence does not support every element of the offence — the accused must be discharged (s 62(2)). At this stage the magistrate is not considering the strength of the prosecution evidence, that is, whether the witnesses are believable or are contradicted by any other evidence. The question at this stage is not ‘would’ the jury convict, but ‘could’ the jury convict if they accepted the prosecution evidence. 12.22 If the magistrate is of the view that the test set out in s 62 has been met, he or she must then ask the accused if he or she would like to say anything or call [page 632] any evidence (s 63). Under the CPA s 63(1) and Local Court Rules 2009 r 3.3, the magistrate is required to warn the accused that: Before you say anything in answer to the charge, you should know that you do not have to say anything unless you want to. However, if you do say something, it may be recorded and used against you at your trial. You should understand that, if a promise of favourable treatment has been made to you if you make admissions as to your guilt, that promise cannot be relied on. Similarly, you have nothing to fear from any threat that may have been made to you to persuade you to make any admission as to your guilt. However, even if you have received any such threat or promise, anything you say now may still be used against you at your trial. Do you want to say anything in answer to the charge? Do you want to give any evidence in relation to the charge? Do you want to call any witnesses on your behalf?

After hearing the accused’s evidence (if any), the magistrate must consider all the evidence and determine whether (CPA s 64) he or she is satisfied that:

… there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence …

12.23 In reaching that opinion the magistrate is effectively required to make a prediction of the trial’s outcome (Saffron v DPP (1989) 16 NSWLR 397). If the magistrate is of the view that, as a matter of law, the jury could convict but, given the state of the evidence, it is unlikely that it would convict, the accused is to be discharged (s 66). This second test is more subjective and requires the magistrate to consider whether a jury would be likely to accept the prosecution evidence and/or any explanation offered by the defendant. Here weakness in the prosecution case will be relevant, for the magistrate may find that, if the jury believed witness X, they ‘could’ convict the accused, but witness X is such a poor witness it is unlikely that any jury would accept his or her evidence, in which case the accused should not be put to the burden of a trial. 12.24 Although the magistrate is charged with making some assessment as to how a jury might react, he or she has little information on which to base that decision. In modern committals, the prosecution evidence is tendered by way of written statements only (CPA s 74). A witness who has given a statement to police may be required to attend court and give evidence in person, but this will happen only if the magistrate is ‘satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence’ (s 91). Where the witness is the alleged victim and the accused is alleged to have committed an act of violence, the magistrate must be satisfied that ‘there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence’ (s 93). It should be remembered that, at this stage, the accused person is just that, accused, not convicted. There may be a question as to whether the alleged victim is a victim of violence or

whether the accused did all or any of the things alleged. The accused may well feel that the witness’s evidence will not stand up to cross-examination and the weakness in the prosecution case will be revealed, but that opportunity will not be available until the trial. [page 633]

Presentation of the indictment 12.25 Following the committal hearing, it is for the Director of Public Prosecutions (DPP) to present an indictment in the court; that is, to commence proceedings against the accused in the trial court. The Supreme Court has jurisdiction to hear any indictable offence. The District Court can hear any matter other than an allegation of treason or murder (CPA s 46, Crimes Act 1900 ss 12 and 19A and Criminal Procedure Regulation 2010 reg 103). One might expect that an indictment would be presented only after the person has been committed for trial, and that it would deal with the offence for which the magistrate found there was a prima facie case. In fact, the DPP can present an indictment against a person who has been discharged by a magistrate (although this is unusual), or may proceed with an offence different from the one for which the magistrate committed the accused for trial (Director of Public Prosecutions Act 1986 s 7; Crown Prosecutors Act 1986 s 5(b)). For example, a magistrate might commit for murder but the DPP might decide to proceed instead with manslaughter. Such an indictment is called an ‘ex officio indictment’.

Plea 12.26 When the indictment is presented the accused is

‘arraigned’; that is, asked how he or she responds to the allegation. The accused may plead: guilty to some lesser offence which the prosecution may accept in ‘satisfaction’ of the indictment (CPA s 153); guilty to the offence in the indictment; not guilty (s 154); ‘autrefois convict’ or ‘autrefois acquit’ (s 156). A person who refuses to enter a plea is deemed to have entered a plea of not guilty (s 155). 12.27 ‘Autrefois convict’ or ‘autrefois acquit’ are pleas that the accused has already been tried and either convicted or acquitted of the matter now the subject of the indictment. The rule against double jeopardy is that a person may not be tried for the same offence twice, so this plea, if successful, acts as a bar to further action against the accused. However, a previous conviction or acquittal operates as a bar to further proceedings only if it is based on the same offence or on an offence based on the same facts. A plea of autrefois acquit will not succeed if the accused did not actually stand trial, so an accused discharged by a magistrate at committal cannot successfully plead ‘autrefois acquit’ as he or she was not, in law, acquitted in the course of a trial. Whether the previous proceedings bar a subsequent prosecution is determined by the trial judge before the jury is empanelled. We will explore this issue in more detail, when we discuss the principle of the rule against double jeopardy (see 12.86).

Pre-trial disclosure 12.28 Where the accused has entered a plea of not guilty, or has refused to plead and is thus deemed to have entered a plea of not guilty, he or she is ‘taken to have

[page 634] put himself or herself on the country for trial’ (CPA s 154) and the trial before the judge or jury proceeds. 12.29 Pre-trial disclosure takes three forms. The first is compulsory pre-trial disclosure by the accused where the accused intends to rely on an alibi (s 150) or the defence of substantial impairment due to abnormality of mind (s 151). Second, there is the more general pre-trial disclosure applicable in all cases. The third is specific pre-trial disclosure managed by the court to suit the particular case. 12.30 With respect to alibi evidence, an accused person cannot bring evidence ‘tending to show that, by reason of the presence of the accused person at a particular place or in a particular area at a particular time, the accused person was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission’ (s 150), unless the accused has given notice to the prosecution that he or she intends to call that evidence. The accused must give details of the name, address or other identifying information of any witness whom the accused intends to call. The clear objective of s 150 is to allow the prosecuting authorities to investigate the alleged alibi so that they can either rebut that evidence or discontinue the prosecution if they are satisfied that the alibi is true. 12.31 A similar rule applies where the accused intends to rely on the partial defence of substantial impairment due to abnormality of mind (s 151). This defence (which reduces murder to manslaughter, see 3.33–3.38) will necessarily involve expert psychiatric evidence as to the accused’s mental impairment. To allow the prosecution to consider that evidence and to have the opportunity to arrange a psychiatric examination by the prosecution’s own expert, the accused must give notice that he or she intends to rely on the defence and give the name and address of any witness, as well as the

particulars of the evidence which that witness will give. This is usually done by serving any applicable psychiatric report on the prosecution. 12.32 In the case of both alibi and the defence of substantial impairment, a judge can grant leave for the evidence to be called even though no notice has been given. When considering whether to allow an accused to give a notice of substantial impairment where there has been no disclosure, Johnson J reflected in R v Kaewklom (No 1) [2012] NSWSC 1103, on the approach that the court should take and the need for such disclosure, and said at [29]–[34]: … where the notice requirement in s 150(2) Criminal Procedure Act 1986 has not been complied with, it has been said that a Court should be slow to refuse a leave application, unless prejudice arises such as is incapable of being addressed without significant disruption to the trial: Skondin v R [2005] NSWCCA 417 at [47]. In my view, a similarly flexible approach ought be taken by the Court, where leave is sought under s 151 to rely upon the partial defence of substantial mental impairment after the time prescribed by statute. Both s 150 (alibi) and s 151 (substantial mental impairment) require notice to be given to the Crown to allow the Crown to investigate, before the trial, the issue proposed to be raised. Notice of alibi must be given at least 42 days before trial: s 150(8). As mentioned, 35 days’ notice is required for substantial mental impairment. These notice provisions permit the Crown to undertake different types of investigations.

[page 635] Examination of an alibi notice will give rise to police enquiries before trial. Where substantial mental impairment is to be raised (invariably through the report of a psychiatrist), the Crown

will seek to retain a forensic psychiatrist for the purpose of examining an accused person (sometimes, as here, more than once), conducting a document review and then furnishing a considered report on the question. At times, this process may lead to agreement by the Crown as to the existence of substantial mental impairment, and acceptance of a plea of guilty to manslaughter in full discharge of the indictment …

12.33 In all indictable offences there is an obligation to provide pre-trial disclosure. Once the indictment has been presented, the Crown must give the defendant notice of the Crown’s case. The notice must include (s 142): (a) a copy of the indictment, (b) a statement of facts, (c) a copy of a statement of each witness whose evidence the prosecutor proposes to adduce at the trial, (c1) a copy of any recorded statement that the prosecutor intends to adduce at the trial, (d) a copy of each document, evidence of the contents of which the prosecutor proposes to adduce at the trial, (e) if the prosecutor proposes to adduce evidence at the trial in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary, (f)

a copy of any exhibit that the prosecutor proposes to adduce at the trial,

(g) a copy of any chart or explanatory material that the prosecutor proposes to adduce at the trial, (h) if any expert witness is proposed to be called at the trial by the prosecutor, a copy of each report by the witness that is relevant to the case, (i)

a copy of any information, document or other thing provided by law enforcement officers to the prosecutor, or otherwise in the possession of the prosecutor, that would reasonably be regarded as relevant to the

prosecution case or the defence case, and that has not otherwise been disclosed to the accused person, (j)

a list identifying: (i)

any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as being of relevance to the case but that is not in the prosecutor’s possession and is not in the accused person’s possession, and

(ii) the place at which the prosecutor believes the information, document or other thing is situated, (k) a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness, (l)

a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the accused person,

(m) a list identifying the statements of those witnesses who are proposed to be called at the trial by the prosecutor. …

[page 636] 12.34 Where it is impracticable to provide the defence with a copy of any proposed exhibit or document, then it need not be given but instead the accused must be given the opportunity to inspect the exhibit, document or thing (s 149A). 12.35 The defence must respond with a notice setting out (s 143(1)): (a) the name of any Australian legal practitioner proposed to appear on behalf of the accused person at the trial, (b) the nature of the accused person’s defence, including particular defences to be relied on, (c) the facts, matters or circumstances on which the

prosecution intends to rely to prove guilt (as indicated in the prosecution’s notice under section 142) and with which the accused person intends to take issue, (d) points of law which the accused person intends to raise, (e) notice of any consent that the accused person proposes to give at the trial under section 190 of the Evidence Act 1995 (which allows the accused, after receiving legal advice, to waive the rules of evidence) in relation to each of the following: (i)

a statement of a witness that the prosecutor proposes to adduce at the trial,

(ii) a summary of evidence that the prosecutor proposes to adduce at the trial, (f)

a statement as to whether or not the accused person intends to give any notice under section 150 (Notice of alibi) or, if the accused person has already given such a notice, a statement that the notice has been given,

(g) a statement as to whether or not the accused person intends to give any notice under section 151 (Notice of intention to adduce evidence of substantial mental impairment).

12.36 The court may further order the defendant to disclose (s 143(2)): (a) a copy of any report, relevant to the trial, that has been prepared by a person whom the accused person intends to call as an expert witness at the trial, (b) if the prosecutor disclosed an intention to adduce evidence at the trial that has been obtained by means of surveillance, notice as to whether the accused person proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required, (c) notice as to whether the accused person proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor,

(d) if the prosecutor disclosed an intention to tender at the trial any transcript, notice as to whether the accused person accepts the transcript as accurate and, if not, in what respect the transcript is disputed, (e) notice as to whether the accused person proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor, (f)

notice of any significant issue the accused person proposes to raise regarding the form of the indictment, severability of the charges or separate trials for the charges,

(g) notice of any consent the accused person proposes to give under section 184 of the Evidence Act 1995.

[page 637] 12.37 In response to the defence disclosure, the prosecution must advise whether the prosecution disputes any expert evidence the accused intends to call, whether the prosecutor will raise any issue with respect to the continuity of custody of any exhibit the accused intends to rely upon, whether there is any issue in relation to the accuracy or admissibility of any documentary evidence the accused intends to rely upon and whether there is any other objection to the evidence the accused intends to call. Having reviewed the accused’s material the prosecution may also realise that it has other evidence that is relevant to an issue that the accused has raised or is otherwise relevant to the trial. In response to that disclosure, the prosecution must also provide ‘a copy of any information, document or other thing in the possession of the prosecutor, not already disclosed to the accused person, that might reasonably be expected to assist the case for the defence’ and anything else that has come to the prosecutor’s attention and which has not been disclosed but should be disclosed to comply with the disclosure requirements in s 137 (s 144).

12.38 The obligation to disclose material is ongoing so that, if either side becomes aware of new evidence or witnesses, the party must provide further disclosure (s 147). 12.39 The court may also order the parties to attend pretrial hearings and conferences. At a pre-trial hearing the court can deal with legal issues that might otherwise arise during the trial, such as objections to the form or validity of the indictment or the admissibility of any evidence. The court can make orders dispensing with formal proof of certain issues or requiring further pre-trial disclosure (s 139). A pretrial conference is held to determine if the parties can agree on the evidence that is to be admitted at trial. This will allow the parties to agree what matters need strict proof and to allow them to agree that certain evidence will not be given by witnesses (s 140). For example, the accused may object to the content of a witness statement on the basis that it is unfairly prejudicial. During the conference the Crown may agree that it will not lead the paragraphs to which the accused objects and that will save the court’s time in having to rule on the admissibility issue. 12.40 Where evidence should have been disclosed but was not, the court may refuse to allow the evidence to be presented, or it may grant an adjournment to allow the matters raised to be considered by the opposing side (s 146). 12.41 Where an accused fails to meet the pre-trial disclosure obligations the court, or the other party, can comment on that failure and the court or jury may draw whatever unfavourable inferences seem appropriate (s 146A). If, for example, an accused raises an issue of self-defence without having previously disclosed that this would be the defence, the jury may be invited to infer that this is a recent idea or fabrication rather than a true explanation of the accused’s behaviour at the time of the alleged offence. 12.42 For the purposes of these sections, the prosecutor

‘means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) an Australian legal practitioner representing the prosecutor’ (s 3). In R v Hawi (No 10) [2011] NSWSC 1656 the investigating police failed to tell the [page 638] prosecutor of a statement that had been recorded in an officer’s notebook. When that omission was discovered, during the course of the trial, the statement was disclosed to the defence who objected to its use on the basis that it had not been the subject of pre-trial disclosure. Hulme J said ‘I am unable to see that “prosecutor”, in the context of a case prosecuted on indictment by the Director of Public Prosecutions, can be construed so as to include police investigators. Accordingly, I am satisfied that the failure of police to disclose the statement … was not a failure to disclose of a type that renders available the sanction in s 146(1)’. The sanction in s 146(1) is the power to refuse to allow the prosecution to put that evidence before the jury. 12.43 Notwithstanding this, his Honour did go on to consider whether or not the evidence should be rejected on the basis that its admission at this late stage, and without pretrial disclosure, would be unfair to the accused. His Honour considered the evidence and its probative value, which included that it tended to incriminate another accused rather than Mr Hawi, and allowed the evidence to be introduced.

Arraignment 12.44 The initial stage in the criminal trial proper is the arraignment. This is where the indictment (that is, the formal document charging the accused with the crime or crimes alleged) is read out and the accused is asked to enter a plea. An indictment must be signed by the Crown Prosecutor

(CPA s 126) and presented to the court either by filing it in court or reading it out in the presence of the accused. The trial proceeds either then or after an adjournment (CPA s 19). Because the indictment commences the criminal trial, it is important that it strictly meets the legislative requirements. The parliament has set out a number of defects which will not make an indictment invalid (s 16), but other defects can lead to an invalid trial, as shown by R v Janceski (2005) 64 NSWLR 10. In that case an oversight by the Director of Public Prosecutions meant that the Crown Prosecutor had not been authorised in writing to sign the indictment. Notwithstanding that there was no irregularity in the trial, the Court of Criminal Appeal found that the technical defect was fatal to the trial and a new trial was required. The result in Janceski has been overturned by legislative amendment to the CPA s 16 so, if this situation arose again, the defect would not defeat the indictment. However, the judgment contains an extensive and valuable examination of the history of indictments and the CPA in this state.

CRIMINAL TRIAL 12.45 Assuming the accused has been correctly arraigned, the criminal trial generally proceeds as follows. The jury is empanelled. It is made up of at least 12 members of the community drawn from the jury roll (Jury Act 1977 s 19). It is the responsibility of the sheriff to put together a roll of potential jurors (s 10) and to summons enough people to make up the jury panel. After potential jurors have been selected from the panel at random, the prosecution and the defence may ‘challenge’ any juror, either for cause or without cause. A challenge for

[page 639] cause is made when there is some clear reason why the person cannot sit on the jury, such as where the juror is related to the accused or some important witness. Both the accused and the prosecution may challenge a jury member without cause (a peremptory challenge), that is, without indicating any reason for the challenge. Each accused may challenge up to three potential jurors without cause, and the prosecutor may challenge up to three for each accused (s 42). The Crown Prosecutor (‘the Crown’) (see the Crown Prosecutors Act 1986) opens the case for the prosecution by addressing the jury. The accused’s counsel may then address the jury to identify the issues in dispute (CPA s 159). Evidence in support of the prosecution case is called and put before the jury. If there is a dispute as to whether the evidence is to be put before the jury, the jury may be excused and a ‘voir dire’ hearing takes place. This ‘trial within a trial’ deals with legal and factual issues that affect whether or not a particular piece of evidence should be admitted before the jury. At the conclusion of the Crown case, the accused may argue that there is no case to answer. If the judge agrees with that submission, he or she may direct the jury to acquit the accused. If there is some evidence, no matter how tenuous, that could be accepted by the jury to establish guilt, the matter must be left with the jury (see Doney v R (1990) 171 CLR 207). However, the judge may nonetheless give a Prasad direction (so called after the decision in R v Prasad (1979) 23 SASR 161) to the effect that the jury may, if it wishes, acquit

the accused without hearing any further evidence. If the jury is not directed to, or does not choose to, acquit the accused, counsel for the accused may open the case for the defence and call any evidence that the defence wishes to put before the jury. At the end of the defence case (if any) the prosecutor may in highly unusual circumstances call evidence in reply to address factual matters raised in the defence case (for example, a new defence) to which the Crown wishes to respond. However, the Crown cannot split its case and should put all its evidence before the defence case is called. The Crown Prosecutor then addresses the jury, followed by counsel for the defence. The judge then sums up the evidence that has been presented and gives the jury directions as to the law that it is to apply in its deliberations. The jury then retires to consider its verdict, and returns to announce whether the accused is guilty or not guilty. Where a jury cannot reach agreement there is a hung jury, that is, there is no verdict. In this case, the accused may face a re-trial at the discretion of the DPP. Traditionally, all 12 jurors had to agree that the accused was guilty or not guilty. The Jury Act now provides that, where the jury has deliberated for at least eight hours but cannot reach a unanimous verdict and the court is satisfied that further deliberation is unlikely to lead to a unanimous verdict, the court can accept a majority verdict of 11:1 (where there is a jury of 12) or 10:1 [page 640] where there is a jury of 11 (Jury Act 1977 s 55F) (a jury of less than 12 is allowed where a juror dies or is

discharged during the course of the trial (s 22)). A majority verdict is not available where the accused has been charged with an offence contrary to a Commonwealth law (s 55F(4)). If the accused is guilty the judge may then, or at a later time, take evidence in mitigation before imposing a penalty in accordance with the Crimes (Sentencing Procedure) Act 1999.

SENTENCING Principles 12.46 Once a trial has concluded, if the accused is found guilty, it is for the judge or magistrate to impose a sentence commensurate with the objective features of the crime, and the subjective features of the offender. There are a number of sentencing options available to the court set out in the Crimes (Sentencing Procedure) Act 1999. General sentencing principles were the subject of discussion by the High Court in Markarian v R. Markarian v R (2005) 228 CLR 357; 215 ALR 213; [2005] HCA 25 High Court of Australia [The question in this case was whether the Court of Criminal Appeal failed to apply or misapplied orthodox sentencing principles in upholding an appeal against sentence by the Crown. The defendant/appellant pleaded guilty to a charge that he did knowingly take part in the supply of a prohibited drug, namely heroin, pursuant to s 33(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He was sentenced to a term of imprisonment of two years and six months from 18 July 2002 with a non-parole period of 15 months. The sentencing judge was of the opinion that the appellant’s plea of guilty had utilitarian value. Accordingly he

discounted the sentence by 25%. The appellant had acted for a dealer in heroin. The appellant, who was himself a heroin addict, was paid in heroin for his services. The material before the sentencing court emphasised the different degrees of criminality of the appellant and the dealer. The sentencing judge had before him an optimistic pre-sentence report indicating that the appellant had been in regular employment until about 1990. He had apparently made genuine progress towards drug rehabilitation by the time of sentence. The appeal to the Court of Criminal Appeal was upheld (R v Markarian (2003) 137 A Crim R 497, Hulme J with whom Heydon JA and Carruthers AJ agreed). A sentence of eight years’ imprisonment with a non-parole period of four years and six months was imposed in lieu of the earlier sentence of two years and six months with a 15-month non-parole period.] Gleeson CJ, Gummow, Hayne and Callinan JJ: [footnotes omitted] … 20. In this Court the appellant argues that the Court of Criminal Appeal erred by adopting a staged approach to the calculation of the sentence, in taking a maximum penalty as a starting point for that calculation, and, by, in reality impermissibly imposing a separate penalty for the other offences. Further, the appellant contends that the sentence was, in any event, so plainly unjust that an error in the sentencing discretion was to be inferred. … [page 641] 24. It is not useful to begin by asking a general question like was a ‘staged sentencing process’ followed. That is not useful because the expression ‘staged sentencing process’ may mean no more than that the reasoning adopted by the sentencer can be seen to have proceeded sequentially. Or it may mean only that some specific numerical or proportional allowance has been made by the sentencer in arriving at an ultimate sentence on some account such as assistance to authorities or a plea of guilty. Neither the conclusion that a sentencer has reasoned sequentially, nor the observation that a sentencer has quantified the allowance made, for example, on account of the offender’s plea of guilty, or the offender’s assistance to authorities, of itself, reveals error. … 25. As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint

reasons of Dixon, Evatt and McTiernan JJ in House v The King [(1936) 55 CLR 499], itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”. 26. Any consideration of alleged error of principle must now begin in any applicable legislation governing sentencing either generally or in the particular case. … In the present case, it must begin with the provisions of the Sentencing Act. 27. Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. 28. The proceedings in the Court of Criminal Appeal being a prosecution appeal, brought pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), it was, of course, necessary for the prosecution to show error in the sentence passed below — either specific error or manifest inadequacy. As the whole Court pointed out in Lowndes v The Queen, a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion … 30. Legislatures do not enact maximum available sentences as

mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that: A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century … or because it has more recently been set at a high catch-all level … At other times the maximum may be highly relevant and sometimes may create real difficulties … A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate]. 31. It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they [page 642] invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J [in the Court of Criminal Appeal] … to look first to a maximum penalty (the maximum selected by his Honour was not, as will appear, the maximum available in respect of the principal offence), and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case. That he used the maximum penalty impermissibly appears from his Honour’s particular deference to it in this passage: Parliament cannot have intended that, other things being equal, the penalty for supplying more than 250 g should be less than for supplying that quantity. The form of the statement is explained by the fact that his Honour did not start with the maximum penalty for an offence involving the

quantity in question, but used another maximum penalty as his starting point, that is, the maximum for an offence in the category of seriousness immediately below that of the principal offence. 32. The appellant’s submission that the passage just quoted involved too great an emphasis upon quantity without regard to the facts of the case, should be accepted. True it is that his Honour did not overlook the objective facts, or indeed any other matters relating to penalty, but having started where he did, at a maximum, and then making deductions from it, he did not make, even in a provisional way, an assessment of the sentence called for by the objective facts. It might or might not be appropriate for a trial judge to state such a provisional view. A judge would rarely be in error in not doing so. It is, after all, a provisional position only … 35. The appellant’s next submission invited the Court to reject sequential or two-tiered approaches to sentencing taking as their starting point the maximum penalty available, and to state as a universal rule to the extent that legislation does not otherwise dictate, that a process of instinctive synthesis is the one which sentencing courts should adopt. 36. No universal rules can be stated in those terms. As was pointed out earlier, much turns on what is meant by a ‘sequential or twotiered’ approach and, likewise, the ‘process of instinctive synthesis’ may wrongly be understood as denying the requirement that a sentencer give reasons for the sentence passed. So, too, identifying ‘instinctive synthesis’ and ‘transparency’ as antonyms in this debate misdescribes the area for debate. 37. In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed. As Gaudron, Gummow and Hayne JJ said in Wong: Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be ‘increment[s]’ to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a ‘two-stage approach’ to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.

It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say ‘may be’ quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an ‘instinctive synthesis’. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features. [page 643] In R v Thomson Spigelman CJ reviewed the state of the authorities in Australia that deal with the ‘two-stage’ approach of arriving at a sentence, in which an ‘objective’ sentence is first determined and then ‘adjusted’ by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender’s place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been

taken into account in fixing the guideline range of sentences. To take another example, to ‘discount’ a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R v Gallagher when he said that: It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical. So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform. … 38. Following Wong benches of five judges in New South Wales in R v Sharma and R v Whyte … have sought to state general sentencing principles to be applied in those States. In the first two of these cases the Court of Criminal Appeal of New South Wales endorsed an approach of instinctive synthesis as a general rule but also accepted as a qualification that departure from it may be justified to allow for separate consideration of the objective circumstances of the crime. On occasions intermediate courts of appeal have however refused to find error where a staged approach has been undertaken. … 39. Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in

arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of ‘instinctive synthesis’, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression ‘instinctive synthesis’ may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge. … 46. The appellant submitted that the sentence of the sentencing judge should be restored. One arguable ground for doing so is that the appeal to the Court of Criminal Appeal was a Crown appeal and that it would be unfair to subject the appellant to a further hearing of it. We do not think that the argument should however be accepted. True it is that [page 644] in Crown appeals different considerations from those arising on an offender’s appeal arise and have to be taken into account. Nonetheless the Crown is entitled to proper consideration of an appeal duly made. That has not happened here. This Court is not, as we have said, in general a sentencing court. We are unable to say whether, having regard to comparable sentences in New South Wales and other relevant matters, the sentence of the sentencing judge is correct or not. 47. We would therefore order that the appeal be upheld, the sentence and orders of the Court of Criminal Appeal of New South Wales be quashed and that the matter be remitted to the Court of Criminal Appeal for disposition of the appeal in accordance with these reasons. [McHugh and Kirby JJ, in separate judgments, agreed with the orders proposed in the joint judgment. Appeal upheld.]

Statutory framework 12.47 Markarian (see 12.46) sets out the general approach to sentencing. In addition, there is a constantly expanding body of enormously detailed case law generated by the Court of Criminal Appeal which, subject to anything to the contrary in Markarian or any other High Court decision, the sentencing judge must apply. Finally, there is a statutory framework with which the sentencing judge must comply. This framework is mainly contained in the Crimes (Sentencing Procedure) Act 1999. Only some of its requirements and options can be set out here.

Maximum penalties 12.48 It should be noted that the penalties set out in legislation for any particular offence are maximum penalties. A court can always reduce the penalty and, where a penalty is expressed as a period of imprisonment, the court can apply less severe penalties such as fines, community service and good behaviour bonds (Crimes (Sentencing Procedure) Act 1999 s 21). Markarian (see 12.46) discussed how judges are to approach sentencing. In that case the court noted that the sentencing judge had not referred to s 21A of the Crimes (Sentencing Procedure) Act 1999. The majority said that this oversight ‘ … may have been on the assumption of counsel that [s 21A] … did not alter the general law principles which otherwise applied’. That is, the parliament may have put general principles into statute but they do not, or at least did not in that particular case, make any significant change to the common law. Even so, it is important to know what the parliament has enacted as the courts must give effect to the legislation. Section 21A sets out factors that a court must take into account when determining an appropriate sentence. That section states:

21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

[page 645] (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work, (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, (ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent, (cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug,

alcohol or any other intoxicating substance, (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), (e) the offence was committed in company, (ea) the offence was committed in the presence of a child under 18 years of age, (eb) the offence was committed in the home of the victim or any other person, (f)

the offence involved gratuitous cruelty,

(g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), (i)

the offence was committed without regard for public safety,

(ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth), (ib) the offence involved a grave risk of death to another person or persons, (j)

the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,

(k) the offender abused a position of trust or authority in relation to the victim, (l)

the victim was vulnerable, for example, because the victim was very young or very old or had a

disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant),

[page 646] (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity, (o) the offence was committed for financial gain. (p) without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender’s vehicle. The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, (c) the offender was provoked by the victim, (d) the offender was acting under duress, (e) the offender does not have any record (or any significant record) of previous convictions, (f)

the offender was a person of good character,

(g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or

otherwise, (i)

the remorse shown by the offender for the offence, but only if: (i)

the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), (j)

the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,

(k) a plea of guilty by the offender (as provided by section 22), (l)

the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m) assistance by the offender to law enforcement authorities (as provided by section 23). (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

These provisions have been subject to a large number of decisions of the Court of Criminal Appeal interpreting and, at times, limiting their application. 12.49 Courts are required to consider giving a person a ‘discount’ on sentence if he or she has entered an early plea of guilty (Crimes (Sentencing Procedure) Act 1999 ss 21A(3) (k) and 22), or has assisted law enforcement authorities (Crimes

[page 647] (Sentencing Procedure) Act 1999 ss 21A(3)(m) and 23). An early plea of guilty saves the state a large amount of money by removing the need to conduct a trial and saves the victim (if any) from the need to give evidence. In R v Thomson (2000) 49 NSWLR 383 the Court of Criminal Appeal set out guidelines to be followed in New South Wales courts when considering the discount that applies to a guilty plea. The Court said at [160]: (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10– 25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the time of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

The Court also stated that: (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.

12.50 The court is required to take a guilty plea into account whether or not the accused’s intention is some sign of remorse and desire to assist, or simply a desire to enjoy the benefit of the section. R v Sharma (2002) 54 NSWLR 300 stressed the pertinence of utilitarian considerations, that is, the value to the criminal justice system of the early plea, regardless of motive. Section 24 sets out certain other matters which the court must take into account, including, by way of example: (a) any time for which the offender has been held in custody in relation to the offence, and

(b) in the case of an offender who is being sentenced as a result of failing to comply with the offender’s obligations under a community service order, good behaviour bond or intervention program order: (i)

the fact that the person has been the subject of such an order or bond, and

(ii) anything done by the offender in compliance with the offender’s obligations under the order or bond.

Having taken account of the matters listed above, the court can then exercise its sentencing discretion and impose what the judge or magistrate considers the appropriate penalty. The court has a number of non-custodial and custodial options that it can apply.

Non-custodial options 12.51 Not everyone who commits a crime goes to gaol. A sentencing court has a number of options that can and should be considered before imprisonment is imposed.

Community service orders 12.52 An offender can be ordered to perform not more than 500 hours of community service (Crimes (Sentencing Procedure) Act 1999 s 8). To benefit from [page 648] such an order a pre-sentence report must be obtained from the Department of Community Corrections, which must assess the offender as suitable and certify that there is work available (ss 86, 88 and 89).

Good behaviour bonds 12.53 A person may be released on a good behaviour bond pursuant to s 9 and Pt 8 of the Act. A bond is really deferred

sentencing where the accused promises to be of good behaviour for a specified period. If he or she is convicted of another offence in that time or fails to comply with any conditions of the bond, he or she is brought back before the original court for sentencing on the original matter (as well as being sentenced for the second offence if there is one).

Find the offence proved but take no action 12.54 A court may find the offence proved but decline to record a conviction. When considering whether to release a person without conviction, s 10(3) provides that the court must consider: (a) the person’s character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider.

12.55 Release under s 10 may be unconditional, or it may be subject to a good behaviour bond (see s 10(1)(b)). Conditional release under this section is similar to a good behaviour bond under s 9 (discussed at 12.53 above) but does not follow a formal recording of a conviction. A conviction can have further implications for the defendant, as it may trigger automatic consequences; for example, a person convicted of a serious driving offence will be disqualified from driving for 12 months (Road Transport Act 2013 Pt 5.2). If the person is convicted and released under a Crimes (Sentencing Procedure) Act 1999 s 9 good behaviour bond these automatic consequences will necessarily apply; if the person is released without conviction under s 10, even with a good behaviour bond, then the automatic consequences (eg, automatic disqualification from driving) will not apply.

12.56 A court may also find the offence proved and convict the accused but impose no further penalty (Crimes (Sentencing Procedure) Act 1999 s 10A). That could be equated with ‘taking no action’ but, as noted above (12.55), by convicting the accused various consequences may follow, such as disqualification from holding a drivers’ licence or a firearms licence (Firearms Act 1996 s 11(5)(b)).

Deferral of sentence for rehabilitation 12.57 A court may release a person on bail, for up to 12 months, to allow him or her to explore possibilities for rehabilitation or to undertake a rehabilitation program. The person can then return to court with a favourable report to show that he or she has taken steps to address the offending behaviour, or the causes of that behaviour, or that there is some program that the offender can enter. This can be taken into [page 649] account when imposing the final sentence (Crimes (Sentencing Procedure) Act 1999 s 11). In R v Trindall (2002) 133 A Crim R 119, Smart AJ (with whom Spigelman CJ and Grove J agreed) said, of s 11 (at [60]): Often a court experiences difficulty when sentencing an offender in determining the offender’s prospects of rehabilitation and whether the foreshadowed rehabilitation will occur. In many instances it will be of great assistance to the sentencing judge if there is an adjournment to enable the offender to demonstrate that rehabilitation has taken place or is well on the way … It is so much better for the court to have evidence of what has actually taken place than to have to base its decision on the opinions of experts, assertions by the offender and what has happened over a short period of time, that is, since the commission of the offence or the offender’s arrest.

Fines 12.58 A fine may be imposed even where the statute creating the offence does not mention any fine (Crimes (Sentencing Procedure) Act 1999 s 15). Where the statute does not mention any fine, then the maximum fine is ‘1000 penalty units’ (s 15(2)). Where the statute provides that punishment may be by way of a fine, then the maximum fine is that set out in the particular statute. At the time of writing, one penalty unit is equal to $110 (Crimes (Sentencing Procedure) Act 1999 s 17). The obvious value of using ‘penalty units’ is that the parliament can increase the monetary value of fines by changing the value of a penalty unit rather than having to amend every piece of criminal legislation to increase the dollar value of particular fines. Using penalty units ensures that no fines are overlooked and the relative value of monetary penalties (that is, the fine for one offence compared to another offence) remains fixed.

Diversion of offenders 12.59 There is a growing number of schemes to divert offenders out of the criminal justice system and into treatment and other programs (see CPA ss 345–352). Diversionary sentencing schemes include the circle sentencing intervention program, the forum sentencing program and the traffic offender intervention program (see Criminal Procedure Regulation 2010 Pts 6, 7 and 8). Discussion of the nature and operation of such schemes is beyond the scope of this book.

Suspended sentence 12.60 Where a court imposes a sentence of imprisonment for not more than two years, the court may also order that

the sentence be suspended and that the offender be released on a good behaviour bond (Crimes (Sentencing Procedure) Act 1999 s 12). If the offender fails to comply with the terms of his or her order, he or she may then be required to serve the balance of the sentence in custody. 12.61 The difference between this and a good behaviour bond is that the offender under a good behaviour bond is liable, if in breach of the terms of the bond, to be called up and sentenced for the original offence; and the judge or magistrate still has the full range of sentencing options open to him or her. With a suspended [page 650] sentence, however, the prisoner is told the length of the gaol term imposed when sentenced, and if he or she breaches the conditions imposed may be sent to gaol for the balance of the term.

Custodial orders 12.62 Where a person is to be detained in custody, there are several options apart from full-time imprisonment.

Compulsory drug treatment detention 12.63 The Drug Court, established by the Drug Court Act 1988, may impose an order requiring compulsory drug treatment detention (Crimes (Sentencing Procedure) Act 1999 s 5A). A sentence for compulsory drug treatment detention is served in a Compulsory Drug Treatment Correctional Centre. The offender is expected to move from closed detention, to semi-open detention and finally community custody. A compulsory drug treatment plan must be established and the offender is required to comply with that plan and the conditions that are imposed upon his or her behaviour (Crimes (Administration of Sentences) Act 1999 Pt 4A).

Home detention 12.64 A person may be sentenced to a period of home detention (Crimes (Sentencing Procedure) Act 1999 s 6 and Pt 6). Home detention is not available where the person has been found guilty of certain prescribed offences, that is, murder, attempted murder or manslaughter; sexual assault or sexual offences involving children; armed robbery or any offence involving the use of a firearm; assault occasioning actual bodily harm (or any more serious assault, such as malicious wounding or assault with intent to cause grievous bodily harm); stalking or intimidating a person; a domestic violence offence where the person, if sentenced to home detention, would have to live with the victim; or offences involving a commercial quantity of drugs (s 76). This prohibition applies whether the person is due to be sentenced for one of these offences or has previously been convicted of one of these offences (s 77). Home detention is clearly a significant penalty but less than detention in a gaol, and it allows the person to continue to contribute to the community as orders may be made to allow the person on home detention to continue in employment or to perform community service (s 82).

Intensive correction 12.65 Except where the offender has been convicted of a prescribed sexual offence, a court that sentences a person to imprisonment for not more than two years may direct that the sentence is served by way of ‘intensive correction’. An offender must be over 18 and assessed as suitable for an intensive correction order before such an order may be made (Crimes (Sentencing Procedure) Act 1999 s 7 and Pt 5). An intensive correction order allows the prisoner to serve his or her sentence in the community but subject to many restrictions on the prisoner’s liberty. Mandatory

[page 651] conditions for intensive correction orders are (Crimes (Administration of Sentences) Regulation 2014 reg 186): (a) a condition that requires the offender to be of good behaviour and not commit any offence, (b) a condition that requires the offender to report, on the date fixed as the date of commencement of the sentence or on a later date advised by the Commissioner, to a local office of Corrective Services NSW or other location advised by the Commissioner, (c) a condition that requires the offender to reside only at premises approved by a supervisor, (d) a condition that prohibits the offender leaving or remaining out of New South Wales without the permission of the Commissioner, (e) a condition that prohibits the offender leaving or remaining out of Australia without the permission of the Parole Authority, (f)

a condition that requires the offender to receive visits by a supervisor at the offender’s home at any time for any purpose connected with the administration of the order,

(g) a condition that requires the offender to authorise his or her medical practitioner, therapist or counsellor to provide to a supervisor information about the offender that is relevant to the administration of the order, (h) a condition that requires the offender to submit to searches of places or things under his or her immediate control, as directed by a supervisor, (i)

a condition that prohibits the offender using prohibited drugs, obtaining drugs unlawfully or abusing drugs lawfully obtained,

(j)

a condition that requires the offender to submit to breath testing, drug testing or other medically approved test procedures for detecting alcohol or drug use, as directed by a supervisor,

(k) a condition that prohibits the offender possessing or having in his or her control any firearm or other offensive weapon, (l)

a condition that requires the offender to submit to surveillance or monitoring (including electronic surveillance or monitoring) that a supervisor may direct, and comply with all instructions given by a supervisor in relation to the operation of surveillance or monitoring systems,

(m) a condition that prohibits the offender tampering with, damaging or disabling surveillance or monitoring equipment, (n) a condition that requires the offender to comply with any direction given by a supervisor that requires the offender to remain at a specified place during specified hours or that otherwise restricts the movements of the offender during specified hours, (o) a condition that requires the offender to undertake a minimum of 32 hours of community service work a month, as directed by a supervisor from time to time, (p) a condition that requires the offender to engage in activities to address the factors associated with his or her offending as identified in the offender’s assessment report or that become apparent during the term of the order, as directed by a supervisor from time to time,

[page 652] (q) a condition that requires the offender to comply with all reasonable directions of a supervisor, (r) a condition that requires the offender to submit to a medical examination by a specified medical practitioner, as directed by a supervisor, in relation to the offender’s capacity to undertake community service work or to otherwise comply with the offender’s obligations under the intensive correction order.

Further conditions may also be imposed regarding such

things as the offender’s employment, alcohol consumption and with whom the offender associates (reg 187).

Full-time custody and parole 12.66 Finally, there is imprisonment, which may be for a determinate term or for life (Crimes (Sentencing Procedure) Act 1999 s 5 and Pt 4). Imprisonment is regarded as a penalty of last resort and the sentencing court must be satisfied that, in all the circumstances, ‘no penalty other than imprisonment is appropriate’ (s 5(1)). 12.67 When sentencing a person to a term of imprisonment, the court must generally set the term of the sentence and a non-parole period (s 44(1)). At the expiration of the non-parole period, the Parole Authority (established under the Crimes (Administration of Sentences) Act 1999) must consider whether the prisoner should be released or not. If parole is not granted, the prisoner remains in custody but subject to regular review by the Parole Authority (Crimes (Administration of Sentences) Act 1999 Pt 6). If parole is granted, the prisoner is released but remains on parole and under the supervision of the parole authorities for the balance of the sentence (s 132). Unless there are special circumstances, the non-parole period should be at least twothirds of the total term (Crimes (Sentencing Procedure) Act 1999 s 44(2)). 12.68 The court may decline to set a non-parole period (Crimes (Sentencing Procedure) Act 1999 s 45) and must so decline if the sentence is for less than six months (s 46). Where there is no non-parole period the offender must serve the full period of the sentence in custody. 12.69 The court must specify the date on which the sentence starts and the date when the offender will be eligible for release (Crimes (Sentencing Procedure) Act 1999 s

48). A sentence will usually start on the date the offender was arrested (if he or she has not had bail) or the date the offender is sentenced if he or she has been on bail (s 47). 12.70 For some offences there is a ‘standard non-parole’ period (Crimes (Sentencing Procedure) Act 1999 ss 54A– 54D). These are intended to guide the court when sentencing offenders. A court must set out its reasons for imposing a non-parole period that is longer, or shorter, than the standard non-parole period (s 54B). In R v Way (2004) 60 NSWLR 168 the NSW Court of Criminal Appeal took the view that the ‘standard non-parole’ period should be considered as mandatory unless there was a reason to depart from it. In Muldrock v R, below, the High Court held that the standard non-parole period was not mandatory but only a guide to the appropriate sentence. [page 653] Muldrock v R (2011) 244 CLR 120; 281 ALR 652 High Court of Australia [1] French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. The appellant is mentally retarded. As a child he was subject to homosexual sexual abuse. As an adult he has shown a sexual interest in male children. In March 2007, he befriended a nine year old boy and took advantage of an opportunity when the two were alone to suck the boy’s penis. He was charged with the offence of sexual intercourse with a child aged under 10 years. The maximum sentence for the offence is 25 years’ imprisonment. The standard non-parole period for the offence is 15 years. [2] The appellant pleaded guilty to the offence before the District Court of New South Wales (Black DCJ). … [3] Black DCJ sentenced the appellant to a term of nine years’ imprisonment after allowing a 25% reduction in the otherwise appropriate sentence to reflect the appellant’s plea of guilty. The appellant had been in custody for three months at the date of the sentence hearing. Black DCJ backdated the sentence to give credit

for the period served on remand. He specified a non-parole period of 96 days, which expired on the date of its imposition. He directed, as a condition of release on parole, that the appellant reside at Selwood Lane until the Parole Authority, acting in consultation with the Community Justice Program, determined that he be discharged. [4] Black DCJ acknowledged that the proportion between the nonparole period and the term of the sentence was unusual. His Honour correctly concluded that the provision of a standard nonparole period for the offence did not preclude the imposition of a sentence for which a very short non-parole period was specified … [12] The provision of standard non-parole periods for the sentencing of offenders in New South Wales was introduced by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) (“the Amending Act”), which inserted Div 1A of Pt 4 into the Sentencing Act. Division 1A governs the sentencing of offenders for offences to which standard non-parole periods apply. These are the offences specified in the Table to the Division. The standard non-parole period is the non-parole period set out for each offence in the Table. Section 54A(2) provides: “For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.” [13] Section 54C(1) should also be noted. It provides: “If the court imposes a non-custodial sentence for an offence set out in the Table to this Division, the court must make a record of its reasons for doing so. The court must identify in the record of its reasons each mitigating factor that it took into account.” Section 54B applies when a court sentences an offender to imprisonment for an offence listed in the Table. At the material time, s 54B relevantly provided: “ … (2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court

determines that there are reasons for setting a non-parole period that is longer or shorter than the standard nonparole period. (3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard nonparole period are only those referred to in section 21A. (4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account …” [page 654] [26] Section 54B applies whenever a court imposes a sentence of imprisonment for a Div 1A offence. The provision must be read as a whole. It is a mistake to give primary, let alone determinative, significance to so much of s 54B(2) as appears before the word “unless”. Section 54B(2), read with ss 54B(3) and 21A, requires an approach to sentencing for Div 1A offences that is consistent with the approach to sentencing described by McHugh J in Markarian v The Queen: “[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case.” (emphasis added) [27] Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as “the non-parole period for an offence in the middle of the range of objective seriousness”. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. [28] Nothing in the amendments introduced by the Amending Act

requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period. [29] A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to “mak[ing] a record of its reasons for increasing or reducing the standard non-parole period” is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences. [30] The full statement of reasons for the specification of nonparole periods either higher or lower than the standard assists appellate review and in this way promotes consistency in sentencing for Div 1A offences. It may also increase public awareness of the sentencing process. [31] The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence. An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased. It appears that for most, if not all, Div 1A offences, the standard non-parole period exceeds the mean non-parole period for the offence recorded in the statistics kept by the Judicial Commission of New South Wales in the period before the enactment of Div 1A. As the Court of Criminal Appeal correctly pointed out in Way, it is necessary to treat this circumstance with care. The standard non-parole period represents the non-parole period for an hypothetical offence in the middle of the range of objective seriousness without regard to the range of

factors, both aggravating and mitigating, that bear relevantly on sentencing in an [page 655] individual case. It may be, as the Court of Criminal Appeal observed in Way, that for some Div 1A offences there will be a move upwards in the length of the non-parole period as a result of the introduction of the standard non-parole period. This is the likely outcome of adding the court’s awareness of the standard non-parole period to the various considerations bearing on the determination of the appropriate sentence. It is not because the standard non-parole period is the starting point in sentencing for a midrange offence after conviction. [32] An offence of sexual intercourse with a child aged under 10 years falling within the middle of the range of objective seriousness has a standard non-parole period of 15 years. That circumstance says little about the appropriate sentence for this mentally retarded offender and this offence. The Court of Criminal Appeal erred by treating the provision of the standard non-parole period as having determinative significance in sentencing the appellant. … [Appeal allowed, the sentence imposed on the Crown appeal quashed and the matter remitted for consideration of the offender’s appeal.]

Life sentence 12.71 Section 61 of the Crimes (Sentencing Procedure) Act 1999 provides for mandatory sentences of life imprisonment in some circumstances. Notwithstanding the expectation that the most serious offences will carry a penalty of life imprisonment, sentencing judges do have the option to impose a lesser penalty, even where life appears to be a mandatory sentence. 61 Mandatory life sentences for certain offences (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of

the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. (2) A court is to impose a sentence of imprisonment for life on a person who is convicted of a serious heroin or cocaine trafficking offence if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence and the court is also satisfied that: (a) the offence involved: (i)

a high degree of planning and organisation, and

(ii) the use of other people acting at the direction of the person convicted of the offence in the commission of the offence, and (b) the person was solely or principally responsible for planning, organising and financing the offence, and (c) the heroin or cocaine was of a high degree of purity, and (d) the person committed the offence solely for financial reward. (3) Nothing in subsection (1) affects section 21(1).

[page 656] Section 21(1) says: 21 General power to reduce penalties (1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term.

12.72 There is a tension between the apparent mandatory requirement to impose life imprisonment (s 61(1)) and the retention of discretion under s 21. The tension is resolved by

acknowledging that the sentencing court retains the discretion not to impose a life sentence. That discretion might be exercised where the subjective features of a particular case displace the prima facie need for the maximum penalty. In R v Fraser [2005] NSWCCA 77, a man was convicted of murdering three young children. The objective facts surrounding these killings justified the imposition of the maximum penalty of life imprisonment; however, it was appropriately reduced because of his severe mental disorder. 12.73 In Tan v R, the court had to consider what factors allowed a conclusion that a particular case was a worst-case example, in particular whether a killing that was not done with ‘intent to kill’ could be considered a worst-case example of murder. Tan v R [2010] NSWCCA 207 NSW Court of Criminal Appeal [The victim’s brother-in-law, Ma, owed the appellant in excess of $500,000 and had gone into hiding. In order to flush him out, the appellant engaged three men to attack the victim by pouring acid on him. The assailants attacked the victim at his home and in the presence of his wife, Ma’s sister. Although the intention had only been to inflict grievous bodily harm, the victim died of his injuries. The trial judge took the view that the killing demonstrated a ‘level of culpability … so extreme that the community interest in retribution, punishment, community protection and deterrence’ could only be met with a sentence of life imprisonment, even though the defendant had been a model prisoner since his arrest. The defendant appealed against the life sentence arguing that a murder, done with intent to cause grievous bodily harm rather than with intent to kill (and see here the discussion on the fault elements for murder discussed in Chapter 2) could not be an example of the worst case of murder. Hulme J (with whom Giles JA and Latham J agreed) did not agree with the appellant.] Hulme J: Ground 1 — that his Honour erred in categorising the offence as

falling into the worst category of the offence of murder. 55. In development of this ground it was submitted that … the finding that the Applicant contracted for the infliction of grievous bodily harm and not death mitigated to some degree the seriousness of the crime and removed it from the worst case category and the scope of s 61(1) of the Crimes (Sentencing Procedure) Act. That section provides: (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. [page 657] 56. Reference was made to numerous cases wherein there are to be found statements, albeit sometimes qualified, along the lines that an intent to inflict grievous bodily harm involves less criminality than an intent to kill. These cases include R v Milhailovic, Howard, Morgan and Young (Unreported, Badgery-Parker J, 15 April 1991); R v Craig (Unreported, Abadee J, 14 April 1993); R v Crofts (Unreported, Grove J, 6 December 1996); R v Keir (2000) NSWSC 111; and R v Irani [2001] NSWSC 475 at [28]. 57. Nothing is to be gained by extensive quotation of the passages relied on. They are not statements of law and, if I might say so, as general propositions simply a matter of common sense. However, in common with other crimes, the seriousness of an offence of murder is not judged solely by reference to an offender’s intention. Matters such as motivation, the infliction of cruelty or demonstrated criminality going beyond the necessary incidents of the killing are matters also to be taken into account. 58. That there is not a blanket rule precluding cases of murder where the intention is to inflict merely grievous bodily harm from falling into a worst category is apparent from R v Hillsley to which Price J referred and in which this Court increased a sentence to one of life imprisonment. To the passage quoted by his Honour from that case, one may add remarks at [26]:

However, there are some crimes which are so wicked that a sentence less than a life sentence cannot adequately reflect the community interest in retribution and punishment, quite apart from the potential for rehabilitation or any need to protect the community. 59. In R v Fernando (1997) 95 A Crim R 533 at 544, Abadee J made remarks to like effect. 60. That the (generally) less culpable intention to inflict grievous bodily harm does not necessarily preclude a life sentence is also consistent with the remarks of the majority of the High Court in Veen v The Queen (No 2) [1988] HCA 14; (1987–1988) 164 CLR 465 at 478 where the High Court said: … the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v R [1987] HCA 46; (1987) 163 CLR 447 at 451–2. That does not mean that a lesser penalty must be imposed if it is possible to envisage a worst case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category. 61. I should however refer to remarks of Badgery-Parker J in R v Twala (Unreported, 4 November 1994): (I)n order to characterise any case as being in the worst case category, it must be possible to point to features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed). 62. This passage from R v Twala has been cited with approval on numerous occasions, e.g. in R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409 at [84] and R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 at [39] but, with respect to his Honour and those who have endorsed the passage, it seems to me impossible to reconcile the statement that, “it must be possible to postulate the

absence of facts mitigating the seriousness of the crime” with the passage just cited from Veen v The Queen (No 2). It is almost inconceivable that a case of murder could not be made worse by the addition of an intention to kill … 63. Thus I do not regard Price J’s findings in paragraph [47] of his Remarks on Sentence [where he said In order to terrify Ma, an attack involving extreme cruelty was planned and procured by the Applicant upon the victim who had the misfortune to be Ma’s brother-in-law. This was a contract attack. He was to be attacked at his home at a time when his wife, Ma’s sister, was likely to be present. Acid was to be used not only to hideously disfigure him but also [page 658] to inflict awful pain. Acting upon their instructions the assailants doused the deceased with hydrochloric acid on the verandah of his home. He was hit with a gun. As a result the deceased died a slow and horrible death. In these circumstances, although this was not a contract murder procured with the intent to kill, the culpability of the Applicant is not reduced nor is the gravity of the offence. The Applicant’s level of culpability is such that the Applicant’s crime, in my view, falls within the worst category of the offence of murder] as leading to the conclusion that his Honour erred in the respects the subject of this ground. 64. In a further support … Mr Game SC for the Applicant argued that “community protection” in s 61(1) of the Crimes Act 1900 was directed to the issue of future dangerousness of the offender and was something separate from deterrence. He sought support for this view in the judgment of Wood CJ at CL in R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409 at [66] where, under the heading “Potential for dangerousness”, his Honour said: Bell J noted that no psychiatric evidence had been placed before her to assist with an assessment of the respondent’s potential for dangerousness in the future — that being a

matter of relevance in relation to the need to have regard to the protection of the community: Veen (No 2) [1988] HCA 14; (1988) 164 CLR 465. She held, consistently with the decision of this Court in Garforth NSWCCA 23 May 1994, that the case was one in which it was proper to look to the circumstances of the offences, so far as they threw light on his dangerousness. 65. Mr Game then drew attention to the remarks of Price J at [41], “His pitilessness for the ghastly injuries inflicted upon the deceased, however, does not enable me to form the view that there is no risk of him offending again if his interests are at stake” and submitted that the limited way in which the observation was couched meant that one could not conclude that the interest of community protection itself warranted the imposition of a life sentence upon the Applicant. 66. Mr Game also contended that … in talking of the community interest in community protection requiring a sentence that may deter other people was confusing the issues of community protection and deterrence and had mistaken what the community protection factor was directed towards. 67. I do not accept the correctness of any of this criticism. Implicit in the … Remarks on Sentence is the conclusion that, if released, there is a risk of the Applicant re-offending if his own interests are at stake. His Honour did not attempt to quantify that risk but it is clearly relevant to a determination of the sentence to be imposed. 68. Turning to the second aspect of the criticism, there can be no doubt that, particularly when used in juxtaposition to “deterrence”, “community protection” is an expression commonly directed to protection from the particular offender and his dangerousness. The discussion of the topic in Veen v The Queen (No 2) supports this view. So do the remarks of this Court in Garforth (unreported, NSWCCA, 23 May 1994) where the Court said: It is now well settled that the protection of society — and hence the potential dangerousness of the offender — is a relevant matter on sentence. 69. However, “community protection” is a perfectly normal English expression and protection from the dangerousness of a particular

offender is not the exclusive operation of it. The reference in R v Harris (quoted above) to a potential for dangerousness being “of relevance” to the need to have regard to the protection of the community rather than definitive of it tends in the same direction. I accept that it is not completely clear what his Honour was meaning in the second sentence of [48] but as likely an interpretation as any other is that “The community interest in community protection and deterrence requires a sentence which is sufficiently heavy that it may deter other people from even [page 659] considering using a contract attack to inflict terrible injuries upon an innocent person to terrorise another”. I am not persuaded that there is error in what his Honour said … 70. A fortiori is this so when it is recognised that, as the High Court in Veen v The Queen (No 2) at 476 made clear, the purposes of criminal punishment, viz of “protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform”, overlap. See also R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 at [43]. In these circumstances, I see no reason to interpret what Price J was referring to in his use of the expression “community protection” as only the dangerousness of the Applicant. 71. In any event … Price J stated his reasons for imposing a life sentence on the Applicant. Those reasons make clear that his Honour was not basing his sentence upon some conclusion that the interest of community protection itself warranted the imposition of a life sentence upon the Applicant. Accordingly, ground 1 of the grounds challenging the sentence imposed for the murder charge fails … [Appeal against the imposition of a life sentence dismissed.]

APPEALS 12.74 When the case is concluded, either the prosecution or the defence may believe that the process miscarried because the judge or magistrate misstated the law to the jury

or to himself or herself when deciding the case by judge alone trial; or allowed evidence to be admitted that should have been excluded or excluded evidence that should have been admitted; or wrongly or improperly exercised a power or discretion. To ensure that there are checks and balances in place, there are provisions that allow cases to be reviewed by way of appeal to a higher court. A decision of a magistrate in the Local Court may be the subject of an appeal to the District Court, a single judge of the Supreme Court or, in some cases, the Land and Environment Court or sometimes in the Court of Appeal. Appeals from decisions of the District Court or the Supreme Court are heard in the Court of Criminal Appeal. Appeals from the Court of Criminal Appeal are heard in the High Court of Australia. 12.75 Appeals from a magistrate are determined under the provisions of Pt 3 of the Crimes (Appeal and Review) Act 2001. Appeals against conviction or sentence are to the District Court and are by way of a rehearing on the evidence before the magistrate (ss 17 and 18). The Court can grant leave to introduce fresh evidence on an appeal against conviction but only where it is satisfied that it is in the interests of justice to do so (s 18(2)). There is an appeal to the Supreme Court from the magistrate but only on a question of law (s 52) or otherwise only with leave (s 53). An appeal from these proceedings is to the Court of Appeal. 12.76 Appeals to the Court of Criminal Appeal are governed by the Criminal Appeal Act 1912. Where the accused alleges that there was a legal issue, that is, a question of law that arose in the trial, then the accused may appeal to the Court of Criminal Appeal. [page 660] Where the accused’s complaint is that there has been an

error of fact, that is, that the verdict of the jury is unreasonable or cannot be supported by the evidence, then the accused may appeal only with the leave of the Court of Criminal Appeal or with a certificate from the trial judge confirming that there is an issue to be resolved on the appeal (Criminal Appeal Act 1912 s 5). Leave is also required where no complaint was made about the matter raised on appeal during the course of the trial: r 5 of the Criminal Appeal Rules.

Appeal against sentence 12.77 A person may also appeal on the basis that the sentence he or she has received is excessive in the circumstances (Criminal Appeal Act 1912 s 5). Equally, the Crown (ie, the prosecution) may appeal where it is of the view that a sentence is manifestly inadequate (Criminal Appeal Act 1912 ss 5D–5DB). The Court of Criminal Appeal may hypothetically increase or decrease the sentence imposed, regardless of who lodges the appeal. However, it would be a very rare case, and only for a purely technical reason, that the Court would increase a sentence on an offender’s appeal: Neal v R (1982) 149 CLR 305; 42 ALR 609.

Power of the Court of Criminal Appeal 12.78 The power of the Court of Criminal Appeal to determine appeals is set out in s 6 of the Criminal Appeal Act 1912. One of its most important provisions is that, even if satisfied that the original court made an error of law, the Court of Criminal Appeal may allow the conviction of the accused to remain if it is satisfied that ‘no substantial miscarriage of justice has actually occurred’. 6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5(1) against

conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. (2) Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered. (3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.

12.79 The Court’s task in applying the proviso in s 6(1) was considered in Weiss v R. [page 661] Weiss v R (2005) 224 CLR 300; 223 ALR 662; [2005] HCA 81 High Court of Australia [This was an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. Section 568(1) of the Crimes Act 1958 (Vic) was in the same terms as s 6(1) of the Criminal Appeal Act 1912.] Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ: [footnotes omitted] Applying the proviso

31. This Court has repeatedly emphasised the need, when applying a statutory provision, to look to the language of the statute rather than secondary sources or materials. In Fleming v The Queen, the Court said that “[t]he fundamental point is that close attention must be paid to the language” of the relevant criminal appeal statute because “[t]here is no substitute for giving attention to the precise terms” in which the relevant provision is expressed. 32. Many statements are to be found in the decided cases that describe the task presented by the proviso as being to decide whether conviction was “inevitable”. Other cases ask whether the accused was deprived of a “chance which was fairly open … of being acquitted” or a “real chance” of acquittal. 33. These expressions attempt to describe the operation of the statutory language in other words. They must not be taken as substitutes for that language. They are expressions which may mask the nature of the appellate court’s task in considering the application of the proviso. 34. Examination of the cases reveals that this danger of masking the nature of the appellate court’s task is acute when the test to be applied is expressed by reference to what a jury would have done. Frequent reference is to be found in the cases to what “the jury”, “a reasonable, and not a perverse, jury”, “a jury of reasonable men, properly instructed and on such of the material as should properly be before them”, would have done. … [A]s argument in the present appeal reveals, confining the debate about the meaning and operation of the proviso between a test referring to “this jury” and a test referring to “a reasonable jury properly instructed and on only the material that would properly be available” invites error. 35. The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a “substantial miscarriage of justice has actually occurred”. 36. By hypothesis, when the proviso falls for consideration, the appellate court has decided that there was some irregularity at trial. If there was not, there is no occasion to consider the proviso. In

cases, like the present, where evidence that should not have been adduced has been placed before the jury, it will seldom be possible, and rarely if ever profitable, to attempt to work out what the members of the trial jury actually did with that evidence. In cases, like the present, where the evidence that has been wrongly admitted is evidence that is discreditable to the accused, it will almost always be possible to say that that evidence might have affected the jury’s view of the accused, or the accused’s evidence. And unless we are to return to the Exchequer rule (where any and every departure from trial according to law required a new trial) recognition of the possibility that the trial jury might have used wrongfully received evidence against the accused cannot be treated as conclusive of the question presented by the proviso. [page 662] 37. This may suggest that reference may be made to what a reasonable jury, properly instructed, would or might have done. That would at least make the inquiry objective and take away what might be said to be the element of speculation implicit in the “this jury” test. 38. In some cases, no doubt, invocation of the jury, and what they would inevitably have done, may amount to nothing more than the appellate judges reminding themselves of the ordinary entitlement of an accused person to have serious criminal charges decided in the first instance by a jury — sometimes described as “the constitutional judge of fact”. In some cases, the jury may have been mentioned because appellate judges wished to remind themselves of the need to apply the criminal standard of proof, a task commonly reserved in serious criminal trials to a jury. In still other cases, the reference may have been made by the appellate judges to remind themselves of the special features that attend the trial of serious criminal accusations before a jury whose verdicts are inscrutable but final, and sometimes reflect consideration of practical wisdom in deciding multiple issues presented by complex evidence. Occasionally, reference to the jury might have been invoked in an endeavour to clothe the conclusion of the appellate judges in the apparel of a jury verdict, so as to attract to the appellate judgment the respect and finality conventionally accorded to jury verdicts. However this may be, as the present case illustrates, difficulties can arise in applying such tests, at least in

cases where conflicting evidence has been given at trial. Is it enough to notice, as was noticed in the present case, that another jury might take a different view of the credibility of witnesses from that apparently taken at trial, in order to conclude that the proviso does not apply? Taken to its logical conclusion such an approach would again tend to readopting the Exchequer rule, for it would preclude applying the proviso in any case in which there was a substantial factual controversy at trial. Yet as the history of the criminal appeal provisions reveals, the legislative objective in enacting the proviso was to do away with the Exchequer rule and the language of the proviso is apt to achieve that objective. 39. Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt. Reference to inevitability of result (or the converse references to “fair” or “real chance of acquittal”) are useful as emphasising the high standard of proof of criminal guilt. They are also useful if they are taken as pointing to “the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record”. But reference to a jury (whether the trial jury or a hypothetical reasonable jury) is liable to distract attention from the statutory task as expressed by criminal appeal statutes, in this case, s 568(1) of the Crimes Act. It suggests that the appeal court is to do other than decide for itself whether a substantial miscarriage of justice has actually occurred. … The statutory task and the proviso 41. That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the

case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond [page 663] reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself. 42. It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration. 43. There are, however, some matters to which particular attention should be drawn. First, the appellate court’s task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not “to speculate upon probable reconviction and decide according to how the speculation comes out”. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt.

44. Next, the permissive language of the proviso (“the Court … may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal …”) is important. So, too, is the way in which the condition for the exercise of that power is expressed (“if it considers that no substantial miscarriage of justice has actually occurred”). No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty. 45. Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind. … [Appeal allowed.]

12.80 Weiss has been applied when considering the proviso in New South Wales, see Carney v R; Cambey v R (2011) 217 A Crim R 201; [2011] NSWCCA 223; Cooper v R (2012) 293 ALR 17; [2012] HCA 50; PR v R [2015] NSWCCA 215. [page 664] 12.81 Difficulty arises with the application of the proviso if the accused’s appeal is based on the claim that there was a ‘miscarriage of justice’ (s 6(1)). How can a court find, on the one hand, that there was a miscarriage of justice but, on the other, that there was no substantial miscarriage of justice? This issue was considered in Carlton. Carlton v R

(2008) 189 A Crim R 332; [2008] NSWCCA 244 NSW Court of Criminal Appeal [The accused was convicted of several offences regarding the sexual assault of a child. On appeal he argued that the trial had miscarried due to errors in the directions given to the jury by the judge with regard to the use they could make of certain evidence and his prior history as a drug dealer.] Basten JA: … 67. The obligation of the Court to allow the appeal when of the opinion that one of the conditions identified in s 6(1) is satisfied, is not absolute; it is subject to the proviso that the Court may dismiss the appeal if affirmatively satisfied that “no substantial miscarriage of justice has actually occurred”. In Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [36] the High Court noted that “[b]y hypothesis, when the proviso falls for consideration, the appellate court has decided that there was some irregularity at trial”. However, where the verdict was neither unreasonable nor unsupportable and where there was no error of law in the course of the trial, there is some awkwardness in treating s 6(1) as involving a rigid two-stage process whereby the Court must determine that there has been “a miscarriage of justice”, before considering whether the miscarriage was not substantial. … 69. The problem of the inter-relationship between the proviso and the various bases upon which a conviction may be set aside exists with respect to each category, but appears to be most acute in respect of the third miscarriage of justice category. That is because there is a degree of artificiality in saying that there has been a miscarriage, in the sense of an irregularity which may have affected the verdict, but saying that it was not a substantial miscarriage. With respect to an error of law in the direction to the jury, it would be surprising if the section required the Court to allow the appeal on such a ground unless the error were material, because it might have affected the outcome; however, that would be sufficient to satisfy the proviso. … [T]he burden will shift from the appellant, who must establish a ground of appeal, to the prosecution, which must establish that the proviso is engaged. However, to speak about a burden on one party or the other is unlikely to have practical consequences. What the appellant must prove is the error

or irregularity; the assessment of that error or irregularity as material or as not giving rise to a substantial miscarriage, is an evaluative judgment about which the Court must reach a view, one way or the other. It is likely to be a relatively rare case in which the Court is unable to reach a view and the burden becomes decisive. … 70. Where the complaint is based upon a lack of “balance” or fairness in the summing-up, it will often be necessary to evaluate the summing-up as a whole and in the context of the evidence and the addresses of counsel. No different exercise will be required in applying the proviso. Even though it may be possible to identify specific aspects of the defence case which were not adequately put to the jury by the trial judge, there is nevertheless an air of artificiality in adopting a two-stage analysis. Nor does the section appear to require it: it does not envisage that the obligation to allow the appeal must be engaged before the proviso is considered. Rather the power to dismiss the appeal, by applying the proviso, is said to arise if the Court is of opinion that “the point [page 665] or points raised by the appeal might be decided in favour of the appellant”. No doubt it is necessary for the Court to be satisfied that there are irregularities which might constitute a miscarriage of justice, and to assess the materiality of those irregularities. The Court is not required, however, to reach a firm conclusion that there has been a miscarriage of justice, before considering whether it is also satisfied that no substantial miscarriage has actually occurred. … 71. … The High Court explained in Weiss at [45]: What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind. 72. Although there were aspects of the trial judge’s summing-up in the present case which revealed inadequacies or irregularities, they

were not so material as to amount to a significant denial of procedural fairness. Accordingly, adopting the approach required by Weiss, it is necessary for this Court to decide whether a substantial miscarriage of justice has actually occurred. … [His Honour then went on to consider the evidence and the judge’s directions and found there was no substantial miscarriage of justice. Hislop and Price JJ agreed. Appeal dismissed.]

Petition to the Governor based upon fresh evidence following final appeal 12.82 Even when all appeals have been heard and finalised, the accused still has a right to have his or her conviction reviewed if fresh evidence is found suggesting that he or she is not guilty (Crimes (Appeal and Review) Act 2001 Pt 7). In R v Catt [2005] NSWCCA 279, the Court of Criminal Appeal described the principles and procedures which apply where, based upon ‘fresh evidence’, the appellant petitions the Governor seeking a review of his or her conviction. After considering the petition, the Governor may direct a judicial officer to conduct an inquiry into the prisoner’s conviction or sentence, or the Minister may refer the case to the Court of Criminal Appeal ‘to be dealt with as an appeal under the Criminal Appeal Act 1912’ or to ask the Court to provide an opinion on any issue raised by the case (s 77). 12.83 Alternatively an application may be made to the Chief Justice or a judge nominated by the Chief Justice. That judge, sitting as the Supreme Court, may also direct that an inquiry be conducted by a judicial officer or that the matter be sent back to the Court of Criminal Appeal to be heard as if it is an appeal under the Criminal Appeal Act 1912 (Crimes (Appeal and Review) Act 2001 s 79). 12.84 Where a judicial officer is appointed to conduct an inquiry, either by the Governor or the Chief Justice, that

officer has all the powers of a Royal Commission (s 81). Following an inquiry the judicial officer must report back to the Governor or Chief Justice. If the inquiry was ordered by the Chief Justice, the Chief Justice must then prepare a further report to be delivered to the Governor. The Governor may then dispose of the matter ‘in such manner as to the Governor appears just’ (s 82). If the judicial officer conducting the inquiry has any doubt about the accused’s guilt or whether some matter that affected the severity of sentence was properly decided, [page 666] he or she is to refer the case back to the Court of Criminal Appeal to determine whether or not the conviction should be quashed or the sentence varied. 12.85 In Application of Peter James Holland [2008] NSWSC 251 Johnson J set out some relevant principles to be applied when considering an application for review. He said (references omitted): 9 The procedure under s 78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result. 10 The jurisdiction which a judge is exercising under Part 7 Crimes (Appeal and Review) Act 2001 is an administrative function which may be activated when the criminal justice system has run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence. The powers available under s 79 are limited to the direction of an inquiry or referral of the case to the Court of Criminal Appeal. They do not extend to a power to quash convictions or direct acquittals (as the Applicant sought in this case). 11 The nature of the jurisdiction under Part 7 involves some

flexibility in the material which may be placed before a judge in support of an application for an order directing an inquiry or referring the case to the Court of Criminal Appeal … 12 If the judge refers the case to the Court of Criminal Appeal, however, that Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912. On an appeal following referral, the test governing the reception of new and fresh evidence on appeal is applicable. Reasons for Determining s 78 Application … 18 The provisions contained in Part 7 suggest that where a judge declines to direct an inquiry or refer the case, some reasons for that decision should be provided. Section 79(3)(a) (ii) provides that the Court may refuse to consider or otherwise deal with an application if it appears that the matter has previously been dealt with under Part 7 or previous review provisions, and the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. It might be thought that a judge is in a better position to reach such a view if reasons have been provided by the first judge for refusing the previous review application. 19 Where a judge directs an inquiry under s 79(1)(a) of the Act, it might be expected that reasons will be provided for such a direction to allow an understanding of the circumstances giving rise to the doubt or question identified for the purposes of s 79(2) of the Act. Reasons might also be expected where a referral of the whole case is made to the Court of Criminal Appeal under s 79(1)(b) of the Act, although it will be a matter for the Court of Criminal Appeal to determine the appeal upon the grounds and materials before that Court …

Rule against double jeopardy — autrefois convict and autrefois acquit 12.86 The rule against double jeopardy says that an

accused person should not be subject to the risk of criminal prosecution more than once for the same offence or on [page 667] the same facts. Pearce v R concerns the aspect of double jeopardy involved in double prosecution and double punishment. Pearce v R (1998) 194 CLR 610; 156 ALR 684; [1998] HCA 57 High Court of Australia [The accused was charged with two offences: maliciously inflicting grievous bodily harm with intent to do grievous bodily harm (contrary to the Crimes Act 1900 s 33), and breaking and entering the victim’s home and, whilst there, inflicting grievous bodily harm on him (contrary to the Crimes Act 1900 s 110). He was convicted and sentenced for both offences. He appealed on the basis that he had, in fact, been punished twice for the same matter. His appeal to the NSW Court of Criminal Appeal was dismissed. He appealed to the High Court.] McHugh, Hayne and Callinan JJ: [footnotes omitted] … 10. If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States: The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. That underlying idea can be seen behind the pleas in bar of autrefois acquit and autrefois convict as well as behind the other forms or manifestations of the rule against double jeopardy. It also

finds reflection in constitutional guarantees such as the 5th Amendment to the United States Constitution, which states in part: [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. It may be seen as a value which underpins and affects much of the criminal law. But pervasive as it is, this value is not the only force at work in the development of these parts of the common law. Three further forces can be identified. 11. First, as the range of crimes and punishments for crime has expanded, it has become apparent that a single series of events can give rise to several different criminal offences to which different penalties attach. 12. Secondly, it has been recognised that an offender should be punished only for the offence with which he or she was charged, and not for some offence or version of the offence not charged. 13. Thirdly, and as a corollary to the second matter we have mentioned, prosecuting authorities have sought to frame charges against an accused that will reflect all of that accused’s criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of that conduct. … Double prosecution 16. It is clear in this case that each of the offences concerned contains an element that the other does not — a specific intent to do grievous bodily harm in s 33 which is absent from s 110 and a breaking and entering in s 110 which is absent from s 33. Neither offence, therefore, is wholly included in the other. So much was conceded by the appellant. It was argued, however, that at common law a person cannot be convicted of different offences “in respect of the same or substantially the same set of facts”. That is [page 668] of central importance in this case, because, as stated above, the two offences arose out of a single episode. The question then is whether the appellant had a plea in bar or was entitled to a stay of proceedings. … 18. It is clear that the plea in bar goes to offences the elements of

which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal. There are, however, decisions that a person may not be prosecuted for one offence when that person has previously been prosecuted for “substantially the same” offence, or for an offence the “gist” or “gravamen” of which is the same as the subject of the earlier prosecution or, as was said in Wemyss v Hopkins, for the “same matter”. It may be suggested that these cases indicate that a plea in bar is also available if a person is charged with different offences arising out of substantially the same set of facts. 19. Much of the difficulty in determining whether a plea in bar is available when a person is charged with different offences arising out of substantially the same facts can be seen to stem from two sources: first, the uncertainties inherent in the proposition that it is enough that the offences are “substantially” the same; and secondly, the attempt to identify the “sameness” of two offences by reference to the evidence that would be adduced at trial. But these difficulties may be more apparent than real. 20. In each of Chia Gee v Martin and Li Wan Quai v Christie, Griffith CJ identified the test for whether a plea in bar would lie as being “whether the evidence necessary to support the second [charge or prosecution] would have been sufficient to procure a legal conviction upon the first”. At first sight this might suggest that it is appropriate to consider what witnesses would be called and what each of those witnesses could say about the events which gave rise to the charges. Closer examination reveals that the enquiry suggested is different; it is an enquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say. It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the enquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges arise out of the same transaction or course of events. 21. Further, when it is said that it is enough if the offences are “substantially” the same, this should not be understood as inviting

departure from an analysis of, and comparison between, the elements of the two offences under consideration. … 24. On closer analysis, therefore, it may be that … cases that are said to support the proposition that a plea in bar is available when a person is charged with different offences arising out of the same set of facts do not do so. Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other. 25. Shifting attention to whether the offences arise out of the same conduct, or out of a single event or connected series of events, would be to substitute for a rule prohibiting prosecution twice for a single offence a rule that would require prosecuting authorities to bring at one time all the charges that it is sought to lay as a result of a single episode of offending. That would raise still further questions. How would a single episode of offending be defined? Would its limits be temporal or would they be founded in the intentions of the actor? … 30. The decision about what charges should be laid and prosecuted is for the prosecution. Ordinarily, prosecuting authorities will seek to ensure that all offences [page 669] that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily. 31. There was, however, no abuse of process in charging this appellant with both counts 9 and 10. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or

offences charged, excluding consideration of any part of the accused’s conduct that could have been charged separately. 32. It follows that the primary judge was right to conclude that the proceedings on the indictment (or counts 9 and 10 in particular) should not be stayed. 33. More difficult questions arise in deciding whether the appellant could be or was doubly punished. Double punishment … 40. To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. … 42. It is clear in this case that a single act (the appellant’s inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by “excessive subtleties and refinements”. It should be approached as a matter of common sense, not as a matter of semantics. 43. The trial judge sentenced the appellant to identical terms of imprisonment … We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act. [Appeal on conviction dismissed. Appeal against sentence allowed on the basis that the sentence did constitute double punishment. Remitted to the Court of Criminal Appeal to be determined in accordance with the principles set out by the High Court. In

separate judgments Gummow J agreed with the majority; Kirby J dissented to the extent that his Honour agreed that ‘[t]he reasoning of the primary judge was defective; that is true. But the total sentence which he imposed on the appellant was not. Our ultimate duty is to correct orders; not reasons. If the reasons are defective but the orders right, we should say so.’]

[page 670] 12.87 In PNJ v R (2009) 252 ALR 612; 193 A Crim R 54; [2009] HCA 6, the applicant was charged with malicious wounding and sentenced to seven years’ imprisonment with a non-parole period of four years. Shortly before his sentence would have expired, the victim died and the accused was charged with murder. The accused/applicant sought to have the proceedings for murder stayed on the basis that it would be an abuse of process and that, having served his sentence for wounding, he would be subject to ‘double punishment’ if now sentenced for murder. The offence occurred in South Australia where the law required that a person convicted of murder would be sentenced to life imprisonment and, normally, with a non-parole period of 20 years. The High Court found that, if he were convicted of murder, it would be appropriate for the trial judge to backdate his sentence to the time that he was first arrested so that the time already served in prison for the wounding offence would count as time served for murder. In rejecting the applicant’s argument that to sentence him for murder would be double punishment and an abuse of process, the Court (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) held: 21. The applicant’s further submission that backdating the commencement of both elements of his sentence to the date of his arrest did not prevent double punishment was advanced with particular reliance upon this Court’s decision in Pearce v The Queen. The applicant submitted that backdating the commencement of a sentence for murder would be the same as ordering service of that sentence concurrently with the sentence for wounding, and constitute double punishment

for the single act of inflicting grievous bodily harm on the victim. It was said, by the plurality in Pearce, that “[t]o the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common”. But as the reasons went on to point out, that general principle must yield to contrary legislative intention. 22. In the present case, if the applicant is convicted of murder, a sentence of life imprisonment is mandatory and, absent “special reasons”, no non-parole period less than 20 years may be fixed. For the sentencing judge to impose on the applicant the only sentence that the law permits cannot be said to be an abuse of process.

12.88 The rule against double jeopardy can arise in different situations, the most obvious of which is seen in its application to the risk of prosecution twice for the same offence. Whether convicted or acquitted, the accused cannot be subsequently re-tried for the same offence. A manifestation of this rule is the plea of ‘autrefois convict’ or ‘autrefois acquit’ where an accused, when charged with an offence, pleads that the accused cannot be tried as he or she has already been convicted or acquitted, as the case may be. These pleas are highly technical but the courts have extended the concept to bar a second prosecution even where these pleas did not arise. In R v Carroll the court refused a second prosecution that was inconsistent with a prior jury acquittal even though the charges were different. The decision was controversial with the general public, but, subject to some limitations considered below, is still good law. [page 671] R v Carroll (2002) 213 CLR 635; 194 ALR 1; [2002] HCA 55 High Court of Australia [The accused was convicted of the murder of a child, Deidre

Kennedy. At his trial he gave evidence to the effect that he did not kill the deceased. The Queensland Court of Criminal Appeal upheld his appeal and ordered a verdict of acquittal be entered. Fourteen years later he was charged with perjury on the basis that his denial of guilt was a lie. He was convicted of perjury, appealed, and again the Queensland Court of Criminal Appeal upheld the appeal and ordered a verdict of acquittal. The prosecution appealed. Some footnotes have been omitted or shortened.] Gleeson CJ and Hayne J: … 6. … [T]he question was treated in the Court of Appeal, and in the application to this Court, as being whether there were grounds for the exercise of a discretion to stay his trial on the charge of perjury, as an abuse of process. This was said to depend upon a principle that the acquittal for murder was incontrovertible. The similarity of the evidence to be called and the factual inquiry to be made on the trial of the indictment for perjury to the evidence called and factual inquiry made on his trial for murder was said to reveal that the trial of the charge of perjury would controvert the acquittal for murder. … 19. What is it that constitutes the alleged abuse of process? 20. The answer proffered by the respondent to these questions is that having been acquitted of murder he should not now face a charge that he lied on oath when he denied killing Deidre Kennedy. The effect of trying him for the alleged perjury is, so it was submitted, to try again the issue which was central to his trial for murder and to controvert the verdict of acquittal entered after the trial and appeal. To understand the basis for the respondent’s contention that the Court of Appeal is not shown to have erred in concluding that the trial for perjury should be stayed, it is necessary to refer to some fundamental considerations. … 21. A criminal trial is an accusatorial process in which the power of the State is deployed against an individual accused of crime. Many of the rules that have been developed for the conduct of criminal trials therefore reflect two obvious propositions: that the power and resources of the State as prosecutor are much greater than those of the individual accused and that the consequences of conviction are very serious. Blackstone’s precept ‘that it is better

that ten guilty persons escape, than that one innocent suffer’ may find its roots in these considerations. 22. Many aspects of the rules which are lumped together under the title ‘double jeopardy’ find their origins not so much in the considerations we have just mentioned as in the recognition of two other no less obvious facts. Without safeguards, the power to prosecute could readily be used by the executive as an instrument of oppression. Further, finality is an important aspect of any system of justice. … 23. It is, nonetheless, important to recall that the four considerations which we have mentioned (the imbalance of power between prosecution and accused, seriousness for an accused of conviction, prosecution as an instrument of tyranny and the importance of finality) are not the only considerations which find reflection in the criminal law [page 672] system. At the very root of the criminal law system lies the recognition by society that some conduct is to be classified as criminal and that those who are held responsible for such conduct are to be prosecuted and, in appropriate cases, punished for it. It follows that those who are guilty of a crime for which they are to be held responsible should, in the absence of reason to the contrary, be prosecuted to conviction and suffer just punishment. 24. Reference to the general propositions we have mentioned is important not because the answer to the issues now being considered can be found by deductive reasoning which takes any or all of them as a premise but because they are values to which the criminal law can be seen to give effect. They are values that may pull in different directions. There are, therefore, cases in which a balance must be struck between them. To take only one obvious example, it is accepted that in order to acquit the innocent, some who are guilty will go unpunished. But conversely, to punish the guilty, some who are innocent will suffer the very real detriments of being charged and tried for an offence they did not commit. It follows that to argue from any one of the considerations we have identified to some rule of universal application is to invite error.

25. Until very recently it has been accepted as a basal tenet of the law that no person who has been acquitted of an offence should be required to stand trial again for the same offence. That is not what was done in the present case. The respondent, having been acquitted of the charge of murder, was not indicted again on that charge. Nonetheless, some, but not all, of the facts which it would be necessary to prove to establish the charge of perjury brought against the respondent were facts which, together with other facts, constituted the elements of the offence of murder of which he had been acquitted. Common to both charges was the prosecution’s allegation that the respondent had killed Deidre Kennedy. To establish the charge of murder other facts (particularly the intention with which the killing occurred) had to be established and those other facts were not at issue at the perjury trial. On the perjury trial the prosecution had to demonstrate that the respondent had given sworn evidence that he did not kill Deidre Kennedy and, of course, that formed no part of the proofs the prosecution had to make on the murder trial. What the prosecution had to prove at each trial was, therefore, not identical. 26. Nonetheless, the factual inquiries made at the two trials, in the end, came to focus upon the same issue — did the respondent kill Deidre Kennedy? At his trial for murder, the issue which was fought was whether it was the respondent who had killed her. The trial was conducted on the footing that there had been a murder. On his trial for perjury there appears to have been no controversy about the fact that the respondent had sworn that he had not killed Deidre Kennedy; again, the focus of factual inquiry was, did he kill her? In the course of argument in the Court of Appeal the prosecutor expressly acknowledged that the perjury case was conducted, in practical effect, as a re-trial for murder. … 29. … It was said … [in Grdic v R [1985] 1 SCR 810 at 822 per Lamer J] that the issue was ‘the availability of the defence of issue estoppel per rem judicatam on a charge of perjury’. Framing the issue in terms of preclusion has led to consideration of the applicability of exceptions to rules of preclusion in cases where judgment has been obtained by: ‘an extrinsic, collateral act; which vitiates the most solemn proceedings of courts of justice’. 30. Analysing the issues in this way presents no little difficulty. …

40. There are cases where a charge of an offence would be manifestly inconsistent on the facts with a previous acquittal, even though no plea of autrefois acquit is available. [page 673] Since, in most cases of trial by jury, it will not be known why the accused was acquitted, and in many cases the reason may simply be that the jury had a doubt about whether the prosecution had established some element of the offence, the inconsistency, if it exists, will appear from a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial. 41. The present case provides an example. The only element of the offence of murder that was in issue at the original trial of the respondent was whether he killed Deidre Kennedy. The perjury alleged at the second trial consisted of the respondent’s falsely denying, on oath, that he killed Deidre Kennedy. The falsity of the testimony was claimed to be that he said he did not kill Deidre Kennedy whereas in truth he killed her. It was accepted in argument in this Court that, although it was not expressly averred, it was necessarily implied in the perjury indictment that the respondent had killed the child. 42. In the present case, there was manifest inconsistency between the charge of perjury and the acquittal of murder. That inconsistency arose because the prosecution based the perjury charge solely upon the respondent’s sworn denial of guilt. The alleged false testimony consisted of a negative answer to a question, asked by his counsel, whether the respondent killed the child. The fact that the question asked was whether the respondent killed Deidre Kennedy rather than whether he murdered her, or whether he was guilty, is immaterial. Discretionary decisions do not turn upon such differences. Once such manifest inconsistency appeared, then the case for a stay of proceedings was irresistible. 43. The prosecuting authorities considered that they had available to them further evidence which became available only after the first trial, and which, so it was argued, strengthened the case that the respondent had murdered Deidre Kennedy. Much of the reasoning of the Court of Appeal was addressed to an examination of the strength and cogency of the new evidence. …

44. The Court of Appeal concluded that the further evidence adduced at the perjury trial was deficient and unsatisfactory, and that it added little to the original evidence, but it considered that examining the strength and cogency of the new evidence was crucial to the exercise of the discretion to stay the proceeding. In that respect, the reasoning of the Court of Appeal was unduly favourable to the prosecution. The inconsistency between the charge of perjury and the acquittal of murder was direct and plain. The laying of the charge of perjury, solely on the basis of the respondent’s sworn denial of guilt, for the evident purpose of establishing his guilt of murder, was an abuse of process regardless of the cogency and weight of the further evidence that was said to be available. 45. The need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct is a principle which requires that it is the verdict of acquittal which should be incontrovertible. It is not necessary in this case to attempt to decide what may be the limits of the principle about incontrovertibility and, in any event, it would be unwise to attempt to do so. It is a proposition which has not been held to preclude persons other than the prosecution asserting in later proceedings that the person committed the crime of which he or she was acquitted at trial. … 46. In Rogers [Rogers v R (1994) 181 CLR 251] a majority of the Court held that for the prosecution to tender in evidence at a later trial records of interview which had been held inadmissible in an earlier prosecution for other offences would constitute a direct challenge to the earlier determination of admissibility — a determination which, if not [page 674] final when made on the voir dire, became final once verdicts of acquittal were returned. That being so, the majority held that the tender would be an abuse of process. In Rogers, there had been a finding by the trial judge in the first trial that the records of interview were not made voluntarily. There was, therefore, a positive finding to which it could be said that effect should be given. The abuse of process identified by the majority could, therefore, be said to lie in the prosecution seeking to relitigate that finding and have the trial judge at the second trial conclude that

the record of interview was not shown to have been made involuntarily. 47. Whether Rogers or Garrett [Garrett v R (1977) 139 CLR 437] should be understood as standing for some wider proposition need not be decided, although it may be accepted that there may be cases where a second prosecution is argued to be oppressive and an abuse of process, even though there is no direct inconsistency between the new charge and the earlier verdict. The circumstances that may constitute oppression or an abuse of process are various. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined. Nevertheless, where it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged. Seldom, if ever, will considering whether the later charge controverts an earlier acquittal require attention to whether evidence which would be led at a second trial is new or persuasive. 48. To approach the question by directing attention to the elements of the two offences would recognise that the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings and that it is what is decided in litigation that is final. Directing attention to evidence given at an earlier trial may serve to detract attention from what it is that was decided. 49. To pursue what is thought to be the objectively correct outcome of criminal proceedings is inconsistent with finality. As the Law Commission of England and Wales recognised in its report on Double Jeopardy and Prosecution Appeals, finality is a value which finds its roots in personal autonomy, and which serves to delineate the proper ambit of the power of the State by the State acknowledging ‘that it respects the principle of limited government and the liberty of the subject’. 50. Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an

accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. … 51. Proceedings on the indictment for perjury should have been stayed, as the Court of Appeal concluded. The prosecution inevitably sought to controvert the earlier acquittal on the charge of murder. [McHugh J, in a separate judgment, and Gaudron and Gummow JJ in a separate joint judgment, agreed that the Crown had raised an important point of law that needed resolution by the High Court, so that special leave should be granted, but that the appeal should be dismissed.]

12.89 Legislative amendments in New South Wales have gone some way to restricting the double jeopardy rule. The Director of Public Prosecutions (DPP) may [page 675] apply to the Court of Criminal Appeal for the right to retry a person acquitted of an offence that carries a maximum penalty of life imprisonment if the DPP can show that there is ‘fresh and compelling’ evidence against the accused and it is ‘in the interests of justice’ for the person to be re-tried (Crimes (Appeal and Review) Act 2001 s 100). A fresh trial may also be ordered where the accused or a person has been convicted with an ‘administration of justice offence’ (see, for example, Crimes Act 1900 Pt 7) and the court is satisfied that it is ‘more likely than not’ that the accused would have been convicted but for the commission of the administration of justice offence (ss 101 and 103). This provision may weaken the rule against double jeopardy but is consistent with the right of a convicted person, after all appeals have otherwise been exhausted, to seek to have his or her conviction reviewed (Crimes (Appeal and Review) Act 2001 Pt 7). 12.90 Amendments to the Crimes (Appeal and Review)

Act 2001 followed the decision in Carroll (see 12.88). Notwithstanding that they were a reaction to the judgment in that case, they would not have affected the outcome. Carroll was acquitted of the murder of a child. The murder took place in 1973. At Carroll’s trial in 1984, the Crown relied on expert dental evidence to argue that bite marks on the body of the deceased were made by him. He was convicted by the jury but that conviction was set aside by the Court of Appeal. In 1985 he was charged with perjury and the Crown, to prove that his answer to the question ‘Did you kill Deidre Kennedy?’ was a lie, relied on an alleged admission and evidence from another forensic dentist that the bite marks on the body were caused by Carroll. The Queensland Court of Appeal found that an alleged gaol house confession made 16 years beforehand was not substantial new evidence. With respect to the expert evidence, Williams JA in the Court of Appeal (R v Carroll [2001] QCA 394) said at [54]: It is clear from a consideration of the evidence of the odontologists called at the perjury trial that there was no new substantive information over and above that available at the murder trial, on which their opinion was based. All of the computer generated images (and the calculations made by Adams) were based on the photographs and reproduction of the appellant’s teeth available at the first trial. At the murder trial, for substantive reasons given by the Court of Criminal Appeal, the odontological evidence was insufficient to found positive identification of the person responsible for the bite. The odontological evidence led by the prosecution at the perjury trial amounted to no more than calling another three witnesses to give opinion evidence based on the same material which it was hoped might persuade the jury (and the court) that positive identification had been made. In my view that was a clear breach of the double jeopardy principle. If the conduct of the prosecution case at the perjury trial was endorsed then it would mean that the prosecution could always seek to overcome an acquittal by calling another

group of experts who it was hoped would be more convincing in expressing their opinion based on the same basic information available at the first trial. It should also be noted that the witnesses on the perjury trial were not in complete agreement as to which teeth were responsible for particular marks.

[page 676] In short, despite the Crown’s assertion and popular opinion at the time, there was in fact no substantial fresh evidence against Carroll. The result is that, even with the amendments to the law, at least in New South Wales, Carroll would not be a suitable case for the grant of a retrial following an acquittal. 12.91 Where a person is charged with an offence and pleads guilty to a lesser offence, for example, where an accused person is charged with murder but pleads guilty to manslaughter, that acts as an acquittal on the charge of murder and sets up a bar to any subsequent prosecution for the more serious offence (Gilham v R (2007) 178 A Crim R 72). 12.92 The amendments to the Crimes (Appeal and Review) Act 2001 also allow the Crown to appeal where a person is acquitted as a result of a directed verdict. R v LK and R v RK discussed and extracted at 10.31 is an example of an unsuccessful appeal by the Crown against a directed acquittal under these provisions. R v JS, below, was the first use of this power by the Crown and a constitutional issue was raised by the respondent as to the validity of the legislation. R v JS (2007) 230 FLR 276; 175 A Crim R 108; [2007] NSWCCA 272 NSW Court of Criminal Appeal [The accused/respondent was tried in New South Wales for two indictable offences under the Crimes Act 1914 (Cth) relating to the alleged intentional destruction of computer data that may have

been required in evidence in a judicial proceeding. The trial judge directed the jury to acquit the accused. The Commonwealth Director of Public Prosecutions appealed. The respondent argued that the amendments could not apply to offences contrary to Commonwealth law as they were inconsistent with s 80 of the Australian Constitution which guarantees a right to trial by jury for offences contrary to Commonwealth (as opposed to state) law. The Court (Spigelman CJ, with Mason P, McClellan CJ at CL, and Hidden and Howie JJ agreeing) dismissed the appeal. Mason P added the following comments on the constitutional issue.] Mason P: … 164. It is common ground in this Court that the trial was held in accordance with s 80 of the Constitution, notwithstanding that the verdicts were given at the direction of the trial judge. A directed verdict of acquittal is a long-established method of bringing a jury trial to finality in such a way as to engage the autrefois acquit branch of the rule against double jeopardy. 165. The appeal does not engage the body of case law that permits proceedings to be regarded as a nullity because of non-compliance with a fundamental aspect of the concept of trial on indictment … 166. Section 107 of the Crimes (Appeal and Review) Act 2001 allows the Director of Public Prosecutions to appeal against an acquittal on a ground that involves a question of law alone. The Chief Justice demonstrates why this provision applies in this State with respect to federal matters by the operation of s 68(2) of the Judiciary Act 1903 (Cth). The respondent submits that, in addition to the retrospectivity issue touching the instant trial, s 80 of the Constitution would preclude s 107 from being capable of applying with respect to the trial on indictment of federal offences. It is submitted that s 80 of the [page 677] Constitution prevents the Crown from appealing against a verdict of acquittal by a jury in a federal proceeding. … 171. This case poses the question whether the constitutional guarantee entrenches what is said to be the attribute of finality of the jury’s acquittal. … [T]he common law recognised that a verdict of acquittal could not be set aside by the trial judge, or challenged

by any process of appeal or judicial review, or ignored by the launching of a fresh prosecution. These principles applied even where the verdict stemmed from judicial error in the form of a ruling on evidence or misdirection … 172. In Snow [R v Snow (1915) 20 CLR 315] the High Court recognised unanimously that the finality principle was an important aspect of the institution of trial by jury in the common (and constitutional) law of England. But the Court split 3:3 as to whether this had any bearing on s 80. … 175. In the final analysis it is unproductive to search for the ratio decidendi of individual judgments in Snow. The parties accept that the equal division of opinion about the scope of s 80 precludes Snow from being a binding authority as to the scope of the constitutional guarantee. 176. I shall briefly state my reasons for preferring the narrower interpretation of s 80 … 177. No one, to my understanding, disputes the proposition that a jury verdict of acquittal was “final” according to ancient common law … 180. My reasons for locating the finality principles outside the constitutional guarantee of trial by jury are threefold. 181. First, I see some support textually from the repeated references to “trial” in s 80. Section 80 spells out a “method” of trial … or a “mode of criminal procedure” … The section says nothing about how often that function may be performed, or the circumstances in which a new trial may be ordered. It is also silent as to the status of a verdict. 182. Secondly, I would adopt the reciprocity argument developed by Isaacs and Higgins JJ in Snow. If s 80 connoted the common law’s finality of an acquittal it would follow that it would connote the finality of a conviction, given that the common law knew no appeal against either outcome. In Higgins J’s words (Snow at 354), “in 1900, when our Constitution was passed into law, there was no appeal in English Courts from either conviction or acquittal”. No one suggests that s 80 precludes statutory rights of appeal against conviction. 183. I do not think that the force of this argument is met by

pointing to limited remedies available in the nineteenth century to challenge wrongful convictions … 184. Thirdly, the United States experience as at the commencement of the Australian Constitution located finality principles touching a verdict of guilt or innocence within the American constitutional rules about double jeopardy, not within their constitutional rules about trial by jury in criminal matters. The founders of the Australian Constitution, who had before them the American model, chose to adopt a constitutional guarantee of trial by jury and decline a constitutional entrenchment of double jeopardy principles … 193. The reasoning of the High Court in The Queen v Carroll (2002) 213 CLR 635 [see 12.88] demonstrates that the doctrine of double jeopardy reflected in the pleas of autrefois convict and autrefois acquit are aspects of a wider principle precluding calling into question orders made upon the final determination of legal proceedings, especially determination of criminal proceedings by a verdict of acquittal … This extension of the autrefois rules does not, however, serve to relocate them within the sphere of s 80. [page 678] On the contrary. The preclusion discussed in Carroll operated by reference to the final outcome of the criminal process (acquittal), not the mode whereby it came about. The accused in Carroll had been convicted by a jury but he was acquitted on appeal to the Court of Criminal Appeal of Queensland. … [Appeal dismissed on the basis that the decision of the trial judge directing a verdict was correct.]

12.93 Following a 2014 Parliamentary Inquiry into the unsolved ‘Bowraville murders’ of 1991, a Private Member’s Bill (the Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2015) proposed to amend the Crimes (Appeal and Review) Act 2001 to extend the exception to the rule against double jeopardy in relation to an acquitted person where previously inadmissible evidence becomes admissible. The bill proposed to insert after s 102(2): (2A) Evidence is also fresh if:

(a) it was inadmissible in the proceedings in which the person was acquitted, and (b) as a result of a substantive legislative change in the law of evidence since the acquittal, it would now be admissible if the acquitted person were to be retried.

According to the Second Reading speech for the bill, the proposed amendment was: … designed to give effect to what many thought were the intentions of the 2006 double jeopardy reforms, which through a drafting technicality have continued to fail the families of the Bowraville victims in their search for justice. These reforms balance against the principle of finality and acknowledge that the criminal justice system is an imperfect one that can be, and has been, demonstrated to produce serious miscarriages of justice. Where a miscarriage of justice is patently obvious, a highly rarefied and conservative legal response, that fails to address that injustice risks bringing the justice system into disrepute. If the justice system cannot be perfected, there must be avenues for redress that provide some mechanism of attaining substantive justice following a grossly unjust acquittal in the most serious of cases. Of course, that mechanism must be carefully circumscribed.

Debate on the bill was adjourned for a future day. The NSW Government commissioned former Supreme Court Judge James Wood to review the state’s double jeopardy laws. Completed in December 2015, the review concluded that the laws should not be amended. The issue remains contentious and is the subject of ongoing debate. At the time of publication the Attorney General had announced that he was going to approach the Court of Criminal Appeal to seek a further trial of a person who had been acquitted of two of the murders.

ASPECTS OF EVIDENCE

12.94 In the previous chapter we looked at the law governing police interrogation, which is designed to protect the rights of an arrested person. In this section, we will consider how a breach of the rules governing the obtaining of an admission may affect the trial of an accused person. In particular, it will become apparent [page 679] that inappropriate behaviour by investigating authorities may lead to the exclusion of vital evidence from the trial on the basis that, although it is a worthwhile goal to convict people who are guilty of crimes, that goal cannot justify unlawful or improper means to obtain evidence against them.

Evidence Act 1995 (NSW) 12.95 The Evidence Act 1995 sets out the rules of evidence which apply to proceedings in courts and before persons or bodies required to apply the laws of evidence in New South Wales. It applies to bail applications and sentencing (s 4(1)(a), (d)), and criminal proceedings generally before the Local, District and Supreme Courts, and the Court of Criminal Appeal (s 4). The Act was based on Commonwealth legislation and has become known as the ‘Uniform Evidence Act’ and is in force in a number of the states and territories. While the Evidence Act is not a code in the strict sense, in many areas it now entirely governs aspects of evidence to the complete exclusion of the common law. Further, it is to be interpreted through a construction of its language, and not by reference to the common law, as the Court of Criminal Appeal emphasised in R v Ellis (2003) 58 NSWLR 700.

Admissions and confessions 12.96 The term ‘admission’ is defined in the Evidence Act

1995. For a statement to be an admission it must be a representation (see Evidence Act, Dictionary) that is adverse to the person’s interest in the proceedings. An admission can arise in a number of ways and not just by a statement made by the accused concerning a fact. For example, it can arise from a lie told by the accused that the prosecution relies upon as evidence of guilt (R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27) or even an exculpatory statement (R v Horton (1998) 45 NSWLR 426; 104 A Crim R 306). But a statement made by an accused during the course of an offence is not an admission even though it is adverse to the accused and proves the commission of the offence, such as a statement made when obstructing police (Evans v Powell [2012] NSWSC 1384). Of course a confession to the commission of a crime is an ‘admission’ for the purposes of the Act. 12.97 An admission may be hearsay evidence and hearsay evidence is not generally permitted in a trial. Evidence is hearsay if a witness repeats something that was said out of court, and the purpose of giving that evidence is to support a finding that what was said out of court is true. Evidence that ‘Mary said she saw John kill Bill’ is hearsay if the purpose of using that evidence is to prove that John killed Bill. An admission is also hearsay; evidence that a person (usually a police officer) heard John say ‘I killed Bill’ is equally evidence of a statement made outside court and, if the purpose of giving the evidence is to prove that John did kill Bill, then it is hearsay. Evidence of an admission is, however, an exception to the rule against hearsay evidence. If an accused person has said something against that person’s own interest, then that may be used in evidence against him or her (Evidence Act 1995 ss 59 [page 680]

and 81). It is useful to compare the common law rules with respect to admissions and then the provisions under the Evidence Act 1995.

Illegally or improperly obtained admissions Involuntary admission — common law 12.98 In order to protect people from abusive conduct, common law rules were created to exclude improperly obtained admissions. 12.99 An admission can be admitted into evidence only if it was voluntarily made, that is, if the accused’s will was not overborne (R v Thomas (2006) 14 VR 475 (see 12.100)). If the accused was beaten, threatened, detained for excessive periods, or subjected to some other conduct so that his or her decision was to do anything to avoid further similar treatment rather than a decision to actually make an admission, then the evidence is inadmissible, that is, it cannot be put before the jury. 12.100 In R v Thomas the defendant/applicant was originally charged with a number of terrorism offences. Thomas was interviewed by agents from the Australian Federal Police whilst in Pakistan, including Sergeant Williams, who was involved in six joint team interviews and an AFP interview of Thomas on 8 March 2003. Thomas was told, in effect, that cooperation could see him back in Australia, but otherwise a ‘very different fate’ in Pakistan awaited him. This was at the height of the ‘war on terror’ and stories of rendition to countries that allowed torture or detention in the United States Prison in Guantanamo Bay, Cuba. The Court of Appeal of the Supreme Court of Victoria ruled, on the basis of the common law, that admissions made to the Federal Police on 8 March 2003 should not have been

used in Thomas’s trial and quashed his conviction and ordered a retrial. R v Thomas (2006) 14 VR 475; [2006] VSCA 165 Court of Appeal of the Supreme Court of Victoria Maxwell P, Buchanan and Vincent JJA: … [5] In essence, it has been argued for the applicant that the correct application of the deeply-entrenched legal principle, that a confessional statement made out of court by an accused person is not admissible unless it is shown to have been voluntarily made, required the exclusion of this evidence. Alternatively, it was contended, the evidence had to be excluded in the proper exercise of the discretion reposed in the trial judge on the basis that its admission was unfair, in the sense that that term is employed in the law, or would be contrary to public policy … [66] In 1948, in McDermott v R (1948) 76 CLR 501 Sir Owen Dixon gave an account of “the imperative rules of law requiring the rejection of confessional statements unless made voluntarily”. What his Honour said was adopted by a unanimous court in R v Lee (1950) 82 CLR 133, and has continued to be applied ever since. His Honour said: At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made [page 681] in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in

authority and the inducement has not been removed before the statement is made: per Cave J in R v Thompson … The expression “person in authority” includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (Ibrahim v The King … R v Voisin …). That is the classical ground for the rejection of confessions and looms largest in a consideration of the subject. [67] This court pointed out recently in R v Tofilau (No 2) (2006) 13 VR 28 that these principles represent an aspect of: … a very carefully constructed balance between the respective rights and obligations of the State and the individual and have been developed to ensure that reliability and integrity is maintained in a system directed to the protection of the rights of both the community and the individual and to the advancement of the interests of justice. On the one hand, there is an obvious need to bring to account those who have committed serious offences if the objectives of the criminal justice system are to be achieved and societal values vindicated, but, on the other, it cannot be forgotten that those values incorporate the rights of the individual and, in part define the nature of the relationship between the citizen and the community in which he or she resides. [68] The onus rests on the prosecution to establish on the balance of probabilities that a confessional statement made by an accused person is to be regarded as voluntary. The ultimate question, as Brennan J made clear in Collins v R (1980) 31 ALR 257, is: … whether the will of the person making the confession has been overborne, or whether he has confessed in the exercise of his free choice. If the will has been overborne by pressure or by inducement of the relevant kind, it does not matter that the police have not consciously sought to overbear the will. A finding that there has been an attempt to overbear by persons in authority is neither

determinative of, nor an essential prerequisite to, a finding that the will of the person making the confession was overborne … A confession is not held to be involuntary merely because the confessionalist is by nature or temperament predisposed to confess and is furnished with an opportunity to do so; it is the effect of an external factor, of the kind referred to by Dixon J in McDermott’s case, upon the will which determines admissibility. “Voluntary” does not mean “volunteered”, but “made in the exercise of a free choice to speak or be silent” … … The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused. … [69] The applicant contends that, when a careful assessment is made of the effect on him of the actual circumstances in which he found himself, he did not, in any practical sense, have a free choice to speak or be silent. It was quite unrealistic, the applicant contends, for the judge to have reached the conclusion that he did have such a choice. [70] In our view, this submission must be upheld. … [73] From the viewpoint of the applicant, and in view of what had been said to him, the Pakistani officials, in whose custody he remained, and the Australian officials who interviewed him, would undoubtedly have been perceived by him as “able to influence the course of events” favourably to him, with respect to detention or prosecution. [page 682] The repeated statements by various officials to the effect that cooperation would be in the applicant’s best interests were calculated, if not intended, to create that perception.

[74] The Pakistani officials put explicitly to the applicant the possibility, on the one hand, of returning to his family and, on the other, a very different fate. They made clear that the Australian authorities would only be able to assist him if he could be seen to have co-operated fully. The Australians present did nothing to distance themselves from the position attributed to them. Acquiescence alone would have been sufficient confirmation in the circumstances but the Australian officials went further and, by their remarks, impliedly endorsed what the Pakistanis had said. [75] Importantly, the “hope of advantage” was on each occasion held out in the presence of Sergeant Williams … The considerable power of the inducements to co-operate would undoubtedly have been appreciated by Sergeant Williams and by the other AFP members who participated. … [85] Put bluntly, there can be little doubt that it was apparent to the applicant, at the time of the AFP interview, as it would have been to any reasonable person so circumstanced, that, if he was to change his current situation of detention in Pakistan and reduce the risk of indeterminate detention there or in some unidentified location, co-operation was far more important than reliance on his rights under the law. Indeed, it is apparent that he believed — and, we would add, on objectively reasonable grounds — that insistence upon his rights might well antagonise those in control of his fate … [89] Nor is it to the point that the applicant made the admissions in the knowledge of the existence of a right to silence under Australian law, if in truth he had no real opportunity to exercise that right. As this court pointed out in Tofilau: … There are almost certainly, in any given situation, a multiplicity of situational and psychological factors operating on the mind of an individual when considering whether anything and, if so what, should be said about a matter that may affect them or others around them. The notion of a free choice does not require an absence of possible benefits or detriments upon which the will may operate, but the absence of pressure that overbears the individual’s will thereby restricting the available choices or the manner of their exercise.

[90] Of course, the applicant could have declined to answer questions and subjected himself to what he clearly perceived would be an increased risk of indeterminate detention in a foreign country. Realistically, however, that alternative prospect was so daunting that few would be likely to have accepted the risk. Whatever the threat or inducement proffered, there is almost always a choice if the individual is prepared to accept the consequences of the threat being realised or the inducement denied. Even the threat “Confess or be tortured” can be said to involve a choice, and a chance that torture may not be applied. But it could never be regarded as a free choice in the relevant sense. [91] What is important is whether the applicant could, in any real sense, be said to have had a free choice to speak or remain silent. In our view, the judge fell into error by divorcing the interview from the context in which it occurred, a context which his Honour found operated on the will of the applicant. It is necessary, when considering the admissibility of an inculpatory statement made by a person in the course of a police interview, to bear in mind that evidence of this kind differs from most other forms of evidence. The most obvious difference, which has long been identified and to a large extent underlies the principles governing the admissibility of such evidence, is that the evidence comes into existence at the time of the interview and is a product not only of the interview itself but of many factors, both external and personal to the maker. Whether or not an individual decides to speak or remain silent, and the content and [page 683] form of any statement made, will inevitably be influenced by his perception of the situation in which he is placed at that time … [93] The interview was conducted in circumstances where the interviewers were well aware of the extreme pressure to which the applicant was subject, including his knowledge that they knew a great deal from the earlier interviews. They must have recognised that there was great pressure on him and, therefore, that this was a situation which carried a substantial risk that his will might be overborne. [94] Admissions made in the circumstances we have described could not, in our view, be held to be voluntary. It follows that the

evidence of the interview of 8 March 2003 should not have been admitted. This application should be allowed and the convictions set aside. … [Appeal upheld. Conviction quashed. New trial ordered.]

12.101 A statement need not be spontaneous or volunteered in order to be voluntary, that is, it can be made in answer to questioning, but if the questioning is such that the accused answers in order to avoid further, intolerable strain, the statement is not voluntary. Discretion to exclude voluntary admission — common law 12.102 Once a court decides that there is evidence of a voluntary admission, it has a discretion as to whether or not the evidence should be placed before the jury. The confession can be excluded: if it were obtained illegally (see Bunning v Cross (1978) 141 CLR 54 and Cleland v R (1982) 151 CLR 1); where the use of the evidence would be unfair to an accused because of the manner in which the admission was obtained — circumstances may be unfair though not necessarily illegal, or illegal but not necessarily unfair; or where the prejudice to the accused from the evidence outweighs its probative value. 12.103 The decision whether to admit or reject evidence is discretionary: it is a matter of weighing up the interests of justice in bringing offenders to book against the need to regulate police conduct and protect the rights of the accused who, after all, is presumed innocent of the offences alleged. 12.104 The common law that governs a judge’s discretion to exclude confession evidence was considered by the High Court in Swaffield and Pavic. In that case the court heard

together an appeal from Queensland and an appeal from Victoria where both appeals raised the issue of whether a confession should be excluded on the grounds that it would be unfair. In the course of their judgments, the judges discussed in detail the relevant law in this area and compared the common law with the Evidence Act 1995 (discussed in detail at 12.114 and following, below). [page 684] R v Swaffield; Pavic v R (1998) 192 CLR 159; [1998] HCA 1 High Court of Australia Toohey, Gaudron and Gummow JJ: [some footnotes omitted] … 50. In each of the appeals, what the accused had sought to have excluded was a confessional statement, that is, a statement acknowledging, or from which an acknowledgment might be drawn, that he was guilty of the offence charged. Four bases for the rejection of a statement by an accused person are to be discerned in decisions of this Court. The first lies in the fundamental requirement of the common law that a confessional statement must be voluntary, that is, “made in the exercise of a free choice to speak or be silent” … The will of the statement-maker must not have been overborne. The relevant principle was stated by Dixon J in McDermott v The King [(1948) 76 CLR 501 at 511] … 51. The second, third and fourth bases for the rejection of a statement made by an accused person proceed on the footing that the statement was made voluntarily. Each involves the exercise of a judicial discretion. 52. The second basis is that it would be unfair to the accused to admit the statement. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that

emphasis is the protection of the public interest. The fourth basis focuses on the probative value of the statement, there being a power, usually referred to as a discretion, to reject evidence the prejudicial impact of which is greater than its probative value. The purpose of that power or discretion is to guard against a miscarriage of justice. … 54. Unfairness … relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted. And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred. … 57. The concept of a discretion to exclude confessional evidence, even where no unfairness to the accused has been demonstrated, was recognised in R v Ireland where Barwick CJ, with whom McTiernan, Windeyer, Owen and Walsh JJ agreed, said: Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible … Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence … In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. … [page 685]

59. In Bunning v Cross, Stephen and Aickin JJ, with whom Barwick CJ agreed, spoke in terms of “broader questions of high public policy”. They did so in explanation of Ireland where evidence had been obtained in breach of a statutory provision relating to the photographing of a suspect. Bunning v Cross was seen in Ridgeway v R as supporting the exclusion of evidence of an offence, or an element of an offence, procured by unlawful or improper conduct on the part of law enforcement officers. 60. In Foster v The Queen … Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said that although in many cases the two discretions will overlap, their focus is different. In particular, when the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on ‘large matters of public policy’. Their Honours added that in cases where both discretions are relied upon, “it will commonly be convenient for the court to address first the question whether the evidence should be excluded on the ground that its reception and use in evidence would be unfair to the accused”. … 67. The concept of unfairness has been expressed in the widest possible form in the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). Section 90 of both Acts reads: In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. 68. Neither in s 90 nor anywhere else in either Act is there to be found a definition of unfairness. Part 3.11 — “Discretions to

Exclude Evidence” contains a number of provisions of a general nature empowering the court to refuse to admit evidence or to limit its use. In particular s 138(1) prohibits the admission of evidence obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; … unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. … 70. … Subject to one matter, an analysis of recent cases, together with an understanding of the purposes served by the fairness and policy discretions and the rationale for the inadmissibility of nonvoluntary confessions, support the view that the approach suggested by the Chief Justice in argument already inheres in the common law and should now be recognised as the approach to be adopted when questions arise as to the admission or rejection of confessional material. The qualification is that the decided cases also reveal that one aspect of the unfairness discretion is to protect against forensic disadvantages which might be occasioned by the admission of confessional statements improperly obtained. … 74. One matter which emerges from the decided cases is that it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues. … … [page 686] 80. In two recent decisions of the Queensland Court of Appeal the issue was whether evidence, secretly tape-recorded at the request of the police, should have been excluded. In R v O’Neill [[1996] 2 Qd R 326] the Court (Pincus JA and Dowsett J, Fitzgerald P dissenting) held that the evidence was rightly admitted. …

81. Here the emphasis is placed on the privilege against selfincrimination and what Fitzgerald P regarded as the loss of that right through trickery. This, it was said, made it unfair to the appellant to receive evidence of her recorded statements. In the passage questions of unfairness and police behaviour seem to be subsumed in a broad approach based on the loss of the privilege. … 89. The Australian decisions generally have not expressed the relevant principles by reference to the informed choice spoken of in Canadian cases. At least in terms of voluntariness, they have tended to approach the matter in terms of an immunity from compulsion. The emphasis has been on whether duress has been brought to bear on the suspect, that is whether the will has been overborne in some way. That emphasis is well placed when voluntariness is at issue but it is too narrow when the exercise of discretion is involved. … 91. [T]he notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations. … 92. … It is therefore appropriate to develop the common law in Australia in terms of a broad principle based on the right to choose whether or not to speak.

93. Nothing which Constable Marshall [an undercover police officer] did in relation to his conversation with Swaffield can be said to have been illegal. … 98. In the circumstances of this case, the admissions were elicited by an undercover police officer, in clear breach of Swaffield’s right to choose whether or not to speak. The Court of Appeal was right in its conclusion and this appeal should be dismissed. … 99. As in the case of Swaffield, nothing which the police did in relation to Pavic was illegal. … 100. No caution was administered by Clancy [a friend of Pavic who carried a secret police recording device], which is hardly surprising in the circumstances. … … 102. Pavic argued that he was misled by Clancy into making the admissions he did. The trial judge approached the exercise of his discretion on that footing and said: Whilst the role of the accused in the killing was volunteered by him to Clancy in a somewhat limited fashion, it cannot, in my view, be said to be the result of, or inextricably linked to, the expressed fear of Clancy that he may be charged with an offence. [page 687] 103. In all the circumstances there is no sufficient reason to interfere with the trial judge’s refusal to exclude the evidence of the conversation. This appeal should also be dismissed. … [Brennan CJ agreed with the orders proposed in the joint judgment. Kirby J dissented with respect to Pavic’s appeal and joined with the other members of the court in dismissing the Crown appeal in the matter of Swaffield. Both appeals dismissed.]

Fabricated confessions — common law 12.105 The common law rules discussed in Swaffield and Pavic (12.104) apply where the accused admitted that he or

she had made admissions suggestive of guilt but argued that, because of the circumstances, the jury should not be told of those admissions, that is, where greater ‘public policy’ issues mean the evidence should be excluded. 12.106 The situation at common law was different if the accused denied that he or she had ever confessed and maintained that police had fabricated the ‘confession evidence’. This claim by the accused raised a ‘question of fact’, and questions of fact are determined by the jury. Accordingly, the jury had to hear the evidence of the alleged confession and then hear the accused deny that he or she had said what the police claimed. It was then up to the jury to decide whether they believed the police account beyond reasonable doubt. 12.107 This rule could be used by police to the advantage of the prosecution. The police could say that the accused said ‘I did it’ and that statement would be put before the jury. If the accused denied that he or she had confessed, claiming that the confession was a fabrication, it would be left to the jury to decide if they believed the police officer, who said there was a confession (and whose evidence might have been corroborated by other police). 12.108 The confession evidence used to be given by way of ‘record of interview’; that is, a typed record where the police recorded their questions and the accused’s answers. Of course, if the police were prepared to lie about a confession there was nothing to stop them from typing the questions they wanted to ask and the answers they wanted to hear on the record of interview. 12.109 Rules of evidence were developed to determine how records of interview were to be dealt with. In R v Ragen (1964) 81 WN (Pt 1) (NSW) 572 it was held that the ‘record of interview’ should be admitted into evidence for the jury to consider. The problem with this approach was that the jury

might give more weight to a written than to an oral version of events. They could take the written record of the confession into the jury room and read it, but had only the accused’s oral testimony that it was fabricated, and so had to remember what the accused had said and the demeanour of the accused and the police in court. [page 688] 12.110 Driscoll v R (1977) 137 CLR 517; 15 ALR 47 changed the rule to a general rule that where police alleged that a person made a confession but the person denied this, the written version (the record of interview) should not be accepted as evidence; rather, the matter should be determined by hearing and seeing the police officer’s word against the accused. The police still had an advantage, as they could rely on their notebooks to ‘refresh their memory’. 12.111 In Carr v R (1988) 165 CLR 314; 81 ALR 236 and Duke v R (1989) 180 CLR 508; 83 ALR 650, Deane J argued that there should be a rule requiring the judge to warn the jury of the dangers of convicting on the basis of an uncorroborated record of interview or alleged confession, but he was in the minority. In those cases he set out what he considered to be the disadvantages which the accused would suffer in police custody and which would make a confession easy to fabricate and difficult to rebut. 12.112 Finally, in McKinney v R (1991) 171 CLR 468; 98 ALR 577 the High Court came around to the view of Deane J. The court looked at Carr and Duke and found that in the two cases the results had been different (in one the court had thought a caution was warranted, in the other that it was not, even though there was no significant difference on the facts), so it re-examined the whole question. This time it came to the conclusion that a judge should warn the jury to be aware of the danger of convicting a person if the only evidence connecting him or her to the alleged crime was evidence of

an uncorroborated confession denied by the accused. The High Court was at pains to point out (at CLR 478) that it was not that the evidence of the police was unreliable per se, but that they had the means and the power to ensure corroboration of a genuine confession (by audio or video tape recording) and should therefore do so. The need for a warning was not: … a suggestion that police evidence is inherently unreliable or that members of a police force should, as such, be put in some special category of unreliable witnesses. The basis lies, as we have explained, in the special position of vulnerability of an accused to fabrication when he is involuntarily so held, in that his detention will have deprived him of the possibility of any corroboration of a denial of the making of all or part of an alleged confessional statement.

12.113 In the event that a confession is alleged but disputed then, in the absence of corroboration — that is, some other independent evidence (such as audio or video tape) — a warning should be given to the jury on the danger of convicting on the basis of that evidence alone.

Modern statutory scheme 12.114 The admissibility of confession evidence in New South Wales is now determined by statutory rules contained in the Evidence Act 1995 and the CPA. The term ‘confession’ is not used in the Evidence Act 1995. Flow Chart 12-1, below, suggests a logical way to consider the sections. [page 689]

FLOW CHART 12-1: STEPS TO CONSIDER IN THE ADMISSIBILITY OF ADMISSIONS

Criminal Procedure Act 1986 s 281 and Evidence

Act 1995 s 86 12.115 Section 281 of the CPA applies: … to an admission: (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and

[page 690] (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.

It is important to note s 281(1)(b) and (c). This provision only relates to indictable offences, not summary offences or indictable offences that may be heard summarily without the consent of the accused, that is, offences listed in Table 2 to Sch 1 to the CPA. Further, the provisions only apply to admissions made in the course of ‘official questioning’. 12.116 Where the section applies, evidence of an accused’s admission is to be used only where it can be independently verified by either video or audio recording. The video/audio recording can be made at the time of the admission or, if that is not possible (for example, where an accused person makes an admission in the police car, or before he or she has been suspected of an offence and therefore the tape facilities were not turned on), then the police should interview the suspected person and ask him or her to confirm the alleged admissions. An unrecorded admission may be used where there is a ‘reasonable excuse’ as to why that type of recording is not available. Reasonable excuse is defined in s 281(4) of the CPA and includes:

(a) mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.

The use of video/audio tape is designed to reduce allegations that admissions were fabricated or obtained improperly. 12.117 The provisions of s 281 apply where a person is responding to ‘official questioning’. This term was considered in Bryant v R.

Bryant v R (2011) 205 A Crim R 531; [2011] NSWCCA 26 NSW Court of Criminal Appeal [The appellant was convicted of eight counts of armed robbery. During recorded interviews he admitted to one robbery, at Mittagong. He refused to comment on the other alleged robberies, including a robbery that occurred in Belconnen in the Australian Capital Territory, though in a video taken during a search of his premises he suggested that he had, or he believed he had, also admitted to that robbery. He was not charged with the Belconnen robbery but evidence regarding that robbery, and the Mittagong robbery to which he had already entered a plea of guilty, was led as part of the Crown case. (The evidence of the uncharged robberies ‘was admissible as tendency and coincidence evidence to prove each of the counts on the indictment’.) Notwithstanding his refusal to comment on other robberies during the recorded interviews, he made the same admissions to the custody manager, Sergeant Gooch. On appeal he argued that the trial judge had erred in admitting evidence of the alleged admissions.] [page 691] Howie J [with whom McLellan CJ at CL and Simpson J agreed]: … 131. On 23 April 2007, the Sergeant was rostered as custody manager at Goulburn Police Station. At about 7.20am she received the appellant into custody and read him Part 9 from the Law Enforcement (Powers and Responsibilities) Act (The LEPR Act). She spoke to the appellant again at 9.19am and informed him that she was waiting for his solicitor. She continued to have involvement with him including facilitating a meeting between the appellant and a Legal Aid solicitor, obtaining a buccal swab and providing him with a meal. 132. After the ERISP between Detective Selmes and the appellant concluded, the Sergeant performed the duty of asking the appellant the formal questions about whether he had any complaints about his treatment. It will be recalled that in this interview the appellant admitted having committed the Mittagong robbery but had refused to say anything about the other alleged offences. It will also be recalled that during the search of his premises the appellant

appeared to admit to an offence at Belconnen when shown the cash bags from those premises. 133. After the ERISP interview Sergeant Gooch secured the appellant in the dock at 2.34pm and said to him, “Do you understand that you are going to be charged with several armed robbery offences?” The appellant responded, “Yes, I don’t know about the others but I admitted to three. The two here and one in Canberra.” The Sergeant said, “As these are serious offences that involved violence that happened over a period of time I will be refusing bail. That means that I will try to get you before a magistrate this afternoon. What happens from there is the decision of the magistrate, do you understand that?” The appellant said, “Yes, I don’t know why I did it.” 134. Sergeant Gooch at some time later informed Detective Selmes of what the appellant had said. He did not consider it necessary to re-interview the appellant, because he had interviewed him about the New South Wales offences and he was not investigating the ACT offences. He made no note of what he was told but asked Sergeant Gooch to make a record. 135. The appellant indicated that he wished to be re-interviewed by police in September 2007 when he read from a prepared statement about the involvement of Buck or Michael O’Connor. 136. Defence counsel objected to the evidence of Sergeant Gooch principally on the basis that it was inadmissible pursuant to s 281 of the Criminal Procedure Act … 137. The question for the Judge to determine was whether the questions asked by Sergeant Gooch were “official questioning” for the purposes of the section: that is were her questions “in connection with the investigation of the commission or possible commission of an offence”? This is a question of fact and, provided it was open to his Honour to have found as he did, that they did not fall within the scope of the section, this Court would not interfere in that finding; see R v Taouk [2005] NSWCCA 155; 154 A Crim R 69. 138. In R v Naa [2009] NSWSC 851; 76 NSWLR 271; 197 A Crim R 192, I was concerned with the same question as a trial judge but in a completely different factual situation. However, during the

course of my judgment I considered a line of authority dealing with sections similar to s 281 and dating from R v Horton (1998) 45 NSWLR 426 through to Carr v Western Australia [2007] HCA 47; 232 CLR 138. That review of authority of course included the two High Court decisions of Kelly v The Queen [2004] HCA 12; 218 CLR 216 and Nicholls v The Queen [2005] HCA 1; 219 CLR 196. I do not intend to repeat that review in considering this ground. A similar review of cases was considered by Buddin J in R v Armstrong [2010] NSWSC 483. [page 692] 139. I am prepared to accept for the present ground of appeal that the Sergeant was “questioning” the appellant but I have grave doubts that she was. “Questioning” seems to me to be more than simply asking a person whether he understands information that has been conveyed to him. In reality the Sergeant was merely seeking to ensure that the appellant understood what was going to happen: that is that he was going to be charged “with several armed robbery offences”. She was not seeking information but supplying him with information. What followed next was again providing the appellant with information: that she was going to refuse him bail and take him before a magistrate. Again the only question she asked was to ensure that he understood what he was being told. I do not believe that this is “questioning” in common parlance. It certainly does not appear to me to be “questioning” in terms of an investigation of an offence. I am prepared to accept that the section is protective legislation, as it was described in Horton at 23, and should not be read down so as to diminish its obvious beneficial effect on the rights of persons in custody. But nor should it be given an effect that was never intended by the legislature. 140. In R v Sharp [2003] NSWSC 1117; 143 A Crim R 344, I was required to make a ruling on the admissibility of unrecorded questioning. This was a decision made before any consideration had been given to the scope of such a provision by the High Court. During the course of the judgment I referred to the difficulty of determining what was “official questioning” for the purpose of a similar section now replaced by s 281. I used as an example of the difficulty in determining the scope of the provision just what happened in this particular case, that is questioning of a suspect by a custody manager fulfilling his or her duties under what was then

Part 10A of the Crimes Act. I did not need to consider that issue further in that case. However, I did indicate that that [sic] some guidance had to be given to police as to what was “questioning” for the purpose of the section. I went on: [20] I hesitate to attempt to give any more meaning to the words of the section than arise from the definitions contained in it and the policy behind the legislation. But the word used is “questioning” and it seems to me that it at least implies that the police officer is attempting to elicit from the person a response that the officer foresaw might provide information relevant to the investigation of the commission of an offence or possible offence, or be to the person’s prejudice in that regard. I would be prepared to find in an appropriate case that statements made by the officer to the suspect might amount to “questioning” even though there may be no question asked. However, the mere fact that an admission occurs in response to a question or statement made by a police officer cannot retroactively convert the conversation into “official questioning” if it did not fall within the definition at the time the admission was made. [21] I wish to emphasise that, in my opinion, the court is required to make an objective assessment of the circumstances surrounding the making of the alleged admission in determining both whether it was made during official questioning and whether there is a reasonable excuse in failing to electronically record it. If my view of official questioning is correct, it would follow that, if the police officer did not foresee that a response might be given to the statement or question made to the suspect but ought to have done so, the conversation would amount to “official questioning”. To that extent the conduct of the police officer is subject to the court’s review so far as the admissibility of any admission allegedly made by the accused is concerned. 141. In Kelly v The Queen [2004] HCA 12; 218 CLR 216 the High Court was concerned with a statement made by a suspect about half an hour after a video-recorded interview had ceased and

without any further questions being asked by the investigating police. The Court was concerned with a Tasmanian provision similar to that existing in this State. The majority of the Court was of the view that the section did not cover the statement because the “official questioning” had ceased. They stated (my underlining): [52] The expression “in the course of official questioning” in s 8 of the Act marks out a period of time running from when questioning commenced to when it ceased. It renders s 8(2)(a) [page 693] of the Act relatively narrow in the sense that it does not provide that video-recording is a condition for admissibility of all confessions made by persons who are suspected or ought reasonably to have been suspected of having committed a crime: video-recording is only a condition for admissibility of those made “in the course of official questioning”. It renders s 8(2)(a) of the Act relatively broad in the sense that it does provide that video-recording is a condition for admissibility of confessions made “in the course of official questioning”, without any limitation turning on whether the maker of the confession is in custody or under arrest. The requirement that confessions be video-recorded extends to confessions made anywhere so long as they are made “in the course of official questioning” — whether in police stations, in police cars, at the scene of a crime, or during informal encounters. The difficulty of videorecording confessions in particular circumstances is met by ss 8(2)(b)–(d) and (3)(a)–(d) of the Act. But whether the expression “in the course of official questioning” is viewed as making s 8(2)(a) narrow or broad, it stipulates a relatively clear criterion, suitable for application by police officers, whose usual procedures are formal and methodical. 142. McHugh J was in the minority but he stated (my underlining): [106] Given the purpose of the section, there is no difficulty in construing the words “confession or an

admission … made in the course of official questioning” as referring to a confession or admission made in connection with police questioning. Nor do I think there is any difficulty in holding that the section applies to any confession or admission that is made in response to an intimation that the officer intends to question the suspect. The legislature is not likely to have intended the section’s preclusion to operate only on confessions or admissions allegedly made after a police officer has asked a question connected with the investigation, however trivial it might be. Of course, the confession or admission must be related to police questioning in connection with the investigation, but it will be so related if it is made in response to an indication that the suspect is to be questioned. It borders on the absurd to think that s 8 does not apply to a confession or admission made immediately after the officer has said, “I want you to come to the station for questioning”, but applies to a confession or admission made in answer to the officer’s first question: “What can you tell me about the assault on X?” To so hold would make “a fortress out of the dictionary”. It would treat the term “questioning” as a precise criterion of admissibility rather than as an element in a compound conception that is concerned to limit the admissibility of “police confessional evidence”. [107] In the present case, the alleged admission — if it was an admission, and I doubt that it was — was directly connected to the extensive questioning by the police officers that had occurred about an hour earlier. The Crown did not argue that it was not an admission. Because that is so, it was an “admission” to which s 8 applied. The learned trial judge should have rejected evidence concerning it. … 147. The terms of s 281 are similar to those that were considered by the High Court in Kelly and this Court should follow the majority in that decision. There is nothing in Nicholls [v The Queen and Coates v The Queen [2005] HCA 1; 219 CLR 196] to overturn

the interpretation of “in the course of official questioning” as defined in Kelly, being the formalised interview that had occurred before the appellant was delivered to the Sergeant in her role as custody manager. Sergeant Gooch was only an “investigating official” because she was a police officer. She was not involved in the investigation in any way. That is why she was brought in to ask the formal questions at the end of the recorded interview. Her only other involvement with the appellant was as the custody manager who had certain duties imposed upon her under the relevant Act. Part of those duties are set out in s 122 of the LEPR Act which is, in effect, to ensure that the person is aware of his or her rights. Although not required by the Act, it was consistent with her functions that she informed the appellant of the procedures that were to occur and to ensure that he understood them. 148. It was clear that the investigation was over at least so far as the appellant was concerned. The Sergeant informed him that he was going to be charged and that she [page 694] was going to refuse bail. The conversation that she had with the appellant in that regard cannot in my view be considered to be “questioning … in connection with an investigation of the commission … of an offence”. 149. In Naa I stated: 77. Although, as James J noted, the words “in connection with an investigation” are of wide import, in effect they confine or focus the scope of the questioning between a police officer and a suspect. Without these words “official questioning” would arise whenever a police officer is questioning a person who is, or ought reasonably to have been, suspected of committing an offence whatever be the content or circumstances of the questioning. As I pointed out in Sharp, that is not what Parliament sought to achieve by the provisions. There may be formal or informal police procedures before or after arrest that do not fall within the ambit of the section because they are not in connection with an investigation. As Gleeson CJ stated in Carr [v Western Australia [2007] HCA 47; 232 CLR 138]:

The question then is not: what was the purpose or object underlying the legislation? The question is: how far does the legislation go in pursuit of that purpose or object? 150. In my opinion, not only was it open for the Judge to find that the conversation between Sergeant Gooch and the appellant fell outside the scope of the section, that was the only finding he could have reasonably made. [Appeal against conviction dismissed.]

12.118 The decision in Naa v R, referred to in the judgment above, was concerned with statements made by an accused in a situation where, at the scene of the offence, the accused was holding a knife and threatening to kill police or have them kill him. It was held that those statements did not fall within the ambit of s 281 as it was not ‘police questioning’ for the purpose of that section as the conversation between the accused and police was negotiation and it was not ‘in connection with the investigation … of an offence’, but rather in connection with the protection of the accused, police and others. 12.119 Section 281 is limited to conversations where the person ‘could reasonably have been suspected by an investigating official of having committed an offence’. R v Taouk (2005) 154 A Crim R 69; [2005] NSWCCA 155 NSW Court of Criminal Appeal [The accused entered a police station and had a conversation with a police officer (Constable Munro). The officer’s evidence was: I approached the counter and the defendant (that is, the accused) said to me ‘I want to report a disturbance at my house.’ I said: ‘What’s happened?’ He said: ‘I have just shot someone at my house. I had an argument with my brother and he had a gun. I took it off him and I fired a few shots.’ I said: ‘Is anyone hurt?’ He said: ‘I don’t

know.’ I said: ‘What’s the address?’ He said: ‘[an address] ….’ I said: ‘Just a moment.’ The accused gave a slightly different, and more favourable, version of events in a subsequently recorded interview and claimed that what the officer had recorded in his note book was not an accurate record of what the accused had said. The accused was convicted of murder. One issue on his appeal was whether Constable Munro should [page 695] have been allowed to give evidence of the conversation after the accused had said ‘I want to report a disturbance at my house’ as there was no electronic recording of the conversation.] James J: … 53. On this appeal counsel for the appellant submitted that the trial judge had erred in admitting evidence by Constable Munro of the first conversation Constable Munro said he had had with the appellant. It was submitted that, as soon as the appellant said to Constable Munro “I want to report a disturbance at my house” the appellant became a person who could reasonably have been suspected by Constable Munro of having committed an offence. 54. It was pointed out by counsel for the appellant that the word “could” in the expression “could reasonably have been suspected” in s 281(1)(a) was different from the word “ought” in the corresponding part of s 424A of the Crimes Act, a predecessor of s 281, and it was submitted that the expression “could reasonably have been suspected of having committed an offence” was wider than the expression “ought reasonably to have been suspected of having committed an offence”…. 55. Counsel for appellant referred to the recent decisions of the High Court in Kelly v The Queen (2004) 78 ALJR 538 and Nicholls v The Queen; Coates v The Queen (2005) 213 ALR 1…. 57. In Nicholls v The Queen; Coates v The Queen the only ground of appeal relevant to the present appeal was Coates’ first ground of appeal. 58. Coates had been interviewed by police at a police station in an interview which was videotaped. During a break in the videotaped

interview, which police asserted had been initiated by Coates, and while filming was suspended, Coates, according to police officers, made a number of admissions. When the videotaped interview was resumed the admissions were not put to Coates or confirmed by Coates. 59. It was held by the trial judge and by the Western Australian Court of Criminal Appeal that evidence of the admissions was not excluded by s 570D of the Criminal Code (Western Australia), a provision in similar but not identical terms to s 281 of the Criminal Procedure Act, for the reason that the prosecution had established that there was a reasonable excuse for there not being a recording of the admissions. The majority of the High Court (McHugh, Gummow, Kirby and Callinan JJ) held that there had not been any reasonable excuse for there not being a recording of the admissions and that evidence of the admissions had been wrongly admitted. The other members of the Court (Gleeson CJ, Hayne and Heydon JJ) dissented…. 65. It was submitted by the Crown on this appeal that Constable Munro could not reasonably have suspected the appellant of having committed an offence, at the stage where the appellant had merely said “I want to report a disturbance at my house”. 66. As has already been shown, counsel who appeared for the appellant at the trial did not ultimately object to Constable Munro giving evidence of his first conversation with the appellant. Consequently, the leave of this Court under r 4 of the Criminal Appeal Rules is required in order for the appellant to rely on this ground of appeal. 67. However, although evidence of the first conversation was not ultimately objected to by counsel for the appellant at the trial, that evidence was closely linked to evidence which was objected to and the trial judge in his judgment gave consideration to whether evidence by Constable Munro of his first conversation with the appellant was admissible and made an explicit ruling that the evidence was admissible. In these circumstances, I do not consider that this Court should dispose of this ground of appeal, by refusing leave under r 4. [page 696]

68. In his judgment the trial judge found that at the time of his first conversation with the appellant Constable Munro “did not suspect and had no reason to suspect that the accused had committed any offence”. 69. It was submitted, rather faintly, by counsel for the appellant that in making the finding that Constable Munro “had no reason to suspect that the accused had committed any offence”, the trial judge had not properly applied the terms of s 281(1)(a), that the person “could reasonably have been suspected of having committed an offence”. However, the trial judge had stated the full terms of s 281 earlier in his judgment and I do not consider that it should be held that the trial judge failed to apply the terms of s 281. 70. If, as I have held, the trial judge properly applied the terms of s 281, the trial judge should, in my opinion, be regarded as having made a finding, albeit a negative finding, that it was not the case that, at the time when the first conversation occurred, the appellant was a person who either was or could reasonably have been suspected by Constable Munro of having committed an offence. Error by the trial judge in making such a finding would be established, only if there was no evidence to support such a finding (R v O’Donoghue (1988) 34 A Crim R 397, R v Khouzame [2000] NSWCCA 505). In my opinion, there was evidence to support such a finding and the first ground of appeal in the present appeal could be disposed of, simply on the basis that it has not been established that the trial judge was in error in making such a finding. I will, however, proceed to consider whether, if the matter was at large in this Court, it should be held that the admissions made in the first conversation with Constable Munro were made at a time when the appellant could reasonably have been suspected by Constable Munro of having committed an offence. 71. I accept, as was submitted by counsel for the appellant, that s 281 of the Criminal Procedure Act is in different terms from the former s 424A of the Crimes Act and is also in different terms from the interstate legislation considered by the High Court in Kelly and Coates. I also accept that there could be cases in which a person “could” reasonably have been suspected by a police officer of having committed an offence, even though it could not be said that

he “ought” reasonably to have been suspected by the police officer of having committed an offence. 72. I also accept that s 281 of the Criminal Procedure Act is legislation of the same nature as that considered by the High Court in Kelly and Coates, has the same purpose as that legislation and should, in accordance with the views of the majority in Coates, be given a purposive interpretation. 73. However, in my opinion, even accepting that a purposive interpretation should be given to s 281, it is necessary that some regard be had to the actual language of s 281 and some effect be given to the word “reasonably” in the expression “could reasonably have been suspected”. A person could not reasonably have been suspected by a police officer of having committed an offence, unless something has been said or done which would provide some grounds for a police officer reasonably suspecting that the person has committed an offence. 74. In my opinion, the attendance by the appellant at a police station, even in the early hours of the morning, and the saying by the appellant to a police officer of words to the effect that the appellant wished to report some untoward occurrence which had happened at his house did not provide any grounds on which the police officer could reasonably have suspected that the person had committed an offence. The police officer could reasonably have formed the view that the appellant was seeking to report an occurrence at his house of which he had been the victim or which he had witnessed but not an occurrence involving the commission by the appellant himself of some offence. It is common for members of the public to report to police crimes of which they have [page 697] been the victims. It is much less common for members of the public to report to police crimes which they have themselves committed. 75. After the appellant had told Constable Munro that he wished to report a disturbance, Constable Munro asked the appellant a completely non-leading question “what’s happened?” and the appellant in a few, very brief sentences, uninterrupted by any

further question from Constable Munro, told Constable Munro what had happened. Like the trial judge and like counsel for the appellant at the trial, I consider that the appellant could not reasonably have been suspected by Constable Munro of having committed an offence, until after the appellant had completed giving his brief account of what had happened at his house. 76. As has been shown earlier in this judgment, the issues in the High Court cases of Kelly and Coates were different from the issue in the present ground of appeal. In both Kelly and Coates the accused was clearly an actual suspect at the time when the alleged admissions were made and there was no need for the courts to consider whether, at the time the alleged admissions were made, the accused “ought” reasonably to have been suspected by a police officer of having committed an offence (Kelly) or whether there were reasonable grounds for a police officer to suspect that the accused had committed an offence (Coates). 77. In both Kelly and Coates the accused was an actual suspect who had been or was being interviewed at a police station in an interview which was being electronically recorded. In both cases there was a much greater potential than in the present case for the police to falsely allege that the suspect had made oral admissions which were not recorded in the recorded interview or of the suspect falsely alleging that oral admissions he had in fact made had been fabricated by the police. 78. In my opinion, this part of the appellant’s first ground of appeal against conviction should be rejected. [Hislop J, and Hall J in separate reasons, agreed with James J that the appeal should be dismissed.]

12.120 Although the fact that an accused refuses to take part in a taped interview is a reasonable excuse to explain the absence of a tape (s 281(4)), that does not imply that a recording that is made without the accused’s knowledge and express consent is therefore inadmissible (Carr v The State of Western Australia [2007] HCA 47). 12.121 Section 86 of the Evidence Act provides for exclusion of records of oral questioning in certain

circumstances. Section 86 operates in practice only where the mandatory taping provision (see 12.115–12.116) does not require that an admission be electronically recorded: 86 Exclusion of records of oral questioning (1) This section applies only in a criminal proceeding and only if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official. (2) A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response.

[page 698] (3) The acknowledgement must be made by signing, initialling or otherwise marking the document. (4) In this section: document does not include: (a) a sound recording, or a transcript of a sound recording, or (b) a recording of visual images and sounds, or a transcript of the sounds so recorded.

Applied to facts of a case such as Taouk (see 12.119) this section would mean that the officer’s notebook containing his or her notes of the conversation could not be put before the jury, but it does not stop the officer giving oral evidence of what was allegedly said.

Evidence Act 1995 s 84 12.122 Section 84 provides that evidence obtained as a result of ‘violent, oppressive, inhuman or degrading conduct’ must not be used against an accused person. An admission

obtained as a result of torture is obtained at too high a price. This section reflects the common law requirement that a confession be voluntary (see Swaffield and Pavic (1998) 192 CLR 159 at 12.104 and, in particular, the judgments of Toohey, Gaudron and Gummow JJ, and of Kirby J, who discussed both the common law and the law contained in the Evidence Act 1995). Where s 84 applies, the exclusion of the evidence is mandatory. 12.123 Section 84 applies in both civil and criminal proceedings. Habib v Nationwide News Pty Ltd (2009) NSWLR 299; [2010] NSWCA 34 NSW Court of Appeal [Mamdouh Habib sued the defendant for defamation. Habib had been detained by the United States as part of the ‘war on terror’. Whilst in detention in Pakistan and then in Guantanamo Bay, Habib was interviewed by ASIO and Australian Federal Police officers. The defendant sought to rely on those interviews, and inconsistencies between those interviews and later interviews with the press to support their various claims about the appellant’s conduct. The appellant objected to the use of the interviews with investigating officials whilst he was in detention. The trial judge ‘held that while he could not exclude the possibility that the plaintiff was mistreated there was no evidence which associated any admission during the interview with a threat of the relevant kind … The primary judge rejected the s 84 objection and admitted all the interviews’. There was a verdict for the respondent and Habib appealed.] Hodgson, Tobias and McColl JJA: 181. At common law, evidence of a confession could not be received against an accused person unless it was shown to be voluntary. A statement was made voluntarily when “it has been made in the exercise of [a person’s] free choice”. However, if a person confessed to a crime because his will was overborne his confession could not be admitted into evidence. It did not matter by what means he was overborne: “[i]f his

[page 699] statement was the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it [could not] be voluntary”: McDermott v R [1948] HCA 23; (1948) 76 CLR 501 (at 511) per Dixon J; Tofilau (at [6]) per Gleeson CJ. 182. Voluntariness was not an issue to be determined by reference to some hypothetical standard, but required a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused: Collins v R [1980] FCA 72; (1980) 31 ALR 257 (at 307) per Brennan J. 183. The rule that a confession must be made voluntarily before evidence may be given of it is described as “basal voluntariness”. It is derived from common law principles under which “voluntariness was used as the touchstone of reliability”: Tofilau (at [47]) per Gummow and Hayne JJ; (at [122]) per Kirby J; (at [325] ff) per Callinan, Heydon and Crennan JJ. As Callinan, Heydon and Crennan JJ explained (at [275], footnotes omitted): The ground initially given for rejecting induced confessions in R v Warickshall was unreliability. But the inquiry did not turn on whether in the particular circumstances of a given case a confession was unreliable. Once an inducement was made out — and the decisions on that question were lenient to the accused — the confession was automatically excluded without further inquiry into the likelihood of its being untrue. Thus in 1783 Hotham B said: ‘It is almost impossible to be too careful … Too great a chastity cannot be preserved on this subject’. (emphasis added) Their Honours were using the concept of “inducement” in the context of what they described as the inducement rule: “an admission by an accused person ‘is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed’” (at [245]). 184. Thus it is said that involuntary statements are “inadmissible not because the law presumes them to be untrue, but because of the danger that they might be unreliable [a] rationale [which]

trenches on considerations of fairness to the accused”: R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159 (at [74]) per Toohey, Gaudron and Gummow JJ. 185. In Tofilau, Gummow and Hayne JJ pointed out (footnotes omitted): [53] When one turns to the common law respecting the inadmissibility of some confessional statements, it must first be said that the common law tests of voluntariness have never required a subjective inquiry into the mind of the confessionalist to determine why it was that he or she made the statement of which evidence is to be given. Rather, subject to what later is said about the discretion to reject confessional evidence, the common law rules have sought to operate by excluding evidence from consideration of the tribunal of fact that is deemed so unreliable as a class that it should not be available for consideration. The exclusionary effect of the rules is important. Although it is for the prosecution to demonstrate that a confession was made voluntarily before it becomes admissible, the rules are essentially exclusionary in character. The rules deal only with the admissibility of evidence of out-of-court confessional statements. If the evidence is admitted, it remains open for the confessionalist to argue, and for the tribunal of fact to accept, that, even if the statement was made, it is not reliable. [54] To the extent to which questions of fairness are distinct from reliability, and to the extent to which questions of controlling police conduct and methods are relevant, they are best dealt with under the discretion. Questions of basal voluntariness are to be understood as informed only by considerations of reliability of the evidence concerned. Do the circumstances in which the evidence was obtained fall into the category of cases which the law classifies as so likely to produce unreliable evidence that the evidence should be excluded from consideration by the tribunal of fact? (emphasis added) 186. Their Honours (at [55]) described Dixon J’s reasons in

McDermott v The King, as “the authoritative statement of the common law of Australia on the admissibility of [page 700] confessions”. Dixon J explained in McDermott (at 511) the requirement that a confession be voluntary in the following terms: This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary … 187. Gummow and Hayne JJ remarked (Tofilau, at [56]) on the evident similarities between Dixon J’s statement of the applicable rules and the following passage from the first edition of Best on Evidence (Best, A Treatise on the Principles of Evidence and Practice as to Proofs in Courts of Common Law (1849), 418–419) (see Tofilau, (at [37])): Self-disserving evidence is not always receivable in criminal cases, as it is in civil. There is this condition precedent to its admissibility, that the party against whom it is adduced must be shown to have supplied it voluntarily, or at least freely … [T]he law on the subject as it stands at present is merely that every confession or criminative statement of any kind, which either has been extracted by any species of physical torture, coercion, or duress of imprisonment; or been made in consequence of inducements held out to the accused, by any person in whose custody he is, or who has any lawful authority, judicial or otherwise, over his person or the charge against him, ought to be rejected. (emphasis added) As their Honours explained (Tofilau, at [58]) the “criteria that … found the legal conclusion that a confession was not made ‘voluntarily’ … [a]ll are species of compulsion”. 188. Gummow and Hayne JJ (Tofilau, at [59]) distinguished cases of statements preceded by an inducement held out by a person in

authority from confessions in which a person in authority has so acted as to engage the principle of basal voluntariness. In the latter case, they pointed out “if a person in authority subjects a suspect to coercion, whether by threats of violence or other intimidatory acts, the rule excluding a confession made to a person in authority in response to an inducement is readily applied”. In cases of confessions made under compulsion their Honours said (at [60], footnotes omitted): The key inquiry is about the quality of the compulsion that is said to have overborne the free choice of whether to speak or to remain silent. In this context, ‘overborne’ should be understood in the sense described by Dixon J as ‘the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure’. It is necessary to focus upon the sufficiency of the compulsion. (emphasis added) 189. Callinan, Heydon and Crennan JJ also pointed out (Tofilau, at [287]) that the traditional English approach to excluding confessions eschewed “an inquiry into the accused’s mental processes … in order to examine whether the inducement did stimulate the flattery of hope or the torture of fear, and whether it was the flattery or the torture, as distinct from some other cause, which forced the confession from the accused’s mind”. The consequence was (footnotes omitted): … that very small inducements were fatal … A small selection from a huge field of examples would include: ‘It will be the right thing … to make a clean breast of it’; ‘I think it might be better if you made a statement and told me exactly what happened’; ‘Put your cards on the table. Tell them the lot’; ‘You had better tell the truth’. 190. Callinan, Heydon and Crennan JJ examined (at [329] ff) what constituted oppression under English common law. In R v Priestley (1965) 51 Cr App R 1, Sachs J described it as “something which tends to sap, and has sapped, that free will which must exist before a confession is voluntary”, a description which accords with Dixon J’s statement in McDermott of confessions made by a person whose

will was overborne of which he gave non-exhaustive illustrations: Tofilau (at [330]–[331], [364]). 191. At common law it is not necessary, before a statement is held to be inadmissible because it is not shown to have been voluntary, that the relevant impropriety be found in the conduct of the person to whom the statement was made. Rather, what has to be [page 701] considered, is whether the statement is shown to have been voluntary: DPP v Ping Lin [1976] AC 574 (at 594) per Lord Morris of Borth-y-Gest (Lord Wilberforce agreeing) and (at 602) Lord Hailsham. As was explained in R v Bertrand [2008] VSCA 182; (2008) 20 VR 222 (at [50]), Lin emphasised that the question of the admissibility of a confession turned on the application of common sense, and the recognition “that the main reason for receiving a confession was that if made freely, it was very probably true”. Thus it would be sufficient, in accordance with Lin, to reject a confession if it was elicited after the accused had been subjected to relevant oppressive conduct, even if those to whom the confession was made were not complicit in that conduct, as long as the court could conclude the conduct was a cause of the confession being made. 192. Burut v Public Prosecutor [1995] 2 AC 579 (Privy Council) is a decision to like effect. The accused were suspected of a firearms offence (which was a capital offence) and in accordance with a “special procedure” for such cases, were manacled and hooded during some of their interviews. However, they made their confessions, not during those interviews, but in interviews during which they had not been manacled or hooded. At their trial the accused contended that their statements were inadmissible under s 117 of the Criminal Procedure Code of the Laws of Brunei (Cap 7) because in the circumstances in which they were obtained the prosecution would not be able to satisfy the court, as it was required to do under s 117(2), that “the statement was voluntary, that is to say that it was not obtained by violence, inducement, threat or oppression by a person in authority”. The accused did not give evidence on the voir dire conducted to determine the admissibility of the confessions. Lord Steyn, who delivered the advice of their Lordships, held (at 593):

For the police to interview an arrested person while he is manacled and hooded is plainly oppressive conduct calculated to sap the will of the person being interviewed. 193. Lord Steyn then turned to the question whether the confessions were “obtained by … oppression”. He emphasised that an inference could be drawn from the circumstances of the oppressive conduct, that the confessions may have been obtained by oppression, saying (at 593): In the gaps between the application of the ‘special procedure’ and the signing of the written statements the appellants were questioned by police officers. As their Lordships have observed virtually nothing is known about those interviews. Moreover, during those gaps the appellants remained deprived of visits of relatives. Nothing had happened to remove the implied threat of further sessions subject to the ‘special procedure’. The trial court misdirected itself by finding that in the absence of oral evidence from the appellants on the voir dire there was no evidence that the statements were obtained by oppression. Even without evidence from the appellants the very nature of the ‘special procedure’, and the relatively short gaps between the application of the ‘special procedure’ and the taking of the statements, inferentially suggested that the statements were, or may have been, obtained by oppression. In these circumstances their Lordships are free to depart from the findings of fact of the trial court. The correct conclusion is that, against the background of the ‘special procedure’, the prosecution upon whom the burden rested failed to prove to the requisite standard that the statements were not obtained by oppression. It follows that the trial court should have ruled all the written statements inadmissible. (emphasis added) 194. In R v Thomas [2006] VSCA 165; (2006) 14 VR 475 (at [83]), the Court of Appeal (Maxwell P, Buchanan and Vincent JJA) also took the view that the question of voluntariness was to be determined by assessing whether any relevant impropriety was likely to have been operating upon the mind of the accused at the

time he was interviewed. In Thomas, the accused was arrested in Pakistan, held by Pakistani authorities for two months in solitary confinement and interviewed by Pakistani authorities and on six occasions by members of a joint team of Australian Federal [page 702] Police and ASIO officers. In holding statements he made should have been ruled to be inadmissible at trial, the Court said: 91 What is important is whether the applicant could, in any real sense, be said to have had a free choice to speak or remain silent. In our view, the Judge fell into error by divorcing the interview from the context in which it occurred, a context which his Honour found operated on the will of the applicant. It is necessary, when considering the admissibility of an inculpatory statement made by a person in the course of a police interview, to bear in mind that evidence of this kind differs from most other forms of evidence. The most obvious difference, which has long been identified and to a large extent underlies the principles governing the admissibility of such evidence, is that the evidence comes into existence at the time of the interview and is a product not only of the interview itself but of many factors, both external and personal to the maker. Whether or not an individual decides to speak or remain silent, and the content and form of any statement made, will inevitably be influenced by his perception of the situation in which he is placed at that time. (emphasis added) 195. The Court concluded (at [92]), that “[w]hile nothing occurred in the interview itself that could be seen to overbear the will of the applicant, there can be little doubt he was, at that time, subject to externally-imposed pressure of a kind calculated to overbear his will and thereby restrict, in a practical sense, his available choices and the manner of their exercise” and (at [94]) that “[a]dmissions made in the circumstances we have described could not, in our view, be held to be voluntary”. Section 84 — legislative history 196. The Evidence Act derives from an extensive inquiry into the

laws of evidence conducted by the ALRC. The ALRC’s Interim Report on Evidence (ALRC, Interim Report on Evidence (1985) No 26, Vol 1, at pars 752–766) noted many criticisms of the voluntariness rule, one of which was that it attempted to address both reliability and public interest concerns but failed adequately to distinguish between them (at par 965). 197. Clause 71 in the draft Evidence Bill attached to the Interim Report (Vol 2, at 40), included the presumption against admissibility contained in the present s 84: 71. Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by violent, oppressive, inhuman or degrading conduct, whether toward the person who made the admission or toward some other person, or by a threat of conduct of that kind. 198. The ALRC explained the philosophy behind the proposal as follows (Vol 1, at par 765): Techniques which are perceived as particularly likely to substantially impair the mental freedom of a suspect may be prohibited, and any evidence produced as a result of them excluded. If interrogators engage in acts of violence, threats of violence, torture or inhuman, degrading or oppressive conduct, then an admission made subsequent to such conduct may be untrue, regardless of the characteristics of the suspect being interrogated. 199. The Evidence Act was based on the draft Evidence Bill attached to the ALRC’s Final Report on Evidence (1987) No 38, Vol 1. Section 84(1) was cl 72 of the draft bill. The ALRC observed in relation to that clause (Summary of Recommendations, at par 34): 34. Violence and admissions. Evidence of an admission should be excluded where it was influenced by violence to any person. It should not be necessary to establish a causal link between the violence and the admission (para 154(a); Bill, cl 72)…. …

201. The Final Report on Evidence dealt with deficiencies of the common law voluntariness rule. It observed (at [156], footnotes omitted): There is also a vast body of technical and unclear law dealing with the admissibility of a confession induced by threats or promises by a person in authority. Fine distinctions [page 703] have been drawn. For example, ‘Be sure to tell the truth’, is not a threat or promise that should exclude a confession but ‘It would be better for you to tell the truth’ is. It is unclear whether the inducement must actually cause the confession or whether it is sufficient that the inducement preceded the confession and was not removed. The result in practice has been that attention tends to focus on whether the accused was overborne in some way or whether threats or promises were made. In practice, unless the accused can demonstrate that he or she was overborne, or that inducements were offered by a person in authority, the accused will fail to have a court rule a confession involuntary. Thus, while the onus of proving voluntariness is formally on the prosecution, in practice there is a subtle reversal of the onus — it is placed on the accused. This means that, in particular where psychological pressure is relied upon, it is extremely difficult for an attack on a confession on the grounds of involuntariness to be successful. The tendency is to admit rather than the exclude [sic]. (emphasis added) … Section 84 — raising the issue … 212. The respondent cited three authorities in support of its submission that in order to enliven s 84, the appellant had to adduce evidence that the relevant admission was “influenced by” s 84(1) conduct. In his oral submissions Mr Leopold argued that the appellant had to establish a causal nexus between the making of

the admission and the conduct. He argued the appellant gave no such evidence … 227 Returning to the respondent’s submission the critical issue is whether, before s 84(1) could apply, the appellant had to adduce evidence positively establishing a causal nexus between the proscribed conduct and the alleged admission. 228. In our view, the language of s 84(2) does not support that proposition. The expression “has raised” does not import any notion that the s 84(2) party has to prove the issue being “raised”, namely whether “the admission or its making” were influenced by the s 84(1) conduct. 229. The concept of a party raising the issue in s 84(2) is juxtaposed with the proposition in the same sub-section that another party is seeking to “adduce” “evidence of the admission” — a strong internal indication that the party seeking to raise the issue may do so without having to establish the fact of conduct actually having influenced the admission. Otherwise the effect of s 84(2) would be to reverse the negative test required by s 84(1) to be satisfied before the relevant admission becomes admissible … 231. A requirement that the s 84(2) party give evidence that the relevant conduct caused the admission would also be inconsistent with the common law at the time s 84 was enacted. As is apparent from Tofilau (at [53], [60]) the issue of voluntariness did not turn on a subjective inquiry into the mind of the confessionalist, but rather on “the sufficiency of the compulsion”. It is clear from the historical materials to which we have referred that s 84 was not intended to make it harder to exclude admissions obtained in proscribed circumstances. 232. As already observed, the respondent’s suggested construction of s 84(2) would invert the test s 84 clearly intended a court to apply, namely to be satisfied the relevant conduct did not influence the admission or its making. On the respondent’s argument, the party raising the s 84 issue would have to discharge a causal burden (it did not suggest at what level of proof) before the Court could consider whether the party tendering the document had established the converse! This would be a remarkable outcome particularly in light of the ALRC’s concern that the one aspect of the common law rules of voluntariness was their tendency to cast

the burden of proof on the issue of voluntariness on the accused rather than the prosecution. It would not, in our view, be consistent with the purpose of the section. 233. It should be borne in mind in construing s 84 that it applies in both civil and criminal proceedings. The Court should not import into s 84 requirements which may [page 704] be thought to be comparatively harmless to satisfy in civil proceedings, but which could have significant adverse consequences for the wide range of accused in criminal proceedings seeking to challenge the admissibility of admissions. 234. We would conclude from the language of s 84, the statutory context and legislative history and the common law position when s 84 was enacted that in order to raise a s 84 issue, that there must be some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by proscribed conduct (cf Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 (at [19](1)) per Hodgson JA, Handley and Ipp JJA agreeing). However it is not necessary that that evidence prove as a fact that an admission or its making were so influenced. 235. Here, in our view, there was plainly evidence of oppressive conduct of the nature s 84 contemplates (as the discussion under the heading “Section 84 — conclusion on admissibility of the interviews” (at [253] ff) makes apparent) from which it was open to the primary judge to conclude as a reasonable possibility that the admissions the respondent sought to tender were so influenced. 236. In our view the primary judge did not err in concluding the appellant had raised the s 84 issue. We would reject the first ground in the notice of contention. Section 84 — the meaning of “influence” 237. As we have said, under the common law voluntariness rule, the question was whether the will of the confessionalist was overborne by the allegedly improper conduct. This language is still used in some judgments. In Higgins v R [2007] NSWCCA 56 (at [28]) Hoeben J (Sully and Bell JJ agreeing) referred to the lack of evidence that “[the maker’s] will was overborne in any way”.

However, as Adams J observed in R v Ul-Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348 (at [120]), that is not the relevant test under s 84. 238. The Macquarie Dictionary Online defines “influence”, relevantly, to mean “modify, affect, or sway”, while the Oxford English Dictionary Online refers to “influence” as to “affect the mind or action or; to move or induce by influence” and also “to affect the condition of, to have an effect on”. Neither of these definitions evokes a particularly high test of causation. 239. In R v Zhang [2000] NSWSC 1099 (at [44]), Simpson J held that: … s 84 does not require the isolation of a single reason, or a single event or incident or instance of conduct provoking the confession; there may be a number of factors working together that, combined, cause the admission to be made. If oppressive conduct on the part of police is one of those factors (or, more accurately, if the Crown has failed to negative such conduct as one of those factors) then the evidence is inadmissible. (emphasis added) 240. Hoeben J cited Simpson J’s statement with approval in Higgins (at [26]). Refshauge J cited Simpson J’s comments in R v JF (at [32]), as establishing that “the test to determine the causal relationship between the conduct and the admission is not a stringent test”. 241. In R v JF (at [37]), Refshauge J commented that because the effect of s 84 was “… automatic exclusion of the confession, with no discretion, and a relatively low threshold of causation, it does seem that the conduct involved should be of a relatively significant level of impropriety”. With respect, that imposes a gloss on the section which, in our view, is not warranted by its language. The only question s 84(1) poses is whether the “admission and [its] making” were “not influenced by” conduct of the nature identified. At best, as was said in Heffernan (at 22), the wide scope of the section in its application in both civil and criminal proceedings is a reason for not giving “an expansive meaning to ‘oppression’ in s 84”. [page 705]

The nature of s 84(1) conduct 242. It appears to have been common ground at trial that if the appellant’s evidence of how he was treated in Pakistan, Egypt and Guantanamo Bay was accepted, it fell within the description of the conduct proscribed by s 84(1). The primary judge also appears to have taken that approach and did not explore the nature of s 84(1) conduct … 245. The Macquarie Dictionary defines “oppressive”, relevantly as “burdensome, unjustly harsh … causing discomfort because uncomfortably great, intense” and “oppression” as “the exercise of authority or power in a burdensome, cruel or unjust manner”. The Macquarie Dictionary also defines “degrade” relevantly as “to lower in dignity or estimation; bring into contempt”. 246. In Higgins (at [26]) Hoeben J held “that the concept [of ‘oppressive’ in s 84(1)] should not be limited to physical or threatened physical conduct but can encompass mental and psychological pressure”. 247. In Zhang (at [40]), Simpson J concluded there had been oppressive conduct within the meaning of s 84 in circumstances where the accused: … was offered witness protection in exchange for cooperation in the context of being confronted with two alternatives only: to co-operate with police or be charged with murder. He was offered those alternatives at the same time as being told that he could expect a reduced (or no) sentence in return for his co-operation. There was a threat of some kind, of physical violence (when Detective Goodwin told him he would like to hit his face); and, finally and importantly, he was told that once Detective Goodwin had left the room he would have no further opportunity to co-operate with police. This last was calculated to apply pressure to the accused. 248. In Ul-Haque (at [95]), Adams J observed that the precise boundaries of the term “oppressive … conduct” in s 84 were uncertain. While he commented that some assistance was afforded by the other conduct mentioned in s 84(1)(a), it was unnecessary to elaborate as he had concluded the impugned conduct (assumption

of unlawful powers of direction, control and detention) “was well within the meaning of the phrase”. 249. In Tofilau [at 322(d)] Callinan, Heydon and Crennan JJ described s 76 of the Police and Criminal Evidence Act 1984 (UK) (the “PACE Act”) as the English equivalent to s 84 and s 85 of the Evidence Act. There are, with respect, some significant differences between the provisions. First, s 76 only applies in criminal proceedings. Secondly, unlike s 84, “oppression” is defined in s 76(8) of the PACE Act to “include torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)”. In R v Fulling [1987] EWCA Crim 4; [1987] QB 426 (at 431–432) the Court of Appeal (Lord Lane CJ, Taylor and Henry JJ) held that because the PACE Act was a codifying Act, it should be construed by reference to the natural meaning of its language uninfluenced by considerations derived from the previous state of the law. On that basis the Court concluded that “oppression” in s 76(2)(a) should be given its Oxford English Dictionary meaning which, relevantly, was: Exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc.; the imposition of unreasonable or unjust burdens. 250. The primary judge concluded (at [49]) without criticism from the respondent in this Court that “the circumstances in which [the appellant] was shackled, and detained [in Guantanamo Bay] were degrading”. 251. In Habib v Commonwealth of Australia [2008] FCA 1494 (at [14]), in what might be described as a mastery of understatement, Perram J remarked of the circumstance that the appellant was chained to the floor during his interrogation in Guantanamo Bay that “[t]he chaining of a person to a floor is quite capable of generating that sort [page 706] of distress” referring to the appellant’s claim that as a result of being so chained, he suffered, inter alia, “great pain of body and mind”. [Appeal allowed, judgment for the defendant/respondent quashed

and judgment entered for the plaintiff/appellant. The matter was remitted for the determination of damages.]

Evidence Act 1995 s 85 12.124 Section 85 requires the court to consider whether there have been factors during an investigation that cast doubt on whether an admission is in fact true. If a person has told the prosecutor only what the prosecutor wants to hear because he or she is not mentally competent, is in some form of distress, or is seeking to avoid a threat or obtain some promised benefit, the admission should not be accepted. Section 85(3) sets out some factors that the court must consider when deciding whether or not the circumstances are likely to have affected the truth of the admission. They are: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and (b) if the admission was made in response to questioning: (i)

the nature of the questions and the manner in which they were put, and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

12.125 In R v Rooke (unreported, 2 September 1997, NSWCCA, BC9703981) the accused was convicted of receiving stolen motor vehicles. The accused appealed against his conviction arguing, inter alia, that certain admissions made to police should be excluded on the basis of ss 85 and 138 of the Evidence Act 1995. During the course of his judgment, Barr J (with whom Newman and Levine JJ agreed) said, with respect to s 85: … the section may be said to be intended to require courts to

inquire, where appropriate, into the process by which official questioning produces evidence tendered at trial. If the circumstances of the official questioning are such as to produce untruthful or unreliable evidence of admissions — adversely to affect their truth — the evidence is inadmissible. But the section is only concerned with the truth or reliability of evidence of admissions in this limited way. It has generally no part to play in the admissibility of evidence of admissions which may be untrue or unreliable for other reasons. Untruthfulness or unreliability in those circumstances is not a question for the trial judge at all, but for the jury.

12.126 In R v Zhang [2000] NSWSC 1099 Simpson J said: 51. … Generally speaking, s 85 is directed to the circumstances in which an admission is made and any impact those circumstances may have on the reliability or otherwise of the admission. The section is not directed to the truth or falsity of the content of the admission …

[page 707] 12.127 Before the decision in Kelly v R (2004) 218 CLR 216; 205 ALR 274 (discussed in Bryant at 12.117) the relevant question was whether anything occurred during ‘official questioning’ that may impact upon the truth of that admission. In Kelly, the High Court took a narrow view of the term, ruling that an admission made at a police station, but after the investigating officer had announced that the interview had ceased, was not an admission made during official questioning. After that decision s 85 was amended and no longer refers to official questioning. The section now applies to an admission made: (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be,

capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

The issue is whether anything that has been done may have induced a person to make up a confession to an investigating officer. The alleged admission no longer has to be a response to ‘official questioning’.

Evidence Act 1995 s 137 12.128 Section 137 requires the court to consider ‘unfair prejudice’ which may be suffered if the particular evidence (not limited to admission evidence) is admitted. 137. Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

12.129 In R v Serratore (1999) 48 NSWLR 101 Dunford J said, when discussing s 137: [31] ‘Probative value’ is defined in the dictionary to the Act as meaning the extent to which the evidence could rationally affect the assessment of the probability of the existence of the particular fact in issue; in this case, whether the appellant was involved in the death of the deceased. All relevant evidence led in the Crown case at trial is prejudicial to the accused, but it is only that of which the probative value is outweighed by the danger of unfair prejudice which is excluded; that is, evidence which has only slight probative value but which carries with it a probability that it be misused by the tribunal of fact in a way logically unconnected with the issues in the case: R v Lockyer (1996) 89 A Crim R 457; see also R v Singh-Bal (1997) 92 A Crim R 397.

12.130 To take an example, an admission by an accused

that he had committed three brutal crimes in the past may create an unfair prejudice in the minds of the jury, without adding proof of his guilt for the particular crime being tried. 12.131 An example of unfair prejudice unrelated to admission evidence might be where there is a very brutal murder and the accused’s defence is that she was not there and did not do it — that her arrest is simply a case of mistaken identity. [page 708] The accused may admit that the murder occurred in the circumstances alleged by the Crown. Presenting photos of the deceased in court then serves little probative value, adding nothing to the evidence that it was the accused who committed the crime. On the other hand, the photos could be prejudicial if they upset the jury so much that they might convict to ‘avenge’ the death of the deceased. If, however, the accused’s defence is that the killing was in self-defence, the photos may be admissible to show that the brutality involved was incompatible with self-defence. In this second situation, the evidence goes directly to a disputed fact — was it selfdefence or not? — so its probative value is very high. 12.132 Any evidence that tends to show that a person is guilty of a crime is prejudicial. Section 137 is not concerned with any prejudicial evidence, only evidence that is ‘unfairly prejudicial’. In R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 Spigelman CJ said at [71]: Like other sections of the Evidence Act, s 137 calls upon a judge to compare essentially incommensurable considerations: probative value on the one hand and unfair prejudice on the other. As Justice Scalia once put it, this is like asking ‘whether a particular line is longer than a particular rock is heavy’ (Bendix Autolite Corp v Midwesco Enterprises Inc, 486 US 888 (1988) at 897). Nevertheless, this is a task that judges are often called upon to perform.

Discretionary exclusion 12.133 The provisions detailed above provide for the mandatory exclusion of evidence. Where the quoted sections apply, the evidence in dispute must be excluded. The provisions discussed below give rise to a discretion on the part of the trial judge to exclude admission evidence where the interests of justice would suggest this is necessary.

Evidence Act 1995 ss 138 and 139 12.134 Section 138 of the Evidence Act deals with evidence that has been illegally or improperly obtained, and, in this broad context, is not limited to admission evidence. 12.135 Evidence that has been illegally or improperly obtained is generally to be excluded, except where ‘the desirability of admitting the evidence outweighs the undesirability of admitting [it]’. This clearly sets up an exercise where the interest of the community in obtaining the conviction of guilty persons has to be balanced against both the expectation and the need to ensure that the officials of law enforcement themselves obey the law. 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

[page 709]

Without limiting subsection (1), evidence of an (2) admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f)

whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

the difficulty (if any) of obtaining the evidence (h) without impropriety or contravention of an Australian law. 139 Cautioning of persons (1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a) the person was under arrest for an offence at the time, and (b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and (c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. (2) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during official questioning is taken to have been obtained improperly if: (a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and (b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and

[page 710] (c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately. (4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official. (5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if: (a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or (b) the official would not allow the person to leave if the person wished to do so, or (c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so. (6) A person is not treated as being under arrest only because of subsection (5) if: (a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth, or (b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.

12.136 Where there has been a breach of the law, then the evidence has been obtained illegally. It is harder to determine whether the evidence has been obtained improperly but not unlawfully. The issue was discussed in DPP v Carr at 11.31.

There the actions of the police in arresting a person, when proceedings by summons would have sufficed, were held to be improper. 12.137 The meaning of ‘improper’ was considered in Robinson v Woolworths Ltd. Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426 NSW Court of Criminal Appeal [The Department of Health recruited minors to buy cigarettes contrary to the Public Health Act 1991. The appellant sold cigarettes to the minors and was convicted. The appellant appealed arguing, inter alia, the method of using minors to purchase the cigarettes was improper.] Basten JA: … The general law discretion 16. In Ridgeway v The Queen (1994–95) 184 CLR 1, at 30, the joint judgment noted: At least since Bunning v Cross (1978) 141 CLR 54, it has been ‘the settled law in this country’ that a trial judge has a discretion to exclude prosecution evidence on public [page 711] policy grounds in circumstances where it has been obtained by unlawful conduct on the part of the police. That discretion is distinct from the discretion to exclude evidence of a confessional statement on the ground that its reception would be unfair to the accused. Thus the concept of “unfairness” to the particular accused may have a special relevance in relation to confessional evidence which does not arise in other circumstances…. Although there may be a fine line between the private interests of a particular defendant and the public interest in the fair and proper exercise of law enforcement powers, it is clear that the emphasis in the present context must be on the latter, and not on the question of

unfairness to a particular defendant. Further, the differential treatment of confessional evidence under the general law suggests that little help can be derived from s 138(2) (dealing with improperly obtained admissions) in determining the scope of improperly obtained evidence generally for the purposes of s 138(1) … 17. [The joint judgment in Ridgeway] expressly addressed the question whether the discretion to exclude such material extended to “circumstances where a criminal offence has been induced by improper, though not unlawful, conduct on the part of the authorities”: at 36. The joint judgment of Mason CJ, Deane J and Dawson J held that it did. The judgment gives some guidance as to what, under the general law, might constitute such impropriety. Thus after referring to conduct “quite inconsistent with the minimum standards” the judgment continued: Extreme cases of creating circumstances of temptation under which a vulnerable but otherwise law-abiding citizen commits an offence of a kind which (so far as the police are concerned) he or she otherwise might not have committed provide possible examples. 18. The judgment also adopted the language of the Canadian Supreme Court (per Lamer J) in R v Mack [1988] 2 SCR 903 at [79] that “there are inherent limits on the power of the state to manipulate people and events for the purpose of attaining the specific objective of obtaining convictions”. Further, at 37, the judgment noted that: The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. Their Honours continued: It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal

only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention [of] any imminent danger to the community. 19. In this last passage, it is implicit that the minimum standards of acceptable conduct must be understood to depend upon the circumstances of the case. It seems inevitable that factors which may become relevant to the exercise of the discretion to admit such evidence are also relevant to the anterior question of whether there was impropriety, triggering the exclusionary rule. It should also be noted that the passage is concerned with “criminal activity”, not summary offences, and hypothesizes a “suspect”. 20. Before leaving Ridgeway, it is helpful to note a distinction drawn in the joint judgment between two categories of offences procured by illegal conduct on the part of law enforcement officers. Thus, at 39, the joint judgment noted: The first category consists of cases in which the police conduct has induced an accused person to commit the offence which he or she has committed. In that category of case, the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations except in what we would hope to be the rare and [page 712] exceptional case where the illegality or impropriety of the police conduct is grave and either so calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice require exclusion of the evidence. The other category of case is where illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes an essential ingredient of the charged offence…. In that category of case, the police

illegality and the threat to the rule of law which it involves assume a particularly malignant aspect. Relevance of general law principles 21. Section 138 has a broad scope. For example, it applies not merely to evidence obtained unlawfully, but also evidence obtained “improperly”. It applies not only in criminal proceedings, but also in civil proceedings. It applies to all kinds of evidence, including admissions which, for the purposes of criminal proceedings, may also need to be considered under ss 84, 85 and 90. Finally, and significantly for the present case, the section covers, not merely impropriety or unlawful conduct in the acquisition of evidence following an offence, but also conduct which constitutes the offence. 22. It is clear that s 138 varies the common law in a number of respects … Nevertheless, s 9 of the Act states: 9(1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment. Thus, in relation to s 138, there is no doubt that the statutory rule involves exclusion of evidence, where its terms are engaged, subject to a discretion to admit. The general law rule was framed in terms of a discretion to exclude. Secondly, s 138 is not in terms limited to unlawful or improper conduct on the part of law enforcement authorities. Each of these considerations may be relevant in determining what constitutes “impropriety” for the purposes of s 138 and invite caution in considering whether to apply general law principles without qualification. On the other hand, because the Act does not define the concept of impropriety, it is difficult to perceive any necessary intention on the part of the legislature to vary the principles collected in Ridgeway, derived from earlier Australian authority. Accordingly, those principles should be applied. 23. It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as “the

minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards. Thirdly, the concepts of “harassment” and “manipulation” suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway referred to offences being procured or induced. 24. On the other hand, the clear intention of s 138 is to replace the general law discretion to exclude such evidence; the two cannot sensibly coexist together … On the other hand it is clearly arguable that, consistently with s 11(2), there is no exclusion or variation of the power to stay proceedings as an abuse of process. 25. The concept of inducement was also addressed by this Court in R v Sloane (1990) 49 A Crim R 270 in the context of an application for a permanent stay of proceedings with respect to supply of cocaine, on the basis that the accused had been induced by police to commit the offence and that there had, therefore, been “entrapment”. In Ridgeway, Gaudron J noted that such claims, prior to Ridgeway itself, had generally proceeded on the basis that the idea of “entrapment” engaged the principles with respect [page 713] to the discretion to exclude illegally or improperly obtained evidence: 184 CLR at 70, an approach preferred by McHugh J, at 86–88. In that context, her Honour referred to the following reasoning of Gleeson CJ in Sloane at 272–3: The authorities relied upon in support of the application for a stay of proceedings … established that, whatever its precise legal effect may be, the concept of entrapment involves as a necessary element the idea that an accused person has been induced to commit a crime which he or she otherwise would not have committed, or would have been unlikely to commit. 26. Gleeson CJ went on to refer to an on-going course of criminal activity such as dealing in drugs, before noting (at 273):

A common method of establishing that a person is carrying on an activity of selling goods of a particular kind is to buy some of the goods in question from that person. The specific sale would never have taken place but for the activity of the relevant police officer or informer, but that is not sufficient to constitute a case of entrapment. 27. In Ridgeway, Gaudron J adopted a similar distinction between the mere provision of an opportunity to commit a crime and inducement to commit a crime. Thus her Honour noted (at 77): In cases of ‘mere opportunity’, the accused person is fairly regarded as wholly responsible for his own actions. And that is so even if there is some illegality associated with the opportunity provided, as, for example, that involved in the purchase of contraband where it is clear that it is generally available to all who wish to purchase it. Her Honour then distinguished a different category of case. But in cases which go beyond the provision of mere opportunity, where the offence results from the illegal actions of those whose duty it is to uphold the law, it is they who, in a real sense, are responsible for its commission, not the accused. In such circumstances the accused and society in generally [sic] may well view prosecution as a serious injustice. 28. As will be noted below, the District Court concluded, without extensive justification, that the present case fell within the latter category identified by Gaudron J and did not involve a mere provision of an opportunity to commit an offence…. 34. [Rice v Tricouris (2000) 110 A Crim R 86] … bore a remarkable similarity to the present. A magistrate had dismissed a charge brought against the defendant for selling a tobacco product to a girl under the age of 18 years, in circumstances where the girl had been asked by the informant to attend a milk bar and make a “test purchase” of cigarettes. In considering the facts of the case, Beach J stated: [21] It is clear from the evidence of the appellant and Amanda Smith that the respondent was not induced to

sell the cigarettes. In all probability he would have been prepared to sell them to anyone who asked … [24] And true it is that the council engaged a 15-year-old child to procure the commission of the offence. But that can hardly be said to be improper conduct. To successfully prosecute the respondent it was necessary that the council obtain evidence that the respondent was selling tobacco products to children under the age of 18 years. [25] Amanda Smith was not committing any offence by purchasing the cigarettes. The situation in this case can be contrasted with that in Ridgeway where the actual importation of heroin into Australia was performed by police. [26] Further there was no insidious use or manipulation of Amanda by the appellant. The child and her mother were comprehensively informed of the procedure and ramifications of the test purchase. Amanda was hardly induced to take part in the process. She was asked to and agreed to as did her mother. 35. His Honour also noted the failure of the magistrate to take account of the policy of the law, the damage done to the health of children who smoke, the need to deter [page 714] the selling of cigarettes to children, the difficulty of obtaining evidence to prove the commission of the offence and the absence of viable or practical alternatives in relation to the successful prosecution of such offences. His Honour concluded at [31]: I cannot accept that society would frown upon the use of a 15-year-old child to make a test purchase of cigarettes from a milk bar in the circumstances in which Amanda Smith did in the present case. Indeed I suspect that most reasonable members of the community would take the view that that was a most satisfactory way of attempting to stamp out the illegal sale of tobacco products to minors. 36. These principles should inform the determination of a court as

to what constitutes “improperly” obtained evidence or “impropriety” for the purposes of s 138. In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety. 37. Before leaving these broad principles, it is necessary to note the indeterminacy of the test identified by reference to inconsistency with “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”: Ridgeway at 36. Such a test invites assertion and counter-assertion, with no objective touchstone to assist in deciding which to accept and which to reject. It is at least doubtful whether a majority of the Australian community would have shared the High Court’s view of the ‘entrapment’ of Mr Ridgeway … The answer is not necessarily to eschew the task, but to establish, in advance, standards of conduct against which a claim of impropriety can be assessed. Where no relevant pre-existing standard has been breached, it should be a rare case in which impropriety would lead to exclusion. (Of course, standards may themselves require scrutiny, but no relevant standard was identified in the present case.) And the test of such a case must involve judicial appraisal of all potentially relevant public policy considerations, being the task actually undertaken in Ridgeway. Appeals to ‘community standards’ will tend to substitute subjective reactions for careful analysis, albeit of ill-defined concepts. 38. No doubt the circumstances of the particular case, including the nature of the offence, and, in the context of regulatory offences, the purpose underlying the prohibition, may give rise to different answers in different circumstances. For example, in the present case, the judge noted at [25]: One can think of many analogies. I doubt that the community would accept the prosecution of taxi drivers who stop in no-stopping zones when hailed by undercover police officers. This analogy helpfully demonstrates the dangers of seeking support in such reasoning. To describe a police officer as “undercover” in these circumstances tends to involve an emotive and misleading element. To compare the enforcement of “no-stopping zones”, an

element of a traffic law, with the protection of public health is also inapt. The conclusion suggested is, it may be noted, inconsistent with the approach of Queen’s Bench Division in Amin. Accordingly, it is desirable to turn directly to the particular circumstances of the case and the reasoning adopted in the District Court in reaching the conclusion that the conduct of the law enforcement officer of the Department of Health was relevantly “improper” … [His Honour then considered the particular facts and found that the action of the Department of Health was not improper.] [Barr J agreed with Basten JA. Hall J in a separate judgment agreed with the orders proposed by Basten JA. Appeal dismissed.]

[page 715] 12.138 In R v Coulstock (1998) 99 A Crim R 143 at 146 Hunt CJ at CL said this about s 138: … it is important to emphasise that it is no longer appropriate to speak of the discretion to exclude evidence upon the basis that it has been obtained improperly or illegally. [He then set out s 138 and then continued] … The High Court has recently discussed the close relationship between s 138 and the common law, in Swaffield and Pavic (1997) 96 A Crim R 96. It is clear that the onus still lies on the accused to establish the impropriety or illegality before any onus is placed upon the Crown to persuade the trial judge that the evidence should nevertheless be admitted. This discretion is therefore to admit the evidence notwithstanding the impropriety or illegality.

12.139 In R v Rooke (unreported, 2 September 1997, NSWCCA, BC9703981) Barr J compared s 138 with the common law that has been described in Swaffield and Pavic (see 12.104). His Honour said: … it is appropriate to consider whether and how the section differs from the common law. At common law the accused bore the burden of showing why the Court should exclude admissible evidence that had been unlawfully obtained.

Merritt and Roso (1985) 19 A Crim R 360 per Hunt J at 378, 379. Section 138 has changed that position and it is now for the Crown to show why unlawfully obtained evidence that it tenders ought to be admitted. That is the intent of subs (1).

12.140 In R v Ireland (1970) 126 CLR 321 Barwick CJ said at 335: Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high price. Hence the judicial discretion.

12.141 In Bunning v Cross (1978) 141 CLR 54 Stephen and Aickin JJ, which whom Barwick CJ agreed, said (at 74): … What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration. It seems to me that s 138 sets up a test which is really the same as the common law test. By subs (3) it sets out matters which the Court should consider if they apply to the case under consideration, but allows the Court to go beyond those matters if justice requires it. It seems to me that the matters

particularised in subs (3) are of the kind which courts would have been entitled to consider in exercising the public policy discretion discussed in Ireland and Bunning v Cross.

[page 716] 12.142 Section 139 of the Evidence Act does not, in itself, make provision for the admission or exclusion of evidence. It provides that, where a person is under arrest (which is given an extended meaning by virtue of s 139(5)), any statement made by that person, or evidence of any act by that person, is deemed to be improperly obtained unless the investigating official, prior to questioning the suspected person, warned the person that ‘the person does not have to say or do anything but that anything the person does say or do may be used in evidence’. The consequence of holding that such evidence is ‘improperly’ obtained is that a trial judge will have to consider whether or not to exercise his or her discretion to admit the evidence under s 138. 12.143 Section 139 has to be read with Pt 9 of the Law Enforcement (Powers and Responsibilities) Act 2002. Section 122(1) of that Act requires the custody manager to caution a person in terms similar to s 139 of the Evidence Act when that person first comes into custody at a police station (see Chapter 11). Section 122(2) further provides that the fact that the person has been cautioned by the custody manager does not affect the obligation for the investigating officer to again caution the person in accordance with s 139 of the Evidence Act when beginning any formal investigative procedure such as an interview. 12.144 Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 sets out various rights that are available to the accused, not the least of which is the right to be brought before a magistrate or to be charged and bailed before the end of the investigation period (for details see Chapter 11). The investigation period is not more than four

hours unless it has been extended by a magistrate’s order. Even so, the period in detention can be longer than four hours as time spent resting, taking refreshments, and waiting for a lawyer, friend or consular official to arrive are not counted as part of those four hours. Strict compliance with Pt 9 (formerly Crimes Act 1900 Pt 10A) is required and failure to adhere to the requirements can see evidence excluded on the basis that the evidence was unlawfully or improperly obtained. 12.145 There are many cases where these provisions, and the consequences of adhering to them, are discussed. A significant case is R v Rondo (2001) 126 A Crim R 562 (see 11.8). In Rondo, police stopped a young man who was driving a ‘smart’ coupe along Epping Road in Sydney and, when asked if the car was his, he replied ‘no’. In Chapter 11, we saw that these facts did not give rise to a ‘reasonable suspicion’ that would justify the police stopping the car to search for drugs. The court also had to consider the consequences of various breaches of the requirements under Pt 10A of the Crimes Act, the relevant legislation at the time, and, in particular, the detention of the accused which was extended by a magistrate’s warrant issued after false information was given to the magistrate by police. What was the effect of this conduct? Smart AJ said: 123. … As the detention warrant was invalid the question arises whether the evidence subsequently obtained should be admitted, despite it being unlawfully obtained. The justice in issuing the search warrant made this note: ‘Police requested to escort defendant/occupier back to premises.’ This the police did as they had the detention warrant. I have earlier referred to the justice’s note to similar effect on his record of application for a detention warrant.

[page 717]

The police took advantage of the appellant being in their custody to take him back to the Supra and retrieve his set of keys to the house and question him there and at the house and obtain admissions which the judge told the jury the Crown would have to prove beyond reasonable doubt. If the detention warrant had not been issued it is probable that these admissions would never have been made and evidence of them would not have been led. 124. The discretion under s 138 is one which should have been exercised by the trial judge. On the view he took of the contravention in question it was unnecessary for him to consider s 138. The discretion is not one which this Court can exercise as part of its appellate jurisdiction. Further, this is not a case where this Court can say that if the judge had come to exercise his discretion under s 138 he must have admitted the evidence subsequently obtained. This is, at least, a new trial point. … 138. In exercising his discretion under s 138 as to the evidence obtained on the execution of the search warrant the judge does not appear to have had regard to the unlawful stopping of the Supra, the invalid detention warrant and the pattern of unlawful conduct which emerged all of which resulted in the obtaining of evidence which the Crown used. It cannot be said that the desirability of admitting the evidence improperly and unlawfully obtained outweighs the undesirability of admitting that evidence.

Spigelman CJ, Simpson J and Smart AJ all agreed that the appellant’s conviction should be quashed and a verdict of acquittal entered.

Evidence Act 1995 s 90 12.146 This section reflects the common law discretion, also discussed in Swaffield and Pavic (see 12.104), for a judge to reject evidence where the circumstances in which the

admission was obtained would make it unfair to use the admission against the accused. 12.147 Section 90 can be compared to s 137 extracted above (see 12.128). Section 137 applies where the content of the admission is unfairly prejudicial and outweighs its probative value. It is what was said that makes the admission unfair and therefore inadmissible. Section 90 applies when it is the way in which the admission was obtained that makes it unfair to use the evidence against the accused and, therefore, it should be excluded. 12.148 An example of unfairness — and the one considered in Swaffield and Pavic — is where police continue to ask questions even when the accused has indicated that he or she does not wish to answer; but it is not any pressure or insistence that makes conduct unfair. In R v Clarke (1997) 97 A Crim R 414 at 419–420 (NSWCCA), Hunt CJ at CL said: It should be kept in mind that a police officer is under a duty to ascertain facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence. No doubt evidence will inevitably be excluded if there is any suggestion of intimidation, persistent importunity or sustained or undue insistence or pressure.

[page 718] 12.149 In Em v R, in a situation reminiscent of Swaffield and Pavic (see 12.104), NSW police took the accused to a park to have a conversation. The accused did not know the police were recording the conversation. The accused believed that an admission that was not taped could not be used against him. The accused had been interviewed by police and had refused to say anything whilst being recorded. The police

obtained a warrant under the Listening Devices Act 1984 to allow them to covertly record their conversation. They then took the accused to the park and said ‘You know, mate, you don’t have to talk to us if you don’t want to’. But the detectives did not then or at any other stage say that anything the appellant said might be recorded and given in evidence. On his trial for murder the accused objected to the use of the recorded evidence. By the time the matter came before the High Court it had been conceded or had been held that no other provisions of the Evidence Act applied, that is, the evidence was not excluded by the operation of s 84, s 85, s 137 or s 138. Em v R (2007) 232 CLR 67; 239 ALR 204; [2007] HCA 46 High Court of Australia Gummow and Hayne JJ: [footnotes omitted] … 107. … [T]he central issue is whether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, “would be unfair”. That is, the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as “fair” or “unfair”. 108. Understanding s 90 in this way is consistent with the language of the section. It is also consistent with what was said in the Report of the Australian Law Reform Commission that recommended the enactment of what was to become s 90. In that report the proposal was to enact “an exclusionary discretion similar to that known as ‘the Lee discretion’ in existing law”. In R v Lee, this Court said that the discretion required asking “whether, having regard to the

conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused”. In Lee, the argument focused upon what was said to be the “‘improper’ or ‘unfair’ methods [used] by police officers in interrogating suspected persons or persons in custody”. Yet, in that case, the Court emphasised that it is in the interests of the community that all crimes “should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered”. The content and application of this common law discretion have subsequently been examined by this Court on a number of occasions, including in Cleland v The Queen, R v Swaffield and most recently Tofilau v The Queen. 109. When it is “unfair” to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. “Unfairness”, whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways. But many cases in which the use of evidence of an out-of-court admission would [page 719] be judged, in the exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act other than s 90. Thus although the discretion given by s 90 is generally similar to the common law discretion considered in Lee, it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or “safety net” provision. 110. That this is the way in which the Act, and s 90 in particular, operates is apparent when two circumstances that may be relevant to the exercise of the common law discretion (the reliability of the confession and the use of improper means to secure it) are considered. 111. At common law, questions of reliability play an important part

in considering the exercise of the common law unfairness discretion. As pointed out in Swaffield, other considerations may be engaged. In particular, admitting evidence of a confession may, sometimes, disadvantage an accused in ways that are not readily remedied. Cases of the latter kind include cases where admitting evidence of the confession would put the accused at a particular forensic disadvantage. The circumstances considered by this Court in Foster v The Queen and in the Supreme Court of Victoria by Smith J in R v Amad are examples of such cases. Because the chief focus of the common law discretion falls upon the fairness of using the accused person’s out-of-court statement, not upon any purpose of disciplining police or controlling investigative methods, the reliability of what was said out of court is important to the exercise of that discretion. 112. As noted earlier, s 90 of the Act expressly directs attention only to the fairness of using the evidence at the trial of the accused. Section 85 deals with evidence of an admission made by a defendant in the course of official questioning, and provides that the evidence is not admissible unless the circumstances in which the admission was made “were such as to make it unlikely that the truth of the admission was adversely affected”. It follows that consideration of the reliability of what was said in a statement made to police can have no part to play in the operation of s 90. (By contrast, questions of reliability may well have a role to play in the application of s 90 if the statement was not made in the course of official questioning or “as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued”. But that is not this case.) 113. Because s 85 was not engaged to exclude the disputed evidence in the present case, no question of the reliability of what this appellant said in the admissions now in question was relevant to the exercise of the discretion under s 90. The hypothesis upon which that discretion was to be exercised must be that the circumstances were not such as to make unreliable the admissions the appellant made. 114. The second consideration that is relevant to the present matter, and assists in demonstrating that s 90 is to be understood as a safety net which catches a residuary category of cases not

expressly dealt with elsewhere in the Act, where use of the evidence at trial would be unfair, is the consideration of improper police methods. The appellant’s central complaint in the present matter was that the police deceived him. He thought that what he said to the police was not being recorded, but it was. This complaint lay at the heart of his contention that s 90 should have been applied to exclude the evidence. [In a separate joint judgment Gleeson CJ and Heydon J agreed with Gummow and Hayne JJ that the use of the evidence was not unfair, and that the appeal should be dismissed. Kirby J dissented.]

[page 720]

RIGHT TO SILENCE 12.150 Although admissions play a significant role in many criminal trials, the purpose of the caution required by the Law Enforcement (Powers and Responsibilities) Act 2002 s 122 and the Evidence Act 1995 s 139 is to bring home to accused persons that they are not required to answer any questions that are put to them by police. Historically this right was reinforced by common law and statutory provisions, such as the Evidence Act 1995 s 89, which provided that no adverse inference can be drawn by an accused person’s failure or refusal to answer police questions. In Petty and Maiden v R (1991) 173 CLR 95 Mason CJ, Deane, Toohey and McHugh JJ said, at [2]: A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse

inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless.

12.151 Notwithstanding the warning from the High Court that ‘To draw such an adverse inference would be to erode the right of silence or to render it valueless’, the New South Wales Parliament moved to allow, in some circumstances, such an inference to be drawn. The Evidence Amendment (Evidence of Silence) Act 2013 introduced s 89A into the Evidence Act 1995. The new section allows a court to draw an adverse inference against an accused if the accused has: … failed or refused to mention a fact: (a) that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and (b) that is relied on in his or her defence in that proceeding.

12.152 There are some pre-conditions that must be met before the inference can be drawn. They are: The section only applies where the accused is charged with a serious indictable offence, that is ‘an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more’ (Crimes Act 1900 s 4). The defendant must have been given a ‘special caution’; that is, the person must have been told that he or she does not have to say or do anything, but it may harm the defence if he or she does not mention when questioned something which is later relied on in court and that anything said or done may be used in evidence. The caution was given in the presence of an Australian legal practitioner who was acting for the defendant at the time.

[page 721] The defendant was given sufficient time to consult with his or her lawyer about the effect of the caution. Any inference cannot be made if the accused was aged under 18 or was incapable of understanding the caution. Further, the section does not apply ‘if evidence of the failure or refusal to mention the fact is the only evidence that the defendant is guilty of the serious indictable offence’. 12.153 The section can be expected to add a degree of complexity in police investigations. The section is based on English ‘reforms’ which have caused considerable difficulty, which it is beyond the scope of this book to explore. What can be seen is that, where the police suspect that a person has committed an offence, they must ‘caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence’ (Evidence Act 1995 s 139). Failure to issue that warning would mean that any subsequent admission was deemed to be improperly obtained and would be excluded unless a judge exercised the discretion under s 138 to allow the evidence. No adverse inference can be drawn against an accused who, having been told that he or she ‘does not have to say or do anything’ then chooses not to say or do anything (Evidence Act 1995 s 89). 12.154 Having given that caution, and having determined that the accused is suspected of having committed a serious indictable offence, the investigating officer could make arrangements for a lawyer to attend the police station. Once the lawyer is there the police could issue the special caution to the effect that an adverse inference may be drawn if the accused, who has just been told he or she does not have to

say anything, exercises that right and does not say something that is later raised in the trial. 12.155 Getting lawyers to attend the police station during an interview is already problematic. Legal aid does not generally fund lawyers to attend at the interview stage and private lawyers may be unwilling to attend as that runs the risk of them becoming witnesses in their client’s case and no longer able to represent the person. This provision may be an added incentive for lawyers to refuse to see their clients in the police station. If the lawyer does not attend, the special caution cannot be given and the adverse inference cannot be drawn. If the lawyer was there he or she would have to consider how to advise the client in the pressure situation of the police interview without full opportunity to consider the client’s instructions or the Crown’s case. 12.156 As we have noted above, there are provisions requiring pre-trial disclosure to reduce the risk of the Crown being surprised at trial. A lawyer may, however, feel more comfortable responding to the prosecution brief of evidence and making disclosures in the more relaxed process of pretrial disclosure than having to advise the client what he or she should or should not disclose in the police station. [page 722]

CONCLUSION 12.157 In this chapter we have reviewed the law that applies to the criminal trial, from the presentation of the indictment or information, to the admissibility of evidence, to sentencing and appeals. That the process is complex serves to remind us of Deane J’s comment in Dietrich v R (1992) 177 CLR 292; 109 ALR 385 that ‘[t]he fundamental prescript of the criminal law of this country is that no person shall be

convicted of a crime except after a fair trial according to law’. The law of criminal procedure reinforces the notion that the law serves not only to protect the citizen from criminals, but also from the state. The law, and in particular the law of criminal procedure, ensures that the state punishes only those members who have been proved, beyond reasonable doubt, and with reliance on fairly obtained and fairly used evidence, to have contravened the law, and not some mere moral or personal objection.

DISCUSSION QUESTIONS 12.158 1.

You are the judge hearing a matter and you are satisfied that the following facts have been proved: The accused attends the police station voluntarily in order to ‘assist police with their inquiries’ and is interviewed about some stolen property. The accused denies involvement in the offence and then says he wants to leave. The police say that he cannot leave until they have checked out his story, and tell him to wait in an office until they have made their inquiries. The accused waits, and a couple of times asks if he can leave, but is told to wait. At no time is the door locked or the accused physically restrained. Eventually the investigating police officers return and say ‘We know you did it, why not confess, we are not going to let you go until you do!’ A senior police officer, hearing this conversation, takes the police officers outside and castigates them for making this threat. She then returns, apologises to the accused and says to him that he is free to go if he wishes, but the police would like

to ask further questions. At this point the accused says ‘Oh forget it, I did it alright?’ He is then charged. Do you allow evidence of that admission to be admitted against the accused? Why, or why not? 2.

1

An accused is alleged to have made an admission to police, which is recorded in the police notebook. The accused denies ever making the admission. What do you understand is the current legal position with respect to the admission of this evidence? RN Howie (ed), Butterworths Australian Criminal Law Dictionary, Butterworths, Sydney, 1997, p 159.

Index References are to paragraphs

A Abortion decriminalisation, recommendation of …. 9.31 defence of necessity …. 9.28 lawfulness …. 9.29 necessity and …. 9.28–9.31 negligence causing loss of opportunity for …. 9.30 procuring drugs for …. 9.28 unlawful …. 9.28 Absolute liability honest and reasonable mistake …. 1.89–1.90 offence of …. 1.88 Accessory after the fact see Accessory after the fact before the fact …. 10.35, 10.41–10.46 fault element …. 10.45 intention …. 10.43 joint offenders …. 10.44 knowledge …. 10.45 punishment …. 10.35

recklessness insufficient …. 10.45 relationship with principal in the second degree …. 10.43 Accessory after the fact fault element …. 10.74 knowledge of specific crime …. 10.73 larceny …. 10.73 misprision of felony …. 10.75 murder …. 10.74 New South Wales Law Reform Commission review …. 10.71 notion of …. 10.71–10.72 physical element …. 10.73 punishment …. 10.35 serious indictable offence …. 10.35, 10.71 Accident defence manslaughter …. 8.38 Accused evidential burden of proof …. 8.1–8.2 rights of see Accused’s rights Accused’s rights brought before justice as soon as practicable …. 11.51–11.52 caution before questioning …. 12.135 communication with family/lawyer …. 11.67, 11.69 delaying interview to allow time for …. 11.68

communication with foreign consul …. 11.67 delaying interview to allow time for …. 11.68 informing family/lawyer of custody …. 11.67 interpreter …. 11.67 legal representation …. 1.57 medical assistance …. 11.67 police station, at …. 11.67, 11.69 refreshments and toilet facilities …. 11.67 release or bail …. 11.70–11.72 right to silence see Silence, right to Actual bodily harm meaning …. 3.23 Actus reus elements of crime …. 1.67–1.69 Admissions see also Confessions admissibility of …. 12.115 circumstances affecting truth of …. 12.124–12.127 illegally or improperly obtained discretion to exclude voluntary admission …. 12.102–12.104 fabricated confessions …. 12.105–12.113 involuntary admission …. 12.98–12.101 inducements …. 12.123 involuntary …. 12.98–12.101 official questioning, conduct during …. 12.127

unfairly prejudicial …. 12.146–12.149 voluntary, discretion to exclude …. 12.102–12.104 Aggravated assault see Assault; Battery Aggravating factors sentencing …. 12.48 Alcohol abuse duress, relevance to …. 9.13 insanity defence …. 8.15 Alibi evidence pre-trial disclosure …. 12.30 Annoying conduct crime, whether classified as …. 1.8 Appeals court hierarchy …. 12.74–12.76 Court of Appeal appeal to …. 12.74–12.75 Court of Criminal Appeal …. 12.76 appeal from …. 12.74, 12.77 appeal to …. 12.74–12.81 determination of appeal …. 12.78 power of …. 12.78–12.81 District Court appeal from …. 12.75 appeal to …. 12.74–12.75 error of fact …. 12.76

evidence incorrectly admitted/excluded …. 12.74 fresh evidence petition to Governor based upon …. 12.82–12.85 rules concerning …. 12.75 High Court, to …. 12.74 Local Court, appeal from …. 12.74 magistrate, decision of …. 12.74 miscarriage of justice …. 12.78–12.81 misstatement of law …. 12.74 provision for …. 12.74 rule against double jeopardy …. 12.86–12.93 sentence, against …. 12.75, 12.77 manifest excess …. 12.46 manifest inadequacy …. 12.46 Supreme Court appeal from …. 12.74 appeal to …. 12.74–12.75 unreasonable verdict …. 12.76 Apprehended domestic violence order (ADVO) apprehended personal violence order, comparisons with …. 5.12–5.13 assault and …. 5.11 breach of …. 5.19 conduct other than violence, fear of …. 5.17 domestic violence …. 5.12–5.20

enquiries into complainant’s state of mind …. 5.16 intimidation …. 5.10, 5.13–5.14, 5.17 making of …. 5.16–5.20 offence of contravening …. 5.19 personal violence offence …. 5.15 personal violence order (APVO) see Apprehended personal violence order power to make …. 5.13 private legal regime …. 5.20 restraining orders …. 5.12 stalking …. 5.10–5.14, 5.17 tailoring to protect applicant …. 5.18 who may apply …. 5.12 Apprehended personal violence order breach of …. 5.19 making of …. 5.16–5.20 Arrest accused’s rights on see Accused’s rights bail, breach …. 11.95 common law …. 11.38 definition of …. 11.37–11.39 deprivation of freedom …. 11.31 detention for further investigation after …. 11.55–11.59 investigation period …. 11.55, 11.57 entry into premises to effect …. 11.44–11.47

announcing desire to enter before using force …. 11.45 force, use of …. 11.45, 11.47–11.48 reasons, giving …. 11.44 ex parte hearing, after …. 12.17 force used against person to effect …. 11.48 investigation, impermissible for …. 11.49, 11.56 medical examination …. 11.61 period of detention before release on bail …. 11.52 purpose of …. 11.49–11.52 questioning, impermissible for …. 11.49 rights of accused at police station see Accused’s rights search incidental to …. 11.53–11.54 search of person in custody …. 11.54, 11.60 statement of reason for …. 11.40–11.43 taken before justice as soon as practicable …. 11.51–11.52 unlawful …. 11.31, 11.56 warrant …. 11.34 without warrant …. 11.28–11.33 appropriateness …. 11.29–11.32 further investigation after …. 11.33 improper …. 11.31–11.32 minor offence …. 11.30, 11.32 police powers …. 11.28–11.29 powers of other persons …. 11.29 strict limits on …. 11.27

Assault actual bodily harm …. 5.25 grievous bodily harm …. 5.28 definition …. 5.28 recklessness …. 5.29–5.30 wounding …. 5.27 aggravated assault …. 5.24–5.26 apprehended violence order see Apprehended domestic violence order (ADVO) battery see Battery common law definition …. 5.6 consent see Consent contact …. 5.7–5.8 Crimes Act offence …. 5.5 death, causing see Assault causing death desire to create fear …. 5.7 directions to jury …. 5.8 domestic violence …. 5.11–5.20 apprehended domestic violence order see Apprehended domestic violence order (ADVO) elements …. 5.7–5.9 fault element …. 5.9 recklessness, meaning of …. 5.9 physical element …. 5.7–5.8 immediacy of threatened violence …. 5.8 fault element …. 5.9

grievous bodily harm …. 5.28 immediacy of threat …. 5.8 intentional act …. 5.7, 5.9, 5.31 lawful correction defence …. 5.32, 9.52 non-consensual contact …. 5.8 threat to bring about …. 5.8 offence …. 5.5, 5.31 physical elements …. 5.7–5.8 provocation …. 9.49 recklessness …. 5.9, 5.31 sexual offences see Sexual offences simpliciter …. 5.24 stalking or intimidation, offence of …. 5.10 threat to inflict unlawful force …. 5.6–5.9, 5.31 what constitutes …. 5.5–5.9, 5.31 without consent …. 5.6, 5.8, 5.28, 5.31–5.32 wounding …. 5.27 Assault causing death ‘coward punch’ …. 4.18 intent, required …. 4.20 intoxication …. 4.22 manslaughter and, comparison of …. 4.20 murder or manslaughter charge, alternative to …. 4.23 offence …. 3.4, 4.18–4.23 sentencing discretion, limit to …. 4.22

Victoria, approach in …. 4.21 Attempt act or omission …. 10.8–10.9 common law on …. 10.7–10.8 criminal conduct derivation …. 10.8 criminal intent …. 10.7–10.8, 10.17–10.18 criminal responsibility …. 10.1 definition …. 10.2 discussion questions …. 10.76 fault element …. 10.17–10.18 grievous bodily harm, to cause …. 10.17, 10.18 impossibility …. 10.13–10.16 inchoate crime …. 10.3 intention …. 10.5–10.8, 10.17–10.18 larceny …. 10.8 murder …. 10.1 intention to kill …. 10.17–10.18 provocation, whether defence …. 9.49 wounding with intent to …. 10.6, 10.9 notion of …. 10.2, 10.5–10.6 offences, specifically defined …. 10.6 physical elements …. 10.9–10.12 proximity to commission …. 10.9–10.10 serious indictable offences …. 10.6 stolen goods, to handle …. 10.7

voluntary desistance …. 10.11 Australian Constitution administrative and judicial powers, division of …. 1.42 rights under …. 1.7 Australian Security Intelligence Organisation (ASIO) detention powers …. 1.46, 11.24 warrants available to …. 11.24 Automatism burden of proof …. 8.42–8.45 causes …. 8.41 discussion questions …. 8.64 disease of the mind …. 8.34 epileptic seizure …. 8.45 evidentiary onus …. 8.45 insane and sane, distinction between …. 8.46 involuntary action …. 8.38, 8.41 It’s a Man’s World: Claims of Provocation and Automatism in ‘Intimate Homicides’ …. 8.47 malfunction of mind …. 8.42–8.43 mental illness, relation to …. 8.33–8.35 non-insane …. 8.41–8.46 insane automatism, distinction …. 8.46 sane and insane, distinction between …. 8.46 scope …. 8.48 sleepwalking …. 8.45, 9.16

stress as cause …. 8.41, 8.45 trauma, caused by …. 8.43 unsoundness of mind …. 8.43–8.46 voluntariness see Voluntariness Autrefois acquit plea …. 12.26–12.27, 12.88, 12.92 Autrefois convict plea …. 12.26–12.27, 12.88, 12.92

B Bail arrest for breach …. 11.95 breach of …. 11.95–11.96 categories of offences for …. 11.79 conditions …. 11.87–11.88 where cannot be met …. 11.89–11.90 considerations for …. 11.82 criteria to be considered …. 11.77, 11.82 failure to comply …. 11.95–11.96 making decisions …. 11.78–11.86 nature of …. 11.73–11.76 offences not to be granted for …. 11.79 pending court hearing …. 11.72 period of …. 11.91 process for considering …. 11.82 purpose of …. 11.73–11.74 refusing …. 11.89–11.90 release or …. 11.70–11.72

right to …. 11.79 when not available …. 11.79 roots of law of …. 11.75 seriousness of offence, considering …. 11.86 standard of proof for decisions …. 11.88 statutory provision …. 11.77 unacceptable risk posed by release, determining whether …. 11.85 undertaking to return to court …. 11.76, 12.10 varying …. 11.92–11.94 accused, application by …. 11.93 limitation on power of courts …. 11.94 prosecutor, application by …. 11.93 review by more senior officer, following …. 11.93 Bailee larceny by …. 7.61 Battered wife syndrome duress, relevance to …. 9.13 Battery aggravated assault …. 5.23–5.26 grievous bodily harm …. 5.26 assault and …. 5.6–5.8, 5.31 aggravated assault …. 5.24–5.26 distinction in tort …. 5.31 consent …. 5.32–5.39

continuous act …. 5.31 definition …. 5.21, 5.31 exceptions …. 5.21 fault element …. 5.23 manslaughter …. 4.2 non-consensual contact …. 5.7 offence …. 5.31 physical elements …. 5.21–5.22 recklessness …. 5.23, 5.29 unintentional …. 5.31 what constitutes …. 5.31 without consent …. 5.21, 5.23, 5.31–5.32 wounding …. 5.27 Bill of rights lack of …. 1.38–1.47 Bowraville murders parliamentary inquiry concerning …. 12.93 Burden of proof automatism …. 8.42–8.45 civil standard …. 1.18 criminal standard …. 1.18, 1.48–1.51, 8.1 defences …. 8.2, 9.2 evidential burden …. 8.2 mental illness …. 1.51, 8.2, 8.42 mistake defence …. 1.89

necessity …. 9.2 non-insane automatism …. 8.42–8.43 safeguard against injustice …. 1.48 self-defence …. 9.2 substantial impairment defence …. 3.37, 8.19 unlawful act causing death …. 4.7 voluntariness …. 8.2, 8.39

C Causation murder …. 2.7, 2.10–2.13 intervening act or event …. 2.10–2.11 pre-existing susceptibility …. 2.13 substantial cause …. 2.11 voluntary act of deceased …. 2.12 negligence …. 2.10 novus actus interveniens …. 2.10 reasonable foreseeability …. 2.10 Cautioning custody manager, by …. 11.55, 12.143 persons, of …. 12.135, 12.142 Children criminal responsibility …. 1.78–1.80, 1.82 age of …. 1.79 definition …. 10.35 innocent agent …. 10.37

killing of deemed born alive …. 2.14–2.15, 2.17 foetus in utero …. 2.15 infanticide …. 3.5, 3.43–3.45 offender age of criminal responsibility …. 1.79 doli incapax, presumption of …. 1.79 forensic samples, authority for …. 11.62 innocent agent …. 10.37 knowledge of wrong …. 1.79–1.80 sexual offences …. 1.80, 6.2, 6.5 recruiting for criminal activity …. 10.35 sexual offence against see Sexual offences against children sexual offence by …. 1.80 age of criminal responsibility …. 1.80 knowledge of wrong …. 1.80 rape by male under 14 …. 6.2, 6.5 Civil penalty conduct punishable by …. 1.11 Civil proceedings criminal proceedings and, distinction between …. 1.12, 1.18–1.22 Claim of right defence to larceny …. 7.36–7.44 advanced in good faith …. 7.36–7.44

honest belief …. 7.38 incorrect belief …. 7.38 Committal hearing discharge of accused …. 12.21 evidence by accused …. 12.22 evidence by victim …. 12.24 indictable matters …. 12.21–12.24 inviting accused to answer …. 12.22 magistrate, before …. 12.21 prediction of trial’s outcome …. 12.23 prima facie case, determining …. 12.21 prosecution evidence …. 12.24 warning to accused …. 12.22 Community Protection Act 1994 (NSW) …. 1.27–1.28 Community service order ex parte hearing, not to be imposed at …. 12.17 overview …. 12.52 Complicity accessory after the fact …. 10.35, 10.71–10.75 fault element …. 10.74 knowledge of specific crime …. 10.74 larceny …. 10.73 misprision of felony …. 10.74–10.75 murder …. 10.35, 10.74 physical element …. 10.73

serious indictable offence …. 10.35, 10.71 accessory before the fact …. 10.42–10.46 fault element …. 10.45 intention …. 10.43 joint offenders …. 10.44 knowledge as fault element …. 10.45 recklessness insufficient …. 10.45 accomplice definition …. 2.29 murder by …. 2.29 aider and abettor meaning …. 10.18 minor indictable offence …. 10.35 principal in the second degree …. 10.33, 10.39–10.42 punishable as principal …. 10.35 punishment …. 10.35 child innocent agent …. 10.37 recruiting for criminal activity …. 10.35 common purpose …. 10.34 counselling or procuring …. 10.18, 10.41 discussion questions …. 10.76 extended liability …. 10.55–10.59 fault element …. 10.17 innocent agent …. 10.37

joint criminal enterprise see Joint criminal enterprise misprision of felony …. 10.74–10.75 murder, in …. 10.1 accessory after the fact …. 10.35, 10.74 New South Wales Law Reform Commission review …. 10.34 notion of …. 10.2, 10.33–10.34 principal in first degree innocent agents …. 10.37–10.38 joint criminal enterprise …. 10.36 principal in second degree …. 10.39–10.41 serious indictable offence …. 10.35 statutory provisions …. 10.35 withdrawal from …. 10.69–10.70 Confessions see also Admissions admissions and …. 12.96–12.97 fabricated …. 12.105–12.113 influence, meaning of …. 12.123 oppression, what constitutes …. 12.123 voluntariness …. 12.122 basal …. 12.123 Consent assault contact sports …. 5.32 dangerous pastimes …. 5.32

fighting …. 5.32 human rights …. 5.33 husband and wife, activity between …. 5.34–5.37 lack of …. 5.32 lawful correction …. 5.32 limits of …. 5.32–5.39 maiming …. 5.32 prize fighting …. 5.32 prostitution …. 5.32 ritualistic religious exorcism …. 5.36 rough horseplay …. 5.32 sado-masochism …. 5.32 sexual activities …. 5.32, 5.35, 5.37, 5.39 sexually transmitted diseases …. 5.32, 5.40 surgery …. 5.32 limits of …. 5.32–5.39 sexual activity, in …. 5.37, 5.40, 5.41 Model Criminal Code Report …. 5.45 personal autonomy, value of …. 5.36 sexual assault, in see Sexual assault sexually transmitted diseases and …. 5.40–5.44 Conspiracy agreement to do unlawful act …. 10.19, 10.22–10.26 duration …. 10.20 evidence of actual terms …. 10.24

impossibility of carrying out …. 10.27 common law offence …. 10.19 continuous crime …. 10.20 crime of recklessness, to commit …. 10.31 definition …. 10.2 defraud, to …. 10.19, 10.24, 10.29 discussion questions …. 10.76 elements …. 10.19, 10.24–10.29 agreement …. 10.24–10.26 fault element of …. 10.29 impossibility of carrying out agreement …. 10.27–10.28 impossibility …. 10.21, 10.27 inchoate crime …. 10.3 intention that offence be committed …. 10.30 New South Wales Law Reform Commission review …. 10.23, 10.32 notion of …. 10.2, 10.19–10.23 parties, number of …. 10.19, 10.24 pervert the course of justice, to …. 10.22 physical element …. 10.19, 10.24 recklessness, to commit crime of …. 10.31 review of law …. 10.23 specific offences …. 10.19 unlawfulness of intended object …. 10.22 Constitution

separation of powers …. 1.28, 1.33, 1.41 Constructive murder accomplice …. 2.29 duress …. 9.17–9.22 fault element …. 2.30–2.32 felony murder rule …. 2.29, 2.32 intention, lack of …. 2.28 intoxication and …. 8.59 joint criminal enterprise …. 10.66 malice, requirement of …. 2.33 Model Criminal Code criticism …. 2.32 recommendation for limiting scope …. 2.31 Conviction implications …. 12.55 record of …. 12.22 release without …. 12.54 whether subject to …. 1.18–1.19 Corporate defendants criminal responsibility …. 1.81–1.82 Court capacity to strike down criminal legislation …. 1.7–1.9 Court attendance notice accused under arrest …. 12.9–12.10 choice not to appear …. 12.10 first return date …. 12.9

person not under arrest …. 12.10 requirement to attend …. 12.10 when can be issued …. 12.9 Court hearings adjournment …. 12.11, 12.20 appeals see Appeals arraignment …. 12.44 brief of evidence …. 12.13 choice not to appear …. 12.10 committal proceedings …. 12.21–12.24 conviction of accused …. 12.11, 12.20 court attendance notice …. 11.26, 11.72, 12.9 criminal trial procedure …. 12.45 evidence, aspects of see Evidence ex parte …. 12.14–12.17 first return date …. 12.9–12.10 guilty plea …. 12.11–12.12 hearing of the matter …. 12.18–12.20 indictable matters committal proceedings …. 12.21–12.24 plea …. 12.26–12.27 pre-trial disclosure …. 12.28–12.43 presentation of indictment …. 12.25 jury …. 12.5, 12.7, 12.45 lawyers, role of …. 1.59–1.63

legal representation, entitlement to …. 1.57 no case to answer submission …. 12.45 not guilty plea …. 12.13 return first date …. 12.9–12.10 sentencing see Sentencing summary matters …. 12.6–12.8 ex parte hearings …. 12.14–12.17 guilty plea …. 12.11–12.12 hearing …. 12.18–12.20 indictable offences dealt with summarily …. 12.7 magistrate, heard by …. 12.6 not guilty plea …. 12.13 trial by judge alone …. 12.5 trial by jury …. 12.5 voir dire …. 12.45 witnesses …. 12.19 Covert search warrant application for …. 11.16 conduct of search under …. 11.18 ‘eligible judge’ for issuing …. 11.17 grounds for …. 11.16 issue of …. 11.17 Crime characterising behaviour as …. 1.2 conduct that constitutes …. 1.1–1.2, 1.91

criminal in character …. 1.12–1.14 decriminalising conduct …. 1.15 definition …. 1.1–1.24 criticism of …. 1.11 discussion questions …. 1.92 elements of …. 1.64–1.68, 8.1 coincidence of physical and fault elements …. 1.76–1.77 fault element …. 1.70–1.72 motive …. 1.73–1.75 physical elements …. 1.69 special defendants …. 1.78–1.81 essential characteristics of …. 1.3 legislature, determination by …. 1.10 moral and legal responsibility …. 1.4 parliament’s choice to criminalise …. 1.23 prohibited conduct …. 1.3, 1.10 civil penalties distinguished …. 1.11–1.12, 1.15, 1.40 punishable, whether …. 1.3, 1.10, 1.13 state prohibition and punishment …. 1.2 Crime scene complicity where present at …. 10.52–10.54 police power to establish …. 11.5 warrant to establish …. 11.10 Criminal conduct what amounts to …. 1.1–1.2, 1.6

Criminal law abrogation of protection …. 1.21 application once violence perpetrated …. 1.29 bill of rights, lack of …. 1.38–1.47 impermissible extension …. 1.7–1.8 keeping the peace …. 1.26 Model Criminal Code Officers Committee (MCCOC) review …. 1.66 moral and legal responsibility …. 1.4 principles of …. 1.5, 12.157 process of see Criminal procedure role of …. 1.25–1.37, 12.157 limiting power of state …. 1.25, 1.30–1.37, 1.91, 11.1 protecting citizens liberty …. 1.30–1.32, 1.91 scope …. 1.5–1.6 theories …. 1.4 Criminal procedure arrest see Arrest bail see Bail commencing proceedings …. 11.26–11.27 court hearings see Court hearings detecting offence see Offence discussion questions …. 11.99, 12.158 failure to comply with legislative requirements …. 12.1 forensic samples see Forensic samples

overview …. 11.2, 11.3 penalty notice matters …. 12.2–12.4 presumption of innocence …. 11.97–11.98 rights of accused see Accused’s rights search see Search; Search warrant warrant see Search warrant; Warrant Criminal proceedings civil proceedings and, distinction between …. 1.12, 1.18–1.22 criminal process, use of, in …. 1.52–1.58 flow chart …. 1.54 Director of Public Prosecutions, use of, by …. 1.54–1.56 judge/magistrate, use of, by …. 1.54–1.57 police, use of, by …. 1.53–1.55 Criminal responsibility accessory before the fact …. 10.42 age of …. 1.79 child …. 1.79 corporation …. 1.81 mental element …. 1.89 notion of …. 10.1–10.2 voluntariness and …. 8.37 Criminal trial burden of proof …. 1.51 jury see Jury

lawyers, role of …. 1.59–1.63 legal representation, entitlement to …. 1.57 no case to answer submission …. 12.45 procedure …. 12.45 sentencing see Sentencing standard of proof see Standard of proof voir dire hearing …. 12.45 Cross-examination fairness by prosecutor …. 1.60 witnesses …. 12.19 Crown burden of proof in criminal proceedings …. 1.51 legal representation, entitlement to …. 1.57 Culpable driving procuring …. 10.18 Culpable killing offence …. 4.24 Custody manager accused’s rights, informing of …. 11.67 cautioning by …. 11.55, 12.143 police officer as …. 11.55 Customs offences civil matters distinguished …. 1.17–1.20 penal consequences …. 1.19–1.20 standard of proof …. 1.18–1.19

D Dangerous driving death or grievous bodily harm, causing …. 4.9, 4.24 Death assault causing see Assault causing death dangerous driving causing …. 4.9, 4.24 excessive use of force causing …. 9.47–9.49 Defences abnormality of mind see Substantial impairment by abnormality of mind application …. 8.5 automatism see Automatism burden of proof …. 1.51, 9.2 claim of right see Claim of right defence of others …. 9.32, 9.51 defence of property …. 9.32, 9.40, 9.51 duress see Duress evidential burden …. 8.2 flow charts …. 8.5 insanity see Insanity intoxication see Intoxication lawful correction …. 9.52 mental illness see Mental illness murder, for …. 8.5 necessity see Necessity

negation by prosecution …. 8.1–8.3, 9.2 non-fatal offences, to …. 9.52 offences other than murder, to …. 8.5 overview …. 8.1–8.5, 9.1–9.4 pre-trial disclosure …. 12.33 provocation see Provocation self-defence see Self-defence substantial impairment see Substantial impairment by abnormality of mind voluntariness, see Voluntariness whether elements of offence made out …. 8.3, 9.1 Detention see also Imprisonment arrest, after further investigation, for …. 11.55–11.59 investigation period …. 11.55, 11.57, 11.59 warrant …. 11.54, 11.56 ASIO powers …. 1.46, 11.24 compulsory drug treatment …. 12.63 constitutional schemes …. 1.44 continuing detention order …. 1.44 deprivation of liberty …. 1.44 double punishment, rule against …. 1.44 further investigation, for …. 11.55–11.59 home …. 12.64 mental illness orders …. 1.44

non-punitive, whether possible to be …. 1.44 preventative see Preventative detention release on bail, before …. 11.52 right not to be detained …. 1.42, 1.44, 1.47 search of person in custody …. 11.54 secret …. 1.46 warrant for …. 11.24, 11.55–11.56 without charge …. 1.27, 1.42–1.47 Diminished responsibility abolition of defence …. 8.23 substantial impairment, comparison with …. 8.25 Director of Public Prosecutions discretion in criminal process …. 1.54–1.56 indictment, presentation of …. 12.25 Discretion criminal process, in …. 1.52–1.58, 1.91 flow chart …. 1.54 DPP …. 1.54–1.56 judge/magistrate …. 1.54–1.57 offence for which accused prosecuted …. 1.56 police …. 1.53–1.55 Diversionary sentencing schemes …. 12.59 DNA samples admissibility of analysis evidence …. 11.66 taking …. 11.66

warrant for taking …. 11.10 Domestic violence apprehended domestic violence orders see Apprehended domestic violence order (ADVO) overview …. 5.11–5.20 Double jeopardy autrefois acquit …. 12.27, 12.86–12.93 autrefois convict …. 12.27, 12.86–12.93 directed verdict of acquittal …. 12.92 double punishment …. 1.44, 12.86 offences substantially the same …. 12.86 perjury in denying guilt …. 12.88 pleading guilty to lesser charge …. 12.91 restriction of …. 12.86 rule against …. 12.86–12.93 double prosecution …. 12.86, 12.88 double punishment …. 12.86–12.87 review concerning …. 12.93 Drug abortion, administering or procuring for …. 9.28 abuse and duress, not relevant to …. 9.13 insanity defence …. 8.15 definition …. 8.57 offences cannabis possession …. 1.15

conspiracy to commit …. 10.19, 10.26–10.27 ‘decriminalised’ conduct …. 1.15 duress …. 9.9 knowledge element …. 1.88 life sentence for trafficking …. 12.71 mistake defence …. 1.88 police stop and search powers …. 11.5, 11.8 sentencing principles …. 12.46 Duress age of accused …. 9.6–9.8, 9.11 alcohol abuse …. 9.13 battered wife syndrome …. 9.13 character of accused …. 9.11 confession and avoidance, plea in form of …. 9.19 defence of …. 8.4, 9.3–9.4 directions to jury …. 9.6–9.7, 9.9 discussion questions …. 9.53 elements of …. 9.6–9.10 hijacking …. 9.10 homosexuality not relevant …. 9.12 illegal act as lesser of two evils …. 9.4 limits of defence …. 9.6 mental illness and …. 9.11 murder, constructive murder and …. 9.17–9.22 opportunity to go to police …. 9.6

provocation analogy …. 9.8 reasonable person test …. 9.5–9.7, 9.11–9.13 sex of accused …. 9.6–9.7, 9.11–9.12 spontaneous reaction to …. 9.10 test for …. 9.5 threat by other person …. 9.4 ordinary person’s reaction …. 9.6–9.7 personal violence, of …. 9.6 will overborne by …. 9.5 two-part test …. 9.5 voluntary act, whether …. 9.14–9.16 would reasonable person have acted as accused did …. 9.11–9.13

E Elements of crime absolute liability crimes …. 1.83, 1.88 burden of proof …. 1.51 child, knowledge of wrong …. 1.79–1.80 coincidence of physical and fault elements …. 1.76–1.77 fault elements see Fault elements of crime mens rea …. 1.67–1.68, 1.88 mental elements see Fault elements of crime Model Criminal Code …. 1.66 overview …. 1.64 physical elements …. 1.67–1.69, 1.91

circumstances of action …. 1.69 prohibited action …. 1.69 prohibited effect …. 1.69 proof by Crown …. 1.64 strict liability crimes …. 1.83–1.90 Entry to premises arrest, to effect …. 11.44–11.47 announcing desire to enter before using force …. 11.45–11.46 force, use of …. 11.45 reasons, giving …. 11.44 without warrant …. 11.5 police powers …. 11.5, 11.22 arrest, to effect …. 11.44–11.47 domestic violence investigation …. 11.10 search warrant see Search warrant without warrant …. 11.5, 11.22 European Convention on Human Rights (ECHR) …. 1.39, 5.33 Evidence admissions see Admissions alibi …. 12.30 cautioning of persons …. 12.135, 12.142 circumstantial …. 1.73 committal hearing, at accused …. 12.22

victim …. 12.24 confessions see Confessions Evidence Act 1995 (NSW) …. 12.95 fresh, in appeals see Appeals hearsay evidence …. 12.97 admission …. 12.97 illegally or improperly obtained …. 12.134 breach of law …. 12.136 exclusion …. 12.135 onus of establishing …. 12.138 improperly but not unlawfully obtained …. 12.136 improper, meaning of …. 12.137 onus of establishing …. 12.138 modern statutory scheme …. 12.114 Criminal Procedure Act 1986 s 281 …. 12.115–12.121 discretionary exclusion …. 12.133–12.149 Evidence Act 1995 (NSW) s 84 …. 12.122–12.123 s 85 …. 12.124–12.127 s 86 …. 12.115–12.121 s 90 …. 12.146–12.149 s 137 …. 12.128–12.132 ss 138 and 139 …. 12.134–12.145 obtaining …. 12.97

prejudicial, exclusion of …. 12.128–12.132 probative value, definition …. 12.129 rules of …. 12.95 silence, right to …. 12.150–12.156 torture, obtained by …. 12.122 unfair prejudice …. 12.128–12.132 Ex parte hearing arrest after …. 12.17 discharge of accused …. 12.15 reasons for …. 12.14 summary offences …. 12.14–12.17

F Fair trial …. 1.35–1.36, 1.91 Fault elements of crime absolute liability …. 1.83, 1.88 child, knowledge of wrong …. 1.79–1.80 coincidence with physical elements …. 1.76–1.77 criminal responsibility …. 1.89 child …. 1.79–1.80 corporation …. 1.81 intention see Intention intoxication and see Intoxication knowledge …. 1.71 mens rea …. 1.67–1.68, 1.88 mistake of fact defence …. 1.84, 1.87–1.90

motive …. 1.73–1.75 murder, of see Murder negligence …. 1.71 proof of …. 1.72 recklessness …. 1.71 statute creating offence …. 1.88 strict liability …. 1.83–1.90 wilful blindness …. 1.71 Fines overview …. 12.58 penalty notice …. 12.2–12.4 penalty units …. 12.58 Fitness to be tried ability to plead …. 8.31 ability to understand charge and proceedings …. 8.30 expert evidence …. 8.32 intellectual disability …. 8.30 long trial …. 8.32 mental illness defence and …. 8.29 mental state at time of trial …. 8.29–8.30 test for …. 8.31–8.32 unfit to be tried …. 8.30 Forensic samples adult not under arrest …. 11.62 adult under arrest …. 11.62

authority for procedures …. 11.62 child …. 11.62 collection of …. 11.62–11.63 DNA samples …. 11.66 fingerprints and photographs …. 11.64–11.66 incapable person …. 11.62 invasion of personal privacy …. 11.63 magistrate’s power to compel …. 11.63 medical examination, power to conduct …. 11.61 order for taking of …. 11.62–11.63 photographs …. 11.64–11.65 Fraud offences see Stealing and other property offences

G Good behaviour bond conditional release under …. 12.53, 12.55 disqualification from driving …. 12.55 ex parte hearing, not to be imposed at …. 12.17 overview …. 12.53 suspended sentence distinguished …. 12.61 Grievous bodily harm aggravated assault …. 5.26, 5.28 attempt to cause …. 10.17 definition …. 2.25, 5.28 murder where intention to cause …. 2.25–2.27 recklessness as to causing …. 2.26

Guilt jury determining …. 12.5 law, based on …. 1.31–1.32, 1.58 legally admissible evidence, judged on …. 1.35 perjury in denying …. 12.88, 12.90 Guilty plea acceptance of …. 12.12 adjournment of hearing …. 12.11 conviction …. 12.11 discount on sentence …. 12.49–12.50 indictable offence …. 12.26 lesser offence, to …. 12.26, 12.91 sentencing, factor in …. 12.48–12.50 summary offence …. 12.11–12.12

H Hearings see Court hearings HIV-AIDS infliction of …. 5.28, 5.41–5.44 intention opposed to recklessness …. 5.42–5.43 Home detention ex parte hearing, not to be imposed at …. 12.17 overview …. 12.64 Homicide assault causing death see Assault causing death forms of …. 3.5

infanticide see Infanticide manslaughter see Manslaughter meaning …. 2.1 murder see Murder Human rights anti-terrorism legislation …. 11.25 ASIO detention powers …. 11.24 bill of rights, lack of …. 1.38, 1.40, 1.47 double punishment, rule against …. 1.44 European Convention on Human Rights …. 1.39 minimum rights of person charged with offence …. 1.39 legislation incompatible with …. 1.41 personal liberty …. 1.44 preventative detention as breach of …. 1.42 right not to be detained …. 1.42, 1.44, 1.47

I Illegally or improperly obtained admissions see Admissions evidence see Evidence Imprisonment see also Detention commencement date of sentence …. 12.69 ex parte hearing, not to be imposed at …. 12.17 life sentence …. 12.71–12.73 discretion not to impose …. 12.71

mandatory …. 12.71–12.72 murder …. 2.3, 12.71–12.73 non-parole period …. 12.67 court declining to set …. 12.68 parole …. 12.66 Parole Authority …. 12.67 penalty of last resort …. 12.66 preventative see Preventative detention term …. 12.66 Indictable offences arraignment …. 12.44 committal proceedings …. 12.21–12.24 criminal trial …. 12.45 no case to answer submission …. 12.45 plea …. 12.26–12.27 pre-trial disclosure …. 12.28–12.43 Infanticide definition …. 3.45 offence …. 3.2, 3.5, 3.8, 3.43 penalty …. 3.43 Innocence jury determining …. 12.5 law, based on …. 1.58 presumption of …. 1.48 bail reflecting …. 11.74

Innocent agent overview …. 10.37 Insanity see also Mental illness alcohol abuse …. 8.15, 8.61 automatism and …. 8.5, 8.34–8.35, 8.43, 8.46–8.47 burden of proof …. 1.51, 8.2 condition of mind at time of act …. 8.13 defence …. 8.2–8.16, 8.45 disease, disorder or disturbance of mind …. 8.11 drug abuse …. 8.15 effect of finding of …. 8.8 fitness to be tried …. 8.30–8.31 inability to know nature and quality of act …. 8.1–8.13, 8.16 indefinite detention order …. 3.35 intellectual disability and …. 8.15 legal standard of disorder of mind …. 8.13 M’Naghten Rules …. 8.6–8.16, 8.45 mental illness, definition …. 8.8 murder defence …. 8.5 special verdict …. 8.7 substantial impairment defence and …. 3.34–3.35, 3.38, 8.16 sufficient soundness of mind for criminal responsibility …. 8.13 voluntariness, question of …. 8.3, 8.5

Intention assault …. 5.6, 5.9 attempt …. 10.5–10.6, 10.17–10.18 coincidence with physical elements …. 1.76–1.77 conspiracy …. 10.21 fault element of offence …. 1.71 insanity and …. 8.13 intoxication and see Intoxication manslaughter intentional infliction of harm …. 4.2 no intention to kill …. 4.2, 4.7, 4.11 motive distinguished …. 1.73–1.75 murder see Murder overview …. 1.71 presumption that essential element of crime …. 1.88 proof of …. 1.72 Interception of telecommunications listening device in public telephone …. 11.3 warrant for …. 11.10, 11.24 International Covenant on Civil and Political Rights double punishment, rule against …. 1.44 Intimidation apprehended violence orders …. 5.13–5.17 overview …. 5.10 Intoxication

attempted offences of specific intent …. 8.62 codification of law on …. 8.55–8.61 definitions …. 8.57 effect …. 8.58–8.61 rule of evidence …. 8.57 common law background …. 8.51–8.54 defence, whether …. 8.48–8.50 discussion questions …. 8.64 fault elements and …. 8.49, 8.57–8.58 insanity and …. 8.63 intention and …. 8.48–8.49 basic intent …. 8.52, 8.55–8.58 common law …. 8.51–8.53 specific intent …. 8.52, 8.55–8.62 involuntariness and …. 8.55 manslaughter and …. 8.57 mental illness and …. 8.63 murder and …. 8.57, 8.59 physical elements and …. 8.48–8.50, 8.58 provocation and …. 3.21–3.22 reasonable person test …. 8.57 recklessness and …. 8.59 relevance …. 8.57 rule of evidence …. 8.57 self-induced …. 3.21, 8.49, 8.51–8.54, 8.55

sexual assault, effect of, in …. 6.33–6.37 specific intent, crimes of …. 8.52, 8.62 basic intent, comparison with …. 8.52 definition …. 8.56 Investigation period accused to be charged and bailed before end of …. 12.144 length of …. 12.144 Involuntary manslaughter criminal negligence, manslaughter by …. 3.3, 4.2–4.3 dangerous driving causing death and, comparison with …. 4.9 elements required …. 4.8 negligent act …. 4.15 negligent omission …. 4.14 discussion questions …. 4.25 homicide through joint criminal enterprise …. 3.3, 4.2, 4.16–4.17, 10.33 elements required …. 4.17 malice not ingredient of …. 4.12–4.13 types …. 3.3 unlawful and dangerous act, manslaughter by …. 3.3, 4.2–4.3 burden of proof …. 4.7 dangerous, meaning of …. 4.4 unlawful meaning of …. 4.4–4.5

otherwise than as breach of statutory provision …. 4.6 when arises …. 4.1

J Joint criminal enterprise accessory before the fact …. 10.51 agreement, evidence of …. 10.55 application …. 10.51–10.61 break, enter and steal …. 10.48 common purpose …. 10.34, 10.47–10.49, 10.51 Commonwealth …. 10.50 constructive murder and …. 10.66 criminal liability …. 10.34 directions …. 10.51 extended common purpose …. 10.62–10.65 grievous bodily harm …. 10.55 incidental offence …. 10.51, 10.56 manslaughter from participation in …. 10.68 New South Wales Law Reform Commission review …. 10.50 notion of …. 10.47–10.50 physical and fault elements …. 10.54 presence at scene …. 10.56, 10.59, 10.60 principal in the first degree …. 10.36 scope …. 10.51–10.61

Judge/magistrate discretion in criminal process …. 1.54–1.55 reasons for decision …. 1.57 Jury challenging jurors …. 12.45 empanelling …. 12.45 evidence put before …. 12.45 indictable matters heard before …. 12.6 judge’s directions to …. 12.45 assault …. 5.8 duress …. 9.6–9.7, 9.9 joint criminal enterprise …. 10.51 provocation defence, directions to …. 3.30

K Knowledge accessory after the fact …. 10.71 accessory before the fact …. 10.45 child, knowledge of wrong …. 1.80–1.81 defence of lack of …. 1.88 fault element of offence …. 1.71, 1.88 proof of …. 1.72

L Larceny accessory after the fact …. 10.73 alternative verdicts …. 7.66

asportation …. 7.8 attempt …. 10.8 bailee, by …. 7.61 claim of right advanced in good faith …. 7.36–7.44 defence …. 7.40–7.44 honest belief …. 7.38 incorrect belief …. 7.38 taking without …. 7.5, 7.36 common law …. 7.2–7.3 consent …. 7.7, 7.15–7.19 mistake …. 7.46–7.55 taking without …. 7.15–7.19 dishonesty …. 7.24–7.35 elements of offence …. 7.5 fault elements of …. 7.5, 7.20–7.44 fraudulently and without honest claim of right …. 7.24–7.44 claim of right advanced in good faith …. 7.36–7.44 fraudulent taking …. 7.25–7.35 intention to deprive owner of property in thing …. 7.20–7.23 finding and …. 7.45 history of …. 7.2 identity of owner unknown …. 7.19 intention to deprive owner …. 7.5, 7.18–7.20

fraudulently …. 7.24–7.35 permanent deprivation …. 7.20 short time, for …. 7.22 intention to return not defence …. 7.20 land excluded …. 7.9 mistake and requirement of coincidence between physical and fault element …. 7.46–7.55 Model Criminal Code Report …. 7.2 money …. 7.9 physical elements of …. 7.5, 7.8–7.19 in someone’s possession whether or not the owner …. 7.14 something capable of being stolen …. 7.9–7.13 taking and carrying away …. 7.8 without consent of person in possession …. 7.15–7.19 problems with …. 7.7 property, concept of …. 7.6 punishment …. 7.4 statutory offences …. 7.60–7.72 taking and carrying away …. 7.8 thing capable of being stolen …. 7.9–7.13 trick, by a …. 7.56–7.59 obtaining by false pretences and, distinction between …. 7.59 valuable security …. 7.9 Lawyers

decision to prosecute …. 1.60 defence lawyer …. 1.62–1.63 DPP Prosecution Guidelines …. 1.60 fairness …. 1.60–1.61 NSW Law Society Solicitors’ Rules …. 1.61, 1.63 primary duty to court and process …. 1.59 prosecutor …. 1.60–1.61 role of …. 1.59–1.63 rules of conduct …. 1.61 Life sentence discretion not to impose …. 12.71–12.73 drug trafficking …. 12.71 mandatory …. 12.71 murder …. 2.3, 12.71–12.73 power to reduce …. 12.71 worst category of cases …. 12.73

M Manslaughter accident …. 8.38–8.40 battery manslaughter …. 4.2 categories …. 3.2 criminal negligence …. 2.9, 3.3, 4.2, 4.8 duty owed to victim …. 4.11 high degree of negligence …. 5.9 negligent omission …. 4.14

culpable homicide …. 4.2, 4.24 definition …. 3.6 elements of offence …. 3.1, 4.8 excessive self-defence …. 3.39, 9.35, 9.47–9.49 flow chart …. 2.1 infanticide …. 3.2, 3.5, 3.43–3.45 intention to kill, lack of …. 4.2, 4.7, 4.15 intentional infliction of harm …. 4.2 intoxication and …. 8.57 involuntary see Involuntary manslaughter joint criminal enterprise, from participation in …. 10.68 malice and …. 4.10–4.13 Model Criminal Code Officers Committee Discussion Paper …. 2.2 murder and, relationship between …. 2.1 murder reduced to …. 2.1, 3.2, 3.5 excessive self-defence …. 3.39, 9.47–9.49 partial defences allowing …. 3.8–3.42 provocation …. 2.1–2.2, 3.2 substantial impairment …. 2.1, 3.2, 3.33–3.38, 8.16–8.29 NSW statutory definition …. 2.3–2.4 omission, by …. 4.10 provocation see Provocation punishment …. 3.6 trial judge directions on …. 3.7

unlawful and dangerous act …. 3.3, 4.2–4.7 breach of criminal law …. 4.6 burden of proving causation …. 4.7 dangerous act …. 4.4 direct act …. 4.4 elements of offence …. 4.4, 4.8 objective test of dangerousness …. 4.4 risk or likelihood of serious injury …. 4.4 unlawful, meaning …. 4.6 voluntary see Voluntary manslaughter Medical examination power to conduct …. 11.61 Mental illness abnormality of mind see Substantial impairment by abnormality of mind automatism see Automatism criminally insane …. 8.15, 8.17, 8.46 alcohol abuse …. 8.15 drug abuse …. 8.15 Crown raising defence of …. 3.35 declaration of, effect of …. 8.8 defence of …. 3.34, 3.35, 8.6 statutory basis …. 8.7 definition, relevance of …. 8.9 discussion questions …. 8.64

fitness to be tried see Fitness to be tried indefinite detention where …. 3.35 insanity, common law reference to …. 8.6 intoxication and …. 8.63 M’Naghten’s Rules …. 8.10–8.16 onus of proof …. 3.34, 8.2 substantial impairment defence …. 3.35, 8.17–8.28 voluntary, whether accused actions were …. 8.6 Mistake of fact defence of …. 1.84, 1.87–1.90 absolute liability offence …. 1.88 burden of proof …. 1.89 strict liability offence …. 1.84, 1.87 honest and reasonable mistake …. 1.84, 1.88–1.89 mistake of law distinguished …. 1.84 provocation …. 3.28 Mistake of law ignorance of law not excuse for crime …. 1.85 mistake of fact distinguished …. 1.84 not defence …. 1.84–1.86 officially induced …. 1.86 Model Criminal Code Officers Committee (MCCOC) consent, report on …. 5.45 establishment …. 1.66 murder and manslaughter, discussion paper on …. 2.2

non-fatal offences against the person, discussion concerning …. 5.3 property offences, recommendations concerning …. 7.2 provocation defence, criticisms of …. 3.31 sexual offences, discussion on …. 6.2 substantial impairment by abnormality of mind, discussion concerning …. 8.23 voluntariness, report on …. 8.37 Motive absence of …. 1.73 chain of proof …. 1.73 circumstantial evidence …. 1.73 intention distinguished …. 1.73–1.75 judicial instructions on …. 1.73 relevance …. 1.73–1.74 Murder accessory after the fact …. 10.35, 10.66 accomplice, by …. 2.29 act or omission …. 2.6–2.9 attempted …. 10.1 intention to kill …. 10.17–10.18 wounding with intent to murder …. 10.6, 10.9 automatism defence …. 2.7 causation …. 2.7, 2.10–2.13 intervening act or event …. 2.10–2.11 pre-existing susceptibility …. 2.13

substantial cause …. 2.11 voluntary act of deceased …. 2.12 child …. 2.14–2.15 deemed born alive …. 2.14–2.15, 2.17 foetus in utero …. 2.15 common law offence …. 2.1, 2.4 constructive murder …. 2.28–2.29 accomplice …. 2.29 duress …. 9.17–9.22 fault element …. 2.30–2.32 intention, lack of …. 2.28 intoxication and …. 8.57 joint criminal enterprise and …. 10.66–10.67 malice, requirement of …. 2.33 recommendation for limiting scope …. 2.31 culpable omission …. 2.6, 2.8–2.9 defences see Defences definition …. 2.3 deliberate act causing death …. 2.7 diminished responsibility defence, abolition of …. 3.33 discussion questions …. 2.36 double jeopardy, rule against see Double jeopardy duress and …. 9.17–9.22 elements generally …. 2.5, 2.34–2.35 fault elements …. 2.19–2.33

constructive murder …. 2.28–2.29 fault element in …. 2.30–2.32 malice, requirement of …. 2.33 intention to cause grievous bodily harm …. 2.25–2.27, 3.2 intention to kill …. 2.24, 3.2 mens rea …. 2.19 reckless indifference to human life …. 2.20–2.23, 3.2 flow chart …. 2.1 foreseeability of consequences …. 2.10 intention …. 1.76, 2.7, 2.10, 2.34 defence of lack of …. 2.7 grievous bodily harm, to cause …. 2.25–2.27 kill, to …. 2.24 motive distinguished …. 1.73–1.75, 2.24 intoxication and …. 8.57, 8.59, 8.61 joint criminal enterprise …. 10.51–10.61 jury finding on not guilty but guilty of manslaughter …. 3.7 life imprisonment …. 2.3, 12.71–12.73 manslaughter and, relationship between …. 2.1, 2.35 mental illness as defence …. 3.34 Model Criminal Code Officers Committee Discussion Paper …. 2.2 necessity and …. 9.27 NSW statutory definition …. 2.3–2.4

omission, by …. 2.6, 2.8–2.9 physical elements act or omission …. 2.6–2.7 culpable omissions …. 2.8–2.9 causation …. 2.10–2.13 intervening acts and events …. 2.10–2.11 pre-existing susceptibility …. 2.13 voluntary act of deceased …. 2.12 death of living person …. 2.14–2.18 provocation defence see Provocation punishment …. 2.3 reckless indifference to human life …. 2.7, 2.20–2.23 foresight of probability of death …. 2.20–2.23 intoxication and …. 8.59 subjective test …. 2.23 recklessness as to causing grievous bodily harm …. 2.26 self-defence as defence see Self-defence statutory partial defences …. 3.8 substantial impairment defence see Substantial impairment by abnormality of mind trial judge directions on …. 3.7 voluntary act …. 2.6–2.7, 2.12 wounding with intent to murder …. 10.9

N Necessity

abortion and …. 9.28–9.31 defence of …. 8.4, 9.3–9.4 discussion questions …. 9.53 elements …. 9.23–9.26 murder and …. 9.27 Negligence abortion, loss of opportunity for …. 9.30 causation …. 2.10 novus actus interveniens …. 2.10 reasonable foreseeability …. 2.10 fault element of offence …. 1.71 manslaughter …. 2.2, 2.9, 3.3, 4.2, 4.8 criminal negligence …. 3.3, 4.2, 4.8 duty owed to victim …. 4.8 high degree of negligence …. 5.9 high risk of death or serious injury …. 4.8 motor vehicle …. 4.6 proof of …. 1.72 Non-fatal offences against the person discussion questions …. 5.46 foundation stone …. 5.2 Model Criminal Code Officers Committee (MCCOC) discussion concerning …. 5.3 range of offences …. 5.4 sexual assault see Sexual assault

Not guilty plea brief of evidence …. 12.13 hearing after …. 12.18 indictable offence …. 12.26 NSW Law Reform Commission accessory after the fact, review of …. 10.72 complicity, review of law on …. 10.34 conspiracy, review of law of …. 10.23, 10.32 defence of diminished responsibility, recommendation concerning …. 8.23 joint criminal enterprise, review of …. 10.50

O Offence detecting …. 11.4 investigation with warrant …. 11.10 reasonable suspicion …. 11.6–11.9 stop and search without warrant, power to …. 11.5 Offences against the person fatal …. 2.2 manslaughter see Manslaughter Model Criminal Code Discussion Paper …. 2.2 murder see Murder non-fatal assault see Assault battery see Battery

general structure of offences …. 5.3 list of offences …. 5.4 Model Criminal Code Report …. 5.3 New South Wales criminal law …. 5.2 problems with law …. 5.3 Ordinary person one not intoxicated by alcohol or drugs …. 3.22

P Parole non-parole period …. 12.67 court declining to set …. 12.68 Parole Authority …. 12.67 release on …. 12.67 Penalty civil and criminal distinguished …. 1.11–1.12, 1.15–1.16, 1.40 conviction …. 1.18–1.19 crime defined by …. 1.3, 1.10 criminal …. 1.16 disqualification from driving …. 12.55 double punishment, rule against …. 1.44 expiation notice …. 1.15 judicial officer, imposed by …. 1.34, 12.5 maximum penalties …. 12.44, 12.46–12.50 plea of guilty, imposition after …. 12.11

tax default …. 1.11, 1.39 Penalty notice issue of …. 12.4 offences, listed …. 12.3 on the spot fine …. 12.2 Periodic detention ex parte hearing, not to be imposed at …. 12.17 Personal violence apprehended see Apprehended personal violence order personal violence offence, definition …. 5.15 Plea autrefois acquit …. 12.26–12.27, 12.86, 12.92 autrefois convict …. 12.26–12.27, 12.86, 12.92 guilty acceptance of …. 12.16 adjournment of hearing …. 12.11 conviction and sentencing …. 12.11 discount on sentence …. 12.49–12.50 indictable offence …. 12.26 lesser offence, to …. 12.26 sentencing, factor in …. 12.48–12.50 not guilty brief of evidence …. 12.13 hearing after …. 12.18 indictable offence …. 12.26, 12.28

Police arrest powers see Arrest crime scene, establishing …. 11.5 decision not to prosecute …. 1.53 detection of offence …. 11.4 discretion in criminal process …. 1.53–1.55 entry powers …. 11.5, 11.22 arrest, to effect …. 11.44–11.47 domestic violence investigation …. 11.10, 11.22 search warrant see Search warrant without warrant …. 11.5, 11.22 investigating alleged offence …. 11.4 warrant …. 11.10–11.21 without warrant …. 11.5–11.9 operational and procedural admissibility in evidence …. 12.114 rules of evidence …. 12.104 uncorroborated …. 12.111–12.112 warning to jury …. 12.111 safeguards …. 1.33 search warrant see Search warrant sniffer dogs, power to use …. 11.5 stop and search without warrant …. 11.5–11.9 powers …. 11.5 reasonable suspicion …. 11.6–11.9

trespass alleged against …. 11.22 Police station protections of accused at …. 11.67 Presumption of innocence law of bail and …. 11.75 Pre-trial disclosure alibi evidence …. 12.20 compulsory …. 12.29 details to be given to accused …. 12.33–12.34 opportunity for inspection …. 12.34 experts’ reports …. 12.31 forms …. 12.29 indictable offences …. 12.33 notice of Crown case …. 12.33 obligation …. 12.32, 12.38 accused’s failure to meet …. 12.41 court refusal to allow evidence …. 12.40 ongoing …. 12.38 pre-trial hearings and conferences …. 12.39 substantial impairment defence …. 12.29–12.32 witness statements …. 12.33 Preventative detention constitutional role of court …. 1.42 Crimes (High Risk Offenders) Act 2006 (NSW) …. 1.45 Criminal Code Act 1995 (Cth) …. 1.46

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) …. 1.43 human rights, whether breach of …. 1.42–1.47 Kable decision …. 1.27–1.29, 1.42–1.43 Procedural fairness prosecution, by and to …. 1.60–1.61 role of criminal law in ensuring …. 1.33, 1.35 Property offences see Stealing and other property offences Prosecution decision to prosecute …. 1.60 DPP Prosecution Guidelines …. 1.60 fairness …. 1.60–1.61 NSW Law Society Solicitors’ Rules …. 1.61 onus of proof …. 8.1–8.2 opening case for prosecution at trial …. 12.45 primary duty to court and process …. 1.59 role and duties …. 1.60–1.61 rules of conduct …. 1.61 Provocation abolition of defence …. 3.31–3.32 attempted murder …. 9.52 background of accused …. 3.13, 3.18 battered woman syndrome …. 3.15 defence to murder, as …. 3.2, 3.8, 8.5 abolition of

arguments for …. 3.31 Victoria, in …. 3.32 changes to law …. 3.9–3.11, 3.17–3.20, 3.23, 3.26, 3.28, 3.31 conduct to amount to ‘serious indictable offence’ …. 3.23 Crown to disprove …. 3.8 domestic violence and …. 3.15, 3.24 intoxication and …. 3.21 Legislative Council’s Select Committee on the Partial Defence of Provocation …. 3.11 limits to availability of defence …. 3.9–3.11 loss of control after sustained period of abuse …. 3.15 mistake …. 3.28 Model Criminal Code Officers Committee (MCCOC) criticisms of …. 3.31 ordinary person test …. 3.12, 3.17–3.20 removal of ‘in the position of the accused’ …. 3.17–3.19 presence of accused …. 3.25 problems with defence …. 3.11 proportionality not required …. 3.30 self-induced provocation …. 3.27 third party conduct …. 3.26 two-part test …. 3.12–3.14 when direction called for when provocative conduct occurred …. 3.15–3.16

withholding provocation from jury …. 3.29 words as provocative conduct …. 3.23–3.24, 3.29 directions from judge …. 3.30 duress analogy …. 9.8 gravity of conduct …. 3.18–3.19 hatred or revenge distinguished …. 3.13 intoxication and …. 3.21–3.22 jury directions to …. 3.30 warning …. 3.19 withholding from …. 3.29 long-term abuse …. 3.11 loss of self-control …. 3.12 causal connection with conduct of victim …. 3.13, 3.18 induced by conduct of victim …. 3.12 ordinary person test …. 3.12–3.20 sustained period of abuse, after …. 3.13, 3.15–3.16 manslaughter …. 3.12–3.20 mistake as to …. 3.28 murder defence …. 3.8–3.32 murder reduced to manslaughter …. 2.1–2.2, 3.2 non-fatal offences, whether defence to …. 9.52 ordinary person test …. 3.12–3.20 presence of accused …. 3.25 proportionality …. 3.30

self-induced …. 3.27 sexual advances …. 3.18 third party conduct …. 3.26 time frame …. 3.12–3.13, 3.15–3.16 two-part test …. 3.12–3.13 voluntary manslaughter …. 3.2, 3.8–3.32 withholding from jury …. 3.29

Q Questioning official, admissions during …. 12.127

R Rape see Sexual assault (rape) Recklessness assault …. 5.9, 5.29, 5.31 battery …. 5.23, 5.31 conspiracy to commit crime of …. 10.31 definition …. 5.9, 5.23 fault element of offence …. 1.71 intoxication and …. 8.48, 8.59 proof of …. 1.72 Record of interview questions raised by …. 8.1 Rehabilitation adjournment of proceedings to undertake …. 12.11 deferral of sentence for …. 12.57

S Search arrest, incidental to …. 11.53–11.54 frisk search …. 11.60 person in custody …. 11.54, 11.60 person under arrest …. 11.53–11.54 police powers …. 11.5 reasonable suspicion …. 11.6–11.9 stop and search without warrant …. 11.5–11.9 warrant, under …. 11.13, 11.18 power …. 11.60 strip search …. 11.60 Search warrant covert see Covert search warrant entry for investigation without …. 11.22 exceptions to rules of …. 11.15 execution in daytime …. 11.23 firearms offence …. 11.12, 11.21 history of law of …. 11.21 invalid …. 11.20–11.21 invasion of fundamental rights …. 11.20 investigation with …. 11.10 issue of …. 11.11 legislative provisions …. 11.20 nature of …. 11.19

night, not to be executed at …. 11.23 obligations of issuing justice …. 11.19 occupier’s notice …. 11.14 police powers and responsibilities under …. 11.13 reasonable grounds to issue …. 11.7 rule of strictness …. 11.20–11.21 search of persons found on premises …. 11.13 seizure of items found …. 11.13 Self-defence availability of defence …. 9.40 burden of proof …. 9.33, 9.40 causal connection between conduct and response …. 9.42 common law background …. 9.32–9.38 defence of …. 3.40, 8.4, 9.3, 9.32 discussion questions …. 9.53 elements …. 9.41–9.46 reasonableness of response …. 9.43 excessive force, use of …. 9.37 death, causing …. 9.47–9.49 exoneration of actions …. 8.1 factors in sentencing …. 9.49 intention to kill …. 9.32 intoxication, consideration of …. 9.44–9.46 lawful conduct, response to …. 9.50 legislative statement of …. 9.39–9.40

necessity compared …. 9.32 non-criminal conduct, response to …. 9.50 others, of …. 9.51 property, of …. 9.51 provocation by accused …. 9.35 reasonableness of response …. 9.40–9.45, 9.49 when available …. 9.40 Sentencing aggravating factors …. 12.48 appeal against see Appeals assault causing death charge discretion, limit to …. 4.22 civil and criminal proceedings, differences between …. 1.22 community service orders …. 12.50 compulsory drug treatment detention …. 12.63 custodial orders …. 12.62 compulsory drug treatment detention …. 12.63 full-time custody and parole …. 12.66–12.70 home detention …. 12.64 intensive correction …. 12.65 life sentence …. 12.71–12.73 deferral of sentence for rehabilitation …. 12.57 discount assistance to authorities …. 12.48

early guilty plea …. 12.47–12.49 disqualification from driving …. 12.55 diversion schemes …. 12.59 ex parte hearings …. 12.17 fines …. 12.58 good behaviour bond …. 12.50, 12.53, 12.55, 12.60–12.61 home detention …. 12.64 imprisonment …. 12.66–12.73 intensive correction alternative …. 12.65 instinctive synthesis approach …. 12.46 life sentence …. 12.71–12.73 maximum penalties …. 12.48–12.50 mitigating factors …. 12.48 non-custodial options …. 12.51–12.61 community service orders …. 12.52 deferral of sentence for rehabilitation …. 12.57 diversion of offenders …. 12.59 fines …. 12.58 good behaviour bonds …. 12.53 offence proved but no action taken …. 12.54–12.56 suspended sentence …. 12.60–12.61 offence proved but no action taken …. 12.54–12.56 options …. 12.46, 12.51–12.73 penalty units …. 12.58 principles …. 12.46

release without conviction …. 12.54 conditional …. 12.55 unconditional …. 12.55 remorse …. 12.48 staged approach …. 12.46 statutory framework …. 12.47 suspended sentence …. 12.60–12.61 Serious indictable offence definition …. 3.23 Sexual assault (rape) attempted …. 6.31 basic sexual offence …. 6.2–6.3, 6.7 child sexual assault see Sexual offences against children consent, knowledge of and recklessness as to …. 6.14–6.16 absence of consent, grounds to establish …. 6.32–6.42 intimidatory or coercive conduct …. 6.38–6.42 intoxication, effect of …. 6.33–6.37 advertent recklessness …. 6.19–6.20 consent in relation to attempted sexual assault …. 6.31 honest but unreasonable belief in consent …. 6.21–6.26 strict liability offence …. 6.25 negation of consent …. 6.27–6.30 complainant asleep or unconscious, where …. 6.27, 6.30 lack of capacity …. 6.27

non-advertent recklessness …. 6.17–6.18 recklessness, meaning of …. 6.16 evidentiary and procedural rules …. 6.55 fault elements …. 6.8, 6.14–6.42 gender neutral offence …. 6.8 incest …. 6.10 intentional act …. 6.10 intoxication and consent …. 6.31–6.37 knowledge of lack of consent …. 6.11–6.13, 6.14–6.21 male under 14, by …. 6.2 mistaken belief in consent …. 6.21 offence …. 6.3, 6.7 person who has cognitive impairment, on …. 6.54 physical elements …. 6.8 sexual intercourse, act of …. 6.9–6.10 without consent …. 6.11–6.13 consent to be free and voluntary …. 6.13 rape, replacement of …. 6.8 rape at common law …. 6.1, 6.7 rape in marriage …. 6.2 recklessness as to consent …. 6.14–6.21 sexual intercourse, definition …. 6.8–6.9 Sexual offences act of indecency …. 6.3, 6.44–6.47 towards another person …. 6.47

what is …. 6.45–6.46 assault with intent to have sexual intercourse …. 6.3 capacity and consent …. 6.6 category …. 6.1 children, against see Sexual offences against children children, by age of criminal responsibility …. 1.79 knowledge of wrong …. 1.80 rape by male under 14 …. 6.2 common law immunities, abolition of …. 6.5 consent …. 6.2, 6.27 criminal responsibility, concepts which underpin …. 6.6 discussion questions …. 6.56 evidentiary rules for trials …. 6.2, 6.55 forced self-manipulation …. 6.4 fundamental legal principles …. 6.2 incest …. 6.10 indecent assault …. 6.3, 6.43 fault element …. 6.48–6.50 intention and recklessness …. 6.6 international obligations to protect against …. 6.2 knowledge and mistake …. 6.6 mistake defence …. 1.89 Model Criminal Code Report …. 6.2 rape …. 6.1, 6.8

recklessness …. 6.6, 6.14–6.21 sexual assault see Sexual assault sexual intercourse with children and other vulnerable persons …. 6.3 statutory framework …. 6.3–6.5 abolition of common law immunities …. 6.5 violence, degree of …. 6.2–6.3 Sexual offences against children age of consent …. 6.2, 6.27–6.28, 6.47 attempted sexual intercourse …. 10.6 child in care age of consent …. 6.52 sexual intercourse with …. 6.51 children, by age of criminal responsibility …. 1.80 knowledge of wrong …. 1.80 rape by male under 14 …. 6.2 cognitive impairment, person with sexual intercourse with …. 6.51, 6.54 consent, irrelevance of …. 6.51 incest …. 6.10 law to protect against …. 6.2 mistake about age of victim …. 6.52–6.53 sexual intercourse age of consent …. 6.2, 6.27–6.28, 6.47

attempted …. 10.6 child below age of consent …. 1.89 child between 14 and 16 years …. 6.52 child in care …. 6.51 cognitive impairment, person with …. 6.51, 6.54 Sexually transmitted diseases consent and …. 5.40–5.44 Silence, right to adverse inference, court may draw …. 12.151 pre-conditions …. 12.152 caution to be given …. 12.153–12.155 overview …. 12.150–12.156 Special defendants children …. 1.79–1.80 corporations …. 1.81 extra elements of offence …. 1.78 Stalking apprehended domestic violence orders …. 5.10–5.14, 5.17 offence …. 5.10 Standard of proof automatism …. 8.1 balance of probabilities …. 1.18, 1.51 beyond reasonable doubt …. 1.18, 1.34, 1.48–1.51, 1.91 meaning …. 1.50 civil …. 1.18–1.19

criminal …. 1.18–1.19, 1.34, 1.48–1.51 defence …. 1.51 meaning …. 1.49 Stealing and other property offences discussion questions …. 7.75 dishonest acquisition alternative verdicts in cases of …. 7.73 embezzlement …. 7.63–7.64 fraud offences …. 7.65–7.72 dishonest, definition …. 7.66 dishonesty, test for …. 7.72 financial advantage, obtain …. 7.68–7.71 fraudulent appropriation …. 7.62 larceny see Larceny larceny by bailee …. 7.61 Model Criminal Code Officers Committee recommendations …. 7.2 statutory offences …. 7.60 categories …. 7.74 Stop and search without warrant power to …. 11.5 Strict liability crimes of …. 1.83 defence of mistake of fact …. 1.84, 1.87 establishment of …. 1.84

mistake of law no defence …. 1.85–1.86 Substantial impairment by abnormality of mind burden of proof …. 8.19 definition …. 8.20 diminished responsibility, defence of abolition …. 8.23 comparison with substantial impairment …. 8.25 evidence of previous conviction of …. 8.28 expert evidence …. 8.22, 8.27 fitness to be tried …. 8.29–8.32 insanity and …. 3.34–3.35, 3.38 intoxication disregarded …. 3.36, 8.20, 8.27 judge’s directions …. 8.25 mental illness …. 3.35, 8.17–8.28 Model Criminal Code discussion paper …. 8.23 murder reduced to manslaughter …. 2.1, 3.2, 3.33–3.38, 8.16–8.29 otherwise guilty of murder …. 8.20–8.22 partial defence to murder …. 8.3, 8.5, 8.17–8.28 post-1998 version …. 8.23–8.28 set term of detention …. 3.35 test for …. 3.36 underlying condition …. 3.36, 8.26 voluntariness, question of …. 8.3 Summary offences court attendance notice …. 12.9–12.10

determining whether offence is …. 12.6 ex parte hearings …. 12.14–12.17 first return date …. 12.9–12.10 hearing …. 12.18–12.20 indictable offences dealt with summarily …. 12.7 magistrate, heard by …. 12.6 plea of guilty …. 12.11–12.12 plea of not guilty …. 12.13, 12.18

T Terrorism inchoate terrorism crimes …. 10.3–10.4 Torture evidence obtained by …. 12.122 Traffic offences disqualification from driving …. 12.55 intervention program …. 12.59 penalty notice …. 12.2

U Unfair prejudice admissions …. 12.146–12.149 evidence causing …. 12.128–12.132 Unlawful killing manslaughter see Manslaughter murder see Murder overview …. 2.1

V Victoria abortion, recommendation to decriminalise …. 9.31 assault causing death, approach to …. 4.21 excessive self-defence defence to murder, abolition of …. 3.42 provocation, abolition of …. 3.32 Voluntariness accident and, concept of …. 8.38–8.40 automatism …. 8.33–8.40 concept of …. 8.36–8.40 crimes requiring proof of …. 8.36 crimes requiring proof of …. 8.36 criminal codes, principle in …. 8.37 criminal responsibility …. 8.37 defences going to question of …. 8.3, 8.34–8.40 discussion questions …. 8.64 duress and …. 9.14–9.16 Model Criminal Code Report …. 8.37 physical movement …. 8.37 proof of …. 8.36 Voluntary manslaughter discussion questions …. 3.46 excessive self-defence …. 3.2, 3.8, 3.39–3.42 Crown to disprove …. 3.8

introduction of …. 3.39, 3.41 Victoria, not available in …. 3.42 extreme provocation …. 3.2, 3.8 abolition of arguments for …. 3.31 Victoria, in …. 3.32 changes to law …. 3.9–3.11, 3.17–3.20, 3.23, 3.26, 3.28, 3.31 conduct to amount to ‘serious indictable offence’ …. 3.23 Crown to disprove …. 3.8 domestic violence and …. 3.15, 3.24 intoxication and …. 3.21 Legislative Council’s Select Committee on the Partial Defence of Provocation …. 3.11 limits to availability of defence …. 3.9–3.11 loss of control after sustained period of abuse …. 3.15 mistake …. 3.28 Model Criminal Code Officers Committee (MCCOC) criticisms of …. 3.31 ordinary person test …. 3.12, 3.17–3.20 removal of ‘in the position of the accused’ …. 3.17–3.19 partial defence to murder …. 3.2 presence of accused …. 3.25 problems with defence …. 3.11 proportionality not required …. 3.30

self-induced provocation …. 3.27 third party conduct …. 3.26 two-part test …. 3.12–3.14 when provocative conduct occurred …. 3.15–3.16 withholding provocation from jury …. 3.29 words as provocative conduct …. 3.23–3.24, 3.29 murder and, difference between …. 2.1, 3.1 physical elements …. 3.1 substantial impairment by abnormality of mind …. 3.2, 3.8, 3.33–3.38 mental illness defence and, comparison of …. 3.34, 3.38 onus of proof …. 3.8, 3.34, 3.37 parole period, sentence may include …. 3.35 partial defence to murder …. 3.33 test for …. 3.36 when applied …. 3.2

W Warrant arrest, for …. 11.34 arrest without see Arrest ASIO powers …. 11.24 crime scene, establishing …. 11.10 detention, for …. 11.24 DNA testing, taking samples for …. 11.10 expanding powers …. 11.23–11.25

interception of telecommunications …. 11.10 investigation with …. 11.10 investigation without …. 11.22 search …. 11.11–11.21 issuing …. 11.11–11.12 nature of …. 11.19–11.21 obligation of issuing justice …. 11.19–11.21 powers and responsibilities …. 11.13–11.18 Witness calling of …. 12.19 committal hearing, evidence at …. 12.24 cross-examination …. 12.19 examination-in-chief …. 12.19 Wounding aggravated assault …. 5.27 definition …. 5.27 intent to murder …. 10.6 provocation …. 9.48